Give Us Back Our Baby
By Caroline Overington
The Weekend Australian Magazine, October 2010
ON March 31, 2005, a girl was born at a Sydney hospital. Her head was considerably larger than normal. Doctors had expected that. The child's mother had a scan during her pregnancy that revealed that the baby would likely be born with a condition known as hydrocephalus, or fluid on the brain, and that she would need an operation.
The mother was anxious. She didn’t particularly want her newborn to have an operation on her head. The child’s father certainly did not. The couple are of Chinese heritage: they place great store in traditional Chinese remedies, and they are suspicious of Western medicine, believing it intervenes hastily, and surgically, when other methods might do.
The child’s mother – let’s call her Ms Xi, for it’s very important that her name never be revealed – agreed to the surgery, but the child’s father, whom we’ll call Mr Lee, went from the hospital to the public library in Auburn, in Sydney’s west. He looked up “hydrocephalus” on one of the library’s computers, and, like many people who search online for medical information, he spooked himself. Websites made it plain that his daughter’s head would have to be cut open, and a shunt inserted to drain fluid from the brain to her abdomen. It would stay there forever; it could block up every two years or so; it could get infected.
Mr Lee returned to the hospital, full of doubt about the procedure. Official records show that he attended a meeting with one of the state’s top neurosurgeons, and the hospital’s head of nursing, who told him the operation was necessary. He said he wanted to wait a while. His felt that his baby girl was too small and vulnerable. The idea that somebody would cut into her head; he didn’t like it at all. Besides, her head was shrinking. The circumference had been 53cm; now it was down to 48cm, and that was in just one day.
He asked the neurosurgeon: if you don’t do the operation, she will die? The doctor said no, she will not die. She will suffer complications, serious complications, but not die, no. On that basis, Mr Lee decided that he did not want his daughter to have the operation, and Ms Xi withdrew her consent.
What happened next is, by any measure, extraordinary - and probably not reversible. State welfare services stepped in, took the baby girl into state care, and wheeled her away for surgery. Her parents never saw her again, but not because she died. She thrives. Indeed, she celebrated her fifth birthday this year with a heart-shaped cake and candles.
The reason her parents never saw her again was because the state welfare system never gave her back.
In order to adopt a child in NSW, a couple needs to front the NSW Supreme Court to get an adoption order. It happens incredibly rarely, simply because there are so few babies available for adoption. That said, six months ago – on April 27, 2010 – an adoption matter did come before the court. In order that everybody’s privacy be respected, each of the people involved in the case was given a letter to use instead of their name.
Thus, this case is known, in court records, as D v A&B re C (2010).
The judge was George Palmer, widely regarded as one of the Supreme Court’s most compassionate judicial officers. White-bearded, bespectacled, Palmer became a Queen’s Counsel in 1986 and has been a judge of the Supreme Court since 2001. He is a father and grandfather, a devout Catholic and a composer. He was commissioned to write the Papal Mass for World Youth Day in Sydney, which was performed in the presence of the Pope. It’s inconceivable that he’d deliberately do the wrong thing.
So here was a child – let’s call her Bella, for she was, and is, beautiful – removed from her Chinese parents because they did not consent to an operation on her brain; a baby girl who had been given to foster parents who now wanted to call her their own; but who still had biological parents, who have been fighting for years to get her back.
You can tell from what he said in his judgment that Justice Palmer was desperately conflicted about the matter; but still, he allowed the adoption to go through. In May, The Australian published a short article about the case, giving only the barest details, as described above. The NSW Department of Community Services got a bit huffy about it, saying that everything they’d done had been with Bella’s best interests in mind.
Some months passed. Then, in the first week of October, out of the blue, Mr Lee rang the newspaper. “You write story. You write Chinese baby taken from parents,” he said. “In May, you write story. Me father! My daughter! They take my child.” And then he burst into tears.
Apparently, a Chinese-language newspaper had taken the article from The Australian, translated it into Cantonese and reprinted it, and the father, in his endless searching of the internet, in his obsessive pursuit of justice, had come across it, tracked down the original article, and now saw yet another avenue for appeal. He wanted to meet.
“Auburn Library,” Mr Lee said. “You must see me, Auburn Library. I tell my story. Abuse of human rights.” I agreed to meet him and said: “But how will I know you?” To which he replied: “My hair, it turn completely white.”
A bag full of toys
Auburn library is a neat, modern, busy place in Sydney’s west, with newspapers and magazines on racks at the front; a table set up for a volunteer JP who helps refugees with claims for asylum; women in hijabs and men in socks and sandals and beards but no moustaches; and other men in white robes, lounging on leather couches; surrounded on all sides by fish markets and vegetable stalls, signs in the Chinese language, and Halal butchers. Mr Lee arrived for the meeting neatly dressed in a check shirt and tan pants, with a bundle of folders containing documents and photographs of his baby when she was born. He was also carrying a grey plastic bag, like the cheapest of supermarket bags, filled with plastic toys, rattles, dolls, that he’s bought on Bella’s birthday every year, in the hope of one day handing them over to her.
The first thing he did, as we settled into a booth, was pull out a letter he wrote to the hospital on April 4, 2005, when Bella was four days old. “I don’t want my daughter head to have operation tomorrow. I want wait and see for another week,” it says, in a spidery hand. “Because she’s head getting smaller. I have got a feeling she will recover soon by herself.”
Next, he brings out a record of the interview he had with hospital staff. It’s dated April 5, 2005. It shows that he was there with Ms Xi, as were two caseworkers from the NSW Department of Community Services, plus the head nurse of the newborn care unit, and a neonatal neurosurgeon. The notes show that Bella was on oxygen, with a feeding tube.
The head nurse said they’d had “endless conversations” with the couple about the need for Bella to have an operation, but Ms Xi wanted to “take the baby home, and wait a few weeks until the baby is bigger for operation”. The staff told the couple that they always “aim to do the operation in the baby’s first week of life” and there were statements from four doctors, two of them Cantonese speakers, saying the operation was necessary, and needed to be done quickly. The notes show that one of the doctors asked Ms Xi: “What would you do if your daughter got sick at home?” She replied: “I would call an ambulance.”
Mr Lee is recorded saying: “I think operation is very important but last choice. Need to see if alternative choice. I want baby to have most natural way. It is complicated surgery, do not want to take risk. If baby’s head is getting bigger we will bring her back.” The doctor tried to explain: if the fluid in Bella’s brain continued to swell, and she became brain-damaged, it could not be repaired, but if she had the operation “she will be perfect”.
Ms Xi said: “I spoke to my parents and they have never heard of this.” The doctor said: “It is very common. This picture shows the brain is being pushed and every day it causes damage.” He gave the couple a copy of a Chinese medicine text and said: “You will find the condition in the book. It doesn’t mean it doesn’t exist if you haven’t heard of it.” Ms Xi said: “I am very worried that the baby may be hurt in operation.” The doctor said: “The risks are higher if we don’t operate than if we do.”
Then comes what Mr Lee regards as the critical testimony. Ms Xi asks: “If we don’t operate, baby will die?” The doctor replies. “This is not true. Baby will suffer and have complications.” “Baby not die, not die!” Mr Lee says, his finger on this line of testimony. “We say, does baby need operation or die? Doctor say: not die!”
What he means, of course, is that neither he nor Ms Xi were, in their minds, being silly or irresponsible about it. They didn’t want Bella to have an operation but would have agreed if there had been no choice. “We want just to wait!” he says. “No wait!”
No wait, because on April 5, 2005, the Department of Community Services took action. It went to court and, under section 44 of the Children and Young Persons (Care and Protection) Act 1998, made an application for a care and protection order, meaning that it wanted to immediately take Bella into its care. The hospital record notes a DoCS representative told Ms Xi that the department would be consenting to the operation: “We will be making decisions for baby temporarily.” When Mr Lee arrived at the hospital with a baby capsule, intending to take Bella home, six security guards stopped him at the front door. They told him to come back, after an interpreter had arrived. In his absence, the order was granted and the operation on Bella was carried out the same day.
Now Mr Lee pulls from his manila folders a series of harrowing photographs, showing Ms Xi in a red tracksuit leaning over the special care crib, her face swollen like a tomato from crying, her eyes practically welded shut, sobbing and sobbing over baby Bella, who has a bandage the size of a car-washing sponge on her head.
What happened next isn’t entirely clear. Mr Lee and Ms Xi were in a state of shock and confusion, anger and grief. It seems that Mr Lee lost his temper, more than once. They went home, and Bella stayed in the hospital, recovering. On April 26, 2005, 20 days after the operation, DoCS’s temporary care turned into foster care.
Why this happened, again isn’t entirely clear. The department insists that Ms Xi didn’t want to take her daughter home, but there is some evidence to the contrary. On April 11, 2005, the federal government’s Family Assistance Office sent a baby-bonus cheque for $3000 to Ms Xi. A few months later she got another letter, saying she had to pay the money back because her baby hadn’t gone home with her, and was in foster care.
It’s an offence to take a baby bonus to which you’re not entitled, so Ms Xi was called into court to explain herself. The judgment reveals quite a lot about the state she was in. “Ms Xi has very limited understanding of English,” it says. “She was very distressed at the hearing and had difficult focusing on and answering the tribunal’s questions. Her responses were often incoherent and she spent much of the hearing with her head on her table, weeping. Ms Xi’s baby, born March 31, 2005, was born with a condition which caused swelling of the head. Ms Xi genuinely expected to resume caring for her daughter after her discharge from hospital. Given that her son is in her care, this expectation was not unreasonable.”
Her son? Yes, Ms Xi has a son, who is older than Bella. He’s never been brought to the attention of the welfare services. (Ms Xi won’t talk to The Weekend Australian Magazine because she desperately fears that the state will come for him, too, if she causes too much trouble.) Not only that, Mr Lee has another daughter, from an earlier marriage. She is now in her 20s and studies at the University of Sydney. (The Weekend Australian Magazine spoke to the older daughter, who confirmed her father’s story.) He says: “How she study world-famous university if I not a good parent?”
The judgment went on: “[Mrs Xi] has a $30,000 mortgage which she repays at $500 a month. She has no debts, and no savings. Her health is good. She has back pain, which she rubs with Chinese herbs. Her son is healthy.”
She’s a perfectly good mother, in other words, so why is Bella not with her?
Rebuffed and ignored
Back in Auburn library, Mr Lee is digging through his pile of manila folders and plastic sheaves and loose documents, bringing up letter after letter about Bella, dated 2005, 2006 and 2007. He’s written to the Supreme Court, to a long-departed NSW Premier, Morris Iemma, to the Leader of the Opposition, Barry O’Farrell, to the Health Care Complaints Commission, to the matron of the hospital, to everyone, always in English, and always clearly explaining his situation: his daughter was taken for no reason, and he wants her back.
Anyone familiar with the red tape and roadblocks and procedures of bureaucracy will know how he fared – which is to say, he’s been duck-shoved and rebuffed and ignored. There is a way to negotiate the system, with humility and maximum co-operation, but Mr Lee refused to play the game. He was obstinate, and it proved disastrous.
In 2007, DoCS informed the couple that they could see Bella, but they wanted some information about them before the visits could proceed. Ms Xi asked a translator to help her with a letter. It’s on file, and it’s dated 2007. It talks about her son, and gives the name of the school he attends, and the name of her doctor, “who is able to indicate that I am free of any illnesses and I take good care of my son”.
“I take him to school every day by walking with him, and I go to pick him up after school,” she wrote. “I have done that for four years. My home is a residence on the third floor with two bedrooms, kitchen, bathroom, small balcony. I receive Centrelink benefits as a single mother. I am terribly missing my daughter. I have not been able to see her since she was born and removed, two years ago. I have done nothing wrong to my lovely baby, as a mother, naturally, I am quite caring. My heart is broken. I miss her so much. I want to see her and spend time with her. I am a human being.”
But no meetings took place, because neither parent would agree to the conditions that DoCS laid down. Indeed, Mr Lee is maddeningly stubborn on this point. “They tell me, I can see my daughter, but not say: I am you father,” he says. “We not allowed to say: we are parents. No parent agrees to this. No parent! No parent goes to this meeting, says, hello. Says, we are strangers.” They would not agree to have their visits supervised, either. “They take my daughter, no reason,” he says, shaking his head. “This abuse of power. They should give back, no questions. No conditions.”
Of course, that did not happen, and for Mr Lee, that is a bewildering denial of his human rights. For a very long time, he seems to have believed that somebody, somewhere, would see that a wrong decision had been made, and simply put it right. Instead, Bella’s foster parents, who are completely in love with her, applied to adopt her, and got a hearing with Justice Palmer.
Showdown in court
Bella’s was a difficult case. it came before Justice Palmer’s court many times, and each time, he tried incredibly hard to convince Mr Lee and Ms Xi that the court wasn’t on anybody’s side and that he understood their pain and confusion, and wanted to help.
In August 2009, for example, he directed that a letter be sent to them, in Cantonese and in English. “The decision about your daughter is very important and you should do your best to help the court make the best decision,” it stated. “It is natural for you, as parents, to believe that you have the right to take care of your daughter without interference from anyone else. But you will know that there are some people who are not good parents and sometimes it is better for a child to be looked after by someone else. You will have to give the court detailed information about yourselves to show that you are good parents.”
He urged them to attend the adoption hearing, to fight for their rights and, on October 8, 2009, they did. Things started off pretty well: Mr Lee has been in Australia for more than 20 years (he was here in 1989, studying English, and was one of those students allowed to stay after the Tiananmen Square massacre) but for court, where it’s so important to really understand what’s going on, he asked for, and got, an interpreter.
On the other hand he applied for legal aid, but did not get it, which made him suspicious. He then asked a Chinese-language legal service for assistance, but they said they mostly did immigration matters. That made him suspicious, too.
Justice Palmer opened by saying: “What concerns me is that this child may have been taken away from the parents ... and they have developed a sense of persecution since then, which makes it impossible for them to co-operate with the court. If that has happened, it is a real tragedy. I need to find out whether it has happened.”
He addressed Mr Lee, saying: “I am trying to help you because I think it is possible that your daughter was taken away in circumstances which did not justify it.” Mr Lee assured him this was so. But, Justice Palmer said, the court would need “a great deal more of the background” before it could decide what to do.
Mr Lee couldn’t understand it. To him, it was clear as could be. “My daughter has been forcibly removed. I haven’t seen my daughter for more than four years now. We haven’t done anything wrong. My daughter should be given to me back,” he said. Justice Palmer didn’t necessarily disagree, but said: “You have to tell me certain things.” Mr Lee said: “My daughter was forcibly removed by a DoCS worker. I am Australian citizen. This is injustice. This is inhuman.”
Justice Palmer tried again – and then again, and again – to get Mr Lee to see things from his side, to explain more about his life, his income, his home. “Are you going to tell me what your job is, where you live, what sort of house it is, and how you are going to take care of her?” he said. Mr Lee said: “May I ask you, if I have not a job, I don’t have the right to ask for my daughter back? I already tell you, my daughter is removed by the DoCS worker. She should come back at once, with no questions.”
Then he started shouting: “I am sorry. I am going to ask, for natural parents, for more than four and a half years, haven’t seen a child. Is this reasonable?”
Justice Palmer assured him: “I understand. I am concerned that the baby was taken away from you without a good reason. But now I have to make a decision because the little girl is four years old. She has been living with other people who love her like their own child. I know nothing about you. I know nothing about Ms Xi. For all I know, it may be that you are an alcoholic, that you’re a drug addict, that you are a criminal, that you have three or four children who have all been beaten by you and taken away. I do not know. It is not enough for you to come here and say: ‘I am the father. That is all.’ It is not enough. Please, listen to me. Listen to me. Can you tell me a few things? Do you live with Ms Xi in the same house together?”
Mr Lee said: “As I mentioned before, my daughter forcibly removed from us. Should be returned without questions.” Justice Palmer said: “Do you have a regular source of income?” When Mr Lee did not answer, Justice Palmer wondered aloud whether he was perhaps suffering from a “mental condition” that made him so deeply suspicious of the process.
Mr Lee could hardly believe it. To him, this was like something from China, or worse than China. His child had been taken by state authorities; now he was in court, trying to get her back, and being told he was mentally ill. The transcript shows his anger, and frustration, and disbelief. “Excuse me, excuse me, you mentioned I am suffering from a mental condition. Can you explain what you mean? I am a perfectly healthy man,” he cried. Justice Palmer said: “Mr Lee, I have asked you many, many times to co-operate with this court … you seem unable to do so.” Mr Lee cried: “I am Australian citizen!”
Justice Palmer adjourned the hearing for a month, in the hope that somebody could convince Mr Lee and Ms Xi that they had to go along with the process; it wasn’t as simple as reversing a wrong decision. He set a new date for a hearing, in November 2009, and then another, in April 2010. By this stage, though, the couple’s faith in the justice system had completely eroded, and they had stopped responding to the court’s mail. Refusing to give up on them, Justice Palmer directed that they be subpoenaed, ordered to attend the last and final hearing before Bella was adopted out; warning them that failure to attend might result in arrest.
The subpoena terrified them. Mr Lee says they sat, shaking, in his apartment on the morning of the hearing, sure now that they would be stripped not only of their child but of their liberty, and they could not for the life of them work out why this was happening to them, and what would happen next. Would Ms Xi’s son be taken? Would they be deported? Was this really Australia, a Western democracy, a land of human rights and justice?
In the Auburn Library, Mr Xi is again in tears. “I ordinary man,” he says. “Ordinary man, but good father. I will look after my baby. If there is one meal for me and none for her, she has my meal. She can have the food from my mouth. I cannot see what I have done. What can I do? What can I do?” He’s holding a photograph of Bella, aged five, in her party frock. He is entitled to one such picture, every year, and the adoption is now final.