Fact Sheet 36 - Adopting a Child from Overseas
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In Australia, the processing of intercountry adoptions is the responsibility of State and Territory adoption authorities such as departments of family services. These authorities manage arrangements for adopting children from overseas including assessing and approving prospective adoptive parents. The Australian Government, through the Attorney-General's Department, has the responsibility for managing existing programs and negotiating new programs with other countries.
If you live in Australia and are considering adopting a child from overseas, contact your state or territory adoption authority.
The eligibility requirements for overseas adoptions are different in each state and territory and may include criteria concerning partner relationship status, age, citizenship and health. Relative and known child adoptions are a matter for each state and territory adoption authority to consider on a case by case basis, and are conducted in accordance with the Hague Convention and state and territory legislation.
The Department of Immigration and Citizenship cannot help with adoption arrangements. The department's role is to assess and decide applications for visas in accordance with the requirements of the Migration Regulations 1994.
This fact sheet provides an overview of requirements for entry of children who are adopted overseas, or are to be adopted in Australia by Australian citizens, permanent residents or New Zealand citizens. Separate information is available if the child was adopted before the sponsor became an Australian citizen, permanent resident or New Zealand citizen.
See: Fact Sheet 33 – Family Stream Migration – Child
Hague Convention
The Hague Convention on the Protection of Children and Cooperation in regard to Intercountry Adoption (known as the Hague Convention) came into force in Australia in December 1998.
The objectives of the Hague Convention are to eliminate abduction, trafficking or sale of children, and to make sure that intercountry adoptions take place in the best interests of the children, and according to consistent law and practices.
State and territory adoption legislation and Australia's immigration laws are designed to uphold the principles of this convention.
Adoption visa
An Adoption (subclass 102) visa is for a child who has been formally adopted by an Australian citizen or a person who is permanently resident in Australia. To be eligible for an Adoption visa, the overseas adoption must have been arranged through an Australian state or territory adoption authority. There is no provision to grant a visa to a child outside Australia who has been adopted under private arrangements, unless the adoptive parent has been genuinely resident overseas for 12 months at the time of the visa application.
An Adoption visa can only be applied for by children outside Australia. To be granted an Adoption visa, the child must be under 18 years of age at the time of application and the time of the decision. The child must meet health requirements before a visa is granted.
State and territory supported adoptions
Adoptions arranged by state and territory adoption authorities are known as intercountry adoptions and fall into two main categories:
- Hague Convention adoptions, between Australia and another country which has ratified the convention.
- bilateral agreement adoptions, from another country which has an agreement with Australia. Adoption authorities negotiate these agreements.
Adoption and immigration procedures vary depending on the country and the category under which the adoption takes place. The usual procedure is:
- prospective adoptive parents are allocated a child from the overseas country through their state or territory adoption authority
- if accepted, they may lodge an Adoption visa application for the child and pay the current visa application charge. The application may be lodged at any department regional office in Australia, and will be forwarded to the relevant departmental office overseas for processing. Alternatively, it may be sent directly to the overseas office with evidence that the application fee has been paid
- the child is required to undergo medical checks. The child may not be granted a visa if the health requirement is not met, unless there is a waiver of the health requirement. If the health requirement is not waived, the Adoption visa will be refused and the visa application charge can neither be refunded nor transferred to another child
- the adoption is finalised in the overseas country or the overseas authorities approve the child's departure for adoption in Australia
- a visa granting permanent residence to the child is granted and appears in the child's foreign passport.
Privately arranged adoptions
The only circumstance where an Adoption visa may be granted to a child adopted privately overseas is where the adoptive parents have been living overseas for more than 12 months at the time they made the visa application. These private adoptions, which are known as expatriate adoptions, have specific legal requirements that the adoptive parents must meet, including:
- their residence overseas was not contrived to deliberately bypass any requirements concerning entry of adopted children into Australia
- they have lawfully acquired full and permanent parental rights by the child's adoption. This means that the adoption order must sever the legal relationship between the child and its natural parents, and
- the relevant authorities in the overseas country have approved the child's departure to Australia.
The child also needs to meet the standard migration requirements including health criteria.
For further information please refer to a joint fact sheet from the Department of Immigration and Citizenship and the Attorney General's Department.
See: Fact Sheet – Expatriate Adoption ( 40KB PDF file)
Caution
State and territory adoption authorities do not generally support privately arranged adoptions. They will not help sponsors meet the requirements of the Migration Regulations for granting a visa to an adopted child.
'Full and permanent' adoption does not exist in the laws of some countries, for example, many Islamic countries. An adoption order that does not grant full parental rights to the adoptive parents is not acceptable for the grant of a visa.
If you wish to proceed with an adoption that has not been arranged by your state or territory adoption authority, it is strongly recommended you first seek legal advice both in Australia and in the overseas country.
You must ensure the adoption meets the requirements as set out in the Migration Regulations and that the child will be eligible to enter Australia. There is no provision to grant a visa to a child who does not meet the requirements of the Migration Regulations, even if the adoption has already occurred and is lawful in that country.
Guardianship of children
Overseas adoptions by Australian citizens and permanent residents are not automatically recognised under Australian law. The exceptions are adoptions completed overseas under the Hague Convention. In the case of other adoptions, once the adopted child has entered Australia, adoptive parents can apply to an Australian court to be recognised as parents of the child under Australian law.
A child who enters Australia holding an Adoption visa where the adoption is to be finalised in Australia, or where the adoption is not recognised, is officially under the guardianship of the Minister for Immigration and Citizenship. This guardianship is delegated to state and territory welfare authorities.
This arrangement is set down in the Immigration (Guardianship of Children) Act 1946. The Act provides a framework for state and territory governments to supervise the adoption process in Australia and ensure that arrangements are in the best interests of the child.
You will be advised when a decision is being made on the child’s application as to whether the child falls within these guardianship provisions, and what action you should take. The welfare authority in the state or territory in which you usually reside will also be advised of the child’s details.
The guardianship arrangements cease to apply once the child obtains Australian citizenship, or the child turns 18 years of age or in most cases when an Australian adoption order is made for the child.
Australian citizenship
The way in which an adopted child becomes an Australian citizen depends on the adoption process.
When an adoption is finalised in Australia
Where an adoption order is made under Australian law after the child arrives in Australia as a permanent resident, and at least one of the adoptive parents is an Australian citizen, the child will automatically acquire Australian citizenship. An application for Australian citizenship is not required, but parents may apply for evidence of Australian citizenship at any office of the department.
See: Form 119 Application for evidence of Australian citizenship (234KB PDF file)
When an adoption is finalised overseas
A child adopted overseas by an Australian citizen under the Hague Convention may be eligible to become an Australian citizen if an adoption compliance certificate has been issued and the adoption is recognised in Australia for the laws of the Commonwealth and each state and territory. Applications can be lodged overseas or once the child is in Australia.
See: Form 1272 Application for Australian citizenship for children adopted under full Hague Convention arrangements
A child adopted overseas by an Australian citizen under other arrangements may be eligible to apply for Australian citizenship by conferral. The child must hold visa that permits them to reside permanently in Australia. Applications can be lodged overseas or once the child is in Australia.
See: Form 1290 Application for Australian citizenship by conferral – Other situations (232KB PDF file)
Other information
Further information on Australian citizenship is available on the Citizenship Enquiry Line and website.
Telephone: 131 880
See: Australian Citizenship
Further information is available on the department's website.
See: www.immi.gov.au
The department also operates a national general enquiries line.
Telephone: 131 881
Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.
Fact Sheet 36. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Last reviewed November 2010.
© Commonwealth of Australia 2010.