‘Distrust’ of justice system stopping Aboriginal adoptions, says judge

A ‘profound’ distrust of the justice system stops vulnerable Aboriginal children from being adopted, a NSW judge says, calling for new measures to bridge the gap between traditional kinship care and legal adoptions.

A ‘distrust’ of the justice system is stopping Aboriginal adoptions, a NSW judge says

A “profound” distrust among ­Aboriginal communities of government and the justice system stops vulnerable children from being legally adopted, a NSW judge says, while calling for new measures to bridge the gap ­between Indigenous kinship relationships and legal adoptions.

NSW Supreme Court judge Geoff Lindsay said in his 12 years behind the bench he had not once formalised the legal adoption of an Aboriginal child, due to a “resistance” in Aboriginal communities to formal adoption.

“Historically, Aboriginal communities have been resistant to participation in modern statutory systems of adoption … that serve the general community,” he said in a speech at the Adoption Conference last month.

“At heart, their resistance reflects both a profound distrust of government and the legal system, and the non-linear kinship relationships of Aboriginal communities that do not align with the linear relationships of the general community.”

Mr Lindsay’s comments followed extensive reporting in The Australian of cases regarding whether Aboriginal children can be adopted by their long-term, white foster families due to NSW laws requiring, at first preference, they be adopted by someone of the Aboriginal community to which their birth parent belongs.

If not practicable, the child can be placed with an adoptive parent from another Aboriginal community. Only if that is not feasible may the child be adopted by non-Aboriginal parents.

In March, The Australian revealed the adoption by their long-term foster parents of Aboriginal siblings Mary* and Michael* was being blocked by their mother, who believed her children should not be permanently placed with a “non-Aboriginal family (who) wouldn’t understand the Aboriginal culture”.

One month later, in a separate case, Aboriginal teenager Richard made an impassioned please to a judge to approve his adoption by his white foster parents, saying “no one is listening” to him.

Both cases were eventually resolved, with the NSW Supreme Court granting the adoptions.

Mr Lindsay said public authorities make great efforts to maintain cultural contacts for an Aboriginal child no longer being cared for by their birth parents, but “this is sometimes easier said than done”.

“If an adoption order is made, a judge may need to help a fretful birth parent to understand, and to accept, that outcome; and to encourage adoptive parents to stay the course in ongoing engagement with birth parents, natural relatives of the adoptee and cultural traditions of interest,” he said.

Mr Lindsay said while formal adoptions might not “promote flourishing of a family” due to rules and regulations, informal adoption can inhibit a child from certain activities.

“A social arrangement in the nature of an informal adoption may, in a world in which many activities of life (such as engagement with banks, schools and social ­security administrators) require proof of identity and authority, encounter barriers (and transaction costs) in the guardianship of a child or young person,” said.

He said a new protocol should be created to bridge the gap between kinship relationships and formal adoptions of Aboriginal children. Kinship care refers to the placement of children with relatives, persons without a blood relation but who have a relationship with the child or family, or persons from the child’s community.  “I wonder whether an accommodation between Aboriginal kinship relationships and ‘legal adoptions’ might be found in a practice of encouraging adoptive parents, birth parents and adoptees to adopt a protocol (of a more general nature than an adoption plan), approved by an Aboriginal community, setting out guidelines of what is expected of each participant in the … process,” he said.

* The names of children in this story have been changed