INTRODUCTION
10.1 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. This form of adoption requires the participation of the relevant adoption agencies or authorities in the overseas (“sending”) countries. It involves issues of immigration law and policy that arise from the fact that the children are to be brought to Australia to live. The processes leading up to the relinquishment of the child and the placement of the child with Australian adopters are mainly in the control of adoption authorities in the sending country. Because it involves the removal of the children from their country of origin, and often from their culture and community, an assessment of the child’s welfare involves a range of considerations not usually raised by other forms of adoption. Issues of access to information arise. Prior to the children being placed, little may be known about them by the intending Australian adopters. The sharing of information between the birth family and the adoptive family may be difficult or impossible.
10.2 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.
EXISTING LAW AND PRACTICE
10.3 In New South Wales the area of inter-country adoptions is the responsibility of the Department of Community Services in conjunction with the Department of Immigration and Ethnic Affairs (“the Immigration Department”). In New South Wales none of the accredited private adoption agencies is involved in adoption of children from overseas. A number of support groups provide assistance, friendship and information for existing and prospective adoptive parents and participate in the arrangement of inter-country adoptions. The functions of support groups in the procedures for arranging inter-country adoptions vary according to the organisation, country and program. In the sending countries, adoption is the responsibility of public authorities or, in some cases, private organisations.
10.4 In New South Wales intending adopters normally seek assistance at an early stage from a support group; indeed it is necessary to join such a group in relation to adoptions from some countries1 because arrangements with those countries limit adoptions to members of those groups. However, it is the role of the Department of Community Services in New South Wales to assess the couples,2 to exercise guardianship of children after their arrival in Australia and to supervise the placement before and after the adoption order is made. These procedures are lengthy. Initially, prospective inter-country adopters are provided with information and complete a questionnaire (“Expression of Interest”). They are evaluated for inclusion in the inter-country adoption program and must attend seminars conducted by the Department before submitting a formal application for adoption. Assessment occurs in a series of interviews, a process which usually takes a period of 3-6 months but may take longer. The interviews are conducted either by an accredited private social worker or, where this is not possible, a local District Officer (a qualified social worker) of the Department. The Adoptions Branch of the Department considers a report by the social worker before deciding whether the applicants meet the prescribed criteria.
10.5 Approval is valid for 12 months. If no placement has occurred during this time, updated medical and home reports are required. The assessment report is sent to the sending country whose adoption authorities determine whether a child is to be allocated. The time taken by the overseas authorities to allocate a child varies widely and may be as long as one to two years. When the Department is informed by the sending country that a child is ready for allocation to particular applicants, provided the allocation is supported by the Department, an “allocation interview” is held to discuss the adoption and complete the necessary formalities to notify the overseas authority of their acceptance of the child. Arrangements for permission to bring the child into Australia must be made by the parents with the Immigration Department.
10.6 Placement of the child with the selected parents occurs after a period which normally varies between one and twelve weeks but can be longer. The adopting parents are responsible for travel arrangements. Procedures to collect the child from the sending country vary considerably but usually require the presence of both parents, perhaps for some weeks, to complete the formalities which may include interviews and even court appearances. Final approval of the child’s allocation to the parents and permission to bring the child to Australia rests with the authorities in the overseas country.
10.7 A child adopted from overseas enters Australia under the guardianship of the Minister for Immigration, but responsibility for the child’s welfare is delegated by the Minister to the Director-General of the Department of Community Services and some of the Department’s officers. Once the child has begun living with the adoptive parents, the Department usually conducts four interviews at regular intervals with at least one visit to the adoptive parents’ home. Reports from these interviews are used by the Department to monitor the child’s welfare and also to inform the authorities in the sending country about the child’s progress. The adoption proceedings and the legal consequences of adoption are similar to those for local adoptions.3 Provided that at least one adopting parent is an Australian citizen and the child is a legal permanent resident of Australia, the adopted child automatically becomes an Australian citizen.4
PRINCIPLES FOR INTER-COUNTRY ADOPTION
10.8 There have been a number of efforts to formulate basic principles for inter-country adoption. Such statements are intended to form a basis for consideration of particular issues and proposals.
10.9 The Convention on the Rights of the Child contains the following provisions specifically on inter-country adoption:5
States Parties [...] shall:
(a) [...]
(b) recognize that inter-country adoption may be considered as an alternative means of the child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;
(c) ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
(e) promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.
10.10 Many of the principles in Article 21 are similar to those formulated in a series of Australian and international statements.6 It is not necessary here to engage in a detailed consideration of such statements, but it is significant that they appear to be generally in agreement. One fundamental idea, reflected in the various statements of principle, is that inter-country adoption should be seen as a part of adoption law and practice, as distinct from an overseas aid program and as distinct from a service for infertile couples.7 If this is accepted, it appears to follow that the general concerns and standards underlying adoption law are fully applicable to inter-country adoption. In considering particular issues it would therefore be appropriate to commence with the assumption that the general rules and principles of adoption will apply except to the extent that the special features of inter-country adoption require modification.
10.11 The concern to establish basic principles appears to stem from a variety of perceptions about the purpose of inter-country adoption and a range of concerns about possible dangers arising from the practice. A recent United Kingdom report states that there is a “broad measure of international agreement” on certain aspects of policy and practice, which we would summarise as follows:-8
- the welfare of the child is of central importance; inter-country adoption should be a service for children, not a service to supply children from developing countries to adults of the western world;
- a recognition that inter-country adoption can provide the only opportunity for some children for a stable family life, but that there are associated risks which call for particular care in the management of inter-country adoption generally and in each particular case;
- a trend towards regulation rather than either prohibition or the operation of market forces;
- inter-country adoption should be a last resort, to be considered only where the child cannot be properly cared for in the sending country;
- illicit activities such as child-stealing and trafficking should be suppressed (in both sending and receiving countries);
- standards and safeguards applied to domestic adoptions should be applied to inter-country adoptions (for example, in the selection of adopters);
- inter-country adoptions should be arranged through public authorities or properly authorised agencies rather than through individual intermediaries;
- co-operation between sending and receiving countries is essential if the requirements and safeguards of each are to be observed; and
- standards and safeguards must be effectively enforced.
ASSESSMENT CRITERIA
10.12 The formal requirements for applicants, considered in Chapter 5, do not distinguish between local and inter-country adoptions except in relation to infertility, which is not a requirement for inter-country adoptions. The formal criteria do not specifically refer to criteria relevant to the needs of inter-country children although the requirements that applicants must have “the capacity to...meet the social, cultural and special needs” of the child and that applicants should “have the capacity and willingness to ... ensure the child is fully aware of his or her...culture and origin from the time of placement”9 may have a particular relevance.10
10.13 Are these criteria appropriate? Are there good reasons for not applying the infertility requirement to inter-country adoptions? Is it desirable that in other respects the criteria for inter-country adoption assessments should be the same as those applicable to local adoptions?
RESPONSIBILITY FOR ARRANGING ADOPTIONS
10.14 In the development of inter-country adoption to date, responsibility has been shared in a rather complex way among various bodies and agencies: the Department of Community Services, federal immigration authorities, support groups, private social workers and the applicants themselves. Are the present arrangements ideal? To what extent, if at all, should the existing federal responsibility be transferred to the States? Should the Family Court of Australia exercise jurisdiction in inter-country adoption or in adoption generally?11
10.15 What should be the role of support groups?12 In many cases their experience and inquiries mean that they have better information than is available elsewhere about the circumstances and policies in particular countries relating to the relinquishment of children for inter-country adoption. Should their functions be limited to support, encouragement and provision of information and advice, or should they be more actively involved in the arrangement of adoptions? What functions and responsibilities, if any, should be undertaken by authorised agencies? Should there be a single agency or government unit having exclusive control of inter-country adoption? Do the present arrangements provide adequate services for the children and the adoptive parents? Do they provide sufficient protection for the child and the birth families? These questions are relevant not only to the arrangement of the adoption, but also to matters arising after placement, including post-placement supervision and counselling, breakdowns or difficulties in the placement prior to the adoption order and, arguably, problems with the placement that arise after the adoption order has been made.
RECOGNITION OF OVERSEAS ADOPTIONS
10.16 Overseas adoption orders may be recognised in Australia in certain circumstances.13 Briefly, the adoption order must be effective in the overseas country; the adopters must have been domiciled in that country or resident there for 12 months prior to the adoption order14 and the consequences of the adoption order should be broadly similar to the consequences of adoption in New South Wales. Adoption orders made in proceedings involving denial of natural justice may be refused recognition. The Supreme Court may make declarations as to the validity of overseas adoptions. When an overseas adoption order is recognised in Australia, it has the same effect as a New South Wales order. It does not confer citizenship on the adopted person.15
10.17 Should the law on the recognition of overseas adoption orders be changed? In what circumstances, if any, is it appropriate to rely on the recognition of the overseas adoption order rather than requiring the adopters to obtain a New South Wales adoption order?
FEDERAL / STATES ISSUES
10.18 The present system, as we have seen, involves both federal and state government departments. The Fogarty Committee considered in 1989 that the “unusual interweaving” of Commonwealth and State powers was unnecessarily complex, for example in relation to legal challenges to administrative decisions. It considered that the federal legislation should be amended so that while the federal authority retained its control over the entry of children into Australia, thereafter the guardianship of the child should be placed with the state department operating under state law. Some progress has been made in relation to these matters,16 although not in relation to another recommendation that jurisdiction over adoption generally, not merely in relation to inter-country adoptions, should be transferred to the Family Court of Australia.17 The Commission would welcome comments on whether it should make recommendations in this area.
HEALTH INFORMATION ABOUT THE CHILDREN
10.19 Health information relating to children relinquished for adoption in overseas countries is often limited and sometime inaccurate. In Victoria, the Fogarty Committee has recommended that medical reports required by the Federal Department of Health, Housing and Community Services in connection with the issuing of entry visas should be made available to the state adoption authorities, and has also supported compulsory AIDS testing and the policy of giving the children a medical examination at a designated clinic shortly after arrival.18 Should similar recommendations be made for New South Wales?
RELATIVE ADOPTIONS
10.20 At present, neither law nor policy in New South Wales appears to distinguish between adoption by relatives in domestic and inter-country adoptions. Is this appropriate? Is there a danger that adoptions by relatives could be used to circumvent immigration policies?
FUNDING ISSUES
Who should bear the costs of inter-country adoption? What are the funding implications of the currently accepted principles for inter-country adoption?
10.21 A number of difficult issues arise in relation to the funding of inter-country adoption. Two features of inter-country adoptions are relevant. First, the additional expenses associated with bringing the child from the sending country and costs associated with the release of the child for adoption make these adoptions more expensive than other adoptions. The need to keep abreast of changing practices and conditions in the sending countries is also a significant cost, although as we understand it the information and expertise acquired by support groups somewhat shields the Department of Community Services from the costs and difficulties involved in this regard. The difficulties and expenses of these adoptions may increase if, as has been suggested, the children available for inter-country adoption are increasingly older children and children with special needs. Second, the widely accepted view that inter-country adoption should be seen as a service to children and not to the adopting parents may raise a question of priorities between claims on New South Wales funds to be used in respect of New South Wales children and claims made in respect of overseas children.
10.22 This issue only arises if it is assumed that the public money spent on inter-country adoption would otherwise be available to be applied for the welfare of children in New South Wales, either in adoption or other programs. Is this assumption correct? This issue would not arise if it were suggested that the adopters should as a matter of principle bear the whole or most of the costs. Such an approach, however, would confine these adoptions to the wealthy. Moreover, it may imply that, contrary to the accepted principles, inter-country adoption is a service for the adopters who by paying large fees acquire certain entitlements.19 These difficult issues of funding would become more acute if, as some would wish, the inter-country adoption program were to be expanded.
PROTECTION OF CHILDREN'S LINKS WITH BIRTH FAMILIES
Should law or practice be changed to reduce the risk of improper practices in the sending countries? Should the law prevent a complete severance of the child from the birth family?
10.23 It has often been suggested that the circumstances of inter-country adoption provide opportunities and incentives for undesirable practices. Extreme conditions of poverty might create a situation in which there could be trading in children, which the local authorities may lack the resources to identify or prevent. The position of mothers and other members of the birth families may be particularly vulnerable. Where the applicable rules are broken, it may be extremely difficult to enforce them without endangering the welfare of the children. A clear example is the situation where a child is brought to Australia in breach of the adoption requirements. The immigration authorities may face a grim choice between sending the child back to an uncertain fate in the sending country or allowing the child to enter Australia, thereby appearing to acquiesce in the breach of rules intended to protect the rights of birth parents and children.20
10.24 As noted earlier, in recent times the emergence of “open adoption” in its various forms has led to significant change in the nature of adoption. The circumstances of inter-country adoption make it difficult to implement similar changes in these cases. In particular, while in local adoptions the New South Wales agency has the opportunity to work with and respond to the needs of the birth family as well as the adoptive family, it may have no such opportunity in relation to the birth family in an overseas country. It is possible that the support group will have considerable knowledge and perhaps influence in the sending countries, although they may have little knowledge of the family background of particular children. Information relating to the children and their background varies greatly in quantity and accuracy. The circumstances of many sending countries as well as the removal of the children may make it difficult for the adoption authorities in those countries to offer much in the way of assistance or protection against the possibility of the sort of abuses referred to in Article 21 of the Convention on the Rights of the Child. Is there a danger that some inter-country adoptions involve unfairness to members of the birth family, and a separation of the child from the birth family that would be considered unacceptable in local adoptions? Is it possible, or desirable, to modify the New South Wales law or practice to respond to such difficulties?
FOOTNOTES
1. See Inter-country Adoption Booklet (NSW Department of Community Services, 7 October 1992), at 12.
2. Adoptions by single persons are supported only in “exceptional circumstances”, and may in any case be precluded by the requirements of the sending country: see Inter-country Adoption Booklet, at 19. Although this is an important issue which will require consideration, it will be convenient here to describe the operation of the system as it relates to the vast majority of applicants, namely married couples.
3. If the child has been adopted by the applicants in the sending country, the birth parents’ consent may not be required: see Adoption of Children Act 1965 (NSW), s 32 (f1).
4. Australian Citizenship Act 1948 (Cth), s 10A.
5. The omitted portions are quoted in Chapter 3 of this Issues Paper. A number of other provisions of the Convention also appear relevant, including the provision that “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”: Article 20 (3).
6. United Nations Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986); Australia. Joint Committee on Inter-country Adoption Report to the Council of Social Welfare Ministers and the Minister for Immigration and Ethnic Affairs together with the Ministerial Response to the Report (September 1986), pp 3, 31-34; Preliminary Draft Convention on International Co-operation and Protection of Children in Respect of Inter-country Adoption (Hague Convention, February 1992); see also Fogarty, J, Sanders, K, Webster M, A Review of the Inter-country Adoption Service in Victoria (Family and Children’s Services Council, Melbourne, October 1989) (“Fogarty (1989)”); United Kingdom. Review of Adoption Law: Report to Ministers of an Interdepartmental Working Group (Department of Health, October 1992) (“United Kingdom Report”), at 81-84.
7. See for example Fogarty (1989), at 39-41; United Kingdom Report, at 81-84.
8. United Kingdom Report, at 13-14.
9. Clause 5.
10. Clause 2.
11. This was the recommendation in Fogarty (1989), at 58-60.
12. For a detailed discussion, in the Victorian context, see Fogarty (1989) and Victorian Family & Children’s Services Council (Fogarty J Chairman) The Intercountry Adoption Service in Victoria: A Follow Up Review (Victorian Family & Children’s Services Council, Melbourne, July 1991).
13. See Adoption of Children Act 1965 (NSW), ss 44-47.
14. In 1986 the Council of Social Welfare Ministers and the Minister for Immigration and Ethnic Affairs agreed that all jurisdictions would legislate to require a minimum period of 12 months genuine residence in the country concerned as a condition of recognising in Australia an adoption order obtained overseas.
15. An application for citizenship may however be made by the parent or the child: see generally Fogarty (1989) at 54-55.
16. See Fogarty (1991), at 22.
17. Fogarty (1989), at 56-60.
18. Fogarty (1991), at 63-4.
19. Fogarty (1989), recommended that the fee for service be discontinued.
20. See, for example, the front page story on the Sunday Tasmanian, 5 May 1991, Attachment 2 to Australian Catholic Social Welfare Commission, Discussion Paper: Inter-country Adoption (Australian Catholic Social Welfare Commission, August 1991).
