Adoption in Australia

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Adoption in Australia deals with the adoption process in the various parts of Australia, whereby a person assumes or acquires the permanent, legal status of parenthood in relation to a child under the age of 18 in place of the child's birth or biological parents. Australia classifies adoptions as local adoptions (placement within the country), and intercountry adoptions (adoption of children born overseas). Known child adoptions (adoption by relatives, stepparents or carers) are a form of local adoptions.

Adoptions in Australia are handled by state and territorial government agencies or approved adoption agencies. It is unlawful to arrange a private adoption,[1] though foreign adoptions may be recognised. Government adoption agencies include Adoption Services in Queensland,[1] Families SA in South Australia[2] and the Department of Human Services in Victoria.[3]

When an adoption is completed, the birth parents (also referred to as natural parents) no longer have any legal rights over the child. The adopted child becomes a full member of the adopting family, taking their surname and assuming the same rights and privileges as a birth child, including the right of inheritance. A new birth certificate is issued, in the case of local adoptions. The adopted child also has the same position as a birth child in relation to the extended family of the adopting parents, for example with laws prohibiting incestuous sexual relationships or prohibiting marriages.[4]

Legal framework

Adoptions in Australia are regulated by legislation and regulations of each State and Territory, which govern all adoptions arranged in that State and Territory. In April 2018, the Northern Territory was the last jurisdiction within Australia that passed a bill to allow both same-sex couples and unmarried different-sex couples to legally adopt children.[5][6][7]

The current State and Territory Adoption Acts are:

Australia is a party to the Hague Adoption Convention which came into force in Australia on 1 December 1998, and has been implemented by amendments to the Family Law Act 1975 and the passing of the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998.[8] The Australian Citizenship Act 2007 simplified the process of obtaining Australian citizenship for children who were adopted overseas in accordance with the Hague Adoption Convention.[9] Intercountry adoptions conform with the principles of the convention.

State and territory governments are in charge of processing inter-country adoptions, but eligibility requirements widely differ in relation to partner relationship status, age, citizenship and health, and there are also federal responsibilities.[10] Each foreign country would also have its own eligibility criteria for the adoption of its children.

Known child adoptions

Family law in Australia with regards to children is based on what is considered to be in the best interest of the child and families. Family laws contain a strong preference for retaining ties to biological parents, and a general presumption against making a known adoption order because an adoption order severs the legal relationship between the child and one of the child's birth parents.[citation needed] Due to the serious consequences of an adoption order, all stepparent adoption laws contain a strong preference for dealing with new parenting arrangements through a parenting order rather than an adoption order. Stepparents and other carers may apply to the Family Court of Australia for a parenting order, as 'other people significant to the care, welfare and development' of the child. It provides an important "status quo" if the birth mother were to die, so, for example, other family members could not come and take the child.

Same sex couple adoptions

Main article: LGBT rights in Australia § Adoption and parenting rights

Adoption for same-sex couples is currently legally available in all of Australia since April 2018.[11]

Western Australia became the first Australian state to allow same-sex adoptions when its Labor government passed the Acts Amendment (Lesbian and Gay Law Reform) Act, 2002 which amended the Adoption Act, 1994 (WA). This allowed same-sex couples to adopt in accordance with criteria that assesses the suitability of couples and individuals to be parents, regardless of sexual orientation. The Northern Territory in April 2018 was the last jurisdiction of Australia to legally allow same sex couples and unmarried heterosexual couples to adopt children.[11]

Australia's first legal gay adoption, by two men, occurred in Western Australia in June 2007.[12][13][14][15] Subsequently, on 2 August 2007, the federal government under Prime Minister John Howard announced it would legislate to stop same-sex couples adopting a child from overseas, and would further not recognise adopted children of same-sex couples. The federal Coalition's proposed Family Law (Same Sex Adoption) Bill would amend the 1975 Family Law Act and override state and territory laws that currently cover international adoptions. The bill was due to be introduced in the spring 2007 session of parliament, but was taken off the agenda following the Coalition's defeat at the 2007 federal election.[16][17]

Both New South Wales since 2010 and Victoria since 2016, legal adoption services within these states have religious exemptions. That means religious organizations can technically still do not have to legally include single people, unmarried heterosexual couples or any same-sex couples married or unmarried within their religious organization adoption services.

Single parent adoptions

Since April 2018, most Australian jurisdictions legally allow single people to adopt children, except in Victoria, South Australia and the Northern Territory.

Intercountry adoptions

See also: Australian nationality law § Citizenship by adoption

Intercountry adoption in Australia first began in 1975 towards the end of the Vietnam War when 292 Vietnamese orphans were brought to Australia in an American organised evacuation from Vietnam of Asian-American orphans, called 'Operation Babylift'.[18] An average of 330 intercountry adoptions were finalised each year for the ten years between 1998 and 2008.[18] The rate of children being adopted from China has increased faster than any other country from 0.3% in 1999/2000 to 30.9% in 2006/07. In 2007/2008, there were only 270 children adopted from other countries by Australian parents, the majority of the children coming from, in descending order, China (63 children, 23.3%), South Korea (47 children, 17.4%), Philippines (41 children, 15.2%) and Ethiopia (35 children, 13.0%).[18] By 2011/12, the number of intercountry adoptions had dropped to 149,[10] and 129 in 2012/13.[19]

The Australian Government Attorney-General's Department has primary responsibility for developing and maintaining intercountry adoption arrangements with other countries. This responsibility is shared with the State and Territory authorities, which assess applications, facilitate adoptions, provide advice and assistance, and provide post-placement support and supervision.[20] Applicants must meet the eligibility requirements set by the Australian State or Territory in which the application is being lodged, as well as the eligibility criteria of the overseas country of the adoptive child. Intercountry adoption can be a lengthy process, usually taking at least two years in Australia, requiring multiple assessments of the continued suitability of prospective parents.[21]

Intercountry adoption practices are in accordance with the principles of the Hague Convention on Intercountry Adoption, which came into force in Australia on 1 December 1998. As at August 2009, Australia had open adoption programs with Bolivia, Chile, China, Colombia, Ethiopia, Fiji, Hong Kong, India, Lithuania, Philippines, South Korea, Sri Lanka, Taiwan, and Thailand. Most of the countries with which Australia has direct adoption programs are also parties to the Hague Adoption Convention, the exceptions being Hong Kong, Ethiopia and Taiwan. Countries with which adoption programs have closed include Costa Rica, Guatemala, Mexico and Romania.[22] In 2012, Australia closed the adoption program with Ethiopia. It did so at a time when no Ethiopian children would be disadvantaged as no Ethiopian children were available for adoption by Australian parents.

Statistics

There has been a substantial decline in the number of adoptions in Australia since the early 1970s.[23] In 1971/72 there were 9,798 adoptions, which declined to 668 in 1995/96.[24]

A report by the Australian Bureau of Statistics attributes this decline to the introduction of welfare for single mothers, increased legal access to termination of pregnancy, family planning services, access to child care and improved participation of women in the workforce.[24] Forced adoption of tens of thousands of Aboriginals and the children of single mothers continued until the early 1980s.

As the table below demonstrates, Australia has a significantly lower rate of adoption than the United States and the United Kingdom:

Country Adoptions Live births Adoption/live birth ratio Notes
Australia 502 (2003/2004)[25] 254,000 (2004)[26] 2 per 1000 live births Includes all adoptions
England & Wales 4,764 (2006)[27] 669,601(2006)[28] 7 per 1000 live births Includes all adoption orders in England and Wales
United States approx 127,000 (2001)[29] 4,021,725 (2002)[30] 30 per 1000 live births The number of adoptions is reported to be constant since 1987.

Low rates of local adoptions are attributed to the low number of children who need placement. Low rates of international adoptions are attributed to long wait times (from two to as much as eight years) and high cost (up to $40,000). The following table shows the most recent adoption figures, from the Australian Institute of Health and Welfare:[31]

2005/06 2006/07 2007/08 2008/09
Intercountry adoptions 421 405 270 269
Local adoptions 60 59 70 68
'Known-child' adoptions 95 104 100 104
Totals 576 568 440 441

In 2012/13, there was a total of 339 children adopted nationally, arranged through the eight administrations.

Stolen generations

Main article: Stolen Generations

The Stolen Generations (also stolen children) refers to those children of Australian Aboriginal and Torres Strait Islander descent who were removed from their families by the Australian Federal and State government agencies and church missions, under acts of their respective parliaments.[32][33] The removals occurred in the period between approximately 1869[34] and 1969,[35][36] although in some places children were still being taken in the 1970s.[37]

The earliest introduction of child removal to legislation is recorded in the Victorian Aboriginal Protection Act 1869. The Central Board for the Protection of Aborigines had been advocating such powers since 1860, and the passage of the Act gave the colony of Victoria a wide suite of powers over Aboriginal and 'half-caste' persons, including the forcible removal of children, especially 'at risk' girls.[38] By 1950, similar policies and legislation had been adopted by other states and territories.[39] According to the Bringing Them Home inquiry into the forced separation of indigenous children from their families, less than 17% of the children were adopted. The majority of these adoptions occurred after 1950 when authorities began promoting the fostering and adoption of Aboriginal children by white parents.

Traditional Torres Strait Islander adoptions

A traditional cultural practice by Torres Strait Islander peoples, known as kupai omasker, allows adoption of a child by a relative or community member for a range of reasons. The reasons differ depending on which of the many Torres Islander cultures the person belongs to, with one example being "where a family requires an heir to carry on the important role of looking after land or being the caretaker of land". Other reasons might relate to "the care and responsibility of relationships between generations".[40]

There had been a problem in Queensland law, where such adoptions are not legally recognised by the state's Succession Act 1981,[41] with one issue being that adopted children are not able to take on the surname of their adoptive parents.[40] On 17 July 2020 the Queensland Government introduced a bill in parliament to legally recognise the practice.[42] The bill was passed as the Meriba Omasker Kaziw Kazipa Act 2020 ("For Our Children's Children") on 8 September 2020.[43]

Changing attitudes

While the first adoption legislation in Australia in the 1920s[44] fostered relatively "open" adoptions, a second wave of legislation passed in the 1960s had emphasised the importance of a "clean break" from birth parents and enshrined the principle of secrecy around the adoptive status of children, who were to be raised by their adoptive parents "as if born to them". This principle was meant to provide adoptive parents with heirs without fear of stigma or interference from the biological parent/s, but also operated to allow the unmarried mother, her child, and her family, to be shielded from the shame of an illegitimate birth.[45]

The number of adoptions has decreased since the 1970s. This is largely due to the increase in social acceptance of single parent families and de facto relationships. Government benefits for single parents and improved access to contraception and abortion are also important reasons for this trend.[3]

Subsequent revelations decades later of the history of the treatment of "removed" children, whether indigenous, white Australian, or the British children who travelled to Australia in imperial forced migration schemes well into the twentieth-century, had a profound impact on public perceptions of adoption. The notion of "coming home", mobilised with great effect by indigenous Australians to account for their experiences of separation from family into institutions or adoption, came to stand for the adoptive experience generally. This concept stigmatised adoptions in general as entailing loss, removal from roots, and pain while at the same time idealised the birth family, minimising if not shutting out the role and experiences of the adoptive family.[45]

Recognition of the damaging effects of previous adoption policies had burgeoned in the 1970s and 1980s. Beginning in the mid-1970s, all Australian states and territories reviewed adoption legislation and embarked on initially cautious reversals of previous (secretive) practices throughout the 1980s. National Adoption Conferences, convened in Australia in 1976, 1978 and 1982, brought together people affected by adoption with professionals and researchers. These conferences served as important for activism and agitation on adoption law reform. Workers in the field began to tend towards the view that children should be with their biological parents where possible.[45] Sociologist Rosemary Pringle suggested as late as 2002 that adoption in Australia had lost virtually all social policy credibility.

Then, in 2005 and again in 2007, in two significant reports from the House of Representatives Standing Committee on Family and Human Services, adoption appeared to reemerge on the political agenda as viable social policy. The 2005 report endorsed not only intercountry adoption, but suggested that adoption, rather than foster care and other out-of-home-care, might also be in the best interests of many Australian-born children. It also reversed the Australian tendency towards non-interventionism in family matters. The Standing Committee stated that it had concluded it was "unequivocally in support of intercountry adoptions as a legitimate way to give a loving family environment to children from overseas who may have been abandoned or given up for adoption". This is contrasted with the negative attitudes to adoption found within the state and territory welfare departments responsible for processing adoption applications at the time. These attitudes ranged "from indifference to hostility".[45] In December 2013, NSW family and community services minister Pru Goward said adoption can improve lives, saying "How can we hope to break the cycle of intergenerational disadvantage if we do not begin by giving each of these children a safe and loving home for life?"[10]

See also

References

  1. ^ a b Adoption Services Queensland - Adoption.
  2. ^ "Adoption in South Australia". Department for Education and Child Development - Families SA. Retrieved 12 October 2016.
  3. ^ a b Department of Human Services, Victoria.
  4. ^ Marriage Act 1961 - Section 23B
  5. ^ "Adoption". 21 May 2015.
  6. ^ "NT passes adoption equality for same-sex couples". 13 March 2018.
  7. ^ "Adoption Act Changes = Equality for Same-Sex and de facto Couples - Territory Families". Archived from the original on 3 April 2018. Retrieved 3 April 2018.
  8. ^ Family Law (Hague Convention on Intercountry Adoption) Regulations 1998
  9. ^ Australian Citizenship Act 2007
  10. ^ a b c The Australian, 19 December, 2013 - Tony Abbott Announces Adoption Taskforce
  11. ^ a b https://www.abc.net.au/article/9547274 [permanent dead link]
  12. ^ "Gay adoption 'groundbreaking'". PerthNow. Archived from the original on 3 April 2008. Retrieved 13 May 2008.
  13. ^ "First Legal Gay Adoption in Australia". SameSame.com.au. Archived from the original on 10 February 2008. Retrieved 13 May 2008.
  14. ^ "Australia's First Legal Adoption For Gay Couple". efluxmedia. Archived from the original on 21 June 2008. Retrieved 13 May 2008.
  15. ^ "Australia's First Gay Adoption". ProudParenting.com. Archived from the original on 8 February 2008. Retrieved 13 May 2008.
  16. ^ "Green Left – Stop the proposed same-sex adoption ban". Green Left. Archived from the original on 18 February 2008. Retrieved 13 May 2008.
  17. ^ "Gay couples face overseas adoption ban". The Sydney Morning Herald. 2 August 2007. Retrieved 13 May 2008.
  18. ^ a b c "History of Intercountry Adoption in Australia". Australian Government Attorney-General's Department. Archived from the original on 28 July 2008. Retrieved 2 September 2008.
  19. ^ The Sydney Morning Herald, 19 December 2013 - PM Abbott seeks advice on adoption reform
  20. ^ "Roles of the Commonwealth, States and Territories". Australian Government Attorney-General's Department. Archived from the original on 28 July 2008. Retrieved 2 September 2008.
  21. ^ "Adoption of a child". Birth. Retrieved 3 September 2008.
  22. ^ "Current Intercountry Adoption Programs". Australian Government Attorney-General's Department. Archived from the original on 15 September 2008. Retrieved 2 September 2008.
  23. ^ "Adoption factsheet". Children by Choice. 4 July 2016.
  24. ^ Australian Institute of Health and Welfare, Adoptions Australia 2003–04 Archived 13 October 2009 at the Wayback Machine, Child Welfare Series Number 35.
  25. ^ Australian Bureau of Statistics,Population and Household Characteristics
  26. ^ UK Office for National Statistics, Adoption Data Archived 11 January 2009 at the Wayback Machine
  27. ^ UK Office for National Statistics, Live Birth Data
  28. ^ The National Adoption Information Clearinghouse of the U.S. Department of Health and Human Services, How Many Children Were Adopted in 2000 and 2001, 2004 Archived 7 May 2005 at the Wayback Machine
  29. ^ U.S. Center for Disease Control, Live Births
  30. ^ "Adoptions Australia 2008–2009" (PDF). Archived from the original (PDF) on 31 March 2010. Retrieved 17 February 2010.
  31. ^ Bringing them Home, Appendices listing and interpretation of state acts regarding 'Aborigines': Appendix 1.1 NSW Archived 8 October 2008 at the Wayback Machine; Appendix 1.2 ACT Archived 10 August 2008 at the Wayback Machine; Appendix 2 Victoria Archived 10 August 2008 at the Wayback Machine; Appendix 3 Queensland Archived 10 August 2008 at the Wayback Machine; Tasmania Archived 10 August 2008 at the Wayback Machine; Appendix 5 Western Australia Archived 10 August 2008 at the Wayback Machine; Appendix 6 South Australia Archived 10 August 2008 at the Wayback Machine; Appendix 7 Northern Territory Archived 10 August 2008 at the Wayback Machine.
  32. ^ Bringing them home education module Archived 22 July 2008 at the Wayback Machine: the laws: Australian Capital Territory Archived 20 September 2009 at the Wayback Machine; New South Wales Archived 30 September 2009 at the Wayback Machine; Northern Territory Archived 7 October 2009 at the Wayback Machine; Queensland Queensland Archived 20 September 2009 at the Wayback Machine; South Australia Archived 2 October 2009 at the Wayback Machine; Tasmania  ; Victoria Archived 20 September 2009 at the Wayback Machine; Western Australia . "Bringing them home education module". Archived from the original on 21 August 2009. Retrieved 4 July 2008.
  33. ^ Marten, J.A., (2002), Children and war, NYU Press, New York, p. 229 ISBN 0-8147-5667-0.
  34. ^ Australian Museum (2004). "Indigenous Australia: Family". Archived from the original on 20 April 2008. Retrieved 28 March 2008.
  35. ^ Read, Peter (1981). The Stolen Generations: The Removal of Aboriginal children in New South Wales 1883 to 1969 (PDF). Department of Aboriginal Affairs (New South Wales government). ISBN 0-646-46221-0. Archived from the original (PDF) on 9 April 2012.
  36. ^ In its submission to the Bringing Them Home report, the Victorian government stated that "despite the apparent recognition in government reports that the interests of Indigenous children were best served by keeping them in their own communities, the number of Aboriginal children forcibly removed continued to increase, rising from 220 in 1973 to 350 in 1976" (Bringing Them Home: "Victoria" Archived 10 August 2008 at the Wayback Machine).
  37. ^ M.F. Christie, Aboriginal People in Colonial Victoria, 1835–86, pp. 175–176.
  38. ^ Such as the Aboriginal Protection and restriction of the sale of opium act 1897 (Qld), the Aborigines Ordinance 1918 (NT), the Aborigines Act 1934 (SA) and the 1936 Native Administration Act (WA). For more information, see Bringing them Home, appendices listing and interpretation of state acts regarding 'Aborigines' Archived 10 August 2008 at the Wayback Machine.
  39. ^ a b Rigby, Mark (4 June 2020). "Torres Strait Islanders fear time running out for legal recognition of traditional adoptions". ABC News. Australian Broadcasting Corporation. Retrieved 9 June 2020.
  40. ^ "Succession Act 1981". Queensland Legislation. 25 May 2020. Retrieved 9 June 2020.
  41. ^ Rigby, Mark (16 July 2020). "Torres Strait Islander adoption practices bill introduced to Queensland Parliament". ABC News. Australian Broadcasting Corporation. Retrieved 16 July 2020.
  42. ^ "'Historic moment': Queensland now recognises traditional Torres Strait Islander adoption practices". SBS News. 9 September 2020. Retrieved 10 October 2021.
  43. ^ Western Australia: Adoption of Children Act 1921. Victoria introduced adoption legislation in 1928.
  44. ^ a b c d Murphy, Kate; Quartly, Marian; Cuthbert, Denise (2009). ""In the best interests of the child": mapping the emergence of pro-adoption politics in contemporary Australia". bNet. Retrieved 2 September 2008.

Further reading

External links

Retrieved from "https://mdwiki.org/wiki/Adoption_in_Australia"