“I’ve heard the statement thrown around, “Open adoption shouldn’t be legally enforceable.” My question: Isn’t that happening already?”

Authors: William Hammersley & Elizabeth Edwards

Current practice and section 59A of the adoption act 1984 (Vic) permits mothers to nominate a preferred frequency of contact in the form of face-to-face meetings and information exchange, which, with the agreement of the proposed legal parents, is written into the adoption order by the Court. Contact is generally set at between one to four times per year but this is usually a minimum frequency with contact beyond the nominated frequency at the discretion of the legal parents. How contact is to be conducted is not prescribed beyond the requirement that the adoption service manage the arrangements for the year between the placement of the baby and the order being ratified in the Court. After the adoption order is made, there is no professional support for the ongoing contact ordered by the Court.

Contact is a difficult issue, relying on, in practice, the goodwill of the parties involved.

However, parent/s should be counselled that any private agreement with the new legal parents can be reneged upon by them at any time and that a contact regime can only be legally protected and enforceable if the Court has made the contact regime part of the adoption order.

“To make a long story short: The adoptive parents lied through their teeth & kissed our butts, until the “Open” adoption was finalized. Afterwards, they increasingly, deliberately & for no good reason withheld our grandchild’s right to see his birth family, including his birth mother (our daughter). They said they understood why we asked them to stay close, claiming empathy for our reasoning that all children (adopted or not) should be allowed to experience their birth family’s love throughout their life. That they were fully aware of the reasons behind our family’s choice for him; that we never “wanted” to give him up & weren’t “giving him up”. Instead, we were entrusted them with his care, his heart & his soul. For this, they ungratefully & cruelly (for their own selfish comfort) stole his rights & tossed them aside as if they were nothing. Instead, they chose to move him so far away as to make it impossible for us to visit, let alone regularly. By doing this, they’ve only proven their love as conditional; contingent upon him becoming who they want him to be “for them”, not encouraging him to get to know his origins & therefore himself… to be who he “is”… ALL of who he is.

One of the most important concerns when open adoption was first introduced was that it might interfere with the attachment between children and adoptive parents (Kraft 1985) and it was feared that children might be confused about whom their primary carer was, and therefore who their primary attachment figure was, and they might develop divided loyalties between the two sets of parents. There were also concerns that the involvement of the parents might make the new legal parents feel less secure and entitled to a parental relationship with the child, which could impair their ability to engender the child’s secure attachment. Research evidence to date has suggested that in fact the opposite is the case.

“The adoption consent asks for ‘wishes’ of the natural parent. So, even if a mother identifies her wishes for contact, there is no guarantee she will get them met. Ultimately, the consent order is so vague in its legal commitment, the adoption agency and adopters have a clear route out of committing to the requests of the mother. So, the adoption order will say something like “contact to be agreed upon by both parties”… what a joke! By the time the adoption order is made, the natural parent has no legal recourse. Ultimately, the adopters know this and they can chose what they want to go into the order about contact – with no legal obligation to agree to the natural parents ‘wishes’. The language is loose, it can be manipulated by the adopters and the adoption agency. If a parent asks for contact three times per year, then that is what should be legally placed into the adoption order. If the adopters don’t agree, then the child should not be placed with them. Instead, the power shifts to those who have more power again… the agency and adopters. It is underhanded, deliberately deceptive and has created more children who have been negatively impacted by adoption – despite being labelled ‘open’. It is not, if that is not what the adopters wish.”

If the introduction of open adoption is to be expanded greatly in Australia to those children in the child protection system then research will be needed to be able to meet the needs of those children and young people at different stages of need and development.

Toddlers and older children will have established relationships with their parent/s immediate and extended family and will have different needs to those babies and infants who will most likely suffer separation trauma and may have suffered medical and psychological damage in the uterus. Standard practice of a minimum of four times per year will not likely be helpful for such children.  Judicial education may need to occur further for those judges who decide adoption matters.

US Adoption expert Mary Martin Mason proposes how she thinks open adoption should work. Some of her suggestions may make some uncomfortable, but all of them are interesting.

Open adoption is designed to be a child-centred arrangement based upon the premise that humans need genetic continuity to attain a healthy identity. Contact benefits children by providing a lifelong, authentic relationship and a genuine connection to their lineal heritage, ongoing answers to questions, and healing for the losses that permeate adoption. Open adoption benefits parents because the grieving process that follows all adoption need not be complicated by having to live with the ambiguity of not knowing what happened to their children. The new legal parents have access to the continuing genetic, medical and family information needed to raise the child.

Mary Martin Mason, suggests, that the top 10 ethical considerations in Open Adoption Practice, should be:

  1. “To fulfil in the goal of benefiting the child, an open adoption should be a fully disclosed adoption and should move beyond the practice called mediated or semi-open adoption in which an agency serves as an intermediary to exchange information between parties.
  2. The child should be given the option to be a full participant in the open adoption rather than the adoptive parents maintaining contact with birth family members without the child’s knowledge.
  3. Agency workers need to be educated and overcome fears about allowing clients to be in contact without agency control. An agency that simultaneously practices semi-open adoption and fully disclosed adoption communicates its distrust of the foundation of openness, often communicated as, “We let clients make that choice.” Professional standards require that agencies provide guidance and education to clients, including the few parents who insist on confidential adoption. Ethical standards require that agencies refuse to do a confidential adoption even if it means losing a client.
  4. Systemic change must take place in agencies that practice open adoption, requiring a shift in policies, in job descriptions for workers and ultimately, in post adoption services that will eschew secrecy as the foundation for adoption.
  5. Fathers, as in other forms of adoption, need to be identified, notified and invited to participate in open adoptions. Father-friendly inclusion should be the mission of those practicing and participating in open adoption. Professionals frequently need training in revamping services to be father-friendly before successfully engaging fathers.
  6. Services such as pre-adoptive education, legal representation and post-adoption mediation or counselling should be equalized for birth and adoptive parents.
  7. Open adoption should never be used to entice, pressure or coerce any one experiencing a crisis pregnancy to choose adoption.
  8. Post adoption contact agreements should be standard and fully enforceable in Victoria
  9. Legal counsel should not be shared between parents considering adoption and prospective adoptive parents because they have conflicting interest.”
  10. Agencies that practice open adoption while opposing the right of adoptees to have access to their original birth certificates “serve two masters.” If a foundation of truth is solid, then it should serve adoptions moving forward as well as adoptions that took place in the past. Mary Mason’s tenth principle is not relevant to Australia.

American Adoption Congress 2016 “The top 10 ethical considerations in Open Adoption Practice,” by Mary Martin Masoiii)       Strengthening the Court’s oversight of Adoption Practice

  • The  Court ought to be further empowered to scrutinise the adoption process including whether appropriate counselling has been received and consent given consent and most importantly, be able to penalise any legal parent who does not allow contact in accordance with the contact regime on the adoption order.
  • To assist the County Court that an Independent/Ethics Committee not connected to the NGO or DoHHS is established to report to the court. This body oversee, monitor, and report to the court on all aspects of the adoption process, including counselling, taking of consent, post adoption welfare checks on adopted children, and the open adoption contact regime
  • .Welfare checks must be carried out on adopted children in private homes, because at present government and NGOs have no duty of care once a child is adopted which possibly leaves the child at risk
  • Contact agreements should be set based on each individual case recognising one size does not fit all, along with the ongoing monitoring, implementation of those agreements with the full weight of the law for the execution of such until the child comes of age.
  • Contact Agreements should be decided upon between the independent committee/child advocate , parents, and legal parents before the parents sign the instalment of consent to consider adoption

If the family of origin do not keep their commitments, it would be part of the role of the committee/child advocate to consult and counsel all parties, if the ethics committee’s efforts fail, there is little that can be done to enforce the natural parent’s to uphold their agreement. However if the break down is due to the natural parents and or other family members a report from the ethics committee as to why the contact regime failed should be added to the adopted persons file that becomes available when the child turn 18.

  1. Natural parents must have the option to re-establish contact at a later date   pending their circumstances.

If adoptive parents are found by the ethics committee to make it difficult or uncomfortable for families of origin to stay in contact the legal parents should be held responsible by the court.

If the ethics committee has failed to resolve the issues coursing the breakdown, they should refer the adoptive parents to the court to deal with this. Also recommend the court documentation of such a breech and also an Ethics Committee report      be added to the adopted persons file that becomes available when the child turn 18.

Note: The fact that a report is going to be available to the adopted person may act as a deterrent from such actions from happening.

It is in the adopted person’s best interest that the truth be known and not hidden. Open Adoption should mean honest, open, and transparent.

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