INTRODUCTION

11.1 Inter-country adoption is arguably the most sensitive and complex aspect of adoption in Australia today. It involves all the issues relating to domestic adoptions together with a range of additional issues. It involves immigration law and policy, as well as international law. Because it involves the removal of the children from their country of origin, questions of foreign law and policy also arise. Children are being placed transnationally and often inter-racially so that questions relating to racial, ethnic, cultural and linguistic heritage need to be addressed. Understanding and balancing all of these issues can be a complex task.

11.2 Inter-country adoption has been associated with often intense controversy. Some see it as a form of exploitation in which wealthy couples from First World countries, unable to adopt children there, seek to satisfy their own needs by treating Third World countries as a resource to which they can turn. Others see inter-country adoption as a humanitarian act, both towards individual children and towards the other countries involved, and as a form of overseas aid. There are numerous intermediate positions. Another special feature of inter-country adoption is the important role played by organisations specially formed for the purpose of supporting Australian adoptive parents of overseas children and the relatively limited role played by authorised adoption agencies in the work associated with these adoptions.

11.3 The discussion of inter-country adoption is divided into three chapters. This chapter deals with current practices in inter-country adoption, focusing on the parent support groups. Chapter 12 views inter-country adoption from an international perspective, looking at some of the international concerns that have arisen in relation to the practice and describing the international conventions that have been drafted to combat these concerns. Chapter 13 examines how New South Wales practice complies with international standards and addresses specific problems of which the Commission has become aware in the course of its review.

CURRENT PRACTICES IN INTER-COUNTRY ADOPTION

11.4 Inter-country adoption in New South Wales is organised by the combined efforts of the New South Wales Department of Community Services and eight adoptive parent support groups. The Commonwealth Department of Immigration and Ethnic Affairs also plays a role but this is limited to determining whether a child will be allowed to migrate to Australia. This section will describe the work of the various players in the adoption process, focusing in particular on the parent support groups .

11.5 The Commission undertook a specific research project to investigate the nature and role of parent support groups in New South Wales. The Commission sent a survey to all parent support groups requesting information on the legal status of their organisation, its financial accountability, the services provided to members and the nature of the overseas adoption program the group supports. All parent groups but one replied with details of their group and its programs. In addition to information supplied by the survey, the Commission received separate submissions from some parent support groups and inter-country adoptive parents. The Commission also liaised with the Department of Community Services and some of their independent social workers involved in inter-country adoption. Both the Department and the independent social workers provided detailed information on the practice of inter-country adoption within New South Wales.

11.6 Most of the information gathered has been included in the Discussion Paper in order to stimulate informed discussion on support groups. Existing groups in New South Wales all operate in different ways depending on the overseas program they support and their own convictions on adoption practice. There is minimal accountability in relation to these groups - they are not licensed, they do not report to the Department and their practice is not governed by legislation. Little is known about the methods of each group except by those who are active participants in them. The Commission considers it important to document its research so that people can respond to the Discussion Paper with a better understanding of the role support groups play.

THE DEPARTMENT OF COMMUNITY SERVICES

11.7 The role of the Department of Community Services is central to all adoptions in New South Wales, including inter-country adoption. Couples must be approved by the Department before they can adopt a child from overseas in an inter-country program. Private adoption agencies such as Centacare, Barnardos and the Anglican Adoption Agency are not involved in inter-country adoption.

11.8 The Department produces information newsletters and runs information meetings where they advise applicants for inter-country adoption to join a parent support group. Applicants complete an “Expression of Interest” which is then evaluated by the Department for inclusion in the inter-country program. Couples who are accepted attend a two day seminar followed by a formal application for adoption. If the application is successful, a series of interviews with a social worker begins, taking three to nine months. The social workers are not employed full-time by the Department but work on contract and are funded by the fees paid by the applicants. The social worker forwards his or her report to the Department for the Adoptions Section Leader to make the final decision on whether a couple should be approved. If a couple is approved their assessment is sent to the overseas country, usually directly, but sometimes through a parent organisation. It is a matter for the sending country to allocate a child to the couple. This may take many months and may depend on the number of earlier applicants in the parent group. Once the allocation has been made, the overseas agency will notify the Department directly or via a parent group of the allocation of a child to a couple. Couples are informed of the allocation either by the Department or the parent group and an allocation interview occurs. If the couple are happy with the allocation, they sign an “Agreement and Undertaking” to accept and support the child. They then travel to the relinquishing country and pick up the child.

11.9 The Department is contacted by the couple on their return to Australia, and a series of quarterly post-placement interview begins. Usually four visits over a year are needed before an Australian Order of Adoption can be obtained through the Supreme Court of New South Wales. The Department will do the legal work in relation to the Australian adoption order if the couple so requests. Usually couples engage a private solicitor to arrange the Australian adoption.

11.10 Once an Australian adoption order is obtained the Department may have no further involvement with adoptive families. However, if the child came from a country such as Sri Lanka, India or Bolivia, which require post-placement reports for a number of years after the adoption, the Department will seek undertakings from the adoptive parents that they will forward reports and photographs to the Department at particular intervals.

DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS

11.11 The Department of Immigration and Ethnic Affairs is responsible for determining whether a child will be allowed to enter Australia and in some circumstances whether he or she will be granted Australian citizenship.

11.12 Before travelling overseas to pick up their child, applicants apply to the Department of Immigration and Ethnic Affairs for a visa for their child. Applicants apply for a Class 102 (Adoption) Visa and Entry Permit¹ which will grant their child permanent residence in Australia. Class 102 visas will only be granted if: the child is under 18; the prospective adoptive parents, one of whom is an Australia citizen or permanent resident, have undertaken in writing to adopt the child; the Department of Community Services has approved the adoptive parents; and the overseas authorities have approved the departure of the child for adoption in Australia in the custody of the adoptive parents.²

11.13 If these primary eligibility criteria are met, the child’s application will be referred to the Migration Medical Clearances Unit in the Department of Human Services and Health. Inter-country adoptees must meet the health criteria set out in the Migration (1993) Regulations 1992 (Cth) before they can be granted a visa. These criteria include that the adoptee is not suffering from tuberculosis or any other serious communicable disease or condition that would be a threat to public health³ or a danger to members of the Australian community.⁴ Further, the child must not have any disease or condition that would require significant care or treatment, that would involve community resources in short supply or would result in the child being a significant charge on public funds.⁵ These last three criteria may be waived if a Commonwealth medical officer is of the opinion that the child “is unlikely, as a result of a disease or condition, to prejudice the access to health care of any Australian citizen or Australian permanent resident” and the Minister is satisfied that undue harm or undue cost would be unlikely to result to the Australian community if the visa were granted.⁶ If a child is refused a visa on health grounds the adoptive parents may appeal to the Migration Internal Review Office for an internal review, the Immigration Review Tribunal for an external review and in the event both these appeals fail, to the Minister.

11.14 Once all the requirements of a Class 102 (Adoption) Visa and Entry Permit have been satisfied, the child will be granted a visa through the Department of Immigration’s offices in the child’s country of origin. As mentioned above, the visa confers permanent residency on the child and allows the adoptive parents to bring the child into Australia. In order to obtain Australian citizenship however, the adoptive parents must adopt the child under New South Wales law. In accordance with the Australian Citizenship Act 1948, a child adopted under Australian law automatically acquires citizenship if he or she is in Australia as a permanent resident at the time of the adoption and if one of the adoptive parents is an Australian citizen.⁷

11.15 A declaration of the validity of an overseas adoption order can be obtained through the Supreme Court,⁸ thus obviating the need to re-adopt the child in Australia. This option is available in limited circumstances where the adoptive parents were resident in the overseas country for 12 months or more or were domiciled there, and the overseas order puts them in the position of parents and gives them a superior right than the natural parents in respect of custody of the adopted child.⁹ A declaration of validity of an overseas adoption order does not automatically confer Australian citizenship on a child and the adoptive parents must request a grant of citizenship from the Department of Immigration. The Department of Immigration’s submission to the Commission indicates that as a matter of policy, citizenship will be granted after presentation of evidence that the overseas order has been declared valid in an Australian court.¹⁰ As the majority of adoptive parents are not domiciled in or have not lived in their child’s country of origin for a year, the option of having the overseas adoption order validated is available to only a small number of adoptive parents.

PARENT SUPPORT GROUPS

11.16 While the Department of Community Services exercises considerable control over inter-country adoption, the parent groups also play a significant role. Some parent groups have been operating longer than the Department in inter-country adoption and their members have many years of experience. In relation to specific programs, it is only the parent groups that really understand the overseas process and this knowledge is a source of considerable power in the interplay between the Department, adoptive parents and parent groups.

Background

11.17 Most parent support groups were established by couples who had adopted children from overseas and who wanted to share their knowledge of the adoption process with prospective inter-country adoptive parents. The groups were also intended to provide a forum for the adoptees and adoptive parents to remain in contact with one another. This role remains the consistent theme in the parent support groups although some groups are now also committed to aid programs through which children remaining in the sending countries receive assistance.

11.18 There are currently eight active parent support groups for inter-country adoption. They are:-

• Aid for the Children of Brazil (ACOB) - Brazil
• Australian Families for Children (AFC) (Administration of adoption assistance program)
• Australians Caring for Children (ACC) (Parent Support Group) - Colombia, Bolivia, Chile, Peru, Costa Rica, India
• Australian Society for Inter-country Aid Children (NSW) (ASIAC) - Korea, India
• Chilean Adoption Support Association (CASA) - Chile
• Friends of FANA - Colombia
• Illawarra Adoptive Parents Association (IAPA) - Taiwan, Thailand, Korea, Sri Lanka
• International Childrens Aid Ltd (ICA) - India, Sri Lanka, Fiji.

Organisation and accountability

11.19 The parent groups have varying degrees of financial and organisational accountability. Some are registered charities, incorporated organisations or registered companies. Others are simply voluntary groups. The latter are not audited, nor are annual accounts prepared and available to members or to the Department.

11.20 While the status of registered charity, registered company or incorporated organisation imposes financial accountability on some parent groups, none of the groups are accountable in relation to the work they actually perform. They are not private adoption agencies like Centacare, Barnardos and the Anglican Adoption Agency who are accountable to the Director-General.¹¹ The parent support groups are not required to report to any higher authority and the Director-General of the Department of Community Services has no formal control over their practices.

11.21 This lack of accountability is a result of the absence of legislative recognition of the parent support groups. That is, the Adoption of Children Act 1965 (NSW) makes no mention of parent support groups in the framework it establishes for the organisation of adoptions. Accountability is usually achieved through legislation. That is, an act either establishes an organisation or acknowledges existing organisations, and provides for a hierarchy that renders the organisations accountable. The Adoption of Children Act 1965 (NSW) has not done this in relation to parent support groups.

11.22 The absence of legislation in relation to parent support groups also means that their functions are not spelled out or enumerated in a clear fashion. This is in marked contrast to private adoption agencies whose functions are governed by Regulations under the Adoption of Children Act 1965. The way in which the parent support groups work and the programs in which they are involved are determined by the members themselves. They are not required to be staffed by trained adoption workers, they have no particular standard of service which they must provide and they have no code of ethics with which they must comply. As a result, there are few guides to the tasks the parent groups are entitled to perform and the manner in which they must perform them.

11.23 The Department is, however, in a position to impose some general conditions on the operation all parent support groups. These include an obligation to notify the Department of all allocations for the Department’s approval, confidentiality of all adoption documents and provision of program details to applicants and the Department. These conditions are not legal requirements. They are merely conditions that the Department has developed in the course of its working relationship with adoptive parents who are bringing children from overseas countries.

Departmental endorsement of parent support groups

11.24 When applicants approach the Department seeking to adopt a child from overseas it is the practice of the Department to direct applicants to one of the parent support groups. Before being accepted into the inter-country adoption program, applicants are required to obtain a written statement from a parent support group to the effect that there is a reasonable chance that a child will be placed with them within the following two year period.

11.25 Many applicants see this procedure as a de facto endorsement of the parent support groups by the Department. The Commission has been advised that applicants believe that the groups are in some way vetted by the Department. In fact the Department has little knowledge of the organisational character of the parent support groups, does not receive annual reports and has no knowledge of the financial integrity of any of the groups.

11.26 In recommending that applicants join parent support groups the Department is attempting to encourage applicants to mix with other families who have adopted children from overseas. It appears to be widely accepted that inter-country adoptees should be encouraged to mix with one another so that they are aware that inter-country adoption was an experience they shared with others from their country of origin. It is also through such groups that the cultural heritage of the children is preserved to some degree.

11.27 The problem of the Department requiring applicants to join a parent support group without really being aware of the true nature of the groups, is typical of the anomalies in inter-country adoption. The Department and parent support groups have devised a working relationship over the years to fill a legislative void. The parent support groups need the Department to approve their programs and the Department needs the support groups to provide much of the organisational backup. Difficulties arise, however, owing to the lack of a legislative framework for the support groups to work within. The Department must in effect endorse the parent support groups without having any real knowledge of, much less control over, their function.

Interaction of parent support groups, the applicants, the overseas agency and the Department

11.28 Inter-country adoption is not a process for which there is a simple description that covers all programs and countries. The interaction of the parent support group, applicants, overseas agency and the Department varies according to which parent support group is involved and the country to which the application is being made. It is difficult for applicants coming to the system to understand who is responsible for each step in the application process.

11.29 The variations among all the programs are too complicated to detail here. It is sufficient to state the basic framework and provide a few examples of the programs to illustrate their differences.

11.30 Briefly, the adoption process involves the transmission of three sets of documents:

• the Department’s documents (including the social worker’s assessment of the applicants);
• the applicants’ personal documents (for example, copies of birth and marriage certificates, letters from bank managers and employers); and
• the notice of allocation of a child to particular applicants issued by the sending country.

11.31 The differences in the programs lie in who has the power or responsibility to transfer these documents to another party to the proceedings.

Example 1

The Department sends its own documents to the overseas agency directly. The applicants also send their personal documents to the overseas agency directly. The overseas agency then notifies the Department of the allocation of a child and the Department passes this information on to the applicants.¹²

Example 2

The Department sends its own documents to the overseas agency directly. The applicants also send their personal documents to the overseas agency directly. The allocation notification is sent by the overseas agency to the parent support group which then notifies the Department and the applicants.¹³

Example 3

The Department and the applicants send their respective documents to the parent support group. The parent support group checks them and sends them on to the overseas agency. The overseas agency notifies the parent support group of the allocation and the parent support group passes this on to the Department and the applicants.¹⁴

Example 4

The Department and the applicants send their respective documents to the overseas agency. The allocation notification is sent from the overseas agency to the parent support group via the parent group’s agent in the donor country. The parent support group notifies the Department who then notifies the applicant.¹⁵

11.32 Example 2, 3 and 4 demonstrate the way in which parent support groups can play a significant role in the adoption process. In all of these examples it is the parent group that receives the allocation information from the overseas agency or government department. This is illustrative of the fact that in most instances the parent groups, not the Department, are known to the sending country’s adoption authorities. This is a result of the contacts that individuals in parent groups have made through the adoption of their own children and through the assistance they have given to other couples in adopting. While these contacts are invaluable for the organisation of adoptions, they are also a source of power for the parent support groups. The Department is restricted in its supervision of the adoption process by this parent group power. In some instances the Department has had difficulty securing all of the relevant information about the allocation from the parent support group so that it is in a position to give an informed approval of the allocation.

11.33 Example 3 is the standard practice of only one parent support group. It is atypical in that it allows the Department no direct contact with the overseas agencies. It also gives the parent support group power to check and vet Department documents. The appropriateness of this practice will be discussed in Chapter 12.

Fees charged by parent support groups

11.34 Applicants in inter-country adoption pay a considerable amount of money in fees to facilitate an adoption. Fees are charged by the Department of Community Services, the overseas agencies and by the parent support group. Fees charged by the parent support group fall into four categories:

• annual subscription fees;
• sponsorship fees;
• communication/administration fees; and
• donations to orphanages.

11.35 Annual subscription fees are charged by most groups, either for membership or for newsletter subscription. They are approximately $30.

11.36 Sponsorship fees for children who remain in sending countries are payable to some parent support groups. These fees are voluntary, except in the case of Sri Lankan adoptions. Sri Lankan legislation requires a lump sum payment of approximately $2,000 at the time of the adoption to support a child in a government institution.¹⁶

11.37 Communication and administration fees are charged by most groups to cover the expense of telephone calls, faxes and courier services required to organise an adoption. This fee varies from $120-$700.

11.38 Donations to orphanages may be made by the applicants directly to the orphanage or through the parent group. Such donations are usually not compulsory.

11.39 Some organisations require that fees are payed in advance of placement - either communication fees, sponsorship fees or orphanage donation. In these situations the refunding of fees can be difficult to achieve, as the following cases described to the Commission indicate.

Case A

A couple realised that their chances of a child being placed with them through program A were diminishing and they therefore wished to transfer to program B operated by another parent group. They were informed by the parent group of program A that the $5,000 which they had paid to the parent group at the time their papers were sent to Program A was not refundable.

Case B

A couple who were being assessed for a non-specific child became aware of a child who had some special physical needs available for adoption through a parent support program. They were then assessed for this child and the child allocated to them. At the time of their acceptance of the allocation they were required to forward $15,000 to the overseas agency which recoups from adoptive parents the cost of medical and other care provided to the child. When this child was initially denied a visa to Australia on medical grounds the applicants were told by the parent support group that their $15,000 was non-refundable.

Services provided to members by parent support groups

11.40 The parent support groups provide a variety of services to their members ranging from preparation of documents to post-adoption support. Each group has developed in an individual way according to the needs of the members and the energy of its committee. There is no prescribed formula.

Pre-adoption services

11.41 Information meetings. Most parent support groups provide an information meeting for new members to orient them to the nature of the organisation and to the procedures which they utilise for the adoption of children. Parent support groups vary in the amount of information provided to new members regarding the structure of the organisation and its operations.

11.42 The Commission is aware that new applicants are sometimes concerned by certain groups’ information meetings. Applicants frequently comment that some parent groups are not willing to discuss with them the number of applicants who are waiting for children via the parent support group programs. There is the perceived assumption that if applicants really want a child they will be prepared to pay their membership fees and fund raise for an indefinite period in the hope they might have a child placed with them. The Commission has received evidence that some parent groups give applicants the impression that they can use their influence to help them obtain a child earlier than other applicants - if they, the applicants, are committed fund raisers.

11.43 Language lessons. Only one parent support group, Australian Families For Children (AFC), provides language lessons for persons wishing to adopt through their program. AFC have made familiarity with the Spanish language mandatory for applicants wishing to adopt from Colombia. IAPA provide a Thai language cassette tapes for applicants wishing to adopt older Thai children. ASIAC (NSW) and IAPA are both associated with Saturday Korean language schools for children adopted from Korea.¹⁷

11.44 Adoption seminars. Some of the parent support groups provide adoption seminars for applicants of their programs. These seminars, in addition to those conducted by the Department, utilise professional adoption workers and adoptive parents as speakers.

Documentation assistance

11.45 Preparation of personal documents. Apart from obtaining an authorised home study from the Department of Community Services and their approval as suitable adoptive parents for an overseas child, applicants must also prepare an array of other documents specified by the overseas country from which they wish to adopt.

11.46 Personal documents usually include a copy of police records, certified copies of birth and marriage certificates, letters from bank managers and employers. Some countries also require a report from a registered psychologist. In these instances the parent support groups usually can recommend a psychologist with whom they have previously had contact.

11.47 The parent support groups vary in the intensity with which they are involved in the preparation of personal documents. Some groups simply provide applicants with a list of documents which are required and have no further involvement. Others require that all of the documents be submitted to them for checking before they are forwarded by the parent group to the overseas agency. Some applicants question the privacy implications of handing over their tax file numbers, drivers licence numbers, personal certificates and even copies of their very personal life stories to a volunteer group of people without all of the safeguards of an adoption agency. They frequently want to know what happens to the information.

11.48 The checking of departmental documents. Under the agreement between the Department and AFC, AFC has access to the Department home study with the applicants written permission and is permitted to forward the home study and any other Departmental documents to the overseas agencies with whom AFC deals.

11.49 After receiving the home study (assessment), AFC checks all Departmental documents for errors of fact, spelling and issues which, in AFC’s opinion, are likely to cause offence or concern in the agency to whom the papers are sent.

11.50 Undoubtedly this process assists the acceptance of the documents in the foreign country. However, it raises the question of whether this vetting of the home studies by an intermediary is appropriate.

11.51 AFC has issued guidelines for the home studies stating that they cannot explore the consequences for a child being raised in a racist area or any reference to future contact by the adoptee with birth families. The accredited social workers who work for the Department have often been asked to revise their reports to comply with AFC guidelines. Given that both of the identified issues would be of definite interest to a placement adoption worker in the overseas country. Failure of assessment reports in this way may not be in the best interests of the child.

11.52 Another concern of the Commission is that children and birth parents separated by inter-country adoption should be in a position, as much as is possible, to benefit from the provisions of the Adoption Information Act 1990. In this regard the overseas adoption agencies should be made aware of the provisions of the Adoption Information Act 1990 and be informed that applicant adoptive parents have been required to consider the implications of this Act.

11.53 Forwarding of documents to the overseas country. A number of parent groups assist applicants by forwarding the personal documents to the overseas agency with a covering letter of introduction from the parent support group. This assistance is appreciated by applicants without a knowledge of international couriers and bureaucracy.

Adoption assistance - the allocation of a child

11.54 The process by which children available for adoption are located and then adopted by members of parent support groups is complex and varies from one group to another. Many of the links between overseas agencies and parent support groups have been developed through personal contact over many years. The overseas agencies have thus developed some personal confidence in the parent support groups. The Department does not have the same personal links. It is, therefore, understandable that many of the overseas agencies make allocations direct to the parent support group although it may be questioned as to why the parent support groups do not use their personal relationships to encourage the overseas agency adoption workers to make direct contact with the Department. This then would reinforce the “support” nature of the parent support groups and not present an “active” role in the adoption process.

11.55 Advocating to agencies for the placement of children with parent support group member. At a minimum all of the parent support groups lobby and advocate to particular overseas agencies for the placement of children with members of the parent support group. Such advocating is often, but not always, accompanied by financial assistance to the overseas agency or a related agency.

11.56 Suggesting the “most suitable” and “next on the list” applicants. Although none of the parent support groups have any qualified adoption workers available to them, most are in some way involved in the allocation of children from foreign agencies. This may simply be the parent support group advising the overseas agency which member applicants are the “next on the list”. However, it is not uncommon for a parent support group to be approached by an overseas agency to determine who are the most suitable applicants for a child. The Commission is concerned about whether parent support groups, lacking knowledge and experience of adoption practice, and with only a social knowledge of the applicants, are in a position to make acceptable decisions on “matching” a child with suitable adoptive parents.

11.57 It is at this point, of either nominating the “next on the list” or the “most suitable” applicants, that some applicants believe that the parent support groups, who operate this type of program, have unreasonable power to manipulate the allocation of children - to either ensure that some applicants receive children ahead of other applicants or to delay the allocation of a child to others. Most applicants, with applications in programs conducted in this way, believe they cannot “rock the boat” in any way or their chances of getting a child will be jeopardised - they simply assist in fund-raising and comply with the requests of the parent support group.

11.58 The alternate view put by some of the parent support groups is that their organisations are co-operative in nature. They are not simply service providers. The organisations were established to cooperatively assist members to adopt children and provide for children who remained in institutions. It is a matter of considerable concern to some of the parent support groups that new applicants join the groups and expect that a child will be provided to them without them participating in any of the voluntary activities of the group. To older group members the participation in the activities of the group is an integral aspect of belonging to the group and they resent the attitude of some applicants that they “deserve” a child simply because they are “next on the list”. From their perspective it is not fair for applicants who have done nothing for the group to be allocated a child through the group’s programs ahead of applicants who have worked hard on group projects.

11.59 Distribution of allocation information. Frequently it is the parent support group which receives the allocation details of a child and then passes this information on, sometimes unaltered and sometimes in abbreviated form, to the Department for confirmation of the allocation.

Case 1

A child from a difficult social situation was allocated by an overseas agency to a couple in New South Wales. The initial information was conveyed from the overseas agency, via telephone, in English, to the parent support group who then provided abbreviated information to the Department and more extensive information to the potential adoptive parents. Written information from the agency would not be provided until the couple had agreed to accept the child. A preferable procedure, perhaps, would have been for the initial information to have been sent from the overseas agency to the Department who could then have explored with them whether the allocated couple was in fact a suitable “match” for the particular child. The Department would then have been in a position to explore the consequences of accepting the child with the applicants and to seek more information if it was required. As it was, the parent support group assumed the role of “adoption broker”, a role for which they were unqualified. The parent support group rejected all suggestions that the Department have direct contact with the overseas agency.

Case 2

A newborn child was offered to a couple directly by the parent group, without first having the allocation confirmed by the Department. If they had accepted the child a written allocation information would have been faxed to the Department. The child was showing evidence of developmental difficulty which the applicant parents were informed by their paediatrician was serious in nature. The applicants were told by the parent support group that if they did not accept this child they would not be allocated any of the other children who were being placed by the parent group at that time. The applicants were asked by the parent group to say nothing to the Department otherwise they would lose their chance of adopting a child. The parent support group was annoyed when the Department intervened, having been advised of the distressing situation by the applicants. In this instance the parent group again attempted to act as an “adoption broker” without the applicants being given the opportunity to explore the consequences of the proposed adoption for the child or for themselves.

11.60 In both of the above scenarios the Department was to receive the “official” allocation material after an “unofficial” allocation had been arranged by the parent support group. The Department officers suspect this process happens regularly with applicants being told not to alert the Department. This does not occur with the programs through which the Department receives allocation material directly from the overseas agencies.

11.61 Another practice that can lead to the “unofficial” allocation of a child to adoptive parents is the use of photographs of “unadoptable” children. Some parent groups show prospective parents profiles of children in need of parents and applicants can indicate if they would like to adopt one of the children. The Department uses a similar method for children with special needs born in New South Wales. The problem with parent groups engaging in this activity is that the parent group is not necessarily aware of the applicants’ parenting capacity; members of the parent group have no training to assess whether the people they are encouraging to adopt a particular child can in any way meet the needs of that child. The Department and its independent social workers are placed in a difficult situation when they are faced with applicants who have “fixed” on a child but who the Department is not confident would make good adoptive parents for the child in question.

11.62 Solutions to the problems raised in relation to the distribution of allocation information and parent groups indicating the “most suitable” applicants or those “next on the list” are discussed in Chapter 12.

11.63 The use of adoption agents in overseas countries. The term “agent” has many meanings in inter-country adoption. It may be the director of an authorised adoption agency or it may be a lawyer or adoption broker who is recommended to adoption applicants by a parent support group.

11.64 A number of parent support groups speak of “people on the ground.” These are agents of the parent support group who learn of a child available for adoption, approach an authorised adoption organisation with details of a member of the parent support group and attempt to secure endorsement for the placement of the child with that member family. There is the assumption in this form of placement that any family will love any child. There is little or no form of matching of the child’s needs to the adoptive parents’ parenting capacity and resources. The recording of the child’s social and medical history is rarely undertaken.

11.65 In two recent cases the Department is aware that a lawyer, recommended by a parent support group, acted on behalf of hopeful adoptive parents in Court proceedings considering the removal of children from the care of their birth parents. On both occasions the lawyer/agent is believed to have advocated for the placement of the children with his “clients”.

11.66 In cases where an individual agent/lawyer is involved it is hard to ascertain that children are freely available for adoption. It is difficult not to see such cases as private adoptions which do not comply with international law.¹⁸ These situations would be avoided if all allocations were made by authorised adoption agencies/orphanages directly to the Department of Community Services. All such allocations would be for children in the care of the agencies - either in institutions or foster care. Allocations made on behalf of agents or directly from agents would not be acceptable.

11.67 In their response to the Commission’s survey some parent groups indicated that they had “representatives” in a number of countries and that these representatives liaised with the government adoption authorities and transmitted the allocation information to the parent group. It is not known who these “representatives” are, to whom they are responsible or what qualifications they possess to enable them to undertake duties on behalf of the parent group.

Placement assistance

11.68 Once the allocation of a child is made, applicants must prepare documents for the overseas adoption process and make travel and accommodation arrangements. Parent groups often help applicants with these tasks, as well as organising familiarisation tours of the overseas country and providing an “agent” to assist the applicants when they arrive. All of these roles are regarded by applicants as very helpful.

11.69 Problems have arisen with one parent support group that requires adoptive parents to purchase their tickets through a nominated travel agency. The Commission is aware of one couple who wished to use travel vouchers they had won in a competition to pay their airfares. They were not permitted to do so by the parent group, which had already booked travel and accommodation for the applicants without first consulting them, with the nominated travel agent. The travel agent provides the parent group with a number of free fares according to how many tickets they purchase as a group. These free fares are used by committee members of the parent group to travel to the donor country and maintain personal contacts with the adoption agencies.

Post-placement assistance

11.70 Adoption support. All of the parent support groups provide ongoing support to applicants after the placement of a child with them. The nature of this support varies from group to group. It includes adoptive parent and child playgroups, language schools for the children, social events to facilitate parents and children staying in touch with one another and telephone advice when adoptive parents experience difficulty with their children.

11.71 Documentation of the adoption. AFC requests that adoptive parents send it copies of all of the documentation received from the overseas country in relation to the child. This includes the final court order made in the overseas country. The Commission is aware that some applicants privately express concerns about the need for a parent support group to have and retain this information about their children. On occasions the court documents detail the distressing reasons why a child was removed from the care of the birth parents. The applicants do not question the right of the Department to be provided with these documents and to retain them for the child but they do question the appropriateness of the documents being provided to the parent support group and retained by them.

11.72 Post-placement reports. Usually the Department forwards three post-placement reports to the overseas agency in the 12 months following the child’s arrival in Australia. Some countries require more frequent reports and for a longer period of time.¹⁹

11.73 As with the home study assessment reports, AFC has an arrangement with the Department that the post placement reports will be forwarded through that parent group to the overseas organisation through which the child was adopted.

The processes in the sending countries

11.74 The processes in sending countries are an area of concern in inter-country adoption. This is not to suggest that sending countries are inherently likely to engage in questionable adoption practices; it is simply to say that New South Wales can have no control over or even real knowledge of the adoption process overseas.

11.75 Lack of knowledge and control over the adoption process raises two main difficulties. The first is that other country’s adoption practice may differ from our adoption practice. This presents a dilemma when New South Wales’ participation in inter-country adoption effectively condones adoption practice that has been deemed unacceptable here. Adoption of children in the United States and Chile can present this difficulty. Some states in America allow consent to be given within 48 hours of the child’s birth. Chile allows lawyers of adoptive parents to appear in court to argue for the placement of the child with the adoptive parents when the child is not necessarily free for adoption. Both of these practices are deemed unacceptable by New South Wales adoption legislation so that approving them through inter-country adoption is anomalous.

11.76 The second difficulty arises from lack of knowledge of the overseas process. At the simplest level the Department of Community Services has no detailed understanding of overseas adoption legislation or practice. In many cases the Department must accept at face value what the parent support groups claim is standard overseas practice. In addition to this, the Department has no way of knowing if irregularities have occurred in the arrangement of the adoption. The Department is too removed by distance and time from the overseas adoption process to be in a position to discover if the child was genuinely relinquished, orphaned or abandoned.

Procedures of current concern

11.77 In some countries that relinquish children to Australian couples, it is possible that the central authority is so poorly staffed that it would not be in a position to allocate identified children to specific adoptive parents. Consequently, the Department believes that agents of the parent groups identify children living in institutions, born in homes for unmarried mothers or whose birth parents are considering adoption and by an unknown process of matching the child to applicants from a list supplied by the parent group, the possible adoption is brought to the attention of the central authorities. It is only at this point that the home study (the official assessment of the applicants), is considered. Neither the agent nor the administrators of the “unmarried mothers homes” in which the children and their mothers usually reside have access to the home study.

11.78 Once the authorisation of the central adoption authority in the particular country is obtained, the details of the child are faxed to the parent support group. The faxes are then forwarded to the Department of Community Services for approval of the allocation. The faxes are often of poor quality and no originals of the central authority authorisation are received by the Department. It is doubtful if a “child study” has been prepared in the consideration of the adoption and only minimal information is supplied to the Department and adoptive parents at the time of allocation.

11.79 With this type of allocation there are concerns about the “matching” process being undertaken in an ad hoc manner. Consideration may not have been given to alternative care options for the child, nor may consideration have been given to the interests of the child in not being permanently separated from his or her birth parents.

11.80 The Department is also concerned with countries such as Chile where independent adoption agents, who are aware of children who may have been separated from their natural parents for a variety of reasons, approach a court for a care order for the children in favour of adoptive parents. The agent faxes a copy of the care order to Australian prospective adoptive parents and requests that they travel to Chile for the adoption hearing. The adoption may be opposed by the natural parents and the government authority ordinarily responsible for adoption, and yet the court may still make an order in favour of the adoptive parents.

11.81 In these circumstances the fundamental, internationally agreed principles on inter-country adoption are being violated.²⁰ Inter-country adoption is not intended to be a contest between the natural and adoptive parents in order to determine who should have the child. It is a last option for care of children who cannot be suitably cared for in their own country.

Ex-national adoptions

11.82 This form of adoption involves an Australian resident who is a national of another country adopting a child from the country of his or her nationality. From a cultural perspective it is desirable for a child who cannot be raised within a family in his or her country of birth to be raised with a family from that culture. Very often it is suspected by the Department that there would be families in the country of origin who would have adopted the child. The most notable example is children adopted from America.

11.83 Ex-national adoptions in these situations are more of a service to adoptive couples than provision of care for a child who would not have the opportunity to be raised in a family in the country of origin. With ex-national adoption the Department frequently does not know whether children have been obtained through procedures which safeguard the interests of the child and birth parent, although the Department always writes to the responsible welfare authority in the foreign country to confirm its procedures. The Department also requires some form of allocation information about the child prior to notifying the Department of Immigration and Ethnic Affairs of the Department of Community Services’ approval of the adoption.

11.84 The Department is also aware that some of these applicants in all probability will not tell the child of his or her origins. If the child retains the nationality of his or her country of origin there is no need for the adoptive parents to obtain an Australian order of adoption and the child is denied any rights to knowledge of his or her adoption under the provisions of the Adoption Information Act 1990.

1. Migration (1993) Regulations 1992, Schedule 2, Part 102.

2. Migration (1993) Regulations 1992, Schedule 2, reg 102.321(3).

3. Migration (1993) Regulations 1992, Schedule 4, reg 4007(1)(a).

4. Regulation 4007(1)(b).

5. Regulation 4007(1)(c).

6. Regulation 4007(2).

7. Australian Citizenship Act 1948 (Cth), s 10a.

8. Adoption of Children Act 1965 (NSW), s 47.

9. Section 46. See Re M and the Adoption of Children Act (1989) 13 Fam L R 333 and Lowe and Others v Minister for Immigration, Local Government and Ethnic Affairs and Another (1988) 12 Fam LR 513 for a discussion of s 46 and 47.

10. Department of Immigration and Ethnic Affairs Submission (6 September 1993) at 2.

11. Adoption of Children Act 1965 (NSW), s 13.

12. This is the process used for adoptions from Thailand and Korea.

13. This is the process used for adoptions from Taiwan.

14. This is the process used for AFC’s Colombian program.

15. This is the process used for ICA’s Sri Lankan program.

16. Sri Lankan Adoption of Children (Amendment) Act 1992, s 5(A)(b).

17. The Saet Byol Korean School in Sydney and the K-Club in Wollongong.

18. The International Convention on the Rights of the Child only condones inter-country adoption as a final option after care with the child’s birth family and care within the child’s country have been ruled out: article 21(b). Further, the Hague Convention on International Co-operation and Protection of Children in Respect of Inter-country Adoption (which is not yet in force) expressly prohibits contact between adoptive parents and birth parents before it has been established that the child is free for adoption, “due consideration” has been given to in-country placement, free and informed consent to adoption has been given and the adoptive parents have be judged as eligible and suitable: Art 29.

19. For example, Sri Lankan Adoption of Children Ordinance 1941, as amended by Adoption of Children (Amendment) Act, s 10c, requires quarter-yearly reports until the adoption is “legally confirmed” in the receiving country, half-yearly reports with photographs for the following three years and yearly reports until the child is ten.

20. See discussion of international law in Chapter 12.