SYNOPSIS

10.1 Following an introduction and a brief history of intercountry adoption, this chapter will outline current legislation and the current procedure for adopting a child from overseas. This gives the context for exploring possible changes to intercountry adoption.

10.2 The concept of intercountry adoption, as distinct from the way in which it is practised, is then evaluated in order to assess whether New South Wales should participate at all; to highlight any misgivings; and to raise issues which may affect future thinking.

10.3 In examining the concept of intercountry adoption, frequent reference is made to The United Nations Convention on the Rights of the Child ("UNCROC") and the Hague Convention on Protection of Children and International Co-operation in Respect of Intercountry Adoption ("the Hague Convention"). In order to understand fully the relevance of these international conventions to the conduct of intercountry adoption in New South Wales, each is outlined in some detail.

10.4 The next section of the chapter then evaluates current practices in intercountry adoption in New South Wales to establish where changes should be made or where there should be legislative endorsement of current practice. There are many issues involved and each is dealt with separately under the following sub-headings:

• financial aspects and preventing trafficking in children;
• parent support groups;
• the role of DOCS and accreditation of non-government organisations;
• adoption information;
• preparation, assessment and counselling;
• post-placement reports;
• recognition of adoption orders;
• older-aged adoptees;
• birth names;
• multiple placements; and
• immigrants and adoption.

10.5 To the extent relevant or appropriate in relation to each, the discussion under each of the above sub-headings:

• looks at an issue in the context of present practice;
• highlights where international conventions require certain standards or safeguards;
• evaluates whether current standards or practices are inadequate or fail to comply with international conventions;
• looks at the way in which other States or countries have approached an issue;
• outlines the provisional proposals for reform set out in DP 34;
• considers submissions received addressing the provisional proposals for reform;
• discusses ways in which safeguards can be introduced and standards lifted or maintained, taking into account submissions; and
• recommends legislative reforms accordingly.

10.6 Finally, the chapter discusses the role of the Department of Immigration and Ethnic Affairs ("DIEA"). This department is an important participant in intercountry adoption. DIEA determines whether or not an overseas adoptee will be allowed entry to Australia, pursuant to the Migration Act 1958 (Cth) ("the Migration Act") and Migration Regulations 1994 ("the Migration Regulations"). Although the DIEA has an integral role in the conduct of intercountry adoption, this area is not dealt with until the end of the chapter because the terms of reference for this report do not extend to making recommendations in relation to immigration legislation and practice. This section of the chapter comments on changes that may need to take place in order to accommodate changes in adoption law and in order to comply with international obligations. It also draws attention to difficulties in the application of migration law to adoption. Lastly, in order to complete an understanding of intercountry adoption, this section explains the way in which an intercountry adoptee gains entry into, and citizenship of, Australia.

10.7 The Commission has confined its recommendations to legislative reform. Some aspects of intercountry adoption practice cannot appropriately be governed by legislation and, therefore, although discussed in this chapter, specific recommendations in relation to these have not been made. Nonetheless, the Commission urges that all agencies¹ processing intercountry adoption should endeavour to observe the standards and safeguards discussed.

10.8 Specifically in relation to Australia's international obligations, in some respects they should be made law in New South Wales, and recommendations have been made accordingly. In other respects, it is not practical to incorporate them in legislation. However, New South Wales adoption practice should, at least, conform to international standards to which Australia is a signatory.

10.9 The only practical control that New South Wales can have over the conduct of certain areas of intercountry adoption, such as in relation to the taking of consents in the overseas ("sending") countries, is in the licensing of our agencies and in the choice of sending countries and programs within those sending countries. Generally, these are matters for DOCS to decide and regulate. For example, in deciding whether or not to license an agency to carry out intercountry adoption, DOCS should consider whether the agency's practices conform to Australia's international obligations. Where issues can be regulated by imposing licensing conditions in the legislation, recommendations have been made accordingly.

10.10 All the Commission's recommendations appear throughout the chapter under the relevant headings. In addition, for easy reference, the recommendations are grouped at the end of the chapter in the order in which they first appeared.

INTRODUCTION

10.11 Intercountry adoption now accounts for approximately half of all adoptions in New South Wales². It is arguably the most sensitive and complex area of adoption. It involves all the issues relating to domestic adoptions as well as a range of other issues. Moreover, it involves Australian immigration law and policy; the laws and policies of the overseas countries; and obligations under international conventions.

10.12 Because the children are being placed internationally, and almost always interracially, issues relating to cultural heritage arise. Also, many children have "special needs" because they are older and/or have disabilities. Many of the children, including babies, are likely to be physically and/or emotionally vulnerable because of early physical and/or emotional deprivation.

10.13 Intercountry adoption has frequently been associated with intense controversy. At one end of the spectrum, there is the view that it is a form of exploitation of Third World countries by First World countries and should be discontinued. At the other end of the spectrum, there is the view that intercountry adoption is a humanitarian act, towards both individual children and the sending countries, and thus is a form of overseas aid; it should be encouraged to develop and expand. There are numerous intermediate positions.

10.14 Intercountry adoption is a more complex arena than local adoption in two further respects. First, there are organisations specifically formed for the purpose of supporting Australian adoptive parents of overseas born children and they play a significant role in intercountry adoption. Secondly, the role of DOCS in intercountry adoption is comparatively limited and sometimes ambiguous.

HISTORY OF INTERCOUNTRY ADOPTION

10.15 The concept of intercountry adoption has its origins in the aftermath of the two World Wars, but particularly after World War II, when the disruption of families in war-torn countries resulted in large numbers of abandoned and orphaned children. Children from Germany, Greece and the Baltic States were sent by religious organisations for adoption in other European countries and in the USA. From 1953 large numbers of orphaned or abandoned children from the Korean war were adopted overseas. In Australia, however, intercountry adoption is a relatively recent practice: prior to 1975 there were few intercountry adoptions. It only became a recognised avenue of adoption following the airlift in 1975 of Vietnamese war orphans to Western nations: the 292 children who came to Australia were adopted by Australian families³.

10.16 Since then, adoption of children from Asia and Latin America has become well established in Australia, but for reasons which have diversified from this early reaction to a specific crisis.

10.17 Intercountry adoption has endured as a response to the needs of children orphaned, abandoned or relinquished because of military conflict, poverty or stigmas attaching to illegitimacy, disablement or mixed race.

10.18 But another momentum has, since the 1970s, overtaken the original impetus for intercountry adoption. Economic, demographic, cultural and political changes in Australia in the last twenty years have resulted in fewer unwanted births, less pressure to relinquish ex-nuptial children for adoption and later discovery of infertility due to couples delaying starting a family. The two-fold effect of these factors is a marked decrease in the availability of Australian-born children for adoption and many couples finding themselves too old to adopt locally born babies. As a result, increasing numbers have turned to intercountry adoption to begin or extend their families.

10.19 It can be seen, then, that intercountry adoption is a shifting, evolving phenomenon, responding to both domestic and international forces. The Commission can only review the practice, and make recommendations, in the context of what is happening now. It is inevitable that further changes will occur in the future and for this reason it is an area that needs constantly to be reviewed.

10.20 There have been recent changes in international parameters and further changes are imminent. Australia has now, and is most likely to acquire in the near future, further international obligations affecting intercountry adoption practice and policy. These include existing obligations under UNCROC and foreshadowed obligations under the Hague Convention.

CURRENT LEGISLATION

10.21 When the the Adoption Act was drafted, intercountry adoption was virtually unheard of in New South Wales. Consequently, the Act did not address the situation where applicants resident or domiciled in New South Wales wished to adopt a child from another country. The only specific reference to overseas adoptions was to be found in s 46 ("Recognition of foreign adoptions"), and s 47 ("Declarations of validity of foreign adoptions"). Section 46 allows for recognition of an adoption order made in another country provided the adopters had been resident for 12 months or more, or domiciled, in that country. An adopter who qualifies under s 46 can apply to the Court under s 47 for a declaration of validity of the foreign adoption order.

10.22 In 1987 the Adoption Act was amended to include s 65A ("Report for applicants where child overseas"). This section gives authority to the Director-General of DOCS to assess applicants for intercountry adoption and to prepare an assessment report.

10.23 The Adoption Regulation⁴ includes clauses in the area of intercountry adoption. These are as follows:

• clause 6(2) provides that a person may submit an expression of interest to adopt a child from overseas;
• clause 12 deals with assessment of applicants for overseas adoption;
• clause 13(c) enables the Director-General, or principal officer of a private adoption agency, to limit an approval to adopt to a child from a specified country or to a child of a specified race or ethnic group;
• clause 16(c) sets up an overseas section for an adoption register of applicants;
• clause 21(c) provides that Form 3 is the appropriate consent form to use for general consent to the adoption of a non-citizen child; the Minister administering the Immigration (Guardianship of Children) Act 1946 (Cth), or his or her delegate, as guardian of a non-citizen child, must consent to that child's adoption; and
• clause 29(2) provides that a report about the child's social, developmental and medical history and the social, developmental and medical history of the child's family must be obtained before an intercountry adoption can take place.

10.24 There are other clauses which apply to local and intercountry adoptions alike, but there are no further clauses specifically directed at intercountry adoption.

CURRENT PROCEDURE

10.25 The role of DOCS is central to all adoptions within New South Wales, including intercountry adoption. Whereas private adoption agencies such as Barnardos, Centacare and the Anglican Adoption Agency also play significant roles in local adoptions, there are no private adoption agencies involved in intercountry adoptions.

10.26 A person wishing to adopt a child from overseas must submit to DOCS an expression of interest⁵. DOCS forwards an information video to interested people together with an information newsletter, an adoption booklet and an "expression of interest" form. The utilisation of a video is recent and has been positively received. Applicants feel more comfortable watching an information video in their own homes rather than attending a session with approximately 300 other people. As well, the video can, of course, be rewound and played again as necessary⁶.

10.27 DOCS assesses each completed "expression of interest" form and invites enquirers to attend an adoptive parent education and training course⁷. Following their attendance at this course, interested persons are invited to complete an application to adopt, nominating the country from which they wish to adopt⁸. At this time, DOCS encourages applicants to join one of six parent support groups. The exception to this is if the applicant wishes to adopt from a country with which DOCS itself has a program and with which there is no parent support group involvement. The countries to which this applies are Fiji, the Philippines and Romania. Although the parent support group for Ethiopia is based in Queensland, New South Wales applicants wishing to adopt from that country must nonetheless join the Queensland group.

10.28 The role of parent support groups in intercountry adoption is discussed in detail in paragraphs 10.139-10.163. Briefly, however, parent support groups play an integral role in intercountry adoption procedure. It is usually the parent support group which has established the adoption program in the overseas country and has built up a relationship with the overseas agency or orphanage involved. In most cases, it is the Australian parent support group with whom the overseas agency or orphanage principally liaises. Choice of parent support group will depend on the country from which the applicants wish to adopt as each parent support group has programs in one or more countries, with only limited overlap.

10.29 The parent support group usually helps the applicants prepare documentation. One group will also arrange translation and two of the groups will arrange notarisation. Some of the groups also forward documentation to the sending country. Documentation required to be forwarded to the sending country includes financial information, medical information and birth and marriage certificates relating to the applicants.

10.30 The process of assessing the applicants for their suitability to adopt begins following lodgement of an application to adopt⁹. This process usually takes three to six months. Applicants are interviewed several times over this period by a private social worker, contracted by DOCS or a DOCS District Officer where no private social worker is available. At the completion of the interviews the social worker prepares an assessment report, known as the "home study", which is forwarded to DOCS. Basing its decision on the home study, health reports, police check and referee's report, DOCS either approves the applicants as suitable to adopt a child or a particular child, or declines to give approval. If the applicants are approved to adopt, the home study is forwarded to the sending country for consideration for placement of a child with the applicants. One parent support group forwards the home study to the sending country, but otherwise it is forwarded by DOCS¹⁰.

10.31 Allocation of a child to particular applicants is a matter for the sending country. The sending country notifies either DOCS directly, or the parent support group, that a particular child has been allocated to particular applicants. DOCS conducts an "allocation interview" with the applicants and, if the applicants agree to accept the allocation, they sign an "Agreement and Undertaking" to accept and support the child.

10.32 Before travelling overseas to collect their child, applicants must apply for a Class 102 (Adoption) Visa and Entry Permit pursuant to the Migration Regulations 1994 (Cth) granting the child entry into and permanent residence in Australia. The visa will only be granted if, among other things, DOCS has approved the applicant to adopt the child. Immigration issues are discussed in detail in paragraphs 10.251-10.276.

10.33 The applicants contact DOCS on their return to Australia with the adopted child. A post-placement interview is conducted and a report made. Two post-placement interviews take place in the first six months of the child's placement in Australia after which a decision is made to proceed to obtaining an adoption order in the New South Wales Supreme Court. However, the adoptive family can ask for as many additional post-placement interviews and can access as much post-placement support as it needs without any further charge¹¹.

10.34 The applicants must apply to the Supreme Court of New South Wales for an Adoption Order. It is not sufficient if the child has been adopted under the laws of the sending country, since foreign adoption orders are only recognised in New South Wales if the adopter had been resident for 12 months or more or domiciled in the country in which the adoption order was made¹². Usually two post-placement reports, prepared over the course of six months, as well as a report by the Director-General¹³, are submitted by DOCS to the Court in the adoption proceedings.

THE CONCEPT OF INTERCOUNTRY ADOPTION

10.35 Australia has not yet ratified the Hague Convention, although it is expected to do so in 1997¹⁴. With Australia poised to ratify, it may seem that an evaluation of the concept of intercountry adoption has been pre-empted. We appear to be committed as a nation to participation in the practice and, more relevantly, New South Wales appears to be committed, having supported a proposal for ratification. However, there are a number of points to make in this regard:

• Although New South Wales has indicated its approval at a national level for ratification of the Hague Convention, there is nothing in this which gives rise to any legal or moral obligation for New South Wales to continue to participate in intercountry adoption.
• Even if New South Wales continues its current involvement in intercountry adoption, it is proper for the Commission to highlight any general misgivings it may have concerning the practice.
• The point is made above that intercountry adoption is a changing arena. What is considered appropriate now may not be appropriate in the light of future developments. In reviewing intercountry adoption the Commission has a duty to raise issues which may affect future thinking.

10.36 Therefore, the Commission has evaluated the concept of intercountry adoption, as opposed to the way in which it is practised, in order to assess whether New South Wales should participate at all, to highlight any misgivings and to raise issues which may affect future thinking. This evaluation is contained in the following paragraphs 10.39-10.83.

10.37 The Commission's conclusion is that, when practised in accordance with strict regulations and guidelines, intercountry adoption has a legitimate role to play as a means for providing care for children who cannot be cared for in their country of birth. Although the international community has felt sufficient concerns about the unregulated growth of intercountry adoption to assent to a number of Declarations¹⁵ and Conventions establishing principles and standards of practice, intrinsically these Declarations and Conventions condone the continuance of intercountry adoption.

10.38 However, as UNCROC and the Hague Convention make clear, intercountry adoption must be seen as "a safety-net program for children whose needs cannot be better met in other ways"¹⁶. One of the aspects which should be satisfied before a child is placed for adoption in New South Wales is that that child cannot be placed with a family within the birth country. The Commission cautiously agrees with the view that "long-term institutional care is generally recognised as the least desirable outcome for children who have permanently separated from their original family"¹⁷.

Controversial aspects of intercountry adoption

Cultural heritage

10.39 Chapter 8 deals with cultural heritage and issues of identity and self-esteem as well as issues concerning racism and language barriers. That chapter outlines some of the potential problems of transcultural placements. Clearly, almost all intercountry adoptions would be across cultural boundaries. The problems transcultural adoptees may encounter are potentially magnified when there is not only loss of birth culture but loss of birth country as well.¹⁸ Furthermore, issues of identity establishment are complicated by the unlikelihood of the child being able to access information on his or her roots and of making contact as an adult with the birth family:

While loss is a key issue for all members of the adoption triangle, for intercountry adoptees the pain of loss may be so unbearable that it is denied, dissociated and deeply repressed. Loss may include absence of information about date and place of birth, as well as birth parents and the knowledge that this personal data may never be found. Under such circumstances search and reunion is an impossible and frightening option, since the assumption of the adoptive family's culture makes the intercountry adoptee a stranger to their own culture and the language gap increases their alienation from their origins and reinforces their unknowable familial past. Such losses go beyond the bearable and strike at the very existence and essence of the self.¹⁹

10.40 Many intercountry adoptees are older-aged (over two years). Chapter 8 discusses research findings which indicate that older-aged cross-cultural adoptees experience greater adjustment difficulties. "Most studies report that the older the child at placement the greater the probability of failure."²⁰

10.41 If an adoption does break down, it can be particularly distressing and damaging for children who have been uprooted from their own culture and country, particularly if they have to be placed in residential care, even for a short period, in an unfamiliar country.

Openness

10.42 Chapter 7 discusses the advantages of openness in adoption, most particularly for the child. Separating a child from his or her birth parents and relatives by national boundaries places enormous obstacles in the way of a true open adoption. Some of these obstacles, aside from the obvious geographical one, include:

• a lack of identifying information;
• inaccurate records;
• a lack of acceptance in the sending country for searching;
• cultural embarrassment or taboos;
• language barriers; and
• barriers created by the assumption of a culture different from the birth culture.

10.43 Furthermore, as it is the overseas country which allocates children to adoptive parents, it is not possible for adoption agencies in New South Wales to take into account wishes of the birth parents in the selection of adoptive parents, as is done for local adoptions.

Intercountry adoption as a form of aid

10.44 Intercountry adoption is justified by some as a humanitarian response to the plight of needy children. It has been argued, however, that this is an incorrect response to the ills of the developing world.²¹ It acts as something less than a bandaid solution to the problem of 80 million homeless children world wide.²² It is argued that the money spent on intercountry adoption (an average of $20,000 per adoption and sometimes more) could be spent far more effectively on various forms of aid including sponsorship; provision of medical services; development of infrastructure and agricultural programs; building and improving orphanages and smaller residential care units; promotion of local fostering and adoption; and programs to prevent family breakdown and support vulnerable families.²³ Furthermore, if intercountry adoption is developed as a program of some priority it may impede the development of more effective and broadly based solutions.²⁴

10.45 Approaching intercountry adoption as a form of aid carries with it a danger of placing on the child an implied burden of being grateful for having been "saved":²⁵

This can lead to a situation in which the child may feel that his gratitude can never equal what has been done for him and the debt becomes impossible to repay ... Associated with this is the fact that in seeking to parent an older child of different race who has suffered abandonment and deprivation in his birth country and whose future by Western standards may seem bleak, there may be the tendency to view the child in terms of his condition rather than for himself as an individual.²⁶

10.46 There is also a need to guard against replicating the misguided and damaging past treatment of Aborigines which involved taking Aboriginal children from their families. Non-Aboriginal Australians deemed it to be in the children's best interests to remove them from what were judged, from a Western viewpoint, to be inferior circumstances.

Discrimination in the birth country

10.47 It has been argued that intercountry adoption can save a child from serious discrimination in his or her own country. For example, in Korea illegitimacy carries with it a significant stigma. Illegitimate children are precluded from having their names written in the family register and thereby may be seriously prejudiced in many aspects of their life.

10.48 Things can and do change, often far more rapidly than can be anticipated. In Korea, until recently, adoption was shrouded in secrecy because of the stigma attached to illegitimacy. Approximately eight years ago the unexpected happened when the Eastern Child Welfare Department, responding to demand, established a searching organisation to bring about contact between the birth family and adopted children. Again in Korea, prior to 1962, there were no non-relative local adoptions because of the importance placed on bloodlines. By 1988, there were 2,300 local adoptions. Ironically, it is claimed that:

[t]his increase in local adoption is largely due to the good work of intercountry adoption agencies who have tried to place children locally.²⁷

10.49 Whatever the reasons, probably including an improving economy, standard of living and general education, the establishment of a searching organisation and the growth of local non-relative adoption evince changing attitudes.

10.50 Although there is still stigma attaching to illegitimacy in Sri Lanka, there is evidence that this is beginning to decrease in urban areas. Programs have recently been started to support single mothers. In Colombo, for instance, a home has been established to enable single mothers to keep their children. It is being found that, although the stigma of bearing an illegitimate child remains a disincentive for single mothers, many will keep their children if economic support is provided.²⁸ There is no reason why these changes will not continue nor why such changes could not occur in other countries.

10.51 In Romania, during the Ceausescu regime, large numbers of children were abandoned or relinquished to orphanages.²⁹ The reasons can be attributed, among other things, to poverty, the illegality of contraception and abortion, the lack of welfare provisions for single parents and the stigma of illegitimacy. In the six months subsequent to the fall of the regime, 1,200 children were restored to their birth families. Social welfare reforms have been introduced to enable parents to keep their children and to reduce the incidence of unwanted pregnancies. Increased living standards have enabled Romanians to adopt. While these sociological factors are not related to issues of discrimination, it is further illustration of how seemingly fixed circumstances can change, and change rapidly.

10.52 Romania also furnishes a lesson about exercising caution before resorting to the solution of intercountry adoption in response to a crisis. Immediately following the fall of the dictatorship and before social reform could be implemented, Westerners rushed to adopt from the orphanages. Between August 1990 and July 1991, 10,000 children were sent overseas.³⁰ It later became apparent that some children who had been left in the orphanages for temporary care only had been taken out of the country.³¹

10.53 We only have to compare the situation in New South Wales as recently as the 1960s with prevailing social and economic conditions to be persuaded that significant changes can evolve:

Increasingly ... a direct correlation is being established between improved standards of living in a country, lowering of the stigma of illegitimacy, improving services to single parents and a diminishing number of babies available for adoption.³²

Adopting children from deprived and abusive backgrounds

10.54 Most intercountry adoptees would have spent some time in an institution, almost certainly experiencing emotional deprivation. Some would have suffered abuse. As a result, many children will be developmentally and psychiatrically vulnerable. Often the experience of trauma is manifested in behavioural problems. Added to this, a significant number of children arrive suffering from disabilities and health problems, including the effects of malnutrition.

10.55 Obviously, parenting a child from this sort of background is extremely difficult. The adoptive parent can be faced with the dilemma of having to discipline instances of misbehaviour, but being reluctant to punish children who have suffered so much already. The child may find it difficult to bond and communicate and their responsiveness to the new parents and environment may be hampered by disability or ill health. Mussen reports that "extreme neglect in [the first year of life] may result in damage to the child's future capacity for developing satisfying relationships with other people".³³ Although not conclusive, research on children who have suffered malnutrition and deprivation in infancy and childhood has found some difficulties in social behaviour as compared with non-deprived children.³⁴ In many cases the child will appear to adjust quickly but "the pain will almost certainly re-surface at some stage".³⁵

10.56 There would also be difficulties in parenting an older child whose past is locked away from the parent. Adoptive parents usually have very little background information on the child and, until the child acquires the parents' language, he or she cannot communicate above a basic level. It is then not uncommon for memories to be lost with loss of the mother tongue or for the memories to be repressed or denied. It can be threatening for parents to be thus excluded and more difficult to understand their child's reactions and fears. Many adoptive parents would have little understanding or even knowledge of what the child has been through and would, therefore, have difficulty helping a child put his or her early experiences into context.³⁶

10.57 In drawing attention to these factors, the Commission is not mounting an argument that intercountry adoption can never work. The salient point is that adopting a child from a deprived or abusive background is potentially difficult. This signals the importance of preparation and counselling for prospective adoptive parents, and post-placement support, which is discussed below. It also lends support for the contention that it is important for one carer to stay at home for an extended period of time following the adoption. This is discussed in Chapter 6.

Creating conditions for trafficking in children

10.58 There is no doubt that trafficking in children does exist and that intercountry adoption creates a market which, in the corrupt extreme, allows for the iniquitous practice of buying and selling children.³⁷ So long as intercountry adoption is an accepted practice, there will be people sufficiently desperate for a child to go outside the system and people sufficiently corrupt to make money from this need.

10.59 Australian legislation does not permit private adoptions by non-relatives. It is these adoptions which have been associated with most of the abuses which take place in intercountry adoption. However, we should not feel complacent that trafficking could not involve Australian adoptive parents. Some Australians have obtained children through a lawyer or other intermediary, in some instances thereby wittingly or unwittingly becoming involved, directly or indirectly, in the buying and selling of children.³⁸ Relinquishment or abandonment papers can be forged for illegally obtained children.

10.60 Up until recently, there were particular concerns with programs in Brazil because adoptions were in effect private and highly susceptible to abuse.³⁹ Significant reforms were introduced in 1990, most notably government regulation, in an effort to eliminate corruption. It should be further noted that, contrary to the perception that if there was no intercountry adoption hundreds of children would languish in institutions, "... there is a huge waiting list of nationals wanting to adopt infants and young children up to four years of age".⁴⁰ The placement of a child in a foreign substitute family is intended by law to be an exceptional solution; Brazilian families have priority over foreigners.⁴¹ Brazilian Code of Minors, Article 31. Carvalho da Silva, senior adoption worker in Sao Paulo, records:

[i]n my personal experience with adoptions, I have seen infants adopted by foreigners when the judicial authorities did not uphold the principle of Brazilian national's [sic] priority, or in cases of illegal adoptions (of which foreigners should be especially cautious).⁴²

10.61 Correspondence from the National Service of Minors (SENAME) in Chile, a dependant body of the Justice Ministry, expresses concern about loopholes (its word) in adoption legislation which permit avoidance of its assessment of a proposed adoption. Although all applications for foreign adoption are meant to go through SENAME, independent adoption is still possible in Chile. "Foreign couples will turn to social workers, lawyers, nuns, or merchants and pay them elevated prices to find a child for them in a short period of time."⁴³ An agent of the applicants can approach the Court directly to obtain an adoption order for a particular child. New South Wales has been involved in a program in Chile, although DOCS has now closed this program down because of misgivings about it.

10.62 In Costa Rica adoptions can be processed directly by the Family Court, where the process is initiated by an attorney representing the adoptive family. In these adoptions there is no government involvement or supervision. The problem with this type of adoption is that:

the biological family relinquishes the child directly to a third party or to a lawyer, without necessarily receiving counselling before deciding if this is the best solution for both mother and child. A decision made in this way, without the benefit of counselling, often results in an economic transaction, in which the child is a commodity.⁴⁴

10.63 However, where the adoption is processed by the adoption section of PANI, a statutory welfare authority, birth family members are counselled, there is an established procedure to follow before a child is declared abandoned and social workers and psychologists are involved in the placement of the child.

10.64 In Peru, where adoptions are by private petition to a Minors' Court, the number of attorneys working in the adoption field increased from five or six in 1984, just prior to when intercountry adoption first started to be promoted, to over 40 in 1994. Attorneys' fees range from $8,000-$10,000 per adoption. De Sztrancman and Sztrancman Waisblack, Adoption Coordinators in Peru, document kidnapping of children, trafficking, irregular adoptions, forgery of papers and corrupt procedures.⁴⁵

10.65 In relation to the perceived necessity of intercountry adoption, the Regional Expert Meeting on Protecting Children's Rights in Intercountry Adoptions and Preventing Trafficking and Sale of Children recommended that:

a reassessment of the need for ICA [intercountry adoption] is clearly essential. There is a widespread misconception about the numbers of children in need of ICA. The "demand" for such children in the US, Europe and Australia is much larger than their "availability".⁴⁶

10.66 There are some who wish to see a prohibition of all intercountry adoption to eliminate any risk of child trafficking. However, it is possible to participate in intercountry adoption without exposing the process to the risk of child trafficking. This requires vigilant adherence to strict standards, some of which already exist and some of which will need to be implemented. As raised below in paragraphs 10.268 and 10.269, DIEA has a responsibility to work alongside New South Wales' adoption laws in this common aim.

Problems of ensuring voluntary relinquishment

10.67 Arguably, the problem of ensuring that relinquishment of the child and consent to the child being adopted overseas are voluntary is not so much a problem with the concept of intercountry adoption as a problem with practice. However, the process of relinquishment is potentially more vulnerable to abuse in intercountry adoption because of factors relating to financial incentives and levels of education and literacy.⁴⁷ "Certainly, many mothers ended up signing documents permitting the adoption of their children without even knowing what they were doing": Carvalho da Silva at 129. Certainly the international community has been sufficiently concerned to address specifically this area in both UNCROC and the Hague Convention.⁴⁸

Creating conditions for abandonment

10.68 The concern that intercountry adoption creates conditions for abandonment is tied in with trafficking of children in so far as financial incentives may be involved:

In a country of widespread urban poverty ... women may be tempted or obliged to sell some of their children for [the] purpose of adoption in order to support the rest of the family, or may be encouraged to have children to supply the existing ICA [intercountry adoption] market.⁴⁹

10.69 The pressure on impoverished parents to relinquish or abandon a child may not necessarily involve financial gain. The existence of intercountry adoption may appear as an easy answer to the strain of trying to provide for a number of offspring, compared with the cost of seriously pursuing alternative ways of coping or alternative forms of child care.

10.70 Maria Josefina Becker of the Brazilian Federal Child Welfare Agency states that:

the great majority of poor children in Latin America, whether they are found in the streets of our cities or in public or private children's institutions, whose numbers are in the millions, are not abandoned. These children, together with their families, are victims of the serious economic conditions affecting our part of the world ... To the extent that they actively undertake the search for children to be adopted, couples and agencies involved in international adoption, their generous and humane motives notwithstanding, increase the pressures favouring a rupture between the poor child and his or her family rather than strengthening the ties between them ... In this way conditions encouraging the "production" of abandonment are created, apparently motivated by the assistance and protection of the child, which in reality serve the interests of adoptive parents.⁵⁰

10.71 De Sztrancman and Sztrancman Waisblack report that:

[m]any Peruvian mothers, finding themselves in a situation of poverty and misery, hand over their children for the double advantage of getting some money and not having to take care of the children any longer. Children born in Peru in such excessive numbers, are viewed as legitimate exportable property. With today's existing laws and procedures, this export is carried on as a type of contraband, in a sordid process of corruption, falsifications, and legal chaos.⁵¹

Creating conditions to discourage local adoptions

10.72 Some agencies or institutions depend substantially on the income they receive from intercountry adoption fees. Overseas applicants pay higher fees and come through organisations that provide generous funding for children's homes. The danger in this is that there is greater incentive for agencies and institutions to promote intercountry adoptions rather than local adoptions. There is evidence to suggest that this does occur.⁵²

Bypassing needy Australian children

10.73 Focusing on intercountry adoption deflects attention from Australian children with "special needs" who are either in institutional residences or in temporary foster care awaiting placement. Centacare and Barnardos report difficulty placing local "special needs" and older children, with too few people in the "pool" willing to take such children. In most cases, adoptive parents have to be found by active recruitment, including advertising. DOCS do not have a "pool" for "special needs" children, but recruit for each particular child through a newsletter. Prospective intercountry adopters are informed of the DOCS "special needs" program but, according to DOCS, the majority are not prepared to take a "special needs" child. While most children can eventually be placed, in some cases the child may have to wait in residential care for up to two years.

Matching

10.74 In intercountry adoption, matching:

is often virtually non-existent ... Usually matching has to take place on the basis of very limited non-psychological characteristics, like age and gender of the child and family constellation of the would-be adopters. In intercountry adoption financial and practical circumstances virtually preclude the possibility of meeting and getting to know one another before the child is actually placed in the family.⁵³

10.75 This situation contrasts with the care with which adoptive parents are matched with local adoptees. This aspect of intercountry adoption has obvious implications for the potential success of the placement, particularly when it is compounded by differences between parents and child in skin colour and cultural background. In addition, Loenen & Hoksbergen argue that "responsiveness", said to be the most crucial factor in the development of attachment relationships,⁵⁴ is affected by the "matching" of child with parent. "Familiarity with each other, the environment, all help to facilitate responsiveness."⁵⁵

Arguments supporting intercountry adoption

10.76 UNCROC, in its Preamble, recognises "that the child, for the full and harmonious development of his or her personality, should grow up in a family environment ..." If this can only be achieved through placing that child with a family in another country then this alternative must be considered. Both UNCROC and the Hague Convention envisage that this alternative may be appropriate for children who cannot be cared for in families in their country of birth. Australia has shown its support for the principles contained in UNCROC by ratifying it and likewise has shown support for the Hague Convention by foreshadowing ratification.

10.77 Certainly there are strong arguments that family life in a foreign country is to be preferred to life in an institution in the birth country. K Choularton, Chief Psychologist for the Department for Community Welfare, South Australia, argues that children are "less at risk with a family than they would if they were left in institutional care or in a succession of temporary foster homes".⁵⁶

10.78 The potential and inherent problems of transcultural placements are referred to in paragraphs 10.39 to 10.41 and discussed fully in Chapter 8, "Cultural Heritage". On the other hand, the conclusion reached in Chapter 8 was that there was sufficient evidence of successful transcultural placements to preclude prohibition of such placements.

10.79 While it is no doubt true that intercountry adoption can be no more than a bandaid solution to the enormous problem of Third World poverty, it is also valid to argue that at least it enables some children to be provided with a permanent family who may otherwise not have had one.

10.80 In answer to the argument that provision should be made for the children in their own country, Baker responds that "it is true that children orphaned or abandoned ... can often, by persistent casework, be found a home in their extended family. Nevertheless, numbers of orphaned refugee children do languish for years in holding camps, with no permanent carers".⁵⁷

10.81 The Australian Intercountry Adoption Network ("AICAN") argues that intercountry adoption does not permit sending countries to avoid their responsibilities to children for three reasons. One, intercountry adoption provides a solution for only a small number of children. Two, intercountry adoption has "served as a catalyst for the development of indigenous services and has provided a rallying point for assistance to children who are not adopted".⁵⁸ And three, those countries with which Australia currently has programs are not neglecting other measures such as foster care, orphanages or promoting local adoption. The point has also been made that adoption organisations and adopting parents contribute to child welfare in the sending countries by making donations, by financially sponsoring children who remain in their communities and by giving financial support to community projects.

10.82 It is argued that banning intercountry adoption may mean an emergence of illegal activity by would-be parents. This possibility cannot justify continuing intercountry adoption if it was otherwise thought to be contrary to the best interests of children. However, there is some merit in the view that if an activity is likely to be carried on despite prohibitions it is better to bring that activity out in the open and assiduously monitor and regulate it.

10.83 It is by now apparent from the above references to UNCROC and the Hague Convention that these two international agreements have a pivotal role in the conduct of intercountry adoption. It is important, therefore, to examine each in some detail.

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD

10.84 The United Nations Convention on the Rights of the Child ("UNCROC") was adopted by the General Assembly of the United Nations on 20 November 1989. Australia ratified UNCROC on 22 August 1991. It is now part of international law and binds Australia as a nation state. All countries, but one, with whom Australia has intercountry adoption programs have ratified UNCROC. Taiwan is the exception; it therefore has no obligations under UNCROC.⁵⁹

Article 21

10.85 Article 21 lays the foundation that the best interests of the child must be paramount in adoption. It then contains a prescription of the issues that need to be considered in intercountry adoption. In substance, they are as set out in the following paragraphs 10.86 to 10.91

10.86 Adoptions must be authorised only by competent authorities after obtaining the necessary consents, given after counselling where necessary.⁶⁰ This has a parallel article in Article 4 of the Hague Convention. These articles are discussed under the heading "Financial aspects and preventing trafficking in children".

10.87 Intercountry adoption must only be considered if the child cannot be placed in a foster or adoptive family or cannot be cared for in the child's country of origin.⁶¹ UNCROC treats intercountry adoption as a last option, after foster care, adoption or care "in any suitable manner" in the child's country of origin. It is arguable that "in any suitable manner" includes being cared for in an institution (contrast the Hague Convention, as discussed below).

10.88 Current Australian child welfare policy promotes the belief that family care is generally preferable to institutional care. Although this principle may be accepted without question when considering intracountry placement, this may not necessarily be the case when family care can only be achieved by sending a child overseas. The above exercise of weighing the advantages against the shortcomings of intercountry adoption demonstrates that the issue is a complex one. The Commission has concluded, however, that intercountry adoption has a valuable role to play as a safety-net program for children whose needs cannot be better met in other ways. It is also recognised that the Hague Convention places a high priority on a child growing up in a family environment and, if ratified by Australia, must carry weight in conjunction with the responsibilities imposed by UNCROC.

10.89 The child concerned by intercountry adoption must enjoy safeguards and standards equivalent to those existing in the case of national adoption.⁶² This provision means that the same level of safeguards and standards that are applied to domestic adoptions must likewise be applied to intercountry adoptions, not that the safeguards and standards need to be identical. Application of this principle to adoption practice in New South Wales was proposed in DP 34, for which submissions gave unanimous support.⁶³ In formulating recommendations for legislative reform, the Commission has had regard to this principle. As well, agencies conducting intercountry adoption should ensure that their practices conform with the principle.

10.90 All appropriate measures must be taken to ensure that a placement does not result in improper financial gain for those involved.⁶⁴ The application of this Article is discussed in detail in under the heading "Financial aspects and preventing trafficking in children".

10.91 Participating countries must promote the objectives of Article 21 by concluding bilateral or multilateral agreements and must endeavour to ensure that the placement of a child in another country is carried out by competent authorities.⁶⁵ The latter part of this Article, the role of "competent authorities", is discussed under the heading "The role of DOCS and accreditation of non-government organisations".

Other Articles of relevance

10.92 A number of other articles of UNCROC, though not limited to adoption, are nonetheless relevant to it. Article 35 requires participating countries to take appropriate action to prevent the abduction or sale of, or traffic in, children for any purpose or in any form. Ways in which to comply with this Article are discussed under the heading "Financial aspects and preventing trafficking in children".

10.93 Article 7(1) grants to the child "as far as possible, the right to know and be cared for by his or her parents". This ties in with Article 21 which treats intercountry adoption as a last resort when there is no possibility for the child to be cared for by his o her natural parents. It is also relevant to the concept of open adoption. If a child has a right to know his or her parents, countries that withhold information about the identity of a child's natural parents may be violating UNCROC. Conversely, it places on Australia an obligation to make every effort to obtain as much information as possible on a child's birth parents and background when that child is removed from his or her birth country and taken to Australia. This issue is discussed in detail in paragraphs 10.192 to 10.198. This Article could also be relied upon to mount an argument that Australia has a moral obligation to channel funds towards programs which assist to keep families intact. To the extent that the funding of intercountry adoption conflicts with this obligation, arguably the former must take precedence.

10.94 The effect of Article 12 in relation to adoption is that due weight must be given to the views of a child old enough to form his or her own views and that the child must be given the opportunity to be heard in any adoption proceedings. This has a parallel in the Hague Convention in Article 4(d). These Articles are discussed further in paragraphs 10.135 to 10.136.

10.95 Intercountry adoption should also be seen in the light of Articles 8 and 30. Article 8 gives a child the right to preserve his or her own identity, including nationality, name and family relations. Article 30 gives a child belonging to an ethnic, religious or linguistic minority the right to an upbringing which gives him or her full access to a community with other members of the group, enjoyment of his or her own culture, practice of his or her own religion and use of his or her own language. These Articles add weight to the argument that intercountry adoption should be used only as a last resort.

10.96 UNCROC raises a number of issues in relation to our current practice of intercountry adoption, which are discussed below under the heading "An Evaluation of Current Practices in Intercountry Adoption".

HAGUE CONVENTION ON PROTECTION OF CHILDREN AND INTERNATIONAL CO-OPERATION IN RESPECT OF INTERCOUNTRY ADOPTION

10.97 Although UNCROC already dealt, to some extent, with issues relating to intercountry adoption, at the Hague Conference of October 1988, the United Nations considered and adopted a proposal to develop a Hague Convention on intercountry adoption. The reasons for this were as follows:

• intercountry adoption was seen to be posing serious problems;
• there had been a dramatic increase in international adoptions since the late 1960s;
• serious and complex human problems, such as trafficking in children, were aggravated by the phenomenon of intercountry adoption;
• there were insufficient existing domestic and international legal instruments to regulate the area; and
• there was seen to be a need for a multilateral approach.⁶⁶

10.98 The Hague Convention was completed on 29 May 1993⁶⁷ and came into force on 1 May 1995, after being ratified by three countries. As at 30 July 1996, it had been ratified by 11 countries.⁶⁸ Once Australia becomes a Contracting State, intercountry adoption will have to take place essentially within the framework of minimum standards and procedures provided for in the Hague Convention.

Scope of the Hague Convention

10.99 The Hague Convention is to apply only as between Contracting States and only in relation to adoptions which create a permanent parent-child relationship. The problems, both real and perceived, which the Hague Convention addresses are discussed below.

10.100 The objects of the Hague Convention are:

• to ensure that intercountry adoptions take place in the best interests of the child;
• to prevent the abduction or sale of, or traffic in, children; and
• to secure the recognition in Contracting States of adoptions made in accordance with the Hague Convention⁶⁹.

Requirements for intercountry adoptions

10.101 The Hague Convention places a high priority on a child growing up in a family environment and recognises that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her birth country.

10.102 It has been argued that the Hague Convention thus places intercountry adoption ahead of foster care or institutional care in a child's country of origin⁷⁰. However, this interpretation ignores the following strong indications that, while intercountry adoption has a role to play, it should be considered a measure of last resort for the following reasons:

• An underlying "last resort" principle is reflected by an inclusion in the Preamble:
• Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin.
• It runs counter to UNCROC which treats intercountry adoption as a last resort if a child cannot be cared for in his or her birth country. The final paragraph of the Hague Convention Preamble states that it will "take into account the principles set forth in international instruments". By making specific reference to UNCROC and the 1986 Declaration:
  it is made clear that these two are intended to be the starting point for [the Hague Convention] without the need for reproducing all the relevant provisions of those instruments⁷¹.
• Article 4 provides that an intercountry adoption will only take place "after possibilities for placement within the State of origin have been given due consideration".

10.103 In relation to this last point, it is acknowledged that only "due consideration" is required which is a less exacting requirement than that provided for by UNCROC. But in the light of the Preamble and the relationship of the Hague Convention to UNCROC, it seems that the proper interpretation is that intercountry adoption may provide appropriate care for a child, if the child cannot be cared for in a family in his or her country of birth.

10.104 Article 4 also provides that an adoption cannot take place until the Central Authority of the "State of origin" has established that the child is adoptable. It must also obtain the required consents, which must be freely given after the birth of the child and not induced "by payment or compensation" of any kind. It must also ensure that the consents have not subsequently been withdrawn. Counselling must also be provided to the birth parent or caretaker and to the child, if sufficiently mature. These requirements are discussed under the heading "Financial aspects and preventing trafficking in children".

10.105 Article 29 prohibits adopting parents from having contact with birth parents until the requirements of Article 4 have been met and until they have been deemed suitable to adopt.⁷² Contact in compliance with conditions established by the competent authority in the State of origin is permissible. This also is discussed in paragraph 10.138.

10.106 The "receiving State" must determine that the adoptive parents are suitable to adopt, and have been counselled as necessary, and that the child will be given immigration clearance.⁷³

Central authorities and accredited bodies

10.107 The Hague Convention requires that countries establish a Central Authority as a supervisory and information body⁷⁴. Federal States, such as Australia, may have more than one Central Authority⁷⁵. However, where a country appoints more than one Central Authority (such as would be the case in Australia), it must also designate the Central Authority to which any communication may be addressed for transmission to the appropriate [State-based] Central Authority. Agreement has been reached in Australia between the States, Territories and the Commonwealth that the Commonwealth Attorney-General's Department will be the Principal Central Authority and each State and Territory will have a State Central Authority. The Principal Central Authority's role will be a minimalist one: it will negotiate intercountry adoption programs with overseas countries and play a coordinating role in intercountry adoption. The role of the State Central Authority will be in the day-to-day conduct of the intercountry adoption programs. This is discussed further in paragraph 10.164 and following.

10.108 The primary function of the Central Authorities is to provide information to each other about their adoption laws in general, and specifically about the adoption process in respect of a particular child. They must take steps "to prevent improper financial or other gain in connection with an adoption". They also have a specific role to play in relation to prescribed procedural requirements in an adoption.⁷⁷

10.109 Central Authorities may be public authorities or accredited agencies⁷⁸. Accredited bodies must be non-profit organisations, directed and staffed by "persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption"⁷⁹. These must be accredited by the State in which they operate which will also stipulate the functions which they can perform. In New South Wales, DOCS will be designated as the Central Authority within that State. However, submissions to the Commission have proposed that existing parent support groups be accredited to carry out delegated functions in intercountry adoption⁸⁰. Australian Society for Intercountry Aid for Children (NSW) Inc Submission (31 August 1994) at 2 and 6. This possibility, and the role that parent support groups may play if Australia ratifies the Hague Convention, is discussed in paragraphs 10.166 to 10.191.

Automatic recognition of overseas adoption orders

10.110 Criticism has been levelled at the present requirement for adoptive parents to obtain an Australian adoption order, even if they have an overseas order⁸¹. If Australia ratifies the Hague Convention, an adoption order certified by the competent authority in the State of adoption as having been made in accordance with the Hague Convention must be recognised by Australia⁸². Such recognition may be refused only if the adoption is manifestly contrary to public policy, taking into account the best interests of the child⁸³.

10.111 If the country in which the adoption occurs is not a party to the Hague Convention, then, as legislation presently stands, an Australian adoption order will still be needed. This aspect is discussed further below in paragraphs 10.225-10.229. It may be that certain countries that are not parties to the Hague Convention have not necessarily made a commitment to ensuring intercountry adoption is abuse-free and that, in relation to those countries, the need to obtain an Australian Order of Adoption may be appropriate.

Adoption information

10.112 The Hague Convention requires the competent authorities of a Contracting State to ensure that information concerning the child's origin and medical history is preserved⁸⁴. Its disclosure to the child is a matter for the law of the Contracting State holding the information. This provision will require certain countries to alter their practices in relation to the recording and preservation of adoption information. Problems relating to the current practices of some countries with whom Australia has adoption programs are discussed below.

Significance of the Hague Convention for New South Wales

10.113 It has been necessary to outline the Hague Convention in detail as it is almost certain that intercountry adoption in Australia will be operating within that framework in the near future. Granted the role of international law is sometimes uncertain owing to the lack of international enforcement mechanisms⁸⁵, nonetheless the obligations that Australia will undertake in ratifying the Hague Convention must be taken seriously:

Before the international community [Australia] is accountable for compliance with the obligations it has accepted. It will be no excuse that the legal subject in question is conventionally part of the responsibility of State law-making authorities. This is especially so in Australia as the High Court has made it clear that, in most cases at least, such default may be corrected by the Federal Parliament so long as what was involved was a true matter of international concern amongst the nations and peoples external to Australia⁸⁶.

10.114 In the light of the above comment, New South Wales should conduct intercountry adoption in accordance with UNCROC and the Hague Convention. But at any rate, it is only proper that, if New South Wales is to participate in intercountry adoption, it follow standards of practice at least as high as those set out in international agreements.

10.115 What is set out above is an explanation of the Hague Convention's articles with only bare reference to the problems which the Hague Convention addresses. Some of these problems currently exist in the conduct of intercountry adoption in New South Wales and may continue to exist if the area remains unregulated. These problems are discussed in detail below.

AN EVALUATION OF CURRENT PRACTICES IN INTERCOUNTRY ADOPTION

10.116 The appraisal of the concept of intercountry adoption above highlights areas where the practice of intercountry adoption is in need of legislative safeguards. The following examination of the way in which intercountry adoption is conducted in New South Wales establishes where changes need to be made or where there should be legislative endorsement of current practice.

Financial aspects and preventing trafficking in children

10.117 Under both UNCROC and the Hague Convention, if a sending country has ratified either or both of these treaties, it has an obligation to prevent improper financial or other gain in connection with an adoption.⁸⁷ Australia, in its position as a receiving country, has a similar obligation.

10.118 Article 21(d) of UNCROC and Articles 8, 11 and 32 of the Hague Convention deal specifically with financial aspects of intercountry adoption and are intended, in combination with other Articles, to combat trafficking in children. The documented existence of trafficking, and the very real possibility of Australian participation in corrupt adoption practice, inadvertent or otherwise, is outlined in paragraphs 10.58 to 10.66. Pursuant to obligations under these treaties, and as matters of ethics and commonsense, adoption legislation needs to make certain prohibitions in relation to financial aspects of intercountry adoption. Foremost of these is that the placement must not result in improper financial gain for those involved.

What constitutes "improper financial gain"?

10.119 At the extreme end of the scale of improper financial gain is the sale of, and trafficking in, children. This is specifically targeted in Article 35 of UNCROC. It is an area of serious and very real concern in the international community. The risks of bodies or individuals in New South Wales inadvertently or deliberately being parties to such transactions, and measures for prevention, are referred to in paragraph 10.66.

10.120 If the sale of and trafficking in children constitutes one end of the scale, at the opposite end "improper financial gain" may be difficult to define. Questions arise as to when costs charged by the sending country are so high as to have crept into the realm of "improper financial gain". Similarly, when do requests from the sending country for donations of money or goods become so imperative to the continuation of the program, or so onerous, as arguably to constitute "improper financial gain"?

10.121 Clearly, payments made to the birth parents for relinquishment of their child are improper. The risk of such payment inducing relinquishment or influencing the decision to relinquish is too great. Even if a decision to relinquish had been made independently of receiving "financial assistance", the connection between the two is so close as to be offensive. But at any rate, Article 32(2) of the Hague Convention specifically provides that only costs and expenses may be charged or paid. It would be difficult to classify a payment to a birth parent as a cost or expense of the adoption. Furthermore, Article 4(c)(3) of the Hague Convention provides that consent to an adoption must not have been induced by payment or compensation of any kind.

10.122 Payments made to an agent or intermediary may be equivocal. If an agent receives payment for locating an adoptable child this would be an improper financial gain and not a "cost or expense" of processing the adoption. If payment represents reasonable remuneration for work done in the processing of the adoption, such as for conveying documents, then this may be acceptable.

10.123 However, the participation of an agent or intermediary in the adoption process increases the risk of unethical practice and the risk of improper financial gains. It is not necessary to involve intermediaries and preferable for the adoption to proceed directly between the adoption authorities. This is discussed more fully in paragraphs 10.149-10.153.

10.124 The various fees and costs, particularly legal costs, charged by the sending countries are acknowledged to be high in many cases. RR 6 sets out the costs of each program, but to quote some extreme examples, legal expenses in Brazil and Ecuador are $US5,000, with an additional $US1,000 for translation in Brazil; in Chile, lawyer's fees are $US4,000-6,000 with an additional $US1,500-2,000 payable in court costs. The difficult question in these cases is at what point do these costs exceed reasonable remuneration and become "improper financial gain"? And if charges are thought to be unreasonably high, what power does New South Wales have to refuse to pay or to influence a reduction?

10.125 As referred to earlier, Australia, in its position as a receiving country, has an existing obligation under UNCROC and a likely future obligation under the Hague Convention to prevent improper financial or other gain in connection with an adoption. This is the source of New South Wales's right and obligation to scrutinise and dissect all charges being made by a sending country.

10.126 Some parent support groups require that the adoption costs be paid in advance. In some cases all, or a portion of, monies paid in advance are not refundable if the applicants withdraw from the program. As referred to above, Article 32(2) of the Hague Convention provides that only costs and expenses of the adoption may be charged or paid. It can be argued that there is nothing in this that precludes requiring payment in advance, providing that what is required to be paid is a properly assessed cost or expense to be incurred.

10.127 However, if that cost or expense turns out not to be incurred by DOCS or an adoption agency then any excess monies must be refunded to the applicants. Keeping unexpended amounts of applicants' money as profit or to defray other costs not directly related to the adoption in question would be improper and contrary to Article 32(2). An exception to this may be in relation to the agency's administrative costs. Such a fee may be legitimately based on recovery of the costs to the agency of an average adoption. Otherwise, assessment of administrative costs in each adoption may be an unwieldy exercise. At any rate, the agency should be obliged to account fully to the applicants for all monies expended on their behalf in the adoption.

RECOMMENDATION 87

Section 50 of the Adoption Act (which makes it an offence to make, give or receive payments or reward for the making of any arrangements for adoption, other than authorised expenses or fees, and which applies equally to local and intercountry adoptions) should be retained.

RECOMMENDATION 88

Payment of expenses reasonably incurred, including reasonable legal expenses and expenses incurred by the sending country, but excluding compulsory donations, should continue to be authorised under the legislation.

RECOMMENDATION 89

Legislation should stipulate that unexpended monies paid in advance by applicants must be refunded at the completion of an adoption.

Donations

10.128 Almost all intercountry adoption programs with which New South Wales is associated require a donation to the orphanage involved. Most, if not all, adopters have no criticism of this requirement and would not hesitate to make the donation even if it were not compulsory. The Commission has the following reservations:

• By making the donation compulsory, the orphanage is making an indirect gain from the process, regardless of its altruistic motives and the benefits which flow to the children. Because it does not represent a direct cost of the adoption process, the payment falls into a "grey" area of financial gain. In addition, it is arguable that Article 32(2) of the Hague Convention makes a compulsory donation unlawful.
• The payment is usually made to the orphanage via the body which depends on the continued allocation of children from that orphanage to its members. The temptation to allocate children to those countries or programs who best provide for the orphanage's needs must be acknowledged as a flaw in this system.
• Some adoptive parents feel that a compulsory donation taints the adoption process with a "commodity transaction" flavour which they find distressing.

10.129 The work that the parent support groups do in fund raising, in sending aid and in encouraging sponsorship of children is highly commendable.⁸⁸ As well as making life better for many children, the parent support groups have made a valuable contribution to the establishment of goodwill between Australia and the sending countries. Continuation of this role should be encouraged.

10.130 However, the Commission's concern with the present system of donations could be allayed by making two changes. First, the role of fund raising and the giving of aid should be separated from the role of processing an adoption so that each role resides in two separate entities. This avoids potential conflicts of interest both on the part of the parent support group and on the part of the overseas agency or orphanage. Secondly, DOCS or some other suitable NSW or national body should negotiate with the adoption authorities of the sending countries for the abolition of compulsory donations on the understanding that voluntary donations and sponsorship would be actively encouraged.

10.131 Article 11 of the Hague Convention is straightforward and provides that an accredited body shall pursue only non-profit objectives. Compliance with this article is discussed in paragraph 10.184 under the heading "The role of DOCS and accreditation of non-government organisations".

10.132 There are other articles of the Hague Convention which, although they do not specifically refer to financial aspects, are intended to prevent trafficking in children.

10.133 Article 4(a) provides that an adoption shall only take place if authorities have established that the child is adoptable. Obviously this is to ensure that a child has not been kidnapped or left in temporary care only or that the child does not have family who could look after him or her. While it is to some extent beyond the control of New South Wales to establish whether or not a child is truly available to be adopted overseas, New South Wales has serious responsibilities in this regard. There is no reason why the adoption agency could not and should not insist on proof from the adoption authority in the sending country that the child has been abandoned or orphaned or that consents to the adoption have been obtained.

10.134 Article 4(c) sets out the requirements for the giving of proper consent to the adoption, including a requirement for counselling as necessary, and that the consent is informed, freely given and has not been induced by payment or compensation of any kind. This Article ties in with the obligation to ensure the child is adoptable. Again, there is no reason why the adoption agency could not and should not insist on proof from the adoption authority in the sending country that proper consents, given in accordance with Article 4(c), have been obtained.

10.135 Article 4(d) makes provision for taking consent from the child or giving consideration to the child's wishes and opinions. The growing recognition of children's rights to participate in legal proceedings that affect them brings into focus the respect that should be accorded to an adoptee's views about the adoption and whether or not he or she consents to the adoption. This is dealt with in more detail in paragraphs 5.124-5.129. The conclusions reached in that chapter included that no order of adoption should be made regarding a child who has attained the age of 12 years against that child's wishes, unless there are special reasons related to the best interests of the child why the adoption order should be made. Further, a child who is capable of forming his or her own views should be given the opportunity to express those views, to be given due weight in accordance with the child's age and maturity.

10.136 As explained above, international conventions require that the standards set for intercountry adoption must be equivalent to those that apply to local adoptions. As well, standards set for taking into account the intercountry adoptee's wishes should accord with Article 4(d). In order to meet these two requirements, the agency should endeavour to satisfy itself that, having regard to the age and maturity of the child:

• he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required under the laws of the sending country;
• where a child's consent to the adoption is required he or she has freely given consent to his or her adoption overseas, without the inducement of payment or compensation of any kind; and
• consideration has been given to the child's wishes and opinions.

10.137 Ideally, the agency should sight a copy of the signed consent.

10.138 Article 29 prohibits contact between applicants and birth parents prior to an adoption order being made. Again, this is to ensure that there is no improper financial or other inducement for relinquishment, or pressure of any sort placed upon birth parents to relinquish and to ensure that an adoption is not privately arranged.⁸⁹ This is an essential prohibition.

RECOMMENDATION 90

Legislation should prohibit applicants from having any contact, direct or indirect with birth parents until the child has been allocated to those applicants by the overseas adoption authority and the allocation has been approved by DOCS and accepted by the applicants.

Parent Support Groups

Overview

10.139 New South Wales citizens wanting to adopt a child from overseas proceed primarily through DOCS. DOCS's central role in intercountry adoption, and the way in which an application proceeds through DOCS, is set out in detail in paragraphs 11.7 to 11.10 of DP 34. Applicants must also become members of one of the seven available adoptive parent support groups. These parent support groups have a significant role to play in processing and effecting an intercountry adoption. What follows is an analysis of this role.

10.140 In setting out any shortcomings in the current system, the Commission does not want to detract from the contributions made by the parent support groups over many years. Both RR 6 and the discussion below elucidate the ways in which parent support groups fulfil invaluable roles in supporting and assisting adoptive parents pre- and post-adoption; in providing a focus for adoptive families to interact, socialise and support each other; in establishing and maintaining programs; in amassing information on countries and programs; and in providing aid and promoting goodwill between Australia and sending countries.

10.141 The parent support groups were established by couples who had adopted children from overseas and who wanted to share their knowledge of the adoption process with prospective intercountry adoptive parents. The groups were also intended to provide a forum for the adoptees and adoptive parents to remain in contact with one another. There has developed an equally significant facet to the parent support groups in their involvement in aid programs and the sponsorship of children not available for adoption.

10.142 There is no simple description of the process of intercountry adoption in all countries and in all programs within those countries. The interaction of the parent support group, applicants, overseas agency and DOCS varies according to which parent support group is involved and the country to which the application is being made. In order to understand fully the way in which intercountry adoption operates, the Commission has researched the nature, roles and activities of each of the parent support groups. The Commission has also examined the role of DOCS in relation to each group. For ease of reading, this study is contained in RR 6 rather than included in the body of this chapter.

10.143 The Commission sees the following involvement of parent support groups in intercountry adoption as questionable.

Allocations

10.144 The selection of adoptive parents for a particular child rests entirely with the adoption authority in the child's country of origin. Although in theory DOCS should be advised directly by the sending country of an allocation, in many programs it is the practice of the sending country to give allocation information directly to the parent support group. This is because the parent support groups, not DOCS, have developed the contacts with the agencies and orphanages through the adoption of their own children and in the efforts they have made in maintaining personal links, including regular visits to the sending country. The development and nurturing of these contacts have been significant in the maintenance of the programs.

10.145 However, forwarding details of a proposed allocation to the parent support group, rather than DOCS, is not ideal for three reasons:

• First, there is the potential for the parent support group to pass on allocation details to, and discuss the allocation with, the applicants prior to DOCS assuming this role. Although DOCS enjoin the groups not to do this, it does in fact occur with some frequency. It is most important that applicants are assessed and counselled in relation to a specific child and that a suitably qualified person undertakes this role. This should occur before applicants have had a chance to form an attachment to, or to fix upon, a child and before applicants have discussed the allocation with others.
• Secondly, in receiving information second-hand, there is always the danger that important details may have gone astray or have been misunderstood, and DOCS may thereby be hindered in properly assessing an allocation.
• Thirdly, parent support groups are inhibited in pressing for further information if details given in the first instance are inadequate. The reason for this is that the groups understandably have an interest in sustaining their programs and in not "rocking the boat".

10.146 As a natural consequence of the close working relationships between parent support groups and individuals in overseas agencies and orphanages, some parent support groups become involved in discussions about proposed allocations, including discussion of who is the most suitable applicant next in line on the parent support group's list.

10.147 It is not appropriate for parent support groups to be involved in any way in the decision making process of a placement. Advice and opinions offered by the parent support group would be well-intentioned and founded on years of experience in the processing of adoptions. But what is required, to maximise the chances of the most beneficial placement for the child, is assessment and "matching" by a professional qualified in a social science, such as social work or psychology and specialising in adoption work. As well as making professional assessments, these adoption workers are able to recognise cases where counselling is needed and then to take appropriate action.

Record-keeping

10.148 Some parent support groups require applicants to provide them with their personal documents, the home study and post-placement reports. One parent support group also requires applicants to forward to it all documentation concerning the child received from the sending country. Submissions to the Commission indicate that, when put in this position, there are applicants who feel too vulnerable to refuse to comply but are uneasy about doing so. The groups have implemented various security measures which are outlined in RR 6. Nonetheless, there are significant privacy issues in a volunteer group having custody of sensitive material, while not being subject to any external safeguards or control. In relation to information concerning the child, it seems neither necessary nor appropriate for this to be received or retained by a parent support group.

Agents

10.149 All the parent support groups use agents in the sending countries to assist in the adoption. As detailed in RR 6, the roles and involvement of the agents vary with each group and may involve acting as couriers for documentation, assisting applicants when they arrive in the sending country or, in some instances, more active involvement in locating children available for adoption. It is in this last capacity, that there is potential for abuse of the intercountry adoption process.

10.150 Certainly in Chile and Brazil, it is possible for an agent to approach a court directly to obtain an adoption order. In countries where adoptions are arranged only through authorised adoption organisations, there is anecdotal evidence of approaches being made by parent support groups' agents to an organisation with details of a particular applicant. The agents allegedly lobby the organisation for placement of a child with those applicants. Whether or not this is substantiated, the Commission is concerned with the potential for abuse.⁹⁰ At one extreme, there is the danger of seeking out children who may not be available for adoption or of pressuring parents to relinquish. At the lesser extreme, there is the undesirable approach of finding a child for adoptive parents rather than suitable adoptive parents for a child.

10.151 At a slightly less serious level, agents who are involved in the adoption process can exert various pressures on applicants when they are in the sending country, and at their most vulnerable, to meet the agent's further ("unexpected") expenses or to make ad hoc donations to the orphanage, at the risk of losing their allocation if they don't comply.⁹¹

10.152 This potential for abuse can be eliminated, or at least minimised, by instituting a number of safeguards:

• Allocations should be made by the authorised adoption agency only and notification of all allocations should go directly to DOCS. Allocations should not be on behalf of or by an agent.
• Allocations should be in respect of children in the official care of authorised agencies, either in institutional or foster care, for whom there is a proper consent to adoption or an official abandonment declaration or who are orphaned.
• Agents in the sending country should have no involvement in the adoption process itself. The use of agents in intercountry adoption should be limited to assisting applicants, who have been approved to adopt a particular child, during their stay in the sending country.

10.153 A further safeguard against abuses is suggested in paragraph 10.175 In essence, it is that adoption programs should be government-to-government.

The home study

10.154 It is inappropriate for a parent support group to be given the original home study of the applicants for forwarding to the sending country, since if this is done DOCS has no control over, and no way of knowing, whether or not the assessment is amended in any way. Granted, the original home study has DOCS's seal affixed to it but it may still be possible to make amendments. It is also inappropriate for a parent support group, despite having experience in a country's methods and attitudes, to direct DOCS to amend a home study or to dictate content or style. The home study is a document produced by an experienced professional which, in both content and style, is considered by that professional to be accurate, instructive and appropriate.

Conclusion

10.155 The parent support groups have provided valuable organisational back-up to DOCS, which devotes limited resources to intercountry adoption. The relationship is, however, vulnerable to deficiencies because it operates in a regulatory void. DOCS has very little real control over, or even knowledge of, the organisation and functioning of the parent support groups. DOCS has imposed some general conditions on the operation of all parent support groups, but these conditions are not legal requirements.⁹²

10.156 DOCS has a written "agreement" with one of the parent support groups, the effect of which is discussed in RR 6. Otherwise, DOCS has no formal relationship with any of the parent support groups or formal control over their practices. The definition of the roles of each appears to be unclear and the interaction of DOCS with each of the groups is variable and often ad hoc.

10.157 The groups, for their part, have no legislative or other authoritative framework in which to operate and very little guidance on how best to marry the needs of their members with the best interests of the children. Private adoption agencies like Centacare, Barnardos and the Anglican Adoption Agency are accountable to the Director-General of DOCS⁹³ and their functions are governed by regulations under the Adoption Act. In contrast, parent support groups are not licensed and are not governed by the Adoption Act. The result of this is that they are not accountable to any authority and the nature of, and limits on, their functions and activities are self-determined. The wide range of approaches to adoption practice across the groups is evidence of the range of opinions and attitudes as to what constitutes a proper role for the groups. These approaches, however well-intentioned, may not always be conducive to ensuring the child's best interests are paramount.

10.158 It is not sufficient to argue that children's best interests will be satisfied by providing them with a loving home. The equation is complicated by many more factors. These have been discussed above and include the following:

• Provision of a loving home to one child will not be in the best interests of all children if the process has inadvertently kept alive a market where children can be bought and sold, and even kidnapped, for this purpose.
• It can be more damaging to a child if a placement breaks down because of insufficient professional preparation, counselling, assessment and matching. It is naive and dangerous to believe that any family will love any child and that any placement of a child in need of a home will benefit that child.
• There is clear evidence that a cross-cultural placement, particularly of older children, can involve difficulties. Again, professional counselling and assessment is essential to ensure an understanding in the adoptive parents of the importance of cultural issues and a commitment to preserving cultural heritage.

10.159 The above criticisms of the way in which the system is currently operating is not an attack on the bona fides of parent support groups. The shortcomings in the current practice of intercountry adoption are, to a large extent, a result of the uncertainty as to roles and obligations, and the lack of regulation. The insufficient resources of DOCS and its consequent reliance upon parent support groups has also contributed to the active involvement of these voluntary associations of adoptive parents in the adoption process and to the extent of their autonomy.

10.160 The Commission's task is to devise a framework which will harness the skills, experience and other contributions of the parent support groups while ensuring that the practice of intercountry adoption conforms to an established and regulated set of standards and procedures. The way to do this is to provide for the conduct of intercountry adoption by accredited agencies in conjunction with DOCS and to permit existing parent support groups to apply to be accredited as intercountry adoption agencies. This is discussed in detail under the heading "The role of DOCS and accreditation of non-government organisations".

The recommended role of parent support groups

10.161 Existing parent support groups not wishing to become accredited could continue to provide pre- and post- adoption support to adoptive families and aid and sponsorship to sending countries. These roles are a useful adjunct to the practice of intercountry adoption and the continued participation of parent support groups in this way should be encouraged.

10.162 The roles of DOCS and accredited bodies would be complemented best if parent support groups assumed all or some of the following roles. It would be beneficial and appropriate for parent support groups to:

• provide a focus for the common interests of members and provide moral and social support;
• assist applicants with the collation and completion of documentation;
• provide information and education;
• hold social functions, including fund raising events;
• arrange cultural events;
• arrange activities to bring adoptees and their adoptive families together;
• provide aid and sponsorship to overseas countries; and
• lobby for the establishment of programs in new countries or the recognition of further agencies in existing countries.⁹⁴

10.163 For the reasons outlined in paragraphs 10.144 to 10.157 it would be not prudent for parent support groups to:

• be involved in the forwarding of the applicant's file;
• be involved in either allocations or the receipt of notifications of allocations;⁹⁵
• retain documents relating to the processing of an adoption or information concerning an allocated child or an adoptee;
• receive or forward the home study; or
• be involved in the processing of adoptions in any way.

The role of DOCS and accreditation of non-government organisations

10.164 The international community is approaching consensus that governments must assume greater responsibility for the practice of intercountry adoption and have clearly vested roles and duties. This is not to say that only a government body should conduct intercountry adoption; it is a statement of where ultimate responsibility must lie. By the same token, the roles of all participants in intercountry adoption now need to be delineated and, to some extent, divided among separate entities.

10.165 As outlined in paragraph 10.107, Article 6 of the Hague Convention requires Contracting States to designate one or more Central Authorities in the case of Federal States. Assuming Australia ratifies the Hague Convention, it is intended that the Federal Government will appoint State and Territorial Central Authorities which, in turn, can accredit bodies to carry out adoptions. It is intended that DOCS would be appointed the Central Authority in New South Wales.

10.166 In DP 34, it was proposed that DOCS should control all aspects of intercountry adoption within New South Wales in accordance with Australia's international obligations.⁹⁶ Twenty four submissions were received which addressed this proposal. One submission supported the proposal outright.⁹⁷ Four submissions opposed the proposal outright.⁹⁸ The remainder of the submissions were concerned that DOCS is insufficiently resourced to control all aspects of intercountry adoption. In many submissions, the proposal was understood to mean that DOCS would single-handedly administer and maintain the intercountry adoption programs with no delegation to other bodies and no role for accredited agencies or parent support groups.

10.167 The Commission agrees that DOCS does not have the resources to run intercountry adoption itself. What was intended by the proposal was that, by controlling intercountry adoption, DOCS would receive all expressions of interest and be the final decision-making authority with respect to all assessments, allocations and placements. But as well, accredited agencies would be needed to take responsibility for a great deal of the administrative workload. Parent support groups would have a different, but likewise valuable, role to play. Accredited agencies would work with the sending countries with the imprimatur of DOCS.

10.168 This framework was in effect suggested by 18 of the submissions. These submissions, concerned with DOCS's inability to handle a greater workload than that which it already has, advocated agencies or approved groups continuing to assist DOCS in the administration of intercountry adoption. The majority supported delegation of tasks to accredited bodies. One submission supported "the need for DOCS to maintain statutory responsibility for monitoring the program, assessing and approving applicants, and approving allocations".⁹⁹

10.169 All the parent support groups, in consultations with the Commission, supported the notion of accreditation. Two of the groups suggested a range of accreditation from being accredited to be fully involved in the adoption process through to a limited intermediary role between DOCS and the sending country.¹⁰⁰

10.170 The operation of a private adoption agency in conjunction with the relevant government department in the conduct of intercountry adoption has apparently worked well in South Australia. Since 1979 Australians Aiding Children, a licensed non-government agency, has operated with autonomy in relation to a number of areas of intercountry adoption while the South Australian Department for Family and Community Services controls the programs and assumes responsibility for certain other areas. The latter includes decision-making in relation to the approval of prospective adoptive parents, the issuing of approval (or non-approval) letters and approval of allocations made by overseas agencies.

10.171 The Fogarty Report examined the South Australian arrangement and concluded that:

[s]uch a division of responsibility is ... critical to public accountability. Responsibility for the conduct of intercountry adoption must rest with a government agency.¹⁰¹

10.172 Provided overall responsibility for intercountry adoption rests with DOCS, the Commission sees no reason why appropriate non-government bodies could not be accredited to participate in intercountry adoption. The opportunity to accredit private non-government bodies will meet criticisms of DOCS which relate to issues of resourcing, namely staff levels, staff turnover and the ability to process adoptions expeditiously and provide sufficient supervision and support.

10.173 DOCS itself supports this approach, as does the Federal Government and all other State and Territory governments. In anticipation of ratifying the Hague Convention, an Intercountry Adoption Working Party of the Subcommitttee of the Standing Committee of Community Services and Income Security Administrators has approved a document intended to be enacted as a regulation under the Family Law Act¹⁰² setting out criteria for the accreditation of bodies wanting to provide intercountry adoption services. If these draft criteria are not passed as regulations, the document can serve as a blueprint for each State and Territory to accredit bodies to provide intercountry adoption services.¹⁰³ At any rate, the document is intended as setting minimum requirements: individual States or Territories could provide for more stringent conditions and requirements if they so wished. The document includes, inter alia, criteria for eligibility, conditions of accreditation and functions of an accredited body. Without intending to deal exhaustively with the functioning of an accreditation system or an accredited body, or to canvass the content of the draft document of the Intercountry Adoption Working Party, the Commission is concerned to emphasise that certain aspects ought to be considered and dealt with in accrediting bodies to carry out intercountry adoption. These are discussed below.

10.174 Articles 14 to 21 of the Hague Convention provide for the involvement of Central Authorities in the arranging and approval of intercountry adoptions. Article 22 permits accredited bodies to perform the functions of the Central Authority. Article 22 also allows certain approved persons to arrange intercountry adoptions, but only under the supervision of the Central Authority and with accountability to the Contracting State. Furthermore, such persons are not permitted to prepare the reports on the applicants and the child which are required by Articles 15 and 16 and are not permitted to receive an application to adopt. All applications to adopt a child resident overseas must be made to the Central Authority.¹⁰⁴ If a Contracting State intends to allow individuals to process adoptions it must declare this intention to the depositary of the Hague Convention.

10.175 The significance of the inclusion of these articles is to avoid privately arranged adoptions, which are the most vulnerable to abuses. A key factor in Australia's current high standards of intercountry adoption is the prohibition of private adoptions. If this is taken a step further whereby intercountry adoption programs are to be government-to-government, the possibility of corrupt practice is minimised. This would mean that DOCS and the accredited bodies would work only with the appropriate government body, and with accredited or government-authorised bodies in the sending country. Adoption arrangements would not be made with individuals or directly with an orphanage, unless the orphanage was an accredited or government authorised body.

10.176 Article 22, while allowing participation of individuals, appears to discourage such participation by applying stringent requirements and restrictions. At a meeting of the Special Commission charged with drafting the Hague Convention, there was extensive debate about the inclusion of "independent" or "private" adoptions in the Hague Convention:

A substantial number of participants were against [their inclusion], ... arguing that they facilitate abuses, such as child trafficking and improper financial gain ... Moreover, the opponents recalled that [Article 21(e) of UNCROC] only refers to authorities and organs, and for this reason ... excludes implicitly "independent or "private" intermediaries.¹⁰⁵

10.177 Other participants, notably the United States of America, argued that inclusion of independent adoptions would allow them to be controlled and supervised. After considering the arguments for and against:

the Special Commission decided to look for a compromise solution ... [Independent] adoptions should be included in principle, to facilitate the ratification of the [Hague] Convention by as many States as possible; but at the same time the necessary safeguards had to be established in order to avoid any results that might jeopardise the best interests of the child.¹⁰⁶

10.178 On balance, the Commission is unable to recommend that individuals or unauthorised bodies be involved in arranging intercountry adoptions.

10.179 Accordingly, with respect to the role of DOCS and the role of non-government bodies the Commission makes the following recommendations.

RECOMMENDATION 91

DOCS should be designated by appropriate Federal laws as the Central Authority in New South Wales having the authority, within New South Wales, over intercountry adoption given to Central Authorities by the Hague Convention.

RECOMMENDATION 92

No person or body other than DOCS should be permitted to:

• receive expressions of interest;
• decide whether or not to approve an applicant;
• issue approval/non-approval letters;
• seal the home study as an original;
• administer the appeal process in circumstances of non-approval; and
• approve an allocation made by the overseas authority.

10.180 The intercountry adoption program in the sending country should be conducted by a government body which is charged with the arrangement of adoptions by that country, or an organisation which is sponsored or recognised as an adoption agent by the relevant Government welfare body.¹⁰⁷ DOCS should sight written evidence verifying the authority of the body or organisation to arrange adoptions.

RECOMMENDATION 93

Existing parent support groups and any other non-government organisation should be eligible to apply to be accredited to undertake the arrangement of intercountry adoptions.

10.181 Accreditation would obviously depend on the organisation being able to demonstrate its competence to carry out properly the tasks associated with intercountry adoption.

10.182 Application for approval as a private agency carrying out intercountry adoptions should be pursuant to s 10-16 of the Adoption Act and Part 2 of the Adoption Regulation and operation as such should be subject to those sections and regulations. In addition, however, an adoption agency carrying out intercountry adoptions would need to meet certain other criteria both to provide the safeguards which the Commission has identified as necessary and in order to satisfy Australia's international obligations.

10.183 For the maintenance of high standards in the conduct of intercountry adoption, an accredited body should not be aligned to any interest group.

10.184 Article 11(a) of the Hague Convention requires that an accredited body be a non-profit organisation. Again, adherence to this requirement ensures the maintenance of high standards in the conduct of intercountry adoption This requirement is met by s 10 and 11 of the Adoption Act which provide that only a charitable organisation may apply for approval as an adoption agency.

RECOMMENDATION 94

Sections 10 and 11 of the Adoption Act (which provide respectively that a charitable organisation can apply for approval as a private adoption agency and that the Director-General may grant or refuse the application) should be retained.

10.185 Article 11(b) of the Hague Convention requires that an accredited body be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption. Schedule 2 of the Adoption Regulation refers to the qualifications of the Principal Officer to work in adoption but not specifically in intercountry adoption, nor is reference made to the qualifications of staff other than to professional consultants.

RECOMMENDATION 95

Legislation should require an accredited body to be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.

10.186 Article 11(c) of the Hague Convention requires that an accredited body be subject to supervision by [DOCS] as to its composition, operation and financial situation. Schedule 2 of the Adoption Regulation provides for the requisite supervision by DOCS, although query whether there is sufficiently unambiguous power to supervise an agency's financial situation. Paragraph 16 of Schedule 2 permits the Director-General to inspect all records maintained by the agency, which would have to include financial records. There is no other implicit or explicit power to supervise an agency's financial situation.

RECOMMENDATION 96

Legislation should explicitly give DOCS the power to supervise an accredited body's composition, operation and financial situation and to require that an accredited body provide DOCS with audited annual accounts.

10.187 Pursuant to Article 32 of the Hague Convention, the directors, administrators and employees of an accredited body must not receive remuneration which is unreasonably high in relation to the services rendered. This, of course, accords with goals to ensure that intercountry adoption remains free of profit-making.

RECOMMENDATION 97

Legislation should provide for licensing requirements which restrict the directors, administrators and employees of an accredited body from receiving remuneration which is unreasonably high in relation to the services rendered.

10.188 Article 35 of the Hague Convention requires the competent authorities of the Contracting States to act expeditiously in the process of an adoption. Once a decision has been made that an intercountry adoption is in a child's best interests, the expeditious completion of the adoption will further the child's best interests. Accordingly, the Commission makes the following recommendation.

RECOMMENDATION 98

Legislation should provide for licensing requirements which require DOCS and accredited bodies to act expeditiously in the process of an adoption.

10.189 On the basis that the legislation contains the restrictions and requirements recommended above, and on the basis that DOCS retains the final decision-making authority with respect to all assessments, allocations and placements, it would be appropriate, and in accordance with the provisions of the Hague Convention, for an accredited body to be authorised to perform the functions set out under Recommendation 99 below.

RECOMMENDATION 99

Legislation should provide for licensing requirements which authorise accredited bodies to perform the following functions:

• to conduct information, preparation and education seminars;
• to assess expressions of interest;
• to arrange for assessment of applicants and preparation of the home study by an appropriate professional;
• to provide counselling;
• to prepare and collate required documentation;
• to forward adoption documentation to the overseas authority;
• to liaise and negotiate with the overseas authority;
• to receive allocation notifications;
• to arrange for the preparation of post-placement reports by an appropriate professional;
• to provide to DOCS and the overseas authority post-placement reports; and
• to obtain an adoption order in New South Wales, where applicable.

10.190 For the reasons outlined above it would not be appropriate for accredited bodies to perform the functions listed in Recommendation 92 above, the responsibility for which should remain with DOCS.

10.191 For the reasons discussed in paragraph 10.183, the Commission makes the following further recommendation.

RECOMMENDATION 100

Legislation should provide for licensing requirements which prohibit accredited bodies being involved in fund raising, sponsorship and the sending of aid to an institution with which it has an intercountry adoption program.

Adoption information

10.192 RR 6 outlines the various approaches and attitudes of the sending countries to obtaining and providing a social and medical history on the child. Some programs provide thorough information and good records and are cooperative in the quest for all available information. They clearly see this aspect as important for the child's wellbeing. The information made available by some other programs is bordering on inadequate to make informed placement decisions.

10.193 Obtaining all available social and medical information about the child is essential for a number of reasons:

• When a proposed allocation is advised, prospective adopters need sufficient information about a child to judge whether they consider themselves able to parent that particular child. The child may have physical or mental disabilities or have a background which makes them physically, mentally or emotionally vulnerable. A social worker likewise needs complete information to assess the "match" and advise the prospective adopters.
• It will be material to the child's future development of identity and self-esteem to have knowledge about his or her background, roots and history.
• It is important that the parents, and later the child as an adult, have access to the child's, and preferably also the birth parents', medical history. This would give an understanding of the child's current health, prognoses and predispositions. It may even have critical relevance when and if the child wishes to reproduce.

10.194 Clearly DOCS agrees with the importance of obtaining a history of both the child and the child's family. This is evidenced by its inclusion of cl 29(2) in the Adoption Regulation, which provides:

The Director-General is not to transfer or cause to be transferred the possession or control of a child from overseas to another person with a view to adoption of that child by that other person unless the Director-General has obtained a report about the child's social, developmental and medical history and the social, developmental and medical history of the child's family.

10.195 Not only does it make good sense to pursue conscientiously information on a child, but New South Wales has a duty to do so. Participation in intercountry adoption must be in accordance with Australia's international obligations. As referred to in paragraph 10.93, under Article 7(1) of UNCROC Australia arguably has a duty to seek out and preserve information on the child's birth parents. Article 30(1) of the Hague Convention requires participating countries to ensure that information concerning the child's origin and medical history is preserved.

10.196 As already outlined, another requirement of UNCROC is that intercountry adoption should enjoy standards and safeguards equivalent to those of local adoptions. Local adopters and adoptees can benefit from the provisions of the Adoption Information Act 1990 (NSW). To the extent that children and birth parents separated by intercountry adoption can enjoy the same advantages of openness, this should be facilitated. In this regard, it is crucial for those involved in the intercountry adoption to try to obtain and preserve records and information concerning the child's and the birth parents' identities. Even if it seems at the time of the adoption that practices and values in the sending country will make an open adoption an impossibility, the potential for change cannot be ignored. For these reasons, the Commission makes the following recommendations.

RECOMMENDATION 101

Clause 29(2) of the Adoption Regulation (which provides that, before placing a child from overseas for adoption, the Director-General must obtain a report about the social, developmental and medical history of that child and his or her family) should be retained.

10.197 Prior to approving an adoption, DOCS should be satisfied that the information it has with regard to the child, including medical and social histories and psychological and emotional profiles, is sufficient to allow the applicants to make an informed decision on whether or not to accept an allocation.

10.198 As well as obtaining a report on the child in accordance with cl 29(2), the agency should make every reasonable effort to obtain all available information on a child, and either originals, if appropriate, or otherwise copies of records pertaining to the child's identity and social and medical history. This information should be preserved and made available to the adoptive parents and adoptee when appropriate.

RECOMMENDATION 102

DOCS and the accredited agency must ensure that information received by them concerning the child's origin, identity of birth parents and medical history is preserved and that access to such information is given to the adoptive parents and to the child, in accordance with the Adoption Information Act 1990 (NSW).

Preparation, assessment and counselling

Preparation

10.199 Because of the complex issues involved in an intercountry adoption it is particularly important for prospective adopters to have the opportunity to confront whether it is appropriate for them and to prepare themselves for what is potentially a difficult parenting task.

10.200 In addition to examining issues common to all adoptions, such as those relating to the adoptive parent/adoptee/birth parent inter-relationship, motivations for adopting and wishes and expectations, preparation for intercountry adoption should focus on a number of other issues. These should include:

• psychological effects on the child of early separation, lack of positive enduring relationships with adults, and possible emotional and/or physical deprivation and/or abuse; many adopters are not fully aware that the deprivation suffered by children in early life may have a detrimental effect on emotional development and ability to "bond";
• health issues: this includes the possibility that the child will have health and developmental difficulties which may require active treatment or may need ongoing care for permanent physical or mental impairment; some intercountry adoptees have been exposed to the risks of AIDS/HIV and Hepatitis B infections; applicants need to be aware that testing for HIV in young children is unreliable;
• cultural heritage and cultural identity; the importance of having a commitment to preserving cultural heritage and developing in the child a positive self-identity; issues of racial discrimination;
• the background of the adoptive children: this will continually play a part in the child's life and hence information about his or her heritage should be carefully collected, filed and preserved; and
• the situation of the biological parents, including reasons for relinquishment, which may need to be understood in the context of the parents' culture.

10.201 Proper exploration of these concerns takes time. Currently, DOCS invites suitable enquirers into intercountry adoption to attend a preparatory seminar. This involves a total of 13 hours' attendance (over several sessions) for first-time intercountry adoption applicants and one day's attendance (being approximately eight hours) for second-time adopters. Applicants who wish to adopt a child older than 24 months attend an additional one-day seminar. This contrasts with the requirement that applicants wishing to adopt local children attend a two-day seminar and those wanting to adopt local "special needs" children attend a four-day seminar. There is no "special needs" seminar for intercountry applicants. As discussed earlier, most intercountry adoptees will have "special needs" because they are older, have health problems or disabilities or because they are suffering emotional deprivation. An applicant needs to be properly prepared for the very real possibility of being allocated a "special needs" child. The issues referred to above will all be relevant and will all require time-consuming discussion.

10.202 In the Netherlands, prospective intercountry adoptive parents have been required, since July 1989,¹⁰⁸ to attend an extensive information and preparation program, consisting of six seminars, before the home study is begun. Despite the obvious benefits of thorough preparation, other benefits have emerged. Many of the couples maintain contact with each other, offering mutual support and exchange of information and insights. Applicants are more assertive in their contact with the agencies and in expressing their wishes concerning themselves and the child. Discussions with the social worker during the home study are more far-reaching. Some applicants self-select out of the program at this early stage.¹⁰⁹

10.203 The discrepency, in New South Wales, between the preparation afforded adopters of local "special needs" children and adopters of intercountry adoptees is not prudent, does not give the adopters the best chance of a successful adoption and offends against Article 21(c) of UNCROC.¹¹⁰ Applicants for intercountry adoption should be required to attend a preparatory seminar equal in duration to that which adopters of local "special needs" children are required to attend. Seminars should be run by professionals qualified in adoption work with additional knowledge of problems associated with cross-cultural placements and with "special needs" children. The process would work best if applicants attended these seminars before the home study was undertaken.

Assessment

10.204 The current practice is for applicants to be assessed over a three to six month period as to their general suitability to adopt a child from overseas. DOCS must approve an allocation made by the sending country to particular applicants but there is no formal assessment of the applicants in relation to a specific allocation.

10.205 Research on the placement of "special needs" children¹¹¹ and practice papers by adoption workers in Britain¹¹² suggest that assessments of adoption applicants are best undertaken in the context of individual children. Since a large proportion of intercountry adoptions concern "special needs" children, and the incidence of breakdown is higher amongst these children, there is support for urging that applicants be assessed for their suitability to parent a particular child.¹¹³

10.206 There is already a criticism by some applicants that the present system of assessment is too long and too intrusive. However, it is justified to assess intercountry adoption applicants more stringently than for local adoptions because of the greater complexity of the placements, including the presence of cultural issues and problems identified with "special needs" children. Also, the research on successful outcomes indicates that the "intuition" of the adopters is important, and their early reactions to particular children need to be carefully thought through.¹¹⁴ This lends weight to the view that a further assessment of applicants in relation to an allocated child would increase the chances of a successful placement.

10.207 For these reasons, it would be prudent if a two-stage assessment process was instituted for intercountry adoptions: the first home study should determine the applicants' suitability generally to adopt a child from overseas; the second assessment should be in relation to the allocated child. This would accord with DOCS's policy in relation to the adoption of local "special needs" children where applicants are assessed in relation to, and approved to adopt, a particular child.

10.208 The "intuition" factor is also relevant to the question of applicants meeting the child in the country of adoption before an adoption order is made:

Research and published professional opinion would not support the practice of a "home study" being conducted to ascertain whether this is a "good" family, this study allowing them to go overseas and take over the care of a child who might be older or have special needs. Nor would it support the practice of children being adopted in the country of origin in the absence of the adopters, with the child then delivered to them by a third party.¹¹⁵

10.210 Article 19(2) of the Hague Convention provides that if possible transfer of the child to the receiving State shall take place in the company of the adoptive parents. However, for a child to be brought to Australia by an intermediary is not consistent with New South Wales's goal to have the highest possible standards of practice in every area of intercountry adoption:

[Travelling to the sending country] serves a positive function in the adjustment process for both parents and children. For the adoptive parents, it provides the opportunity to learn first-hand about the cultural and social background of the child's country, enabling them to better understand certain behaviours and attitudes displayed by the child. The children benefit as well, since they have the opportunity to meet the adoptive parents while still in a familiar and secure environment before they have to leave for a new country.¹¹⁶

10.211 Travelling to collect the child in person is important not only in helping to understand the child but also in order to supply information to the child in later years when identity formation becomes an issue. As well as bringing away their own knowledge of the country and the child's circumstances to pass on to the child, the applicants may be in a better position to obtain records of the child's social and medical history.

10.212 Not just if possible, but in every adoption, the applicants should travel to the sending country to collect the child in person.¹¹⁷ The Commission also recommends that the applicants be urged to spend some time in the country acquainting themselves with the child's birth place and birth culture. The applicants should use this opportunity to satisfy themselves that all available information on the child has been collected and preserved.

10.213 The Commission acknowledges that enforcement of this requirement may be difficult. Collection of the child obviously occurs after the applicants have been approved to adopt, after the sending country has allocated the child to those applicants and after the allocation has been accepted. Therefore, points at which it is possible to insist on certain requirements being satisfied have passed. However, it is still possible to require that preconditions are met before the child will be given immigration clearance. While this cannot be the subject of adoption legislation, the Commission urges national cooperation to ensure collection of the adoptee by the applicants in person. The issue is sufficiently important to warrant an amendment to immigration laws.

RECOMMENDATION 103

The State Government should negotiate with the Federal Government to include in conditions for the granting of an adoption visa the requirement that applicants travel to collect their allocated child.

10.214 Further, it should be made part of the assessment process that applicants demonstrate their willingness and intention to travel to the sending country to collect their allocated child. If the social worker preparing the home study was not satisfied of such willingness and intention on the part of the applicants, this would be recorded in the home study and may affect the granting of approval to adopt.

10.215 It was proposed in DP 34¹¹⁸ that the selection criteria for intercountry 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.

10.216 Seventeen submissions were received in relation to this proposal all of which gave it unqualified support. These criteria are now covered by the requirements of the Cultural Heritage Placement Principle recommended in Chapter 8.

10.217 Some applicants seek to adopt more than one child at a time for reasons of expense or for fear that a second child may not be available at a later time. However, there are very few circumstances where this can be shown to be in the children's best interests.¹¹⁹ Applicants should be assessed and approved for placement of one child only, except where there has been an allocation of siblings, and the applicants have been assessed and approved to adopt those siblings.

Counselling

10.218 An obvious measure to maximise the chances of a successful adoption is to make counselling available to prospective adopters at all stages of the process including during preparation seminars. Most importantly, post-placement support should include free access to counsellors.¹²⁰ This is a service primarily for the protection of children who are migrants with permanent resident status, and prospective citizens. Migrant settlement services are generally provided free of charge.¹²¹ Counselling should be undertaken by professionals qualified in adoption work with additional knowledge of problems associated with cross-cultural placements and with "special needs" children. Equally, preparation seminars and the home study should be conducted by such experts.¹²²

Post-placement reports

10.219 DOCS is contacted by the adoptive parents on their return to Australia, at which time a post-placement interview is conducted and report made. Two post-placement interviews are conducted in the first six months, with reports being made following these interviews. However, the adoptive family can arrange for as many additional post-placement interviews as it feels it needs.

10.220 Studies referred to in Chapter 8 indicate that most intercountry adoptees, regardless of how well they progress in their new lives, will face initial adjustment difficulties, lasting in some cases up to two years. Evidence provided by DOCS suggests that many adoptive parents are reluctant to seek professional help with family conflict unless and until the situation has become critical. As a preventative measure, post-placement interviews with an appropriately qualified professional every three months in the first year then every six months in the second year would be judicious. While some may see the process as intrusive, the intrusion is justified by its potential for early identification and resolution of problems.

10.221 In addition, some sending countries require post-placement reports for a number of years after the adoption, in which case DOCS will seek undertakings from the adoptive parents that they will forward reports and photographs to DOCS at particular intervals. The agency should oblige adoptive parents to forward all post-placement reports that are required by the sending country.

Recognition of adoption orders

10.222 Currently, s 46 of the Adoption Act provides for the only recognition of foreign adoptions. Under that provision, recognition of an overseas adoption order is given only when, at the time of the application to adopt, the adopter has been resident for 12 months or more or was domiciled in the overseas country. Section 47 then makes provision for declarations of validity of foreign adoptions.

RECOMMENDATION 104

Sections 46 and 47 of the Adoption Act (which provide respectively for the recognition of a foreign adoptions where the adopters have been resident for at least 12 months or domiciled in the foreign country and for a declarations of validity of such foreign adoption) should be retained, although not as the only circumstances in which foreign adoptions will be recognised.

10.223 The discussion which follows sets out an argument for recognising foreign adoption orders in New South Wales in circumstances further to those covered by s 46 and 47.

10.224 As discussed in paragraph 10.110, when and if Australia ratifies the Hague Convention, it will have an obligation to recognise, by operation of law, an adoption order made in a treaty country in accordance with the Hague Convention.¹²³ Regulations to be enacted under the Family Law Act¹²⁴ are in the process of being drafted in anticipation of Australia ratifying the Hague Convention. One of the regulations is likely to provide that an adoption order made in a Contracting State in accordance with the Hague Convention will be recognised and effective in each State and Territory of Australia. Although, at this stage, it is intended that compliance with Article 23 (recognition of the overseas adoption order) will be dealt with at a Federal level, it is still possible for adoption legislation to anticipate Article 23 coming into force by providing that an adoption order made in a "designated country" be given automatic recognition under New South Wales law.

10.225 The Northern Territory has legislated for recognition of overseas adoption orders in that Territory. Section 51 of the Adoption of Children Act 1994 (NT) provides that:

[w]here the Minister is satisfied that proceedings for adoption in the overseas country are fair, the Minister may, by notice in the Gazette, determine that an adoption of a child in that country, in accordance with the law of that country ... shall have the same effect ... as an adoption made in a State or another Territory of the Commonwealth.

10.226 The United Kingdom has also made provision to recognise adoption orders made in (mainly European and Commonwealth) countries specified in a schedule.¹²⁵ Irish legislation makes provision for "designating" countries for the purposes of recognition of adoption orders but requires that the adopters have received prior approval from the Irish authorities to adopt from overseas and that the adoption process must involve inquiries in relation to the child's interests.¹²⁶

10.227 The Commission recommends that New South Wales's adoption legislation provide for recognition of overseas adoption orders for the following reasons:

• If Australia does ratify the Hague Convention, and if regulations under the Family Law Act have not been passed dealing with the issue, the legislative framework is in place for "designating" those countries who have also ratified the treaty, ensuring New South Wales's laws comply with international obligations.
• Pending ratification of the Hague Convention, New South Wales has the opportunity to "designate" countries who have already ratified and who have thereby demonstrated a commitment to internationally accepted adoption standards.
• If Australia does not ratify the Hague Convention, New South Wales still has the opportunity to "designate" countries in respect of which it is satisfied that there are high adoption practice standards and safeguards. This would do away with the requirement of obtaining an adoption order in New South Wales, when an adoption order has already been made by an appropriate country.
• If Australia does ratify the Hague Convention, and if regulations under the Family Law Act have been passed dealing with the issue, New South Wales retains a discretion to "designate" other countries in addition to treaty countries.

10.228 There is an important proviso to be made to the above. Recognition of an adoption order made by a "designated" country must only be in respect of adoptions which also comply with New South Wales adoption law. Applications to adopt must therefore have proceeded through DOCS and adoptive parents must be approved to adopt by DOCS. The exception to this will be if, at the time of the application, the adoptive parent had been resident for 12 months or more or was domiciled in the "designated" country. In that case, s 46 of the Adoption Act would apply. Similarly, if a country is not a "designated" country, recognition of the foreign adoption order will nonetheless be available if the criteria of s 46 are met.

RECOMMENDATION 105

Legislation should give to the Director-General the power to "designate" countries which have ratified the Hague Convention and/or which conduct intercountry adoption in accordance with the Hague Convention. An adoption order made in a "designated" country in accordance with the law of that country should have, so long as it has not been rescinded under the law in force in that country, the same effect as if it were an order for adoption made in New South Wales unless the adoption is manifestly contrary to New South Wales public policy, having regard to whether it would have complied with the law of New South Wales and whether it would have been contrary to the best interests of the child.

RECOMMENDATION 106

Where a child is adopted from a non-designated country, legislation should require that an adoption order be obtained in New South Wales.

Older-aged adoptees

10.229 DP 34 made a provisional proposal for reform that possibilities for care, other than adoption, should be considered for older children from other countries.¹²⁷ Fifteen submissions were received addressing this proposal, only one of which agreed with it.¹²⁸ Most submissions opposing the proposal did so on the basis that if a child is to be placed outside his or her own country, the child should have the security of a permanent placement in the nature of an adoption. Many submissions argued that the commitment to the child is greater with adoption and that, consequently, adoption "has a much higher retention rate, even of difficult placements such as special-needs and older children, than does foster care."¹²⁹ One submission also raised the issue of who would bear the costs of alternative care in Australia. This submission argued that:

[c]urrently alternate care services for children in this State are not adequately funded and there should be no possibility that these funds should be stretched to cover children from other countries.¹³⁰

10.230 The Commission sees the merits of the views expressed in these submissions. Furthermore, it is unlikely that a sending country would authorise a child's departure from that country in order to be placed in foster care in New South Wales, rather than in an adoption placement. This is particularly so when there will always be other countries who will be prepared to offer the child an adoption placement. There would also be problems with Australia's immigration laws as they currently stand. The laws would need to be amended to allow immigration clearance to a child who was not an adoptee, a prospective adoptee or sponsored in some other way. Accordingly, the Commission does not recommend that possibilities for care, other than adoption, be considered for older children from other countries.

Birth names

10.231 Under Article 8 of UNCROC, Australia has undertaken to "respect the right of the child to preserve his or her identity, including nationality, name and family relations". Clearly intercountry adoption, which involves a child losing his or her nationality and family relations, is not consistent with Article 8. However, Australia should honour this undertaking at least to the extent that can be accommodated within the practice of intercountry adoption. Accordingly, the right of a child to preserve his or her first name should be respected.

10.232 Even apart from obligations under UNCROC, it would rarely be in a child's best interests for his or her names to be formally changed in the adoption process. The intercountry adoptee endures enormous change and dislocation in the process of being adopted overseas. The child is uprooted from all that is familiar, including relationships and language. The child's name is one of the few remaining links with his or her birth culture. To change this involves further dislocation and disorientation for the child. More importantly, though, the child's name is an integral part of his or her identity:

Abandoned children are often renamed ... by their adoptive parents who wish to encourage integration into their new culture so that the little they bring with them is taken away. For older children this may be especially painful since it suggests that who they are, which is so often defined by their name, is not acceptable and must be changed. In addition, a name often reflects cultural connectedness and contributes to the establishment of racial identity.¹³¹

10.233 Although the effects of a name change are intensified in older-aged children, the points made above can be applied to all children. A child who is only one or two years old has already learnt to identify with a particular name. The concept that "I am x and no other" can be powerful even to a very young child.

10.234 In DP 34, it was proposed that the changing of first names of intercountry adoptees should be discouraged.¹³² Nineteen submissions were received addressing this proposal, the majority of which supported the proposal but felt that the changing of names should be a matter for parents and not subject to legislation or a court order. Several submissions were unconditionally in favour of the proposal.

10.235 Two submissions pointed out that some overseas names created problems in Western society, either because of the English meaning or association or because of difficulties with pronunciation.¹³³ It should be borne in mind here that as Australia becomes an increasingly multicultural society more and more non-Anglo-Saxon names, many difficult to pronounce, will become commonplace. However, if there was a real risk that his or her name could, in Australia, cause anguish to the child or make life difficult in any way, then a name change may be justified. But such a decision should be taken in the belief that a name change is an exceptional step, with the child's best interests being paramount. A birth name should not be changed simply because adoptive parents would prefer an Anglicised name for their child.

10.236 It has also been submitted that often a child has been given his or her name by carers at an orphanage and therefore it may have no significance for the child.¹³⁴ This argument ignores the point made above that children, particularly older-aged but also young children, identify with the name by which they are addressed so that it becomes an important part of their concept of themselves.

10.237 Recommendations in relation to changing an adoptee's names are made in Chapter 5. These recommendations take into account the provisions of UNCROC, the arguments raised above and the content of submissions.

Multiple placements

10.238 The Expert Group which prepared the 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 Internationally¹³⁵ suggested that where a family adopts a number of children from overseas, ensuring that they have the same origin and background is important for their "sense of belonging and affinity".¹³⁶

10.239 The Commission sees the merit in this approach. It is compelling to argue that (unrelated) adoptive siblings will find security and comfort in shared cultural backgrounds. However, it is unlikely to be the most important factor in family dynamics nor the greatest contributor to a successful outcome. Similar cultural backgrounds do not guarantee a "sense of belonging and affinity" and, conversely, dissimilar backgrounds do not preclude children developing that sense of belonging to and affinity with a family. The Commission is aware of a high proportion of successful "mixed" placements.

10.240 So long as certain issues are given careful and thorough consideration, and the conclusion is that a placement with a particular family of a particular child from a different background to that of siblings has every chance of success, a prohibition of "mixed" placements is unwarranted. Rather, a case-by-case approach should be taken to "mixed" placements. In evaluating a proposed allocation of a child with a different background to that of existing siblings, factors to consider should include the attitudes of the siblings towards the proposed placement, the family’s collective and individual ability to cope with a diversity of cultural backgrounds, and how the issue of race is handled in the family.

Immigrants and adoption

10.241 An Australian citizen or permanent resident who has immigrated from another country ("the immigrant") may wish to adopt a child (other than a relative) from the country of his or her previous nationality. The view has been expressed that in such cases precedence should be given to the immigrant's application as he or she would be providing the adoptee with cultural continuity. Another view has been expressed that the immigrant should be able to adopt the child in the country of nationality and bring the child into Australia, bypassing DOCS.

10.242 In relation to the first view, the Cultural Heritage Placement Principle would ensure that, all other things being equal, adoptive parents of the same cultural background as the child would be preferred over other applicants. But once again, the most suitable parents must be found for the child and no immutable preference per se should be given to immigrant applicants.

10.243 In relation to the latter view, under present immigration laws this would not be possible. It is made impossible for the very good purpose of preventing private adoptions and to reflect specifically State and Territory adoption law.

10.244 As discussed below, DIEA have an important role to play in regulating intercountry adoption by determining in what circumstances a child adopted overseas can enter Australia.

10.245 An immigrant applying to bring his or her adopted child into Australia would require a Class 102 (Adoption) Visa and Entry Permit for the child. (This is discussed in paragraph 10.255.) There are two circumstances in which a Class 102 Visa will be granted. In the first category, the adoptive parent must have been residing overseas for more than 12 months at the time of the application and the residency must not have been contrived for the purposes of circumventing the requirements for entry to Australia of children for adoption.

10.246 The second category is where the adoptive parent brings the child into Australia for the purposes of adoption in Australia. This second category is applied even when adoptive parents have already obtained an adoption order in the overseas country, the reason being that a foreign adoption order is recognised only where the 12 months overseas residency criterion is met. Under this second category there are further criteria which must be met before a visa will be granted. Among these is that the relevant child welfare authority (in this case, DOCS) must have approved the adopting parents.

10.247 The situation will change when, and if, Australia ratifies the Hague Convention. DIEA anticipates amending the Migration Regulations where necessary to take into account requirements of the Hague Convention, including automatic recognition of foreign adoption orders.

10.248 In the case of an immigrant adoption, with or without amendments to the Migration Regulations, the adoptive parent will still need to be approved by DOCS. If the immigrant travels to his or her former country of nationality and is able to adopt a child through a local program, this will not be an adoption to which the Hague Convention applies.¹³⁷ Therefore, there will not be automatic recognition in Australia of the adoption order and the adoptive parent must produce evidence of approval by DOCS in order to obtain a Class 102 Visa for the child. If the immigrant participates in an intercountry adoption program, then the procedures required to be followed by the Hague Convention will ensure government-to-government participation, and approval of the adoptive parent by the adoption authority in the receiving country.

10.249 If the adoption takes place in a country which has not ratified the Hague Convention, there will be no automatic recognition of the adoption order in Australia, subject to the discussion contained in paragraph 10.228. The possibility of "designating" countries for the purposes of automatic recognition of adoption orders was analysed in paragraphs 10.225-10.229. If this were to be introduced it would be subject to an important proviso that recognition of an adoption order made by a "designated" country would only be in respect of adoptions which had proceeded through DOCS.

DEPARTMENT OF IMMIGRATION AND ETHNIC AFFAIRS

10.250 DIEA determines whether or not an overseas adoptee will be allowed entry to Australia, pursuant to the Migration Act and the Migration Regulations. The Migration Act governs permanent entry into Australia by foreign citizens. Adoptive parents have encountered problems in trying to bring their adopted child into Australia and there are criticisms of the way in which the Migration Act and Migration Regulations operate and are applied to adoption migration.

10.251 While this review is not a review of the Migration Act, this section, examining immigration laws and practices as they relate to adoption, is included for three reasons:

• it is important, and within the ambit of the terms of reference, to draw attention to difficulties in the application of migration law to adoption;
• it is appropriate to comment on changes that may need to take place in order to accommodate changes in adoption law and in order to comply with international obligations; and
• understanding the way in which an intercountry adoptee gains entry into, and citizenship of, Australia is integral to a complete understanding of intercountry adoption.

10.252 In relation to Australia's international obligations, the Migration Act does not contain specific reference to UNCROC.¹³⁸ DIEA has stated that international obligations would be taken into account in considering applications. The High Court decision of Minister for Immigration and Ethnic Affairs v Teoh¹³⁹ held that, even though UNCROC had not been incorporated into legislation, the fact that Australia had ratified it gave rise to a "legitimate expectation" in an applicant under the Migration Act¹⁴⁰ that its provisions would at least be considered in the making of a decision.¹⁴¹

10.253 DIEA is responsible for determining whether a child will be allowed to enter Australia, and in some circumstances whether he or she will be granted Australian citizenship. The Adoption Visa criteria which DIEA applies are contained in Schedule 2 Class 102 of the Migration Regulations.¹⁴²

10.254 Before travelling overseas to pick up their child, applicants apply to DIEA for a Class 102 (Adoption) Visa and Entry Permit which will grant their child entry into and permanent residence in Australia if:

• the child is under 18;
• the prospective adoptive parents, one of whom is an Australia citizen or permanent resident, have undertaken in writing to adopt the child;
• DOCS has approved the adoptive parents; and
• the overseas authorities have approved the departure of the child, in the custody of the adoptive parents, for adoption in Australia.¹⁴³

Health criteria

10.255 If these primary eligibility criteria are met, the child's application is sent to the Migration Officer in the Australian embassy or consulate in the child's country. The child must meet health criteria set out in the Migration Regulations before a visa can be granted.¹⁴⁴ "The Minister ... decide[s] whether or not to grant a visa..., but the threshold decision as to whether the applicant satisfies the health criteria is reserved essentially to the Commonwealth medical officer."¹⁴⁶ Most of adoptive parents' criticism of the immigration process is in the area of the application of health criteria.

10.256 The Minister has a discretion to waive certain aspects of the health requirements if he or she is satisfied that the granting of a visa would be unlikely to result in undue harm or cost to the community or undue prejudice to other Australians in having access to health care or services.¹⁴⁶

Procedure

10.257 The Migration Officer arranges for a medical examination of the child by an approved panel doctor whose report is forwarded to International Health Clearance ("IHC")¹⁴⁷ in the Federal Department of Health and Community Services. IHC comprises a panel of five Commonwealth medical officers. IHC send their assessment of the report, giving opinions as required by the Migration Regulations,¹⁴⁸ to the Migration Officer. The Migration Officer then requests IHC to assess the cost of treatment or management in Australia of any disease or condition (where relevant). IHC assesses the long-term cost to society and effects on the child using four rankings from "minor" to "major significant".

10.258 Although IHC's role is usually advisory only, and no decision is made by this unit, the Migration Officer is strongly guided by its assessment. If a cost is assessed as "major significant", it is most unlikely that the Migration Officer would exercise his or her discretion to allow the child entry into Australia. The Migration Officer, in addition to IHC's assessment, can have regard to the opinion of an independent doctor on the adoptive parents' ability to cope, financially and otherwise, and on resources available in the intended area of residence. But he or she cannot have regard to independent medical evidence.

Appeal

10.259 If a child is refused a visa on health grounds the adoptive parents may seek an internal review of the decision by the Migration Internal Review Office ("MIRO").¹⁴⁹ If MIRO affirms the decision of the Migration Officer, an appeal can be made to the Immigration Review Tribunal ("IRT").¹⁵⁰ There are no formal avenues of review of the opinion given by IHC. This is because it constitutes a separate decision by persons not acting as delegates of the Minister.¹⁵¹ Both MIRO and IRT are restricted to reviewing the decision of the Minister, a decision which has itself been based on the binding opinion of IHC:

As a matter of practice, in many cases where the Commonwealth medical officer's opinion is that an applicant does not meet the health requirements, the applicant may well approach the Migration Office again with additional information which may be passed to the Commonwealth medical officer for further consideration.¹⁵²

10.260 IRT has observed that a Commonwealth medical officer would be obliged to review his or her opinion whenever fresh medical evidence comes to light, at least until the date of IRT's decision.¹⁵³ The fact that the Director of IHC reviews the opinion of one of the unit's own medical officers has been criticised as being insufficiently independent. In answer to this criticism the Health Department is establishing an independent panel within the Department to review IHC's opinions when fresh evidence is presented. Perhaps a better solution would be to allow IRT to review IHC's opinions as it seems anomalous that IRT can review a range of expert opinions but not the expert opinion of a Commonwealth medical officer.

Criticisms

10.261 One of the main criticisms of the health criteria is that there are no clear guidelines for making decisions: parameters such as "undue harm" and "undue cost" are imprecise and open to inconsistent interpretation. In 1989, the Department of Immigration, Local Government and Ethnic Affiars (as it then was) produced guidelines both for examining doctors and the Commonwealth medical officers.¹⁵⁴ These guidelines are now out of date and are being progressively, but slowly, replaced by background briefing papers. The Joint Standing Committee on Migrant Regulations considered it of critical importance to expedite the production of these papers to assist the medical officers reach an opinion and to achieve consistency in such opinions.¹⁵⁵ The Commission endorses this position.

10.262 There are subsidiary advantages to having unambiguous health criteria guidelines. First, this would enable an allocation to be refused without any of the parties involved "losing face". The guidelines can be pointed to and an explanation given that the child would probably not be given clearance.¹⁵⁶ Secondly, the sending countries are clearer about the kinds of health problems that are unlikely to get clearance in Australia and are therefore unlikely to offer children so affected in the first place. This avoids trauma for both the child and the adoptive parent when a possible placement is thwarted. DOCS has a role to play in this regard in taking responsibility for advising the sending country of Australia's health requirements. One practical step that can be taken, for example, is for the sending country to carry out HIB and Hepatitis B testing before a child is allocated, rather than after.

10.263 This point leads to a far more complex criticism on a philosophical level. Adoptive parents have argued that there should be greater flexibility in the application of the health criteria to intercountry adoption to allow a greater number of children with disabilities into Australia. The view is that:

it is at best insensitive, and at worst morally culpable, for Australia to expect to take from relinquishing countries (which are necessarily among the most needy in the world) only the most healthy orphaned or abandoned children, leaving those countries with the sole responsibility for caring for the less healthy children.¹⁵⁷

10.264 This argument has as its logical foundation a view of intercountry adoption as a form of aid. The merits of this view are discussed under paragraphs 10.79 to 10.80.

10.265 A different, but related criticism is that First World health standards are being applied to Third World conditions in assessing whether a child meets health criteria, and that this is inappropriate. For example, a child residing in an institution may be anaemic, underweight and undersized by Western standards or developmentally delayed but that same child may well flourish within an adoptive family. AICAN has recommended that the Migration Regulations be amended to create separate health criteria for intercountry adoptees, while retaining the prohibition on infectious diseases.¹⁵⁸ In meeting this criticism, the Joint Standing Committee on Migrant Regulations recommended that DIEA consider the financial and other family support able to be provided by the adoptive family and the circumstances of the adoptive child. In particular, DIEA should consider whether these factors could outweigh any likely costs to the community or access to community resources in short supply.¹⁵⁹

10.266 As well as there being a need for published health criteria guidelines, adoptive parents contend that medical reports and assessments should be made available to them, without having to rely on making an application under the Freedom of Information Act 1982 (Cth). At present, IHC's report comes under Commonwealth privacy laws and is not released to the adoptive parents.¹⁶⁰ The Commission agrees that knowledge of the guidelines which are being used to assess a child and access to the report would allay much of the frustration which adoptive parents feel in dealing with what they currently see as "a vast faceless bureaucracy, a complicated law and a lack of direction".¹⁶¹

10.267 The current health provisions require two decisions to be made. The first is whether a person is free from certain communicable diseases, or certain other diseases or conditions. This decision is not expressly reserved to the Commonwealth medical officer and is, therefore, by implication, a decision for the Minister. The second decision, expressly reserved as an opinion of the Commonwealth medical officer, concerns whether the disease or condition is a threat to public health, a danger to the community or requires costly care or treatment. The Joint Standing Committee on Migration Regulations has criticised this drafting:

At best, the regulation is unclear and confusing. At its worst, ... it appears that the Minister is required to make an essentially medical decision, while the Commonwealth medical officer, in assessing the costs of care and treatment, is allocated a decision which appropriately could be taken by the Minister.¹⁶²

10.268 A primary criterion which must be satisfied at the time of making an application is that the laws relating to adoption of the country in which the child is normally resident have been complied with.¹⁶³ However, IRT has demonstrated a reluctance to look behind the adoption order which is granted in another country in the absence of clear evidence of fraud or contravention of Australian migration laws.¹⁶⁴ The hope is, of course, that the Hague Convention will achieve a standard of adoption practice in the countries with which Australia has programs that ensures compliance with adoption laws. And at any rate, the Hague Convention will provide for automatic recognition of overseas adoption orders.

10.269 Until such time as Australia ratifies the Hague Convention, and assuming it does ratify, the question remains as to what extent DIEA should take responsibility for examining placement of a child for intercountry adoption by the sending country. At the very least, DIEA has a legal obligation to ensure compliance with the overseas adoption laws, and this obligation needs to be emphasised. But it can be argued that DIEA is bound, in accordance with Australia's international obligations, to enquire further into overseas practices that have resulted in a particular child being available for overseas adoption.

10.270 There is a further criterion which is inherently difficult. The Minister must be satisfied that the applicant is likely to become established in Australia without undue personal difficulty.¹⁶⁵ It is not clear how and to what extent DIEA satisfies itself of this in relation to adoptees. The adjustment difficulties which an overseas adoptee experiences, particularly older-aged adoptees, are discussed in Chapter 8.

10.271 On a pragmatic level, adoptive parents have two criticisms of the visa application procedure. They complain that it is difficult for them to obtain any information from DIEA on the progress of their application; that DIEA seems to operate in a very closed fashion. IHC have introduced an enquiry line: this is an improvement which DIEA could emulate. Also, the point has been made that sending the overseas medical report to Canberra for forwarding to Sydney is an unnecessary step. Canberra is merely a transit stop; no action is taken on the application there. This delays the processing of the application and can increase the chances of the paperwork going astray. The Commission advocates the sending of overseas medical reports directly to the point at which they will be assessed.

10.272 Again on a pragmatic level, when IHC forward their assessment to the Migration Officer it should be possible to forward a costing of management and treatment of any disease or disability at the same time, thereby saving two to three weeks in the time it takes to process an application. The present practice is for IHC to wait until the Migration Officer responds to IHC's assessment with a formal request for a costing.

Guardianship

10.273 The Minister for Immigration becomes the guardian of every non-citizen child entering Australia¹⁶⁶ until the child is legally adopted under NSW law.¹⁶⁷ Guardianship is generally delegated to DOCS.¹⁶⁸ The Immigration (Guardianship of Children) Act 1946 (Cth) has been amended to provide for "declared States and Territories", the intention being that individual States and Territories will legislate for guardianship of children so that the Commonwealth legislation need no longer apply. To date, New South Wales is not a "declared State".¹⁶⁹

Citizenship

10.274 Pursuant to the Australian Citizenship Act 1948 (Cth), a child adopted under Australian law automatically acquires citizenship if he or she is in Australia as a permanent resident at the time of the adoption and if one of the adoptive parents is an Australian citizen.¹⁷⁰

10.275 Usually, an adoptive parent must adopt their child under New South Wales law because an adoption order obtained in the sending country does not have effect for the purposes of the laws of New South Wales.¹⁷¹ However, in limited circumstances, a declaration of the validity of an overseas adoption order can be obtained through the Supreme Court.¹⁷² It is available where the adoptive parents were resident or domiciled in the overseas country for 12 months or more, and the overseas order gives them a superior custody right to that of the natural parents.¹⁷³ A declaration of validity of an overseas adoption order does not automatically confer Australian citizenship on a child. The adoptive parents must request a grant of citizenship from DIEA. As a matter of policy, citizenship will be granted after presentation of evidence that the overseas order has been declared valid in an Australian court.¹⁷⁴

RECOMMENDATIONS

10.276 In addition to internationally agreed standards and procedures for intercountry adoption, Australia has itself developed nationally agreed guidelines. New South Wales's approach to intercountry adoption should be in accordance with these guidelines. The main agreements adopted by the Council of Social Welfare Ministers are:

• 1986 National Guidelines contained in the Report of the Joint Committee on Intercountry Adoption;¹⁷⁵
• 1991 Protocols and Procedures for the Development of Programs for Intercountry Adoption with New Countries;
• 1993 National Minimum Principles in Adoption;¹⁷⁶ and
• 1995 Draft National Minimum Principles in Adoption.¹⁷⁷

10.278 In making the recommendations in this chapter, the Commission has had regard to the above guidelines, as well as international treaty obligations, standards and principles. The following list of recommendations assembles and places under appropriate headings all the recommendations which appear throughout the text of this chapter.

Financial aspects

87. Section 50 of the Adoption Act (which makes it an offence to make, give or receive payment or reward for the making of any arrangements for adoption, other than authorised expenses or fees, and which applies equally to local and intercountry adoptions) should be retained.

88. Payment of expenses reasonably incurred in the adoption, including reasonable legal expenses and expenses incurred by the sending country, but excluding compulsory donations, should continue to be authorised under the legislation.

89. Legislation should stipulate that unexpended monies paid in advance by applicants must be refunded at the completion of an adoption.

Consents and availability for adoption

90. Legislation should prohibit applicants from having any contact, direct or indirect, applicants have been approved to adopt the child of those birth parents.

Role of DOCS

91. DOCS should be designated by appropriate Federal laws as the Central Authority in New South Wales having the authority, within New South Wales, over intercountry adoption given to Central Authorities by the Hague Convention.

92. No person or body other than DOCS should be permitted to:

• receive expressions of interest;
• decide whether or not to approve an applicant;
• issue approval/non-approval letters;
• seal the home study as an original;
• administer the appeal process in circumstances of non-approval; and
• approve an allocation made by the overseas authority.

Accreditation

93. Existing parent support groups and any other non-government organisation should be eligible to apply to be accredited to undertake the arrangement of intercountry adoptions.

94. Sections 10 and 11 of the Adoption Act (which provide respectively that a charitable organisation can apply for approval as a private adoption agency and that the Director-General may grant or refuse the application) should be retained.

95. Legislation should require an accredited body to be directed and staffed by persons qualified by their ethical standards and by training or experience to work in the field of intercountry adoption.

96. Legislation should explicitly give DOCS the power to supervise an accredited body's composition, operation and financial situation and to require that an accredited body provide DOCS with audited accounts.

97. Legislation should provide for licensing requirements which restrict the directors, administrators and employees of an accredited body from receiving remuneration which is unreasonably high in relation to the services rendered.

98. Legislation should provide for licensing requirements which require DOCS and accredited bodies to act expeditiously in the process of an adoption.

99. Legislation should provide for licensing requirements which authorise accredited bodies to perform the following functions:

• to conduct information, preparation and education seminars;
• to assess expressions of interest;
• to arrange for assessment of applicants and preparation of the home study by an appropriate professional;
• to provide counselling;
• to prepare and collate required documentation;
• to forward adoption documentation to the overseas authority;
• to liaise and negotiate with the overseas authority;
• to receive allocation notifications;
• to arrange for the preparation of post-placement reports by an appropriate professional;
• to provide to DOCS and the overseas authority post-placement reports; and
• to obtain an adoption order in New South Wales, where applicable.

100. Legislation should provide for licensing requirements which prohibit accredited bodies being involved in fund raising, sponsorship and the sending of aid to an institution with which it has an intercountry adoption program.

Adoption information

101. Clause 29(2) of the Adoption Regulation (which provides that, before placing a child from overseas for adoption, the Director-General must obtain a report about the social, developmental and medical history of that child and his or her family) should be retained.

102. DOCS and the accredited agency must ensure that information received by them concerning the child's origin, identity of birth parents and medical history is preserved and that access to such information is given to the adoptive parents and to the child, in accordance with the Adoption Information Act 1990 (NSW).

Preparation, assessment and counselling

103. The State Government should negotiate with the Federal Government to include in conditions for the granting of an adoption visa the requirement that applicants travel to collect their allocated child.

Recognition of adoption orders

104. Sections 46 and 47 of the Adoption Act (which provide respectively for the recognition of a foreign adoptions where the adopters have been resident for at least 12 months or domiciled in the foreign country and for a declarations of validity of such foreign adoption) should be retained, although not as the only circumstances in which foreign adoptions will be recognised.

105. Legislation should give to the Director-General the power to designate countries which have ratified the Hague Convention and/or which conduct intercountry adoption in accordance with the Hague Convention. An adoption order made in a "designated" country in accordance with the law of that country should have, so long as it has not been rescinded under the law in force in that country, the same effect as if it were an order for adoption made in New South Wales unless the adoption is manifestly contrary to New South Wales public policy, having regard to whether it would have complied with the law of New South Wales and whether it would have been contrary to the best interests of the child.

106. Where a child is adopted from a non-designated country, legislation should require that an adoption order be obtained in New South Wales.

FOOTNOTES

1. "Agency" and "agencies" is used to refer to both the New South Wales Department of Community Services and private adoption agencies unless the context requires otherwise.

2.

	Overseas born adoptees	Australian born adoptees
1990-91	162	158
1991-92	145	151
1992-93	95	110
1993-94	89	98
1994-95	85	127

[Link to text only version of table]

Source: Australian Institute of Health and Welfare Child Welfare Series: Adoptions Australia Nos 1, 4, 7, 11, 14 (AGPS, Canberra).

3. J Harper "Intercountry Adoption of Older Children in Australia" (1986) 10 Adoption and Fostering 27 at 27. Of the 292 children, 119 were adopted by NSW families.

4. This came into effect on 1 September 1995. It removed some clauses which were specific to intercountry adoption so that the same clauses could apply to intercountry and local adoption alike. This was to meet the requirement of UNCROC that intercountry and local adoption enjoy equivalent safeguards and standards.

5. Adoption of Children Regulation 1995 (NSW) cl 6(2)

6. The procedure outlined in this paragraph is the same for local adoptions.

7. Adoption of Children Regulation 1995 (NSW) cl 8.

8. cl 7.

9. Adoption of Children Act 1965 (NSW) s 65A; Adoption of Children Regulation 1995 (NSW) cl 12.

10. See New South Wales Law Reform Commission Intercountry Adoption and Parent Support Groups (Research Report 6, 1997).

11. This change was introduced following the Commission's proposal in NSWLRC DP 34.

12. Adoption of Children Act 1965 (NSW) s 46.

13. Adoption of Children Act 1965 (NSW) s 21.

14. Australia is not a signatory to the Hague Convention because, as a matter of policy, Australia does not sign treaties. Becoming a signatory has no legal or binding effect and is really a symbolic gesture of support for the treaty. Australia fully intends to retify the Hague Convention.

15. In 1986, the General Assembly of the United Nations adopted the Declaration on the Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally. This laid down the principle that intercountry adoption was only to be considered as a placement option if a child could "not be placed in a foster or an adoptive family or [could] not in any suitable manner be cared for in the country of origin". This principle was incorporated into Article 21(d) of the United Nations Convention on the Rights of the child.

16. H Bayes "Let's consider the Issues" in Intercountry Adoption in Tasmania (Discussion Paper, 1993) at 2.

17. Bayes at 2.

18. "Racial and ethnic identity is extremely important in intercountry as well as transracial adoptions. Much more research is needed to assess the evolution and long-term adjustment and identity of children who have been place internationally": R G McRoy "Significance of Ethnic and Racial Identity in Intercountry Adoption within the United States" (1991) 15 Adoption and Fostering 53 at 59.

19. J Harper "A Bit of Me Will Always be Lost' - Adoption Losses in Intercountry Adoption" in Proceedings of the fifth Australian Adoption Conference Has Adoption a Future? (Post Adoption Resource Centre, Sydney, 1995) at 367.

20. J Harper (1986) at 27. Cities studies by A Kadushin and W Seidl "Adoption Failure: a Social Work Post-mortem" (1971) 16 Social Work 32; C Bass "Matchmaker-Matchmaker: Older Child Adoption Failure" (1975) 54 Child Welfare 505.

21. D Ngabonziza "Intercountry Adoption: In Whose Best Interests?" (1988) 12 Adoption and Fostering 35 at 35.

22. B Tizard " Intercountry Adoption: A Review of the Evidence" (1991) 32 Journal of Child Psychology and Psychiatry 743 at 747: "But such gestures [that is, sponsorship and donations by adoptive parents], and intercountry adoption itself, make a negligible impact on the problems of poverty and war in Third World countries".

23. "[A]ttention should be given to improving, where possible, the situation of birth parents and families in other foreign countries to eventually reduce the need for intercountry adoptive placements": R G McRoy "Significance of Ethnic and Racial Identity in Inter-country Adoption within the United States" (1991) 5 Adoption and Fostering 53 at 59-60; "In developing countries there are various means of children's welfare services, and intercountry adoption is considered as a last resort": I Utaryo "Adoption as a Means of Children's Welfare Services in Developing Countries" paper presented at the public seminar The Year of the Child: International Responsibilities (Adelaide, May 1979) in G P Mullins (ed) publication No 67 (Department of Continuing Education, University of Adelaide, 1979) at 3.

24. Ngabonziza at 38-39; Australian Catholic Social Welfare Commission Intercountry Adoption (Discussion Paper, August 1991) at 10: "The international acceptance of intercountry adoption reduces the need for positive and determined action to develop support services for children and their parents in their own country".

25. J Harper " Love is Not Enough: Breakdown in Intercountry Adoption" paper presented at the Intercountry Adoption Workshop (NSW Committee on Adoption, Sydney, October 1985); D S Kim "Issues in Transracial and Transcultural Adoption" (1978) 59 Social Casework 477; S Z Moss and M S Moss "Surrogate Mother-Child Relationships" (1975) 45 American Journal Orthopsychiatry 381; L R Melina Raising Adopted Children (Harper Perennial, New York, 1986) at 170.

26. J Harper (1985) at 5.

27. P Kirton and J Kirton "Every Child Deserves a Family" (1991) Adoption Australia (Autumn) 12 at 14.

28. Home established by Pearl Stevens: information supplied by Ms V Alterman in conference (31 March 1995).

29. At the start of 1990, 104,000 children were in institutions of which only 2-3% of these were orphans: D Reich "Children of the Nightmare" (1990) 14 Adoption and Fostering 9 at 11.

30. Defence for Children International and Service Social International Report with Regard to the Implementation in Romania of the Hague Convention on the Rights of the Child in the Field of Intercountry Adoption (April 1991) quoted in A Zugravescu and A Iacovescu "The Adoption of Children in Romania" in E D Jaffe (ed) Intercountry Adoption: Laws and Perspectives of "Sending" Countries (Martinus Nijhoff, Dordrecht, 1995) 39 at 42: Law No 11 was passed in August 1990 with serious ramifications which had not been forseen. In effect, it removed conditions and restrictions from the operation of intercountry adoption, resulting in this number of 10,000 children leaving the country. "The system created by Law 11/1990 had, in effect, deprived the act of adoption of its character of social protection of the minor".

31. J Maxwell, B Lewis and L Crisp "The New Routes to Happiness" The Bulletin (4 June 1991) 38 at 43.

32. J Triseliotis "Closing Remarks" a paper presented at the Intercountry Conference on Adoption (Athens, 6-9 July 1987) in J Cauchi (ed) "International Conference on Adoption" (1987) 14 Family Research Bulletin 16 at 16.

33. P Mussen, J Conger and J Kagan Child Development and Personality (4th ed, Harper and Row, New York, 1969) at 193.

34. E Leung "Intercountry Adoption: An Independent Social Worker's Viewpoint" paper presented at the public seminar Intercountry Adoption (Adelaide, 9-10 July 1977) in G P Mullins (Ed) Publication No 58 (Department of Adult Education, University of Adelaide, 1977) 48 at 49.

35. Reich "Children of the Nightmare" at 12.

36. Reich at 10.

37. I Freckelton "Clamp-Down of Baby Snatching" (1986) 60 Law Institute Journal 840 at 840; Maxwell, Lewis and Crisp "The New Routes to Happiness" at 41-43; H C Kennard "Curtailing the Sale and Trafficking of Children: A Discussion of the Hague Conference Convention in Respect of Intercountry Adoptions" (1994) 14 University of Pennsylvania Journal of International Business Law 623; B Cook "Adoption From Overseas: Trading in Lives or Turning the Tables on Tragedy?" (Dec 1988-Jan1989) Migration 11 at 11; R Waterstone "Black-Market Babies: For Sale: One Baby $12,000 O N O" New Woman (June 1993) at 44-49; J Prent "Hague Convention on Intercountry Adoption" paper presented at The First World Congress on Family Law and Children's Rights (Sydney, July 1993); Ngabonziza at 37: "In the context of....a vulnerable population, [intercountry adoption] lends itself to many abuses including prostitution and child trafficking....The practice of trafficking in children had devloped to such alarming levels that ECOSOC is urging all governments to address the issue and take the action necessary to stem this immoral and illegal trend, which is an offence not only against the child but a denial of every aspect of human rights".

38. H Bayes "Protecting Children in Intercountry Adoption" (1993) Adoption Australia (Summer) 9 at 21. See also a study of the trafficking of children in Bolivia, evidence emerged of a woman who had abducted five babies in three months and sold to a lawyer for an average of $US5 each: Defence for Children International Protecting Children's Rights in International Adoptions: Selected Documents on the Problem of Trafficking and Sale of Children (Geneva, 1989) at 6.

39. "Unfortunately there was a market for a while in Brazil for illegal adoptions....There have been people interested in making money from illegal adoptions and scandals have taken place. Biological mothers have been paid to give up their children for adoption...The Federal Police estimate that for every 1,500 children legally adopted in Brazil, around 3,000 leave the country illegally": D Carvalho da Silva " The Legal Procedures for Adopting Children in Brazil by Citizens and Foreign Nationals" in Jaffe (1995) 121 at 128, 129.

40. Carvalho da Silva at 128.

41. Brazilian Code of Minors, Article 31.

42. Carvalho da Silva at 128.

43. C R Duenas "Legal and Social Aspects of the Adoption of Chilean Children" in Jaffe (1995) at 176.

44. Z M Moncada and C A Sanabria "Adoption in Costa Rica" in Jaffe (1995) 139 at 148.

45. E W de Sztrancman and I Sztrancman Waisblack "Peruvian Foreign Adoptions" in Jaffe (1995) 185: in 1992 six adoption judges were removed from office for corrupt behaviour.

46. The Regional expert meeting on Protecting Children's Rights in Intercountry Adoptions and Preventing Trafficking and Sale of Children organised by Defence for Children International in Co-operation with the Department of Social Welfare and Development of the Government of the Republic of the Philippines (Manilla, Philippines, April 1992) at 6.

47. "[W]hat is presented as voluntary relinquishment may not be so. At the recent Meetings of Experts in Manilla, the Indian Associaion for the Promotion of Adoption presented details of two cases where an apparently legal and voluntary relinquishment had been made under duress": Bayes (1993); The Australian Catholic Welfare Commission argues that intercountry adoption endorses the oppression of relinquishing mothers: Intercountry Adoption (1991) at 10; "Certainly, many mothers ended up signing documents permitting the adoption of their children without even knowing that they were doing": Carvalho da Silva at 129.

48. See UNCROC Articles 21 and 35; The Hague Convention Articles 4 and 29.

49. Ngabonziza at 37; Carvalho da Silva at 129.

50. J M Becker "The Pressure to Adandon" (1988) 5 International Children's Rights Monitor cited in Defence for Children International Protecting Children's Rights in International Adoptions: Selected Documents on the Problem of Sale and Trafficking of Children at 24-25.

51. Sztrancman and Sztrancman Waisblack at 186.

52. "Some agencies keep a newborn baby for months, saying that there is a local family planning to come for the child, thereby turning away any local applicants, until they can eventually offer the child overseas". Bayes (1993) at 10; Carvalho da Silva at 128.

53. A Loenen and R Hoksbergen "Intercountry Adoption: the Netherlands; Attachment Relations and Identity" (1986) 10 Adoption and Fostering 22 at 23.

54. See, for example, M D S Ainsworth, M Blehar, E Walters and S Wall Patterns of Attachment: A Psychological Study of the Strange Situation (Erlbaum, Hillsdale, NJ, 1978).

55. Loenen and Hoksbergen at 23.

56. K Choularton "Intercountry Adoption-Some Psychological Problems" paper presented at the public seminar Intercountry Adoption (Adelaide, 9-10 July 1977) in G P Mullins (ed) Publication No 58 (Department of Adult Education, University of Adelaide, 1977) at 41.

57. R Baker "Parentless Refugee Children: The Question of Adoption" in P Bean (ed) Adoption: Essays in Social Policy, Law and Sociology (Tavistock, London, 1984).

58. B Joe "In Defence of Intercountry Adoption" (1978) Social Sciences Review at 1 quoted in Australian Institute of Family Studies About Intercountry Adoption: AICAN Information Paper No 1 (May 1992) at 9.

59. It is interesting to note that Argentina, like most South American countries, has ratified UNCROC, but has placed a reservation on Article 21. The sub-sections on intercountry adoption do not apply in areas within its jurisdiction because, before they can be applied, a strict mechanism must exist for the legal protection of children in matters of intercountry adoption, in order to prevent trafficking in and the sale of children: C P Grosman and D B Inigo "Adoption of Children in Argentine by Local Citizens and Foreign Nationals" in Jaffe (1995) 153 at 158.

60. Article 21(a).

61. Article 21(b).

62. Article 21 (c).

63. NSWLRC DP 34, Proposal 1 at 298.

64. Article 21 (d).

65. Article 21(e).

66. R Morgan "Intercountry Adoptions: The New Convention and its Development of the Principles of the UN Convention on the Rights of the Child" paper presented at First World Congress on Family Law and Human Rights (Sydney, 4-9 July 1993) at 953-971.

67. In the Final Act of the 17th Session of the Hague Conference on Private International Law.

68. As at 30 July 1996 the following countries had ratified the Hague Convention on Protection of Children and International Co-operation in Respect of Intercountry Adoption: Mexico, Romania, Sri Lanka, Cyprus, Poland, Spain, Peru, Ecuador, Costa Rica, Burkina Faso; and Philippines. A further 15 countries are signatories to the treaty.

69. Hague Convention on Protection of Children and International Co-operation in Respect of Intercountry Adoption, Article 1.

70. L R Melina "Hague Treaty Hopes to Solve Problems in Intercountry Adoptions" (1993) Adopted Child 1 at 2.

71. R Morgan at 957.

72. Contact in compliance with conditions established by the competent authority in the State of origin is permissible.

73. Article 5.

74. Article 6.

75. Article 6(2).

76. Article 8.

77. Article 14-22.

78. Article 22.

79. Article 11(a) and (b).

80. Australian Society for Intercountry Aid for Children (NSW) Inc Submission (31 August 1994) at 2 and 6.

81. Adoptive parents who have lived in their child's country of origin for more than one year prior to the adoption are exempted from this requirement.

82. Article 23.

83. Article 24.

84. Article 30(1).

85. NSWLRC DP 34, para 12,17 outlines some of the ambiguities.

86. M D Kirby "The United Nations Convention on the Rights of the Child and the Declaration of the Rights of the Child as Part of International Law and Municipal Law" paper presented at First World Congress on Family Law and Human Rights (Sydney, 4-9 July 1993) at 17.

87. The Hague Convention Article 8; UNCROC Article 21(d).

88. RR 6 sets out details of contributions of aid and sponsorship of children in each of the parent support groups. A number of submissions from adoptive parents who are or have been members of parent support groups stressed that, while they are encouraged to fund-raise and voluntarily wish to do so, they have never felt pressured into this by the parent support groups.

89. In Ecuador, and some other South American countries "the Classic method used in illegal adoptions...begins when a private couple locates a pregnant woman willing to give up her child, and the woman registers herself into the hospital under the name of the adoptive mother. Subsequently, after childbirth, the civil Registry issues a birth certificate bearing the name of the "adoptive" mother rather than the birth-mother". C Maldonado, A Marques, L Hayes Vertulfo, B Cordero and C Valdez "Adoption in Ecuador" in Jaffe (1995) 199 at 208.

90. Duenas, senior attorney in the Adoption Department of SENAME, in analysing the problem with Chile's adoption legislation says "one problem concerns the great number of private persons mediating in the adoption process, thus compromising the technical and ethical demands inherent in such a sensitive procedure": Duenas at 173.

91. Submission (Confidential) (29 July 1974).

92. They include a requirement of confidentiality of all adoptive documents and obligations to notify DOCS of all allocations for its approval and to provide it, and all applicants, with details of programs.

93. Adoption of Children Act 1965 (NSW) s 13.

94. Victorian Family and Children's Services Council The Intercountry Adoption Services in Victoria - A Follow up Review (July 1991) (the "Fogarty Report") at 39.

95. Fogarty Report at 39.

96. NSWLRC DP 34, Proposal 2 at 298.

97. Centacare (Newcastle) Submission (29 July 1994).

98. Adoptive Families Association of the ACT Incorporated Submission (11 July 1994); J and G Leslie Submission (28 July 1994); Internatioal Children's Aid Ltd. Submission (3 August 1994); P Cussinet and N Toumi Submission (29 July 1994).

99. W Morgan and T Edwards Submission (19 October 1994).

100. Australian Society for Intercountry Aid for Children (NSW) Inc. Submission (31 August 1994); Friends of FANA Submission (Oral) (31 March 1995).

101. The Fogarty Report at 48.

102. Family Law (Convention on Protection of Children and Intercountry Adoption) Regulations.

103. Intercountry Adoption Working Party Report to the Protection and Care of Children Sub-Committee of the Health and Community Services Ministerial Council Secretariat (1995).

104. Article 14.

105. G Parra Aranguren Report on the Parliamentary Draft Convention for the International Co-operation and Protection of Children in Respect of Intercountry Adoption Adopted by the Special Commission (Preliminary Document No 7, Permanent Bureau of the Conference, September 1992) at 124-125.

106. Parra Aranguren at 126.

107. Section 137 of the Adoption Act 1995 (WA) allows the Minister to make arrangements on behalf of the State with a representative of the government of another country for an intercountry adoptions. Arrangements cannot be made unless they are approved by the government of the other country. Section 115 of the Adoption Act 1984 (VIC) permits arrangements for intercountry adoption to be made by or on behalf of the Director-General or an approved agency and can only be made with a "prescribed"person or organisation.

108. Act on Intercountry Adoption 1988 (Netherlands).

109. L van Tuyll "Intercountry Adoption in the Netherlands - Compulsory Preparation Classes for New Adoptive Parents" (1994) 18 Adoption and Fostering 14 at 19.

110. "The child concerned by intercountry adoption must enjoy safeguards and standards equivalent to those existing in the case of national adoption.

111. C Macaskill Against the Odds: Adopting Mentally Handicapped Children (BAAF, London, 1985); National Children's Bureau Parents for Children: Some Findings from a Research Project (London, 1985); J Thoburn, A Murdoch and A O'Brien Permanence in Child Care (Oxford, Basil Blackwell, 1986) quoted in J Thoburn and M Charles "A Review of Research which is Relevant to Intercountry Adoption" (University of East Anglia, Norwich, September 1991) in United Kingdom - Department of Health, Welsh Office and Scottish Office Interdepartmental Review of Adoption Law - Intercountry Adoption (Background Paper No 3, January 1992) at 9.

112. See P Sawbridge "Seeking New Parents: A Decade of Development" in J P Triseliotis (ed) New Developments in Foster Care and Adoption (Routledge and Kegan Paul, London, 1980); P Sawbridge Parents for Children: Twelve Practice Papers (BAAF, London. 1983) quoted in Thoburn and Charles "Review of Research Relating to Intercountry Adoption" at 9.

113. In a study of overseas adoption disruption by Hoksbergen, certain risk factors were isolated. One of these factors was indentified as negative first encounter with the child: R Hilsbergen "Understanding and Preventing 'Failing Adoptions'" in E Hibbs (ed) Adoption: International Perspectives (International University Press, Madison, 1991).

114. Thoburn and Charles "Review of Research Relating to Intercountry Adoption" at 9.

115. Thoburn and Charles at 9.

116. Moncada and Sanabria "Adoption in Costa Rica" at 149.

117. Draft regulations under Family Law Act 1975 (Cth) are in the process of being prepared in anticipation of Australia ratifying the Hague Convention. One of the draft regulations proposes to provide that the State Central Authority (presumably DOCS) ensures that the child's entry into Australia must be carried out in the company of at least one of the applicants to adopt.

118. NSWLRC DP 34, Proposal 4 at 298.

119. Child Care and Social Policy Division, Department of Health and Social Services (Northern Ireland) Circular (April 1992) para 24 at 5.

120. DOCS has introduced free access to post-placement support following the Commission's proposal in NSWLRC DP 34.

121. H Bayes "Intercountry Adoption in Tasmania" Report ot the Ministerial Review of Intercountry Adoption (April 1993) at 31.

122. J Phillips and J Thoburn identify a number of factors influential in the success of an intercountry adoption. One of these is the nature and quality of the professional services involved before, during and after the adoption process: Social Work Development Unit, UEA The Work of the Essex Adoption Agency (1989) quoted in J Horne-Roberts "Intercountry Adoption" (1992) 142 New Law Journal 286 at 288.

123. Article 23(1).

124. Family Law (Convention on Protection of Children and Intercountry Adoption) Regulations.

125. Schedule to the Adoption (Designation of Overseas Adoptions) Order 1973 (UK).

126. Adoption Act 1991 (Ireland) s 4.

127. NSWLRC DP 34, Proposal 7 at 299.

128. Australian Society for Intercountry Aid for Children (NSW) Inc. Submission (31 August 1994).

129. Adoptive Families Association of the ACT Inc. Submission (11 July 1994 at 6; see also O and S Smith Submission (25 July 1994); T and L O'Keefe Submission (21 July 1994).

130. Centacare Catholic Community Services (Adoption Services) (Newcastle) Submission (29 July 1994) at 3.

131. Harper (1994) at 368.

132. NSWLRC DP 34, Proposal 6 at 298.

133. M Cunningham Submission (14 July 1994); V Osborne Submission (29 July 1994).

134. O and S Smith Submission (25 July 1994).

135. Ratified in 1986 but not binding on member States.

136. This was noted without comment in Western Australia Adoption Legislative Review Committee Final Report: A New Approach to Adoption (February 1991) at 126. No recommendation was made by the Western Australian Report following this suggestion.

137. Article 2.

138. Obviously there would be no reference as yet to the Hague Convention.

139. (1995) 183 CLR 273.

140. The principle is applicable to any domestic law under consideration.

141. On 10 May 1995 the Minister for Foreign Affairs and the Attorney General issued a joint Ministerial statement attempting to nullify the Teoh decision. The purpose of the statement was described as being "to restore the position to what it was understood to be prior to the Teoh case". The Joint Statement foreshadowed legislation to clarify the position. The Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth) was introduced into Parliament but was not passed and has now lapsed.

142. These principles were decided on by the Council of Social Welfare Ministers and the Minister for Immigration and Ethnic Affairs in 1986, acting on a report from the Joint Committee on Intercountry Adoption.

143. Migration Regulations 1994 (Cth) Schedule 2, Reg 102.211(3).

144. Under these criteria the adoptee must be free from

• tuberculosis; or
• any other fatal/serious communicable disease that would be a threat to public health; or
• any other disease or conditition that would be a danger to the community; require significant care or treatment; involve community resources in short supply; or result in a significant charge on public funds (Schedule 4, Reg 4007).

146. Migration Regulation 1994 Schedule 4, Reg 4007(2).

147. Until recently, known as the Migrant Medical Clearance Unit.

148. Migration Regulations 1994 Schedule 4, Regs 4007 and 4008.

149. Migration Act 1958 (Cth) s 339.

150. s 347.

151. Re Norin (Immigration Review Tribunal, 22 November 1991) at 7.8.

152. Submission by Department of Immigration, Local Government and Ethnic Affairs (DIGLEA) to Joint Standing Committee on Migration Regulations Submission to Joint Standing Committee on Migration Regulations Vol 1 at 75-77 quoted in Conditional Migrant Entry: the Health Rules at 61.

153. Re Norin.

154. Health Requirements - Notes for the Guidance of Doctors and Radiologists Examining Applicants For Visa and Entry Permits (DIGLEA, 1989).

155. Conditional Migrant Entry: the Health Rules (December 1992) at 44-45.

156. This point was made by Susan Priest, Executive Officer, Australians Aiding Children (SA) in conference with the New South Wales Law Reform Commission (15 June 1995).

157. Australian Society for Intercountry Children (ASIAC) NSW Submission in Submissions to Joint Standing Committee on Migration Regulations Vol 1 at 111 quoted in Conditional Migrant Entry: the Health Rules at 84. Similar arguments have been put by AICAN and individual adoptive parents: Submissions to Joint Standing Committee on Migration Regulations at 84 and 85.

158. Submission to Joint Standing Committee on Migration Regulations Vol 3 at 2 and 3 quoted in Conditional Migrant Entry: the Health Rules at 85.

159. Recommendation 18, Conditional Migrant Entry: the Health Rules at 87.

160. This was identified as a problem by the Fogarty Committee in its inquiry into the Victorian Intercountry Adoption Service in 1989: Fogarty Report at 63. If the adoption agency or parent support group has a good relationship with the Embassy involved the report may be handed over.

161. J Rollings "The Intercountry Adoptee and Immigration Health Requirements" (1994) Adoption Australia (Winter) at 8.

162. Conditional Migrant Entry: the Health Rules at 23.

163. Migrant Regulations 1994 Schedule 2, Reg 102.213.

164. Re: Samgeeta Roshni and Yogeeta Roshni (Immigration Review Tribunal, 31 July 1992).

165. Migration Regulations 1994 Schedule 4, Reg 4010.

166. Immigration (Guardianship of Children) Act 1946 (Cth) s 6. In 1994, the Act was amended to exclude children entering Australia for adoption from the operation of the Act, by changing the definition of a "non-citizen child": s4AAA. It was the intention of Parliament that, in accordance with an understanding reached in 1990, the States and Territories would enact complementary legislation to provide for the guardianship of non-citizen children entering Australia.

167. Immigration (Guardianship of Children) Act 1946 (Cth) s 11.

168. Immigration (Guardianship of Children) Act 1946 (Cth) s 5. The adoptive parents have no legal rights over the child until an adoption order is made in NSW. Re Adoption of S (1977) 28 FLR 427 held that it is legally possible of the status of adoptive parents to coexist with the Minister's status as guardian.

169. Immigration (Guardianship of Children) Amendment Act 1994 (Cth) s 3(b), 4AAA and 5. New South Wales is intending to become a declared State in the near future.

170. Australian Citizenship Act 1948 (Cth) s 10A.

171. Adoption of Children Act 1965 (NSW) s 46(5). This will change under the Hague Convention.

172. Adoption of Children Act 1965 (NSW) s 47.

173. Adoption of Children Act 1965 (NSW) s 46. See Re M and the Adoption of Children Act (1989) 13 FamLR 333 and Lowe v Minister for Immigration, Local Government and Ethnic Affairs (1988) 12 FLR 513 for a discussion of s 46 and 47.

174. Department of Immigration and Ethnic Affairs Submission to IP9 (6 September 1993) at 2.

175. Joint Committee on Intercountry Adoption Report to the Council of Social Welfare Ministers and the Minister for Immigration and Ethnic Affairs (September 1986).

176. Council of Social Welfare Ministers, National Minimum Principles in Adoption, June 1993.

177. Council of Social Welfare Ministers, Draft National Minimum Principles in Adoption, July 1995.