Informal and traditional adoptions, including by Torres Strait Islanders

In this video, Page Provan Director and award-winning surrogacy lawyer Stephen Page, discusses informal adoptions.

Transcript

G’day, I’m Stephen Page from Page Provan Family and Fertility Lawyers and today I’m talking about adoption, and I’ve been talking about a series of videos about adoption.

I talked about adoption from 1993 Hague Inter-country Adoption Convention countries, a bit of a mouthful, I know. That’s the short version of the name of that convention, believe it or not.

Talked about adoptions from what are called bilateral countries. So they’re not-Hague countries, but they’re two jurisdictions, because China will say one is not a country, and those are South Korea and Taiwan.

There’s another video about adopting from a non-Hague, non-bilateral country, for example, Singapore. Then I talked about adoption and surrogacy because they have some relationship with each other.

Then there’s a video about step-parent adoptions and one about relative adoptions, but this is none of those. This video is about if you’re doing an informal adoption, and you may say to me, Hang on.

Adoption is formal, adoption recognises me as a parent or us as parents, and transfers parentage from the birth parents, the biological parents, typically, to us or me. What is an informal adoption? Well, there’s two forms of it.

The first is that seen in South Sea Island cultures, where typically a child is transferred from one extended family member to another, from those who have a multiplicity of children, an abundance of fertility to those have none.

We’ve seen that in, for example, Samoa, Tonga, Fiji, Vanuatu, and in the Torres Strait. Most of the time, those adoptions are not recognised. Now, they may be recognised in the overseas country.

Those countries that I just listed, obviously, aside from the Torres Strait, are not-Hague countries, so go and look at that video. If it’s Torres Strait Islander, so both parties are Torres Strait Islander, the child is Torres Strait Islander.

It’s from a Torres Strait Island family that identifies as Torres Strait Islander family to a Torres Strait Islander person, or at least one of them in a couple is Torres Strait Islander.

Then they may fit under Queensland law that specifically deals with Torres Strait Islander traditional adoption. So this is one of the five ways of becoming parents in Australia and I’ll cover that in another video.

But Torres Strait Islander traditional adoption can be done in Queensland, nowhere else in Australia, just in Queensland. But what if you don’t fit within that? For example, you’ve got a Torres Strait Islander child, but you don’t happen to be Torres Strait Islander.

Or you happen to live in Australia and you’ve done a traditional adoption because you happen to be Tongan or Samoan, for example. But it doesn’t fit the bill all, I’d say, particular or pernickety requirements of adoption acts.

You might be a relative, for example, and you can’t do a relative adoption, for example, in Queensland. Or you might be a close family member, a close family friend, and you either don’t fit within the definition of relative adoption, or relative, where relative adoptions occur, for example, in Victoria or New South Wales, or you just don’t fit with any of those.

You’re the square pig in the round hole. Clearly, the plan was to enable us to have a child because, well, you couldn’t care for the child, or the other person couldn’t care for the child, and the child comes into your care.

But you can’t go under the adoption legislation, what do you do? And that’s what I mean by an informal adoption. You can go to the State Department and say, Oh, I’d like to adopt, and they have the discretion, typically, to allow a private adoption like that.

But guess what? They don’t like to do it. So the chance of getting that? Well, it’s sort of like a snowflake in hell. You might be lucky, you might be one of those lotto winners who win the odds and away you go, and you get the approval.

But let’s assume you don’t, what do you do then? Well, what you probably can’t do is to change the birth certificate. You probably can’t get the birth certificate fixed so that you’re identify as a parent.

But you’ve got the child in your care, how do you actually ensure that the child remain in your care? That one day, some eagled-eyed social worker from child safety turns up and takes the child off you because you aren’t the lawful parent, or indeed, anyone else.

Someone claimed to be a parent says, The child is mine. Well, what you do then, and I’ve helped quite a few clients do this, is you end up getting a parenting order from what is now the Federal Circuit and Family Court of Australia.

You can do that by consent, assuming that all the biological parents agree, or you may dispense with service if you don’t know where that parent is. So you got to be very careful about how you do this.

But a typical scenario might be that a woman gets pregnant, she doesn’t know who dad is, and she wants to give the baby away. And she has a specific person or people in mind, she wants to give the baby away, too, because she doesn’t want the child to be adopted out to anyone.

She wants to know that the child has gone to someone that she knows and feels confidence in. In that kind of circumstance, you go off and get an order from the court and of course, it’s not just, Well, we’re here on the day please give us an order.

You’ve got to prepare it, as you do with all court matters, and typically, the process will involve getting sworn statements, affidavits, by all parties saying, we think this is a good idea, this is why, and this is how the child was conceived. If mum, and I’m talking about the biological mother, doesn’t know who the father is, that she puts that in an affidavit.

When I’ve gone before judges before, they’ve been quite clear that there should be an affidavit by mum in that circumstance, that she doesn’t know who the father is, and that she has had independent legal advice, because it’s a big thing to ask someone to give their child away, in effect, forever.

So, all that has to be shown, and under the Family Law Act, if a consent order, so an order where everyone agrees to it or consents to it, but the judge still has to agree to make it, you can’t force the judge to do it.

They’ve got to be satisfied it’s the best interest of the child and all the other criteria that they’re going to look at. In that circumstance, if it’s by consent, and it’s not a relative as defined by the Family Law Act, then you’ve got to get a report.

What the Act says is, well, unless there’s special circumstances, off you go and have some assessment process through the court. That’s a way of doing it, it’s a very slow way of doing it and the court is reluctant to do that because, of course, that’s paid for by the taxpayer, and it takes forever for it to be done.

Because there are all these warring parents who don’t have money, and they have to end up going through that assessment process to work out what’s in the best interest of their children in their broken-down relationship. So the way that I do it with clients is we get the report done first, and we go off and find an eminent expert who writes the report up.

And typically, these reports say, This child is doing fine, I’ve gone to the home, I’ve seen the parents, and these are the intended parents or the people who are caring for the child, and everything’s great, and mum, and sometimes mum and dad, think that this is wonderful, and this is why.

So it’s not the best outcome, the best outcome is to have an adoption order made, but sometimes because of the differing laws around Australia concerning adoption, this is the best outcome for that child.

And what that order enables is that if you are the people who have the care of the child and want this order, that you have parental responsibility. So what that means is you can go to the hospital at 3:00 AM and make the decisions, Yes, you’ve got to do this urgent medical treatment.

You can enrol your child with Medicare, you can enrol your child with daycare or school, you can obtain a passport and we’ve got to be careful with our passports because Department of Foreign Affairs and Trade is difficult, but you can do all of that and that’s the point.

The child lives with you, you have the care of the child. This is an order to reflect the reality of what has happened. As I said, I have acted in a number of these cases. It has been a great honour to help those caring for these children.

These children have thrived in this care by those who have been unable to have children and can’t believe that all their dreams have come true, that a child has fallen into their laps to be cared, cared for for the rest of their lives, just a wonderful joy.

Anyway, if you are in that boat, go and get some expert legal advice at the beginning.

Thank you.