Adoption Amendment Bill 2011
Date:Tuesday, March 20, 2012
Resumed from 30 November 2011.
HON ALISON XAMON (East Metropolitan) [8.34 pm]: I am pleased to have an opportunity to rise and speak to the Adoption Amendment Bill 2011. The Greens (WA) support the bill generally and the majority of the amendments, but retain some concerns and questions that I will raise not only today but also within the committee process.
Despite adoption involving a relatively small number of children every year, it is a very important and highly emotive area. It is very complicated and in many ways there is a very sad history around adoption in WA. The secrecy and stigma surrounding past adoption policies has had a terrible impact on many individuals and continues to have a devastating impact on individuals, including some whom I deal with. I am talking about members of the stolen generation, child migrants and, of course, those women and adoptees who were subjected to forced adoption practices and who were the subject of an apology in this Parliament and, more recently, the subject of a Senate inquiry at the federal level. These people continue to suffer the long-term impact of the policies of previous adoption practices. We know that for a parent to give up a child, even if it is a child who is unplanned and even if it is in circumstances in which the biological parent cannot see themselves being able to raise that child, it is still an absolutely devastating process to go through. We have to be quite realistic about what it means, particularly for women, to go through with a pregnancy and give up that child, and the life-long, devastating impacts that such a decision has. I recognise that for people who are unable to have children of their own and who wish to adopt, the adoption of a child can be an enormous gift. We need to remember that that can potentially come at an enormous emotional cost to the parent who has relinquished the child due to whatever circumstances they face. Thankfully, there have been significant reforms in the area of adoption, particularly regarding openness and accountability. In contrast to the closed nature of past adoptions, 84 per cent of local adoptions in 2010–11 were considered open. By that, I mean that all parties were happy to allow a degree of contact or information exchange to occur between families. Now in Western Australia, adoption is only approved if it is considered to be in the best interests of the child. Since 2003 the principles of the Adoption Act 1994 have included that the adoption of a child occurs only in circumstances in which there is no other appropriate alternative for the child. Given that adoption permanently severs a child’s relationship with their biological parents and that the issuing of a new birth certificate distorts family history, it is recognised that adoption should be considered only when no other alternative is appropriate and when it is clearly in the best interests of the child.
As has been discussed by previous speakers, there has been a steady decline in adoption in WA, with adoption orders for only 12 unrelated children granted in 2010–11—four local and eight inter-country—and 25 known child adoptions; that is, two carers, seven step-parents and 16 adults. Those figures come from the Department for Child Protection’s annual report. We know that adoption applicants far outweigh the number of children available for adoption. This situation in WA is reflected across Australia. According to the Australian Institute of Health and Welfare, the 384 finalised adoptions in 2010–11 was the lowest annual number on record. It represented a seven per cent decline from the previous year and a 66 per cent decline from the 1 142 adoptions in 1990–91. In contrast to the dramatic decrease in the number of Australian children adopted, inter-country adoption numbers have fluctuated over the past two decades and have been the most common type of adoption since 1999–2000. However, the 215 such adoptions in 2010-11 continued a six-year pattern of decline. I believe the steady decline in adoptions for children within Australia is a good thing to the extent that it reflects society’s changing attitudes about raising children outside the traditional marriage structure. It is welcome that we have a broadened definition of what constitutes a healthy environment for a child to grow up in. I recognise that it also means we have increased the choice for women to determine their own reproductive future.
I acknowledge that there are also increased levels of support for families to stay together. Of course, I still believe, though, that we have a long way to go. There is still enormous room for improvement. I am thinking particularly about the ongoing need for assistance for struggling parents, as well as better attitudes towards a range of different family types, including sole parents and same-sex-couple parents, who we know are perfectly capable of raising emotionally, intellectually and physically healthy children who are also happy and very well adjusted. Therefore, it is important that adoption legislation be regularly updated to reflect not only contemporary values, but also our increasing understanding and knowledge about early childhood development and attachment, and, importantly, the profound and lifelong implications that may arise when we do not get these things right.
I note that this bill implements recommendations from the 2007 Adoption Act legislative review by the Adoption Act Legislative Review Committee, and I understand that the review is generally considered to have been very well done. There was wide consultation with stakeholders at the time that was positive. However, like Hon Sue Ellery, concerns have also been raised with me by stakeholders that there was not sufficient consultation in the drafting of the bill that we are debating tonight. Given that the review was undertaken in 2006 and the report delivered in 2007 and we are now in 2012, and that the minister chose not to accept all the recommendations of that original review, I for one would like to have seen a greater level of subsequent consultation.
I will speak to specific provisions of the bill that is in front of us tonight. The 2007 review found a need for more transparency regarding the role of and decisions made by the Adoption Applications Committee, which is the committee responsible for decisions about whether applicants to adopt a child are suitable to do so. The bill gives the Adoption Applications Committee greater independence from the Department for Child Protection. The majority of members are to be independent of the department, and at least one member needs to be a lawyer. The CEO of DCP will be able to direct the committee on policy and procedural matters, but not regarding whether an applicant is suitable to be an adoptive parent. I know that these changes have already been implemented. The changes are welcome. We also have welcome changes made to the provisions for review and appeal of AAC decisions. The CEO can review the committee’s decision on the application of an aggrieved person and must provide written notice of that decision. If the applicant is still unhappy, they will have access to the State Administrative Tribunal. As I said, the opportunity for external review is a welcome improvement, as currently external appeals can be made to the Family Court of Western Australia and are limited to procedural aspects of the decision. I welcome the greater transparency and procedural fairness in the decision making of that process.
The bill also reintroduces relative adoptions. This is a significant change in the bill. Western Australia is one of the few jurisdictions in which adoption by a relative is currently not permitted following the repeal of these provisions by the Australian Labor Party in 2003, although other states tend to permit relative adoption only when this is clearly preferable to other options of permanent care, or in exceptional circumstances. According to the Australian Institute of Health and Welfare, there was only one relative adoption in Australia in 2010–11.
According to the explanatory memorandum, this provision was included with the intention of supporting children and relatives seeking the permanency of adoption when other legislative options are inappropriate or unsuitable. I have a range of concerns about severing the legal link a child has with his or her birth family when a relative wishes to care for the child, and I believe that there would have to be some very compelling reasons to do so.
I share a number of the concerns that were raised by Hon Sue Ellery about the way in which relative adoptions in the past have been able to be used to effectively distort the nature of family arrangements. I would like to hear from the minister an example of the type of scenario she envisaged by reintroducing relative adoptions within this legislation. Certainly, the concerns that have been raised with me include the fact that relative adoption has the potential to lead to confusion and complexity in family relationships, and it is not considered to be an appropriate mechanism for resolving an intra-family situation. Of course, it permanently severs the legal relationship between the child and relatives who are significant to the child, including the extended family, and could be used as a means of excluding the child’s extended family. Relative adoption distorts family relationships and can cause genealogical confusion, as the child’s mother may become the legal sister or cousin. It may also inhibit the ability of the child to clarify their biological background. However, I will speak a little more about these provisions when we go into committee.
Closely related to relative adoption is step-parent adoption, whereby the child of one partner from a previous marriage or relationship is adopted by the other partner. Although step-parent adoption is currently provided for in the Adoption Act, the 2007 review recognised that in many cases step-parent adoption is not preferable to other legal options. The review committee considered that it should still be available as there are conceivable cases in which it might be in the child’s best interests—for example, when one of the birth parents is deceased and there is no relationship with that parent’s extended family. I envisage that some same-sex couples may want to take advantage of this provision when there is no contact at all with the child’s other biological parent. However, in my consultations on this bill, people expressed the opinion that step-parent adoption, along with relative adoption, should be prohibited—that is the position that was put to me—and that the potential damage done to an individual when their history is distorted by the process of adoption should be enough to exclude these types of adoptions from our legislation. I note that many adoption support groups, as well as specialists who provide very important support and counselling services to adoptees and relinquishing parents such as the Adoption Research and Counselling Service and Adoption Jigsaw, have grave misgivings about these types of adoptions. I would not personally go as far as to say that I think they should be banned, but I recognise that unless they are handled very carefully, they can lead to some quite significant and unforeseen outcomes.
We know that there is generally a higher rate of relationship breakdown in second and subsequent marriages. If this occurs after a child has been adopted, the child’s links with their other birth parent will have already been severed permanently. That is not simply what happens to the adopted child. If that adopted child goes on to have children, it means that those children have also had their relationship with their biological grandparent permanently severed. The review also cites anecdotal evidence of the court not considering relationship breakdown to be sufficient grounds to discharge an adoption. That means that there could potentially be a situation in which a child is left who not only no longer has a parent with whom they have any sort of social link, but also does not have a biological link either. At the same time, the child has also had the link with the biological parent legally severed, and that is clearly a terrible situation to put someone in. For this reason, I would argue very strongly that any case of step-parent or relative adoption must be considered extremely carefully by the court.
The Adoption Amendment Bill 2011 also introduces new provisions that provide the chief executive officer with more specific powers and criteria for approving placement of a child with a carer with a view to the child being adopted. These powers and criteria also provide for relative adoptions. It is my understanding that this is one of the areas that has been of great interest, especially for child psychologists I know who work within the area of children with attachment issues and children who are currently in the foster care system. I note that the CEO must be satisfied that the child’s adoption would be preferable to the making of a protection order or special guardianship under the Children and Community Services Act 2004, and also that the child must have been in the applicant’s care for the past two years—down from three years for consistency with special guardianship under the Children and Community Services Act 2004. As I have mentioned, I believe that these provisions are of the greatest interest to people working in this area.
I welcome the recognition of the importance of permanency planning and providing children with the opportunity of a safe, stable and secure situation. The introduction of special guardianship provisions in 2010 was one part of a good response to permanency planning for children in the long-term care of the CEO. There has been a quite significant increase in the number of children being apprehended by the Department for Child Protection. As at 30 June 2011, 3 519 children were in the CEO’s care—up from 2 200 in June 2006. We do not have enough foster carers; indeed, there is a critical lack of people with the skills, resources, willingness and personal capacity to care for children, who, as a result of their backgrounds, often have some quite serious developmental and behavioural issues and require varying specialist care and support. It is extremely important that we look very carefully at the reasons for such a significant increase in the number of children in the CEO’s care, and why so many foster parents choose not to continue. We certainly know that we need to provide more support, including therapeutic support and training—as well as better conditions—for foster parents. It is certainly not in the interests of children to be shunted from foster family to foster family, yet many of these vulnerable children have multiple foster care placements for very short periods.
I recognise that these children need permanent homes, and obviously the ideal is for the children to be reunified with their families; however, I also recognise that that may not be possible in some cases. If there is no chance of the children being appropriately cared for by their biological parents, then carers should be supported to provide permanent and stable care for the child. This may be in the form of special guardianship orders, or in some limited cases it may be in the form of adoption. Attachment is a biological need, and without an adequate attachment relationship children cannot thrive. Of the foster or adopted kids in the United States, 52 per cent cannot attach and have reactive attachment, which means that they have no reason to follow society’s dictates. They become highly antisocial and, effectively, become part of the revolving door foster situation. Reactive attachment reflects in one’s long-term physical and mental health, and brings an increased likelihood of disease over the long term. It is a massive risk factor and results in job failure, relationship failure, and very negative interactions with the justice system. We need to start getting the issue of attachment right. Of course, the flipside is that we need to do everything we can, before having these children adopted out, to ensure that a reunification endeavour is attempted as far as it possibly can be.
The changes to the age requirements have been discussed tonight. The amendments in the bill will remove any restriction on the age difference between the oldest prospective adoptive parent and the child being placed. The youngest prospective adoptive parent, or sole prospective adoptive parent, must still be not more than 45 years older than the child when there is no other child in the prospective adoptive parents’ family, and not more than 50 years older than the child when there is another child in the family. I think this is a sensible, fair amendment, and I think it positively reflects our increased life expectancy. Having said that, though—I make this comment in light of Hon Sue Ellery’s proposed amendment—it has been suggested to me that some people still have concerns about having changed the age to make it even higher because they worry that it might set up false expectations. Age is still a factor. With that in mind, I am concerned that the amendment proposed by Hon Sue Ellery may actually have an even more negative effect in the sense that people who are considered too old from the outset will not be aware of that and will go through what is an arduous process to allow them to adopt. We will obviously discuss that more during the Committee of the Whole.
The bill also removes the offence of breaching contact restrictions. I think that is a very sensitive area, but I welcome this amendment, which was recommended by the review. Contacting someone should not be a criminal offence. We already have laws that cover the harassment of people, including stalking, and it seems to me that if that line has been crossed, then people can be dealt with under those provisions. I think that removing that offence is very welcome.
I also note that Aboriginal and Torres Strait Islander children are, quite rightly, special examples in this legislation, because although very few Aboriginal and Torres Strait Islander children are adopted, it is important to have legislative provisions that acknowledge that it is important that any adoptions are undertaken with the appropriate culturally secure underpinnings and safeguards. Reflecting other recent legislation, this bill requires the CEO to consult with at least one of either an Aboriginal and Torres Strait Islander departmental officer or an ATSI person or agency with knowledge of the child’s family or community. According to the summary of amendments, this amendment is to ensure that the required consultation is effective and meaningful.
To introduce greater flexibility, as recommended by the review committee, amendments will be made to provisions regarding the adoptee’s name. The bill also updates criminal record checking provisions, in line with working with children check provisions and classes of offences; I will raise some questions about that during the committee stage.
The bill makes some positive changes to the provisions around adoption plans. Adoption plans are a really key element of the adoption scheme in Western Australia. They set out the intentions of birth and adoptive parents, and govern contact between the parties over the child’s lifetime. The plan is intended to facilitate the sharing of information about the child between his or her birth family and adoptive family. Following agreement of the plan, preparations are made for placement of the child with the adoptive parents. There is a minimum six-month supervision period before the adoption is finalised by an adoption order by the Family Court. The adoption plan is lodged with the application to the court for an adoption order; it may be dispensed with under special circumstances, such as with intercountry adoptions.
The bill amends the act to specify a process for reviewing the plan as a matter that may be included in the plan, and it requires the CEO to provide assistance and mediation to persons who are seeking to review or vary a plan. This welcome amendment was a recommendation of the review. It reflects the need to allow people to be able to change aspects of the adoption plan to meet their changing wishes over time. It is really important that all parties are provided with the appropriate support services when reviewing or varying an adoption plan, given the often sensitive nature of the issue of contact between parties to an adoption. I understand that the issue of noncompliance with adoption plans has also been raised by people who work in the area of adoption support.
Adoption services noted that there is no sanction for noncompliance. They said that they would like penalties. Sometimes noncompliance is due to emotional distress over the adoption. What they want is for sanctions to be available, but parties must apply to the court to have the plan enforced. It was certainly acknowledged that the Family Court of Western Australia and the Department for Child Protection are not resourced to monitor compliance with adoption plans. It is a really difficult area. I would be interested in the minister’s comments on the support the department is able to provide to people when there are issues of noncompliance with adoption plans.
In terms of other provisions, the bill provides more equitable application criteria for prospective adoptive parents. Applicants who are married or in a de facto relationship must apply as joint applicants if they have been in a relationship for at least three years. A person who jointly applies to become an adoptive parent will be allowed to continue the application as a single person if their relationship breaks down without returning to the beginning of the assessment process. However, I note that the regulations will require a 12-month suspension of their application so that they still have time to reappraise their circumstances in light of these changes. These are really positive amendments. The bill also proposes terminology amendments throughout the act, primarily substituting ?guardianship? with ?parental responsibility?.
I have a question about the code of practice. As I said, I will speak further about some of the proposed amendments during the committee stage, but I note that there is an urgent need for the code of practice to be revised in consultation with licensed mediators and relevant interest groups. I note that this was recommendation 37 of the original review. It is something that I know groups who are involved in adoption have been very keen to see happen. I note it has not occurred. I would be interested to know whether the minister intends to review the code; and, if so, the proposed time frame and how that consultation will occur.
Another issue I would like to mention, which was raised with me by the History Council of Western Australia, concerns access to adoption information for people researching their family history. The History Council would like adoption information to be made available in line with many other records after 100 years rather than for it to be treated as a special case and held with DCP. I acknowledge that people can apply for access to information from DCP or submit a freedom of information application if they are a direct descendant of an adoptee, but if they have no idea that there is even the potential that one of their ancestors was adopted, how would they even know to do that?
What we know is that information about adoption is becoming open and accessible, as it should. This openness should extend to historical records, particularly after people have died. As was noted to me, it is wrong that people can easily find out whether their great-grandfather was an axe murderer but not whether he was adopted. We should be doing our best to eliminate the sense of secrecy and shame that in many ways continues to surround adoption. I do not believe that adoption records should be hidden away. This is something that obviously I cannot amend in the bill that we are discussing today, but I would be interested to hear the minister’s views on whether it is recognised that these changes need to be made or whether there is even merit in having these records made more open. I urge the minister to consider the importance of this information to many families and individuals. If the minister does not agree with me, I would like her to explain any compelling reason she sees for not wanting these records to be open.
In concluding my remarks, we need to be reminded that it is never happy circumstances that lead to adoption. Many studies have shown that adoption can come at a considerable emotional cost to all concerned and that not only can this cost be lifelong, but also the hurt can increase rather than lessen over the years. Adoption involves the child being issued with a new birth certificate, often being given a new name, and their legal relationship with one or both biological parents being severed. It is an extremely significant step. Although discharging an adoption is obviously possible, it is very difficult to achieve. I understand from the review that the court has not found the breakdown of the parents’ relationship to be sufficient grounds on which to discharge a step-parent adoption. Our legislation therefore needs very strong safeguards so that we do not put children in an untenable position after adoption. There is no question in my mind that if families can stay together with support, this support should be provided. By extension, if women feel that they can raise their children on their own, they should also be given every support to be able to do so. We are learning more all the time about the importance of attachment and the lifelong implications for children who do not form secure attachments in early childhood. It is important that research findings are fed into child protection reform so that changes are based on the latest evidence-based research. When adoption is considered to be in the best interests of the child, the adoption should be open, wherever possible, and comprehensive post-adoption support should be provided to all parties.
Having said that, I acknowledge that while open adoption is ideologically right, it can be stressful and hard to manage in practice. I do not pretend that that is not the case. I also understand that it can work quite differently in other jurisdictions. For example, the US carer adoption process is much more open. It is expected that the relinquishing family will maintain a place in the child’s life. I also believe that in some jurisdictions within the US there is a legislative requirement for an effort to be made towards reunification before adoption by a carer can even be considered. Also, the US keeps its apprehension and reunification processes organisationally separate to avoid any perceived or real conflicts of interests. This is the sort of reform that we might want to consider here in WA.
Undertaking a high-quality adoption process that is in the best interests of the child but that also acknowledges the importance of supporting families to stay together whenever possible is a complex and resource-intensive process. I note that the staff of DCP do some really good work in this challenging area, as do many people in non-government organisations who work in this field. It is extremely important that they are supported by the best possible legislative framework. I look forward to discussing this bill further in committee.
Hon Alison Xamon: Minister, if I can comment, that is actually the concern, because it means that people would not know that they need to apply to the department, under freedom of information, to access those adoption records if they have no reason to believe that an ancestor was adopted. So the suggestion from the Historical Society has been that that provision in the Adoption Act be amended. Obviously that is beyond the scope of the amendments to this bill. But I am putting on notice for future consideration that the Adoption Act be amended so that those records can be treated in the same way as any other historical record and can be made available to anyone who is researching their genealogy. That is by way of comment.
Hon ROBYN McSWEENEY: I take note. With those comments, I commend the bill to the house.
Question put and passed.
Bill read a second time.