Victorian Government’s response to the Inquiry

In March 2022, the Victorian Government formally responded to the Inquiry into responses to historical forced adoption in Victoria (the inquiry).

The Victorian Government fully supported, or supported in principle, 33 of the 56 recommendations made by the Legal and Social Issues Committee. The other 23 recommendations were subject to further consideration.

The recommendations cover the following themes:

• acknowledging and raising awareness about the impacts of forced adoption, and the experiences of people affected
• considering, designing, and modelling options for redress and remedy
• increasing accountability and improving services through clear information, reporting, products, record keeping, and service pathways
• reviewing and providing post-adoption services that provide effective support
• reviewing and updating practices, legislation, and policies related to adoption to ensure past practices never repeat, and
• encouraging organisations involved in past forced adoption practices to offer apologies and support to those affected.

Refer below for a summary of implementation of the Government’s Response to the Inquiry, and other related practice changes. The Government has acquitted 49 of the 56 recommendations.

Adoption practices in Victoria

A key theme of the Commonwealth 2012 Senate Inquiry and the Victorian Inquiry is recognition of the harm caused to people affected by forced separation and closed adoptions that took place between the 1950s up until the mid-1980s.

Adoption practices and regulations have significantly evolved over the last decades. Changing social attitudes led to the de-stigmatisation of unwed mothers, and the introduction of single parent pensions in the 1970s allowed sole parents to provide for their children. Victoria’s Adoption Act 1984 introduced more open adoptions and stricter consent requirements, removing the social context and legal framework that had enabled forced adoptions.

Other significant and more changes to adoption practices and regulations in Victoria, include:

• Centralising adoptions - Adoption Victoria in the Department of Justice and Community Safety is the single authorised adoption agency in Victoria and has a strong commitment to open adoptions. Adoption Victoria seeks applications from prospective adoptive families who accept and support that the child will have significant connections to more than one family. Refer https://www.vic.gov.au/adopt-child-victoria#families-being-sought.
• Centralising Victoria’s Adoption Information Service (AIS). AIS operates as a one-stop-shop for eligible people affected by adoption to access adoption records and information. Refer https://www.vic.gov.au/apply-adoption-information.
• New Adoption Regulations were made 24 February 2019. The regulations define an ‘adoption plan’ and ensure that all new adoptions have an adoption plan that details the agreed ongoing contact and information arrangements between the child and its natural parents. The information contained in the Adoption Plan is included in the Adoption Victoria report, which is provided to the court to assist them in making a final decision on the adoption order. The court is provided with information on the agreed contact and information arrangements, and the ways the child's connection to cultural heritage and their cultural identity will be fostered. The court uses this information when deciding whether to make an order for the adoption, and can include these arrangements in the court order. For further information on legislation and standards refer https://www.vic.gov.au/adoption-legislation-and-standards.

Births Deaths and Marriages Victoria

Integrated birth certificates for adoptees became available from Births Deaths and Marriages Victoria (BDM) in early October 2023. Eligible persons can apply for an integrated birth certificate at bdm.vic.gov.au.

Original birth certificates that are no longer valid will not be stamped ‘cancelled’. A new template is in use that more sensitively conveys where an original birth certificate is no longer a valid legal document to prove identity.

VANISH

The government has also committed an additional $530,000 over 2 years from 2024-25 for an uplift in post-adoption services.

Post-adoption services – VANISH

VANISH offers search expertise, support, and community to people affected by adoption and family separation. Services are free for people whose adoption or separation from their child took place in Victoria, or for people who now live in Victoria, including intercountry adopted people.

The department has committed to continue funding VANISH from 1 July 2024 to 30 June 2029 to deliver the following services:

• General post-adoption information and support: general information to clients on adoption issues and available services, including referrals where appropriate.
• Family search guidance and support: individual and small group support to people undertaking their own search for biological family.
• Direct family search: VANISH support to directly search for and locate biological family for a client, and to provide intermediary support to make first contact where required.
• Peer support groups (for 2 years only): will support clients per year in Melbourne, Ballarat, Albury-Wodonga; and other regional locations depending on demand.
• Counselling brokerage (for 2 years only): Will support clients to access mental health support.
• Forced adoption training for support professionals: Training for health and other professionals who may encounter someone impacted by adoption. Training will support the delivery of trauma-informed services.

Adoption Information Service

Where a person is seeking information previously redacted or withheld under the Adoption Act 1984, they apply to the County Court under section 99 of the Act. The County Court currently waives this fee.

Mandatory counselling has been removed for information applicants. This recommendation was fully acquitted with changes to s87 of the Adoption Act 1984 made by the Justice Legislation Amendment Act 2022, passed in May 2022.

The Adoption Information Service has been centralised. On 1 October 2021, the Secretary of the Department of Justice and Community Safety ceased to authorise adoption agencies under the Adoption Act 1984. Adoption Services within the Department of Justice and Community Safety is the single adoption agency in Victoria, and is the only agency that can authorise the release of adoption information.

Eligible persons, including natural mothers, fathers; adoptees; and children of adoptees can apply for identifying adoption information.

Records not held by Department of Justice and Community Safety

The Department of Justice and Community Safety asked 27 organisations connected to historical forced adoptions to report on any adoption related material in their possession.

A majority of the 27 organisations reported that many of their records are not exclusively records that were created for the purpose of arranging the adoption. The condition of the records identified were reported as ranging from poor to good.

The records identified were archived in multiple ways:

• hard copy (onsite or offsite)
• electronic (onsite or offsite)
• microfiche.

Community service organisations with historical ties to maternity and child homes advised that they hold the following types of records:

• adoptive parent applications and assessments
• adoption information service client files
• adoption agreements
• consents to adoption
• birth, admission, discharge, and labour ward registers
• maternal and child health information, such as ante/post-natal care notes, and infant progress
• organisational reports and documents (e.g. minutes of meetings and annual reports)
• photographs.

Most hospitals and health care organisations advised that they hold the following types of records:

• birth, admission, and discharge registers
• delivery and ward notes
• patient records
• adoption and birth registration policies and guidelines
• medical social work files
• photographs.

The inquiry recognised that lost and destroyed records is more of an issue for mothers requesting medical information than it is for people applying for adoption records (records created for the negotiation and arrangement of the adoption, which includes consent to the adoption, court record etc.) (see page 292 of the report).

The inquiry report notes examples of people affected by historical forced adoptions (mothers and adoptees) who were unable to access hospital records and were upset and angry when they were told that the hospital records had been destroyed (see page 89 of the  report).

Under the Adoption Act 1984, adoption records cannot be destroyed and must be maintained indefinitely. These records include the court record, and the agency record that goes to the arrangement and negotiation of the adoption.

However, health records (hospital records) are retained primarily for the purposes of ongoing patient care or treatment. Health records also tend to be kept until such time as there is little or no risk of litigation arising from the care of a patient. This will depend upon the statutory limitation period within the relevant jurisdiction and any applicable legislation governing medical records.

The rules governing retention of health records (birth registers, obstetric records) has varied over the past decades, and also vary depending on whether the health provider is a private or public organisation. But the majority of these records were never required to be maintained indefinitely.

The current rule for public hospitals is PROS 11/06 issued by Public Record Office Victoria in 2011. It states that the Register of Births within the hospital must be kept permanently and retained as state archives. It also states that obstetric patient records must be retained for 15 years after last attendance or access on behalf of the patient, or provided the child that was born has reached 30 years (see class 2.2.5).

The current rules for private hospitals (includes denominational hospitals) to retain patient records are set out in the Health Privacy Principles, in the Health Records Act 2001. Private hospitals are also regulated by the Health Services (Health Service Establishments) Regulations 2013.

The Health Privacy Principles (refer 4.2) state that a health service provider must not delete health information relating to an individual, unless:

• the deletion is permitted, authorised or required by the regulations or any other law; or the deletion is not contrary to the regulations or any other law;
• in the case of health information collected while the individual was a child, after the individual attains the age of 25 years; or in any case, more than 7 years after the last occasion on which a health service was provided to the individual by the provider— whichever is later.

These rules allow (but do not force) hospitals to legitimately destroy records. Destruction of records is often more common for hospitals that move locations or are succeeded by another hospital.

As such, while it is uncommon for a person to find that the adoption record is missing (lost or destroyed), there is greater discrepancy on whether an applicant will be able to attain a hospital record.

Information applicants can apply to the department to get access to all types of records detailed above. Applicants also have the choice to go directly to the community service organisation (e.g. former adoption agency) or the hospital to attain certain records that they hold.

The department has committed to, where possible, providing an information applicant with an explanation on why their record cannot be located (when the record cannot be found), and the steps taken to locate that record.

Hospitals

On 3 October 2023, all CEOs of public and private hospitals directly involved in historical forced adoptions received a guidance document recommending waiver of all fees for mothers and adoptees requesting access to their hospital records.

Direction for public hospitals to have a specific application for mothers and adoptees to request their medical records has been included in the Policy Guide: Policy and Funding Guidelines 2023-24. The policy guide sets out the obligations and standards for government-funded healthcare organisations. The policy guide also requires public hospitals (where no document is located) to make every effort to explain to information applicants why a hospital record cannot be located, including details of when and how records were destroyed, if possible. Full implementation is progressing.

Redress

Historical Forced Adoptions Redress Scheme

A $138 million redress scheme for natural mothers was announced on 25 October 2023. The scheme opened in February 2024.

The Victorian Government acknowledges the impact of forced adoption practices and will provide support to the many mothers who continue to live with the serious, complex and ongoing effects of the experience of forced separation.

The scheme is open for applications from Victorian mothers who have gave birth to a baby they were forcibly separated from.

The redress scheme delivers individual support through access to a financial redress payment, counselling and psychological support, and apologies.

Visit the Historical Forced Adoptions Redress Scheme page for more information.

Redress scheme for people who were adopted

After careful consideration, the government will not establish a redress scheme for people who were adopted through historical forced adoption practices. Also, a further inquiry focusing on adoptees will not be undertaken. The government is grateful to the adoptees affected by historical forced adoptions who made their voices heard as part of the inquiry. Their lived experiences were critical and helped inform the inquiry’s findings. These findings have increased awareness and understanding of the experiences of adopted people and driven further improvements to post adoption services.

Forced Adoption Exceptional Circumstances Fund

The Forced Adoption Exceptional Circumstances Fund closed on Friday 23 June 2023. New applications are no longer being accepted.

Other

Statutory limitation periods

The recommendation to reform statutory limitation periods is still under consideration.

Data

The Department of Justice and Community Safety now publishes adoptions related data. This data is updated annually.

Discharge of Adoption

A guide to discharge an adoption has now been published at vic.gov.au/discharge-adoption and countycourt.vic.gov.au. As specified in the department’s guide – an adoption may be discharged if the court finds that the adoption application was improperly obtained or if special circumstances exist. Examples of a special circumstance include, but are not limited to: the breakdown of the relationship between the adoptive parents and the adopted child/adult, or restoration of an individual’s birth identity.

Next Update

The government will continue to engage with stakeholders to implement remaining recommendations.

This page contains a snapshot of implementation progress and will be updated quarterly with key announcements throughout the Forced Adoption Inquiry Implementation process. The next update will be provided in December 2024.

Make an enquiry

If you have any questions on the implementation of the Victorian Government’s response, please email the Forced Adoptions Inquiry Implementation team at forcedadoptioninquiry@justice.vic.gov.au