Part 3 Consequences of Removal Chapter 10 Children’s Experiences

Lance

Dad died when I was about two. My parents were married, but they often lived apart. When I was a little kid, they gave me to an Uncle and Auntie and the police took me away from them and put me in a Home. I have never been with my brothers and sisters at all. They were also put into the same Home. My brothers and sisters did not know that I existed until a nun said, ‘Come and meet your little brother’. I have some contact with them now. I see them once every six months. To me they are like acquaintances.

If I was in a stable Aboriginal family, I wouldn’t have the problems I have now – identifying myself as Koori. For ages I despised my parents; how could they just dump me in this Home? I hated them for what they were – Koories. I therefore hated Koories. I hated myself because I was Koori.

St Joseph’s Home – Sebastopol – is where I grew up. It was run by nuns wearing black habits. The only Aboriginal kids there were just me and another bloke. There were girls there too. I stayed there for seven or eight years. I bloody hated it. I remember going to bed crying every night and wetting the bed every night and every day moping around unhappy. I hated authorities. The nuns were really strict on you. We had a big dormitory where the boys slept. I used to go to bed crying. I remember a nun with a torch saying, ‘Stop crying’. I hid my head. She came back and hit me on the head with the torch. I still

have the scar today.

I did not know I had brothers and sisters …

I did not know I had brothers and sisters until I was aged twelve. I thought, ‘How come I did not know about it? Where were they? How come they did not come and play with me?’. You did not really want to know them and find out Mum and Dad kept them and threw you away. You’d realise your fears were true.

Lake Condah Mission is where my parents came from. I suspect they grew up with their parents. My parents moved around heaps, although my mother doesn’t now. We have a love/hate relationship. She loves me, but I hate her. I have never had a Birthday Card or Christmas Card. She is just a Mum in that she gave birth to me.

At age eight I was adopted out to these white people. They had three children who were a lot older – in their thirties and forties. I get on with them well. They send me Christmas Cards and Birthday Cards. It is good having people like that, but sometimes you know you are not really part of the family. You feel you should not really be there, eg,

‘Come along Lance we’re having a family photo taken’. I have not told them how I feel. They have tried real hard to make me feel part of the family, but it just won’t work.

I got up to Year 11 at School. I got a lot of flak, ‘How come your parents are white?’. On Father and Son Day, ‘Is he the Postman or what?’. It was pretty awkward. It was always awkward. I was always a shy kid, especially among my Father’s friends. ‘Here is my son’. They would look at you. That look. ‘You’re still together?’. I remember waiting for myMotherat her work, which was a bakery. A bloke asked me, ‘Where is your Mum’? He searched for an Aboriginal lady. I wished God would make me white and these people’s son instead of an adopted son.

I still call themMum and Dad. But when I go to my real Mum, I find it real hard to call her my ‘Mum’ because she has just been another lady – OK a special lady. Mum’s Mum [ie adoptive mother] because she was there when I took my first push bike ride and went on my first date.

After Year 11, I got a couple of jobs. I got into heaps of trouble with the Police – drugs and alcohol. I could get my hands on it and escape and release my frustration. I saw Police … their fault aswell as with me being taken away from my family. Slowly that decreased because a couple of cops came to my place, just to see how I was doing and just to talk to me. You can see the effects of stuff, such as alcohol, so I don’t drink anyway. Alcohol took me away from my parents, who are chronic alcoholics. Mum is and Dad was. It took my brother [car accident at 18 years, high blood alcohol reading].

Three years ago I started taking interest in Koori stuff. I decided at least to learn the culture. I did not find the stereotype. I found that we understood what we were and that we were on a wave-length. I made a lot of friends and I am yet to make more. It becomes very frustrating. I am asked about a Koori word and I don’t know. You feel you shouldknow and are ashamed for yourself. I feel Koori, but not a real Koori in the ways of my people.

It is hard to say whether I was better off being taken away because the alternative never happened. I think the people I went with were better off economically and my education was probably better than what it would have been otherwise. I might have ended up in jail. I may not have had two mealsor none and fewer nice clothes and been less well behaved.

If someone tried to remove my kids – over my dead body. I’d pack them up and move them away. Not the shit I’ve been through – no.

Confidential submission 154,Victoria: removed 1974.

22Adoption

There can be little argument that the ‘welfare principle’ should apply in cases of custody of Aboriginal children. The problem, however,is who decides what isinthe best interests of an Aboriginal child and what standards areused in reaching thisdecision (AustralianLawReform Commission1982 page 17).

Overview Adoption is the transfer, generally by order of a court, of all parental rights and obligations from the natural parent(s) to the adoptive parent(s). In Australia, legal adoption is relatively recent. It was first introduced in 1928 in Victoria, for example. Until very recently adoption involved near-total secrecy, partly in deference to the desire of adoptive parents to present the child as their own and partly because of the stigma of illegitimacy which typically attached to adopted children. The birth parents were not entitled to information about the adoptive parents, including the child’s new family name, and there were safeguards to ensure that the birth parents would never interfere in the child’s upbringing. The child was not entitled to information about the birth parents.

Non-relative adoption is a much rarer phenomenon today than it was even 25 years ago. Total adoptions in Australia halved from 6,773 in 1969 to 3,337 in 1980 (Healey 1993 page 30). By 1994-95 the figure had fallen to 535, 42% (224 children) of whom were adopted from overseas (Angus and Golley 1995 page 1). In Victoria in 1971-72, 1,488 children were placed for adoption. Ten years later the number was 287 (Lancaster 1983 page 27). In NSW in 1971-72 the welfare department arranged 3,882 adoptions. By 1991 the number had dropped to 154 (Healey1993 page 30).

The reasons are clear and relate primarilyto the significant reduction in the stigma and legal liabilities of illegitimacy, increased availability of contraception and abortion to control fertility and the availability of social security support for sole supporting parents. There has been a corresponding decline in the placement of Indigenous children for adoption. Moreover, because of the intensive work of Aboriginal and Islander child care agencies and the recognition of the Aboriginal Child Placement Principle, the majority of Indigenous children who are placed for adoption are placed with other Indigenous families.

As the following discussion indicates, however, the best results for Indigenous children – namely, security within their own families and communities or with significant continuing contact – are achieved in those jurisdictions where the ACCP is given legislative status and Indigenous child care agencies are most closely involved in placement decisions.

Adoption and Aboriginal values Aboriginal people’s attitude to adoption differs significantly from that of Torres Strait Islanders. Aboriginal traditional values and Law oppose adoption. It is ‘alien to Aboriginal philosophies’ (Randall 1982 page 346) and ‘incompatible with the basic

tenets of Aboriginal society’ (NSW Law Reform Commission1994page192).

Adoption is alien to our wayof life. It is a legal statuswhichhas the effect of artificially and suddenly severing all that is part of a child with itself. To us this is something that cannothappen eventhoughit has been done (Butler 1989 page 28).

This fact was recognised by the 1991 report of the WesternAustralian Adoption Legislative Review Committee.

It is commonly recognised bythe community thattheadoption of Aboriginal children is alien to traditionalAboriginal child-rearingpractices. It is also acknowledged thatin thepast, numbers of Aboriginal childrenwere removedfrom their families andadopted into white families. The Committee endorses the growing community belief … that thispractice shouldnot continue.

The Committee has thereforerecommendedthat in the few instanceswhen adoption is appropriate for an Aboriginalchild, it should only bebypersons from the child’s community who have the correct kinship relationshiporwhen this is notpossible,by other appropriate Aboriginal person(s) (page14).

The draft policy statement of the NSW Department of Community Services on the placement of Aboriginal children for adoption (dated 1987) makes a similar acknowledgement.

Such a radical severanceofparental ties is however alien toAboriginal culture and it is acknowledgedthat in the pastinappropriateuse of adoptionhas causedgreat suffering for Aboriginal children and theirparents.

Adoption and Torres Strait Islander values Customary adoption is reported to occur in the islands of the Torres Strait, as elsewhere in the Pacific, and among Torres Strait Islander communities on the Australian mainland. It involves the permanent transfer of care responsibilities and is a ‘social arrangement’ which serves to entrench reciprocal obligations thereby contributing to social stability. Traditionally the chosen adoptive family was in the same ‘bloodline’ as the birth family. However, with ‘inter-racial’ marriage now more frequent, adoptive parent(s) may be related only by marriage. There is also a growing practice of giving a child to family friends rather than relatives. As in general Australian law, customary Torres Strait Islander adoption makes the child fully a member of the adoptive family (Ban1993 page 4).

In the eyes of Australian law, customaryadoptions are private adoptions. They are not prohibited but they are not legally recognised either. Difficulties arise in a number of contexts. • The relinquishing family may seek the return of the child, for example when there may have been a misunderstanding as to the permanence or otherwise of the transfer

of care (Ban 1993 page 5).

• The child’s birth certificate will not be amended. The certificate identifies the birth parents rather than the adoptive parents as the parents of the child. When the child obtains a copy, he or she may find out for the first time that his/her ‘real’ name is not the name being used (Ban 1994 page8). • The child’s inheritance rights could become complex and confused, even denied. When a parent dies intestate ‘[d]isputes have arisen between adopted siblings and natural siblings over their parent’s estate’ because the Public Trustee has not recognised the adoption (Ban1994 page 8).

From the perspective of increasingly progressive adoption practice, there are several concerns which would need to be addressed before a recommendation could be made for legal recognition of customary adoption. • A formal assessment of the suitability of the adoptive family has not been made (except, of course, by the relinquishing parents). • The basis of customary adoption is reciprocity rather than the best interests of the child. • The child might be improperly viewed as a chattel. • The child’s family connections are, by custom, kept from him or her.

Islanders have also identified problems with the contemporary practice of adopting a child outside the extended family. Custody disputes may be more prevalent and there are risks of adoptive children marrying kin in ignorance of their natural relationship.

Laws, practices and policies Adoption is effected by a court order in all Australian jurisdictions except Queensland where the adoption order is madeby the head of the welfare department. The welfare department or authorised non-government adoption agency, having secured the informed consent of the birth parent(s) and located and approved a ‘suitable’ adoptive family, assists the adoptive family to apply for an adoption order. Even where parental consent has been obtained, the court must consider relevant matters before making the order. It is not a foregone conclusion. Where the birth parent(s) have not consented the court may, in defined circumstances, dispense with her (or their) consent. The practices of both adoption agencies and courts are relevant, therefore.

Although all Australian social welfare ministers and administrations endorse the Aboriginal Child Placement Principle in the adoption context, the statements and implementation of the Principle vary significantly. There are three basic approaches. 1.Incorporation of the ACPP only in policy directives. 2.Incorporation of the ACPP in legislation.

3.Incorporation of both the ACPP and the role of Aboriginal child care agencies in legislation.

Recognition in policy only The ACPP is incorporated at the level of policy only in New South Wales, Tasmania, Western Australia and Queensland. Policy directs officers of the department recommending a placement. It does not necessarily direct the work of non-government adoption agencies. Unlike legislation it cannot direct the court ultimately making the adoption order. Moreover, the NSW policy has been in draft form since 1987 and has never been formally adopted.

The NSW draft policy does not set out the ACPP. It merely directs that Aboriginal children surrendered for adoption be placed with Aboriginal families. In Tasmania the policy restates the ACPP in the form adopted by the 1986 Social Welfare Ministers’ Conference. It further directs departmentalofficers that the Aboriginal Family Support and Care Program is to be involved in the assessment and planning for all Indigenous children.

In WA the policy which is relied on to address adoption applies clearly only to the situation where the child is in need of care and protection and substitute care is being considered. It sets out the ACPP and requires that an Aboriginal child only be placed in a non-Aboriginal family or institution with the approval of the Director General. Such a placement ‘should contribute to the best possible retention of the child’s relationship with his parents and community, including regular contact’. The policy directs departmental officers to consult the Aboriginal child care agency (Yorganop) about placement issues in the metropolitan area.

Queensland legislation does not reflect the ACPP. The Adoption of Children Act 1984 (Qld) simply directs the Director, who makes the adoption order, to place a child from any ethnic background with an adopter from a similar background, unless such an adopter is unavailable or the welfare and best interests of the child, in the Director’s opinion, would not be best served by adoption in a family of the same background (section 18A). The Act does not require preference to be given to the child’s extended family, with further options in order being another person in the correct relationship to the child, another member of the child’s Indigenous community and, finally, another Indigenous family as the ACPP requires. Regulations made in 1988 direct attention to the ability of the prospective adoptive parents to ‘develop or maintain the child’s indigenous ethnic or cultural identity’ as one criterion for assessing the suitability of particular adoptive parents (Schedule 6).

Queensland departmental policy spells out the ACPP preferences in a way very similar to that of WA. Unlike the WA policy, however, it specifically refers to adoption as raising issues distinct from child protection. Thus, in the case of a proposed relinquishment for adoption, the parent(s) is to be counselled by an Indigenous worker

and counselling is to ‘explore alternatives to adoption, including family support, custody and guardianship options’. There is no provision for the involvement of Indigenous agencies.

The survey of Queensland welfare authorities commissioned by the Royal Commission into Aboriginal Deaths in Custody found that the Aboriginal Child Placement Principle had not been fully or comprehensively implemented across Queensland due largely to the lack of proper monitoring. There was concern that some departmental officers were unaware of the policy (O’Connor 1990).

Statutory recognition of ACPP The remaining States and the Territoriesspell out the Aboriginal Child Placement Principle in their adoption legislation. South Australia, the Northern Territory and the ACT express a preference for placement other than adoption for Indigenous children.

In SA the court must be satisfied that adoption is preferable to guardianship in the best interests of the child before making an adoption order. This provision makes adoption an order of last resort. Once it has been decided that adoption should proceed, the order must be made in favour of a member of the child’s Aboriginal community who has the correct relationship with the child.Only if there is no such person willing and approved to adopt the child can an order be made for adoption by some other Aboriginal person. If the court intends to authorise the adoption of an Aboriginal child by a non-Aboriginal person, it must be satisfied that there are special circumstances and that the child’s cultural identity will not be lost as a result (Adoption Act 1988 section 11). The relinquishing parent can ensure that a relative adopts the child by limiting consent to adoption only by a relative (section 15(4)). Even where consent is general, however, the ACPP in section 11 will apply.

The ACT legislation prevents an adoption order being made at all in the case of an Aboriginal child unless the court is satisfiedthat it is not practicable for the child to remain in his or her parent’s custody or in the custody of a ‘responsible person’ who is a member of the child’s Indigenous community. The court also has to consider whether the choice of adoptive parents has taken into account both the desirability of the child being in the custody of an Indigenous community member and the desirability of the child being able to keep in contact with his or her birth parents and extended family and his or her entire Indigenous community (Adoption Act 1993 section21).

The NT provision is very similar while additionally making explicit reference to Aboriginal customary law (Adoption of Children Act 1994 section 11). The court has a discretion to determine that custody within the extended family or with people who have the correct relationship with the child is not consistent with the welfare and interests of the child. The Act sets out the considerations relevant to the exercise of this discretion (Schedule 1). They include the principles that it is preferable for children to be placed in families having the same ethnic and cultural origins as the birth parent and, with respect to Aboriginal children, ‘the desire and effort of the Aboriginal community to preserve the

integrity of its culture and kinship relationships’.

Statutory recognition of ACPP and role of AICCAs Victoria goes further than the other States in providing more comprehensively for the involvement of Aboriginal organisations in the decision-making on adoption placements for Indigenous children. Indeed, Victoria incorporates further features which the Inquiry recommends should be adopted universally.

The Victorian Adoption Act 1984 has been promoted by the Secretariat of National Aboriginal and Islander Child Care (SNAICC) as a model for the rest of Australia. The quality of this Act owes a great deal to the efforts and pioneering work over many years of the Victorian Aboriginal Child Care Agency. 1.The Act itself states that ‘adoption is absent in customary Aboriginal child care arrangements’ (section 50(1)). 2.The relevant provisions are said to be enacted in recognition of Aboriginal self-management and self-determination (section 50(1)). 3.The court is not to make an adoption order in respect of an Aboriginal child unless satisfied,

• that the consenting relinquishing parent(s) has received counselling from a gazetted Aboriginal agency or has expressed in writing the wish not to receive counselling,

• that the wishes of the parent(s) regarding the religion, race or ethnic background of the proposed adoptive parents have been considered in the selection of those parents, and

• that the proposed adoptive parents are members of the same Aboriginal community as the relinquishing parent(s) or one of them is. 4.If a member of the same community is not ‘reasonably available’, then the adoptive parents, or one of them, must be a member of an Aboriginal community. If such parent(s) is not reasonably available then another family can be approved, provided a gazetted Aboriginal agency approves of the choice. 5. The relinquishing parent’s consent and the court’s adoption order can be made on the condition that the birth parent(s), other family and other community members have a right of continuing access to the child (sections 37 and 59; seealso section59A). 6.The Department is obliged by law to inform an Indigenous child of his/her Aboriginality when he/she reaches 12 years of age (section 114). The role of gazetted Aboriginal agencies, notably the Victorian Aboriginal Child Care Agency, is further strengthened by departmental policy (Standards in Adoption 1986). This requires both departmental and non-governmental adoption agencies to maintain consultation with the Aboriginal agency during all stages in the placement of an

Aboriginal child. The Aboriginal agency must be consulted before any placement of an Aboriginal child, even when the proposed adoptive parents are Aboriginal (something left open by the Act). Finally, the policy makes clear that the Aboriginal agency has a right of veto over the proposed adoption of an Aboriginal child by non-Aboriginal applicants.

Numbers and effects The following table summarises the data available on the adoption of Indigenous children in each State and Territory during the1990s. In the five year period at least 60 Indigenous children were adopted (full SA figures are not available). One in every three of these children was adopted by a non-Indigenous family.

Adoptions of Indigenous children between 1 July 1990 and 30 June 1995

StateNumber of childrenAdoptive families

NSW35

16 to non-Indigenousfamilies + 1 to an unknown family (ie ethnicity unknown)

Victoria0 WA7 1 to a non-Indigenousfamily Queensland* 151 to a non-Indigenousfamily SA? 1 to a non-Indigenousfamily NT3 1 to a non-Indigenousfamily Tasmania0 ACT0

Source: NSW Law Reform CommissionResearch Report ‘Aboriginal Child Placement Principle’ 1997, AppendixL. *Queensland data supplied to theAustralianInstitute of Health and Welfare shows14 adoptionsof Indigenous childrenonly eight of whom were adoptedby Indigenousfamilies. However, Queensland states the information in the table is more reliable.

The reason for placement with non-Indigenous families is known for only four of the 16 NSW adoptees so placed. All four were State wards. The Aboriginality of two of the children was only traced late in the adoption process and their placement with non-Indigenous families followed consultation with Aboriginal workers. The other two were aged 16 and 18 years respectively, chose not to identify as Aboriginal and consented to their own adoptions (NSW Law Reform Commission 1997). The birth parent(s) of the South Australian child adopted into a non-Indigenous family consented to the adoption. The Queensland child was placed with a non-Aboriginal family at the request of the Aboriginal birth mother who has continuing contact with her child (NSW Law Reform Commission 1997).