Adoption of Hogarth

[2017] NSWSC 1861

Supreme Court

New South Wales

Medium Neutral Citation:

Adoption of Hogarth [2017] NSWSC 1861

Hearing dates:

23, 25 May 2017

Date of orders:

26 May 2017

Decision date:

26 May 2017

Jurisdiction:

Equity - Adoptions List

Before:

Brereton J

Decision:

Consent dispense orders made; adoption orders made; adoption plan registered.

Catchwords:

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

 

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether adoption clearly preferable to any other order that could be made with respect to care of children – where restoration to birth parents not proposed – where placement with applicants well-established and beneficial – where birth parents have remained committed to children – where limited relationship with birth siblings – where children identify with proposed adoptive family – where adoptive parents are committed to supporting birth parent contact – held, making of the adoption order clearly preferable to any other order that could be made with respect to care of children.

  FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plans – registration – where provisions are agreed between parties – held, plan registered.

Legislation Cited:

(NSW) Adoption Act 2000, s 50(3), 67(1)(d)

Cases Cited:

Adoption of JLK and CRK [2017] NSWSC 7
Adoption of SRB, CJB and RDB [2014] NSWSC 138

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)
Felicity Evelyn Hogarth (defendant)
Jackson Richard Hewitson (defendant)
Aiden James Cotter (defendant)

Representation:

Counsel:
Ms M Neville
Ms V Willoughby (solicitor)

  Solicitors:
Crown Solicitor’s Office (plaintiff)
JR Lawyers (defendant)

File Number(s):

A23/2016

Judgment (ex tempore)

1. HIS HONOUR: By summons filed on 15 March 2016 and amended on 12 May 2016 the Secretary of the Department of Family and Community Services by his delegate, the principal officer of Barnardos Australia, seeks orders in respect of the adoption of three children, Emma Dawn Hogarth born 4 March 2009, Jack Scott Hogarth born 30 April 2011 and Kane James Hogarth born 25 October 2012. From those birth dates it will be evident that the children are aged respectively 8, 6 and 4. [1]

   1. 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 in this judgment.

2. The birth mother of each of the children is Ms Felicity Evelyn Hogarth, who has been joined as a defendant. Emma’s birth father is one Mr Hewitson who is not a party to the proceedings, and has indicated that although he does not formally consent to an adoption, he does not oppose it. The birth father of Jack and Kane is Mr Aiden James Cotter, who is also a defendant to the proceedings. Ms Hogarth and Mr Cotter have two other children, Jane-Helen born 12 February 2015 and Evan born very recently, on 9 May 2017. Ms Hogarth also has children from a previous relationship who are thus maternal half siblings of Emma, Jack and Kane, namely Cary born 19 October 2002, Willis born 28 October 2003, and Jordan born 23 February 2006. As Ms Hogarth emphasises, each of the children including Evan has the surname Hogarth.

3. Cary, Willis and Jordan live in an out-of-home care placement under orders made by the Children's Court. Jane-Helen, who, as I have said, was born on 12 February 2015 and is a full sibling of Jack and Kane and a maternal half sibling of Emma, lives in permanent foster care under the case management of Barnardos and is subject to an order for parental responsibility to the Minister until she attains the age of 18 years. Evan resides with Ms Hogarth and Mr Cotter and is not the subject of any Court orders or departmental intervention.

4. Emma’s birth father has children from a previous relationship who are thus paternal half siblings to her, but it is fair to say are on the fringe of the present issues, and Mr Cotter has no children other than Jack, Kane and now Jane-Helen and Evan.

5. Emma and Jack were removed from the care of Ms Hogarth and Mr Cotter on 8 October 2012. In the way these proceedings have developed it is not necessary to delve into the circumstances which led to their removal. A few weeks later, on 25 October 2012, Kane was assumed into care shortly after his birth.

6. On 21 June 2013, the Children's Court made final orders in relation to each of the three subject children, allocating parental responsibility for each of them to the Minister until 18 years of age. Thus, in June 2013, a judgment was made by a specialist Court of competent jurisdiction that it was necessary in the interests of these children for them to be placed permanently elsewhere than with their biological parents and that there was no realistic prospect of restoration.

7. On 4 October 2013 the children were placed with the proposed adoptive parents, Mr Michael John Barrett and Ms Natalie Crystal Barrett, and have lived continuously with them since. In the case of Kane, that represents a very substantial proportion of his so far short life. In the case of Emma, at the other extreme of the three of them, she had a prior placement of which she still has some, if vague, recollections, and her disrupted early years are no doubt part of the explanation for her sometimes challenging present behaviour.

8. There is no issue in these proceedings about the formalities or the legal preconditions in making an adoption order, all of which it is accepted are satisfied. The parties have commendably focused on the real questions in dispute and, although, in theory at least, the Court has to decide:

1. whether or not to make a consent dispense order in respect of Mr Cotter and Ms Hogarth, as well as Mr Hewitson;

2. whether to make an adoption order;

3. if an adoption order is made, what name the children should have following adoption; and

4. what provisions ought to be made for birth parent contact;

those issues have practically been reduced, by the way in which the case has been conducted, to a single overarching issue, as will appear.

9. First, the Secretary and the proposed adoptive parents have entered into and executed an adoption plan, which provides for birth family contact for the children in the event that an adoption order is made. Although the birth parents have not executed the proposed adoption plan, they have been involved in its negotiation and do not press at this stage for contact beyond that which is provided for by the proposed plan, which the parties ask the Court to register, so that it will be enforceable as an order of the Court. In that way, the arrangements for birth parent contact have ceased to be an issue about which the Court need be troubled.

10. Next, although at the outset of the proceedings – and until relatively recently – the birth parents advanced a case in which they sought restoration of the children to their care, more recently their position shifted to one of apparently proposing that the status quo remain, and eventually to one that the children remain in the care of the Barretts and that there be a parental responsibility order in favour of the Barretts (rather than in favour of the Minister). Thus, the issue as ultimately tendered for decision is whether the children, who will in any event continue for the foreseeable future to live with the Barretts and in the care of the Barretts, should do so under the legal construct of a parental responsibility order, or under the legal construct of adoption.

11. Then, while the defendants opposed any change of name of the children in the event that an adoption order be made, as it seems to me that – at least in the case of a child under 18 – assumption by the child of the surname of the adoptive family is one of the features of adoption and one of its most obvious hallmarks. That is because it is a manifestation of membership of the adoptive family. If it is a benefit of adoption that it makes a child a permanent and full member of the adoptive family, then it would detract from that benefit if it were not accompanied by a change of name. So, as it seems to me, if I come to the conclusion that adoption is in the best interests of these children because it cements permanently their membership of the Barrett family, then it would be inconceivable that such an order would be made without giving them the surname of that family. Thus the name issue turns on whether or not an adoption order is to be made.

12. Finally, so far as the consent dispense order is concerned, there is no dispute that the relevant preconditions under Adoption Act, s 67(1)(d) – in terms of the application being made by authorised carers with whom the children have an established relationship – are satisfied, and the only question is whether it is in the best interests of the children that a consent dispense order be made. If it is in their best interests that an adoption order be made, it follows that it must be in their best interests that a consent dispense order be made, I order to permit an adoption order to be made notwithstanding that the birth parents do not consent.

13. The purpose of that preface is simply to indicate that there is in this case but one decisive issue: namely – in the context that the children are to remain residing with and in the care of the proposed adoptive parents and that they are to have ongoing contact with their birth parents and birth siblings in accordance with the proposed adoption plan – whether having regard to the best interests of the children, their adoption by the Barretts is clearly preferable to a parental responsibility order in their favour.

14. In answering that question, it is useful to commence from the general and move to the particular. The general background is provided by the social science and the decided cases in this territory, and the expert evidence given in this particular case by the parties' single expert Alison O'Neill, a clinical psychologist.

15. In her report, Ms O'Neill said that research on outcomes of children in out‑of‑home care and adopted families had consistently pointed to the advantages of adoption. She explained that the concept of permanency planning was developed to address the problems that children in out‑of‑home care face, and that it was concerned with three interrelated issues – relationships, identity, and a sense of belonging – with the intention of addressing two essential and related elements of personal wellbeing: the first, a sense of permanence and stability; and the second, a sense of personal and culture identity. Ms O'Neill observed that it was unsurprising that research had consistently found significant benefits for adoption over long‑term placements (referring to the work of Triseliotis [2] and Brodzinsky [3] ), there being higher rates of placement breakdown in long-term foster placements than in adoption (referring to Rushton, Treseder & Quinton [4] and Holloway [5] ). She observed that children who were adopted report a greater sense of security and belonging, less uncertainty about the impermanence of their situation, and less ambiguity of their position and less anxiety (referring to Triseliotis [6] ). She said that perhaps the most important finding was that of a Swedish study of 900 adoptees and 3,100 children who grew up in foster care, which found that fostered children fell short of adoptees on all outcomes – namely school performance at 15, cognitive competence at 18, education achievement and self-support capabilities in young adulthood; [7] similarly, children who were in foster care had two to three times' more maladjustment at age 18 than a control group and an adoption group. [8] Ms O'Neill said that this pointed to the distinct benefits that adoption can provide.

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

    3. Brodzinksy D M (1993), ‘Long-Term Outcomes in Adoption’, The Future of Children, 3(1): 153‑166.

    4. 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.

    5. Holloway J S (1997), ‘Outcome in Placements for Adoption or Long Term Fostering’, Archives of Disease in Childhood, 76(3): 227-230.

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

    7. 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.

    8. 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.

16. Much of the literature cited has been referred to in other cases in this territory. I referred to some of those articles, and to other sources, in Adoption of SRB, CJB and RDB. [9] In that case, aided by the expert evidence of Ms Lindfield and the social science literature to which I have referred, I accepted that 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 enhanced 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. As I then said,[10] these are not conclusions to be applied willy-nilly to every case; but they provide a useful basis in 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.

    9. [2014] NSWSC 138 at [54]-[59].

    10. Adoption of SRB, CJB and RDB [2014] NSWSC 138 at [59].

17. Ms Willoughby for the defendants submitted that caution was required in applying Ms O'Neill's conclusions from the research literature – and, implicitly, the conclusions which I have drawn in SRB and other cases – in a context where the alternatives were not foster care with the Minister having parental responsibility, but a parental responsibility order in favour of the foster parents. That submission is one that certainly requires consideration, and it has driven me to revisit the literature. The answer is that in a review article which examined the research literature and contrasted six variables, Triseliotis found that even when long-term fostering survived, the children felt less secure and had a weaker sense of belonging compared with those who were adopted. [11] Thus, while I accept that some caution is required in drawing conclusions where the comparator group includes children who have had a much more disrupted and less settled experience in foster care than would these children in the event that a parental responsibility order were made, nonetheless the conclusions to be drawn from the Triseliotis article appear to include that, even where long-term fostering is successful in the sense of being stable and continuing until the child attains her or his majority, there are still advantages in adoption over that type of fostering.

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

18. 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 foster child is not a full or 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. This accords with what I drew from Ms Lindfield's evidence in SRB, namely, that adopted children experience an increased or enhanced sense of belonging and family ownership, which in turn enhances their security and self-esteem. That, I think, applies as much where the comparator is a parental responsibility order in favour of the foster parents, as it does where it parental responsibility resides with the Minister.

19. Accordingly, I do not think that the general propositions advanced from the research literature referred to in the expert evidence of Ms O'Neill, and in the earlier authorities, are significantly affected by the circumstance that the alternative proffered might be a parental responsibility order in favour of the foster parents.

20. Again, of course, that does not mean that the general propositions should be approached willy-nilly to any particular case, and it is important to look at the specific features of the particular case which might tell against the general propositions. In most cases, though not all, those factors are related to the children, the birth family, and the relationship between the children and the birth family.

21. The pattern of development of these children is not consistent with what one may expect to see in their situations. Emma, who was placed at a later age after a number of earlier placements, manifests some of the problems associated with early disrupted placements; whereas, at the other end of the continuum, Kane, who was very young when placed with the Barretts, has progressed very smoothly and positively.

22. Meanwhile, the birth parents – Mr Cotter and Ms Hogarth – have each undertaken extensive and highly commendable efforts to improve their lives and their parenting capacities. They have worked through what must have been tremendous challenges and difficulties to do that, and have participated in and completed many courses. Perhaps, however, the most telling factor is that they have been able to work through their own difficulties and reach a modus vivendi (to use the Latin) – a way of living with each other – which has avoided the pitfalls of the past. This cannot have been at all easy for either of them, and the efforts they have committed to it speak very highly of them and their attitude and commitment to a better future. Perhaps the best testament to their success is the fact that they retain the care of Evan, without Departmental intervention, and that – at least so far as I can tell from one end of a courtroom to another – Evan who has been in the back of the Court during most of the hearing, appears settled, happy, comfortable and well cared for.

9. If this case were about encouraging birth parents to improve their parenting skills and rewarding them for doing so, then it would be easy not to make an adoption order. But, as I have said many times in the past, these cases are not about the past, the circumstances that resulted in the children's removal when it happened, or even the changes that may have been made since. This Court has to work with the situation that presents itself now, where the children have been with the proposed adoptive parents for three years or more, and where there is no proposal that they reside anywhere else. That should not be taken as any suggestion that a proposal that they reside anywhere else would have had any traction: to the contrary, the expert evidence reinforces what common sense dictates, namely, that it would take a great deal to persuade a court to disrupt a longstanding placement in which the children are obviously doing well. But it is not to be overlooked that the birth parents have remained committed to the children, have involved themselves in their lives consistently and appropriately through exercising the opportunities that have been given to them for contact, and have demonstrated their commitment – not only by the efforts they have made to improve their lives, by their progressive realisation that it is in the children's interests to remain where they are, and by their acknowledgment of the fine quality of the parenting that the children are receiving from the Barretts, but also by their opposition to an adoption order, in which they have demonstrated their commitment to an ongoing formal link with their children.

10. The birth parents referred to the potential impact of an adoption order on the relationship between the children and their birth family siblings. An adoption order would sever the legal relationship between them, and the children would also acquire a different family name. It is no doubt in the interests of the children to sustain a relationship with their birth siblings as well as with their birth parents, but without understating the importance of maintaining such a relationship, there needs to be some recognition of the reality. Ms Hogarth’s eight children currently reside in four different placements: one with her; one in a Barnardos placement, with parental responsibility to the Minister; three in another foster placement; and the three children the subject of these proceedings with the proposed adoptive parents. So far as I can ascertain, not only have the eight children never lived together, but the two older groups of three have never lived together, the first three having been removed before the second three were born. While Jane-Helen and Evan are full siblings of Jack and Kane, they are half siblings of Emma, and the three other children are also half siblings to all three children.

11. Again, as has previously been observed,[12] making an adoption order is not inconsistent with sustaining the children'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. In this case, the continuation of that personal relationship will be underwritten by a registered adoption plan, and the siblings can still grow up with those personal relationships intact, although they are in different care situations. Thus, as it seems to me, the children's birth family relationships can be sustained, if an adoption order is made, through the means both of a registered adoption plan providing for birth parent and sibling contact and by the retention, as an additional middle name, of their current family name "Hogarth", which in that way they would retain for life.

    12. See Adoption of JLK and CRK [2017] NSWSC 7 at [92].

12. For those reasons, it seems to me that the benefits of complete membership of the family with which they are on any view going to continue to reside, and with which they primarily identify, in a context in which their relationship with their birth family will be underwritten by a registered adoption plan, clearly outweigh the advantages of a parental responsibility order. While a parental responsibility order would afford some of the benefits of adoption, its shortfall would be that it would not provide complete membership of the family in which the children reside and with which they primarily identify. Nor would it bring the legal structure into alignment with the reality of their lives in which, on any view, it would be the Barretts who were performing the functions of parents.

13. For those reasons, I propose to make an adoption order. Although I do not need to resolve any question concerning contact because of the apparent acceptance of the proposed adoption plan, I would observe that I think Ms Hogarth has a reasonable expectation of increased contact, progressing towards unsupervised contact in the future. While it is true that Emma appears to experience some stress in connection with or after contact, it is very clear that that is not because she does not want to see her birth mother. To the contrary, the evidence indicates clearly that she enjoys seeing her birth mother and, if anything, wants to see her more than she does at present. Because of her age, she will have a better recollection of her birth mother than the younger children. As it seems to me, the stress and associated behaviour which Emma demonstrates following contact is probably attributable to her feeling conflicted between her love for and loyalty to the Barretts on the one hand, and her love for and loyalty to Ms Hogarth on the other, and that that internal conflict of loyalty is exacerbated for her at the time of contact. I hope that an adoption order will have, amongst its other effects, that having cemented her place in the Barrett family, that will also allow her to explore her relationship with her birth mother, with greater confidence that doing so will not involve any disloyalty to the Barretts. I certainly do not think that the solution is any reduction in contact with Ms Hogarth. Such a reduction would be contrary to Emma’s own expressed wishes, and should not be countenanced. Emma will need some support in working through this – support which I am very confident that the Barretts can give her – but she needs to be given the freedom and confidence to interact with her birth mother in circumstances where she can do so feeling that in doing so she is not being disloyal to, but enjoys the positive support of, her adoptive parents. Because the parties are content for the present adoption plan to be registered, I need not make any further stipulations about contact. But the remarks I have made are intended to indicate what I would expect to happen in the future and to provide some basis for anyone who is dissatisfied with progress in the future to have that issue revisited if necessary.

14. In respect of the child Emma Dawn Hogarth, born 4 March 2009, the Court orders that:

1. Pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural father Jackson Richard Hewitson be dispensed with.

2. Pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother Felicity Evelyn Hogarth be dispensed with.

3. The child be adopted by the adopting parents Michael John Barrett and Natalie Crystal Barrett, and have the surname "Barrett" and the given names "Emma Dawn Hogarth".

29. In respect of the child Jack Scott Hogarth, born 30 April 2011, the Court orders that:

1. Pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural father Aiden James Cotter be dispensed with.

2. Pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother Felicity Evelyn Hogarth be dispensed with.

3. The child be adopted by the adopting parents Michael John Barrett and Natalie Crystal Barrett, and have the surname "Barrett" and the given names "Jack Scott Hogarth".

30. In respect of the child Kane James Hogarth, born 25 October 2012, the Court orders that:

1. Pursuant to Adoption Act2000, s 67(1)(d), the consent of the child's natural father Aiden James Cotter be dispensed with.

2. Pursuant to Adoption Act2000, s 67(1)(d), the consent of the child's natural mother Felicity Evelyn Hogarth be dispensed with.

3. The child be adopted by the adopting parents Michael John Barrett and Natalie Crystal Barrett, and have the surname "Barrett" and the given names "Kane James Hogarth".

31. In respect of all three children, the Court further orders, pursuant to Adoption Act 2000, s 50(3), that the adoption plan dated 25 May 2017, being exhibit PX06 herein, be, and is hereby, registered.

32. Exhibit PX06 is to remain on the court file as the registered adoption plan. The other exhibits may be returned.

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Endnotes

Decision last updated: 31 January 2019