PROVISIONAL PROPOSALS FOR REFORM

1. The concept of adoption should be maintained but adoption law needs to be modified to remove its negative aspects and to ensure that it promotes the welfare of children.

2. Prior to the consideration of any kind of alternative parental care for children, there must be no infringement of the human rights of birth parents.

3. Adoption must be considered critically against all other possible arrangements for each particular child.

4. Adoption must be recognised as the most extreme form of order for children in need of permanent care to be used only where the circumstances of the particular child dictate that it is necessary.

5. The focus of adoption should be on the needs of children who require permanent care. This refers not only to the needs in existence at the time that the adoption order is made but also to those that may arise later in the child's life.

6. Children should be recognised as individuals who have ties with people, by virtue of their birth, that cannot be eradicated. The assessment of the best interests of a child should be made in relation to each child and not in relation to children in general.

SUPPORT FOR ADOPTION

3.1 In the Issues Paper we posed the question of whether there remains a need for adoption in New South Wales today. The responses to this question varied across a spectrum, from those who strongly supported adoption to those who recommended that it should be abolished.

3.2 It is clear from submissions made to the Commission that there is a great deal of community support for the continuance of adoption, although many of the submissions supporting adoption also recommended particular reforms. In the following paragraphs we summarise the main themes of these submissions.

Research evidence on generally positive outcomes for adopted children

3.3 A number of submissions pointed to information gathered from research on adoption as support for the continuation of adoption. It is not necessary to engage here in the large task of assessing this formidable body of research.¹ Overall, the research does seem to support the benefits of adoption for adopted children. According to various measures of development, adopted children appear in general to do as well as other children in the community, and better than children in the underprivileged circumstances which at least some adopted children might have experienced had they not been adopted. The studies vary in their measures for evaluating success. They also vary in the extent to which the adoptees themselves are involved in assessing the outcome of their adoption. No doubt the success of adoption has been of great satisfaction to the adoptive parents, and has been a testimony to their parenting abilities and their commitment to the children. However, the research also indicates that adoptive children face difficulties arising from their adoption, and that relinquishment entails great distress for many birth parents. The generally positive results of most adoption research does not allow us to say what the outcomes for those children would have been if they had experienced “open” rather than “closed” adoption. Nor do the general findings allow us to make confident predictions about whether adoption will promote the welfare of particular children, or particular categories of children.

Continuing acceptance of adoption in Australia and similar countries

3.4 Most States and Territories of Australia have conducted reviews of their adoption law in recent years.² Legislative amendments continue to be implemented to accommodate changing aims and values.³ While suggestions to modify the law have been commonplace, there has been little support for the removal of adoption altogether. Similarly, reviews conducted in the United Kingdom, New Zealand and Scotland in the last decade, while recommending major changes to adoption law, have all supported the continued existence of adoption.⁴ For instance, in the Scottish Review it was stated clearly that there was overwhelming support for retaining adoption in its current form. Adoption was seen to be a fundamental legal concept that had proved to be successful as a way of caring for children.⁵

3.5 Not surprisingly, a number of submissions stated that adoption is a familiar, well-understood and uniquely valued concept. It is accepted both nationally and internationally.⁶ Long experience has shown that adoption is a successful way of caring for a child away from his or her birth parents. It appears to have worked well for many adopted people and their adoptive parents. No other form of permanent placement has demonstrated that it can be more beneficial than the established system of adoption.⁷ According to these submissions, to abolish adoption would remove the legal expression of a valued family commitment and would destroy a legal concept that exists in all countries similar to our own.⁸

Security for children

3.6 An argument strongly advanced in favour of adoption was that, for the child, a sense of security and belonging is founded in the adoptive parent’s sense of entitlement and commitment.⁹ A child’s need for security is provided for within a nurturing, protective and permanent family who feel free to treat the child as their own. "Family" has usually been defined very narrowly in the context of this argument. It is the perceived legality, finality and exclusivity of adoption that is said to encourage adoptive parents to treat the child as if he or she were their own. Of course, the development of open adoption challenges the way in which adoption has been traditionally perceived and diminishes the strength of this argument. The argument continues that unlike, for example, the insecurity of foster care, adoption provides a level of security and commitment which is said to be fundamental to a child’s upbringing. This argument was made very strongly even in submissions that acknowledged and supported the concept of open adoption, which ultimately challenges the finality and exclusivity of traditional adoption. It was argued or assumed in such submissions that the perception of adoption as irrevocable, and the resulting sense of commitment and security continue even though the child may be encouraged to acknowledge that it is a member of two families.

3.7 A closely related argument is the claim that adoption provides a psychological boost to a child’s sense of personal identity. The sense of belonging which is enhanced by a solid family environment is invaluable to the child’s self-esteem. It was argued that the disruption rate for children who are adopted is dramatically less than for children in other forms of care.¹⁰ Disruption and lack of continuity in children’s lives causes emotional problems, whereas secure family membership enhances self worth.

Capacity of adoption to change

3.8 While most people do not want to see adoption abolished, many expressed the view that appropriate modifications could be made to meet changes in social patterns and values. Many submissions referred to the current practice of "open adoption" and felt that it should be incorporated, to a greater or lesser degree, in the Act.

Any new system established should, we believe, have information access and openness from the beginning. Anyone embarking upon adoption would know that there is to be no secrecy.¹¹

3.9 The thrust of many of these comments was that, in the past, problems had been caused by the ‘conspiracy of silence’, and that adoption does not have to involve deception if all parties acknowledge the reality of the adoption.¹² Nor does adoption necessarily involve the complete severing of a child’s existing family relationships; it is flexible enough to accommodate continued involvement of the birth parents and adoptive parents in the child’s life.¹³

CRITICISM OF ADOPTION

3.10 Some submissions to the review contained criticisms of adoption as it is now practised and called for radical changes in adoption law. One view is that adoption should simply be abolished. Those who supported the abolitionist argument stated that the concept of adoption is so fundamentally flawed that no statutory amendments to the Act could overcome this essential fault.¹⁴

3.11 Adoption has been criticised as being fundamentally flawed for the following reasons:¹⁵

• adoption differs from all other legal orders for care in that it purports to change the personal identity of the child by altering historical, genealogical and biological facts about the child. It thus creates a legal fiction about the child’s parentage. This legal fiction is gradually being eroded by developments in social work policy, particularly those regarding openness in adoption;
• birth parents not only cease to be parents to the child but also render themselves liable to criminal sanctions under New South Wales law if they attempt to communicate with their child;
• in order to support the legal fiction that the adoptive parents are the child’s only parents, children have been denied access to information about family origins and the circumstances of their birth. The social work objective, to encourage openness and honesty in adoption, runs contrary to the aim of the adoption legislation which is to deny birth parents any relationship with their child;
• adoption treats children as the property of their parents. The legal rights of birth parents and adoptive parents prevail over biological reality and the process has more in common with laws relating to the transfer of property than family law;
• the process of adoption treats children as a homogenous group rather than as separate beings with individual rights;
• critics of adoption also argue that the traditional concept of adoption has already been greatly compromised by developments such as “open adoption”, increased access to information and the declining numbers of adoptions. They conclude that abolishing adoption would represent a culmination of these trends rather than a radical change in direction;16 and
• medium or long-term carers of children can be given the powers and responsibilities necessary to carry out their task (ie the rights and responsibilities of biological parents) without any need to pretend that they are the biological parents of the child and that the child’s birth family have ceased to exist.

3.12 The role of non-parental carers could be recognised by amendments to the Family Law Act 1975 (Cth) giving the Family Court ample powers to make orders about some or all the matters now associated with adoption, including the issuing of a new birth certificate and changes in support obligations and inheritance rights. The argument is that, instead of making a single inflexible order for adoption, the Court would be able to assemble a package of legal orders which would be designed to suit the particular circumstances of each case. This method of making orders for the care of children would ensure that the process was driven by the needs of the particular child in question and not by the type of order. Legislative guidelines could be drafted to aid the Court in making an assessment of the child’s situation and orders for care could be issued in terms of parental responsibilities as opposed to parental rights.

3.13 Guardianship and custody arrangements were also seen as preferable options to adoption because they could allow for the provision of access rights for the non-custodial parent and did not create a second birth certificate.¹⁷ One submission appealed for the removal of proprietorial terms such as ‘guardianship, custody and access’. The implementation of a ‘residence order’, a current United Kingdom invention, was considered a good alternative because it involves not an award of custodial rights but instead a direction as to where the child should reside. The focus of these suggested reforms is on the rights of the child rather than the adult, and this represents an important shift in attitude.¹⁸

3.14 Adoption was described as a social experiment which has failed.¹⁹ Critics have argued that the concept of adoption is outdated because it was created in the past to punish, protect or conceal those women who bore illegitimate children. Now that it is possible for single women to support their children and less stigma is associated with single parent families, it is arguable that adoption is no longer necessary. It may also be inappropriate because the concept of adoption still has a strong attachment to the idea of punishment and concealment. These deeply entrenched, adult-focussed beliefs may not be eradicated simply by changing the legislation.

3.15 Adoption is also based on the view that the nuclear family is a vastly superior unit in which to raise children. This view is rigid and simplistic as it fails to recognise the number of children being successfully raised in many different types of family structures and it also fails to recognise the importance of members of the child’s extended family. The law should acknowledge the importance of extended family members, and the fact that many Australian children experience a variety of other family forms. This would include recognition of modern families in a multicultural society.

THE VALIDITY OF ADOPTION

3.16 It is clear from the preceding paragraphs that arguments both for and against adoption provide a valuable source of ideas for change and improvement in the way adoption is practised. The Commission is not persuaded at this stage, however, that it would be desirable to abolish adoption.

3.17 There are two reasons for taking this position. First, although adoption can be seen as having some or even all of the negative connotations described by its critics, it also has some positive features. These include the idea that adoption involves a complete commitment to the welfare of the child, and a complete acceptance of the child into one’s family. It should be remembered, in this context, that adoption was originally resisted in part on the ground that children born to “undesirable” parents were destined to failure, because of their circumstances of birth. It might be argued that the abolition of adoption could discourage people from providing unqualified love and care for children, and might lead us to forget the positive lessons that adoption appears to have taught. It is possible that if adoption is reformed, the connotations which are seen as negative, such as ownership of the child, deception, and an excessive preoccupation with the traditional nuclear family structure would be greatly weakened, and the positive connotations retained or strengthened.

3.18 Second, there seem no prospects at this stage that a recommendation to abolish adoption would have any chance of success in the present climate of opinion. As noted earlier, it is well established in many countries, and its abolition does not appear to have been seriously considered by any legislature. The Convention on the Rights of the Child contemplates the continued existence of adoption, although it is fair to say that the main concern of the Convention is to guard against abuses of adoption.²⁰ It is clear from submissions to the Commission that there is a great deal of community support for the continuation of adoption. It is difficult to imagine that a recommendation to abolish adoption would have any chance of gaining political acceptance unless there was a very significant shift in community opinion. This is not of course decisive, but it does suggest that the Commission should recommend abolition of adoption only if it were convinced that this was really necessary.

3.19 It is the Commission’s provisional recommendation that the concept of adoption be maintained but that the criticisms underlying the abolitionist position need to be kept carefully in mind when approaching particular aspects of the law and practice. Adoption law can be modified to remove negative aspects and retain the positive features in order to promote the welfare of children. It is important that:

• there be no infringement of the human rights of birth parents either prior to the consideration of any kind of alternative parental care for children or at any stage of the adoption process;
• adoption be recognised as the most extreme form of order for children in need of permanent care and that it is only used where the circumstances of the particular child dictate that it is necessary;
• adoption be considered critically against all other possible arrangements for each particular child;
• the focus of adoption be on the needs of children who require permanent care. This refers not only to needs in existence at the time that the adoption order is made but also to those that may arise later in the child’s life;
• children be recognised as individuals who have valuable ties with people, by virtue of their birth, that cannot be eradicated. The assessment of the best interests of a child should be made in relation to each child and not in relation to children in general.

1. See , for example, L Raynor, The Adopted Child Comes of Age (Allen & Unwin, London 1980) referred to in J Thoburn, Success and Failure in Permanent Family Placement, (Aldershot, Hants, England, c1990); J Triseliotis and J Russell, Hard to Place - The Outcome of Adoption and Residential Care, (Heinemann, London, 1984); M Shaw, "Growing Up Adopted" in Adoption. Essays In Social Policy, Law and Sociology, (ed) P Bean, (Tavistock Publications, London, 1984). A valuable overview of the research was conducted in connection with the recent Inter-Departmental Review of Adoption Law undertaken in the United Kingdom by the Department of Health and Welsh Office.

2. See Australian Capital Territory: Adoption Legislation and Practice Report of the Review Committee, December 1987, Report of the Standing Committee on Social Policy on the Adoption Bill 1992; South Australia: Adoption Policy and Practice in South Australia Report of the Review Committee, November 1986 and the recently announced review of selected parts of the Adoption Act 1988 (SA); Tasmania: Report of the Interdepartmental Committee on Adoption Legislation Review, October 1986; Victoria: Report of the Adoption Legislation Review Committee, May 1983 and Western Australia: A New Approach to Adoption Final Report, Legislative Review Committee, February 1991.

3. See for example the Adoption Act 1993 (ACT) which represents a compromise of the 1987 Review recommendations. The major thrust of the Act is concerned with allowing the granting of ‘open’ or conditional adoption orders. See also Adoption Act 1988 (SA) incorporating substantial changes following the Committee’s Report; Adoption Act 1984 (Vic) incorporated recommendations of the 1983 Report. The Adoption (Amendment) Act 1991 (Vic) dealt with changes in inter-country adoption; Adoption Bill 1993 (WA) is to be introduced into Parliament in February 1994. The initial Bill was based largely on the 1991 Report and the Adoption of Children Act 1993 (NT) implemented substantial changes to adoption law in the Territory.

4. See United Kingdom. Department of Health and Welsh Office Review of Adoption Law: Report to Ministers of an Interdepartmental Working Group (October 1992); New Zealand. Department of Justice Adoption Act 1955. A Review By An Interdepartmental Party: Proposals for Discussion(January 1987), and Scotland. The Scottish Office The Future of Adoption Law in Scotland. A Consultation Paper (1989).

5. Scotland. The Scottish Office The Future of Adoption Law in Scotland. A Consultation Paper (1989) at paragraphs 1.4 and 1.6.

6. Centacare Adoption Services Submission (31 August, 1993) at 4.

7. Post Adoption Resource Centre Submission (1 September, 1993) at 2.

8. Barnardos Australia Submission (6 September, 1993) at 2 and New South Wales Committee on Adoption Submission (9 September, 1993) at 17.

9. Post Adoption Resource Centre Submission (1 September, 1993) at 4.

10. Barnardos Australia Submission (6 September, 1993).

11. Presbyterian Women’s Association Submission (27 August, 1993) at 3.

12. New South Wales Committee on Adoption Submission (9 September, 1993) at 16.

13. A recent United Kingdom review, for example, emphasised that the Court should be able to make access orders ("contact" orders) in conjunction with adoption, and was sympathetic to the view that adoption orders should not be made when other orders, such as guardianship or a change of name, would suffice. However, it considered that in other respects adoption should be retained more or less in its present form. See United Kingdom. Department of Health and Welsh Office Review of Adoption Law: Report to Ministers of an Interdepartmental Working Group (October 1992) at 8-9.

14. R Ludbrook Submission (10 September, 1993).

15. This list of reasons is developed from R Ludbrook, Submission (10 September, 1993).

16. Adoption Jigsaw WA Submission (26 August, 1993) at 1.

17. M Coblenz Submission (29 August, 1993).

18. R Ludbrook Submission (10 September, 1993).

19. Adoption Jigsaw WA Submission (26 August, 1993).

20. See especially articles 20 and 21.