In the matter of the adoption of NS
[2024] ACTSC 65
•15 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of the adoption of NS |
Citation: | [2024] ACTSC 65 |
Hearing Date: | 31 January 2024 |
Submissions Received: | 14 March 2024 |
Decision Date: | 15 March 2024 |
Before: | McWilliam J |
Decision: | (1) Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT) (Adoption Act),the Court dispenses with the requirement for the consent of the birth parents of NS to her adoption. (2) The application for adoption orders to be made in relation to NS pursuant to Div 3.6 of the Adoption Act is listed for hearing before McWilliam J on 4 April 2024 at 3.30pm. (3) There is no order as to costs. |
Catchwords: | ADOPTION – application to dispense with requirement for consent of birth parents to adoption of six-year-old child by her foster carers – where child has resided with the same foster carers since infancy – where no realistic prospect of child establishing any relationship with birth parents – dispensation order made |
Legislation Cited: | Adoption Act 1993 (ACT) ss 5, 6, 26, 30, 35, 39 60, 62, 64, 97 Court Procedures Act 2004 (ACT) s 74 Court Procedures Rules 2006 (ACT) rr 3171, 3172 |
Cases Cited: | In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25 |
Parties: | Director-General, Community Services Directorate (Applicant) [Not Published] (Respondents) |
Representation: | Counsel C Mullins ( Applicant) |
| Solicitors ACT Government Solicitor ( Applicant) No Appearance ( First and Second Respondents) ACT Legal Aid (Child’s Representative) | |
File Number: | AD 10 of 2023 |
McWILLIAM J:
1․This proceeding involves an application by two long term foster carers to adopt the child they have cared for since she was three weeks’ old. The child had previously spent the first weeks of her life in hospital upon being born prematurely, before being discharged into the care of the applicants. The child is now six years old.
2․In order to comply with the Adoption Act 1993 (ACT) (Adoption Act), in particular, the restriction on publishing the identities of those involved under s 97, I will refer in these reasons to the child as ‘NS’.
3․The Director-General of the Community Services Directorate (Director-General) currently has the legal responsibility for the child, with long term parenting orders made in favour of the Director-General on 28 March 2019.
4․In the context of the overarching application for adoption, the Director-General has brought an interlocutory application seeking to dispense with the statutory requirement for the birth parents’ formal consent to the adoption of NS.
Application before the Court
5․The starting point is that before any orders for the adoption of the children can be made, the birth parents must each provide consent to the respective adoptions: s 26 of the Adoption Act. The consent must be in a particular form: s 30 of the Adoption Act.
6․Neither birth parent has provided consent, either formally in accordance with the statutory requirements, or by any other means.
7․Accordingly, an application dated 13 November 2023 seeking the dispensation of the requirement for each parent’s consent has been filed, pursuant to s 35 of the Adoption Act (dispensation application).
Notice of the applications
8․Rule 3171 of the Court Procedures Rules 2006 (ACT) (Rules) provides that the application and supporting affidavit must be served on the interested parties 28 days before the application is heard. There was evidence before the Court in the form of two affidavits affirmed by Ms Emelda Foroma on 18 January 2024, confirming that each birth parent had been personally served at the same residential address but on separate occasions, on 7 and 20 December 2023.
9․Under rule 3172 of the Rules, a person served with an application under rule 3171 may oppose the application by filing a notice opposing the application no later than 10 days after the day the application is served. The Court has not received such an application.
10․The application for dispensation was heard on 31 January 2024. I am satisfied that each birth parent was properly on notice of the application and that the Director-General has complied with the Rules pertaining to service. Neither birth parent appeared at the hearing.
11․Before a court may hear a proceeding in relation to the child, there must either be a separate lawyer (a child representative) appointed, or the Court must be satisfied that the child has had a reasonable opportunity to seek legal representation and that the child’s best interests will be adequately represented without such representative: s 74G of the Court Procedures Act 2004 (ACT).
12․In this matter, it was belatedly discovered that no separate representative had been appointed for the oral hearing on 31 January 2024. That was the opportunity for the birth parents to be heard if they so desired. A child representative was then appointed on 1 February 2024, with the hearing to proceed on the papers unless the parties otherwise requested. The active parties in the proceeding (being the Director-General and the child representative) then notified the Court on 14 March 2024 that they consented to the dispensation application proceeding on the papers and had no submissions in opposition to make.
The Court’s power to dispense with consent
13․Under s 35(1) of the Adoption Act, the Court may make an order dispensing with the requirement for consent of a person to the adoption of a child or young person in a variety of circumstances, one of which is where it is satisfied that “it is necessary in the best interests of the child or young person to dispense with the requirement for consent of the person”: s 35(1)(c).
14․Those words have been interpreted to mean that “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”: In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25 at [58].
15․Sections 5 and 6 of the Adoption Act deal with the factors to consider when deciding what is in the best interests of the child or young person:
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.
16․Each of those considerations are discussed in turn below.
17․Section 6 of the Adoption Act contains mandatory, additional considerations if the child or young person is Aboriginal or Torres Strait Islander. Those considerations do not apply here.
The evidence
18․The substantive evidence in support of the dispensation applications was provided in affidavit form by Ms Emelda Foroma, a tertiary and post-graduate qualified social worker employed within the Adoption and Permanent Care Team of Child and Youth Protection Services (CYPS). She is the case manager with carriage of NS’s matter. Her evidence demonstrates a high degree of familiarity with the families involved and NS’s broader family circumstances.
19․The foster carers have jointly affirmed an affidavit dated 27 October 2023. In addition, the Delegate of the Director-General has prepared a confidential report dated 26 October 2023 pursuant to s 39D of the Adoption Act. Although this report is required more relevantly at the time the substantive application for adoption is considered, as it addresses the mandatory considerations referred to above, it was of great assistance in considering the dispensation application.
Is adoption in the best interests of NS?
The likely effect of the decision on NS’s life course, taking into account the need to preserve her cultural inheritance, personal identity and sense of belonging: s 5(2)(a)
20․I consider that the likely effect of the decision will be beneficial for NS’s life course. Having been in the care of her current foster carers (the proposed adoptive parents) effectively since birth, the evidence disclosed a well-established sense of belonging and identity within the foster carers’ family unit.
21․NS has not had contact with her birth parents since January 2019 – that is, for the last 5 years. In the life of a 6-year-old, that is a significant period of time. Notwithstanding the lack of engagement by the birth parents, the foster carers have supported ongoing connection and have provided written updates and photos roughly four times a year. Sometimes they receive a response from the birth mother, but not regularly or often. From what the birth parents have said in various conversations reported with them (which were dotted throughout the evidence), they find contact with their children very painful emotionally. Each time they see them, they grieve again and they always had an underlying hope that their children would be restored to their care. I have recorded this, lest the lack of contact from the birth parents be taken as a lack of interest in their child. The circumstances are more nuanced than that.
22․In terms of NS’s personal identity, she has an active understanding of her birth parents, but as she develops and her awareness and understanding of what adoption means evolves, I accept the evidence of those skilled in the area that the (known) adoption by the foster carers will promote her sense of belonging. I will return to that matter separately.
23․With regard to preservation of NS’s cultural heritage, NS has a diverse ethnic and cultural background. Her birth father is of Colombian heritage. Her birth mother is of Finnish heritage through her paternal side, and Swedish through her maternal side. There is a Cultural and Linguistically Diverse Plan in place which sets out information significant to NS’s various countries of origin and which I can see is being implemented by the foster-carers. They have engaged with the Finnish and South American Embassies to develop their knowledge and understanding of NS’s birth culture. Such efforts extend to incorporating cultural practices of the Finnish and Colombian people in every-day family life, including with NS learning to use basic Finnish and Spanish language at home. This includes counting, singing nursery rhymes and reading bilingual books.
24․There have also been efforts to maintain cultural connections through either contact with the birth parents or with their extended families, which I will deal with separately.
25․The clear intention of the carers is to preserve the NS’s cultural heritage and to maintain connections to the heritage of her birth parents where opportunities to do so arise. An adoption order is unlikely to have any detrimental effect on the preservation of NS’s cultural heritage or her personal identity as it emerges.
Age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances of NS: s 5(2)(b)
Cultural, physical, emotional, intellectual, and educational needs of NS: s 5(2)(c)
26․As these two considerations partially overlap, it is convenient to address them together.
27․NS’s understanding of adoption is age-appropriate, in that she has a basic understanding of what adoption means, but at 6 years of age, is still young in her overall development and she is not considered to be at an age or level of maturity to fully understand the legal implications of adoption. She is also aware that her two brothers have been adopted (by different carers last year).
28․In terms of educational needs being met, NS regularly attends a government primary school and is reported to have a fairly positive attitude. She has advanced drawing skills and has been provided with additional activities, such as swimming lessons, and ballet and dance lessons, which she “thoroughly enjoys”.
29․NS has been diagnosed with asthma, for which she takes her daily medication. She has occasional flare ups of eczema, which the foster carers treat with anti-itch moisturiser and cortisol cream when required. NS has been diagnosed with Myoclonus which manifests as occasional muscle spasms in NS’s arms and legs. Again, the foster carers are engaging with the relevant health professionals in that regard and are taking their advice. Other health issues that were identified in the reports are similarly being addressed and managed appropriately by NS’s foster carers. The significant point is that there are specific health needs and that they are being well met by the foster carers.
30․In terms of NS’s emotional needs, she understandably does have emotional challenges relating to the narrative around her birth parents, detailed in the reports. The foster carers have been proactive to engage with a child psychologist and equip both the carers and NS with more tools for support.
31․Without setting out the full detail of the evidence provided in the reports, it is clear that the foster carers are providing a high level of care and proactivity in relation to the needs and challenges in raising NS and I have confidence that NS’s particular needs will continue to be met, in the event that an adoption order is made.
NS’s views: s 5(2)(d)
32․As stated, NS has a basic understanding of what adoption means. She knows that she will have the same surname as her foster carers, but she is otherwise not at an age to understand or express a fully informed view about the legal implications of adoption.
The likely effect of the decision on NS’s relationship with her birth parents, siblings, other relatives and carers or other significant people in their lives s 5(2)(e)
33․The various relationships with the relatives and other significant people will be considered in turn.
(i) Birth parents
34․There is no pre-existing relationship with the birth parents that could be compromised by an adoption order. A significant opportunity was provided by a support service over 18 months and NS had twice weekly contact with her birth parents for 12 months of that program. However, due to other issues relating to the parenting of one of NS’s birth siblings, the birth parents ceased engagement and as has been detailed above, have not responded to attempts for contact since that time. Notwithstanding the lack of physical engagement, the foster parents have continued to provide photo updates of NS to her birth parents on a quarterly basis.
(ii) Siblings
35․NS has two older brothers, both of whom were previously in long term foster care and have now been adopted by their foster carers. The carers for each of the children were friends prior to each becoming foster carers. The placement of the full siblings between the two sets of carers already known to each other has assisted with NS and her two older brothers having consistent, regular, and meaningful contact with each other for the entire time that they have been in care. The children have close relationships with each other, and this is considered to be sustainable over the longer term. Both carers view the connection and the sibling relationship as a necessity. Most recently, NS and her foster carers travelled to the United Kingdom where her brothers currently reside and stayed with the family there. The children have developed a very strong family narrative and bond.
36․Given that the two older brothers have already been adopted by different foster carers, the legal family tie has already been severed between the siblings. However, because of how the three children have grown up and the close association between their two families, an adoption order in respect of NS is unlikely to sever the actual family bonds they have built, or to create a barrier to the maintenance of those bonds through adolescence and adulthood.
37․Of course, as the children are all young, it is difficult to predict any longer-term consequences if the children are adopted by different families, but it must be remembered that the children have grown up knowing they are blood siblings living in two different households. It is actually their “normal” family connection and they have achieved family integration (to the credit of their respective carers) notwithstanding the physical separation.
(iii) Half-siblings
38․NS has three older half siblings on her birth father’s side. The eldest two were adopted in New South Wales to separate carers and are now adults. There has been periodic communication, and NS has met her older half-sister, although she has not yet met her elder half-brother in person.
39․The third half sibling resides with his birth mother inter-state. There have been some attempts at communication and the foster carers support the development of a connection between NS and her other half-sibling. However, that process remains very much in its infancy. An adoption order will not affect whether a relationship with that half-sibling and his family is established in the future.
(iv) Grandparents
40․NS’s paternal grandfather and maternal grandparents and maternal great grandmother are known to the Director-General and to the foster carers.
41․NS has had sporadic contact with her paternal grandfather in the past. She refers to him as “Poppy”. The paternal grandfather’s health has prevented regular contact over the years. However, they communicate by other means and an adoption order will not change that current connection.
42․A positive relationship has been established between NS and her maternal grandmother and maternal great-grandmother. There is no relationship with NS’s maternal grandfather. The existing relationships with extended family members are not in jeopardy by any potential adoption order that may be made. There appears to be a willingness by the foster carers to engage with NS’s grandparents and the foster carers support those connections being strengthened in the future.
(v) Other significant people in NS’s life
43․NS has two maternal aunts who have also expressed interest in contact. Given NS’s young age, advice from the Australian Childhood Foundation was that it may be overwhelming to introduce so many family members at once. However, there is a staged contact plan in place. The foster carers have demonstrated an ability to act independently (that is, without any statutory oversight or intervention by the Director-General as the legal guardian), to ensure that, to the extent NS has any meaningful relationships with family members, they are maintained and that connections with other family members who wish to have contact are promoted. This is all positive for NS in ensuring that she will continue to have access to her birth family as she grows, regardless of whether an adoption order is made.
NS’s relationship with the adoptive parents: s 5(2)(f)
44․NS’s relationship with her foster carers is the same as any natural parent-child relationship, with a warm and loving connection between them. NS refers to them as “mummy” and daddy” or “mum and dad”. She identifies them as her parents. They have continued to provide NS with a predictable, stable, and structured environment.
45․Nevertheless, the reports show that NS has uncertainty about the relationship and in particular, its legitimacy. She has asked questions about it and has had a number of discussions with her foster carers, some of which show that NS is working through difficult and distressing aspects of her life story. That is why a child psychologist has been engaged (referred to above) and the foster carers view this aide as an objective person to help NS process her life story. Again, without speculating about what feelings NS might have as she develops, the grant of an adoption order should serve to enhance the certainty and stability for NS and hopefully end any doubts she has about the legitimacy of her relationship with the foster carers or what might happen in the future.
The suitability and capacity of the adoptive parents to meet NS’s needs: s 5(2)(g)
46․The foster carers have been placed on the Register of Suitable People for adoption since 22 May 2023. Before having NS placed in their care, they depose to having been on an 18-year journey to be a family of more than 2 and that they love her as if she were their own biological child. They are considered to have provided exceptional care for NS and require no intervention from ACT Together, which explains the lack of any affidavit before the Court from any ACT Together employee in respect of NS.
47․There were no concerns raised in the evidence about the foster carers’ capacity to meet the needs of NS. The challenges they will face are the same as any parent would face and they are as well-equipped as any other parent would be.
The alternatives to adoption for NS to secure permanent family arrangements: s 5(2)(h)
48․Alternatives to the application for adoption have been considered, first by the Director-General and now by this Court. It will be apparent from what has been said above that there are no realistic alternatives to adoption that would secure permanent family arrangements. There is no prospect that either biological parent will at this stage take any permanent parenting role. Similarly, no kinship carer has any relationship with the children to make that person a realistic alternative.
49․An enduring parental responsibility order is an alternative option. This involves an application made by the Director-General to transfer the responsibility for NS permanently to the foster carers. The considerable disadvantage of such an order is that it is only made until the child attains the age of 18. As any parent knows, whatever the legal status of the relationship, parenting does not cease on a child’s 18th birthday. The idea that NS will have a life-long parental relationship with her foster carers is very important for all involved, in enhancing belonging and security within the family unit.
50․I accept that adoption is preferable to alternative options available to secure permanent family arrangements.
The continuity and sense of belonging that comes from a child having stable emotional and physical living conditions: s 5(2)(i)
51․As discussed above, NS has already secured stable emotional and physical living conditions, but an adoption order will serve to further reinforce the permanency and finality of this.
The need to protect NS from physical or psychological harm associated with exposure to abuse, neglect or family violence: s 5(2)(j)
52․NS has been the subject of long-term care and protection orders since 28 March 2019. As a result, the need to protect her from exposure to abuse, neglect or family violence has long since ceased. There may have been historical reasons in relation to the birth parents and their ability to parent NS, but this factor is now neutral as she will remain with the current foster carers with or without an adoption order.
Conclusion
53․Having considered each of the mandatory considerations, I am satisfied that adoption is overwhelmingly in the best interests of NS. As I have said in relation to other cases where the child has been in care since birth for many years, such an order would achieve at law what is already the case in practice. Accordingly, a dispensation order in respect of the requirement for the birth parents’ consent to the adoption of NS by their current foster carers is necessary.
54․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) (Adoption Act),the Court dispenses with the requirement for the consent of the birth parents of NS to her adoption.
(2)The application for adoption orders to be made in relation to NS pursuant to Div 3.6 of the Adoption Act is listed for hearing before McWilliam J on 4 April 2024 at 3.30pm.
(3)There is no order as to costs.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: |
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