INTRODUCTION
9.1 The terms of reference ask the Commission to consider among other things, “the relevance of Aboriginal customary law, and ethnic and racial heritage”. This issue arises mainly in situations where the adopters do not share the racial or ethnic heritage of the birth family. It is clear that adoption has a capacity to alienate adopted people from their ethnic and racial heritage. In the past, this effect may have been seen as inevitable, being one aspect of the “clean break” that adoption was supposed to bring about between the adopted person and the birth family. In the case of Aboriginal children, the effect appears to have been intended at certain periods; adoption played a part in what was a deliberate policy of separating Aboriginal children, especially those of mixed parentage, from their Aboriginal roots so that they would be absorbed into the general community.
9.2 There has been great deal of change in this area. First, the development of “open adoption” in its various forms has created the potential for preserving the links between adopted people and their racial and ethnic heritage. It follows that adoption does not necessarily involve the so called “clean break” of former times. Second, as noted in Chapter 3, it is now widely accepted that as far as possible children should grow up with an understanding of and respect for their racial and ethnic heritage.1 This approach is seen both as a way of avoiding discriminatory practices and also as a way of promoting children’s rights and welfare. If this is correct, it would seem that the main question is to what extent the law of adoption can provide benefits to children without destroying or undermining their links with their racial and ethnic heritage. We would welcome comments on whether this is an appropriate statement of the issue.
ABORIGINAL CUSTOMARY LAW
9.3 The Commission welcomes comments about the meaning of the term “Aboriginal customary law”.2 For the purpose of this Issues Paper, it may be sufficient to say Aboriginal customary law, in relation to the issue of adoption, is any set of social rules and customs regarding children, families and family structures that is recognized as binding by the members of an Aboriginal community. These customary laws may represent either traditional practices or modern adaptations of them. We should add that it seems appropriate to adopt the generally accepted definition of “Aboriginal”, embodied for example in the Aboriginal Land Rights Act 1983 (NSW), which includes people who have some Aboriginal inheritance, identify themselves as Aboriginal and are accepted as such by other Aboriginal people. Recognition of Aboriginal customary law might be achieved in a variety of ways, including provisions encouraging the courts or other authorities to have regard to Aboriginal values and practices, provisions for the participation of Aboriginal organisations and provisions recognising Aboriginal customary marriage as “marriage” for the purpose of adoption law.
9.4 Former policies regarding the “assimilation” of Aboriginal people into the general community have been firmly rejected as a matter of policy and, increasingly, as a matter of law. In New South Wales, for example, the child welfare legislation provides that as far as possible Aboriginal children should remain with their families, their communities or with other Aboriginal people. It also provides for the involvement of Aboriginal people and organisations in decisions about the placement of Aboriginal children.3 Similar provisions exist in the adoption legislation of some states.4
9.5 The Adoption of Children Act 1965 (NSW) is silent on the placement of Aboriginal children for adoption but it does make special provision for Aboriginal adopters. In substance it provides that couples recognised as married by Aboriginal tradition may adopt Aboriginal children. Perhaps unfortunately, the provision treats such marriages as a variety of de facto relationships rather than, for example, simply defining “marriage” to include people married according to Aboriginal law or tradition.5 Another issue that arises in connection with Aboriginal people is whether any arrangements by Aboriginal people for the permanent care of children by non-parents should be recognised as “adoption” for the purpose of the adoption legislation. The Australian Law Reform Commission was cautious on this matter in its 1986 report, pointing out that such legal recognition may have consequences quite different from those expected or desired by the Aboriginal people involved.6 An example would be the issuing of a new birth certificate for the child.
9.6 It may be that adoption is of limited practical importance to Aboriginal people in New South Wales today since it seems that very few Aboriginal children are adopted and it does not seem to be common for Aboriginal people to wish to adopt children. Nor is the Commission aware at this stage of any desire to have traditional Aboriginal child care arrangements recognised as “adoption” for the purpose of the adoption legislation. On the other hand, Aboriginal organisations have strongly urged that the law should ensure as far as possible that Aboriginal children remain with their own families and communities, and that some version of the Aboriginal Placement Principle should be incorporated into adoption legislation.7 The Commission would appreciate comments on these issues, particularly from Aboriginal people.
ETHNIC AND RACIAL HERITAGE
9.7 The Convention on the Rights of the Child provides that when considering alternative placements for children, including adoption, “due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”.8 This principle has particular relevance to inter-country adoptions, considered in Chapter 10.
9.8 The Commission would welcome advice on the adequacy of the present law in this area. Should it be clarified or strengthened? There are a number of legal strategies that might be used if it were thought necessary to strengthen the law. Guidelines could be inserted into the Act requiring the Court and other bodies to have regard to these matters. There could be provisions requiring the Court or other relevant bodies to obtain expert advice before making decisions in any adoption matter that raised cross-cultural issues. Stronger measures could be taken. For example, the law might specify that children should never be placed with adopters having a different racial or ethnic heritage or should be so placed only in specified circumstances. Other approaches might require or encourage the involvement of particular representative organisations in cross-cultural placements. Specific criteria could be developed for the assessment of adoptive parents in such cases. Some form of legal obligation could be placed on agencies to place children with adopters of similar ethnic origins where possible. Should the adopting parents be placed under some form of legal obligation to maintain the children’s contact with their racial or ethnic heritage? Should there be specific provisions for local or inter-country adoptions that require the children’s names to be linked with their racial or ethnic heritage? The Commission looks forward to comments on whether these or other strategies are desirable.
FOOTNOTES
1. For examples of these issues arising in adoption proceedings, see In the Matter of F: McMillen v Larcombe (1976) NTJ 1001; F v Langshaw (1983) 8 Fam LR 833; C v T (1985) 10 Fam LR 458.
2. See generally Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (Report 31, 1986).
3. Children (Care and Protection) Act 1987 (NSW), s 87.
4. See especially Adoption Act 1984 (Vic), s 50.
5. Compare with Adoption Act 1988 (SA), s 4(3) (man and woman married according to Aboriginal tradition to be regarded as husband and wife for the purpose of the Act). See also Adoption Act 1984 (Vic), s 11(1).
6. Australian Law Reform Commission The Recognition of Aboriginal Customary laws (Report 31, 1986), Vol 1, at 286-270.
7. See, for example, E Sommerlad, “Homes for Blacks: Aboriginal Community and Adoption” in C Picton (ed), Proceedings of the First Australian Conference on Adoption 1976 (Committee of the First Australian Conference on Adoption, Melbourne, 1976), at 160.
8. Article 20(3); see also Article 30.
