Adoption Amendment Bill 2008
The Adoption Amendment Bill 2008, which represents a significant step towards a more streamlined and transparent adoption process in New South Wales, will remove a number of barriers to adoption and ensure that, where appropriate, the adoption of children is able to progress without undue impediment. For me the wheel has turned full circle—an issue to which I will refer later. In 1979, when I was appointed Superintendent of Wesley Mission, I discovered that I was responsible for adopting 134 children, which is a big increase in a person’s family in one day. I was regarded as guardian ad litem because at that stage Wesley Mission had a babies’ home, a Wesley Adoption Service, and Wesley Dalmar Child and Family Care.
As guardian ad litem I was responsible for the arrangement of the adoptions of 134 children. However, at that stage I was not satisfied that adopting children was the best way of caring for them when they were out of their own families. I decided to do some research. I listened to various advocates for change away from the adoption service and to foster care; I sent a social worker, Mrs Sheila Walkerden, to London to investigate what was happening in the United Kingdom; and I also hired Australian child psychologist Geoffrey Fox to write a report for me. As a result of these insights, I closed down the babies home, ended the adoption service, built 36 or 37 family group homes in suburbs and in major regional centres in New South Wales and, as a result, put out to foster care, through working with Department of Community Services, on average about 1,500 children each year. Two years ago when I retired the number of children placed into family care had reached about 4,600.
At the time it was thought to be the best way of caring for children who had to live out of home. Unfortunately, as I will mention later, the wheel has now turned full circle and we have once more come back to adoption because of the problems faced by so many foster carers. Adoption involves the transfer of legal parental responsibility and rights and is final. For children and people who are not able to live with their birth parents, its offers a greater sense of belonging and a permanence for them. Specifically, research has shown that for children and young people in care, adoption generally results in superior outcomes, that is, key health, educational and wellbeing outcomes over other alternative permanent arrangements.
While adoption is therefore an important avenue for many children and young people to have an opportunity to enjoy the stability and support of a loving family throughout their lives, it is also important that the lessons of the past are not forgotten. That is why I commenced my contribution by indicating that in 1979 we were moving against adoption and putting all our eggs into the foster care basket. Today, as a result of this legislation, we have come full circle in caring for children. Secrecy around adoption, including the severing of ties with birth families, can lead to significant identity and other emotional issues for adopted children and their birth parents. Australia is a signatory to the United Nations Convention on the Rights of the Child. Article 21 of that convention, which relates to adoption, states:
Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorised only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) Recognise that the intercountry adoption may be considered as an alternative means of child care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;
(c) Ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those who involved in it.
Guided by the United Nations Convention on the Rights of the Child, the objects and principles of the Adoption Amendment Bill 2008, which we are considering this afternoon, will ensure that the best interests of the child are paramount when considering domestic adoption laws and practice. Moreover, this bill confirms that adoption is to be regarded as a service for the child. No adult has a right—and I emphasise that—to adopt a child. This legislation aims to strike the right balance between the interests of children, birth parents and adoptive parents. Essentially, there should be no barriers to adoption when that is clearly in the best interests of the child or young person.
Adoption legislation affects the broad spectrum of the community, in particular birth parents, adopted persons, adoptive parents and the extended families of all parties. There are three categories of adoption. The first is local adoption, that is, the adoption of children who are born in Australia and who are permanent residents in Australia before the adoption, and who are legally available to be placed for adoption but who generally have had no previous contact or relationship with the adoptive parents. Second, there are intercountry adoptions, which are adoptions of children from countries other than Australia who are legally available to be placed for adoption but who generally have had no previous contact or relationship with the adoptive parents.
The third category is known child adoptions, that is, adoptions of children from countries who have a pre-existing relationship with the adoptive parent, or parents, who generally are not able to be adopted by anyone other than the adoptive parents. Known child adoptions include adoptions by step-parents, grandparents, other relatives, carers, members of the same group or, in the case of indigenous people, the same tribe or community. In the past year there were 585 adoptions of children in Australia, which is not many. Seventy-four per cent of the adoptions were intercountry adoptions, only 11 per cent were local adoptions, and 15 per cent were known child adoptions. Local adoptions have continued the trend of the last 30 years and have declined in number.
In the last year for which I have records, that is, 2004-05, there were only 65 local adoptions. Over the past two decades legislative changes introduced by State and Territory departments around Australia have caused a downturn in the number of known child adoptions. In 2003-04 the number of adoptions in New South Wales was the lowest since adoption records began in 1968. While intercountry adoptions have increased over the past 10 years the number of local adoptions, both local placement and known adoptions, has continued to decline in New South Wales. In reality, it leaves virtually no hope for anybody who wants to adopt a child in this country. Adoptions in New South Wales reached a peak of 4,564 in 1972, but in 1999 that number had dropped to only 178.
As I mentioned, in 1979 as guardian ad litem I had 134 children in my legal care available for adoption at any one time. In 2003-04 there were approximately 10 to 12 adoptions of children from out-of-home care in New South Wales—that is, they were in foster care with people who then wanted to adopt them. This represents approximately 0.1 of 1 per cent of the in-care population. The number of children adopted by foster carers comprises approximately 42 per cent of what are called known adoptions. With society’s changing views on adoption and the rise of single parenthood those numbers have continued to decline. The bill reflects the evolution of the community’s attitude towards adoption. Now I am pleased to say that I believe the pendulum is swinging back in the other direction.
For intercountry, step-parent, relative and adult adoptions, one of the bill’s main purposes is to make it quicker and easier for prospective parents to adopt children by removing procedural impediments to applications being made directly to the Supreme Court. The bill amends sections 87 and 91 of the Act to cut the red tape by requiring the Department Community Services to file reports and provide consent in adoption proceedings that do not arise out of child protection concerns. Since step-parent, adult and relative adoptions are known adoptions, that is, the person to be adopted already has an established relationship with the prospective adoptive parents—for example, step-parents, grandparents, an aunt or uncle—and there are no child protection concerns, the bill dispenses with the need for the director general to consent to the application and file reports. It is proposed that the Supreme Court will be able to directly accept independent reports from an approved adoption service assessor or an accredited adoption service provider. This is a very sensible provision.
The bill will facilitate a pathway for intercountry adoption applications and reports to be filed directly by the applicants with the Supreme Court rather than the director general having to make the reports and file them with the court by way of affidavit. However, the bill ensures that the safety and wellbeing of adoptive children remains a priority of the Department of Community Services by making provision in section 91 of the Act that the Supreme Court may request the director general to provide a report—or the department may do so of its own accord—on the adoption application when there are child protection concerns or serious concerns about the reliability or independence of reports filed in the court, or other exceptional circumstances.
As to the circumstances that must exist before the Supreme Court will make an adoption order pertaining to step-parent, relative or foster care adoptions, the bill introduces changes to simplify the eligibility criteria. For relative adoptions the bill reduces the currently prescribed minimum length of the pre-existing child-parent relationship from five years to two years; in step-parent adoptions the required time for the child to be in the care of the applicant is reduced from three years to two years; and for the consent of adoption of a child over the age of 12 years, the required relationship between the child and the proposed adoptive parent or parents will be reduced from five years to only two years. For consistency across the Act on the length of a relationship for eligibility to adopt, the bill amends section 28 of the Act to reduce from three years to two years the period a couple must live together before an application for adoption can be made. The bill also simplifies the circumstances for adult adoptions by removing the requirement of a minimum five-year parent-child relationship. It clarifies that the main requisite for an adult adoption is that the prospective adoptive parent has brought up the child. Again this is a sensible move and I congratulate the Government on it.
The bill makes important changes to the access of adoption information. It retains the continuation of the access entitlements applying to adoptions that have occurred in the past. It also preserves responsibility and obligations of the department under the Act to maintain services relating to adoption information. This can be one of the most tenuous and difficult parts of the whole process. These services include administering the reunion and information registers, and authorising the release of information subject to any advance notice requests, which must be done in accordance with the access to information scheme—the old contact veto scheme that applied to adoptions until 1990. However, a significant change is the facilitation of open adoption practices for future adoptions.
The bill aims to establish equitable and open rights to access information such as birth certificates and birth records. Under this new scheme adoptive parents, adopted children, birth parents and siblings will more easily be able to access adoption information. The new scheme allows for adoptive parents, after the adoption orders are made, to automatically be entitled to receive adoption information. They will be able to access their adopted child’s original birth certificate and other prescribed information held by the adoption service provider or an information source such as a hospital or the Registry of Births, Deaths and Marriages. Birth parents of an adopted person over the age of 18 years of age and adopted persons over 18 years of age will have open access entitlements to information such as their birth certificates, birth records and other identifying information. However, to ensure adopted children under the age of 18 years have the appropriate support when accessing information, the bill makes provision for information to be accessed with their adoptive parents’ consent. In circumstances where the adoptive parents cannot be found or where other sufficient reasons supply, the director general may dispense with the adoptive parents’ consent. Again this is a sensible conclusion and I congratulate the Government on it.
In balancing the need for equitable entitlements to information by birth parents and the need to provide protection to an adopted child under 18 years of age, the bill gives birth parents an entitlement to information so long as releasing identifying information would not pose a risk to the safety, welfare or wellbeing of the adopted child or the adoptive parents. As I have said previously, this whole area of information sharing is a minefield fraught with many difficulties, but from my personal understanding and experience the Government seems to have done a good job on this aspect. The bill also makes provision for non-adopted and adopted birth siblings to have reciprocal rights to access information. It aims to further open adoption practices by lifting the blanket restriction on the publication of identifying material of parties to adoption proceedings.
The current wording of section 180 of the Act can lead to the prevention of birth parents or adopted children speaking publicly about their adoption experience or even publishing their memoirs. The intent of the restriction on the publishing of names is to protect the identity of parties while adoption proceedings are occurring. The bill makes it clear that the restrictions on the publication of names are to apply from the time a child is placed for adoption until an adoption order has been made. However, once the court order for the adoption has been made, the amendment to section 180 of the Act will allow for the publication of the names of the parties to an adoption where the person has given consent for the release of such information.
Further, the bill provides greater involvement of Aboriginal agencies in the placement of Aboriginal children for adoption. I know that since we have been through all the trauma of the stolen generation report and so on, we are very careful in the way this is now approached. To ensure that children over 12 years of age and under 16 years of age provide effective consent to their own adoption, this bill will streamline the requirements so they do not need to see both a counsellor and a psychologist; the functions of both professionals will be combined. Children are to be made fully aware of the implications of their decision. The same provisions will apply to young persons consenting to the adoption of their children in appropriate cases.
Miscellaneous amendments will remove the requirement that there must be a special reason relating to the best interests of the child before the court can approve a change of name for a child, and will clarify the procedural requirements for ensuring consent by children over 12 years of age and under 16 years of age to their own adoption. Currently section 101 (5) of the Act limits consideration to the best interests of the child. This section requires adoptive parents to establish special reasons to change the name of a child who is more than one year old or a non-citizen child, and that the special reasons are related to the best interests of the child. The requirement for special reasons will be removed so that the court can focus on the broad consideration of the best interests of a particular child.
I will make a couple of very significant points to draw to the attention of the House concerns expressed by relevant stakeholders. I ask the Parliamentary Secretary to address these concerns and bring them to the attention of the Minister for Community Services. For example, members of the Adoptive Parents Association of New South Wales [APA] strongly object to personal, identifying information being handed out to anyone. The association firmly believes that individuals in an adoption plan must be allowed to determine when the identifying information is released to each other. The association also believes that the exchange of identifying information, such as birth certificates, should take place only with the consent of all the parties involved. I place on the record a communiqué from the association’s president and vice-president, which states:
APA members would like consent to be given by all parties (birth and adoptive families) before any identifying information is released. The emotional and physical security of adoptive children must be ensured. Adoption affects many people and involves a complex process for each person in the adoption plan.
No two journeys are the same, and each person’s unique situation will determine when they are able to deal with the release of identifying information. Time and support by case workers in adoption agencies is crucial to building trust in birth/adoptive family relationships. All parties in the adoption plan must feel secure with the other parties before releasing any of their personal/identifying information.
I will not mention any specific experiences I have had over the years in running the Dalmar Children’s Homes and all the foster care and adoption processes that that involved. Suffice it to say that an average of approximately 4,000 children a year have been assisted over the past 27 years, and I have had many conversations with birth families, adoptive families and children in foster care as well as children who have been adopted or are being sought for adoption. However, I mention that Barnardos, which is a similar not-for-profit agency in Sydney, like the Adoptive Parents Association supports the legislation, but has concerns about privacy issues. Barnardos considers that the proposed amendments to section 134 (3) of the Adoption Act, which would allow access by adopted persons under 18 years and their birth and adoptive parents to both the child’s original and amended birth certificates and to the adoption order, could give rise to unintended consequences.
I will mention an unintended consequence that is not covered by the Act but which, I am sure, will be a very significant issue in the future. Drug or alcohol abuse or mental health issues often lead birth parents to consider adoption as a way to give their children a better chance in life. Similarly, there are sometimes circumstances in which threatening or violent behaviour by birth parents or relatives could be a concern to adoptive parents. I draw to the Minister’s attention a matter that is not considered anywhere in the bill: we are facing a complex new issue. We are able to identify through DNA testing certain traits. Sometimes those traits may be physical and sometimes they may involve genetic problems which will be passed on to future generations. Should information about those DNA traits be released to adoptive parents? If the Minister could examine that issue, I would be very interested in the Government’s response.
While welcoming many of the reforms provided in the bill, the Association of Children’s Welfare Agencies [ACWA] has expressed concerns over the impact of proposed changes to the State’s Adoption Act and how that will impact upon indigenous communities. According to Andrew McCallum, who is the chief executive of the Association of Children’s Welfare Agencies, the legislation does not go far enough in protecting Aboriginal children who are living in disadvantaged communities from being inappropriately removed from their families. We do not want another cycle of stolen generations charges. He stated:
The concept of adoption is alien to the Aboriginal culture and, as history shows, its inappropriate use has been the source of enormous pain to Aboriginal children, their parents and communities.
If ever there was a place in the world where there is a cultural requirement for a village to bring up a child, it is in Australia’s indigenous culture. Andrew McCallum goes on to state:
It fails to reflect the very real need to pour more resources into infrastructure and services that strengthen struggling communities and help address the underlying factors that lead to disadvantage.
I must state for the record that in the local Central Coast area where I now live, I know two indigenous adults who have shared their stories with me. They were adopted by white families many years ago. They grew up in those adoptive families. They choose to remain within those adoptive families, although they are now both in their 40s and 50s. As far as they are concerned, that has been the most successful inclusion of their lives. The Australia Society for Intercountry Aid for Children New South Wales has also asked me to state the society’s concerns on the record:
It is a positive step forward in terms of: removing the prohibition on pursuing fertility treatments, focusing on parental capacity of prospective adoptive parents which is critical to raising an adopted child, reducing the period a couple must be living together to 2 years, and easing the restrictions on the name change and leaving it with the courts to decide.
The society added that this has long been a contentious issue with the adoptive parent. Its view was that an educated approach, rather than a prescriptive approach, was preferable. I will conclude my remarks by making it clear that people need to understand there is not a simple answer to this problem. In 1979 I undertook research and hired researchers to find out for me whether I could close down the Wesley Mission adoption agency and our babies’ home and move to a full range of foster caring. Although I felt we were right to do that on that occasion and whereas I am quite sure that the 134 children for whom I was guardian ad litem and whose lives I literally held in the palm of my hand until I found someone who would adopt them, unfortunately foster parenting has not always proved to be right.
I have no problem at all with non-government agencies running various forms of foster parenting and childcare programs. However, I have real concerns about professional agencies providing and sourcing foster parents for children. I believe that the Department of Community Services must be engaged in much closer inspection of suitable source foster families before allowing children to go to those families. It was mentioned earlier by the member who preceded me in this debate, the Hon. Robyn Parker, that Caroline Overington wrote in the Australian on 25 November:
The proposal is among the 111 recommendations of the three-volume Wood report
The report by retired judge James Wood QC suggests that the private sector could not do a worse job than the NSW Department of Community Services, which has 14,000 children living in out-of-home care after they were removed from their parents.
This includes more than 4000 Aboriginal children – four times the number that were in state care at the height of the Stolen Generations period last century
In contrast, numbers are falling in Victoria and Queensland, both of which have overhauled their welfare systems to give more responsibility to the private sector
The report says children and young people move around the foster care merry-go-round whether in DOCS foster care or non-government foster care.
I emphasise the next point:
In 2006-07, 49 per cent of those in non-government foster care had three or more placements, compared with 37 per cent in DOCS foster care.
Of itself, that does not prove anything except that there are lots of children getting moved around a lot of times, and that some children who should be moved are not being moved. Those circumstances need to be examined very closely. I might add that the really sad story about all of this is that there are cases of slackness among commercial providers of foster care when unsuitable foster carers are selected who seem to be involved only for the money. I remind members that the department pays up to $6,000 a week for a suitable family to be found and for providing care for the children. Of course, that does not mean that foster carers receive $6,000: It reflects the costs of paying a commercial organisation to source foster parents. At Wesley Mission I used to have people called family finders, who had the responsibility of finding suitable foster families. There was no bounty; they did not get paid extra if they found families. They were on normal salaries.
And they did not always get it right! The bill marks an important change in how society views adoption. As I said, this is a matter in my own lifetime of coming the full circle. The bill introduces key reforms in adoption law in order to ensure that there is transparency, openness and efficiency, and I hope that all of those things will be achieved. I want to place on record an experience that involves people who were members of this Parliament. When I was a young activist on behalf of children in care I had many bruising encounters with the then Minister responsible for child care, Rex “Buckets” Jackson. I also had one bruising encounter with the former Premier Neville Wran, of which I have reminded him on occasion. I recall one occasion when I refused to leave his office or to stand up from my chair until he agreed to hear my concerns. He ordered that I be removed from his office; he swore, thumped his desk, stood up and shouted, “Moyes, you’re a damned nuisance.” I replied that I would have those words inscribed on my tombstone.
Not long afterwards I managed to get everything for the child care sector that I wanted to get from Mr Wran. He arranged for everything, including an increase in funding for child care. As a result, foster care in New South Wales increased rapidly across the sector. Later I was honoured with a Member of the Order of Australia. Mr Wran sent me a telegram congratulating me and indicating that although he swore at me and called me a “damned nuisance” he had instigated the honour. I have pleasure in commending the bill to the House