Review of the Adoption Act 1984: Consultation Paper

2. History of adoption law in Victoria

Introduction

2.1 This chapter provides a brief history of adoption law in Victoria and the social context of its development. It describes the law as it was before the Adoption Act 1984 (Vic), briefly discusses relevant reviews and inquiries, and outlines changes to the Adoption Act since its enactment.

2.2 Many Australians have been touched by adoption, particularly during its height in the late 1960s and early 1970s, in the era of closed adoptions, when many experiences were painful. Adoption is no longer a common occurrence: in Australia in 2014–15 there were 56 local adoptions, of which 24 were in Victoria.^[1]

2.3 Adoption is a contentious subject, in Australia and internationally. There are those who strongly oppose adoption for any reason, and those who promote its increase. All argue their position is in the best interests of the child.

The long history of adoption

2.4 Adoption, or forms of child placement referred to as adoption, has a long history. Adoption agreements were sealed on tablets by the Mesopotamians more than 2000 years BCE.^[2]

2.5 Adoption was common in ancient Greece and ancient Rome, operating essentially to ensure succession in the male line.^[3] Adoption records in ancient Greece date from the 6th century BCE. Adoption established an heir to the adopter’s property. As only men could legally own property, only males could be legally adopted. Adoption was usually accompanied by a public declaration.^[4]

2.6 Roman adoption records date from the 5th century BCE. As in Greece, adoption was an important means of ensuring inheritance within the male family line, particularly as a will was ineffective if it did not nominate an heir.^[5]

2.7 There was a preference for adoption of close kin.^[6] Most surviving records of adoption,

in both Greece and Rome, involve adult adoptees.^[7]

2.8 Prior to the introduction of adoption legislation in most English-speaking countries in the early 1900s, adoptions were generally open, in that the adoptive family and the family of origin often knew each other before the adoption and sometimes stayed in contact afterwards. Adoption was an informal procedure; parents had no legal rights and a birth parent could at any time reclaim custody of a child they had neither seen nor contributed to the care of for years at a time. The earliest modern adoption laws were enacted in America in the latter half of the 19th century.^[8]

Australian adoption legislation

2.9 By the middle of the 19th century, growing numbers of orphaned or abandoned Australian children were living in institutions which emphasised discipline, religion and skills for employment.^[9] In time this institutional care came under criticism as a ‘barracks system’, which created ‘well drilled and noiseless machines’ who lacked the moral development provided in a family setting and on discharge were unequipped for life.^[10] The system of ‘boarding out’ provided family care: foster parents were paid an allowance to provide family care for the children, under supervision by the state.

2.10 Private adoptions had long been practised in Australia alongside state-sponsored child placement. These adoptions have been described as part of a ‘market’ in children which operated from the middle of the 19th century, when advertisements for children available for adoption appeared in metropolitan newspapers.^[11]

2.11 There were calls for regulated adoption to provide better outcomes for the child and reduce the financial burden on the state. Support for regulation of adoption also came from adoptive parents, concerned to prevent the birth parents of an informally adopted or boarded-out child from reclaiming the child. Preventing this risk by severing the legal bond between the child and birth parents was a consistent concern in public debate.

2.12 Western Australia was the first Australian jurisdiction to introduce adoption legislation,^[12] motivated in large part by fears that the gold rush then underway in that state would result in labour shortages, increasing the value of child labour and leading birth parents to reclaim their children from their long-term foster parents just when they were becoming useful. The Adoption of Children Act 1896 (WA) terminated all legal rights and relationship between the child and their birth parent and conferred all legal rights and responsibilities for the child on the adoptive parents. Other jurisdictions introduced adoption legislation over the next few decades.^[13]

Adoption legislation in Victoria

2.13 There were three pieces of adoption legislation in Victoria before the current Adoption Act.

The Adoption Act 1928

2.14 The Adoption Act 1928 (Vic) provided for the transfer of parental rights, duties, obligations and liabilities to adoptive parents. It also provided for the legitimisation of existing informal adoptions, without the consent of the birth parents. Before this time, informal adoptions were not recognised at law. The 1928 Act did not prohibit private adoptions or impose secrecy about parentage.

The Adoption of Children Act 1958

2.15 After a series of amending Acts^[14] the Adoption of Children Act 1958 (Vic) consolidated adoption legislation and modernised its drafting. It also extended the rules of succession, which in previous legislation was limited in relation to wider family inheritances, and introduced the requirement that the court appoint a person (a guardian ad litem) to safeguard the interests of the child in adoption proceedings before the court.^[15]

The Adoption of Children Act 1964

2.16 The Adoption of Children Act 1964 (Vic) came into effect on 1 January 1966. The 1964 Act was based on model legislation implemented around Australia. It increased confidentiality and secrecy measures and ushered in the era of closed adoptions.^[16] It banned privately arranged adoptions, and made it an offence to advertise a child for adoption or seek adoptive parents. It created private adoption agencies, which were charitable organisations approved by the minister to arrange adoptions. The model legislation and the 1964 Act are discussed further at [2.29].

The Adoption Act 1984

2.17 During the 1960s, evidence began to emerge of the damage caused by closed adoptions and the need of adopted people and birth parents to know about and have contact with each other.

2.18 In 1978 the Victorian Government commissioned a review of the 1964 Act. There was great public interest in the report, which took four years to prepare, received 880 submissions, ran to more than 300 pages and contained 247 recommendations.^[17]

There was widespread support for its proposals, most of which were taken up in the Adoption Act.^[18]

2.19 The Adoption Act made significant changes to practice and introduced open adoption. The legislation focused on the needs of adopted children, and enshrined a child’s right to access information about his or her family of origin. The Act also limited adoption orders in favour of step-parents. The reasons for limiting adoption by step-parents are discussed in Chapter 7.

Amendments to the Adoption Act 1984

2.20 The Adoption Act has been amended many times. While the essential framework of the Act has not changed, successive amendments have extended the open adoption scheme and incorporated new developments such as the Convention on Protection of Children and
Co-operation in Respect of Intercountry Adoption.^[19]

2.21 Over time, these amendments have made the Adoption Act complex and hard to navigate. In addition, the language of the Act is out of date and its structure is not in keeping with modern drafting. The Commission seeks the community’s views on terminology in the Adoption Act that may need updating in Chapter 9.

2.22 The key amendments to the Adoption Act are listed and their effects summarised below.

a) The Adoption (Amendment) Act 1987 (Vic) introduced a range of amendments that extended and modified rights to obtain information and enabled increased access to information held by government bodies.

b) Another amending Act (the Adoption (Amendment) Act 1989 (Vic)) expanded the categories of people who could apply for adoption information and clarified the prohibition against publicity regarding adoptions.

c) The Disability Services and Other Acts (Amendment) Act 1997 (Vic) was an omnibus Act which amended the Adoption Act (along with other legislation) to remove mandatory age restrictions and extend the right to adopt to de facto partnerships.

d) The Adoption (Amendment) Act 2000 (Vic) gave effect to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption^[20] and to certain bilateral arrangements for inter-country adoption. It also provided a method for the wishes of a child to be considered in an adoption proceeding.

e) The Adoption Amendment Act 2013 (Vic) removed the requirement to obtain an adult adopted person’s consent before giving identifying information about the person to their birth parent. The 2013 Amendment Act introduced ‘contact statements’, which allowed an adult adopted person to specify their wishes in relation to contact by a birth parent, created an offence for the birth parent to contact the adopted person in breach of their wishes, and imposed a penalty of 60 penalty units (up to $9100 at the time). Parents, particularly those who had had their children forcibly removed, regarded the contact statements as hurtful and discriminatory. After a public campaign, provisions relating to contact statements and the associated offence were removed by the Adoption Amendment Act 2015 (Vic). Adult adopted people can no longer make contact statements. However, the adopted person, parents and other parties are able to record their wishes regarding contact on the Adoption Information Register. As all contact is mediated by agencies, efforts are made to ensure an adopted person’s wishes are known and honoured.

f) A further amending Act was passed in 2015, to enable adoption of children by same-sex couples and people who do not identify with a specific sex or gender. The Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) amends the Adoption Act to remove references to gender in relation to eligibility to adopt, and replaces the terms ‘de facto relationship’ and ‘de facto spouse’ with new definitions of ‘domestic relationship’ and ‘domestic partner’.^[21] The latest commencement date for the 2015 Act is 1 September 2016.^[22]

2.23 The current operation of the Adoption Act is set out in Chapter 3.

Closed and open adoption

2.24 The Adoption Act 1984 introduced open adoption in Victoria. This section explains open adoption and briefly describes the context in which it developed.

2.25 In the early 20th century, adoption was considered primarily as an alternative to institutional care. After World War II, adoption became much more widely accepted and supported as a social policy, and the number of people wishing to adopt increased dramatically. Social attitudes in favour of adoption meant that by the 1950s there were more couples wishing to adopt a child than mothers wishing to relinquish their child.^[23]

2.26 Adoption secrecy was introduced gradually. The first Australian legislation contained

no provisions relating to closing adoption records.^[24] However, such laws were introduced in the 1920s by other Australian jurisdictions as they enacted adoption legislation. At that time, secrecy was primarily intended to protect adoptive parents.

2.27 However, after World War II, adoption came to be seen as a solution to the problems of pregnancy out of wedlock, illegitimacy and infertility. Secrecy came to be viewed as protecting all parties to the adoption.^[25]

2.28 National model adoption legislation put in place these protections.

National legislation and adoption secrecy

2.29 A push for greater regulation of adoption practice and nationally consistent legislation led to the enactment of ‘model’ legislation in 1965 as an ordinance of the Australian Capital Territory.^[26] By the end of the 1960s its principles had been implemented in adoption legislation in all Australian states and territories.^[27]

2.30 The model legislation introduced secrecy provisions to ensure members of the family of origin and the adoptive family would not discover each other’s identities, and that the records of the adoption would be kept confidential.

2.31 The Adoption of Children Act 1964 (Vic) imported the provisions of the model legislation, imposing secrecy at all stages of the process, including the taking of consent, the placement of the child, the application for an adoption order, the hearing of the application, record keeping and availability of records to the public. A new birth certificate was issued with the adoptive parents’ details, and the records of the adoption order and the original birth certificate were kept secret. The birth of a child was re-registered upon adoption. Any person who made a search of the register, or applied for a birth certificate, would receive information as it appeared on the re-registered record. The original birth certificate, with a notation to the effect that an adoption had taken place, was only made available by court approval. The Register of Adopted Children was unavailable for public inspection except with the approval of a court. Offences were established for breach of information privacy provisions.^[28]

The clean break

2.32 Adoption processes of the time reflected the ‘clean break theory’, prominent in child welfare in the mid-20th century.^[29] The theory held that it was in the best interests of both the mother and soon-to-be-adopted child to be separated as early and as completely as possible, with no further risk or possibility of contact.^[30] Speedy and confidential adoption facilitated early and uninterrupted bonding between an adoptive mother and the child, and allowed all parties to forget about the past and forge a life free from stigma. Hospital staff, adoption staff and family all maintained silence to help the birth mother make a new start in life. Adoption legislation supported this process by altering the child’s birth certificate and maintaining closed records.^[31]

Social change

2.33 In the late 1960s adoption rates in Australia were among the highest in the world. In 1971–72, 9798 children were adopted in Australia, including 4539 in NSW and 1768 in Victoria. However, social changes were underway which would ultimately lead to the introduction of open adoption and bring the adoption ‘boom’ to an end. These changes have been extensively documented and include:

• the ready availability of oral contraceptives from about 1971

• increasingly tolerant community attitudes towards ex-nuptial births and single parenthood

• the introduction of government benefits for single parents^[32]

• access to safe abortion.

2.34 The status of ‘illegitimacy’ was abolished in the early 1970s.^[33] With the introduction of child care^[34] and ‘no-fault’ divorce,^[35] a better quality of life became possible for unmarried mothers. The outcome was that fewer women chose adoption and the number of infants available for adoption radically reduced. Numbers began to fall, first gradually and then dramatically. By 1975–76 they had halved to 4990, and by 1995–96 there were 668 adoptions in Australia.^[36] In 2009–10 a total of 412 children were adopted nationally.

Of these, 190 children were adopted from Australia and 222 from overseas.^[37]

2.35 At the same time, there was a changing understanding of the consequences of adoption for children and birth parents. Evidence was mounting of the long-lasting damage the ‘clean break’ caused, especially together with social stigma and secrecy. In the 1970s, research began to demonstrate that maintaining secrecy about a child’s origins was in fact contrary to their best interests. Over the next decades, it was established that knowledge of their family of origin was important for adopted children in developing a strong sense of identity.

2.36 The United Nations Convention on the Rights of the Child has reinforced the understanding that children have a right to know who their birth parents are.^[38]

The development of open adoption

2.37 When open adoption was first proposed it created both hope and anxiety in the adoption community.

2.38 Supporters argued that open adoption would diminish adopted children’s sense of grief and rejection, support identity development and promote a secure attachment with their adoptive parents. Ongoing contact and information about their child would also help birth parents cope with their loss.^[39]

2.39 Opponents argued that ongoing contact and information would compromise and inhibit the parenting of adoptive parents and impair adopted children’s bonding and loyalty to their new family. Far from helping birth parents, it would hinder their acceptance of the finality of the adoption.^[40]

2.40 In 1984 the Australian Institute of Family Studies published a report on the impacts on women who had given up their children during the period of closed adoption, and the factors which affected their adjustment to relinquishment.^[41]

2.41 Overall, the report found the effects on the mother were negative, with an increasing sense of loss over periods of up to 30 years. These feelings were made worse by the absence of opportunities to talk about the relinquishment and lack of social supports

in dealing with it. The report supported increased openness in the adoption process,

as mothers expressed the clear view that their sense of loss and problems of adjustment would be eased by knowledge about what had happened to the child they gave up for adoption.^[42]

What is open adoption?

2.42 ‘Closed’ adoption is a practice in which no information is shared between adoptive and birth families, and birth parents and their children are denied the possibility of having

any contact after relinquishment.

2.43 Open adoption facilitates or allows information or contact to be shared between the adoptive and birth parents of an adopted child, before and/or after the placement of

the child, and perhaps continuing for the life of the child.^[43]

2.44 In practice, open adoption takes many different forms to suit the child’s needs and

the family context. It may involve:

• meetings between adoptive and birth parents around the time of placement

• periodic exchange of information through an agency

• direct contact between parties, which may or may not be ongoing.

2.45 The type of contact also varies, possibly involving face-to-face meetings, contact only via telephone calls, annual letters, reports and photos. If parties agree, identifying information may be exchanged and parties may have ongoing contact.^[44]

Open adoption in the Adoption Act 1984

2.46 The Adoption Act establishes open adoption. Openness is built into the adoption process. The Act allows birth parents to nominate a preferred frequency of contact which, with agreement from the adoptive parents, becomes a condition of the adoption order.^[45] While contact arrangements agreed to in an adoption order are legally enforceable, in practice they rely on the goodwill of the parties involved. If family of origin members do not keep their commitments, there is little that children or adoptive parents can do to enforce them. Likewise, adoptive parents can also ‘make it difficult or uncomfortable for families of origin to stay in contact, with the result that contact may cease or greatly diminish over time’.^[46]

2.47 In practice, a full spectrum of contact situations occurs.^[47]

Reports and reviews

2.48 This section briefly discusses reports, inquiries and reviews, recently completed or under way, relevant to adoption legislation and policy.

Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families

2.49 Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families^[48] (Bringing Them Home) provided an opportunity to discover the experiences of people removed from their families. The Inquiry was asked to ‘trace the past laws, practices and policies which resulted in the separation of Aboriginal and Torres Strait Islander children from their families by compulsion, duress or undue influence, and the effects of those laws, practices and policies’.^[49]

2.50 Bringing Them Home describes the adoption of Aboriginal children under the Adoption of Children Act 1928 (Vic) and the Adoption of Children Act 1964 (Vic). The Inquiry took evidence and testimonies from more than 1000 Indigenous people throughout Australia concerning their experiences of the removal policies. In a wide variety of situations the consent requirement could be waived, or given under duress. Some Indigenous parents found out that they had unknowingly agreed to relinquish children when they believed they were placing them in temporary care. Others simply could not locate children who had been fostered or adopted by the Aborigines Welfare Board.

2.51 The Inquiry found that:

[t]he impacts of the removal policies continue to resound through the generations of Indigenous families. The overwhelming evidence is that the impact does not stop with the children removed. It is inherited by their own children in complex and sometimes heightened ways.^[50]

2.52 On 17 September 1997, the Premier of Victoria Jeff Kennett issued an apology in the Legislative Assembly to the Aboriginal people for the past policies leading to the removal of Aboriginal children from their families and communities.

2.53 These practices still resonate today. The Adoption Act has particular provisions relating to adoption of Aboriginal and Torres Strait Islander children, which are discussed in Chapter 6.

Victorian Law Reform Commission Report on Assisted Reproductive Technology & Adoption

2.54 In 2002 this Commission was asked to review the Infertility Treatment Act 1995 (Vic) and the Adoption Act and consider whether eligibility for access to assisted reproduction and adoption should be expanded. The Commission reported in 2007 and made 130 recommendations,^[51] resulting in the enactment of the Assisted Reproductive Treatment Act 2008 (Vic).

2.55 A number of recommendations related to adoption. The Commission recommended that the Adoption Act be amended to allow same-sex couples to adopt. This recommendation was implemented in 2015, discussed below in the section ‘Adoption by Same Sex Couples Legislative Review’.

2.56 A recommendation to remove a restriction on the ability of single people to adopt was not implemented. The current reference requires the Commission to re-examine this issue, which is discussed in Chapter 7.

2.57 Other aspects of the Commission’s 2007 report are also discussed in this paper, in Chapters 7 and 8.

Commonwealth Contribution to Former Forced Adoption Policies and Practices

2.58 On 15 November 2010, the Senate referred to the Community Affairs References Committee an inquiry into former forced adoption policies and practices.^[52] The terms

of reference asked the Committee to consider:

a) the role, if any, of the Commonwealth Government, its policies and practices in contributing to forced adoptions

b) the potential role of the Commonwealth in developing a national framework to assist states and territories to address the consequences for the mothers, their families and children who were subject to forced adoption policies.^[53]

2.59 The Committee found that the Commonwealth’s role was indirect, but significant, in two areas of concern. It had been responsible for national model adoption laws in the 1960s, which imposed secrecy at all stages of the adoption process, ensuring that members of the family of origin and the adoptive family would not discover each other’s identities, and that the records of the adoption would be kept confidential. It had also been responsible for providing a range of social security benefits which affected the options available to parents, particularly single mothers considering whether to keep a new baby or surrender him or her for adoption. The Committee found that because of this involvement, the Commonwealth should play a role in helping the states and territories to address the consequences of past forced adoption practices.^[54]

2.60 The Committee reported that under adoption laws passed in the 1960s, consent to adoption was illegal if it was given under duress, without proper information about the mother’s rights, or signed before or within a certain period after the birth. These laws were not properly complied with, allowing illegal forced adoptions to take place.^[55]

2.61 Forced adoptions were widespread throughout Australia from the 1950s to the early 1970s. An estimated 140,000–150,000 adoptions occurred in Australia between 1951 and 1975. Many of the babies were born to unwed mothers. The social stigma that surrounded pregnancy out of wedlock at that time meant that some viewed these mothers as ‘undeserving’, which justified removing their babies and giving them to married couples.

2.62 Many people adopted in this way recounted damaging and painful experiences from their childhood and ongoing struggles with self-identity and with mental and physical health. They also reported difficulties in seeking to meet or build a relationship with their parents and parenting their own children.^[56]

2.63 The Committee made 20 recommendations. Relevantly for the present inquiry, the Committee recommended that:

• all jurisdictions adopt integrated birth certificates, to be issued to eligible people upon request, and that they be legal proof of identity of equal status to other birth certificates

• all jurisdictions investigate harmonisation of births, deaths and marriages register access with a single national access point to those registers.^[57]

2.64 The question of integrated birth certificates is discussed in Chapter 8.

Protecting Victoria’s Vulnerable Children Inquiry

2.65 The Protecting Victoria’s Vulnerable Children Inquiry^[58] was asked to investigate the factors that increase the risk of child abuse or neglect, and effective strategies to enhance early identification and intervention. The Inquiry was expressly asked to consider out-of-home care and permanency planning. The Inquiry reported in January 2012.

2.66 The Inquiry found that on average it was five years between a child’s first child protection report and a permanent care order.^[59] It made recommendations to improve and simplify case planning and improve collaboration across service agencies. It also recommended that where appropriate, barriers to adoption and permanent care should be identified and removed.^[60]

2.67 Reforms to Victorian child protection laws which came into effect on 1 March 2016^[61] give priority to permanent care for children who are not able to return to their parents or family of origin. Under these changes, a case plan prepared for a child in the protection

of the Department of Health and Human Services must include a ‘permanency objective’, for the present and future care and wellbeing of the child. The Children, Youth and Families Act 2005 (Vic) provides a hierarchy of permanency objectives, which are required to be considered in the following order ‘as determined to be appropriate in the best interests of the child’: family preservation, family reunification, adoption, permanent care and long-term out-of-home care.

2.68 The Commission is aware of concerns that the placement of adoption ahead of permanent care and long-term out-of-home care in the permanency objective hierarchy may lead to a renewal of forced removal of children from their parents.

2.69 Adoption in the child protection context is discussed in Chapter 4.

Senate Committee report on out-of-home care

2.70 In July 2014, the Senate Community Affairs References Committee was asked to consider why the number of children and young people entering and remaining in statutory out-of-home care around Australia had more than doubled since 2000. The Committee reported in August 2015.^[62]

2.71 The Committee observed that adoption was the most contentious of the permanent care options for children in out-of-home care that it examined.^[63] It acknowledged the strong opposition to adoption in some segments of the community, particularly those affected by past practices of forced adoptions.^[64]

2.72 The Committee observed that while most jurisdictions emphasise keeping children with families where possible and do not prioritise adoption, several jurisdictions were considering reviewing their approach.^[65] It discussed child protection reforms introduced in New South Wales in 2014 which encourage and support adoption by carers as one
of the permanency options for children in out-of-home care.^[66]

2.73 The Committee concluded that for some children, legally permanent arrangements such as guardianship orders and adoption may provide the safest and most stable long-term placements. Where this occurs, it is important to ensure children remain connected to their families and communities, taking into consideration their cultural background.^[67]

Adoption by Same-Sex Couples Legislative Review

2.74 This review was conducted in 2015 by Eamonn Moran PSM QC to implement a commitment by the Victorian Government to legalise same-sex adoption.^[68] The purpose of the review was to recommend legislative amendments required to permit adoption of children by same-sex couples and people who do not identify with a specific sex or gender.^[69]

2.75 The review recommended that the Adoption Act be amended by introducing non-gendered definitions of domestic partner, domestic relationship and registered domestic relationship.

2.76 The Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) was passed in December 2015, enabling adoption of children by same-sex couples and people who do not identify with a specific sex or gender. The amendments will come into effect by 1 September 2016.

2.77 The government originally intended to amend the Equal Opportunity Act 2010 (Vic) to remove the exception which would allow religious bodies to refuse to provide adoption services to same-sex couples, but this did not proceed after amendment by the Legislative Council.

2.78 The terms of reference exclude same-sex adoption and the matter is not discussed further in this paper.

2.79 A number of submissions were made to the review on matters that were not within its terms of reference.^[70] These included:

• removing a limitation on the ability of single people to adopt

• ‘achieving consistency’ in the eligibility requirements that apply to married and non-married couples

• including more matters, or removing the existing matters, that birth parents can express wishes about regarding adoptive parents.

2.80 As these matters were not within the review’s terms of reference, it did not consider them.

2.81 These matters do fall within the Commission’s terms of reference, which ask it to ensure that the Adoption Act is consistent with contemporary attitudes and contemporary law relating to family. They are discussed in Chapter 7.

Reviews of adoption laws in other jurisdictions

New Zealand (2000)

2.82 In 2000 the New Zealand Law Commission (NZLC) carried out a review of the Adoption Act 1955 (NZ). Its report, Adoption and Its Alternatives: A Different Approach and a New Framework, found that the New Zealand Adoption Act reflected value judgments inconsistent with current standards. Further, although open adoption was widely practised in New Zealand, it was not recognised in law. The NZLC recommended consolidating New Zealand’s legislation relating to parenting and care of children in a new Care of Children Act, with adoption representing the most permanent of the options on the care spectrum. No amendments have arisen from this report.^[71]

Queensland (2015)

2.83 In 2015 the Queensland Department of Communities, Child Safety and Disability Services issued a discussion paper, Public Consultation for the Review of the Operation of the Adoption Act 2009.^[72] Submissions closed on 11 March 2016. A final report was released as this consultation paper was sent to print. It will be considered during the Commission’s review.

South Australia (2015)

2.84 In early 2015 the report of a review of the Adoption Act 1988 (SA) was published.^[73] The review made recommendations in a number of critical areas relating to the protection of the relationship rights of children and the preservation of the commitment to open adoption established in 1988. A government response has yet to be released.

2.85 In preparing its report, the Commission will consider these and other relevant reviews of adoption from other jurisdictions.

Human rights and the rights of the child

2.86 The terms of reference ask the Commission to provide recommendations on the way Victorian adoption law can uphold principles set out in the Charter of Human Rights and Responsibilities and the United Nations Convention on the Rights of the Child. The following paragraphs briefly explain how these instruments are relevant to Victorian adoption law.

United Nations Convention on the Rights of the Child

2.87 In November 1989 the United Nations General Assembly adopted the Convention on the Rights of the Child (CRC).^[74] The CRC sets out the basic rights of children and the obligations of governments to fulfil those rights.

2.88 Australia ratified the CRC in December 1990. This means that Australia has a duty to ensure that all children in Australia enjoy the rights set out in the treaty. While an adopted child is entitled to all the rights in the CRC, articles 3 and 21 of the CRC are particularly relevant to this review.

2.89 Article 3 provides a general ‘best interests of the child’ principle which requires that ‘in all actions concerning children … the best interests of the child shall be a primary consideration’.^[75]

2.90 Article 21 provides specifically for the best interests of the child in an adoption, stipulating that in an adoption, the best interests of the child are to be the ‘paramount consideration’.^[76]

2.91 Inter-country adoption is outside the scope of this reference. The way the Adoption Act should approach the best interests of the child is discussed in Chapter 5.

Victorian Charter of Human Rights and Responsibilities

2.92 In 2006 the Victorian Parliament passed the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), derived from the International Covenant on Civil and Political Rights. The Charter provides protections in Victoria when people are dealing with state and local government and private entities where they are performing public functions.^[77]

2.93 The Charter requires public authorities in state and local government to act in ways that are compatible with human rights. It sets out 20 key human rights, of which four may

be relevant to the Adoption Act:

• The right to recognition and equality before the law: everyone is entitled to equal and effective protection against discrimination, and to enjoy their human rights without discrimination.^[78]

• The right to privacy and reputation: everyone has the right to keep their lives private. A person’s family, home or personal information cannot be interfered with, unless the law allows it.^[79]

• The right to protection of families and children: families are entitled to protection. Children have the same rights as adults, with added protection according to their best interests.^[80]

• Cultural rights: people can have different family, religious or cultural backgrounds. They can enjoy their culture, declare and practise their religion, and use their languages.^[81]

2.94 The Charter does not create a cause of action or right to go to court, and the courts cannot award damages for a breach of Charter rights. People can make complaints about human rights issues to the Victorian Ombudsman and the Independent Broad-based Anti-corruption Commission where those bodies have jurisdiction.

1. Australian Institute of Health and Welfare, Adoptions Australia 2014–15, Child Welfare Series Number 62 (2015) 13. The Australian Institute of Health and Welfare report defines ‘local adoptions’ as ‘adoptions of children who were born or permanently residing in Australia before the adoption, are legally able to be placed for adoption, but generally have had no previous contact or relationship with the adoptive parent(s)’: 4.

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2. See generally Robert Paulissian, ‘Adoption in Ancient Assyria and Babylonia’ (1999) 13(2) Journal of Assyrian Academic Studies. Adoption of a stranger’s male child provided a childless couple with an heir, and a son to support them in their old age and perform the religious rites required upon their death. A craftsman might adopt a male heir for apprenticeship to ensure the continuity of the family business. Adoption of children was also common among the eunuchs of the royal palace and by the women dedicated to religious celibacy, who also looked to ensure support in their old age. A loyal slave might be adopted to maintain the continuity of care and support of the adopter into old age. Children born to a free man and his slave wife were commonly adopted and legitimised by the father to be legally considered as heirs. Females were also adopted (as daughter, daughter-in-law and sister). Typically, natural parents or guardians maintained their interest in the child and retained limited rights of reclaiming him. Inheritance from the adoptive parents and the nature of the rights retained by the natural parents were often addressed in the adoption contract.

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3. See generally Hugh Lindsay, Adoption in the Roman World (Cambridge University Press, 2009); Hugh Lindsay, ‘Adoption and Heirship in Greece and Rome’ in Beryl Rawson (ed), A Companion to Families in the Greek and Roman Worlds (Blackwell Publishing, 2011) 346.

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4. See Hugh Lindsay, Adoption in the Roman World (Cambridge University Press, 2009) 37–8.

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5. See Hugh Lindsay, ‘Adoption and Heirship in Greece and Rome’ in Beryl Rawson (ed), A Companion to Families in the Greek and Roman Worlds (Blackwell Publishing, 2011) 347, 354.

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6. See Athenian case studies in Hugh Lindsay, Adoption in the Roman World (Cambridge University Press, 2009) 40–8.

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7. Ibid 41.

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8. The Massachusetts Adoption of Children Act 1851. Under this legislation all legal rights and obligations were transferred by the adoption from the birth parents to the adoptive parents, including most rights of inheritance. It has been suggested that the late development of adoption legislation in Anglo-Saxon codes is an outcome of the early capacity of the Christian Church to own property and become a beneficiary of private estates. The Church hoped to be principal beneficiary of the estate of a man who died without natural heirs and was therefore critical of the practice of adoption: see generally ibid 23.

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9. See Nell Musgrove and Shurlee Swain, ‘The “best interests of the child”, Historical Perspectives’ (2010) 35 Children Australia 35.

   ↑

10. Audrey Marshall and Margaret MacDonald, The Many-Sided Triangle: Adoption in Australia (Melbourne University Press, 2001) 23.

    ↑

11. Marian Quartly and Shurlee Swain, ‘The Market in Children—Analysing the Language of Adoption in Australia’ (2012) 9(2) History Australia 69, 72.

    ↑

12. The Adoption of Children Act 1896 (WA).

    ↑

13. Adoption of Children Act 1920 (Tas); Child Welfare Act 1923 (NSW); Adoption of Children Act 1925 (SA); Adoption of Children Act 1935 (Qld); Adoption of Children Ordinance 1938 (ACT) and Adoption of Children Ordinance 1949 (NT).

    ↑

14. Adoption of Children (Amendment) Act 1936 (Vic); Adoption of Children Act 1942 (Vic); Adoption of Children (Amendment) Act 1953 (Vic); Adoption of Children (Amendment) Act 1954 (Vic); Adoption of Children Act 1955 (Vic).

    ↑

15. These guardians were departmental officers or possibly a minister of religion: Adoption of Children Act 1958 (Vic) s 11(4).

    ↑

16. The operation of information privacy was set out in the Adoption of Children Regulations 1965 (Vic) pt VI.

    ↑

17. Victoria, Adoption Legislation Review Committee, Report of Adoption Legislation Review Committee (1983).

    ↑

18. Victoria, Parliamentary Debates, Legislative Assembly, 2 May 1984, 4244 (Pauline Toner, Minister for Community Welfare Services).

    ↑

19. Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, opened for signature 29 May 1993, 1870 UNTS 167 (entered into force 1 May 1995).

    ↑

20. Ibid.

    ↑

21. It was also intended to amend the Equal Opportunity Act 2010 (Vic) to remove the exception to the prohibition to discriminate in relation to religious bodies providing adoption services, but this did not proceed after amendment by the Legislative Council. See generally Josh Gordon, ‘Conservatives Force Religious Exemptions Into Same-Sex Adoption Laws’ The Age (online) 13 November 2015

    < http://www.theage.com.au/victoria/conservatives-force-religious-exemptions-into-samesex-adoption-laws-20151112-gkxz46.html> and Sarah Farnsworth ‘Same-Sex Adoption Laws Pass Victorian Parliament After Government Accepts Religious Exemptions’ ABC News (online) 9 Dec 2015 <http://www.abc.net.au/news/2015-12-09/same-sex-adoption-passes-victorian-parliament/7013502>.

    ↑

22. Adoption Amendment (Adoption by Same-Sex Couples) Act 2015 (Vic) s 2(2).

    ↑

23. Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) 27.

    ↑

24. The Adoption of Children Act 1896 (WA) was amended in the 1920s to introduce secrecy: a 1921 amendment closed adoption records, subject to permission of the Master of the Supreme Court; a 1926 amendment prevented an adopted child from obtaining their original birth certificate.

    ↑

25. See generally New Zealand Law Commission, Adoption and Its Alternatives: A Different Approach and a New Framework, Report 65 (2000) 15.

    ↑

26. Adoption of Children Ordinance 1965 (ACT) pt III. Before the Australian Capital Territory (Self-Government) Act 1988 (Cth), many laws were made for the ACT by the Governor-General exercising delegated powers. These laws were known as ordinances.

    ↑

27. Adoption of Children Ordinance 1965 (ACT), Adoption of Children Act 1964 (Vic), Adoption of Children Act 1964 (Qld), Adoption of Children Act 1965 (NSW), Adoption of Children Act 1966–1967 (SA), Adoption of Children Act 1968 (Tas), Adoption of Children Ordinance 1968 (NT), and the Adoption of Children Act Amendment Act 1964 (WA).

    ↑

28. See Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) 172–4.

    ↑

29. This theory was in part based on the work of prominent psychologist, psychiatrist and psychoanalyst, John Bowlby. Bowlby’s work on ‘attachment theory’ underpinned policies and attitudes which supported early separation of mothers from their newborns. See Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) 25.

    ↑

30. Ibid 151.

    ↑

31. Ibid 12.

    ↑

32. Ibid 103.

    ↑

33. See, eg, Status of Children Act 1974 (Vic) s 12 which amended a range of Acts to redefine the status of ‘illegitimate’ to ‘a child whose parents were not married to each other at the time of birth or at or after its conception’.

    ↑

34. Child Care Act 1972 (Cth).

    ↑

35. Family Law Act 1975 (Cth).

    ↑

36. See Australian Bureau of Statistics 4102.0 – Australian Social Trends, 1998 <http://www.abs.gov.au/AUSSTATS/>.

    ↑

37. Australian Institute of Health and Welfare, Adoptions Australia 2009–10, Child Welfare Series Number 50 (2010) 12. Of the 190 adopted from Australia, 61 were local adoptions and 129 were ‘known-child adoptions’.

    ↑

38. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

    ↑

39. See Robyn Ball, Open Adoption in Victoria, Australia: Adoptive Parents’ Reports of Children’s Experience of Birth Family Contact in Relation to Child Wellbeing (Phd Thesis, Victoria University of Technology, 2005) 4–9; Phillipa Castle, ‘Collaboration in Open Adoption: The Birth Mothers’ Experience’ (2012) 6(1) Australian Journal of Adoption (archived online) <http://pandora.nla.gov.au/pan/98265/20130416-0013/www.nla.gov.au/openpublish/index.php/aja/issue/view/220/showToc.html>

    ↑

40. Robyn Ball, Open Adoption in Victoria, Australia: Adoptive Parents’ Reports of Children’s Experience of Birth Family Contact in Relation to Child Wellbeing (Phd Thesis, Victoria University of Technology, 2005) 7–8.

    ↑

41. Robin Winkler and Margaret van Keppel, ‘Relinquishing Mothers in Adoption: Their Long-Term Adjustment’ (Monograph No 3, Australian Institute of Family Studies, May 1984).

    ↑

42. Ibid 1, 67.

    ↑

43. Susan Tregeagle and Louise Voight, ‘Overcoming the Pain of Never Belonging: The Case for Open Adoption for Severely Abused and Neglected Children’ (2014) 8(1) Australian Journal of Adoption 3.

    ↑

44. Robyn Ball, Open Adoption in Victoria, Australia: Adoptive Parents’ Reports of Children’s Experience of Birth Family Contact in Relation to Child Wellbeing (Phd Thesis, Victoria University of Technology, 2005) 4.

    ↑

45. Adoption Act 1984 (Vic) s 59A.

    ↑

46. Robyn Ball, Open Adoption in Victoria, Australia: Adoptive Parents’ Reports of Children’s Experience of Birth Family Contact in Relation to Child Wellbeing (Phd Thesis, Victoria University of Technology, 2005) 4–9.

    ↑

47. Ibid 4–7.

    ↑

48. Australian Human Rights and Equal Opportunity Commission, Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997).

    ↑

49. Ibid Term of reference (a).

    ↑

50. Ibid 222.

    ↑

51. Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption, Report (2007).

    ↑

52. Senate Community Affairs References Committee, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012).

    ↑

53. Ibid 1.

    ↑

54. Ibid 5.

    ↑

55. Ibid 208.

    ↑

56. Ibid 54–67.

    ↑

57. Ibid 257 (Recommendation 13).

    ↑

58. Philip Cummins, Dorothy Scott and Bill Scales, Report of the Protecting Victoria’s Vulnerable Children Inquiry (Department of Premier and Cabinet, 2012). The Inquiry was chaired by the Hon. Philip Cummins, who is currently the Chair of the Victorian Law Reform Commission.

    ↑

59. Philip Cummins, Dorothy Scott and Bill Scales, Report of the Protecting Victoria’s Vulnerable Children Inquiry (Department of Premier and Cabinet, vol 2, 2012) finding 4, 229.

    ↑

60. Ibid xxxvii.

    ↑

61. Children, Youth and Families Act 2005 (Vic) ss 167, 168.

    ↑

62. Senate Community Affairs References Committee, Parliament of Australia, Out-of-Home Care (2015).

    ↑

63. Ibid 208.

    ↑

64. Ibid 281.

    ↑

65. Ibid 212.

    ↑

66. Ibid 30–1; Children and Young Persons (Care and Protection) Act 1998 (NSW).

    ↑

67. Senate Community Affairs References Committee, Parliament of Australia, Out-of-home care (2015) 281.

    ↑

68. Eamonn Moran and Teresa Porritt, Adoption by Same-Sex Couples Legislative Review (2015)

    ↑

69. As the Moran review observes, ‘Although the Government’s election commitment states that the Adoption Act is to be reviewed with a view to permit same-sex adoption, the Department of Premier and Cabinet considered that the preferable approach to fulfilling this commitment was to permit all couples to adopt, irrespective of gender or sex, as that would be consistent with the Government’s commitment to review all Victorian legislation to remove provisions that discriminate against LGBTI Victorians’: Ibid 4.

    ↑

70. Ibid 39.

    ↑

71. See generally New Zealand Law Commission, Adoption and Its Alternatives: A Different Approach and a New Framework, Report No 65 (2000) 3, 4, 19.

    ↑

72. Department of Communities, Child Safety and Disability Services, Government of Queensland, Public Consultation for the Review of the Operation of the Adoption Act 2000, Discussion paper (2015).

    ↑

73. Lorna Hallahan, Adoption Act 1998 (SA) Review (2015). Matters raised in this review are discussed in Chapters 7 and 8 of this consultation paper.

    ↑

74. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

    ↑

75. Ibid art 3(1).

    ↑

76. Ibid art 21.

    ↑

77. See generally Michael Brett Young, From Commitment to Culture – The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006 (2015); Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1289–95 (Rob Hulls, Attorney-General).

    ↑

78. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8.

    ↑

79. Ibid s 13.

    ↑

80. Ibid s 17.

    ↑

81. Ibid s 19.

    ↑