Adoption in Australia and its Breaches of Human Rights.
Author: Sharyn White
United Nations Convention on the Rights of the Child (UNCRC)
Much of the legislation in the Adoption Acts in the various jurisdictions of Australia is in direct contravention of the rights enshrined in the UNCRC, particularly those which fall under these clusters:
Civil rights and freedoms – particularly:
• birth registration, name and nationality (art. 7)
• preservation of identity (art.
• protection of privacy and protection of the image (art. 16)
and Family environment and alternative care – particularly:
• separation from parents (art. 9)
• family reunification (art. 10)
• children deprived of family environment (art. 20)
• adoption, national and inter-country (art. 21)
• periodic review of placement (art. 25)
Most states and territories still have powers to seal adoptee’s birth records for all time and this falls under:
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
As these laws and powers vary dramatically between jurisdictions, it is clear from the huge differences that these laws are subject to arbitrary decision-making processes.
Articles 7, 8, and 9 specify the importance of identity, and the right to “know” and be cared for by your parents. The right to “know” your name and details at birth is a right enshrined in the UNCRC. The separation of “know” and “be cared for” is important here, meaning there is a right to “know” who your parents are.
The powers to prevent an adoptee from seeing their original birth certificate (and knowing who their parents are) vary arbitrarily by state and territory. Where they are legislated, the justifications are arbitrary also, around safety and welfare. But other legislation exists which restrains contact – where necessary – among every other citizen. Why are adoptees subject to this extra legislation by virtue only of being a member of a minority group?
In 2013 there was a Federal Apology for Forced Adoptions, and Article 8:
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
These Conventions are being ignored in current laws which in some jurisdictions have INCREASED the roadblocks for people trying to know what their identity was, let alone re-establish it.
Another human rights abuse affecting only adoptees occurs under Article 25, which is not being followed in any Adoption Legislation in any state or territory. It follows from Article 20 which states that:
1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
Part 3. of Article 20 states that “… such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children…”
… so it follows that Article 25 should be applied:
Article 25 States Parties recognize the right of a child who has been placed by the competent authorities for the purposes of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.
Why is a child who has been placed in adoptive care – which is included with all other forms of care inter alia in Article 20 – not included as requiring periodic reviews?
We call on Federal and State/Territory governments to conduct a review of legislative or regulatory discrimination against individuals on the grounds of their adoptive status and to review the Adoption Acts in each jurisdiction to check for breaches of the Human Rights Instruments that Australia is signatory to.