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)
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 unwed mothers to relinquish their child.14 By the 1980s, the children of these adoptions had come of age and the passage of time had done little to heal the loss of many mothers who relinquished children. Over the 1980s and into the mid-1990s, Australian states and territories enacted legislation to open previously sealed adoption records, for adult adopted persons and their birth families. The first of these was Victoria (Adoption Act 1984). Personal stories from adopted people and birth parents have led to reconsideration of this era of Forced Adoption.15 Stories of child removal from Indigenous communities and the devastating impacts brought to public attention the practices and consequences of child removal of what are now known as the Stolen Generations. People affected by these coercive adoption practices have in common experiences of trauma and loss associated with family and identity. 16
11 Marshall, Audrey and Margaret McDonald, The Many-Sided Triangle: Adoption in Australia (Melbourne University, 2001). 12 Monahan, Geoff and Jennifer Hyatt, ‘Adoption Law and Practice in Australia’ (2018) 30 Singapore Academy of Law Journal, 484–517. 13 Marshall, Audrey and Margaret McDonald, The Many-Sided Triangle: Adoption in Australia (Melbourne University, 2001). 14 Quartly, Marian, Shurlee Swain, and Denise Cuthbert, The Market in Babies: Stories of Australian adoption (Monash University Publishing, 2013). 15 Higgins, Daryl, Past and Present Adoptions in Australia (2012)
The Stolen Generations The Stolen Generations are the generations of Aboriginal and Torres Strait Islander children forcibly taken from their families and communities across all states and territories in Australia, according to protectionist and child welfare policies and practices. A national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families17 took evidence in public and private sittings from Indigenous people, government and church representatives, former mission staff, foster and adoptive parents, doctors and health professionals, academics, police and others.18 The inquiry revealed in detail the extent of pain, loss and grief experienced by Indigenous communities. The effects were not only on the individual children and families, but also felt by ongoing generations as cultural identity and traditional knowledge were lost. The landmark Bringing Them Home report 19 concluded that the forcible removal of Indigenous children was a gross violation of their human rights. It detailed harrowing experiences for children and their families. These children were mostly not ‘adopted’ but were removed from their families and communities, discouraged from family contact, taught to reject their Aboriginality and commonly subjected to excessive physical punishments and sexual abuse. The report also noted the high rate of contemporary separations of Indigenous children from their parents, a trend which has grown over time. The 54 recommendations to redress the impacts of the removal polices and address ongoing trauma included a national Apology, reparations, compensation, improved services for Stolen Generations members and a process for monitoring the implementation of the report's recommendations. Prime Minister Kevin Rudd delivered the National Apology to the Stolen Generations on 13 February 2008. Senate inquiry into Forced Adoptions Key findings from a Senate inquiry into ‘forced adoptions’,20 complemented by research conducted by the Australian Institute of Family Studies, outlined how coercive adoption practices reflected society’s responses to illegitimacy, infertility and impoverishment. It highlighted the wide-ranging impacts and “ripple effects” of grief and loss felt by mothers, children who were adopted and other family members. The report detailed the ongoing impacts of past adoption practices, including the process of reunion between mothers and their now adult children, and the degree to which such reunions were defined as “successful” or not.21 There was an emphasis on the need for information, counselling and support for
17 The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families was established in 1995 and reported in 1997. 18 Hearings were conducted by former Commission President, Sir Ronald Wilson, and the former Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson. Over 500 individual testimonies were collected from members of the Stolen Generations, Indigenous organisations and other groups. 19 Human Rights and Equal Opportunity Commission (1997) Bringing them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families. 20 Senate Community Affairs References Committee (2012) Commonwealth Contribution to Former Forced Adoption Policies and Practices. Commonwealth of Australia, Canberra. 21 Higgins, Daryl, Australian Institute of Family Studies, Impact of Past Adoption Practices: Summary of Key Issues from Australian research (2010). 5
those affected by past adoption practices. The inquiry also recommended that a Commonwealth formal apology be presented in a range of forms and be widely published. Prime Minister Julia Gillard delivered the National Apology for Forced Adoptions on 21 March 2013.
III TRENDS IN ADOPTIONS The overall trends in the numbers and type of adoption over the last five decades or so provide useful context and insight into the influences and attitudes to adoption in Australia. Putting together a picture of the trend in the numbers of adoptions in Australia is not simple because the categories of adoption and counting rules have changed over time. National data were not gathered prior to 1969 but the Community Affairs References Committee extracted some figures from files held by the National Archives of Australia (NAA) for the Senate inquiry into forced adoptions. As Figure 1 shows, the trend in the overall number of adoptions is clear – a substantial decline from a peak of 9,798 children adopted across the country in 1971–72. In the 1960s and 70s, the children ‘available’ for adoption were mostly born to unmarried young women but this number dropped substantially from the mid-1970s as a result of new more reliable methods of contraception, family planning services, and the availability of abortion. The introduction of sole-parent income support and less negative social attitudes toward single mothers also made it possible and more acceptable for single mothers to ‘keep’ their babies.22 In the 1980s, the emphasis shifted from placing infants to providing homes for older children, negotiating intercountry adoptions, and responding to requests for information about past closed adoptions. By the 1990s, however, there was increasing rejection of the adoption practices of the 1960s and criticism of the emphasis on finding babies for infertile couples.23 Many foreign countries also closed or limited their intercountry adoption programs, and the numbers of adoption continued to fall through the 1990s and into the mid-2000s. This overall trend is therefore influenced by different patterns in the numbers of children adopted locally, in known child adoptions and intercountry adoptions. Adoption statistics are now based on three categories of adoption. The focus of this article is on ‘known child adoptions’ by carers. ■ “Known” child adoptions – of children born or permanently residing in Australia who have a pre-existing relationship with the adoptive parent(s), such as step-parents, other relatives and carers. In 2018–19, there were 211 “known” child adoptions,
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representing 68% of all 310 adoptions in that year24 and a substantial increase from 100 a decade earlier in 2007–08.25 ■ Local adoptions – of children born or permanently residing in Australia, but who generally have had no previous contact or relationship with the adoptive parents. In 2018–19, there were 42 local adoptions, comprising only 13.5% of all adoptions compared with 100 (16%) in 2007–08.26 ■ Intercountry adoptions are of children from other countries who are usually unknown to the adoptive parent(s). In 2018–19, there were 57 intercountry child adoptions, representing 18.4% of all adoptions and a substantial drop from the figures ten years in 2007–08 (270, 61% of all adoptions).
Total adoptions in Australia 12,000
10,000
8,000
6,000
4,000 Number of children of Number
2,000
0
95 97 99 01 03 05 07 09 11 13 15 17
– – – – – – – – – – – –
1982-83 1968-69 1970-71 1972-73 1974-75 1976-77 1978-79 1980-81 1984-85 1986-87 1988-89 1990-91 1992-93 2018-19
1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 2016 1994 Figure 1: Numbers of all adoptions of Australian children 1968–69 to 2018–19. As Figure 2 shows, the number of ‘local adoptions’ of Australian children with no pre- existing relationship with their adoptive parents has fallen since 1998 but ‘known’ child
24 Australian Institute of Health and Welfare [AIHW], Adoptions Australia 2018–19 (Child welfare series no. 71. Catalogue no. CWS 71, 2019). 25 Australian Institute of Health and Welfare, Adoptions Australia 2007–08 (Child welfare series no. 46. Cat. no. CWS 34, 2009). 26 Australian Institute of Health and Welfare, Adoptions Australia 2007–08 (Child welfare series no. 46. Cat. no. CWS 34, 2009). 7
adoptions have increased since the early 2000s. These are Australian-born children who have a pre-existing relationship with their adoptive parent(s); as Figure 2 shows, a substantial proportion are adopted by their carers. The adoption of children from out-of-home care began to emerge as a favoured permanency option in the US and UK in the 1980s and 1990s, as a response to research that highlighted children’s need for stability in care and detailed the challenges for children who drifted in and out of the care system.27 Influenced by this research and international practices, the first adoptions from out-of-home care in Australia were facilitated by Barnardos in 1985.28 The number of adoptions from care in Australia began to increase in 2010 and then more steeply in 2016-17.29
250
200
150
100
Number of children of Number 50
0
08 99 00 01 02 03 04 05 06 07 09 10 11 12 13 14 15 16 17 18
– – – – – – – – – – – – – – – – – – – –
2018-19
2007 1998 1999 2000 2001 2002 2003 2004 2005 2006 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Adoptions by carer Local adoptions Known adoptions
Figure 2: Numbers of adoptions of Australian children, by known or local adoption and adoptions by carer 1998–99 to 2018–19.
27 Moye, Jim and Roberta Rinker, ‘It's a Hard Knock Life: Does the Adoption and Safe Families Act of 1997 adequately address problems in the child welfare system?’ (2002) 39(2) Harvard Journal on Legislation, 375 –394. 28 Barnardos Australia, History of Barnardos Australia (2015)
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The focus of adoption has therefore gradually shifted from meeting the needs of the adopting adults to the welfare and best interests of the child. This is reflected in Australian legislation which uniformly includes the requirement that the grounds for adoption must be the child’s best interests, 30 consistent with international obligations under the UN Convention on the Rights of the Child (Article 21)31 and in accordance with the ‘paramountcy principle’ under Australian family law.32 The extent to which this is ‘played out’ in children’s lives is, however, not certain. As Philip Alston and his colleagues pointed out, “the meaning of a child’s best interests under article 21 cannot be interpreted so as to simply reflect racial and social prejudices or the needs of adults seeking a child”. 33 A reform environment Although adoption is governed by state-based legislation and policy, the Commonwealth has provided some direction to promote improved permanency outcomes for children in out-of- home care. In 2014, amid widespread public concern about an increase in the numbers of children in out-of-home care, the Commonwealth Government established a national parliamentary inquiry, overseen by the Senate Community Affairs Reference Committee. Its terms of reference included investigation of best practice models of care, consistency of approach across the country, and the extent to which children in care retained a connection with their birth family. The committee called for Commonwealth Government leadership on a nationally consistent approach to the out-of-home-care system, and the inquiry has led to
30 For example, s 8 of the Adoption Act 2000 (NSW) states that: (1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles: (a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, (d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, (e) the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare, (f) if the child is Aboriginal—the Aboriginal Child Placement Principles are to be applied, (g) if the child is a Torres Strait Islander—the Torres Strait Islander Child Placement Principles are to be applied. 31 Article 21 of the UN Convention on the Rights of the Child requires that “States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration” and that adoption should be regulated and ensure that the child’s parents/relatives/guardians are considered, and informed consent has been given by those required. 32 Monahan, Geoff, and Jennifer Hyatt, ‘Adoption Law and Practice in Australia’ (2018) 30 Singapore Academy of Law Journal, 484–517. 33 Alston, Philip, Nigel Cantwell and John Tobin, ‘Adoption’ in John Tobin (eds), The UN Convention on the Rights of the Child: A Commentary (Oxford University Press, 2019) at 815. 9
widespread reforms to improve placement security, consistency in legal decision-making and permanency practices across Australia.34 In March 2018, a Parliamentary Inquiry into local adoption was launched. 35 A total of 104 submissions were received, representing a wide range of views. Some were optimistic about local adoption increasing the permanency outcomes for children and young people in care, while others feared a return to the forced adoption practices of the past and questioned the appropriateness of adoption given the coercive nature of child protective services.36 The report of the House of Representatives Standing Committee on Social Policy and Legal Affairs made several recommendations for a nationally consistent framework for local adoption in Australia; these recommendations were supported in the Australian Government’s response (September 2019).37 State-based legislation and reforms As the Breaking Barriers report noted, current legislation on adoption differs significantly across Australian states and territories (Parliament of Australia, 2018) and a raft of reforms have been enacted in most states in Australian states and territories over the past ten years.38 Common themes across these reforms suggest that there are highly contested issues around the most appropriate permanency options for children when they are deemed to be unable to live safely with their parent/s, the consent of birth parents, and ongoing post-adoption government responsibilities. This section describes recent adoption-related reforms in the three largest Australian states by population.
34 Community Affairs References Committee, Out of Home Care (Commonwealth of Australia, 2015)
New South Wales The last five years or so have seen some marked changes in policy, practice and legislation related to adoption and child protection in NSW. In 2014, the New South Wales government launched a major policy shift with the Safe Home for Life amendments39 to the NSW Children and Young Persons Care and Protection Act 1998 to prioritise adoption that included introducing a hierarchy of preferred placements over long-term foster care in s10A of the Act. Reforms to the Children and Young Persons (Care and Protection) Act 1998 (see s 10A) prioritised (in order) the following permanent care options for children following a care application: restoration to the birth family, long-term guardianship with relatives or kin; open adoption; and finally, long-term foster care.40 Like children who are adopted, children under guardianship orders are not included or counted as children in out-of-home care; unlike adoption, a guardianship order remains in force only until the child is 18 years of age. It can also be subject to a section 90 application, where the court is asked to vary or rescind a legal order according to whether significant change has occurred in the birth family and whether the order remains in the child’s best interest. Other legislative amendments made two important changes which are likely to impact on the process of adoption in the courts. The first is the introduction of specified ‘reasonable’ time frames for decisions about returning children to their parents. For children younger than two years of age, the Children’s Court is required, within six months of an interim order, to decide whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration; for a child aged two and older, the time period is within 12 months of the interim order.41 The second change is to make distinct provision for long-term carers to adopt, as opposed to the previously under-utilised and now repealed option of sole parental responsibility orders.42 The adoption legislation has been amended to streamline the process for authorised carers who apply to adopt a child or young person in out-of-home care, including those who had guardianship orders, by extending the grounds for dispensing with the birth parents’ consent and restricting the maximum period for orders allocating parental responsibility to the Minister.43
39 In 2012, the report A Safe Home for Life recommended major reforms to the NSW child protection system, including streamlining the open adoption process. 40 Ross, Nicola and Judith Cashmore, ‘Adoption Reforms New South Wales style: A Comparative Look’ (2016) 30(1) Australian Journal of Family Law 51–75. 41 Section 83(5) and (5A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) as amended by the Child Protection Legislation Amendment Act 2014. 42 Australian Institute of Health & Welfare, Adoptions Australia 2016–2017 (Child welfare series no. 67. Cat. no. CWS 61). 43 See Part 3A including ss 45F, 45G and 45H inserted into the Adoption Act 2000 (NSW) by the Child Protection Amendment Act 2014 (NSW). The conditions in s 67 to dispense with the consent of the birth parents for adoptions by authorised carers are outlined later. Section 79 of the Children and Young Persons (Care and Protection) Act has also been amended to include: (9) When a Care Plan relating to restoration, guardianship or adoption is approved the maximum period for which an Order can be made allocating all aspects of parental responsibility to the Minister is 24 months. 11
Queensland The Supporting Families Changing Futures reform in Queensland was initiated in 2014, based on findings from the Queensland Child Protection Commission of Inquiry. Like a number of inquiries in other states concerning the shortcomings of the child protection system, the main concerns were the doubling in the numbers of children in out-of-home care, a three-fold increase in the rates of Aboriginal and Torres Strait Islander children in out-of- home care, and burgeoning expenditures as children remain longer in out-of-home care. Legislative changes enacted through the Queensland Child Protection Reform Amendment Act 2017 included the introduction of a new framework for permanency. In making decisions about children’s well-being and best interests, s 5BA makes it clear that the dimensions of relational, physical and legal permanency should be considered: ….the action or order that should be preferred….is [the one] that best ensures the child experiences or has—(a) ongoing positive, trusting and nurturing relationships with persons of significance to the child, including the child’s parents, siblings, extended family members and carers; and (b) stable living arrangements, with connections to the child’s community, that meet the child’s developmental, educational, emotional, health, intellectual and physical needs; and (c) legal arrangements for the child’s care that provide the child with a sense of permanence and long-term stability. Like NSW, the principles for considering permanency placement in the Queensland Act introduced a hierarchy or prioritisation of options. The first priority is for the child to be cared for by his or her family; the second, guardianship by a member of the child’s family or another suitable person, and third (least preferred) is guardianship of the chief or executive. 44 Guardianship can be made to a suitable member of the child’s family or the chief executive, and can be short-term for up to two years, or long-term until the day before the child turns 18 years of age. The ‘permanent care order’ was introduced as part of this legislation. Permanent care orders do not change the child’s legal identity or relationship with their birth family. However, distinct from the similar orders of guardianship in NSW and permanent care orders in Victoria, the legislation specifies that “only the litigation director may apply to vary or revoke a permanent care order”,45 and only when deemed to be in the best interests of the child under specific circumstances that include harming the child or failing to comply with the obligations of guardians (eg, to maintain connections to culture and family of origin). In this regard, permanent care orders appear to provide a middle ground between the NSW guardianship orders and open adoption, by retaining the child’s legal status while providing a secure legal placement. Victoria In Victoria, as in NSW, there have been adoption-related reforms to the child protection legislation but unlike NSW, no strengthening of the legislation for the adoption of children from out-of-home care. In March 2016, changes to the child protection legislation required that a child’s case plan must include a permanency objective “considered in the following order of preference”: family preservation, family reunification, adoption, permanent care, and
44 Queensland Child Protection Reform Amendment 2017 s 5BA(4). 45 Queensland Child Protection Reform Amendment 2017 s 65AA. 12
then long term out-of-home care.46 While this preference ordering appears to have placed greater emphasis on adoption, there has been no related reform to the Adoption Act nor any shift in policy and practice to support the adoption of children from out-of-home care. The Victorian Law Commission’s Review of the Adoption Act 1984 in 201747 specifically rejected the notion that there should be any link between the decisions that the child protection system makes in relation to children at risk of harm and the considerations that are appropriate in the adoption framework. The main reason was that adoption is premised on consent – the consent of the birth parents.48 The Victorian Government’s (2018) response to the Victorian Law Commission Review of the Adoption Act 1984 noted that the location of adoption in the hierarchy recognises it is the most legally secure option for a child where reunification cannot safely be achieved, yet anticipated this would not lead to a change in the number of children adopted in Victoria. The Adoption Act 1984 requires parental consent, or for the Court to dispense with consent. It is long-standing Victorian government policy that adoption should always be by consent, so it is only in situations where a child’s parents are seeking to relinquish care, that adoption in Victoria is actively considered as the most appropriate permanency objective. As the Victorian Law Commission noted, “Victoria has provided a specific alternative to adoption for children in the child protection system – permanent care orders – to achieve stability and permanency”.49 The permanent care order does not change the legal status of children in relation to their birth family, and the order expires when the child reaches the age of 18 or marries.50
IV ADOPTION V GUARDIANSHIP OR PERMANENT CARE ORDERS Adoption sits beside other permanent orders in child protection legislation, with some similarities and differences, and some variation by jurisdiction across states and territories (see Table 1 for other types of permanent care orders). Each state or territory has a permanent care order that transfers guardianship and custody to the child’s kin or foster carers. While adoption and guardianship/permanent care orders both transfer the legal responsibilities and rights of parents to the carer, they differ in terms of their longevity and their effect. Adoption
46 Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 (Vic), Part 3, s 97 (1). 47 The Victorian Law Commission was requested by the Victoria Attorney General to review the Adoption Act 1984 and Adoption Regulations 2008, with a view to modernising the legislation to reflect contemporary law and community attitudes toward children and families. Their report, Review of the Adoption Act 1984, recommended that the current act be repealed and replaced, rather than amended (Victorian Law Reform Commission, 2017). 48 See Victorian Law Commission (2017) Review of the Adoption Act 1984 at 8.220. The Adoption Act (s 43(1)(c)–(g)) provides for consent to be dispensed with on the basis of ‘child protection’ grounds. The Commission considers that the child protection system is established to make decisions in relation to children at risk of harm. These considerations are not appropriate in the adoption framework, because adoption is premised on consent. 49 See Victorian Law Commission (2017) Review of the Adoption Act 1984 at 8.222. 50 Children, Youth and Families Act 2005 (Vic) Part 4.10. 13
has life-long standing and effects legal severance between the child and the birth family. Legal orders for permanency or guardianship, however, are not actually permanent, expiring when the child reaches legal adulthood at age 18 years, and the legal relationship between the birth family and the child is preserved. This means that there is not an enduring legal relationship that would cover inheritance and next of kin rights with the permanent care family. 51 The fundamental change in the legal status of birth parents is one of the main reasons that some favour permanent care orders or long-term foster care over adoption.52 Legal orders for permanency or guardianship also offer a path to legal permanency for children in kinship care, not available via adoption. Conferring adoption orders on a relative is generally restricted, out of concern this would lead to confusion between biological and legal relationships. Hence, there are provisions across Australian jurisdictions precluding the court from making an adoption order for a relative carer, unless it is satisfied that such an order better serves the best interests of the child than alternative permanent orders. Dispensing with birth parents’ consent Permanent care orders including guardianship orders do not require and are made without the consent of birth parents as the culmination of an involuntary child protection investigation and removal process. While each state has provisions for dispensing with parental consent, there is inconsistency as to when and how each jurisdiction will use these. The grounds that are consistent across jurisdictions are that the parent/s or person/s with parental responsibility cannot be identified or located or are not capable of properly considering the question of consent, and that the person has abandoned, deserted, neglected or ill-treated the child (with the exception of Queensland). In NSW, adoptions from care primarily occur where consent can be dispensed with when the child has an established stable relationship with the carers and adoption is considered in the child’s best interests. This addresses the complexity of adoption from out-of-home care, where a parent does not have the care or custody of their child and may not oppose the adoption order, but does not want to be seen as rejecting the child or ‘giving them away’. In a case file review of NSW adoptions finalised in 2017, the grounds that there was an established relationship with the carers was the primary ground for dispensing with consent of parents.53 Whether they consent to the adoption or not, birth parents can be involved in developing the adoption plan, including preferences for cultural identity and contact.54
51 Australian Institute of Health and Welfare, Aboriginal and Torres Strait Islander Stolen Generations aged 50 and over (2018)
Post-order contact In contrast with other similar countries such as UK and US, there is some convergence now between adoption and legal orders for permanency or guardianship in relation to children’s contact with their birth family after the order is made. Contact including face-to-face contact is generally expected in both adoption and guardianship or permanent care – unless it is not deemed to be in the child’s best interests. Known child adoptions from out-of-home care are expected to be ‘open’. As practiced in Australia, open adoption involves the adopted child’s origins being recognised and acknowledged, maintenance of the child’s connections with birth parents and family members, and the development and maintenance of links with culture and identity. The strong emphasis on face-to-face contact, outlined in contact plans that are approved by the court, is a unique Australian feature. By contrast, whether or not contact with birth parents occurs, how often, and what form it takes is left to the discretion of the adoptive parents in other countries with similar child protection systems, such as US, UK, Ireland and Canada. Managing contact under both open adoption and permanent care orders in Australia is, however, left to the adoptive parents or permanent carers to organise and supervise in accordance with the adoption plan or care plan. Most jurisdictions (NSW, VIC, QLD, ACT and WA) have formal post adoption contact arrangements; in four jurisdictions (NSW, QLD, ACT, and WA), contact arrangements are a necessary requirement of adoption, lodged with the court as part of the adoption plan. It is not known, however, how long it lasts and how successfully, nor whether birth parents have been able to take action to enforce such a plan if the adoptive parents or carers do not keep to it. Adoption of Indigenous children Special consideration is needed in relation to Aboriginal and Torres Strait Islander children. The intergenerational impacts of past legislation and policies for the forced removal of Aboriginal children from their families and communities are apparent in current statistics. Aboriginal and Torres Strait Islander children are 10 times more likely to be placed in out-of- home care compared with non-Indigenous children.55 In response to past practices, Aboriginal advocacy groups have been central to the development of the Aboriginal and Torres Strait Islander Child Placement Principles that aim to protect Indigenous children’s links and connection to their culture. In order of priority, Indigenous children in out-of-home care should be placed: • within family and kinship networks • with non-related carers in the child's community • with carers in another Indigenous community.
55 Australian Institute of Family Studies, Child Protection and Aboriginal and Torres Strait Islander Children (2019)
If none of these options is available, not practicable nor in the best interests of the child, children are to be placed with non-Indigenous carers only as a last resort.56 In making both permanency/guardianship and adoption orders, state legislation requires that the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) is applied. The principle also requires engagement with Indigenous people in adoption-related decision- making. SNAICC, the national peak body for Aboriginal children and families, has, however, raised concerns about the implementation of the ATSICPP, including limited Aboriginal and Torres Strait Islander participation in decision-making in the context of policy moves toward timely permanency.57 Adoption is generally considered to be culturally inappropriate for Aboriginal and Torres Strait Islander children.58 Most jurisdictions (except Tasmania and NT) specify that adoption is appropriate for Aboriginal and Torres Strait Islander children only where there is no other suitable option. Since 1994–95, 126 Indigenous children have been adopted, mostly in New South Wales, with 42% adopted by an Indigenous parent .59 A recent review, led by Professor Megan Davis, of child protection policy and practice in relation to Aboriginal children in New South Wales, is very critical of “the NSW Government’s continued failure to act upon Aboriginal opposition to the adoption of Aboriginal children and recommends legislative amendment to ensure that adoption is not an option for Aboriginal children in OOHC [out-of- home care]”.60 The distinction in treatment under the law for Aboriginal and non-Aboriginal children is premised on identity concerns, about separating a child from his or her cultural connections and opportunity to be raised within culture. Other countries with similar child protection systems and Indigenous populations also have approaches that involve making differential considerations considering permanency options for Indigenous children. In the US, the Indian Child Welfare Act specifies that decisions should be made so that Native American (Indian) children can remain within their communities and gives the tribal authority exclusive jurisdiction over children on reservations controlled by the tribe. By contrast, the US Multiethnic Placement Act forbids states to use race and ethnicity of non-Indigenous Americans to deny an adoption placement. While progress within Australian states or territories to allow for the self-determination of Aboriginal groups over child protection
56 Arney, Fiona, Marie Iannos, Alwin Chong, Stewart McDougall and Samantha Parkinson, Enhancing the Implementation of the Aboriginal and Torres Strait Islander Child Placement Principle (CFCA Paper No. 34, Child and Family Community Australia, Australian Institute of Family Studies). 57 SNAICC Baseline analysis of best practice implementation of the Aboriginal and Torres Strait Islander Child Placement Principle (2019)
decision making has been very slow,61 some states have shown promising initiatives in improving participation and control for Aboriginal people.62 For instance, the Victorian government indicated its commitment to partnership through the Wungurilwil Gapgapduir: Aboriginal Children and Families Agreement in 2018 and increased investment in the transfer of case management and statutory child protection functions to Aboriginal Community- Controlled Organisations (ACCOs). As of June 2019, 46% of Aboriginal and Torres Strait Islander children in care are case managed by ACCOs. The Queensland government also increased investment in ACCOs for early intervention services and implemented in child protection legislation all five elements of the ATSICPP in 2017.63 The recent Davis review in relation to Aboriginal children in out-of-home care in New South Wales, however, noted that while the term ‘self-determination’ is used in child protection and adoption legislation64 and policy documents in NSW, “it is not defined, nor is it properly understood or implemented in practice”.65
V CONCLUSION The history of adoption in Australia makes clear the lifelong consequences of permanency policy and practices and the importance of getting it right for current and future generations. There are significant debates about the future of adoption. Areas of tension include the cultural identity of the child, balancing the rights of the birth parents against the child’s need for permanency, and the appropriateness of adoption over alternative legal orders. As noted by Monahan and Hyatt (2016): In Australia…there continues to be much debate about whether adoption should continue at all. If adoption does continue into the future it is essential that the best interests of the child are paramount at all times.66 Longitudinal research on current practices of open adoption from out-of-home care, as well as guardianship and other legal orders, will be critical for our understanding of the outcomes of current reforms and how the legal dimension of permanency through adoption impacts children’s lives. While international research suggests that the potential benefits to children
61 Zug, Marcia, Appendix 1: Lessons from the Indian Child Welfare Act, Submission—Inquiry into Local Adoptions, Submission 076 Institute of Open Adoption Studies (2018)
for feeling emotionally secure and having a sense of identity are significant,67 Australian research that follows a cohort of children who are adopted with a group on permanent care orders is best able to inform policy and practice.68 Only through such evidence will we know the long-term outcomes of current adoption practices. In Australia, the shadow of the Stolen Generations and the Forced Adoptions looms large above current reforms to ensure long-term family care for children involved in the out-of- home care system. As reforms to out-of-home care continue throughout Australia, it remains to be seen if adoption will be seen as preferable to other forms of permanency. Key legal issues will need to be resolved, in the interests of equity for those children who are taken into the care of the state. Public debate will need to be engaged around the deep discomfort about adoption within Australian society as a result of past practice.69 How adoptions will factor into permanency reforms across Australia and how adoption will be practiced is still evolving. … the normative landscape which regulates adoption is much more complex than it once was. Complacency however cannot be allowed to creep into situations where the rights of a child for whom adoption is envisaged remain vulnerable; where adult agendas can accidentally or intentionally compromise the rights of such children at the individual or systemic level.70 This involves: a consideration of factors that historically have never been contemplated in adoption practices – the right to know a child’s original parents; a right to enjoy his or her identity and family relations; the right to enjoy cultural practices and the right of a child to express his or her own views about the viability and appropriateness of an adoption. 71
67 Palacios, Jesus et al, ‘Adoption in the Service of Child Protection: An International Interdisciplinary Perspective’ (2019) 25(2) Psychology, Public Policy, and Law 57–72. 68 An ongoing large-scale longitudinal study of children who entered out-of-home care on final orders for the first time during 2010–11 in New South Wales, Pathways of Care, is following children aged from birth to 17 years who are placed in foster care, relative/kin care, and who move onto guardianship and adoption orders or are returned home. https://www.facs.nsw.gov.au/resources/research/pathways-of-care. 69 Quartly, Marian, Shurlee Swain, and Denise Cuthbert, The Market in Babies: Stories of Australian adoption (Monash University Publishing, 2013) noted, “adoption is a subject that divides public opinion” (at 1), with adoption seen as a legitimate way to form a family and provide care for children by some, while others hold that it is repeating the injustices of the past. 70 Alston, Philip, Nigel Cantwell and John Tobin, ‘Adoption’ in J. Tobin (eds), The UN Convention on the Rights of the Child: A Commentary (Oxford University Press, 2019) 815. 71 Ibid. 18
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Table 1 – Permanent care arrangements across jurisdictions
Jurisdiction Type of order Legal requirements Available supports New South Guardianship Report on steps taken to support Ongoing financial Wales reunification supports available Consultation with child (where over 12 (carer payment) years) Compliance with Aboriginal Child Placement Principle Victoria Permanent care Stability and cultural plan prepared Ongoing financial order Report on steps taken to support supports available reunification (where recommended) Compliance with Aboriginal Child Placement Principle Recommendation from Aboriginal agency Queensland Long-term Significant work undertaken to support No ongoing financial guardianship reunification supports (carer order Meets child's emotional security and payments cease) stability needs Permanent care Commits to preserving the child’s orders identity, connection to culture and relationships with members of birth family Consultation with child and input from family and independent Aboriginal or Torres Strait Islander entity if deemed appropriate Tasmania Long-term Recommendation from department Ongoing financial guardianship supports available order (carer payments) Northern Permanent care Order considered the best means of One-off $5,000 Territory order safeguarding the wellbeing of the child payment (carer payments cease) Western Special Carer demonstrated suitability Ongoing financial Australia guardianship Compliance with Aboriginal Child supports available order Placement Principle and Culturally and (where recommended) Linguistically Diverse Placement Guidelines South Other person Carer demonstrated suitability Ongoing financially Australia guardianship Compliance with Aboriginal Child supports available Placement Principle (where recommended)
Source: Commonwealth of Australia (2015), updated based on recent Queensland legislative changes (Child Protection Reform Amendment 2017).
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