In the matter of an adoption of QS
[2019] ACTSC 357
•18 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an adoption of QS |
Citation: | [2019] ACTSC 357 |
Hearing Dates: | 12 March 2019; 14 June 2019 |
DecisionDate: | 18 December 2019 |
Before: | McWilliam AsJ |
Decision: | See [82] |
Catchwords: | ADOPTION –APPLICATION TO DISPENSE WITH CONSENT OF BIRTH PARENTS – Whether requirements of s 35 of the Adoption Act 1993 (ACT) aresatisfied – where child raised by foster carers since birth – where birth mother still involved with child, has a bond with the child and is seeking to be more involved with the care of the child – application dismissed |
Legislation Cited: | Adoption Act 1993 (ACT) ss 4, 5, 7, 26, 35, 39K, 40, 97, 115, div 3.3 Adoption Act 2000 (NSW) Court Procedure Rules 2006 (ACT) r 3170 |
Cases Cited: | Adoptionof Hogarth (No 2) [2019] NSWSC 9 Adoption of IEK [2019] NSWSC 171 Re the Adoption of AJH [2017] NSWSC 1751 |
Parties: | ND and SQ (Applicants) TW (Respondent) Child’s Representative |
Representation: | Counsel M Davis (Applicants) D Lee (Respondent) K Mistry (Child’s Representative) |
| Solicitors Infinity Family Lawyers (Applicants) GML Legal (Respondent) Legal Aid ACT (Child’s Representative) | |
File Number: | AD1 of 2018 |
McWilliam AsJ:
The application before the Court arises in the context of proceedings where the foster carers (the applicants) are seeking to adopt a young girl. The young girl, who is now seven years old, has been in their care since she was a few months of age. In order to proceed with their adoption application, they are first seeking to dispense with the consent of the birth mother, who opposes the adoption. The birth mother has been seeking to increase contact with her child, with a view to allowing the child to reside with her in later years.
The identities of the child, the applicants and the birth parents have not been published, pursuant to s 97 of the Adoption Act 1993 (ACT) (the Act). The child will be referred to as ‘QS’ throughout these reasons.
The proceedings have benefited by the co-operation and diligence of the legal representatives for all parties. Throughout these proceedings, the legal representatives have demonstrated a clear desire to run the case efficiently, to assist the Court, and to achieve the very best outcome for QS.
The application
The application is brought under s 35 of the Act. It was made in the proceedings in which an order for adoption was sought, in accordance with r 3170 of the Court Procedure Rules 2006 (ACT). The applicants seek an order to dispense with the birth mother’s consent to the adoption of QS by the applicants.
Under s 26 of the Act, an adoption order must not be made unless consent has been given by each parent or guardian of the young person. There is then a detailed regime set out in Division 3.3 of the Act for obtaining the consent of the relevant interested persons, which includes each parent. If consent is not forthcoming, Division 3.3 of the Act also provides a mechanism to apply to the Court to seek a dispensation order.
The birth father’s consent for the adoption has been obtained and there was affidavit evidence before the Court demonstrating compliance with the necessary procedural requirements. The sole issue between the parties is whether the Court should dispense with the birth mother’s consent.
The child has previously been the subject of an almost identical application made by the Director-General of the Community Services Directorate (Director-General), which was dismissed on 19 October 2017 (see In the matter of the adoption of PT [2018] ACTSC 14 (“PT”)). The present proceedings were commenced six months after the conclusion of those proceedings by the applicants in this matter. The Director-General is not the moving party on the present application, nor did the Director-General seek to be heard on the application. This is despite the Director-General being the legal guardian of the child, having been properly served, and having an entitlement to be heard as a party under s 115 of the Act. The Director-General did, however, provide a report to the Court prior to the hearing, which I have taken as setting out its complete position towards the application.
Although this particular application is limited to whether to dispense with the birth mother’s consent, it was heard as part of more substantive proceedings brought by the applicants seeking to adopt QS. Procedurally or technically, there is a two-step process. Practically however, the application to dispense with a birth parent’s consent raises for consideration whether the Court should permit the adoption of QS. It would be futile to dispense with a birth parent’s consent if the Court were not minded to grant the adoption of the child by the applicants, and the Act expressly requires the Court to take into account whether adoption is in the best interests of the child (discussed below), including alternatives to adoption, as part of the consideration of any dispensation application.
The Court’s power to dispense with the birth mother’s consent
Section 35(1) of the Act provides:
35Dispensing with consent
(1)On application, the court may, by order, dispense with the requirement for consent of a person to the adoption of a child or young person if the court is satisfied that—
(a)the person cannot, after reasonable inquiry, be identified or located; or
(b)the physical or mental condition of the person is such that he or she is not capable of considering properly the question whether consent should be given; or
(c)the person has abandoned or deserted, or has neglected or ill-treated, the child or young person; or
(d)the person has, for a period of not less than 1 year, failed, without reasonable excuse, to discharge the obligations of a parent or guardian, as the case may be, of the child or young person; or
(e)there are any other circumstances that justify the requirement for the consent being dispensed with.
(Emphasis added.)
The present application was put on the basis of sub-paras (d) and (e), emphasised above.
With regard to sub-para (d), the relevant principles and authorities are set out in detail by Refshauge J in the decision of In the matter of an adoption of D [2008] ACTSC 44 (“D”) at [23]-[28]. They include the natural and moral duty of a parent to show affection, care and interest towards her child, as well as a duty to maintain the child in the financial or economic sense.
If there has been a failure, the question turns to whether there was a reasonable excuse for that failure. Again, drawing from the principles in D at [27]-[28], a reasonable excuse may include the existence of court orders preventing the parent from having contact with the child. The test is an objective test, in that it is considered from the perspective of whether a reasonable person would be satisfied that the parent had reasonable cause not to discharge the obligations of a parent on the occasion under consideration. However, such a test also takes account of the subjective circumstances of the parent prevailing at the time.
As to whether sub-para 35(1)(e) applies, this requires consideration of whether there are ‘other circumstances’ that ‘justify’ dispensation. Sub-paragraph (e) has been described as a ground of wide import, which cannot properly be circumscribed, though it has to be considered judicially (D at [30]). The use of the word ‘other’ does not mean that the special circumstances must be exclusive of, or unrelated to, the subject matters of the other grounds, nor is the generality of that ground to be treated as being of lesser value (see D at [31] and the authority there-cited).
The wording of sub-para (e) involves overlapping reasoning processes. The Court must be satisfied not only that there are ‘other circumstances’ so as to enliven the criterion, but that these circumstances ‘justify’ dispensation. That second aspect is also part of the reasoning process that must be undertaken when considering whether to exercise the overall discretion to dispense with the birth mother’s consent.
As such, the Court must take into account s 5 of the Act. It relevantly provides that a person making a decision under this Act in relation to a child must regard the best interests of the child as the paramount consideration. Sub-section 5(2) of the Act then provides:
5Best interests of child or young person 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;
(b)the child's or young person's age, level of understanding, level of maturity, gender, and personal characteristics;
(c)the child's or young person's physical, emotional and educational needs;
(d)the views expressed by the child or young person;
(e)the relationship the child or young person has with the parents, any siblings and any other relatives;
(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 adoptionfor the child or young person to secure permanent family arrangements.
It is not necessary to expressly review each of the factors in this section by way of a checklist in order to give them appropriate consideration (see D v Director-General, Department of Community Services [2005] NSWCA 474 at [44] in relation to the equivalent sections of the Adoption Act 2000 (NSW)).
While the paramount consideration may be the best interests of the child, it is not the determinative consideration nor the only consideration (see D at [37] and the cases there-cited). In balancing the different factors then, how does a judge reach a conclusion that a particular set of circumstances ‘justifies’ dispensation?
The Adoption Act 2000 (NSW) includes a requirement that the Court be satisfied that adoption is ‘clearly preferable’. This has been held to require that adoption be “obviously, plainly or manifestly preferable to any other action that could be taken by law” (Deputy of Community Services v D [2007] NSWSC 762 at [25]). The degree of conviction in favour of adoption must be commensurate with the gravity of the decision (Application of A; Re D [2006] NSWSC 1056 at [53]).
While the equivalent ACT legislation does not use the same language and therefore does not contain such a test, I consider these principles to be a helpful elucidation of the task confronting a Court in this jurisdiction when determining an application to dispense with consent (and an adoption application). The degree of conviction a judge must reach is the same when forming a view that the circumstances ‘justify’ dispensation of consent for the purpose of adoption (referring to the ACT legislation).
In considering the application under sub-para 35(1)(e), I have also had regard to the objects of the Act in s 4, which are relevantly as follows:
4Objects of Act
The main objects of this Act include—
(a)ensuring that the best interests of the child or young person are the paramount consideration in the adoption of a child or young person; and
(b) providing an adoption process that promotes the wellbeing and care of children and young people in a way that recognises the child's or young person's right—
(i)to grow in a safe and stable environment; and
(ii) to be cared for by a suitable family and to establish enduring relationships; and
(ii) to know about family background and culture and have the opportunity to maintain or develop cultural identity; and
…
(d)ensuring that adoption is centred on the needs of the child or young person rather than an adult wanting to care for a child or young person; and
(e)consulting with the child or young person throughout the adoption process and, wherever possible, taking the child’s or young person’s views into account; and
(f)recognising a birth parent’s involvement in making decisions about their child’s future; and
(g)providing for adoption plans to recognise the intentions of parties in an adoption;
…
Should the Court dispense with the birth mother’s consent?
No failure to discharge the obligations of a parent
Considering first whether sub-para 4(d) of the Act applies in the present case, the applicants submitted that the birth mother had failed to show an ‘interest’ towards the child without reasonable excuse. It was submitted that there was a failure to seek information about the child and a failure to communicate with the applicants regarding reasons behind the child’s name.
When the Director-General previously made the submission that sub-para (d) applied to the birth mother in relation to QS, it was rejected. Further time has elapsed since those proceedings concluded, but having now heard the evidence in this case, and the slightly different emphasis on a lack of interest, the submission must be rejected again. I am not satisfied that the birth mother has failed to discharge her parental obligations, or that she has failed to do so “without reasonable excuse”.
It is necessary to set out some of the factual background to this case. QS was removed from her birth parents in September 2012 by Child and Youth Protection Services (CYPS) when she was just two weeks old, under an emergency order. In August 2013, final care and protection orders were made under the Children and Young People Act 2008 (ACT) (CYP Act) placing QS in the long-term care of the Director-General until she is 18 years old. The Director-General retains the discretion as to those with whom QS is placed.
I have considerable reservations as to how this case was managed at that early stage. It is not clear from the evidence why the Director-General, as guardian of the child, did not revisit the ability of the birth mother to care for QS or even the potential to increase contact once the child was a little older and once the birth mother had ceased her relationship with the birth father. This is troublesome in light of the principles set out in s 350 of the CYP Act, which include priority being given to supporting the child’s parents to provide for the care and protection of the child, and the encouragement of contact with the child’s family.
However, whatever the circumstances were which led to a long-term care and protection order being made in respect of the child at such a young age many years ago, the Court cannot rewind the clock. The facts are that QS has been the subject of long-term care orders since her early months. As observed by Robb J in the Adoption of IEK [2019] NSWSC 171 (“IEK”) at [158]:
The Court does not review the decision that have already been made by the Children’s Court about parental responsibility. The Court does not form judgments about the fault of any person who had parental responsibility for the child in the past, and the only concern is the present and future objective and emotional circumstances of the child in the light of what is and will be in the child’s best interests.
Nevertheless, for a number of years now, the birth mother has been attempting to bring about increased contact with her child, with a view to ultimately making it possible for the child to live with her, should she choose to do so later in life. In June 2016, when QS was 4 years old, the birth mother made an application to the Children’s Court to increase contact with her child. She was regrettably prevented from pursuing that application while the previous adoption proceedings in this Court were on foot.
On 19 June 2018, the birth mother withdrew her application to increase contact. The evidence establishes that she took this course because she had succeeded in reaching an agreement with the applicants and the Director-General for her contact to increase to three visits per year. This was consistent with her consistently stated intention of a gradual increase in contact, which she thought would be the least disruptive course and therefore in the best interests of her child.
Again, however, the birth mother’s efforts to see her child more have been thwarted. Due to no fault of either the birth mother or the applicants, the increase in contact is yet to occur. There appears to have been subsequent miscommunication, or possible mismanagement as between the Director-General as legal guardian of QS, and her delegate, ACT Together (Barnados). For reasons not identified, Bernados has refused to honour the agreement made by the Director-General, and as at the date of hearing, was continuing to restrict the birth mother’s contact with QS to two visits a year. How the Director-General has permitted this most unsatisfactory state of affairs to continue at such a vital stage of the child’s development is unclear on the evidence.
These are part of the circumstances by which a reasonable person assesses the conduct of the birth mother vis-à-vis her interest in her child over the period of more than a year.
Relations between the birth mother and the applicants have been understandably strained for a number of years while they have been opposing parties in litigation concerning QS. The applicants have at times felt insulted by some of the conduct of the birth mother, although it appears that the parties may have been able to move on from past friction. Nevertheless, the strained relationship has led to the birth mother not communicating with the applicants as they would like, and they have perceived this as showing a lack of interest in QS. On the evidence, it has also led to the applicants not being inclined to facilitate informal contact at the level the birth father currently enjoys, which is monthly, albeit not face-to-face.
Having observed the birth mother under cross-examination and having received her affidavit evidence, the majority of which I accept, I reject the contention that she has shown a lack of interest in (or care or affection for) her child for more than a year. The birth mother has a low IQ, combined with a shy or perhaps gentle personality. She is easily overwhelmed and I accept her evidence that she finds it difficult to communicate with the applicants, whether in writing or orally (whether by telephone or face-to-face during contact visits). Listening to and observing the birth mother in the witness box has led me to conclude that her communication difficulties may be exacerbated under stress.
I have read the evidence of the applicants and observed one of them under lengthy cross-examination. They are educated, articulate, well-intentioned and willing to speak up when they perceive a situation to be unsatisfactory to them. In contrast to the birth mother, at least one of the applicants in the process of being cross-examined, displayed a much stronger personality. That is not a criticism. Rather, it gives context to the dynamics between the birth mother and the applicants. In particular, it assists in understanding why the birth mother may have presented to the applicants as lacking an interest in QS.
In light of such previous tension, and because of the different personalities, it is not hard to appreciate that the birth mother may not have felt able to communicate freely with the applicants in order to seek more information about her child, notwithstanding her fervent desire to receive it. Now that the parties have been able to hear each other’s perspective during the hearing in court, it is to be hoped that a foundation has been laid for significant improvement in communications and flow of information.
The birth mother’s desire for more information about her child was evident during her cross-examination. She was handed a document prepared by the applicants, with a view to clarifying the type of information she would like to receive in the future. The document commenced with “Hi mum”, in the apparent handwriting of QS and contained photos of her. The mother broke down in tears in the witness box upon receipt of this communication from, and about, her daughter. At the very least, that moment demonstrated to the Court, and importantly, to the applicants, the birth mother’s genuine love for her daughter and her interest in her care, welfare and development. It may give the applicants a greater insight as to how to involve the birth mother in QS’s life in the future.
I have given consideration to reports prepared by Barnados about the interactions between the birth mother and the applicants during contact. There was an occasion where one of the applicants asked the mother if there was anything she wished to know about QS and she said, “not really”. It is important to recognise the stress and high emotion that must be have been running through the birth mother’s mind at the time, given that she only sees her child twice a year. Added to this, at those visits, it had been impressed upon all parties (by the professional supervisor) that they were not to show any of their true emotions for fear of any adverse effect on the child. The mother may barely have been able to keep her emotions in control. She may have been feeling such significant distress that all she could do was to be present in the same room as her daughter. In my view, a reasonable person would not assume from the fact that the birth mother did not wish to engage with the applicants during contact visits that there was any lack of interest in QS.
The applicants’ legal representative also sought to rely upon a failure by the mother to explain to the applicants the reasons for giving her daughter the name she has as an indicator of the birth mother’s lack of interest. That submission is misconceived. It is not relevant to the issue of whether the birth mother has demonstrated interest in her child. There is simply no obligation on a parent to justify the name given to their child to foster carers or anyone else, particularly in the context of contested legal proceedings.
For these reasons, I am not satisfied that the birth mother has failed to discharge her parental obligations for more than a year without reasonable excuse.
‘Other circumstances’ do not justify dispensation
Turning then to consider whether sub-para 35(1)(e) of the Act applies, much of the foregoing is also applicable to assessing whether there are ‘other circumstances’ justifying dispensation.
It is important to emphasise the “heavy onus” upon the applicants in seeking to persuade the Court to dispense with the birth mother’s consent (see Re B & the Adoption of Children Act 1965 [1979] 2 NSWLR 915 per Moffitt P at 918).
In Mace v Murray (1955) 92 CLR 370 at 380, the High Court referred to "the grave responsibility” placed on a judge hearing an adoption application. The High Court went on to state that "the natural ties between mother and child ought not to be lightly broken", and that it is necessary for:
…powerful reasons...[to] be shown before a court can properly deem it just and reasonable, notwithstanding a mother's objection, to sever the relationship between her child and herself and make the child for most purposes of the law...the child of other persons.
The High Court went on to state at 385:
It must be conceded at once that in the ordinary case the mother's moral right to insist that her child shall remain her child is too deeply grounded in human feeling to be set aside by reason only of an opinion formed by other people that a change of relationship is likely to turn out for the greater benefit of the child. It is apparent, too, that a court which is invited to make an order of adoption must appreciate that the child is another's, and that only the most weighty and convincing reasons can justify the involuntary breaking of a tie at once so delicate and so strong as the tie between parent and child.
More recently, in IEK at [56], Robb J stated:
The very idea that the Court should make an adoption order in respect of a child over the objection of birth parents, at least where it is not reasonably self-evident that those parents are not capable of properly caring for the child, is a challenging issue for all reasonable-minded people.
These principles have been set out to explain to the applicants why, notwithstanding that QS has been in their care for a number of years, they face a considerable challenge in seeking to adopt QS in circumstances where both the birth mother and birth father are presently involved in QS’s life, and further, where there is no good reason to prevent the birth mother’s greater involvement.
In IEK, Robb J went on to refer to, and adopt a decision of, Hallen J in Re the Adoption of AJH [2017] NSWSC 1751, where his Honour referred to the need to take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems. Hallen J then stated at [295]:
Thus, it is not enough to show that a child could be placed in a more beneficial environment for her, or his, upbringing. There is often required an acute, and difficult, decision to be made and, often, all practicable answers, to some extent, may be unsatisfactory. Sometimes, the alternatives are finely balanced and will call for critical and often anxious scrutiny.
Those words resonate loudly in this case.
The applicants relied upon ‘other circumstances’, all directed to notions of achieving stability and security for QS. First, it was not in dispute that QS has certain developmental needs. The applicants submitted that if they cannot adopt QS, this represents a threat to the child’s stability in a way that risks damaging her development. They relied on expert medical evidence to suggest that there would be a particularly detrimental impact on QS because of her developmental needs. If QS cannot refer to the applicants as her parents, this might, over time, make her feel different to her peers, and that is of concern to QS’s feelings of stability and security in the future.
Second, the applicants submitted that they do not presently feel the stability that would be provided by an adoption order being made. They are concerned that if an adoption order is not made, there may be repeated applications in the Children’s Court and repeated assessments of QS’s circumstances. The applicants may not be able to completely hide the stress of ongoing litigation and that could have an impact on QS. A further basis for the applicants’ feeling of instability is the fact that the placement of QS in their care is always subject to the Director-General’s discretion. The applicants do not feel comfortable providing frank feedback, or raising concerns with representatives or delegates of the Director-General without putting QS’s placement with them at risk.
Third, the applicants are currently in the unhappy situation of parenting by committee. That is, they have to go through significant bureaucracy before being able to make basic decisions, such as whether QS can go on a school excursion, or to a sleep over if the host lives over the border in Queanbeyan. The applicants have also had difficulties when it comes to things like taking QS on overseas holidays and obtaining a passport for her. As QS develops, she will get the message that her foster carers are not in control, and lack the usual authority of a parent, which can impact on a child’s sense of security.
Fourth, an alternative to adoption, such as an enduring parental responsibility order, is still an order that may be changed annually and therefore will not achieve the stability for QS that the applicants desire, and the Director-General would retain control over who has contact with QS and when. The applicants very much want to be able to say, if QS ever asks, that no one can take her away from them. It is claimed that such an alternative suffers from the same pitfalls identified above.
Fifth, and perhaps allied to the fourth submission, the foster arrangement fails to provide any certainty as to the nature of the relationship between the applicants and QS. At the age of 18, the orders of the Children’s Court end and all that the child and her foster carers will have is what was described by the applicants’ legal representative as a ‘meaningful friendship’. Of course, at that point, the child would be in a position to apply for adoption if she so desired, and she does not need the consent of any birth parent to do so. However, the further inference from the applicants’ submission is that a child who comes to know that the role of her foster carers legally ceases at age 18 may not feel as secure in her foster family as she is growing up.
Apart from the reference to the developmental needs of QS, at the heart of the above submissions is really the key circumstance that the child has now been placed with the applicants for a significant period of time, and that, from their perspective, she will remain with them until she is 18 years of age. As such, she and they should have the benefit of feeling that they are a family, and the stability and security that brings.
The submissions about ‘other circumstances’ are really arguments in favour of the general benefits of adoption Brereton J has referred to a number of benefits in Adoption of Hogarth (No 2) [2019] NSWSC 9 at [51]:
(1) First, adoption contributes to providing, for children who cannot be raised by their birth family, the stability, security and certainty that they need. It provides certainty and permanence for children, both directly, and indirectly through the additional certainty it affords their adoptive parents. The possibility of further changes, disruptions and separations are minimised. Aspirations to restoration expressed by birth parents are practically foreclosed. In this way, the security afforded by an adoption order is in the interests of the child as much as the adoptive parents.
(2) Secondly, adoption serves the identity needs of such children – in circumstances where they are emotionally, psychologically and residentially already members of the proposed adoptive family – by bringing their legal status into conformity with reality, and by perfecting their sense of permanent belonging in the family with which they identify as their own (and – because it is not limited to age 18 – not only during childhood, but for life). Adoption also places the children on an equivalent basis, with equivalent rights, as any biological children of the adoptive parents. While adoption legally severs the parental relationship between the children, the birth parents, and any biological siblings, that is typically in circumstances where the legal parental relationship has, in reality, been devoid of practical parental responsibility, and the opportunity for the children to know and have some relationship with their birth family is preserved, in the context of an open adoption, through contact. The security and certainty provided by an adoption order may provide a firmer basis for the adoptive parents to be supportive of contact between the child and the birth parents.
(3) Thirdly, adopted children are raised in a legally recognised family, rather than remaining “State wards” for the duration of their childhood; “out-of-home” care is thus replaced by in “in-home” care. The need for departmental intervention, and departmental approval for significant decisions of the carers, is removed, along with the stigma potentially associated with being a “State ward”. One aspect of this is that, where their legal name corresponds with that of the family with which they live and identify, they are enabled to choose for themselves whom they tell of their status, without it being self-evident from their different surnames. Children who do not live with their birth families tend to control knowledge of that circumstance closely, and the assumption of the adopters’ surname which is an ordinary concomitant of adoption facilitates this.
Brereton J went on to state at [52]:
[A]doption carries a risk that the child may feel unwanted or abandoned, and may encounter “identity issues” in later life – in particular in adolescence – it has been observed that such that risk is incidental more to the circumstance that the child does not reside with his or her birth parents, than to adoption per se, and that may arise whether the child is in foster care, or under a parental responsibility order, or adopted, as there is the same potential for the question, “why do I not live with my birth parents?”, and the risk of a sense of loss or abandonment. And However, it has been observed that that risk can be mitigated if the child knows the birth parents and can continue to have a relationship with them, and that while the legal parental relationship with the birth parents is severed, they do not cease to be the birth parents and the relationship with them can be maintained through contact, while legal parenthood appropriately resides with those who are discharging the responsibilities of parenthood.
These benefits have been repeatedly adopted elsewhere (see for example: IEK at [227]; and, Adoption of NG (No 2) [2014] NSWSC 680 at [75]-[78]).
I accept that there are ‘other circumstances’ arising, given that the foster carers are parenting QS as if she is their own, and have done so for six years. Further, the constant and often frustrating interactions with representatives or delegates of the Director-General make their daily care of the child more difficult than it otherwise might be. I accept also the general benefits of adoption for children in long-term foster care and that those benefits of themselves may create ‘other circumstances’.
However, after consideration of the parties’ evidence, in particular, the expert evidence before the Court, and anxious scrutiny of the alternatives to adoption at QS’s current age, I am not satisfied that the circumstances justify dispensation, having regard to the degree of conviction that must be reached before granting such an order. There are other avenues available to the applicants which may equally be in the best interests of QS (discussed below). Their existence detracts from an adoption order.
There is clearly a loving bond between the applicants and the child. There is no issue as to their suitability or capacity to meet QS’s needs (see sub-paras 5(2)(f) and (g) of the Act). QS has been fortunate to have a very stable upbringing in terms of the foster care provided.
In terms of likely effect of the decision on QS’s life course (sub-para 5(2)(a) of the Act), that stability will continue, in that the refusal to grant an adoption order does not change the current position of the foster carers in any way. (The converse position, being the likely effect of a decision to grant adoption, is discussed below). The expert evidence as to general benefits of adoption for children in foster care does not persuade me that this particular child might be adversely affected if an adoption order were not made at this stage of her life. To the extent that the experts did purport to offer an opinion as to how QS may be impacted if an adoption order were not made, the evidence was somewhat speculative. It was qualified under cross-examination once the research relied upon transpired not to be directly on point with regard to QS’s developmental issues. I was not satisfied by the evidence that QS would respond or develop any differently to other children in foster care in terms of feelings of stability or security. It may be assumed that every young child wants to feel that they belong and that they are ‘normal’.
Having heard the evidence, and in particular the evidence of the applicants as to their interactions with those handling QS’s case on behalf of the Director-General, I appreciate they have concerns about continuing to be exposed to the possibility of having QS removed from their care if an adoption order is not made. However, it would clearly not be in QS’s best interests to take her away from the people who have cared for her for as long as she can remember. There was no serious suggestion that the placement of QS with her current carers was genuinely at risk; or at least, no evidentiary foundation for any such suggestion.
The child is still young, certainly in terms of her level of understanding (sub-para 5(2)(b) of the Act). An adoption order while the child is still young, and before she has the maturity and understanding of what it means to be in foster care, might prevent QS feeling any insecurity in that regard. Realistically though, QS already knows who her birth mother and father are, and she knows she is not living with them. She is fortunate to have been in foster care with the same people and to have built an attachment to them for as long as she can remember. Given those circumstances, it is difficult to predict whether the lack of an adoption order would have any psychological consequence for QS.
Conversely, the child is still young enough to benefit from an improved relationship with her mother. The presence of a loving relationship between the mother and the child is obvious (sub-para 5(2)(e) of the Act). QS clearly identifies the birth mother as her mother and wants to spend time with her, and the birth mother feels the same way. That mother/daughter relationship is likely to continue, and ideally will grow further. The birth mother has a genuine desire, willingness and apparent capacity to be involved in QS’s life and to take on a greater role than has been previously permitted.
In the medium and longer term future, it is a realistic possibility that QS will also be in more regular contact with her birth mother. The birth mother is in stable employment and stable accommodation. She is unaffected by drugs, domestic violence or other vices that might make more regular contact ill-advised or untenable. There was also nothing put before the Court to demonstrate that more regular contact with the birth mother would have any adverse effect on QS. Indeed, QS has been in regular contact with her birth father without any apparent detriment.
The applicants have indicated to the Court a willingness to promote more regular informal contact, ‘as long as it remained in QS’s best interests’. This was a position which has obviously changed since they presented an adoption plan to the Director-General, indicating they wished to reduce contact with the birth mother to twice a year.
The difficulty is that if an adoption order were made (sub-para 5(2)(a) of the Act), the likely outcome, in terms of QS’s contact with her birth mother, would be uncertain. Neither the Court nor the Director-General would have any role in ensuring that the birth mother’s access to her child was facilitated regularly. It is something that, apart from two court ordered visits per year, has been and would be at the whim of the applicants.
I am not satisfied that the opportunity for QS to establish a loving relationship with the birth mother while in the care of the applicants has been exhausted, particularly when it is clear that this has been successfully achieved with the birth father and was in the process of being achieved with the birth mother. The present guardian of QS, the Director-General, has been unable (for whatever reason) to ensure that this avenue has been pursued, in even a small way, in accordance with her agreement in 2018 with the parties. No doubt the birth mother will take whatever further steps she needs to in order to ensure that the agreement is implemented. In that sense, this further application remains premature. I consider that in this case, the child and the birth mother should be afforded every opportunity to improve their relationship through more frequent contact before any adoption order is made. Two or three times a year is insufficient and not in the best interests of QS.
Disappointingly, the evidence that was before the Court – agreed by both parties – was that rather than the Director-General’s agents or delegates (in the case of ACT Together acting through Barnados) making the situation easier for the birth mother and the applicants, they had in fact made it harder for each of them in different ways. It is unnecessary to go into further detail here, but it is a matter relevant to the alternatives to adoption (sub-para 5(2)(h) of the Act) to which I will return.
Currently, QS has enjoyed spending time with her birth mother, and she has at times expressed a desire to live with her (sub-para 5(2)(d) of the Act). That is not a factor to which I attach any significant weight given the child’s age and developmental needs (sub-paras 5(2)(b) and (c) of the Act), but I have taken the evidence into account merely as an indication that the mother’s involvement in the child’s life is something the child presently enjoys.
It will be apparent from what has been said that I have a concern about the likely effect of a decision to permit the adoption on QS’s life course. The general benefits of adoption have been discussed above and they weigh significantly in favour of adoption. However, this child’s family presently includes both the applicants and her birth parents. If an adoption order were made, I am not convinced that QS’s relationships with her birth parents would be unaffected, and in my view, that would be detrimental for QS.
The legal representative urged upon the Court that the applicants would act in QS’s best interests and that this should be sufficient assurance. However, things have been frosty between the applicants and the birth mother, and there has been no informal contact, as compared with ongoing informal contact that has been facilitated with the birth father. The applicants have also previously expressed a desire that contact with the birth mother only occur twice a year. Presumably that level of contact is what they considered to be in QS’s best interests, and that is a concern. Having said that, the applicants have at all times complied with court orders and may have thought it appropriate to continue what had previously been ordered. There is also evidence that the applicants sought to initiate informal contact, but the birth mother preferred to have an independent person facilitating contact.
A further issue if an adoption order were made, is the possibility that the child will later feel abandoned by her birth mother, when it is clear that this is not the case. The child may also come to resent the applicants for seeking adoption without the birth mother’s consent, particularly when the contact arrangements were unsettled at the time of this application.
It is extremely difficult to predict what may happen either way, but these concerns mean that I am simply not satisfied that QS would plainly be better off in the medium to long term with an adoption order in favour of the applicants. As such, the “heavy onus” has not been discharged.
Finally, as to alternatives, many of the applicants’ present day-to-day challenges (propounded as reasons why an adoption order should be made) were in fact difficulties arising from the involvement of the Director-General or her delegate, and could be ameliorated by the applicants becoming the guardians of QS.
I did consider whether the Court has the power to impose a condition that the birth parents have certain rights of access to QS, however s 40 of the Act (which is the only section dealing with that issue) is only applicable if both the birth parents and adoptive parents have agreed that the adoption order should be subject to conditions. Further, s 40 does not allow for the Court to grant a dispensation subject to conditions in circumstances where the birth mother opposes the adoption application, or even to grant an adoption subject to compliance with a specified adoption plan.
It might be that restoration is not a realistic medium-term alternative due to the time that the child has spent with the applicants, but that does not necessarily mean that adoption is the preferable course. The modern family comes in all shapes and sizes, and children in the same family may have different surnames from their parents. In the case of QS, her family presently includes her birth parents and the applicants, and that is a stable and loving arrangement. The present circumstances may not have the level of permanence that an adoption order would achieve, but it nevertheless is a very well settled arrangement that is likely to be ongoing for QS if an adoption order is not made.
In what has been a difficult decision given the uncertainties discussed above in respect of each consideration, the result is that I have been persuaded not to take the exceptional step of dispensing with the mother’s consent to adoption. At this stage of their relationship, it is not in the best interests of QS to deprive her of the birth mother’s parental ties or for that bond to be severed by a court order that would ultimately permit adoption. I am equally not satisfied that the birth mother should lose her entitlement to call her child her own at law simply because she is poor, has intellectual difficulties, and did not initially cope with the upheaval of giving birth to a child at the age of 19. It is clear that those difficulties have had devastating consequences for the birth mother in terms of how she deals with child and youth protection workers, the applicants and even, it appears, from how she has engaged with the justice system in bringing about change in a timely manner. This is not to put the birth mother’s interests above those of her child; rather, it is to recognise each side of the relationship at stake.
The general psychological benefits of adoption are not as clear in this case. As it is not plainly in QS’s interests to make an adoption order, the more cautious approach is for the applicants to pursue other avenues which would give a greater degree of certainty for them than they currently have.
That I have come to such a conclusion ought not be taken as any criticism or concern regarding the applicants, whom I am satisfied have been, and will continue to be, superb carers for this child. The burden they have taken on as foster carers is in many ways a thankless one, even though QS undoubtedly gives them much joy. They did not seek adoption as a reward for their efforts; they sought it because they love the child and they want what is best for her. The refusal to make an adoption order does not preclude later applications if circumstances change.
The potential for an order under section 39K of the Act
In the meantime, there is an available alternative that may greatly improve a number of the issues currently faced by the applicants. Under s 39K of the Act, if the Court refuses to make an adoption order, the Court may, if it considers that QS’s best interests would be promoted by doing so, make an order relating to guardianship of the child and may make any other order it thinks fit (such as conditions of guardianship).
In light of my conclusion on this application, and having heard the evidence about the difficulties for the applicants by the present foster care arrangement, and their concerns about further litigation in the Children’s Court, there may be real merit in making a guardianship order, with or without conditions.
The parties should be given an opportunity to be heard (possibly by the filing of a short submission) as to whether such an order should be made and if so, on what terms. Further, the Director-General is the current guardian and would plainly be an interested party. If the parties wish to proceed down this avenue, it would therefore be necessary for the Director-General be joined to the proceedings even if she chooses not to take any active role. This is to ensure, at the very least, that any order as to guardianship binds the present guardian. If that comes to pass, I will allow the parties some time to consider their options in that regard. It will therefore be necessary for further directions to be made. The parties should give consideration to a timetable for the filing of submissions on the issue of whether a guardianship order ought be made prior to the matter returning to Court.
I will make an order as to costs on the basis that costs follow the event. If either party wishes to seek a variation to that order, they are to notify the Court and their opponents within 14 days, given the time of year.
Orders
The orders of the Court are as follows:
(1) The application is dismissed.
(2) The applicants are to pay the costs of the proceedings in respect of the respondent mother and the child’s representative.
(3) The operation of Order 2 is stayed for 14 days from the date of these orders.
(4) The applicants are to serve a copy of this judgment on the Director-General, Community Services Directorate.
(5) The proceedings are stood over to 10 February 2020 for further directions.
| I certify that the preceding eighty-two [82] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 18 December 2019 |
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