Adoption of Hampton‑Morgan

[2018] NSWSC 2007

Supreme Court

New South Wales

Medium Neutral Citation:

Adoption of Hampton‑Morgan [2018] NSWSC 2007

Hearing dates:

9 and 10 August 2018 (Broken Hill)

Date of orders:

10 August 2018

Decision date:

10 August 2018

Jurisdiction:

Equity - Adoptions List

Before:

Brereton J

Decision:

Orders dispensing with the consent of the birth mother and birth father; for the adoption of the child; approving surname and forenames on adoption, and registering the paternal adoption plan.

Catchwords:

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether consent of birth parents ought to be dispensed with – where child in care of approved carers with whom she has an established relationship – held, in child’s best interests to make consent dispense order so as to allow adoption order to be made.

 

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – importance of birth family contact in mitigating risks of identity issues potentially associated with adoption.

 

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicants are approved carers with whom child has an established relationship – where Children’s Court has allocated parental responsibility to Minister to age 18 – where adoption would promote child’s best interests and is clearly preferable to any other order that could be made with respect to care of child – held, in child’s best interests to make consent dispense orders so as to permit adoption order to be made.

  FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive parents’ surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former surnames as middle names is in child’s interests as means of preserving the child’s identity.

Legislation Cited:

(NSW) Adoption Act 2000, s 8, s 23, s 28, s 50, s 67(1)(d), s 90
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90

Cases Cited:

Adoption of SRB, CJB and RDB [2014] NSWSC 138
Adoption of Hogarth [2017] NSWSC 1861

Texts Cited:

Bohman M & Sigvardsson S (1990) ‘Outcome in Adoption: Lessons from Longitudinal Studies’ in The Psychology of Adoption, eds Brodzinksy D M & Schechter M D, pp 93-106
Brodzinksy D M (1993), ‘Long-Term Outcomes in Adoption’, The Future of Children, 3(1): 153‑166
Holloway J S (1997), ‘Outcome in Placements for Adoption or Long Term Fostering’, Archives of Disease in Childhood, 76(3): 227-230
Rushton A, Treseder J & Quinton D (1995), ‘An Eight‑Year Prospective Study of Older Boys Placed in Permanent Substitute Families: A Research Note’, Journal of Child Psychology and Psychiatry, 36(4): 687‑695
Triseliotis J (2002), ‘Long-Term Foster Care or Adoption? The Evidence Examined’, Child and Family Social Work, 7(1): 23-33
Vinnerljung B & Hjern A (2011), ‘Cognitive, Educational and Self-Support Outcomes of Long-Term Foster Care Versus Adoption: A Swedish National Cohort Study’, Children and Youth Services Review, 33(10): 1902-1910

Category:

Principal judgment

Parties:

Secretary, Department of Family and Community Services (plaintiff)
Mr Warwick Hampton (in person) (defendant)

Representation:

Counsel:
Mr C McGorey (plaintiff)

  Solicitors:
Crown Solicitor’s Office (plaintiff)

File Number(s):

A126/2017

Judgment – EX TEMPORE

1. The child whose best interests are at the forefront of these adoption proceedings, Jill Lorna Hampton‑Morgan born on 4 August 2009 and now just nine years of age, is much loved – by her birth parents, the defendant, Warwick Hampton and his ex‑partner Charlotte Morgan and their extended family members, and by her foster parents Andrew and Michaela Prentice, with whom she has resided since she was 16 days old, with the exception of a period of about five weeks between 7 October and 21 November 2011 when she was restored to her birth parents. In the course of this judgment I will, without intending any undue familiarity, refer to the parties for the sake of convenience by their first names. [1]

   1. In the published version of this judgment, in order to protect the privacy of the parties and their children while remaining readable, pseudonyms which will be recognisable to the parties have been substituted for their names.

2. Litigation is often contested between parties fuelled by spite and malice; family litigation, particularly so.  This is not such a case.  The contesting interests in these proceedings both come to the Court full of goodwill for each other, to advance what they perceive to be the best interests of Jill.  That they have different views as to what ultimately is in Jill's best interest in this context is not surprising, and not a matter for the slightest criticism.  It is to resolve contests of that kind that courts exist, and resolving contests between people of goodwill about their children is one of the Court's most difficult functions.

3. No one proposes that Jill's current living arrangements with Andrew and Michaela change.  Her birth parents have not consented to her adoption.  However Warwick, without consenting to adoption, has participated in the negotiation and agreement of an adoption plan which specifies the contact arrangements in the event that an adoption order be made, which contact plan all propose be registered in that event, so that it would be enforceable as an order of the Court.

4. Warwick filed an appearance and was joined as a defendant, and has appeared to oppose the adoption order.  Charlotte also has not consented, but has not appeared in the proceedings and has not participated in them.

5. The principles which govern whether and when an adoption order should be made are well established.  The Court cannot make an adoption order unless satisfied that it would be clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child. [2] In considering that question, the Court is required to have regard to the best interests of the child, both in childhood and in later life as a paramount consideration. [3]   In determining what is in the child's best interests, the Court is required to take into account any wishes expressed by the child; her age, maturity, level of understanding, gender, background and family relationships and any other relevant characteristics; her physical, emotional and educational needs; any wishes expressed by the birth parents; the child's relationship with her parents and siblings and other significant people; the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, and the nature of the child's relationship with each of them; the suitability and capacity of the proposed adoptive parents to provide for the needs of the child; and the alternatives to the making of an adoption order.

   2. (NSW) Adoption Act 2000, s 90(3).

   3. (NSW) Adoption Act 2000, s 8(1)(a).

6. Because neither of Jill's birth parents consents to an adoption, an adoption order can be made only if their consents are dispensed with.  Relevantly, consent can be dispensed with only if the Court is satisfied that the adoption application is made on behalf of persons who are authorised carers for the child, the child has established a stable relationship with them and the adoption of the child by those carers will promote the child's welfare. [4]

   4. (NSW) Adoption Act 2000, s 67(1)(d).

7. There is no issue in these proceedings about the formalities or the legal preconditions for making an adoption order, to which I shall come in due course, but all of which are plainly satisfied.  Although, in theory at least, the Court has to decide first whether or not to make a consent dispense order; secondly, whether or not to make an adoption order; thirdly, if an adoption order is made, what name the child should have following adoption; and fourthly, what provisions ought to be made for birth parent contact; there is really only one issue.

8. As I have said, Warwick has, without consenting to an adoption order, entered into and executed a paternal adoption plan which provides for ongoing contact in the event that an adoption order is made.  There is also a maternal adoption plan – although it has not been agreed to by Charlotte – which provides for ongoing contact with her.  In that way, the arrangements for birth parent contact have ceased to be an issue about which the Court need be troubled.

9. Next, although when adoption was first mooted, there was a suggestion that the birth parents might make application under s 90 of the Children and Young Persons (Care and Protection) Act with a view to seeking restoration of Jill to their care, Warwick's position is now – as it has been since before the preliminary hearing – that it is in her best interests to remain in the care of and resident with the Prentices.  Plus, the issue as ultimately tendered for decision is whether Jill, who will, in any event, continue for the foreseeable future, to reside with and in the care of the Prentices, should do so under the legal construct of the status quo, being foster care with the Minister having parental responsibility or under the legal construct of adoption or, perhaps, under a parental responsibility order in favour of the Prentices.

10. While Warwick was not enthusiastic about any change of name, he recognised that Jill was keen to have the surname Prentice, and proposed that she have the surname Hampton‑Morgan‑Prentice.  As one of the features of adoption is that it makes a child a permanent and full member of the adoptive family, and one of the most obvious indicators of that is the assumption of the adoptive family's surname, it would not be consistent to make an adoption order on the one hand, without the associated change of surname on the other.  So, as it seems to me, if I come to the conclusion that adoption is in her best interests because it cements permanently her membership of the Prentice family, then it would be inconceivable that such an order would be made without also giving her the surname of that family.  So, as it seems to me, the name question largely turns on whether or not an adoption order is to be made, although I do not overlook that there would remain a question to be resolved whether that should be a change of the surname to “Prentice” alone, or to “Hampton‑Morgan‑Prentice”.

11. Similarly, so far as the consent dispense order is concerned, there is no dispute that the relevant preconditions under s 67(1)(d) of the Adoption Act in terms of the application being made by carers with whom the child has an established relationship of the requisite parent are satisfied, and the only question is whether it is in Jill's best interests that a consent dispense order be made.  If it is in her best interests that an adoption order be made, it follows that it must be in her best interests that a consent dispense order be made to permit her to be adopted.

12. The purpose of that preface is simply to indicate that there is in this case really only one decisive issue, namely, whether – in the context that Jill is in any event to remain residing with and in the care of the Prentices and is going to have ongoing contact with her birth parents and birth siblings in accordance with the proposed adoption plans – adoption is clearly preferable, in her best interests, to foster care, whether under a parental responsibility order in favour of the Prentices or the status quo in which the Minister has parental responsibility.

13. As I will emphasise at a later stage, these proceedings are essentially about the future and not about the past.  However, it is necessary to say something about the background to understand the quality of the present status quo so far as it affects Jill.

14. Warwick was born on 2 July 1975 and Charlotte on 7 August 1985.  Charlotte has a child, Nikole, of a previous relationship, who was born on 6 September 2002.  Nikole was removed from her parents' care on 3 December 2006, on account of reports of exposure to domestic violence between the parents, drug use by Charlotte and non‑compliance by Charlotte with medication for epilepsy.  On 6 June 2007, final orders were made in the Broken Hill Local Court giving parental responsibility for Nikole to the Minister until 18.  She was placed in the care of her maternal grandmother, Anita Mary Morgan.

15. The birth parents together have a previous child, Harriett, born on 30 October 2007, who was assumed into care on 9 November 2007 on account of reports of domestic violence between the parents, substance abuse and non‑compliance with medication by Charlotte, and suicidal ideation on the part of Charlotte. On 18 February 2008, an order was made giving parental responsibility for Harriett to the Minister until the age of 18.  She was initially placed with foster carers, but now resides with her maternal grandmother, Anita Mary Morgan.

16. Jill was removed from her parents' care on 14 August 2009, only a few days after her birth, notwithstanding evidence of considerable efforts of her birth parents to demonstrate changes in their lifestyle and improvements in their parenting capacity.  Prior to her birth, they were engaged with up to six service providers and agencies to help them address the shortcomings in their parenting capacity, were attending relationship counselling, ceased using alcohol and drugs, and Charlotte was compliant in taking her prescription drugs and seeking counselling for depression.  Nonetheless, Family and Community Services (FACS) were of the view that Jill remained at risk of harm in their care.  On 17 August 2009, an interim order giving parental responsibility for her to the Minister until further order was made in the Broken Hill Children's Court. Jill was placed with Andrew and Michaela on 20 August 2009, when she was 16 days old. 

17. On 12 February 2010, an order was made in the Broken Hill Children's Court giving parental responsibility to the Minister for two years. The associated care plan had as its objective, restoration of Jill to her birth parents, with a transition over the period of the two year order.  Some issues in the course of that period, particularly concerning Charlotte's parenting capacity, resulted in FACS determining that Jill’s father Warwick should be the primary caregiver.  Notwithstanding some ongoing difficulties, the birth parents completed extensive programmes in order to improve their parenting capacity, and made significant progress.  Contact with them increased over the third quarter of 2011, and on 17 October 2011, Jill was restored to their care. 

18. However, a risk of harm report on 20 November 2011 resulted in Jill returning to the foster carers on 21 November of that year. She has remained in their care ever since. On 28 November 2011, the Department applied under s 90 of the Children and Young Persons (Care and Protection) Act for rescission of the previous order and ultimately, on 12 October 2012, final orders were made in the Broken Hill Children's Court giving parental responsibility for her to the Minister until the age of 18.

19. Contact with the birth parents thereafter was supervised by FACS and reduced to monthly face-to-face contacts for two hours.  During those occasions, Warwick provided most of the care for Jill, as Charlotte struggled with interaction with the children, especially with Nikole and Harriett.  By March 2014, Jill was demonstrating some reactive behaviour.  Over 2014 and 2015, there was contact every second month, for two hour periods.  By this time, contact was supervised by Andrew and Michaela.  Jill’s father Warwick was observed to interact well with her, but her mother Charlotte less so.  During this period there were also some issues with the maternal grandmother Anita Mary Morgan.

20. An agreement which sought to regulate behaviour on contact occasions was established in June 2016.  It addressed disciplining the children, activities for contact, continued supervision of contact, attendance at contact, drug and alcohol use, mentorship of the parents and presentation and behaviour at contact, including the manner in which the very difficult relationship between the mother and the maternal grandmother was impacting on everyone else. Following this, during 2017, contact was reported as being generally positive. 

21. Currently, Jill has contact six times a year with her birth parents, supervised at first by Lifestyle Solutions and attended by the foster parents.  Michaela maintains contact with Charlotte by Facebook, and with Warwick by telephone and text.  Jill's birth sisters attend contact and she also has contact with them on a monthly basis, which includes the maternal grandmother.  There are frequent communications between Michaela and the maternal grandmother, and a good relationship between Michaela and Andrew on the one hand, and Warwick and the paternal grandmother on the other.

22. Warwick and Charlotte separated in late 2017, and Warwick now has the sole care of a further child of that relationship, Charles, who was born on 25 July 2017 and is thus now just over 12 months old.  This is an important demonstration of his present parenting capacity and of the significant advances he has made in that field.

23. As to the proposed adoptive parents, Andrew is an acting senior support manager at the Broken Hill Community Service Centre, and Michaela a part‑time community carer for the aged who is also studying nursing.  Andrew was born on 23 November 1971 and Michaela on 23 April 1977.  They were married in 2000, Michaela having been divorced in 1999 after a previous short marriage of two years.  They have resided together in their Broken Hill home for 15 years.  Their referees describe a couple that is community-minded, and in a strong and stable relationship.  They are experienced parents, with three children: Kym and Tiah, twins born on 28 January 2002, and Arabella born on 15 October 2004.

24. Jill has developed very well in their care, and they are responsive to her needs and proactive in addressing them.  This is illustrated, for example, by attending to regular health check‑ups, to their proactive response in arranging for her to change schools when they considered that she was not receiving sufficient attention at a previous school, and the conjunction of that change of schools with a good friend of Jill changing at the same time.  Jill is reported to be functioning at an age appropriate level.  She has appropriate social and cultural interests and activities, including St Johns Ambulance and scouts.

25. Given the duration of her stay in the Prentice family, she is, naturally enough, viewed as a natural sibling by Andrew and Michaela’s biological children, with whom she has strong relationships, particularly Arabella.  Her restoration to the birth parents was a significant stressor, not only for Andrew and Michaela, but also for their children.  No one is in the slightest critical of Andrew and Michaela's care of Jill; indeed, Warwick has said that he cannot fault it and that he really likes them.

26. On 20 February 2015, they undertook a preparation for adoption seminar, which addressed the differences between parenting in an out‑of‑home care context and adoption, and the notion of open adoption.  Their commitment to the inclusion of Jill's birth parents in their life is demonstrated in many ways, including the life story work they have undertaken with Jill, the inclusion of Warwick in significant life events for Jill, and the maintenance of Jill's birth certificate framed in a prominent place in their house – which if an adoption order is to be made will be accompanied, but not replaced, by her adoptive birth certificate.

27. When asked by the s 91 reporter about how they had coped with the five weeks in 2011 when Jill was restored to the birth parents, Michaela described that she had been devastated, but had understood that was important for Jill to be with her family and not in care, and that despite her feelings of loss she had really hoped that it would work out.  It was at that point that she bought a horse and became involved in pony club with the other children, not only as a distraction for herself, but also for her children who were also suffering from the loss of Jill.

1. Michaela and Andrew have demonstrated a commitment to a relationship with Jill’s birth family that goes beyond the minimum obligations imposed by orders and agreements and actively embraces the relationship.  As a result, the Prentices have good relationship with both Jill’s grandmothers, and particularly with Warwick, his mother and also his sisters.

2. Through all that, Warwick in particular has remained committed to Jill, and has taken every appropriate opportunity to be involved in her life through exercising the opportunities that have been given to him for contact.  He has demonstrated his commitment, not only by the efforts he has made to improve his parenting capacity, but also by his acknowledgment of the fine quality of the parenting that the children are receiving from the Prentices, and by his acceptance that it is in Jill's interests to continue to reside with them.  His opposition to an adoption order and his proposal as to her name consequent upon adoption is further demonstration of his commitment to an ongoing legal and formal link with Jill. 

3. If this case were about recognising his efforts and his improved parenting skills, I would not make an adoption order, but, as I have foreshadowed, these cases are not about the past, the circumstances that resulted in the child's removal when it happened, or the changes that may have been made since.  This Court has to address the situation that presents now, with Jill having lived with the Prentices for virtually the whole of her life and where there is no proposal for that to change – although that comment should not be taken as any suggestion that a proposal that she reside anywhere else would have had any traction; to the contrary, it would, as Warwick rightly acknowledges, be contrary to Jill's interests to disrupt a longstanding placement in which she is obviously doing well.

4. So, what this Court has to decide now is, given that situation, what arrangements for Jill's future will best serve her interests?  The status quo and the time in which it has been in place are relevant to that, but the particular situations which caused or contributed to it coming about are now of little relevance.

5. Andrew and Michaela propose that Jill will continue to reside with them and their other children in their five‑bedroom Broken Hill home, in which each child has his or her own room.  They have no intention of moving from Broken Hill.  Jill is currently being educated at a Catholic primary school in a nonreligious category, and it is intended that she would proceed to high school in Broken Hill.  Andrew and Michaela would support her proceeding to tertiary education, if that turns out to be appropriate.  They propose that she continue to have contact with her birth parents in accordance with the proposed adoption plans – which provide, essentially, for face-to-face contact every second month with the birth parents, by telephone in intervening months, and, at least in Warwick's case, progressing, gradually and cautiously, to unsupervised contact and overnight contact.  They proposed that if an adoption order be made, Jill have their surname “Prentice”, and the forenames, “Jill Lorna Hampton Morgan”.

6. Warwick's position was encapsulated in what he told the Court at the preliminary hearing, as follows:

I just wanted to say, just like I have already stated in my affidavit, I have no intentions of wanting Jill to be removed from the Prentice family.  That would be too disruptive on her, as much that hurts me to say that, because I really love my daughter and I would really love to have her home, but I would not disrupt her life in that way.  As far as I'm concerned, I would like her to remain with the Prentice family because they are very, very upstanding and loving and supporting towards Jill.  I don't want that to change, but I don't think that adoption should be for her.  She should remain there until the time that she wants to move out of home.

34. A little later, he added:

My reasons for it, that is for opposing adoption, is because I'm Jill's father and pretty much what I've already said, how much I care for and I do love her.  I know I've wronged in the past and I wasn't in the right frame of mind to do this, what I can now for her, but I still do believe that she needs to stay where she is, yes.

35. He said that he did not believe adoption to be necessary:

… because I believe in myself that Jill is already a full part of the Prentice family because she has been there since birth, a few weeks after her birth and having an adoption to change her last name so that it has Prentice at the end, I don't think it's, like, necessary, because she is already a part of that family.

36. In his affidavit, and recognising that the adoption assessment report said that Jill was excited to have the same last name as Andrew and Michaela's other children, he said:

I want her to be happy and to feel part of Andrew and Michaela's family, however, it is so hard for me to even think about changing her last name to Prentice.  I know that this is not the intention, but it does make me feel like I am being erased from Jill's life somehow.

37. As I have foreshadowed, no doubt with that in mind, he proposed at this hearing that Jill's surname in the event an adoption order be made be “Hampton‑Morgan‑Prentice”, and I shall return to that question. As I have also already foreshadowed, Warwick has agreed to an adoption plan which specifies the contact that would take place in the event of an adoption order being made, and which contact plan it is proposed be registered.

38. I shall touch briefly on the formal requirements, which as I have said are uncontroversial.  Jill was present in New South Wales when the summons was filed,[5] and the proposed adoptive parents Michaela and Andrew are domiciled in New South Wales,[6] where they have resided together for well in excess of the two year minimum referred to in the Act. [7]   The evidence of their referees establishes that they are of good repute, and fit and proper to be adoptive parents. [8]   Each of them is over the age of 21, and more than 18 years older than Jill. [9]   They have been approved as authorised carers, selected in accordance with the Act, cleared in working with children checks, and have received specific approvals as fit and proper persons to adopt Jill. The consent of the Minister's delegate was given on 12 May 2017. The only consents which are required and have not been given are those of the birth parents Warwick and Charlotte. Notice of the intention to seek a consent dispense order and adoption order was served on Charlotte on 1 September 2017.  As I have mentioned, she has not appeared in the proceedings.  Notice was also served on Warwick on 1 September 2017.  He filed a notice of appearance on 11 September (and, subsequently, an affidavit on 23 January 2018), gave evidence at the preliminary hearing on 30 January, and has appeared at this final hearing.

    5. (NSW) Adoption Act 2000, s 23(2)(a).

    6. (NSW) Adoption Act 2000, s 23(2)(b).

    7. (NSW) Adoption Act 2000, s 28(4).

    8. (NSW) Adoption Act 2000, s 28(1)(a).

    9. (NSW) Adoption Act 2000, s 28(3)(a).

39. I turn then to the central question, which is whether adoption is clearly preferable to any other action that can be taken by law in relation to Jill's care, having regard to her interests.  In answering that question, general background is provided by the social science and earlier decided cases. 

40. The concept of permanency planning in the care of children who cannot be cared for by their birth parents was developed as a response to problems encountered by children in out of home care and addressed, in particular, three interrelated issues – relationships, identity and sense of belonging – in order to promote two essential and related elements of personal wellbeing: the first being a sense of permanence and stability, and the second a sense of personal and cultural identity.

41. As I have mentioned in other cases,[10] research on outcomes of children in out of home care and adopted families has consistently pointed to adoption having advantages over long‑term placements in foster care. [11]   There are higher rates of placement breakdown in long‑term foster placements than in adoptions. [12]   Adopted children report a greater sense of security and belonging and less uncertainty about the impermanence of their situation, and less ambiguity of their position and less anxiety. [13] A Swedish study of 900 adoptees and 3,100 children who grew up in foster care showed foster children to fall short of adoptees on all outcomes, namely school performance at 15, cognitive competence at 18, and educational advancement and self‑support capabilities in young adulthood. [14]   Another study showed children who were in foster care had two to three times more maladjustment at age 18 than a control group and an adopted group. [15]

    10. See for example Adoption of SRB, CJB and RDB [2014] NSWSC 138 at [54]-[59]; Adoption of Hogarth [2017] NSWSC 1861 at [15]-[18].

    11. For example, Triseliotis J (2002), ‘Long-Term Foster Care or Adoption? The Evidence Examined’, Child and Family Social Work, 7(1): 23-33; Brodzinksy D M (1993), ‘Long-Term Outcomes in Adoption’, The Future of Children, 3(1): 153‑166.

    12. See, for example, Rushton A, Treseder J & Quinton D (1995), ‘An Eight‑Year Prospective Study of Older Boys Placed in Permanent Substitute Families: A Research Note’, Journal of Child Psychology and Psychiatry, 36(4): 687‑695; Holloway J S (1997), ‘Outcome in Placements for Adoption or Long Term Fostering’, Archives of Disease in Childhood, 76(3): 227-230.

    13. Triseliotis J (2002), ‘Long-Term Foster Care or Adoption? The Evidence Examined’, Child and Family Social Work, 7(1): 23-33.

    14. Vinnerljung B & Hjern A (2011), ‘Cognitive, Educational and Self-Support Outcomes of Long-Term Foster Care Versus Adoption: A Swedish National Cohort Study’, Children and Youth Services Review, 33(10): 1902-1910.

    15. Bohman M & Sigvardsson S (1990) ‘Outcome in Adoption: Lessons from Longitudinal Studies’ in The Psychology of Adoption, eds Brodzinksy D M & Schechter M D, pp 93-106.

42. The research literature supports the view that adoptive parents tend to persevere more than foster parents when difficulties arise; that adopted children experience an increased sense of belonging and family ownership which, in turn, enhances their security and self‑esteem; and that taking those strands together, adoption enhances the commitment of the foster parents and the security of the child, together contributing to the development of stronger and more enduring bonds of attachment. [16]   Even when very long‑term fostering survives, the children feel less secure and have a weaker sense of belonging, compared with those who have been adopted.  The explanation for that is, in my view, likely to be found in the circumstance that however stable a foster care relationship may be, the child is not a formal, complete member of the foster family and is not a member of that family for life; whereas if adopted, the child becomes legally a full and complete member of the family with which she or he is living, and does so forever. While these conclusions are not to be applied willy‑nilly to every case, they provide a useful basis and social science for supposing that where the choice is between adoption and long‑term foster care, in general, adoption may be regarded as offering positive advantages for a child over long‑term foster care, being associated with superior outcomes in all domains of life.

    16. See Adoption of SRB, CJB and RDB [2014] NSWSC 138 at [54]-[59].

43. One of the factors which I must consider is the wishes of the child.  While Jill has appropriately not been directly asked a question as to what she wishes so far as adoption is concerned, there are a number of powerful indicators of what her wishes are.  First, it is clear that she was distressed by the restoration in 2011, and relieved to be returned to the Prentices.  The evidence is that when she was returned, Jill got out of the car and ran straight to Michaela crying, "Where are you been?"  Next, it is clear that Jill sees herself as part of the Prentice family, and has expressed excitement at having the same surname as the other children in that family.  It is also clear that she likes the home in which she lives, and she calls her foster parents mummy and daddy.  That she has said that she is excited at the prospect of being "a real Prentice", and to have the same name as her sisters and brothers, is a significant indicator of how she identifies.  At the same time, she knows her birth parents well, and she knows that they are her birth parents; but, in my view, she identifies primarily as a member of the Prentice family, and it is implicit in her statements, to which I have referred, that she wishes to be a full and legal member of that family.

44. Where the parties to an adoption have agreed to an adoption plan, the Court cannot make an adoption order unless satisfied that the arrangements proposed in the plan are in the child's best interests and proper in the circumstances. [17]   As I have said, there are, in the light of the breakdown of the relationship between Warwick and Charlotte, two proposed adoption plans, one paternal and one maternal.  Both provide for face-to-face contact in alternate months, and telephone contact in the "off" months.  They also provide a framework, at least in Warwick's case, for progressing, carefully, to unsupervised and overnight contact.  And they also provide for contact by telephone and social media as that becomes age appropriate for Jill.  It is also clear that contact has not been and will not be limited to the formal minimum provided for by those plans; Warwick in particular has been invited to and has appropriately participated in a number of important life events for Jill, additional to what is provided for by the formal contact arrangements. I am satisfied that the arrangements proposed in both adoption plans are in Jill's best interests and proper in the circumstances.  I am satisfied that the parties to the adoption understand the provisions of the plans and have freely entered into them, and I am satisfied that they do not contravene the adoption principles.  Accordingly, the conditions for registration of the paternal adoption plan are also satisfied.

    17. (NSW) Adoption Act 2000, s 90(2).

45. Turning then to the competing advantages and disadvantages of adoption in this case, adoption offers the advantages that it will bring Jill's legal relationship and status into conformity with the practical realities of the situation.  Those who are, in fact, performing the role of her parents – namely, Andrew and Michaela – would be her legal parents.  Jill would no longer be in so called out‑of‑home care – or in the older terminology, which sometimes still carries a stigma, have the status of a State ward – rather, she would be in “in‑home” care with a permanent family.  The Department would have no further involvement and Andrew and Michaela would be enabled to make all necessary decisions about her welfare, when they plainly have the capacity, and are the best positioned persons, to make those decisions.

46. Adoption would give Jill a sense of permanence and certainty which, in the light of the disruption to her arrangements in 2011, is of accentuated significance.  It would give her full membership of the family with which she not only lives but with which she primarily identifies, and place her on an entirely equal legal footing with the other Prentice children. And it would make her a member of that family for life – an outcome which no other measure that can be taken by law in respect of her care can achieve.  It would also afford her the general benefits of adoption (over foster care) illustrated by the literature and the research to which I have already referred.

47. Against that, the principal disadvantage is that adoption would sever the legal relationship between Jill and her birth parents and her birth siblings. 

48. The potential impact of an adoption order in this respect is not limited to the birth parents, but also extends to her birth family siblings, Nikole, Harriett and now Charles.  An adoption order would sever the legal sibling relationship between them, and the children would have different family names.  It is, no doubt, in Jill's interests to sustain a relationship with her birth siblings, but, at the same time, without understating the importance of such a relationship, there needs to be some recognition of the reality. The four children currently reside, and will continue to reside, in three different placements: Jill with the Prentices, Nikole and Harriett with their maternal grandmother, and Charles with Warwick.  They have never lived together.  As I have previously observed, making an adoption order is not inconsistent with sustaining a child's birth family relationships.  Children cope with all manner of different families and multiple families, and in the context of an open adoption, the personal relationship between siblings can continue, regardless of the severance of the legal relationship.

49. In this case, the continuation of that personal relationship will be underwritten by a registered adoption plan, and the siblings will still grow up with those personal relationships intact, although they are in different care situations.  While the legal relationship of parent and child will be severed as between Warwick and Charlotte on the one hand, and Jill on the other, the psychological and emotional relationship will continue – reinforced, as I have said, by the adoption plan.  Andrew and Michaela have demonstrated a strong commitment to ensuring that that happens.  The relationship with both grandmothers is further reinforcement of that.

50. Moreover, although I do not give it enormous weight, the maternal grandmother has indicated her support for adoption, and Nikole and Harriett are also shown by the evidence to be supportive of adoption for Jill.

51. The s 91 reporter Penelope Haskins observes in her report that:

Jill has been with the Prentice family since she was 16 days of age, apart from a six‑week period when she had just turned two.  She is an integral part of the family and Andrew and Michaela are the only parents she has known.  She has developed into an articulate, warm and sociable little girl who demonstrates a loving attachment to both Andrew and Michaela and to her foster siblings, Kym, Tiah and Arabella.

52. Ms Haskins observes that Andrew and Michaela are nurturing, creative, compassionate and very loving parents, who have diligently worked towards building relationships with Jill’s birth siblings and her grandmother Anita Mary, and who have promoted as warm a relationship as possible with her birth parents Warwick and Charlotte.  She observes that Jill understands her history, and that while Andrew and Michaela try to normalise her life as much as possible, adoption would mean that they have less situations where Jill may feel different to the other children, and that Jill would know now and in the future that Andrew and Michaela have an absolute commitment to her, and that she could never be removed from the family with which she identifies.

53. Ms Haskins concludes:

It is my professional opinion that Andrew and Michaela have built a wonderfully warm, nurturing, creative and loving parental relationship with Jill and in their care, she has developed into a delightful girl who is funny, energetic, loving, sociable and strong‑minded.  Andrew and Michaela have demonstrated their capacity to meet all Jill’s health, social, educational and identity needs within their family unit, as well as a commitment to supporting the development of positive relationship with Jill’s birth parents.  They have forged strong and affectionate ties with Nikole, Harriett and Anita Mary.  They are slowly and steadily developing positive and beneficial relationships with Warwick and Charlotte.  While an adoption order will sever the legal relationship between Jill and her half‑siblings and any emotional relationships she has with them will remain and will be actively supported by Andrew and Michaela.  It is clear to me that Jill’s best interests will be served by the making of an adoption order.  In every respect a placement with Andrew and Michaela is positive and appropriate and they absolutely adore her and they are certainly the people who know her the best and are, therefore, are best placed to make decisions for and with her in the future.

54. To my mind, in this case, the question really reduces to which outcome would accord better with how Jill identifies.  As I have said, I think she identifies more as a Prentice than as a Hampton‑Morgan.  Adoption would enable all strands in her heritage to continue to be reflected in her future. On any view – whichever of the competing views about her name I accede to – all those contributing strands would be reflected in her retention of the names “Hampton” and “Morgan”, as well as the assumption of “Prentice” as a family name.

55. For those reasons, I am persuaded that the benefits of complete membership of the family with which she will, on any view, continue to reside and with which she primarily identifies, in a context in which a relationship with her birth family is plainly supported by the Prentices and will be underwritten by a registered adoption plan, clearly outweigh the advantages of a parental responsibility order, and even more clearly those of the status quo.  While a parental responsibility order would afford some of the benefits of adoption, its essential shortfall is that it would not provide complete and permanent membership of the family in which Jill resides and with which she primarily identifies. Nor would it bring Jill's legal status into alignment with the reality of her life in which, on any view, it will be the Prentices who are primarily performing the functions of her parents.  I am, therefore, satisfied that adoption is, in the circumstances, clearly preferable to any alternative course that could be taken by law in respect of Jill's care.

56. For that reason – the other conditions for dispensing with parental consent being satisfied – I am also satisfied that it is in Jill's interests to dispense with the consent of her birth parents to her adoption.

57. I turn finally to the question of Jill's surname, which I have found a little troubling.  Everyone agrees that Jill should retain the names Hampton and Morgan as forenames, if not as part of her surname.  The question really is which is to be her formal family name.  In part, the question becomes one of practicality.  One of the benefits of adoption, as I have said, is to give Jill equivalent status as the other children in the Prentice family.  If her surname begins with H and theirs with P, that will not be the position.  Moreover, while it is easy for parents – and Courts – to visit complex names on children, I am not at all sure that children enjoy having complex multiple hyphenated names, and Hampton‑Morgan‑Prentice would be more than a mouthful in the school roll.

58. Giving her as additional forenames “Hampton” and “Morgan”, with the surname “Prentice”, preserves for her the ability to choose for herself in the future what she uses and discloses.  Contrary to what Mr Hampton has understandably enough said, I do not see this in the slightest way as erasing him from Jill's heritage and name.  The name Hampton will be preserved as part of Jill's name – even in the event of her changing her surname, again, upon marriage – and he will continue to have a very important role in the life of the child of whose heritage he is an indelible part.

59. I have therefore concluded that the Court should make orders dispensing with the consent of the birth mother and birth father; for the adoption of Jill by Andrew and Michaela; approving as Jill's surname the name “Prentice”, and as her forenames “Jill Lorna Hampton Morgan”; and registering the paternal adoption plan.

Orders

60. The Court orders that:

1. pursuant to Adoption Act 2000, s 67(1)(d), the court dispense with the consent of the child’s birth mother, Charlotte MORGAN.

2. pursuant to Adoption Act 2000, s 67(1)(d), the court dispense with the consent of the child’s birth father, Warwick HAMPTON.

3. the child Jill Lorna HAMPTON-MORGAN be adopted by the adopting parents Andrew Julian PRENTICE and Michaela Eleanor Lawlor PRENTICE and approves the name “PRENTICE” as the surname and “Jill Lorna Hampton Morgan” as the given names of the child.

4. pursuant to Adoption Act 2000, ss 50(1) and (3), the Paternal Adoption Plan signed by Warwick HAMPTON, Andrew Julian PRENTICE, Michaela Eleanor Lawlor PRENTICE, and a delegate of the Secretary, Department of Family and Community Services, be registered.

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Endnotes

Decision last updated: 04 February 2019