383. Aboriginal Customary Practices. As has been seen in Aboriginal communities the extended family plays a very important role in child care arrangements. It is common for a member of a child’s extended family, often a grandmother, to look after a child or children for periods of time where the parents are unable to do so for one reason or another. Sometimes these arrangements may extend for longer periods of time, to the point where the child might be identified as permanently in the custody of the person(s) looking after him or her and thus regarded as having been adopted. But it would not usually be correct to describe such placements as ‘adoptions’, since there is no severing of the parent-child relationship but rather a long term arrangement for substitute care. If an equivalent must be found in the State child welfare systems it would be fostering rather than adoption. In the Torres Strait Islands, on the other hand, there is a distinct practice of customary adoption, involving the permanent placement of children with members of the extended family. The new custodians of the child are thereafter regarded by the community as its parents.
384. Recognition of Customary Adoption? During the Commission’s Public Hearings, it was suggested that the law should recognise and give some form of status to ‘customary adoptions’. Such legal recognition could provide a form of protection against removal of children living in unofficial but acceptable arrangements for care had already been made. In Canada, where customary adoption is a common practice among the Inuit, the Northwest Territories Court of Appeal has held that formal provisions in Adoption Ordinances did not preclude recognition of customary adoptions. In Ontario it has been proposed that:
Another method of recognizing the differences between the dominant culture and the Indian ones is to sanction custom adoptions the practice of which already exists in Ontario … Notification of the custom adoption would simply require the names of the adoptive and natural parents, the name of the child, the date and place of the ceremony, and the names of two witnesses who can attest to the adoption’s compliance with customary law … the legislation would not require registration to validate the adoption, only to protect it from being challenged.
On the other hand, at the First Australian Conference on Adoption in 1976 it was stated that the concept of formal adoption was quite alien to Aborigines, but that many were forced to go through the legal process of adoption in order to ‘guard against later interference by welfare agencies’. It was proposed that viable alternatives to legal adoption be made available so that ‘placement of each individual child be determined by the needs of the child and his family, rather than by the straight-jacket of bureaucratic procedures’.
385. Existing Legislative Provisions. Despite the relative frequency with which long term placements of children occur informally in Aboriginal communities, the law has so far made little or no provision for them. It is true that an important matter in considering the best interests of the child is the desirability of not disturbing existing settled arrangements for custody. It is possible that new arrangements for long-term custody by persons other than parents will be introduced as an alternative to adoption. An example is the Children (Guardianship and Custody) Act 1984 (Vic), which has already been referred to. The Act is, in part, designed to accommodate child care within the extended family, including Aboriginal families, orders for custody as distinct from adoption being ‘more consistent with Aboriginal cultural values than is adoption’. By contrast, there are provisions, in the law of some States, which could in theory at least be used to penalise traditional Aboriginal practices for custody and ‘fostering’ in the extended family. For example, s 111 of the Child Welfare Act 1947 (WA) provides that:
No person other than a near relative shall have the care, charge or custody of any child under the age of six years other than on a casual or day-time basis, without being licenced by the Department or approved by the Director in writing for that purpose.
This provision prohibits placement of a child with a person who is not a ‘relative’ (defined in s 44(2)) ‘for the purpose of the fostering of the child’ where the placement is not authorised and exceeds 50 days in any year. Such provisions are principally intended to prevent unlicenced child-minding centres with inadequate standards from operating. But, in some cases at least, they are in terms wide enough to provide a basis for intervention in extended Aboriginal families, where children are being looked after by persons who may not qualify as ‘relatives’ or ‘near relatives’ under the statutory definitions. The New South Wales Act, for example, has been criticized on this ground. There is, obviously, a need to ensure that provisions of this sort are not applied as a direct form of non-recognition of Aboriginal family arrangements. The provisions are aimed at commercial child-care facilities of various kinds, not at child-minding within the extended family. This result would probably be achieved by liberal interpretation of terms such as ‘relative’ in the legislation. There is no indication that these provisions have in fact been used as a vehicle for intervention in Aboriginal families. But they should not be applied to child care arrangements in accordance with Aboriginal tradition.
386. Categorical Difficulties in Recognition. The question remains whether Australian law should affirmatively recognise, and thus protect, customary placements in the nature of adoption or fostering. The problem in doing so is that Aboriginal child care arrangements are not, in the ordinary sense, ‘adoptions’, since the children generally remain aware of, and involved in, their original families. They are distinctive systems of substitute care, which certainly deserve protection, but not necessarily by applying to them the inappropriate concept of ‘adoption’ — a fact recognised by the provisions of the Children (Guardianship and Protection) Act 1984 (Vic). In the Commission’s view, sufficient protection is provided by the placement principle already recommended. It is preferable to ensure retention of children within Aboriginal families and communities, thus protecting appropriate arrangements for custody. This is the effect of the recommendations already made in this Chapter.
See para 230-6, 344.
See para 361 and cf Bell & Ditton (1985) 97: ‘There is no clear analogy between the sweeping rights of adoption under the new law and the notion of a caring adult under the old law’.
cf the Children (Guardianship and Custody) Act 1984 (Vic): para 361.
ACL Field Report 6 (1982) 14, 18. Customary adoption agreements were at one time recorded in the Island Court books: id, Appendix 10.
S Carey, Transcript, Launceston (21 May 1981) 2799. See also S Christian, Transcript Cairns (5 May 1981) 2183a; Tasmania Police, Submission 296 (16 June 1981) 6, calling for the recognition of customary fostering practices as a way of giving ‘intermediate legal status to the family caring for the child. Care would need to be taken to protect the legal rights of the natural parents, but at the same time formalizing any arrangements made for the care of children when the natural parents are unable to care for them’.
Re Deborah, Kitchooalik and Enooyak v Tucktoo  5 WWR 203, 209-10 (Johnson JA). See generally D Sanders, Family Law and Native People, Canadian LRC, Background Paper, 1975, 41-4, 62-73, 160-5.
Morse (1981) 46-3. See also British Columbia, Fifth Report of the Royal Commission on Family and Children’s Law, Part VII Adoption (1975) 66-85.
Sommerlad (1976) 162.
The point is now specifically provided for, in the context of care proceedings, in the Community Welfare Act 1982 (NSW) s 91(3), 94(2).
See para 361.
Victoria, Part Debs (Legislative Assembly) (2 May 1984) 4245.
And differently worded prohibitions in other jurisdictions: eg Community Welfare Act 1982 (NSW) s 47 (replacing Child Welfare Act 1939 (NSW) s 28-9).
See also Child Welfare Ordinance, 1957 (ACT) s 30; Community Welfare Act 1972 (SA) s 40-41 (and definitions of ‘children’s home’ and ‘child care centre’ in s 6(1)); Child Welfare Act 1960 (Tas) s 64(5), (6) (for reward only). There are no real equivalents in Queensland or the NT.
Whether the criticism is justified depends on what is a placement ‘for the purpose of … fostering’. ‘Fostering’ is not defined in the Act (and the definition in the cognate Adoption of Children (Community Welfare) Amendment Act 1982 (NSW), Schedule 1, para (4)(b) is unhelpful). It is doubtful whether informal placement of Aboriginal children within the extended family could be described as ‘for the purpose of fostering’.
cf also Adoption Act 1984 (Vic) s 50.