Link to Inquiry

 Inquiry into Responses to Historical Forced Adoptions in Victoria

Submission by Adoptee Rights Australia, (ARA) Inc

 

Part 1 by Dr CM Lynch JD

Part 2 by Dr CM Lynch JD and Angela Barra

Part 3 by Sharyn White

 

Submitted by

Adoptee Rights Australia (ARA) Inc Management Committee and Members

Part 1

The failure to amend related State Acts to take into consideration the findings of various State and Commonwealth inquiries into historical forced adoptions results in the continuation of substantive rights violations of adopted persons and perpetuation of ongoing trauma.

Once such failure to amend can be found in Family Provision legislation. The fundamental feature of adoption that makes it entirely different to all other forms of care outside of natural family is the erasure of natural identity and the State enforced imposition of new artificial identities – specifically, the issuing of secondary birth certificates with the child’s name erased, with the child’s parents’ names erased and replaced with new ones.

Arguments for only partial name changes such as children being “allowed” to retain their first names, and arguments for “integrated” birth certificates with multiple parents do nothing to change the fundamental rights violation that is State-imposed identity change. Changing natural identities is a tool of oppression common to other historical oppressions such as slavery, indentured servitude, fascism and genocide, all of which involved cases of State imposed artificial identities on babies and children and, even, on adults.

To allow this State imposed identity erasure and imposition of artificial identity to continue into the twenty-first century merely prolongs the suffering and trauma of Stolen Generations and Forced Adoptees, who must continue to live in a society that apologises but appears unable to recognise the fundamental cruelty of maternal-neonatal separation by continuing its absolutely insulting reinforcement by a parallel State imposed identity replacement through fabricated birth certificates.

If there must be some sort of family-based care called ‘adoption’ then there is not a single justification that can be made for not making the actual procedure transparent, truthful and visible to all: all babies acquire a birth certificate recording their gestational mothers, and if any of these people are adopted at any point then an Adoption Order is issued. That should be the end of the matter and any adoptee can prove change of name using the Adoption Order just as a married woman would use her marriage certificate to prove her change of name.

The continuation of States participating in the interference of the identity documents of Australian citizens without their consent must cease. Closed adoptions are supposed to be a thing of the past and the perpetuation of this kind of interference prolongs the historical and personal trauma that has been the history of adoption in Australia.

The commodification of children for the purposes of adoption and surrogacy needs to cease immediately. The continuing ideological campaign to erase gestational mothers from the birth certificates of their newborn babies by pro-surrogacy lobby groups must never ever be allowed to gain a foothold in any country and we can push-back immediately by ceasing to change the birth certificates of Australian citizens without their consent in the Adoption and Surrogacy “markets”. This would have knock on effects for the rights of the donor-conceived as well who continue to fight for their rights.

Today, governments, pro-adoption advocates and lobby groups have re-branded adoption, so it is no longer the “rescue of illegitimate children” but is the “rescue of children removed under child protection legislation.”

If this is to be the case then all State Adoption Acts must be immediately repealed as voluntary child abandonment is too rare to have an entire Adoption Act, with its accompanying legal and government departmental resources, devoted to it.

If adoption is being rebranded to use for child protection it should be part of the Child Protection Legislation, and fulfil its requirements under the Convention of the Rights of the Child to provide adequate welfare checks on all children adopted into private homes by adults who are not naturally related to them.

As adoptees we can testify that Adoption needs no identity erasure, no severing from our ancestry and kin, no secrets, no lies, no connection with the historical closed records adoption that stripped us not only of our mothers and families at the moment of birth but of every iota of natural reflective identity as if we were “blank slates” to be written upon with no love and no biological connection to our mothers and ancestry. An absolute and cruel denial of infant biological experience resulting in infant suffering and trauma with both short term (incessant crying and despair) and long-term, even intergenerational, impacts as we can testify to from the hundreds of adoptees who have spoken or written to ourselves and other members of Adoptee Activist Groups, and our own lived experience as adopted persons.

A case in point being the complete severance of inheritance rights to natural family resulting in cases of unjustness.

I, personally, have to turn away client after client, with the worse stories of abuse in adoptive families, long-term reunion with natural families, and then, when natural parents die without a Will, a complete absence of Family Provision eligibility even when the adopted person is destitute.

I see client after client who has become estranged from their adoptive family (the great experiment of swapping children proving ultimately unsuccessful and deeply traumatising to thousands of us) and yet cannot even get standing to make a plea to the court for provision off their own natural parents’ estates who, in some cases, have done well for themselves in the financial environment of not having to pay to raise their own child (albeit living with the trauma of having stolen children) and who may have been cared for in their old age by their own children – albeit children not recognised as the children of their own parents in law!

The peak year of adoptions being 1972, when almost 10,000 babies were taken from mostly young unmarried mothers, the majority of us are now heading towards our fifties and finding that our oppression continues as our parents die and we have not even the right to be notified of our mother’s own death. Many adoptees are plagued by health problems as a result of historical forced adoptions and will not be able to afford health care and bonds into assisted living environments.

 

Part 2

We demand:

1. The absolute end of all state imposed artificial identity changes through fabrication of secondary “birth certificates”;
2. The absolute end of complete legal severance from kin for all past and future adoptees;
3. The immediate restoration of inheritance and family provisions rights to the estates of our parents from whom we are forcibly removed, and if not forcibly, are removed at least without our own consent.
4. Immediate and free services to support adoptees suffering post-traumatic-stress disorder, mental illness, substance abuse, homelessness, incarceration and suicidal ideation.
5. Immediate and free services and funding to find family: DNA testing, records searches, costs, etc
6. Funding for research into the immediate and long-term impacts of maternal-neonatal separation for the purposes of adoption and surrogacy
7. Funding for research into the long term outcomes for adoptees over the lifespan and intergenerationally via the inclusion of data collection in all aspects of contact with adoptees, and a commitment to undertake current and retrospective data linkage projects including studies that can access data on adoptees from the Victorian Births, Deaths and Marriages and that of other States.
8. Funding provision for adoptee-centric and adoptee-led and run organisations such as our National body, Adoptee Rights Australia (ARA) Inc so that we have the capacity to advocate for the interests of adopted people.

Finally, as more and more adoptees reach out to adoptee organisations such as Adoptee Rights Australia (ARA) Inc, it becomes more and more apparent that the adoptee demographic is traumatised and, in many cases, the victims of child abuse, physical, emotional and/or sexual abuse at the hands of the adoptive parents and/or extended family. The extreme abuse of the adoptees who were taken into the Victorian cult known as The Family was not necessarily an isolated phenomena. We need to find out and aid the adoptees who were taken by this cult and adoptees abused in other adoptive homes.

The testimonies of abused adoptees have been rejected at the Royal Commission into Institutionalised Responses to Child Sex Abuse because they are outside the “scope” of the Commission. That adoption is not considered to be “out-of-home-care” or “in an institution” means that adoptees continue to fall through the cracks of society, beyond the duty of care of governments and NGOs who place them in the hands of abusers.

We demand:

9. A Royal Commission into past and present adoption practices in Australia and, importantly, the impact and outcomes for adopted people. The scope of a Royal Commission should include, but not be limited to:
10. Establishment of mechanisms to enable the timely investigation (and prosecution of offences) into any related improper actions or treatment of children who were subject to adoption orders within institutional contexts (including prior to the adoption order). This includes of children (subsequently adopted) who were subjected to medical experimentation in orphanages or other institutions (e.g., universities). For example, and to date, Melbourne University has apologised to the [1]Forgotten Australians, but this arguably excluded those children who were subsequently adopted and who are not aware that they were a victim of these practices [2]. Any adopted person who was subjected to these experiments, should be notified and their records should be freely available to them (along with access to support services).
11. Inquire into and report upon the adoptions undertaken by The Family; including allegations, by investigative journalist Phillipe de Montignie, that the Victorian Premier (Rupert Hamer) swept concerns of child abuse under the carpet[3]. An inquiry should fully explore the findings and recommendations by Victorian detectives involved in ‘Operation Forest’ and their call for a Royal Commission, which according to former detective – Lex de Man, was denied[4]. Additionally, an interrogation of evidence on The Family members association with influential Victorians (e.g., Raynor Jonson, Robert Menzies, Bob Ansett), that enabled the adoption of children into the sect (organised by sect Doctors, Nurses and Social Workers) and/or negligence which perpetuated the abuse of said children (e.g., failure to adequately respond to allegations of abuse). The adoptees taken and abused by that cult never ever got justice. ARA Inc. takes up this call and we reinforce the need for a Royal Commission (including referring any living perpetrators to appropriate authorities).
12. Investigation into the wellbeing and fate of adopted people removed from our mother’s at birth and forcibly adopted (noting that all adoptions of children occurs without said child’s consent).
13. The provision of an appropriate hearing process (and support provisions for those who are traumatised) to enable adopted people to testify to their fate and treatment in the homes of strangers and recognises their right to receive justice for any abuse, severance from identity, culture and kin, and loss of family inheritance rights suffered. This scope is to include examination of allegations of deprivation, neglect, exploitation, physical, emotional and sexual abuse and mechanisms to respond appropriately (including referring perpetrators to appropriate authorities).
14. As aforementioned (Refer to page 4 -We demand), examine what reforms can be implemented by government to protect current and future adopted children (e.g., dismantling legislation that legally severs a child from kin and the issuing of a new identity and birth certificate; welfare checks on existing adopted children).
15. Identify how government and institutions can address the needs of adopted adults impacted by past and present practices as identified in the hearings and ensuring justice and redress for victims as required.

 

The testimonies of the adoptees that we could submit to this enquiry are in our hands but unfortunately we are volunteer run and do not have the funding nor the time to personally type out these cases, nor to take on these clients and get them justice, nor take on the legislation, the Adoption Acts, Succession Acts and the Children and Young Persons Acts, some of which have had clauses added in recognition of the Apologies to Stolen Generations but none of which had have clauses added in recognition of Historical Adoptions, of each State to rectify them. Nor do we, as a volunteer run organisation with no funding have the capacity to make submissions to the Law Reform Commission who seem to have absolutely no interest in the continuation of the systematic disinheritance of a completely innocent demographic of Australian citizens.

As adoptee activists, it confounds us that another Government is once again joining forces with celebrity lobby groups to promote another generation of Adoptions despite apologies being offered by every state. Rebranding adoptions as “open” does not change in any way the fundamental identity change and disinheritance that is intrinsic to all adoption. By rebranding adoption to “save” traumatised children in the out-of-home-care system only serves to repeat the mistakes of the past by further disenfranchising another generation of children who are already traumatised by removal.

 

Part 3

Support Services and Responses

 

Trying to put two very different populations under the one banner is harmful to both groups.  Adopted people have been subsumed under “Forced Adoption”, and this has led to inadequate recognition of our needs. The force or lack of force used at the time we lost our mother is a nearly meaningless distinction when applied to the experience of adoption itself.

 

For mothers, the focus is on the circumstances around the separation. Yes, for most adoptees in Australia, the main reason they are in that situation of being adopted is because their mothers endured some version of forced separation. But those adoptees who are trying to use the services (or giving up because the services are not appropriate to their needs) are not doing that because their mothers were forced. Treating an adoptee as if the reason they are an adoptee is the major source of their suffering is denying the impact of the lived experience of adoption.

 

The framing of the terms in the media release for this inquiry illustrate the point, as Forced Adoption is defined as being about those who “were compelled to give up their baby for adoption without their willing or informed consent”:

 

“Through forced adoption, also identified by some as forced family separation, a child’s natural parent, or parents, were compelled to give up their baby for adoption without their willing or informed consent. Groups involved included governments, non-government organisations, religious institutions and professionals such as doctors and social workers. In 2012, the Victorian Government issued a formal apology “to the mothers, fathers, sons and daughters who were profoundly harmed by past adoption practices in Victoria”.”

 

To be able to understand the adoptee population that is using or not using the Adoption services in Victoria, what needs to be recognised is that willing consent of the mother does not mean an adoptee won’t suffer or require services. Finding out the reasons for removal are not central to the adoption experience, and even then, wouldn’t most human beings feel better knowing that their parents had been forced to abandon them, rather than finding out they were willingly cast aside? Losing our relationship rights to our mother (no matter if she gave free consent or not), and losing our relationships rights to our extended family, losing our true birth certificates and identity, plus the constellation of issues arising from this are the fundamental aspects of adoption.

 

Mothers and some adoptees had been lobbying for recognition for many years before the Federal and State apologies, and when that glimmer of recognition came, adoptees thought it was for them, and we became inextricably linked to Forced Adoption, but in reality only as “sons and daughters”. The issues that we wanted to get across about adoption itself were lost. It’s easy to see that this happened because of the close subject matter. It was also very convenient for those who wanted adoption to increase in the future for the distinction to be made between “past” or “historical” forced adoption and current adoption. All of this has meant that what wasn’t looked at or recognised in the responses and services provided was the experience of adoption itself.

 

Focusing only on the mother’s consent means that all services within that paradigm reduce the adoptee’s experience to being dependent on that of their mother’s circumstances at the time of their birth and dismisses their own standalone experience. Surely, if this was a realistic distinction, then to get assistance adoptees would need to identify as knowing that their mother was forced? The funded NGOs know the distinction is unrealistic so they don’t ask the question.

 

For the funded NGOs in most cases the term ‘advocacy’ is related only to individual client case work. There is no incentive for them to identify and report problems, because they are not our advocates, they are just fulfilling funding requirements.  There are no funded standalone independent bodies in Victoria or Nationally to advocate for adoptees as there are for similar groups (eg. DHS Victoria provided the National Advocacy Body for Care Leavers, CLAN, with $172,000 in the 2019 financial year).

 

In the considerations for implementation in the Australian Institute of Family Studies (AIFS) Scoping Study (2014), while noting that “…the Forgotten Australians and Former Child Migrants have three funded national advocacy services, each representing different issues on behalf of members,” setting up a peak advocacy body was dismissed by saying that it would be difficult to achieve consensus among three key groups, (Higgins, et. al., p. 150, my italics). The three groups were described as that of mothers, fathers and adoptees. While the need for services for fathers is acknowledged, the reason the numbers are being pointed out here is because there were never three competing groups, but instead that was the flimsy justification for no funding to be given for advocacy by the Federal Government, and the States followed this.

 

But there always was a need to separate out adoptees and those who lost their children to adoption into the two, distinct and different individual populations that they are, and it should be done now.

 

Adoptees were the largest proportion of participants in the comprehensive AIFS ‘Past Adoption Experiences’ National Research Study (Kenny, et. al., 2012). Even at that time in the lead up to the Apologies, of a total of 1,528 survey respondents, 823 were adopted individuals (30% of these were from Victoria), and 505 were mothers. 12 were fathers. This has also been borne out more recently in the DSS Forced Adoption Support Services (FASS) Post Implementation Report (2018).  In Victoria, the breakdown of clients RA (Vic) estimated by FASS target group (FASS Post Implementation Review Final Report,  p151) was Adoptees 76%; Mothers 19%; extended family members 5%; fathers and others 0%.

 

These figures show that adoptees are by far the major consumers of adoption services in Victoria – services which are funded for and based on another group’s very different experiences of adoption.  Because of this fundamental mis-targeting and misunderstanding of the population, the support services and responses to adopted people require significant changes.

 

While it was convenient to lump adoptees together with mothers, no comprehensive investigation into adoptees and adoption itself was seen to be needed. We were given the impression of being heard, but instead we were silenced by being defined by the consent or lack of consent of our mothers. What needs to be recognised is that we are a group of adults whose lives – past, present, and future – are governed as the subjects of legislation that applies only to our minority group. We are not just passive victims affected by past practices. We should be given the recognition of self-determination and the resources to advocate for the rights of adoptees.

 

As stated in Part 2 of this submission, Adoptees need a Royal Commission into adoption.

Adoptees should also have the equal right to the same opportunities for self-determination and empowerment as any other minority group and to achieve this the State government of Victoria should ensure:

• adoptee inclusion as stakeholders in all policy and planning and governance arrangements for adoption policy and practice.
• representatives of adoptee advocacy organisations to have places on all advisory and reference committees.
• funding support for adoptee run adoptee advocacy organisations.

 

References

 Department of Social Services January 2018 Forced Adoption Support Services Post Implementation Review Final Report

Daryl Higgins, Pauline Kenny, Reem Sweid and Lucy Ockenden, February 2014

Forced adoption support services scoping study Commissioned report https://aifs.gov.au/publications/forced-adoption-support-services-scoping-study

Pauline Kenny, Daryl Higgins, Carol Soloff and Reem Sweid, August 2012, Past adoption experiences: National Research Study on the Service Response to Past Adoption Practices https://aifs.gov.au/publications/archived/77?fbclid=IwAR1NfIXQhcYUZZGjN6UDdG_-hUh5mRdc_Ber7WbgF1LUvwRbQ9QhNpHVavM

[1] Bridie Smith, Melbourne Uni says sorry for trials on orphans (2009)

[2]  Kenny, Higgins, Soloff & Reem, Past adoption experiences: National Research Study on the Service

Response to Past Adoption Practices (2012)

[3] The Cult of The Family (Documentary release date: 2019)

[4] The Cult of The Family (Documentary release date: 2019)

Link to Inquiry

31^st July 2020

Adoptee Rights Australia (ARA) Inc. appreciates the opportunity to provide comments on the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Bill 2020. We wish to note that because of the short time frame available for submissions, we would appreciate being invited to expand on our points at the Brisbane public hearing on the 10^th August, 2020.

ARA is an independent adoptee advocacy organisation which advocates for reform in adoption legislation, policy and services in all Government jurisdictions in Australia, so that the human rights and wellbeing of adopted persons are restored, protected and promoted.

ARA fully supports initiatives that seek to recognise the cultural practices of Torres Strait Islander people, and does not seek to make comment on those practices. ARA also does not consider that all children can be brought up in the families they are born into.

Current practice and policy in adoption today in Australia generally recognises the profound need to know the facts of our births, and this is a separate issue to ARA’s advocacy around the extension of this concept to the right to a true identity. We recognise that this is not the forum to debate whether any form of adoption should occur at all.

Our concern in this submission is that the interpretation and operationalisation of the Ailan Kastom child rearing practice under Queensland law in this Bill has long-term implications for the child-then-adult around universally accepted concepts of identity and identity formation, and therefore their rights and best interests throughout their life.

Some of the issues:

• The confidentiality clauses appear to deny the person who is the subject of an Ailan Kastom child rearing practice from applying for their information even when they reach adulthood if they are aware they are the subject of the practice, and this is available to most adoptees and is generally recognised as being a crucial aspect of identity formation in all human beings.

 

• There is no right of the person who is the subject of an Ailan Kastom child rearing practice to be made aware that this has occurred written into the Bill.

 

• The right to information about origins is also interwoven with that of the importance of having access to your family medical information, and without a requirement to advise the subject of an Ailan Kastom child rearing practice order could be life threatening.

 

• There are issues of relationships, marriage and consanguinity when origins are hidden and denied. This is especially relevant in smaller, close-knit communities.

 

• The lack of knowledge that they are under an Ailan Kastom child rearing practice could also have affected any representation of stakeholders who may not be aware that this Bill applies to their circumstances.

 

• The requirement that only one birth parent be Torres Strait Islander means that if someone who has only one birth parent who is Torres Strait Islander, and who is the subject of an Ailan Kastom child rearing practice then the culture of the other parent is ignored in the assignation of their new identity. They also potentially are never made aware of the existence of another culture that contributes to around half of their genetic makeup.

 

• ARA is concerned about how “any decision under the Bill, including deciding to make a cultural recognition order, must be for the wellbeing and best interests of a person who is the subject of an application for a cultural recognition order and must be made for the wellbeing, and in the best interests, of the child;”

is reconciled with the stated reasons traditionally associated with Kupai Omasker:

“Known culturally as Kupai Omasker, before a child is born, senior family members look at a number of factors to decide if that child should be raised by another relative. Reasons might include:

 

– To carry on the family name;

– Strengthen family ties;

– Ease the burden on a young mother;

– Give an infertile relative the chance to raise a child, or;

– Provide comfort and care to an ageing family member.”

 

as it appears that the majority of these reasons are not about the child-then-adult’s best interests.

 

• The existence of easy access to DNA tests, and the numbers worldwide now who have tested being in the tens of millions, and growing, means that the development today of any legislation prohibiting the revelation of someone’s genetic ancestry needs to recognise the availability of other means of discovery for the person affected. It is essential that the shock and effects of finding out are taken into account and recognised when attempting to translate cultural practices that arose when DNA testing did not exist.

 

 

ARA Inc.

 

Postal address:	PO Box 976 Toronto NSW 2283
Email:	[email protected]
Website:	www.adopteerightsaustralia.org.au

 

 

 Contributors:

This submission was prepared by Sharyn White for Adoptee Rights Australia (ARA) Inc.

 

 

 

 

 

 

 

ARA Submission 19 PDF

Adoptee Rights Australia (ARA) Inc.

Submission to the Legal Affairs and Community Safety Committee

 Child Protection and Other Legislation Amendment Bill 2020  

3 August 2020

 

Contents

Part 1. Introduction.

Part 1.1 Summary.

Part 2. About ARA..

Part 3. Overview..

Part 3.1 The Issue of Past vs Current Adoption.

Part 3.2 Spruiking Adoption by Re-Branding: ‘Open Adoption’

Part 3.3 Lack of Research and Evidence Base.

Part 3.4 The Myth of Permanence in Adoption.

Part 3.5 Long-term Care vs Adoption.

Part 4. Explanatory Notes – Consistency with Legislative Principles.

Part 4.1 Closure of an open adoption.

Part 4.2 Information and Contact.

Part 4.3 Identifying as an adult as having been adopted or under Guardianship orders.

Part 4.4 Natural Justice.

Part 5. Examination of the Statement of Compatibility.

Part 5.1 Privacy and reputation (Section 25, Human Rights Act 2019).

Part 5.2 Protection of families and children (Section 26, Human Rights Act 2019).

Part 5.3 Cultural Rights – generally (Section 27, Human Rights Act 2019).

Part 5.4 Other Rights unjustifiably limited – Human Rights Act 2019.

Part 5.5 Other rights unjustifiably limited – Convention on the Rights of the Child.

Part 6 Conclusion.

References.

 

 Part 1. Introduction

 

Adoptee Rights Australia (ARA) Inc. thanks the Legal Affairs and Community Safety Committee (‘the Committee’) for the opportunity to make a submission to their inquiry into the Child Protection and Other Legislation Amendment Bill 2020, introduced by the Hon Di Farmer MP, Minister for Child Safety, Youth and Women and Minister for the Prevention of Domestic and Family Violence on 14 July 2020.

This submission relates to Clause 8 of the Child Protection and Other Legislation Amendment Bill 2020 (Clause 8 of the Bill).

Clause 8 of the Bill makes an amendment to provide that adoption is third in the order of priority for achieving permanency for a child.

Those who want adoption prioritised use emotive statements threatening that children will be ‘bouncing around in foster care’ if adoption is not used. But the Child Protection and Other Legislation Amendment Bill 2020 is not about increasing stability for children in care.  Guardianship and Permanent Care Orders (PCOs) already offer stability.

An adoption order has the effect of removing the child from the out of home care system without returning them to their family, and also of removing the duty of care obligations from the State. Adoptees abused in care were excluded from the Royal Commission into Institutional Responses to Child Sexual Abuse because they were adopted. Their care had been privatised, and with it, any protection and obligation that they should have been entitled to under the State’s duty of care to them.

Adoption tends to be understood on a largely symbolic level by those who have not examined its legal reality or the lifelong and intergenerational impacts of being adopted and living under an Adoption Act. But beyond the myths, adoption from care means transferring a vulnerable child from being under an Act that has specific requirements for their Standard of Care, and requires follow up checks on their welfare, and placing them under an Act that has no safeguards or protections recognising that they are not related to the people caring for them. Their ancestry and relationship rights are severed, and their rights to know or contact their natural families even as adults are radically restricted.

We argue that with the prioritisation of adoption from Clause 8 of the Bill, at least six different human rights under the Human Rights Act 2019 are limited, along with breaches of the individual’s liberties, the denial of natural justice, and disproportionate intervention in the adult lives of those subject to adoption.

An adoption evidence base about the long-term effects of adoption needs to be built before decisions are made to increase it. Continuing adoption at all – let alone promoting it, without paying heed to its outcomes, is not only short-sighted, but a reckless act which will have long-term and profound negative repercussions.

Part 1.1 Summary 

 

Part 1 Introduction and Summary

Part 2 provides a brief description of Adoptee Rights Australia (ARA) Inc. and what we do.

Part 3 contains an overview of background information about adoption, clarifying misinformation, myths, stereotypes and providing information on available research on comparisons of long-term care and adoption, and outcomes over the lifespan for adoptees.  This has added to the length of the submission, but serves as a reference for Parts 4 and 5.

Part 4 contains an examination of Clause 8 of the Bill’s consistency with fundamental legal principles starting with the potential inconsistency around the adopter’s power to close an open adoption,  acknowledged in the Explanatory Notes, and adding other, unacknowledged, inconsistencies around:

• Information and contact as an adopted adult
• The criminal offence of publicly identifying as an adopted adult
• The denial of Natural Justice

Part 5 contains an introduction and then an examination of the compatibility of Clause 8 of the Bill with the human rights under the Human Rights Act 2019 that are acknowledged as being limited by the Bill in the Statement of Compatibility:

• Privacy and reputation (section 25 of the Human Rights Act 2019)
• Protection of families and children (section 26 of the Human Rights Act 2019)
• Cultural rights – generally (section 27 of the Human Rights Act 2019)

with the addition of further, unacknowledged human rights limited by Clause 8 of the Bill:

• The right to recognition and equality before the law (section 15, Human Rights Act 2019)
• The right to protection from torture and cruel, inhuman or degrading treatment (section 17, Human Rights Act 2019)
• The right to Freedom of expression (section 21, Human Rights Act 2019)
• The right to peaceful assembly and freedom of association (section 22, Human Rights Act 2019)

and other rights unjustifiably limited – Convention on the Rights of the Child (UNCRC):

• the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement. (Article 25, UNCRC)

Part 6 Concludes the submission

____________________________________________________________________

Part 2. About ARA

 

Adoptee Rights Australia was established in 2018 by adopted persons to give a national voice to the lived experience of adoption, in response to the need for a national organisation to advocate for the rights of adoptees in Australia.

Legislation for adoption has existed in Australia for around one hundred years, with numerous influences, amendments, and variations to the Adoption Acts throughout the decades and between jurisdictions. In this time, more than 250,000 Australians have had their identities extinguished and lives changed forever by adoption.

ARA advocates for reform in adoption legislation, policy and services in all Government jurisdictions in Australia, so that the human rights and wellbeing of adopted persons are restored, protected and promoted.

______________________________________________________________________

Part 3. Overview

Background information about adoption.

______________________________________________________________________

Part 3.1 The Issue of Past vs Current Adoption

 

The Queensland Adoption Act 2009 is based on legislation first enacted in 1935, and then built on and added to and amended over 85 years. For most of that time, the voices of the adoptees who live their entire lives affected by the Act in whatever its current form is have had little influence over the changes.

This continues today. Unfortunately, when adult adoptees and adoptee organisations attempt to be treated as stakeholders in consultation on policy decisions around adoption, we are regularly dismissed as having adoptions under ‘past practices’ of ‘forced adoption’ that are claimed to be very different to adoptions today.

Yet the past practices that were apologised for in the Federal Forced Adoption Apology in 2013 were centred around mothers, and about questions of consent, relinquishment, and illegal practices in obtaining infants for adoption – not the lived experience of being adopted for adopted people. Despite an outpouring of information about the experience of adoption by adoptees in the lead up to the Federal Apology, an apology for the institution and practice of adoption itself was not included.

Adoption – itself – has never been examined.  On even a brief examination, it is evident that there are far more commonalities than differences in the lived reality of adoption under adoption legislation for all adoptees, be they adults, children, or infants; and whether removal was at birth or later.

One of the main myths about adoption is how different it is today from the past:

Features of adoption	Did this happen in ‘past-forced’ Adoption?	Does this still happen in current Adoptions?
Legal order severing connection to ancestry	Yes	Yes
Cancellation of birth certificate	Yes	Yes
Issue of a new birth certificate with new name and new carer’s names	Yes	Yes. Integrated birth certificates add the original parent’s names but do not restore the severed ancestry or  relationship to kin.
Verbal advice to the child that they are adopted.	Most, but no legislative requirement to do so	Most, but no legislative requirement to do so
Access for the adopted person to their original birth certificate when they are over 18, unless restricted	Records were closed in Qld in 1964 and have been open again since 1990 for those not restricted	Yes, unless restricted, or the legislation is changed again.
Legal power of State to place restrictions and prevent the adopted person from ever accessing their birth records?	Yes	Yes
Can adopters return the child? (discharge availability)	Yes	Yes
Welfare checks after adoption?	Never	Never

Part 3.2 Spruiking Adoption by Re-Branding: ‘Open Adoption’

 

The creation of a false divide between past and present adoption has meant that adoption could be re-branded. All of the problems and issues inherent in the institution of adoption that caused the practice to (deservedly) reduce to near extinction in Australia have been condensed into one: the supposed lack of ‘openness’.

Not only is this alarmingly simplistic, demonstrating the paucity of the evidence base underlying this approach, it is at best misguided, or at worst, deliberately disingenuous.

There are two versions of open adoption in adoptions and neither of them are new.

Open Adoption, Version 1

Re-opening of records (for most adoptees) is one version of ‘open’ adoption.

Records only became permanently sealed in the different jurisdictions of Australia in the mid to late 1960’s after model universal adoption legislation was developed Federally, and then gradually introduced by the states and territories. But within around 20 years of the records being closed, this was reversed (with restrictions that did not exist before), and records were gradually reopened in the 1980’s to 1990 in the various jurisdictions.

In Queensland, it took until 1987 for a contact register to be created, and it was 1990 before legislation in Queensland was amended to allow adoptees to access their identities and birth records again. This was now subject to restrictions for some that had not existed before. In contrast to the supposed ‘openness’ of adoptions today, no jurisdiction which has these restrictions has shown interest in pulling back on the powers, and in the amendments to the Adoption Act in South Australia in 2018, these powers to deny adoptees the right to their birth records were actually strengthened.

For someone born and adopted in Queensland in 1955, even though they were adopted under the Adoption of Children Act 1935, which did not close their records, theirs, and all adoptions, were closed retrospectively when Queensland introduced the changes in 1964. They then could not access their records when they turned 18 in 1973. That adoptee would have been 35 years old before they were seen as having the ‘right’ to access their records again – though it is still not an actual ‘right’ as it can be restricted, and restrictions can be increased at any time.

Adoptions have been open in this sense prior to the mid 1960’s, and after 1990 in Queensland.

Open Adoption, Version 2

Separate to the re-opening the records at 18, ‘open’ adoption was proposed and debated in the 1980’s in Australia. This form of adoption was the same ‘open’ adoption as is being spruiked today as a new type of adoption. This type of open adoption means some forms of information or contact are potentially available while the adoptee is under 18 years old.

But this is not new at all. The principles of ‘open adoption’ were actually written into the Adoption Act legislation in Victoria as early as 1984, and there is a group of potentially 3,000 adult ‘open’ adoptees adopted since 1984 in Victoria, whose outcomes and experiences could inform current practice, but there has been no interest shown by the current ‘open adoption’ promoters.

In the United States there never was the downturn in adoption that happened in Australia, and adoption has continued unabated, with a lot of supposedly ‘open’ adoptions. Many adult ‘open’ adoptees from the US recount the pain of watching their families and kept siblings leaving them over and over again, and of never feeling part of either family. Here are some observations from ‘open adoption’ adoptee blog, Sisterwish, by Kat Stanley:

• I felt trapped between worlds.
• I never knew how to tell my mothers how I felt without hurting their feelings.
• I dealt with every single reunion issue adult adoptees have – except I was six.
• Genetic mirroring was looking like the person who left me.
• Open Adoption is an adult concept based on boundaries. As a child I didn’t know that. I was fully invested.

For many under 18 ‘open adoptees’, the jealousy and insecurity of the adoptive carers in the face of the perceived or real threat to their parenthood or the adoptee’s loyalty has been traumatically damaging – akin to the push and pull between two parents after a divorce, but with the other cumulative trauma of adoption added in.  And that is for those who actually did see their mothers/parents/siblings as they were growing up.

‘Open’ adoption could mean anything – they might get a meeting, a phone call, or a letter, or nothing at all if the adopters close the arrangement. Everything is dependent on the adults, and the torn child has to negotiate a minefield of jealousy and loyalties, with no independent protection.

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Part 3.3 Lack of Research and Evidence Base

 

Outcomes for adoptees

Although there is the capacity, and the records are available to provide data, there has been minimal research done in Australia on the long-term outcomes for adoptees in adoption.

Professor Daryl Higgins, then of the Australian Institute of Family Studies (AIFS),  quotes from data obtained in the Past Adoption Experiences Research:  “[a]round 70 per cent of adopted individuals agreed that being adopted had a negative effect on their health, behaviour and/or wellbeing while growing up, regardless of whether the experience with their adoptive families was positive or negative.” (Past and Present Adoptions in Australia, 2012). That report was produced by the AIFS in the lead up to the Forced Adoption Apology. It was mainly aimed at following up outcomes for mothers, but adoptees made up the majority of the respondents, and there were indications of overall negative effects and damage from adoption, but there have not been any follow up studies done to build further on those findings.

Some international studies have done the type of research that should be being done in Australia. This study: Excess Mortality Rate During Adulthood Among Danish Adoptees using a very large sample size of adoptees – over 13,000 – with a median age at adoption of one year – shows statistically significant excess mortality for adoptees especially from cancer, alcohol related deaths, and suicide:

Results: Significant excess mortality before age 65 years was also observed for infections, vascular deaths, cancer, alcohol-related deaths and suicide. Analyses including deaths after age 65 generally showed slightly less excess in mortality, but the excess was significant for all-cause mortality, cancer, alcohol-related deaths and suicides.

Conclusion:  Adoptees have an increased all-cause mortality compared to the general population. All major specific causes of death contributed, and the highest excess was seen for alcohol-related deaths (Petersen, Sorensen, Mortensen, Andersen (2010).

 

The median age at adoption in this study would be close to the median age at adoption of the adoptees who were taken from their mothers at birth in Australia and almost immediately placed in adoptive families, then adopted at a later date. It is also very close to the age of current infants taken at birth due to the risk of future harm, or with siblings already removed, who will be channelled straight to one family and then adopted later if this Bill is passed. These are very similar groups – and this similarity is yet another reason why the insight, lived experience, and outcomes of adult adoptees is extremely relevant to current adoption policy.

 

In general, none of the groups (removed as infants in the ‘past’ and the ‘present’ and also those of the Danish sample group) are affected by the confounding variable of neglect or abuse that leads to the removal of older children, although they all have experienced the developmental trauma of maternal deprivation.   Yet the studies discussed above indicate significant negative effects over the lifespan for adoptees.

 

If all the damage cannot be put down to maternal deprivation or abusive pre-adoptive or adoptive placements, and the timeframe of pre-adoptive placement is minimal or straight from birth, then what is it about adoption itself on a fundamental level that leads to these outcomes? We argue that it certainly cannot be reduced down to the one problem of ‘open-ness’ (whichever version or combination of versions is applied), and that a few minor tweaks to adoption policy cannot ‘fix’ it, no matter what those promoting it today want to believe, or want the public to believe.

 

An adoption evidence base about the long-term effects of adoption needs to be built before decisions are made which condemn further generations to suffer the same outcomes.

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Part 3.4 The Myth of Permanence in Adoption

 

There are many myths around the idea of permanence in adoption. The pro-adoption rhetoric implies that, once adopted, the child has exactly the same status as they would have if they were born into the family.  That is not the case in Australia.  A lot of research  comparing adoption and foster care is based on UK research, which is based on UK adoptions and adoption law. But there are crucial differences in the UK and Australian adoption legislation.

In both Australia and the UK, discharges of adoption are possible where the adoption order was obtained under fraud, duress or improper means. But the major difference is that in Australia, discharges of adoption can also be obtained for other reasons and are even available to those who committed – as adults – to the supposedly permanent contract of adoption, the adopters themselves. Versions of ‘special circumstances’ discharges and who can apply vary arbitrarily between jurisdictions. In Queensland, a discharge can be ordered in “exceptional circumstances” and can be applied for by:

• the adopted person, if he or she is an adult;
• a birth parent of the adopted person;
• an adoptive parent of the adopted person;
• the chief executive.

But surely an ‘exceptional’ circumstance that is in the best interests of the under 18 year old adoptee is any time an adopter goes to court to be rid of the child and discharge the adoption? The prevalence of ‘re-homing’ in the United States speaks to the likelihood of this happening in Australia with numbers of adopter-led discharges increasing in proportion to increases in adoptions.

While shoring up the adoptive carer’s rights to the child, the Adoption Acts ensure there is an escape clause for the adopter. The adoption is permanent for the child only if the adoptive carer wants it to be. So, the permanence of adoption is a myth.

 

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Part 3.5 Long-term Care vs Adoption

 

In ‘Adoption and Long Term Foster Care: How do they Compare’ from the South Australian Adoption Act (1988) Review, Associate Professor Lorna Hallahan noted that “…the need to provide permanency for children through the practice of adoption is highly controversial from an ethical and human rights perspective,” and concluded:

… studies suggest, unsurprisingly, that children fare better when they do not have prolonged exposure to highly inadequate parenting, poor living conditions, sustained neglect and abuse. They also fare better when their living arrangements are safe, stable and maintained over their childhood. Whether or not adoption adds that bit more that really helps a child settle and belong is not entirely clear, (2015)

 

Curiously, it was another State Coroner, Mark Johns in South Australia, who also made numerous recommendations about adoption from care in the Coronial Inquiry into the death of a child known to (SA) Child Protection, Chloe Valentine. In making his recommendations, Johns relied heavily on the highly controversial work of Jeremy Sammut, employee of the Neo Liberal Think Tank, the Centre for Independent Studies (CIS), as well as Sammut’s book: “The Madness of Australian Child Protection: Why adoption will rescue Australia’s underclass children”.

Although Chloe Valentine had loving grandparents, ready and available to care for her if she had been removed in a timely manner as she should have been, Johns used the Coronial Inquiry to strongly promote and recommend adoption in South Australia.  These recommendations were not followed as the Adoption Act (1988) SA Review had just been completed, with a Recommendation against adoption from care (Hallahan, 2015).

Again, there is little research, but looking overseas, in Long term foster care or adoption? The evidence is examined, John Triseliotis in the UK compared short-term outcomes for children adopted at various ages and found that ‘recent’ comparisons (even in the 1990’s) of modern adoption and foster care showed very similar outcomes, due to changes in policies and practices:

[Pre-School Children]

Overall, if we include past studies, then breakdowns amongst the adoption group were significantly lower compared with the fostering group. However, if we include only studies carried out in the past 10 or so years, then hardly any differences would be found. This could be attributed to improved policies and practices.

 

[Children placed between the ages of 5 and 12]

If studies carried out before about 1990 are included, then long-term fostering experiences would show significantly higher breakdown rates compared to adoption. However, if studies carried out after about 1990 were contrasted, then they would show that fostering breakdowns were still higher, but the gap between these two forms of substitute parenting is narrowing..

[Placement of adolescents]

Though the overall breakdown rate suggests somewhat lower breakdown rates in favour of adoption, this disguises the fact that a proportion of older children are adopted by their foster carers after the placement stabilises. (2002, p 25-26).

The South Australian Office of the Guardian for Children and Young People, in their response to the Adoption Act (1988) SA Review agreed that “…the evidence is not strong for favouring adoption over long-term foster care placements to achieve good outcomes for children and the risk of disruption is similar,” (2015).

From the Victorian Inquiry into Protecting Vulnerable Children:

 

A recent UK study suggests that the main factors influencing outcomes in care are age, pre-placement adversity and delay in placement (that is, exposure to adversity). Where adversity levels are similar, children in stable foster care and adopted children had similar needs and outcomes when they arrived at the placements at similar ages. Overall there were no significant differences in outcomes between children in stable foster care and children who were adopted, (Beek et al, 2010, pp 2-4)

 

and “Tilbury and Osmond’s literature review suggests that temporary foster placements that become permanent deliver as good outcomes as other permanent arrangements, including adoption, (Cummins, Scott and Scales, 2012, 229).

 

The supposed ‘good’ outcomes from adoption cannot be separated out from that of long-term care, and this does not take into account the long-term impacts of adoption arising from the experience of the cascade of effects of a state assigned replacement identity and disconnection from kin for adoptees over their lifetimes and intergenerationally.

If the requirement of adoption is not necessary to achieving good outcomes from care, and the available research indicates this, as do many of the adoptees and adoptee run organisations who speak about the harm of adoption, then why expose a child-then-adult to these negative short and long-term effects when they can be cared for under long-term guardianship and Permanent Care Orders?

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Part 4. Explanatory Notes – Consistency with Legislative Principles

 

The fundamental legislative principle discussed in Part 4 is that “Legislation has sufficient regard be given to an individual’s rights and liberties, including natural justice and proportional intervention (Legislative Standards Act 1992, section 4(2)).

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Part 4.1 Closure of an open adoption

 

In the Explanatory Notes accompanying the Bill, only one potential breach of an individual’s rights  and liberties is acknowledged, which is that adopters have the power to “…decide the adopted child will no longer have an ongoing relationship with their siblings and broader family group,” (2020). This is noted as a potential breach of the principle that legislation should have sufficient regard given to an individual’s rights and liberties, including natural justice and proportional intervention (Legislative Standards Act 1992, section 4(2)).

The closure of an open adoption, (as per the Adoption Act 2009, Part 8, 168 (1) (a) An adoption plan is not enforceable), and the resulting potential breach of rights and liberties is argued to be justified due to the amendment in Clause 8 prioritising adoption being “…necessary to promote the permanency needs of children who require long-term care, when reunification with family is not possible,” (p. 5).

ARA disputes this justification and refers the Committee to the research by John Triseliotis and others, quoted in this document in Part 3.5. If similar child protection outcomes up to adolescence are achieved with long-term guardianship orders as are achieved with adoption, as the evidence shows, then the potential to breach an individual’s rights and liberties that would occur if adoption is ordered over a guardianship order or PCO cannot be justified.  Part 3.3 in this document is also referred to in this context due to its discussion of the indications that outcomes over the lifespan for a significant number of adopted people are negative.

There are other actual and inevitable restrictions of the child-then-adult’s rights and liberties which follow from Clause 8 of the Bill, and which are not mentioned in the Explanatory Notes, and these are discussed in parts 4.1 to 4.3 below. None of these restrictions to rights and liberties occur if the child-then-adult is placed under Guardianship or a PCO.

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Part 4.2 Information and Contact  

 

Access to birth records, information, files, and family contact for adult adoptees:

There are over 22 pages in the Adoption Act 2009 devoted just to clauses around the regulation of an adult adoptee’s access to their file, adoption information, access to seeing their original, cancelled, birth certificate, and contact restrictions in relation to the family they are not related to after the adoption order is made. Because adoption information is under the Adoption Act 2009, and not the Right to Information Act 2009 (Qld) and the Information Privacy Act 2009 (Qld), there is also no set timeframe for documents to be provided.

Division 5, 275 (1) to (8) covers the availability of a court order to restrict or deny the adoptee’s access to information when they are an adult. The application to restrict information can be made when the adoption order is made, or any time after, and can be made by – among others – the adopter/s.

These contact and information restrictions are discriminatory, oppressive, extreme, and lead to Draconian regulation of, and intervention into, the adoptee’s liberties and private and personal affairs for their entire adult life – an outcome which is entirely at odds with the stated paramountcy of the rights of the child-then-adult, and disproportionate to interventions for any other citizen, except perhaps those who have been convicted of criminal offences. These interventions are not just limited to the child-then-adult, but also include further restrictions placed on the adoptee’s children and future generations, if any, and other close family members.

Access to birth records, information, files, and family contact restrictions for adults previously on Guardianship orders, or PCO’s when they were children:

There are no legislative restrictions around information other than those applied to every other adult citizen under Right to Information Act 2009 (Qld) and the Information Privacy Act 2009 (Qld) Provisions.

There are no legislative restrictions around contact other than those applied to every other adult citizen using Restraining Orders.

There is no restriction or denial of access to a birth certificate that states the true facts of the person’s birth, as the birth certificate was never tampered with.

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Part 4.3 Identifying as an adult as having been adopted or under Guardianship orders

This is another example of the restriction of rights and liberties which follow from Clause 8 of the Bill, and which are not mentioned in the Explanatory Notes. None of the restrictions to rights and liberties occur if the child-then-adult is placed under long-term guardianship or a PCO:

Identifying as an adoptee

It is a criminal offence for someone adopted in Queensland to publicly identify themselves as an adopted person if that identifies or is likely to lead to the identification of a party or a relative of a party to an adoption.

 

From the Adoption Act 2009 (Qld) Division 2, 315:

 

“This section applies to material that identifies, or is likely to lead to the identification of a person as

1(a) a party, or relative of a party, to an adoption unless

2(a) the publication is made with the written approval of the chief executive;

or (b) written consent to the publication has been given, for each identified person…..

The Maximum penalty – 315 (a) for an individual – 100 penalty units or 2 years imprisonment or (b) for a corporation – 1,000 penalty units….

(4) Publish means publish to the public by television, radio, the internet, newspaper, periodical, notice, circular or other form of communication.“

Identifying as a person who has been Under Guardianship Orders

It is not a criminal offence in Queensland to identify before the public as an adult who has been under Guardianship orders.
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Part 4.4 Natural Justice

The prioritising of adoption over Guardianship and PCOs is a denial of natural justice, when natural justice is interpreted as the rule against bias, and the right to a fair hearing. If adoption is accepted and prioritised based on the acceptance of the myth of the supposed outcomes of adoption, and there is no requirement to do research to provide an evidence-base on which to make an informed decision, then natural justice is denied, (see Sections 3.3, 3.4 and 3.5 in this document).

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Part 5. Examination of the Statement of Compatibility

 

The acknowledged limitations on human rights in the Statement of Compatibility with the Bill are neither reasonable, nor are they reasonably justifiable, and there are also limitations on other human rights that the Statement of Compatibility does not mention.
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Part 5.1 Privacy and reputation (Section 25, Human Rights Act 2019)

 

The Statement of Compatibility for the Bill acknowledges that “the right to privacy is limited by the amendments to the extent that they interfere with families and may lead to the likelihood of ties between families being severed through the adoption process” (p. 5).

Ties between families are severed immediately by an order of adoption, and Section 25 (a) of the Human Rights Act 2019 also states that the interference should not be unlawful or arbitrary. Any decision that is based on a random choice or beliefs, rather than reason, is of an arbitrary nature. Due to the lack of an evidence base supporting the supposed long-term positive effects of adoption, any decision made to apply an adoption order is, by definition, an arbitrary decision. So Clause 8 of the Bill is not compatible with Section 25(a) of the Human Rights Act 2019, because it prioritises arbitrary interference with families.

The existence of an alternative option without the need for such a radical approach that does not have human rights limitations, shows that regarding Section 25, Privacy and Reputation, the application of Clause 8 of the Bill is neither reasonable, nor reasonably justifiable.

(See Parts 3.3, 3.4, 3.5 and 4.4 in this document).

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Part 5.2 Protection of families and children (Section 26, Human Rights Act 2019)

 

The Statement of Compatibility for the Bill acknowledges that Section 26 of the Human Rights Act 1999 “… also protects the right of every child, without discrimination, to the protection that is needed by the child and is in the child’s best interests,” (p. 5).

It is also acknowledged in the Statement of Compatibility that the “right requires the State to ensure the survival and development of every child to the maximum extent possible, and to take into account the best interests of the child as an important consideration in all actions affecting a child,” (p. 5)

When a child has been removed from their family, into the care of the State, either at birth or later – for whatever reason – that child is considered to be particularly vulnerable. The Statement of Compatibility for the Bill acknowledges that “[d]ecisions regarding permanency and adoption must be made in accordance with existing safeguards in the CP Act and Adoption Act,” and that these decisions need to be consistent with the principle of paramountcy of the safety, wellbeing and best interest of the child, (p. 5).

There are numerous and explicit safeguards for the child built into the Child Protection Act 1999. The Standards of Care are reproduced here to show how comprehensive, and explicitly stated these protections are:

Queensland Child Protection Act 1999 Chapter 4, Part 1, Section 122 – Statement of standards:

(1)The chief executive must take reasonable steps to ensure a child placed in care under section 82(1) is cared for in a way that meets the following standards (the statement of standards)—

(a)the child’s dignity and rights will be respected at all times;

(b)the child’s needs for physical care will be met, including adequate food, clothing and shelter;

(c)the child will receive emotional care that allows him or her to experience being cared about and valued and that contributes to the child’s positive self-regard;

(d)the child’s needs relating to his or her culture and ethnic grouping will be met;

(e)the child’s material needs relating to his or her schooling, physical and mental stimulation, recreation and general living will be met;

(f)the child will receive education, training or employment opportunities relevant to the child’s age and ability;

(g)the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour;

(h)the child will receive dental, medical and therapeutic services necessary to meet his or her needs;

(i)the child will be given the opportunity to participate in positive social and recreational activities appropriate to his or her developmental level and age;

(j)the child will be encouraged to maintain family and other significant personal relationships;

(k)if the child has a disability—the child will receive care and help appropriate to the child’s special needs.

A Charter of Rights for a child in care is also at Schedule 1 of the Child Protection Act 1999.

ARA wishes to draw the Committee’s attention to the contrasting lack of safeguards for the child in the Adoption Act 2009 itself.   There are no Standards or Charter of Rights of the child in the Adoption Act 2009, because the original intention of the Act was for it to be a means of creating the legal fiction that the child was born to the adopters. All of the warranted and added protections that recognise that a child has been in the care of the State, has a different family of origin, and is not a biological member of the caring family group disappear when the final adoption order is made.

The child begins in care of their family, then, according to the Child Protection Act 1999 5B (d) if a child does not have a parent who is able and willing to protect the child, the State is responsible for protecting the child. When the child is in the care of the State, the State is required to protect that child, and act in its best interests.

By placing a child in a situation where there are no safeguards and standards of care, and no recognition of their added vulnerability, then the State is not acting in the best interests of the child.

The mere hope or assumption that a vulnerable child will be cared for– without the explicit requirement, the follow-up checks, and the added duty of care of the state  to ensure this happens – does not equate to protection of that child as required in Section 26 (2) of the Human Rights Act 1999.

The human rights limitations under Section 26 (2) of the Human Rights Act 2019 which would be caused by the application of Clause 8 of the Bill are neither reasonable, nor reasonably justifiable due to the comparison between the safeguards in the Child Protection Act 1999 and the Adoption Act 2009, the lack of an evidence base supporting the supposed positive long-term effects of adoption, and the existence of an alternative option that does not have human rights limitations without the need for such a radical approach. (See Parts 3.3, 3.4, 3.5 and 4.3 in this document. Part 5.5 below also refers to the lack of follow up checks in adoption, and their requirement under the United Nations Convention on the Rights of the Child).

 

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Part 5.3 Cultural Rights – generally (Section 27, Human Rights Act 2019)

The Statement of Compatibility for the Bill acknowledges that “The amendments may indirectly limit this right should they lead to increased use of adoption as a mechanism to achieve permanency for children in care, if a child is adopted into a family that does not share their cultural background,” (p. 6).

Section 27 of the Human Rights Act, 2019 states that “All persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, to declare and practise their religion and to use their language.”

The justification given for ignoring a potential adoptee’s culture is that “the Senate Community Affairs References Inquiry into out-of-home care report noted evidence that ‘stability was one of the most important aspects contributing to positive outcomes for children and young people in care,’” (p. 6).

But the lack of an evidence base to support the claim for supposed positive outcomes over the long-term in adoption, and the existence of an alternative option of Guardianship and PCOs which provide stability in a less restrictive and more reasonable manner, without the need for such radical human rights limitations, means the application of Clause 8 of the Bill is neither reasonable, nor reasonably justifiable in regard to limitations on cultural rights. (See Parts 3.3, 3.4, 3.5 in this document).

Vulnerable groups like Culturally and Linguistically Diverse (CALD) Australians are not mentioned as having cultural traditions of any importance. One reason given for the different considerations for Aboriginal and Torres Strait Islander children is that adoption is not part of Aboriginal or Island custom, but many European and other cultural groups also do not have adoption as part of their cultural tradition.

The protections written into the Child Protection Act 1999 as the ‘Statement of Standards’, as discussed in Part 5.2, and specifically, the protection of 1(d) the child’s needs relating to his or her culture and ethnic grouping will be met, are also safeguarded with Guardianship and PCOs, but again, when a final adoption order is made, they disappear.

Allowing Clause 8 to limit the cultural rights of anyone except Aboriginal and Torres Strait Islander peoples ignores the existence of cultural groups other than Aboriginal and Torres Strait Islander peoples, and in doing so, it discriminates against other potentially adoptable children then adults and denies them recognition and respect for their identity, and their right to be supported to develop and maintain a connection with their culture, traditions and language.

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Part 5.4 Other Rights unjustifiably limited – Human Rights Act 2019

 

The following is a list of four other rights under the Human Rights Act 2019 that are also limited by Clause 8 of the Bill, but are not acknowledged in the Statement of Compatibility:

Section 15 – The right to recognition and equality before the law under Section 15 of the Human Rights Act, 2019 is potentially limited by Clause 8 of the Bill.

The definition in the Adoption Act 2009 of a party to an adoption includes the adopted child, the persons who were the child’s parents immediately before the adoption and the adopters. Although the adoptee is defined as a party to the contract, and that contract does not cease when they reach adulthood, the adoptee is never given the opportunity as an adult to agree to the contract they are treated as a party to.

 

Despite being a ‘party’ to the adoption, there is also no requirement for the adoptee to be advised that they are, or that they have been adopted.

 

According to the Queensland Human Rights Commission, Section 15 can be relevant where activities have a disproportionate impact on people who have one or more protected attributes under the Anti-Discrimination Act 1991 (for example, sex, race, age or disability).

 

In the case of adoption, because age is relevant to the activity, and is the cause of a person who is legally considered a party to the adoption not being able to consent, and also the reason they may not be told the adoption occurred, then measures should be taken for the purpose of assisting or advancing the right to the recognition without age discrimination. As these have not been taken, then the right to recognition and equality before the law is potentially limited by Clause 8 of the Bill.

 

Section 17 – The right to protection from torture and cruel, inhuman or degrading treatment under Section 17 (b) of the Human Rights Act 2019 is potentially limited by Clause 8 of the Bill. The Queensland Human Rights Commission defines ‘inhuman and degrading treatment’ as not necessarily intentional, or physical, and includes acts that cause mental suffering, humiliation, anguish or a sense of inferiority. Adopted children and adults, denied access to their identity information and origins; defined and treated as children for life; expected to accept intrusive restrictions on contact with their families as adults;  or forced to beg for a discharge of the adoption that they never consented to is arguably an example of being subject to inhuman and degrading treatment.

 

Section 21 – The right to Freedom of expression under Section 21 of the Human Rights Act, 2019 is potentially limited by Clause 8 of the Bill, because it is an offence in Queensland to publish anything that identifies someone as an adult adoptee, if this would identify, or be likely to lead to the identity of a party to the adoption or their relative, (refer to Part 4.3 in this document). This limits an adopted adult’s freedom to seek, receive and impart information and ideas of all kinds, which is enshrined in Section 21 of the Human Rights Act, 2019 .

Section 22 – The right to peaceful assembly and freedom of association under Section 22 of the Human Rights Act, 2019 is potentially limited by Clause 8 of the Bill. As the right extends to all forms of association with others, and is not limited to associations for political purposes, the right of an adoptee to associate with members of their family who are not recognised as being related to them due to an adoption order are arguably limited by the contact restrictions in the Adoption Act 2009.

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Part 5.5 Other rights unjustifiably limited – Convention on the Rights of the Child

 

Another limitation of rights by Clause 8 of the Bill is Article 25 of the United Nations Convention on the Rights of the Child (UNCRC):

Article 20, Part 1. “A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.”

Article 20, Part 3. “… such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children…”

Article 25 “States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.”

As the requirements for welfare checks of children in care is not followed in practice, nor included in the Adoption Act 2009 (and ‘care’ includes adoption as per the definition at Article 20, part 3 of the UNCRC), the right to periodic review of treatment provided, and all other circumstances relevant to their placement under Article 25 of the UNCRC is potentially limited by Clause 8 of the Bill.

 

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Part 6 Conclusion

 

With the prioritisation of adoption in Clause 8 of the Bill, at least six different human rights under the Human Rights Act 2019 are limited, along with breaches of the individual’s liberties, the denial of natural justice and disproportionate intervention in the lives of those subject to adoption.

For each of these limitations on rights, and breaches of fundamental legislative principles, the alternative of Guardianship and PCOs offer more protection, are less radical and restrictive and are reasonably available.

There is no evidence base that shows that adoption provides positive long-term outcomes over the lifespan, even in the absence of abusive carers, and instead the available research indicates that it has the opposite effect.

Yes, procedures in choosing adoptive carers have improved, but procedures for choosing foster carers have improved too, and procedures for decisions around leaving an at-risk child in their home environment have improved. These improved procedures failed Tiahleigh Palmer and Mason Jet Lee.

What happened to Tiahleigh and Mason are extreme examples along a continuum which ranges from wonderful care to abuse and murder – and this is within a system that checks on the welfare of children and has requirements like Standards of Care.

Adoption is a highly controversial practice that is acceptable only if it is not examined or researched, and only if the voices of those who live it are ignored.

The State prioritising placement of a vulnerable child into the private, unmonitored, unchecked care of genetic strangers is a failure of the State’s duty of care to that child-then-adult.

The State prioritising adoption so it can place a vulnerable child – for life and beyond – under an Act that exhibits such blatant disregard for human rights under the Human Rights Act 2019, and other Human Rights instruments, is a failure of the State’s duty of care to that child-then-adult.

The State prioritising placement of a vulnerable child into a system where research indicates that there are significant negative long-term effects over the lifespan even when no other abuse has occurred, is a failure of the State’s duty of care to that child-then-adult.

Adoption is tolerable only when myths are preferred over reality.

 

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References

 

Adoption Act 2009 (Qld)

Beek, M, Biehal, N, Sinclair, I, Baker, C & Elison, S (2010) Belonging and performance: outcomes in long-term foster care and adoption, summary 1, Adoption Research Initiative, York.

Child Protection Act 1999 (Qld)

Cummins, P, Scott, D and Scales, B (2012) Report of the Protecting Victoria’s Vulnerable Children Inquiry, Department of Premier and Cabinet: Melbourne

Guardian for Children and Young People (2015) GCYP Response to Adoption Review, Government of South Australia

Hallahan L (2015) Adoption and Long-Term Foster Care: How do they Compare?

Hallahan L (2015) Adoption Act 1988 (SA) Review

Higgins D (2012) Past and present adoptions in Australia, Research summary. Retrieved from https://aifs.gov.au/publications/past-and-present-adoptions-australia 01/08/2020

Human Rights Act 2019 (Qld)

Human Rights Commission (Qld) Human Rights Act. Retrieved from https://www.qhrc.qld.gov.au/your-rights/human-rights-law 01/08/2020

Kenny, P., Higgins, D., Soloff, C., & Sweid, R. (2012). Past Adoption Experiences National Research Study on the Service Response to Past Adoption Practices. Retrieved 1 August 2020, from https://aifs.gov.au/publications/archived/77

Parliament of Australia, Chapter 6, 1961-1964 discussions of Model Adoption Legislation. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Completed_inquiries/2010-13/commcontribformerforcedadoption/report/c06

Petersen L, Sørensen TIA, Mortensen EL, Andersen PK (2010) Excess Mortality Rate During Adulthood Among Danish Adoptees. PLoS ONE 5(12): e14365. https://doi.org/10.1371/journal.pone.0014365 last accessed 01/08/2020

Stanley K. Sisterwish [Blog]. Retrieved from http://www.sisterwish.com/ 01/08/2020

Triseliotis J (2002) Long term foster care or adoption? The evidence is examined. Retrieved from https://doi.org/10.1046/j.1365-2206.2002.00224.x

ARA Inc.

Postal address:	PO Box 976 Toronto NSW 2283
Email:	[email protected]
Website:	www.adopteerightsaustralia.org.au

 

Contributors:

This submission was prepared by Sharyn White for ARA with approval of the ARA Committee