In the matter of an adoption
[2023] ACTSC 339
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an adoption |
Citation: | [2023] ACTSC 339 |
Hearing Date: | 14 September 2023, 29 September 2023 |
Decision Date: | 20 November 2023 |
Before: | McWilliam J |
Decision: | (1) Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT),the Court dispenses with the requirement for the respondent birth mother’s consent to the adoption of the child who is the subject of the application. (2) Proceeding AD 4 of 2023 is listed on 1 December 2023 at 1:00pm for the hearing of the application for adoption orders to be made in relation to the child pursuant to Div 3.6 of the Adoption Act 1993. (3) There is no order as to costs. |
Catchwords: | ADOPTION – DISPENSATION APPLICATION – Where birth mother refused to consent to adoption of child – where child has resided with the same foster carers since infancy – where no realistic prospect of child being returned to either biological parent – dispensation order made |
Legislation Cited: | Adoption Act 1993 (ACT) ss 5, 6, 26, 29, 30, 31, 35, 39D, 60, 64 Court Procedures Rules 2006 (ACT) rr 3160, 3171 |
Cases Cited: | In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25 Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926 |
Parties: | Director-General, Community Services Directorate (Applicant) [Not published] (Respondent) |
Representation: | Counsel A Chand (Applicant) No appearance (Respondent) G Briggs (Child’s Representative) |
| Solicitors ACT Government Solicitor (Applicant) No appearance (Respondent) Briggs Law (Child’s Representative) | |
File Number: | AD 4 of 2023 |
McWILLIAM J:
1․Two long term foster carers are seeking to adopt a child who is now aged nine years and has been in their care since infancy. The Director-General, Community Services Directorate (Director-General) is seeking to facilitate that and has sought the consent of the biological parents for the adoption of the child. The biological father has said yes. The biological mother has not.
2․The Director-General has therefore pursued an application, first filed on 31 March 2023, seeking the dispensation of the statutory requirement for the birth mother’s formal consent to the adoption of the child by the foster carers.
3․In order to comply with the privacy (s 64) and confidentiality (s 60) provisions of the Adoption Act 1993 (ACT) (Adoption Act), I will refer to the person who is the subject of the proposed adoption simply as “the child”.
The present application for determination
4․Child and Youth Protection Services (CYPS) have been involved since the child’s birth, intervening when the child was eight days old and placing the child in the care of his current foster carers, where he has remained ever since.
5․The Director-General has brought the application as the person who currently has the overarching legal responsibility for the child, pursuant to long term care and protection orders made on 25 March 2015. Section 26 of the Adoption Act states that before any orders for the adoption of the child can be made, the birth parents must each provide consent to the adoption. The relief sought by the Director-General is an order dispensing with the statutory requirement for the birth mother’s formal consent to the adoption of the child: s 35 of the Adoption Act.
6․In relation to the biological father, his identity was established when the child was seven months old and confirmed via DNA testing in 2018. The biological father initially opposed the adoption. However, he has now consented to the adoption of the child by the proposed adoptive parents. As required by s 30 of the Adoption Act, an instrument of limited consent was signed on 25 October 2023 and filed on 27 October 2023. A limited consent is simply a consent signed by one of the people named in s 29 of the Adoption Act, relevantly in this case the biological father.
7․The biological father may revoke the consent within 28 days of the consent being signed, or if the person states that they need more time, a further 14 days: s 31 of the Adoption Act. In aid of ensuring certainty of the consent given, there is no power to extend this time: s 31(2) of the Adoption Act.
8․Without any prejudice to that right, the Director-General has in the meantime moved on this application solely in respect of dispensing with the requirement for the biological mother’s consent.
Notice of the application
9․The birth mother is on notice of the application. She was personally served with both the application for adoption and the application to dispense with her consent on 25 May 2023. That occurred more than 28 days before the hearing, as required by r 3171 of the Court Procedures Rules 2006 (ACT) (the Rules).
10․Although the birth mother did not file any formal opposition to the proposed adoption (in the sense prescribed by r 3160 of the Rules), she indicated in September 2022, during a conversation with the child’s case manager that she did not want him to be adopted.
The exercise of the power to dispense with the requirement for a parent’s consent
11․The Court may dispense with the requirement for consent of a person to the adoption of a child in a variety of circumstances, one of which is where it is satisfied that “it is necessary in the best interests of the child … to dispense with the requirement for consent of the person”: s 35(1)(c) of the Adoption Act. That is the criterion relied upon here.
12․The words of s 35(1)(c) were considered in the case of In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25 at [58] and interpreted to mean, “it is necessary to dispense with the requirement for consent of the person because adoption is in the best interests of the child or young person.”
13․When deciding what is in the best interests of the child, the Court must consider various factors: s 5 and 6 of the Adoption Act. Section 5 is in the following terms:
5Best interests of child or young person paramount consideration
(1)A person making a decision under this Act in relation to a child or young person must regard the best interests of the child or young person as the paramount consideration.
(2)In forming a view about the best interests of a child or young person, a person making a decision under this Act must take into account the following:
(a)the likely effect of the decision on the life course of the child or young person taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging;
(b)the child’s or young person’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances;
(c)the child’s or young person’s cultural, physical, emotional, intellectual, and educational needs;
(d)the views expressed by the child or young person in relation to the decision (including views expressed with adequate and appropriate support to actively participate, to the best of their ability, in consultation related to the decision);
(e)taking into account the benefit of maintaining meaningful relationships, the likely effect of the decision on the child’s or young person’s relationship with the following people:
(i) the child’s or young person’s birth parents;
(ii) (the child’s or young person’s siblings (if any);
(iii) the child’s or young person’s other relatives;
(iv) carers or other significant people in the child’s or young person’s life;
(f)the relationship the child or young person has with the adoptive parents;
(g)the suitability and capacity of the adoptive parents to meet the child’s or young person’s needs;
(h)the alternatives to adoption for the child or young person to secure permanent family arrangements;
(i)the continuity and sense of belonging that comes from a child or young person having stable emotional and physical living conditions;
(j)the need to protect the child or young person from physical or psychological harm associated with exposure to abuse, neglect or family violence.
14․Each of those considerations will be discussed in turn below in these reasons.
15․The considerations in s 6 do not apply to the child who is the subject of this application, as he is not of Aboriginal or Torres Strait Islander descent.
The evidence
16․Affidavit evidence before the Court addressing the considerations set out in s 5 of the Adoption Act comprised the following:
(a)An affidavit of Ms Leanne Graham, a case manager employed by CYPS who has carriage of the child’s file;
(b)An affidavit of Ms Rosslyn Joanne Bird, employed within the ACT Together consortium; and
(c)A joint affidavit from the proposed adoptive parents, prepared for both the dispensation application and the substantive adoption application.
17․Then Court also had before it a confidential report dated 9 November 2023, prepared for the purposes of s 39D of the Adoption Act, written by Ms Graham and approved by an appropriate delegate of the Director-General. The report contains information relevant to both the dispensation application and the adoption application.
Is adoption in the best interest of the child?
18․The following mandatory considerations have been taken into account. Although this application relates solely to the issue of whether to dispense with the biological mother’s consent, the discussion below deals with whether adoption is in the child’s best interests and therefore takes into account the child’s circumstances as a whole. That requires the Court to take into consideration the child’s connection to the biological father and members of the biological father’s family, which extends to the child’s cultural connections and the child’s sense of identity, even though the father does not oppose the adoption.
(a) The likely effect of the decision on the child’s life course, taking into account the need to preserve his cultural inheritance, personal identity and sense of belonging
19․The child’s maternal family is Australian and Christian. This aligns with his foster family’s background. His paternal family is of an African culture, the details of which are contained in the evidence but not repeated here to avoid potential identification of the child in question. The child has a culturally and linguistically diverse plan dated 6 February 2022. Among other things, it contains the birth father’s religious and cultural wishes for his son.
20․The foster carers are committed to supporting both of the child’s cultural backgrounds. They have made efforts to incorporate parts of the relevant language into the child’s vocabulary. They attend events relevant to the child’s culture, the details of which are contained in the reports before the Court, and include activities that promote the cultural connection, such as painting the country’s flag. They read books relevant to the child’s culture and have cookbooks as it is important to the biological father that the child has an awareness of cultural foods. They also attend African Canberra community events. There is African artwork displayed in the foster carers’ home. Through research, the foster carers have also identified a musical drumming group as this is significant to the particular culture. In the coming years (when the child is old enough) they intend to give the child the opportunity to participate in such a group.
21․The foster carers facilitate face to face access to the child’s birth parents four times a year and otherwise facilitate phone conversations. This consideration is discussed separately below. It is mentioned here, as it is a very significant way the foster carers preserve the child’s cultural inheritance, identity, and sense of belonging.
22․Given the length of time the foster carers have been supporting the child’s connections to his biological families and their efforts in incorporating cultural elements into the child’s daily life, the effect of adoption on the child’s life course is not likely to change these connections.
(b) The child’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances
23․The child is now nine and is described as having an age-appropriate understanding of adoption. Due to his circumstances in being raised by the foster carers since birth, he has a strong bond with them and views them as his parents. The child also resides with two younger foster siblings and views them as his siblings. They currently have a different surname to him, and part of the child’s understanding of adoption is that they will all share the same surname.
24․While the child’s personal identity is still developing, he does have an understanding of why he is no longer living with his mother or father and has photobooks of important people in his life. The foster carers add to this book following contact and significant occasions. The child can identify his significant family members and knows how they fit into his life. The child’s individual circumstances and current age favours adoption. As he grows older, it will assist the child’s identity to have certainty in his immediate family environment.
(c) The child’s cultural, physical, emotional, intellectual, and educational needs
25․The child’s connection to his cultural heritage has been discussed above. The biological father has expressly indicated a desire that his child be brought up according to the Islamic religion. Although religion is not expressly stated as one of the considerations under this criterion, it overlaps somewhat with cultural needs and I note that the confidential report that is required to be prepared for the purpose of considering whether adoption is in the best interests of the child makes provision for an adoption plan to include the preferences of a parent of the child in relation to the “social, religious and financial characteristics of the adoptive family” (s 39D(3)(a) of the Adoption Act).
26․I accept the foster carers may have good intentions with respect to educating the child and assisting the child in understanding the Islam faith. However, plainly, it will be difficult for the child to be brought up in the religion preferred by the biological father. First, they do not follow Islam themselves and the Muslim faith cannot be imposed on the foster carers. Second, the child is now nine and has not been brought up in that manner to date. Any religious connection has been in accordance with that of the biological mother.
27․As pointed out by Sackar J in Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnados Australia v HR & CD [2016] NSWSC 1926 at [385] when dealing with an issue of conflicting faith between a biological parent and the proposed adoptive parents, the Court’s paramount concern is for the best interests of the child in all the circumstances. This does not mean that religious considerations are ignored, but nor does it mean that they should predominate in some way that cannot be accommodated alongside what might otherwise by the best interests of the child. Religion is only one of a multitude of facts the Court is to consider in determining what is in the child’s best interests.
28․The child is otherwise reported to be a happy and healthy boy who is meeting all his developmental milestones. There are a couple of minor physical development issues recorded. These are being attended to by the foster carers. They autonomously organise, facilitate and fund medical appointments (medical and dental check-ups). I am satisfied the foster carers have the ongoing ability to meet the child’s physical health needs.
29․The child’s educational needs are being met primarily through regular attendance at school. He plays sport and has swimming lessons. There are no concerns with his emotional, intellectual or educational needs or any need that requires particular management following adoption.
(d) The child’s views
30․The child’s views have been taken into account. From his perspective, it is important that he and his foster siblings have the same last name “because then the kids at school will believe we are brothers and sisters”. He has spoken to the school counsellor about adoption and knows that his foster carers want to adopt him “because they love me”. He has discussed how he wants to live with mummy and daddy, “forever, until I am 21”.
31․There are many inferences that adults, professionals and lawyers may draw from these comments, whether the analysis is put in terms of an underlying need for belonging in the family unit, the importance of peer perception to a child as they grow up, or an underlying desire for long-term certainty and stability. It suffices to say here that the child is in favour of adoption and that is an important consideration.
(e) The likely effect of the decision on the child’s relationship with birth parents, siblings other relatives and carers or other significant people in his life
32․The child is fortunate to have maintained a relationship with each of his birth parents. He sees them at regular intervals through the year, along with his paternal grandmother with whom he has contact four to six times a year.
33․In addition, the child has natural contact with his three maternal siblings, organised by the foster carers, as well as frequent contact with maternal aunts, uncle and cousins.
34․The child’s two paternal siblings live overseas, and connection is difficult due to time zones and technical difficulties. However, the child does know who they are and as the child’s writing develops, there will be more opportunities for him to write to them. The foster carers have expressed an intention to take the child to visit his paternal siblings when the children are older.
35․If the child is adopted, there is unlikely to be any significant change to the current arrangements for contact and connection with the significant people on both the maternal and paternal sides of the child’s family. The foster carers have proactively promoted contact and have demonstrated a commitment to ensure ongoing and meaningful relationships between the child and his birth family. They have signed an adoption plan indicating their intention to continue the current pattern of face-to-face contact arrangements and additional contact around special occasions or participating in cultural and community activities together. While this has not been signed by either birth parent, it is nevertheless evidence of the foster carers’ commitment to ensuring that the child’s relationships are maintained.
(f) The child’s relationship with the proposed adoptive parents
36․This is a very strong factor in favour of adoption. The child is extremely well settled with his foster carers. His relationship with the foster carers has always been that of parent and child and they have a strong bond with each other. The foster carers describe him as their gift and speak of their appreciation in watching him grow and develop. They have viewed him as their own child since he was put into their arms.
(g) The suitability and capacity of the adoptive parents to meet the child’s needs
37․The foster carers are on the register of people suitable for adoption and have consistently demonstrated an ability to provide a high level of care for the child. They depose to being in a stable marriage, each working as public servants in a good state of health and with stable financial circumstances.
38․The lengthy history of reporting does not indicate any concerns regarding the care that the foster carers have provided to the child. I am satisfied that as proposed adoptive parents, they are both suitable and capable of meeting the child’s needs.
(h) The alternatives to adoption for the child to secure permanent family arrangements
39․Alternatives to adoption have been considered. Notwithstanding the birth father’s repeated desire to have the child returned to his care, he has acknowledged over the years that he does not have the capacity to parent the child. For different reasons set out in the evidence, the birth mother also does not have the capacity to parent the child. There is no prospect that the long-term care and protection orders made by the Children’s Court would be varied. An enduring parental responsibility order has been considered but it is very much an inferior option in this case. Such an order only has effect until the child reaches 18 years. It would not provide the child with a full sense of belonging and it would not be consistent with the reality of this child’s situation, which is that he is viewed as part of the foster carers’ family forever.
40․A further consideration is the fact that through separate court proceedings, the two foster siblings are in the process of being adopted by the same foster carers. To allow the two younger foster siblings to be adopted by the foster carers but prevent the eldest child from that same permanency would not be in the best interests of the child.
(i) The continuity and sense of belonging that comes from the child having stable emotional and physical living conditions
41․This consideration has been addressed as part of addressing the previous criterion.
(j) The need to protect the child from physical or psychological harm associated with exposure to abuse, neglect or family violence.
42․The need to protect the child arose at birth. His protection was achieved by the current long-term care orders in place. This consideration is therefore neutral so far as the adoption of the child is concerned.
Conclusion
43․The normality of being “an ordinary child” is something that is taken for granted by so many that it is unlikely to be perceived as an advantage in life. Yet it is the simple goal for those working in, and interacting with, the care system – ensuring that someone who enters the care system as a baby (in this case) is raised with the same love, care, stability, and sense of belonging as “the ordinary child”. Here, the system has worked, in that the daily living environment for this child is that of any ordinary household.
44․Even so, for nine years the child has also been the subject of detailed reports, assessments and court proceedings and he clearly feels a desire for the legal characterisation of the people he views as his parents to match his reality. Having taken all the above considerations into account, and in particular the strong psychological attachment to his foster family which the child has developed since birth, it is overwhelmingly in the child’s best interests that the law recognises the permanency of the family the foster carers have created, through making the adoption orders sought.
45․For the above reasons, the orders of the Court are as follows:
(1)Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT),the Court dispenses with the requirement for the respondent birth mother’s consent to the adoption of the child who is the subject of the application.
(2)Proceeding AD 4 of 2023 is listed on 1 December 2023 at 1:00pm for the hearing of the application for adoption orders to be made in relation to the child pursuant to Div 3.6 of the Adoption Act 1993.
(3)There is no order as to costs.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam Associate: Date: |
0