Health Commission of N.S.W.
Policy Warning
1982

The more abusive hospital practices began to change after 1982, when the Health Commission of NSW (having smelt a rat within the industry some years earlier after one such case had already been heard in the Court), eventually distributed a warning to every hospital within the State of New South Wales advising them to clean up their act and get an adoption policy together as soon as possible in relation to the treatment of unmarried mothers as their practices were contravening the Adoption of Children Act 1965 on mental health and legal grounds. Their staff and the hospitals could be at risk of litigation should such mothers take action.

The following policy warning finally put the cat amongst the pigeons when it was realised that they may be at risk of litigation and made to stand accountable for their crimes. It reads:

The Health Commission
Policy on Adoption
Dr Friend circular No: 82/297
September 1 1982.
Roderick McEwin Chairman.

PREAMBLE

In the early 1960's the view was commonly held that it was in the mother's interest that she not see the child she was planning to surrender for adoption, and policies were thus followed which prevented her seeing the child. The hospitals themselves did not doubt that they had a legal right to adopt such policies which were rarely questioned by the staff and by the mothers themselves.

A single mother whatever her age is the sole legal guardian of her child and remains so until a consent to adoption is signed. She therefore has the rights of access to her child and cannot legally be denied this.

An adoption consent may be proved invalid under the terms of the Adoption of Children Act, 1965 (section 31 (b) if the mother has been subject to duress or undue influence. Refusing the mother permission to see or handle her child prior to signing the consent, or putting obstacles in the way of her asserting this right, may readily be interpreted as duress if the validity of an adoption consent is being contested. One challenge to the validity of a consent on these grounds has already been heard in the New South Wales Supreme Court. In the same context any comments or actions by staff members which the mother could see as pressure to persuade her to place her baby for adoption run the risk of later bearing the legal interpretation of duress. Anyone found in these circumstances to have exerted "undue pressure" is liable to prosecution under section 51 of the Act.

It is the experience of adoption workers that most women planning to give up a child now see their child. The majority of these do sign a consent and allow the adoption to proceed. Thus contrary to common belief, experience suggests that there is no negative relationship between a mother seeing her child and signing a consent to adoption or revoking such consent.

GUIDELINES

2.1  Need for a written policy Each hospital should devise a written policy, easily accessible to all hospital staff dealing with adopting mothers. (I think they meant surrendering mothers)

2.2 LEGAL ASPECTS

2.2.1  The legal rights under Common Law of the mother prior to signing a consent to adoption must be recognised as being no less than those possessed by any other mother.

2.2.2  Staff should be aware of the legal complications that may arise in denying or interfering with these rights both in relation to the security of the child's adoption and to their own vulnerability to prosecution.

2.2.3  A part of the mothers rights as guardian of her child is her right to information concerning any medical problems or physical deformity suffered by the child, or any fact which could influence the decision to surrender the child.

PRACTICE

3.1.  Before the signing of the consent:

3.1.1.  At delivery the relationship between the mother and the child is clearly recognisable to staff. There should therefore be no bar to the mother being shown and/or handling her child at this time, should she wish to do so, providing this is medically feasible.

3.1.2.  The usual practice is for the baby to be taken to a nursery away from the mother, shortly after birth. While this seems to be in line with the needs and desires of most mothers considering adoption, it should not prevent the hospital agreeing to a mother's request to care for her child in other ways, e.g. Rooming-in, breastfeeding.

3.1.3.  When the baby is being cared for in a hospital nursery, the mother should know where the baby is located and be informed of hospital procedures for visiting the baby.

3.1.5  Where the baby has any abnormality, illness or other medical problem, the mother must be informed. Otherwise there is a danger of the mother's consent being invalid.

NATURE OF PROBLEM

A contributing factor in this was the identification by the Standing Committee of a number of practices occurring in some public hospitals in relation to adoption matters which are contra-indicated on either mental health or legal grounds. These include: -

* Undue pressure being placed on unmarried women to surrender their infants for adoption (an offence under section 31 of the Adoption of Children Act)

* Unwillingness on the part of hospital personnel to grant the same rights of information and contact with their infants as women who are considering surrendering their infants for adoption as are accorded other women.

EXTENT OF THE PROBLEM

Of the 356 infants of less than three months placed with adoptive parents in 1979-80 (a similar figure is expected for 1980-81) almost all were surrendered while the biological mother was still in hospital. It is not possible to estimate what percentage of these women had unhelpful experiences while hospitalised: the problem is reported to be small but persistent.