Best NSW Adoption Resource for Foster Carers Pursuing Permanency

If you are a dually authorised foster carer in NSW with a child in your home whose restoration has been ruled out, you are not in the same position as a family just beginning to research adoption. You are already in the system. The question you are facing is not "how does adoption work in NSW?" — it is "how do I move from being this child's foster carer to being their legal parent, and what are my actual options?"

The resources designed for families entering adoption from the beginning will not answer that question directly. This page is for foster carers who need the specific legal and procedural clarity that the transition from OOHC carer to adoptive parent requires.

Who This Is For

• Foster carers who are dually authorised (assessed for both fostering and adoption) and have a child in their care whose permanency goal has shifted from restoration to permanency
• Carers whose child's case plan has identified adoption or long-term guardianship as the permanency pathway, and who need to understand the practical difference between the two options before they commit
• Carers who have been told that a Section 90 application is the pathway to adoption and want to understand what that actually involves
• Dually authorised carers who feel their caseworker is steering them toward guardianship rather than adoption and want to understand their position
• Carers who want to understand the financial implications of an adoption order — specifically what happens to carer allowances — before they make a final decision

Who This Is NOT For

• Foster carers who are not dually authorised — if you have only completed foster carer assessment, adoption is not yet on the table for you
• Families applying to adopt through OAPS as new applicants (not already in the OOHC system) — the entry pathway is different (see the NSW Adoption Process Guide for the eight-stage OAPS process)
• Families whose child is in OOHC and whose restoration goal has not yet been ruled out — adoption cannot proceed while restoration remains a possibility under NSW law
• Kinship carers who want to pursue adoption of a related child — intrafamily adoption has a different legal test and different process (see our post on intrafamily adoption in NSW)

The Permanency Hierarchy: Where Adoption Sits

NSW child protection legislation establishes a clear hierarchy for permanency planning. Understanding this hierarchy is essential for foster carers because it determines both the legal threshold for adoption and why the system will prioritise other options first.

The hierarchy under the Children and Young Persons (Care and Protection) Act 1998 is:

1. Restoration — Return of the child to their birth parents or family
2. Guardianship — Placement with a relative, kin, or foster carer with long-term guardianship order
3. Adoption — Full legal transfer of parental responsibility with a new birth certificate
4. Long-term placement — Continued OOHC without a legal permanency order

Adoption ranks below guardianship in this hierarchy. That does not mean adoption is impossible or even unlikely for a specific child — it means DCJ must consider and rule out the options above it before actively supporting an adoption application. If a birth grandparent is willing to assume guardianship, DCJ will generally support that outcome before adoption by an unrelated foster carer.

For many carers, this hierarchy feels like a barrier. In practice, it is also a roadmap: once you understand it, you know exactly what conditions need to be established before an adoption application is viable.

The Section 90 Application

Section 90 of the Adoption Act 2000 is the specific legal mechanism by which foster carers can apply to the NSW Supreme Court for an adoption order in respect of a child in their care. It is the foster carer's pathway into the same Supreme Court process that other adoptive families go through.

The threshold requirements for a Section 90 application:

• The child has been in the care of the applicant for at least two years (the mandatory period is not always exactly two years, but substantial continuous care is required)
• The child's restoration to birth parents has been formally ruled out by DCJ and reflected in the child's case plan
• The applicant is dually authorised — authorised as both a foster carer and an adoptive parent
• DCJ supports the application, or the Supreme Court determines that adoption is in the child's best interests notwithstanding DCJ's position

The last point matters. DCJ does not have a veto over Section 90 applications. If DCJ does not support the adoption (for example, because they believe guardianship better serves the child's interests), you can still apply to the Supreme Court, and the court will make its own assessment. In practice, applications that proceed without DCJ support are significantly more complex and typically require legal representation.

What the Supreme Court assesses in a Section 90 matter:

The same paramountcy principle applies — the best interests of the child are the primary consideration. The court will assess:

• The nature of the existing relationship between the child and the carer
• The child's wishes, weighted by their age and maturity
• Whether adoption will better serve the child's needs than the alternatives
• The Adoption Plan — the court will generally require an Adoption Plan that documents how birth family contact will be maintained after the order
• Evidence from DCJ in the form of a Section 91 Court Report

The Adoption vs Guardianship Decision for Carers

For dually authorised carers in the OOHC system, the choice between adoption and guardianship is real and consequential. It is not simply a question of which provides "more" permanence.

The case for adoption:

• Lifelong legal family status — the order does not expire at 18
• New birth certificate naming you as parent
• Clear inheritance rights and next-of-kin status
• Removes the annual review cycle and re-authorisation requirements that foster placement involves
• Can provide the child with a settled sense of legal identity

The case for guardianship:

• Carer allowances continue for the duration of the guardianship order — for carers of children with additional support needs, this can be several hundred dollars per fortnight
• The Children's Court process is typically faster and less complex than the Supreme Court
• The child's legal identity and birth certificate remain unchanged — meaningful for older children who have a strong sense of their birth family identity
• Contact with birth family can be managed more flexibly through Children's Court orders than through an Adoption Plan filed with the Supreme Court

The financial reality: When an adoption order is made, you are no longer a foster carer. The child is your legal child. Carer allowances — including any top-up payments for additional needs — cease immediately. This is not a minor consideration for families who have structured their household finances around those payments. The guide covers the financial transition in detail.

The Caseworker Conversation

One of the most consistent pain points for foster carers pursuing adoption is navigating the caseworker relationship. Caseworkers operate within a system that prioritises the permanency hierarchy — which means their default recommendation may be guardianship unless there are specific reasons adoption is preferred.

Understanding the hierarchy means you can have a different kind of conversation. You are not arguing for adoption over guardianship — you are demonstrating that you understand the threshold for adoption and can articulate specifically why, for this child, adoption better serves their long-term interests than guardianship. That is the conversation the Supreme Court will eventually evaluate. It helps to have it with your caseworker first.

Specific questions worth asking your caseworker:

• What is the current permanency goal in the child's case plan, and has restoration been formally ruled out?
• Has DCJ assessed guardianship as an option and, if so, what is the outcome of that assessment?
• Is there any kinship carer being considered for guardianship that would precede our application?
• What is DCJ's current position on whether adoption would serve this child's best interests, and what evidence supports that position?

Frequently Asked Questions

We've been caring for this child for four years. Why hasn't adoption been raised with us yet?

Restoration can remain a formal case plan goal for longer than families expect, even when it is practically unlikely. DCJ may also be assessing kinship options that have not been communicated to you clearly. If your child has been in your care for more than two years and restoration appears unlikely, you can ask DCJ directly for an updated permanency assessment and a clear explanation of where the case plan stands.

Can we apply for Section 90 adoption without DCJ's support?

Yes. Section 90 is a Supreme Court application, and the court makes its own determination in the child's best interests. DCJ will file a Section 91 Court Report with its recommendation. If DCJ opposes the adoption, the court will consider both DCJ's recommendation and your evidence. Applications without DCJ support are more complex and invariably require legal representation.

Will our carer allowances stop the moment the adoption order is made?

Yes. The adoption order legally ends the OOHC placement. You are no longer a foster carer from the moment the order is made, and carer allowances cease at that point. Some families use the period before the adoption order is finalised to plan for the financial transition. The guide covers this adjustment in detail.

What is an Adoption Plan and do we have to negotiate it with the birth parents?

An Adoption Plan is a document that the Supreme Court will generally require as part of the adoption order. It sets out how contact between the child and their birth family will be maintained. It does not require the birth parents' consent — if they are not involved or available, the plan can be prepared without them. DCJ and the AASP (if involved) will assist with the plan. The content of the plan — frequency and nature of contact, information sharing, cultural connections — is assessed by the court against the child's best interests.

Is there a time limit on how long we have to apply once restoration is ruled out?

There is no hard statutory deadline for carers to apply for adoption once restoration is ruled out, but delays have practical risks. Children's circumstances change. Kinship options can emerge. DCJ case plans can evolve. If you believe adoption is the right outcome for a child in your care and restoration has been ruled out, it is better to initiate the process than to wait.

The NSW Adoption Process Guide includes a dedicated chapter on the OOHC adoption pathway, the Section 90 application, and the permanency hierarchy — written for foster carers already in the system, not just for families starting from the beginning.

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