RICHARD COLIN CHISHOLM, Judge of the Family Court, Family Court, affirmed and examined:

CHAIR: You have received a summons?

Justice CHISHOLM: Yes.

CHAIR: And you are conversant with the terms of reference?

Justice CHISHOLM: Yes.

CHAIR: Do you wish your submission to be included as part of your sworn evidence?

Justice CHISHOLM: Yes.

CHAIR: Do you want to briefly elaborate on your submission or make a short statement?

Justice CHISHOLM: Well, the situation is this: I handed in a submission some time ago and I have the questions. I have given some thought to the questions and I would be quite happy just to respond to the questions, if you would like to proceed in that way.

CHAIR: Yes, and you can then elaborate on anything that comes out of those.

Justice CHISHOLM: Yes. Could I just say by way of general introduction that I did some work on this subject most recently in connection with the Law Reform Commission's inquiry into the Adoption Act and we have published a big fat report about that and basically everything I know is in that report and I have not done any research since then, so it is not a continuing activity for me. It is a continuing interest, but not research activity.

It seems to me, when looking at the questions, that they fall into a number of categories. Some of them are fairly straight-forward legal questions which I think can be answered reasonably simply; some of them are deep philosophical questions which we could discuss for months. If you are happy, I might start with the easy ones, the technical legal questions, and then we can move on to the more challenging ones.

CHAIR: Yes.

Justice CHISHOLM: Could I start with question 12?

CHAIR: Yes, this is where we asked you to explain the requirements for the signing of consent as determined by the Adoption of Children Act? In particular, could a mother sign a consent while still a minor and, if not, could anyone else sign a consent on her behalf?

Justice CHISHOLM: Yes.

CHAIR: And you would realise that, in many cases, these questions have arisen out of evidence given to the Committee where people have argued one way or another or talked of their experience.

Justice CHISHOLM: Yes.

CHAIR: So there is usually a history behind some of these questions.

Justice CHISHOLM: Yes. I do not know the details. Some of the details about what is required are contained in regulations and forms and I do not have a detailed knowledge of that. In terms of the actual forms, all I can say is that consent was a formal thing. There was a form to be signed and there was a requirement, the details of which I do not know, for a person, usually I think a DOCS officer, to explain things to the person giving consent or perhaps someone from a private adoption agency. I do not know those details and I suspect that those details would have changed over the period of time.

However, I can answer I think what might be the heart of the question, which is: In particular, could a mother sign a consent to adoption whilst still a minor? I am very confident that the answer to that is Yes. That is, the Adoption Act requires the consent

of people who are parents and it does not say anything about age and I think, on an ordinary statutory interpretation, that means that the mother of the child, whatever age she is, is required to give consent. There are various bases on which consent can be dispensed with, but they do not include anything about the age of the mother. I do not know of any case that has actually decided that point, but my reading of the legislation is that the mother's consent was required no matter how young she was.

Question 10 is: The Committee has heard evidence that in the 1950s, 1960s and 1970s a mother giving up a child for adoption was not permitted to have contact with the child in the days after birth to prevent bonding and to enable the mother to "get on with her life". Could you comment on whether or not the mother was still the legal guardian of the child prior to giving the consent?

Could the refusal to allow access, despite possible good intentions at the time, be considered illegal or unethical or both?

My view is that the mother remained guardian of the child until she gave consent. That is, till then she had all the rights of a parent over the child. I think that means that, in theory, any actions in relation to the child by somebody else would have had to be with her consent. So my answer to the question would be that if somebody, a social worker or someone at a hospital or somebody else, prevented the mother from having contact with or access to the child prior to her giving consent, that would not be authorised. That would be as unauthorised as if any other person stopped a parent having contact with their child. The only exception I can think of would be where there was some medical emergency which required urgent intervention, but the situation, I think, is exactly the same as it would have been with any other parent and a child.

In terms of specifics, if you said, well, was a wrong done and, if so, how could it be remedied, that is a rather tricky question I think. But can I give an example: If a stranger takes a child and puts the child in a room without authorisation, that is the tort, the legal wrong, of false imprisonment. I would think that if an unauthorised person, which could include a social worker or someone working in hospitals, took the child into a room and refused to let the mother see the child, that might well be technically false imprisonment of the child, or some other civil wrong. Whether it would be a criminal wrong I am not sure. I do not think it would. I cannot think of any crime that it would be But there is no doubt, in my mind anyway, that the mother had exactly the same rights to the child as any other parent, and anything done to the child without her consent would have been just as wrong as if it was done to any other parent. So the fact that adoption was looming and that inquiries had been made and that the mother was, let us assume, unmarried, young, all that stuff, makes no difference. I do not think there is any doubt about that.

The Hon. Dr A. CHESTERFIELD-EVANS: Can I ask why is it not kidnapping? I mean you would say it was kidnapping with mitigating circumstances if it was indicated that adoption was coming but the forms had not yet been signed and it was preparation for an inevitability. That would be a mitigating circumstance rather than changing the nature of the situation, would it not?

Justice CHISHOLM: I cannot remember whether there is a separate crime called "kidnapping" and, if there is, whether it contains something like "for gain" or something like that, but, subject to that qualification, if one wanted to describe it as kidnapping in a non-technical sense, that seems to me to be pretty right. It was certainly an unauthorised taking of the child.

CHAIR: Is not being permitted to have contact the same as unauthorised taking? There is a range of events and actions here.

Justice CHISHOLM: Yes. I suppose the precise legal analysis might depend on the actual situation. For example, if the hospital authorities stopped the mother going into a room, you might say, well, it is not the mother's property, the hospital belongs to someone else and the nursing staff are not committing any offence or civil wrong by stopping the mother from going into a particular room. That is a very artificial sort of technical analysis. On the other hand, if the mother said, "Give me my child", and was told, "No, you can't have the child", that is clearly a violation of the mother's parental rights.

The Hon. Dr A. CHESTERFIELD-EVANS: When you say that kidnapping is not a crime on the books, it is called something else, is it not, like rape is called something else?

CHAIR: I think I will have to ask those in the gallery not to interject. We have had this experience before and sometimes this can be a very emotional inquiry. This is a formal hearing and we are taking formal evidence.

The Hon. Dr A. CHESTERFIELD-EVANS: Is it an item under the Crimes Act, for example?

Justice CHISHOLM: I did not come along prepared for that question and I am not really an expert in criminal law. I just cannot answer that without notice. The only point that I would make is that, as far as I can see, it is no different to the situation with any other parent. I suppose that is the point that I would make. Whatever the law is about somebody coming along and taking someone's child without authority, that is the law that would apply in this situation. I have not checked the law to see whether that would constitute kidnapping or some other specific criminal offence.

The Hon. Dr A. CHESTERFIELD-EVANS: That is up to?

Justice CHISHOLM: Up to the giving of consent.

The Hon. Dr A. CHESTERFIELD-EVANS: After consent, assuming it was given freely and without duress, which might be thought to invalidate it, it is like you have handed over the situation?

Justice CHISHOLM: Yes, legally, once consent is given, the whole picture changes and the key legal thing is that guardianship of the child, which previously resided with the mother, is transferred to either the Minister or the Director General (I forget which). Basically legal guardianship is transferred to DOCS, and from then on the legal authority to determine where the child should be, what the child should wear, who the child should have contact with, everything, is, from that point on, in the hands of DOCS. But my view is before that, the mother's rights are not in any way less than anybody else's rights.

Given that the Committee is going to do a report, I have to be sure in my own mind. Today that practice is completely illegal but in those days it was the norm and the way of life.

In terms of law, would that seem to be a consent, a verbal consent, when you go to stay in the in the home and the priest says, "You can't keep the child now. You stay here. It is good for you not to see the child when it is born; it is good for you", and you never raise a protest and you accept that this is the norm? Does that mean that it is not all right but all right?

Justice CHISHOLM: It may well be. That would depend on a careful, factual analysis of each case, but if it were the case that, say, a mother came into a hospital or a nursing home or whatever and appeared to consent to everything and did not protestand these things just happened and when the nursing staff said - let us assume a situation which may or may not have ever existed, where the relevant people, the nursing staff and the social workers all said to the mother in advance, "This is what is going to happen. You are going to come in when the child is born. For your benefit and for the child's benefit we are going to take the child

away. You won't see the child. Do you understand that?". Supposing everything worked as well as you could imagine, and assuming, then, that in this particular case the mother did not protest or argue or indicate anything other than consent and stayed there, it may well be that the correct analysis would be that she consented to everything.

However, that factual analysis, I think, is an extremely sensitive and tricky one, because whether the mother really consented to all that would depend on what she thought about all sorts of very difficult questions, like how much pressure she was under, what she understood about the situation, what alternatives she felt she had, and whether she was misled. So that factual analysis, which I am sure is very familiar to you people, would be required to reach that sort of conclusion.

But if all the facts went the right way, so to speak, then the correct analysis might be that all those people, although they had no independent authority, would be acting lawfully in the same way as a babysitter would be acting lawfully by looking after the child when you leave the child with the babysitter. These easy little questions turn out not to be so easy. Now that was No. 10. Can we go now to question No. 15 which is

CHAIR: Do you have any comments on the rights of a mother to have custody of the child and make decisions in relation to the child's medical treatment prior to signing the consent?

Justice CHISHOLM: That is really consistent with what I have said so far. I think the mother has the same rights in relation to medical treatment and everything else as any other parent prior to giving the consent. I think that falls within that general principle.

I might just add that there were some cases in which two separate legal things happened in relation to these babies. One was the adoption process and the other was the ward of State process. I do not know about the numbers or the quantities, but there were some cases in which the child was made a ward of State very soon after birth and, also, procedures were put in train for adoption.

I have no idea how common that was, but I know it happened in one reported case. In that situation, of course, the parental rights would be transferred to the department because the child had become a ward of State if that happened under the child welfare laws, but subject to that, the mother has all the rights of a parent until she gives consent.

CHAIR: The Committee would be grateful if perhaps later you could provide us with a reference to the case you are referring to.

Justice CHISHOLM: Yes, I can certainly do that. So that is question 15. Now questions 7 and 8.

Question 7 says, "Section 31 of the Adoption of Children Act gives the court discretion to refuse to make an order if a consent was not properly given, for example, given under duress, yet the court was unaware of this fact and subsequently made an order for adoption, would that order be valid? If not, what would be the status of the adoptive parents" and so on.

I think the answer to that is very, very clear, and that is that the orders we are talking about are orders of the Supreme Court. That is a superior court and the rule is that orders of a superior court, even if they are made without jurisdiction or if there is something wrong with them, remain in force until they are set aside. So even if the court should not have made that order because the consent was no good, the adoption would still be valid. It would not be a nullity.

Now, it would have been vulnerable to appeal at the time, but let us assume there never was an appeal and now the time for appeal, let us assume, has gone by, so all these adoptions would be legally valid in my view even if the consent was wrongly given because orders of a superior court remain in force until they are set aside.

CHAIR: Question 8 is related.

Justice CHISHOLM: Yes, "Was it possible under the Act for a valid adoption to occur without consent, or against the wishes of the mother." Technically, for the same reason, the order would be valid until set aside. "If so, are you aware of whether or not this took place?" I wonder if we could leave that question because I think that issue is really better dealt with in some of the other questions.

CHAIR: Yes.

Justice CHISHOLM: All right, that is questions 7 and 8. Now there is only one more easy one, which is question 14, which is, "Could you briefly explain to the Committee about the processing of the adoption in the Supreme Court? How was this undertaken? Who was present?" I did not have any practice experience in adoption. I was only an academic so I never saw it happening, but my understanding is that you really have to distinguish between cases that were uncontested, which were a tiny minority.

Not many cases of adoption were legally contested in terms of a battle in court. The vast majority were uncontested. I am not thinking at the moment of step-parent adoptions or ones like that, I am thinking about adoptions run either through a private agency or the department. I think the process was that the department and/or the private agency would prepare all the papers, and those papers would go in a bundle to a judge every second Friday or something like that. The judge would deal with them inchambers, that is in his private room, going through the documents and making the orders without any formal court appearance in the majority of cases. It is just possible I am wrong about that, but I have always understood that to be the situation.

Now, the case might get into court in either of two situations: One is if the case is contested, if somebody says, "Do not make the adoption, consent is invalid" or something like that or if the department wants to dispense with consent where a mother, say, is refusing consent and the department says to the court, "Dispense with the consent" for whatever reason. That is a contested adoption and that would be in open court.

Secondly, sometimes the judge when he looks through the papers comes across some problem or perceives the case as raising an issue and then the judge might take it into court and deal with that issue in open court, perhaps calling on people for submissions.

But broadly speaking, in the vast majority of cases, as I understand it, it all happens - it is very difficult to avoid using the phrase "rubber stamp" but if rubber stamp means the judge is doing it in chambers, privately looking at the papers and signing it, that is what happens and neither the natural parents or the adopters went into court for anything. There was nothing visible that happened. Then the adoption order would be made and the certificate would be sent out. So people would, I think, learn because they get something in the mail that the adoption order has been made. I do not have a detailed knowledge of that process but that is my understanding.

CHAIR: You mentioned cases where the department would go to court where the mother had not given consent. Were there many of those, do you know?

Justice CHISHOLM: I just do not know, and I do not know whether those statistics have ever been collected.

CHAIR: I know this is a generalisation, but would the court normally grant an adoption in that case?

Justice CHISHOLM: The Act has always set out a list of situations in which consent can be dispensed with. It is all in the book, but they include, for example, cases where a parent has abandoned a child or abused a child or where the parent cannot be found. There are some others. The situation is that --

CHAIR: I am wondering what the attitude of a court would be to a case where a young women, like the ones we have been talking about, refused to give consent. We have heard evidence of children going into foster care. I am just wondering what the attitude of the court would be in those cases.

Justice CHISHOLM: There is only a small number of reported cases on these questions and so it is dangerous to predict from those what the court's attitude generally is because often the reported cases are the exceptional ones so one has to be very careful. Some of the older cases suggest that courts which were not adoption specialists tended to take quite a strong parental rights view and to be suspicious of adoption. There are not many cases, and I could dig them up and I would be happy to send them to you, but there are some cases in which sometimes, to the fury of social workers and adoption people, the court would insist on the rights of the biological mother, as it usually was, and be quite resistant to the adoption.

I think that that attitude, which was probably fairly strong, say, in the 1950s, gradually became less strong as adoption became increasingly specialised. There would be, in the Supreme Court, a particular judge who would do most or all of the adoptions. That judge, especially as the number of adoptions built up, would be constantly exposed to the work of adoption and to reports about the kids and those reports would set out the social work wisdom of the time. The adoption judge, as the numbers got bigger,would be very exposed to the thinking of the times by the department and by the adoption agencies. So my guess is that, if you ask that question about the Supreme Court judge who does the adoptions, the answer would be that he would have been quitesympathetic to adoptions and would have taken seriously and, broadly speaking, accepted the wisdom of the social workers andthe people who write the reports that come to him in case after case.

If you ask that question about other judges who did not know about adoption, I think they would start off with a strong parental rights approach and sometimes - I think this is true, although there are quite a small number of cases - when you get an appeal from the adoption judge to a generalist appellate bench, maybe the Court of Appeal in New South Wales or the High Court, the generalist judges tend to take a stronger parental rights line than the judge who has been most exposed to the adoption literature and practices.

The Hon. Dr A. CHESTERFIELD-EVANS: Would you say that it is a kind of regulatory capture, which is a phrase that the Trade Practices Act might use, where you have a sub-culture which captures a section of the legal system so that then the legal system sanction, if you like, the rubber stamp of the judge in chambers, reinforces that behaviour on the department and agencies?

Justice CHISHOLM: Well, I would hope that that is too strong a term. "Regulatory capture" is a phrase that I have heard most commonly in relation to the regulators who are administrative people. I do not want to go into this at length, but I would hesitate to use that term about Supreme Court judges because I do not think that they are so easily captured, but with that possible reservation I think the essence of your point, if I may say so, is quite right.

Judges work best where they have two competing sides. I mean that is the way that the system has been set up. In almost all the adoptions, what the adoption judge gets is the pro-adoption case. They get the bundle of papers prepared by the people who want the adoption processed. Normally there is nothing from the other side, the judge does not hear any opposition, so that the adoption judge would be constantly exposed to material coming from one side only. Judges are just ordinary people, of course.

What is special about judges is the process and the process works best if there is something to be said on each side and when something is not said on each side then the process tends not to work very well, so regulatory capture is perhaps another way of putting that.

The Hon. D. F. MOPPETT: If a person, a mother, had experienced this process and it had gone through basically uncontested and was stamped by the Supreme Court, but then the mother, on reflection, decided that she was unhappy with thecurrent status and felt that the consent was invalid, for whatever reason, would it be necessary for her to approach the Supreme Court directly or would a complaint to community services automatically initiate a review of the judicial process, given that it was so much a process rather than a proper evaluation of pros and cons, particularly where no cons were offered. Would you comment on that?

Justice CHISHOLM: Well, first of all, of course, there was a period of 30 days within which consent could be revoked. I am assuming that you are talking about a period after that?

The Hon. D. F. MOPPETT: Yes.

Justice CHISHOLM: I am not sure if it was always 30 days. I mean we are talking about a period of time and the legislation might have changed a bit, so I am not absolutely confident that everything I say would be true at all points during that period.

CHAIR: From 1967 it was 30 days.

Justice CHISHOLM: Right. Well, in fact I think in the very early days, in theory, consent was revokable up until the time that the order was made. Anyway, I think that was the starting point and I know that it was 30 days under the Adoption of Children Act 1965.

Whether there was some different position at other times I am not sure, but I will assume for your question that, whatever that revocation time, it has now gone and the adoption order has been made.

The Hon. D. F. MOPPETT: Yes.

Justice CHISHOLM: It has been extremely difficult to set aside an adoption order and in fact there is now a provision in the Act along the lines - and I would have to check the details - that you need the Attorney General's consent to set aside or to revoke an adoption order. Again, that is something which could be easily checked. I think that is the situation. If that is right, then the mother in your example would be faced with the, on the face of it, fairly hopeless task of persuading the Attorney General to consent to proceedings to set aside the adoption and, unless the case was very special, you would not expect that to happen.

The purpose of that section is very much that adoption orders should be for keeps. That was quite clear. There is a 30 day revocation period but, once that is up and once the order is made, the adoption is very, very difficult to dislodge, much moredifficult than appealing against other orders of a court.

The Hon. Dr A. CHESTERFIELD-EVANS: The people who were consent takers, who in a sense have come to us as apologists, for want of another word, for the process, have said that they were cogs in wheels; that they were the mores at the time. The mother did not support her daughter; there was no money for the child's upbringing,; the family and the State would not pay for it; there was no choice. The church people have said they were just smoothing the path, it was already determined.

Justice CHISHOLM: Yes.

The Hon. Dr A. CHESTERFIELD-EVANS: If the judges were reinforcing that by, as you say, effectively having one-sided cases, would you say that they were the mores at the time and was this part of the rights of the child movement; that because adoptive parents were assumed to be superior to unsupported parents, the rights of the child movement has given rise to this social movement and it was very widespread at the time? Do you think that it really was that the adoption system was an expression of a social morality at the time, or should I ask a sociologist?

Justice CHISHOLM: Well, yes, that is true, I am just a lawyer.

The Hon. Dr A. CHESTERFIELD-EVANS: But you were practising at the time.

Justice CHISHOLM: I was interested in the field as an academic, yes.

CHAIR: Question 5 probably raises these questions in relation to the factors and circumstances which should be considered.

Justice CHISHOLM: Yes. Could I give a short response to that question. Obviously that is a huge sort of question. I think there is a lot of truth in that general picture. I think that there were a lot of - and I use the phrase "a lot" because I think one thing I have learned in my present job is not to generalise and every case is potentially very different - social factors of the kind that you have mentioned pushing in the direction of adoption over much of this period. I think that is true. The alternatives that many of the mothers faced, I think, were pretty few and grim, particularly if they did not have family support, they did not have moneyand so on.

On the other hand, I think there were also some other strands in the picture. One strand was the question of illegitimacy and the stigma associated with illegitimacy. Early on, the big thing about adoption was that it was seen as the solution to illegitimacy and the stigma of illegitimacy attached not only to the child but also to a large extent, I think, to the mother. Adoption was seen as, in a sense, something like a purification exercise, putting things right in the sense of getting rid of the stigma of illegitimacy. It seems hard to conceive of it now, but I think it was part of the story.

It is a very difficult question and I really do not know what the answer is, but it is possible that one part of that was a condemnatory or blaming attitude to the mother. Some of the practices that one hears about seem difficult to explain unless there were some sense of anger or hostility towards the mother (probably not to the children). So I do not think that there is any doubt that most of the people, most of the time, thought it would be best for the child to be adopted, rightly or wrongly. I just wonder whether, going along with that, as an undercurrent that might have been there some of the time, was a fairly punitive attitude towards the mother.

As I say, some of the practices can be explained, like the pillows and the sheets and all that stuff, by a belief that a clean break would be best and the mother would grieve less if she never saw the child and all that. But some of them seem so cruel that one just thinks that that is perhaps not the whole story. I am not sure. In some ways it is a difficult task that I, as a lawyer, sometimes have to deal with in specific cases, but I do not know how you would answer that question. It is an important one.

Can we deal with question 11. That is really the end of the more technical ones. The next set of questions I think deals with the application of legal principles. I may have already answered question 11 but I will just say something about it. It is: - The Committee understands that as social attitudes change so do the attitudes of judicial officers. We are aware of the paramount consideration principle. Do you feel that judicial understanding of what would constitute the welfare and interests of the child may have changed over the period? For example, do you think there would be a bias in ensuring that the child is cared for by the adoptive couple rather than the single biological parent? - I really think I have answered that in what I said about the adoption judge and other judges, but the question goes on to say: - In your experience, what factors does a court now examine to determine the best interests of a child? - All I can say about that - of course there are far fewer adoptions now - is that I think the range of factors looked at is now fairly wide and the judge currently in charge of adoption, whoever it may be, would be aware of the literature and the issues and so on.

The reports that normally form part of the application would cover, I think, a wide range of things. I imagine you could get hold of some recent reports which would illustrate it. In the Family Law Act there is quite a long list of relevant factors, which include things like the wishes of the child, the child's relationship with the parents and other people, whether anybody has abused the child, protecting the child against various kinds of problems - a long list - and once you see the list you think, well, of course, they arethings that should be taken into account.

There is not any equivalent list in the Adoption of Children Act, but I would think that reports to the court would follow a similar pattern and I think that all the matters that would be relevant, for example what alternatives there were, would be taken into account. I cannot really give a detailed answer about how that is currently done.

Question 5 is: - In your view, what factors and circumstances should be considered in deciding whether a particular adoption practice was unlawful? In particular, could you comment on what types of action would constitute fraud, duress or other improper

means when taking consents? -

Then question 6 says: - The Committee has heard that there was significant social stigma attached to single motherhood.

Alleged examples of treatment received by mothers include, and then there are some examples. - It is probably best to answer the question by reference to the examples first. The first one is failure of adoption agencies, hospital staff and social workers to provide advice about alternatives to adoption in circumstances where the mother was dependent on the agency for advice and support.

The question under the Act was whether the actions would constitute fraud, duress or other improper means. As a matter of law, I would say, of course, that it is terribly important that the advice should have told those mothers what the alternatives were and present those alternatives in a neutral fashion. It is an obviously correct practice. Whether failure to do so would count as fraud, duress or other improper means I am not sure. I do not think it would be fraud. I do not think it would be duress. Whether it would be other improper means is a bit hard to say.

Looking back, it might be better if the Act had said that the people taking consent should tell the mother of all the alternatives. If it had said that, it would be clear. So whether as a matter of law it would be regarded as improper means to fail to outline those alternatives, I have some doubt about that, just because - improper - is a fairly strong word in the law. The courts take phrases like that fairly seriously and they do not readily include all sorts of things that they happen to disagree with under a phrase like "improper means". So I think failure to provide information probably would not of itself fall within those words.

The next one is, forcefully reminding expectant mothers about the difficulties they would face as a single parent. It seems to me that is a classic example of something where you would really need to know the details to form a judgment. I do not have any doubt that forcefully reminding expectant mothers of the difficulties could, in some circumstances, constitute duress. If you think about mothers who are in the very difficult situations they were in for all sorts of reasons, quite apart from the physical effects ofchild birth, they are obviously extremely vulnerable. To forcefully remind them of the difficulties they would face as a single parent, in those circumstances it seems to me that could quite easily constitute duress, depending on how forceful it was.

My own view is that in interpreting duress, certainly today the courts would try to take a holistic picture. Obviously a forceful suggestion that might not be duress in one situation could be duress in another because it is applied to a particularly vulnerable person. It is hard to imagine anybody in a much more vulnerable position than these mothers. So I would think that it would depend on the facts, but I would think that forcefully pointing out to these mothers one side of the story, and really pushing it, could easily amount to duress in my view.

The next one is informing mothers that they would face criminal sanctions as vagrants if they did not consent to adoption. That is an easy one because it seems to me that is fraud, assuming that it is untrue. I assume that it is just not true that the mothers would be likely to face criminal sanctions as vagrants if they did not consent and, if it is untrue, then it is unquestionably . I think that is outrageous, but it certainly falls within those words.

The Hon. Dr A. CHESTERFIELD-EVANS: One other not on this list but which has been mentioned in evidence is that they cannot see their babies until they have signed the consent.

Justice CHISHOLM: Duress; next case please. I would think that is appalling. I mean the Act does not say appalling. It is impossible not to be moved by this topic, but I think the technical analysis is that that would be quite improper. In fact, I think there is the phrase, "other improper means". No question that it would be other improper means.

If I can digress for a moment, my impression is that the whole situation was such a power laden one with so much power of various kinds on one side and the power would include being controlled by people other than the mother, the people other than the mother knowing the system and the mother not, the people other than the mother not going through a life crisis and all sorts of other things and a whole lot of ideology. The mother, I assume, would often be feeling a tremendously strong mixture of emotions which might include guilt, shame, despair, confusion, anger or anxiety about her family perhaps not supporting her, all kinds of things and the other people are not presumably going through those experiences, so in terms of a power relationship it must have been just overwhelming.

And so in that context, I think, you can understand how the mother's rights would be lost sight of, but then if you look at the law and see their rights, some of the practices you described quite clearly are wrongful.

The second last category of questions is seeking information about how much things happen. I have just lost track of which questions they are. Question 9, "Are you aware of any evidence to suggest that the actions of government and non-government bodies in relation to adoption practice between 1950-1998 were (a) unlawful (b) unethical? If so, are you able to provide some brief examples?" Essentially I do not have anything to add to the Law Reform Commission report. We did put lots of stuff in there.

The Commission received a lot of submissions which included other examples, and they would be on file. I am not with the Commission any more. I imagine they would be happy to make those available to you.

I suspect that most of the material of the kind that we got, you have got too, probably from lots of the same people and to some extent I think the sort of exercise that you are going through now we went through then. So I would be surprised if you did go and look at the Law Reform Commission's collection of material, that it did not look rather like your own collection of material.

So I simply just do not have anything new to say about that topic.

That leaves a set of questions which are all about two things. One is the relationship between law and ethics in this area and that is questions 1 and 2, and the other one is the question of time frame, that is, do we judge those people then by our values now or do we try to judge them by their own values at the time. Can I say something very brief about those large topics and then I will philosopher or an ethicist (if there is such a thing) but it seems to me that the relationship between the law and ethics is easy to state in a sense, and that is, it is easy to see that they are two different things. The easiest way to illustrate that is that you can change the law by passing a piece of legislation and it changes the moment that legislation comes into force, whereas you cannot identify a change in ethics in anything like the same obvious way. So, on the face of it, I would say that laws are things that you can pin down, identify and point to an Act of Parliament or a case and say that is the law and if somebody says, "How do you know it is the law" you can say, "Well, there it is". Whereas if something is put forward as an ethical proposition and somebody says, "How do you know that is right?", you cannot point to any authoritative source in the same straight forward way as you often can with law.

Now, of course, within a religious belief set you might be able to point to an authoritative source. With Christians you might be able to point to the Bible or with other religions you might be able to point to other accepted moral authoritative text. But subject to that it seems to me that ethics is something on which you just cannot identify with precision and state with authority what the ethical answer is. So people differ and people do not differ crazily, but they differ in all sorts of ways and there is lots of common ground and there are ethical views that most people would agree with, so it is a sort of a messy, fluid kind of area.

So, in terms of these questions, if I can sort of shift on to the other topic, it seems to me that it is possible to identify in a fairly rough and ready way things that are unethical and you just have to say, well, we are people who live in the world, we read a lot, we have talked to people, we have looked at this and we all agree that it is unethical. For example, to lie to a woman when taking consent, to deliberately mislead her. Probably everyone in this room would agree that is unethical, whatever the law says, so there are quite a lot of matters on which it is not very difficult to work out what is ethical and what is not.

In terms of the time frame question, it is a wonderfully difficult question, to what extent one should blame people in earlier generations, using a standard of our own values and ignoring the values that they started with. Ultimately it seems to me that is, in a sense, a choice that the blamer has to decide. If you are wanting to blame somebody, you can choose whether to blame that person by reference to your own standards or the standards of 1860, 1967 or whatever the period was.

I note your terms of reference in the sense of reporting are that you are asked to describe things. You are not asked to decide who is to blame as I read the terms of reference. I would have thought that if you were able to identify whether particular practices infringed the ethics, (a), of today, b), of contemporary ethics, if I may say so, you would have done your job. So in a sense I do not know that you have to really raise that question of whether one should judge people by today's standards. It is always difficult to work out what the standards of the time were, but you would have heard evidence no doubt, and there would have perhaps beenguidelines or social work texts or other sources of guidance as to what were accepted as ethical standards at the time.

That is all I can say initially about those difficult questions. I would be happy to take that further if anyone would like.

CHAIR: Question 16 is the question of whether the consent of the father, when known or acknowledged, was required in order for the adoption to be valid.

Justice CHISHOLM: Until the 1980s everyone would have said that the answer to that question is simple, that is, is the father's consent required, and the answer was No, unless he is married to the mother. Under the previous law, the mother was the guardian of the child and the unmarried father was not, full stop. So the sections requiring consent, the exact words of which I forget, made it quite clear that, in the case of a child whose parents were married, you need both parents' consent. In the case of an illegitimate child, to use the earlier terminology, you only needed the mother's consent.

There is a slight complication to that, at least up to a period, namely that if, after the mother gave consent, she married the father and the adoption order had not yet been made then the father's consent became necessary. That has actually since been changed, but there was a period when that was the law. Basically the answer was mum's consent is needed; dad's is not, unless they are married.

In recent times - certainly since the Children (Equality of Status) Act in 1976 - there has been a tricky legal argument about whether the father's consent really was required since that time under the Adoption Act. It is a tricky argument because the Adoption Act speaks of people who are parents or guardians and, as a matter of law, it is arguable that the father was a guardian.

Now whether the father was a guardian within the meaning of the Adoption Act is a very tricky question. You can argue that, if you read the Adoption Act, the word "guardian" does not include unmarried fathers. On that subject there were some amendments to the Family Law Act in the 1980s which also affected the position. It is a topic which at university is always set as a moot topic for the students just because it is wonderfully tangled and there are a couple of cases going in different directions on it. In practice, however, my understanding is that the adoption industry proceeded on the basis that the father's consent was not required and that was basically the way the game was played and against that there was this highly complex and technical legal issue about whether, as a matter of law, the father's consent was required, but broadly speaking, as I understand it, the practice was that his consent was not required.

There were some amendments, and I really do not have the details in my head at the moment, in the 1980s, requiring the father's consent in certain limited circumstances. I think they were, in a nutshell, where he was living with the mother and the child after the child was born. I think in those circumstances, even if he was not married, his consent was required, but, of course, they were not the typical case.

It is quite a tangled and tricky area as a matter of law, but I would not want the legal tangles to deflect you from the basic proposition that during this period the mother's consent was required and everyone forgot about the father. That is, broadly speaking, true.

Justice CHISHOLM: The word "abuse" is a strong one and I suppose it is a word that is a bit explosive because people who feel very angry about what has happened would seize on it and say, yes, that is just what I want to say about it, "abuse" precisely captures what I want to say. And the people who are being attacked would feel themselves unfairly attacked precisely because of the same loaded nature of the word "abuse". In a sense, it is a polarising way of stating the problem.

If one substituted more technical language, for example if you asked the question, has there been a widespread practice of improper methods being used in the taking of consents, it may be that everyone would agree: Yes, there has been. If you use a word like "abuse" in the question perhaps it tends to polarise people, so some people say yes, yes, yes, and other people say, no, no, no. If you try to disentangle the language a bit and ask questions such as were there improper practices relating to consent, I would have thought almost everyone would say yes, there were, and lots of them.

The Hon. D. F. MOPPETT: In other words you feel that, if you were going to attribute terms like "systematic" or "widespread", you would like to use more dispassionate language than "abuse" and "illegal practice" and that type of terminology?

Justice CHISHOLM: Yes. I do not for a moment suggest that we should try and remove from the topic the strong emotions which are associated. That is part of the picture, and it would be silly to try and pretend that they did not exist or whatever. But it seems to me analytically it is probably quite a good idea not to start off with a word like "abuse". You could start off with a more precise description of what happened and then you look at that and say, - Well, if we agree that that is what happened, what do we think about it? - Some people may well say that that is abuse and they may be entitled to their opinion.

But if you start off with the word "abuse" then one misses the chance of identifying the common grounds of agreement on facts. "Systematic abuse" also, if you put those two words together, suggests that the people who did these things had some ulterior motive: They were really intending to punish the mothers or harm the children or something like that. Again I would not rule out the possibility that there might be some part of that in some cases, but, broadly speaking, it seems to me that most of thepeople who did these things were honourable people doing the best they could as they thought. Now that is not a view thateveryone shares, but it seems to me that that is the case and, as to whether these things are systematic, I think that they were widespread rather than systematic, that is I do not think that they were practices that necessarily were cunningly designed as part of an attempt to do X

The Hon. D. F. MOPPETT: Hierarchical structure.

Justice CHISHOLM: Yes. I think they were more a whole set of practices that flowed from some of the factors we have talked about. The word "systematic" does not sound quite right to me.

The Hon. D. F. MOPPETT: Sometimes followed blindly perhaps.

Justice CHISHOLM: Indeed. I think it is the case that quite a lot of people who were working in those times, now looking back, would say: Heavens, how could I have done such a thing? If that is right, those people are looking back and saying, as I suppose most of us in our lives can look back and say, how could I have done something like that? If that is the response then to describe the things that were done as "systematic abuse" --

The Hon. Dr A. CHESTERFIELD-EVANS: Systemic certainly.

Justice CHISHOLM: "Systemic" I would be happy with. "Systemic" is exactly right. I think "systemic" is a very good word because it was built into the system, but "systematic" suggests that everyone in the system was --

The Hon. Dr A. CHESTERFIELD-EVANS: Calculating.

Justice CHISHOLM: Yes.

CHAIR: Assuming the question is framed in reference to the actions of government, taking the word in that sense, then people address it somewhat differently.

Justice CHISHOLM: Indeed.

CHAIR: You have talked about individuals looking back and saying: Why did I do those things?

Justice CHISHOLM: Yes.

CHAIR: But there is also the question of whether the system was abusive or had improper methods or whatever language we are using.

Justice CHISHOLM: Yes.

The Hon. D. F. MOPPETT: Even the use of the word "systemic" depends on excluding the fact that there were many other practitioners who did not do these things. If that was the evidence, one would be reluctant to use the word "systemic", I imagine. Maybe what we are dealing with is a group of people who were the victims of practice which we, without any hesitation, look back on as unacceptable today, but we have had evidence from other people who have been through this experience and did not feel that in any way they were isadvantaged by what they experienced. "Systemic" would mean that it was widespread and

Justice CHISHOLM: Yes. That is interesting. I wonder whether it might be systemic in the sense that the sort of pressures that we have talked about might press all of the people working in adoption to the kind of pro-adoption methods which would ead to some of the abuses, but some of them were able to resist that more than others. It might be that the word "systemic" is right because that is the way that these pressures were pushing and so the people who did behave well perhaps would deserve double credit for having actually resisted the pressures. If they just went with the flow - and perhaps going with the flow meant

engaging in some of these practices and the ones who did not might have resisted things --

The Hon. Dr A. CHESTERFIELD-EVANS: The medical system has a very difficult relationship with the legal system in the sense that, if you help someone who is in pain to die, you are a murderer. The legal system became very invasive with psychiatric cases in that, if they have not committed a crime, they are not mad. In this case, the mores were presumably one thing but the practices were another. I suppose within the medical system my view was, well, the lawyers think this, but they are just a bunch of wallies anyway. How dare they tell us how to do our job almost was the view. Do you think that that is important in the sense that some of these systems felt that they were above the law? Do you think that that is true or do you think it is too strong?

Justice CHISHOLM: I think it is fairly true in this area because this is an area in which there were not, for better or worse, a lot of lawyers around. It was an area of almost no legal activities. All the things that happened were done within a legal framework, but by basically the adoption people, the hospital workers and people taking consent. Those people prepared all the papers. It went to the judge in chambers. The first lawyer appears on the scene and he does not even appear on the scene, he is in chambers signing things. So it is not as if there was a flurry of adoption people doing one thing and a flurry of lawyers fighting them or doing other things. It is a legal framework almost devoid of activity by lawyers.

The Hon. Dr A. CHESTERFIELD-EVANS: When the law changed, it may then have been slow to be implemented because of that tradition?

Justice CHISHOLM: I think the law was there. I suppose the only people who knew much about the law would have been the social workers and the people running the system. The unmarried mothers or mothers probably did not know much about the law at the time and they were not represented by lawyers. It was a very legal framework, not subject to any real legal scrutiny but being used by non-lawyers. It was a very uneven playing field, if one wants to use that expression.