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K and K v Director of Child Welfare [1981] PGSC 12; [1981] PNGLR 333 (28 August 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 333 - K and K v Director of Child Welfare�

[1981] PNGLR 333

SC207

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

K. AND K.

V

DIRECTOR OF CHILD WELFARE

Waigani

Kidu CJ Greville Smith J Kapi J

22 June 1981

24-26 June 1981

29-30 June 1981

28 August 1981

INFANTS AND CHILDREN - Adoption - Evidence - Appeal against refusal of order - Fresh evidence in relation to interests and welfare of child - Fresh evidence admissible.

INFANTS AND CHILDREN - Adoption - Principles - Welfare and interests of child - Automatic citizen child of Papua New Guinea - Adopting parents white Australian - Child to live in Australia - �Identity crisis� - Evidence and discussion of - Court not required to decide what is best for child - Order for adoption made - Adoption of Children Act 1968, s. 12.

On appeal against the refusal of an adoption order in an application for adoption by non-national persons (Australian citizens and residents) of an automatic citizen child of Papua New Guinea where it was proposed that the child be taken to Australia to live:

Held:

N1>(1)����� The court on appeal may consider fresh evidence in relation to the welfare and interests of the child on adoption;

H. and H. v. Director of Child Welfare [1980] P.N.G.L.R. 89 followed.

N1>(2)����� The welfare and interests of the child are the paramount consideration. The court is not required to decide what is the best for the child in any combination of circumstances which may reasonably be seen as possible.

In the matter of S.D.H. and The Child Welfare Act [1963] N.S.W.R. 1140 considered.

N1>(3)����� Evidence not available before the trial judge as to the emotional and psychological effect on the child of being taken to live and grow up in Australia should be taken into account.

N1>(4)����� In the light of the fresh evidence, the welfare and interests of the child would be promoted by the adoption and an order should be made.

Interests and welfare of automatic citizen child of Papua New Guinea and possibility of future �identity crisis� if adopted by white Australian citizens and taken to live and grow up in Australia, discussed.

Appeal.

This was an appeal against the refusal by Miles J. of an order for adoption.

Counsel:

I. Molloy, for the appellants.

R. Gunson, for the respondents.

Cur. adv. vult.

30 JUNE 1981

KIDU CJ GREVILLE SMITH J:� This appeal raises the important question of the desirability or otherwise of Papua New Guinea children being adopted by people of other racial origin, in this case the appellants who are �white� Australians.

The National Court refused the application for adoption of the child because of the possibility, which upon the evidence before him, his Honour the learned judge at first instance found to exist, that the child might face an �identity crisis� as he grows up in Australia where the population is predominantly white.

On appeal this Court has had the benefit of much augmented evidence upon this point, and the benefit of a much better informed and searching cross-examination of the respondent�s main witness, Miss Barbara Binns, than was possible in the court of first instance. In the result we have come to the conclusion that there is no greater danger of an �identity crisis� in this case than in the case of any other adoption, including an adoption of this child by a Papua New Guinea family, or any disadvantage in the child growing up in Australia. We agree with his Honour the learned judge at first instance that the appellants are suitable persons to adopt this child. We are satisfied that the requirements of s. 12 of the Adoption of Children Act 1968 are in this case fulfilled, in particular that the welfare and interests of the child will be promoted by the adoption.

Accordingly we are of opinion that this Court should make the order for adoption sought. As we are of opinion that in all the circumstances the child should be delivered to Mrs. K. today, or at latest tomorrow, we have now given reasons which are in short form. Because of the importance of the matter we propose to publish our reasons in fuller form at a later convenient date.

KAPI J:� I agree with the order made by my brothers. This appeal raised highly sensitive issues and because of this I feel I need to state at this point the matters that have influenced me in coming to my decision.

This is an appeal from a decision of Miles J. This was an application by the appellants to adopt a child who, at the time of the trial, was aged six months. This was an application pursuant to the provisions of the Adoption of Children Act 1968. His Honour, having heard the evidence, refused the application. The appellants appealed against this decision. The relevant facts surrounding the case appear in his Honour�s reasons for decision.

An adoption order cannot be made until the court is satisfied of the matters set out under s. 12(1) of the Act. Section 12(1) is in the following terms:

N2>�12.(1)��������� The court shall not make an order for the adoption of a child unless the Director has made a report in writing to the court concerning the proposed adoption and, after considering the report and any other evidence before the Court, the Court is satisfied that�

(a)����� the applicants are of good repute and are fit and proper persons to fulfil the responsibilities of parents of a child;

(b)����� the applicants are suitable persons to adopt the child, having regard to all relevant considerations, including the age, state of health, education (if any) and religious upbringing or convictions (if any) of the child and of the applicants, and any wishes that have been expressed by a parent or guardian of the child, in an instrument of consent to the adoption of the child, with respect to the religious upbringing of the child; and

(c)����� the welfare and interests of the child will be promoted by the adoption.�

In so far as s. 12(1)(a) and s. 12(1)(b) are concerned his Honour was satisfied of these matters. His Honour said: �There is no doubt that the applicants are fit and proper persons and otherwise suitable to adopt the child, and will give the child every material and emotional comfort.� The Director of Child Welfare, under this provision, filed a report. The report recommends against the proposed adoption. The basis of this recommendation is that the child, being a Papua New Guinean, if adopted and taken to live in Australian society, will face problems in attempting to identify himself in a white dominated society and this may affect his emotional development into adulthood. Miss Binns, a psychologist, gave evidence to support this contention.

In assessing her evidence, the trial judge said: �There may be experts in the field who have contrary views and whose evidence has not been available ... because of the incompleteness of the evidence I do not regard this as a test case.� His final assessment on this issue was: �But I recognize the hopelessness of the child�s future should the problem of crisis of identity develop to any extent.�

Recognizing this risk his Honour said: �After anxious consideration I have decided that the long term interest of the child lies in remaining in Papua New Guinea.�

On appeal fresh evidence has been presented before this Court and new circumstances have arisen and therefore this Court must now consider the case on the basis of these new facts. The question before this Court is�would the welfare and the interest of the child be promoted by the adoption in the light of the fresh evidence? The issue is restricted to the question of emotional and psychological effect on the child.

Before considering these matters, I need to set out the proper principles to be applied under our Act. I have already set out the principles under s. 12 of the Act. Our section, in substance, is the same as s. 167 of the New South Wales Child Welfare Act 1939. The Full Court of the Supreme Court of N.S.W. in interpreting the provision said in In the matter of S.D.H. and the Child Welfare Act[dlxxiii]¹:

�The Act requires that the order of adoption shall not be made unless the Court is satisfied that the welfare and interests of the child would be promoted by the adoption. In our opinion, the Act contemplates consideration by the Court of the application before it, in the light of the evidence which the law requires to be adduced, or which the parties or the Minister additionally bring forward. It is on a consideration of such evidence that the Court is required to be satisfied that the welfare and interests of the child would be promoted. All the circumstances disclosed by the evidence must be considered and if after considering those circumstances, including the situation of the child, the court is of opinion that an order of adoption would be favourable to the growth, development, progress or advancement of the infant, it should be satisfied that welfare and interests of the child will be promoted. It is, in our opinion, irrelevant that other applicants, if they applied, might promote the interests and welfare of the child to a greater degree or that there may be in existence a number of persons who, if they applied for the particular child, might make a better case than the applicants. The Court ... is not required to decide what is the best for the child in any combination of circumstances which may reasonably be seen as a possibility, but is required to make the order if it is satisfied that, in the sense already described, the welfare and interests of the child would be promoted.� (emphasis mine)

I would adopt this interpretation as the proper one for our Act.

The last sentence in the quotation above is significant because in my view this is the basic difference in approach between a custody application and an adoption. In a custody application, the court is considering the competing circumstances of the parties contesting the custody of a child. In adoption, a competing circumstance is not relevant. Having said that I should say at once that the fact that the Director may have another equally good couple who can adopt this child is not relevant. Nor is it relevant to say that if the adoption order is not made the Director has no better alternative. However, there is a peculiar circumstance that has arisen in this case which should not be confused with what I have just said, and that is that the child has been with the L family (foster parents) for the last six months and that as far as I can tell from the evidence the appellants have not had any contact with the child. I will consider this separately.

In addition to the matters I have already referred to, s. 8 of the Act dictates that the welfare and interests of the child shall be regarded as the paramount consideration.

It seems to me that two matters arise for consideration:

N2>1.������ The psychological effect on the child of moving into a white dominated society.

N2>2.������ The psychological effect on the child of being moved from the present foster parents� care.

1.��������� IDENTITY IN A WHITE DOMINATED SOCIETY IN AUSTRALIA

In this regard, Miss Binns was recalled and examined fully on her views. The appellants called two further expert witnesses, Professor McElwain and Mrs. Eddie. The very purpose of calling this expert evidence was to assist the court in deciding what effect the adoption of a Papua New Guinean child into Australian society would have on the child.

I have received great assistance from the three experts in resolving this issue. I do not intend to review the views expressed by each expert in detail and will express no preferences. I realize that there have been differences in evidence given by these experts, but I cannot allow the differences as the basis of preferring one to another. It is common knowledge that different experts differ on the same subject. It is clear from all their evidence that there is such a thing as a problem of identity in a situation such as this. It is a matter of reality that a child of a different race, adopted into another race, will face the question of why he is different from the rest of the family. This is peculiar to inter-racial adoption. For myself I am prepared to state that in every case there is this reality and the possibility that it may affect the child�s emotional growth. With this all the experts would agree. Miss Binns said so in her evidence. Professor McElwain agreed with this general theory but stated it would not happen in this case. Mrs. Eddie was unable to say so directly. However she gave evidence of the setting up of a special branch in the Department of Community Welfare in South Australia and the ASIAC which recognize this problem and have made special efforts to meet the need.

But that is not the end of the matter as far as this case is concerned. The experts differ on the success of such an adoption situation. Experts called by the appellants put the rate of success in such situations as high and good. The expert for the respondent does not put the success rate as high. For myself, I would not assess this issue on the basis of a theoretical finding from a study of such cases. In my view no such study, whatever the conclusion, can, of itself, detect the development of every child in any situation. I do not believe these difficulties can be resolved by purely theoretical considerations. Each case is different and the success or otherwise of each case depends on the individual circumstances. The court must give each case close and careful consideration.

The theoretical findings are helpful in so far as they illustrate the reality which the child will face. I am not convinced that any study on this subject has established clearly one way or the other. This is as far as the evidence of Miss Binns and Professor McElwain can go. The evidence of Mrs. Eddie goes much further than their evidence in that she comes from Adelaide, South Australia, where the applicants are presently living and where it is intended the child will grow up. She has been concerned with this case. Without her evidence I may have come to a different conclusion.

South Australia has multi-racial communities. There is no evidence of racial tension in the community. The geographical layout of the city of Adelaide does not reflect racial division. The schools (at least the primary schools) are inter-racial and the needs of foreign children are taken care of. The Department of Community Welfare in South Australia has a special branch to look to the interests of inter-country adopted children. There is also an ASIAC (Australian Society for Inter-country Aid Children Inc.) parent group of which the Ks are members. Mrs. Eddie has had extensive experience of this type of adoption in South Australia. She would recommend that the child be adopted by the Ks. Having regard to her evidence one does not find circumstances that encourage or perpetrate the racial crises that one reads about in England, South Africa or the U.S.A., the Northern Territory or Alice Springs. In the circumstances in South Australia I do not think that this child is likely to face such a crisis, however it is possible. In the event that this occurs the Department of Community Welfare in South Australia, through ASIAC, will take care of this need.

In so far as the emotional or psychological effect on the child is concerned, this would not prevent me from making the adoption order. I have come to this conclusion on the basis that this child, for the most part, will grow up in South Australia.

Apart from these emotional and psychological considerations, the Director, it seems, has taken up a policy of not encouraging or allowing Papua New Guinean children to be adopted by foreigners. This is obvious from the list of approved foster parents for this type of situation. The question is, should this Court determine the policy? As far as I can see there is no such requirement that Papua New Guinean children should not be adopted by foreigners or that foreign children should not be adopted by Papua New Guineans. In so far as the Adoption of Children Act is concerned, in such cases the question is always whether the adoption will promote the welfare and the interests of the child. That is the paramount consideration. If there is any deliberate policy of preventing expatriates from adopting Papua New Guinean children then this policy should be written into the Act.

2.�������� WHETHER THE CHILD SHOULD BE TAKEN AWAY FROM THE FOSTER PARENTS.

It is unfortunate that the events have taken place the way they have. When an appeal is lodged the status quo should be preserved until its determination. This is important from the consideration of the welfare of the child. There should be little interruption to the life of the child pending the final determination of the issues.

What is the effect of this six months away from the Ks? This relates more to the emotional and psychological effect on the child. It has nothing to do with any claim of right of the applicants. In principle a change in homes should not be made lightly. This is because such a change is likely to cause harm to the child. This child has been with the foster parents for the last six months. The child is now twelve months old. The child has settled in well with this family. It is significant that the ability of the child to identify with this family is much greater than when he was six months old. The adoption order would mean disturbing this relationship. The question is, what is the harm that may be caused? I think that there would be some harm done to the child. The child is more able to identify with the L family than with the Ks when he was six months old. In this regard I accept Miss Binns� evidence. But I also accept Mrs. Eddie�s evidence that the child will get over this difficulty in a matter of time and, being a young child will adjust back to the Ks quickly. As I understand Mrs. Eddie�s evidence, there would not be any long term effect. In principle this consideration becomes more critical as the child grows older. I am satisfied that the child will adjust satisfactorily. Other considerations of the welfare of the child which are not disputed will outweigh this consideration.

In this case the parties did not wish to argue the difficulty of the child retaining Papua New Guinea citizenship notwithstanding the adoption. Nor did they argue the difficulties he may face if he decides to come back to Papua New Guinea at a later stage. Accordingly I have not had regard to these considerations in my judgment.

AUGUST 28 1981

KIDU CJ GREVILLE SMITH J:� In this matter, because the need for a final order of the court was pressing, we delivered a short judgment, and stated that we would publish our reasons in fuller form at a later date, which we now do.

This was an appeal from a refusal of the National Court to make an order for the adoption of a male child P by the appellants jointly. The child, now one year old, was of Melanesian race of Papua New Guinea parentage, and was in the custody and care of the appellants for the first six months of its life. After that, until 30th June, 1981 it was in the foster care of a Papua New Guinean family. The appellants were Australians, of Caucasian race, and wished to take the child to live with them and their natural children in their home in Adelaide, South Australia.

The learned judge at first instance found that there could be little doubt that the child, one of twins, whose mother died at childbirth, would have itself died but for the care of the appellants, who did not act out of choice so much as in response to their perception of the necessities of the situation. Before this Court the father, who was represented by counsel, indicated that, with full understanding of the consequences of adoption, he desired the child to be adopted by the Ks.

An order for adoption was refused by the learned judge at first instance because his Honour was not satisfied that the welfare and interests of the child would be promoted by the adoption. His Honour�s doubts upon this score arose solely because of evidence given and called by the Director of Child Welfare to the effect that if he grew up in Australia, where the population is predominantly white, the child would suffer an �identity crisis�. His Honour was not wholly persuaded of this and said as follows (at p. 8):[dlxxiv]²

�I hold out more hope for children like this child in countries like Australia than does the Director. I do not think that the dire consequences are as inevitable as has been maintained. But I recognize the hopelessness of the child�s future should the problem of crisis of identity assert itself.�

However, the evidence in question was sufficient to deter his Honour from finding that the welfare and interests of the child would be promoted by the adoption.

The evidence referred to was presented at short notice, the appellants were on the verge of permanent departure from Papua New Guinea for Australia, evidence to the contrary was not readily available, and it is doubtful if at that time the respondents were aware that any such evidence would be available. In any event the strength of their case was by no means inconsiderable, and so they allowed the matter to go to determination without any application for an adjournment to call rebutting evidence. As it turned out, this was the wrong decision.

In an earlier decision of this Court, in a custody matter, namely an appeal by H and H in respect of H a female child the court said as follows (at p. 3):[dlxxv]³

�This appeal by virtue of the provisions of s. 7 of the Supreme Court Act is by way of rehearing upon the evidence given in the court the decision of which is appealed against, subject to the right of this court to allow fresh evidence to be adduced where it is satisfied that the justice of the case so warrants. Ordinarily this court will not allow fresh evidence to be adduced unless such evidence was not available or not reasonably discoverable at the time of the earlier hearing and unless it is relevant, reasonably capable of belief and of such weight that it might reasonably have an influence on the result of proceedings. (Ladd v. Marshall [1954] EWCA Civ 1; [1954] 1 W.L.R. 1489). In custody cases where not merely the individual results of the parties are involved but also, as a paramount consideration, the interests and welfare of the child a court will not apply the foregoing rule in its full strictness (Corbett v. Corbett [1953] 2 All E.R. 69). This rule applies equally to adoption cases.�

In this appeal also, upon the same principles, the court granted leave to adduce fresh evidence. It also, of course, had before it and took into account the record of the evidence which was before the National Court. In the result evidence was before this Court on the crucial issue from the following persons:

Gabriel Mount:

This was the Director of Child Welfare. The gist of his evidence was that if the child were to grow up in Australia it would not be able, as occurs during normal growth and development, to �identify� with the adoptive parents, or those parents� other children, or the community at large, and would suffer psychiatric damage. He was not aware of any occasion in which this had happened.

This witness was not a Papua New Guinean. He had been Director for about eighteen months. He was a Brother of St. John of God, a religious order. He appears to have no academic qualifications in the relevant field, nor to have had any experience of conditions in Australia. He is not an expert in the matters concerning which he gave evidence. We would say that as a non-expert witness he is considerably less qualified by experience to form views in these matters than any member of this Bench.

Barbara Binns:

Miss Binns was a �black� Jamaican, as she would choose to describe herself, the term �black� being one she freely used in reference to herself. She was born in Jamaica, West Indies, went from Jamaica to England at the age of nineteen, then went from England five years later to reside in Canada where she obtained at Canadian Universities a Bachelor of Arts Degree in Psychology, a Master�s Degree in Social Work and a Master�s Degree in Social Education. When her employment in this country comes to an end she intends to return to Canada to live.

Miss Binns worked with minority groups in Canada for sixteen years, and as a psychiatric nurse in the United Kingdom for five years. She was employed training community development officers in Papua New Guinea. She had never lived in Australia and knew little of conditions there, and little or nothing about race relations in that country.

Miss Binns� evidence was to the effect that the child in question would suffer a �crisis of identity� if the order for adoption sought was made and the child taken to live and grow up in Australia, that it will be �highly likely� to end up �hating� its adoptive parents �as part of the dominant society which rejects him� or of hating himself. Difficulties she envisaged were that in Australia, according to her, the child would read things about Papua New Guinea which would not be favourable, other children at school would be �nasty�, and parents and friends might become over-protective and over-sympathetic.

It is necessary to say that we found Miss Binns in her evidence dogmatic, doctrinaire, subjective in her approach, selective in her examples, and generally unimpressive. That having been said, it is desirable to enter upon some brief amplification, with examples.

The human race is commonly said by scholars and others to be divided into three broad racial classifications, Negroid, Mongoloid and Caucasian. A writer upon whom she relied, one Fanon, himself an African, repeatedly used the term �Negro�, for instance, when he says (Black Skin, White Masks, Grove Press, p. 60):

�We shall see ... that the Negro, having been made inferior, proceeds from humiliating insecurity through strongly voiced self-accusation to despair.�

We refer to this matter because when a member of this Court used the word �negro� not, as it happened, in reference to Miss Binns, the court was promptly informed with undisguised asperity that �black� people found the word �negro� offensive and preferred to be referred to as �blacks�. This was one example of what we regard as Miss Binns� subjective, dogmatic and generalized approach to the subject matter with which her evidence was concerned. We note, incidentally, that Fanon was what is known as a political activist, and was speaking of negroes in Europe over thirty years ago.

Taking this matter a little further, when it was put to Miss Binns that there may be predominantly white communities in which coloured persons would be treated reasonably well, she responded that because she was a different colour she wanted to be treated well, not reasonably well. Now whilst there may be much in the point Miss Binns was aiming to make, her answer again illustrated the way in which she was apt, throughout her evidence, to personalize the issues.

Further, when asked if she could give any examples of difficulties arising in inter-racial adoptions Miss Binns chose to refer (and to refer only) to an episode within her own experience which, she said, brought tears to her eyes, a case in which a white adoptive mother of a coloured child appealed to her for help concerning a problem of combing the child�s hair. Miss Binns said as follows:

�Why it brought tears to my eyes was that here is a mother with a child and a basic thing, she was in a state, she was really in a state and it was a basic thing. My initial reaction was�I think I said something like� what have you done, and she started to tell me how the child would cry and cry everytime she tried to comb the hair. And the reason why I felt so terrible was that it was a simple thing like a mother combing a child�s hair can turn into a traumatic experience ...

You see because the mother had the assumption that one just washed the hair and used the comb right through it ... the hair got dry, and the water dried into it and she just couldn�t realize that she should comb it when it was wet. But she just thought, wash the child�s hair and do the same thing as she did with her own hair.�

Now it is well known that motherhood can at times be a very stressful occupation, that there are experienced mothers, inexperienced mothers, inept mothers and able mothers, intelligent mothers, and unintelligent, mothers who occasionally under stress tend to become distraught, and mothers who do not, that a child�s knotted hair can pose as much of a problem to some as a child�s curly hair, and that children with tightly curly hair are not confined to the darker races. We think that the choice of this episode to illustrate the general undesirability of adoptions by white parents of black children, and the emotional terms of Miss Binns� evidence evinces, in a person put forward as an expert witness, a disturbing degree of emotional involvement, lack of objectivity and, indeed, unbalanced judgment.

Miss Binns, in our opinion, has been selective in her reference to authorities, so far as she has seen fit to refer to authorities. For instance she made reference to and read excerpts from Adoption and Foster Placement of Children, a report published by the United Nations, made in December 1978. This Report, inter alia, made reference (p. 29) to a study of American Indian children adopted by white families in Canada. The following is an excerpt from that reference:

�The study began in 1958 and annual interviews were arranged over the first period of five years with the families. The situation was still at an early stage, since the children had not yet reached school age, but the over-all conclusions were encouraging. More than 50 per cent of the children were performing extremely well in all phases of life and another 25 per cent were performing in a way that made the outlook for their future adjustment very hopeful. Only 10 per cent were showing problems that made their outlook questionable, and only one child was seen as performing at such a low level that the future looked �very dim�.�

This study, which on the face of it was unhelpful to the thesis being pursued by Miss Binns was not referred to by her. Upon being asked about it by the court Miss Binns stated that it was irrelevant to the current case, because the child in question here was not an Indian child. When it was put to her that neither was it a negro child or a Jamaican child she replied:

�There is no such word�there is no such thing as being negroid. There is no such a word as negro, you see that is a derogatory word�there is no such a thing as being�that word is rather a derogatory word and black people do not like to be called negroes.�

Having been brought back from this further illuminating digression Miss Binns conceded that she had not read much about the Indian test, that she was not familiar with that study, but said that it would be irrelevant because there were so many people in Canada classified as Indian who were white and that therefore the Indian children concerned in the study would be �not that visible�, that there would be other Indians in the community with whom they could identify, that Canada was their country of racial origin so that they would feel more at home there than a Papuan child would in Australia, that the child would have citizenship in Canada, and that there were powerful �support� groups in that country for Indian children.

Much of this obviously amounted to mere surmise and conjecture and whilst Miss Binns claimed to be sufficiently informed upon the relevant situation in Australia based upon the reading of books, newspapers etc. she was unable to name even one of those books. She was evidently not aware of, or was prepared to ignore the extent, which will be referred to later, to which Australia is progressing towards a multi-racial society, that the child in this case would certainly have available to him Australian citizenship, that up to the age of nineteen he would, under the Constitution, have an election to maintain Papua New Guinean citizenship, and that an extensive and active �support� system for inter-racial adoptions is in operation both in the schools and elsewhere, in that part of Australia to which the child in this case would be taken to live and grow up.

Donald William McElwain:

The appellants in this case called two expert witnesses before this Court. The first was Donald William McElwain. Dr. McElwain was the holder of the qualification of Doctor of Philosophy in Psychology from the University of London, was a registered psychologist in the State of Queensland, and was Professor of Psychology at the University of Queensland which appointment he has held since 1955. As part of his general background, he had had experience in Papua New Guinea in that he had conducted feasibility studies as to whether psychological assessment could be used for selection purposes in the Pacific Islands Regiment, and later was a member of the Sinclair team set up to advise the Commonwealth Department of Health on the likely needs in the region for psychiatric services. In the main the team were assessing whole populations. They were interested, among other things, in the incidence of mental deficiencies for instance with children and with adults, and gross behavioural disorders. They travelled a good deal in the remoter parts of Papua New Guinea. One population of some size which they went through systematically was the Mekeo.

Dr. McElwain had had two other extended experiences in the problems of developing countries, in 1963, a year as a United Nations expert attached to the Ministry of Labour of the Government of India to advise on selection procedures for technical education institutes and in 1971 as a visiting professor of psychology at the University of South Pacific in Fiji where among other things he lectured in a medical school. In 1977 he was a visiting professor at the University of Bristol in England attached to the ethnic relations research unit where most of his colleagues were black psychologists, as they were in India and Fiji. In India Dr. McElwain was concerned in the main with adolescents�late adolescents entering technical training. In Fiji he was in the main associated with what was called the assessment unit which was set up as part of the Faculty of Education in the University and which was concerned basically with the problem of children in primary school, and trying to assess their language and intellectual development and the like but was also concerned with entry qualifications to the University and to the Civil Service and a number of other specialized areas such as radar operations.

In Dr. McElwain�s opinion the evidence of Miss Binns, which was put to him, was too general. He said that the success or otherwise in an adoption depends on many factors. Many�perhaps most children�even those living with their natural parents experience at some time or other, usually in early adolescence, the crisis of identity. �Who am I?� �Are these my real parents?� and so on. Crisis of identity is not peculiar to a black child being brought up in a white community. An adopted child, white or black, usually experiences the same crisis and it is of course harder to resolve. This may be the general reason for adopted children, as studies show, having a rather higher incidence of adjustment problems than do other children, but the incidence is only marginally greater. Dr. McElwain knew of no evidence that black children adopted by white families experienced difficulties that were more numerous or more severe than those of white similarly adopted children. He had direct knowledge of cases of the adoption of black children by white families which had been successful in every respect. He did not know of any statistical studies made on the successes or otherwise of such adoptions in Australia, but said that given that the relation between the parents is good and that the adoption is not being sought to repair an unhappy marriage, and that the relationship of the parents to their other children is satisfactory, indicating parenting skills and experience, then the adoption of a child white or black by a white family in the adopting parents� society would in his opinion have a good or high probability of success.

Dr. McElwain said further that in order to get adequate evidence on the topic concerned with the adoption of persons in an inter-racial adoption where the skin colour of the person is different from the adopting parents one needed to get a study which is based on a large number of cases�several hundred, a careful evaluation of the conditions under which the adoptions were made, and adequate and proper follow-up to see, over a sufficient period of time, say five years, longer preferably, the effects. If one could get such a study, one could see the effects. Dr. McElwain knew of only one such study on a sufficient scale�and done sufficiently carefully, a study conducted in Canada by the Bureau of Indian Affairs where there were a series of adoptions, 395 in fact, which were made between the periods of 1958 and 1968. They were followed up at least five years later, in some cases obviously more, and the results published in a book by one Fanshel, the title of which was �Far from the Reservation�. The study was cited by Mary Kathleen Benet in a book called �The Character of Adoption� in which there is a chapter concerned with problems of inter-racial adoption. The result of the study was that there was 1 per cent of cases where the overall picture was said to be dim, but in the great majority of cases the adoptions were successful over a five to fifteen year period. Dr. McElwain said that that was the only major study of a sufficient number of cases and with sufficient care taken in the evaluation. This was the study mentioned earlier, to which Miss Binns was referred.

Dr. McElwain said that the general picture which emerged from the Canadian study was as follows. Adopted children in general, that is white children adopted into white families tend to have a rate of behaviour disorder rather above that�or slightly above that�of children brought up in their normal families. The suggestion in the study was that these children who were adopted cross racially were much the same as other adopted children. And the general view was taken, wit which Dr. McElwain agreed, that when there does occur a high rate of behaviour disorders with adopted children such is almost certainly not due to the adoption itself, but probably, in all or nearly all cases, due to pre-adoption conditions. In other words, the very conditions that led to the necessity for adoption were the factors which lead to the behaviour disorders in the adopted children. These were not of severe rate, but were at a higher rate than ordinary (non-adopted) children. The behaviour disorder might be of minor things like bed-wetting or perhaps more serious things like truanting or running away from home or stealing. And usually the pre-adoption conditions have been the death of a parent, or the gaoling of a parent, or the child being abused or the like.

Professor McElwain summarized the position as follows, namely that the situation seems to be that whether it�s a white child or black child being adopted into a white family there are difficulties and the difficulties in the main seem to stem from the pre-adoption period. The evidence about the studies of the American Indians suggests that on the whole cross-racial adoption involving different skin colour is very little different from the adoption for white children into white families as to the success rate or failure rate. He further said that whether in an inter-racial adoption the adopted child will be able to live successfully in a community other than his own original community would be dependent on the race relations in the particular community into which he was adopted. He agreed that there was some prejudice and discrimination against black skinned persons in Australia, particularly with Aboriginal children, that this varies from place to place, dependent on local circumstances and background. He said that some groups of coloured children, such as the Vietnamese, do not seem to have any difficulties at all, and expressed the view that the determining factor in the emergence of such problems was not one of skin colour, but of differences of economic status, economic competition and conflict between social groups. Also that education and religion can be relevant or determining factors. He mentioned that, for instance, in certain parts of New Zealand racial problems between Maori and persons of European descent were compounded as the Maoris, an essentially rural people, drifted into the cities and caused housing problems. This of course is reminiscent of the urban drift in certain centres in Papua New Guinea where friction arises between groups without any question of race or colour being involved.

In answer to a question by counsel for the respondent Dr. McElwain stated the opinion that an Aboriginal child in Australia adopted by a white Australian couple would have no advantage, by virtue of Australia being his place of racial origin, over a Papua New Guinean child adopted by a white Australian couple and taken to live in Australia. This of course touched on and was contrary to one possible explanation proffered by Miss Binns to explain the success of the American Indian adoptions already referred to.

Dr. McElwain also referred to two studies mentioned in the United Nations Publication �Adoption and Foster Placement of Children� at pp. 30, 31. The first concerned adoptive children from the Republic of Korea placed in homes in the United States, and the second concerned trans-racial adoptions of children by Danes in Denmark. In the first study the conclusion was that when the adoptive homes have a supportive atmosphere characterized by open, healthy and concerned relationships, the Korean adopted children tended to develop a healthy positive self-concept. In the second study two major findings were, first, that trans-racial adopted children in foreign countries, in the age range eight to twelve, do not experience serious disturbances in personality development or adjustment problems in school more frequently than any other children in the same age group, and secondly, that such children are not referred to authorities or clinics for counselling or treatment to a greater extent than might be expected for a corresponding group of Danish-born children.

It was Professor McElwain�s view, in short, that fears about a child who is taken away from his own country and adopted in another country have been generally exaggerated by some, and that the overruling, and in his opinion correct, views to be derived from such studies as have been made is that such children are not more psychiatrically disturbed, nor do they have a lesser success rate than other children in the same community.

In the case of the child here in question, Dr. McElwain envisaged no difficulties and no problems of personality or adjustment should he, when mature, return to live in urban society in Papua New Guinea, as he considered he might choose to do.

We accepted Dr. McElwain as a highly qualified, objective and reliable expert witness. Upon his evidence, and notwithstanding the evidence of Miss Binns, we would have been content to come to the conclusion stated in our short judgment delivered on 30th June, 1981, namely that there is no greater danger of an �identity crisis� in this case than in the case of any other adoption, including an adoption of this child by a Papua New Guinean family, or any disadvantage in the child growing up in Australia, and that, overall, the welfare and interests of the child would be promoted by the adoption. These conclusions moreover are in entire harmony with the not unsubstantial experience of each of us, both of the people and conditions in Australia and the people and conditions in Papua New Guinea. However, such conclusions were further fortified by the evidence of Mrs. Colleen Eddie, the second expert witness called by the appellant.

Mrs. Colleen Eddie:

Mrs. Eddie was a resident of North Unley, South Australia, the district in which the appellants had made their home and where the child P, the subject matter of their application for an adoption order, will grow up.

It is convenient to quote from Mrs. Eddie�s affidavit in this matter, as follows:

N2>�1.����� I am a registered psychologist in the State of South Australia and hold the following qualifications:

Bachelor of Arts with Honours Major in Psychology;

Diploma of Nursing Education;

Triple Certificate Registered Nurse; Diploma of Applied Psychology.

I have been in private practice as Clinical Psychologist since 1974.

I have myself adopted an Intercountry child from Indonesia and I have worked voluntarily for three years as Consultant Psychologist with the Australian Society for Intercountry Aid to children counselling and advising pre-adoption parents.

N2>2.������ I am personally aware that over 400 Intercountry children have been adopted in the Adelaide area from countries such as Vietnam, Sri Lanka, Thailand, Indonesia, Korea, India, the Philippines and Papua New Guinea. It has been my experience that the placing of children in adoptive homes, when under three years of age, has resulted in successful adoptions. The Department of Community Welfare in South Australia has a special branch to look to the interest of Intercountry adopted children. In addition, the ASIAC Parent Group of which Mr. and Mrs. K. are members, has a support system of social workers, doctors, psychologists, psychiatrists, teachers, etc. who assist adoptive parents and adopted children as and when needed.

N2>3.������ I have met Mr. and Mrs. K. and discussed their proposed adoption with them at length. I have assessed their suitability as adoptive parents and verily believe, having compared them with other prospective and adoptive parents that they are a suitable couple to adopt a child. I believe that they will be able to give an adopted child the love and security all children need.

N2>4.������ I have read the evidence of Ms. Binns given at the trial of this action and disagree with what I regard to be sweeping and general statements made by her. In particular, it is wrong to say that an inter-country adopted child in Australia would adversely experience a crisis of identity. Australia is a multi-cultural society. Now produced and shown to me and annexed hereto and marked with the letter �A� is a letter from the Commissioner for Community Relations dated the 2nd day of April, 1981, and a document from his office entitled �Australian Ethnic Backgrounds�. In any event, the child in question is a baby, and if adopted by the Ks will grow up in Australian society as a member of that society and not be foreign thereto and will not therefore be thrust into the society as a developed person.

N2>5.������ The reference by Ms. Binns to the risk of hating parents as part of a dominant society is not substantiated by Australian and United States of America studies. Additionally, Australian society seems to accept rather than reject intercountry children and adults and the experience in other countries such as England is not valid in Australia. The reference in Miss Binns� evidence to kids being nasty overlooks the fact that this does not depend on ethnic origin and intercountry adopted children have the same probability of being well adjusted as do their peers. In South Australia inter-country adopted children achieve well at school being accepted by teachers, parents and other school children. Further, because of South Australia�s growing multi-racial populations, special education services ensure their ethnic origin is valued.�

As was Dr. McElwain�s, Mrs. Eddie�s evidence was subjected to extensive testing by cross-examination. As in the case of Dr. McElwain we accept Mrs. Eddie�s evidence. One point of particular note upon which we would comment is that it establishes the existence, in the particular segment of the Australian community in which this child will grow up, of a lively community interest in and community �support� activity in relation to, inter-racial adoption.

Appeal allowed.

Order of National Court set aside.

Appellants authorized to adopt P.

Solicitor for the appellants: Craig Kirke & Wright.

Solicitor for the respondents: B. O. Emos, State Solicitor.