7 Aboriginal and Torres Strait Islander children and adoption

Introduction

  1. 7.1 This chapter reviews, and makes recommendations about, improvements to adoption law for Aboriginal and Torres Strait Islander children.
  2. 7.2 In developing the recommendations in this chapter, the Commission focused on three key ideas strongly emphasised by Aboriginal and Torres Strait Islander groups and individuals:
  • Statutory adoption is generally not a culturally appropriate option for Aboriginal and Torres Strait Islander children.
  • Any adoption must ensure that cultural connections for Aboriginal and Torres Strait Islander children are not merely preserved but also promoted and developed.
  • Aboriginal and Torres Strait Islander communities are the experts in what is best for their children. The law needs to ensure that Aboriginal and Torres Strait Islander communities are involved early and consistently in decisions about their children.
  1. 7.3 These ideas are not new. They have been highlighted in numerous reports and recommendations going back to at least the 1980s. However, as two recent reports of the Commission for Children and Young People demonstrate, they are often poorly implemented.1
  2. 7.4 The Adoption Act 1984 (Vic) provides additional requirements for the adoption of Aboriginal and Torres Strait Islander children. It includes a version of the Aboriginal and Torres Strait Islander Child Placement Principle.
  3. 7.5 The inclusion of separate requirements for the adoption of Aboriginal and Torres Strait Islander children in 1984 represented a significant policy shift.2 The 1964 Adoption Act had not made any separate provision for the adoption of Aboriginal or Torres Strait Islander children. However, in comparison with the Children, Youth and Families Act 2005 (Vic) (the CYF Act) and more recent adoption legislation in other states and territories, the requirements provide relatively weak protection for a child’s cultural connections.
  4. 7.6 The Commission concludes that effective implementation of the apologies given to the Stolen Generations, for the ongoing devastating effects of assimilation policy and forced removal of children based on race, requires separate rules and guidelines for Aboriginal and Torres Strait Islander children in relation to adoption. This will also provide adequate recognition of Aboriginal self-determination and of Indigenous cultural continuity and integrity.

Context

  1. 7.7 The rates of adoption for Aboriginal and Torres Strait Islander children are very low. In 2015–16, only three children identified as Aboriginal or Torres Strait Islanders had an adoption order finalised in Australia.3
  2. 7.8 DHHS data shows that since 2005–2006 there have been no recorded adoptions of an Aboriginal or Torres Strait Islander child in Victoria. It is possible that some Aboriginal or Torres Strait Islander children were adopted in this period, but were not identified.
  3. 7.9 From 1998 to 2015, 15 Aboriginal or Torres Strait Islander children were adopted. None of the adoptive parents were Aboriginal or Torres Strait Islanders. Twelve adoptions, all of which occurred in 1999–2000, were ‘known-child’ adoptions. The remaining three were ‘local’ adoptions.
  4. 7.10 The Commission requested additional information about these adoptions but DHHS was unable to provide it. The available data is not specific enough for the Commission to assess the extent to which agencies complied with requirements in the Adoption Act relating to Aboriginal and Torres Strait Islander children.

The Stolen Generations and the apologies

  1. 7.11 In 1997, the Human Rights and Equal Opportunity Commission published Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Bringing Them Home).4 It considered the past laws, practices and policies that separated Aboriginal and Torres Strait Islander children from their families by compulsion, duress, or undue influence and the effects.
  2. 7.12 ‘Stolen Generations’ is the name given to the generations of Aboriginal and Torres Strait Islander children removed from their families. Bringing Them Home stated 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’.5
  3. 7.13 The report made recommendations about adoption, which are discussed in this chapter.
  4. 7.14 On 17 September 1997, the Legislative Assembly of the Parliament of Victoria issued an apology to the Aboriginal people for the removal of Aboriginal children.6 The debates included acknowledgment of the ongoing effects, and commitments ‘to make sure that such events do not take place again’.7
  5. 7.15 An apology was also issued in the Australian Parliament on 13 February 2008.8

Aboriginal and Torres Strait Islander Child Placement Principle

  1. 7.16 The Aboriginal and Torres Strait Islander Child Placement Principle exists in varying forms in laws across Australia. It:

recognises the destructive and ongoing impact of policies and practices of assimilation and the separation and removal of Aboriginal and Torres Strait Islander children 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 … in order to ensure that the connections are understood and maintained.9

  1. 7.17 The way it is described, and the elements it includes, are not entirely consistent across the various laws.
  2. 7.18 Frequently, a single principle that applies to both Aboriginal children and Torres Strait Islander children is used. At different times this is called the Indigenous Child Placement Principle10 or the Aboriginal Child Placement Principle.11
  3. 7.19 In New South Wales, two separate set of principles accommodate the differences between Aboriginal and Torres Strait Islander concepts in relation to adoption. They are the Aboriginal Child Placement Principles and the Torres Strait Islander Child Placement Principles.12
  4. 7.20 The Aboriginal and Torres Strait Islander Child Placement Principle is named differently in different legislation, and its content is not consistent. In Victoria, a version is included in both the Adoption Act and the CYF Act.13 They are not identical.
  5. 7.21 For clarity, the remaining discussion uses the term Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) unless referring to a specific document or law.
  6. 7.22 The Secretariat of National Aboriginal and Islander Child Care (SNAICC) commented that:

Despite repeated recommendations over the past few decades … for national standards legislation to embed a consistent approach to the ATSICPP, the ATSICPP continues to be incompletely and inconsistently applied across jurisdictions. This … often leads to a common misunderstanding of the ATSICPP as a narrow guide to the placement of Aboriginal and Torres Strait Islander children. In reality the ATSICPP … is best understood by examining and considering its five key elements covering prevention, partnership, placement, participation and connection.14

Commission for Children and Young People reports

  1. 7.23 Two reports from the Commission for Children and Young People were tabled in the Victorian Parliament in October 2016:
  • In the Child’s Best Interests: Inquiry into Compliance with the Intent of the Aboriginal Child Placement Principle in Victoria15
  • Always Was Always Will Be Koori Children: Systemic Inquiry into Services Provided to Aboriginal Children and Young People in Out-Of-Home Care in Victoria.16
  1. 7.24 In the Child’s Best Interests considered compliance with the intent of the ATSICPP. The report found that written policy showed strong compliance with the legislative requirements of the ATSICPP, but this did not translate into practice. It assessed compliance in practice with the intent of the ATSICPP across five domains, and provided a rating from zero compliance to excellent compliance. Compliance in all five domains was either minimal or partial:
  • Identification of Aboriginality: Was the Aboriginality of the child correctly determined by the completion of the investigation stage? (partial compliance)17
  • Was regard had to the advice of the Aboriginal Child Specialist Advice and Support Service at every significant decision point? (partial compliance)18
  • Was an Aboriginal family-led decision-making meeting convened at substantiation and issuing of a protection order or declined by the family? (minimal compliance)19
  • Is there evidence that children were placed at the highest possible level of the ATSICPP placement hierarchy? (partial compliance)20
  • Is there a completed cultural support plan or a case plan that considers opportunities for continuing contact with Aboriginal family, community and culture? (minimal compliance)21
  1. 7.25 In the Child’s Best Interests noted that there is a lack of guidance about why the ATSICPP exists or what it is for. It recommended that DHHS in partnership with Aboriginal Community Controlled Organisations should define the intent of the ATSICPP. In developing the definition, the underlying intent (unstated in current legislation) is that Aboriginal children should remain in the care of their families of origin wherever possible and safe. It also recommended that future amendments to the CYF Act make this clear.22
  2. 7.26 The report made 54 recommendations to improve compliance with the intent of the ATSICPP.
  3. 7.27 In the Child’s Best Interests and Always Was Always Will Be Koori Children highlight ways in which the child protection system is failing Aboriginal and Torres Strait Islander children, and recommend improvements.
  4. 7.28 The Commission’s recommendations relate to adoption under the Adoption Act rather than child protection. However, many of the deficiencies identified in practice—such as failure to identity and record Aboriginal and Torres Strait Islander status—are equally relevant to adoption.
  5. 7.29 The Commission considers that improvements to practice and monitoring in response to these two reports should be extended to adoption wherever relevant. A lesser level of cultural safety in adoption would be highly undesirable.

Current law

  1. 7.30 In some circumstances, the Adoption Act places specific duties on the Secretary, principal officer and the court in relation to Aboriginal and Torres Strait Islander children.
  2. 7.31 It provides special rights to the parents of Aboriginal and Torres Strait Islander children who are considering the adoption of their child:
  • specific counselling requirements and a version of the ATSICPP23
  • the ability for a parent to give consent to an adoption of an Aboriginal or Torres Strait Islander child subject to conditions about contact with the child24
  • requirements, in some cases, that an adopted Aboriginal or Torres Strait Islander child and their adoptive parents are notified when the child reaches the age of 12 years that the child may be entitled to certain rights and privileges.25

 

Aboriginal and Torres Strait Islander Child Placement Principle in the Adoption Act

  1. 7.32 The Adoption Act includes a version of the ATSICPP.26
  2. 7.33 It is difficult to find this provision because it is not expressly identified as an ATSICPP. It is located well into the Adoption Act (section 50) and is difficult to interpret. The limitations on the situations in which it applies mean that its use depends on the wishes of the natural parents. This means that its scope is limited.
  3. 7.34 The special requirements in section 50 for the adoption of Aboriginal and Torres Strait Islander children are ‘enacted in recognition of the principle of Aboriginal self-management and self-determination and that adoption is absent in customary Aboriginal child care arrangements’.27
  4. 7.35 The requirements apply if:
  • 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 the child to be adopted within the Aboriginal or Torres Strait Islander community28
  • 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 the child to be adopted within the Aboriginal or Torres Strait Islander community.29
  1. 7.36 If consent is given in either of these two circumstances, 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 do so.30
  2. 7.37 The Adoption Act also provides a placement hierarchy, detailing who the child should be placed with.31 The placement hierarchy is:
  3. 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.
  4. 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.
  5. 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.32
  6. 7.38 Generally, the requirements for counselling by an Aboriginal agency and requirement to follow the placement hierarchy only apply if a parent has expressed a wish that the child be adopted within the Aboriginal or Torres Strait Islander community.33

 

Aboriginal Child Placement Principle in the CYF Act

  1. 7.39 The CYF Act includes a section headed ‘Aboriginal Child Placement Principle’.34
    Its formulation differs from that in the Adoption Act.
  2. 7.40 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:35
  • the advice of the relevant Aboriginal agency
  • the criteria provided in the section about placement preferences, which sets out the preferred order of placement36
  • the additional principles in the CYF Act for placement of an Aboriginal or Torres Strait Islander child.37
  1. 7.41 The CYF 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’.38
  2. 7.42 There is a placement hierarchy if ‘placement with extended family or relatives is not feasible or possible’.39 This decision may only be made after consultation with the relevant Aboriginal agency. It provides the following placement preference:
  • an Aboriginal family from the local community and within close geographical proximity to the child’s natural family;
  • an Aboriginal family from another Aboriginal community;
  • as a last resort, a non-Aboriginal family living in close proximity to the child’s natural family.
  1. 7.43 The ATSICPP in the CYF Act requires that ‘any non-Aboriginal placement must ensure the maintenance of the child’s culture and identity through contact with the child’s community’.40 This requirement is not included in the Adoption Act.
  2. 7.44 The CYF Act includes the following additional principles for placement of an Aboriginal child:
  • In deciding where a child is to be placed, account is to be taken of whether the child identifies as Aboriginal and the expressed wishes of the child.41
  • If a child has parents from different Aboriginal communities, the order of placement is for first preference to be an Aboriginal family from the local community and within close geographical proximity to the child’s natural family; and second to an Aboriginal family from another Aboriginal community. Consideration should also be given to the child’s own sense of belonging.42
  • If a child with parents from different Aboriginal communities is placed with one parent’s family or community, arrangements must be made to ensure that the child has the opportunity for continuing contact with his or her other parent’s family, community and culture.43
  • If a child has one Aboriginal parent and one non-Aboriginal parent, the child must be placed with the parent with whom it is in the best interests of the child to be placed.44
  • If an Aboriginal child is placed with a person who is not within an Aboriginal family or community, arrangements must be made to ensure that the child has the opportunity for continuing contact with his or her Aboriginal family, community and culture.45
  1. 7.45 A decision to place an Aboriginal child in out-of-home care may not be made without consulting an Aboriginal agency and applying the ATSICPP.46
  2. 7.46 The CYF Act also includes decision-making principles ‘in recognition of the principle of Aboriginal self-management and self-determination’:47
  • in making a decision or taking an action in relation to an Aboriginal child, an opportunity should be given, where relevant, to members of the Aboriginal community to which the child belongs and other respected Aboriginal persons to contribute their views;48
  • a decision in relation to the placement of an Aboriginal child or other significant decision in relation to an Aboriginal child, should involve a meeting convened by an Aboriginal convener who has been approved by an Aboriginal agency or by an Aboriginal organisation approved by the Secretary and, wherever possible, attended by the child, the child’s parent, members of the child’s extended family and other appropriate members of the Aboriginal community as determined by the child’s parent.49

Conditional consent to adoption

  1. 7.47 The Adoption Act enables the parent of an Aboriginal or Torres Strait Islander child to give a conditional consent to adoption subject to conditions about contact with the child. These ‘conditional consent’ provisions are only available in the adoption of an Aboriginal or Torres Strait Islander child.50The adoption order may be made subject to these contact conditions.51
  2. 7.48 Consent may be given subject to a condition 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.52
  3. 7.49 The range of people who can be given contact rights through conditional consent is broad. In contrast, only parents or relatives can be given contact rights under the general provisions.53
  4. 7.50 The rights to give a conditional consent are limited. The parent must have expressed a wish in the consent document that the child be adopted within the Aboriginal or Torres Strait Islander community.54 Conditional consent may be given by:
  • an Aboriginal or Torres Strait Islander parent
  • a parent who is not an Aboriginal or Torres Strait Islander person, but believes that the other parent is.
  1. 7.51 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.55
  2. 7.52 If no one suitable to adopt the child can be found, the parent must be informed in writing of this fact. The parent must also be advised of the right to vary the conditions or revoke the consent within 28 days after the notice.56
  3. 7.53 If no revocation of consent or variation of the conditions is made within 28 days, the Secretary or principal officer of the agency may apply to the court for the revocation or alteration of the conditions relating to the consent.57 The court may order this. The court must be satisfied that the Secretary or principal officer took reasonable steps to satisfy the conditions, and that they considered a report from an Aboriginal agency.58

Responses

Identification of Aboriginal and Torres Strait Islander children

  1. 7.54 There was strong support for placing a positive duty on the Secretary of DHHS to make reasonable inquiries about whether a child who may be placed for adoption is an Aboriginal or Torres Strait Islander child.59 There were no responses suggesting that there should not be a duty.
  2. 7.55 A number of people emphasised the importance of information about the child’s cultural identity and connections being recorded. The Wathaurong Aboriginal Co-operative told the Commission that identifying a child as Aboriginal, and recording this information, is a crucial step in any adoption process. The person can then seek out their history and connections in the future.60
  3. 7.56 The Commission was told that people often seek out connections at some point in their life and that connection to country is ‘about who you are’.61 Someone who does not know they have Aboriginal or Torres Strait Islander heritage is unable to seek out these connections.62
  4. 7.57 Identifying and recording whether an adopted person has Aboriginal or Torres Strait Islander heritage is important at an intergenerational level.63 Even if an adopted person does not want to identify as Aboriginal, their children may wish to seek out their culture.64 Elaine Taylor told the Commission that an inquiry is important so that future generations are not denied their Aboriginality.65
  5. 7.58 The Law Institute of Victoria submitted that: ‘If no reasonable inquiry is made as to the child’s Aboriginality, then that child is unable to exercise their right to identity, culture and community’.66
  6. 7.59 Staff at the Bendigo and District Aboriginal Co-operative stated that it was critical to identify and document that a child is Aboriginal. They suggested that a genogram or family tree should be prepared as soon as possible to look for kin. Identification of kin assists in convening an Aboriginal family-led decision making meeting.67
  7. 7.60 The Commission was told that it was a lengthy and resource-intensive process to establish proof of Aboriginal and/or Torres Strait Islander heritage later in life if the person has no paperwork. It places a burden on Aboriginal Community Controlled Organisations. Establishing proof of Aboriginal and/or Torres Strait Islander heritage should be done before a child is placed for an adoption because of the difficulties in establishing this later.68
  8. 7.61 This proof of heritage is required to access a range of services and benefits such as ABSTUDY and may also affect land rights.69
  9. 7.62 Responses emphasised the need to learn from the experiences of the Stolen Generations. The lack of documentation has compounded the Stolen Generations’ loss of connection to culture because it is very hard for them to find their family and country.70
  10. 7.63 Some responses considered who should be involved in this inquiry.The Law Institute of Victoria submitted that the inquiry should be ‘informed and approved by Aboriginal child welfare organisations, such as VACCA’.71
  11. 7.64 Berry Street submitted that inquiries ‘could include documented evidence of consultation with a range of Aboriginal agencies and with Victoria’s Aboriginal Commissioner for Children and Young People’.72
  12. 7.65 The Centre for Excellence in Child and Family Welfare submitted that each child’s situation ‘should be considered fully, including thorough research into the child’s cultural background, extended family and their community connections’.73
  13. 7.66 Others stated that Aboriginal Community Controlled Organisations should be involved in identifying if a child is Aboriginal or a Torres Strait Islander.74 A participant at a roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies proposed that reasonable inquiries should include contacting Link-up,75 VACCA and other Aboriginal Community Controlled Organisations.76
  14. 7.67 Some people stated that timeframes need to allow for inquiries about the child’s heritage.77 The Law Institute of Victoria submitted that the CYF Act does not allow sufficient time:

for the Secretary to make such enquiries and then, if the child is identified as having Aboriginal or Torres Strait Islander heritage, for the Aboriginal child care agency to comply with the Aboriginal Child Placement Principle by making enquiries to locate possible family or kinship carers with whom the child could be placed or spend time with to maintain the connection to their identity, culture and community.78

 

Separate rules and guidelines for Aboriginal and Torres Strait Islander children

  1. 7.68 Some people stated that the same rules and guidelines for adoption should apply to all children.79 Some considered that having separate rules and guidelines for Aboriginal and Torres Strait Islander children created inequality.80 Sharyn White said that ‘ALL children … have a deep need to remain connected to their kin, not just certain groups of people’.81
  2. 7.69 Jeremy Orchard submitted that the same guidelines should apply to all adoptions:

some guidelines will be more applicable than others depending on cultural and linguistic background of the child(ren) and adults. Victoria is a very diverse community, so guidelines should cover the wide ranging aspects for all.82

  1. 7.70 Most responses supported separate rules and guidelines for the adoption of Aboriginal and Torres Strait Islander children.83 A number of responses referred to the Stolen Generations and the recommendations in the Bringing Them Home report.84 The Law Institute of Victoria stated:

Separate rules and guidelines are required to take into account the unique needs of these children arising from the intergenerational trauma caused by the treatment by the government of Aboriginal people in the past, including the forced systematic removal by the State of Aboriginal children from their families and communities and attempts to remove their Aboriginality from their identity and lives. This is consistent with the recommendations of the ‘Bringing Them Home: Stolen Children report’.85

  1. 7.71 Aboriginal groups and individuals emphasised that there is a need to recognise the ongoing impact of the Stolen Generations. This is not an historical issue, but a continuing one. One participant at a consultation talked about a song by Archie Roach, ‘Took the Children Away’, which describes the forcible removal of Archie and his siblings from their parents in Victoria. The participant emphasised that the events described in the song are real and part of the continuing life story for the Stolen Generations.86
  2. 7.72 The Commission was told that many Aboriginal people who experienced the Stolen Generations are afraid of government authority and will seek to avoid it, including running away if they see a police car.87
  3. 7.73 One person talked about the removal of her mother from her family and her mother’s eventual adoption as a member of the Stolen Generations. She explained that her mother was removed when she was two years old and it took her 48 years to find her family. She described the emotional impact on their mother of realising that she had brothers and sisters with the same parents.88
  4. 7.74 SNAICC submitted that:

The view that differentiated approaches to adoption are not required for Aboriginal and Torres Strait Islander children is highly objectionable … the mainstreaming of … policy and practice would reflect an abject failure to acknowledge the realities of injustice experienced by Aboriginal and Torres Strait Islander peoples throughout Australian history.89

  1. 7.75 SNAICC also disagreed that a mainstream approach would achieve better outcomes for Aboriginal and Torres Strait Islander children, stating:

[this view] overwhelmingly fails to recognise the unique circumstances facing our children … our children have unique rights to remain connected to their culture, which must be understood as a key contributor to their stability and wellbeing—not the antithesis of it.90

  1. 7.76 SNAICC considered that views that there should not be separate rules and guidelines for Aboriginal children are in direct contravention of the provisions of international human rights law, along with inquiries such as Bringing Them Home.91
  2. 7.77 Elaine Taylor told the Commission that adoptions of Aboriginal children need to be open because children need to know their family history. There should always be contact between the child’s birth parents, the child’s adoptive parents and the child. She said that this could be facilitated through the agency, the provision of cards and letters, and should include not just the child’s birth parents, but grandparents as well.92
  3. 7.78 A range of matters were proposed as important in forming guidelines about adoption of Aboriginal and Torres Strait Islander children including:
  • an ATSICPP that is properly implemented and adhered to93
  • involvement of Aboriginal Community Controlled Organisations in all aspects of decision making94
  • involvement of family in decision making95
  • cultural support plans96
  • inquiry into whether a child has Aboriginal or Torres Strait Islander heritage and documentation of this.97

Requirement to consider other options ahead of adoption

  1. 7.79 A number of those who consulted with the Commission said that statutory adoption should be a last resort for Aboriginal and Torres Strait Islander children.98 Adoption is alien to Aboriginal culture99 and for people affected by the Stolen Generations, adoption is not an option.100
  2. 7.80 OzChild submitted that:

adoption should be … a last resort for Aboriginal and Torres Strait Islander children to avoid repeating mistakes of the past. As highlighted in the Bringing Them Home Report, Aboriginal and Torres Strait Islander people lost their sense of culture, connection, identity and suffered significant trauma and abuse from being separated from their family of origin.101

  1. 7.81 SNAICC submitted that Aboriginal and Torres Strait Islander children ‘have rights of identity that can only be enjoyed in connection with their kin, communities and cultures’. It stated:

Closed adoption that severs the connection of children to their families and communities of origin is never an appropriate care option for Aboriginal and Torres Strait Islander children, except as it relates to traditional Torres Strait Islander adoption practices.102

  1. 7.82 SNAICC submitted that, in the short term, adoption legislation should place a complete ban on the adoption of Aboriginal and Torres Strait Islander children. This ban should be maintained until agreement is reached between Victoria’s Aboriginal and Torres Strait Islander communities and the Victorian Government on the elements of an open adoption legislative regime. This would need to include adequate provision for the protection of cultural rights.103
  2. 7.83 Some people stated that adoption should be a last resort for all children including, but not limited to, Aboriginal and Torres Strait Islander children.104 This view that adoption should be a last resort for all children is discussed at [2.55].

Conditional consent to adoption and connection to culture

  1. 7.84 The consultation paper asked whether the parents of Aboriginal and Torres Strait Islander children should retain the ability to make their consent to the adoption of their children conditional upon contact arrangements. It also asked what options there should be to protect the connection of Aboriginal and Torres Strait Islander children to country, kin and community.
  2. 7.85 Some responses objected to the idea that the parents of an Aboriginal or Torres Strait Islander have a right to make their consent to adoption conditional on them having contact with their child.105 The Australian Adoptee Rights Action Group stated that ‘ALL PARENTS should have this ability to put conditions on the adoption. Why this persistence in assuming that non-indigenous children are somehow more easily accepting of adoption?’106
  3. 7.86 Others considered that the ability to provide conditional consent is appropriate and provides for implementation of the ATSICPP.107
  4. 7.87 SNAICC submitted that:

In relation to the ‘connection’ element of the ATSICPP, SNAICC supports continuation of current provisions that enable Aboriginal and Torres Strait Islander parents to place special conditions on adoptions relating to the maintenance of relationships and cultural connections.108

  1. 7.88 The Law Institute of Victoria submitted that:

Parents or other family or community members significant to an Aboriginal and Torres Strait Islander children should be provided with the opportunity to present to the Court any conditions they consider should be placed on the adoption of their children as, in most cases, those persons will be best placed to consider how that child is able to enhance and preserve their connection to country, kin, language, family and community even if those family members are unable to care for the children themselves.109

  1. 7.89 Other suggestions for maintaining connection to culture if an Aboriginal or Torres Strait Islander child is adopted included cultural plans,110 Aboriginal family-led decision making and family finding,111 and a buddy system for adoptive parents.112
  2. 7.90 SNAICC submitted that:

additional provisions are required to make the maintenance of connection by adoptive parents mandatory and accountable. Where Aboriginal and Torres Strait Islander children are in any long-term care arrangement away from their birth family, be it adoption or otherwise, genuine cultural support plans must be developed and maintained (including with regular review) on an ongoing basis. Ongoing support is required for children in care to access cultural supports and connect with Aboriginal and Torres Strait Islander community organisations.113

  1. 7.91 Participants at a roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies said that cultural plans are a way to provide for connection to culture. One participant said that a cultural plan is like a family tree except that it tells the stories of where the person comes from.114
  2. 7.92 A participant said that Aboriginal Community Controlled Organisationsshould be able to support contact arrangements, but they cannot perform this role without resourcing. If the Adoption Act was changed in this way, resources would need to be allocated.115
  3. 7.93 Wathaurong Aboriginal Co-operative told the Commission that a cultural plan should be made in consultation with the local Aboriginal Community Controlled Organisation, which should be involved in the whole process to ensure that it is effective.116
  4. 7.94 Staff at the Bendigo and District Aboriginal Co-operative stated that Aboriginal family-led decision making should always be used to bring the local community into the decision-making process. Other family options for the care of the child are often identified through this process.117
  5. 7.95 The Centre for Excellence in Child and Family Welfare submitted that:

the Act should encourage the use of family group meetings to make decisions … Family group meetings introduce a consultative approach, which may allay some concerns of the Indigenous community that they are being excluded from adoption decision-making processes. Although family groups meetings may play an important part in finding the right solution for the child, the Centre would caution against making them mandatory.118

  1. 7.96 Elaine Taylor told the Commission that she ‘lives her culture every day but some children grow up without this’. She suggested that prospective adoptive parents need to have cultural training and suggested a buddy system where the adoptive parents are paired with an Aboriginal family who can act as an adoptive grandparent or aunty.119

Participatory elements of ATSICPP

  1. 7.97 Consultations with Aboriginal and Torres Strait Islander groups and individuals stressed the importance of involving Aboriginal Community Controlled Organisations as well as Aboriginal and Torres Strait Islander families and communities.120
  2. 7.98 SNAICC emphasised the need for the Adoption Act to provide for participatory elements of the ATSICPP, not just the placement hierarchy element of it.121
  3. 7.99 SNAICC highlighted that representative Aboriginal and Torres Strait Islander organisations, families and children have rights to participate in decisions on the care and protection of children. It submitted that adoption reform must include requirements for representative participation. It also submitted that a similar provision to section 323 of the CYF Act, which requires that a permanent care order may not be made without the recommendation of an Aboriginal agency, should be included in adoption legislation.122
  4. 7.100 SNAICC also submitted that the Adoption Act should include safeguards to ensure that Aboriginal and Torres Strait Islander community and family have been involved in identifying appropriate care arrangements. It noted: ‘Effective and broad consultations with families and communities can lead to the identification of broader family networks for kinship carers that agencies may not be aware of.’123

Placement hierarchy in ATSICPP

  1. 7.101 A number of responses supported a requirement that the first placement preference in any adoption of an Aboriginal or Torres Strait Islander child be extended family or relatives. Some stated this directly and others through support for consistency with the ATSICPP in the CYF Act.124
  2. 7.102 SNAICC submitted ‘that a stronger formulation of the placement hierarchy is required in Victorian legislation’.125 It supported the formulation of the hierarchy in the CYF Act and consistent wording in legislation around placement hierarchies for Aboriginal and Torres Strait Islander children.126
  3. 7.103 Some people submitted that extended family should be the first placement choice and that this should apply to all children, not just Aboriginal and Torres Strait Islander children.127
  4. 7.104 Reponses from Aboriginal and Torres Strait Islander individuals and agencies emphasised the importance of connection to culture.128
  5. 7.105 Staff at the Bendigo and District Aboriginal Co-operative stated that placement should ideally be in the community the child is from. However, sometimes connection to place and connection to family may be in conflict. If no family members are able to care for a child in the place the child is from, the child may be relocated. This raises the risk that their connection to country may be broken. They considered that if a child is moved, there should be processes to ensure that they will maintain connection to their local culture.129
  6. 7.106 Similar concerns were raised by Elaine Taylor who said that consideration should be given to the area in which the child lives, where the child is going to be placed, and where the child’s adoptive parents are from. She told the Commission that Aboriginal children should be kept in the place where they have grown up.130
  7. 7.107 A participant at a consultation with the Wathaurong Aboriginal Co-operative discussed whether it is in the best interests of the child to stay in the local community or be sent to an Aboriginal family in another place. They stated that in some cases the placement hierarchy in the ATSICPP in the CYF Act does not work. If a child is connected to the
    community, their removal is traumatic. The participant described twins who were sent to New South Wales to family they had not met. The children had grown up in Geelong but because of the ‘kin’ element of the ATSICPP, their connection to the ‘community’ was not considered.131

Torres Strait Islander children

  1. 7.108 The consultation paper asked if there should be different principles for the adoption of Aboriginal children as compared to Torres Strait Islander children.
  2. 7.109 Some people stated that the rules should be the same for all children.132
  3. 7.110 The Law Institute of Victoria submitted that it would be difficult to have distinct rules for Torres Strait Islander children as compared to Aboriginal children because:

many Aboriginal children in Victoria have family members, and identify as being part of Aboriginal and Torres Strait Islander communities, from around Australia including the Torres Strait. This is an inevitable consequence of the forced removal of Aboriginal children from their parents and communities coupled with the natural increase of movement of modern day Australians between States and Territories.133

  1. 7.111 Participants at a roundtable with Aboriginal and Torres Strait Islander peak bodies and agencies had a variety of views:
  • Some participants said that people who identify as Torres Strait Islander or Aboriginal in Victoria are ‘one community’ and not identified as separate. Torres Strait Islanders in Victoria belong to Aboriginal Community Controlled Organisations that include people with both Aboriginal and Torres Strait Islander heritage.
  • One participant stated that decisions should be subject to the customary laws which should be applied in that case, otherwise that the ATSICPP should apply.134
  1. 7.112 The Commission spoke with members of the working party for the recognition of Torres Strait Islander child-rearing practices. The working party has been trying to gain legal recognition of Torres Strait Islander child-rearing practices, and specifically traditional adoption (Kupai Omasker), for more than 30 years.135
  2. 7.113 Kupai Omasker is the permanent transfer of a child of one family to another as a gift. A participant discussed how legal recognition of Kupai Omasker might work in practice. They told the Commission that state adoption legislation does not match with the appropriate customary processes for gifting a child in Torres Strait Islander culture.
  3. 7.114 One of the key matters the working party is seeking is that birth certificates use the name of the ‘receiving parents’.
  4. 7.115 Participants considered that elders or a Commissioner should endorse a traditional adoption rather than DHHS, an approved agency or the court. A participant said that the process should not be taken outside the integrity of the culture.

Commission’s conclusion

  1. 7.116 Australia’s history of assimilationist policy and law based on race is documented in Bringing Them Home. It resulted in the removal of Aboriginal and Torres Strait Islander children from their families based on their race. 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.136 The ongoing impact of family disruption

    and child removal on contemporary Victorian Aboriginal and Torres Strait Islander families has been widely acknowledged.137

  2. 7.117 Effective implementation of the apologies given to the Stolen Generations and adequate recognition of Aboriginal self-determination require separate rules and guidelines for Aboriginal and Torres Strait Islander children.
  3. 7.118 The Adoption Act should implement the recommendation in Bringing Them Home that statutory adoption be a last resort for Aboriginal and Torres Strait Islander children and that culturally appropriate alternatives should be preferred. This recommendation has been implemented in other jurisdictions.138 If a child is unable to live with their parents, other arrangements should be used in preference to statutory adoption. If these arrangements require formalisation, parenting orders under the Family Law Act 1975 (Cth) may be used. In child protection situations a range of possible orders exist under the CYF Act.
  4. 7.119 There should be a duty on the Secretary or principal officer to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal or Torres Strait Islander child. If a child’s Aboriginal or Torres Strait Islander status is not identified, none of the specific rules and guidelines for the adoption of Aboriginal children can be applied. Information about the child’s Aboriginal or Torres Strait Islander status needs to be recorded.
  5. 7.120 In the Child’s Best Interests and Always Was Always Will Be Koori Children found that there are practice deficits in establishing children’s Aboriginal identity.139Always Was Always Will be Koori Children recommended a whole-of-government strategy to improve mechanisms to ensure all departments and government-funded services are culturally competent, have rigorous methods and related training for identification of a child’s Aboriginality.140 The Commission endorses these recommendations and considers improvements in practice that result from these recommendations should also be extended to adoption services.
  6. 7.121 The Adoption Act should require that if a child is identified as an Aboriginal or Torres Strait Islander child, an Aboriginal agency is involved in all aspects of the adoption process. This provides improved self-determination of Aboriginal and Torres Strait Islander people and a partnership between government and Aboriginal and Torres Strait Islander people. It would align the Adoption Act with recommendations in Bringing Them Home that placements of an Aboriginal or Torres Strait Islander child should not be made except on the recommendation of the appropriate accredited Indigenous organisation.
  7. 7.122 The Commission considers that statutory adoption is generally an inappropriate option for Aboriginal and Torres Strait Islander children. However, in the event that it is being considered, an Aboriginal agency should be involved in decision making. In some cases this may be VACCA, in other cases a local Aboriginal Community Controlled Organisation.
  8. 7.123 The requirements for status as an Aboriginal agency under the Adoption Act should be defined consistently with section 6 of the CYF Act. This provides for a consistent approach to what is recognised as an Aboriginal agency that provides services to children and their families. It is worth considering whether a one-step process could be used to approve an Aboriginal agency under both the Adoption Act and the CYF Act.
  9. 7.124 Aboriginal and Torres Strait Islander agencies are strongly supportive of the ATSICPP. As those with the most to gain from effective policy and legislation for Aboriginal and Torres Strait Islander children, they are uniquely qualified to speak about what is in the best interests of their children.
  10. 7.125 Bringing Them Home recommended National Standards Legislation which would include a consistent version of the ATSICPP. At a minimum, Victoria should aim for consistency in the articulation of the principle in Victorian legislation.
  11. 7.126 An ATSICPP that is worded consistently with sections 13 and 14 of the CYF Act should replace the current version in section 50 of the Adoption Act. The principle in the CYF Act provides better for key aspects of the ATSICPP. Specifically:
  • it provides that first preference in the placement hierarchy is for the child to be placed within the Aboriginal extended family or relatives
  • it includes a proximity requirement if the child is placed with a non-Aboriginal family
  • it provides for consideration of the expressed wishes of the child and the child’s own sense of belonging
  • it requires that any non-Aboriginal placement must ensure the maintenance of the child’s culture and identity through contact with the child’s community.
  1. 7.127 The Commission considers that decision-making principles in sections 12 of the CYF Act should also be replicated in the Adoption Act to ensure that the child’s family, community and an Aboriginal agency participate in decision making. Consistency with the CYF Act meets the Commission’s terms of reference, which include harmonising the Adoption Act with other relevant legislation.
  2. 7.128 In the Child’s Best Interests recommended that DHHS, in partnership with Aboriginal Community Controlled Organisations, should define the intent of the ATSICPP and that any future amendments to the CYF Act should state the underlying intent. Any changes that are made to section 13 of the CYF Act to implement this recommendation should be reflected in the Adoption Act.
  3. 7.129 Consistency in the way Victorian legislation articulates the ATSICPP will assist with clarity. Measures taken to improve and monitor compliance with the ATSICPP developed in response to the recommendations from In the Child’s Best Interests should alsobe applied to adoption as appropriate.
  4. 7.130 In general, statutory adoption provided for in the Adoption Act is inappropriate for both Aboriginal and Torres Strait Islander children. It is inappropriate for Aboriginal children because it is alien to Aboriginal culture. Although Torres Strait Islanders have Kupai Omasker or ‘traditional adoption’, which involves the permanent transfer of a child, its rules and features are dictated by custom. These rules and features are not consistent with the process and rules of statutory adoption.
  5. 7.131 The right for parents of Aboriginal or Torres Strait Islander children to give conditional consent to an adoption should be retained. Because the Commission recommends replacing section 50 of the Adoption Act, the conditional consent requirements should cease to be linked to this section.
  6. 7.132 To provide adequately for cultural and community connections, the Adoption Act should require a cultural support plan to be prepared for any Aboriginal or Torres Strait Islander child placed for adoption. This is consistent with the CYF Act, which requires that a cultural plan is provided to each Aboriginal child in out of home care.141 Any improvements made to practice in cultural support planning under section 176 of the CYF Act should also be applied to adoption. The situation should not arise where an Aboriginal or Torres Strait Islander child does not know their culture, community and country.
  7. 7.133 For this reason, the requirements (currently in section 114) to notify an Aboriginal or Torres Strait Islander child and their adoptive parents when the child is 12 years old that they may be entitled to certain rights and benefits are unnecessary and should be removed. The associated duty on the court to send a memorandum to the Registrar of BDM (section 70(2)) should also be removed.

Recommendations

  1. 26 The Adoption Act should require the Secretary or principal officer to make reasonable inquiries as to whether a child to be placed for adoption is an Aboriginal or Torres Strait Islander child.
  2. 27 The Adoption Act should require that if a child is identified as an Aboriginal or Torres Strait Islander child, an Aboriginal agency be involved in all aspects of the adoption process. The requirements for status as an Aboriginal agency under the Adoption Act should be defined consistently with section 6 of the Children, Youth and Families Act 2005 (Vic).
  3. 28 The Adoption Act should include a section stating that statutory adoption is not part of Aboriginal or Torres Strait Islander culture. It should provide that the court will not make an order for the adoption of an Aboriginal or Torres Strait Islander child unless satisfied that statutory adoption is clearly preferable to any alternative order that may be made under the laws of the State or the Commonwealth.
  4. 29 The Adoption Act should include an Aboriginal and Torres Strait Islander Child Placement Principle and decision-making principles. The wording should be consistent with sections 12, 13 and 14 of the Children, Youth and Families Act 2005 (Vic). The Aboriginal and Torres Strait Islander Child Placement Principle should include a requirement that a cultural support plan is prepared for any Aboriginal or Torres Strait Islander child placed for adoption.
  5. 30 The Adoption Act should specify that an Aboriginal or Torres Strait Islander child cannot be placed for adoption and the court cannot make an adoption order unless:
  6. a. the Secretary or principal officer has received a report from the Aboriginal agency recommending that the child be placed for adoption
  7. b. a cultural support plan has been prepared for the child.

 

Footnotes

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