[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

Appendix F

Recognition of indigenous adoption practices in other jurisdictions

UNITED STATES

F1 THE UNITED STATES Indian Child Welfare Act 1978 recognises Indian

sovereignty over children living within an Indian sovereign nation (that is a particular reservation). Tribes have significant input into decision-making with respect to the children within their domain. The Act applies largely to Indians resident on the reservations preserved for Indian use. The statute does not state how conflicts can be resolved where the child is born of an Indian and a non-Indian parent. In such instances jurisdictional disputes arise where the tribes and the State each claim superior legal or cultural authority to determine the best interests of the child.[556]

CANADA

British Columbia

F2 The British Columbia Adoption Act 1996 applies special rules when an Indian child is placed for adoption. Before an Indian, or a child who identifies as being Indian, is placed for adoption there must be consultation about the adoption within that child’s band. This requirement can be waived where the child or birth parent objects to band consultation.[557]

F3 The Act favours the adoption of Indian children by persons from their own family. Where this is not possible, adoption by other Indian persons will be considered. An Indian child will only be placed with a non-Indian family as a last resort.

F4 Upon an application by an Indian person, the court may recognise that an adoption in accordance with Indian custom has the effect of an adoption order under the Adoption Act.[558] This provision expressly preserves aboriginal rights in respect of children, but gives Indians the choice of adopting the legal consequences of adoption embodied in the British Columbia Adoption Act 1996.

Nova Scotia

F5 The Nova Scotia Children and Family Services Act 1990 requires the Nova Scotia Children and Family Service to notify the Mikmaq Family and Children’s Services when it believes that an Indian child is being freed for adoption. Once notice has been given, an adoption agreement cannot be made for 15 days. This time allows the Mikmaq Services to consider and suggest placement options for the child.[559]

Alberta

F6 Similarly the Alberta Child Welfare Act 1984 requires the Director of the Child Welfare Agency, or any agent of a private adoption agency to consult with the chief or the council of the relevant band before allowing an adoption order in respect of an Indian child to proceed. If the birth parent/guardian surrendering the child does not come from a reserve, the person seeking to free the child for adoption must request that the parent/guardian consent to the proposed adoption.[560]

AUSTRALIA

F7 Aboriginal customary adoption consists of placement of a child within the extended family group. The birth parents maintain contact with the child and the adoptive parents. Similar to Mäori customary placement, the adoptive parents are almost never strangers to the biological parents. The adoption is often seen as a way in which kinship structures can be strengthened; the process leaves the adoptive parents indebted to the biological parents.[561] Torres Strait Islanders have a form of customary adoption, which more closely resembles the European concept of foster care. A child is placed with other parents for a short period of time, which either comes to an end and the child is returned, or is extended into an arrangement more closely resembling adoption.

New South Wales

F8 The New South Wales Adoption Act 1965 allows Aboriginal children to be adopted by Aboriginal couples living in a customary marriage.[562] Otherwise, there is no specific provision relating to adoptive placement of Aboriginal children.

F9 In 1997 the New South Wales Law Reform Commission released a research report entitled The Aboriginal Child Placement Principle.[563] The report recommended that the adoption legislation should contain guiding principles governing the placement of Aboriginal children. The “Aboriginal child placement principle” creates a hierarchy of preference for the placement of Aboriginal (this term includes Torres Strait Islanders) children. Where possible Aboriginal children should be cared for by family members. Where this is not possible they should be placed with other Aboriginal people.

Victoria

F10 Section 50 of the Victorian Adoption Act 1984 notes that adoption is absent in customary Aboriginal child care arrangements, but the section states that it recognises Aboriginal rights to self-management and self-determination. A parent may state in the instrument of consent to the adoption that he or she wishes the child to be adopted within the Aboriginal community. Where the parents’ consent has been dispensed with, but the Director-General or other officer believes that the child is Aboriginal, the court must apply the provisions contained in section 50.

F11 The court may not make an adoption order unless the parent(s) have received counselling from an Aboriginal agency,[564] or have expressed a wish not to be counselled.

F12 Section 50 of the Victorian Adoption Act 1984 contains a scale of preferences for prospective adopters. The first preference is for placement with adoptive parents from members of the same community as the birth parents. Where such persons are not available, at least one of the adoptive parents should be a member of an Aboriginal community. Only where neither type of parent is available should the court consider making an adoption order in favour of a person approved by the Director-General and by an Aboriginal agency.

South Australia

F13 In South Australia the court may not make an adoption order in respect of an Aboriginal child unless adoption is clearly preferable to any other order that the court could make. ⁵⁶⁵ 

F14 The statute favours adoption by a member of that child’s Aboriginal community. The adopter must have a type of relationship with the child that would be recognised as appropriate in Aboriginal customary law. If no such applicant is available, adoption by any other Aboriginal person is deemed acceptable. The statute only permits a non-Aboriginal to adopt where there are special circumstances justifying making such an order, and where the court is satisfied that the child will not lose its cultural identity as a result of the adoption order.

Australian Capital Territory

F15 The Australian Capital Territory Adoption Act 1993 provides that the court may not make an adoption order in respect of an Aboriginal child, unless it is satisfied that the choice of adoptive parents has been made having regard to the desirability of the child being placed with a person from an Aboriginal community and whether the child will be able to maintain contact with its parents.[566]

Northern Territory

F16 The Adoption of Children Act 1995 allows couples who have been living in an Aboriginal customary marriage for more than two years to adopt a child.[567]

F17 Section 11 sets out the rules that apply when an Aboriginal child is available for adoption. Before an adoption order may be made the court must satisfy itself that every effort has been made to arrange custody within the child’s extended family or with other Aboriginal people who would be considered appropriate caregivers in accordance with custom. The court may consult with the child’s parents, Aboriginal welfare agencies, and other persons who would customarily have responsibility for the child.

F18 Where such placement is not possible, or is not in the best interests of the child, the legislation favours adoption of the child by prospective adopters, at least one of whom should be Aboriginal. Where possible the child should be placed in an adoptive family within geographic proximity to the natural family of the child. The court takes into account any undertakings made by the adoptive parents in relation to encouraging and facilitating contact between the child, its extended natural family, and culture.