Aboriginal Law Bulletin
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by Paul Ban
A previous article (AboriginalLB 60/4-5) outlined the problems Torres Strait Islanders were facing in trying to have their customary adoption practice legally recognised.
At the time the article was written, Torres Strait Islanders were in a stalemate with the Qld Government over the funding of a consultative process to find out what solutions Islanders should explore.
At the commencement of 1993, funding was finally made available to the Torres Strait Islander community to undertake the consultation. The final report of the consultation process is planned to be handed to the Qld Government in March 1994 to coincide with the International Year of the Family.
The previous AboriginalLB article on this topic explored the differences between Torres Strait Islander adoption and the notion of adoption as defined by the Adoption of Children Act 1964 (Qld), as well as the problems in directly applying this legislation to customary practice. Torres Strait Islander custom was not even remotely considered at the time of the drafting of Queensland's adoption legislation.
The word ‘adoption’ was originally used by anthropologists to describe the Pacific Island custom of a permanent transfer of a child from one extended family member to another. This term was applied to differentiate permanent care from temporary arrangements where children were likely to be returned to their original parents.
In Torres Strait Islander culture, people are considered greedy if they have too many children and do not share them with others. The issue of who rears the child is dependent on a number of social factors and is a matter of individual consideration by the families involved. Customary adoption is a practice common to most Islander families.
Traditional adoption occurs only within the Islander community, both on the mainland and in the Torres Strait, and is a matter of privacy between the two families. However, as most Islanders live on the mainland and have to deal with Government institutions, a number of problems have arisen:
Birth certificates. Torres Strait Islanders have often raised the problem of customarily adopted children obtaining their birth certificates and finding out that their 'real name' is not the name they have been using. Therefore they have found out that their adoptive parents were not their 'real parents' and this has caused confusion and distress. Although Islander adoptions were 'rubber stamped' in the Torres Strait for many years, this was not the procedure on the mainland. Thus, some adopted Islanders have new birth certificates and others find they still have their original birth certificates.
There has been (and still is in the Torres Strait) a confusion among Islanders regarding the registration of birth, and baptism and christening ceremonies, where the baby's name is recorded in church rolls. If a child was handed over to adoptive parents after the birth registration was made, and the adoptive parents baptised the child, the child's baptism would be recorded under his/her adoptive name. However the birth certificate is made up from the birth registration form, and as Islander adoptive parents may not realise this, they believe that the child's papers have formally changed because the church baptism registration name bears the adoptive name.
Torres Strait Islanders rarely make wills, so the majority of Islanders die intestate. In the past, situations have arisen where an adoptive parent has natural children as well as adopted children. Should a sole surviving adoptive parent die without a will, it is up to the Public Trustee to administer the estate. As traditionally adopted children are not legally considered adopted unless sanction has been given under the Adoption of Children Act disputes can and have arisen between adopted siblings and natural siblings over their parent's estate.
Disputes over custody of adopted children. The Legal Service on Thursday Island has continually been requested to assist in resolving custody disputes where adopted children were being reclaimed by their natural parents. As with the disputes over estates without wills, the frequency and widespread prevalence of Islander adoption means that this is a greater problem in the Islander community than elsewhere in Australia.
Importance of bloodline. In traditional times, customary adoption was always conducted within the extended family so that the adopted child was within the same bloodline as the adoptive parents.
Torres Strait Islanders state that the major reason for the current problems occurring with adoption is a growing number of children now being adopted from outside the bloodline. This has been complicated by the influence of Papua New Guinean, South Sea Islander, Aboriginal, and White families intermarrying with Torres Strait Islanders. Due to these influences, traditional adoption has been changed to an extent where the custom still continues, but the obligations that go with it have not been honoured.
If the adoption was within the extended family, knowledge of the adoption would be known to the family and was not an issue for the child, as the child remained within his/her (extended) family. However, adoption out of the bloodline has led to concerns about the child's willingness to maintain the family heritage and customs. Medical problems have also led to a need for information to be obtained from the family of origin, and the child's inadvertent discovery of the adoption.
The changing nature of Torres Strait Islander adoption has prompted many Islanders to state the need for the custom to be re-examined by Islanders themselves. There was widespread recognition of the advantage of writing down customary child care arrangements due to the success Murray Islanders have had because of their documented historical records.
All child care arrangements legalised. Although the intention of the report was to examine traditional adoption practice, it became evident throughout the consultation that there is an overlap between adoption and short term child care arrangements.
The most common theme in custody disputes was of a child being placed in the care of another party by his/her parents, with the intention of the placement not being clear to either party.
Although customary adoption is distinct from temporary care, there are situations where a child care arrangement begins as temporary, but may change to being a permanent customary adoption after a few years. The agreement for the change is usually made verbally between the two families. Torres Strait Islanders who work in the child care field spoke of many examples of unmarried mothers handing over children without thinking of the consequences.
The solution proposed by Islanders is that all forms of child care should be registered or documented in some way so that confusion would not occur when the two families enter a dispute about the intention of the arrangement.
Registration of customary adoption and other temporary care arrangements. All Islanders spoken to unanimously agreed on the need for registration and documentation.
It was agreed that registration forms are to have Torres Strait Islander words (Meriam, Kala Laga Ya, and Creole) as well as English for 'adoption' and 'temporary care'. Both adult parties are to sign the forms and state the reason why the adoption or temporary care arrangement is taking place. The forms are to be witnessed by either Elders, parties nominated by the families or a JP.
The majority of Islanders stated that while it is important for all child care arrangements to be registered, it should be optional for the families to choose to do so. A significant education program is required in order for Island people to. understand the benefits of completing registration forms. Islanders felt that they should not be penalised for not filling out a form, but that the disadvantages of not doing so would become clearer as the forms were recognised by the white legal system.
There was an acknowledgement that, while special attention should be given to new adoptions and short term care placements, it should still be possible to formalise and register an existing adoption.
The registration forms should be available at Council offices of the Outer Islands, the Regional Authority office on Thursday Island, and a combination of Court Houses and Torres Strait Islander organisations on the mainland.
Torres Strait Islanders stated that, once completed, the forms should be authorised as being legal. However it is not clear as to who that authorising body should be. The Family Court, Public Trustee, Register of Births, Deaths and Marriages, and the Department of Family Services and Aboriginal and Islander Affairs have all been mentioned.
Birth certificates. Torres Strait Islanders in all places spoke of the problems of birth certificates not reflecting the customarily adopted status of a child. These problems emerged when enrolling children for school, sporting clubs and so on and when adults, for passports, drivers' licences, and marriage. There was unanimous agreement that the birth certificate for the adopted child should be altered so that it covered the child's adoptive name and the names of the adoptive parents. Practically all Islanders thought that the old birth certificate should be 'locked away' if the child uses a new birth certificate. It was considered important that the original parents' names should be recorded somewhere so that the child could trace their family tree when it was important to them.
Islanders stated that due to adoption happening now out of the bloodline, there is always the possibility that a person may unknowingly want to marry a blood relative. A record of the family origins would help prevent this.
Some Islanders stated that children should not be told about their adoption until they are adults and ready for marriage. Others stated that children have a right to know about their origins and that they should be told the truth when they are at an age 'when they have sense'. There is a general concern that if children are told about their adoption when young, they will want to go back and live with their natural family. Because of this, Islanders want to have some control within each family as to when and how to tell children.
Advisory/decision making structure to assist white legal system. As has already been stated, the changing nature of adoption combined with the blurring of adoption and short term caring arrangements, has meant that disputes extend outside the family system. Because of the mobility of Islanders to other outer islands, Thursday Island and mainland Australia, disputes are not just between different families on the one island. Traditional family methods of resolving disputes have been overtaken by the white legal system, with Islanders having differing knowledge of how to use the system. The issue of Islanders marrying non-Islanders also creates problems when disputes arise over the custody of children with the Islander side of the family wishing to resolve disputes in an Islander customary manner.
Torres Strait Islanders everywhere acknowledged that their family life is influenced by the white legal system, and spoke of how they could influence the white legal system to understand Islander ways. There was widespread support for an advisory body to be recognised by the legal system and which automatically had to be consulted in family matters involving Torres Strait Islanders. All Islanders agreed that the advisory body should consist of Community Elders who know the families and know the intentions of the traditional customs.
Murray Island has a structure for Elders known as the Council of Elders. This formal structure and its establishment in all Islander communities is currently an ongoing topic which was raised by all communities visited. The Islands of the Torres Strait have elected Community Councillors and a Chairman, and some Islanders stated that these positions could work together with Community Elders in both resolving disputes through by-laws, or acting as advisers to the white legal system.
Islanders stated that it should be compulsory for Magistrates, Family Court Judges, the Public Trustee, etc., to consult with the Community Elders before making a decison which affects Torres Strait Islander families. Some stated that in disputes involving the care and safety of children, there should be a Statement of Principles which all Councils of Elders should adhere to when assessing a situation to provide advice to a Court or other such authoritative body.
While Elders can be used informally, the impact of Torres Strait Islander involvement in matters affecting their children can be maximised by legal acknowledgement of the structure. Elders should represent Eastern, Central and Western groups, and they have the responsibility of connecting the way things were done in the past with the problems that are happening in the present.
Islanders are aware that white decision makers cannot understand the complexity and subtlety of their problems as a traditional people who have been influenced by white ways. They stated that the solutions to their problems should be left to them to work out, but that they needed proper resourcing and legal recognition (power) for this to occur.
Islanders stated that Elders could more successfully intervene in matters involving only Islander families, and that in situations where an Islander is married to a non-Islander, they can act in an advisory capacity to a white authority regarding the Torres Strait Islander perspectives. The situation of the Canadian Inuit and legal recognition of their customary adoption practice over the past twenty years was raised at the Third National Torres Strait Islander Conference in March 1993 at Townsville.
Torres Strait Islanders who have had experience with the established indigenous child service agencies in Australia - the Aboriginal and Islander Child Care Agency and the Secretariat for National Aboriginal and Islander Child Care - stated that Islanders should try and achieve their goals by working with the support of these services.
Torres Strait Islander solutions to these problems on both the mainland and the Torres Strait are:
Torres Strait Islanders themselves are able to define the many variations and changing nature of their traditional child care customs. They require the dominant white legal system to recognise their own definitions and to give authority to those definitions. In the cases of disputes, Torres Strait Islanders are able to work out their own solutions to the many problems, and require their solutions to have authority when their own structures advise the white legal system.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1994/5.html