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Adoption by Same-Sex Couples

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Adoption by Same-Sex Couples LEGISLATIVE COUNCIL Standing Committee on Law and Justice Adoption by same-sex couples Ordered to be printed 8 July 2009 according to Standing Order 231 Report 39 – July 2009 LEGISLATIVE COUNCIL Adoption by same-sex couples New South Wales Parliamentary Library cataloguing-in-publication data: New South Wales. Parliament. Legislative Council. Standing Committee on Law and Justice. Adoption by same-sex couples : [report] / Standing Committee on Law and Justice. [Sydney, N.S.W.] : The Committee, 2009. – xix – 185 p. ; 30 cm. (Report ; no. 39) Chair: Christine Robertson, MLC. “July 2009”. ISBN 978192186292 1. Gay adoption—New South Wales. I. Title II. Robertson, Christine. III. Series: New South Wales. Parliament. Legislative Council. Standing Committee on Law and Justice. Report ; no. 39 362.734 (DDC22) ii Report 39 - July 2009 STANDING COMMITTEE ON LAW AND JUSTICE How to contact the Committee Members of the Standing Committee on Law and Justice can be contacted through the Committee Secretariat. Written correspondence and enquiries should be directed to: The Director Standing Committee on Law and Justice Legislative Council Parliament House, Macquarie Street Sydney New South Wales 2000 Internet www.parliament.nsw.gov.au/lawandjustice Email [email protected] Telephone 02 9230 2976 Facsimile 02 9230 3416 Report 39 - July 2009 iii LEGISLATIVE COUNCIL Adoption by same-sex couples Terms of reference That the Standing Committee on Law and Justice inquire into and report on law reform issues regarding whether NSW adoption laws should be amended to allow same sex couples to adopt, with particular reference to: a. ascertaining whether adoption by same sex couples would further the objectives of the Adoption Act 2000 b. the experience in other Australian and overseas jurisdictions that allow the adoption of children by same sex couples c. whether there is scope within the existing programs (local and international) for same sex couples to be able to adopt d. examining the implications of adoption by same sex couples for children, and e. if adoption by same sex couples will promote the welfare of children, then examining what legislative changes are required.1 The terms of reference for the inquiry were referred to the Committee by the Minister for Community Services, the Honourable Linda Burney MP, on 27 November 2008. 1 LC Minutes No 81, 2 December 2008, Item 14, p 943 iv Report 39 - July 2009 STANDING COMMITTEE ON LAW AND JUSTICE Committee membership The Hon Christine Robertson MLC Australian Labor Party Chair The Hon David Clarke MLC Liberal Party Deputy Chair The Hon John Ajaka MLC Liberal Party The Hon Greg Donnelly MLC Australian Labor Party The Hon Amanda Fazio MLC Australian Labor Party Ms Sylvia Hale MLC The Greens Secretariat Ms Rachel Callinan, Director Ms Merrin Thompson, Principal Council Officer Ms Natalie Udovicic, Senior Council Officer Ms Christine Nguyen, Assistant Council Officer Report 39 - July 2009 v LEGISLATIVE COUNCIL Adoption by same-sex couples Table of contents Chair’s foreword x Executive summary xi Summary of recommendations xviii Acronyms xix Chapter 1 Introduction 1 Overview 1 Background to the inquiry 1 Inquiry terms of reference 2 Conduct of the inquiry 2 Submissions 2 Public hearing 2 Report structure 3 A note on the sensitivities of this inquiry 4 Chapter 2 Background 5 Adoption Act 2000 5 Objects 5 Eligibility 6 Principles for decision making about adoption 7 Assessment criteria 8 NSW adoption system 9 Department of Community Services 9 Non-government organisations 9 Types of adoption 10 The adoption process 11 Foster care 12 Parenting orders 12 Adoptions in NSW in 2007-2008 13 Same-sex couple families 14 NSW legislation recognising same-sex couples 14 Federal reforms 16 Adoption by same-sex couples in other Australian jurisdictions 17 Australian Capital Territory 17 vi Report 39 - July 2009 STANDING COMMITTEE ON LAW AND JUSTICE Western Australia 17 Tasmania 18 Northern Territory 18 Queensland 19 South Australia 20 Victoria 20 Overseas jurisdictions 21 Chapter 3 Best interests of the child 23 Key objects of the Adoption Act 23 Interpretations of the best interests of the child 24 Parenting by a mother and a father 25 Optimal care 25 The ‘fundamental complementarity’ of men and women 27 Doctrine, natural law, self-evident truth and research 30 Fitness to parent 32 The limited number of children available for adoption 33 A responsibility to maintain the status quo 33 Adoption decisions regardless of parental gender and sexuality 34 Reliance on the assessment process 35 A broader pool 40 The desirability of permanency for children in foster care 42 Gender roles and role models 43 Fitness to parent 46 The potential for ostracism 49 Children’s views 50 Conclusion 53 Chapter 4 Research on families 57 Family form and family functioning 57 Parenting by a mother and a father 58 Parenting by same-sex couples 61 Criticisms of the research 66 Methodological limitations 66 Ideological limitations 69 An objective framework for reputable research 71 Criteria for reputable research 71 Methodological rigour 71 An appropriate response to the literature 72 Report 39 - July 2009 vii LEGISLATIVE COUNCIL Adoption by same-sex couples Conclusion 75 Chapter 5 Human rights and legal issues 77 Anti-discrimination 77 Discrimination against same-sex couples 77 Human rights 80 Discrimination against children 81 Consistency with national and international developments 82 Law reform bodies in support of adoption by same-sex couples 84 Discrimination sends the wrong message 85 Counter-arguments about anti-discrimination 86 No right to adopt 86 The primacy of the best interests of the child 87 The ‘right’ to a mother and a father 89 Legal recognition of existing parent-child relationships: known child adoption 91 Best interests and human rights 95 The benefits of legal recognition for children 98 The limitations of other forms of parental recognition 101 Counter-arguments about legal recognition of existing parent-child relationships 105 Inconsistencies in the legislation 108 Foster care and adoption by same-sex couples 108 Adoption by individuals but not couples 111 Presumptions of parentage in only certain same-sex relationship circumstances 112 Potential impact on intercountry adoptions 112 Participants’ recommendations for reform 115 Conclusion 117 Chapter 6 Exemptions 121 Overview 121 Section 56 of the Anti-Discrimination Act 1977 122 Section 56 and the provision of services by faith-based adoption agencies 123 Arguments in support of an exemption 125 Arguments against an exemption 127 Conclusion 128 viii Report 39 - July 2009 STANDING COMMITTEE ON LAW AND JUSTICE Appendix 1 Submissions 133 Appendix 2 Witnesses at hearings 143 Appendix 3 Tabled documents 145 Appendix 4 Answers to questions on notice 146 Appendix 5 Publications referred to during the inquiry 147 Appendix 6 Minutes 151 Appendix 7 Dissenting statements 183 Report 39 - July 2009 ix LEGISLATIVE COUNCIL Adoption by same-sex couples Chair’s foreword This inquiry into adoption by same-sex couples has been an unusually challenging one for the Law and Justice Committee. It has encompassed complex arguments not just about legal issues associated with the rights of children with respect to family and those of adults with respect to anti-discrimination. More notably, a core aspect of the inquiry has been the moral and belief-based arguments concerning the best interests of children, the role of family, and the kind of society we aspire to live in. In turn, these belief-based arguments have meant that there has been an unusual polarisation of views expressed during the inquiry about whether same-sex couples should or should not be eligible to adopt. These challenges point to the value of a parliamentary committee undertaking an inquiry on a matter such as this, on which there are diverse and strongly held views within the community. As it is not possible for the House itself to thoroughly investigate complex policy issues, it is the role of parliamentary committees to do this and to make recommendations to the Government, having given detailed consideration to the views of a broad range of stakeholders. Just as the composition of the House reflects the broader community, so too does the membership of this Committee, each of whom brought their own perspective to the inquiry process. The Committee has determined that the Adoption Act 2000 should be amended to allow same-sex couples to adopt, but that an exemption from the application of the Anti-Discrimination Act 1977 be created for faith-based adoption agencies. The Committee has concluded that reform to allow same-sex couples to adopt in NSW will protect children’s rights and help to ensure children’s best interests. It will do so by providing the security of legal recognition for existing parent-child relationships, by broadening the pool of potential applicants from which the most appropriate parents for any individual child are selected, and by enabling children currently fostered by same-sex couples to have that relationship permanently secured where appropriate. Such reform will also address discrimination against same-sex couples and their children, and address anomalous inconsistencies in their present treatment under the law. I thank each of my Committee colleagues for their contribution to this inquiry, and for the exhaustive way they have fulfilled their responsibilities to consider the evidence presented to us, and to form their own views, on the basis of that evidence, about the most appropriate
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