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Complaints

Bringing them Home - Chapter 22

Part 6 Contemporary Separations

Chapter 22 Adoption

There can be little argument that the `welfare principle' should apply in cases of custody of Aboriginal children. The problem, however, is who decides what is in the best interests of an Aboriginal child and what standards are used in reaching this decision (Australian Law Reform Commission 1982 page 17).

Overview

Adoption is the transfer, generally by order of a court, of all parental rights and obligations from the natural parent(s) to the adoptive parent(s). In Australia, legal adoption is relatively recent. It was first introduced in 1928 in Victoria, for example. Until very recently adoption involved near-total secrecy, partly in deference to the desire of adoptive parents to present the child as their own and partly because of the stigma of illegitimacy which typically attached to adopted children. The birth parents were not entitled to information about the adoptive parents, including the child's new family name, and there were safeguards to ensure that the birth parents would never interfere in the child's upbringing. The child was not entitled to information about the birth parents.

Non-relative adoption is a much rarer phenomenon today than it was even 25 years ago. Total adoptions in Australia halved from 6,773 in 1969 to 3,337 in 1980 (Healey 1993 page 30). By 1994-95 the figure had fallen to 535, 42% (224 children) of whom were adopted from overseas (Angus and Golley 1995 page 1). In Victoria in 1971-72, 1,488 children were placed for adoption. Ten years later the number was 287 (Lancaster 1983 page 27). In NSW in 1971-72 the welfare department arranged 3,882 adoptions. By 1991 the number had dropped to 154 (Healey 1993 page 30).

The reasons are clear and relate primarily to the significant reduction in the stigma and legal liabilities of illegitimacy, increased availability of contraception and abortion to control fertility and the availability of social security support for sole supporting parents. There has been a corresponding decline in the placement of Indigenous children for adoption. Moreover, because of the intensive work of Aboriginal and Islander child care agencies and the recognition of the Aboriginal Child Placement Principle, the majority of Indigenous children who are placed for adoption are placed with other Indigenous families.

As the following discussion indicates, however, the best results for Indigenous children - namely, security within their own families and communities or with significant continuing contact - are achieved in those jurisdictions where the ACCP is given legislative status and Indigenous child care agencies are most closely involved in placement decisions.

Adoption and Aboriginal values

Aboriginal people's attitude to adoption differs significantly from that of Torres Strait Islanders. Aboriginal traditional values and Law oppose adoption. It is `alien to Aboriginal philosophies' (Randall 1982 page 346) and `incompatible with the basic tenets of Aboriginal society' (NSW Law Reform Commission 1994 page 192).

Adoption is alien to our way of life. It is a legal status which has the effect of artificially and suddenly severing all that is part of a child with itself. To us this is something that cannot happen even though it has been done (Butler 1989 page 28).

This fact was recognised by the 1991 report of the Western Australian Adoption Legislative Review Committee.

It is commonly recognised by the community that the adoption of Aboriginal children is alien to traditional Aboriginal child-rearing practices. It is also acknowledged that in the past, numbers of Aboriginal children were removed from their families and adopted into white families. The Committee endorses the growing community belief ... that this practice should not continue.

The Committee has therefore recommended that in the few instances when adoption is appropriate for an Aboriginal child, it should only be by persons from the child's community who have the correct kinship relationship or when this is not possible, by other appropriate Aboriginal person(s) (page 14).

The draft policy statement of the NSW Department of Community Services on the placement of Aboriginal children for adoption (dated 1987) makes a similar acknowledgement.

Such a radical severance of parental ties is however alien to Aboriginal culture and it is acknowledged that in the past inappropriate use of adoption has caused great suffering for Aboriginal children and their parents.

Adoption and Torres Strait Islander values

Customary adoption is reported to occur in the islands of the Torres Strait, as elsewhere in the Pacific, and among Torres Strait Islander communities on the Australian mainland. It involves the permanent transfer of care responsibilities and is a `social arrangement' which serves to entrench reciprocal obligations thereby contributing to social stability. Traditionally the chosen adoptive family was in the same `bloodline' as the birth family. However, with `inter-racial' marriage now more frequent, adoptive parent(s) may be related only by marriage. There is also a growing practice of giving a child to family friends rather than relatives. As in general Australian law, customary Torres Strait Islander adoption makes the child fully a member of the adoptive family (Ban 1993 page 4).

In the eyes of Australian law, customary adoptions are private adoptions. They are not prohibited but they are not legally recognised either. Difficulties arise in a number of contexts.

  • The relinquishing family may seek the return of the child, for example when there may have been a misunderstanding as to the permanence or otherwise of the transfer of care (Ban 1993 page 5).

  • The child's birth certificate will not be amended. The certificate identifies the birth parents rather than the adoptive parents as the parents of the child. When the child obtains a copy, he or she may find out for the first time that his/her `real' name is not the name being used (Ban 1994 page 8).

  • The child's inheritance rights could become complex and confused, even denied. When a parent dies intestate `[d]isputes have arisen between adopted siblings and natural siblings over their parent's estate' because the Public Trustee has not recognised the adoption (Ban 1994 page 8).

From the perspective of increasingly progressive adoption practice, there are several concerns which would need to be addressed before a recommendation could be made for legal recognition of customary adoption.

  • A formal assessment of the suitability of the adoptive family has not been made (except, of course, by the relinquishing parents).

  • The basis of customary adoption is reciprocity rather than the best interests of the child.

  • The child might be improperly viewed as a chattel.

  • The child's family connections are, by custom, kept from him or her.

Islanders have also identified problems with the contemporary practice of adopting a child outside the extended family. Custody disputes may be more prevalent and there are risks of adoptive children marrying kin in ignorance of their natural relationship.

Laws, practices and policies

Adoption is effected by a court order in all Australian jurisdictions except Queensland where the adoption order is made by the head of the welfare department. The welfare department or authorised non-government adoption agency, having secured the informed consent of the birth parent(s) and located and approved a `suitable' adoptive family, assists the adoptive family to apply for an adoption order. Even where parental consent has been obtained, the court must consider relevant matters before making the order. It is not a foregone conclusion. Where the birth parent(s) have not consented the court may, in defined circumstances, dispense with her (or their) consent. The practices of both adoption agencies and courts are relevant, therefore.

Although all Australian social welfare ministers and administrations endorse the Aboriginal Child Placement Principle in the adoption context, the statements and implementation of the Principle vary significantly. There are three basic approaches.

  1. Incorporation of the ACPP only in policy directives.

  2. Incorporation of the ACPP in legislation.

  3. Incorporation of both the ACPP and the role of Aboriginal child care agencies in legislation.

Recognition in policy only

The ACPP is incorporated at the level of policy only in New South Wales, Tasmania, Western Australia and Queensland. Policy directs officers of the department recommending a placement. It does not necessarily direct the work of non-government adoption agencies. Unlike legislation it cannot direct the court ultimately making the adoption order. Moreover, the NSW policy has been in draft form since 1987 and has never been formally adopted.

The NSW draft policy does not set out the ACPP. It merely directs that Aboriginal children surrendered for adoption be placed with Aboriginal families. In Tasmania the policy restates the ACPP in the form adopted by the 1986 Social Welfare Ministers' Conference. It further directs departmental officers that the Aboriginal Family Support and Care Program is to be involved in the assessment and planning for all Indigenous children.

In WA the policy which is relied on to address adoption applies clearly only to the situation where the child is in need of care and protection and substitute care is being considered. It sets out the ACPP and requires that an Aboriginal child only be placed in a non-Aboriginal family or institution with the approval of the Director General. Such a placement `should contribute to the best possible retention of the child's relationship with his parents and community, including regular contact'. The policy directs departmental officers to consult the Aboriginal child care agency (Yorganop) about placement issues in the metropolitan area.

Queensland legislation does not reflect the ACPP. The Adoption of Children Act 1984 (Qld) simply directs the Director, who makes the adoption order, to place a child from any ethnic background with an adopter from a similar background, unless such an adopter is unavailable or the welfare and best interests of the child, in the Director's opinion, would not be best served by adoption in a family of the same background (section 18A).

The Act does not require preference to be given to the child's extended family, with further options in order being another person in the correct relationship to the child, another member of the child's Indigenous community and, finally, another Indigenous family as the ACPP requires. Regulations made in 1988 direct attention to the ability of the prospective adoptive parents to `develop or maintain the child's indigenous ethnic or cultural identity' as one criterion for assessing the suitability of particular adoptive parents (Schedule 6).

Queensland departmental policy spells out the ACPP preferences in a way very similar to that of WA. Unlike the WA policy, however, it specifically refers to adoption as raising issues distinct from child protection. Thus, in the case of a proposed relinquishment for adoption, the parent(s) is to be counselled by an Indigenous worker and counselling is to `explore alternatives to adoption, including family support, custody and guardianship options'. There is no provision for the involvement of Indigenous agencies.

The survey of Queensland welfare authorities commissioned by the Royal Commission into Aboriginal Deaths in Custody found that the Aboriginal Child Placement Principle had not been fully or comprehensively implemented across Queensland due largely to the lack of proper monitoring. There was concern that some departmental officers were unaware of the policy (O'Connor 1990).

Statutory recognition of ACPP

The remaining States and the Territories spell out the Aboriginal Child Placement Principle in their adoption legislation. South Australia, the Northern Territory and the ACT express a preference for placement other than adoption for Indigenous children.

In SA the court must be satisfied that adoption is preferable to guardianship in the best interests of the child before making an adoption order. This provision makes adoption an order of last resort. Once it has been decided that adoption should proceed, the order must be made in favour of a member of the child's Aboriginal community who has the correct relationship with the child. Only if there is no such person willing and approved to adopt the child can an order be made for adoption by some other Aboriginal person. If the court intends to authorise the adoption of an Aboriginal child by a non-Aboriginal person, it must be satisfied that there are special circumstances and that the child's cultural identity will not be lost as a result (Adoption Act 1988 section 11). The relinquishing parent can ensure that a relative adopts the child by limiting consent to adoption only by a relative (section 15(4)). Even where consent is general, however, the ACPP in section 11 will apply.

The ACT legislation prevents an adoption order being made at all in the case of an Aboriginal child unless the court is satisfied that it is not practicable for the child to remain in his or her parent's custody or in the custody of a `responsible person' who is a member of the child's Indigenous community. The court also has to consider whether the choice of adoptive parents has taken into account both the desirability of the child being in the custody of an Indigenous community member and the desirability of the child being able to keep in contact with his or her birth parents and extended family and his or her entire Indigenous community (Adoption Act 1993 section 21).

The NT provision is very similar while additionally making explicit reference to Aboriginal customary law (Adoption of Children Act 1994 section 11). The court has a discretion to determine that custody within the extended family or with people who have the correct relationship with the child is not consistent with the welfare and interests of the child. The Act sets out the considerations relevant to the exercise of this discretion (Schedule 1). They include the principles that it is preferable for children to be placed in families having the same ethnic and cultural origins as the birth parent and, with respect to Aboriginal children, `the desire and effort of the Aboriginal community to preserve the integrity of its culture and kinship relationships'.

Statutory recognition of ACPP and role of AICCAs

Victoria goes further than the other States in providing more comprehensively for the involvement of Aboriginal organisations in the decision-making on adoption placements for Indigenous children. Indeed, Victoria incorporates further features which the Inquiry recommends should be adopted universally.

The Victorian Adoption Act 1984 has been promoted by the Secretariat of National Aboriginal and Islander Child Care (SNAICC) as a model for the rest of Australia. The quality of this Act owes a great deal to the efforts and pioneering work over many years of the Victorian Aboriginal Child Care Agency.

  1. The Act itself states that `adoption is absent in customary Aboriginal child care arrangements' (section 50(1)).

  2. The relevant provisions are said to be enacted in recognition of Aboriginal self-management and self-determination (section 50(1)).

  3. The court is not to make an adoption order in respect of an Aboriginal child unless satisfied,
    • that the consenting relinquishing parent(s) has received counselling from a gazetted Aboriginal agency or has expressed in writing the wish not to receive counselling,
    • that the wishes of the parent(s) regarding the religion, race or ethnic background of the proposed adoptive parents have been considered in the selection of those parents, and
    • that the proposed adoptive parents are members of the same Aboriginal community as the relinquishing parent(s) or one of them is.

  4. If a member of the same community is not `reasonably available', then the adoptive parents, or one of them, must be a member of an Aboriginal community. If such parent(s) is not reasonably available then another family can be approved, provided a gazetted Aboriginal agency approves of the choice.

  5. The relinquishing parent's consent and the court's adoption order can be made on the condition that the birth parent(s), other family and other community members have a right of continuing access to the child (sections 37 and 59; see also section 59A).

  6. The Department is obliged by law to inform an Indigenous child of his/her Aboriginality when he/she reaches 12 years of age (section 114).

The role of gazetted Aboriginal agencies, notably the Victorian Aboriginal Child Care Agency, is further strengthened by departmental policy (Standards in Adoption 1986). This requires both departmental and non-governmental adoption agencies to maintain consultation with the Aboriginal agency during all stages in the placement of an Aboriginal child. The Aboriginal agency must be consulted before any placement of an Aboriginal child, even when the proposed adoptive parents are Aboriginal (something left open by the Act). Finally, the policy makes clear that the Aboriginal agency has a right of veto over the proposed adoption of an Aboriginal child by non-Aboriginal applicants.

Numbers and effects

The following table summarises the data available on the adoption of Indigenous children in each State and Territory during the 1990s. In the five year period at least 60 Indigenous children were adopted (full SA figures are not available). One in every three of these children was adopted by a non-Indigenous family.

Adoptions of Indigenous children between 1 July 1990 and 30 June 1995

State

Number of children
Adoptive families
NSW
35
16 to non-Indigenous families + 1 to an unknown family (ie ethnicity unknown)
Victoria
0

WA
7
1 to a non-Indigenous family
Queensland*
15
1 to a non-Indigenous family
SA
?
1 to a non-Indigenous family
NT
3
1 to a non-Indigenous family
Tasmania
0

ACT
0

Source: NSW Law Reform Commission Research Report `Aboriginal Child Placement Principle' 1997, Appendix L.

* Queensland data supplied to the Australian Institute of Health and Welfare shows 14 adoptions of Indigenous children only eight of whom were adopted by Indigenous families. However, Queensland states the information in the table is more reliable.

The reason for placement with non-Indigenous families is known for only four of the 16 NSW adoptees so placed. All four were State wards. The Aboriginality of two of the children was only traced late in the adoption process and their placement with non-Indigenous families followed consultation with Aboriginal workers. The other two were aged 16 and 18 years respectively, chose not to identify as Aboriginal and consented to their own adoptions (NSW Law Reform Commission 1997). The birth parent(s) of the South Australian child adopted into a non-Indigenous family consented to the adoption. The Queensland child was placed with a non-Aboriginal family at the request of the Aboriginal birth mother who has continuing contact with her child (NSW Law Reform Commission 1997).

In 1994-95 alone, 12 Indigenous children were adopted by non-relatives. Five of these children were adopted by non-Indigenous people. One non-Indigenous child was adopted by an Indigenous person (Angus and Golley 1995 page 24).

The harm which can accrue to Indigenous children in `inter-racial' adoptive families has been recognised for almost two decades in Australia.

The problems of identity confusion and alienation appear to be related to those situations which place the child in limbo. On the one hand the child senses he is not fully accepted by the white community into which he has been adopted, and on the other hand he is isolated from his own Aboriginal community. What tends to fill the gap then of isolation from his own community are the often negative stereotypes of Aboriginal people commonly portrayed in the media, literature and in some instances by the adoptive family. Through constant exposure to this conflict the child inevitably becomes alienated from both cultures (Atkinson 1983 page 165).

There is evidence, both from within Australia and from comparable countries, that inter-racial adoptions are more prone to breaking down than intra-racial adoptions. The South Australian Aboriginal Child Care Agency estimated in the late 1980s that 95% of Aboriginal child/non-Aboriginal parents adoptions broke down and that 65% of these breakdowns occurred during adolescence or later teenage years `when their adoptive parents were unable to cope with their problems of alcohol abuse, offending behaviour, drug abuse, depression, self-destructive behaviour, emotional stress and identity crisis' (Butler 1989 page 29). Especially predictive of future breakdown caused by the child's distress are parental denial or denigration of the child's Aboriginality, racial prejudice including harassment and taunts faced by the child at school which is not treated seriously by the parents and denial of contact between the child and Aboriginal role models (Atkinson 1983).

Aboriginal children who are brought up by white families frequently face identity problems when they reach adolescence. White parents cannot understand their experiences and may reject the child or fail to help him resolve questions of identity and conflict between black and white cultures (Homes for Blacks 1976 page 161).

The case of James Savage (birth name Russell Moore) is illustrative.

Savage was taken from his young Aboriginal mother shortly after birth [in 1963] ... Unknown to his Aboriginal family, when only four days old, he was placed with the Savages, a white Australian couple, who subsequently adopted him and then moved to California when Savage was six and to Florida several years later. His adoptive family returned to Australia when Savage was seventeen, leaving him to fend for himself in the United States. By the time of his murder conviction he already had a considerable adult and juvenile record dating back to his early teens, as well as a drug and alcohol problem.

[Family friends testifying at his trial stated] that Savage was disciplined more than his adopted brother and sister, that he seemed afraid of his adoptive father, and that he seemed out of place as a black person among whites ... [Psychiatric expert evidence was given to the effect that he was substantially impaired emotionally and had a personality disorder to which drug and alcohol abuse had contributed] (Cronin 1992 page 15).

In possession of this evidence, the jury which convicted James Savage recommended life imprisonment in preference to the death penalty. He remains in prison in Florida, not to be released for 25 years.

Evaluation

Self-determination

The Victorian model gives Aboriginal agencies an entitlement to be consulted at all stages in the consideration of adoption of an Indigenous child and a right of veto over a proposed placement with non-Aboriginal adoptive parents. It is the strongest implementation of the principle of self-determination in adoption practice. Other jurisdictions recognise the importance of consultation with Indigenous agencies and, provided those agencies are adequately resourced, could readily take the additional step of entrenching the role of those agencies in the placement of Indigenous children.

A difficulty may arise in relation to children not identified as Indigenous by the relinquishing parent. The Aboriginal Child Placement Principle and the involvement of Indigenous agencies do not come into play until a child relinquished for adoption is identified as Indigenous. In Tasmania there is no formal definition of Aboriginality for this purpose. The department relies on the Aboriginal Family Support and Care Program to identify Aboriginal children. This is problematic, however, when a relinquishing parent does not identify the child as Aboriginal and also insists on the confidentiality of the adoption process. This would make it impossible to call on the Program for advice and assistance.

In Queensland, Victoria, Western Australia, South Australia (if, as expected, the definition in the Children's Protection Act 1993 (SA) is used) and the ACT the familiar three-pronged definition of `Indigenous' is used: a person is Indigenous if he or she is of Indigenous descent, identifies as Indigenous and is accepted as such by the Aboriginal or Torres Strait Islander community. In the case of a young child or baby, identification by the parent is substituted for self-identification. In Queensland, an Indigenous agency may be consulted, but only where there is no parent or other relative to provide the identification. In light of the relinquishing parent's right to confidentiality, this means that an Indigenous child will not be treated as such where the relinquishing parent does not identify as Indigenous herself or himself or does not identify the baby as such or where a non-Indigenous relinquishing parent does not notify the department that the child's other parent is Aboriginal or a Torres Strait Islander.

The practical problems are not entirely overcome by the alternative approach taken in NSW and the NT. There, self-identification and identification by the relinquishing parent are not aspects of the definition of Aboriginality. Instead a child is Indigenous if descended from an Indigenous person. The difficulty remains that the department often relies on information from the relinquishing parent as to the heritage of the child.

Legislation could require the department or non-government adoption agency to establish to the best of its ability the cultural heritage of every child surrendered for adoption. This positive duty would authorise the department or agency to breach the mother's confidentiality to the extent needed to trace her own and the father's background, possibly by making enquiries through an Aboriginal Children's Service.

Non-discrimination

Failure to appreciate different child-rearing values in Indigenous societies leads non-Indigenous social workers and others to dismiss as neglectful the common practice of shared parenting. In the context of adoption it also leads adoption agencies to ignore the rights of Indigenous extended family members to have a say in the placement of the child and to dismiss the possibilities of placement orders less permanent than adoption in favour of the extended family and of adoption by an extended family member.

In Aboriginal culture, children are the responsibility of the extended family and not just the biological parents alone. Even under normal circumstances the extended family plays an important role in the upbringing of Aboriginal children. Where the biological parents cannot or do not provide for their own children's care, the maintenance of care is guaranteed through the extended family structure (WA Adoption Legislative Review Committee 1989 page 24).

The exclusion of the unmarried biological father and his family from the adoption decision, especially when the father's relationship with the birth mother was publicly declared, is viewed with dismay. Adoption legislation historically only required the consent of the biological father if he was legally married to the birth mother. If not, the biological father need not even be informed of the child's relinquishment for adoption.

The Australian Law Reform Commission recommended in 1986 that Aboriginal customary law marriages should be recognised for the purpose of requiring the consent of both parties to the adoption of their child (page 196). Traditional marriage now entitles the biological father to have a say in Victoria, SA and the NT. However, no jurisdiction formally provides for other family members to be consulted on the relinquishment decision.

Before my son's birth and adoption I had been living in a defacto relationship with the child's Mother Gloria since [early 1990] through till [early 1992] during which time we had a son together named Peter and upon her leaving me in [early 1992] to live in a 2ND defacto relationship ... she was already pregnant with my 2nd son Andrew ...

At the time of my 2nd son's birth and adoption I had no knowledge of either his birth nor his adoption; because [two weeks after his birth] during a private discussion with Gloria she informed me that the child had died, therefore I feel wilfully & knowingly she deprived me of the knowledge and at the time the choice in the matter of adoption, deliberately lying to me for her own ends without consideration for family ties between Peter and Andrew, being full brothers.

If, at the time of birth, I had been informed of Andrew's existence and that Gloria did not intend to keep him, then I myself would have applied for full custody of my son ...

Confidential submission 9, Queensland: father Aboriginal, mother non-Aboriginal; Andrew was adopted by an Aboriginal family.

The Queensland Department advised the Inquiry that,

... in the case of a child whose parents were not married to each other at the conception of the child, and in relation to whom there is no other guardian by virtue of s. 6 of the Act, the consent required for the adoption of the child is that of the birth mother.

However, this is not to say that the birth father is not considered and consulted by the Department in relation to the custody and guardianship of the child.

Wherever possible, the Department attempts to ascertain the identity of the birth father of the child, and what his wishes are in relation to the child's future. The identity of the birth father is, however, often totally dependant on whether the birth mother wishes to, or will, identify him. Birth mothers are encouraged to discuss this with the birth father of their child ...

The information forms [received by the Department prior to approval of Andrew's adoption] contained the birth father's name and the information that the birth mother had not informed the birth father about the birth. The forms also contained the information that the birth mother had told family and friends that the baby had died. The forms do not specifically mention whether the birth mother had originally told the birth father about the pregnancy or whether she intended to tell the birth father himself that the baby had died.

The birth father was not contacted about the child or the adoption (document on file, confidential submission 9).

The full involvement of Indigenous child and family service agencies in placement decision-making is the best safeguard of equity for Indigenous children and their families. The entrenchment in legislation of the Aboriginal Child Placement Principle, with its declaration that the best interests of Indigenous children are typically best served by their remaining in the Indigenous community, preferably in their own families and communities, would further protect them from the potentially discriminatory effects of placement in non-Indigenous families.

The assessment of prospective Indigenous adoptive families is another area in which discrimination is likely to occur. The qualifications and procedures applying to prospective adoptive parents can deter and even disqualify a high proportion of Aboriginal adopters.

It is essential that the roles of recruiting, assessing, training and supporting Indigenous adoptive parents and, in rare cases where it is in the child's best interests, non-Indigenous adoptive parents for an Indigenous child are taken on by Indigenous community-based children's and family services agencies. The following summary of Indigenous concerns raised at the First Australian Conference on Adoption in 1976 can be qualified 20 years later by reference to departmental cross-cultural training initiatives and employment of Indigenous officers. However the central analytical point remains valid.

Current adoption law and practice reflects the values of white professional middle class society and is totally unresponsive to the needs of Aboriginal children requiring care. Criteria adopted for the selection of parents disqualify most Aborigines and reflect underlying values and assumptions which are often diametrically opposed to those characterising Aboriginal society. For the Aboriginal child growing up in a racist society, what is most needed is a supportive environment where a child can identify as Aboriginal and get emotional support from other blacks. The supportive environment that blacks can provide cannot be assessed by whites and is not quantifiable or laid down in terms of neat, easily identifiable criteria. Criteria adopted by Social Welfare Department which relate to wealth, material possessions and employment reflect `standards' in the dominant society. Such standards are not accepted by blacks and are not considered to be adequate substitutes for love and unqualified acceptance as an Aborigine (Homes for Blacks 1976 page 163).

Aboriginal people maintain that they are uniquely qualified to provide assistance in the care of children. They have experienced racism, conflicts in identity between black and white and have an understanding of Aboriginal life-styles ... These people ... are in a unique position to understand the needs of Aboriginal children and have a breadth of experience and empathy with Aboriginal children that few professional social workers could claim to have ... Thus control of placement of Aboriginal children by blacks should not be dependent on blacks possessing white man's qualifications, but should be in recognition of their experiences which enable them to determine what is in the best interests of each child (Homes for Blacks 1976 page 164).

Legal marriage between the adoptive parents was long a pre-requisite and remains so in some jurisdictions. The requirement has been relaxed in NSW by treating the traditionally married couple as de factos (section 19) and in Victoria (section 11), SA (section 4) and the NT (section 13) by recognising tribal or traditional marriage as qualifying the partners to adopt.

The standard application procedure usually includes `making application in the approved form' and paying an assessment fee.

First, few aboriginal families apply through the formal channels for adoption of a child. The procedure for applying to adopt or foster a child is unnecessarily bureaucratic and aborigines are alienated by the process of form filling, numerous interviews and home visits. They object to the imposition of white middle class values and standards imposed by social welfare officers, which produce in them feelings of inadequacy and inferiority.

Second, the criteria adopted in each of the states reflect values of the dominant society and are often indiscriminantly applied to all persons seeking to adopt or foster a child, whether the child is white or of racial origin.

The criteria are alien to aboriginal values and lifestyle and few aboriginal families meet them all (Sommerlad 1977 page 170).

A focus on Aboriginal values and practices can neglect the quite different values and customs of Torres Strait Islanders. It is potentially discriminatory to include Torres Strait Islanders, in legislation, policy and practice, under the rubric `Aboriginal'. Their different values are less likely to be accorded respect.

Cultural renewal

Children are the most precious of cultural resources. Adoption practice which emphasises their retention in their communities will best enable those communities to secure their cultural survival. The Aboriginal Child Placement Principle directs adoption agencies to prefer people who have the appropriate cultural relationship with the child.

Coherent policy base

Adoption practice in relation to Indigenous children needs to be consistent with Indigenous family welfare practice generally. There remain significant differences within jurisdictions in relation to child welfare and adoption on key matters such as whether the Child Placement Principle is entrenched in legislation and what role is played by Aboriginal and Islander child care agencies. In NSW for example the Principle is entrenched in welfare legislation but not in adoption legislation. In South Australia gazetted Aboriginal agencies play a role in welfare placements but not in adoption placements.

Adequate resources

Two key resource issues arise in this context. The most significant is the resourcing of Indigenous agencies,

  • to consider the situation of each child referred fully: including thorough research into the child's and parents' background and family and community connections,

  • to recruit, train and provide continuing support to prospective Indigenous adoptive parents,

  • to counsel prospective relinquishing parents: including tracing the child's father and his family to ensure they are consulted and being able to access family support information as needed.

As discussed in Chapter 21, AICCAs are inadequately resourced to perform these roles as effectively as needed.

The second resource-related issue is that of the training provided to adoption decision-makers, notably departmental officers, workers in non-government adoption agencies, judges and, in Tasmania, magistrates. All require thorough induction in the principles underlying the legislation and departmental policy relating to the placement of Indigenous children. The skills needed by the departmental officer and adoption agency include recognising an Indigenous child, knowledge of local Indigenous culture and family relationships, ability to involve relevant Indigenous agencies from the start of the process and through all stages, sensitivity to the impact of the history of forcible removals on Indigenous people's contacts with welfare officers, and a commitment to the principle of self-determination. Judges dealing with Indigenous adoptions, like judges in other situations involving Indigenous people, require training in Indigenous culture, values and relationships as well as Indigenous history, especially the history and impacts of forcible child removal, if they are to perform their roles adequately.

Conclusion

Adoption is contrary to Aboriginal custom and inter-racial adoption is known to be contrary to the best interests of Aboriginal children in the great majority of cases. The table above shows that adoption of Indigenous children has been reduced to or almost to nil in jurisdictions where the Aboriginal Child Placement Principle is entrenched in legislation and welfare departments and adoption agencies are required to work with Aboriginal and Islander child care agencies when placing Indigenous children. Where the Principle finds its only recognition in departmental policy, adoption of Indigenous children continues.

Graham

I was adopted as a baby by a white European couple. They were married at the time. They couldn't have children and they'd seen the ads about adoption and were keen to adopt children.

There were seven of us altogether. They adopted four people and had two of their own. The first adopted person was Alex. He was white. The next one down from that is Murray who was American Indian. Next down from that was me, Graham. The next person down from that was Ivan and they were the five who were adopted into this white family. The next two after that were their own.

My adopted mother loved children and that's why she wanted to do this so-called do-gooder stuff and adopt all these children. After that, from what I can gather is she did the dirty on my adopted white father and they broke up. He walked out and started his own life, and she was left with seven children. Alex was 10 years older than me and he had to take on many of the roles.

Then from there on in, one by one we were kicked out at the ages of 13. It wasn't her own family members [the two youngest] that were kicked out. It was the five that were adopted. I must say Alex never got kicked out, although he suffered. He had to look after us and he couldn't go out and do what a teenager did and go roller skating or ... So he never got kicked out because she needed him to look after us basically.

Twelve, thirteen was the age at when she decided like we're uncontrollable, we've got this wrong with us, we've got that wrong with us, we've got diseases, we're ill all the time, we've got mental problems, we've got this, we've got that. She used to say that to us, that we had all these things wrong with us.

Murray was the first to go. When he turned 13 he got booted out because she made out that he had this wrong with him again. He stole things, he did this, he did that. He went to an institution. So seeing that we're Indigenous we all had the double effect: one was adoption and one was institutionalisation.

They took Murray. He went to [a Queensland boys' home]. Murray got caught up in the prison scene because he started stealing and whatever. He was angry. He was in the Home for two years. He got involved in a few stealings and he had to go to Westbrook institution which is a lock-up.

There's a difference between care and protection and care and control. Where Murray first went into care and protection and then he had to go into care and control.

After that the next person to go wasn't me. I wasn't quite 12, 13, the uncontrollable age. Ivan, who was the one aged below me, wasn't adopted properly. He was sort of fostered in a way. There was a legal technicality there. So because he wasn't adopted properly, another family took him over and he's still with them today [now an adult].

So I didn't realise my time was coming, but basically when I hit the ages of 12 and 13 I was next to go. She met this new fellow. She wouldn't marry him until I was out of the scene. She basically said, `Oh Graham is uncontrollable'. So she got rid of me as best way she could without her feeling that she was doing wrong.

Confidential evidence 441, New South Wales: Graham was placed in short term respite care but his adoptive mother did not retrieve him. The court stepped in and an order for care and protection was made in 1985. He was placed in the same boys' home as his brother Murray. He was 13 years old. He remained in the Home until he turned 18. Having failed almost every subject in secondary school, Graham is now about to complete a university degree.


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Bush Family, Snake Bay, Melville Island

Courtesy Heide Smith.



I don't want to have kids, not in this society. `Cause I reckon it's cruel to have a child in this society. If I was taken away, my mother must have been taken away from her mother, and if I was taken away from my mother, of course my child would be taken away from me.

Confidential evidence 166, South Australia: woman fostered as a baby in the 1960s.