‘Boys not Indigenous under the law’: judge hands down ruling in adoption saga

Likely barriers to adoption for two boys by their long-term non-Aboriginal carers have been cleared after a NSW judge determined they were not considered Aboriginal, following their mother’s discovery of Indigenous heritage.

A judge has cleared a hurdle to the boys being adopted by their lifelong carers

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Likely barriers to adoption for two boys by their long-term non-Aboriginal carers have been cleared after a NSW judge determined they were not considered Aboriginal children under the law, following their mother’s discovery of her great-grandmother’s Indigenous heritage.

The two children, known to the courts as John, 14, and William, 11, have lived continuously with a non-Aboriginal couple known as Albert and Megan since 2011 for John and 2013 for William. Back then, there was no consideration of their Indigenous heritage.

Before the NSW government can support the official adoption of the boys by Albert and Megan, who are not an Aboriginal couple, it must make “reasonable inquiries” as to whether the children are Aboriginal.

NSW laws require, at first preference, that Aboriginal children 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.

Since about 2011, maternal and paternal members of John and William’s family made dozens of conflicting representations to Department of Communities and Justice caseworkers about their potential Aboriginal descent.

While the boys’ mother, known as Jennifer, did not previously identify as Aboriginal, she now “strongly identifies” as Indigenous after discovering the Aboriginal heritage of her great-grandmother who she said was a part of the Stolen Generation. “There is a strong family belief within the maternal family that they have Aboriginal heritage. From the family’s perspective, this heritage has not been acknowledged in the past,” Justice James Stevenson wrote in his judgment handed down last week.

A family history researcher commissioned by the department found there was “no independent corroborating evidence that the maternal or paternal families have Aboriginal ancestry” and that “written record suggests that John’s and William’s ancestry in both the maternal and paternal families can be traced back to the United Kingdom and Europe”.

A Local Aboriginal Land Council, however, issued a Confirmation of Aboriginality certificate for John when he was one year old, but it is “unclear how the certificate was obtained and by whom”. Jennifer, responding to this report, told the court last year that “I’m sorry to say that those boys are of Aboriginal descent”.

“Somewhere along – as to what I’ve heard, my family denied their Aboriginality for so long that no one has any proof anymore”. She said she was still looking for information and connections.

“My family or my ancestors were bullied really, really badly to the point where they decided that they no longer wanted to be a part of their tribe. They no longer wanted to acknowledge their tribe. Well, I do. I want to acknowledge it and I want my kids to know the tribe,” she said.

Justice Stevenson said the secretary of the department “now finds himself in the challenging position of having become aware that the children may be Aboriginal children many years after they were placed with non-Aboriginal carers”.

Yet he said ultimately he “could not be satisfied, on the basis of the evidence, that John and William are Aboriginal children” under the adoption act. He acknowledged that they were, nonetheless, children of Aboriginal descent.

The boys now strongly self-identify as Aboriginal, the court heard. Since discovering John’s and William’s maternal and paternal families may be Aboriginal, Albert and Megan made an effort to ensure they “develop a healthy and positive cultural identity and a connection to their Aboriginal ancestry” and are raising them “as belonging to a particular Aboriginal Nation”.

Justice Stevenson said he didn’t think his findings would affect Albert’s and Megan’s commitment to helping them “develop a healthy and positive cultural identity and maintain connections with Jennifer and their siblings”.