Part 3 Consequences of Removal Chapter 10 Children’s Experiences

In 1994-95 alone, 12 Indigenous children were adopted by non-relatives. Five of these children were adopted by non-Indigenous people. One non-Indigenous child was

adopted by an Indigenous person (Angus and Golley 1995page 24).

The harm which can accrue to Indigenouschildren in ‘inter-racial’ adoptive families has been recognised for almost two decades in Australia.

The problemsof identity confusion and alienation appear to berelated to those situations which place the child in limbo.On the onehand thechild senses he is not fully acceptedby the white community intowhichhehas been adopted,and on theotherhandhe is isolated from hisown Aboriginal community.What tends to fill the gap thenof isolationfrom his own community are the often negative stereotypes of Aboriginalpeople commonly portrayed in the media, literature and in some instancesby theadoptivefamily. Through constant exposureto this conflictthe child inevitablybecomes alienated from both cultures(Atkinson1983page 165).

There is evidence, both from within Australia and from comparable countries, that inter-racial adoptions are more prone to breaking down than intra-racial adoptions. The South Australian Aboriginal Child Care Agency estimated in the late 1980s that 95% of Aboriginal child/non-Aboriginal parents adoptions broke down and that 65% of these breakdowns occurred during adolescence or later teenage years ‘when their adoptive parents were unable to cope with their problems of alcohol abuse, offending behaviour, drug abuse, depression, self-destructive behaviour, emotional stress and identity crisis’ (Butler 1989 page 29). Especially predictive of future breakdown caused by the child’s distress are parental denial or denigration of the child’s Aboriginality, racial prejudice including harassment and taunts faced by the child at school which is not treated seriously by the parents and denial of contact between the child and Aboriginal role models (Atkinson 1983).

Aboriginal childrenwho are broughtupby white families frequently face identity problems when they reach adolescence.White parents cannot understand their experiencesand may reject the childor fail to helphim resolvequestions of identity and conflict betweenblack and white cultures (Homes for Blacks 1976page 161).

The case of James Savage (birth nameRussell Moore) is illustrative.

Savagewas taken from his youngAboriginalmother shortly after birth[in1963] … Unknown to hisAboriginal family,when onlyfour days old, he was placed withtheSavages,awhite Australian couple,whosubsequently adoptedhim and then moved to Californiawhen Savage was six and to Florida several years later. His adoptive family returned toAustralia when Savage was seventeen, leavinghim to fend for himself in theUnited States. By thetime of his murder convictionhe alreadyhad a considerable adult and juvenilerecorddatingback to his early teens, as well as a drug and alcoholproblem.

[Family friends testifying at his trial stated] that Savage was disciplined more thanhis adopted brother and sister, that he seemed afraidof his adoptive father, and that he seemed out ofplace as a black personamong whites … [Psychiatric expertevidence was given to the effect that hewas substantially impaired emotionally and hada personality disorder to whichdrug and alcohol abuse had contributed](Cronin 1992 page 15).

In possession of this evidence, the jury which convicted James Savage recommended life imprisonment in preference to the death penalty. He remains in prison in Florida, not to be released for 25 years.

Evaluation Self-determination The Victorian model gives Aboriginal agencies an entitlement to be consulted at all stages in the consideration of adoption of an Indigenous child and a right of veto over a proposed placement with non-Aboriginal adoptive parents. It is the strongest implementation of the principle of self-determination in adoption practice. Other jurisdictions recognise the importance of consultation with Indigenous agencies and, provided those agencies are adequately resourced, could readily take the additional step of entrenching the role of those agencies in the placement of Indigenous children.

A difficulty may arise in relation to children not identified as Indigenous by the relinquishing parent. The Aboriginal Child Placement Principle and the involvement of Indigenous agencies do not come into play until a child relinquished for adoption is identified as Indigenous. In Tasmania there is no formal definition of Aboriginality for this purpose. The department relies on the Aboriginal Family Support and Care Program to identify Aboriginal children. This is problematic, however, when a relinquishing parent does not identify the child as Aboriginal and also insists on the confidentiality of the adoption process. This would make it impossible to call on the Program for advice and assistance.

In Queensland, Victoria, Western Australia, South Australia (if, as expected, the definition in the Children’s Protection Act 1993 (SA) is used) and the ACT the familiar three-pronged definition of ‘Indigenous’ is used:a person is Indigenous if he or she is of Indigenous descent, identifies as Indigenous and is accepted as such by the Aboriginal or Torres Strait Islander community. In the case of a young child or baby, identification by the parent is substituted for self-identification. In Queensland, an Indigenous agency may be consulted, but only where there is no parent or other relative to provide the identification. In light of the relinquishing parent’s right to confidentiality, this means that an Indigenous child will not be treated as such where the relinquishing parent does not identify as Indigenous herself or himself or does not identify the baby as such or where a non-Indigenous relinquishing parent does not notify the department that the child’s other parent is Aboriginal or a Torres Strait Islander.

The practical problems are not entirely overcome by the alternative approach taken in NSW and the NT. There, self-identification and identification by the relinquishing parent are not aspects of the definition of Aboriginality. Instead a child is Indigenous if descended from an Indigenous person. The difficulty remains that the department often relies on information from the relinquishing parent as to the heritage of the child.

Legislation could require the department or non-government adoption agency to establish to the best of its ability the cultural heritage of every child surrendered for

adoption. This positive duty would authorise the department or agency to breach the mother’s confidentiality to the extent needed to trace her own and the father’s background, possibly by making enquiries through an Aboriginal Children’s Service.

Non-discrimination Failure to appreciate different child-rearing values in Indigenous societies leads non-Indigenous social workers and others to dismiss as neglectful the common practice of shared parenting. In the context of adoption it also leads adoption agencies to ignore the rights of Indigenous extended family members to have a say in the placement of the child and to dismiss the possibilities of placement orders less permanent than adoption in favour of the extended family and of adoption by an extended family member.

In Aboriginal culture, children are the responsibility of the extended family and not just the biological parents alone. Even under normal circumstances the extended family plays an important role in the upbringing of Aboriginal children. Where the biological parents cannot or do not provide for their own children’s care, the maintenance of care is guaranteed through the extended family structure (WA Adoption LegislativeReview Committee1989 page 24).

The exclusion of the unmarried biological father and his family from the adoption decision, especially when the father’s relationship with the birth mother was publicly declared, is viewed with dismay. Adoption legislation historically only required the consent of the biological father if he was legally married to the birth mother. If not, the biological father need not even be informed of the child’s relinquishment for adoption.

The Australian Law Reform Commission recommended in 1986 that Aboriginal customary law marriages should be recognised for the purpose of requiring the consent of both parties to the adoption of their child (page 196). Traditional marriage now entitles the biological father to have a say in Victoria, SA and the NT. However, no jurisdiction formally provides for other family members to be consulted on the relinquishment decision.

Beforemy son’s birthand adoption I hadbeen living in a defacto relationship with the child’s Mother Gloriasince [early 1990] through till [early 1992]during which time we had a sontogether named Peterand upon her leaving me in[early1992]to live in a 2ND defacto relationship … shewas alreadypregnantwithmy 2nd son Andrew …

At the time of my 2nd son’s birth and adoptionI had no knowledge of either his birth nor his adoption; because [two weeksafter his birth] duringa private discussion with Gloria she informed me that the child haddied,thereforeI feel wilfully& knowingly she deprived me of the knowledgeandatthe timethe choice inthe matter of adoption, deliberately lying to me for her own ends without consideration for family ties between Peterand Andrew, being full brothers.

If,at the time of birth, I had been informedofAndrew’s existenceand that Gloria did not intendto keep him, then I myself wouldhaveappliedforfull custody of my son …

Confidential submission 9,Queensland: father Aboriginal,mothernon-Aboriginal; Andrew was adopted by an Aboriginalfamily.

The Queensland Department advised the Inquiry that,

… in the case of a childwhose parentswerenotmarried toeachother at the conception of the child, and in relation towhom there is nootherguardianbyvirtue of s.6of the Act, the consent requiredfor the adoptionof the child is thatof thebirth mother.

However, this is not to say that the birthfather isnot considered and consultedby theDepartment in relation to the custody and guardianshipof the child.

Whereverpossible, theDepartment attempts to ascertain the identity of the birth father of the child, and what hiswishes are in relation to the child’s future. The identity of the birthfather is, however,often totally dependant on whether thebirth motherwishes to, or will, identifyhim. Birth mothersare encouraged to discuss this with the birthfatherof their child …

The informationforms [received by the Department prior to approvalof Andrew’s adoption] contained thebirth father’s name and the information that thebirth motherhad not informed the birth father about thebirth. Theforms also contained the information thatthe birth motherhad toldfamily and friends that the baby haddied.The forms donotspecificallymention whether the birth motherhadoriginally told thebirthfather about thepregnancy or whether she intended to tell the birth fatherhimself that the babyhad died.

Thebirth father was not contacted about thechildor the adoption(document on file, confidential submission 9).

The full involvement of Indigenous child and family service agencies in placement decision-making is the best safeguard of equity for Indigenous children and their families. The entrenchment in legislation of the Aboriginal Child Placement Principle, with its declaration that the best interests of Indigenous children are typically best served by their remaining in the Indigenous community, preferably in their own families and communities, would further protect them fromthe potentially discriminatory effects of placement in non-Indigenous families.

The assessment of prospective Indigenous adoptive families is another area in which discrimination is likely to occur. The qualifications and procedures applying to prospective adoptive parents can deter and even disqualify a high proportion of Aboriginal adopters.

It is essential that the roles of recruiting, assessing, training and supporting Indigenous adoptive parents and, in rare cases where it is in the child’s best interests,

non-Indigenous adoptive parents for an Indigenous child are taken on by Indigenous community-based children’s and family services agencies. The following summary of Indigenous concerns raised at the First Australian Conference on Adoption in 1976 can be qualified 20 years later by reference to departmental cross-cultural training initiatives and employment of Indigenous officers. However the central analytical point remains valid.

Current adoption law andpractice reflects the values of white professional middle classsociety and is totally unresponsive tothe needs of Aboriginal children requiring care. Criteria adoptedfor the selection of parentsdisqualifymost Aborigines and reflect underlyingvalues and assumptions which areoftendiametrically opposed to those characterising Aboriginalsociety. For the Aboriginal childgrowingup in a racist society, what is most needed is a supportive environment where a child can identify as Aboriginal and get emotionalsupportfrom otherblacks. The supportive environment that blacks canprovide cannotbe assessedbywhites and isnot quantifiableorlaid down in terms ofneat, easily identifiable criteria. Criteria adoptedbySocial Welfare Department which relate to wealth,material possessions and employment reflect ‘standards’ in the dominant society. Such standards arenotaccepted by blacks and are not considered tobe adequate substitutes for love and unqualified acceptanceas an Aborigine (Homes for Blacks 1976 page163).

Aboriginalpeople maintain that they are uniquelyqualified to provide assistance in the care of children. They have experiencedracism, conflicts in identity betweenblack and white andhave an understandingof Aboriginal life-styles … Thesepeople … are in a uniqueposition to understand theneedsofAboriginal childrenand have a breadthof experience and empathy with Aboriginal children that fewprofessional social workers could claim to have … Thus controlof placement of Aboriginal childrenby blacks should not be dependenton blacks possessing white man’squalifications, but shouldbe inrecognitionof theirexperiences which enable themto determine what is in the best interestsof each child(Homes for Blacks 1976 page164).

Legal marriage between the adoptive parents was long a pre-requisite and remains so in some jurisdictions. The requirement has been relaxed in NSW by treating the traditionally married couple as de factos (section 19) and in Victoria (section 11), SA (section 4) and the NT (section 13) by recognising tribal or traditional marriage as qualifying the partners to adopt.

The standard application procedure usually includes ‘making application in the approved form’ and paying an assessment fee.

First,few aboriginalfamilies apply through theformal channels for adoption of a child. The procedurefor applying to adopt or foster a childisunnecessarily bureaucratic and aborigines are alienatedby the processofform filling,numerous interviews and home visits. Theyobject to the impositionofwhite middle class values and standards imposedby socialwelfare officers, which produce in them feelings of inadequacy and inferiority.

Second, the criteria adopted in eachof the states reflect valuesof the dominant society and are often indiscriminantly applied to all personsseeking to adopt or foster a child,whether the child is whiteor of racial origin.

The criteria are alien to aboriginal values and lifestyle and few aboriginal familiesmeet them all (Sommerlad1977 page 170).

A focus on Aboriginal values and practices can neglect the quite different values and customs of Torres Strait Islanders. It is potentially discriminatory to include Torres Strait Islanders, in legislation, policy and practice, under the rubric ‘Aboriginal’. Their different values are less likely to be accorded respect.

Cultural renewal Children are the most precious of cultural resources. Adoption practice which emphasises their retention in their communities will best enable those communities to secure their cultural survival. The Aboriginal Child Placement Principle directs adoption agencies to prefer people who have the appropriate cultural relationship with the child.

Coherent policy base Adoption practice in relation to Indigenous children needs to be consistent with Indigenous family welfare practice generally. There remain significant differences within jurisdictions in relation to child welfare and adoption on key matters such as whether the Child Placement Principle is entrenched in legislation and what role is played by Aboriginal and Islander child care agencies. In NSW for example the Principle is entrenched in welfare legislation but not in adoption legislation. In South Australia gazetted Aboriginal agencies play a role in welfare placements but not in adoption placements.

Adequate resources Two key resource issues arise in this context. The mostsignificant is the resourcing of Indigenous agencies, • to consider the situation of each child referred fully: including thorough research into the child’s and parents’ background and family and community connections, • to recruit, train and provide continuing support to prospective Indigenous adoptive parents, • to counsel prospective relinquishing parents: including tracing the child’s father and his family to ensure they are consulted and being able to access family support information as needed.

As discussed in Chapter 21, AICCAs are inadequately resourced to perform these roles as effectively as needed.

The second resource-related issue is that of the training provided to adoption decision-makers, notably departmental officers, workers in non-government adoption agencies, judges and, in Tasmania, magistrates. All require thorough induction in the principles underlying the legislation and departmental policy relating to the placement of Indigenous children. The skills needed by the departmentalofficer and adoption agency

include recognising an Indigenous child, knowledge of local Indigenous culture and family relationships, ability to involve relevant Indigenous agencies from the start of the process and through all stages, sensitivity to the impact of the history of forcible removals on Indigenous people’s contacts with welfare officers, and a commitment to the principle of self-determination. Judges dealing with Indigenous adoptions, like judges in other situations involving Indigenous people, require training in Indigenous culture, values and relationships as well as Indigenous history, especially the history and impacts of forcible child removal, if they are to perform their roles adequately.

Conclusion Adoption is contrary to Aboriginal custom and inter-racial adoption is known to be contrary to the best interests of Aboriginal children in the great majority of cases. The table above shows that adoption of Indigenous children has been reduced to or almost to nil in jurisdictions where the AboriginalChild Placement Principle is entrenched in legislation and welfare departments and adoption agencies are required to work with Aboriginal and Islander child care agencies when placing Indigenous children. Where the Principle finds its only recognition in departmental policy, adoption of Indigenous children continues.

Graham

I was adopted as a baby by a white European couple. They were married at the time. They couldn’t have children and they’d seen the ads about adoption and were keen to adopt children.

There were seven of us altogether. They adopted four people and had two of their own. The first adopted person was Alex. He was white. The next one down from that is Murray who was American Indian. Next down from that was me, Graham. The next person down from that was Ivan and they were the five who were adopted into this white family. The next two after that were their own.

My adopted mother loved children and that’s why she wanted to do this so-called do-gooder stuff and adopt all these children. After that, from what I can gather is she did the dirty on my adopted white father and they broke up. He walked out and started his own life, and she was left with seven children. Alex was 10 years older than me and he had to take on many of the roles.

Then from there on in, one by one we were kicked out at the ages of 13. It wasn’t her own family members [the two youngest] that were kicked out. It was the five that were adopted. I must say Alex never got kicked out, although he suffered. He had to look after us and he couldn’t go out and do what a teenager did and go roller skating or … So he

never got kicked out because she needed him to look after us basically.

Twelve, thirteen was the age at when she decided like we’re uncontrollable, we’ve got this wrong with us, we’ve got that wrong with us, we’ve got diseases, we’re ill all the time, we’ve got mental problems, we’ve got this, we’ve got that. She used to say that to us, that we had all these things wrong with us.

Murray was the first to go. When he turned 13 he got booted out because she made out that he had this wrong with him again. He stole things, he did this, he did that. He went to an institution. So seeing that we’re Indigenous we all had the doubleeffect: one was adoption and one was institutionalisation.

They took Murray. He went to [a Queensland boys’ home]. Murray got caught up in the prison scene because he started stealing and whatever. He was angry. He was in the Homefor two years. He got involved in a few stealings and he had to go to Westbrook institution which is a lock-up.

There’s a difference between care and protection and care and control. Where Murray first went into care and protection and then he had to go into care and control.

After that the next person to go wasn’t me. I wasn’t quite 12, 13, the uncontrollable age. Ivan, who was the one aged below me, wasn’t adopted properly. He was sort of fostered in a way. There was a legal technicality there. So because he wasn’t adopted properly, another family took him over and he’s still with them today [now an adult].

So I didn’t realise my time was coming, but basically when I hit the ages of 12 and 13 I was next to go. She met this new fellow. She wouldn’t marry him until I was out of the scene. She basically said, ‘Oh Graham is uncontrollable’. So she got rid of me as best way she could without her feeling that she was doing wrong.

Confidential evidence441, New South Wales: Graham wasplaced in short term respite carebut hisadoptive mother didnot retrieve him. The court stepped in andanorder for care and protection was made in1985. He wasplaced in the same boys’ homeas his brother Murray. He was13 years old.He remained in the Homeuntil he turned18.Having failed almost every subject in secondary school,Graham is now about to complete a university degree.

I don’t want to have kids, not in this society. ‘Cause I reckon it’s cruel to have a child in this society. If I was taken away, my mother must have been taken away from her mother, and if I was taken away from my mother, of course my child would be taken away from me.

Confidentialevidence 166, South Australia: woman fostered as a baby in the 1960s.

23FamilyLaw Family law plays a role in the ‘placement and care’ of Indigenous children when parenting disputes come before the FamilyCourt of Australia (except in WA where the State Family Court deals with all family law matters) or those lower courts, presided over by magistrates, which have power to deal with them. The parents do not have to be married: children born outside marriage are treated in the same way as children born within a marriage.

A parenting dispute is typically between the child’s two natural parents. The parents may disagree where the child is to live (formerly ‘custody’ and now ‘residence’) or whether the other parent should be entitled to see the child and, if so, how often (formerly ‘access’ now ‘contact’). Disputes which could result in an Indigenous child being ordered (‘residence’ order) to live in a non-Indigenous family and community are usually those where one parent is Indigenous and the other is not. Alternatively, the Indigenous parent’s mother, sister, brother, new partner or other relative may be in a dispute with the child’s non-Indigenous parent or family.