ADOPTION LAW AND PRACTICE IN AUSTRALIA
| Author | Geoffrey MONAHAN BA (Macq), LLB (Syd), LLM (NSW), GCHE (UTS); Judge of the Federal Circuit Court of Australia. Jennifer HYATT BA, LLB Hons (UTS), GCLP (UTS); Solicitor, Supreme Court of New South Wales; Legal Officer, Commonwealth Attorney-General's Department. |
| Date | 01 December 2018 |
| Citation | (2018) 30 SAcLJ 484 |
| Published date | 01 December 2018 |
Safeguarding Children from Exploitation
Adoption remains a controversial practice. Those who favour adoption see it as a humanitarian act, both towards the individual children and, in the case of intercountry adoption, their country of origin. Those who oppose it see it as a form of exploitation, in particular, where Australians unable to adopt locally seek to satisfy their own needs by adopting a child from a developing country.
In Australia, the last quarter of the 20th century witnessed both a significant decline in the adoption of locally born children and an increase in the adoption of children born outside Australia. This period also coincided with Australia embracing adoption law reform including the becoming a signatory to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 1993.
While the number of adoptions by Australians is now in decline once more, Australian law remains committed to safeguarding the welfare of all adopted children.
1 Adoption, both intra-country and intercountry, remains controversial. The low numbers of Australian-born infants available for adoption by persons other than relatives, and the increased success rate and affordability of assisted conception and fertility procedures, have posed considerable challenges for the law and practice of adoption in Australia in the last four decades.
2 As the pool of available Australian babies has dwindled, would-be adopters have turned to other options including intercountry adoption. Those who favour adoption see it as a humanitarian act, both towards the individual children and, in the case of intercountry adoption, their country of origin. Those who oppose it see it as a form of exploitation; in particular, intercountry adoption where wealthy couples from developed countries, unable to adopt locally, seek to satisfy their own needs by adopting a child from a developing country. Regardless, this process has necessitated appropriate measures being developed and implemented in order to safeguard adopted children from potential exploitation.
3 The law's response to this development has seen an increasing regulation and control of both intra-country and intercountry adoptions. Important in this regard has been the United Nations Convention on the Rights of the Child1 (1989) (“CRC”), as well as the development of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption2 (“Hague Adoption Convention”). In addition, significant developments have occurred in relation to the perceived rights and needs of the parties to adoption, especially regarding access to information and ongoing contact.
4 The law of adoption, both in Australia and internationally, is in a constant state of review and transition, brought about by ever-changing social and economic conditions. There continues to be much debate about whether adoption should continue at all. If adoption does continue into the future, it is essential that the best interests of the child are paramount at all times and that children are free from exploitation.
5 The central principle in adoption is that a complete substitution notionally takes place of the adoptive parents for the birth parents,
referred to as the “substitution principle”. The original family relationship is extinguished almost, but not quite, as if it had never existed.6 While adoption practices can be traced back to early civilisation, particularly during the Roman Empire, adoption legislation in the common law world can be traced to the US state of Massachusetts in 1851.3 The first Asia/Pacific jurisdiction to enact adoption laws was the then British colony of New Zealand in 1881. The Australian colonies and states all enacted legislation between 1896 and 1935.4 The UK did not enact adoption legislation until 1926. In all these early laws, the substitution principle was the central feature.
7 The notion of complete substitution was, and still is, qualified in respect of personal relationships by the criminal law of incest. If incestuous sexual relations are to be discouraged and punished by the law, then the principle of substitution could not be allowed to operate without some reservation. If it did, then sooner or later, persons who were closely related by blood, such as brother and sister, but who by reason of the adoption of one or both of them would have been regarded, and would have regarded themselves as not so related, might meet without knowing of their relationship, fall in love and innocently commit the crime of incest. This worried the makers and administrators of the law, and some made express provision to deal with this situation.5 Given the potential to impact upon succession law, the state and territory laws ensure that an adopted child is not deprived of any vested or contingent property right acquired by the child before the making of the adoption order.6
8 Adoption in Australia is clearly moving away from the “substitution principle” and towards a more open form of permanent parenting, with all jurisdictions encouraging open adoption.7 In an open adoption, the identities of the adopted person, adoptive parents and the birth parents are known, information may be exchanged, and face-to-face contact may be involved. To date, the concept of open adoption has been most enthusiastically taken up in New South Wales and Western Australia, where systems of “adoption plans”, which encourage negotiated contact and exchange of information, have been set up.8 The concept and increased use of open adoption complements the increasing trend of recent years of carer adoptions as part of the state's response to the needs of children in the child protection sphere.
9 All Australian jurisdictions have taken the path of encouraging and promoting open adoption. It is seen as critical for children to grow up with an understanding of where they come from and, wherever possible, to have a relationship with their birth parents. Families will often enter an “adoption plan” which sets out how exactly birth parents will keep a connection with their child as well as how the child will learn about who they are and there they came from. It would include details about how many times contact will occur and could also cover how the child will remain connected to his birth culture, should that be a relevant consideration.
10 It is difficult to provide specific examples of what this relationship can look like in an open adoption, as the frequency and mode of contact is determined by the circumstances of each case and the relevant court orders made. In some cases, the birth parents will meet with the children four times a year for several hours, where in other circumstances the frequency of contact could be much less. In the case of Adoption of JLK and CRK,9 a somewhat complex contact arrangement was agreed to. The adoption plan permitted two-hour visits, six times a year, for two children (aged eight and six). The complexity arises in that three visits would be only with the birth parents; the other visits could be with other family members (including three other siblings). The adoption plan also included the possibility of overnight visits in the future. In this case, Brereton J of the New South
Wales Supreme Court noted that a registered adoption plan is significant in ensuring that adoptive parents sustain birth family contact because it gives the birth parents standing to enforce it, should such action be needed, and this “provides considerable comfort”.1011 Brereton J also considered a relatively complex adoption plan in Adoption of RCC and RZA.11 This case concerned twins (aged ten) who had lived with the proposed adoptive parents since they were five. Orders were made to register the adoption plan and for the children to have contact with their birth mother five times a year, and with the birth father twice a year. Somewhat demonstrative of the support for, and reasoning behind, open adoptions, his Honour commented that “[birth] parent contact is an important aspect of satisfying the identity needs of children who do not reside with their birth family, and mitigating the risks of later identity issues”.12
12 According to the Australian Institute of Health and Welfare (“AIHW”), 278 adoptions were finalised in 2015–2016. This represents the lowest annual number of adoptions on record and a fall of 5% from the 292 adoptions that occurred in the previous year. It also represents a fall of nearly 75% from the number of adoptions that occurred 25 years ago. AIHW said the decline seen over the past decade has been driven primarily by intercountry adoptions, which fell from 421 in 2005–2006 to 82 in 2015–2016. That said, “known” child Australian-born adoptions are increasing, with 151 such adoptions finalised in 2015–2016, the highest number in the last decade, and carer adoptions accounting for approximately 46% of all finalised adoptions in 2015–2016. The reasons for the overall decline are numerous and arguably include increased societal acceptance of single parents, more effective and reliable birth control methods, authorised terminations, the end of forced adoption practices, increased childcare options, changes to family law legislation, and greater financial security for single parents through increased government income support and the establishment of the child support assessment and collection scheme.
13 The main country of origin for Australian intercountry adoptions has changed over time. According to AIHW, between 2006–2007 and 2010–2011, the main country of origin was either China or the Philippines; since then, it has varied between Taiwan and the Philippines. In 2015–2016, the most common countries of origin for
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