Shelved Adoption: Can Mothers and Children Sue the State?
TGB's Mal Byrne writes about the secret government scandal where mothers handed their babies over for adoption, but the children were never adopted. Different to forced and deferred adoption, this is "shelved adoption".
TGB’s Mal Byrne writes about the secret government scandal where mothers handed their babies over for adoption, but the children were never adopted. Different to forced and deferred adoption, this is “shelved adoption”.
On 21 March 2013, the Federal Government made a national apology for the policy of forced adoption practiced by State and Territory Governments in between the 1950s and the early 1980s. However, the vexed issue of compensation for mothers and infants in those circumstances is unresolved. Nevertheless, the road to compensation may be easier for a certain class of mothers and babies where the biological mother handed the baby over for adoption, the baby was never adopted, and the mother was never told. In all states and territories, the authorities deferred adoptions where the child had medical or congenital problems, was of a certain race, where the doctors were concerned about the medical and psychiatric history of the parents, and, for general social reasons. Even babies with red hair would sometimes be placed on the deferred list. While most babies on the deferred adoption list would eventually be adopted, perhaps as many as one in three were never adopted and the mothers were never told either at the time the babies were removed or later on when the Department decided that the child would not be adopted.
As many medical or social problems were not detectable until after the child was removed by the state, the mothers of those children signed consent forms for the adoption not being aware that the child may never be adopted and not having been advised of the risk that this might occur. When adoption was shelved the mother would not be told and therefore would not be given the opportunity to reclaim the child. As for the child, s/he would effectively be left on the shelf and remain under the control of the Minister and in state care until adulthood.
The legal issue is one of informed consent. The documentation signed by mothers did not provide any indication that there was a risk that the adoption might be deferred and ultimately shelved and that the child would subsequently remain in the control of the Minister in those circumstances. Records indicate that there is possibly only one mother throughout Australia in these circumstances who was ever advised that the child was not adopted and reclaimed the child.
If so, can mothers and children who are parties to shelved adoptions claim compensation against the state government involved? To claim in personal injury, the mother or child must have suffered some form of psychiatric injury as a result of the adoption being shelved. Hence, the mother or child would need to know that the adoption was shelved and suffered some form of psychiatric injury as a result. The law requires that the psychiatric injury be over and above normal grief. The psychiatric injury would also have to be over and above any psychiatric injury attributable to the adoption being forced. It would have to be attributable either solely or predominantly to the adoption being shelved.
Across the country, based on statistics obtained from government departments on the number of adoptions that took place in the 1970s, there were possibly thousands of shelved adoptions. If you are a child/mother in South Australia and a shelved adoption has occurred and you consider that you have suffered some form of psychiatric injury as a result of that situation, you should seek legal advice on whether you have a claim against the State for your loss.