PROVISIONAL PROPOSALS FOR REFORM
1. Children adopted through an inter-country adoption program should enjoy safeguards and standards equivalent to those that exist for children adopted within New South Wales.
2. The Department of Community Services should control all aspects of inter-country adoption in New South Wales in accordance with Australia’s international obligations.
3. The general discretion to assess applicants who do not meet all the gazetted criteria (Adoption of Children Regulations, reg 20(2b)) should be removed in favour of a discretion to assess and approve a couple who meet the specific needs of an identified child.
4. The Adoption of Children Act should be more explicit in its stipulation that adoptive parents understand the issues arising from raising an inter-country adopted child. The selection criteria for inter-country adoption should include the parents’ ability to:
- understand and be sensitive to the issues involved in adopting a child from a different culture and/or race;
- foster a positive perception in the child of his or her culture, racial identity and heritage; and
- help the child should he or she encounter racism or discrimination in school or the wider community.
5. Children should not be placed in families if they are in between the ages of children already in the family, as the risk of breakdown is too high.
6. The changing of first names of inter-country adoptees should be discouraged.
7. Possibilities for care, other than adoption, should be considered for older children from other countries.
8. The Department of Community Services should cease charging a fee for extra post-placement assistance.
9. The gathering of adoption information should become an immediate priority for all those involved in inter-country adoption. Adoptive parents and support groups should collect as much information as possible about children, including identifying information, at the time of allocation and pick-up. Adoptive parents and support groups should be aware that the information belongs to the children and that it must be gathered so that children can exercise their rights under the Adoption Information Act 1990 when they are adults.
POINTS FOR FURTHER DISCUSSION
To what extent should mental illness preclude a person from being a suitable applicant for adoption?
INTRODUCTION
13.1 In the previous chapters the practice of inter-country adoption in New South Wales has been discussed, followed by a description of the international conventions that govern inter-country adoption. The first part of this chapter will draw the previous discussions together and appraise how far New South Wales’ inter-country adoption conforms with international standards. The second part of the chapter will focus on particular areas of concern which do not necessarily pertain to New South Wales’ compliance with international law, but which have come to the Commission’s attention in the course of the review.
NEW SOUTH WALES COMPLIANCE WITH INTERNATIONAL LAW
13.2 The Hague Convention on International Co-operation and Protection of Children in Respect of Inter-country Adoption (the Hague Convention) was designed to prevent abuses in inter-country adoption. It would be a mistake to assume that this Convention was primarily aimed at regulating sending countries which, often by virtue of poverty, lack the bureaucracy and administrative procedures to ensure that adoptions are abuse free. The Convention was just as much designed to improve procedures in receiving countries where inter-country adoption has often developed in an ad hoc and largely unregulated manner.
13.3 From the discussion of the Department of Community Services and the parent support groups in Chapter 11 it is clear that New South Wales is currently not complying with all the standards set by the Hague Convention. The most fundamental problem is that the functions of the Department and the parent support groups do not correlate with the structure envisaged by the Convention.
The Department of Community Services
13.4 The Department of Community Services is the most likely body to be nominated as New South Wales’ Central Authority. As previously discussed, in a developed welfare state like Australia, it is unlikely that a private body would be entrusted with this task. As a Central Authority the Department is unlikely to have to change the substance of its adoption practice, which is currently in compliance with the Convention. It will however have to take on considerably more responsibility for inter-country adoption and play a more active role.
13.5 Central Authorities are required to “co-operate with each other and promote co-operation amongst the competent authorities in their States” and “take directly all appropriate measures to” provide other States with information about local adoption law, statistics and standard forms.1 In essence this means that there must be direct contact between the responsible bodies in sending and receiving countries. The Department is required to communicate directly and frequently with overseas authorities to ensure that all adoptions comply with international standards. The Department must inform sending countries of the details of New South Wales adoption law, including the Adoption Information Act 1990. As a Central Authority, the Department may not arrange adoptions substantially via a third party such as a parent support group.
13.6 Central Authorities in receiving States must assess applicants’ suitability to adopt and prepare a report for the sending State’s Central Authority.2 They must also keep each other informed of the adoption process, as well as about the progress of a placement.3 The Department’s practices are wholly in compliance with these requirements in all but one matter. The Department has an agreement with one parent support group to send applicants’ assessments, post-placement reports and other Department documents via the parent support group for checking and vetting. Article 15(2) of the Hague Convention requires Central Authorities to transmit assessment reports directly to the overseas Central Authority. Similarly, article 20 requires Central Authorities to “keep each other informed” directly, not via a third party. There is no provision for the involvement of an organisation such as a parent support group in this process and as a result, New South Wales current practice does not comply with the proposed Hague system. Once Australia has ratified the Convention and incorporated it into domestic law, this practice will put Australia in breach of international law. Accordingly, the Commission proposes that the sending of any Department documents via a parent support groups should cease immediately.
Parent support groups
13.7 The operation of parent support groups raises a number of serious questions about New South Wales’ compliance with international law. As we have seen in the previous chapters, the parent support groups are unaccountable organisations run by private citizens who do not necessarily have specialised adoption training. The groups’ functions are not set out in legislation but were developed in an ad hoc manner to fill a legislative void. The Hague Convention makes no provision for the operation of such organisations and to the extent that parent groups have power over the inter-country adoption process, New South Wales is currently not complying with the proposed Hague system.
13.8 The Hague Convention provides for accredited bodies which may carry out some of the functions of the Central Authority and which may facilitate inter-country adoptions generally. However, these bodies must be “directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of inter-country adoption” and they must be supervised by the State in relation to their “composition, operation and financial situation”.4 If they are to carry out any of the functions of the Central Authority they must also “meet the requirements of integrity, professional competence, experience and accountability” of the State.5
13.9 The parent support groups do not meet these requirements in two fundamental ways. First, they are not supervised by the State in relation to their composition, operation and financial situations. As discussed in Chapter 11, they have minimal accountability in relation to the work they perform. Second, they are not necessarily staffed by people who are qualified to facilitate adoptions. Some of the members of parent support groups have extensive experience in organising adoptions but this varies from group to group. Further, while “experience” is sufficient to perform some functions under the Convention, “professional competence” is required for others.
13.10 Some parent support groups currently carry out functions that under the Hague Convention would need to be performed by accredited bodies. These include informing overseas agencies of the “most suitable” applicants or those who are “next on the list”6 and displaying photos of hard to place children.7
13.11 Informing overseas agencies of the “most suitable” applicants or those who are “next on the list” is the task of a qualified adoption worker. It is an important part of “matching” and allocation and should be performed by a member of the Department’s staff. It is these important parts of the adoption process that the Hague Convention requires an accountable organisation to perform. As shown above, the parent support groups do not meet the Hague Convention’s requirements. In addition to the Hague Convention, there are good arguments, which were raised in Chapter 11, for the parent support groups not performing these tasks. The Department often has difficulty approving allocations when the parent support group and the applicants have fuller allocation information than it does. Further, there is a feeling amongst some applicants that parent support groups use their power to indicate who is “next on the list” to manipulate the allocation of children. There is a distinct feeling in some groups that applicants should not “rock the boat” in any way or their chances of being allocated a child will be jeopardised. These problems are precisely the kind that the Hague Convention seeks to prevent by requiring only qualified and accountable bodies to operate inter-country adoption.
13.12 The Commission proposes that parent support groups cease indicating the “next on the list” and “most suitable” applicants to overseas agencies. Parent support groups should request all overseas agencies to contact the Department directly with allocation information and questions. The overseas agencies and the Department could then clarify the allocation and the Department could inform the applicants. The applicants would discuss any of their concerns with the Department and then the Department would inform the overseas agency if the applicants were happy to accept the allocation. There would be no need for the parent support group to be involved in what is essentially a matter for the Department, the applicants and the overseas agency. This is in fact the way that many programs already operate.
13.13 Parent groups who display photographs of hard to place children are also performing the work of qualified adoption professionals. As has been noted in Chapter 11, members of parent support groups cannot know if the people they are encouraging to adopt a particular child have the abilities to care for that child.8 Showing applicants photos can lead them to become attached to a child and Department officers are placed in a difficult situation if they believe that the applicants would not be the best possible parents for the child. The Commission recommends that parent support groups who have photos of hard to place children, pass these photos on to the Department. The Department could maintain a “children in need of a family” book similar to the books it already maintains for special needs children.
13.14 The consistent theme in the comparison of New South Wales inter-country adoption practice and international standards is that some parent groups have too much control over the adoption process, especially when compared to their involvement in local adoption. They have most of the direct contact with the overseas authorities and some even have the determining role in allocating children. If New South Wales is to comply with international standards, there needs to be a shift in power from the parent support groups to the Department so that the Department can take full responsibility for the arrangement of adoptions. The international conventions intend inter-country adoption to be organised by accountable, professionally staffed bodies, not by voluntary, unaccountable groups. In New South Wales, the appropriate accountable body to organise inter-country adoptions is the Department of Community Services and it must begin to take full responsibility for that role.
ASSESSMENT OF INTER-COUNTRY ADOPTIVE PARENTS
13.15 In its discussions with the Commission, the Department of Community Services indicated that the assessment procedure for inter-country adoption is slightly different from that for local adoption. Department workers characterised the inter-country assessment procedure as linear, with couples applying to adopt and simply moving through the necessary steps one at a time. After completing the various requirements couples are usually approved to adopt. The gazetted criteria for couples are so general that the Department workers consider it difficult to withhold approval, even when they are not completely confident that couples have the necessary skills to raise an adopted child. The Department indicated that as a result of this perceived inability to reject applicants, there is a perception amongst adoptive parents that it is easier to be approved as an inter-country adoptive parent than as a local adoptive parent. Such a perception raises serious questions about New South Wales’ compliance with the Convention on the Rights of the Child, which stipulates that States must ensure that “the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoptions”.9
Age criteria
13.16 Age criteria for inter-country adoption is the same as the age criteria for local adoption, so that points raised earlier in this Discussion Paper are equally relevant here. However, the Commission has become aware that age criteria is more contentious in inter-country adoption so specific issues need to be addressed.
13.17 The contention surrounding age criteria in inter-country adoption is a result of a twofold discretion given to the Director-General: the discretion to assess applicants who do not satisfy one or more of the gazetted criteria; and the discretion to then approve them.10 The first discretion - to assess applicants who do not satisfy one or more of the gazetted criteria - has lead to many prospective applicants insisting that they be assessed, although they do not meet the age criteria.
13.18 Applicants’ insistence on being assessed when they do not meet the gazetted age criteria is a source of concern. If it is accepted that age criteria is in the best interests of the child, then it is difficult to argue that people who do not meet this criteria should be considered as adoptive parents. It was put to the Commission that age criteria is even more important in inter-country adoption than local because inter-country children have to cope with cultural and/or racial difference already and they should not be forced to cope with having parents who are significantly different from the Australian norm as well. It was argued that if there are other suitable parents within the age limit willing to adopt, why should children be placed with parents who are outside the limit?
13.19 The Commission takes this argument seriously. During the Commission’s review of the Adoption Information Act 1990 (NSW),11 a significant number of adoptees wrote to the Commission querying why they had been placed with older adoptive parents who did not have the abilities to relate to a young child. Some were actively searching for their birth families because their adoptive parents were now dead and the adoptees had been left with very little family at a relatively young age.
13.20 A counter argument to the strict application of age criteria is that there may be couples who, although outside the age limit, would be ideal parents for particular children. They may have special skills that render them more suitable than any other couples and it would be unfortunate if they could not be approved because of a single criterion. It is important that legislation designed to promote the best interests of children does not become ineffective through lack of flexibility.
13.21 A possible solution to this problem is that the legislation be altered so the general discretion is removed in favour of a specific discretion for an identified child. That is, the discretion should not be to give unqualified approval for a particular couple, but to give approval for a particular couple who, while they do not meet the gazetted criteria, have special capabilities that suit the specific needs of an identified child. This way the Director-General’s power would only be called upon in the interests of a child, not simply because particular couples disagree with the policy of setting an upper age limit for adoptive parents.
Understanding of cultural and racial issues
13.22 Understanding of cultural and racial issues in inter-country adoption is now generally accepted as essential for prospective adoptive parents. Research overwhelmingly reveals that families who openly acknowledge the importance of a child’s first country, culture and language, are much more likely to have successful adoption placements.12
13.23 Overseas research has revealed that there are many difficulties that inter-country adoptees face growing up in white Western countries. While children pick up languages quickly, the initial experience of being in a strange home where no one understands you can be traumatising. Children often react with rage and tears when they cannot communicate with their new parents.13 A Norwegian study revealed that while children may speak their new language fluently without a trace of an accent, they often lacked a deeper semantic understanding that parents and teachers fail to recognise is causing them problems at school.14
13.24 Inter-country adoptees often have ambivalent feelings to their cultural duality. Overseas studies show that while they do not deny their adoptive status and ethnic origin, they often play down its significance. They feel Danish, German or Norwegian in their attitudes, beliefs and values and may find this difficult to reconcile with their non-ethnically Danish, German or Norwegian looks.15 They find it distressing when people assume they are refugees or cannot speak the country’s language. A Norwegian parent of a Vietnamese adoptee described the children as having “a Norwegian soul in a Vietnamese body”.16
13.25 Many inter-country adoptees face racism at some stage of their lives. Of the children interviewed in the Inter-country Adoptive Parents Working Party video “Aussie Kids”, the majority said that they had experienced some form of racism or teasing at school. Again, overseas research supports the contention that racism is a problem that inter-country adoptees confront.17
13.26 Adoptive parents and adoptees react to this research in different ways. Some dismiss concerns about cultural heritage and race because they see them as an implicit criticism of inter-country adoption. They associate these criticisms with arguments that inter-country adoption should not happen at all. Further, adoptive parents tire of people pointing out the ‘down-side’ of inter-country adoption and seemingly ignoring the good. They believe that their children should not be forced to be interested in their cultural heritage and that it is not constructive to continually point to their child’s ‘difference’. These parents feel that their children should just be allowed to get on with the job of growing up and not be burdened with issues in which they do not appear to be interested.
13.27 In contrast, the opinions of other adoptive parents, adoptees and social workers back-up the research that claims cultural and racial heritage are issues to be taken seriously. That is, these people believe that acknowledging the significance of a child’s first culture and his or her race is necessary if inter-country adoption is going to function to the maximum benefit of children and their families.
13.28 Amongst New South Wales adoptive parents there seems to be a relatively high awareness of the issues of cultural identity. Adoptive parents of Korean children in Sydney and Wollongong organise language schools for their children which include lessons on Korean culture.18 Representatives from the Commission attended a picnic organised by the Sydney Korean language school where Korean food had been prepared and many of the girls were dressed in the Korean national costume. AFC requires members who adopt from Colombia and Chile to have some knowledge of Spanish and other parent groups provide language tapes.
13.29 The Department is adamant that sensitivity to cultural and racial issues is an indispensable quality in adoptive parents. Department officers expressed grave concern about one couple wanting to turn their children into “little Aussies” as fast as possible and another not even intending to tell their Colombian children they were adopted. Department officers felt that some prospective adoptive parents simply did not have the ability to understand issues of culture, language and race when it was raised in adoption seminars or interviews.
13.30 The Department believes that current adoption guidelines are not specific enough to reject prospective adoptive parents on the grounds that they do not have the ability to meet the cultural and racial needs of the child. Adoptive parents must have “the capacity to...meet the social, cultural and special needs” of the child and “the capacity and willingness to...ensure the child is fully aware of his or her...culture and origin from the time of placement”19 but the Department’s officers do not believe that this is sufficient. The guidelines are vague and consequently only two or three applicants are not approved each year even though more may not be ideal adoptive parents. The Department would like to be more rigorous in its approval process but staff do not consider the existing legislation strong enough to back up their decisions to withhold approval. As a result some couples are having children placed with them when the Department is not confident of their ability to meet all of the child’s needs. In contrast, in countries such as Germany, adoption authorities reject one third of their applicants on the grounds that they do not have the ability to “understand the needs of a ‘Third-World-Adoptive-Child’ or that the family situation and/or motives for the adoption are not adequate”.20
13.31 The Commission’s provisional view is that if we accept that cultural and racial issues are important in adoption placements, then legislation must be more explicit in its stipulation that applicants have an understanding of these issues. Those who do not possess such an understanding should not be approved.
13.32 Selection criteria for inter-country and local adoption should include the parents’ ability to:
- understand and be sensitive to the issues involved in adopting a child from a different culture and/or race;
- foster a positive perception in the child of his or her culture and racial identity and heritage; and
- help the child should he or she encounter racism or discrimination in school or the wider community.
Mental illness
13.33 The Department brought the problem of mental illness to the attention of the Commission. Under existing legislation there is no specific provision for refusing approval to prospective adoptive parents owing to a history of mental illness. Although this seems to be more of an issue in inter-country adoption, it is also equally relevant to applicants in local adoption. Applicants often do not disclose to the Department or their assessing social worker that they suffer from manic depression or some other illness, however, if the illness does come to light, this is not grounds alone to withhold approval. The applicant may have to attend an interview with a Department psychiatrist, but in the short period the psychiatrist has to speak to the applicant, he or she may not be able to reach any definitive conclusion in relation to the applicant’s suitability to adopt.
13.34 It seems to the Commission that there are two sides to this problem. On one hand it seems that the existing legislation is again lacking in the power it gives the Department to refuse applicants who would not be adequate adoptive parents. On the other hand, it may be that mental illness does not always preclude a person from being a suitable applicant and that it would be discrimination to reject such an application. The Commission would be interested in further submissions on this issue.
“Slotting” policy
13.35 The Department has a policy of “slotting” for adopting families who already have children. If an adoptee is being “slotted” between two children, there must be at least a five year age gap between these children. The adoptee must be a minimum of three years older than the younger child and a minimum of two years younger than the older.
13.36 The Department would like to see this policy abolished as it causes many problems. Two breakdowns have occurred where children have been “slotted” and Department officers believe it would be preferable for children not to be placed between existing children at all.
13.37 The problem the Department faces is that adoptive parents argue they have a “right” to adopt a child if they have five years in between their children. This attitude should be discouraged - no one has a “right” to a child. In inter-country adoption, like all adoption, the interests of the child are paramount, and no child should be placed in a family if there is evidence that such placements may not be successful. Adoption breakdown must be avoided at all costs in inter-country adoption, particularly with older children, who have travelled thousands of miles to a strange country where nothing and nobody is familiar. For these children, the experience of being without a family in a foreign country, back in the care of the State, is traumatic and highly damaging.21
13.38 The Department is reluctant to abolish the “slotting” policy, even though it is its own and not in the gazetted criteria, because of the potential reaction from adoptive parents. This situation is indicative of the whole process of inter-country adoption - adoptive parents and their support groups are often powerful, articulate members of the community. The Department comes under a lot of pressure each time a decision is made that adoptive parents believe is adverse to their interests. It seems that the Department is forced to compromise parts of its practice in order to minimise conflict with adoptive parents and support groups.
13.39 The Commission finds this most disturbing. Members of the community obviously have the right to contest government decisions and policies that affect their interests but adoption is not about the interests of adoptive parents. Adoption is a service for children and every child that is placed by the Department of Community Services has the right to be placed in the best possible family. They should not to be placed in a situation that the Department is not confident will work.
13.40 It seems to the Commission that “slotting” is not good adoption practice and accordingly should be abolished. Children should only be placed with a family if they are the youngest, oldest or the only child. They should not be placed in between existing children.
Birth names
13.41 Elsewhere in the Discussion Paper the Commission has dealt with the issue of birth names. Birth names, however, have a special significance for inter-country adoptees. First, for all children, their birth name is a connection with their country - they will have a uniquely Korean, Colombian or Sri Lankan name. The name may be significant in the child’s first language, for example it may translate as a particular quality that the birth parents had wished for in their child. Second, in inter-country adoption, many of the children are older, so that they have lived five, 10 or even 14 years with their name so that changing it could be extremely confusing.
13.42 Despite this, some adoptive parents change their children’s names, even their older children. The Department recommends against this and even though parents assure Department officers that they would never change a child’s name, some promptly do so on the child’s arrival.
13.43 In relation to older children, it is very difficult to justify a name change. Some people argue that the names are hard to pronounce or may mean something in English or just sound “odd”. However, Australia is a multicultural society where thousands of people have non-anglo names. In the past many immigrants anglicised their names but this is a dying practice. If this is the case in the wider community, inter-country adoptees should not be singled out and forced to change their names because anglo-Australia finds them “hard to pronounce”. They should not lose such an integral part of their identity just because they have moved countries and joined a new family. The Commission is aware of some name changes where even the “hard to pronounce” justification could not be used, for example, when the child was called Maria or Jamie.
13.44 The Adoption of Children Act 1965 (NSW) currently stipulates that a change of first name will not be approved by the Court for a child above the age of 12 unless his or her consent has been given.22 Consent will only be dispensed with if there are special reasons relating to the welfare and interests of the child. In the Commission’s view first name changes should be discouraged. Accordingly, it is proposed that legislative guidelines only permit the Court to approve a change of first name if the child is under two or if there are exceptional circumstances relating to the welfare and interests of the child that would justify a change of name.
Older children
13.45 The Commission has become aware of concerns in relation to the adoption of older children. Some Departmental officers questioned the wisdom of ever bringing children to Australia who have been in long-term institutional care as the risk of breakdown is significant. It is argued that the experience of adoption breakdown is so traumatic for children that placements should not be made where there is a significant possibility of this happening.23
13.46 Older children are often adopted because adoptive parents are outside the age criteria for a new-born baby. The age limit does not prevent certain people from adopting a child, it merely restricts them to a first child who is a maximum of 41 years younger than them or second child who is a maximum of 46 years younger.24 As a result, a 49 year old couple would be ineligible for a new-born first child but would be eligible for an eight year old. Sometimes couples who are within the age criteria prefer to adopt an older child because they feel they could best meet that child’s needs. Alternatively, couples may adopt an older child who is part of a sibling group - they would like to adopt the younger children and agree to adopt the older ones so that the siblings are not separated.
13.47 Obviously, the transition to a new country and home is more difficult for older children than for babies. They bring with them life experiences and memories that may make adjustment problematic - in fact, some children may never adjust. Some may never settle into their families and feel at home. For these children, the experience of inter-country adoption is not a positive one. They have been brought thousands of miles from anything they know, removed from their country and any chance of contact with family or friends. They have been placed with people who are strangers to them and they do not have the good life that they may have been promised by welfare workers in their country of origin.
13.48 In addition to potential difficulties at home, older children may suffer insurmountable disadvantages at school. They may not be literate in their own language and they are then expected to become literate in English and perform adequately at school. For many older children the expectation that they will succeed in a foreign school system may be unrealistic. Their self-esteem and confidence may be badly effected by the difficulties they encounter.25
13.49 A significant problem in the adoption of older children is that couples are being allowed to adopt children, often in sibling groups, when they have no parenting experience. If these couples were to foster children locally they would be required to undergo a period of training to alert them to the difficulties older children experience when they are placed with a new family. No such training is required for adoptive parents of inter-country children. Further, local foster children are given the opportunity to choose whether to join a family or not. Children brought from overseas are denied this choice. They are placed with a family, often regardless of their wishes.26
13.50 Older children are likely to have family ties in their country of origin that may be lost as a result of their adoption. One submission to the Commission stressed that:
children who have an extended family network in their own country should not be considered for inter-country adoption. Not only is the child deprived of these important contacts. Little thought is given to the sense of loss and powerlessness that can be experienced by the family members at home who had been unable to care for the child themselves for financial or other reasons. If children are adopted from overseas some mechanism should be put in place to ensure that the adopting family helps the child maintain contact with their cultural background and with any close connections the child may have had in their home country.27
13.51 The Commission is aware of cases where children have lost contact with siblings, all of whom have been brought to Australia. This may be the result of adoption breakdown between the adoptive parents and some siblings but not others. If some siblings are moved from the adoptive home, children become separated and are denied existing natural family relations for the sake of new adoptive relations. It is difficult to see how this can be in the best interests of children.
13.52 It may be that adoption is not the appropriate solution for older children. It may be unrealistic to say that through adoption an older child becomes the child of a couple “as if born in lawful wedlock”.28 It may be that there are better ways to care for older children who may still have family in their country of origin and who are at the age when they are beginning to assert their independence. These children may not need “parents” in the conventional sense; they may simply need security and care.29
13.53 There are many programs world wide that provide care for orphaned and refugee children.30 Some programs begin with reception and orientation weeks with others from the children’s country of origin. Here children are taught the language of the receiving country by people who speak their own language and are familiarised with the receiving country’s culture. Children are then sent on to foster care or residential care. They may live with a family of a similar ethnic background or in a group home with other children, supervised by a few adults. Group homes may provide better care for older children or sibling groups who have already learned to care for themselves and who would not feel comfortable with “new parents”. Host families may provide a similar option. Host families establish a family environment, but the children are not expected to be the children of the host family parents. The host family may provide some guidance for the children but they predominantly provide a stable place for the children to live.
13.54 Inter-country adoption programs should explore these possibilities if they would provide better care for children in need. A variety of options for care, in addition to adoption, are available to children in Australia and they should similarly be available to children brought from overseas. Families who wish to adopt older children should be aware of the possibility that some children may not want to be adopted. They may want to come to Australia and live with a family and in time, perhaps develop a loving “parent-child” relationship with a couple. They may not however, wish to come to Australia on the condition that they will be adopted by a couple they have never met and thereby become their children “as if born in lawful wedlock”. Inter-country adoption must be able to meet the needs of a variety of children. It must be flexible and participants must be prepared for the possibility that adoption will not always be the best option.
Funding
13.55 Inter-country adoption is predominantly funded by adoptive parents. They pay for seminars, home studies, travel, allocation and post-placement interviews. The Commission has received little comment on this issue and there does not seem to be a feeling that if inter-country adoption is going to be available, it should be available to all couples in New South Wales, not only those who can afford it.
13.56 The Fogarty Report on inter-country adoption in Victoria recommended that the fee for service be discontinued. The Panel argued that a fee for service paid by the adoptive parents led to confusion about who the service was for - the child or adoptive parents? Further, the Panel believed that if inter-country adoption is to exist for the needs of the child, then fees should not present a barrier to placement.31
13.57 The Commission agrees with the Fogarty Report in principle. However, as the Department of Community Services is unlikely to be able to fund the full cost of inter-country adoption, it would be unrealistic to recommend that it should.
13.58 The Commission is, however, concerned about the fee for additional post-placement visits by Department social workers. Under the current scheme couples must pay for four post-placement interviews before they can apply for a New South Wales adoption order. All couples do this as a matter of course. However, some families need more than four post-placement visits if their child is having difficulties settling in. The Department charges $50 per hour for these visits and some couples are reluctant to pay. As a result families, in particular children, are missing out on urgently needed help at a crucial period of adjustment.
13.59 It seems to the Commission that once a child has entered Australia and is under the guardianship of a New South Wales government department, or is the adopted child of a New South Wales couple, then that child is entitled to welfare services free of charge. Children should not be denied social services because their parents cannot or will not pay for them. In contrast, post-adoption services for local special needs children or wards, who like older inter-country adoptees may need post-placement support, are provided free of charge. Services to these families prior to an adoption order being made or soon afterwards are considered part of the overall service that the Department aims to provide.
13.60 The Commission suggests that a charge for post-placement services for inter-country adoptees, but not for local adoptees, may amount to a violation of article 21(c) of the Convention on the Rights of the Child. As stated above, this article demands that the same safeguards be applied to inter-country adoptions as local adoptions.
ADOPTION INFORMATION ISSUES
13.61 The Adoption Information Act (NSW) 1990 gives all adoptees over 18 and their birth parents a statutory right to information about a party separated from them by adoption.32 The Act applies to overseas adoptees and their birth parents, as well as local adoptees.
13.62 The fight for access to adoption information has existed as long as adoptees have been denied information about their origins. However, it was not until the early 1970’s that adoptees’ need for information was documented in welfare studies and personal histories.33 Throughout the 1970s and 1980s adoptees continued to speak out about the importance of adoption information for medical and personal history. Organisations such as Jigsaw in Australia and ALMA in the United States helped adoptees trace family and continued to put pressure on governments to open up records.
13.63 Birth parents’ need for information did not come to public attention until the 1980s with the publication of a number of books and studies on birth mothers’ experiences of adoption.34 While individual birth mothers may have requested information in the past, many did not come forward for fear of disturbing the life of their relinquished child and because they believed they had no right to information, having been told that adoption was secret and final. With the search for origins movement amongst adoptees, however, many birth mothers felt confident they were not the only ones with negative experiences of secret adoption. Organisations such as Mothers for Contact mobilised to help women search for their children and to force legislative change.
13.64 In 1990 that change came with the Adoption Information Act 1990 (NSW). From 2 April 1991 to 30 June 1992, 7,358 applications were made for original or amended birth certificates. At 30 June 1992, 15,985 people were registered on the Reunion Information Register.35 The Commission conducted an extensive review of the operation of the Act and concluded that the principles of the Act were sound and that its operation to date was a success.36
13.64 Inter-country adoption poses a certain problem for the operation of the Adoption Information Act 1990 (NSW). In local adoption, relatively detailed information about the birth family and adoptive family is collected at the time of adoption. This is recorded on file and much of it may be accessed according to the Regulations of the Adoption Information Act.37 It may include ethnic background, education, occupation, physical appearance, hobbies, interests, medical history and family composition of the birth parents and adoptive parents.
13.65 In inter-country adoption this information would be available to birth parents about adoptive families as a result of the social worker assessments of adoptive parents organised by the Department. If a birth parent from overseas were to apply to the Family Information Service within the Department, he or she would be given details of the adoptive parents and identifying information, once the adoptee reached 18. In relation to information about birth parents, however, very little information is recorded. An inter-country adoptee applying for information under the Act is likely to find extremely limited information on file. His or her overseas certificate of adoption would most likely be held by the Supreme Court in lieu of an original birth certificate, but the Department would not be able to provide details of the birth family in accordance with the Act.
13.66 It seems to the Commission that the reasons for this are three-fold. The first is that inter-country adoptees who have been abandoned as babies or who are war orphans are unlikely to have any documentation when they are placed for adoption. Their parents, medical and social history may be completely unknown.
13.67 Second, other countries do not place as much emphasis on adoption information as Australia. In Korea for example, local adoptive parents are still unlikely to even tell their children that they are adopted.38 In India, there is no widespread practice of adoption, except for Hindu boys (and sometimes girls) who may be placed with childless relatives of the birth parents.39 For a country with no tradition of secret adoption, it is unlikely that workers in that country will have an appreciation for the importance of information recording non-relative adoptions.
13.68 Third, and perhaps most importantly, it seems that some Australian groups who are involved in inter-country adoption and who have direct contact with relinquishing countries, do not understand the significance of adoption information or choose to ignore it. Parent support groups speak to the co-ordinators of the overseas programs, contact them by fax and even visit the donor countries on occasions. They are in a prime position to request information about the birth parents and yet often they do not.
13.69 If groups do not collect information about children’s birth families and do not encourage their members to do so at the point of adoption, it is effectively denying adoptees their rights. The birth parents will always have access to information through detailed files at the Department of Community Services but the adoptees will find that when they request information, there will be nothing available. In a paper delivered at the Fourth Australian Conference on Adoption, Vicki Osborne stressed the importance of gathering information at the time of adoption or soon afterwards - some institutions destroy records after ten years and other information may only be available through staff at orphanages or convents who may leave or die without passing the information on.40
13.70 Parent groups often argue in defence of this lack of information that other countries do not accept the policy of access to records.41 They claim that it would jeopardise existing programs if information were requested. While the Commission accepts that to some extent this may be true, it also suspects that owing to some adoptive parents’ ambivalence to the issue of adoption information, real efforts to secure information have not been made.
13.71 It is the Commission’s view that the gathering of information about birth families, including identifying information, must become a priority for those involved in the adoption process. The history of closed adoption in Australia has revealed that denying adoptees information is damaging. Many adoptees as they grow older, want details of their birth family history and even contact. Their need for this information and contact may become as pressing as their need for an adoptive family was when they were a child. If the information is never collected, some adoptees will be forever deprived. They will never discover their roots. It is unjust that inter-country adoptees should go through the same suffering as local adoptees have in the past, when we now understand the importance of recording adoption information.
13.72 In addition to gathering information about birth families for adoptees, inter-country adoption programs and the Department must make overseas agencies aware of the existence of the Adoption Information Act 1990 (NSW) so that birth parents can utilise the provisions of the Act if they so wish. The Department officers indicated that they would like to do this but were deterred by the reaction of some parent groups who claimed it would jeopardise programs. The Commission does not accept that New South Wales law should be undermined in this way. Access to adoption information is no longer a policy that those involved in adoption can choose to accept or reject - it is a statutory right that is given to all adoptees and their birth parents once the adoptee reaches 18. New South Wales would be in a hypocritical position if it assured this right to our own birth parents but not to those living overseas. To argue that other countries have a different attitude to adoption information in relation to this issue is fallacious. Once children are adopted under New South Wales law, they are subject to the Adoption Information Act and their birth parents will have access to identifying information once they reach 18. Another country’s policy on adoption information cannot alter this or deny those birth parents their rights under Australian law. As this is the case, birth parents should not effectively be denied those rights by never being informed that the Adoption Information Act exists. Whenever possible, they should be informed that their child has been adopted by a New South Wales couple and that they have the right to identifying information about their child.
13.73 In addition to the argument just raised, the Department of Community Services must be aware that the Hague Convention requires States that become parties to it, to keep each other informed of local adoption law. Central Authorities need to make sending countries aware of all law pertaining to adoption, including laws on access to adoption information. This point was discussed earlier in the Chapter.
FOOTNOTES
1. Article 7.
2. Article 15.
3. Article 20.
4. Article 11.
5. Article 22(2).
6. See Chapter 11.
7. See Chapter 11.
8. See Chapter 11.
9. Article 21(c).
10. Adoption of Children Regulations, reg 20(2b).
11. New South Wales Law Reform Commission Review of the Adoption Information Act 1990 (NSW), (Report 69, July 1992).
12. R G McRoy, L A Zurcher, M L Lauderdale and R N Anderson “Self-esteem and racial identity in transracial and inracial adoptions” (1982) 27 (6) Social Work 552 at 525-6.
13. M Cederblad Children Adopted from Abroad and Coming to Sweden after Age Three (The Swedish National Board for Inter-country Adoption, Stockholm, 1982).
14. M Dalen and B Saetersdal “Transracial adoption in Norway” (1987) 11(4) Adoption and Fostering 41 at 42.
15. W Kuhl When adopted children of foreign origin grow up (Terre des Hommes, Osnabruck, 1985); M Rorbech Denmark-my country: the conditions of 18-25 year old foreign born adoptees in Denmark (Booklet 30, The Danish National Institute of Social Research, Copenhagen, 1990); Dalen and Saetersdal “Transracial adoption in Norway”.
16. M Dalen and B Saetersdal at 43.
17. See M Rorbech and W Kuhl.
18. Saet Byol Korean School in Sydney and the K-Club in Wollongong.
19. Clause 5.
20. W Kuhl and A Winter-Stettin “Foreign Adoption in the Federal Republic of Germany” in R A C Hoksbergen Adoption in Worldwide Perspective (Swets North America Inc/Berwyn Swets & Zeitlinger B V, Lisse, 1986) at 173-4.
21. See J Harper “Love is not enough: breakdown in inter-country adoption”, paper presented at the Inter-Country Adoption Workshop, New South Wales Committee on Adoption (Sydney, October, 1985).
22. s 38(2a).
23. See J Harper “Love is not enough: breakdown in inter-country adoption”.
24. Gazetted criteria, cl 6.
25. Confidential Submission (14 December, 1993).
26. Confidential Submission (14 December, 1993).
27. Confidential Submission (14 December, 1993).
28. See the current wording of s 35(1) Adoption of Children Act 1965 (NSW).
29. E Ressler, N Boothby and D Steinbock Unaccompanied Children: Care and Protection in Wars, Natural Disasters and Refugee Movements (Oxford University Press, Oxford, 1988) at 199.
30. Ressler, Boothby and Steinbock at 187-205.
31. J. Fogarty, K Sanders and M Webster A Review of the Inter-country Adoption Service in Victoria (Family and Children’s Services Council, October, 1989) at 42.
32. Adoption Information Act (NSW) 1990, s 6, 8.
33. J Triseliotis In Search of Origins (Routledge & Kegan Paul, London, 1973); F Fisher The Search for Anna Fisher (A Fields Books, New York, 1973).
34. J Sawyer Death by Adoption (Cicada, Auckland, 1979); K Inglis Living Mistakes (George Allen and Unwin, Sydney, 1984); L Harkness Looking for Lisa (Century Hutchison, Sydney, 1984); J McHutchison Relinquishing a Child: The Circumstances and Effects of Loss (Unpublished thesis, Sydney, 1986); R Winkler and M van Keppel Relinquishing Mothers in Adoption: Their long-term adjustment (Institute of Family Studies, Melbourne, 1984); D Howe, P Sawbridge and D Hinings Half a Million Women: Mothers Who Loose Their Children by Adoption (Penguin, London, 1992).
35. New South Wales. Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992) at 40.
36. New South Wales. Law Reform Commission Review of the Adoption Information Act 1990 (Report 69, July 1992).
37. Regulations 5, 6, 7.
38. Youn-Taek Tahk “Inter-country Adoption Program in Korea” in Hoksbergen at 83.
39. A J Jungalwalla “Adoption Policies and Experiences in India” in Hoksbergen at 93-4.
40. “Going Back” in Fourth Australian Conference on Adoption: Working Together in the 90s (Canberra, October 1990) at 155-60.
41. Penny Brune Withanage (International Children’s Aid) “Access to Origins” in Fourth Australian Conference on Adoption: Working Together in the 90s (Canberra, October 1990) at 176-8.
