Adoption in Australia: Past, Present and Considerations for the Future Amy Conley Wright, Betty Luu and Judith Cashmore ABSTRAC
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This is an Accepted Manuscript of an article published by Thomson Reuters in Australian Law Journal on 29 January 2021, available online: http://sites.thomsonreuters.com.au/journals/2021/01/29/australian-law-journal- update-vol-95-pt-1/ Adoption in Australia: Past, present and considerations for the future Amy Conley Wright, Betty Luu and Judith Cashmore ABSTRACT Australia has a troubled history with adoption, arising from the legacy of forced and ‘closed’ adoptions and the systematic removal of Indigenous children, known as the ‘Stolen Generations’. Evidence from national inquiries and research shows that closed and forced adoptions denied children connection to their roots and had detrimental effects on children, birth parents, and their family and community networks. In recent years, the steady increase in the number of children in out-of-home care has prompted reconsideration of adoption, emphasising its purpose as a service to the child. Policy and legislative reforms to out-of- home care across Australian jurisdictions are promoting legal permanency for children who would otherwise grow up in care. Yet, issues continue to be debated about the ‘best interests of the child’, and the trade-offs of adoption compared with alternative legal orders, and the ethics of dispensing with birth parents’ consent. The adoption of Indigenous children remains very contentious. Adoption in Australia: Past, present and considerations for the future I INTRODUCTION Adoption is an old institution with changing meanings. In ancient cultures such as Greece and Rome, adoption was generally intended to establish succession and confer inheritance.1 It involved male adoptees, generally adults and often kin, providing continuity of the family line and care for the adopters in old age. Informal adoption, as practiced through the 19th century, was often by agreement between the child’s natural and adoptive family, and was ‘open’ in the sense that families often already knew each other and might maintain contact. ‘Legal’ adoption in English-speaking countries emerged in the mid–19th century, supported by legislation entailing severance of the legal relationship between the child and their biological family and establishing a new legal parent-child relationship ‘as if’ the child had been born to that family.2 It involved the ‘substitution’ or transfer of the rights and duties of parenthood and kept confidential information about the identity or location of the birth parents, adoptive parents and the children (‘closed’ adoption) both to protect the rights of adoptive parents and the presumed ‘best interests’ of the child. This secrecy has now given way to ‘openness’ in adoption, with shared information and contact in various forms to support children’s identity formation, connection to culture and continued relationships with their birth family. This article deals with the ‘local’ adoption of Australian children, not the intercountry adoption of foreign-born children. It starts with a discussion of the history of adoption practices, and the legacy of ‘forced adoptions’ and the Stolen Generations of Aboriginal children. The following sections outline the trends in local adoption, the commonalities and differences in state-based legislation, and the more recent reforms and practices related to the adoption and ‘permanent placement’ of children from out-of-home care. II PAST PRACTICES OF ADOPTION The “transfer of a child from their birth family into the care of another” has occurred for as long as people have lived in Australia.3 In Aboriginal communities, Kinship systems are complex in terms of members’ obligations to each other; shared responsibility to care for children, and households can be fluid, with children and adults moving between households.4 1 Lindsay, Hugh, ‘Adoption and heirship in Greece and Rome’ in Beryl Rawson (ed), A Companion to Families in the Greek and Roman Worlds (Oxford: Blackwell, 2011). 2 This legal concept of adoption can be traced back to 1851, when the Massachusetts legislature authorised judges to permanently sever the legal relationship between a child and their biological parents and established a new legal parent-child relationship in the absence of biological kinship. See Zainaldin, Jamil S, ‘The Emergence of a Modern American Family Law: Child Custody, Adoption, and the Courts’ (1979) 73(6) Northwestern University Law Review 1038), at 1042–3. 3 Quartly, Marian, Shurlee Swain, and Denise Cuthbert, The Market in Babies: Stories of Australian Adoption (Monash University Publishing, 2013) at 2. 4 Lohoar, Shaun, Nick Butera and Edita Kennedy, Australian Institute of Family Studies, Strengths of Australian Aboriginal Cultural Practices in Family Life and Child Rearing (2014). 2 While the permanent transfer of a child to another family is not recognised as a customary practice among Aboriginal families, the permanent exchange of a child into the care of another family, typically within the extended family network, is a Torres Strait Islander custom.5 In White settler families, informal care offered by extended families or neighbours for children in need was common. In about the 1840s, however, an “exchange” of children began between strangers, with newspaper advertisements from people wanting to adopt and parents unable to keep their children. These practices, described as a ‘market in children’, were often private arrangements, with a transfer of money, and not authorised by law.6 From the initiation of colonialization through much of the 20th century, Aboriginal children, particularly those of mixed heritage, were removed from their communities and placed in institutions or adoptive homes. These efforts to ‘breed out’ or ‘assimilate’ Aboriginal children were hidden or denied by the government of the day.7 It is not possible to state with any precision how many children were removed, but it is estimated that the numbers of Indigenous children removed from their families and communities ranged from 1 in 10 to 1 in 3, depending on the State or Territory, in the period from 1910 to 1970.8 In the 20th century, when an Indigenous child was ‘put forward’ for adoption, the social workers often hid the child’s cultural background. While the purpose may have been to encourage adoption over institutional placement with White families that may not have accepted an Aboriginal child, in effect this also erased the link to culture.9 Legal adoption was introduced, first in Western Australia in 1896 (Western Australian Adoption of Children Act), then legislated across Australia by the 1920s.10 State governments passed legislation that made adoption ‘secret’ with the intention that this would provide a fresh start for the child and their ‘new’ family with a ‘clean break’ from their birth parents. In this era of ‘closed adoptions’, an adopted child’s original birth certificate was kept sealed and a modified birth certificate verified the child’s new identity and relationship with their adoptive family ‘as if’ the child had been born to the adoptive parents. While sparing the child the stigma of illegitimacy, these practices of secrecy were considered a means of providing adoptive parents with security and preventing birth family contact. The initial impetus was to establish rights for adopters to retain control over children and youth whom they had fostered once their labour became useful, preventing biological parents from 5 Ban, Paul, ‘Torres Strait Islander Traditional Adoption–the Custom of Australia's Indigenous Minority’ (1993) 17(4) Adoption and Fostering 33–38. 6 Quartly, Marian and Shurlee Swain, ‘The Market in Children: Analysing the Language of adoption in Australia’ (2012) 9(2) History Australia, 69–89. 7 Marshall, Audrey and Margaret McDonald, The Many-Sided Triangle: Adoption in Australia (Melbourne University, 2001). 8 Australian Human Rights and Equal Opportunity Commission, Face the facts (2012) <https://www.humanrights.gov.au/our-work/2012-face-facts-chapter-1>. 9 Marshall, Audrey and Margaret McDonald, The Many-Sided Triangle: Adoption in Australia (Melbourne University, 2001). 10 Quartly, Marian, Shurlee Swain, and Denise Cuthbert, The Market in Babies: Stories of Australian adoption (Monash University Publishing, 2013). 3 reclaiming children.11 This extinguishment of relationships with birth family came to be the central principle of adoption, with the original family relationship hidden, almost as though it had never existed.12 After World War 2 and through the 1970s, the numbers of adoptions grew as more infertile couples sought babies and young children, while families of young women who ‘fell pregnant’ were pressured to choose adoption to hide what was considered their shame. Until later addressed by legislation such as the New South Wales Children (Equality of Status) Act 1975 and similar legislation across Australia, children born to unmarried parents were considered illegitimate. In these circumstances, mothers were condemned by strong moral outrage, while the illegitimate child, in ancient legal terms, was considered ‘filius nullius’– ‘child of no one’.13 The nuclear family was the preferred unit of society, putting a different kind of pressure on infertile couples to adopt children and ‘pass them off’ as their own. Adoption practices were led by social workers, who were given responsibilities to decide which babies could be adopted and who was suitable to adopt. While the purported aim was to find the ‘perfect family for babies’, it reflected the demands of adoptive parents for children and the pressure on