Adoption of IEK

[2019] NSWSC 171

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Adoption of IEK [2019] NSWSC 171

Hearing dates:

26 – 28 November 2018

Date of orders:

01 March 2019

Decision date:

01 March 2019

Jurisdiction:

Equity - Adoptions List

Before:

Robb J

Decision:

(1) The Court makes orders in terms of prayers 1 and 2 of the summons.

(2) Subject to the Court being satisfied with the revised maternal adoption plan to be provided in accordance with par (3), in accordance with the requirements of s 90(2) of the Adoption Act 2000 (NSW), the Court will make orders in the terms of prayers 3 to 6 of the summons.

(3) The Secretary, by his delegate, the Principal Officer, Barnardos Australia, together with the birth mother and the proposed adoptive mother are directed to confer for the purpose of seeking to agree upon the terms of a revised maternal adoption plan in accordance with the reasons for judgment, and in particular par 294.

(4) The persons referred to in par (3) are directed to inform the Associate to Robb J within four weeks of the publication of these reasons for judgment of the position reached between them concerning the preparation of a revised maternal adoption plan for the purpose of the Court making such directions for the further conduct of the proceedings as may be appropriate, and if necessary the determination of the terms of an appropriate maternal adoption plan.

Catchwords:

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – contested adoption – whether an adoption order should be made – whether the best interests of the child will be promoted by the adoption – whether adoption is clearly preferable to all alternatives that may be available by law

 

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – sole parental responsibility order – Adoption Act 2000 (NSW) section 92 – powers of the Court – the extent of the power of the Court to make ‘orders in relation to the parental responsibility for the child concerned as it thinks fit’

 

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent to adoption – whether the consent to the making of the adoption order by the birth parents should be dispensed with

  FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plan – whether the arrangements in the adoption plan are in the child’s best interests and are proper in the circumstances

Legislation Cited:

Adoption Act 2000 (NSW)
Adoption of Children Act 1965 (NSW)
Adoption Regulation 2015 (NSW)
Births, Deaths and Marriages Registration Act 1995 (NSW)
Child Protection Legislation Amendment Act 2014 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW)
Family Law Act 1975 (Cth)
Status of Children Act 1996 (NSW)

Cases Cited:

Adoption of BS (No 3) [2013] NSWSC 2033
Adoption of J [2016] NSWSC 1098
Adoption of NG (No 2) [2014] NSWSC 680
Adoption of RCC and RZA [2015] NSWSC 813
Adoption of SVS [2015] NSWSC 2043
CAC v Secretary, Department of Family and Community Services [2015] NSWCA 105
D v Director-General Department of Community Services [2005] NSWCA 474; (2005) 34 Fam LR 445
Department of Community Services v D [2004] NSWSC 1241; 33 Fam LR 555
Director-General of the Department of Community Services v Priestley [2004] NSWSC 639
In the marriage of Rice and Asplund [1978] FamCA 84; [1979] FLC 90-725; (1978) 6 Fam LR 570
Re Adoption of JLK and CRK [2017] NSWSC 7
Re Alan (2008) 71 NSWLR 573; [2008] NSWSC 379
Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608
Re Georgia and Luke (No 2) [2008] NSWSC 1387; (2008) 40 Fam LR 247
Re Liam [2005] NSWSC 75; (2005) 33 Fam LR 86
Re the Adoption of AJH [2017] NSWSC 1751
Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157
Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19
TF v Department of Family & Community Services [2015] NSWSC 694
Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27

Texts Cited:

Prof J Cashmore and Dr N Ross, “Adoption reforms New South Wales style: A comparative look” (2016) 30 Australian Journal of Family Law 51

Category:

Principal judgment

Parties:

The Secretary, New South Wales, Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia (Plaintiff)
DSC (First Defendant)
EK (Second Defendant)

Representation:

Counsel:
D Ward (Plaintiff)
G Hill (Second Defendant)

  Solicitors:
Crown Solicitors’ Office (Plaintiff)
Fay Rose Legal (Second Defendant)

File Number(s):

A190/2017

Judgment

1. The Secretary, New South Wales Department of Family and Community Services (FACS), commenced these proceedings for the making of an adoption order and certain related relief by his delegate, the Principal Officer, Barnardos Australia, on 8 December 2017.

2. The proceedings concern a girl aged about 6 years at the time of the hearing on 26, 27 and 28 November 2018, who I will call the child, or alternatively I will refer to her by her initials as IEK. The child was born on 25 October 2012.

3. The birth parents of the child are the first defendant, who I will call the father or DSC, and the second defendant, who I will call the mother or EK.

4. IEK has a maternal half-sibling, her brother RK, and a paternal half-sibling, her brother SJC.

5. The Secretary asks for an order for the adoption of the child by a single woman, who I will call PAP, or the adopting parent. PAP is not a party to the proceedings.

6. I acknowledge that it may appear impersonal for me to refer to the child and the persons who have an interest in her future by description or by their initials. This is, however, the customary approach of the courts in order to permit the judgment to be published for the benefit of any member of the public who may take an interest in it, without identifying the interested parties. This is in keeping with the spirit of s 180 of the Adoption Act 2000 (NSW) (Adoption Act), which makes it an offence for other parties to publish material that identifies, or is reasonably likely to identify, the persons to whom I will refer by description or by their initials.

Orders sought

7. By his summons, the Secretary asks the Court to make the following orders:

1.   A declaration pursuant to Status of Children Act1996, s 21(2) that [DSC] is the father of [IEK].

2.   An order pursuant to Births, Deaths and Marriages Registration Act 1995 s 19(2), for the inclusion of [DSC] as the father of [IEK] in the Register of Births, Deaths and Marriages.

3.    That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child’s birth mother, [EK] be dispensed with.

4.   That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child’s birth father, [DSC] be dispensed with.

5.   An order for the adoption of the child [IEK] in favour of the adopting parent [PAP].

6.   An order approving the name “[P]” as the surname and “[IEK]” as the given names of the child.

8. It will be convenient to start by considering whether the Court should make the adoption order sought in prayer 5 and an order approving a change in the child’s name as sought in prayer 6. That will require the Court to consider whether, before actually making the adoption order, it should make orders dispensing with the consent of the mother and the father, as neither has consented to the adoption order being made. Finally, I will deal with prayers 1 and 2, as DSC has not been entered as the child’s father in the Register of Births, Deaths and Marriages.

9. The Secretary has prosecuted these proceedings by his delegate, the Principal Officer, Barnardos Australia, and was represented by counsel at the hearing. DSC did not file an appearance and was not represented at the hearing. EK did file an appearance, and was represented by counsel at the hearing, and opposed the orders sought by the Secretary for the adoption of the child and other related relief in-so-far as it was relevant to EK’s position.

10. As is clear from the relief claimed in the summons, the Secretary seeks an order for the adoption of IEK by PAP. The making of that order is supported by PAP.

11. On the other hand, EK submitted that the best interests of the child require that IEK be restored to her biological mother's full-time care, which I understand to mean that the Court should make an order granting sole parental responsibility for IEK to EK until the child attains the age of 18 years. That order would be necessary to counteract an order made by the Children’s Court granting sole parental responsibility for IEK to the Minister. It would also exclude DSC being entitled to exercise parental responsibility in relation to IEK.

12. EK pursued her claim for an order granting her sole parental responsibility for IEK on the basis of a submission that an order to that effect would be preferable to the making of the adoption order sought by the Secretary, and based her claim on the evidence tendered in these proceedings, as if this Court were required to decide the issue anew, without regard to orders that have already been made in the Children’s Court, and the reasons that supported the making of those orders. EK did not attempt to prove that this Court should make different orders than have been made by the Children’s Court because circumstances have materially changed since those orders were made. EK has relied on the power apparently granted to this Court by s 92 of the Adoption Act to “make such orders in relation to the parental responsibility for the child concerned as it thinks fit” if it refuses to make the adoption orders sought by the Secretary.

13. Much of the reasoning in this judgment is concerned with the question whether the Court in fact has the power assumed by EK, whether there are any limitations on that power, and how such power as may be available should be exercised.

14. There are other alternatives available to the Court in respect of IEK's future, and I will return to identify them after I have considered the terms of the relevant legislation.

History of child care orders

15. It will be convenient for me to outline at this point how the legislation governing the care and protection of children has been applied to IEK and her maternal brother, RK, as this will facilitate the identification of the principle issues.

16. As I have said, IEK was born on 25 October 2012. She was not assumed into the Minister's care for some two years, so for that period she was in the care of EK.

17. The evidence of the Delegate, Denise Kay Berry, was that between 20 June 2012 and 9 December 2014 FACS received 12 risk of significant harm reports and five non-risk of significant harm reports regarding the child.

18. The concerns raised by these reports included drug and alcohol misuse, mental health issues and concerns regarding the mother's parenting capacity, such as leaving the child with inappropriate and unsafe people, lack of supervision and presenting as distressed. The reports also raised concerns of domestic violence perpetrated by IEK's previous partner (who was not the child's father) towards the mother and that the mother was sexually assaulted in the child's presence.

19. FACS received a risk of significant harm report on 5 December 2014 and a non-risk of significant harm report on 8 December 2014.

20. The risk of significant harm report of 5 December 2014 raised concerns in relation to the mother's ability to care for the child, including allegations that the mother presented as distressed and requested that the child be placed in foster care, had used inappropriate disciplinary methods, had on occasion left the child unintended and unsupervised, and had disclosed that she may harm the child. The report also alleged that the mother had a history of depression, drug and alcohol abuse and self-harm.

21. The non-risk of significant harm report of 8 December 2014 alleged that the mother had disclosed that she may hurt the child, and raised concerns in relation to neglect and drug abuse.

22. On 9 December 2014, FACS conducted a safety assessment in relation to the child, with the result that the child was assessed as unsafe in the mother's care. She was assumed into the care of the Minister on that date and placed with a FACS authorised carer.

23. On 12 December 2014, an application was filed in the Children's Court on behalf of the Secretary commencing proceedings in relation to the child.

24. The Children's Court made interim orders for parental responsibility for the child to be allocated to the Minister on 16 December 2014.

25. EK participated in the proceedings and was legally represented.

26. On 19 February 2015, the Secretary filed a care plan pursuant to s 78 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act). In par 5.1 of the care plan, the Secretary stated that FACS had formed the view that there was not a realistic possibility of restoration of the child to the care of the mother at that point in time. The secretary said:

[EK] presents as a parent who loves her daughter [IEK] but who at times has struggled to care for her appropriately due to her own mental health and well-being; her drug and alcohol misuse, both of which are likely impacted by her own trauma history. This has left [EK] unable to prioritise [IEK's] needs over her own.

27. In par 6.1, the Secretary stated the opinion that guardianship would not provide a safe, nurturing, stable and secure environment for the child, as "no family member or other person has been proposed by [EK] to be assessed to take on the role of Guardian of [IEK]". This is a reference to the possibility that a guardian could have been appointed for the child under ss 79A and 79B of the Care Act.

28. Paragraph 6.2 of the care plan requires the Secretary to respond to the question whether adoption would provide a safe, nurturing, stable and secure environment for the child. The care plan notes that this Court has jurisdiction under the Adoption Act and that identifying adoption as a suitable arrangement for the child does not mean that the child will automatically be adopted. The Secretary answered yes to this question and gave the following reasons:

In the event that the Court determines there is not a realistic possibility of the restoration of [IEK] to the care of [EK], adoption will be considered as part of [IEK's] case plan goal.

Given [IEK's] young age, this will provide [IEK] with a permanent home, with permanent care givers; it will offer [IEK] safety, security and connection to a family structure in which she can grow and develop.

29. The Secretary noted that EK sought restoration of the child to her care.

30. In par 9.2, the Secretary sought orders pursuant to s 79(1)(b) and s 81(1)(b) of the Care Act that parental responsibility for the child be allocated to the Minister until she attained the age of 18 years, and that all aspects of parental responsibility be allocated solely to the Minister.

31. PAP was assessed and approved as a permanent carer with a view to adoption on 2 July 2015.

32. On 3 September 2015, the Children's Court made the following orders in respect of IEK:

The Children's Court orders as follows:

1.   Pursuant to section 79(1)(b) that parental responsibility for [IEK] born 25 October 2012 is allocated to the [Minister] until she attains the age of eighteen (18) years.

2.   Pursuant to section 81(1)(b) that all aspects of parental responsibility for [IEK] are allocated solely to [the Minister] until she attains the age of eighteen (18) years.

3.   Pursuant to section 82 the Secretary is to file a report detailing [IEK's] settlement in her permanent placement and contact with the mother at six (6) months from the date of final orders.

33. On 25 September 2015, matching approval was given for PAP and the child, and IEK was placed with PAP on 19 October 2015.

34. RK was born on 4 May 2017 and assumed into care on 8 May 2017.

35. On 8 December 2017, EK filed an application in the Children's Court under s 90 of the Care Act seeking leave to make an application for rescission or variation of the final care order whereby parental responsibility for IEK was placed with the Minister until she attained the age of 18 years.

36. The Children's Court dismissed EK's s 90 application on 16 April 2018. The only evidence of the reasons given by the Children's Court was contained in an email prepared by a representative of FACS who was present when the reasons were given and stated:

The Court found that although there was a significant change in relevant circumstances as the mother had been engaging with drug rehabilitation, and alcohol abstinence. However, the mother did not have an arguable case as required by s 90(2A) as the mother had not addressed in her application, how she would address [IEK's] needs and those of the year old child ([RK]) being placed together with her, the risk of psychological harm to [IEK] given her attachment to her proposed long-term carer, and the attachment difficulties she displayed when aged 4 1/2.

37. EK has not appealed to the District Court against the order of the Children's Court dismissing her application under s 90 of the Care Act.

38. The Secretary commenced proceedings in the Children's Court in respect of RK, and the hearing took place on 27 July, 17 August, 31 August, 22 October and 5 November 2018.

39. On 22 October 2018, the Children's Court made a finding that there was a realistic possibility of RK being restored to the care of the mother.

40. The Children's Court made the following final orders concerning RK on 9 November 2018 (Exhibit P4):

The Court orders:

1.   Pursuant to section 79 of the [Care Act], all aspects of parental responsibility for [RK] are allocated to [the Minister] for a period of 6 months.

2.   At the conclusion of order 1 and pursuant to section 79 of the [Care Act], all aspects of parental responsibility for [RK] are jointly allocated to [the Minister] and the mother [EK] for a period of 6 months.

3.   At the conclusion of order 2 and pursuant to section 79 of the [Care Act], all aspects of parental responsibility for [RK] are allocated to [EK] to the exclusion of the Father, unknown, until the child reaches the age of 18 years.

4.   Pursuant to section 82 of the [Care Act], the [Secretary] is to provide a report to the Court at 10 months(s) (on or before 9 September 2019) concerning the suitability of the arrangements for the care and protection of [RK] including, but not confined to, the following issues:

a)   the progress in implementing the Care Plan;

b)   the progress of [RK] in his mother's care, including his general development; and

c)   the mother's engagement with any services.

5.   Pursuant to section 76(1) of the [Care Act], [RK] is placed under the supervision of the [Secretary] commencing 10 November 2019 for a period of 12 months from 10 November 2019.

6.   Pursuant to section 76(4) of the [Care Act], the [Secretary] is to provide a report to the Court on or before 10 September 2020 after the commencement of the supervision order addressing the following issues:

(i)   The outcomes of supervision;

(ii)   Whether the purposes of supervision have been achieved;

(iii)   Whether there is a need for further supervision in order to protect the child; and

(iv)   Whether any other orders should be made to protect the child.

41. RK's care plan, which was filed in the Children's Court on 2 November 2018, included the following statements (Exhibit P5):

[EK] appears able to recognise that there are child protection concerns in relation to how she has parented in the past and has spoken about the sudden death of her mother being a precursor for her past issues with alcohol use. She is able to recognise that she needs support to manage being a full-time mother again and is able to articulate what supports she might need. [EK] has spoken about her need to continue to engage with psychological support services to work on her grief and loss as a result of her mother's death and [IEK's] impending adoption.

…

[FACS] are now of the view that there is a realistic possibility of [RK] being restored to [EK]… [EK] appears to have demonstrated a lengthy period of abstinence from alcohol and remains engaged with her drug and alcohol support services… [EK] has consistently and repeatedly maintained that she wants [RK] in her care and is currently residing in appropriate housing.

42. The care plan itemised RK's needs and gave the following reasons as to why restoration was being considered:

Restoration of [RK] to the mother [EK's] care is being considered as the mother has been actively engaging with [FACS] and other support services.

[EK] worked with a housing support worker to assist her with gaining a Housing transfer and with securing an appropriate property and household necessities.

[EK] has attended recent CDT and urinalysis testing which has been negative for all drugs and for excessive alcohol use. [EK] appears to be committed to abstaining from alcohol and is able to talk to caseworkers about her triggers.

[EK] has been attending contact with [RK] and Barnardos reports that these contact visits are positive experiences for [RK].

[EK] wants [RK] in her care and appears to be committed to working with [FACS] and Barnardos to keep [RK] safe.

43. The care plan then set out minimum outcomes to be achieved prior to the commencement of restoration, transition arrangements to support restoration and how the transition arrangements were to be undertaken. The care plan includes a detailed restoration plan.

44. The arrangements made in the care plan for the restoration of RK appear to be thorough, and involve Barnardos being available to support the transition, weekly visits leading up to restoration, gradual increases in EK having custody of RK, and the implementation of a therapeutic restoration program by a service provider arranged by Barnardos. Barnardos would review the restoration plan regularly and make changes appropriate to RK’s needs. Barnardos would be available for six months of post restoration support. This would involve home visiting, assessing needs, and recommending referrals if other support services were required. The restoration plan appropriately provides detailed steps and procedures, timeframes and the identification of responsible persons.

45. The restoration process for RK was just on the verge of commencement at the time of the hearing, and the Court does not know how successful the restoration has been.

46. This history of the implementation of the Care Act in relation to IEK and RK gives rise to the following issues that are significant to the resolution of the present case:

1. The Court must consider whether there is a realistic possibility that IEK could be restored to the care of EK, in so far as that may be relevant to the making of an adoption order in respect of IEK, in light of the fact that FACS has accepted, and the Children's Court has found, that there is a realistic possibility of RK being restored to EK.

2. While the Children's Court has actually made orders that contemplate that, ultimately, parental responsibility for RK will be given solely to EK, the orders made by the Children’s Court provide for that outcome to be reached in steps over a 12 month period, and the Children's Court requires that the Secretary provide it with reports before 9 September 2019 and 10 September 2020 concerning the success of the steps taken in restoring RK to EK's care. Consequently, it may not be known until as late as 10 September 2020 whether there has been success in the restoration of RK to EK.

3. The Children's Court has made final orders, which are now in force, giving sole parental responsibility of IEK to the Minister until she attains the age of 18 years.

4. Although there is no impediment to EK making a further application under s 90 of the Care Act for leave to make an application to rescind or vary the order for parental responsibility in favour of the Minister, it is probable that EK would have to demonstrate a further change in circumstances since 16 April 2018, and that the change enabled her to deal with the issues that caused the Children's Court to dismiss her first s 90 application.

Legislation governing the care and protection of children

47. Before I address the relevant provisions of the Adoption Act, it will be appropriate to consider how the Care Act provides a legislative context to the making of an adoption order under the Adoption Act in a case such as the present.

48. One reason why that is necessary is that the Court must deal with the fact that there is an existing order of the Children's Court giving sole parental responsibility for IEK to the Minister until she attains the age of 18 years. Secondly, and more broadly, the making of an adoption order under the Adoption Act is not an isolated judicial act, but in a real and practical way is made in the context of, and is one outcome contemplated by, the exercise of the more general jurisdiction for the protection of children and young persons under the Care Act, as exercised by the specialist Children's Court.

49. It is proper that I acknowledge my indebtedness to the paper written by Dr Nicola Ross and Professor Judy Cashmore: Adoption reforms New South Wales style: A comparative look (2016) 30 Australian Journal of Family Law 51 (Ross and Cashmore). I have found Ross and Cashmore to be enlightening, primarily in relation to the history of the making of adoption orders in this State, the legislative intent in recent amendments to the Care and Adoption Acts, and the manner in which the Adoption Act fits into the scheme of the legislative protection of children and young persons in this State. I should add that I have read with interest a number of papers published by the Institute of Open Adoption Studies of the University of Sydney, particularly in relation to open adoption of children in this State from out-of-home care. It will not be necessary for me to refer to specific aspects of those studies, but I have found them to be generally useful on the basis that an educated judge is a better judge.

50. It is appropriate to begin by acknowledging that one of the objects of the Adoption Act, as set out in s 7(d), is "to recognise the changing nature of practices of adoption”. That is an object that could easily be overlooked.

51. Ross and Cashmore note at 52 that there has been a very significant reduction in the numbers of Australian-born children, especially infants, who are now able to be adopted. They say: "From a peak in the early 1970s, the numbers of adoptions in Australia have dropped from 9798 in 1971-2 to 292 in 2014-15, the lowest number on record". They say at 53 (I will generally omit the footnotes given by the authors):

Over the same period, there has been a sharp increase in the number of children in out-of-home care in Australia, doubling since 2004, from 21,795 to 43,399 in 2015…"

52. Ross and Cashmore conclude at 53: "Very few children in Australia are adopted from out-of-home care".

53. Ross and Cashmore make the following observations about recent reforms in New South Wales, at 53 and 54:

In New South Wales, the adoption of children from out-of-home care is regulated under two statutes. If the Children’s Court makes a finding under the Children and Young Persons (Care and Protection) Act 1998 (NSW) that there is no reasonable possibility of restoration (RPOR) of the child to their parents, then the court must determine an appropriate placement, which may include adoption. Potential adoptive parents, including authorised carers, must then make an application to adopt a child under the Adoption Act 2000 (NSW) (the Act). Applications for adoption in the Supreme Court can take some time to be finalised, particularly where parents do not consent to the adoption.

Recent reforms of the legislation in New South Wales indicate a shift in emphasis in government policy and a preference for adoption over long-term foster care for children under the parental responsibility of the Minister. The aim of these reforms is to strengthen permanency planning practice to ensure stable permanent homes for children. For children who cannot be returned home safely to their parent/s, the first option to be considered is a long-term guardianship arrangement with other family members or suitable persons in kinship or relative care. The next option to be considered is adoption by non-relatives and other carers, with parental responsibility to the Minister until a child turns 18 (generally meaning foster care with unknown persons) as the ‘last resort’.

54. The authors then refer to two important changes that will affect parents and adoptive parents in relation to the likely speed and ease of finalising adoptions. I will return to these matters below, but they include the introduction of specified timeframes for decisions about returning children to their parents, and the making of distinct provisions for long-term carers who wish to adopt. The authors also refer to a change in the circumstances in which the Court may dispense with parental consent to the making of an adoption order.

55. Ross and Cashmore give the following explanation about the reason for the change of government policy and the amendment to the legislation at 55:

A key rationale for these changes was the stated need for children who cannot live safely at home to have 'a long-term, safe, nurturing, stable and secure placement', with timely decision-making.

56. The very idea that the Court should make an adoption order in respect of a child over the objection of birth parents, at least where it is not reasonably self-evident that those parents are not capable of properly caring for the child, is a challenging issue for all reasonable-minded people. Such people could defensibly adopt a range of responses to this question from a natural resistance against breaking the parental bond to the position that the opportunity to care for one's birth child is more an obligation than a right, so that, when the chips are down, it is the opportunity of the child to enjoy the best future that is available that is paramount. In part, it is this conflict that has led to the introduction of the process of open adoption. Where it is adjudged to be in the best interests of the child for an adoption order to be made, that order is made, so that parentage of the child moves from the birth parents to the adoptive parent or adoptive parents, but the change is made openly in a way that acknowledges the reality of the birth parentage, and attempts to facilitate the maintenance of an emotional bond between the child and the birth parents.

57. Be this as it may, government policy and judicial aspirations do not reduce the difficulty of the process. As to this, Ross and Cashmore say at 56:

The push for more timely decisions as to whether to place children in a secure long-term ‘family for life’ is, however, often at odds with the time that parents need to make the changes required to become a ‘good enough’ parent. This tension is exacerbated where rehabilitative and support services for parents are hard to access in a timely manner. The tension between the conflicting needs of parents and children in these circumstances is brought to a head by the application to make long-term orders for children, and more so if the proposed orders involve severing the legal relationship between parents and their children via adoption. There are no easy answers and different jurisdictions have tried varied approaches to ‘permanency planning’ over several decades in their attempts to find an appropriate balance.

Relevant provisions of the Care Act

58. As I have said, I will start by considering the relevant provisions of the Care Act. Both that Act, and the Adoption Act, were amended by the Child Protection Legislation Amendment Act 2014 (NSW), which I will call the “Amendment Act”.

59. Since the Court reserved judgment at the end of the hearing, both the Care Act and the Adoption Act have been further amended by the Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW), which I will call the “2018 Amendment Act”. The 2018 Amendment Act came into effect on 4 February 2019. On my reading of that Act, it does not have any effect on the outcome of these proceedings. However, a number of the statutory provisions that are set out and discussed in these reasons for judgment have been amended by the 2018 Amendment Act. In order to avoid these reasons being misleading as to the current wording of the relevant provisions, I have underlined provisions added by the 2018 Amendment Act and identified the principle parts of the provisions discussed that have now been amended.

60. The objects of the Care Act, as stated in s 8, are as follows:

8 What are the objects of this Act?

The objects of this Act are to provide:

(a)   that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1)   recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b)   that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c)   that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

61. Paragraph (a1) was inserted by the Amendment Act in 2014. Thus, in the administration of the Care Act, the "primary means" of providing the necessary care for children and young persons is to be "through permanent placement in accordance with the permanent placement principles". That plainly creates an impetus in the implementation of the system of care of children and young persons towards permanent placement.

62. Section 9 sets out principles for the administration of the Care Act, including at s 9(2)(e):

If a child or young person is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the child’s or young person’s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

63. This provision expressly requires, in principle, that the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

64. Section 9(2)(g) was inserted by the Amendment Act. It provides:

If a child or young person is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the child or young person.

65. That is an unambiguous legislative requirement that where a child or young person is placed in out-of-home care the permanent placement principles must be a guide to all actions under the Care Act regarding permanent placement.

66. While that is a legislative statement as to how the Care Act must be administered, and not the Adoption Act, it may not be immaterial to the administration of the Adoption Act, once the role of the Adoption Act is properly understood in the whole scheme for the protection of children and young persons.

67. The Amendment Act also inserted s 10A that sets out the permanent placement principles in the following terms:

10A Permanent placement principles

(1)   In this Act:

permanent placement means a long-term placement following the removal of a child or young person from the care of a parent or parents pursuant to this Act that provides a safe, nurturing, stable and secure environment for the child or young person.

(2) Subject to the objects in section 8 and the principles in section 9, a child or young person who needs permanent placement is to be placed in accordance with the permanent placement principles.

(3)    The permanent placement principles are as follows:

(a)   if it is practicable and in the best interests of a child or young person, the first preference for permanent placement of the child or young person is for the child or young person to be restored to the care of his or her parent (within the meaning of section 83) or parents so as to preserve the family relationship,

(b)   if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), the second preference for permanent placement of the child or young person is guardianship of a relative, kin or other suitable person,

(c)   if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a) or (b), the next preference is (except in the case of an Aboriginal or Torres Strait Islander child or young person) for the child or young person to be adopted,

(d)   if it is not practicable or in the best interests of the child or young person to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the child or young person to be placed under the parental responsibility of the Minister under this Act or any other law,

(e)   if it is not practicable or in the best interests of an Aboriginal or Torres Strait Islander child or young person to be placed in accordance with paragraph (a), (b) or (d), the last preference is for the child or young person to be adopted.

68. The permanent placement principles establish an order of priority, being, except in relation to Aboriginal and Torres Strait Islander children or young people, restoration to the birth parents, guardianship by a relative, kin or other suitable person, adoption, and then the grant of parental responsibility to the Minister.

69. I have noted above, in relation to IEK's care plan, that guardianship was not recommended. I understand that to be because the view has been taken that if guardianship is to be a better outcome for the child than out-of-home care, there should be some appropriate relationship between the child and the guardian. Although it may not be clear from the terms of the Care Act itself, the Minister for Family and Community Services, in her second reading speech in support of the enactment of the Amendment Act, referred to guardianship as being “with family or kin – or in some circumstances with a non-relative carer”.

70. As it happens, EK does not have family in Australia, so that the appointment of a guardian by the Children's Court was not considered to be appropriate. As a guardianship order is a "care order" for the purposes of s 90 of the Care Act, it can be subject to rescission or variation by the Children's Court (unlike the general position for an adoption order made by the Supreme Court).

71. Section 78 of the Care Act requires the Secretary to present to the Children's Court a care plan before final orders are made, in relation to most applications for care orders.

72. The care plan must make provision, among other things, for the kind of placement proposed to be sought for the child or young person, including "how it relates in general terms to permanency planning for the child or young person": see s 78(2)(b)(i).

73. Permanency planning is dealt with in s 78A, which in subs (1) provides that "…permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security…", and that has regard to the principles set out in ss 9(2)(e) and (g). The reference to par (g) was inserted by the Amendment Act.

68. Section 78A(2A) provides:

A permanency plan need not provide details as to the exact placement in the long-term of the child or young person concerned but must be sufficiently clear and particularised so as to provide the Children’s Court with a reasonably clear picture as to the way in which the child’s or young person’s needs, welfare and well-being will be met in the foreseeable future.

75. The significance of these provisions is that they require, from the time when a child or young person is first taken into care by the Minister, that there is a process whereby a care plan is prepared which includes a permanency plan, which itself has regard to the order of priorities in the permanent placement principles. Whatever the outcome of this process, it could not in any legal sense bind or determine the exercise by this Court of its jurisdiction under the Adoption Act. However, it does not follow that the process should be ignored. The process will characteristically take place over a number of years, notwithstanding even recent legislative attempts to accelerate the process. The conduct of interested persons and the formation of reasonable expectations will be influenced by the process. That will include the birth parents, the proposed adoptive parents, particularly when they are out-of-home carers, and eventually the children themselves, when they have reached a sufficient degree of self-awareness.

76. Section 79 of the Care Act, which empowers the Children's Court to make orders allocating all aspects of parental responsibility for a child or young person, includes the following provisions:

79 Order (other than guardianship order) allocating parental responsibility

…

(3)   The Children’s Court must not make an order allocating parental responsibility unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the child or young person.

(4)   Without limiting subsection (3), the Children’s Court must not make an order under this section if, taking into account the permanent placement principles, it would be more appropriate to make a guardianship order than an order under this section.

77. It follows that, embedded in the process of reasoning that leads to the making of an order allocating parental responsibility for a child or young person, is a consideration of how the permanent placement principles apply to that case. The order that is made will contemplate a particular permanent outcome, albeit that under the Care Act no such order is permanent and beyond revision.

78. The preparation of permanency plans is governed by s 83 of the Care Act, which is in the following terms:

83 Preparation of permanency plan

(1)   If the Secretary applies to the Children’s Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Secretary must assess whether there is a realistic possibility of the child or young person being restored to his or her parents within a reasonable period, having regard to:

(a)   the circumstances of the child or young person, and

(b)   the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

(2)   If the Secretary assesses that there is a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan involving restoration and submit it to the Children’s Court for its consideration.

(3)   If the Secretary assesses that there is not a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children’s Court for its consideration.

(4)   In preparing a plan under subsection (3), the Secretary must consider whether adoption is the preferred option for the child or young person.

(5)   The Children’s Court is to decide whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration within a reasonable period:

(a)   in the case of a child who is less than 2 years of age on the date the Children’s Court makes an interim order allocating parental responsibility for the child to a person other than a parent—within 6 months after the Children’s Court makes the interim order, and

(b)   in the case of a child or young person who is 2 or more years of age on the date the Children’s Court makes an interim order allocating parental responsibility for the child or young person to a person other than a parent—within 12 months after the Children’s Court makes the interim order.

(5A)   However, the Children’s Court may, having regard to the circumstances of the case and if it considers it appropriate and in the best interests of the child or young person, decide, after the end of the applicable period referred to in subsection (5), whether to accept the Secretary’s assessment of whether or not there is a realistic possibility of restoration within a reasonable period.

(6)   If the Children’s Court does not accept the Secretary’s assessment, it may direct the Secretary to prepare a different permanency plan.

(7)   The Children’s Court must not make a final care order unless it expressly finds:

(a)   that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b)   that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration within a reasonable period, having regard to:

(i)   the circumstances of the child or young person, and

(ii)   the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

(7A)   For the purposes of subsection (7) (a), the permanency plan need not provide details as to the exact placement in the long term of the child or young person to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so the Court, prior to final orders being made, can have a reasonably clear plan as to the child’s or young person’s needs and how those needs are going to be met.

(8)   A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children’s Court.

(8A)   A reasonable period for the purposes of this section must not exceed 24 months.

(9)   In this section, parent, in relation to the child or young person concerned, means:

(a)   the child’s or young person’s birth parent, or

(b)   if the child or young person has been adopted—the child’s or young person’s adoptive parent.

79. Schedule 1, clause 53 of the 2018 Amendment Act makes amendments to Schedule 3 to the Care Act to provide for transitional provisions for the operation of the amendments to the Care Act made by the 2018 Amendment Act. The transitional provisions have the effect that the amendments to s 83 of the Care Act apply “…to assessments or findings under that section occurring on or after the commencement of those amendments irrespective of whether the proceedings before the Children’s Court to which they relate were pending (but not finally determined) immediately before that commencement”. The changes to s 83 have no application in this case because the proceedings before the Children’s Court concerning IEK have been finally determined.

80. Subsection (1) requires the Secretary to assess whether there is a realistic possibility of the child or young person being restored to his or her parents. If the Secretary assesses that there is not such a realistic possibility, the Secretary must prepare a permanency plan for another suitable long-term placement: see subs (3). In preparing that plan, subs (4) requires the Secretary to consider whether adoption is the preferred option for the child or young person.

81. Subsection (5) is important for two reasons. First, it requires the Children's Court to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration. If the child is less than 2 years of age, that must be done within 6 months. Otherwise it must be done within 12 months after the Children's Court makes the interim order.

82. It is self-evident from these provisions that the legislative policy is that the determination of the appropriate permanency plan for the child or young person must be made earlier rather than later, and to the extent that there is a tension between the need for expedition in the interests of the child or young person, and the birth parents' need for time to address the causes for the child or young person being taken into care in the first place, the need for expedition is to prevail.

83. It may be observed that, where the amendments to s 83 of the Care Act apply, the timescale for the assessment by the Secretary of whether there is a realistic possibility of restoration will not be open-ended, but rather the Secretary will have to consider whether there is a realistic possibility of restoration within a reasonable period that must not exceed 24 months. This change will tend to reduce the likelihood of a determination that there is a realistic possibility of restoration, as that possibility must eventuate within 24 months.

84. Subsection (7) has the effect that the Children's Court must not make a final care order unless it expressly finds that the permanency planning for the child or young person has been appropriately and adequately addressed, and subs (7A) has the effect that, prior to final orders being made, the permanency plan must be reasonably clear as to the child's or young person's needs and how those needs are going to be met.

85. Consequently, when the Children's Court makes a final care order, it must first decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration. That is a decision which is amenable to an appeal to the District Court. The Children's Court does not make any positive determination as to the appropriate permanency plan for the child or young person, but it must have before it such a permanency plan, which must be reasonably clear as to its details. The terms of the permanency plan are at least likely to inform the basis upon which the Children's Court makes the particular care order.

86. Thus, although the making by this Court of adoption orders is governed by the Adoption Act, and in determining whether such orders should be made the Court must apply the Adoption Act in accordance with its terms, it seems clear that the making of an application for an adoption order is not an isolated event, but is rather the culmination of a process that is regulated in detail by the Care Act. Decisions are made about the appropriateness of adoption relatively early in the process and must be taken into consideration by the Children’s Court. The possibility of adoption is one of the alternatives in the permanent placement principles, and the implementation of the Care Act involves the possibility that adoption may be the best outcome for the child from early in the process after the child is taken into care.

87. For completeness, as EK has already made an application for leave to apply for the parental responsibility order made by the Children’s Court in favour of the Minister to be rescinded, I will set out relevant parts of the current s 90 of the Care Act, under which such applications are now to be made. I have indicated the principal provisions that have been replaced, but, in order to avoid confusion, I have not tried to identify all of the minor changes:

90 Rescission and variation of care orders

(1)   An application for the rescission or variation of a care order may be made with the leave of the Children’s Court.

(1AA)   An application may be made by:

…

(d)   a person from whom parental responsibility for the child or young person has been removed, or…

…

(2)   The Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied.

(2A)   Before granting leave to make an application to vary or rescind the care order, the Children’s Court must consider the matters set out in subsections (2B) and (2C).

[The original (2A), which contained a shorter list of considerations required to be taken into account by the Children’s Court, has been replaced].

(2B)   The primary considerations are as follows:

(a)   the views of the child or young person and the weight to be given to those views, having regard to the maturity of the child or young person and his or her capacity to express his or her views,

(b)   the length of time for which the child or young person has been in the care of the present carer and the stability of present care arrangements,

(c)   if the Children’s Court considers that the present care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the child or young person and whether that course would be in the best interests of the child or young person.

(2C)   Additional considerations are as follows:

(a)   the age of the child or young person,

(b)   the nature of the application,

(c)   the plans for the child or young person,

(d)   whether the applicant has an arguable case,

(e)   matters concerning the care and protection of the child or young person that are identified in:

(i)   a report under section 82, or

(ii) a report that has been prepared in relation to a review directed by the Children’s Guardian under section 85A or in accordance with section 150.

(2D)   The Children’s Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process.

(2E)   Without limiting subsection (2D), the Children’s Court may dismiss an application for leave under this section if it is satisfied that:

(a)   the application has no reasonable prospect of success, and

(b)   the applicant has previously made a series of applications for leave under this section that the Court has dismissed.

…

(6)   Before making an order to rescind or vary a care order that places a child or young person under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children’s Court must take the following matters into consideration:

(a)   the age of the child or young person,

(b)   the views of the child or young person and the weight to be given to those views,

(c)   the length of time the child or young person has been in the care of the present caregivers and the stability of present care arrangements,

[The original pars (b) and (c) have been replaced].

(d)   the strength of the child’s or young person’s attachments to the birth parents and the present caregivers,

(e)   the capacity of the birth parents to provide an adequate standard of care for the child or young person,

(f)   the risk to the child or young person of psychological harm if present care arrangements are varied or rescinded.

(7)   If the Children’s Court is satisfied, on an application made to it with respect to a child or young person, that it is appropriate to do so:

(a)   it may, by order, vary or rescind an order for the care and protection of the child or young person, and

(b)   if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the child or young person had an application been made to it with respect to the child or young person.

…

88. It is of some note for future applications that, while the previous version of s 90(2A)(c) required the Children’s Court to take into account the length of time for which the child or young person has been in the care of the present carer, the new s 90(2B)(b) requires, in addition to that consideration, that the Children’s Court consider the stability of the present care arrangements. The new s 90(2B)(c) requires the Children’s Court, if it considers that the present care arrangements are stable and secure, to consider the course that would result in the least intrusive intervention into the life of the child or young person and to consider whether that course would be in the best interests of the child or young person.

89. These changes to the Care Act continue the trend of placing particular significance on the length of time for which the child or young person has been in the current form of care, the stability of those arrangements, and adopting care arrangements that will result in the least intrusive intervention into the life of the child or young person, where that is in their best interests.

Role of the Secretary in the administration of the Care Act

90. Another notable feature of the Care Act is the extent to which administrative resources are made available for the purpose of the implementation of the Act, including for the assistance of the Children’s Court exercising its jurisdiction.

91. Section 16 of the Care Act establishes the role of the Secretary as follows:

16 General role of the Secretary

(1)   Principal role

The Secretary is to provide services and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of this Act.

Note. This role may include:

• providing assistance to children and young persons

• involving children and young persons and their families in processes that affect them and making services and information available to them

• consistent with the care and protection of children and young persons, promoting the raising of children and young persons within families

• supporting communities involved in the care and protection of children and young persons

• regularly reviewing action

• implementing procedures to assess the suitability of people having contact with children and young persons

• undertaking or encouraging research, education or training.

(2)   Interagency procedures and protocols

The Secretary is to promote the development of procedures and protocols with government departments and agencies and the community sector that promote the care and protection of children and young persons and to ensure that these procedures and protocols are implemented and regularly reviewed.

(3)   The objects of the procedures and protocols referred to in subsection (2) are:

(a)   to promote the development of co-ordinated strategies for the care and protection of children and young persons and for the provision of support services directed towards strengthening and supporting families (including the provision of prioritised access to support services to children and young persons at risk of significant harm and to their families), and

(b)   to co-ordinate the provision of services for assisting young persons leaving statutory out-of-home care, and

(c)   to co-ordinate the early provision of alternative dispute resolution processes for children and young persons at risk of significant harm and their families who wish to participate in those processes.

92. The Secretary is empowered by s 17 to enlist the aid of other government departments and agencies:

17 Secretary’s request for services from other agencies

(1)   In deciding what action should be taken to promote and safeguard the safety, welfare and well-being of a child or young person, the Secretary may request a government department or agency, or a non-government agency in receipt of government funding, to provide services to the child or young person or to his or her family.

(2)   Without limiting the generality of subsection (1), the Secretary may request a government department or agency, or a non-government agency in receipt of government funding, to provide prioritised access to services to a child or young person who is at risk of significant harm and to his or her family.

93. Section 18 imposes a duty on other government departments and agencies to cooperate:

18 Obligation to co-operate

(1)   The government department or agency, or the non-government agency, must use its best endeavours to comply with a request made to it under section 17 if it is consistent with its own responsibilities and does not unduly prejudice the discharge of its functions.

(2)   Subsection (1) does not, in the case of a non-government agency in receipt of government funding, limit any obligation imposed on the agency in accordance with the agreement under which it receives that funding.

…

94. There is a disparity between the administrative resources that are available to assist the Children’s Court in the exercise of its jurisdiction under the Care Act, and the resources that may be available following the exercise by this Court of its jurisdiction under the Adoption Act. I will return to those differences below. Those differences may be relevant to determinations made by this Court as to how it should exercise its jurisdiction, as the effectiveness of many orders made for the protection of children and young persons may ultimately depend on the extent to which administrative support and supervision of the implementation of the orders is available.

Relevant provisions of the Adoption Act

95. This Court's power to make an order for the adoption of a child is found in s 23(1) of the Adoption Act.

96. Section 90 of the Adoption Act contains the following restrictions on the Court's power to make an adoption order, so far as is relevant to the present case (bearing in mind that IEK is too young for her consent to the adoption to be considered):

90 Court to be satisfied as to certain matters

(1)   The Court must not make an adoption order in relation to a child unless the Court is satisfied:

(a)   that the best interests of the child will be promoted by the adoption, and

…

(c)   if the prospective adoptive parent or parents are persons other than a step parent or relative of the child—that the prospective adoptive parent or parents have been selected in accordance with this Act, and

(d)   that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and

…

(2)   The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

(3)   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.

Note. Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998. Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt.

97. The Court must take into account the objects of the Adoption Act, which are set out in s 7 and include:

7 What are the objects of this Act?

The objects of this Act are as follows:

(a)   to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,

(b)   to make it clear that adoption is to be regarded as a service for the child concerned,

(c)   to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,

(d)   to recognise the changing nature of practices of adoption,

…

(f)   to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,

(g)   to encourage openness in adoption…

98. Section 8 relevantly requires the Court to have regard to the following principles in making a decision about the adoption of a child:

8 What principles are to be applied by persons making decisions about the adoption of a child?

(1)   In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:

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

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

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

…

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

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

…

(2)   In determining the best interests of the child, the decision maker is to have regard to the following:

(a)   any wishes expressed by the child,

(b)   the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c)   the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d)   any disability that the child has,

(e)   any wishes expressed by either or both of the parents of the child,

(f)   the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(g)   the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

(h)   the nature of the relationship of the child with each proposed adoptive parent,

(i)   the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

(j)   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 abuse, ill-treatment, violence or other behaviour,

(k)   the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

99. Section 90(1)(d) prohibits the Court from making an adoption order in relation to a child unless the Court is satisfied that consent to the adoption of the child “has been given by every person whose consent is required” under the Adoption Act “or that consent has been, or should be, dispensed with.”

100. Consent to the making of an adoption order is governed by Part 5 of the Adoption Act. Section 52 prevents the Court from making an adoption order in relation to a child who is less than 18 years of age unless the consent of each parent of the child has been given. In this case, EK and DFC have refused to consent to the adoption.

101. The Court's power to dispense with parental consent, where the parents have been found and identified, and are capable of considering the question of whether consent should be given, is found in s 67 of the Adoption Act, which relevantly provides:

67 When can Court dispense with consent of person other than the child?

(1)   The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that:

…

(c)   if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

(d)   if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child:

(i)   the child has established a stable relationship with those carers or guardians, and

(ii)   the adoption of the child by those carers or guardians will promote the child’s welfare, and…

(2)   The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

(3)   In this section:

guardian has the same meaning as in section 79A(1) of the Children and Young Persons (Care and Protection) Act 1998.

102. The amendments to s 67 of the Adoption Act concerning the position of guardians are not material to the present application, but the transitional provisions to the 2018 Amendment Act have the effect that, as these proceedings have not finally been determined, the amendments would have applied if relevant.

103. As Brereton J (as his Honour then was) explained in Adoption of SVS [2015] NSWSC 2043 at [44], it is "…a grave step, not lightly to be taken…" to dispense with the consent of the parents of a child to the making of an adoption order. However, as his Honour also noted, "…the enactment of s 67(1)(d) in 2006 reflects a policy decision that once a child has, by judicial decision, 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 be best served by the adoption."

104. The inclusion of subs (1)(d) represents another significant policy change in favour of the making of an adoption order, where the proposed adoptive parent is an authorised carer for the child.

105. Previously, where the parents could be identified and were capable of giving consent, they had an effective veto over the making of an adoption order unless there was "…serious cause for concern for the welfare of the child…", and unless it was also in the best interests of the child to override the wishes of the parents (see section 67(1)(c) of the Adoption Act).

106. Now it is sufficient, where the proposed adoptive parent is an authorised carer for the child, that the child has established a stable relationship with the carer, the adoption will promote the child's welfare, and it is in the best interests of the child to dispense with the parents' consent.

107. I will consider the issue raised by s 90(2), being whether the Court is satisfied that the arrangements proposed in the adoption plan are in the child's best interests and are proper in the circumstances, separately below.

108. Section 90(3) of the Adoption Act is of primary importance, in 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.

109. As the Court is not only required to consider what available actions are preferable, but whether an adoption order is clearly preferable to all other available actions, the Court is called upon to make a value judgment. That judgment should not be based upon the idiosyncratic views of the particular judge. The criteria upon which the evaluation must be made should be drawn from the guidance provided in the legislation. That must include the objects of the Adoption Act, as set out in s 7, and the guidance that will flow from the identification in s 8 of the matters required to be considered.

110. As I have set out above, the object identified in s 7(d) is “to recognise the changing nature of practices of adoption”. As is shown by the analysis of the legislation set out above, most of those changes appear to have been introduced into the Care Act, rather than the Adoption Act itself. The changes appear to be primarily concerned with the primary means of providing proper care being through permanent placement in accordance with the permanent placement principles. Those principles embrace a number of different actions with different priorities, and adoption is not the first choice. However, it is clear that the stress is on permanency.

111. The meaning of the expression "clearly preferable" has recently been considered in detail by Hallen J in Re the Adoption of AJH [2017] NSWSC 1751 (as well as in other cases). It will be sufficient for me to set out, and respectfully adopt, the following extract from his Honour's reasons:

[288] In Adoption of RCC and RZA Brereton J, at [14], stated that s 90(3) 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” [Re D; Application of A [2006] NSWSC 1056, [53]], 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 [cf Director-General, Dept of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]].

…

[292] In Re JLR, Bergin CJ in Eq explained, at [99], that:

“The words ‘clearly preferable’ in s 90(3) do not require the court to be satisfied ‘beyond reasonable doubt’. Rather “the word ‘clearly’ serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision”: Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [53] (Palmer J) and that the order for adoption be “obviously, plainly or manifestly preferable” to any other alternative: Director-General, Department of Community Services NSW v D at [25] (Brereton J).”

[293] In Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926, Sackar J, after referring to the decisions quoted above, wrote, at [38]:

“It requires that adoption be “obviously, plainly or manifestly preferable to any other action that could be taken by law”: Deputy of Community Services v D (2007) 37 Fam LR 595 at [25].”

[294] His Honour added, at [41]:

“I also note the pertinent remarks of Sir Thomas Bingham MR in Re O (Contact: Imposition of conditions) [1995] 2 FLR 124, who stated that ‘the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems’”.

[295] Thus, it is not enough to show that a child could be placed in a more beneficial environment for her, or his, upbringing. There is often required an acute, and difficult, decision to be made and, often, all practicable answers, to some extent, may be unsatisfactory. Sometimes, the alternatives are finely balanced and will call for critical and often anxious scrutiny.

[296] In reaching the conclusion, “a global, holistic evaluation of each of the options available for the child’s future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child’s welfare” should be undertaken: Re G (A Child) [2013] EWCA Civ 965 at [50].

112. It is necessary to defer the further consideration of how these principles should be applied until after the evidence has been examined.

Meaning and effect of s 92 of the Adoption Act

113. As I have noted at the beginning of these reasons, EK has submitted that the Court should refuse the application to make an order for the adoption of IEK, and should make an order granting parental responsibility of IEK to EK until she attains the age of 18 years.

114. That submission is, as I understand it, based upon an interpretation of s 92 of the Adoption Act, which is said to give the Court power to make the order. The section provides:

92 Care of child after refusal of an application

If the Court refuses an application for an adoption order, the Court may make such orders in relation to the parental responsibility for the child concerned as it thinks fit, including, if the child is less than 18 years of age, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act1998.

115. It must be acknowledged that a grant of power to the Court to "make such orders in relation to the parental responsibility for the child concerned as it thinks fit" seems to be unrestricted, and would permit the Court to make the order sought by EK.

116. It would nonetheless be a strange outcome for an unfettered power (save for the need to further the objects and apply the considerations in ss 7 and 8 of the Adoption Act) to become exercisable by this Court simply by reason of the making of a decision by the Court to refuse an adoption application. Chapter 4, Part 3 of the Care Act contains detailed provisions governing the development and enforcement of care plans and parent responsibility contracts. Chapter 5 of the Care Act establishes even more complex administrative arrangements designed to ensure the care of children and young persons over the period of their minority, including enabling the Children's Court to enlist the resources of the Secretary to undertake investigations and provide information to the Children's Court. Among other things, s 74 of the Care Act empowers the Children's Court to make an order directing a person or organisation named in the order to provide support for a child or young person. It may also order the Secretary to provide support under the section. Section 85A requires that a permanency plan involving restoration be reviewed by the designated agency responsible for the placement of the child or young person. Importantly, even if it is implied in s 92 of the Adoption Act that this Court has power to fashion qualifications to any order in relation to the parental responsibility for the child to emulate the administrative arrangements available to the Children's Court, this Court cannot command the ongoing assistance of the Secretary.

117. Before I consider the authorities dealing with the application of s 92 of the Adoption Act it will be appropriate to make the following observations.

118. As was noted by Hallen J in Re the Adoption of AJH (above) at [243]: "Adoption, in its legal sense, has always been regulated by, and is purely a creature of, statute. There is no adoption at common law…" Consequently, when an adoption order is made, its effect is as set out in the statute that authorises its making. An adoption order does not have any inherent effect at common law that has the result that its making has any natural consequences.

119. It is therefore necessary to remember that there is a subsisting order of the Children's Court that grants sole parental responsibility to the Minister until IEK attains the age of 18 years. As there has been no appeal from that order, it will continue in effect unless and until it is rescinded or varied by the Children's Court, following leave being granted on an application under s 90 of the Care Act.

120. If the Court makes an adoption order, the existing parental responsibility for the adopted child (including the Minister's parental responsibility under the Care Act) ceases to have effect, but that is by force of s 96(1)(a) of the Adoption Act, which specifically provides for that consequence in these terms:

(1) On the making of an adoption order:

(a) the existing parental responsibility for the adopted child (including the Minister’s parental responsibility under the Children and Young Persons (Care and Protection) Act 1998) ceases to have effect…

121. If the Court refuses an application for an adoption order, which is the condition for the application of s 92 of the Adoption Act, there is no equivalent provision that affects the subsistence of any care order made by the Children's Court.

122. It could hardly be acceptable that two inconsistent but effective orders for the parental responsibility for a child may exist at the one time.

(c)   a description of the type of information to be exchanged under the plan,

(d)   a statement of the frequency of exchange of information,

(e) details of provision to be made for any financial and other assistance arrangements that the Secretary has agreed be included in the plan under section 201(2) of the Act,

(f)   a statement of the period for which the plan is to have effect.

244. The evidence contains proposed maternal and paternal adoption plans (pages 253 to 260 of the exhibit to the affidavit of the Delegate). The plans have been agreed to and signed by PAP and the Delegate, but have not respectively been agreed to or signed by EK and DSC.

245. Both of the adoption plans in this matter appear to conform to the requirements of s 47 of the Adoption Act and Reg 75.

246. “Parties to an adoption” is a term defined in the Dictionary to the Adoption Act as meaning (a) the child, (b) the birth parent or parents who have consented to the child’s adoption, (c) the person or persons selected to be the prospective adoptive parent of the child, (d) the Secretary, and (e) the appropriate principal officer. In this case the appropriate principal officer (on behalf of the Secretary) and PAP are parties to the adoption.

247. As neither EK nor DSC has consented to the adoption of IEK, they do not fall within the definition of parties to an adoption.

248. Section 46(2A) of the Adoption Act provides that a birth parent who has not consented to the adoption of a child is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child, and sub-s (2B) provides that a non-consenting birth parent who does agree to an adoption plan is to be treated for the purposes of various sections of the Adoption Act as if the non-consenting birth parent were a party to the adoption of the child. Those sections are s 47 (empowering the parties to the adoption to agree on an adoption plan); s 48 (requiring the adoption plan to accompany the application for adoption unless it is registered under s 50); s 50 (governing registration of adoption plans); s 51 (giving this Court power to review an adoption plan on application of one or more of the parties to the plan); and s 90 (imposing conditions on the Court making an adoption order).

249. In-so-far as s 46(2B) has the effect of treating a non-consenting birth parent who agrees to an adoption plan as if that parent were a party to the adoption of the child for the purposes of a review by this Court under s 51 of the Adoption Act, a problem arises.

250. Section 51 of the Adoption Act provides:

51 Review of adoption plans

(1)   The Court may review an adoption plan on application of one or more of the parties to the plan.

(2)   Unless the Court otherwise determines, the Court is to give each party to the adoption who agreed to the adoption plan an opportunity to make submissions concerning the application.

(3)   Following its review, the Court may, by order:

(a)   make such changes (if any) to the provisions of the adoption plan as it considers appropriate, or

(b)   revoke the plan, or

(c)   confirm the plan.

(4)   The Court may change the provisions, or revoke, an adoption plan only if it is satisfied that it is in the best interests of the child and proper in the circumstances to do so.

(5)   An adoption plan that is changed by an order of the Court has effect as if it were the plan originally agreed to by the parties.

251. Under sub-s (1), an application for review can only be made by a party to the adoption plan and not by a party to the adoption who is not also a party to the adoption plan. Sub-section (2) only requires the Court to give parties to the adoption who have agreed to the adoption plan an opportunity to make submissions. EK and DSC, who have not consented to the adoption and not agreed to the adoption plans, will not have rights of review under s 51 on its literal application. Section 46(2B) will not avail them, as that only gives non-consenting birth parents who agree to an adoption plan a right to be treated as parties to the adoption for the purposes of various sections including s 51 of the Adoption Act.

252. This is a strange result, as s 46(2B) was evidently intended to have a remedial effect by giving birth parents who have not consented to the adoption some rights under s 51 (as well as other sections). However that section only gives rights to parties to the adoption plans – not to parties to the adoption. Section 46(2B) does not require that birth parents who have not consented to the adoption and have not agreed to the adoption plan be treated as parties to the adoption plan. It is difficult to see why, when a birth parent neither consents to the adoption nor agrees to the adoption plan, but an adoption order is nonetheless made because the Court finds that s 90(2) is satisfied, the birth parent should be precluded from applying for a review of the adoption plan and making submissions for the purposes of that review.

253. This is not just a technical problem, because in a finely balanced case the Court may come to the view that the absence of any right of the birth parent to apply for a review of the adoption plan may be a factor that limits the capacity of the adoption to be in the best interests of the child, as required by s 90(1), before the adoption order can be made.

254. The possibility that there will be a need to review the maternal adoption plan is in my view real in the present case. The initial maternal adoption plan must make provision for contact visits between IEK and both EK and RK on the basis that EK will be RK’s carer. In the unfortunate event, if it should happen, that the restoration of RK to EK is not successful, then a provision will be required to accommodate any new carer.

255. More significantly, however, the provisions in the present maternal adoption plan for contact visits between IEK and EK and RK are relatively infrequent and regulated, and given the need to foster the emotional connection between IEK and both EK and RK at the same time over the period to when IEK reaches 18 years of age, there is a real need to accommodate the possibility that some flexibility and revision of the maternal adoption plan may be beneficial to IEK, and in the absence of agreement that may require review by this Court.

256. As will be seen, I will not make an adoption order in this matter until the parties to the proceedings have conferred for the purpose of reviewing the terms of the maternal adoption plan. I will give the parties the opportunity to make submissions on the effect of s 51 of the Adoption Act in the light of the questions that I have raised above concerning its curious operation. The issue will disappear if EK ultimately agrees to the final form of the maternal adoption plan.

257. The final condition for the making of an adoption order that must be satisfied is that created by s 90(2) of the Adoption Act which provides:

(2)   The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

Maternal adoption plan

258. The maternal adoption plan provides for a minimum of four contact visits per year having a duration of two hours per visit. Practical terms are set out for arranging visits and the consequences of non-attendance. It also provides for PAP to consult with RK’s carer to facilitate a total of six sibling contact visits per year lasting a minimum duration of one hour per visit. Four of these visits are to coincide with EK’s visits, but the other two are described as being “wholly sibling focused”.

259. Barnardos reduced the number of contact visits to four per year because EK had struggled to attend visits on time, which caused disruption and disappointment to IEK.

260. For the purpose of considering whether s 90(2) is satisfied, it is important to note that the maternal adoption plan was signed in December 2017, which was long before the Children’s Court made the orders that are set out above for the restoration of RK to EK.

261. If, as expected, in accordance with the recent orders made by the Children’s Court, RK is successfully restored to EK, then EK will be the “carer” with whom PAP has to arrange two separate contact visits a year between IEK and RK, when it is contemplated by the maternal adoption plan that EK will not be present.

262. There is an obvious difficulty with this aspect of the maternal adoption plan, and it is difficult to see how it could be made to work sensibly. In contemplating that IEK will have two contact visits per year that are not attended by EK, the maternal adoption plan appears to assume that RK’s carer will be a person other than EK.

263. It appears from pars 39 to 41 of EK’s written submissions, that she submits that the maternal adoption plan is inadequate. That appears to be principally because it only provides for four visits of two hours each per year, and as EK will be the principal source of meeting IEK’s cultural identity needs, the amount of access will be insufficient. In pars 87 to 97 of her affidavit, EK explained difficulties that she had experienced in attending contact visits, and the problems involved in only having four visits annually of two hours’ duration.

264. The evidence suggests that part of the problem lies in the fact that there is significant distance between the locations where PAP and EK each live. EK has to travel to contact visits by public transport and the transport schedules have apparently not been sufficiently reliable.

265. The maternal adoption plan contains the following provisions concerning culture and religious upbringing:

7. IDENTITY AND CULTURAL HERITAGE

a) [IEK] is from a Polish-Australia background, born to a Polish mother and an Australian father, being raised by a proposed adoptive parent with Anglo-Saxon Australian heritage…

b) [PAP] appreciates the importance of developing [IEK’s] understanding of her family background in an age-appropriate manner. [PAP] agrees that contact with [EK] will play an important part in fostering [IEK’s] identity and her Polish/Australian heritage.

c) [PAP] will also ensure that [IEK’s] Life story book contains up-to-date information about her birth family background, the circumstances surrounding her entry into care and information relevant to her Polish/Australian heritage.

d) [EK] will share her Polish culture and traditions with [IEK] in an age-appropriate manner during contact visits and/or by way of letters to [IEK].

e) [PAP] to provide [IEK] with opportunities to participate in Polish cultural celebrations and activities such as Name Day (Imieniny) and opportunities to interact with people from Polish backgrounds.

f) [PAP] and [EK] to support [IEK] to learn about and have access to Polish foods and the Polish language.

g) A Cultural Plan has been devised to assist the proposed adoptive parent attend to [IEK’s] identity and cultural heritage in addition to the extensive Life Story Work that has been completed reflecting and incorporating [IEK’s] cultural heritage.

8. RELIGIOUS UPBRINGING

[IEK’s] mother identifies as Roman Catholic and has previously expressed a wish for [IEK] to be baptised into the Roman Catholic faith at some point in the future, but did not wish it to occur at this time. Should [EK] request that [IEK] be baptised in the future, [PAP] has agreed to facilitate this, taking into account [IEK’s] wishes.

266. The Cultural Plan referred to in par 7(g) of the maternal adoption plan was in evidence. It was signed by PAP and EK and representatives of Barnardos in early 2016. As I understand EK’s submission, it is that the level of involvement of the mother under the maternal adoption plan is so limited that she cannot meet the child’s cultural needs, so that the Court should not be satisfied that the arrangements proposed in the adoption plan are in the child’s best interests and proper in the circumstances, and accordingly should refuse to make the adoption order.

267. In my view, EK’s submission concerning the inadequacy of the maternal adoption plan is put too highly in-so-far as it seems to claim that, if the provisions for the support of the child’s cultural and religious identity are not entirely satisfactory, then the condition in s 90(2) should be found not to be satisfied, with the result that the adoption order must be refused. In fact, the principle in s 8(1)(e) of the Adoption Act is but one of many principles that may not always mesh together seamlessly and may sometimes raise contradictory considerations. The Court is required to consider all of the objects and all of the principles and make an evaluative judgment as to whether, on the whole, the arrangements in the adoption plan are in the child’s best interests and are proper in the circumstances.

268. The maternal adoption plan in clause 1 contains the statement: “It is envisaged that the current arrangements will continue until [IEK] reaches 18 years of age unless the Plan is reviewed prior to this time”. Clause 12 refers to the parties having a right mutually to agree to changes in the plan, and if any difficulties arise they are invited to contact Barnardos, who will endeavour to resolve any difficulties via a process of consultation and mediation with the parties. It is then noted: “In the event that a resolution is not possible, the Adoption Plan may be formally reviewed by the Supreme Court”.

269. As I have explained above, it appears that so long as EK does not consent to the adoption plan, she may not have standing to apply to this Court for an order reviewing the plan.

270. In any event, once an adoption order is made, unless some special funding arrangement is made by either the Secretary or Barnardos, PAP, EK and DSC would be responsible for making and funding an application for a review of the adoption plans by this Court, if PAP (being the only one of them with standing under s 51) made an application for review.

271. I am broadly but not entirely satisfied in this case that the maternal adoption plan satisfies the condition in s 90(2). I accept that the arrangements made for IEK’s cultural and religious identity are not ideal. However, having heard PAP’s evidence from the witness box, I am satisfied that she genuinely appreciates the need to do all that she can to achieve a satisfactory outcome to the best of her ability, and that the Court can have confidence that she will be as good as her word. The difficulty is that, for practical reasons, the ideal cannot be achieved, partly through the tyranny of distance, and also the relatively limited opportunities in the area in which PAP and IEK live for people to participate in Polish cultural activities.

272. I accept that it is desirable, when an adoption order is made, for the adoptive parent to be given the primary role of arranging the matters the subject of the adoption plan as part of the adoptive parent’s parental responsibility. It is also desirable that the adoption plan not be too prescriptive, as complex prescriptions tend to invite dissension.

273. I am concerned that EK may not have been given an effective opportunity to negotiate the terms of the maternal adoption plan, particularly in the light of the making of the recent orders for the restoration to her of RK. As I have noted above, the maternal adoption plan does not appear to work properly, given that it provides for EK to have four contact visits per year and RK six visits. At least so long as EK has parental responsibility for RK, it would seem that both should be entitled to the same number of contact visits at the same time. I am inclined to the view that, at this stage, six visits per year would be realistic and sufficient, given the difficulties experienced in the past with travel, and the probable need to find time outside school days for the visits to occur. I am particularly concerned to ensure that all that can be done is done to agree to a plan that facilitates the continuation of a bond between IEK and EK, and the development and sustainment of a sibling bond between IEK and RK. In saying this, I appreciate that there are limits to what can be achieved. It is important that the requirements of implementing an adoption plan not become an excessive burden that risks crushing the benefits of the making of the adoption order.

274. In my view, given the recent legislative changes that are likely to lead to applications for the making of adoption orders being made earlier in the lives of the subject children, and the likelihood that a higher proportion of adoption applications will be contested, there is a special need to ensure that adoption plans are tailored as carefully as possible to make good the overall objectives of open adoption, and to foster the object in s 7(c) of the Adoption Act, being to ensure that the child is assisted to know and have access to his or her birth family and cultural heritage.

275. I propose to make an adoption order as sought in the summons in due course, but I will not make it immediately. I will give the Secretary through the principal officer of Barnardos, PAP and EK a further opportunity to agree upon an amended maternal adoption plan, having regard to the observations made in these reasons, before I am finally satisfied that the condition in s 90(2) of the Adoption Act has been established.

Paternal adoption plan

276. The paternal adoption plan provides for contact visits with DSC two times per year lasting a duration of two hours. It also provides for three contact visits of a minimum of two hours each between IEK, and her half-brother SJC, to be arranged between PAP and SJC’s mother. There is also provision for the possibility of future telephone contact and electronic communication, although that is not happening at present. PAP agrees to provide certain information and photos to DSC.

277. The Court does not know what attitude DSC has, if any, to the paternal adoption plan.

278. There is evidence that PAP has attempted to facilitate a relationship between IEK and DSC, and is open to cooperating with DSC for that purpose. As DSC has not appeared, and has not made any submissions concerning the inadequacy of the paternal adoption plan, there is no basis for the Court to consider it to be inadequate. The paternal adoption plan is broadly consistent with the extremely limited contact that has occurred between IEK and DSC to date.

279. I am satisfied that s 90(2) of the Adoption Act is satisfied in respect of the paternal adoption plan.

Name of IEK

280. The Secretary applies for an order that IEK’s name be changed, so that she would retain the names IEK as her given names and have PAP’s surname as her surname.

281. Section 101(1)(b) of the Adoption Act requires the Court, on the making of an adoption order, for a child who is less than 18 years of age, to make an order that the child have as his or her surname and given names such name or names as the Court approves on the application of the adoptive parent or parents.

282. PAP has applied for IEK to be given the names requested by the Secretary’s application. I do not understand EK to have opposed this course, assuming that an adoption order is made.

283. Section 101(2) of the Adoption Act provides that, before changing the surname or given 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. There is evidence that IEK has said on occasion that she would have her “full name” when it had PAP’s surname at the end. Because of IEK’s age, I would not place great weight on this evidence, but it suggests that IEK is content to have the names proposed by PAP.

284. When I formally make the adoption order, I will make an order that IEK have the given names IEK and the surname P.

Paternity of DSC

285. Section 21(2) of the Status of Children Act 1996 (NSW) (Status Act) provides:

(2)   On any such application, the Supreme Court may make a declaration that a named or identified person is a child’s parent.

286. “Such application” includes, as in the present case, an application by the delegate of the Secretary for a declaration as authorised by s 21(1)(d) of the Status Act.

287. Section 19(2) of the Births, Deaths and Marriages Registration Act1995 (NSW) authorises this Court to make an order that DSC’s name be entered in the register of births as IEK’s father, if it makes the declaration sought by the Secretary.

288. The evidence is that EK has named DSC as IEK’s father, and DSC has acknowledged that it is possible that he is. DSC agreed to participate in DNA paternity testing, and following an appropriate procedure, a parentage testing procedure report issued by Sonic Genetics on 27 June 2014 stated that the probability of DSC being IEK’s genetic father is 99.999997%. DSC has subsequently acted as if he has acknowledged that he is IEK’s father, although he has stated that he does not want his name on IEK’s birth certificate.

289. In Adoption of BS (No 3) [2013] NSWSC 2033, Brereton J said at [100]:

Inclusion of his birth father's name on the original birth certificate would enable the child to access that information under the adoption information provisions in due course. If that information is not included, the birth father would be an "unacknowledged birth father" within those provisions, and the child would not be able to access information concerning him…

290. The benefits to adopted children of the making of parentage orders have been set out by Hallen J in Adoption of J [2016] NSWSC 1098 at [45]-[49].

291. I am satisfied on the evidence that the orders sought by the Secretary should be made, and in due course I will make them when I make the final orders in these proceedings.

Conclusion

292. For the reasons given above, I propose in due course to make all of the orders sought by the Secretary in these proceedings, subject to first being satisfied that the maternal adoption plan is in IEK’s best interests and is proper in the circumstances. I have set out above some considerations that should be taken into account in revising the existing maternal adoption plan.

293. I will give the parties interested in the maternal adoption plan an opportunity to confer, and those parties have leave to contact my Associate to arrange a further hearing date to deal with the settling of an appropriate maternal adoption plan.

294. The present maternal adoption plan must be revised to at least accommodate the fact that RK may be restored to the care of EK, so that EK may need to be present on all occasions when RK has contact with IEK. Thought, at least, must also be given to the arrangements that the parties will put in place should the restoration of RK be unsuccessful. It is unfortunate that transport difficulties presently limit the number of contact visits that are feasible each year, as it would be desirable for both EK and RK to have more contact with IEK than is presently provided for. I do not suggest that many more contact visits each year would be feasible, but perhaps some additional or longer contact visits could be contemplated. The parties must also give some thought to the question of how EK may have standing to apply to the Court for the review of the maternal adoption plan, if she does not agree to and become a party to the plan that is ultimately approved by the Court.

Questions arising out of adoption principles

295. It is appropriate that I make a number of observations that flow out of my analysis of how the adoption principles apply in a case such as the present.

296. It is not clear that the Adoption Act and the Care Act will always operate seamlessly to further the legislative intention, concerning the proper long-term care of children and young persons. There have in recent times been relatively significant amendments to the Care Act, to establish the primacy of the permanent placement principles, and the need for expedition in ensuring that children and young persons are provided with a safe, nurturing, stable and secure environment; all within the framework of elaborate judicial and administrative arrangements to ensure, so far as is possible, that the measures are implemented effectively in the best interests of children and young persons.

297. That process requires that a detailed care plan be prepared by the Secretary, directed at achieving the most appropriate form of long-term care in accordance with the permanent placement principles. Although adoption is not the most preferred alternative, it is one that the Secretary will sometimes decide is the most appropriate, and the Children’s Court will approach the making of the appropriate care orders having the Secretary’s determination in mind.

298. Reduced to its essence, what this means in the present case is that PAP has engaged in the out-of-home care process since 2 July 2015 for the purpose of adopting an appropriate child, and IEK has been placed with PAP since 19 October 2015, after the Secretary determined that the best long-term placement for IEK was adoption by PAP. Since that time, both PAP and IEK have been living their lives in the hope and expectation that this Court would make an adoption order. That is more than three years. This Court can hear evidence about the effect of those expectations and the day-to-day reality of PAP and IEK living together, but it is plainly unrealistic that comprehensive evidence can be given of those matters.

299. Yet, so far as the Adoption Act is concerned, this Court is only required by s 7(d) to recognise the changing nature of the practices of adoption, as one among nine objects of the Adoption Act. The Court is also required by s 8(1)(e1), in making a decision about the adoption of a child, to have regard to the principle that undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare, as one of a significant number of factors to be taken into account.

300. And then, before the Court can make an adoption order, it is required by s 90(3) of the Adoption Act to consider that the making of the adoption order would be clearly preferable in the best interests of the child than any other action that could be taken by law.

301. It does not require much thought before it is realised that all of the enumerated objects and principles do not apply consistently or cumulatively, and that in reality the course that the Court decides should be taken is a matter of evaluation and judgment.

302. In particular, how all of the important principles in the Care Act should be taken to have significance in the decision to make an adoption order is an obscure question, and must be found unexpressed in the objects and principles that are stated in the Adoption Act, and in the making of some judgment as to the principles that govern the preferability of one course of action over another.

303. One strange consequence of these matters is that the Care Act and the Adoption Act do not necessarily gel seamlessly or effectively. All of the requirements of the Care Act may be implemented flawlessly leading to care orders being made that prepare the child and proposed adopting parent or parents for adoption, but the fact that the making of an adoption order must be clearly preferable to all alternative actions means that this Court may in some cases refuse to make an adoption order. If that happens, it plainly may undermine everything that has been done under the Care Act. Has sufficient legislative attention been given to the remediation of the consequences of the implementation of the Adoption Act in such a case?

304. Relevant to this question is the issue of how s 92 of the Adoption Act is meant to operate. On its face, this Court is given some power to make parental responsibility orders. This Court cannot make all of the care orders that may be made by the Children’s Court, including a guardianship order. There is a real question about whether this Court has sufficient power immediately to make appropriate orders to minimise the harm caused by a refusal to make an adoption order. If the Court does not have the power to minimise that harm, realistically that will be a disincentive to the Court refusing to make an adoption order, unless such refusal is plainly necessary.

305. Is the power granted to this Court by s 92 of the Adoption Act intended merely to give the Court the power to make short-term parental responsibility orders when necessary to enable the child or young person to be handed back, so to speak, to the responsibility of the Children’s Court, which is the Court most suitable to deal with the care of children and young persons? If the Court is intended to have a power, independently of the Children’s Court, to make parental responsibility orders until the child or young person attains the age of 18, what is to be done about the fact that the Adoption Act does not entitle the Court to require that it be provided with administrative assistance, and there is no express provision for the Secretary to provide financial assistance in appropriate cases to the persons involved? Does this Court have a power to review parental responsibility orders made under s 92, given that there is no such express power in the Adoption Act, and generally in this area the legislature makes express provision for the circumstances in which orders for the care of children and young persons may be reviewed?

306. This is a very important question, because, as happened in the present case, the birth parents of a child may defend an application for an adoption order on the basis that the Court can, and should, make a parental responsibility order in their favour in the exercise of a supposed power in s 92 of the Adoption Act to do so.

307. There is also the particular problem of identifying this Court’s power under s 92 of the Adoption Act, in cases where there is a subsisting care order made by the Children’s Court, which is inconsistent with the parental responsibility order that this Court is asked to make. I have expressed the conclusion above that this Court has the power to make a parental responsibility order, but that in the exercise of its discretion it should generally not do so, if that order would be inconsistent with a subsisting order of the Children’s Court. An alternative way of looking at the matter might be to interpret s 92 as being subject to an implied limitation that there is no power to make a parental responsibility order that is inconsistent with a subsisting Children’s Court order. These considerations depend upon the correctness of my view that an order under s 92 does not automatically extinguish an inconsistent Children’s Court order, and that this Court is not given implied power to set aside the Children’s Court order.

308. In any event, it is strange to think that this Court might be given a comprehensive power to regulate the parental responsibility for a child or young person, simply because it has refused to make an adoption order; in circumstances where there are none of the comprehensive judicial and administrative arrangements contained in the Care Act for the protection of children and young persons.

309. There are then a number of problems with the requirement in s 90(3) of the Adoption Act that this Court must consider that adoption is clearly more preferable than any other action that may be taken in law before it can make an adoption order. The first problem arises out of arguable uncertainty as to the thought process that is required in making the preferability determination. Is the Court to decide the matter on principle having regard to the general attributes of the various alternative actions, or is the Court required to descend into the nitty-gritty of what is on offer, who will pursue it, will it be pursued, will it be implemented, and if so when and on what terms? I have preferred the latter approach, but the correctness of the former may be arguable.

310. The problem with the former approach is that it may lead the Court to decline to make an adoption order on the ground that an adoption order is not clearly more preferable than some alternative, where in reality the alternative will never be implemented. That can hardly be in the best interests of the child or young person. The latter approach is more defensible, but it is somewhat artificial to think that this is a course that the Court can realistically follow. One difficulty is that the parties only litigate the actions that they contend should be implemented, and the other possibilities are likely to receive only rudimentary treatment.

311. The problem would be less significant if this Court, upon a refusal to make an adoption order, had the power to immediately implement any alternative action that was sufficiently satisfactory to undermine an adoption order being clearly preferable to the particular alternative. In that case, the ability of this Court to make objective judgments about relative preferability would be realistic. Where the alternative action must be taken somewhere else, usually by means of a combination of decisions by the Secretary, the Secretary’s delegate, potential adoptive parents or carers, and the Children’s Court, the suggestion that this Court, on the evidence that happens to be before it in the particular case, will be able to determine which alternative actions are genuinely preferable is likely to be unrealistic.

312. Among many difficulties that may arise out of the interaction between the Adoption Act and the Care Act, from the perspective of birth parents, is the length of the time that will usually elapse between the making of the administrative decision for the child to be adopted and the opportunity given to the birth parents to challenge the making of an adoption order under the Adoption Act. The present case serves as an example. IEK was taken into care on 9 December 2014. The care plan filed by the Secretary on 19 February 2015 stated affirmatively that adoption would be an appropriate outcome for IEK. The Children’s Court made an order granting parental responsibility for IEK to the Minister on 3 September 2015. That order would have been made in the knowledge that the proposal was that IEK would be placed for adoption. However, no part of the order directly related to the adoption process. An appeal by EK against the Children’s Court order could only challenge the granting of parental responsibility to the Minister. There was no convenient forum for challenging any administrative step concerning the initiation of the adoption process for IEK. IEK was placed with PAP on 19 October 2015, with the expectation of PAP and Barnardos on behalf of the Secretary that an application for an adoption order would ultimately be made. That application was made on 8 December 2017, and the hearing took place in November 2018. PAP and IEK had been forming a family attachment over the period.

313. It is in these circumstances that the Court is required to determine whether adoption is clearly preferable to any other action that may be taken at law. In the present case, the determination must be made some four years after the care plan was prepared by the Secretary, which disclosed the original decision to proceed towards adoption. I accept this is a complicated issue, as birth parents may need time to be able to demonstrate their capacity to take parental responsibility for a child, and the child must spend time with the proposed adoptive parent or parents before he or she can develop a stable and secure relationship with them. But time is the enemy of birth parents who lose the care of their children, because, once a child has become attached to the proposed adoptive parent, it will be difficult for the Court to find that adoption is not clearly preferable to all alternative actions. Even in a case where the birth parents are able to demonstrate, at the time of the adoption hearing, an immediate capacity to take parental responsibility for the child, if that leads to the Court refusing to make the adoption order, then great grief will be caused to the aspiring adoptive parents, and often also to the child.

314. Then, there is the problem that arises in relation to birth parents who do not agree to adoption plans that I have considered above. At the risk of repetition, I will repeat my explanation of this problem, because if I am right it is a defect in the Adoption Act that should be corrected.

315. Section 46(2A) of the Adoption Act requires that a birth parent who has not consented to the adoption of a child be given an opportunity to participate in the development of, and agreement to, an adoption plan. The birth parent may choose not to avail him or herself of that opportunity. Even if the birth parent negotiates the adoption plan, he or she may not be happy with it and may not agree with it.

316. Section 51(1) of the Adoption Act empowers the Court to review an adoption plan on application of one or more parties to the plan. A birth parent who has not agreed to the adoption plan will not have standing to apply for its review by the Court. That will be so whether or not the birth parent has consented to the adoption. Under sub-s (2), the Court is to give each party to the adoption who agreed to the adoption plan an opportunity to make submissions concerning the application, unless the Court otherwise determines. A birth parent who has not agreed to the adoption plan will not have a right to make submissions.

317. Section 46(2B) of the Adoption Act deems a non-consenting birth parent who agrees to an adoption plan to be a party to the adoption for the purposes of s 51. Being a party to the adoption has no consequence for the purposes of s 51 unless the party also agreed to the adoption plan. Deeming a birth parent who does not consent to the adoption plan to be a party to the adoption makes no difference. Section 46(2B) only makes a difference in respect of s 51 for a birth parent who does not consent to the adoption but does consent to the adoption plan. It is difficult to see why, when a birth parent neither consents to the adoption nor agrees to the adoption plan, but an adoption order is nonetheless made because the Court finds that s 90(2) is satisfied, the birth parent should be precluded from applying for a review of the adoption plan and making submissions for the purposes of that review. For the reasons I outlined at pars [247]-[257] above, this is a strange result.

318. Many of the issues that I have raised involve significant questions that may simply have to be worked out by the Court as cases come forward, but there is a case for some legislative consideration of the difficulties that may arise out of the relationship between the Care and Adoption Acts. For example, there may be advantage in considering the true effect that s 92 of the Adoption Act was intended to have, and its relationship to the orders that may be made by the Children’s Court. There is also a case for the legislature to consider whether birth parents who do not agree to adoption plans should be given standing to apply to the Court for such plans to be reviewed, and to make submissions on applications for review. The list of difficulties arising out of the relationship between the Care and Adoption Acts contained in these reasons is not intended to be exhaustive.

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Amendments

20 March 2019 - Paragraph numbering corrected

Decision last updated: 20 March 2019