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 assessed as not safe or practicable, adoption is generally considered after the permanency hierarchy has been addressed. 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 remains active — adoption is generally considered only after restoration has been assessed and the permanency hierarchy has been addressed
• 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 Children and Young Persons (Care and Protection) Act 1998 is the care-order variation process used before adoption can proceed for a child in OOHC. The Section 90 process is heard in the Children's Court and is separate from the later Supreme Court adoption application.

Practical and procedural considerations for a Section 90 application:

• The child is in a stable long-term placement; the foster-care phase often lasts two years or more before adoption is considered
• Restoration has been assessed as not safe or practicable and is no longer the active permanency goal
• The applicant is dually authorised — authorised as both a foster carer and an adoptive parent
• Existing care orders must be varied through the Section 90 Children's Court process before adoption can proceed

DCJ's position is relevant evidence in the Section 90 process and any later adoption application. The Section 90 process has a leave stage based on a significant change in relevant circumstances, followed by a substantive hearing. Any later adoption application is made in the Supreme Court.

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
• A Section 91 Court Report prepared by the adoption assessor

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:

• Financial support arrangements differ by order; confirm them with DCJ before relying on an allowance
• 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: Financial arrangements can change when an adoption or guardianship order is made, but the effect on any carer payments depends on the relevant scheme and the child's circumstances. Confirm the financial transition with DCJ before relying on a payment.

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. 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?

Section 90 is a Children's Court process to vary existing care orders before adoption can proceed. DCJ's position and the adoption assessor's report are relevant evidence. A later adoption application is made in the Supreme Court. Contested or complex matters may require specialist legal advice.

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

The adoption order changes the OOHC legal arrangement, but the effect on any carer payments depends on the relevant scheme. Confirm the financial transition with DCJ before the order is made.

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. Whether birth-parent consent is required, can be dispensed with, or a plan can be made without an available parent depends on the circumstances, so obtain case-specific guidance. DCJ and the AASP (if involved) can 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?

The research does not identify a fixed statutory deadline for carers to apply. Ask DCJ to explain the current permanency plan and next step, because children's circumstances and case plans can change.

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.

See more New South Wales guides →