In the matter of S

[2018] NSWSC 367

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of S [2018] NSWSC 367
Hearing dates:	2 February 2018 (preliminary hearing) 8 March 2018 (substantive hearing)
Decision date:	23 March 2018
Jurisdiction:	Equity - Adoptions List
Before:	Black J
Decision:	Birth mother’s and birth father’s consent to the adoption dispensed with pursuant to s 67 of the Adoption Act 2000 (NSW). Order for the adoption of S in favour of K and G granted. The proposed name for S approved.
Catchwords:	FAMILY LAW AND CHILD WELFARE – adoption – where child has established a stable relationship with proposed adoptive parents – whether consent of birth parents should be dispensed with pursuant to s 67 of the Adoption Act 2000 (NSW).   FAMILY LAW AND CHILD WELFARE – adoption – where there is no realistic possibility of restoration of the child to birth parents’ care – whether adoption order is in the child’s best interests – whether adoption is preferable to other courses – whether an adoption order should be made.
Legislation Cited:	- Adoption Act 2000 (NSW) ss 7, 8, 43, 52, 54, 67, 90, 91, 101 - Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases Cited:	- Adoption of KH [2015] NSWSC 274 - Adoption of NG (No 2) [2014] NSWSC 680 - Director General Dept of Human Services; Re M [2011] NSWSC 369 - Re Adoption of RCC and RZA [2015] NSWSC 813 - Re ASK and the Adoption Act 2000 [2017] NSWSC 521 - Re Infant, K and the Adoption of Children Act [1973] 1 NSWLR 311 - Re K and the Adoption Act 2000 [2005] NSWSC 858; Re DYK and the Adoption Act 2000 [2005] NSWSC 1045 - Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 - Secretary, New South Wales Dept of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926
Category:	Principal judgment
Parties:	Secretary, New South Wales Department of Family and Community Services (Plaintiff) M & T (Defendants) (appearing at preliminary hearing only)
Representation:	Counsel: M Neville (Plaintiff) H Ginges (Defendants) (prior to 8 March 2018)   Solicitors: NSW Crown Solicitor (Plaintiff) Hal Ginges & Company (Defendants) (prior to 8 March 2018)
File Number(s):	A95 of 2017

Judgment

1. By Summons for Adoption filed on 20 June 2017, the Plaintiff, The Secretary, New South Wales Department of Family and Community Services (“Secretary”), applies for an order for the adoption of a child, to whom I will refer as “S”, in favour of the proposed adopting parents, to whom I will refer as “K” and “G”. The Secretary also applies for orders under s 67(1)(d) of the Adoption Act 2000 (NSW) dispensing with the consent of the child’s birth mother, to whom I will refer as “T”, and the child’s birth father, to whom I will refer as “M”, to the adoption and for an order approving the adopting parents’ surname and specified given names as her name.

Background

2. The application is supported by an affidavit of a Delegate of the Secretary, Ms Humphreys, dated 13 June 2017. I have also had regard to the report under s 91 of the Adoption Act to which I refer below. The Secretary also relied on the updating affidavit of Ms Simes dated 15 February 2018. That affidavit dealt with case work visits to G, K and S since June 2017, including visits in August and November 2017 and January 2018; a review of S by a paediatric speech pathologist in August 2017 and her dental check-up in August 2017; an assessment of S by a paediatric occupational therapist in November 2017; a review of S by a behavioural optometrist in December 2017, and S’s further dental check-up in February 2018. That affidavit also annexed S’s school report for October 2017 and a report prepared by S’s former occupational therapist dated October 2017. The affidavit also provided information as to continuing contact between S and her birth parents, M and T, and her siblings and other family members.

3. By way of background, S was born in 2008 and has lived with the proposed adopting parents, K and G, continuously since December 2008, having been placed with them when she was 7 months old. They are authorised carers who have had her care and responsibility under out-of-home care arrangements under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”). Final orders were made for S to be placed under the parental responsibility of the Minister in November 2009, with the consent of T and M, who were then legally represented.

4. There were, at least previously, issues as to the parenting capacity of S’s birth parents, which it is not necessary to identify in this judgment. S has three paternal half-siblings and four maternal half-siblings. S’s three paternal half-siblings had been placed into care in Victoria and Queensland. Each of S’s maternal half-siblings were removed from T’s care, although final orders were made at the Children’s Court at Campbelltown providing for restoration of one of those children to T’s care, subject to a supervision order, in October 2016. There has been contact between S and M and T and her maternal half-siblings, pursuant to the orders made by the Children’s Court, and that contact appears generally to be positive.

5. S has faced substantial developmental challenges, likely as a result of her premature birth. She has mild intellectual impairment and severe dyspraxia, which affects her motor skills. The nature of S’s disability was summarised in an occupational therapy assessment report prepared in November 2017, namely that S has sensory processing sensitivities in the areas of auditory, visual, tactile, oral and other inputs, which compromise her ability to participate, engage and attend, especially within more complex sensory environments such as school and the community. That report notes that neither punishment nor behavioural rewards are likely to change S’s behavioural difficulties, where they reflect the way her central nervous system processes information, and her behaviours are outcomes of sensory processing.

6. S is currently attending a Montessori school at primary level and an individual learning plan has been implemented to assist with her development. It appears that S enjoys going to school and her socialisation, speech and play skills are improving in a school environment. S also attends extra-curricular activities including gymnastics, martial arts, dancing and swimming lessons. There are some indications of improvement in her motor skills and she has moderate language delay, for which she has been receiving assistance.

7. There is evidence that S regards G and K as her “mummy” and “daddy”; recognises M and T as her “tummy daddy” and “tummy mummy”; and has limited understanding of the reasons that M and T have been unable to care for her, reflecting the limits of her cognitive development. There is also evidence that G and K have an appropriate understanding of the need for S to understand how she is connected to her various family members and that they are committed to ensuring continued contact between S and her birth family.

8. I also have regard to the affidavits of G and K in support of the application, which confirm the extent of their commitment to S and their recognition of her particular educational and developmental needs. G’s evidence is, inter alia, that S has lived with him and K for many years; he expresses their love for S; and he expresses his view that adoption is in S’s best interests since she has lived with them for 8 years and views them as “mum and dad”, and also appropriately recognises M’s and T’s role as S’ birth parents. G also emphasises his and K’s commitment to S’s long term care, which include that K has stopped working to provide better care and support to S in her school and after school activities. K’s affidavit demonstrates the extensive efforts she and G have taken to promote S’s development. K also addresses S’s understanding of adoption and K’s support for S’s contact with her birth family and the steps which she and G have taken to promote S’s connection with her Dutch heritage and her and G’s plans for S’s education, which recognise her development delay. K also indicates her belief that adoption is in S’s interests so that S can truly feel part of G’s and K’s family forever, and because G and K have the capacity to assist S’s development and help her to grow to be as happy, productive and fulfilled as she can be. She also recognises the security which she believes an order for adoption will provide to S.

9. I have also had regard to three affidavits of referees which provide strong support for the adoption application.

10. M and T attended a preliminary hearing but did not attend at the substantive hearing, in circumstances that I addressed in an earlier judgment. I considered that S’s interests required that the hearing proceed, where continuing delay in determining the application was likely to be detrimental to S. The Secretary, properly, tendered the affidavits of M and T in the Secretary’s case, so the Court has access both to their evidence at the preliminary hearing and their affidavit evidence. In her evidence at the preliminary hearing, T recognised the impact of a separation from G and K upon S, if she were removed from their care and placed with M and T, but responded that:

“Children are very resilient, and they are very adaptive, and I believe that over time she would settle into a routine and into our home.”

T acknowledged that she had not taken any professional advice as to the effect of such a change upon S and that it would be appropriate for her to do so, although there is no evidence that she had done so by the date of the final hearing. In his evidence at the preliminary hearing, M adopted T’s evidence and expressed the view that S was a “very resilient and smart child despite her problems” and would adapt quickly within reason if she was removed from G’s and K’s care and placed with M and T. While I accept that M and T genuinely hold the views which they expressed, it seems to me that they do not sufficiently recognise the difficulties which would be involved in placing S in their care, after so long an attachment with G and K. I will address that issue further below.

11. I have also had regard to M’s and T’s affidavit evidence, which was prepared with a solicitor’s assistance. M and T each recognised the significant medical difficulties that affected S at the time of her birth, pointed to their attendance with her while she was in hospital, and their expectation that she would “come home with us” on her discharge from hospital, and referred to the circumstances in which an order was made for S to be placed in the Minister’s care and the fact that they were “devastated” by that order. M led evidence that, at the time T and M became a couple, he already had 3 children and T had 4 children, and that T’s son has now returned to live with M and T. M also referred to certain allegations that had been made against him at the time that S was removed from M and T’s care and to changes which have been made in M and T’s lives since that time. M and T’s evidence is that, if S was “restored” to them, she would be very much part of their larger family and that they are hoping that this can happen in the future and they therefore oppose S being adopted to G and K. (I interpolate that the term “restore” may not be appropriate in this context, since S has never lived with M and T.) M and T also address their financial resources, M’s receipt of a disability pension, T’s receipt of a carer’s allowance and T’s work on a permanent part-time basis. M and T fairly recognise K and G’s care for S and indicate that they would not want S to be placed with anybody else unless she is “restored” to them, and express the view that it is in S’s best interests that she be “restored” to them, and she should remain in the foster care of K and G until then, but not be adopted by K and G.

12. On 5 March 2018, about a month after the preliminary hearing before me and two days before the final hearing before me, M and T filed an application for leave to apply for a rescission and variation of the care order made by the Children’s Court at Parramatta and an application for rescission and variation of that care order in the Children’s Court at Parramatta (Ex A5). That application addressed several changes in M’s and T’s circumstances since the orders placing S in the Minister’s care were made, over nine years ago, to which I have had regard. The application was supported by affidavit evidence of T in substantially the same form as the evidence led in this application. I recognise and have regard to the fact that the making of an adoption order will likely render moot M’s and T’s application to the Children’s Court. I am satisfied that I can properly exercise this Court’s jurisdiction under the Adoption Act, even where my doing so will have that effect. I do so on the basis of the evidence before me, including M and T’s evidence at the preliminary hearing and the affidavit evidence they have served and the Secretary has tendered in these proceedings.

Whether an adoption order should be made

13. The Court has jurisdiction to make the adoption orders sought in respect of S, who is less than 18 years of age. I am satisfied that the formal requirements under the Adoption Act are satisfied. S was present in the State of New South Wales when the application for the adoption order was filed. G and K have lived together for a continuous period substantially exceeding two years and have been assessed as suitable to adopt S under the Adoption Act and have signed an application to do so under s 43 of the Adoption Act.

14. Ms Neville, who appears for the Secretary, draws attention to the objects of the Adoption Act found at s 7 of the Act and to the applicable principles specified in s 8 of the Act, including the matters to which the Court must have regard when determining a child’s best interests. Under s 8 of the Adoption Act, the paramount consideration in making a decision about an adoption is the best interests of the child, both in childhood and in later life. The first requirement under s 90 of the Adoption Act is also that the child’s best interests will be promoted by the adoption. In Director General Dept of Human Services; Re M [2011] NSWSC 369 at [89]–[90], cited with approval by Bergin CJ in Eq in Secretary, New South Wales Dept of Family and Community Services (by his delegate Principal Officer, Adoptions, Barnardos Australia); Re JLR [2015] NSWSC 926 at [93], Hallen AsJ, as his Honour was then, observed (omitting citations) that:

“Of course, and unsurprisingly, there is no definition of either of the terms “the best interests” or “the paramount consideration” in the Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that “paramount” means “overriding” … The word does not indicate exclusivity.

The test to determine the best interests of the child cannot be implemented by the devising of a code of rules, substantive, procedural or evidentiary, embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept that is inherently imprecise… The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have.”

15. I must have regard, under s 8(2)(b) of the Adoption Act, to S’s wishes and inter alia to her age, maturity and understanding and background and family relationships and any other characteristics of S that I think are relevant. S’s wishes concerning the proposed adoption are also a relevant matter under s 90(1)(b) of the Adoption Act. The issues with S’s development are such that she has not been able to express any wishes that should be given substantial weight in this matter. Ms Humphreys’ evidence, which I accept is that S has not shown a clear understanding of the adoption and that that is not unusual for a child of her age with developmental difficulties, but that adoption would be consistent with her relationship with G and K with whom she has lived for most of her life. Ms Neville points out that, as at early 2017 when the s 91 report was prepared, S had a “gradually developing” understanding of adoption, which was more limited than that which would ordinarily be expected of a child of her age, given her cognitive delays and difficulties with conceptual thinking. The case worker who visited S in August 2017 noted that S at least recognised that adoption meant that her name would be the same as her “mummy and daddy”, that plainly being a reference to K and G in its context, although there is evidence that S is also conscious of T and M as her “tummy mummy” and “tummy daddy”.

16. I must also have regard, under s 8(2)(c)–(d) of the Adoption Act, to S’s physical, emotional and educational needs, including her sense of personal, family and cultural identity and her disability. The s 91 report confirms the challenges which S has faced, both in respect of health and developmental issues, by reason of her substantially premature birth, including dyspraxia, to which I referred above, speech delay and cognitive delay, and notes that that cognitive delay is likely to be permanent, and the differential between S and her peers is increasing with age and that S may not be ready to begin high school by the time she is 12. These matters emphasise the likelihood that S will continue to need special care, which G and K have been providing by arranging occupational therapy, physiotherapy and speech therapy for S, and also taking steps at home to promote S’s development of motor skills, coordination and balance, and encouraging S’s engagement with education games and puzzles. The s 91 report also confirms that S had progress with her developmental and intellectual disabilities, in large part due to consistent effort by G and K, and that she is strongly and securely attached to them and has not known any other home, and that G and K are committed to addressing S’s special needs. The evidence given by M and T at the preliminary hearing, and in their affidavits, did not give sufficient weight to the substantial nature of those difficulties, or indicate any informed strategy for addressing them if S was placed in their care. So far as S’s cultural identity is concerned, S’s birth father, M, is of Anglo/Dutch heritage and her birth mother, T, is of Anglo/Australian heritage. G and K are taking steps to facilitate S’s knowledge of her Dutch heritage, consistent with M’s wishes.

M’s and T’s wishes and S’s relationship with them and her siblings

17. I must also have regard, under s 8(2)(e)–(f) of the Adoption Act, to any wishes expressed by either or both of S’s birth parents and to S’s relationship with them and S’s siblings. As Ms Neville points out, S has never lived with T and M, although she has had regular contact with them in accordance with arrangements made under orders of the Children’s Court. I recognise that both M and T oppose the adoption and hope that S will return to their care.

18. The question of adoption was raised with M and T in October 2011, and they then indicated their opposition to adoption and that they were seeking advice in relation to S’s restoration to their care. A solicitor acting for the birth parents confirmed their opposition to the adoption in January 2015, and they have maintained that position since that time. Notice of the application for adoption orders and to dispense with consent orders and a copy of S’s adoption plan was served on M and T in July 2017. On that occasion, M and T were advised of their ability to lodge an objection with the Court and both reconfirmed that they did not agree with the adoption and would oppose it. There was also discussion with Community Services, on that occasion, of the reasons for their opposition to the adoption. M and T confirmed that they would provide the documents that had been served on them to the solicitor representing them in respect of the matter. M and T appeared, initially by a solicitor and at the preliminary hearing, to oppose the application, although they did not appear at the final hearing as I noted above.

17. That s 91 report also recognises M’s and T’s opposition to the adoption and their concern that S was unfairly removed from their care while in hospital and before they had an opportunity to prove their parenting skills, although they also acknowledged that G and K have cared well for S and that she is settled and happy in their care. That report also recognises the gains made by T in her life in recent years, and the fact that one of her children was returned to her care in October 2016 and has remained in that care.

Other relevant matters

20. I must also have regard, under s 8(2)(g)–(i) of the Adoption Act, to K’s and G’s attitude to S and to the responsibilities of parenthood and their suitability and capacity to provide for S’s needs. It is plain that K and G have shown substantial commitment to S and to addressing her education, extra-curricular activities and medical and developmental needs. I am comfortably satisfied of K’s and G’s suitability and capacity to provide for S’s needs. The s 91 report indicates that S is comfortable in her home environment and relaxed and secured and affectionate with K and G, and that the attachment is secure, reflecting the period in which S has been in K and G’s care. That emphasises the risk attached to a disruption of that arrangement at this stage. As Ms Neville submits, G and K have demonstrated their capacity to care for S, and Ms Neville rightly points to the evidence of the referees as also strongly supportive of their suitability to care for S.

Alternatives to the making of an adoption order

21. I must also have regard, under s 8(2)(k) of the Adoption Act, to the alternatives to the making of an adoption order and its likely effect on S and associated matters. Ms Neville submits, and I accept, that the evidence establishes that G and K have provided a loving home and family for S, are attuned to her needs and are committed to providing her with ongoing love, care and nurturing, and providing the particular support which S requires. This submission is amply supported by the evidence.

22. Ms Humphreys expresses the view, in her evidence, that there are distinct advantages in adoption for S and that she is satisfied that adoption is preferred to any other course of action. Ms Humphreys notes that G and K have a good understanding of the responsibilities of parenthood and that S has formed an attachment to them and a stable relationship with them over the 8 years in which she has lived with them. Ms Humphreys also observes that S is thriving in their care and identifies them as her family and that the birth parents’ history raises concerns about S’s welfare if she was placed in their care. I give limited weight to the birth parents’ history where they seem to have made significant changes to their lives, such that one of T’s children has been successfully restored to their care. However, it seems to me that there would be substantial consequences to any “restoration” of S to M’s and T’s care, where she had never been in their care and has been placed with G and K since early childhood. I will return to that matter below.

23. The s 91 report also expresses the view, which I accept, that an adoption order would secure S’s place within G’s and K’s family and her sense of belonging and entitlement within that family, and is in the best interests of S and clearly preferable to any other order. That report also expresses the view that the maintenance of the status quo would not afford that security and stability to S; that restoration to M and T would not be preferable, where S has lived with G and K since she was 7 months old and is strongly attached to them, and removal from G and K would not be in her best interests; and that the making of a parental responsibility or guardianship order would not afford S the security, stability and certainty that would follow from being adopted by G and K. The s 91 report also indicates a particular difficulty with disrupting the existing relationship between S on the one hand and G and K, by placing S in M’s and T’s care, noting that S struggles with conceptual thinking and it is difficult for her to process the possibility that she could be anywhere other than with G and K. I readily infer that a disruption of the existing arrangements would be more distressing and destabilising for S where she could not understand what was occurring.

24. Although I recognise M and T wish S to live with them, Ms Neville submits that, and I accept that, their evidence as to their current living circumstances does not provide a sufficient basis to form a view that they could adequately care for S, given her substantial developmental needs, or could adequately address the distress that S would experience from leaving G’s and K’s care. Ms Neville also submitted that, to the extent that M and T had contended for the restoration of S to their care, the Court would need to assess their capacity to parent S in her particular circumstances, and relevant factors include the extent of their awareness of her developmental challenges and capacity to deal with those issues. Ms Neville is correct in submitting that M’s and T’s evidence did not indicate any real engagement with the extent of S’s difficulties or any developed understanding of how to address them. I also raised with Ms Neville in submissions, and she addressed, the difficulty arising from M’s and T’s limited recognition of the difficulties which would arise from removing S from the care in which she has been for many years, which would be exacerbated by collateral disruptions including the likelihood that she would also have to be removed (for geographical reasons) from the school that she has attended and other persons with whom she has interacted with K and G. Ms Neville points out, and I accept, that while S has had contact with M and T and contact visits, that experience does not involve her looking to them to address day-to-day difficulties in her life, and conversely her experience of sharing achievements would primarily be with K and G.

25. I recognise that M raised the possibility of a staged restoration or slow transfer of S from K’s and G’s care into M’s and T’s care, but there is no obvious basis to assume that such a transition would be any less destabilising for S because it extended over a longer period. Ms Neville submits, with some force, that M’s and T’s approach was to require S to accommodate herself to the transition for which they contended, rather than developing any plan to assist her through that change. Ms Neville also points to the additional difficulty which may be involved in a transition, so far as T’s child from a previous relationship is already living with M and T, and T has indicated a wish for restoration of her other children. There is no evidence as to how S would deal, given her developmental challenges, with a transition to a new environment involving not only M and T but also potentially other persons with whom she has had limited previous contact. It also seemed to me that M’s and T’s evidence, at the preliminary hearing, reflected their primary focus upon their perception that S was initially wrongly removed from their care and their wish to return S to their care, and a lesser engagement with the implications for S of her removal from G and K and the home in which she has lived for many years. It seems to me that the prospects of any successful placement of S in M’s and T’s care would also be undermined by their lack of engagement with that issue.

26. In those circumstances, and given the period in which S has been in G’s and K’s care and the extent of her special needs, it seems to me that there is no realistic prospect that she would or should now be returned to M’s and T’s care. I also have regard to the observations of Brereton J in Adoption of NG (No 2) [2014] NSWSC 680 at [76] in respect of the benefits of adoption, where there is no realistic possibility of restoration of the child to his or her birth parents’ care, including certainty and permanence for the child and legal recognition of his or her relationship with his or her carers. I am satisfied that adoption is the appropriate course in the circumstances.

Consents to S’s adoption

27. Section 90(1)(d) of the Adoption Act requires that consent to S’s adoption has been given by every person whose consent is required under the Adoption Act or that consent has been, or should be, dispensed with. Section 52 of the Adoption Act provides that the Court cannot make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each parent of the child and any person with parental responsibility for the child. Section 54 of the Adoption Act provides that consent is not required in a number of circumstances, including but not limited to where the Court has made a consent dispense order.

28. As I noted above, the Secretary seeks orders, under s 67(1)(d) of the Adoption Act, that the consent of M and T to the adoption be dispensed with. That section provides that:

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

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

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

(ii)    the adoption of the child by those carers will promote the child's welfare, and

(iii)    in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.”

29. In Adoption of KH [2015] NSWSC 274 at [62], Brereton J observed that the inclusion of s 67(1)(d) in the Adoption Act reflects a policy decision that once a child has, by judicial decision, been removed from her birth parents and placed in permanent out-of-home care, the rule that legal parental relationships are not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption: see also Re Adoption of RCCand RZA [2015] NSWSC 813 at [11] and [17]; Re ASK and the Adoption Act 2000 [2017] NSWSC 521 at [83]–[84]. The Court must not make a consent dispense order unless it is satisfied that it would be in S’s best interest to do so: s 67(2); Re K and the Adoption Act 2000 [2005] NSWSC 858; Re DYK and the Adoption Act 2000 [2005] NSWSC 1045. I also recognise that the making of a consent dispense order is a serious step: Re Infant, K and the Adoption of Children Act [1973] 1 NSWLR 311 at 321; Secretary, Department of Family and Community Services; Re C and the Adoption Act 2000 (NSW) [2014] NSWSC 1007 at [52]–[54].

30. I have referred above to, and had regard to, M’s and T’s opposition to the adoption and to their wish to have S placed in their care and their application recently brought in the Children’s Court seeking to rescind or vary its earlier orders. It has been established that G and K are authorised carers of S and there is evidence that S has established a stable relationship with them, for the purposes of s 67(1)(d)(i) of the Adoption Act, having now been in their care for many years. In my view, an adoption order will promote S’s welfare as it will provide certainty for her, by making her, as a matter of law, part of G’s and K’s family and will allow her continuity in her care and the support for her developmental challenges which G and K have been providing. I am satisfied that an order dispensing with T’s and M’s consent to the adoption should properly be made under s 67(1)(d) of the Adoption Act and would be in S’s best interests for the purposes of s 67(2) of the Adoption Act. A consent dispense order is appropriately made where S’s best interests will be promoted by the proposed adoption and, unless consent dispense orders are made, the adoption could not proceed: compare Adoption of NG (No 2) above at [106] per Brereton J.

Adoption plan

31. Section 90(1)(h) of the Adoption Act requires, in the case of a child (other than an Aboriginal or Torres Strait Islander child) that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption. G and K have agreed to an adoption plan which provides for contact between S, M and T and her maternal half-siblings and a plan to maintain S’s cultural identity. Ms Humphreys expresses the view that the contact proposed in the adoption plan is proper in the circumstances, with a significant level of contact with the birth parents and also providing for maternal half-sibling contact, at a level exceeding that specified in S’s current care plan. The identity and cultural provisions of the adoption plan provide for S to develop knowledge of her Dutch heritage through contact with her birth father and other means. I am satisfied that plan is appropriate.

Whether adoption of S is preferable to other courses

32. Section 90(3) of the Adoption Act in turn 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.”

In Adoption of NG (No 2) above at [74], Brereton J observed that:

“Consideration of whether adoption would promote the child’s best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others.”

33. I have referred to Ms Humphreys’ evidence and the s 91 report dealing with these matters above. Ms Neville submits that an adoption order will provide permanence, stability and legal security that orders for parental responsibility cannot provide, and that a solid foundation for ongoing development is particularly important for S having regard to her developmental and education needs. Ms Neville also submits, and I accept, that an adoption order would bring S’s legal status and her “lived experience” into conformity, where she is, in her emotional and home life, a member of K’s and G’s family, although she also, of course, has a permanent link with her birth family. Ms Neville also fairly recognises that it would be open to the Court to leave the current arrangements as they are, with S being in the parental responsibility of the Minister, or to allocate parental responsibility for S to G and K, and fairly acknowledges that those steps would likely not have any immediate impact on S’s day-to-day care. However, it seems to me that those courses have the real disadvantage that S may well require G’s and K’s care and assistance beyond the age of 18 years, given her developmental delays. G and K would have no legal basis for acting on S’s behalf beyond that age if the current arrangements remain in place or parental responsibility is allocated to them.

34. I am satisfied, for all the reasons set out above, that the making of the adoption order is clearly preferable in S’s best interests to any other action that could be taken by law in relation to her care, for the purposes of s 90(3) of the Adoption Act. For these reasons, I am satisfied of the relevant matters specified in s 90 of the Adoption Act in respect of S and I will make the orders sought in respect of her adoption.

Approval of S’s name

35. Approval is sought, under s 101 of the Adoption Act, for the name by which S is to be known. The Court cannot give such an approval without first considering any wishes expressed by S under s 101(2) of the Adoption Act. The proposed name by which S will be known preserves her given names and incorporates a surname shared by G and K as the proposed adoptive parents. It appears that S may not understand the implications of changing her legal name, but Ms Humphreys expresses the view that the proposed name is in her best interests, where it preserves her given names and her connection to her birth family, but also allows a surname consistent with the proposed adoptive parents. Ms Neville submits that, once the Court accepts that a benefit of adoption is a sense of security and belonging for S, as I have, that position will be enhanced and affirmed by S having the same surname as her adoptive parents, while maintaining links to her birth family through three of her four names.

36. The s 91 report refers to an issue which has arisen in respect of the use of another name, informally, for S by G and K, and M’s and T’s unhappiness with that course. I recognise that G and K each would like to have the informal name by which S is known as her first given name, although the order sought by the Secretary does not adopt that form, and it is not supported by the s 91 report. The issue to that name is reflected, in the orders sought, by maintaining S’s given name as her first name, but introducing the name by which she has informally been known as a middle name, and that approach is supported by the s 91 report. I consider that approach is appropriate.

37. I am conscious of the length of the name proposed for S, which may cause difficulty for her in filling out routine forms in ordinary life, particularly with her developmental challenges. However, if S develops to the point that she has the capacity to fill out such forms, without assistance, then she would also likely have the capacity to seek a further change of her name, if its length caused her difficulty. Although the Secretary indicated the possibility that the name could be shortened, by omitting those of her birth names that S did not regularly use, it seems to me to be preferable to retain those birth names as a link with her birth family.

38. I am satisfied that I should approve the name by which S will be known, as proposed by the Secretary rather than in the form that is K’s and G’s first preference, and I will do so on making an adoption order.

Orders

39. I therefore dispense with the consent of S’s birth mother, T, and birth father, M, to the adoption under s 67 of the Adoption Act. I make an order for the adoption of S in favour of K and G and, on the making of the adoption order, I approve the name proposed for S.

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Decision last updated: 27 March 2018