6. Aboriginal and Torres Strait Islander children and the best interests principle

 

Introduction

  1. 6.1 The previous chapter considered the best interests and rights of the child under the Adoption Act 1984 (Vic), including how the Act aims to ensure that the best interests
    and rights of the child are the foremost consideration. It also sought community views
    on how the Adoption Act might be amended to improve processes and decision making in adoption.
  2. 6.2 This chapter focuses on how the Adoption Act seeks to provide for the best interests of Aboriginal and Torres Strait Islander children through the incorporation of an Aboriginal and Torres Strait Islander Child Placement Principle. It also discusses the special ability for parents to add conditions on consent to an adoption of an Aboriginal child or Torres Strait Islander child, providing for specified people to have contact with the child after adoption.
  3. 6.3 Some people consider that special provisions are unnecessary and that the provisions for adoption should be the same for all children.1 This chapter explores the reasons for the special provisions for the adoption of Aboriginal and Torres Strait Islander children, as well as the opposing arguments for making adoption law in Victoria the same for all children.
  4. 6.4 The chapter poses questions to the community about whether the provisions in the Adoption Act provide appropriately for the best interests of Aboriginal and Torres Strait Islander children. In particular, the Commission will be seeking the views of Aboriginal
    and Torres Strait Islander people and representative organisations.

Background

  1. 6.5 The rates of adoption for Aboriginal and Torres Strait Islander children are very low. In 2014–15, only one Aboriginal or Torres Strait Islander child had an adoption order finalised anywhere in Australia.2
  2. 6.6 Although adoption is used very rarely in Victoria for Aboriginal and Torres Strait Islander children, this is a matter of policy and practice rather than a legislative requirement.
  3. 6.7 Although the Adoption Act provides additional requirements for the adoption of Aboriginal and Torres Strait Islander children, it does not prevent it or provide an explicit presumption against it. This stands in contrast to the approach taken in some other Australian jurisdictions, which is discussed below in [6.65]–[6.70].
  4. 6.8 In Victoria, adoption has not been the preferred option for children in the child protection system, irrespective of their cultural background. There has been a focus on family preservation and reunification where possible. The Commission understands that where neither family preservation nor family reunification are possible, there has been a policy preference for permanent care (legally finalised through a permanent care order) rather than adoption.
  5. 6.9 Recent amendments to the Children, Youth and Families Act 2005 (Vic) (CYF Act) raise the possibility that there may be an increased use of adoption for children from child protection. These amendments and the interaction between the CYF Act and the Adoption Act are discussed in Chapter 4.
  6. 6.10 At 30 June 2015, Victorian Aboriginal and Torres Strait Islander children were 12.9 times more likely to be in out-of-home care than non-Aboriginal or Torres Strait Islander children.3 Any general shift towards increased adoption for children from child protection would disproportionately affect Aboriginal and Torres Strait Islander children.
  7. 6.11 Statutory adoption is generally not viewed as a culturally appropriate option for Aboriginal and Torres Strait Islander children. A future shift in policy and practice in Victoria could result in increased adoption for Aboriginal and Torres Strait Islander children without any changes to the Adoption Act. The fact that there is no legislative impediment to the adoption of Aboriginal and Torres Strait Islander children, combined with the high rates of Aboriginal and Torres Strait Islander children in out-of-home care in Victoria, highlights the need to ensure that any provisions relating to the adoption of Aboriginal and Torres Strait Islander children are robust and appropriate.

Aboriginal and Torres Strait Islander Child Placement Principle

  1. 6.12 The Aboriginal and Torres Strait Islander Child Placement Principle exists in varying forms in laws across Australia. However, the way it is described, and the elements included, are not entirely consistent across the various laws.
  2. 6.13 Frequently, a single child placement principle that applies to both Aboriginal children and Torres Strait Islander children is used. At different times this is called the Indigenous Child Placement Principle4 or the Aboriginal Child Placement Principle.5
  3. 6.14 In some cases, two separate principles are provided to accommodate the differences between Aboriginal and Torres Strait Islander concepts in relation to family and child care. In this situation they are distinguished as the Aboriginal Child Placement Principles and the Torres Strait Islander Child Placement Principles.6
  4. 6.15 For clarity, the remaining discussion uses the term ‘child placement principle’, unless referring to a term used in a specific document or law. In that case the term used there
    is also used here. This chapter also includes discussion and a question about whether there should be separate child placement principles for Aboriginal children and
    Torres Strait Islander children.
  5. 6.16 In addition to the fact that the child placement principle is named differently in different pieces of legislation, its content is not entirely consistent. The next section traces the development of the concept and identifies key elements of the concept.

 

Development of the child placement principle

  1. 6.17 The development of an Aboriginal and Torres Strait Islander child placement principle
    was driven by Aboriginal and Torres Strait Islander people and Aboriginal and Torres Strait Islander child care agencies in the 1970s and 1980s. These groups and individuals
    wished to:
  • address the growing and disproportionate number of Aboriginal and Torres Strait Islander children in out-of-home care or adopted by people who did not have
    a cultural connection with them
  • reduce rates of removal of Aboriginal and Torres Strait Islander children from their family and community
  • preserve Aboriginal and Torres Strait Islander children’s connection to culture, family and community
  • ensure that if a child is separated or removed from their family, the links with family, culture and community are actively maintained.7
  1. 6.18 In 1984, the Council of Social Welfare Ministers endorsed a recommendation about the placement of Aboriginal children for adoption.8 This was supported by all states and territories. The recommendation was that:

in the adoptive placement of an Aboriginal child a preference be given, in the absence
of good cause to the contrary (and after considering the wishes of the consenting parent to confidentiality and anonymity) to a placement with: other members of the child’s Aboriginal community who have the correct relationship with the child in accordance with Aboriginal customary law; other approved Aboriginal couples.9

  1. 6.19 It was not recommended that the child placement principle be enacted through Commonwealth legislation. Since that time, states and territories have taken varying approaches to the implementation of the child placement principle. In Victoria, a version of the Aboriginal and Torres Strait Islander child placement principle is included in both the Adoption Act and the CYF Act.10 The two versions are not identical.

Bringing Them Home

The Stolen Generations and the apologies

  1. 6.20 In 1997, the Human Rights and Equal Opportunity Commission published Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Bringing Them Home).11 It considered the past laws, practices and policies which had 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. It examined the then-current laws, practices and policies with respect to the placement and care of Aboriginal and Torres Strait Islander children, and advised on changes required, taking into account the principle of self-determination by Aboriginal and Torres Strait Islander peoples.
  2. 6.21 ‘Stolen Generations’ is the name commonly given to the generations of Aboriginal and Torres Strait Islander children removed from their families. Bringing Them Home indicated that it was not possible to state with any precision how many children had been forcibly removed but that it was possible to ‘conclude with confidence that between one in three and one in ten Indigenous children were forcibly removed from their families and communities in the period from approximately 1910 until 1970’.12
  3. 6.22 On 17 September 1997 the Legislative Assembly of the Parliament of Victoria issued an apology to the Aboriginal people for the past policies leading to the removal of Aboriginal children from their families and communities.13 The debates on the motion included acknowledgment of the ongoing effects of the policy and practice, and commitments
    ‘to make sure that such events do not take place again’.14
  4. 6.23 An apology was also issued in the Australian Parliament on 13 February 2008.15
  5. 6.24 The policies and legislation which resulted in the Stolen Generations were seen by law and policy makers as being in the best interests of the child at that time.

While there was no officially defined ‘best interests principles’ at the time, it is clear from official records that placing ‘part-white’ Aboriginal children with non-Indigenous people and institutions was seen as providing these children ‘with a better chance in life’ and therefore acting in their benefit. Aboriginality was one of the criteria for child removal decisions.16

  1. 6.25 This view is now discredited. The subsequent apologies recognised that these policies and actions were not in the best interests of the children involved. The majority of Victoria’s Aboriginal and Torres Strait Islander people have experienced the consequences of these practices, either personally or through their extended families.17 The ongoing impact of family disruption and child removal on contemporary Victorian Aboriginal and Torres Strait Islander families has been widely acknowledged.18

Recommendation on child placement principle

  1. 6.26 As discussed above, the child placement principle existed prior to Bringing Them Home. Because the report is such a key document in considering how best to provide for Aboriginal and Torres Strait Islander children, many people think the child placement principle originates from the recommendations in Bringing Them Home. It is important
    to consider what the report said about the child placement principle and the adoption
    of Aboriginal and Torres Strait Islander children.
  2. 6.27 Bringing Them Home endorsed a version of the child placement principle, which it described as the Indigenous Child Placement Principle. It recommended that national standards legislation applicable to all Aboriginal and Torres Strait Islander children should provide that ‘when an Indigenous child must be removed from his or her family, including for the purpose of adoption, the placement of the child, whether temporary or permanent, is to be made in accordance with the Indigenous Child Placement Principle’.19
  3. 6.28 The report recommended the following order of placement preference:
  4. 1. placement with a member of the child’s family (as defined by local custom and practice) in the correct relationship to the child in accordance with Aboriginal or
    Torres Strait Islander law
  5. 2. placement with a member of the child’s community in a relationship of responsibility for the child according to local custom and practice
  6. 3. placement with another member of the child’s community
  7. 4. placement with another Indigenous carer.20
  8. 6.29 Where placement is with a non-Aboriginal or Torres Strait Islander carer, the following principles were recommended: ‘family reunion is a primary objective; continuing contact with the child’s Indigenous family, community and culture must be ensured; and the carer must live in proximity to the child’s Indigenous family and community’.21
  9. 6.30 The report also recommended that placements of an Aboriginal or Torres Strait Islander child should not be made:

except on the advice and with the recommendation of the appropriate accredited Indigenous organisation. Where the parents or the child disagree with the recommendation of the appropriate accredited Indigenous organisation, the court must determine the best interests of the child.22

Recommendation that adoption be a last resort

  1. 6.31 Bringing Them Home considered that adoption should be a last resort for Aboriginal and Torres Strait Islander children and that culturally appropriate alternatives to adoption should be preferred.23 Its recommendation headed ‘Adoption a last resort’ was that:

an order for adoption of an Indigenous child is not to be made unless adoption is in the best interests of the child and that adoption of an Indigenous child be an open adoption unless the court or other decision maker is satisfied that an open adoption would not be in the best interests of the child. The terms of an open adoption order should remain reviewable at any time at the instance of any party.24

Child placement principle in the Adoption Act

History

  1. 6.32 The Adoption Act, which predates Bringing Them Home, includes a version of the child placement principle.25
  2. 6.33 This provision was introduced by the 1984 Act. The 1964 Act did not provide any specific reference to adoption of Aboriginal or Torres Strait Islander children.
  3. 6.34 The Second Reading Speech in the Legislative Assembly indicates that the provision in 1984 of separate requirements for the adoption of Aboriginal and Torres Strait Islander children, including the introduction of a child placement principle, represented a major policy shift:

the Adoption Bill, for the first time, makes separate legal provision for the adoption
of Aboriginal children. This measure has been sought by the Aboriginal community for many years. It is now accepted by all those experienced in adoption matters that the adoption of Aboriginal children is a particularly delicate and sensitive matter which cannot be handled through the same processes as other adoptions. The history of adoption of Aboriginal children by white families has resulted in many breakdowns
of adoption arrangements, often associated with the difficulties of adolescent Aborigines in establishing their identity.26

  1. 6.35 During the debates in Parliament, some members criticised the separate provisions for the adoption of Aboriginal and Torres Strait Islander children because they thought them unnecessary.27
  2. 6.36 The following reasons were given in support of the separate provisions:
  • the history of the forced removal of Aboriginal children
  • the lack of a counterpart to adoption in Aboriginal culture
  • the lack of a fit between statutory adoption and Aboriginal concepts of child care
  • potential identity issues if an Aboriginal child is adopted by non-Aboriginal parents, which were identified as leading to the breakdown of adoption arrangements.28
  1. 6.37 The 1983 Adoption Legislation Review Committee report recommended that a child placement principle be included in a new Adoption Act, incorporating the following placement priority:
  • extended family
  • other members of the kinship network
  • other Aboriginal families
  • applicants approved to adopt by both the Aboriginal agency and the adoption agency.29
  1. 6.38 The surrounding discussion in the Adoption Legislation Review Committee’s report suggests that ‘extended family’ was intended to refer to Aboriginal extended family.
  2. 6.39 It recommended that this placement priority should apply ‘unless the particular placement needs of the child require or the natural parents formally nominate a different priority’.30
  3. 6.40 The Second Reading Speech in the Legislative Assembly indicates that the recommendations of the Adoption Legislation Review Committee on Aboriginal fostering and adoption had been considered.31 However, the Adoption Act did not include (Aboriginal or Torres Strait Islander) extended family as first placement preference, despite it being the first placement preference in the report. Instead, the first preference is that at least one of the proposed adoptive parents is a member of the Aboriginal or Torres Strait Islander community to which a parent who gave consent belongs.32
  4. 6.41 The debates do not address this apparent inconsistency with the report and, as indicated above, subsequent versions of the child placement principle from various agencies have often referred to extended family or relatives as the first placement preference.33
  5. 6.42 It is possible that in 1984 Parliament chose not to refer to extended family in the Adoption Act to ensure consistency with other parts of the Act, which introduced a presumption against relative adoption.34

Counselling requirement

  1. 6.43 Section 50 of the Adoption Act provides special requirements for the adoption of Aboriginal children.35 The section states that it is ‘enacted in recognition of the principle of Aboriginal self-management and self-determination and that adoption is absent in customary Aboriginal child care arrangements’.36
  2. 6.44 The section specifies counselling requirements and a child placement principle for Aboriginal and Torres Strait Islander children.
  3. 6.45 The court must be satisfied that the parent received counselling from an Aboriginal agency, or that the parent expressed a wish in writing not to receive counselling from
    an Aboriginal agency in the following two circumstances.
  • where consent is given to the adoption of a child by an Aboriginal or Torres Strait Islander parent who states in the consent document that they wish for the child
    to be adopted within the Aboriginal or Torres Strait Islander community.37
  • where consent is given to the adoption of a child by a non-Aboriginal or non-Torres Strait Islander parent, if that parent states in the consent document that he or she believes that the other parent is an Aboriginal or Torres Strait Islander person and that they wish for the child to be adopted within the Aboriginal or Torres Strait Islander community.38
  1. 6.46 The Commission understands there is currently no organisation declared under the Adoption Act as an Aboriginal agency. Therefore, no agency is currently permitted to perform the function of providing counselling as an Aboriginal agency for the purposes
    of the Adoption Act.39

Elements of the child placement principle

  1. 6.47 The Adoption Act details a placement hierarchy that applies in both the consent situations described above, where the parent has stated that they wish the child to be adopted within the relevant Aboriginal or Torres Strait Islander community.40 The placement hierarchy is:
  2. 1. The proposed adoptive parents are members, or at least one of them is a member, of the Aboriginal or Torres Strait Islander community to which a parent who gave consent belongs.
  3. 2. If a member of the Aboriginal or Torres Strait Islander community to which a parent who gave consent belongs is not reasonably available as an adoptive parent, then at least one of the proposed adoptive parents is a member of an Aboriginal or Torres Strait Islander community.
  4. 3. If a person from either of these two categories is not reasonably available as an adoptive parent, the proposed parents must be approved by an Aboriginal agency
    as suitable to adopt an Aboriginal or Torres Strait Islander child.41
  5. 6.48 The placement principle also applies in some cases where the court has dispensed with parental consent. It applies in this situation if the Secretary or principal officer of an approved agency believes on reasonable grounds that the child has been accepted by
    an Aboriginal or Torres Strait Islander community as an Aboriginal or Torres Strait Islander person.42
  6. 6.49 Except in the circumstance described above where the court has dispensed with consent, the placement principle does not apply unless one of the parents has expressed a wish that the child be adopted within the Aboriginal or Torres Strait Islander community.43
  7. 6.50 In a number of other jurisdictions the child placement principle is not dependent on the wishes of the parent and applies because the child has been identified as an Aboriginal or Torres Strait Islander. For example, in New South Wales the Secretary or appropriate principal officer is required to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal child. If the relevant person is satisfied that a child
    is an Aboriginal child, the Aboriginal child placement principles are to be applied.44
  8. 6.51 The child placement principle in the Adoption Act includes a number of key features identified as important in discussion of the child placement principle, including:
  • a statement that the section is enacted in recognition of the principle of Aboriginal self-management and self-determination
  • a placement preference which places non-Aboriginal or Torres Strait Islander people
    as last preference
  • a requirement to involve an Aboriginal agency in decision making, including in the provision of counselling and in approving non-Aboriginal people as suitable persons to adopt.45
  1. 6.52 There is no consistent formulation of the child placement principle across Australia, or even in different legislation within one state or territory. While acknowledging this lack of consistency, there are two ways in which the child placement principle in the Adoption Act does not match the elements in some key statements of the child placement principle. First, it does not provide Aboriginal or Torres Strait Islander extended family as the first placement preference. Secondly, there is no requirement relating to proximity to the child’s family and Aboriginal and Torres Strait Islander community for an adoption by someone who is not an Aboriginal or Torres Strait Islander person. 

The child placement principle in the CYF Act

  1. 6.53 The CYF Act includes a section headed ‘Aboriginal Child Placement Principle’.46 Its formulation of the child placement principle differs from that in the Adoption Act.
  2. 6.54 It requires that if it is in the best interests of an Aboriginal or Torres Strait Islander child
    to be placed in out-of-home care, regard must be had to:47
  • the advice of the relevant Aboriginal agency
  • the criteria provided in the section about placement preferences, which sets out the preferred order of placement48
  • additional principles for placement of an Aboriginal or Torres Strait Islander child.49
  1. 6.55 The CFY Act provides that the preferred placement is ‘within the Aboriginal or Torres Strait Islander extended family or relatives and, where this is not possible, other extended family or relatives’.50 As outlined above, extended family or relatives is not one of the listed options in the placement preference provided in the Adoption Act. The CYF Act then provides a similar hierarchy to that in the Adoption Act.
  2. 6.56 Unlike the Adoption Act, the CYF Act includes a proximity consideration if an Aboriginal or Torres Strait Islander child is placed with a non-Aboriginal or Torres Strait Islander family. The last placement preference is ‘a non-Aboriginal family living in close proximity to the child’s natural family’.51 This requirement was recommended in Bringing Them Home.52
  3. 6.57 The CYF placement criteria also require that ‘any non-Aboriginal placement must ensure the maintenance of the child’s culture and identity through contact with the child’s community’.53 This requirement is not reflected in the Adoption Act.

Criticisms of the child placement principle

  1. 6.58 Criticisms of the child placement principle are made from two opposing perspectives. The first type comes from people who strongly support the principle because they consider it improves outcomes for Aboriginal and Torres Strait Islander children. Their criticisms relate to a wish to enhance and improve the child placement principle.
  2. 6.59 The second type is by people who do not support a child placement principle. They consider that outcomes for Aboriginal and Torres Strait Islander children are worsened
    by providing different criteria for them. They support ‘mainstreaming’ of decision making about Aboriginal and Torres Strait Islander children.
  3. 6.60 The main criticisms from those who support the child placement principle and wish to improve it are that it is not adhered to in practice; there are associated concerns about compliance, implementation and monitoring.54
  4. 6.61 A related criticism is that it is mistakenly understood as being solely about a placement hierarchy:

The Child Placement Principle is not simply about where or with whom an Aboriginal or Torres Strait Islander child is placed […] The Child Placement Principle recognises the destructive and ongoing impact of policies and practices of assimilation and the separation and removal of Aboriginal and Torres Strait Islander people from their parents and communities. It recognises that Aboriginal and Torres Strait Islander people have the knowledge and experience to make the best decisions concerning their children and recognises the importance of each child staying connected to their family, community, culture and country. It promotes a partnership between government and Aboriginal and Torres Strait Islander communities in decision making about children’s welfare, in order to ensure that the connections are understood and maintained.55

  1. 6.62 The Secretariat of National Aboriginal and Islander Child Care suggests that the underlying aims of the child placement principle are to:
  • recognise and protect the rights of Aboriginal and Torres Strait Islander children, family members and communities
  • increase the level of self-determination for Aboriginal and Torres Strait Islander people in child welfare matters
  • reduce the disproportionate representation of Aboriginal and Torres Strait Islander children in the child protection system.56
  1. 6.63 The criticism about the child placement principle being understood as only a placement hierarchy suggests that it will not be effective if attention is not paid to its underlying principles; rather, it becomes a formal exercise without promoting connection to culture. Criticism of the child placement principle on this basis does not suggest removing it. Instead, it suggests that it would be more effective if it was monitored and implemented more thoroughly and if more attention was paid to the purpose of the principle.
  2. 6.64 An opposing criticism of the child placement principle is from those who believe there should not be separate provisions for Aboriginal and Torres Strait Islander people. This view suggests that providing separate provisions for Aboriginal and Torres Strait Islander children creates a double standard. It is argued that this privileges cultural considerations over the safety of children and disadvantages Aboriginal and Torres Strait Islander children:

The continuation of separatist child protection policies means that some Indigenous children […] will end up being raised in circumstances that deny them the chance to access the full rights and opportunities of Australian citizenship enjoyed by other Indigenous and non-Indigenous children. The alternative approach is to mainstream the child protection […] arrangements for Indigenous children, in recognition that this does not mean loss of identity. This should include ending all forms of Aboriginal exceptionalism in child protection. Indigenous and non-Indigenous children should be treated the same, including the use on a non-discriminatory basis of open adoption
(or permanent guardianship) to provide Indigenous children who cannot live safely with their parents or kin with a safe and nurturing adoptive family.57

 

Questions

  1. 17 Should there be a positive duty on the Secretary of DHHS to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal or Torres Strait Islander child? If yes, what type of inquiry might be reasonable?
  2. 18 Should there be separate rules and guidelines that apply only to the adoption of Aboriginal and Torres Strait Islander children? If yes, is the child placement principle in the Adoption Act (section 50) an appropriate mechanism? If not what changes should be made?
  3. 19 Should there be a requirement that in any adoption of an Aboriginal or Torres Strait Islander child the first preference is to place a child for adoption with Aboriginal or Torres Strait Islander extended family or relatives? If not, what should the order of preference be for placing Aboriginal and Torres Strait Islander children for adoption?

 

Requirement to consider other options ahead of adoption

  1. 6.65 The Adoption Act does not direct that other arrangements for care of children should be considered ahead of adoption for Aboriginal and Torres Strait Islander children. Rather,
    it includes an acknowledgment that adoption is absent in customary Aboriginal child care arrangements.58 This does not go as far as was suggested in Bringing Them Home, which considered that adoption should be the last resort for Aboriginal and Torres Strait Islander children.59
  2. 6.66 A number of other jurisdictions have incorporated a requirement that adoption be a last resort for Aboriginal and Torres Strait Islander children. The Western Australian legislation provides:

It is acknowledged that adoption is not part of Aboriginal or Torres Strait Island culture and that therefore the adoption of a child who is an Aboriginal person or a Torres Strait Islander should occur only in circumstances where there is no other appropriate alternative for that child.60

  1. 6.67 As discussed in Chapter 4, the permanency objective requirements in the CYF Act, which came into effect on 1 March 2016, require that in case planning for children in the child protection system, adoption be considered as an option ahead of other options such as permanent care or long-term out-of-home care.61
  2. 6.68 In New South Wales, the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides a hierarchy of permanent placement principles, which puts adoption ahead of orders placing the child under the parental responsibility of the minister. However, it provides an amended hierarchy for Aboriginal and Torres Strait Islander children, according to which adoption is the last preference.62
  3. 6.69 This requirement is mirrored in the Adoption Act 2000 (NSW) which requires that an ‘Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child’.63
  4. 6.70 This stands in counterpoint to the general position in New South Wales, where the government has indicated a policy of increasing adoption and has made a number
    of legislative changes to facilitate the increased use of adoption for children who
    are in out-of-home care.
  5. 6.71 The requirement to consider other options ahead of adoption is not replicated for
    Torres Strait Islander children in the Adoption Act 2000 (NSW).

Question

  1. 20 Should the Adoption Act require that adoption be considered for Aboriginal and Torres Strait Islander children only where there is no other appropriate alternative?

 

Torres Strait Islander culture and adoption

  1. 6.72 Torres Strait Islanders are a separate people in origin, history and way of life. It would
    be inaccurate to suggest that arrangements providing for the permanent transfer
    of a child from one family to another do not exist in Torres Strait Islander culture.
  2. 6.73 The New South Wales Law Reform Commission’s 1997 research report on the Aboriginal Child Placement Principle noted the difficulties associated with applying an identical principle in relation to Torres Strait Islander and Aboriginal people. The report suggested that ‘differences in attitudes to adoption between the Aboriginal and Torres Strait Islander communities may warrant a separate Principle’.64
  3. 6.74 Torres Strait Islanders have sought legal recognition for the practice often called Kupai Omasker (in preference to ‘customary’ or ‘traditional’ adoption) over many years.65 This practice involves the permanent transfer of a child from one family to another. This idea of permanent transfer suggests that the type of arrangement expressed by Kupai Omasker does not correspond to a fostering concept, which is a more temporary arrangement for the care of children.
  4. 6.75 The Adoption Act provides no acknowledgment of the different approaches to providing for child care between Aboriginal and Torres Strait Islander culture, and does not refer
    to Kupai Omasker or Torres Strait Islander customary or traditional adoption.
  5. 6.76 The Adoption Act 2009 (Qld) acknowledges the practice without providing legal recognition of it. It provides a general principle that:

because adoption (as provided for in this Act) is not part of Aboriginal tradition or Island custom, adoption of an Aboriginal or Torres Strait Islander child should be considered as a way of meeting the child’s need for long-term stable care only if there is no better available option.66

  1. 6.77 It mentions Kupai Omasker as a note to the general preference for alternatives to statutory adoption in relation to both Torres Strait Islander and Aboriginal children.
    The note acknowledges that Torres Strait Islander custom ‘includes a customary child-rearing practice that is similar to adoption in so far as parental responsibility for a child
    is permanently transferred to someone other than the child’s parents’.67
  2. 6.78 The Adoption Act 2000 (NSW) treats the adoption of Aboriginal and Torres Strait Islander children distinctly in relation both to adoptions generally and to each other.68 In addition to providing two distinct child placement principles, one for Aboriginal children and one for Torres Strait Islander children, it provides that ‘an Aboriginal child is not to be placed for adoption unless the Secretary is satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child’.69 This provision is not replicated in relation
    to Torres Strait Islander children.

Question

  1. 21 Should there be different principles for the adoption of Aboriginal children
    as compared to Torres Strait Islander children? For example, should there
    be a separate child placement principle for Torres Strait Islander children
    as compared to Aboriginal children, as is the case in New South Wales adoption law?

 

Conditional consent to adoption of Aboriginal and Torres Strait Islander children

  1. 6.79 There is a general ability in the Adoption Act to make an adoption order subject to conditions relating to contact (see Chapter 5).70 This only applies to adoption orders made with the consent of the parent or parents.71 It does not apply to situations where the court dispensed with consent. Conditions relating to contact may be made where the court is satisfied that:
  • circumstances exist which make it desirable to do so72
  • after consent is given to the adoption, the parent(s) and the adoptive parent(s) have agreed that the adoption order should be made subject to certain conditions.73
  1. 6.80 A condition may be made on the adoption order providing particular direct contact rights for specified people who may be the parents of the child or other relatives.74
  2. 6.81 A condition may also be made requiring the adoptive parent or parents to provide information about the child at certain times in accordance with terms specified
    in the adoption order.75
  3. 6.82 In the adoption of an Aboriginal or Torres Strait Islander child there are additional abilities for a parent to give consent to an adoption subject to conditions about contact with the child. As noted above, the general provisions allow conditions about contact to be made by the court if there is agreement between the parent(s) and the adoptive parent(s) after consent has been given. These conditions may be available for all adoptions. In contrast, the Aboriginal and Torres Strait Islander conditional consent provisions are only available
    in the adoption of an Aboriginal or Torres Strait Islander child.76
  4. 6.83 A conditional consent of this nature can be given if an Aboriginal or Torres Strait Islander parent consents to the adoption of their child. It can also be given if a parent who is not an Aboriginal or Torres Strait Islander person, but believes that the other parent is, provides consent for the child to be adopted. In both cases, it also requires that the person has expressed a wish in the consent document that the child be adopted within the Aboriginal or Torres Strait Islander community.77
  5. 6.84 If consent is given in the above situation, it may be given subject to conditions that the relevant parent, specified relatives of the child, and members of the Aboriginal community or Torres Strait Islander community to which the child belongs have rights to have contact with the child.78
  6. 6.85 The range of people who can be given rights of contact with the child is much broader than the range of people who can be given contact rights under the general condition provisions which provide for contact with parents or ‘relatives’.79
  7. 6.86 The contact rights are not unlimited and the legislation provides for an Aboriginal agency to support contact arrangements to help ensure that they are successful.80
  8. 6.87 If no one suitable to adopt the child can be found, the parent must be informed in writing of the inability to find a suitable person. The parent must also be advised of the right to vary the conditions or revoke the consent within 28 days after the notice.81
  9. 6.88 If no revocation of consent or variation of the conditions is made within the 28-day timeframe, the Secretary or principal officer of the relevant approved agency may apply
    to the court for the revocation or alteration of the conditions relating to the consent.82 The court may make an order varying or revoking the conditions. The court must be satisfied that the Secretary or principal officer took reasonable steps to satisfy the conditions, and it must consider a report from an Aboriginal agency.83

Question

  1. 22 Should parents of Aboriginal and Torres Strait Islander children retain the ability, that parents of other children do not have, to put conditions on their consent to the adoption of their children? If not, what options should there
    be to protect the connection of Aboriginal and Torres Strait Islander children to country, kin, language and community?

 

Footnotes

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