Adoption of PS

[2015] NSWSC 2159

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Adoption of PS [2015] NSWSC 2159
Hearing dates:	30 November, 1, 2 December 2015
Date of orders:	03 December 2015
Decision date:	03 December 2015
Jurisdiction:	Equity - Adoptions List
Before:	Brereton J
Decision:	Adoption order made; amended adoption plan to be registered.
Catchwords:	FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – whether the making of an adoption order is clearly preferable to any other order that could be made with respect to the care of the child – where child has given consent to adoption – weight to be ascribed to child’s consent – where child settled in placement with proposed adoptive parent and has developed familial and psychological ties with adoptive parent – where child has made significant progress while in placement with adoptive parent – where birth mother’s mental illness compromises parenting capacity – where no realistic prospect of restoration of child to care of birth parents – suitability of proposed adoptive parent – whether proposed adoptive parent supportive of birth mother contact – where supervision of contact by adoptive parent objected to by birth mother – registration of adoption plan – where amendments made to adoption plan during course of hearing – whether adoption plan appropriate and suitable to child’s needs and parties understand and freely enter into it - where preserving the possibility of restoration would contravene the spirit of adoption principle (e1) – where not making an adoption order would compromise child’s emotional and psychological development – where adoption would serve child's identity needs better than any potential alternative as it would confirm the child's identity with his psychological family while preserving the opportunity for him to know his birth parents and to understand why he does not live with them – whether proposed name change in best interests of child – where changing last name would reinforce child’s membership of adoptive parent’s family.
Legislation Cited:	(NSW) Adoption Act 2000, s 8(1), s 8(2), s 23(2), s 24(1), s 27(1), s 27(2), s 27(3), s 50, s 50(3), s 54(1), s 54(2), s 54(3), s 55, s 61(3), s 63, s 90(3), s 91, s 126 (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Adoption of SRB, CJB and RDB [2014] NSWSC 138 Application of A – re D [2006] NSWSC 1056 Director-General, Department of Community & Services v D [2007] NSWSC 762; (2007) 37 FLR 595 Director General Department of Family & Community Services v GKD [2011] NSWSC 1637
Texts Cited:	The Honourable Justice PLG Brereton AM RFD, “Aspects of Domestic and International Law and Practice in Adoptions", 16th National Family Law Conference, 8 October 2014
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (plaintiff) PS (child) TLS (defendant mother) DS (natural father)
Representation:	Counsel: M Neville (plaintiff) S Leis (defendant mother)   Solicitors: Crown Solicitor (plaintiff) Tony Cullinan Lawyers (defendant mother)
File Number(s):	A169/2014

Judgment (ex tempore)

1. HIS HONOUR: PS, the child whose best interests are the central issue in these proceedings, was born on 8 October 2003 and is thus now 12 years of age. He is the son the first defendant TS and the second defendant DS. For the sake of preserving the privacy of the parties, I shall refer to them generally by their first names, without intending the slightest disrespect.

Background

2. PS was the only child of the relationship between TS and DS, although he has a maternal half-sibling, B, born 9 October 1998 and thus five years his elder, and numerous paternal half-siblings but only one of whom – P – is known to PS. None of the children of either of the defendants, so far as I can ascertain, are in the care of their parents or either of them. B lives with her maternal grandmother, KM, now in Victoria; and P is the subject of an order for parental responsibility to the Minister until 18 years of age and lives with foster carers in the Northern Rivers region.

3. B was removed from TS's care, it would seem, in January 2003. By 8 October 2003, when PS was born, there had been a number of expressions of concern about TS's ability to care for the child she was carrying. Her mental health deteriorated following PS's birth. She and PS were discharged from hospital on 16 October 2003 with the provision of in-home support.

4. On 5 November 2003, PS was placed in foster care for one night under a temporary care agreement and then admitted with TS to Tresillian, due to concerns concerning TS's mental health. Following an assault by TS on DS on 12 November 2003 – in circumstances in which it must be said, so far as the evidence reveals, TS was provoked and not by any means in control of her emotions – PS was removed, in the context of a proposal that TS be scheduled and admitted to a mental health facility. Care proceedings were instituted in the Children's Court on 13 November 2003 and, on 13 February 2004, a finding was made that PS was in need of care and protection. A care plan proposed by the Department of Family and Community Services on 21 June 2004 proposed restoration to the birth father, DS, and on 2 July 2004, PS was placed in DS's care. On 26 August 2004, orders were made in the Children's Court giving parental responsibility of PS to DS except in respect of contact, in which respect parental responsibility was allocated to DS and the Minister jointly.

5. In January 2006, B returned to live in the care of TS and by February 2006, it seems that all four – TS, DS, B and PS – were residing together at Bega. However, the relationship between DS and TS broke down, and they seem to have separated in about late 2006. This is reflected by TS, on 6 November 2006, filing an application under (NSW) Children and Young Persons (Care and Protection) Act 1998, s 90, for leave to apply to vary the orders of the Children's Court, in an attempt to regain parental responsibility for PS from DS. On that application, on 23 July 2007, the Children's Court varied the previous orders, placing PS under supervision; however, so far as I can ascertain, he remained in the parental responsibility of DS.

6. DS was imprisoned, due to a driving offence, on or about 20 August 2007, initially, it seems, under a 12 month custodial sentence. He entered into a temporary care agreement in respect of PS for a period of three months. On 27 August 2007, PS was referred for assessment due to concerns expressed by the temporary carers and he was assessed as having a severe language delay, a mild articulation delay and needs across all developmental areas.

7. It seems that DS appealed from his sentence of imprisonment and on or about 3 October 2007, a sentence of six months periodic detention to be served by weekend detention was substituted. During this period, PS was placed with foster carers during the weekends while DS was serving his sentence, under temporary care agreements made by DS.

8. Between January and May 2008, PS had a number of consultations with health professionals, which revealed consistent expressions of concern regarding his development, and an assessment that he suffered from a mild intellectual disability, that he was developmentally-delayed and that he was displaying aggressive behaviour. As a result, the Secretary, on 23 July 2008, filed another application under Children and Young Persons (Care and Protection) Act, s 90. The concerns referred to in connection with that application included domestic violence between DS and his then partner (not TS), and concerns as to DS's parenting skills. Leave under s 90 was granted on 21 August 2008 and on the following day, PS was placed with JC and her domestic partner, AM, in which placement he has remained ever since. I will return to the observations made of his condition and development at the time of the placement in due course.

9. On 29 October 2008, the Children's Court clinician prepared a report which recommended restoration of PS to TS, with family supports to be in place. A care plan on 25 November 2008 proposed restoration to TS to proceed over a 12 month period. However, for reasons which were probably associated with a lapse in TS's mental health, this proposal did not proceed and, on 28 January 2009, a new care plan proposed that PS remain in his placement with JC and AM. An addendum to the care plan dated 7 April 2009, recommended contact with TS four times per annum, to take place during school holidays and subject to TS's satisfactory mental health. The next day, 8 April 2009, the Children's Court made orders – it being conceded that there was no realistic prospect of restoration – giving parental responsibility for PS to the Minister until he attained 18 years of age, and providing for contact with TS in accordance with the proposal in the plan that I have just mentioned. Those orders remain in force.

10. A little over a year later, in May 2010, JC and AM expressed interest in adopting PS. Tragically, AM died of a terminal illness in 2012.

11. For a significant part of the period between 2010 and 2015 – just how much does not appear from the evidence, but at least for a year between early 2014 and early 2015 – DS was incarcerated, again in relation to motor vehicle offences.

12. PS attained 12 years of age in October 2015 and has consented to his adoption by JC, in circumstances to which I shall refer.

13. Since the orders of the Children's Court giving parental responsibility to the Minister and providing for contact with TS were made, contact has taken place consistently in accordance with those orders. Indeed, I do not think there is any suggestion that there has been an occasion on which it has not happened when it ought to have. Initially, it was supervised by a Community Services case worker, but more recently, and except for the last two occasions while this hearing has been pending, by JC. TS has expressed the view that there have been serious difficulties in those circumstances with JC's supervision, and in particular that JC distracts PS from engaging with TS and deals curtly with both PS and TS and does not endeavour to engage with TS. With one slight exception, however, these perceptions of TS, which I do not doubt she genuinely holds – including, I should add, the perception that she feels that she is being judged by JC during those contacts – are not only not corroborated by other evidence, but are contradicted, and not only by JC's evidence.

14. A file note prepared by the case worker, Gail Henry, following contact on 26 April 2013, reports that TS came into the Community Services centre that afternoon to discuss how her contact with PS went. Ms Henry noted that "[TS] advised contact went well and was really good." Ms Henry also provided detail of what happened:

[TS] said she was happy with contact not being supervised and being with [PS] and [JC]. She stated [PS] is better just with [JC] and well-mannered.

15. Ms Henry also made notes of contact on 18 January 2015, at which she was initially present, and of a telephone call to TS the following day to gain her thoughts on how she felt contact went. TS is reported to have said, "I feel wonderful after yesterday." Later, TS said, "Contact went good. [PS] liked his presents."

16. Ms Henry's notes of contact on 9 July 2015 describe what appears to be another successful interaction between TS and PS. It contains the only independent evidence of JC reprimanding PS, but in the following context:

We ate in the foodcourt and during the conversation [PS] asked his mum if she still smoked and [TS] said, “Yes”' And in the past, [TS] has told [PS] that she didn't smoke as she knows he doesn't like it and I was pleased [TS] answered honestly. [PS] was upset with [TS] and said to her as a consequence, “If you don't stop by our next visit I am not going to see you.” [JC] said to [PS], “That's a bit harsh, you can't say that.” And [TS] went silent. “No, when you do something wrong there has to be consequences.” [JC] said, “It has to be mum's decision to stop smoking.”

17. On 15 April 2015, when contact took place, Ms Henry was not intending to be present or to supervise but coincidentally encountered TS at the shopping centre where contact takes place and had a brief discussion with her. TS talked about PS and said he and JC had discussed the adoption with her. They also discussed the adoption plan and PS's attitude to adoption, to which I will in due course refer. Subsequently, Ms Henry noted:

[TS] said she had a great visit with [PS], and even though he was not happy with the adoption being slow, he was very polite and respectful throughout the visit.

18. The only support for the type of behaviour to which TS has referred is to be found in Ms Henry's note of contact on 24 October 2015, in which she records, as if writing to PS:

As you walked away and were about 100 metres from [TS] and I, [TS] called out, “I love you [PS].” I said to [TS], 'Remember the last time you saw [PS] you embarrassed him and he asked you not to do that. What do you think he will think about you calling out and everybody hearing?'” I explained to [TS], “The age [PS] is I think he finds lots of things embarrassing and you need to be aware.” I noticed the difference in your interaction with mum, [TS], today, you hung more with [JC] and held her hand...”

19. Nonetheless, the note records that it was a long visit – four hours walking around the shopping centre and surrounds – with PS openly discussing the question of adoption with TS, who said she loves spending time with PS and that he makes her very happy.

20. I think that TS's perception of JC's impact as a supervisor at contact has been heavily influenced by what happened on that one last occasion when the present hearing was impending and when, unintentionally, the outburst on her part, to which I have referred, may well have embarrassed PS. There is really no objective support in the evidence for TS's criticisms of JC's behaviour. As Ms Henry observed, and as her notes tend to corroborate, JC is very respectful of TS's position as mother, and Ms Henry has not observed JC detract or distract from the connection between TS and PS, nor has she observed any negativity, hostility or impoliteness between them.

21. On the other hand, there is reason to think that TS harbours some attitudes towards JC which makes it difficult for a warm relationship to be established. This has been reflected in observations TS has made, both to Ms Henry about JC's lifestyle and choices, and also in TS's affidavit evidence. In short, I do not think the evidence reveals that contact has been otherwise than largely satisfactory, nor that supervision by JC has been in any way unsatisfactory.

The adoption proceedings

22. Against that background, one comes to the issues that arise in the present case. The Secretary seeks an adoption order in favour of JC; that PS's name be changed so that his current family name become a third forename and he assumes the family name of the proposed adoptive parent, and the registration of an adoption plan providing for ongoing contact between PS and TS.

23. DS was joined to the proceedings and appeared at an early stage, but did not appear at the final hearing. In accordance with the provisions of (NSW) Uniform Civil Procedure Rules 2005, being satisfied such that he was on notice of the hearing, the hearing proceeded in his absence. In any event, the evidence reveals that he does not oppose an order for adoption.

24. TS, on the other hand, plainly opposes an order for adoption. She aspires to have PS restored to her care, although no order to that effect was formally sought in these proceedings. She submits that preservation of the status quo (being parental responsibility to the Minister) or alternatively a parental responsibility order in favour of JC, would be preferable to adoption. She also proposes various changes to the contact regime, including provision for telephone and Skype contact, unsupervised contact, and contact in her home town on the South Coast.

25. The main issues are:

1. whether adoption would promote PS's best interests and is clearly preferable to any other order that could be made with respect to his care;

2. whether, as the Secretary seeks, the adoption plan should be registered; and

3. whether PS’s name should be changed, as proposed by the Secretary.

26. As has now often been observed, it is important to bear in mind that in this type of case, the Court is concerned with the future, rather than with the past, and the central concern is the best interests and welfare of the child involved in the proceedings now and in the future, rather than the rights or wrongs of what has happened in the past, whether on the part of the birth parents, the adoptive parents, the Department, or the Children's Court. It is not the role of this Court in these proceedings to review the decisions that have been made by the Children's Court, nor even to determine whether in the different circumstances that prevail today the type of order that was made by the Children's Court would still have been made. Rather, this Court has to decide, given the competing proposals of the parties and any viable alternatives to them, what will best serve the interests of PS now and in the future, given what has already happened in his life to this point. We cannot undo the past, however much we might wish to be able to, and we have to take PS's position as it is now, rather than as it might have been had different decisions been made in the past.

Whether adoption would promote PS’s interests and is clearly preferable to any other order that could be made

27. In making decisions about adoption, the Court must apply the principles of (NSW) Adoption Act 2000, s 8(1): in particular, that the best interests of the child, both in childhood and in later life, must be the paramount consideration; that adoption is to be regarded as a service for the child; that no adult has a right to adopt a child; that if the child is able to form his or her own views on the matter concerning his or her adoption, the child must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances; that the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved; and that undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare.

28. Adoption Act, s 90(3), provides that the Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction beyond reasonable doubt [Application of A, re D [2006] NSWSC 1056 at [53] (Palmer J)], the requirement that the Court consider that an adoption order be clearly preferable is one that adoption is obviously plainly or manifestly preferable to any other action that could be taken by law [see Director-General, Department of Community Services v D [2007] NSWSC 762; (2007) 37 FLR 595 at [25]]. Ms Leis submitted that the Briginshaw standard should be applied. To my mind, that does not differ markedly from the way in which I have preferred to express it by reference to the above authorities.

29. The answer to the question whether adoption is clearly preferable is informed by various relevant considerations referred to in Adoption Act, s 8(2), which for present purposes can be summarised as follows:

1. First, concerning the child, his physical, emotional and educational needs, including his sense of personal, family and cultural identity, and any disabilities the child might have; his wishes, and other relevant characteristics, including age, maturity, level of understanding, gender, background and family relationships;

1. Secondly, so far as concerns the birth parents, their wishes, the nature of the child's relationship with them, their parenting capacity, and their attitude to the child and to the responsibilities of parenthood;

2. Thirdly, concerning the proposed adoptive parent, her suitability and capacity to provide for the child's needs, her attitude to the child and to the responsibilities of parenthood, and the nature and quality of the child's relationship with her.

30. All these considerations are also informed by the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to ill-treatment, violence or other behaviour, and they are also all informed by the context provided by the alternatives to adoption in the light of the short- and long-term effects of adoption, to which in due course I shall return.

31. Where a child who has attained 12 years of age, and has sufficient maturity to do so, has given consent to the child's adoption, the consent of the birth parents is not required. Thus, if PS has given a valid consent – an issue to which it will be necessary to return – it is unnecessary to make an order dispensing with the consent of the birth father or the birth mother. But a birth parent is nonetheless entitled to appear before the Court to oppose an order for adoption, even where the birth parents’ consent is not otherwise required.

32. This follows from Adoption Act, s 54(3), which provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption unless the Court is satisfied that notice of the application for the adoption order has been given to the parent whose consent would otherwise be required. In providing for notice to a person whose consent would otherwise be required in that way where there is a child's sole consent, the intention is to enable that person to be heard in respect of, and if they wish, in opposition to the application. They could not oppose the application simply on the basis that their consent had not been given, as it is no longer required [see Adoption Act, s 54(1)(c) and (2)]. But they can advance other arguments in opposition to the adoption order, other than simply that consent has not been given, as the birth mother has done here [see Director General Department of Family & Community Services v GKD [2011] NSWSC 1637 at [4]].

33. On the other hand, the circumstance that there is a valid consent by a child of 12 years of age does dispense with the requirement of parental consent and means that, in making an order for adoption against the wishes of a parent, the Court is nonetheless not engaged in the grave step of dispensing with a birth parent's consent.

PS’s circumstances, needs and wishes

34. I turn then to consider PS's circumstances, needs and wishes. For the purposes of Adoption Act, s 23(2)(a), when the application was made, PS was present in New South Wales, and for the purposes of s 24(1)(a), he was less than 18 years of age when the summons was filed; as I have said, he is a little over 12 years of age at present. He has now been in the care of JC for more than seven years, initially also with AM. That represents significantly in excess of half of his lifetime to date.

35. When he was placed with JC and AM, he was developmentally delayed and sub-optimally cared for. A paediatrician reported on 5 November 2008 that he had mild developmental delay in all areas, a full scale IQ of only 63, and on 17 December 2008, global developmental delay and a mild intellectual disability. On 13 March 2009, a physiotherapist reported that he had poor balance, and generally delayed gross motor skills. By 8 July 2009, the paediatrician reported that she was pleased with his progress but that he continued to have difficulties with speech and language and expressed concerns about attachment difficulties and his social skills.

36. Those observations all tend to confirm with the description provided by JC in her affidavit of 14 August 2015, in which she says that when PS came into the care of her and AM, he was dirty, had ill-fitting, dirty clothes and no shoes, was physically unwell with an eye infection and tonsillitis, was unable to speak in an intelligible manner, and seemed to have a very limited working vocabulary of less than a dozen words. He would eat no fruit other than bananas or vegetables or non-processed protein and was unable to use a knife, fork or spoon. He was very reluctant to bathe and appeared fearful both of the bath and swimming pools. He did not initiate tasks such as dressing or even going to the toilet but expected and needed help with all aspects of personal care. His top front teeth were worn away to tiny stumps, and he seemed to have no experience of brushing his teeth or regular oral hygiene. He woke multiple times most nights with night terrors and nightmares and needed much reassurance. He had poor posture and balance, could not stand on one leg, skip or hop, and was generally physically uncoordinated, lacking in core strength and his legs appeared weak. He was unable to climb a flight of stairs without the assistance of his arms. His eye movements appeared uncoordinated and he had a sweat. He showed many signs of emotional distress, such as frequently disturbed sleep, constantly heightened anxiety and a desire to always be in control of every situation. He chatted constantly, mostly infantile talk which one would expect from a much younger child. He had a distant look in his eye and seemed quite disconnected from the present, avoided silence, and often wanted company and reassurance. And significantly, he showed none of the normal attachment behaviour expected of a four or five year old. He would approach anyone regardless of how they were behaving and seemed oblivious to any potential dangers. He would latch on to a total stranger within seconds and behave as though they were his life-long friend. He also seemed to have no understanding of what is appropriate for public and private situations respectively. Those observations describe symptoms which manifest a significant degree of attachment disorder.

37. On 27 June 2011, the school counsellor reported that he still had difficulty concentrating and was achieving average to low results in thinking abilities and academic achievements.

38. By 26 November 2012, a consultant paediatrician would report that he was in good physical health.

39. The s 91 reporter, Ms Howe, saw him in July 2011, November 2012, July 2013, and November 2013. Her observation was that he was a happy young boy who felt secure and safe in his own home environment with JC, and that he had become a good communicator who easily participated in conversations with both adults and children alike, gaining in social skills and making friends both with the school children and with the neighbourhood children. He was achieving his physical developmental milestones and playing sport. There has been a substantial improvement in his speech with the assistance of speech therapy. He had had his tonsils and Adenoids removed, and other repair surgery. He had had dental work performed by an orthodontist to correct an overbite. His immunisation status was up to date, and he was not required to take any medication.

40. Although his academic performance at school has, until this year, been behind the milestones expected for his age, this year he appears to have been achieving generally at a satisfactory level, though by no means performing particularly well academically, although there have been some recent very good results in mathematics.

41. PS knows his birth mother and has contact with her as I have described. Like many young teenagers or pre-teens, he is sometimes embarrassed by his mother, plainly relates warmly to her during contact and also behaves respectfully towards her. It is also clear that he is concerned for her welfare and feels a degree of responsibility for her happiness. While a child should not be put in the position of feeling responsibility for a parent's happiness, that he does so is some testament to the quality of his relationship with TS and his feelings for her.

42. Against the background that I have just recited, it is constructive to refer to JC's description of what has happened this year. She says that earlier this year, PS seemed to:

just settle and everything started to fall into place for him. He spontaneously started to call me ‘mum', started making breakthroughs in relationships with his peers and became popular with kids who previously did not have any time for him. He started making breakthroughs with his learning and even with activities such as tap dancing, soccer and schoolyard football. He often now refers to himself as PC or a member of the C family and he loves his aunties, uncles, cousins and old nan. He frequently asks when we can go to England to visit everyone again.

43. It is also important to remember that as well as what must have been very difficult early years before he was placed with JC and AM, the consequences of which are manifested by his condition when he was placed, and which is only fair to observe reflect more on the quality of care provided by his father than by TS, as he was in DS's parental responsibility for most of that time, he has also experienced and suffered the loss of another close person, AM. PS has in that way experienced a great deal of grief and lost relationships in his short life, and that provides an important factor in considering his needs now. His history of attachment disorder of itself strongly emphasises a need for stability and security in the future and that, if anything, is tragically accentuated by the further loss of AM in the meantime.

44. It is clear that PS is now very well and comfortably settled in JC's care and that he has a close and loving relationship with her. I do not think that there is any doubt that he identifies JC as his psychological mother, although he is also very well aware and understands that his biological mother is TS.

45. It is also manifest that PS has expressed a wish to be adopted and that this is a firmly-held position on his part. In particular, he has expressed that wish in his consent in a case conference held in about September this year, in which he repeatedly made statements about the adoption going ahead, and perhaps most significantly, in conversations with TS, in which he has repeatedly expressed his desire to be adopted and sought her agreement to that course without success, but nonetheless remained respectful in doing so.

46. To sum up then from PS's perspective, he entered into the placement in a very poor way, he had attachment disorder, he has suffered further losses during the placement. He has become well-settled in a close, loving relationship. He has made great progress in JC's care. While there, he has sustained a warm, if somewhat remote and infrequent, relationship with TS. He needs stability and security and he wants to be adopted.

TS’s circumstances

47. Turning to TS, she was cross-examined at some length and I thought gave her evidence with great openness and frankness. Perhaps one of the dominant factors in any evaluation of TS in this context has to be her mental health history. She was diagnosed initially with schizo-affective disorder and more recently with a bipolar disorder, which she has now had for many years, although her last admission for it was in mid-2012, and since then she has been treated initially pursuant to a community treatment order but now voluntarily by depot medication with which she is compliant. She has been stable and quite well for more than three years now, and has made considerable progress in that respect. There is a good basis for thinking that she will remain well into the future, but the possibility of a relapse cannot be excluded. She is proactive and responsible with her own care, and this is a good sign for her future health. That said, neither her consultant practitioner Dr Bell nor, I think, even herself would exclude the possibility of a relapse.

48. TS aspires to have PS restored to her care and has given some thought as to how this might happen. Her expectation that PS would just “click back in” as her child to a new environment is, I think, an unrealistically optimistic one. Whether PS would have the capacity to re-attach in the light of his history of attachment disorder, after the severance of yet another important relationship, is doubtful.

49. It is very clear that TS loves both her children PS and B and, in many ways, lives for her relationship with them and that sustaining that relationship is a significant motivator for her to remain well. Unfortunately, I think TS lacks a little in emotional intelligence in her dealings with PS, as is evidenced by the occasions on which he has felt embarrassed by her; but that said, she would not be the first mother who has embarrassed a young teenager. Perhaps more troubling is that, as I have already mentioned, she has a perception of JC and JC's attitude to her which is based on deep-seated beliefs about JC’s lifestyle which precludes them from forming a better relationship than they have. That said, like JC, she recognises that while they have little in common and would otherwise probably have nothing to do with each other, they are always going to be civil to each other, because they both have PS's interests at heart.

50. While the cross-examination of TS drew attention to some historical use of cannabis and some very minor use of alcohol, I do not consider this has any practical significance in the present circumstances. But I do think TS lacks a little insight into PS's current position. If she appreciates the strength and quality of PS's relationship with JC, she is not prepared to acknowledge it. The downplaying of PS's repeated wishes to be adopted to a desire to have a social media profile also does not demonstrate insight into his true position. I thought her position was, understandably enough, focused in a significant way on her needs to be a mother to the child that she clearly loves, rather than objectively on PS's best interests. Again, she would not be the first mother to manifest that.

51. So, to sum up, in terms of parenting capacity and attitudes to the responsibility of parenthood, TS has had little opportunity to develop her parenting capacity, particularly over the last several years. I think her mental health compromises her parenting capacity somewhat, although not by any means to the same extent as it once did. In terms of her ability to provide for PS's intellectual and emotional needs, my assessment is that her capacity is inferior to that of JC. That said, if one were deciding at the outset whether a child should be removed from a birth parent, a mere comparison of that kind would not count for much; but in this case, where there is a history of a successful placement of many years' standing, one would want to see at least an equivalence of parenting capacity before contemplating restoration. In terms of attitude to the responsibilities of parenthood, it should be clearly recorded that TS has been totally committed to both of her children while they have not been in her care, and has been regular and consistent in contact with them. There have been one or two occasions on which she may have said inappropriate things or made inappropriate approaches to a school, but I do not think it can seriously be suggested that she has ever done anything seriously adverse to her children's interests in that respect. But I do think her parenting capacity is somewhat compromised by her focus on her maternal needs and by her entrenched views about lifestyles.

52. Before turning to JC, I should observe that PS's maternal grandmother, KM, with whom his half-sister B resides, is supportive of adoption.

JC’s circumstances

53. Turning then to JC. For the purposes of Adoption Act, s 23(2)(b) and s 27(1)(a), she is domiciled in New South Wales. For reasons to which I shall come, for the purposes of s 27(1)(b), I find that she is of good repute, and is fit and proper in every way to fulfil the responsibilities of parenthood. She is cleared to work with children under a working with children check. She complies with the age requirements referred to in s 27(2)(a). She no longer has a spouse such as to require consent under s 27(3). I am satisfied that she was selected in accordance with the requirements of the Adoption Act as they were in force when that selection took place and before the recent amendments. No submission was made that there was any problem with the selection process in that respect.

54. JC was raised in Wales. She left school at 18 years of age after completing the equivalent of the Higher School Certificate, has tertiary qualifications in social work and counselling, and experience in relation to the management of people including disabled people. She has occupied various social work positions in disability, aged care and residential units in the UK and in Australia in the field of disabilities. This, I think, provides her with advantages in terms of parenting capacity. She has completed a Diploma of Professional Counselling with the Australian Institute of Professional Counsellors. More significantly, PS's progress in her care over the last seven years is testament to her parenting capacity. It is very clear that she recognises the need for PS to have male as well as female role models, and that that need is being met. His current circle of friends and acquaintances evidences that.

55. In her evidence, she presented as honest, sensitive, very reasonable and flexible, and willing to consider options and alternatives. Like TS, she acknowledged that they had little in common, but that PS's interests required them to cooperate. I accept that she has been respectful of TS's position as birth mother and, as I have said, I find no support for the contention that she has interfered or detracted from or judged TS in the context of contact, nor that she has manifested negativity, hostility or impoliteness towards her. Indeed, given what is known about some of the views that TS has expressed, it must have needed a great deal of tolerance and resilience to behave as she has continued to behave in that context.

56. I accept that she is genuinely supportive of birth parent contact. I base this not only on what she says and her demeanour, but on a proven record of behaviour. There is first the fact that there has never been a problem with birth contact taking place in accordance with the Children's Court orders. This is a case in which I have not seen a single suggestion that contact was prevented or frustrated when it ought to have taken place. Secondly, she displayed a more than usual willingness to consider alternatives and flexibility in contact arrangements. Strikingly, she has twice at PS's request facilitated contact with his father DS, even when he was incarcerated, and it would have been easy to object to such contact in those circumstances. Also, it is evident that in July this year she cancelled a planned holiday for PS and herself to western New South Wales, to enable contact with TS to proceed on 9 July.

57. I must say that I was concerned that PS appeared to have been allowed to dictate that he would not contact or telephone TS on the occasion of his recent birthday, and it would have been much better had that telephone call been made. But I have closely read the documents and listened to JC's evidence in that respect and accept that PS was invited and encouraged to make that phone call but himself chose not to do so, and that it was not unreasonable in those circumstances to say that he should make that decision for himself on his birthday.

58. It is clear that JC has an excellent relationship with PS. I am satisfied that she has manifested an excellent attitude to the responsibilities of parenthood. Indeed, she has provided the parenting that PS's birth parents have been, for one reason or another, unable to provide.

PS’s consent to the adoption

59. As I have said, it is necessary to consider the question of the validity of PS's consent. Adoption Act, s 55, provides that the Court must not make an adoption order in relation to a child who is 12 or more but less than 18 and who is capable of giving consent, unless the child has been counselled as required by s 63, the counsellor has certified that the child understands the effect of signing the instrument of consent, and the child consents to the adoption by the proposed adoptive parent. Section 54(2) provides that the consent of birth parents is not required where a child has given sole consent, being a child who is 12 or more years of age, "and of sufficient maturity to understand the effect of giving consent", and the child has been cared for by the proposed adoptive parent or parents for at least two years.

60. PS has plainly been cared for by JC for in excess of two years. The mandatory written information was provided to PS initially through JC on 10 June 2015 and read over with PS. It was provided a second time on 13 October 2015. On 4 November 2015, PS was assessed by a registered counsellor, Kim Daly, as capable of consenting and understanding the consent. Ms Daly's report is that PS presented as calm and animated and willing to engage about his proposed adoption. He referred to his copy of the mandatory written information. He was attentive and displayed his understanding of the information discussed and offered his opinion in an age appropriate manner. He told Ms Daly that he was aware that he was now able to give consent to his own adoption and that he was keen to do so.

61. Ms Daly said that it was evident from his statement that he had been offered previous opportunities to discuss what adoption would mean for him and that he wanted it to occur as soon as possible. Ms Daly commented that:

[PS] sees adoption as a way that he can be legally connected to his carer and give him a greater certainty that he can remain living with her. He repeated that a number of times during the interview so it appeared to be especially important to him.

62. Ms Daley was of the opinion that he had the maturity to articulate aspects of his life that would change and those that would not through adoption:

…saying that his day to day living would not change, but he would have the assurance that he would be remaining with his carer permanently, commenting “it will be better, feel different”.

63. He was also aware that contact with his birth family members could continue post-adoption, and explained how that would take place. She concluded:

I am confident that [PS] has had ample opportunity to consider the mandatory information on adoption and the implications of his proposed adoption. I am also confident he is able to articulate in an age appropriate manner the effect of giving consent to his own adoption.

64. She then certified that he understood the effect of signing the instrument of consent pursuant to Adoption Act, s 61(3). On 11 November 2015, PS signed the instrument of consent to adoption by JC in the presence of a delegate of the Secretary, Leanne Williams.

65. While no firm submission that PS lacked the requisite capacity was made, counsel legitimately pointed out that PS was barely 12 years of age and that the Court should not merely assume that one of that age thereby had the requisite capacity. That said, I think s 54(2) reflects a policy judgment that, generally speaking, at the age of 12 a child is prima facie able to make such a judgment.

66. In giving consent, PS was acting consistently with statements that he had made to TS over some period of time, and statements that he made at the September 2015 case conference. The statements he made to Ms Daley, as recorded in her report, indicate that he understands that adoption represents a change in his legal status, though not so much a change in any practical day-to-day arrangements, and that at its heart from his perspective was a sense of legal belonging to the family of the adoptive parent.

67. There was no challenge to Ms Daley's evidence, who was not required for cross-examination. In my view, there is no reason not to accept her assessment that PS was capable of giving the consent. Accordingly, I am satisfied that there is a valid consent of PS to his own adoption.

The proposed adoption plan

68. I turn to the proposed adoption plan. The Secretary, JC and PS have agreed on an adoption plan and seek that it be registered so that it will take effect as part of the adoption order and thus be an enforceable order of the Court. That step is being taken in order to provide comfort and assurance to TS that she will have the assurance of an enforceable obligation for ongoing contact between PS and her.

69. In broad terms, the plan provides for face-to-face contact four times per annum during school holidays for four hours on each occasion. By default, contact will take place at a nominated time on the first Monday of the holidays, at the shopping centre where contact has historically taken place. The plan envisages that as PS matures the contact arrangements may evolve, and requires that the annual schedule be prepared by JC in consultation with TS and that JC give consideration each year to whether the requirement for supervision needs to be maintained. The plan also provides for the exchange of information, including school reports and health information and telephone contact on TS's birthday and PS's birthday. It also provides for Community Services to provide financial assistance for TS to travel from the South Coast to the place where contact takes place on the Central Coast four times per annum.

70. A number of amendments were made to the plan in the course of the hearing. In final submissions, counsel for TS proposed a number of further amendments. Some of them, I think, either are or should be uncontroversial, and it was indicated that they, or at least most of them, would be in the final version of the plan. The first of those was the amendment of TS's second name, which was agreed.

71. The next, which although not expressly stated to be agreed, I think should be unobjectionable, is the insertion in the first line of face-to-face birth mother contact, before the reference to four times per year, of the words "at least".

72. The third, which should also be uncontroversial, is the insertion of "[TS] and" before "the Community Services Centre" in the first paragraph at the top of page 2 as a person to be contacted if JC decides that a contact occasion should not proceed on account of concerns about TS's mental health.

73. In respect of information exchange at clause (c)(i), it is agreed that there should be inserted a clause to the effect JC will provide TS with a post office box address to which TS may send letters and information for PS.

74. In the same part of the plan which refers to JC informing TS if she intends to relocate to the United Kingdom, it was agreed that the reference to informing should be substituted with "provide reasonable notice to" TS and should be extended to cover the United Kingdom or elsewhere outside Australia.

75. In respect of the concluding paragraph, which provides that the plan can be reviewed by the Court at the request of any of the parties, it was agreed that a provision should be inserted to the effect that notice of any such application to the Court must be given to TS.

76. The remaining issues concerning contact and the adoption plan really reduce to supervision, location and sibling contact. In this context, it is important to bear in mind that an adoption plan can be registered only if the Court is satisfied that the parties to the plan have voluntarily agreed to it. That means that I cannot require amendments to the plan that are not agreed by the parties to it, although it is open to the Court to refuse to make an adoption order at all unless an agreed plan acceptable to it is put before the Court. Thus, the real question is whether, if of the view that the adoption plan could be improved but that is not agreed by the parties to the plan, the deficiencies are such as to outweigh the desirability of making an adoption order, if that be considered ultimately appropriate.

77. One important consideration in all of these respects is my overall assessment that if an adoption order is made, JC is going to be sensitive to PS's needs and wishes, and supportive of ongoing contact with TS.

78. So far as supervision is concerned, I accept that at least for the time being, supervision is appropriate, and that JC is the appropriate supervisor. The most important reason for this is to provide reassurance and comfort to PS on such occasions. I think PS is going to feel much more comfortable about contact with TS, until he is a little older, if he has someone he knows and trusts and is as close to as he is with JC present.

79. The evidence to which I have already referred in connection with contact tends to show that JC’s presence has facilitated, rather than obstructed, contact. It may well be that the time will come, and it may not be that far off, where PS is able and wishes to have unsupervised dealings with his mother. But it seems to me that JC is likely to be the best judge of that in the circumstances. Likewise, it may well be that on occasion in the future, the maternal grandmother KM is an appropriate person to supervise contact. But it seems to me that PS would have to get to know her somewhat better than he already does before that is self-evidently so. While it may be that a more comprehensive plan for the future evolution of supervision could be designed, it does not seem to me, in the context of this case, that in this respect the current plan is so deficient that the Court would consider it an obstacle to making an adoption order at all.

80. In terms of where contact should take place, it was proposed that provision could be made, perhaps annually, for contact to take place on the South Coast where TS resides. In circumstances where Community Services has agreed to bear the cost of transport for TS to the Central Coast and back, and overnight accommodation while she is there to enable contact to take place, the cost of contact does not provide a reason for requiring that it take place on the South Coast. Nor is this a case in which the South Coast town in question is or represents PS’s roots or a place with which he has any significant connection. It is more important that contact take place, than where it takes place, and given the financial arrangements that Community Services have agreed to put in place, it seems to me that the fact that specific provision is not made for some contact on the South Coast is not a significant objection to the proposed plan.

81. In terms of sibling contact, the evidence reveals that though PS's contact with B is not frequent, it has been highly successful and that they have developed a good relationship. Normally, the Court is content to leave arrangements for sibling contact to the persons with parental responsibility, and I am satisfied that in this case JC can be relied on, if an adoption order is made, to make appropriate arrangements for sibling contact. While it is true that it appears to have occurred once a year in recent years, and mainly in Sydney or on the Central Coast, that has been in order to meet the convenience of all – including, in some cases, TS – so that she can see her children together. I see no particular advantage in requiring that some of the sibling contact be in Victoria, although there is no reason why some of it should not be in Victoria.

82. It was also proposed that Community Services should be required to use their best endeavours to meet requests for air transport from the South Coast, or a second night's accommodation. I cannot impose that on Community Services, and I do not think such benefits as it might have is a sufficient objection to the plan as a whole, as not to register it or preclude an adoption order being made.

83. For the purposes of Adoption Act, s 50(3), I am satisfied that the proposed adoption plan does not contravene the adoption principles, that the parties to it understand and freely enter into it, and that it is in the child's interests and otherwise proper and appropriate in the circumstances. I reach those conclusions conscious that TS, as a non-consenting birth parent, does not embrace all the provisions of the plan, but ultimately its registration will secure her interests in an ongoing relationship with PS, should I conclude that an adoption order should be made.

Whether adoption would promote PS’s best interests

84. I turn then to the critical issues: essentially, whether adoption would promote PS's best interests in the light of the alternatives to adoption. This requires the identification and consideration of the effects and consequences of adoption and of the various available alternatives, and an evaluation of the respective benefits and detriments of each from the perspective of the best interests of PS, so as to decide whether or not adoption is clearly preferable to the alternatives.

85. In this case, the relevant alternatives include preserving the status quo, and a parental responsibility order in favour of JC. Preserving the status quo has the benefits of avoiding the irrevocable and permanent nature of adoption and preserving maximum flexibility to deal with and adapt to changes that might take place as PS matures. On the other hand, PS would not be a complete member of JC's family, in which he resides and which he identifies psychologically as his family. He would remain a ward of the Minister, so that departmental approval would be required for significant decisions in his life. It would not be a lifetime arrangement. But it would have the potential advantage that there would be an independent monitor and assurance of ongoing contact with TS. A parental responsibility order would differ from preserving the status quo chiefly by removing the need for ministerial or departmental involvement in the making of decisions. But under it, PS would still be a less than complete member of JC's family and the arrangement would still be one only for childhood and not for life.

86. Thus, the fundamental difference between the alternatives and adoption is, on the one hand, the permanence of adoption, and on the other, the potential flexibility offered by the alternatives. Flexibility would be important if there were a reasonable prospect that the placement would break down or that PS might be restored to TS. While flexibility may be an advantage in that sense, it is also synonymous, in a practical sense with uncertainty, and is thus the antithesis of security and stability.

87. The Court would not likely make an adoption order if it were not satisfied that the advantages of adoption clearly outweighed the benefits of preserving the possibility of restoration. This necessitates some judgment as to the likelihood and desirability of restoration. For that, the starting point is the decision of the Children's Court to allocate parental responsibility to the Minister until eighteen, which though by no means binding on this Court or conclusive of this issue, represents a decision of a specialist Court that there is no realistic prospect of restoration to the birth family.

88. Next, it has to be said that PS's bond with TS has necessarily been a very limited one. Although TS says that he was practically in her care for four years, that is not very clear from the evidence, and prior to his placement, he appears to have been mostly in the parental responsibility of DS. In any event, over the last seven years, their relationship has been limited to contact.

89. On the other hand, he has developed a close attachment to JC. Restoration would involve fracturing a bond that has lasted the majority, and more than the most recent half, of his relatively short life. It would be disruptive of the current highly satisfactory arrangements for his care. On his history of attachment disorder and subsequent bereavement, it would involve a high degree of risk of inability to reattach. In addition to that, he would move from a situation in which he is receiving an excellent level of parenting to one which, in my assessment, would not be equivalent to it, in particular because it would not bring quite the same appreciation of his intellectual and emotional needs and insight. It would also involve the situation that, if perchance there were a relapse in TS's mental health, PS would practically be left without a safety net. That means that restoration would involve significant risks not associated with the current arrangements and significant unknowns as to whether PS could reattach and as to the quality of parenting that he would receive. Thus, in my view, restoration, which is not presently sought by cross-claim or otherwise, is a remote likelihood and is not likely to be in PS's best interests. The only real alternatives to adoption are long-term foster care, whether under parental responsibility to the Minister, as at present, or parental responsibility to JC.

90. The s 91 report of Ms Howe supports adoption, but I must say that I found her report of limited assistance on that issue. Of more importance is the Court's own assessment of the situation. I have already referred to the history of attachment disorder and PS's accentuated need for stability, security and permanence. In that respect, adoption offers a superior outcome to long-term foster care under whatever regime.

91. There is ample evidence of this in the social science of which this Court, as an expert Court, is entitled, pursuant to Adoption Act, s 126, to inform itself as it sees fit and to which this Court may have regard. While I have referred in more detail to the social science studies elsewhere [see Adoption of SRB, CJB and RDB [2014] NSWSC 138 at [54]-[59] and extra-judicially in "Aspects of Domestic and International Law and Practice in Adoptions", 16th National Family Law Conference, 8 October 2014] the learning may, for present purposes, be summarised as follows. Adopted children generally do better than long-term foster care children. Studies show that at all stages, adopted children do better, or did better, than their fostered peers, and long-term foster children tend consistently to have the most dismal risk ratios, while the adoptees, in comparison to them, have more favourable outcomes. This suggests that adoption offers a form of long-term substitute care that has stronger compensatory potential than long-term foster care.

92. In other studies, foster children have fallen clearly short of adoptees on all outcomes, including school performance at fifteen years of age, cognitive competence at eighteen years of age, and educational achievement and self-support capability in young adult years, even after adjustments for birth parent-related confounders and age placement of substitute care. Thus it seems that remaining in long-term foster care is less developmentally-advantageous for a child than having a more permanent arrangement of either adoption or return to birth family. Adoptees generally appear to have a more problem-free life as adults and a better education, less self-support problems and better self-esteem than long-term foster children. Placement breakdowns amongst adoptees is significantly lower than compared with those who are fostered, and importantly, even when long-term fostering survives, children feel less secure and have a weaker sense of belonging compared with those who are adopted. Adoptees seem to perceive themselves to be doing significantly better than those in foster care.

93. The weight of the evidence in the studies suggests that adoption confers significant advantages on children who cannot return to their birth families, especially in terms of emotional security and a sense of belonging. Thus, the social scientists conclude that adoption provides higher levels of emotional security, a stronger sense of belonging and a more enduring psycho-social basis in life for those who cannot live with their birth families when compared with long-term fostering. The permanence of adoption improves or enhances the felt security of the child and the commitment of the adoptive parents. Together, these appear to contribute to the development of stronger bonds of attachment between them.

84. As I have often said, this social science is not to be applied willy-nilly to every case, but it provides a starting point and a significant basis for thinking that where the choice is between long-term fostering – under whatever regime – and adoption, adoption is generally better for the child in the long-term.

85. In this case, those findings in the social science have a strong resonation with the views that PS has expressed, particularly to Ms Daley. As I have already mentioned, PS said that his day-to-day living would not change, but he would have the assurance that he would be remaining with his carer permanently, commenting that he would “be better, feel different”. In my view, this closely accords with the idea of enhanced felt security, which seems to correlate with the better performance of adoptees when compared to long-term fostered children.

86. Indeed, one can only surmise how PS might feel if an adoption order, despite his consent and wishes, were not made and he was left in a position of parental responsibility to the Minister or JC. He would, it seems to me, continue to feel not completely part of JC's family, and that sense of incompleteness would, if anything, be accentuated by the fact that there had been a formal refusal to make an adoption order.

87. There are the additional advantages that under an adoption order, PS would become a legally recognised member of the family with which he lives, and would cease to be a State ward. He would be in in-home care, as distinct from out-of-home care. The role of the Department in his life would be removed. It seems to me that JC is far better positioned than any departmental officer, however well-intentioned, to make decisions about PS's interest and welfare. For reasons I have already given, I am confident that JC is as well – if not better – positioned than any departmental officer to make decisions about, and to supervise, contact.

88. Adoption would also bring the legal situation into conformity with the practical situation, such that legal parentage will accord with the arrangements where PS resides and with his psychological parentage and with who is actually exercising parental responsibility.

89. Notably, in the context of the Adoption Act and the emphasis it places on the wishes of a child, adoption will accord with PS's wishes. If the Act means anything in directing the Court to take into account his wishes – which have now been formed over some period of time and repeatedly articulated – at least some good reason for not giving weight to those wishes would need to be advanced or apparent, and I cannot see one.

90. No doubt adoption sometimes carries with it a risk of identity issues and a sense of abandonment later in life. But in this case, as in many, those issues arise not so much from the fact of adoption itself, but from the fact that PS is not living with his birth family. The risk of that issue arose from the time of his first placement and remains with any of the alternatives to adoption, other than restoration.

91. Moreover, there are significant further factors which mitigate that risk in this case. PS knows his birth mother, has had ongoing contact with her, will continue to have a relationship with her, and I think understands why, not for her own fault, she has been unable to provide more parenting for him than she has. His empathy with her is notable from the evidence. He does not see adoption as inconsistent with that, and that is an important consideration. Indeed, he also has had some contact with his birth father, and knows that if he wishes he can renew that.

92. Next, the fact that the adoption is made in accordance with his wishes and upon his consent, in my judgment, also reduces the risk of later identity and abandonment issues: because what is happening is happening, in his mind, largely as a result of his own choice, and not as a result of any abandonment. Even by her role in these proceedings, TS has ensured that he will not have a sense of abandonment in the future. Although there is a certain degree of irony in it, TS, having opposed the adoption, despite her knowledge of PS's wishes, has demonstrated to him very clearly that she is not abandoning him and remains committed to be his mother, as she will always be.

93. In my view, of the available courses of action, the least risk for PS's future development and welfare and the best prospects for his future growth and flourishing to become a valuable and contributing member of our society is that he be adopted by JC.

94. TS's counsel accurately identified a number of potential benefits or advantages in not making an adoption order. They were, first of all, greater flexibility and accessibility in terms of any future application that TS might make for an increase in contact. I accept that it would be easier for TS to seek further contact in the future if an adoption order were not made, and if the current arrangements remained on foot. I also accept the submission that it is in PS's interests that TS remain well and that her ability to have an ongoing relationship with him has served as a significant motivator for her to take care of her own health. That said, she will have an ongoing relationship with PS, and to sustain and assist that relationship to further develop in the future, she will need to maintain her mental health so that while the aspiration of restoration might be remote, if not illusory, the aspiration of having an ongoing relationship with PS is very real and will best be served by TS continuing to look after her mental health in any event.

95. In the light of her progress over the last several years, one cannot help but feel sympathy for TS in the circumstances, in particular at the severance of the legal bond of parentage with the child to whom she gave birth. But in the light of the matters to which I have referred, to deny PS the benefits of adoption in terms of his future prospects, as opposed to leaving him under the current arrangements, would really be to prefer TS's interests to PS's interests, and that, of course, the Court cannot do. For those reasons, the Court will make an order for adoption.

PS’s proposed name change

106. So far as the name issue is concerned, in the s 91 report, concluded some two years ago, while PS expressed a wish to assume the surname C, it is fair to say it was not a strongly held wish, and he also expressed an intention to continue to use his current name for school purposes. But it seems to me that things have moved on since then. In his consent, to which I must give weight, PS has expressed the wish to be known by the surname C, with S as a third forename.

107. One of the fundamental benefits of adoption is cementing the relationship and sense of belonging with the adoptive family, and the surname is a very important part of that. The proposed name preserves his connection with his birth family through retaining the name S, but also cements his relationship with the adoptive family. His more recent consent, in my view, entirely supersedes the earlier reservations, to the extent that there were any.

108. Importantly, it will still be a matter for him as to how he chooses to be known at school. Changing the name in the way proposed offers him the choice to be known as he pleases. As he will transition at the end of this year from primary school to high school, it may well be a logical time for him to decide to be known by JC’s surname. In my view, the proposal, so far as his name is concerned, is consistent with the purpose of the adoption and recognises his membership of the adoptive family.

Orders

109. For those reasons, the orders of the Court are:

1. The Court makes an order for the adoption of the child PDS in favour of the adopting parent, JAC, and approves the name C as the surname and PDS as the given names of the child.

2. Pursuant to Adoption Act, s 50, the further amended maternal adoption plan, subject to the amendments to which I have referred in the course of these reasons, be registered and be taken to be registered upon the lodgement with the Court of an executed copy incorporating the amendments to which I have referred.

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Amendments

13 June 2018 - Error at [55]

Decision last updated: 13 June 2018