Barns, Greg; Macdonald, Rowena --- "Forced adoption and legal redress" [2023] PrecedentAULA 9; (2023) 174 Precedent 38

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FORCED ADOPTION AND LEGAL REDRESS

By Greg Barns SC and Rowena Macdonald

Despite a national apology and Senate inquiry, no compensation scheme has been established by the Commonwealth for the mothers whose babies were removed and given up for adoption in every state and territory from the 1940s–80s. With a revealing case study from Tasmania, where it has been ten years since the promise of redress, this article details the shocking impact of forced adoption and the need for reparation.

‘STELLA’S’ STORY: A CASE STUDY

‘Stella’^[1] was 18 years old and living in Southern Tasmania when she gave birth to her first and only child. She was unmarried and living at home with her parents at the time. Her mother, crippled with the shame and stigma surrounding the pregnancy in the misogynistic world of 1970s Tasmania, would not speak to Stella when she began labouring and left her alone at the door of the hospital.

Stella recalls walking into the hospital. She believes she was given medication to sedate her because the next thing she remembers is waking up to a nurse telling her, ‘it’s alright. We are giving you an enema’. She recalls nothing else until she woke again on a table with her legs in stirrups and a doctor saying the cord was around the baby’s neck. The baby was delivered by forceps and a phone call was made, presumably to her mother, saying the child was alive.

The headboard in the hospital had Stella’s name and ‘ADOPTION’ written underneath it. She was given medication to stop lactation and was told she was not allowed to see her baby.

She remembers when the ‘adoption woman’ came to see her and her mother. She was told she had no choice but to sign the adoption papers because the baby had already gone to a new family. She later learned that the hospital kept the baby for six months to monitor her health. When recounting this part of her story, Stella recalls it as if it was yesterday:

‘That poor child. I was crying in the office. My mum left the room and I told [the adoption woman] I don’t want to give up my baby. She called my mum back in and I was told I had to initial some paperwork. We weren’t talked through it. She didn’t tell my mother I wanted to keep the baby.’

After her harrowing experience, Stella made the decision to leave Tasmania in an effort to escape the pain of her loss. She did not have any other children because she says she could not face going through something like that again. Retired now, living on her own and still grieving, she says:

‘When you stop working; that’s when it hits you all over again. I used to work full time and have two casual jobs on the side. When you stop working – once you retire – it just hits you in the guts again because you have more time to think about it.’

This case study gives a sense of the scale of abuse and suffering that forced adoption practices had on women. Consistent with Stella’s experience, in a report on the impact of past adoption practices in Australia, General Manager of the Australian Institute of Family Studies Dr Daryl Higgins said:

‘Contrary to the popular myth that “time heals all wounds”, one theme that was fairly consistent ... was the notion that the pain and distress of their experience of [forced] adoption did not just “go away” with the passage of time. In his qualitative study, Condon (1986) wrote:

“A most striking finding in the present study is that the majority of these women reported no diminution of their sadness, anger and guilt over the considerable number of years which had elapsed since their relinquishment.”’^[2]

THE POLICY OF FORCED ADOPTION

After World War II, there was a consistent move by governments and welfare agencies across Australia to encourage single women to adopt out their babies at birth and use, in the context of adoption of children policies, what was called the ‘clean break’ or ‘blank slate’ theory. Influenced by Sigmund and Anna Freud:

‘Developmental psychologists premised their beliefs on the long-held notion that a child is a “blank slate” as a newborn. They argued that the personality and intelligence of an individual is determined by environment, not genetics.’^[3]

As the report following the Senate inquiry into the Commonwealth Contribution to Former Forced Adoption Policies and Practices (Senate Report) put it:

‘The prevailing theories advocated that the psychological and financial qualifications of a married couple were superior to those of single mothers and impoverished families. Therefore, placing the child in an adoptive home within the earliest possible timeframe was the primary way of safe-guarding the welfare of the child.’^[4]

The consequence of this mindset and theory underpinning policy was that women who were single when they gave birth to their child were forced to give up that child. This was the policy of forced adoption and it was practised in every Australian state and territory into the 1980s. The Senate inquiry estimated that there were around 140,000 to 150,000 total adoptions between 1951 and 1975, noting that the number that were forced is unknown.^[5]

As is too often the case in Australia, there has been no compensation scheme established by the Commonwealth, despite the national apology, detailed below, and the explicit acknowledgement of wrongdoing.^[6]

This state of affairs has led to the use of common law actions for negligence, assault and battery, along with duress on the part of hospitals and ‘babies homes’ run by the state, churches or other NGOs.

THE APOLOGIES

On 29 February 2012, the Commonwealth Senate Community Affairs Reference Committee released the Senate Report.^[7] The Senate inquiry was a consequence of a 2010 motion, which, in turn, was a response to the apology given by the Western Australian Parliament in 2010. The motion covered more than just the terms of reference for the inquiry. The motion read:

‘(1) That the Senate:

(a) acknowledges the recent apology given by the Western Australian Parliament to those mothers whose children were removed and given up for adoption from the late 1940s to the 1980s; and

(b) notes that policies and practices resulting in forced adoptions were widespread throughout Australia during that time.

(2) That the following matters be referred to the Community Affairs References Committee for inquiry and report by 30 April 2011:

(a) the role, if any, of the Commonwealth Government, its policies and practices in contributing to forced adoptions; and

(b) the potential role of the Commonwealth in developing a national framework to assist states and territories to address the consequences for the mothers, their families and children who were subject to forced adoption policies.’^[8]

The Senate Report contained 20 recommendations, including ‘that the Commonwealth should lead discussions with states and territories to consider the issues surrounding the establishment and funding of financial reparation schemes’.^[9]

In 2013, following the release of the Senate Report, the Australian Government, through Prime Minister Julia Gillard, delivered a formal apology^[10] to those affected by forced adoption practices. By this time all states and territories had formally apologised.

The Tasmanian Parliament delivered an apology in 2012, with then Premier Lara Giddings concluding her speech by noting the motion had tripartisan support:

‘We acknowledge the lifelong damage that has been done to the lives of those affected by past forced adoption practices, and we commit to ensuring that these unethical, immoral and illegal practices are never repeated.

We come together today in this House, the three political parties united, to acknowledge the deep hurt caused by past forced adoption practices ... We come together to take responsibility for those practices which were wrong, not merely by today’s values but also by the laws of the time.’^[11]

The women involved in advocating for the apology were promised that, consistent with the Senate Report, the Tasmanian Government would accompany an apology with concrete actions to ‘offer redress for past mistakes’. It is now ten years since that promise, and no compensation or redress has been forthcoming.

VICTORIAN REDRESS SCHEME

The only jurisdiction that has, to date, initiated a redress scheme is Victoria. On 10 March 2022,^[12] the Victorian Government announced a $4 million redress scheme for mothers whose babies were forcibly taken from them over the period of 1958 to 1984.

THE TASMANIAN CONTEXT

In 1999, the Tasmanian Parliament held its own inquiry into past adoption practices. The terms of reference of the Joint Select Committee were:

'(1) The past and continuing effects of professional practices in the administration and delivery of adoption and related services, particularly those services relating to the taking of consents, offered to birth parents in Tasmania from 1950 to 1988.

(2) Whether the practices ... Involved unethical and/or unlawful practices or practices that denied birth parents access to non adoption alternatives for their child.

(3) If so, what appropriate and practical measures might be put in place to assist persons experiencing distress due to such practices?'^[13]

The Committee did not find any ‘definitive’^[14] evidence of unethical or unlawful practices, concluding that the disappearance of records and deaths of key witnesses made it impossible to be sure. The Committee further concluded that community attitudes of the time and departmental procedures had to be considered.^[15]

At the time when Stella’s baby was taken, the Adoption of Children Act 1968 (Tas) was the applicable legislative instrument for the adoption of children. Section 21 of that Act (repealed by the Adoption Act 1988) clearly stipulated that a court ‘shall not make an order for the adoption of a child unless consent ... to the adoption has been given by the appropriate person’. In the case of an ‘illegitimate child’ the appropriate person was defined as ‘every person who is the mother or guardian of a child’.^[16] Section 23 of the Act provided that consent to adoption ‘may be revoked by notice in writing served on the Director’ within 30 days of the signing of the ‘instrument of consent’.

Stella did not give her consent

Stella did not give her consent. It is noted in her records that a Child Welfare Officer understood that she had in fact decided to keep her baby. The documentation Stella signed that purportedly authorised the adoption was not explained to her at the time, and she was told her baby had ‘already gone’ which she now understands was not correct. It is reasonable to say that even if there was consent, that consent was defective pursuant to s26 of the Adoption of Children Act as it was arguably obtained by ‘fraud, duress, or other improper means’ and/or she did not understand the nature of the consent. She was certainly not advised that she had 30 days in which to change her mind.

Having now obtained her records, the only comfort for Stella is seeing in black and white that she had made it clear at the time that she did not want to give up her baby. While it is cold comfort for Stella, the record is arguably ‘definitive’ evidence of unethical or unlawful practices in respect to the practice of forced adoption in Tasmania, contrary to the findings of the Tasmanian Senate Select Committee referred to above.

Stella is working closely with a group of women who were also victims of forced adoption practices in Tasmania. They are a close-knit community, united by their shared grief. In their collective opinion, an apology and counselling are nowhere near enough to compensate these women who were subjected to forced adoptions which were not just cruel but, in cases like Stella’s, unlawful – as can be seen through an analysis of the records and the laws of the time.^[17]

Stella is filing proceedings in the Supreme Court of Tasmania. She will be the first in Tasmania to take this step and it remains to be seen if the relevant institution will plead the defence of limitation pursuant to the Limitation Act 1974 (Tas).

CIVIL LIABILITY ISSUES

There can be little doubt that the agency arranging the forced adoption, and the hospital in which the mother gave birth, both owed a duty of care to the mother. This was the case at the time forced adoption practices were common in hospitals in Australia. As Mason J said in Kondis v State Transport Authority:^[18]

‘The liability of a hospital arises out of its undertaking an obligation to treat its patient, an obligation which carries with it a duty to use reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the obligation on its behalf acts without due care: Gold (59). Accordingly, the duty is one the performance of which cannot be delegated, not even to a properly qualified doctor or surgeon under a contract for services: Cassidy (60).’^[19]

He went on to add:

‘The hospital undertakes the care, supervision or control of patients who are in special need of care. ... In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision and control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.’^[20]

In many forced adoption cases women had their breasts bound without their consent^[21] or had their child removed from them immediately following the birth, again without their consent. In some cases, heroin and anti-lactation medication were given to mothers without their consent.^[22]

Breast binding and providing medication without consent constitute the torts of assault and battery, and trespass.

A major feature of forced adoption cases was the duress applied to women by hospitals and other agencies to have them sign the relevant documentation under adoption legislation. Further, and as an element of that duress, at no stage were women afforded the opportunity to seek independent legal advice.

In other cases, where consent was required under the adoption legislation of each jurisdiction,^[23] this was obtained under circumstances of duress. Ironically the Adoption of Children Act 1964 (Vic) included a provision allowing for the discharge of an adoption order if the Supreme Court was ‘satisfied that the adoption order, or any consent for the purposes of the adoption order, was obtained by fraud, duress or other improper means’.^[24]

In the Australian context there is little, if any, available case law on the issue of duress, consent and adoption. However, a relatively recent Canadian decision^[25] gives some insight into what constitutes duress in this context. In Re J.R.H., Viet J said that for consent in an adoption to be valid:

‘(a) the consent must represent the guardian's own will and not be influenced by pressure to give up the child, including economic pressure, pressure from social workers or counsellors, or pressure from other people; and,

(b) the birth parent must be informed about the nature of the adoption process and must know that there are other alternatives available.’

LIMITATIONS DEFENCES?

On the issue of limitations legislation, the Senate Report noted that:

‘In cases where illegality is alleged in the adoption process the prosecution of those responsible should not be hindered by statutes of limitation. The committee urges all states and territories to examine the limitations for infringements of adoption legislation to ensure that they do not act as a barrier to litigation by individuals who were not made aware of their legal rights at the time that offences may have been committed. The committee does not want people who have been damaged by their experience of forced adoption to be damaged further by having to endure a long and bruising legal journey that may ultimately be unsuccessful due to a legal technicality.’^[26]

Of course, statutory limitations periods do not bar the jurisdiction of the court to entertain a claim for personal injury. In Price v Spoor,^[27] the High Court considered the effect of limitation periods. Tracing the history of the case law, the Court referred to comments made by other members of the Court earlier in Commonwealth v Mewett,^[28] to the effect that a statutory bar does not go to the jurisdiction of the court to entertain the claim but rather to the remedy available. In effect, limitation periods operate to ‘bar the remedy but not the right’ and as such they must be pleaded as a defence (unless inconsistent with the relevant limitations Act when read as a whole). Chief Justice Kiefel and Edelman J said that:

‘What was said in Mewett accords with the reasons of Mason CJ in The Commonwealth v Verwayen. Speaking there of then s5(6) of the Limitation of Actions Act 1958 (Vic) ... his Honour said that although the terms of that provision are capable of being read as going to the jurisdiction of the court, limitation provisions of this kind have not been held to have that effect. Instead they have been held to bar the remedy but not the right and thereby create a defence to the action which must be pleaded. These statements have been applied with approval on a number of occasions in this Court.’^[29]

CONCLUSION

The appalling history of forced adoption policies in Australia is, like institutional sexual abuse and the Stolen Generation, a stain on this nation.

Those who have been traumatised, both mothers and their children, should be compensated for the suffering they have endured through the practices of hospitals, churches and other institutions that were part of the matrix of enablers and decision-makers in the forced adoption arena.

It is not enough to apologise. As the saying goes, ‘words are cheap’.

Greg Barns SC is a member of the Tasmanian Bar and an interstate member of the Victorian and WA Bars. He practises in criminal law, administrative law and human rights, including sexual abuse and forced adoption. Greg has been a sessional lecturer at RMIT University since 2014. He is Chair of the Prisoners Legal Service in Tasmania, a Patron of the Justice Reform Initiative, and a past President of the Australian Lawyers Alliance.

Rowena Macdonald is Principal Solicitor in the Hobart branch of Angela Sdrinis Legal, working with a team dedicated to the provision of expert, trauma-informed legal advice. Previously she worked as a solicitor in civil litigation and dispute resolution, and as an industrial officer with the Australian Nursing and Midwifery Federation. Rowena acts for a number of women who were subjected to forced adoption practices in Tasmania.

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^[1] Name changed to protect privacy. This statement was provided to one of the authors as Stella’s legal representative.

^[2] D Higgins, Australian Institute of Family Studies, Impact of Past Adoption Practices: Summary of Key Issues from Australian Research: Final Report (March 2010, amended 30 April 2010) 17 <https://www.dss.gov.au/sites/default/files/documents/pastadoptionreport.pdf>.

^[3] Commonwealth of Australia, Senate Community Affairs References Committee, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012) (Senate Report) [2.16]–[2.17].

^[4] Ibid, [2.17].

^[5] Ibid, [1.35].

^[6] The Victorian Government has announced a limited redress scheme: ‘The Victorian government will commit 4 million dollars to the creation of the redress scheme with $500,000 going towards discretionary payments for mothers with exceptional circumstances, such as those who are terminally ill’: Shine Lawyers, Forced Adoption Compensation (2022) <https://www.shine.com.au/service/abuse-law/forced-adoption-compensation>.

^[7] Senate Report, above note 3.

^[8] Commonwealth, Parliamentary Debates, Senate Hansard, 15 November 2010.

^[9] Senate Report, above note 3, [11.36].

^[10] Australian Government Attorney General’s Department, National Apology for Forced Adoptions (21 March 2013) <https://www.ag.gov.au/families-and-marriage/national-apology-forced-adoptions>.

^[11] Find & Connect, Apology to People Hurt by Past Forced Adoption Practices (2012) <https://www.findandconnect.gov.au/ref/tas/biogs/TE00560b.htm>.

^[12] D Andrews, Healing the Harm of Forced Adoption (Media Release, 10 March 2022) <https://www.premier.vic.gov.au/healing-harm-forced-adoption>.

^[13] Parliament of Tasmania, Joint Select Committee, Joint Select Committee on Adoption and Related Services 1950-1988 (Report, 1999) 13.

^[14] Ibid, 11.

^[15] Ibid, 37.

^[16] Adoption of Children Act 1968 (Tas), s21(3).

^[17] See, for example, A Wilson, ‘Eight victims of forced adoptions in Tasmania take pioneering legal action in fight for justice’, Mercury (Saturday 20 November 2021) 24–5.

^[18] [1984] HCA 61; (1984) 154 CLR 672, 686.

^[19] Ibid.

^[20] Ibid, 687.

^[21] See, for example, C Nader, ‘The trauma of forced adoption for shamed single mothers’, Sydney Morning Herald (7 May 2011) <https://www.smh.com.au/national/the-trauma-of-forced-adoption-for-shamed-single-mothers-20110506-1ebzx.html>.

^[22] Senate Report, above note 3, [9.41].

^[23] For example, Adoption of Children Act 1920 (Tas), s5(1).

^[24] Adoption of Children Act 1964 (Vic), s16(1).

^[25] Re J.R.H. [1998] AJ, No. 840, cited in T.L.P. v. K.H., 2013 ABQB 643.

^[26] Senate Report, above note 3, [11.50].

^[27] Price v Spoor (2021) 391 ALR 532; [2021] HCA 20 (Price).

^[28] Commonwealth v Mewett (1997) 191 CLR 471.

^[29] Price, above note 27, [10].