Adoption of Hogarth (No 2) - [2019] NSWSC 9

Supreme Court

New South Wales

Medium Neutral Citation: Adoption of Hogarth (No 2) [2019] NSWSC 9
Hearing dates: 18, 19, 20 December 2017
Date of orders: 18 January 2019
Decision date: 18 January 2019
Jurisdiction: Equity - Adoptions List
Before: Brereton J
Decision:
Adoption would promote best interests of child and is clearly preferable to any other action that can be taken by law, provided that appropriate arrangements are established for birth family contact, but proposed adoption plan is not proper in the circumstances, which precludes making an adoption order unless remedied.

Catchwords:
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 alternatives include restoration to birth parents, or parental responsibility order to carer – where child has established secure bond of attachment with adoptive applicant – where birth parents now have parenting capacity – respective advantages and disadvantages of restoration, adoption, parental responsibility to carer and parental responsibility to Minister – relative risks of severing bond of attachment with carer and adoption – held, risks of severing bond outweigh those of adoption – held, subject to appropriate arrangements for birth parent contact, 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.

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 – where plan provides inadequate opportunities for child to know and develop relationship with birth parents – held, plan not proper in the circumstances.

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicant is approved carer 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 order so as to permit adoption order to be made.
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive parent’s surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former surname as a middle name is in child’s interests as means of preserving the child’s identity
Legislation Cited: (NSW) Adoption Act 2000, ss 8(1), (2), s 50, s 67(1)(d), s 90, s 101, s 126
(NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
Cases Cited: Adoption of AT [2015] NSWSC 1666
Adoption of EDH, JSH and KJH [2017] NSWSC 1861
Adoption of JLK and CRK [2017] NSWSC 7
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of PS [2015] NSWSC 2159
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of SRB, CJB and RDB [2014] NSWSC 138
Adoption of SVS [2015] NSWSC 2043
Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762;
(2007) 37 Fam LR 595
Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306
Re an Infant K [1973] 1 NSWLR 311
Re D; Application of A [2006] NSWSC 1056
Re Sarah [2013] NSWCA 379
Re Stephen [2011] NSWSC 1521
Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6
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
Brand A E & Brinich P M (1999), ‘Behavior Problems and Mental Health Contacts in Adopted, Foster, and Non-Adopted Children’, Journal of Child Psychology and Psychiatry and Allied Disciplines, 40(8): 1221‑1229
Brinich P M (1980), ‘Some Potential Effects of Adoption on Self and Object Representations’, The Psychoanalytic Study of the Child, 35(1): 107-133
Brodzinksy D M (1993), ‘Long-Term Outcomes in Adoption’, The Future of Children, 3(1): 153‑166
Commonwealth of Australia, The Senate, Community Affairs Reference Committee, Commonwealth Contribution to Former Forced Adoption Policies and Practices, February 2012
Holloway J S (1997), ‘Outcome in Placements for Adoption or Long Term Fostering’, Archives of Disease in Childhood, 76(3): 227-230
Keyes M A, Sharma A, Elkins I J, Iacono W G & McGue M (2008), ‘The Mental Health of US Adolescents Adopted in Infancy’, Archives of Pediatrics and Adolescent Medicine, 162(5): 419-425
Miller B C, Fan X, Christensen M, Grotevant H D & Van Dulmen M (2000), ‘Comparisons of Adopted and Non-Adopted Adolescents in a Large, Nationally Representative Sample’, Child Development, 71(5): 1458‑1473
NSW Legislative Council, Standing Committee on Adoption Practices, Releasing the Past: Adoption Practices 1950-1998 – Final Report, December 2000
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
Sharma A R, McGue M K & Benson P L (1998), ‘The Psychological Adjustment of United States Adopted Adolescents and Their Non-Adopted Siblings’, Child Development, 69(3): 791-802
Tizard B and Rees J (1974), ‘A Comparison of the Effects of Adoption, Restoration to the Natural Mother, and Continued Institutionalization on the Cognitive Development of Four-Year Old Children’, Child Development, 45(1): 92-99
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
Vinnerljung B, Hjern A & Lindblad F (2006), ‘Suicide Attempts and Severe Psychiatric Morbidity Among Former Child Welfare Clients – A National Cohort Study’, Journal of Child Psychology and Psychiatry, 47(7): 723-733
Category: Principal judgment
Parties: Secretary, NSW Department of Family and Community Services, by his delegate the principal officer of Barnardos Australia (plaintiff)
Felicity Evelyn Hogarth (first defendant)
Aiden James Cotter (second defendant)
Representation:
Counsel:
Ms M Neville
Ms V Willoughby (solicitor)
Solicitors:
Crown Solicitor’s Office (plaintiff)
Willoughby Law (defendants)

File Number(s): A188/2016

Judgment

HIS HONOUR: By summons filed on 14 December 2016, the Secretary of the NSW Department of Family and Community Services, by his delegate the principal officer of Barnardos Australia, seeks an order for the adoption of the child Jane-Helen Evelyn Hogarth, who was born on 12 February 2015, and is therefore not yet four years of age, by a single proposed adoptive parent Ms Evelyn Jane Herriot. Jane-Helen is the seventh child of her birth mother Ms Felicity Evelyn Hogarth; her father (who is also the father of three of Ms Hogarth’s other children) is Mr Aiden James Cotter. Ms Hogarth and Mr Cotter have both, on their application, been joined as defendants, and oppose the application. Ms Hogarth’s other children, in order of seniority, are Cary born 19 October 2002 (now aged 16), Willis born 28 October 2003 (now 15), Jordan born 23 February 2006 (now 12), Emma born on 4 March 2009 (now 9), Jack born 30 April 2011 (now 7), Kane born 25 October 2012 (now 6) and Evan born 9 May 2017 (now 18 months). Mr Cotter is the father of Jack, Kane, Jane-Helen and Evan, and has no other children. [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.
Cary (then 5), Willis (then 4) and Jordan (then 2) were removed from Ms Hogarth’s care on 9 June 2008, on account of neglect and risks of harm associated with Ms Hogarth’s then alleged history of drug abuse, her emotional status and mental health, and domestic violence and inadequate care. They live in an out of home care placement, managed by Life Without Barriers (LwB) under orders made by the Children's Court on 18 March 2011, allocating parental responsibility for them to the Minister until 18. However, there is pending in the Children’s Court an application by Ms Hogarth under (NSW) Children and Young Persons Care and Protection Act 1998, s 90, with a view to securing their restoration to her care. Subsequent to the hearing in these proceedings, the Court was informed that on 28 February 2018, following discussions between the LwB caseworker, Ms Hogarth and Mr Cotter, a new case plan was developed for these children, with the goal of restoration to Ms Hogarth, to be completed by September/October 2018, and with gradual increases in contact in the meantime, under the structure of an order for parental responsibility to the Minister for 8 months, followed by a 12 month supervision order and undertakings.
Emma (then 3) and Jack (then 18 months) were removed from the care of Ms Hogarth and Mr Cotter on 8 October 2012, on account of significant harm reports raising concerns including domestic violence, parental incapacity due to drug and/or alcohol misuse, mental illness and neglect. A few weeks later, on 25 October 2012, Kane was assumed into care shortly after his birth. On 21 June 2013, the Children's Court made final orders in relation to each of those three children, allocating parental responsibility for each of them to the Minister until 18 years of age. On 4 October 2013 the children were placed with Mr and Mrs Barrett, in whose care they thereafter remained. Following a hearing in which the issue as ultimately tendered for decision was whether the children, who would admittedly in any event continue for the foreseeable future to live with 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, on 26 May 2017 I made orders dispensing with the consents of Mr Cotter and Ms Hogarth and for the adoption of those children by Mr and Mrs Barrett, and also for the registration of an adoption plan which provided for ongoing birth family contact. [2]
2. Adoption of EDH, JSH and KJH [2017] NSWSC 1861. Although at the outset of those proceedings Ms Hogarth and Mr Cotter had advanced a case in which they sought restoration of the children to their care, their position ultimately shifted 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.
Jane-Helen was born prematurely at 26 weeks gestation. Prior to her birth FACS received six reports, raising issues of Ms Hogarth’s six previous children having been removed from her care, lack of antenatal care, homelessness, drug and alcohol misuse, domestic violence, and incarceration of both birth parents. Further reports were received after her birth, and she was assumed into care on 23 March 2015 – approximately six weeks after her birth. On 29 May 2015 she was discharged from hospital and placed with Ms Herriot, with whom she has lived continuously ever since – a period now of three and a half years. On 10 August 2015, the Children’s Court made final orders allocating parental responsibility for her to the Minister until 18 years of age.
While Jane-Helen was in hospital she had daily contact with her birth parents. Following her discharge, there was twice weekly contact for a period of about six months, which was reported to be predominantly positive, and during which Ms Hogarth was observed to be attentive and caring towards Jane-Helen. However, after the final orders were made on 10 August 2015, contact was progressively reduced to six times per year, for two hours, supervised by Ms Herriot. From about September 2015, such visits have usually been in conjunction with Emma, Jack and Kane (supported by Mr and/or Mrs Barrett), and since December 2015 also with Cary, Willis and Jordan (supported by their LwB caseworker), although there have been a couple of visits with Jane-Helen alone.
The current arrangements for contact are six times per year, for a period of two hours. Cary, Willis and Jordan attend four, supported by their LwB caseworker. Emma, Jack and Kane attend five, supported by their adoptive parents Mr and/or Mrs Barrett. One is for Jane-Helen alone. Contact has been described (by Ms Atkinson, of Barnardos, who swore the principal supporting affidavit) as having been positive for all involved, with the birth parents being consistent and punctual in attendance, acting appropriately and in the best interests of the children, and Ms Herriot presenting as warm, welcoming and considerate towards Mr Cotter and Ms Hogarth, bringing photographs and providing updates on Jane-Helen’s progress, and being willing to engage in conversations. At least more recently, however, and perhaps associated with the pressures of this litigation, those perceptions of the birth parents and Ms Herriot have not entirely been shared by them respectively.
Evan continues to reside with Ms Hogarth and Mr Cotter, and has done so since birth, and is not the subject of any departmental intervention or court orders.

The parties’ positions and proposals

The Secretary proposes that the Jane-Helen continue to reside with Ms Herriot, that an adoption order be made in her favour, that the child have the surname “Herriot” and the forenames “Jane-Helen Evelyn Hogarth”, and that Jane-Helen have contact with her birth parents and siblings after adoption in accordance with an adoption plan, to be registered. [3] Initially, the proposed adoption plan provided for face-to-face contact, for a minimum of two hours, extendable by mutual agreement:

until Jane-Helen is aged 7, at least four times per year in conjunction with contact with all seven of her siblings and half-siblings (including Evan), and an additional once per year without the siblings other than Evan; and

from 7 years of age, at least five times per year in conjunction with contact with all seven of her siblings and half-siblings (including Evan), and an additional once per year without the siblings other than Evan.

In addition, the proposed plan provided for telephone contact by Facetime at least twice per year, and additional informal contact with Emma, Jack and Kane.

3. Under Adoption Act, s 50.

During the hearing, the proposed plan was amended to increase the provision for face-to-face contact to:

until Jane-Helen is aged 7, at least five times per year in conjunction with contact with all seven of her siblings and half-siblings (including Evan), and an additional once per year without the siblings other than Evan; and

from 7 years of age, at least six times per year in conjunction with contact with all seven of her siblings and half-siblings (including Evan), and an additional once per year without the siblings other than Evan.

The birth parents oppose adoption and seek the restoration of Jane-Helen to their care; they also oppose the order sought in respect of her name.

Formal requirements

For the purposes of s 87, the application is made by the Secretary, by his delegate the Principal Officer, Barnardos. The Minister, who has parental responsibility, has, by an authorised delegate, consented. For the purposes of s 88, the only persons whose consent to the adoption is required and has not been given are the birth parents. I am satisfied that at least 14 days’ notice of the application for the order, containing the prescribed particulars, has been given to them; they have appeared in the proceedings, by their solicitor, to oppose the application.
Mr Cotter has in the past claimed to have some element of Aboriginal heritage, from his paternal family, but is uncertain as to which member of his paternal family, though he thought it might be his paternal grandfather. Mr Cotter’s father is unaware of his father (that is, Mr Cotter’s grandfather), identifying as Aboriginal or having belonged to an Aboriginal community. The Principal Officer has sought, but Mr Cotter has been unable to provide, further evidence of Aboriginality. He does not identify as an Aboriginal, and has said that he considers himself “a white Australian”. He is therefore not, for relevant purposes, an “Aboriginal person”. [4] I am satisfied that the Principal Officer has in those circumstances made reasonable inquiries to ascertain whether Jane-Helen is an Aboriginal child, and being unsatisfied that she is, the Aboriginal child placement principles do not apply.
4. Adoption Act, s 4 incorporates the following definition from the (NSW) Aboriginal Land Rights Act 1983: Aboriginal person means a person who: (a) is a member of the Aboriginal race of Australia, and (b) identifies as an Aboriginal person, and (c) is accepted by the Aboriginal community as an Aboriginal person.

General principles

In making decisions about adoption, the court must apply the principles stated in Adoption Act, s 8(1), of which the following are relevant in this case:

the best interests of the child, both in childhood and in later life, must be the paramount consideration (s 8(1)(a)),

adoption is to be regarded as a service for the child (s 8(1)(b)),

no adult has a right to adopt the child (s 8(1)(c)),

if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances (s 8(1)(d)),

the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved (s 8(1)(e)),

undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare (s 8(1)(e1)).

The “paramountcy principle” contained in s 8(1)(a) means that the inquiry is child and future focussed: as the best interests of the child, both in childhood and in later life, must be the paramount consideration, so it is necessary to evaluate the competing proposals (and any viable alternatives to them) so as to ascertain which will best serve the interests of the child now and in the future, given what has already happened, rather than revisiting the actual or perceived rights and wrongs of the past (save insofar as they may be indicative of the future). In speaking of adoption being a “service to the child”, the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. It does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.
Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction “beyond reasonable doubt”,[5] the requirement that the Court consider that an adoption order be “clearly preferable” is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law. [6]
5. Re D; Application of A [2006] NSWSC 1056 at [53].
6. Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 at [25].

The answer to the question whether adoption is “clearly preferable” is informed by various relevant considerations, referred to in s 8(2), which may generally be summarised as follows:

concerning the child: her physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; her wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;

concerning the birth parents: their wishes; the nature of the child’s relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and

concerning the proposed adoptive parent: her suitability and capacity to provide for the child’s needs; her attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child’s relationship with her.

All these are informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to, ill-treatment, violence or other behaviour (s 8(2)(j)); and the alternatives to adoption, in the light of the short and long term effects of adoption (s 8(2)(k)).
Consideration of whether adoption is clearly preferable to any other action that could be taken requires identification of the likely effects of adoption, and of the various available alternatives, weighing their comparative benefits and detriments from the perspective of the best interests of the child, and concluding whether that shows adoption to be “clearly preferable”, in the child’s interests, to the alternatives. The alternatives to adoption that require consideration in this case – some in greater depth than others – are (1) restoring Jane-Helen to the care of her birth parents; (2) a parental responsibility order in favour of Ms Herriot; (3) maintaining the status quo, with the Minister having parental responsibility and the child in foster care, albeit residing with Ms Herriot; and (4) deferring making a decision about adoption. The fundamental issue is whether Jane-Helen should be restored to the care of her birth parents, or should remain in the care of Ms Herriot, and if the latter whether under the legal construct of adoption, parental responsibility to Ms Herriot, or parental responsibility to the Minister.

The child

For the purposes of s 23(2)(a), when the application was filed, Jane-Helen was present in the state. For the purposes of s 24(1)(a), she was less than 18 years of age when the summons was filed: she was not yet 3 at the time of the trial, and is still under 4 years of age, and has now been in Ms Herriot’s care for 3.5 years.
When born, Jane-Helen had chronic lung disease, secondary to prematurity, and required home oxygen administration on discharge. She has unquestionably thrived in her placement with Ms Herriot. While she continues to be monitored, all medical professionals involved report no concerns regarding her health or development. She is meeting developmental milestones, and has social and gross-motor development exceeding expectations given her prematurity. In March 2017, one paediatrician described her progress in terms of growth as “amazing”, and her development as “excellent with good language, gross and fine motor skills”. In May 2017 she was said to be “tracking nicely in view of her gross motor, personal and fine motor skills”, and on 29 May 2017 as making progress in all areas of her development. She commenced attending day care two days a week in 2017, and while attending day-care, her expressive language – about which there was at first some concern – was observed to have developed.
For the purposes of s 90(1)(b), Jane-Helen is not of an age or understanding at which it is practicable to ascertain her wishes in respect of adoption. However, it is possible, at least to some extent, to ascertain her feelings, not about adoption per se, but relevant to her relationships and connections with Ms Hogarth, Mr Cotter and Ms Herriot.
Jane-Helen is settled in her placement and responds positively to Ms Herriot, and has also built attachments and positive relationships with Ms Herriot’s parents and extended family. Jane-Helen has developed a strong and secure attachment to Ms Herriot, and with it a sense of security and belonging. Her relationship with Ms Herriot is not only Jane-Helen’s primary relationship, but an exclusive one in the sense that, while she has connections with Ms Herriot’s extended family, she has never had to share her attachment with Ms Herriot with anyone else.
The parties’ single expert Christopher Lennings, clinical psychologist, who saw her when she was 2.5 years of age (2.2 corrected for prematurity), observed that Jane-Helen had spent the whole of her short life in the care of Ms Herriot, to whom she had a secure attachment, but also drew attention to the possibility of an ongoing potential vulnerability arising from her prematurity:

Jane-Helen is a delightful child who carries a developmental vulnerability associated with her extreme prematurity. The fact that she has responded so well to the care of Ms Herriot indicates that Ms Herriot has been able to give exemplary care to Jane-Helen and has been instrumental in assisting Jane-Helen in overcoming the vulnerabilities of her developmental challenges. Nonetheless my understanding of children who are born premature is that they remain developmentally vulnerable for some time. I think that consideration of the placement of Jane-Helen has to take into consideration her potential vulnerability to stress and to disruption of her developmental pathway.

Jane-Helen has no attachment to her birth parents, whom she barely knows, chiefly because the existing contact arrangements have not allowed an adequate opportunity for any connection to be established – particularly given that six (and now, since Evan’s arrival, seven) other children are competing for their parents’ attention on those occasions, and Ms Hogarth and Mr Cotter must necessarily share their time and attention between them. Jane-Helen apparently understands that she has siblings, but at this stage does not have close bonds with them, and would not likely appreciate their status as siblings or the significance of it, as distinct from being occasional acquaintances.

Ms Hogarth and Mr Cotter

Ms Hogarth is aged 36 and Mr Cotter 41. They have been in a relationship since in or about 2008, and until relatively recently it was a stormy one. Reference has already been made to her and their previous children, and the associated child protection histories.
Both had traumatic and troublesome childhoods, in which each was exposed to violence, and each was a victim of abuse in a family or step-family setting, the detail of which it is not necessary to recount. For many years Mr Cotter found it difficult to manage anger and resorted to violence. In 2010 and 2011, Ms Hogarth was sick and depressed, and Mr Cotter was engaging heavily in substance abuse; they argued incessantly, including pushing and shoving each other, although they deny more extreme domestic violence. They had no stable accommodation and insufficient resources to support their family, and resorted to crime. In 2013, following an altercation with another group, both were charged with assault, and were ultimately imprisoned for five and eight weeks respectively; Mr Cotter had earlier been imprisoned for lengthier periods, including five years for “robbery with violence” between 1996 and 2001.
However, when released in or about February 2015, they had ceased drug use, and embarked on reforming their lifestyles. They sought advice and assistance, obtained stable accommodation, ceased using cannabis, ceased self-harming behaviour, and began to develop higher self-esteem. Both have 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, and have participated in and completed many courses directed to improving their parenting capacity. Mr Cotter is now in stable employment with a more than adequate remuneration (between $2500 and $3200 net per week), which has enabled improvements in their lifestyle. Endeavours, in cross-examination, to implicate Mr Cotter in more recent incidents of violent behaviour were not sustained. Perhaps, however, most impressive 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.
They now (since about mid-2017) have unsupervised contact with Cary, Willis and Jordan, and it appears that restoration of those children to their care is now supported by LwB. They appear well-attuned to parenting issues, and to the characteristics and qualities of the three older boys, and have given due consideration to plans for their future, including providing continuity in their education, notwithstanding that doing so will involve some considerable daily travel impost on Ms Hogarth. They have also made arrangements for Cary’s vocational development, having arranged tutoring, and an apprenticeship with Mr Cotter’s employer.
It is most telling that Evan not only remains in their care, without any hint of intervention by FACS, but appears to be thriving, as Mr Lennings reports:

Mr Cotter and Ms Hogarth have demonstrated a willingness to engage in and to develop their parenting capacity and there is no doubt they have done so in an assiduous and determinant fashion. Their care of Evan appears to be good and as far as I can tell they are more than adequate in their capacity to understand and meet Evan’s needs. Much of the day-to-day parenting falls upon the shoulders of Ms Hogarth due to Mr Cotter’s arduous work requirements, although my observation of his care of Evan revealed him to be confident and competent. Evan appears to be thriving.

This is confirmed by my observations during the two hearings – in the earlier case (concerning the siblings) in May 2017, and in the present case in December 2017, throughout most of which Evan has been in the back of the court in his parents’ care – in that at least so far as I can tell from one end of a courtroom to another, he appears settled, happy, comfortable and content.
That they are able to compromise in the interests of their children is illustrated both by Mr Cotter’s willingness to seek and ability to obtain shorter hours of work, to enable him to provide more parenting support in the event of Jane-Helen’s restoration to their care; and by their mutual willingness to defer pressing their application for restoration of the older children if Jane-Helen were restored, at least until the position had settled.
Both are quite realistic, and not unduly idealistic, about the challenges they face, regardless of whether Jane-Helen is restored. They appreciate that reintegration of Jane-Helen into their care would not be straightforward, and would require a careful and gradual transition, and that there would be challenges, and distress, at least in the short term. Indeed I have rarely if ever seen such insight into the difficulties that they will encounter in the event of a restoration. When it was put to Ms Hogarth that Mr Lennings’ report contained a suggestion that she may have underestimated the likely impact and challenges posed by the restoration of Jane-Helen as well as the three boys, she convincingly responded:

I read that. I don’t agree. I know this is – it’s going to be difficult. I have every reality that there’s going to be some pretty big ups and pretty big downs. But you work through them; you adapt; you change. That’s what – that’s what life’s about.

As Mr Lennings fairly concluded:

Ms Hogarth and Mr Cotter present as parents who had extremely difficult origins and for many years lived a dysfunctional and somewhat antisocial life. It is enormously to their credit that following an episode of incarceration in 2014 they mutually made the decision to get their act together and have done everything that they could possibly do to rehabilitate their behaviour. Indeed they have made amazing strides in the extent to which they are able to accept the responsibilities of adulthood and to accept parenting responsibilities.
Their concerted efforts have clearly been recognised by the decision to allow Evan to remain living with Ms Hogarth and Mr Cotter and for there to be support for the return of the three eldest children to the biological parents.

Mr Lennings concluded that they had the capacity to parent Jane-Helen, to understand and to satisfy her needs (emphasis added):

I am concerned that there will be a significant challenge to the parenting capacity of this family in the event that it suddenly jumps from being one young child to five children across a wide age spectrum, and having to meet varying needs of the children accordingly. Nonetheless on the current assessment it appears that the biological parents have the requisite capacity to meet Jane-Helen’s needs and to understand what those needs are although whether they will have the same amount of time and whether they will have the same amount of opportunity to counteract the impacts of Jane-Helen’s long term vulnerabilities due to her prematurity is an open question. The parents will have heavy demands on their time as a result of the sudden expansion of their family.

And in the context of discussing the parenting capacity of Ms Herriot, Ms Hogarth and Mr Cotter, he concluded that they were competent to parent Jane-Helen:

All three adults demonstrate an appropriate understanding of and a willingness to accept the responsibilities of parenthood and criticisms that each make of the other aside I view all three parties as being competent to engage as parents for Jane-Helen.

These conclusions were not undermined in cross-examination, which was more directed to the challenges which the presence of additional children would bring, and I agree with and accept them. Accordingly, I conclude that Ms Hogarth and Mr Cotter now have the capacity to parent Jane-Helen, and – as demonstrated by Evan’s progress – to offer her better than merely “good enough parenting” – although I also share Mr Lennings’ concern that the parenting capacity of Ms Hogarth and Mr Cotter could be stretched in the event that the family were to jump from one young child to five across a wide age spectrum – an eventuality which would challenge the most resourceful of parents.

Ms Herriot

For the purposes of s 23(2)(b) and s 27(1)(a), Ms Herriot is domiciled in the state. For the purposes of s 27(1)(b), she is of good repute, fit and proper; not only does the evidence show her to be so, but there was (properly) not the slightest suggestion that she was other than of good character. According to advice provided by the Commission for Children and Young People’s Working with Children Check and Screening Unit, she has no charges or convictions recorded against her. She meets the age requirements of s 27(2)(a). For the purposes of s 27(3), she is not living with a spouse. For the purposes of s 90(1)(c), I am satisfied that the prospective adoptive parent has been selected in accordance with the Act.
Ms Herriot is now almost 51, described as intelligent, warm and welcoming, admittedly somewhat overweight with well-controlled hypertension and diabetes, but otherwise in good health. She is the fifth of seven children of her parents, who reside in the same apartment building, across the hallway. She had one long term (10-year) relationship from age 21, but none since, and is not presently seeking one. According to Mr Lennings:

Ms Herriot presents as a woman of sound psychological function who is adoring of and highly supportive of Jane-Helen and is emotionally and psychologically attuned to Jane-Helen. A very secure attachment has developed between them and Jane-Helen has known no other carer across her life.

Ms Herriot has 16 nieces and nephews, and close connections with many other children. She has a Bachelor of Applied Science (Physiotherapy) and has practised general and paediatric physiotherapy; as a paediatric physiotherapist, she is accustomed to dealing with and managing the needs of children. Children have always been a large part of her life, and she currently works part-time for a national organisation which advocates for the needs of children, young people and families in the health care system. She has demonstrably provided a high quality of care for Jane-Helen, who has made very satisfactory progress in her care over the last two years. She has provided a safe, nurturing, loving and consistent environment in which Jane-Helen has developed and flourished.
As reported by Mr Lennings, Ms Herriot has a sound appreciation of the roles and duties of parenthood and has demonstrated an excellent ability to fulfil them; she is attuned to Jane-Helen, is able to set boundaries and provide love, care and comfort for her; she has ample capacity to provide for Jane-Helen’s needs, and a reasonable plan for her future; and she has an appropriate understanding of and a willingness to accept the responsibilities of parenthood. With the one exception concerning her capacity to support birth parent contact, to which I shall come, I have not the slightest doubt about Ms Herriot’s parenting capacity.
However, while she says that she sees sibling contact as very important, and that she has done much to facilitate it – and this appears to be so – she seems to be less committed to birth parent contact, and it has been of concern that she was supportive of a reduction in the current level of contact, albeit that it appears to have been proposed by Barnardos. At the preliminary hearing, when asked what role she saw the birth parents as having, she said:

A very important role. They are her parents and they love her, I know they love her very much, and I would hope that they have a very strong and continued role in her life and I expect that, it’s been positive, to date, contact and I would expect that to continue to be positive and a good thing for Jane. I already tell Jane that she’s a really lucky little girl because she’s got two families who all love her and, you know, want what’s best for her and to support her, and that would be my continued line throughout her life, is that she has, she, you know, she really has, she has two families, you know, every family’s unique, and that’s our family, her family is an extension now of our family, so I’m very supportive about contact and making sure that that’s a positive experience, as Jane gets older as well obviously involving her in that, and, you know, increasing levels of contact when that’s something that she wants, more informal contact when that’s something that she wants and is going to be a positive sort of influence for her, so I see it as a little bit of a fluid thing once she’s older and, you know, I can ascertain, you know, what her wants and needs are and obviously what the wants and needs of Felicity and Aiden are as well.

But when asked about the proposed reduction from six occasions per year to four, she said:

Well, I think that while Jane is quite young, like I said, that for the next, I think that that’s really just for the next couple of years while she’s still quite young and I know that the three children older than Jane have five contacts a year, I’d be happy to do five, to be honest, so I’m not fixed on four, I think whatever’s in Jane’s best interest, I don’t, I think it’s hard if it’s a lot more to actually, we travel a fair bit to get to contact, and it’s a big day for Jane, with all the kids, I mean, it’s wonderful, but it also takes a lot out of her, so she’s still quite young and she’s at that phase where she’s a little bit, she takes ages to warm up, and, she’s a typical two and a half year old, and so I think that’s the right balance myself, four or five a year while she’s young and then, but I’m very open to that changing as the situation changes and as her, kind of, like I said as her kind of needs and wants change.

Mr Lennings reported that Ms Herriot appeared to be quite open to and willing to encourage the development of sibling contact, but he suspected that there were “competitive issues” between Ms Herriot, Ms Hogarth and Mr Cotter, exacerbated by the current litigation, which he hoped might dissipate over time so that a more convivial and cooperative relationship could develop. I did however detect, in a number of observations reported by Mr Lennings, that Ms Herriot had a not very strongly articulated but underlying sense of distrust about the birth parents. He reported that she questioned whether the birth parents would be able to maintain their reformed lifestyle, or would relapse; she suggested that they did not, during contacts, provide an adequate level of supervision for Jane-Helen; she perceived that the birth parents are “possessive” of their child but do not take the time to know her when at contacts; she felt that they had a lot of issues and, though she does not know much about them, worries at their long term capacity to retain stability and to be responsive to their children; she did not trust that they would be able to stay on the “straight and narrow”, pointing out that they had multiple opportunities in the past to do so which they avoided; she observed that the parents could not refrain from smoking during contacts – though they went outside away from the children to do so – which she said demonstrated that they could not put the children first.
Ms Herriot acknowledged, when interviewed by Mr Lennings, that if bonding and attachment were to develop there would be a need for more regular and focused contact, which was not possible under the current proposals. Ms Herriot told Mr Lennings that she did not see any need to remove the other children from the contacts, but that it should simply be recognised that the number of children meant that the birth parents could not easily bond with Jane-Helen; there is at least a hint in this that she is content for Jane-Helen to develop no attachment with them. In particular, it defies my understanding, in the context of a supposed open adoption proposal, that Mr Cotter and Ms Hogarth have not been permitted to know where their child is living or where she attends day care.
In her oral evidence at the final hearing, Ms Herriot said that she was keen to do whatever the experts thought best, and had embraced the proposed adoption plan (with contact reduced to four times per year) because that was what Barnardos recommended. She was asked to consider Mr Lennings’ opinion that while Jane-Helen was at her present young age contacts of four or six times per year might suffice in order to avoid undue stress, but:

… as time goes on I would see it appropriate that there be an understanding that Jane-Helen would have some increase in her contact with her biological family, perhaps around specific issues such as birthdays and the like. Thus I believe that the frequency of contact over time should increase if the purpose of the adoption order is also to maintain a sense of identity in Jane-Helen with her biological family although I would limit the amount of contact with the biological parents to no more than 8 to 10 contacts a year as to do otherwise particularly when Jane-Helen was younger would lead to significant time demands on Jane-Helen and her engagement in extra-curricular activities.

She said that this did not change her position, drawing attention to Mr Lennings’ observation that four to six times per year may be sufficient while she was as young as she was now, which she said “resonated” with her, while adding that if it was considered in Jane-Helen’s best interests that contact increase to eight or ten occasions per year, she would do so. When pressed, by the bench, on the issue, she said that her personal feeling at the moment was that she would like five contacts initially in the adoption plan with a view to increasing that over time, and explained that her preference for five over six was to align with the three older children who had five contacts.
One consequence of there being only five contacts, aligned with the other children, would be that there would be no contact at which there could be a focus on developing a relationship with Jane-Helen alone, undistracted by the demands of other children. However, Ms Herriot said that she would be happy to increase contact periods from two hours to three, and was absolutely open to some contacts involving only Jane-Helen and perhaps Evan.
I do not doubt that Ms Herriot will do whatever she is obliged to do in respect of birth parent contact, but I am unconvinced that she will take a proactively enthusiastic approach to it. My impression is that Ms Herriot is more than content that there be minimal opportunity for Jane-Helen to get to know her birth parents.
Ms Herriot’s track record with Jane-Helen is demonstrative of her commitment to the child, and her high quality parenting capacity. Her age – at 51 she is a relatively old parent for a 3 year old – does not inhibit this. But establishment and maintenance of a relationship between Jane-Helen and her birth parents and Evan could not confidently be in her hands alone.

The effects of adoption

Reduced to its legal essence, the effect of adoption is that the child ceases as a matter of law to be the child of her or his birth parents, and becomes the child of the adoptive parent. In other words, the legal link of parentage with the birth parents is severed, and replaced by a substituted link with the adoptive parent. Legal parentage, as well as parental responsibility for the child, is vested in the adoptive parents. And because an adoption order is, save in the exceptional circumstances referred to in s 93(4), irrevocable, the possibility of restoration of the child to the birth parents is practically foreclosed. An adoption order also severs the legal relationship between a child and his and or her birth siblings.
In other cases in which the effects of adoption have been considered, there has been a tendency to emphasise the beneficial effects of adoption in comparison to long-term foster care. That has been because, in many of those cases,[7] restoration has not been a realistic option, and the contest has been between adoption on the one hand, and ongoing foster care with either the Minister or the foster carers having parental responsibility on the other. In that context, the effects of adoption have been identified as including:[8]

First, adoption contributes to providing, for children who cannot be raised by their birth family, the stability, security and certainty that they need. It provides certainty and permanence for children, both directly, and indirectly through the additional certainty it affords their adoptive parents. The possibility of further changes, disruptions and separations are minimised. Aspirations to restoration expressed by birth parents are practically foreclosed. In this way, the security afforded by an adoption order is in the interests of the child as much as the adoptive parents.

Secondly, adoption serves the identity needs of such children – in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family – by bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own (and – because it is not limited to age 18 – not only during childhood, but for life). Adoption also places the children on an equivalent basis, with equivalent rights, as any biological children of the adoptive parents. While adoption legally severs the parental relationship between the children, the birth parents, and any biological siblings, that is typically in circumstances where the legal parental relationship has, in reality, been devoid of practical parental responsibility, and the opportunity for the children to know and have some relationship with their birth family is preserved, in the context of an open adoption, through contact. The security and certainty provided by an adoption order may provide a firmer basis for the adoptive parents to be supportive of contact between the child and the birth parents.

Thirdly, adopted children are raised in a legally recognised family, rather than remaining “State wards” for the duration of their childhood; “out-of-home” care is thus replaced by in “in-home” care. The need for departmental intervention, and departmental approval for significant decisions of the carers, is removed, along with the stigma potentially associated with being a “State ward”. [9] One aspect of this is that, where their legal name corresponds with that of the family with which they live and identify, they are enabled to choose for themselves whom they tell of their status, without it being self-evident from their different surnames. Children who do not live with their birth families tend to control knowledge of that circumstance closely, and the assumption of the adopters’ surname which is an ordinary concomitant of adoption facilitates this. [10]
7. See, for example, Adoption of RCC and RZA [2015] NSWSC 813 at [65]-[68]; Adoption of PS [2015] NSWSC 2159 at [90]-[100]; Adoption of SVS [2015] NSWSC 2043 at [25]-[29]; Adoption of NG (No 2) [2014] NSWSC 680 at [75]-[81]. An exception is Adoption of AT [2015] NSWSC 1666, in which the alternatives were restoration or adoption, and which bears some similarities to the present case, although restoration was far less attractive a proposition there than it is here.
8. Adoption of JLK and CRK [2017] NSWSC 7 at [76]-[78]. For a more extensive discussion of the benefits of adoption summarised below, see, for example, Adoption of NG (No 2) [2014] NSWSC 680 at [75]-[81], [88]-[98]; Adoption of RCC and RZA [2015] NSWSC 813 at [63]-[87]; Adoption of SRB, CJB and RDB [2014] NSWSC 138 at [54]-[59].
9. As to stigma, see Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 at [49]-[51].
10. See Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6 at [49]-[51].

Although it has invariably been acknowledged in those cases that adoption carries a risk that the child may feel unwanted or abandoned, and may encounter “identity issues” in later life – in particular in adolescence – it has been observed that such risk is incidental more to the circumstance that the child does not reside with his or her birth parents, than to adoption per se, and that whether in foster care, or under a parental responsibility order, or adopted, there is the same potential for the question, “why do I not live with my birth parents?”, and the risk of a sense of loss or abandonment. However, it has been observed that that risk can be mitigated if the child knows the birth parents and can continue to have a relationship with them, and that while the legal parental relationship with the birth parents is severed, they do not cease to be the birth parents and the relationship with them can be maintained through contact, while legal parenthood appropriately resides with those who are discharging the responsibilities of parenthood.
In a context where restoration is not a viable alternative and the child, if not adopted, will remain in long-term foster care and will not be residing with her or his birth parents, it has not been necessary to examine in depth the detrimental effects of adoption in comparison to restoration. In this case, where there is a real opportunity for Jane-Helen to live with and grow up in her birth family and restoration is a real option, it is necessary to give further consideration to the disadvantages of adoption, and of a child being raised other than in her or his birth family.
Before turning to the evidence of Mr Lennings on this question, I refer to the reports of two parliamentary inquiries, and a number of articles in social science literature, which refer to the effects of adoption. This Court is a specialist expert court, and receives expert evidence in many cases. As provided by Adoption Act, s 126:

Except as otherwise provided by this Act or the regulations, the Court, in the hearing of any proceedings or in determining any application or matter under this Act or the regulations, may act on any statement, document, information, or matter that may, in its opinion, assist it to deal with the matter of the proceedings or before it for determination whether or not the statement, document, information or matter would be admissible in evidence.

At least so far as is not inconsistent with procedural fairness, the Court is entitled to act on its accumulated experience in adoption matters, including matters of general application which it might have learnt in or through other cases.
The NSW Legislative Council Standing Committee on Adoption Practices [11] reported that “for many adopted people, their identity has been shaped by the fact of their adoption”. It referred to evidence of adopted people that “Adoption is such a fundamental part of my life experience and as such will quite often play a part in my attitude to values and beliefs in daily life as well as in response to life’s stresses”, [12] and that adoption “is at the core of my very being” and “has had more than its fair share into who I am, my life experiences, my personality, attitudes, feelings about myself and about others”. [13] Relevantly, reference was also made to evidence that some adoptees went through a confused period in adolescence, trying to come to terms with the fact that they had been “relinquished”, becoming rebellious, and flitting from friendship to friendship. However, given that a relatively small number of adopted people gave evidence to that inquiry, the Committee was careful to observe that it could not say whether such evidence was representative of the experience of adoptees.
11. NSW Legislative Council, Standing Committee on Adoption Practices, Releasing the Past: Adoption Practices 1950-1998 – Final Report, December 2000 at [9.31].
12. At [9.31].
13. At [9.32].
Similarly, the Senate Community Affairs Reference Committee, while acknowledging that some adopted people reported having been well cared for, and others that they had no wish to have a relationship with their natural parents, observed: [14]

However, many adopted people who submitted to this inquiry recounted damaging and painful experiences of their childhoods, and/or ongoing struggles with self-identity as well as seeking to meet or build a relationship with their birth parents. The committee emphasises that it is documenting the experiences of those who have submitted to this inquiry, rather than seeking to characterise the experience of adoption more generally.
14. Commonwealth of Australia, The Senate, Community Affairs Reference Committee, Commonwealth Contribution to Former Forced Adoption Policies and Practices, February 2012 at [4.3].

While many of the accounts reported by the Committee were associated with belated discovery of adoptive status, with not knowing who the adoptee’s natural parents were, with trans-cultural placements, and/or with poor treatment by the adoptive parents – none of which feature in the present case – some of what the Committee reported is relevant. First, the Committee reported many accounts that adopted status bore a societal stigma and exposed children to being teased. [15] When the issue of stigma was first raised by Ms Willoughby I was initially somewhat sceptical, but on reflection and consideration of this evidence – as well as of the secrecy in which adoptions have historically been shrouded – I agree that there is a stigma associated with adoptive status, even if it is less than that associated with the status of being a “state ward”.
15. At [4.9]-[4.10].
Secondly, the Committee reported that many adopted people who made submissions to its inquiry recounted ongoing negative effects of their adoption, including struggles with identity, mental and physical health. Adoptees reported having “found difficulties with trust of others, self-esteem, confidence, relationships and being a mother myself”; that “being separated from my parents and being brought up by strangers left me with identity confusion, a sense of not fitting, of being a fraud, an inability to maintain relationships and a belief that I was unlovable”, that “I was stripped of my innate identity, my intrinsic heritage and formally given a new name and family. I grew up with a profound sense of duality – of being part of a family and yet very much separate from them”; of “having my identity removed – my entire story about who I was – shattered my sense of self. Having a partial and meagre false identity attributed to me kept me in a state of traumatic confusion throughout my childhood to the current day”. [16] Notably, some adoptees with supportive adoptive parents explained that despite their positive childhood experiences, they still experienced challenges in adulthood which they attributed to their adoption. [17] The Committee concluded: [18]

The Committee heard from witnesses that the experience of being adopted, whether by an abusive or supportive adoptive family, has long-term effects on adopted people’s lives.
16. At [4.15]-[4.18].
17. At [4.23]-[4.25].
18. At [4.26].

In the literature, to which reference has often been made in these cases, which is supportive of adoption as superior to long-term foster care, it is nonetheless acknowledged that child protection clients generally are a high risk group for future suicidal behaviour and severe psychiatric morbidity, [19] and that the outcomes of both long term foster care and adoption for children who come into the child welfare system at an early age are substantially weaker than for majority population peers (although the foster children fall clearly short of adoptees on all outcomes). [20]
19. Vinnerljung B, Hjern A & Lindblad F (2006), ‘Suicide Attempts and Severe Psychiatric Morbidity Among Former Child Welfare Clients – A National Cohort Study’, Journal of Child Psychology and Psychiatry, 47(7): 723-733: former child protection clients should be considered a high risk group for future suicidal behaviour and severe psychiatric morbidity, being four to five times more likely than peers in the general population to have been hospitalised for serious psychiatric disorders in their teens and four to six times more likely in young adulthood.
20. 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: comparing outcomes of long term foster care and adoption for children who came into the child welfare system at an early age and concluding that, while the crude outcomes for both groups were substantially weaker than for majority population peers, the foster children fell clearly short of adoptees on all outcomes - including school performance at 15, cognitive competence at 18, educational achievement and self-support capability in young adult years, and also after adjustments for birth parent related confounders and age placement in substitute care.
The implications of adoption for the emotional and behavioural adjustment of children had been an issue in child welfare for many years. Earlier research suggested that adopted children were over-represented in mental health settings, and performed inferiorly to non-adopted children on measures of social, emotional, behavioural, and cognitive functioning. [21]
21. Sharma A R, McGue M K & Benson P L (1998), ‘The Psychological Adjustment of United States Adopted Adolescents and Their Non-Adopted Siblings’, Child Development, 69(3): 791-802.
A 1998 study of the psychological adjustment of adopted adolescents and their non-adopted siblings, using data from a national sample of 715 United States adoptive families to compare adopted adolescents with children born to the adoptive parents on a range of psychological and behavioural adjustment factor scales and an identity scale, concluded that the data supported a body of adoption research that found a pattern of small but significant differences between adopted and non-adopted persons – but also observed that the differences showing poorer adoptee adjustment in comparison to non-adoptees should not be overstated, as was sometimes the case in the adoption clinical literature. [22]
22. Sharma A R, McGue M K & Benson P L (1998), ‘The Psychological Adjustment of United States Adopted Adolescents and Their Non-Adopted Siblings’, Child Development, 69(3): 791-802.

The results of a 1999 study, using data from a large, representative sample in the United States to examine whether adopted children were more likely to have had mental health contacts or emotional or behavioural problems than non-adopted children, suggested that adopted and foster children were more likely to have mental health contacts than non-adopted children, but were mixed regarding whether adopted and foster children had more behavioural problems than non-adopted children. As significant differences between adopted, foster, and non-adopted children disappeared when a small group of influential cases were removed, it was considered that the differences seen between the groups might reflect a small number of cases and were not representative of the groups of adoptees and foster children as a whole, with the vast majority of adopted children showing patterns of behaviour problems similar to those of non-adopted children. [23]
23. Brand A E & Brinich P M (1999), ‘Behavior Problems and Mental Health Contacts in Adopted, Foster, and Non-Adopted Children’, Journal of Child Psychology and Psychiatry and Allied Disciplines, 40(8): 1221‑1229.
Another US study, in 2000, produced a similar picture. Attributing the discrepancy in the outcomes of earlier studies in part to many of them having been based on small clinical samples or on samples biased by self-selection – a nationally representative school survey was used to compare 1,587 adopted and 87,165 non-adopted adolescents across a wide variety of measures. Adoptees were found to be at higher risk in all of the domains examined, including school achievement and problems, substance use, psychological well-being, physical health, fighting, and lying to parents. Distributional analyses revealed approximately a 1:1 ratio of adopted to non-adopted adolescents in the middle ranges of the outcome variables, but a ratio of 3:1 or greater near the tails of the distributions. These data were said to clearly show that more adopted adolescents have problems of various kinds than their non-adopted peers; and that while effect sizes were small to moderate based on mean differences, the distributional analysis indicated that there were much larger proportions of adopted than non-adopted adolescents at the extremes of relevant outcome variables. [24]
24. Miller B C, Fan X, Christensen M, Grotevant H D & Van Dulmen M (2000), ‘Comparisons of Adopted and Non-Adopted Adolescents in a Large, Nationally Representative Sample’, Child Development, 71(5): 1458‑1473.
In a 2008 US study of adolescents who had been adopted in infancy, it was found that although adoptees scored only moderately higher than non-adoptees on quantitative measures of mental health, being adopted nonetheless approximately doubled the odds of having contact with a mental health professional and of having a disruptive behaviour disorder. [25]
25. Keyes M A, Sharma A, Elkins I J, Iacono W G & McGue M (2008), ‘The Mental Health of US Adolescents Adopted in Infancy’, Archives of Pediatrics and Adolescent Medicine, 162(5): 419-425.
Considerable caution is required in the interpretation of these results in the present context. Adopted children are typically a subset of children with child protection histories or, at the very least, of children from disadvantaged backgrounds, and the fact that adopted status is associated with inferior mental health, adjustment and behavioural outcomes is not necessarily attributable to the fact of adoption; it may well be associated with the circumstances that have placed the child in the category of those available for adoption, rather than with adoption as distinct from restoration.
However, at least one article supports the view that adoption of itself may contribute. In a 1980 article, [26] Brinich, reviewing earlier literature, observed that adopted children were referred for psychological treatment two to five times as frequently as their non-adopted peers in countries as widely dispersed as Great Britain, Israel, Poland, Sweden, and the United States, [27] and that there appeared to be a consistent trend in the symptomatology of the adopted children who were referred for treatment, with the referral symptoms in the great majority of studies including behaviour characterised as impulsive, provocative, aggressive, and antisocial. [28] He noted that several authors had remarked that some adoptive parents appeared to feel as if they had stolen their adopted children, [29] and that such feelings could become a special problem when they intruded upon the resolution of the separation-individuation phase in the adopted child, [30] as some adoptive parents, fearing that their children would leave them for someone else, found it difficult to allow their children the normal experiences of separation which are characteristic of this developmental phase. While adoption remained the optimal social solution to the problem of the child who could not be raised in his or her birth family, it posed numerous difficulties for the normal development of the self, including in the establishment of a sense of identity during adolescence, and in feelings of being unwanted – despite adoptive parents' best efforts to emphasize how much they want and love their adopted child.
26. Brinich P M (1980), ‘Some Potential Effects of Adoption on Self and Object Representations’, The Psychoanalytic Study of the Child, 35(1): 107-133.
27. Referring to Bohman (1971); Eiduson & Livermore (1953); Humphrey & Ounsted (1963); Kadushin (1967); Lifshitz et al. (1975); McWhinnie (1969); Reece & Levin (1968); Schechter (1960); Simon & Senturia (1966); Sweeney et al. (1963); Toussieng (1962); Work & Anderson (1971); Ziatek (1974).
28. Referring to Comments (1972); Eiduson & Livermore (1953); Goodman & Magno-Nora (1975); Jackson (1968); Menlove (1965); Nevrla (1972); Offord et al. (1969); Schechter et al. (1964); Simon & Senturia (1966).
29. Referring to Toussieng (1962); Walsh & Lewis (1969).
30. Referring to Mahler et. al. (1975).
While the circumstances which led to the child being adopted may well be a contributing factor, as I understand the article, the severance of the parental relationship with the birth family and its substitution with another by the legal act of adoption is itself implicated. Brinich explains that the child must include two separate sets of parents within her or his representational world, and this split in parental images creates problems at each developmental phase:

The adoption of a child is, in human terms, always a painful and potentially traumatic event. In our culture, adoption occurs only when something has gone quite seriously wrong: one or both parents have died, or are unable or unwilling to care for the child they have conceived. From the side of the adoptive parents, the decision to adopt a child often follows years of failure in their attempts to conceive a child of their own. Whether it is based upon physiological anomalies or upon psychological conflicts, this failure is something with which the adoptive parents must painfully come to terms. The tragedies, inabilities, and failures of both the biological and the adoptive parents are reflected in the adopted child and his psychological development. For the "realities" of the adult world mean little to the young child; the sudden death of loving biological parents may be experienced as a malicious abandonment; his adoptive parents may tell him that he was "chosen," but he may choose to believe he was stolen. No matter how often the adopted child is told that his adoptive parents are now his "real" parents, he can never completely ignore his first parents and the fact that they gave him up.

The only comparison of the outcomes of restoration and adoption which I have been able to find is a 1974 English study of 65 children aged 4.5 years who had spent their first 2 to 4 years in institutions, of whom 24 had been adopted and 15 restored to their birth mothers at a mean age of 3 years, while 26 remained in institutions. [31] The results included that the mean IQs of all groups were at least average, and that the adopted children had significantly higher IQs and were initially more friendly and less restless and distractible than the others. The adopted and restored children were significantly more friendly at the initial encounter than others. Restored children performed worst on the Weschler Intelligence Scale, but not significantly so. Adopted and restored children tended to be more cooperative during testing. Adopted children were the least frequently distracted and restless, and institutional children the most. Adopted children had broader life and literary experience than the others, and restored children the least literary experiences, but more everyday experiences. The authors concluded that the mean test results for the children who had been restored to their mothers were lower, though not significantly so, than those of institutional children, and explained:

In exchange for acquiring a mother they had lost some environmental advantages (e.g., they had many fewer toys and books and were read to less often). An alternative explanation for the results, that it was “too late” for a transfer from the institution to affect cognitive development, is not supported by the finding of a significantly higher mean IQ in the adopted group. These children had acquired not only a mother, but a much richer environment than was provided by the institution: on all our measures of breadth of experience the adopted children scored highest. The relative poverty of experience offered to the restored children probably has complex determinants; not only were the adoptive mothers older and of a higher social class than the mothers of the restored children, but their relationships with their children were much easier and happier.
31. Tizard B and Rees J (1974), ‘A Comparison of the Effects of Adoption, Restoration to the Natural Mother, and Continued Institutionalization on the Cognitive Development of Four-Year Old Children’, Child Development, 45(1): 92-99.

This study examined “institutional deprivation”, and so a comparison of adoption and restoration was not its focus. Moreover, restoration was from an institution, not from a settled and secure foster placement. Those caveats significantly affect the weight which it can be given in the present circumstances. Nonetheless, adoption appeared to provide superior outcomes, on account of the “complex determinants” to which the authors referred, which essentially amount to the relatively richer environment provided by the adoptive families.
Mr Lennings acknowledged that if Jane-Helen were to remain with Ms Herriot, she might encounter some identity confusion and self-esteem issues in adolescence:

She might, I think that’s all I can say, she might. On the other hand if she maintains contact with her birth family and then a reasonable relationship can evolve between them I think that would be avoided.

He explained that the potential consequences of identity issues associated with adoption include a sense of rebellion towards the adoptive parent, development of oppositional behaviour, perhaps a sense of confusion, and maybe even some depression. He said that there is some evidence that some adopted children will experience a severe crisis of identity, and will not only reject their adoptive parent but will, in a sense, feel misfits; that some may have self-esteem problems and difficulties in establishing and/or sustaining relationships; and that while they generally experience more anger than sadness, they can experience deep sadness as well. Asked to comment on the proposition that she might feel “abandoned”, “unwanted” or “confused”, he responded that it was possible, but:

I need to say that I’ve worked in this field a bit and I’ve worked with a number of young people over the years, and not everybody goes in search of their biological parents. And secondly, not everybody feels that it’s a crisis. They understand that things have happened along the way. They are able to appreciate that their parents have moved on and changed and they are able to understand why they haven’t been able to be restored to them. There are a lot of young people who are fairly sensible about those kinds of procedures, so it’s possible that it might cause distress and difficulty to Jane-Helen. But it’s also quite possible that she could accommodate that.

He did not agree that the fact that Evan remained in the care of the birth parents would compound the risk. While acknowledging that there was a risk, he pointed out:

No, I wouldn’t agree with that. I mean, it’s – it’s – it’s a possibility, but it’s not a – foregone conclusion. I mean, she will be in the situation where she will have at least three other siblings who have been adopted and she will have contact with them and knowledge of them as well. She will have a model that will be quite different from just simply there being Evan. So I – I think that there would be accommodating influences that might be fairly benign in this situation.

From the evidence, from the literature, and from human and judicial experience, it appears that many – perhaps most – children adopted in their early years will not encounter psychological, behavioural or adjustment issues greater than their non-adopted peers, and the richer environment provided by an adoptive family may well confer benefits which restoration would not. Nonetheless for a significant proportion of adopted children, their adopted status is an enduring issue. Adoption, even by capable and loving adopters, has an enduring effect on adoptees’ sense of who they are. And there is an element of stigma associated with adoptive status.
Even in successful placements, adopted children may encounter a number of issues. [32] First, they may grieve the loss of a relationship with their birth parents and the concomitant cultural and family connections. This grief may be triggered at any and many different times throughout the child's life, including when they first learn of their adoption, during the turbulent teen years, upon the death of other family members, or even when they themselves become a spouse or parent. Secondly, they can feel abandoned and abandonable, rejected and “not good enough” – feelings which may be accentuated if the birth parents have other children who reside with and are raised by them. Thirdly, adopted children may struggle with self-esteem and identity development issues more than their non-adopted peers, particularly in their teenage years. They may wonder why they were adopted, and want information about their birth family. Fourthly, these identity issues may be accompanied by feelings of guilt, as adopted children may feel as though they are betraying or hurting their adoptive family by expressing a desire to learn about or have contact (or more contact) with their birth family.
32. This paragraph draws heavily on Patricelli K, “Long-Term Issues For The Adopted Child”,
While these issues may be most pronounced and prevalent in closed adoptions where there is little or no information about or contact with birth parents, they may still arise in open adoptions. The manifestations of these issues include oppositional behaviour in respect of the adoptive parents, a sense of being a misfit and a lack of self-esteem, sense of confusion, difficulties in establishing and/or sustaining relationships, and sometimes some depression.

The effects of restoration

Mr Lennings’ terms of reference included how any restoration should be managed, as to which he reported that it would need to be a carefully managed gradual process with increasing contact over a period of several months:

If restoration is to take place it will need to be managed over a reasonable period of time. Obviously if the restoration is drawn out too long it will continue the confusion in Jane-Helen’s mind as to who her parents are and will amplify her difficulties in developing attachments to her biological parents. If it is too short the abruptness of it will be devastating and catastrophic to Jane-Helen’s psychological well-being.
A restoration plan would normally take place over a roughly three-month period possibly slightly longer depending on the reactions of Jane-Helen. This would take the place of the biological parents having frequent contact, at least three to four times a week with Jane-Helen for the first month such that Jane-Helen becomes quite familiar with them and engages well with them. Ms Herriot might initially supervise such contact in order to provide a transition for the parents to engage with Jane-Helen, particularly given my observation that Jane-Helen was quite unable to contain herself in the room with her parents without Ms Herriot being present. However gradually Ms Herriot would need to be withdrawn from that situation so that the parents would be able to enjoy and develop a relationship with Jane-Helen in the absence of Ms Herriot as a transition object. Once a good level of contact had been established with Jane-Helen she should start to spend some time overnight, probably once a week for a four week period with the biological parents so that she would get used to the idea of the physical environment of the house that she would be living in and also get used to the idea of having her siblings around her, and be able gradually to learn to tolerate absence from her foster mother. Frequent daytime contacts, at least some of which Mr Cotter should attend, would also be continuing. In the third month I would see the amount of time that Jane-Helen spends with her biological parents increasing from one night a week such that each week an additional night was added such that by the end of the third month Jane-Helen would then live permanently with Ms Hogarth. Depending on Jane-Helen’s response this final month might be extended and the process of change slowed somewhat; there would need to be recognition that the pace of change would depend to some extent on Jane-Helen’s responses to the gradual loss of Ms Herriot.
Ms Herriot’s role after that would become quite difficult. It would be likely if Ms Herriot were to continue to have much contact with Jane-Helen that would remain confusing for Jane-Helen and there is no doubt that Jane-Helen would continue to pine and possibly pine for some time for Ms Herriot. She will experience hardship upon leaving Ms Herriot on each occasion that she leaves. Nonetheless it seems to me that some kind of ongoing contact needs to occur between Jane-Helen and Ms Herriot such that Jane-Helen does not grow up feeling abandoned by Ms Herriot, which would be as equally catastrophic for her as if she was to be too hastily reunited with her biological parents.
I think the best way to conceptualise how Ms Herriot might have contact with Jane-Helen is to assume she would take on a role usual to a grandmother, and have some contacts around important events, be invited to key transitions for Jane-Helen and maybe the occasional overnight contact as she got older.

This is of significance not only in informing how a restoration would be managed, but also for identifying the effects and risks of a restoration even optimally managed. Restoring Jane-Helen to the care of her birth parents would involve a placement change. While the literature is virtually silent on the impacts of restoration from a proposed adoption, multiple placements are a contra-indicator for the psychological well-being and behavioural stability of children, and in particular vulnerable children. There is a risk of harm associated with any placement change, particularly if it is from one in which the child has developed a secure attachment. Again, consideration of these risks is informed in this case by the social science, the Court’s experience in other matters, and the expert evidence of Mr Lennings.

That conclusion accords with, though it does not depend on, the report prepared for the purposes of s 91(1), dated 13 December 2016, concerning the proposed adoption, by Ms Wald, a social worker and Barnardos’ Program Manager Adoptions, who concluded that adoption was the most appropriate plan for Jane-Helen, who had never resided with her birth parents, and needed a secure and nurturing environment to meet her health, emotional, social, educational and identity needs; that adoption would provide the greatest sense of permanency, stability and legal security; and that adoption would enable Ms Herriot to make decisions as Jane-Helen’s guardian and parent, recognising in a legal sense the commitment and attachment she already demonstrated. Ms Atkinson, Barnardos’ Regional Manager Adoptions, who accepted the report, wrote:

I believe that adoption offers Jane-Helen the best opportunity to continue to develop and grow in a stable, nurturing and secure environment. It provides legal recognition to the relationship that has developed since she was placed with the proposed adoptive parent. No alternative order would provide the same level of permanency and security. I believe that adoption is the best possible outcome for Jane-Helen.

I have not reached this conclusion easily, nor lightly, and I freely acknowledge that of all these cases of adoption from out-of-home care with which I have dealt over the last decade, I have found this the most difficult. That has necessarily caused me to question whether I am satisfied that the making of an adoption order would be clearly preferable in Jane-Helen’s best interests to a parental responsibility order, or the status quo, and thus preserving the possibility of restoration. However, it seems to me that either of those alternatives would involve preserving what would be in the circumstances a remote possibility, and would do so at the cost of such uncertainty and insecurity and stress in the meantime as would involve serious risks for Jane-Helen’s medium term welfare and development. Any advantages in the flexibility afforded by not making an adoption order (and thus preserving the possibility of restoration) are manifestly outweighed by the impact of continued uncertainty on the stability and security of her place with Ms Herriot. In my judgment, the benefits of certainty, permanence, stability and security in her placement with the person who Jane-Helen identifies as her parent, clearly outweigh the advantages of preserving the remote possibility of restoration to her birth parents, and the concomitant impact of continued uncertainty on the security of a well-established and beneficial placement, provided that adequate arrangements are in place for Jane-Helen to know and maintain links with her birth family. The essential relevant distinctions between this case and Director-General, Dept of Community Services v D (in which, in somewhat similar circumstances, I favoured a parental responsibility order in favour of the carers) are:

the absence of the trans-cultural element, the presence of which in D increased the likelihood of disruption of the placement during adolescence;

Jane-Helen’s lack of knowledge of and any connection with her birth parents; and

The exclusivity of Jane-Helen’s relationship with Ms Herriot, the consequence of which is that a restoration would involve even more radical and shattering changes to Jane-Helen’s world.

It follows that in my judgment, subject to establishing appropriate arrangements for birth family contact, Jane-Helen’s best interests will be promoted by adoption by Ms Herriot, and the making of an adoption order would be clearly preferable in her best interests to any other action that could be taken by law in relation to her care.

Birth parent contact and the adoption plan

The foregoing however assumes arrangements for birth family contact which can mitigate the risk of the issues which might arise from adoption by enabling Jane-Helen to develop knowledge of and a relationship with her birth family, and in particular with Ms Hogarth, Mr Cotter and Evan. Mr Lennings’ suggestion that the extant arrangements for birth family contact would enable Jane-Helen to continue to develop an identity with her birth family, assist in developing and maintaining her sense of identity, and thereby address the main consideration that would support restoration, directs attention to the adequacy of the proposed contact regime to mitigate the risks associated with being raised apart from her birth family. As Mr Lennings observed in his report, a good knowledge of the biological family is a critical issue for children feeling secure in their identity, and birth parent contact is an important aspect of satisfying the identity needs of children who do not reside with their birth family, and mitigating the risks of later identity issues.
As the parties to the adoption (being in the circumstances the Principal Officer and Ms Herriot)[50] have agreed to an adoption plan, the Court may not 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. [51] Whether the arrangements are proper in the circumstances requires consideration of all the circumstances relevant to the arrangements, and in particular the purpose of “open adoption” – being one in which the child will know and have contact with her birth family. And although it may be observed that if there is no adoption plan providing for contact there is no such statutory hurdle, nonetheless the arrangements for birth parent contact are relevant to whether an adoption order should be made, regardless of whether or not there is an adoption plan, because they bear on whether the child’s identity needs will be adequately addressed, and thus whether adoption is in her best interests.
50. Although a non-consenting birth parent is not otherwise a party to the adoption, under Adoption Act, s 46(2B), a non-consenting birth parent who agrees to an adoption plan is to be treated as if he or she were a party to the adoption for the purposes of the making, registration and review of the adoption plan. Here, however, the birth parents have not agreed to the adoption plan; so the parties to it are only the Principal Officer and Ms Herriot.
51. Adoption Act, s 90(2).
The Secretary proposed that the adoption plan be registered. Registration provides an additional measure of assurance to birth parents in respect of contact, as a registered plan is enforceable as if it were an order of the Court,[52] and, even if they are not parties to the plan, they have standing to enforce the deemed order in their favour. [53] For that reason, and not least because of my sense that while Ms Herriot will comply with her legal obligations in respect of contact she may not proactively promote birth parent contact, I would register the plan were I satisfied, for the purposes of s 50(3)(c), that its provisions were in the child's best interests and proper in the circumstances.
52. Adoption Act, s 50(4).
53. Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306.
As has been noted, the adoption plan, in its amended form, provides for Jane-Helen to have face-to-face contact with her birth parents:

until she is aged 7, at least five times per year in conjunction with contact with all seven of her siblings and half-siblings (including Evan), and an additional once per year without the siblings other than Evan; and

from 7 years of age, at least six times per year in conjunction with contact with all seven of her siblings and half-siblings (including Evan), and an additional once per year without the siblings other than Evan.

In addition, the proposed plan provides for telephone contact by Facetime at least twice per year, and additional informal contact with Emma, Jack and Kane.
This adoption plan provides (at least for the time being) no more contact (six times per year in all) than the current arrangements, which were established after the final orders of the Children’s Court were made. And it provides for less contact (six times per year) in earlier years, slightly increasing (to seven times per year) after age seven – whereas it is conventionally understood that for younger children, more frequent contact of shorter duration is appropriate (because they have less capacity to retain and sustain the memory between contacts), whereas for older children (who can better sustain memories and who will have competing activities of their own) less frequent contact but for longer periods is suitable. It is counter-intuitive that there should be fewer contacts before age 7 and more afterwards.
Most importantly, however, the adoption plan does not address the problem that any real opportunity for Jane-Helen to get to know her birth parents is inhibited by the complexity of the arrangements, and the number of children competing for their parents’ attention on the limited number of contact visits, which factors have so far produced the result that Jane barely knows her birth parents. In his report, Mr Lennings noted that the adoption plan proposed four contacts annually (as it originally did), while observing that Ms Herriot anticipated increased sibling contact. He commented that four contacts a year would be unlikely to meet the need of providing Jane-Helen with a sufficient knowledge of her biological family to feel secure in her identity: though four to six occasions annually might suffice at present in order to avoid undue stress, given the amount of travel and the number of siblings involved, he thought some increase over time appropriate, perhaps around specific occasions like birthdays. He suggested up to eight to ten contacts per year for identity purposes. In his oral evidence, Mr Lennings agreed that under the proposed arrangements, it was possible that Jane-Helen could go through the next ten years without really getting to know her birth parents at all, and would develop no sense of identification with them.
Six contacts per year until age 7, of which only one would be exclusive to Evan and the others would be shared with the other six siblings, affords a very limited opportunity (in a context where there are so many other children to be accommodated) for Jane-Helen to get to know her birth parents, and Evan, at all. I do not see how the proposed arrangements, providing for only one visit per annum with Jane-Helen alone, are going significantly to ameliorate the circumstance that Jane-Helen barely knows her birth parents. In my view, if they were implemented, she would still barely know them by age 7. They are not in my view adequate to mitigate the risks to her identity needs which would otherwise arise from severance of the legal relationship with her family of origin. Proper arrangements, in the event of an adoption order being made, would be approximately as suggested by Mr Lennings, with Jane-Helen having contact with her birth parents at six-weekly intervals (which is about nine occasions per year), of which five should include all her siblings, and the other four only Evan.
In my judgment, even as amended, the proposed adoption plan does not provide a sufficient opportunity for Jane-Helen to develop a relationship with her birth parents to mitigate the risks of identity issues associated with adoption. Accordingly, I am not satisfied that the arrangements proposed in the adoption plans are proper in the circumstances. That conclusion precludes me from making an adoption order, unless and until it be addressed.

Consent dispense order

For the purposes of s 90(1)(d), I am satisfied that consent to the adoption of the child has been given by every person whose consent is required under the Act, other than the birth parents.
Because the birth parents have not given consent, an adoption order can be made only if their consent is dispensed with. For the purposes of s 59, the birth parents were provided with a copy of the Mandatory Written Information on 21 February 2016, and the updated version on 20 July 2016. For the purposes of s 72, at least 14 days’ notice of the application for a consent dispense order has been given to the birth parents, who have been joined as defendants having filed notice of appearance in the proceedings and have appeared by their solicitor to oppose the orders.
Dispensing with consent is a grave step, not lightly to be taken, and the law permits the consent of birth parents to be dispensed with only in limited circumstances. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child’s welfare. In 2006, however, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of an authorised carer (or carers) and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by that carer (or carers). This was explained, in the second reading speech, [54] as enabling consent to be dispensed with where adoption would enhance a child’s sense of belonging and permanence in the carers’ family notwithstanding that there is no concern about the child’s current welfare (as distinct from the child’s welfare at the beginning of the placement). Section 67(1)(d) is concerned not with the capacity or quality of the birth parents, but with the child’s present situation. [55]
54. Hansard, Legislative Council, 25 October 2006.
55. Re Sarah [2013] NSWCA 379 at [68], approving Re Stephen [2011] NSWSC 1521 at [59] (Slattery J).
One of the conditions for dispensing with consent under this head is satisfaction that adoption by the carers will promote the child’s welfare,[56] and the Court may not make a consent dispense order unless satisfied that it is in the best interests of the child to do so. [57] However, because a consent dispense order is a necessary precondition to making an adoption order, these questions are usually if not invariably interwoven with consideration of the ultimate issue posed by s 90(3), whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child. If adoption is clearly preferable, then it must be in the child’s best interests that a consent dispense order be made, to permit the adoption order to be made. If adoption is not clearly preferable, then there is no point or utility in making a consent dispense order. Accordingly, the policy that underlies s 67(1)(d) is that once a child has been removed from his or her parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced, if the court is satisfied that the interests of the child will clearly best be served by adoption.
56. Adoption Act, s 67(1)(d)(ii).
57. Adoption Act, s 67(2).
The orders of the Children’s Court of 10 August 2015, allocating parental responsibility for Jane-Helen to the Minister until 18 years of age, represent a judgment by a specialist Court of competent jurisdiction that it was necessary in her interests for her to be placed permanently elsewhere than with her biological parents. There is no dispute that the relevant preconditions under Adoption Act, s 67(1)(d) – in terms of the application being made by an authorised carer with whom the child is in a well-established stable relationship – are satisfied, and the only issue involves the overlapping and interdependent questions whether adoption by the carer will promote the child’s welfare and whether it is in the child’s best interests that a consent dispense order be made, both of which ultimately turn on whether adoption is the clearly preferable solution.
As I have concluded that, subject to proper arrangements for birth parent contact, making an adoption order would promote Jane-Helen’s welfare and be in her best interests, it would also necessarily be in her best interests to make a consent dispense order, so as to allow the adoption order to be made notwithstanding that the birth parents do not consent to it. Accordingly, if the deficiencies in the adoption plan can be addressed, I would make an order pursuant to s 67(1)(d) that the consent of the birth parents be dispensed with.

Names

The Secretary seeks an order that the child have the surname Herriot and the forenames “Jane-Helen Evelyn Hogarth”.
Adoption Act, s 101, relevantly provides that on the making of an adoption order, an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. Before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes; Jane-Helen is not of an age to express such wishes.
Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child’s family name accords with that of his or her legal family. Thus, one of the features of adoption, at least in the case of a child under 18, and one of the most obvious indicia of permanent membership of the adoptive family, is the assumption of its family name. 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 surname. Indeed, children see that outcome as one of the most significant manifestations of the sense of “belonging” that adoption is intended to nurture. Not to do so would detract from one of the fundamental and practical benefits and hallmarks of adoption. It would be an extraordinary – almost inconceivable – case in which one could conclude that adoption is in a child’s best interests because it cements his or her membership of the adoptive family, yet the child should not acquire the surname of the adoptive family. Thus, it would be nonsensical in this context to make an adoption order without conferring on Jane-Helen the surname of her adoptive parent.
As to forenames, the Court must not approve a change in the given name or names of a child who is more than one year old unless the Court is satisfied that the name change is in the best interests of the child. The adoption principles set out in s 8 include, in (e), that a child’s given name or names, and identity, should, as far as possible, be preserved.
Inclusion of “Hogarth” as an additional forename would serve to preserve the connection with the birth family, and contribute to meeting Jane-Helen’s identity needs and mitigating the risk of identity issues. It does not detract from preservation of her existing given names, and promotes rather than detracts from preservation of her identity. I am satisfied that its inclusion is in her best interests.
Accordingly, were an adoption order to be made, I would order that upon adoption, Jane-Helen have the surname Herriot and the forenames “Jane-Helen Evelyn Hogarth”.

Conclusion

The fundamental issue in this case is whether Jane-Helen should be adopted by Ms Herriot, with whom she has a well-established and secure bond of attachment, or restored to the care of her birth parents, who are now well capable of caring for her and wish to do so, but whom she barely knows. That restoration would be devastating for Ms Herriot is irrelevant, because no adult has a right to adopt a child. And while it is a relevant consideration that adoption would be contrary to the wishes of the birth parents, those wishes must yield to the best interests of the child, which are paramount.

In my judgment, the benefits of restoring Jane-Helen to her birth parents now, though not insignificant, do not justify the significant associated risks. Restoration involves considerably greater risk for Jane-Helen’s welfare – particularly in the shorter term, but also in the longer term – than adoption. In the short term, removing her from the care of the only parent and environment she has known, and placing her in the care of her birth parents – whom she barely knows – in a quite different environment, would be very distressing for her; and whether she would successfully reattach to them is unknown and unknowable, notwithstanding some favourable factors. While her best interests in the longer term are more ambiguous – because being raised by her birth parents in her family of origin would avoid the identity and self-esteem issues that may be associated with adoption – severing her attachment to Ms Herriot has significant long term consequences – in particular, an elevated risk of depression, and a distrust of close relationships – which risks are of greater magnitude than those associated with the alternatives. In the light of the greater likelihood and magnitude of the risks associated with restoration, and because the risks of adoption are more amenable to mitigation (through sustaining a relationship with her birth family) than are those of moving her, I am convinced that it is contrary to Jane-Helen’s interests to have her secure attachment to Ms Herriot disrupted, particularly at her present age.
Either of the remaining alternatives to adoption – both of which would involve Jane-Helen remaining at least for the time being in Ms Herriot’s care, whether under a parental responsibility order in her favour, or with the Minister retaining parental responsibility – would preserve what would be in the circumstances a remote possibility of future restoration, at the cost of such uncertainty, insecurity and stress in the meantime as would involve serious risks for Jane-Helen’s medium term welfare and development. In my judgment, the benefits of certainty, permanence, stability and security in her placement with the person who Jane-Helen identifies as her parent, clearly outweigh the advantages of preserving the remote possibility of restoration to her birth parents, and the concomitant impact of continued uncertainty on the security of a well-established and beneficial placement, provided that adequate arrangements are in place for Jane-Helen to know and maintain links with her birth family.
It follows that in my judgment, subject to establishing appropriate arrangements for birth family contact, Jane-Helen’s best interests will be promoted by adoption by Ms Herriot, and the making of an adoption order would be clearly preferable in her best interests to any other action that could be taken by law in relation to her care. This conclusion involves no adverse reflection on the present and future parenting capacity of Ms Hogarth and Mr Cotter, who have done everything that could be asked of them to address their former shortcomings as parents, and who I accept are now well and truly capable of parenting Jane-Helen. Rather, the outcome is a consequence of history, that Jane-Helen was placed with Ms Herriot at a very young age and has lived with her ever since, and as a result has established a stable secure primary bond of attachment to her, but – because of the sub-optimal contact arrangements – no attachment to her birth parents.
However, the proposed adoption plan does not provide a sufficient opportunity for Jane-Helen to develop a relationship with her birth family to mitigate the risks of identity issues associated with adoption, and I am therefore not satisfied that the arrangements proposed in the adoption plan are proper in the circumstances. That conclusion precludes me from making an adoption order, unless and until it be addressed. If an adoption order is to be made, Jane-Helen should have contact with her birth parents at six-weekly intervals, of which five per annum should include all her siblings, and the other four only Evan.
As I have concluded that, subject to proper arrangements being established for birth parent contact, making an adoption order would promote Jane-Helen’s welfare and be in her best interests, it would also necessarily be in her best interests to make a consent dispense order, so as to allow an adoption order to be made notwithstanding that the birth parents do not consent to it. If the deficiencies in the adoption plan can be addressed, I would make an order pursuant to s 67(1)(d) that the consent of the birth parents be dispensed with.
To make an adoption order without conferring on Jane-Helen the surname of her adoptive parent would detract from the benefits and hallmarks of adoption. Inclusion of “Hogarth” as an additional forename would serve to preserve the connection with the birth family, and contribute to meeting Jane-Helen’s identity needs and mitigating the risk of identity issues. Were an adoption order to be made, I would order that upon adoption, Jane-Helen have the surname Herriot and the forenames “Jane-Helen Evelyn Hogarth”.
I will adjourn the proceedings to a date to be fixed, to enable the parties to give consideration to these reasons and address, if they can, the deficiencies in the adoption plan.

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Endnotes

Decision last updated: 31 January 2019

Medium Neutral Citation:	Adoption of Hogarth (No 2) [2019] NSWSC 9
Hearing dates:	18, 19, 20 December 2017
Date of orders:	18 January 2019
Decision date:	18 January 2019
Jurisdiction:	Equity - Adoptions List
Before:	Brereton J
Decision:	Adoption would promote best interests of child and is clearly preferable to any other action that can be taken by law, provided that appropriate arrangements are established for birth family contact, but proposed adoption plan is not proper in the circumstances, which precludes making an adoption order unless remedied.
Catchwords:	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 alternatives include restoration to birth parents, or parental responsibility order to carer – where child has established secure bond of attachment with adoptive applicant – where birth parents now have parenting capacity – respective advantages and disadvantages of restoration, adoption, parental responsibility to carer and parental responsibility to Minister – relative risks of severing bond of attachment with carer and adoption – held, risks of severing bond outweigh those of adoption – held, subject to appropriate arrangements for birth parent contact, 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. 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 – where plan provides inadequate opportunities for child to know and develop relationship with birth parents – held, plan not proper in the circumstances. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent – dispensing with consent – where adoptive applicant is approved carer 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 order so as to permit adoption order to be made. FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – names – assumption of adoptive parent’s surname is a fundamental feature of adoption and a manifestation of its benefits – inclusion of former surname as a middle name is in child’s interests as means of preserving the child’s identity
Legislation Cited:	(NSW) Adoption Act 2000, ss 8(1), (2), s 50, s 67(1)(d), s 90, s 101, s 126 (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90
Cases Cited:	Adoption of AT [2015] NSWSC 1666 Adoption of EDH, JSH and KJH [2017] NSWSC 1861 Adoption of JLK and CRK [2017] NSWSC 7 Adoption of NG (No 2) [2014] NSWSC 680 Adoption of PS [2015] NSWSC 2159 Adoption of RCC and RZA [2015] NSWSC 813 Adoption of SRB, CJB and RDB [2014] NSWSC 138 Adoption of SVS [2015] NSWSC 2043 Director-General, Dept of Community Services v D and Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 Director-General, NSW Department of Family and Community Services; Re JS [2013] NSWSC 306 Re an Infant K [1973] 1 NSWLR 311 Re D; Application of A [2006] NSWSC 1056 Re Sarah [2013] NSWCA 379 Re Stephen [2011] NSWSC 1521 Secretary, Department of Family and Community Services v Smith [2017] NSWSC 6
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 Brand A E & Brinich P M (1999), ‘Behavior Problems and Mental Health Contacts in Adopted, Foster, and Non-Adopted Children’, Journal of Child Psychology and Psychiatry and Allied Disciplines, 40(8): 1221‑1229 Brinich P M (1980), ‘Some Potential Effects of Adoption on Self and Object Representations’, The Psychoanalytic Study of the Child, 35(1): 107-133 Brodzinksy D M (1993), ‘Long-Term Outcomes in Adoption’, The Future of Children, 3(1): 153‑166 Commonwealth of Australia, The Senate, Community Affairs Reference Committee, Commonwealth Contribution to Former Forced Adoption Policies and Practices, February 2012 Holloway J S (1997), ‘Outcome in Placements for Adoption or Long Term Fostering’, Archives of Disease in Childhood, 76(3): 227-230 Keyes M A, Sharma A, Elkins I J, Iacono W G & McGue M (2008), ‘The Mental Health of US Adolescents Adopted in Infancy’, Archives of Pediatrics and Adolescent Medicine, 162(5): 419-425 Miller B C, Fan X, Christensen M, Grotevant H D & Van Dulmen M (2000), ‘Comparisons of Adopted and Non-Adopted Adolescents in a Large, Nationally Representative Sample’, Child Development, 71(5): 1458‑1473 NSW Legislative Council, Standing Committee on Adoption Practices, Releasing the Past: Adoption Practices 1950-1998 – Final Report, December 2000 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 Sharma A R, McGue M K & Benson P L (1998), ‘The Psychological Adjustment of United States Adopted Adolescents and Their Non-Adopted Siblings’, Child Development, 69(3): 791-802 Tizard B and Rees J (1974), ‘A Comparison of the Effects of Adoption, Restoration to the Natural Mother, and Continued Institutionalization on the Cognitive Development of Four-Year Old Children’, Child Development, 45(1): 92-99 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 Vinnerljung B, Hjern A & Lindblad F (2006), ‘Suicide Attempts and Severe Psychiatric Morbidity Among Former Child Welfare Clients – A National Cohort Study’, Journal of Child Psychology and Psychiatry, 47(7): 723-733
Category:	Principal judgment
Parties:	Secretary, NSW Department of Family and Community Services, by his delegate the principal officer of Barnardos Australia (plaintiff) Felicity Evelyn Hogarth (first defendant) Aiden James Cotter (second defendant)
Representation:	Counsel: Ms M Neville Ms V Willoughby (solicitor) Solicitors: Crown Solicitor’s Office (plaintiff) Willoughby Law (defendants)
File Number(s):	A188/2016