“There are these two young fish swimming along and they happen to meet an older fish swimming the other way, who nods at them and says “Morning, boys. How’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and says “What the hell is water?”
This is Water some thoughts delivered on a significant occasion about living compassionate life (David Foster Wallace 20/11/ 2014 Quotes Published in “Good Reads”
In our society, the importance of kin and ancestry is so deeply embedded that often it’s unrecognisable to those with the privilege of the unique combination of recognised social and genetic connections with their family group. This is the ‘water’ most are in, but adopted people are swimming in a very different substance. It’s partly why some of the concepts are so difficult to get across to non-adopted people, and from the adoptee point of view, our voices have certainly not been heard in the area of discharge.( Sharyn White)
- No fault discharges
An adopted person can apply to the Victorian County Court for a discharge of an adoption order made under section 19(1) of the Adoption Act 1984. There are two grounds under which an application can be made, these are:
(a) That the adoption order or consent for the purposes of the adoption order was obtained by fraud, duress or other improper means: or
(b) That special circumstances exist why the adoption order should be discharged (this includes a reference to an irretrievable breakdown of the relationship between the adoptive parents and the adopted person).
We believe what is needed is the option for adopted adults to be able to apply for the reverse of the adoption with a straightforward discharge that carries no determination of fault.
We propose that this is a discharge where the adopted person over the age of 18 years applies to the court and obtains the discharge with very little interrogation, if any, by the court as to the reasons why that person seeks a discharge.
We believe that the only legislative precondition to the granting of the no fault discharge should be service on the adopted parents and that legal advice has been given as to the impact of the discharge at law. Some adopted adults will not ever consider a discharge but
We believe that many adopted adults would benefit from the right to seek a no fault discharge.
We believe that all adopted adults should have available to them to the ability to apply to discharge the adoption order without having to prove fraud, duress or that the adoption was improperly obtained or that special circumstances exist, and that the Adoption Act 1984 (Vic) should be immediately amended to reflect this.
As set out in section 19, there is a discharge available under ‘special circumstances’. This of course is analysed on a case by case basis but usually requires ‘irreconcilable differences’ between the adoptee and the adopters and almost always requires that the adoptee has suffered abuse that they may not wish to share with a case manager and the court. To many adopted adults who would seek a discharge, the relationship with the adopters is irrelevant to their right to live as the person they were when they were born and have the ancestry they had when they were born.
Technically, no fault discharges are available on the ‘special circumstances’ ground. However,we believe it would be more appropriate to create an explicit no fault ground under section 19 of the Adoption Act 1984 (Vic).
We believe that currently section 19 ignores the rights of adopted adults to extract themselves rather than be bound beyond death to a contract they did not consent to in the name of their ‘welfare’ and section 19 ignores the rights of adopted adults to their initial identity at birth and ancestry.
We do not believe that the intent of a ‘Special Circumstances’ discharge which relies on an ‘irretrievable breakdown’ of the relationship with the adopters, allows the Court to give equitable consideration with regards to wider, rights-based discharges, where the quality of the relationship with the adopters is irrelevant. The imposition by the Court of an investigation and case manager is an invasion of privacy which equates to pathologizing something which is not abnormal; that is the right of the adopted child then adult, to resume their original legal identity.
We believe that no matter what good intentions there are regarding the ‘paramountcy of the welfare of the child’, there are long-term consequences for the child now an adult which arise from the obliteration of their natural family ties by law. A common thread experienced among adopted people when advocating for their need for annulment, discharge, termination of the adoption, a true birth certificate and reinstatement of their identity is the absolute lack of choice – the fact that they are subject to a contract for life and beyond death to which they did not agree. For some adopted adults, having the choice to reclaim their identity and the ancestry they lost (whether or not they have a social relationship with those of their family who are living) is of extreme importance to them and their children and their children’s children and generations to follow.
“The prevailing legal belief is that adoptees are not a party to their own adoption, only the parties who originally brought the petition to court are. An analogy would be that a consumer may return an item they bought back to the store if they are displeased with it for some reason, but the object may never return itself, no matter how displeased the object may be with the arrangement. Therefore, adoptees are but legal chattel with no say in what happens regarding their own adoptions. This needs to be challenged. Nowhere else in law are competent, adult citizens permanently legally bound to contracts they did not sign and do not agree with.”
Furthermore, We draw your attention to the comments of Julie Kelly:
“Once an individual is no longer in need of the courts or their parents to make decisions on their behalf, by virtue of being no longer incompetent by reason of minority, they should, by all rights, be entitled to take over making decisions for themselves.
Julie Kelly 2014. Choosing Adoption. Or not Available at: http://www.thelostdaughters.com/2014/12/choosing-adoption-or-not.html
We believe that Victoria has been a leader in Australia and the world in adoption reform at times. The opening of records which occurred here in Victoria during the 1980’s is what is still being fought for in most states of the USA. The majority of adoption rights advocates in the USA still believe that getting access to see their original birth certificates is the pinnacle of equal rights.
In Victoria, We Agree with fellow adoptee Sharyn White from Adoption South Australia
“that access to no fault discharges for adults is the logical next step in adoption if adoption is truly about the paramountcy of the welfare of the child (then adult). If this no fault discharge pathway is created some will take this up, but some will not. However, the very option will be significant and beneficial to all adoptees because of the respect afforded to them as adult human beings to have the equal right to agency over their lives in the same way non-adopted adults have, rather than being bound beyond death to a contract they did not consent to in the name of their ‘welfare’.” (Sharyn White)
It is the experience of of many adoptees that inheritance is often a major point of interest for the Court but usually a minor concern over all the others for the adopted person. Default formulas for property division are only used when a legal will is not left. If a legal will is left the deceased can leave an inheritance to whoever they like, and a common adoptee experience has been that they often receive less or no inheritance from the adopters anyway. As above, there should be a requirement that the person have received professional advice and be aware of the legal implications of being discharged from the adoption. The professional advice will presumably include that they are also terminating any of their adoptive claims on their adopted parents’ possessions and estate, and also include information on authority for medical decisions and next of kin rights.
We believe whatever inheritance rights should not dictate the right to identity and be part of a child’s natural family.
We believe that currently, adoptees are discriminated against and not being treated equally to non-adoptees, in breach of section 8 of the Victorian Charter of Human Rights & Responsibilities 2006 (Vic). We are concerned that adoptees are not equal before the law and that adoptees are discriminated against because they cannot use their original birth certificates like everyone else, and adoptees are legally prevented from identifying as the person they were when they were born as is the right of every non adopted person.
For example, X was adopted as an infant in the 1950’s. X’s deepest and longest held dream since finding out her real parentage has been to explore and connect with her ancestry in New Zealand. The time has finally come, and first she needs a passport to travel to New Zealand. To get the passport to connect with her ancestry she is forced to lie. The form requires that she answer the question: mother’s name. If she lies, she gets her passport and can go to New Zealand. If she tells the truth she is treated as having lied and the passport is withheld. The distress and pain of this has previously prevented even the thought of doing it, and has immobilised the passport application for eight months, to date
Victorian Current Acts CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 – SECT 8
Recognition and equality before the law
RE- HOMING You would say this could never happen in Australia
However our current State Adoption Act 1984 has a loophole that leaves the possibility WIDE OPEN.as the changes to the adoption act will remain in place for many years as time rolls on this clause could be taken advantage of .
Transparent process and criteria for straightforward ‘no-fault divorce’ type Discharges of Adoption for adult adoptees only to be written into the Adoption Act.
To prevent the ‘re-homing. ‘situation prevalent in the US – that adopters should only be able to apply for a Discharge of Adoption under no wider grounds than “that the adoption order or a consent for the purposes of the adoption order was obtained by fraud, duress or other improper means”
Recognition in the Act that ‘consent’ for the Adoption Order has already ceased to have effect when the Adopted Person has reached 18.
VICTORIAN ADOPTION ACT 1984 – SECT 19
Discharge of adoption orders
(1) An eligible person may apply to the Court for an order discharging an order for the adoption of a child made under this Act
(a) “eligible person” means the adopted child to whom the adoption order relates, a natural parent of the adopted child, an adoptive parent of the adopted child, the Secretary or the principal officer of the approved agency by which the adoption was arranged;
Changes are necessary we completely oppose adopters having rights to discharge an adoption other than fraud. That the adoption order or consent for the purposes of the adoption order was obtained by fraud, duress or other improper means”
So- if the adoption order was obtained by fraud (i.e. the adopters were misled)- If not it will almost always be in the best interests of the adoptee to be unadapted by people who don’t want them. It gives the adopters too much of an out. What happens to the child then?
We argue giving adopters greater rights com-modifies children because it means they can be “returned” if the adopters can make an argument that it’s in the child’s best interests
The Governments who have this legislation are trying to keep the adoptees, natural parents and adopters THE SAME but because it involves children they are NOT THE SAME.