ARA Submission to the Media Diversity in Australia Inquiry

Adoptee Rights Australia (ARA) Inc.
Submission to the Senate Environment and Communications References Committee Media Diversity Inquiry
11th December 2020
Media diversity in Australia – Submission 54

Link to the Inquiry is here  * Link to ARA’s submission PDF is here

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

Adoptee Rights Australia (ARA) Inc. thanks the Senate Environment and Communications References Committee for the opportunity to make a submission to their inquiry into Media Diversity in Australia.

About Adoptee Rights Australia
Adoptee Rights Australia (ARA) Inc 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 their lives changed forever by adoption. Adoptee Rights Australia 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.

Bias in reporting and coverage of adoption
Adoptee Rights Australia wishes to draw attention to a strong pro-adoption bias in reporting in the Murdoch press around the issue of adoption.

As adoptees we see mainstream media constantly air programs of the “Fairy-tale Adoption Story” from the adoptive parents’ perspective with a complete lack of balance. The lived experience of adoptees and negative impact on their lives is swept under the carpet – our voices were always meant to be silenced, that is the legislation of Adoption. We are fighting a very powerful adoption & fertility industry. This is also the case with Donor Conceived people, who we are increasingly hearing from, the next wave so to speak,” Adoptee Rights Australia President, Peter Capomolla Moore.

Peter Capomolla Moore’s story of the late discovery of his adoption at 59 years of age has been featured by several news outlets. Last June, after a day spent filming with ‘The Project’ team, Peter’s almost completed story was inexplicably pulled from final production. The reason given was that the direction came from above and the report was “not balanced”.

Besides the adoptee par-for-the-course reunion story, the only difference was that in this story for ‘The Project’ Peter also highlighted some of the unique and little-known issues adopted people face, like having two birth certificates, and not being able to legally use their true, original birth certificate. Peter talked about the increasing uptake of discharges of adoption and the growing movement of adopted people speaking out about negative consequences of adoption.

Powerful adoption lobby group with strong links to Rupert Murdoch
Adoption has experienced a resurgence in Australia in recent years, due to the lobbying of the organisation AdoptChange, which was founded in 2008 by celebrity wife, Deborra-Lee Furness.

After not being able to adopt easily in Australia, Deborra-Lee Furness and her husband, actor Hugh Jackman, went to the US, where they were able to share a hotel room with a young mother-to-be for several weeks, attend the birth, cut the cord, hold this mother’s newborn before she did, and adopt him immediately – thus avoiding the “red tape and bureaucracy” (along with United Nations Convention on the Rights of the Child requirements) which currently make that sort of behaviour impossible in Australia.

The close ties of Deborra-Lee Furness and Hugh Jackman to Rupert Murdoch are well known and publicly available. They share countless photo moments which can be easily searched in Google images. Hugh is godfather to Rupert’s daughters, Chloe and Grace. Nicole Kidman – another high profile Australian celebrity adopter and surrogate user – is co-godparent.

Of course, knowing someone very well does not mean they will manipulate public sentiment for you, and the fact that adoption is a billion-dollar industry in the US also does not mean there is an automatic connection. But what is clear is that the prevalence of positive adoption messages in the Murdoch media are in stark contrast to the views of most adoption stakeholders – except for a small, powerful group headed by AdoptChange.

The promotion of adoption is not supported by most stakeholders
In 2018 there was a Federal Inquiry which was named the ‘Inquiry into Local Adoption’ and came about partly due to AdoptChange lobbying. This was not an inquiry into adoption itself, which Adoptee Rights Australia continues to call for. This inquiry jumped that step, treating supposed good outcomes from adoption as a given, on no evidence-base. Instead, it asked how to get rid of the supposedly inconsequential “barriers” preventing adoption in Australia. Yet over 80% of the 110 submissions to the Local Adoption inquiry were not in favour of adoption or had serious concerns about its increase.

Late this year, there was also a state-based inquiry in Queensland into a Bill intended to prioritise adoption over long-term guardianship. Over 90% of the 39 submissions to this inquiry were against the Bill.

The impact of widespread pro adoption propaganda
Despite such high numbers of submissions questioning the use of adoption, recommendations of the Committees in both inquiries reached the opposite conclusion. That the outcomes of both inquiries went so completely against the tide of the submissions just speaks further to the explanation that there is an alarming amount of power and vested interest behind the scenes, and/or of the susceptibility of politicians to the positive stereotype of adoption propagated and cultivated in the Murdoch media.

Deborra-Lee Furness has the might of Hugh Jackman’s celebrity influence to open many doors for her, and everyone has the right to lobby in a legal manner for what they want to change. But public opinion should not be so obviously manipulated by constant and unbalanced propaganda in a supposedly free press in the service of the agendas of the powerful.

Adoptee Rights Australia has long been calling for data collection and further research on the long-term outcomes for adopted people (who have been shown to be at significantly higher risk of suicide and attempted suicide, mental health issues, drug and alcohol abuse, homelessness and imprisonment as a population group) to inform decision making on adoption in Australia. The continued promotion by the Murdoch press of the myth that adoption is a positive and straightforward “win-win” for both the childless and the adoptee is misinformation that causes long-term damage.

Call for a Murdoch Royal Commission
Adoptee Rights Australia urges the Senate Environment and Communications Reference Committee to recommend a Murdoch Royal Commission which includes – among a broad and numerous list of concerns – the comprehensive examination of the influence of the Murdoch press on adoption in Australia.

Rights Analysis of the Adoption from Care Bill in South Australia

This Adoption from Care legislation in South Australia has been developed behind closed doors and is being made to seem as if there has been adequate consultation and stakeholder agreement when that is not the case. Although excluded from the “consultation” about this Bill, ARA has developed a rights analysis which raises significant concerns.

Second Reading on 12 November 2020 by Minister Rachel Sanderson

The Bill itself is here – see pages 12 to 19

Rights Analysis

Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

According to the Department for Child Protection Reporting and Statistics page, as of 30th December 2020 there were 3,827 children on a Guardianship to 18 years of age order in South Australia. 544 were on a Guardianship to 12 months order.  The pool of children this Bill defines as ‘eligible’ are those on an order to 18 years old – minus Aboriginal and Torres Strait Islander children, who are the only vulnerable group not included in this push for adoption from care.

The Bill contains numerous significant changes to the Adoption Act 1988 but none of the changes are amendments of the Adoption Act. Instead, they are classed as “modifications” of the Adoption Act 1988 from the Child and Young People (Safety) Act 2017. This is despite the ability to dispense with consent to adoption already existing in the Adoption Act 1988. There has been no justification given as to why it was deemed necessary to avoid the Adoption Act completely and take such a radically different legislative approach to the one New South Wales used when it introduced adoption from care.

Complexity of legislation restricts the ability of those affected by the law to understand their legal rights and obligations. That alone is cause for concern, but the changes themselves give concerningly wide discretionary powers to the Chief Executive and delegates while drastically reducing the powers and independent decision-making capacity of the court, and they contain no mention of any associated safeguards or protections for the child-then-adult or their family.

This paper contains a summary of the rights-based implications of this Bill and adoption from care, then a detailed explanation/discussion of each point made in the summary with comparisons between existing and proposed legislation.

Contents

Summary

  1. Removal of the child’s best interests in Court decision making
  2. The downgrading of the paramountcy of the child’s rights and best interests in adoption
  3. Consent requirements and views of the child and parents
  4. Open adoption is excluded if adoption is from care
  5. Timeframe for adoptions
  6. Criteria for eligibility and assessment of adopters
  7. Possible unforeseen consequence of 113F
  8. Rights relating to culture and ethnic group
  9. Lack of equal protection under the law due to age
  10. The right to information: ‘inhuman and degrading treatment’ and lack of review rights
  11. The right to impart information and ideas of all kinds
  12. The right of children in care to follow up welfare checks

  Summary

 

  1. Removal of child’s best interests in Court decision making; Royal Commission Recommendation 157; Right to privacy
    – Chapter 7A, Part 1, 113C – The Bill requires that when considering if adoption is preferable to any alternative order the Court must disregard any other order that could be made under the Child and Young People (Safety) Act 2017. So even if the court finds that long-term guardianship is in the best interests of the child, this cannot be taken into consideration in their decision – the adoption order will be required to be made instead.
    – Contradiction to actioning of Recommendation 157 of the Royal Commission
    – Right to privacy contravened by arbitrary interference when guardianship suffices.
    Rights implications – Article 14 & 17 ICCPR, Articles 3 & 21 UNCRC, General Comment No. 14 (2013) para 38.
  2. The downgrading of the paramountcy of the child’s rights and best interests in adoption. This Bill removes the requirement for the paramountcy of the rights of the child in the decision-making process on adoption from care, contravening Article 21 of the UNCRC.
    Rights implications – Articles 3 (best interests a primary consideration) & 21 UNCRC (interests of the child in adoption paramount); General Comment No. 14(2013).
  1. Consent requirements – Consent of child over 12 not needed, even if the child refuses to consent to adoption; views of the child and parents not given weight; loss of requirement to give the opportunity to follow up paternity of child before adoption – these are some of the consequences of the removal of Part 2, Division 2 which is the section dispensing with consent from the Adoption Act 1988.

– Chapter 7A, Part 3, 113I 3(b) The child will be able to be forced to be adopted even if they refuse to consent, and even if they are over 12 years old.

The views of the child are “heard” but given less weight. The parent’s views can be “heard” but the Court is discouraged from giving them any weight; and the consent of the child can be dispensed with if the Court considers adoption is in the child’s “best interests”.
Rights implications – Article 12 (views of the child) UNCRC.

– Removal of Part 2, Division 2 dispensing with consent from the Adoption Act 1988 means there is no need to follow up the requirements of Part 2, Division 2, 15 (7): ‘consent of the father of a child born outside lawful marriage’ allowing that father the opportunity to establish paternity prior to an adoption order being made if that has not been done.
Rights implications – Article 14 and 17 ICCPR among others.

  1. Open adoption is excluded if adoption is from care – Chapter 7A, Part 1, 113C (1) (l) If the pathway to adoption is through the Child and Young People (Safety) Act 2017 the Bill specifically excludes open adoption completely (by excluding section 26A of the Adoption Act (1988) where there is a weak – unenforceable – option of open adoption).
    Rights implications – Article 3 UNCRC, Article 14 ICCPR, Article 12 (views of the child) UNCRC.
  1. Timeframe for adoptions
    – Chapter 7A, Part 1, 1 ‘eligible child’(b) and ‘prescribed qualifying period’ (a) – How long before an adoption can be applied for is dependent on the ‘eligibility’ status of the child (they are deemed eligible when they are the subject of an order to 18, which most children currently in care are) and the ‘prescribed qualifying period’. This ‘prescribed qualifying period’ is potentially an extremely short time because the only timeframe stated is ‘not less than 2 years’ – only if the regulations do not state a different time.
    – What the timeframe is before an adoption can be ordered should be one of the determining key issues in a decision on the passing of this Bill and yet this is relegated to subordinate legislation.
    – There is no recognition in the Bill of time needed for other vulnerable groups, eg. disabled parents, parents from culturally and linguistically diverse (CALD) backgrounds, other groups with intergenerational trauma, etc.
    Rights implications – Article 14 (Right to a fair hearing) and Article 17, ICCPR, among others.

 Chapter 7A, Part 3, 113H – once the adoption application is made, the parents (if they are to be served) are entitled to notice of just 3 business days before the adoption hearing.
Rights implications – Article 14 & 17, ICCPR. Article 2, UNCRC

  1. Criteria for eligibility and assessment of adopters
    Who can adopt from care, and criteria for assessment of adopters
    Chapter 7A, Part 2, 113D (1) (c) refers to ‘an approved carer, or an approved carer of a class, prescribed by the regulations’. As the Children and Young People (Safety) Regulations 2017 do not currently have any sections describing approved carers, this would seem to create an additional definition of ‘approved carer’ – but again with no indication of what the criteria would be, and no clear reason to not have this criteria in the Adoption Act itself.
    – Other than this undefined category, the adopter can also be eligible if they are an approved carer who has a child in their care for the “prescribed qualifying period” (1)(b) or someone with guardianship (1)(a). These are very wide eligibility criteria.
    Rights implications – ICCPR Article 14 (Right to a fair hearing); Articles 3 & 21, UNCRC, Articles 24 & 26, ICCPR.Chapter 7A, Part 2, 113E: This Bill sets a potentially much lower threshold for criteria used to assess potential adopters from care and this raises questions about the best interests of the child, and the potential for discrimination against children in care because of different criteria than adoptions through the Adoption Act 1988.
    – Despite there being full and comprehensive criteria for adopters in the Adoption (General) Regulations 2018, no criteria for adopters is stated in the Bill – except that the “requirements” will again be set out in the regulations – of an Act based on Child Protection, not Adoption.
    Rights implications – Article 14 (Right to a fair hearing) ICCPR; Articles 3 & 21, UNCRC; Articles 24 & 26, ICCPR.
  2. Possible unforeseen consequence of 113F ‘Eligible carer need not be in a relationship’ potentially places vulnerable children at further risk. The intention may have just been to allow single people to adopt, but the concern is that it appears to allow adoption by someone in a relationship where their partner does not also adopt the child (which was excluded within the Adoption Act 1988). This is also linked to the concern about extremely wide eligibility criteria.
    Rights implications – Articles 3 and 21, UNCRC, Articles 24 and 26 ICCPR.
  3. Rights relating to culture and ethnic group – The rights of children-then-adults of ethnic, religious or linguistic minorities to maintain their connections to their language and culture – e.g. CALD are a group usually recognised as vulnerable but ignored in this Bill.
    Rights implications – Article 27, ICCPR; Article 30, UNCRC.
  4. Lack of equal protection under the law due to age. For example: a child is removed at or near birth and foster-to-adopted by an ‘eligible carer’. The child is then adopted at 1 to 2 years old. They have no right to be told they are adopted within this Bill or the Adoption Act 1988, as well as no point where they can consent (despite being a ‘party’). There are no proactive measures within this Bill to allow them a voice to provide equality due to their age status as an infant/young child at the time of the adoption.
    Rights implications – Article 26 ICCPR; Article 2 UNCRC.
  5. The right to information: ‘inhuman and degrading treatment’ and lack of review rights – sealed birth certificates to 18 years old – and beyond 18 at the discretion of the Chief Executive/delegates, and the restrictions around access to identity information.
    Rights implications – Articles 7 & 14, ICCPR.
  6. The right to impart information and ideas of all kinds – limited for those adopted, with an offence carrying a maximum penalty of $40,000 or imprisonment for 4 years.
    Rights implications – Article 19, ICCPR.
  1. The right of children in care to follow up welfare checks – is ignored in this Bill.
    Rights implications – Articles 20 & 25, UNCRC

In every case, the rights limitations or abrogation this Bill enables are not reasonable or reasonably justified because adoption is a non-evidence based, highly controversial practice, and alternative measures are available which provide stability without loss of rights.

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1.  Removal of the child’s best interests in Court decision making.

 

According to 113C(1) (i) adoption is not required to be “clearly preferable to any alternative order” like long-term guardianship. Adoption can be the worst option, yet under this clause, if adoption is applied for, it will be the *only* option because the court cannot take into account an alternative order like long-term guardianship – even if it is preferable!

 

The Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

Chapter 7A, Part 1, 113C – Modification of Adoption Act 1988 

(1) (e) section 10(1) of that Act is modified such that, in considering whether adoption is preferable to any alternative order that may be made under the laws of the State or the Commonwealth, the Court—

(i) must disregard any order that may be made under this Act; and

(ii) must have regard to the operation of Part 2 of Chapter 2 of this Act;

 

“modifies”:

 

Adoption Act 1988 Part 2, Division 1

10—No adoption order in certain circumstances

(1) The Court will not make an adoption order in relation to a child who is less than 18 years of age unless satisfied that adoption is in the best interests of the child and, taking into account the rights and welfare of the child, clearly preferable to any alternative order that may be made under the laws of the State or the Commonwealth.

 

Chapter 7A, Part 1, 113C (i) prevents the consideration of any alternative order which may be preferable to an adoption order because any other long-term order is specifically ruled out due to being in “this act” ie the Children and Young People (Safety) Act 2017.

Chapter 7A, Part 1, 113C in (ii) directs the court outside of the Act where best interests of the child are not paramount by saying the Court must have regard to the operation of Part 2 of Chapter 2 of the Children and Young People (Safety) Act 2017 when considering whether adoption is preferable to any alternative order.

This makes a mockery of any best interest decision.  If the Court is required to make an adoption order even if there are other clearly preferable alternative orders that are in the child-then-adult’s best interests just because the Court “must disregard any order” in the Children and Young People (Safety) Act, then this prevents the Court from truly considering the child’s best interests.

 

The Court is told to “have regard to the operation of Part 2, Chapter 2” (below) in the Children and Young People (Safety) Act which places the safety of children as paramount, whereas the Adoption Act at Section 3 – Objects and guiding principles, (1) (a) – following the UNCRC (Article 21) states that the “best interests, welfare and rights of the child concerned, both in childhood and in later life, must be the paramount consideration in adoption law and practice”.

 

“In respect of adoption (art. 21), the right of best interests is further strengthened; it is not simply to be “a primary consideration” but “the paramount consideration”. Indeed, the best interests of the child are to be the determining factor when taking a decision on adoption, but also on other issues.“ (General Comment No. 14 (2013) para 38)

 

Children and Young People (Safety) Act 2017

Chapter 2, Part 2—Priorities in the operation of this Act

7—Safety of children and young people paramount

The paramount consideration in the administration, operation and enforcement of this Act must always be to ensure that children and young people are protected from harm.

8—Other needs of children and young people

(1) In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be

considered in the administration, operation and enforcement of this Act:

(a) the need to be heard and have their views considered;

(b) the need for love and attachment;

(c) the need for self-esteem;

(d) the need to achieve their full potential.

(2) To avoid doubt, the requirement under this section applies to the Court.

(3) Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained.

9—Wellbeing and early intervention

Without limiting a provision of this or any other Act or law, State authorities whose functions and powers include matters relating to the safety and welfare of children and young people must have regard to the fact that early intervention in matters where children and young people may be at risk is a priority.

A comparison with NSW adoption from care shows the opposite approach which retains the paramountcy of the best interests of the child, and even suggests other orders which should be compared and taken into account, to ensure that best interest principles are fully applied:

NSW Adoption Act 2000

Part 9 – Adoption orders

90   Court to be satisfied as to certain matters

 

(3)  The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.

Note—

Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998. Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt.

 

 

This “modification” also appears to contradict and nullify Royal Commission Recommendation 157 which was to:

Consider the question of adoption where that is in the best interests of the child and an Other Person Guardianship order would not be appropriate.

The Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020 has not yet passed of course, but Minister Sanderson did announce her intention to implement the promotion of adoption from care in September 2019. Yet according to the 2020 Recommendation Update – PDF here  this ‘Accepted’ Recommendation is in Phase 3, and the progress is advised as ‘implementing’ – when it seems what is being implemented is the direct opposite.

 

Article 17 ICCPR

  1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
  2. Everyone has the right to the protection of the law against such interference or attacks.

 

The right to privacy is limited by the amendments in the Bill to the extent that they interfere with families and sever ties between families through the adoption order or distort them in kin adoption.  As any removal of a child – however warranted and necessary – limits rights, the actual legal severance of the child then adult is an even more radical limitation.  Adoption is a highly controversial practice and Article 17 (1) of the ICCPR also states that the interference should not be unlawful or arbitrary. 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.

 

The alternative option of long-term guardianship which does not use such a radical approach to enable care exists, yet this Bill specifically excludes the use of any alternative care order in the Children and Young People (Safety) Act and leaves the Court with no ability to make a decision based on the child-then-adult’s best interests.

 

With this Bill, a child-then-adult who is under a long-term guardianship order in safe, stable and supportive permanent care could lose their birth certificate, their identity, their relationship rights to their siblings and extended family, and their ancestry – for life – even if such a loss and radical severing was not considered to be their ‘best interests’.

 

Article 14 & 17 ICCPR, Articles 3 (best interests a primary consideration) & 21 UNCRC (interests of the child in adoption paramount).

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2.  The downgrading of the paramountcy of the child’s rights and best interests in adoption

Article 21 of the Convention on the Rights of the Child: “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…”

If paramountcy applies:

“It is not sufficient to state in general terms that other considerations override the best interests of the child; all considerations must be explicitly specified in relation to the case at hand, and the reason why they carry greater weight in the particular case must be explained. The reasoning must also demonstrate, in a credible way, why the best interests of the child were not strong enough to outweigh the other considerations. Account must be taken of those circumstances in which the best interests of the child must be the paramount consideration” (General Comment No. 14 (2013) para 97).


Paramountcy “… requires that in adoption decisions, the best interests of the child take precedence over all other interests, including those of birth parents, adoptive parents and political, state security or economic interests. It calls for the child and his or her needs to be at the centre of any decisions about adoption. (Victorian Law Reform Commission: The best interests and rights of the child 5.7)

 

This is a stronger protection of best interests and rights than the ‘primacy’ stated at Article 3 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Convention on the Rights of the Child.

 

– and it is certainly stronger than what is stated in this Bill, where ‘safety’ is paramount, and best interests (with no mention of rights) do not have primacy let alone paramountcy.

 

Part 2—Amendment of Children and Young People (Safety) Act 2017

4—Amendment of section 8—Other needs of children and young people

(2) Section 8—after subsection (3) insert:

(4) Each person or body involved in the administration, operation and enforcement of this Act must, when performing a function or exercising a power in relation to a child or young person, act in the best interests of that child or young person (however, this subsection does not displace, and cannot be used to justify the displacement of section 7).

 

A hybrid chapter of the Adoption Act is created in the Children and Young People (Safety) Act 2017 with the addition of 7a. The only purpose for this seems to be to remove the rights and welfare of the child as paramount from the decision-making process in adoption – ignoring one of the key requirements of the Convention on the Rights of the Child on adoption: Article 21.

The Convention on the Rights of the Child General Comment No. 14 (2013) explicitly and repeatedly emphasises the necessity and importance of rights to the child’s best interests. It also advises that the concept of the child’s best interests has been abused by Governments and other State authorities (para 34) and recommends formal processes with strict procedural safeguards to prevent this. An argument might be made that being required to refer to  Chapter 2, Part 2 of the Children and Young People (Safety) Act 2017 could give meaning to the concept of best interests, at Section 8  where being heard, love, attachment, self-esteem and reaching full potential are listed as needs of the child. But this potential ‘addition’ does not add procedural instructions. It just adds extra terms that are similarly open to misinterpretation at the cost of downgrading a child’s best interests and rights from the foremost consideration to just ‘one’ of many considerations.

“With regard to implementation measures, ensuring that the best interests of the child are a primary consideration in legislation and policy development and delivery at all levels of Government demands a continuous process of child rights impact assessment (CRIA) to predict the impact of any proposed law, policy or budgetary allocation on children and the enjoyment of their rights, and child rights impact evaluation to evaluate the actual impact of implementation” (General Comment No. 14 (2013) para 35).

Without procedural safeguards, the concept of ‘best interests’ or even the additional ‘needs’ stated at Section 8 of Chapter 2, Part 2, can allow the abuse of discretionary powers based on individual value judgements – and there are disturbingly wide discretionary powers provided to the Chief Executive and her delegates in this Bill combined with the removal of the paramountcy concept.

“An adult’s judgment of a child ’s best interests cannot override the obligation to respect all the child’s rights under the Convention” (General comment No. 13(2011), para 61).

Moving adoption decisions into the Children and Youth (Safety) Act 2017 does not add any procedural benefits for the child-then-adult and instead means a child’s best interests and rights may be set aside. Best interests themselves are not treated as primary, and this Bill removes protections that prevent their interests being placed on a par with others – including the interests of the State wanting to funnel children into adoption as a cost-saving and accountability-avoiding measure.

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  1. Consent requirements and views of the child and parents

Consent of child over 12 not needed, even if the child refuses to consent to adoption; views of child and parents not given weight; loss of requirement to follow up paternity of child before adoption, other limitations.

 

Removal of Part 2, Division 1, 8A in the Adoption Act 1988 to be replaced with 113K in the Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020 limits the right of the child to have their views considered.

 

Adoption Act 1988

Part 2, Division 1

8A—Court must consider opinion of child –  is removed:

(1) Before making an order for the adoption of a child of or over 5 years of age, the Court must interview the child to determine what the child’s opinion is in relation to the proposed order (unless satisfied that the child is intellectually incapable of expressing an opinion).

(2) An interview under this section must not be conducted in the presence of any party to

the adoption.

(3) In determining whether to make an order for adoption of a child the Court must take into account any opinion expressed by the child in an interview under this section.

(4) The Court may determine the weight to be given to an opinion expressed by a child in an interview under this section, taking into account the age of the child and any other factors the Court considers relevant

 

– and this is what replaces 8A:

The Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

113K—Views of child or young person to be heard

(1) In proceedings on an application for an adoption order contemplated by this chapter, a child or young person to whom the application relates must be given a reasonable opportunity to personally present to the Court their views related to the proposed adoption.

(2) However, subsection (1) does not apply if the Court is satisfied

that—

(a) the child or young person is not capable of doing so; or

(b) to do so would not be in the best interests of the child or young person.

(3) Subsection (1) applies whether or not the child or young person is represented by a legal practitioner in the proceedings.

 

2(e) in ‘Objects and guiding principles’ remains, but seems to be contradicted by 113K (and 113I(3) among others).

 

Adoption Act 1988

Part 1, 3 – Objects and guiding principles –  is retained:

(2)(e) if a child is able to form views on a matter concerning the child’s adoption, the child 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;

 

There appears to be an expectation that the child should be able to “personally present to the Court their views related to the proposed adoption” (with no safeguard of privacy noted as there was in 8A) rather than having a private interview. An “opportunity to present views” is very different to a requirement that the Court “must take into account any opinion expressed by the child”.

 

The removal of Part 2, Division 2 of the Adoption Act 1988 which is made up of Sections 15 to 19 over two pages in the Act enables:

  • accidental or intended removal of the need to follow up the requirements of Part 2, Division 2, 15 (7) regarding ‘consent of the father of a child born outside lawful marriage’ and allowing that father the opportunity to establish paternity.
  • a new power to be added which allows a child over 12 to be adopted against their wishes, and without their consent.

 

Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

113C – Modification of Adoption Act 1988 

(1)(h) Part 2 Division 2 of that Act does not apply

 

Adoption Act 1988

Part 2, Division 2—Consent to adoption

15—Consent of parent or guardian

(1) to (6) [includes details of consent of mother and revocation of consent – n/a]

(7) The consent of the father of a child born outside lawful marriage is not required unless his paternity is recognised under the law of this State but if it appears to the Court that a particular person may be able to establish paternity of the child (not being a person whose paternity arises from unlawful sexual intercourse with the mother), the Court will not proceed to make an adoption order without allowing that person a reasonable opportunity to establish paternity.  

 

In the Adoption Act 1988 if a child is 12 or over and does not consent to the adoption, the adoption order will not be made unless the child appears to be intellectually incapable of giving consent. Under this Bill they can be forced to be adopted if it appears to the court that adoption is in their “best interests….despite the lack of, or refusal of such consent”. Again, no information is given about requirements for assessing best interests.

Adoption Act 1988

Consent of the child Part 2, Division 2

16—Consent of child

(1) An adoption order will not be made in relation to a child over the age of 12 years unless—

(a) the child has consented to the adoption; and

(b) 25 days have elapsed since the giving of consent; and

(c) the Court is satisfied, after interviewing the child in private, that the child’s consent is genuine and the child does not wish to revoke it.

 

(and)

Part 2, Division 2

18-Court may dispense with consents

(1) The Court may dispense with the consent of a person (other than the child) to an adoption where it appears to the Court—

(a) that the person cannot, after reasonable inquiry, be found or identified; or

(b) that the person is in such a physical or mental condition as not to be capable of properly considering the question of consent; or

(c) that the person has abandoned, deserted or persistently neglected or ill-treated

the child; or

(e) that there are other circumstances by reason of which the consent may

properly be dispensed with.

(2) The Court may dispense with the consent of a child to an adoption where it appears to the Court that the child is intellectually incapable of giving consent.

(3) An application may be made under this section by the Chief Executive or a party to the adoption (including the child)

 

 

but in the Bill:

 

Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

113I (3) The Court may dispense with the consent of a child or young person in relation to an adoption order contemplated by this Chapter where it appears to the Court—

(a) that the child or young person is not capable of properly considering the question of consent, or giving such consent;

or

(b) that it is in the best interests of the child or young person that the adoption order be made despite the lack of, or refusal, of such consent.

 

  

Article 12 UNCRC

  1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
  2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

With this Bill, the views of the child are “heard” but the Court is prevented from giving them proper consideration, and their consent to adoption is dispensed with according to their “best interests”.

 

Other limitations on the views of the child being taken into account:

The views of the child regarding contact with siblings and other members of their extended family are required to be included as far as possible in a foster care plan, but there is no protection or safeguard to allow the child to see or hear from the siblings and extended family once they are no longer considered related to due to the adoption order.  The child moves from an order with a care plan where they are required to be consulted to an order with no plan and no requirements to allow contact.

Also there is the potential for lack of informed consent* of the child given the common misunderstandings in general society about what adoption really means. If the child does “agree” there is also the possibility of coercion. There could be the impression from the child’s perspective that they must agree even if they have reservations, especially due to the obvious promotion of adoption from the Department. Skilled, informed, unbiased, independent adoption competent counsellors are needed to assist the child in understanding the implications to be able to give informed consent without duress – and no facility for this is mentioned in the Bill.

 

*Given the lifelong and drastic implications of adoption, many adoptee rights advocates have concerns that a child should not have the option of consenting to this legal arrangement. A child is not considered mature enough to agree to marriage, or to drink alcohol as a minor, and adoption has a substantial effect on their rights and freedoms as adults (although they are currently also given no option to consent when they do reach adulthood).

 

The voice of the parent: The legal status of ‘party’ to the adoption is removed from the parents:

Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

113C (1) (b) a reference in that Act to a party to an adoption will be taken not to include a reference to the birth parents of a child.

 

A blanket removal of the parents as parties to an adoption makes interpretation of the Adoption Act more difficult as ‘Birth-parent’ seems to sometimes be used interchangeably with ‘party’ in the Act.

 

113L – Right of birth parents etc to be heard

(1) In proceedings on an application for an adoption order contemplated by this Chapter, the Court may, on the application of the birth parent or birth parents, or a sibling or siblings, of the child or young person, hear submissions the applicant wishes to make in respect of the child or young person, despite the fact that the applicant is not a party to the proceedings.

 

(2) However, subsection (1) does not apply if the Court is satisfied that to allow the applicant to do so would not be in the best interests of the child or young person.

 

113M – Court to have regard to additional matters

(1) Before making an adoption order contemplated by this Chapter, the Court must have regard to the following matters:

(a) the extent to which the child or young person has formed an attachment to the prospective adoptive parents and any members of their family.

(b) any submissions made in accordance with section 113L;

(c) any other matter prescribed by the regulations.

 

(2) To avoid doubt, nothing in this section requires the Court to seek to give effect to a submission made in accordance with section 113L.

 

(3) The requirements under this section are in addition to, and do not derogate from, any other matter to which the Court must have regard.

 

 

In this type of suit, the child’s best interests should be the determining factor, but this does not mean the rights of the parents should not be taken into account where possible.  Yet in this Bill, the intention seems to be to rule out that possibility. The weight of any case a parent might try to make is first removed by removing their ‘party’ status, then more specifically diluted by 113M (1) and (2) having implications for their right to a fair hearing under Article 14 of the ICCPR:

 

Article 14 ICCPR

 All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

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4. Open adoption is excluded if adoption is from care.

South Australia has no enforceable open adoption in contrast to New South Wales where an ‘open adoption’ adoption plan becomes part of the adoption order. This SA Bill not only removes the parents as ‘party’ to the adoption, it also specifically removes 26A of the Adoption Act 1988, which enables ‘parties’ to engage in an (albeit unenforceable)  “open” adoption in South Australia.

 

The SA Adoption Act 1988 has included what the public understands as ‘Open’ Adoption provisions at Section 26A Arrangements between parties to adoption since 5th October 1997. But these arrangements are “not enforceable in any court and breach of an arrangement or failure to enter into such an arrangement does not affect the validity of an adoption order or of any consent to an adoption,” (26A (7) Adoption Act 1988).

 

Adoption Act 1988, Section 26A

(1)         If a party to the adoption or proposed adoption of a child wishes to enter into an arrangement with another party to the adoption for the provision of information, contact or any other matters related to the welfare of the child, or to vary such an arrangement, the Chief Executive will endeavour to facilitate the making of the arrangement or variation.

(2)         For the purposes of this section, the birth parents and the adoptive parents will be taken to be the parties to the adoption.

(3)         The Chief Executive must ensure that the opinions of the child (so far as they are ascertainable) are taken into account in formulating any arrangement or variation under this section.

(4)         An arrangement may not be entered into under this section in relation to an adopted child who has attained the age of 18 years and an arrangement relating to an adopted child will terminate on the child attaining the age of 18 years.

(5)         The Chief Executive must ensure that an arrangement entered into under this section, or any variation to such an arrangement, is reduced to writing and that copies of the arrangement or variation are provided to the parties to the arrangement.

(6)         The Chief Executive will maintain a register of arrangements entered into under this section.

        (7)         An arrangement entered into under this section is not enforceable in any court and breach of an arrangement or failure to enter into such an arrangement does not affect the validity of an adoption order or of any consent to an adoption.

(8)         This section applies only in relation to children adopted after the commencement of this Act.   

Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

113C (1) (l) “Section 26A of that Act does not apply”.

 

So the parents are not just generally removed as parties, but specifically excluded from making an adoption plan (‘open’ adoption) with the adopters even if they should want to. This is in stark contrast to NSW legislation where it is required that a non-consenting parent be given as far as possible an opportunity to have an adoption plan (‘open’ adoption).

With the powers provided to the Chief Executive and her delegates in this Bill, it’s unlikely much effort will be expended on persuading parents to “choose” adoption for their child in the system, and it’s not clarified whether a “consenting” parent will even be offered the adoption via the Adoption Act 1988, instead of its further restricted and partitioned pathway in the Children and Young People (Safety) Act 2017. If ‘open’ adoption via the Adoption Act is going to be used as the carrot to get parents to agree to adoption in response to the ‘stick’ via the Children and Young People (Safety) Act 2017 (if this Bill is passed) of never seeing their children again, then these parents also need to be made aware that any agreement they make with the adopters will be unenforceable.

By ‘punishing’ the parents for not agreeing to the adoption, this Bill also has the effect of punishing a child who may have gained benefit from contact with their family while growing up. It also abrogates the right of any child in care having their opinions taken into account about such an arrangement.

To get an idea of the scale of concern there should be about this version of ‘open’ adoption or about the rights of the parents and the child-then-adult compare the SA legislation/Bill with that of NSW.

Here is the adoption from care legislation in NSW, which does have enforceable ‘open adoption’ – via adoption plans, and which does legislate support for the parents to be included even if they do not consent to the adoption, and is almost entirely based – appropriately – in the NSW Adoption Act 2000 (not in their Child Protection Act):

NSW Adoption Act 2000

Part 4. Adoption Plans, 50:

Registration of adoption plans

(4)  An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order.

and:

Part 4. Adoption plans, 46:  

(2A) A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child.

 

(2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child.

 

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5.  Timeframe for adoptions

 

The Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

Part 1 – Preliminary

113A – Interpretation

prescribed qualifying period means –

(a) if the regulations prescribe a period for the purposes of this paragraph – that period; or

(b) if the regulations do not prescribe such a period – a period of not less than 2 years.

 

 

How long it will be before an adoption can be applied for by someone fostering to adopt is dependent on the ‘eligibility’ status of the child (they are deemed eligible when they are the subject of an order to 18, which most children currently in care are) and the ‘prescribed qualifying period’. This ‘prescribed qualifying period’ is potentially an extremely short time because the only timeframe stated is ‘not less than 2 years’ – only if the regulations do not state a different time.

 The Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

Part 1 – Preliminary

113A – Interpretation

Eligible child or young person means a child or young person (not being an Aboriginal or Torres Strait Islander child or young person)

who –

(a) is pursuant to an order of the court under this Act or the repealed Act, under the guardianship of the Chief Executive, or another person or persons, until they attain 18 years of age; and

 

(b) has been in the guardianship of the Chief Executive or the other person or persons for not less than the prescribed qualifying period

 

There are no safeguards or clarification here for parents with a disability, including an intellectual, cognitive or psychosocial disability which has been used to justify why they can’t care for their child.   No legislation is included requiring the Chief Executive or delegates to show that parents have been supported in a reunification process if appropriate. This, combined with the potential for a very short timeframe before an adoption order is sought, limits the rights of parents who may be affected by issues beyond their control like:

 

  • socio-economic disadvantage, eg poverty – food, housing issues
  • mental health – depression, anxiety, personality disorders
  • health issues
  • substance abuse
  • disability
  • being very young parents
  • intergenerational trauma
  • being in a recognised vulnerable group, eg. CALD

Article 27(3) of the UNCRC requires that the State provide ‘material assistance and support programmes’ where this is needed to enable parents to care for their children. Such a potentially short timeframe does not allow these programmes to take effect, especially for some disadvantaged and vulnerable groups.

 

Whatever is put into the Children and Young People (Safety) Regulations 2018  will dictate the speed with which any child or young person (who is not an Aboriginal or Torres Strait Islander child or young person) and who is under orders to 18 years of age will be “eligible” to be adopted by an “eligible carer”.

And, as per 113H below, once the adoption application is made the parents (if served) are entitled to only 3 business days notice before the adoption hearing.

 

Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

Part 3 – Orders under Adoption Act 1988

113H – Copy of application to be served on birth parents

(4) The Court must not proceed to hear an application for an adoption order contemplated by this Chapter unless each birth parent served with the application has had at least 3 business days of notice of the hearing.

(5) The Court may, for any proper reason, dispense with service under this section, or reduce the period between service and the time for the hearing of the application.

 

 

Article 2 UNCRC:

  1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

 

  1. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

 

and Article 14 ICCPR

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6. Criteria for eligibility and assessment of adopters

 

Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

Part 2—Eligible carers

113D—Eligible carers

(1) For the purposes of this Act, the following persons are eligible carers in respect of a child or young person:

(a) a person under whose guardianship (whether solely or with another person) a child or young person is placed until they attain 18 years of age by order of the Court under this Act or the repealed Act;

(b) an approved carer in whose care an eligible child or young person (being an eligible child who is under the guardianship of the Chief Executive until they attain 18 years of age) has been for the prescribed qualifying period;

(c) an approved carer, or an approved carer of a class, prescribed by the regulations, in each case being a person who has been assessed in accordance with section 113E as being a suitable adoptive parent in respect of the child or young person and who satisfies any other requirements set out in the regulations for the purposes of this subsection.

 

(2) The regulations may make further provision in relation to eligible carers (including provisions prohibiting or limiting a specified person or class of persons from being an eligible carer).

 

 

The Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

113E—Assessment of suitability of prospective adoptive parents

Before making an adoption order contemplated by this Chapter, the Court must be provided with the results of an assessment of the suitability of each prospective adoptive parent conducted in accordance with any requirements set out in the regulations.

 

113D (1) (c) above refers to ‘an approved carer, or an approved carer of a class, prescribed by the regulations’.    As the SA Children and Young People (Safety) Regulations 2017 do not currently have any sections describing approved carers, this would seem to create an additional option for a new definition of ‘approved carer’ – but with no indication of what the criteria would be, and no clear reason to not have this criteria in the Adoption Act itself.

 

Concerns and questions

There are already comprehensive criteria for adopters set out in the Adoption (General) Regulations 2018 (Part 4 – Prospective Adoptive Parents Register – which contains at Section 10-Assessment report – which includes 17 different criteria to be assessed, plus further sub-headings under those criteria in a report to go with an application for registration).

 

How different are the criteria for adopters that will be added to the Children and Young People (Safety) Regulations 2017? There are currently no requirements set out in those regulations for approved carers, and the information on ‘approved carers’ in the Children and Young People (Safety) Act 2017 in Section 72 to 75, concentrates mainly on reviews, checks and balances – all of which cease on adoption.

 

And if these requirements are not going to be used, after the question of why not, then the next question is what are?

 

Are the criteria these ‘approved carers’ mentioned in 113D (1)(a) and (b) approved on significantly different to the criteria for potential adopters in the Adoption Act? Is this potentially a loosening of the criteria of just who should be allowed to take vulnerable children into their care – care which is then never monitored or followed up by the State? Weren’t these criteria designed to provide some protection to these children?

 

If the requirements in the Adoption Act are not going to be used, why not? What threshold must be reached for the Department to trust the same carers to the extent that ALL of these reviews and safeguards fall away?

 

Are children from foster care less deserving of carers meeting a certain threshold to be considered able to adopt? Is there a “beggars can’t be choosers” motivation behind this difference? Why can’t the criteria for adopters from care be placed within the Adoption (General) Regulations 2018 as modifications there? Surely they cannot be so different when the adoptees end up bound by the same Act?

 

The fact that a child-then-adult came from care to adoption, rather than being supposedly freely given away to adoption should have nothing to do with the criteria used to assess the people that acquire them.

 

A comparison check of the NSW Adoption Regulation 2015 finds it covers criteria and requirements for both ‘Selection of prospective adoptive parents other than step parents, relatives or authorised carers of a child in out-of-home care’ and ‘Selection of authorised carers as adoptive parents of a child in their care’ in depth, and in the same statutory instrument – next to each other at Parts 3 & 4.

 

Surely it is less discriminatory to have the legally assigned families of children-then-adults assessed as far as possible on the same criteria and within the same statutory instrument and legislation if the outcome (adoption) is going to be the same? Especially as this has been shown to have already been done in another jurisdiction by a fellow Liberal government – as most stakeholders are aware, enforced adoption from care in NSW was initiated by Pru Goward, who was at the time a Liberal Minister like Minister Sanderson.

 

Having two different sets of criteria for people who are given a child with no requirement for that child’s welfare to ever be followed up (one set being – probably – a lot less stringent) could be discrimination under:

 

Article 24, ICCPR

  1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

 

Article 26, ICCPR

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

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7.  Possible unforeseen consequence of 113F

‘Eligible carer need not be in a relationship’

 

The Children and Young People (Safety) (Miscellaneous) Amendment Bill 2020

113F—Eligible carer need not be in relationship

An adoption order contemplated by this Chapter may be made in favour of 1 person (who may, but need not, be in a qualifying relationship or a relationship of any kind).

 

Does 113F have the unintended consequence of a scenario where an adoption order is made in favour of one person who is in a qualifying relationship, but there is no legislated requirement that their partner be assessed or required to adopt? Section 12 of the Adoption Act 1988 avoided this with the requirement that:

“where 2 persons are living together in a qualifying relationship, an adoption order will not be made except in favour of both or in the circumstances described in subsection (3)(a).”  (3a specifies the qualifying relationship as being with the “birth” parent or someone who has already adopted the child).

There does not appear to be a replacement clause in the Bill, or in the existing information about ‘approved carers’ in the Children and Young People (Safety) Act 2017 which the Bill relies on. On the other hand, if the intention is that this is correct, have potential consequences for safety of the child been addressed? Nothing is mentioned in the Bill.

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8. Rights relating to culture and ethnic group

 

Vulnerable children who are Culturally and Linguistically Diverse (CALD) Australians are not specifically safeguarded by the Adoption Act 1988, whereas there are safeguards in the Children and Young People (Safety) Act 2017 where cultural maintenance plans (28(1)(b)) are included to protect cultural and identity rights.

 

This is a Bill which respects the cultural rights of Aboriginal and Torres Strait Islander peoples to the extent that they are exempted from the Bill, but ignores the existence of cultural groups other than Aboriginal and Torres Strait Islander peoples whose rights are also enshrined in Human Rights instruments.

 

The statement in the UNCRC Article 30 below includes “a child belonging to such a minority or who is indigenous”. Potentially adoptable children-then-adults are not only denied protections that require recognition and involvement in their community and enjoyment of their cultural identity growing up, but they have their legal heritage “colonised” or usurped and replaced with the heritage of the adopters not only as children but also as adults, and for their future generations.

 

For adoptees, there are not even protections added requiring they be told what their cultural heritage is while they are growing up – let alone their names and parentage. The adoption order legally makes them the same ethnic and cultural group as the adopters, with no option in the Adoption Act for them to consent to this as adults (despite being classed as parties to the adoption ‘contract’).

 

Article 30 UNCRC

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

 

Article 27 ICCPR

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

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 9. Lack of equal protection under the law due to age.

 

In the Adoption Act 1988 at Section 4, (4) the definition of ‘party’ to an adoption includes the adopted child-then-adult, the persons who were the child’s parents immediately before the adoption and the adopters.

 

Despite being a ‘party’ to the adoption, there is no requirement for the adoptee to be advised that they are adopted. There is a version of consent offered only if the potential adoptee is a certain age when the adoption is taken to court. 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 consent, or have their views considered.

 

In the case of adoption, because age is a status 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 (if their consent is not dispensed with by this Bill), and also is the reason they may not be told the adoption occurred, then measures should be taken for the purpose of assisting or advancing this right. As these measures have not been taken in this Bill, then the right to recognition and equality before the law is limited by this Bill.

 

Article 26 ICCPR

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

Article 2 UNCRC

  1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

 

  1. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.

 

The right to non-discrimination is not a passive obligation, prohibiting all forms of discrimination in the enjoyment of rights under the Convention, but also requires appropriate proactive measures taken by the State to ensure effective equal opportunities for all children to enjoy the rights under the Convention. This may require positive measures aimed at redressing a situation of real inequality. (General Comment No 14, (2013) para 41).

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10. The right to information: ‘inhuman and degrading treatment’ and lack of review rights

 

In South Australia, adopted children-then-adults legally do not have the right to their identity information and details of their origins in their developmental years, and beyond. As soon as the adoption order is made – even if they consent to it as a child – their birth certificates are sealed and a new one is issued which cannot be distinguished from the birth certificate of someone who is not adopted.

 

At 18 years old adoptees can request permission to access their birth certificate (if they are aware they are adopted), but this may be denied by the Chief Executive. There is no avenue of appeal or review of this decision in the Adoption Act 1988 if the Chief Executive makes this decision. There is also no timeframe for processing these requests for information and there have been delays for up to two years at a time – whereas information from Foster Care records are required to be provided under similar 30 to 60 day time constraints as other Freedom of Information requests.

 

These procedures are known to cause mental suffering, humiliation, and distress to adopted people. Lack of identity information can have severe impacts on identity formation growing up, on the health and mental health of the adoptee and later their children’s health (with lack of awareness of genetic issues and family medical history as well as the psychological effect), plus the stress and cost of tracing and – if possible – developing relationships with siblings, parents – if alive – and extended family as adults. The Queensland Human Rights Commission defines ‘inhuman and degrading treatment’ as being not necessarily intentional, or physical, and including acts that cause mental suffering, humiliation, anguish or a sense of inferiority.

 

Article 7 ICCPR

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

 

Article 14 (in part) ICCPR 

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

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 11.  The right to impart information and ideas of all kinds

– limited

 

The equal right to freedom of expression for an adoptee is limited in South Australia as it is a criminal offence 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. An adopted person telling their story in a magazine or newspaper could be prosecuted.

 

It is not a criminal offence in South Australia to identify before the public as an adult who has been under Guardianship orders – no matter if it would identify any parties to those orders.

But an adopted adult’s freedom to talk about their own life in the same way every other citizen can is limited by the fact that they are bound by adoption legislation. Whether or not these offences are prosecuted, this legislation exists.

 

The existence of this legislation without outcry (or proactive measures to fix it by those forcing adoption on children-then-adults in the care system) also highlights the overarching foundation of secrecy and lack of recognition of adoptee rights compared to the supposed rights of those who adopt.

 

Adoption Act Section 31 – Publication of names etc of persons involved in proceedings

Maximum penalty: $40 000 or imprisonment for 4 years.

 

Article 19 (in part) ICCPR

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

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12. The right of children in care to follow up welfare checks

is ignored in this Bill.

 

The right to periodic review under Article 25 of the UNCRC is limited by this Bill. The requirement for welfare checks referred to in Article 25, UNCRC for children in care (and ‘care’ includes adoption as per the definition at Article 20, part 3 of the UNCRC) has been ignored. If long-term care orders are used instead, then follow up checks (and a care plan) are required, and the state remains accountable even if the carers are given the majority of the decision-making power.

 

There are numerous and explicit safeguards built into the Children and Young People (Safety) Act 2017 for children and young people under orders in that Act including regular reviews of Carers (Section 72 to 75) and the Children’s Charter of Rights in Care. There are a contrasting lack of safeguards for the child in the Adoption Act 1988 itself.   This is because the original intention of the Adoption 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 (in non-kinship adoption) a biological member of the caring family group disappear when the final adoption order is made.

 

An abused or murdered adopted child is not recognised in data collection as they are indistinguishable from children who have never been in the care system. Despite many adopted people who could have told their horror stories to the Royal Commission into Institutional Responses to Child Abuse, adoptees were excluded.  This is because of the convenient interpretation of the legal fiction that adoption creates a parent-child relationship – rather than being a form of care as defined in the UNCRC Article 20.

 

“You see I understand what it is to be beaten, abused, suffocated, set alight, and tortured as a child. Both of my adoptive parents inflicted and or exposed all of us to physical, mental, and sexual abuse. No one stepped in to stop it.”

(from adopted person, Kerri Saint’s submission to the Queensland Child Protection and Other Legislation Amendment Bill 2020  Submission 11).

 

Article 20 UNCRC

  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.
  2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
  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. When considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.

 

Article 25 UNCRC

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.

 

 

by Sharyn White, BA (Psych)

Secretary, Adoptee Rights Australia (ARA) Inc

 

ARA Submission to the Inquiry into Responses to Historical Forced Adoptions in Victoria

 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:

  1. 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:
  2. 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).
  3. 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).
  4. 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).
  5. 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).
  6. 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).
  7. 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)

ARA Submission on the Torres Strait Islander Adoption Bill

Link to Inquiry

31st 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 10th 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: admin@adopteerightsaustralia.org.au
Website: www.adopteerightsaustralia.org.au

 

 

 Contributors:

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

 

 

 

 

 

 

 

ARA Submission to the Qld Legal Affairs & Community Safety Committee

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: admin@adopteerightsaustralia.org.au
        Website: www.adopteerightsaustralia.org.au

 

Contributors:

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