Birth parent consent--When it's delayed


Lorne Welwood
Focus on Adoption magazine

Though it is rare, there are occasions when a birth parent does not give consent to the adoption of a child within the 30-day limit. Focus on Adoption asked Adoption Agency Director, and lawyer, Lorne Welwood where an adoptive parent or parents might stand in one such case.

Q: We brought home our baby 35 days ago. Though the birth mother was clear that she wants us to adopt the child, she has not signed consents to the adoption and we can’t locate her. I understand that in her absence, with the authorization of the Director of our Adoption Agency, we will continue to have care and custody of the child. But can we still go ahead with the adoption? Where do we stand and what happens next?

A: It is normal licensed adoption agency practice that if the child is placed with adoptive parents before consent to adoption is signed, care and custody has been transferred to the administrator of the agency under section 23 and, in turn, transferred to the adoptive parents under section 25 of the Adoption Act. Unless that transfer has some expiry date, the adoptive parents continue to have care and custody until finalization of the adoption. The Adoption Act is silent on the question of a birth parent revoking the transfer of care and custody, but it seems likely she could do so if she wished, as she retains guardianship until the formal consent to adoption is signed.

It seems the birth mother has not requested the return of the child, or the child would not still be with you. Perhaps she has not been able to get time off work for a legal appointment, or her lawyer has been unavailable, or she took a vacation. Those kinds of reasons are pretty benign and don’t cause much anxiety because the end is in sight. One good thing for your comfort level is that once she does sign adoption consent, the 30 day revoking period is already past.

But suppose she has dropped contact with you and the agency, or she does not want to sign consent yet because the birth father is refusing to sign. Those are more significant concerns. Ultimately, the court can dispense with a parent’s consent to adoption if the person cannot be located, has abandoned the child, not met parental obligations to the child, or for any other reason the court finds it to be in the child’s best interests.

There is no information in your question about the status of the birth father. Is he identified? If so, did the agency attempt to contact him as required by the Adoption Act? Was he involved in the adoption planning? If not, did he register on the Birth Father Registry in Victoria and get notice of the adoption plan? If he is on side with you and gives formal consent to the adoption, it would make your case for dispensing with the birth mother’s consent stronger. The court might be more reluctant to order the adoption be finalized if neither parent has consented, because nobody else is a guardian. You or the agency administrator might consider asking a court for an interim order of guardianship so that neither birth parent can show up saying, “Give me my baby” without first demonstrating to a court that it is in the child’s best interests.

There are too many variables to be able to fully answer your question, “Where do we stand and what happens next?” You would be well advised to seek the advice and assistance of a lawyer experienced in adoption cases.

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