Maternal rights must be recognised for the sake of children

5th Jul 2018

Distressing news of the nearly 2,000 children separated from their mothers at the Mexican border as a result of President Trump’s inhumane immigration policies[1] highlights the failure of governments to recognise the critical bond between a mother and child and the lifelong trauma inflicted by separation.[2] Operation of Australian immigration law also results in the cruel separation of children from their mothers,[3] and a callous disregard for the maternal bond is also evident in many other areas of government policy.

The NSW government has recently announced a target to double the rate of adoption within four years.[4] People who adopt are also to be eligible for payment in future.[5]  NSW already boasts that it leads Australia in out-of-home care adoptions. Furthermore, the federal government is currently conducting an inquiry into local adoption ‘as a viable option’ for children in out-of-home care with a view to establishing a national framework for this purpose.[6] Combined, these measures would seem to herald a return to the cruel and profoundly damaging child removalist policies of Australia’s past.

The devastating impact of permanent removals on both mothers and children has been extensively documented[7] in Australian government reports in relation to the Stolen Generation in 1997,[8] child migrants in 2004[9] and forced adoptions in 2012.[10] It is quite clear from the human suffering documented in these reports, each of them prompting a government apology, that permanently removing children is not an appropriate solution to disadvantage. 

Sadly, research by the Australian Bureau of Statistics (ABS) indicates that despite the apologies, Aboriginal women in particular continue to have their children removed at a rate that now exceeds even that of the notorious Stolen Generation period.[11] Although comprising only an estimated 5.5% of the Australian child population, in 2015-16 36.2% of all children placed in out-of-home care were Indigenous.[12] It is little wonder that many in the Aboriginal community in NSW regard Family and Community Services (FACS) as just the latest manifestation of the Aboriginal Protection Board. No amount of rebranding will hide the fact that ‘care and protection’ is often an excuse for social engineering.

This move in NSW towards permanent adoption from foster care placement will mean that there will be increased pressure to permanently remove children earlier from their mothers, thereby reducing the opportunity for women to retain or regain care of their child or maintain some level of ongoing relationship. This policy ignores the intense psychological bond arising from childbearing and demonstrates a lack of commitment to providing these mothers with the financial, legal and emotional support required to retain care of their own children.
Adoption removes the obligation on government to conduct regular welfare checks and reduces the government’s potential liability in respect to children who may otherwise be classed as wards of the state. The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse
[13] and other shocking reports[14] have drawn public attention to the epidemic of child abuse taking place in out-of-home care. However, adoption cannot guarantee the safety of children in their new homes. No Australian longitudinal research has been conducted into outcomes of adoption. There is therefore no data to suggest that this policy will cure the scourge of child abuse in out-of-home care, although it may hide it more effectively.

Until the introduction of a reasonable Supporting Mother’s Benefit by the Whitlam government in 1973, it was common for the babies of unwed mothers in Australia to be routinely removed from delivery tables, against the wishes of the mother, and placed with total strangers.[15] Since then, the number of babies available for adoption in Australia has dropped dramatically. However, too often children are still removed from vulnerable and disadvantaged mothers in circumstances where they could be given more assistance to retain care of their child, including greater support in escaping violent and abusive relationships. 

Another context in which Australian children are regularly removed from their mother’s care is through the operation of family law. The presumption of shared parental responsibility introduced by amendments to the Family Law Act in 2006[16] has resulted in mothers increasingly being separated from babies and young children, including in circumstances where they have expressed fears for the child’s safety. This presumption of ‘shared parental responsibility’ disregards the critical emotional and physical bond that characterises the relationship between a mother and baby. Furthermore, the failure to adequately take into account the extent to which domestic violence and child sexual abuse are gendered crimes, in which the perpetrators are overwhelmingly male, has resulted in women and children in these circumstances being exposed to significant harm because of these provisions.

While the work of mothering continues to be an unrecognised form of unpaid labour, systemic economic and social discrimination will continue, leaving women vulnerable to violence, exploitation and having their children removed and put at risk.[17] To end the epidemic in child abuse, more must be done to recognise maternal rights, both in domestic legislation and in international human rights law. Strong mothers are needed to raise safe and happy children and we must provide them with the financial, legal and moral support they need. 

Anna Kerr is the Founder and Principal of the Feminist Legal Clinic, Sydney, which works to advance the cause of feminism and champion the human rights of women and girls by providing legal support to feminist organisations, groups and services and the women who access them. 


Darelle Duncan MEd FACEL is a Co-convenor of the Feminist Legal Clinic, member of Origins and long-term adoption law reform campaigner. See http://www.originsnsw.com/.


The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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[1] ‘Mami, Papa’: Distressing audio released of children separated at Mexico border’, The New Daily, 19 June 2018, <https://thenewdaily.com.au/news/world/2018/06/19/donald-trump-separated-children-mexico-border/>.

[2] For a discussion of the life-long impact on adoptees, see N Verrier, The Primal Wound: Understanding the Adopted Child, Gateway Press, 1993.

[3] D Hansen and M Le Sueur, ‘Separating mothers and children’, Alternative Law Journal, Vol. 21, October 1996, 203–206, <http://www.austlii.edu.au/au/journals/AltLawJl/1996/82.pdf>.

[4] A Smith, ‘Funding boost for out of home care adoption in NSW’, The Sydney Morning Herald (online), 5 June 2018, <https://www.smh.com.au/politics/nsw/funding-boost-for-out-of-home-care-adoption-in-nsw-20180604-p4zjf3.html>.

[5] K Munro, ‘Adoptive Parents to be Paid Like Foster Carers in NSW’, The Sydney Morning Herald (online), 29 March 2017, <https://www.smh.com.au/national/nsw/adoptive-parents-to-be-paid-like-foster-carers-in-nsw-20170329-gv90mt.html>.

[6] Parliament of Australia, ‘Inquiry into local adoption’ (27 March 2018) <https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Localadoption>.

[7] D Higgins, 'Impact of past adoption practices', Australian Institute of Family Studies (2010) <https://www.dss.gov.au/sites/default/files/documents/pastadoptionreport.pdf>.

[8] Australian Human Rights Commission, Bringing Them Home (27 May 1997) <https://www.humanrights.gov.au/sites/default/files/content/pdf/social_justice/bringing_them_home_report.pdf>.

[9] Senate Community Affairs References Committee, Parliament of Australia, Forgotten Australians (2004).

[10] Senate Community Affairs Reference Committee Report, Parliament of Australia, Commonwealth Contribution to Former Forced Adoption Policies and Practices (2012).

[11] K Murphy, ‘Indigenous child removal rate risks “second stolen generation”, Kevin Rudd warns’, The Guardian (online), 13 February 2017, <https://www.theguardian.com/australia- news/2017/feb/13/indigenous-child-removal-rate-risks-second-stolen-generation-kevin-rudd-warns>.

[12] Australian Institute of Family Studies, Children in Care, CFCA Resource Sheet – Oct 2017, <https://aifs.gov.au/cfca/publications/children-care>.

[13] Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Case Study 24: Out-of-home care (2015) <https://www.childabuseroyalcommission.gov.au/case-studies/case-study-24-out-home-care>.

[14] Office of the Children’s Commissioner, Northern Territory Government, Annual Report 2016-2017 (2017) <https://occ.nt.gov.au/__data/assets/pdf_file/0003/459921/OCC-Annual-Report-2016-17-WEB.pdf>; A Horn, ‘Tiahleigh Palmer's foster father Rick Thorburn gets life sentence for “callous” murder’, ABC News (online), 25 May 2018, <http://www.abc.net.au/news/2018-05-25/court-tiahleigh-palmer-murder-rick-thorburn-life-sentence-jail/9791556>.

[15] D Higgins, ‘Unfit Mothers... Unjust Practices?’, Family Matters, No. 87, 2011, 56.

[16] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), see <https://www.legislation.gov.au/Details/C2008C00441>.

[17] A Manne, ‘Making Women’s Unpaid Work Count - Feminist economics pioneer Marilyn Waring on care and the unfinished feminist revolution’, The Monthly, May 2018, <https://www.themonthly.com.au/issue/2018/may/1525096800/anne-manne/making-women-s-unpaid-work-count>. 

Tags: Human rights NSW Royal Commission into Institutional Responses to Child Sexual Abuse Family Law Anna Kerr children maternal rights Stolen generation Darelle Duncan Indigenous justice