INTRODUCTION
8.1 The Commission’s terms of reference require it to consider the relevance of ethnic and racial heritage for the purposes of adoption. This term of reference reflects a growing awareness of the significance of ethnic and racial heritage and children’s rights to protection of them. Such awareness is evidenced in the international community by two United Nations instruments.
8.2 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 Internationally1 states in Article 24:
All due weight shall be given to both the law of the State of which the child is the national and the law of the respective adoptive parents. In this connection due regard shall be given to the child’s cultural and religious background and interests.
8.3 The United Nations Convention on the Rights of the Child (“UNCROC”)2 provides in Article 20 that when considering solutions for care of children without family, including the option of adoption:
due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background.
8.4 In IP 9 and DP 34 the Commission used the terms “ethnic” and “racial” to initiate a discussion as to the importance of continuity of heritage in adoption placements. In research done since the release of DP 34, it has become increasingly obvious that “ethnic” and “racial” are difficult terms to use in a way that would be meaningful in the context of adoption. A better approach, and one the Commission has used in this report, is to focus on “cultural heritage”. The reasons for this approach are set out under the heading “Definitions” (paragraphs 8.8-8.22).
8.5 This chapter examines the desirability of continuity in a child’s upbringing and background, specifically in relation to “cultural heritage”, and the weight to be given to “ethnic, religious, cultural and linguistic” continuity in adoption placements. Any such examination must start from the premise that the child’s best interests should be treated as the paramount consideration in adoption arrangements. The question to answer, therefore, is whether it is generally in children’s best interests to preserve their cultural heritage and to give children cultural continuity in any adoption placement. Endeavouring to answer this question necessarily involves an appraisal of the value of cultural heritage.
8.6 If it is found to be in children’s best interests to preserve their cultural heritage, the next step is to determine how best to implement this principle in adoption placements and to reconcile it with a child’s right to permanent care.
8.7 It should be borne in mind that the issue of continuity in cultural heritage is relevant to all children: every child has a cultural heritage; it is not a notion confined to an “ethnic minority” or a “racial minority”.
DEFINITIONS
8.8 Whilst the Commission’s terms of reference specifically refer to “ethnic and racial heritage”, a better approach is to focus on “cultural heritage” for the reasons that follow. At first glance it may seem pedantic and unnecessary to trouble so much over semantics, but it will become apparent that there are substantive and significant reasons for doing so.
Racial heritage
8.9 “Race” has been defined as:
It is clear from the above, and definitions in other publications5, that race assumes a common ancestry or genetic line and that this is then manifested in physical characteristics.
8.10 It would be possible to treat racial heritage as an area of distinct focus in adoption but there are arguments against doing so.
8.11 Focusing on physical characteristics distracts from what is a more important focus, namely factors that contribute to a person’s psyche and sense of self. Certainly, the colour of a person’s skin, for example, contributes to a sense of self, but many more contributing factors will be contained in a person’s cultural background. In any event, to what extent the sense of self comes from the physical trait itself as opposed to the culture surrounding shared physical traits is a matter for argument. For example, if a person belongs to a black community, his or her concept of self arguably comes from that “belonging” and identification with black culture as much as from actual skin colour.6 An analysis of race in isolation may mean that other important elements of a child’s life are overlooked.
8.12 On the other hand, in the majority of cases, race and culture will be so inextricably linked that by focusing on cultural heritage a complete picture is formed: a person’s race will not be able to be ignored and, as well, all other aspects of a person’s cultural identity are included. Cultural heritage subsumes racial heritage.
8.13 And what of the cases where racial and cultural heritages have diverged? Is there something then to be gained by examining the two heritages separately? One can imagine, for example, a child of Greek ancestry born in Australia into a family which has become so completely Australianised that they have preserved nothing of the Greek culture in their lives. The child would identify with and derive his or her psyche from Australian culture. Cultural heritage rather than racial heritage is the significant contributing factor to that child’s identity. At the same time, knowledge of his or her ancestry completes the child’s sense of self and cannot be ignored. It is recommended, therefore, that “cultural heritage” be defined for the purposes of adoption legislation to include race as one of several factors to consider in understanding identity.
8.14 The above is an example of the situation where geographical dislocation has resulted in a certain ancestry being no longer of primary significance to a person’s identity. This could also result from the coming together of different races to form one culture or the fragmenting of a race into different cultures. In these instances racial heritage alone does not give a full picture of aspects of a child’s life that should be given due regard when considering adoption.
8.15 There is some overlap in the definitions of “racial” and “ethnic” and a blurring of the distinctions between the two. The definition of race set out above refers to “ethnic stock”. “Ethnic” itself has been defined in terms of pertaining “loosely also to a race”.7 In fact, the etymology of ethnic pertains to race. The use of the term “cultural heritage” rather than “racial heritage” or “ethnic heritage” eliminates potential confusion.
8.16 A focus on racial heritage may be misunderstood as a form of racism. A risk of this occurring became apparent from a number of submissions made in response to DP 34.
8.17 Children of “mixed race” present particular problems if the focus is on racial heritage alone. Rather than trying to classify the child racially, if one looks to the cultural background of the child’s family, and his or her cultural heritage, proper weight will be given to the formative influences on the child’s identity.
8.18 In England it has been argued, in relation to dark-skinned children of mixed ancestry, that the concept of mixed race causes confusion because:
it can lead [transracial adopters] to believe that such children are racially distinct from other blacks. Consequently, they may neglect the child’s need to develop a balanced racial identity and thereby a well-integrated personality ... Certainly, [these] mixed-race children are regarded as black by society and eventually the majority of such children will identify with blacks, except in instances where reality and self-image have not merged.8
If the child’s cultural background is looked at, that is whether or not the child has been born into, for example, a black culture, such confusion and even misunderstanding can be avoided.
Ethnic Heritage
8.19 “Ethnic” has been defined as:
1. of a racial group.9
1. pertaining to or peculiar to a population, esp. to a speech group, loosely also to a race. 2. referring to the origin, classification, characteristics, etc, of such groups.10
concerning nations or races: pertaining to gentiles or the heathen; pertaining to the customs, dress, food, etc of a particular racial group or cult; belonging or pertaining to a particular racial group.11
2a. relating to community of physical and mental traits possessed by the members of a group as a product of their common heredity and cultural tradition; b. having or originating from racial, linguistic and cultural ties with a specific group.12
8.20 The term “cultural heritage” is to be preferred to “ethnic heritage” for the following reasons:
- From the above definitions, the overlap between the concepts of “ethnic” and “racial” is again apparent. The distinctions between the two can be very fine. There is also an overlap between the definitions of “ethnic” and “cultural”. These convergences of meaning can be confusing. Added to this, the term “ethnic” standing alone is somewhat imprecise and variously defined.
- In Australia, “ethnic” has taken on a particular flavour which has tended to narrow its meaning. It is often used in relation to migrants whose native language is not English, and, even more particularly, it often refers to European migrants. The use of descriptions “ethnic music” or “ethnic food” conveys a particular understanding in Australia. Colloquially, “ethnic” can even refer (and sometimes derogatorily) to “those who seek an older and more simple lifestyle, usu[ally] involving the practice of handicrafts and supposed folk ways”13 or to something “odd [or] quaint”14 or “foreign (or) exotic”.15 It has even been defined as “originating in an exotic primitive culture”.16
- Focusing on “ethnic heritage” rather than “cultural heritage” also tends to obscure the reality that all groups in Australia, whether they be Anglo-Saxon, Aboriginal, Vietnamese, Italian, or whatever other group, have a cultural heritage.
- The concept of “cultural heritage” can not only embody the concept of “ethnic heritage” but also offer a subtle and desirable shift in focus towards the sociological factors uniting a community with less emphasis on physical, racial characteristics.
Cultural heritage
8.21 “Culture” has been defined as:
2. the customs and civilisation of a particular people or group.17
7 sociol. the sum total of ways of living built up by a group of human beings, which is transmitted from one generation to another.18
5b: the body of customary beliefs, social forms, and material traits constituting a distinct complex of tradition of a racial, religious, or social group.19
8.22 The use of the word “culture” in this context is not to be confused, as some submissions have done, with “culture” in the sense of higher civilization.
RECOMMENDATION 66
“Cultural heritage” should be defined, for the purposes of the legislation, to include:
“beliefs, morals, laws, customs, religion, superstitions, art, language, diet, dress and race”.
In so recommending, the Commission stresses that it is not promoting a definitive concept of “cultural heritage” but one that is appropriate in the specific context of adoption.
VALUE OF CULTURAL HERITAGE
8.23 In summary, there is a growing awareness that having regard to a child’s racial, ethnic, religious, cultural and linguistic background is important when considering the care of a child. In the use of the term “cultural heritage”, the Commission has sought to develop a definition which encompasses all these aspects while avoiding over-emphasis on any one aspect, and which eliminates potential confusion. As to whether it is in the child’s best interests to provide for continuity of his or her cultural heritage in adoption placements involves an appraisal of the value of cultural heritage.
Research
8.24 To a large extent, an assessment of the value of cultural heritage will come from an evaluation of the advantages of cultural continuity, or, approaching from the other side, an evaluation of the effects of disruption to cultural continuity. One needs, therefore, to examine research into the outcomes of transcultural placements, both intracountry and intercountry.
8.25 Studies of the outcomes of transcultural placements must be approached with some caution as research methods (including reliance on tests and questionnaires) may be inadequate in addressing adoptees’ quests for answers to such nebulous questions as “who am I?” and “where do I fit in society?” Among many researchers there is now an increasing awareness that “people’s behaviour is less determined by objective facts than by their own perceptions and how they construe reality”.20 Both Harper and Ahlijah also refer to the likelihood of families who had a “good adoption” being more ready to respond to a questionnaire and therefore being over-represented.21
Australian research
8.26 The majority of transcultural placements in Australia have taken place as a result of intercountry adoptions since the mid-1970s. These children are mostly “in the early years of high school, and younger, and as yet the long-term effects and adjustments have not been monitored”.22 Whether it be for this or other reasons, there is a dearth of research material in Australia into the importance of cultural continuity to a child’s identity and self-esteem.
8.27 Successful cross-cultural adoptions. Studies by Harper,23 Calder24 and Harvey25 of families who have adopted cross-culturally found that the adoptions were successful at the time of writing. However, optimism should be tempered by having regard to the following:
- initial difficulties were experienced in the adoptions, lasting up to two years;
- the “parents’ attitude to the child’s racial past and their commitment to keeping alive the cultural heritage through a continuing process of acculturation”26 are significant factors in regard to the child’s adjustment;27 and
- the adoption of children aged three years or older had a much lower success rate (62% as compared with 95% for children under three years of age).
8.28 Identity formation. Harvey states that “[i]dentity formation is crucial to future well-being”.28 While supporting adoption of a child of another race and culture by suitable adoptive applicants, he is cautious about the effects of transracial adoption in relation to issues of identity formation. He says:
it will be for future research to determine final outcomes in terms of satisfactory identity formation of these transracially adopted children. Recent research has suggested that transracial and transculturally adopted children may be inherently developmentally and psychiatrically vulnerable (Kim 1980).29
8.29 Chema, Farley, Oakley and O’Brien30 argue for the importance of cultural continuity on the basis that “[a] child cannot ‘exist’ unless he has a past, and he cannot have an identity unless it is continuous.”31
Overseas research
8.30 In applying overseas research to Australia one must bear in mind the differing conditions which exist in the USA and Europe as compared with Australia. Triseliotis makes the point that “there are many dangers in extrapolating and transferring research findings from one country to another, especially on social identity formation. This is because the process of social identity formation is largely, though not exclusively, rooted in social and environmental processes which differ from country to country”.32 A certain amount of wisdom on whether or not it is in the child’s best interests to maintain cultural continuity can nonetheless be extracted from the research.
8.31 Successful cross-cultural adoptions. Studies by Ahlijah,33 McRoy, Zurcher, Lauderdale and Anderson34 and Gill and Jackson35 of families who have adopted cross-culturally, and an analysis of a body of research by Triseliotis,36 concluded that the adoptions studied were successful. Once again, however, certain qualifying factors need to be noted:
- Ahlijah’s study was based on the responses of adoptive parents who made their own assessments of their adoptions;
- Triseliotis found that the children initially displayed developmental, linguistic and behavioural difficulties; he found that more persistent problems were associated with older age on arrival: “[t]he older the children on arrival the more consistent and persistent were the problems”;37 and
- Gill and Jackson’s conclusion of “success” has been criticised on the basis that the children’s coping methods were based on denying their racial background: “[i]f a healthy personality is to be formed the psychic image of the child must merge with the reality of what the child actually is”.38
8.32 Identity formation. Triseliotis notes that the studies he analysed
suggested certain concerns about the children’s racial and ethnic identification, especially as they moved towards adolescence and away from the protectiveness of their families. These studies found that the children lacked ethnic identity and many black children perceived themselves to be ‘white’ in all but skin colour.39
Similarly, McRoy, Zurcher, Lauderdale and Anderson found that the development of a positive sense of racial identity was more difficult in transracial than in intraracial adoptions.
8.33 More recently, McRoy, in research undertaken on his own, has observed that:
[i]dentity development is a complex task for all young adults, but it is especially complex for youth who look differently from their other family members and peers ... Children as young as three become aware of racial differences and soon are able to understand the significance society places on those differences40 ... [A]doption agencies should consider cultural compatibility between families and children in making adoption decisions. [W]hen inter-country placements seem to be in the best interests of the child, consideration should be given to finding a family in a country which is culturally more like the child’s birth country. The child should not be forced to find ways to adapt - to have to minimise cultural, racial and physical differences.41
8.34 Tizard reviews a large body of research of transracial (principally intercountry) adoptions and, in relation to issues of identity, summarises that:
the young people do face a major task in establishing for themselves a satisfactory ethno-cultural identity, which links together their upbringing, their physical appearance, and their heritage from their country of origin.42
8.35 Thoburn and Charles likewise review a large body of research of transracial, (principally intercountry) adoptions and summarise the studies as follows:
The majority of children (around 80 per cent) will do “well-enough” although issues of racial, cultural and personal identity are likely to be problematic for a substantial minority, and their educational performance is likely to be below that of other (mainly middle class) adoptees and non-adopted children. Being older at placement, having a history of trauma or physical ill health increase the risk of emotional problems ... [P]roblems are most likely to show themselves in adolescence, and are likely in a minority of cases to be severe and extremely difficult for families and professionals to handle. An unknown proportion of these 80 per cent or so who are generally satisfied by the adoption experience will nevertheless have problems around the issue of identity which may last throughout their lives.43
8.36 Reich states that:
[m]ost adopted children and adults struggle to make sense of the gaps at the core of their identity. [Culturally] [t]ransplanted children are at an even greater disadvantage - they will need as much information as possible to anchor them to reality. Current knowledge confirms that adopted children generally feel more at ease if they resemble their parents physically, intellectually and temperamentally. The greater the disparity between a child’s background and upbringing, the more risk there is of producing a sense of dislocation in adolescence and adulthood.44
8.37 Melina45 makes the point that children being raised within their culture will develop a positive sense of cultural identity naturally. But children who are ‘different’, and know they are different, need to know that their difference does not make them inferior.46
8.38 Culture shock. Culture shock occurs when an individual loses the familiar signs and symbols of social intercourse by which they have oriented themselves: the words; gestures; expressions; customs; and social norms. Research has postulated that this is what is suffered by cross-cultural adoptees.47 Not only does a cross-cultural adoptee, including those previously in institutional care, suffer losses of specific relationships or significant objects, they also suffer the loss of a host of important variables ranging from food to weather patterns. The loss may be followed by grief and mourning.48
8.39 Harper summarises a large body of research49 and concludes that there is “a massive socio-cultural adjustment for the child” and that the child may suffer “another separation, another loss, being moved from a familiar place, language and culture to an unfamiliar strange one”.50
8.40 Transience of adjustment problems. Kim51 and Ressler, Boothby and Steinbock52 have emphasised the transience of adjustment problems and highlighted the resiliency and capacity of the children to adapt to the behavioural, linguistic and cultural demands of their new home and community.
Pronouncements and practice
8.41 It has been concluded in many spheres that cultural heritage has value and that cultural continuity should be preserved in a child’s life. Evidence of this is contained in the statements of the United Nations and of various bodies charged with either examining adoption practice or adoption administration, in legislation and in practices followed by local and overseas adoption agencies and by some cultures. Examples of these are set out below.
8.42 United Nations view. One interpretation of Article 20 of UNCROC is that ideally children should be placed with adoptive parents of the same racial, ethnic, cultural and/or linguistic background as the child’s birth family. This seems to be a valid interpretation. The Preamble to UNCROC notes that the State Parties to UNCROC have agreed to the Articles therein “taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child”. In other words, it reaffirms the importance of respect for the cultural values of the child’s community.
8.43 Practices of adoption agencies. DOCS demonstrates an assumption of the value of cultural heritage and the desirability of cultural continuity in its approach to adoption placements. It currently aims to provide cultural continuity by trying to maintain a pool of adoptive parents with similar ethnic, cultural, religious and racial heritage to the children who are being relinquished for adoption.
8.44 As far as transracial placements are concerned, the British Agency for Adoption and Fostering (“BAAF”), holds the view “that the placement of choice for a black child is always a black family.” The rationale for this policy is that:
[b]lack families can offer [black] children an added dimension, over and above a loving environment, covering such things as continuity of experience, contact with the relevant community, understanding of and pride in the child’s particular inheritance, and skills and support in dealing with racism.53
Hammond, Director of BAAF, also makes the point that:
[w]hile it is undoubtedly true that love knows no racial boundaries - capable adoptive and foster parents, irrespective of their ethnicity, provide loving and caring environments for children in their care ... our concern is for the wider needs of black children, which often only become significant as they grow older and start to separate from their families.54
8.45 Adoption reviews: statements and recommendations. The Adoption Legislative Review Committee of Western Australia recommended that, in placing children from overseas for adoption, first preference should be given to placing the child with a family “who share a similar ethnic and/or cultural background to the child”.55
8.46 In 1992 the Intercountry Adoption Standing Sub-Committee presented to the Standing Committee of Social Welfare Administrators a paper setting out adoption principles. Principle 12 states “the child should preferably be placed in a culturally/ethnically appropriate placement”. On the recommendation of the Standing Committee, the Council of Social Welfare Ministers endorsed this principle.56 The 1995 Draft National Minimum Principles in Adoption states that “[a]doption arrangements should recognise Aboriginal customary law and ethnic and racial heritage”.
8.47 The Australian Catholic Social Welfare Commission has urged the Government to adopt a policy that every child placed for adoption shall be placed with adoptive parents of the same ethnic and cultural background as the child.57
8.48 The United Kingdom Adoption Law Review (“the Review”) states that:
there is a wide acceptance that racial and cultural origins are important factors which cannot be ignored in the placement and upbringing of children. 58
It notes that the Children Act 1989 (UK)59 requires local authorities, when making decisions relating to children, to have regard to the child’s religious persuasion, racial origin and cultural and linguistic background.
8.49 The Review refers to key studies in the Netherlands, Denmark, Norway, Sweden and West Germany and analyses results on intercountry adoptions (see paragraph 8.35). It suggests that, as far too little is known about risk factors to give a clear profile of the successful adopter or adoptee, every placement should be handled with great care in order to minimise risks. The Review concludes that:
[i]n the great majority of cases, placement with a family of similar racial origin and religion is most likely to meet a child’s needs as fully as possible.60
8.50 The International Social Service (an independent, non-government social work agency based in Geneva) published a statement in its 1986 report Intercountry Adoption that the ideal option is for a child to remain with his or her family of birth. The second preference is for the child to stay in the country of birth.
8.51 In 1972, the National Association of Black Social Workers in the United States protested against transracial adoptions indicating that:
Black children belong, physically, psychologically and culturally in Black families in order that they receive the total sense of themselves and develop a sound projection of their future.61
8.52 Practice in other countries and cultures. In the Islamic culture adoption has been abolished, although fostering is encouraged as a way of providing care for children. However, even with foster care, first priority is given to placing the child with a Muslim family. Placing a child with a non-Muslim family, albeit sensitive to the Muslim culture, is seen as a last resort. Muslim society feels that placing a Muslim child with a non-Muslim family is less than ideal because of the different morality, ethics, dress code and dietary requirements of the Islamic culture. Further, Islamic religious education is extremely important and is given through day-to-day guidance; it is an inseparable part of normal living in Muslim society. Muslims feel that if a child is placed outside the culture the child will become confused and feel a sense of shame at expressing his or her identity.62
8.53 Some countries, for example Poland, Hong Kong, India, Fiji and the Philippines, give priority to applicants of the same cultural origin as the child to be adopted in their intercountry adoption programs.
8.54 Legislation. In the United States the Indian Child Welfare Act 1978 encourages the placement of American Indian children in American Indian Families.
Arguments raised against a need for cultural continuity
8.55 It has been argued that a child adopted from a Third World country loses nothing by way of cultural heritage; that the child in poverty stricken circumstances has no access to culture; that there is no culture in institutional life.
8.56 It is possible that in this argument there is a degree of mistaking “culture” in the sense of “higher civilization” with “culture” in the sense of roots and fundamental identity. In any event, it does not allow for any connection between identifying with a certain cultural (including racial) background, a sense of “belonging” or of not feeling “different”, self-concept, security and self-esteem. Even children in institutions are surrounded by the familiar manifestations of a shared culture, by which they have oriented themselves. In saying this, it is not intended to place a value on same-culture institutional life above that of different-culture home life; the issue being addressed here is strictly to assess the value to children of their cultural heritage and the value of maintaining the continuity of that heritage.
8.57 It has also been argued that it is not relevant to look at the value of cultural heritage in relation to babies because a baby has no cultural heritage: cultural heritage is viewed as something learnt from the total environment after birth.
8.58 Obviously babies do not have great awareness of their culture but they have some awareness which, in the short term, can result in their experiencing adjustment trauma, the extent of which will depend, inter alia, on how dramatic is the change in environment:
Even though a baby is not talking or responding to verbal instructions, she is hearing new words and new sound patterns. She may have moved from a humid, tropical climate to a cool, dry one. Because of differences in foods, the adoptive parents may have different body and breath odours than the child’s previous caretakers. And the foods the baby is given may taste remarkably different from the ones she is used to.63
8.59 In Korea, for example, a baby often sleeps on a mattress on the floor with other members of the household. Being placed in a cot in a room alone to sleep would be an adjustment for that child. Different cultures may have widely varying methods of child care than those to which a baby has been accustomed.
8.60 But more importantly, the loss of cultural heritage as a baby may become significant in the later quest for identity and a sense of self:
[T]he foreign-born child adopted as an infant may go through [stages of grief for loss of her country and culture] when she is old enough to understand that her racial or ethnic background sets her apart from others. 64
Not only may that child grieve for something lost but may feel a sense of incompleteness in his or her identity having lost his or her natural cultural environment.
8.61 An extension of the argument that no-one is born with a culture, is the argument that:
[c]ulture is essentially a personal interpretation of the interaction of one’s own personality with past events and experiences ... it is not something that exists per se but something that develops within the course of events throughout a particular person’s life.65
8.62 This view of “culture” does not align with the Commission’s definition of culture. It is placing a great emphasis on the personal as opposed to a heritage common to a community. In the latter sense, a person is born into a culture and with a cultural heritage and has a sense of belonging by reason of this shared heritage. It is even arguable that persons with a shared cultural heritage also share genetic and tangible personality traits. The Romanians, for example, evidence this belief by their expressed desire that if there is no alternative but for children to be adopted abroad, that they be placed with French and Italian families with whom they will be more culturally compatible. “Romania is predominantly a Latin culture, and this affects language, religion, physical appearance and temperament.”66
8.63 The concern has been raised that the only alternative to finding a child a home in another culture or another country is leaving them to die or, at best, leaving them to live out childhoods in institutions and then to be turned out on the streets.
8.64 Obviously this is not an argument against the value of cultural heritage per se, but an argument of priorities. While this issue is dealt with more fully in Chapter 10, “Intercountry Adoption”, one point can be made here. If it is truly the only alternative, then the child’s right to permanent care must take priority over any value attributed to continuity of cultural heritage. However, in the Commission’s recommendations it will be seen that the possibility of finding an intracultural placement would be explored first before placing the child transculturally.
8.65 In submissions to the Commission and in the media it has been contended:
that any arguments the end result of which are the denying of an overseas born child a better life are racist in themselves ...67
This contention seems to misconstrue motivations for challenging the wisdom of transcultural placements. A reading of the various studies and writings which express concerns about transcultural placements display no evidence of an underlying racism or racial antagonism. On the contrary, they are wholly concerned with the outcome for children who must make major cultural adjustments. The motivation is not to exclude children of one race from entering the family of another (usually white) race but to give the highest priority to the best interests of the child. Furthermore, in questioning the wisdom of transcultural placements, it is being acknowledged that the child’s own cultural background has significant value.
8.66 An extension of the racism contention, raised in some submissions, was that any argument against transcultural placements was against the Australian spirit of multiculturalism, and conversely, that transcultural placements would foster multiculturalism. The simple answer to this is that the best interests of the child must be the paramount consideration. Any other consideration is ancillary.
8.67 In any event, multiculturalism is about the coexistence of communities; it is not about assimilation of other cultures into the Australian culture. The adoptee needs to adjust to his or her new culture in order to make a successful transition. Thus, although the adoptive family will endeavour to preserve his or her cultural heritage, to a large extent he or she is assimilated into the Australian culture. Also, the number of transcultural placements are simply not high enough practicably to foster multiculturalism. The reality is that the child and his or her family will be living as a minority with the attendant difficulties of that position. Intercountry adoption isolates a child from his or her own culture and requires him or her to adjust to, and live as a minority in, a foreign culture. Is it an offence against the spirit of multiculturalism to query whether this is in the child’s best interests? In this context, it is also important to guard against assuming an (essentially racist) attitude that life in Australia is intrinsically better than life in a Third World country (excluding life in an institution).
8.68 In some cultures, such as in Thailand, adoption is not an acceptable concept at all and in other cultures adoption of disabled children is not acceptable. Therefore, in these circumstances often the only alternative for a child in need of care is a transcultural placement. The Commission does not recommend the prohibition of transcultural adoption. The Commission does recommend, however, that the possibility of an intracultural placement be explored first, and failing that, that placement within a culturally compatible family be considered. The third priority would be to place the child with a family able to foster links with the child’s heritage and assist the child to develop a positive identity.
Arguments in favour of cultural continuity
8.69 Placing children in need of care within their own culture minimises the possibility of their being subjected to racism. Racism is, regrettably, still a feature of human relations:68
[E]ven in tolerant, open Australia, acts of discrimination, harassment, incitement and violence against foreigners, Aborigines, Asians, Arabs, Jews, Muslims - against any number of ethnic groups - are, if not exactly common, hardly exceptional either. And there is some evidence to indicate they are increasing.69
Most transracially adopted children encounter prejudice in the form of teasing, comments, or insults. A few experience more violent racism or nationalism. And the teasing and insults can come both from white children who view minorities as inferior, and from members of the child’s own ethnic group, who view the child living with a white family as disloyal to his race or ethnic group.70
8.70 It seems that the images we develop about ourselves are considerably influenced by the way others see us. In effect, our self-concept is partly based on the perception of others which in turn affects where we think we fit in society.71 A sense of spoiled identity can develop from the receipt of consistently negative messages, such as those embodied in racist remarks and conduct.72
8.71 Transracially adopted children are often knowledgeable about their cultural origins and proud of them but unprepared for what it feels like to be a member of a minority group. Parents may make a great effort to acquaint their children with their cultural backgrounds but are often unaware that this is not enough to prepare the children for racial discrimination and prejudice. Parents who are not members of a minority group themselves may not understand the implications or importance of race to those who are.73
8.72 Furthermore, as the child:
moves away from parental protectiveness towards adulthood, then community attitudes assume much greater importance, and if hostile and rejecting can prove devastating to the self.74
Dalen and Saetersdal noted that:
the shield their adoptive family provides during their childhood is torn apart when they come into their teens and must face many situations on their own ... Their identity is constantly questioned.75
8.73 Small makes the point that, in a society which is hostile and oppressively racist to black people:
the black family has to develop coping mechanisms which allow the group to maintain dignity and self-respect and which help the family to survive in a psychologically healthy way. These survival mechanisms of the black family have to be extended to the black community generally in its economic life, education and social relations. These experiences are outside those of white society. Consequently most white families are ill-equipped to provide the environment to prepare the black child for the tremendous task ahead.76
8.74 The moves in favour of open adoption provide a justification for ensuring continuity of cultural heritage. Under the Adoption Information Act 1990 (NSW), adopted children have the opportunity of making contact, and forming relationships with, their birth families once they have turned 18 years of age. A child placed intraculturally, or even in a closely related culture, will possibly find it easier to relate to his or her family of origin in later life than a child who has been brought up in a different culture. Aboriginal people placed with non-Aboriginal families as children have commented on the difficulty and stress they experienced relating to their birth families.77
8.75 A woman whose birth father is Malay Chinese and who was adopted by Latvian/Australian parents has written of the difficulties for her of having an appreciation of her cultural heritage with her birth father as it is a culture about which she knows nothing.78 Further, it is likely that in open adoption the adoptive parents and birth parents will have contact with each other during the adoptee’s childhood. Similarity in the cultural backgrounds of each will facilitate an understanding of, and empathy for, each family for the child’s benefit.
8.76 Transcultural placements which involve a change of language may give rise to problems, not only for older children who are already speaking in their own language but for babies who are absorbing language in readiness to vocalise that learning. Parents who adopt children from a culture which does not share their language are hindered in helping their child through the adjustment period by the language barrier:
The tremendous desolation and loneliness the older child must experience before he or she gradually begins to understand this new language means another extra strain in an already difficult situation.79
8.77 Dalen and Saetersdal found that although the children in their study had picked up their new language rapidly, it was not recognised that the children lacked a deeper semantic understanding which later caused difficulties at school.80 Moreover, it has been postulated that:
with the loss of their mother-tongue there [may be] ... loss of ... memories because there is no-one who can validate what has happened to them.81
8.78 Some children adopted transculturally may feel like members of their immediate families but not of their extended families. Because they do not share any historical, genetic or cultural heritage and have never lived with the extended family, they may not feel as if they are valid members of their “clans”. Identification with, and feeling of belonging to, the extended family may come more readily if cultural heritage at least is shared. This process gives the adopted child the opportunity of developing valuable relationships with grandparents, aunts, uncles or cousins.
8.79 If a breakdown in a transcultural placement occurs the situation can be worse for children in a different culture from their own:
Coming to another culture results in most cases in loss of the mothering tongue and all the uncommunicable memories associated with it together with loss of the original sense of self identity. If breakdown then occurs the child is again adrift, having lost his/her adoptive family and the experiences shared with them, as a result there is likely to be a reactivation of all the feelings attached to the earlier losses so the sense of worthlessness and isolation is compounded and the fragile sense of identity further eroded.82
8.80 In the context of a discussion concerning the “reactions of vulnerability and disillusionment to” loss of significant personal relationships, Harper comments:
How much worse it must be for a child, particularly one with minority racial characteristics, who has it seems attempted to adapt to another culture and failed.83
CONCLUSION
8.81 It does not seem possible to put a quantitative value on cultural heritage or continuity of cultural heritage. It is generally accepted that cultural heritage has value and this is enshrined in both legislation and international conventions. All submissions to the Commission in relation to cultural heritage, whilst diverging in arguing for or against transcultural placements, began with the premise that a child’s cultural heritage was something of value.
8.82 There is sufficient research to show that transcultural placements can be successful to preclude prohibition of such placements.
8.83 However, there is also a good deal of research which indicates that, no matter how well a child may ultimately adjust, he or she may well go through “culture shock”, difficult periods of adjustment and stages of grieving, anger and frustration. Some may never adjust. Some may adjust well throughout childhood only to begin to feel marginalised as they move into adolescence and adulthood and away from the protection of the family. There is also insufficient long-term research to predict confidently the outcomes of transcultural placements. In these circumstances it would seem to be in the child’s best interests not to place upon the child the burden of cultural adjustment, in addition to any general burdens of being an adoptee, if this can be avoided.
8.84 Further, transcultural placements carry with them the possibility of the child being subjected to racism, may make open adoption more difficult and a breakdown in the placement more traumatic.
8.85 Therefore, the child’s right to permanent care must be reconciled with the clear value of cultural continuity. This can best be achieved by putting into place a hierarchy of placement options.
IMPLEMENTING CULTURAL CONTINUITY IN ADOPTION PLACEMENTS: A CULTURAL HERITAGE PLACEMENT PRINCIPLE
8.86 It will be seen in Chapter 9 that there is already in place in relation to placements of Aboriginal children into foster care an Aboriginal Child Placement Principle84 which seeks to provide, where possible, for continuity in the child’s cultural heritage. The Commission recommends that, similarly, an order of priorities be applied to every placement to endeavour to preserve continuity in the cultural heritage of every child.85 For ease of reference this could be termed the Cultural Heritage Placement Principle.
RECOMMENDATION 68
A Cultural Heritage Placement Principle should be applied to every placement for adoption. The Cultural Heritage Placement Principle should take the following form:
When a child in need of permanent care is to be placed outside his or her birth family, then the order for priority of placement should be:
- with an applicant or applicants of the same cultural heritage as the child;
- with an applicant or applicants of a similar or compatible cultural heritage as the child;
- with an applicant or applicants of a different cultural heritage from the child, who has or have demonstrated:
- the capacity to assist the child to develop a healthy and positive cultural identity;
- a willingness to learn about and teach the child about his or her cultural heritage;
- a willingness to foster links with that heritage in the child’s upbringing; and
- the capacity to help the child should he or she encounter racism or discrimination in school or in the wider community.
8.87 It is recognised that problems with implementation of the above approach may arise because of a shortage at a particular time, in the adoption “pool”, of prospective adoptive parents with the same cultural background as a child in need of care.86 However, just because there are potential difficulties, it does not mean that there should not be put in place a hierarchy of options at all. Any placement dilemmas which arise should be accommodated within the general principle that a child’s cultural heritage is valuable and continuity of that heritage should be preserved where possible.
8.88 Should birth parents be able to request that their child not be placed in a family of the same cultural background as themselves? Birth parents should be entitled to express their wishes in this regard, although any such request should be a matter for consideration by the Court. Ultimately the child’s best interests must prevail. If it was thought to be in the child’s best interests, in the particular circumstances of the case being considered, that the child not be placed intraculturally, then the Court should have the discretion to make an order placing the child transculturally, in accordance with the second and third levels of the hierarchy of options.
FOOTNOTES
1. Adopted by the General Assembly of the United Nations in 1986.
2. Adopted by the General Assembly of the United Nations on 20 November 1989 and ratified by Australia on 22 August 1991.
3. The Everyday Oxford Dictionary (OUP, Oxford, 1981).
4. The Macquarie Dictionary (2nd ed, Macquarie Library, NSW, 1991).
5. The Oxford Dictionary of English Etymology (OUP, Oxford, 1966); Chambers English Dictionary (CUP, Cambridge, 1988); Webster’s Third New International Dictionary (Merriam-Webster, USA, 1986).
6. J Triseliotis “Inter-country Adoption: A Brief Overview of the Research Evidence” (1991) 15 Adoption and Fostering 46 at 48-49.
7. The Macquarie Dictionary.
8. J Small “Trans-racial Placements: Conflicts and Contradictions” in S Ahmed and J Cheetham (eds) Social Work with Black Children and their Families (Batsford, London, 1986).
9. The Everyday Oxford Dictionary.
10. The Macquarie Dictionary.
11. Chambers English Dictionary.
12. Webster’s Third New International Dictionary.
13. The Macquarie Dictionary.
14. The Macquarie Dictionary.
15. Chambers English Dictionary.
16. Webster’s Third New International Dictionary.
17. The Everyday Oxford Dictionary.
18. The Macquarie Dictionary.
19. Webster’s Third New International Dictionary.
20. J Gray and R Cox “Evaluating the Diploma in Social Work” Report to CCETSW (1991) quoted in Triseliotis “Inter-country Adoption: A Brief Overview of the Research Evidence” at 46.
21. F Ahlijah “Intercountry Adoptions: In Whose Interest?” dissertation submitted for the degree of MSc, Oxford University (1990); J Harper “Love is not Enough: Breakdown in Intercountry Adoption” paper presented at Inter-Country Adoption Workshop (NSW Committee on Adoption, Sydney, October 1985).
22. M Frith “For the Love of a Child” Canberra Times (26 November 1994) at C1.
23. J Harper “Intercountry Adoption of Older Children in Australia” (1986) 10 Adoption and Fostering 27: study of 27 Australian families who had adopted older (defined as four years and over) children from overseas. Harper qualifies her findings with the observation that the sample was too small and skewed to make generalisations about outcomes.
24. R Calder “Families for Children: A Study of the Adoption Experiences of Older Age Foreign Born Children and their Australian Families” in G P Mullins (ed) The Year of the Child: International Responsibilities, Proceedings of the Public Seminar at University of Adelaide, Publication 67, (Department of Continuing Education, University of Adelaide, May 1979) at 59. (Small qualitative study of six Australian families with older aged intercountry adoptions.)
25. I J Harvey “Australian Parents for Vietnamese Children: a Social-psychological Study of Inter-country Adoption in Australia” (Thesis, School of Behavioural Sciences, Macquarie University, October 1980); “Transracial Adoption in Australia” (1982) 6 Adoption and Fostering 43: follow up study of 102 Vietnamese children, placed in 93 families in New South Wales.
26. J Harper “Inter-country Adoption of Older Children in Australia” at 30.
27. Harvey notes this factor as a “willingness to teach the child his identification with racial heritage”: “Transracial Adoption in Australia” at 48.
28. Harvey “Transracial Adoption in Australia” at 48.
29. I J Harvey “Adoption of Vietnamese Children: An Australian Study” (1983) 18 Australian Journal of Social Issues 68, citing S P Kim “Behavior Symptoms in Three Transracially Adopted Asian Children: Diagnosis Dilemma” (1980) 59 Child Welfare 213 at 213-24.
30. R Chema, L Farley, F H Oakley and M O’Brien “Adoptive Placement of the Older Child” (1970) 49 Child Welfare 450.
31. Chema, Farley, Oakley and O’Brien at 451.
32. Triseliotis “Inter-country Adoption: A Brief Overview of the Research Evidence” at 46.
33. Ahlijah “Intercountry Adoptions: In Whose Interest?”
34. R G McRoy, L A Zurcher, M L Lauderdale and R N Anderson “Self-esteem and Racial Identity in Transracial and Inracial Adoptees” (1982) 27 Social Work 522.
35. O Gill and B Jackson “Transracial Adoption in Britain” (1982) 6 Adoption and Fostering 30.
36. R McRoy and L Zurcher Transracial and Inracial Adoptees (Charles C Thomas, Springfield, Illinois, 1983): McRoy and Zurcher found no relationship between measures of racial identification and self-esteem; but a follow up study found that children growing up in a racially dissonant context tended to experience an exaggerated feeling of differentness: McRoy and Zurcher “The Identity of Transracial Adoptees” (1984) 65 Social Casework 1. Triseliotis asks “[h]ow can a child experience an exaggerated feeling of ‘differentness’ without affecting his or her self-esteem?”: “Inter-country Adoption: A Brief Overview of the Research Evidence” at 49. C Bagley “Chinese Adoptees in Britain: A Twenty Year Follow-Up of Adjustment and Social Identity” (1991) (Unpublished paper): a study of 44 women which found few identity problems. M Dalen and B Saetersdal “Transracial Adoption in Norway” (1987) 11 Adoption and Fostering 41 and B Saetersdal “What became of the Vietnamese Baby-Lift Children?” paper delivered at the International Conference on Adoption (Melbourne, 1988): “whereas most of the adoptees adjusted well ‘both psychologically and socially during childhood’, as they reached adulthood they felt themselves driven into a more ‘marginal position’ as they faced more direct situations of discrimination.”
37. Triseliotis “Inter-country Adoption: A Brief Overview of the Research Evidence” at 48.
38. Small “Transracial Placements: Conflicts and Contradictions” at 88.
39. Triseliotis “Inter-country Adoption: A Brief Overview of the Research Evidence” at 48-49.
40. R G McRoy “Significance of Ethnic and Racial Identity in Inter-country Adoption within the United States” (1991) 15 Adoption and Fostering 53.
41. McRoy at 59. Similarly, Fopp has assessed a large body of research and concludes that if it is not possible for a child to stay with his or her birth family, “a child has a right to be considered for another family in his/her own country. [T]his possibility should be explored fully before a family in another culture is considered”: P Fopp “The Rights of the Child in Intercountry Adoption” paper given at the Australian Conference on Adoption in R Oxenbury (ed) Changing Families (Adelaide, May 1982) at 274. This Conference endorsed the principle that the care of children within their own cultural group is the first option. (Conference recommendations and statements from the final Plenary Session, 19 May 1992).
42. B Tizard “Intercountry Adoption: A Review of the Evidence” (1991) 32 Journal of Child Psychology and Psychiatry 743 at 755.
43. J Thoburn and M Charles A Review of Research which is Relevant to Intercountry Adoption Inter-Departmental Review of Adoption Law (Background Paper No 3) (Department of Health, Welsh Office and Scottish Office, London, January 1992) at 27.
44. D Reich “Children of the Nightmare” (1990) 14 Adoption and Fostering 9 at 13. Reich is a counsellor at the Post-Adoption Centre, London.
45. L R Melina Raising Adopted Children (Harper Perennial, New York, 1986).
46. Melina at 176.
47. M Ward “Culture Shock in the Adoption of Older Children” (1980) 48 The Social Worker 8; A Furnham and S Bochner Culture Shock: Psychological Reactions to Unfamiliar Environments (Methuen London and New York, 1986).
48. Furnham and Bochner at 163.
49. Harper “Intercountry Adoption of Older Children in Australia”. The overview of studies included: C Rathburn, L Virgilio and S Waldfogel “The Restitutive Process in Children Following Radical Separation from Family and Culture” (1958) 28 American Journal Orthopsychiatry 408; C Rathburn, H McLaughlin, C Bennett and J A Garland “Later Adjustment of Children Following Radical Separation From Family and Culture” (1965) 34 American Journal Orthopsychiatry 604: US study of 35 children from Europe and Asia whose age range was from 5 months to 10 years; four levels of adjustment were designated: disturbed (6%), problematic (30%), adequate (49%), superior (15%).
M Welter (1965) comparison of 36 foreign born adoptees with matched American adoptees aged 4 to 12 years; no significant differences found.
Kim (1977, 1978): US study of 406 Korean and black-Korean children divided into one group of 195 (adopted before one year old) and another group of 211 (adopted at six years or older). This study found that although all had made a good adjustment, the younger group had adapted better in every respect. However, the follow up study revealed both sexes reported to be extremely concerned with their physical appearance, complaining of perceived negative characteristics: they tended to reject their own racial background.
Kim, Hong and Kim (1979) study of Korean children: in the group of 12 adopted after the age of three years there were many learning and behavioural problems which they thought were related to the difficulties of English language acquisition and acculturation as well as the shock of transcultural transplantation.
Feigleman and Silverman (1983/84) study of 372 adopted white American, Afro-American, Korean and Colombian children between ages of 7 and 25 years, who had been in their adopted homes at least six years: this study found that the children’s problems and adjustments were similar to those of the white intracountry adoptions, with the exception of the Afro-American group; their poor adjustment was attributed to factors other than those associated with transracial adoption.
Cederblad (1982): Swedish study of 27 children from Korea, India and South America; this study found that during the first year, acute regression and disturbed behaviour was the norm but that these symptoms tended to settle during the second year; three children remained disturbed.
50. Harper “Inter-country Adoption of Older Children in Australia” at 28.
51. Kim “Behavior Symptoms in Three Transracially Adopted Asian Children: Diagnosis Dilemma”.
52. E M Ressler, N Boothby and D J Steinbock Unaccompanied Children: Care and Protection in Wars, Natural Disasters, and Refugee Movements (Oxford University Press, New York, 1988).
53. C Hammond “BAAF and the Placement Needs of Children from Minority Ethnic Groups” (1990) 14 Adoption and Fostering 52 at 53.
54. Hammond at 53.
55. Western Australia - Adoption Legislative Review Committee Final Report: A New Approach to Adoption (February 1991) at 134.
56. Council of Social Welfare Ministers National Minimum Principles in Adoption, June 1993 at para 1.12. See also Council of Social Welfare Ministers Draft National Minimum Principles in Adoption, July 1995 at para 1.6.
57. Australian Catholic Social Welfare Commission Intercountry Adoption (Discussion Paper, August 1991).
58. United Kingdom - Department of Health, Welsh Office and Scottish Office Intercountry Adoption (Discussion Paper No 4, January 1992) at 78.
59. Children Act 1989 (UK) s 22(5)(c).
60. United Kingdom - Department of Health, Welsh Office and Scottish Office Intercountry Adoption at 78.
61. National Association of Black Social Workers Position Paper (1972) cited in T Perry “Race and Child Placement: The Best Interests Test and the Cost of Discretion” (1991) 29 Journal of Family Law 51 at 112, note 209.
62. I Casa Naja “Adoption” paper presented at the seminar The Role and Contribution of the Muslim Family in a Multicultural Society (Islamic Council of NSW, Chullora, 19 December 1994).
63. Melina Raising Adopted Children at 19.
64. Melina at 178.
65. W Griffiths “Intercountry Adoption: Education Issues” in G P Mullins (ed) Intercountry Adoption, Proceedings of the Public Seminar at University of Adelaide 9-10 July 1977, Publication No 58 (Department of Continuing Education, University of Adelaide, 1977) at 46.
66 Reich “Children of the Nightmare” at 12.
67 G Brennan in Frith “For the Love of a Child” at C1.
68 C Picton “Australia and Intercountry Adoption: Community Attitudes and Research” in P Fopp (ed) Intercountry Adoption and Sponsorship, Proceedings of a Special Interest Seminar (International Council on Social Welfare Regional Conference, Sydney, 1979) at 29-34.
69 C Rubenstein “Anti-racist Law Plugs Gap in our Safeguards” The Australian (1 June 1994) at 11.
70 Melina Raising Adopted Children at 171; Inter-Country Adoptive Parents Working Party “Aussie Kids Adopted From Overseas” video produced by the Staff Development Centre Audio-Visual Services, Eastern Sydney Area Health Service, 1989: “[w]hile the children did not dwell on problems related to colour or facial features, they had all experienced them and developed strategies to deal with them, but it was obvious that the process had been painful and not easy to accommodate”.
71 E Goffman Stigma: Notes on the Management of Spoiled Identity (Prentice-Hall, London, 1963).
72 E Goffman and G Mead Mind, Self and Society from the Standpoint of a Social Behaviorist (University of Chicago Press, 1934).
73 McRoy and Zurcher suggested that children brought up in raciallly integrated communities are less likely to feel different or experience difficulties: Transracial and Inracial Adoptees (1983); Bagley found that the impact of racism was such that it cancelled out well-meaning efforts by adoptive parents: “Chinese Adoptees in Britain: A Twenty Year Follow-Up of Adjustment and Social Identity” (1991); D Ngabonziza asks “[i]f such prejudice or discrimination is widespread in relation to other racial or ethnic groupings it must be asked whether the child would not be better off in a poorer but more accepting environment in its own country”: “Inter-country Adoption: In Whose Best Interests?” (1988) 12 Adoption and Fostering 35 at 39.
74. Triseliotis “Inter-country Adoption: A Brief Overview of the Research Evidence” at 51.
75. Dalen and Saetersdal “Transracial Adoption in Norway” at 43.
76. Small “Transracial Placements: Conflicts and Contradictions” at 85-86.
77. C Edwards and P Read The Lost Children (Doubleday, Sydney, 1989) at 34.
78. E A Berzins Submission (27 July 1994) at 14.
79. A Loenan and R Hoksbergen “Inter-country Adoption: the Netherlands; Attachment Relations and Identity” (1986) 10 Adoption and Fostering at 22.
80. Dalen and Saetersdal “Transracial Adoption in Norway” at 42.
81. Inter-Country Adoptive Parents Working Party “Aussie Kids Adopted from Overseas”; Harper “Love is not Enough: Breakdown In Intercountry Adoption” at 5.
82. Harper “Love is not Enough” at 7.
83. Harper “Love is not Enough” at 7.
84. See Children (Care and Protection) Act 1987 (NSW) s 87.
85. The Adoption Regulation 1995 (NSW) cl 34 makes provision for the Director-General or principal officer of a private adoption agency to make all reasonable efforts to place the child, if practicable, in accordance with the birth parents’ or guardian’s expressed wishes as to the ethnicity of the adoptive parents. However, this is not a clause ensuring cultural continuity and it only relates to situations where the person giving consent has specifically requested that the child be placed with a person of an ethnic group nominated by the consent-giver.
86 It should also be noted that expressed wishes of the person giving consent need to be taken into account. For example, the person giving consent can express his or her wishes in respect of the religious upbringing of the child: Adoption of Children Act 1965 (NSW) s 21(1)(c)(i)(b); Adoption of Children Regulation 1995 (NSW) cl 33, Schedule 1, Form 1.
