A v C - re P

[2010] NSWSC 362

CITATION:	A v C – re P [2010] NSWSC 362
HEARING DATE(S):	22 and 23 April 2010
JUDGMENT DATE :	23 April 2010
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	23 April 2010
DECISION:	Adoption order to be made.
CATCHWORDS:	ADOPTION – Whether adoption clearly preferable, in best interests of child, to parental responsibility order.
LEGISLATION CITED:	Adoption Act 2000 (NSW) – s 8, s 50, s 90(3), s 92
CATEGORY:	Principal judgment
PARTIES:	Director General, Department of Human Services (Plaintiff) Ms C (Defendant)
FILE NUMBER(S):	SC A147/09
COUNSEL:	M.W. Anderson (Plaintiff) Ms D. Ward (Defendant)
SOLICITORS:	I.V. Knight, Crown Solicitor – Plaintiff Legal Aid – Defendant

A147/09 A v C – re P

JUDGMENT – Ex tempore
23 April, 2008

Introduction

1 This is an application by the Director General of Human Services for an adoption order in respect of a child, P, in favour of adoptive parents, Mr and Mrs A. To preserve the anonymity of the parties, they are referred to only by initials.

2 The application is opposed by P's birth mother, Ms C. P's father is unknown. Ms C does not seek that P be returned to her parental care. She accepts that it is in the best interests of P to remain in the care of Mr and Mrs A. Mr and Mrs A have accepted an adoption plan which provides for regular contact between P and Ms C.

3 Ms C says that the Court, in accordance with s 90(3) of the Adoption Act 2000 (NSW), should not make an adoption order because the Court cannot be satisfied that an adoption order would be clearly preferable, in the best interests of P, than an order under s 92 declaring P to be under the parental responsibility of Mr and Mrs A.

Facts

4 P was born in December 2001. At birth he had severe kidney damage. Ms C, who has a mild intellectual disability, was not able to look after him. On his discharge from hospital after birth, P was placed in foster care by the Department with Mr and Mrs A. P has remained in their care ever since. He is now nine years old.

5 There is no question that P feels very loved and secure in Mr and Mrs A's family. They have two other children who have accepted him willingly and lovingly as their brother and he, in turn, is very attached to them.

6 P has recently been diagnosed with Asperger's Syndrome, and he is developmentally slightly delayed. Nevertheless, he is in mainstream schooling, with additional assistance, and is doing well. P has thrived in Mr and Mrs A's care, as Ms C accepts, and he identifies as part of their family, even though he knows that Ms C is his biological mother.

7 There is no question about Mr and Mrs A's suitability to become P's adoptive parents. However, Ms C cannot bring herself to consent to P's adoption. Very understandably for any mother, she does not wish P to grow up thinking that she surrendered him easily because she did not love him. It is, of course, quite clear that Ms C loves P very much, and because she does love him she realises that it is in his best interests that Mr and Mrs A continue to look after him, although, she says, not as his adoptive parents.

8 I have, of course, had regard to the relevant matters to which the Court's attention is directed by s 8 of the Adoption Act. The only contested question for decision, however, is whether it is in P's best interests to make an adoption order rather than a parental responsibility order.

Consideration

9 Ms Ward of Counsel, who appears for Ms C and has argued the case most ably and cogently on her behalf, submits that the Court cannot be satisfied that an adoption order is best for P. She emphasises the fundamental bond between parent and child, which should be broken only as a last resort. She urges that it is the duty of the applicant to satisfy the Court – and to a high degree of satisfaction – that that fundamental bond must be broken in this case.

10 Ms Ward submits that the only evidence in support of adoption as the best outcome for P is that of Ms Wyles, and she says that that evidence does not go far enough, nor is it persuasive enough. Ms Ward says that Ms Wyles' evidence is largely speculative and generalised in nature.

11 Notwithstanding Ms Ward's submissions, I have come to the conclusion that I should accept the evidence of Ms Wyles. Ms Wyles is a very experienced social worker, who has been working with P, Mr and Mrs A and Ms C for some five years now and she, therefore, has a deep knowledge of their situation. Of particular significance is that Ms Wyles has had extensive experience in working with children who have Asperger's Syndrome, so that she is well qualified to speak of P's particular position and needs. I found her evidence balanced and fair. I did not gain the impression that she was an advocate for anyone but P.

12 Ms Wyles is strongly of the view that an adoption order is preferable in P's best interests to a parental responsibility order. She says that children, as they grow up, very much want permanency in their attachment to, and identification with, their families. She says that they do not wish their identities as children of their parents to be questioned, such as if their family names, as shown in their birth certificates, differ from the family names of those whom they regard as their parents. They do not want to feel different in this regard from children who are living with their own birth families. Ms Wyles makes these observations about children generally but she is confident that they apply with particular emphasis to P.

Conclusion

13 I accept that it is likely that, as P grows up, he will feel an acute need for permanence, security and unquestioned identity. Already he is made extremely anxious by change or uncertainty, which Ms Wyles says is a particular symptom of Asperger’s Syndrome. To have his identity questioned, for example whenever his birth certificate needs to be produced, would be particularly disturbing for him. An adoption order, but not a parental responsibility order, would give him exactly the same status in law, and for all purposes, as Mr and Mrs A’s other children.

14 I am of the view that, having regard to all of the circumstances of P's case, it is clearly preferable, in his best interests, that an adoption order be made, rather than an order for parental responsibility under s 92 of the Act.

15 I have great sympathy for the grief which Ms C will inevitably feel when an adoption order is made, but I am sure that she will realise that the decision has been made after careful consideration of what is in P's best interests, now and for the rest of his life. I wish, particularly, to commend Ms C for her courage in being able to cope so well with a very sad and distressing experience in these adoption proceedings. Later in life I am sure P will come to understand and admire her for what she has done out of love for him.

16 I wish to commend also the unwavering support which has been given to Ms C throughout these proceedings by her partner, who has been in Court with her throughout the case. I commend him also for his devotion and commitment.

17 I will make consent dispense orders and an adoption order as sought as soon as an adoption plan is provided which incorporates the agreements which the parties have reached. I will also make an additional order under s 50 of the Act for the registration of the plan, as sought in Ms Ward's draft order. The Short Minutes of Order and the amended adoption plan should be sent to my Associate as soon as possible. I will make the orders in Chambers.

18 Finally, I wish to thank most sincerely both Counsel for the sensitivity and the care with which they have presented this case – in particular in this regard, Ms Ward. I have benefited greatly from their assistance. I wish also to thank Ms C's guardian ad litem and the solicitors and social workers who have so carefully and sympathetically prepared and presented the case.

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