Protecting the Rights of Indigenous and Multicultural Children and Preserving their Cultures in Fostering and Adoption

• Published date: 01 January 2014
• Date: 01 January 2014
• DOI: http://doi.org/10.1111/fcre.12067
• Author: Mark Anderson

SPECIAL ISSUE ARTICLES

PROTECTING THE RIGHTS OF INDIGENOUS AND MULTICULTURAL

CHILDREN AND PRESERVING THEIR CULTURES IN

FOSTERING AND ADOPTION

Mark Anderson

This article examines transracial/cultural placement of children for fostering and adoption as discussed within the context of

expert evidence in applications for permanent placement. Transracial/cultural placement raises the issues of attachment and

identity. The undesirability of the child being raised apart from the natural biological family’s culture and ethnicity, the

undesirability of disrupting secure attachments, and the signif‌icance of birth parents’ parenting capacity are placed in stark

contrast. The benef‌its of contact in reducing sense of abandonment and loss of parental care and culture of origin are also

examined. The best practice for transracial placements depends upon the cultural prominence determined to be in the child’s

best interests. Placements favored are those where attachment is secure and parenting capacity is judged superior.The child’s

best interests may generally be considered by the courts in the short to medium term to be enhanced by placement with the

person(s) with whom the child has the strongest attachments. The longer term issue is more problematic and not determined

with conf‌idence.

Keypoints

• Cultural preservation of children’s birth culture in out-of-home placements for fostering and adoption

• Placement of children—issues for attachment and identity

• Best practice and cultural dominance in placement where ethnically and racially diverse environments of origin of

placement and child

• Best interests principle Considerations for secure attachment and parenting capacity

Keywords: Adoption Placement;Birth Culture;Enhancing Cultural Preservation;Expert Evidence;and Fostering.

INTRODUCTION

In this paper, the term transracial placement refers to the placement of a child with carer(s) who

are patently ethnically different to the child.Also, the terms “fostering” and “adoption” imply specif‌ic

legal concepts.1These concepts include the short and long term authorised legal placement with a

family of a child outside of its family and kinship group of origin.2The placement may involve

placement outside the racial or ethnic group to which one or both of the child’s parents belong.

The implications for the child’s rights caused by placement outside the racial or ethnic group of

origin is highlighted by the recognition that the United Nations Convention on the Rights of the Child

1989 (UNCROC), to which Australia is a signatory, has received in Australian case law and legisla-

tion.3The amendment of section 60B of the Family Law Act 1975 effective from 7 June 2012, now

makes the consideration of the UNCROC essential in interpreting the provisions of that Act for

applications commenced after that date in the Family Court.4

The provisions of the UNCROC have been held to be relevant to the exercise of discretion in

decisions relating to children, in both judicial exercise of the discretion and in administrative deci-

sions.5Articles of the UNCROC which may be relevant in this context are Articles 3, 5, 7, 8, 9, 18,

29, and 30.6The UNCROC states in Article 7 that children have the right to a legally registered name

Correspondence: mark.anderson@fjc.net.au

FAMILY COURT REVIEW, Vol. 52 No. 1, January 2014 6–27

© 2014 Association of Familyand Conciliation Cour ts

and nationality. Also, children also have the right to know their parents and, as far as possible, to be

cared for by them.7The State parties to the UNCROC “shall ensure” that a child should not be

separated from his or her parents against their will unless it is necessary in their best interests.8For

instance, in the case of abuse or neglect or separation of the parents, a decision must be made in

relation to the child’s place of residence. Article 8 read withAr ticle 29 andArticle 30 support the view

that the original cultural identity of the child is highly signif‌icant and should be protected.9The

UNCROC states in Article 30 that children have the right to learn and use the language and customs

of their families, whether or not these are shared by the majority of people in the country where they

live, as long as this does not harm other people. However, Article 41 of the UNCROC, provides that

if the laws of a country protect children better than the Articles of the UNCROC, then those laws

should override the UNCROC.10 Permanent placement of a child out of their family of origin can

occur either through fostering on a long-term basis with authorised carers, or through adoption.

Customary practices seen particularly with Torres Strait Islander, and Pacif‌ic Islander cultures have

apparently existed prior to the modern concepts of adoption and placement of children under the legal

authority of the state.11 Reference is made to these practices later in this paper.

Attachment issues arise in most jurisdictions dealing with placement of children, whether in

biologically and ethnically homogenousalthough separated families, or in alter nativeplacements. The

understanding of the process of attachment and the biological imperative for the child’s survival lend

more than academic interest to the processes and importance of formation of a “secure attachment”.12

The current knowledge about attachment indicates that the neurological development of an infant is

closely tied with formation of a secure attachment.13 Togetherwith adequate stimulation and nutrition

this nurturing is essential for the development of critical processes of the brain, which gives the

maturing child and person resilience to cope with the adverse vicissitudes of life.14 The process of

attachment is viewed primarily from the infant or child’s point of view, not from the adult’s perspec-

tive.15 Although the adult interaction is also important for the process to be complete.16

While growing up is challenging for most children from stable backgrounds, it is perceived that it

may be more diff‌icult for children who grow up looking different from their parents, family, and

friends. The research on these issues is referred to in detail later in this paper, but further research is

called for in relation to the long-term outcomes of transracial placement, both psychological and

medical.17 Children placed in transracial families also often do not grow up in bilingual households in

contact with their extended family of origin, language or the culture of origin.18 Children have little

or no initial choice in the change from f‌itting in, to standing out. These facts make it imperative to

protect children’s rights to preserve their culture of origin, and identity, as far as possible. It is a

controversial issue which does not have a clear answer.19

LEGAL PROVISIONS

In many jurisdictions in order for permanent placement of a child to occur outside its family of

origin and/or outside its country of origin, a formal legal process is mandated. The international

context is considered f‌irst since it is a clear example of placement outside the child’s family and ethnic

group, and placement of a child with carer(s) who are patently ethnically different to the child. The

Hague Convention on IntercountryAdoption 1993 (“the HCIA”), to which Australia is a signatory or

Contracting State, recognises and regularises the often encountered diff‌iculties in implementing this

process in relation to international or intercountry transracial placements. 20 Then the provisions in

relation to indigenous children’s placement are considered. More general placements are next

considered.

The best interests of the child are paramount under the HCIA.21 In the context of the HICA, the

“subsidiarity” principle means that Contracting States recognise that a child should be raised by his

or her birth family or extended family whenever possible.22 If that is not possibleor practicable, other

forms of permanent care in the country of origin should be considered. Only after due consideration

has been given to national solutions should intercountry adoption be considered, and then only if it is

in the child’s best interests.23 As a general rule, institutional care should be considered as a last resort

Anderson/MULTICULTURAL CHILDREN AND PRESERVING THEIR CULTURES 7