In the matter of the adoption of XAL
[2023] ACTSC 175
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of the adoption of XAL |
Citation: | [2023] ACTSC 175 |
Hearing Date: | 30 June 2023 |
DecisionDate: | 11 July 2023 |
Before: | McWilliam J |
Decision: | (1) Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT),the Court dispenses with the requirement for the consent of the respondent, the birth mother of XAL, to adoption by her current foster carers. (2) Proceeding AD 6 of 2022 is listed on Friday 25 August 2023 at 4.15pm for the hearing of the application for adoption orders to be made in relation to XAL pursuant to Div 3.6 of the Adoption Act 1993. (3) There is no order as to costs. |
Catchwords: | ADOPTION – DISPENSATION WITH CONSENT – Application to dispense with requirement for consent of birth parent to adoption of young person by her foster carers – whether dispensation necessary in the best interests of the young person – where child has been residing with the same foster carers for 6 years – where no realistic prospect of young person establishing any relationship with birth parents – dispensation order made |
Legislation Cited: | Adoption Act 1993 (ACT) ss 5, 6, 26, 30, 35, 64, 97, 112 Court Procedures Rules 2006 (ACT) rr 3171 |
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] (Respondent) |
Representation: | Counsel A Chand (Applicant) No appearance (Respondent) J Cruise (Child’s Representative) |
| Solicitors ACT Government Solicitor (Applicant) No appearance (Respondent) Legal Aid ACT (Child’s Representative) | |
File Number: | AD 6 of 2022 |
McWILLIAM J:
The young person who is the subject of this proceeding is sixteen years old. She has been residing with her two foster carers for the past six years, since she was nine years old, with minimal contact with her birth parents during that time, by their choice. She has had no meaningful contact with either of them for the past five years.
The foster carers are now seeking to adopt the young person, through an application filed 8 December 2022. In order to comply with the privacy (s 64) and confidentiality (ss 97 and 112) provisions of the Adoption Act 1993 (ACT) (Adoption Act), she will be referred to in these reasons as “XAL”.
The present application for determination
The present application in proceeding, filed 8 December 2022, was brought under s 35 of the Adoption Act by the Director-General, Community Services Directorate (Director-General), who is not a party to the substantive application for adoption, but is the person who currently has the overarching legal responsibility for XAL. The relief sought in the application is the dispensation of the statutory requirement for the birth mother’s formal consent to the adoption of the young person.
Although Child and Youth Protection Services (CYPS) have been involved with the biological mother and her family since XAL was born, XAL was only removed from her biological mother’s care in 2014. Final care and protection orders were made on 9 February 2016 and XAL was moved from short-term foster care to a long-term placement with her current foster carers in March 2017.
The application is necessary because of s 26 of the Adoption Act, which states that before any orders for the adoption of the child can be made, the birth parents must each provide consent to the adoption. XAL’s biological father has consented to the adoption of XAL by the proposed adoptive parents, but the biological mother has not.
Notice of the application
The birth mother is on notice of the application. She has been personally served with both the application for adoption and the application to dispense with her consent. That occurred more than 28 days before the hearing, as required by r 3171 of the Court Procedures Rules 2006 (ACT). For an abundance of caution, she was also personally served with the latest letter notifying her of the hearing to take place on 30 June 2023.
At the time she was served with the most recent notice of hearing, the birth mother indicated that she wanted the Court to know that she has now changed, and how much she loves her children. She indicated that she did not oppose the dispensation application, although she was considering attending the Court. She did not ultimately attend the hearing.
In the absence of proper compliance with the requirements of the Adoption Act (signing the requisite form prescribed by s 30 of the Adoption Act), the Court cannot take any comments about the birth mother’s consent on this application into account.
However, the Court can take into account the ongoing love that the biological mother has for her children, and this is discussed further below.
The Court’s power to dispense with the requirement for a parent’s consent
The Court may dispense with the requirement for consent of a person to the adoption of a young person (in this case) in a variety of circumstances, one of which is where it is satisfied that “it is necessary in the best interests of the … young person to dispense with the requirement for consent of the person”: s 35(1)(c) of the Adoption Act.
Those words were considered in the case of In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25 at [58] and interpreted there to mean “it is necessary to dispense with the requirement for consent of the person because adoption is in the best interests of the child or young person.”
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.
Each of those considerations will be discussed in turn below in these reasons.
If the child or young person is of Aboriginal or Torres Strait Islander descent, there are mandatory, additional considerations: s 6 of the Adoption Act. On the evidence in support of the application, those considerations do not apply to XAL.
The evidence
There were two substantial affidavits before the Court, addressing the considerations set out in s 5 of the Adoption Act. They were affirmed by:
(a)Ms Ellen Francescangeli, the current foster care manager for XAL, in the OzChild Foster Care Team, which is part of the ACT Together consortium; and
(b)Ms Beth Colbey, the relevant case manager within the adoption and permanent care team of CYPS.
The affidavits are comprehensive and supporting documentation was annexed where appropriate. The reasons below setting out the various considerations are largely drawn from the contents of those affidavits.
Is adoption in the best interests of XAL?
(a) The likely effect of the decision on XAL’s life course, taking into account the need to preserve her cultural inheritance, personal identity and sense of belonging
XAL’s life course really changed back in 2014 when she was taken into foster care. She has been in a stable placement for six years, with two people who love her as their own child.
Absent adoption, there is no realistic possibility that XAL’s biological parents will be willing or able to care for her in the next three years while the young person is still under eighteen.
XAL has two other siblings and one-half sibling on her mother’s side. These family relationships are discussed further below, but all are in foster care and there is no suggestion that XAL would move to live with the children in either of those placements. One has been adopted to different foster carers from those caring from XAL and the other two were previously placed in care with XAL but were moved at separate times to separate placements because of behavioural difficulties and clashes between the children.
There is also no suggestion that XAL would be able to live with either her maternal grandmother or grandfather, for the reasons contained in the affidavit evidence which are unnecessary to repeat here.
There are no cultural connections that require particular consideration.
XAL is in the process of forming her personal identity through her adolescence. The proposed adoptive parents fully support an open adoption now and into the future, meaning that relationships with other siblings and biological family members are encouraged. These are considered further below.
I consider that XAL’s sense of belonging is likely to be enhanced by an adoption order, particularly given her views (discussed separately below) about the process.
Overall, the effect on XAL’s life course of a decision in favour of adoption is likely to be strongly positive, primarily due to the enhanced sense of security and stability afforded by an adoption order.
(b) XAL’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances
XAL is sixteen years old. XAL refers to her foster carers as mum and dad. She identifies her foster carers as her parents for all intents and purposes and it is her desire to be adopted by them. She no longer wants to be under the care of the Director-General.
She has a solid understanding of what adoption is. She has been described as having a well-integrated understanding of her identity and culture, gained through open communication with her current carers about her life story, as well as regular contact with her biological siblings. XAL’s individual family circumstances are otherwise discussed in further detail in the considerations that follow.
There are no particular personal characteristics that require consideration in the decision to be made.
XAL’s level of maturity is such that her views carry considerable weight and I note that her biological mother has also expressed a similar sentiment. That shows a degree of insight by the biological mother as to what is likely to be in XAL’s best interests.
(c) XAL’s cultural, physical, emotional, intellectual, and educational needs
XAL is described as a healthy and happy young person who is growing and meeting all of her developmental milestones. She is physically strong through undertaking things such as volleyball and cheerleading.
No cultural needs deriving from either birth parent have been identified for XAL.
XAL has no physical needs that require special consideration for adoption. She wears glasses and her current carers support her general health well. They have built on the efforts of XAL’s previous short-term carer, who attended to her dental care, speech therapy and other behaviours, all of which have resolved.
XAL’s intellectual and educational needs are being met through her regular attendance at high school. Previously, XAL’s carers have responded appropriately to an identified concern about her reading level being behind that of her peers. Following extra tutoring, XAL has not only caught up with her peers but now considers English to be one of her favourite subjects.
XAL’s emotional needs overall are also being met and supported by her carers. Understandably, she is a young person whose mental health has been affected by being let down by her biological parents in their inability to care for her. She has at times struggled with anxiety. Her current carers have helped XAL to develop strategies. She is now a very competent teenager who has been able to take in complex information, and apparently has demonstrated significant emotional intelligence. Part of that success is due to the foster carers taking a proactive approach to XAL’s physical, social and emotional development. They have been described as having laid the foundations for a great life for XAL which is filled with love and stability.
I am satisfied that the independent efforts of XAL’s foster carers mean that XAL’s developmental needs will continue to be met and that any order for adoption will not change the ongoing thoughtful care that has been evidenced to date.
(d) XAL’s views
XAL is at an age where she can now advocate for herself. She has clearly articulated her attachment and sense of belonging to the family she lives in with her foster carers. Her view is that she does not want to be a foster kid anymore. She just wants to be part of a normal family and she wants that to last past eighteen years of age. XAL has felt this way since November 2020. This is highly persuasive in the Court forming a view about what would be in XAL’s best interests. Her wellbeing and sense of family and belonging are matters she has thought about for years and this significantly weighs in favour of adoption.
(e) The likely effect of the decision on XAL’s relationship with birth parents, siblings other relatives and carers or other significant people in her life
XAL has not had contact with her birth mother for over five years. Numerous attempts to facilitate contact have been unsuccessful. The birth mother has at times indicated a willingness to reconnect, such as through writing a letter, but has stopped engaging meaningfully with those who are responsible for her care, such as case workers and the foster carers.
The birth mother has also said that she wants XAL to be happy and to have a fantastic life. She has stated that she wants XAL to know she loves her so much, and regrets she was not the mother she needed when she was younger.
It is important that the birth mother understand, if she reads this judgment, that the foster carers are supportive of nurturing a relationship between XAL and the birth mother in the future, if an adoption order were to be made. XAL has also expressed a desire to maintain a relationship with her biological family.
XAL has previously had sporadic contact with her birth father but has not seen him since 2014. He considers adoption to be right for XAL.
It will be clear from what has been said above that any decision in relation to adoption is unlikely to have any impact on whether a relationship develops in the future with either of XAL’s birth parents. The application before the Court is not about a lack of love by either of the birth parents, nor is it about curtailing any connection they might have with XAL in the future. The concern of the Court on the application is what outcome will best serve XAL’s interests viewed holistically.
The foster carers have made significant efforts to connect with and visit XAL’s extended biological family, including her three maternal siblings. She remains in close contact with them and regularly catches up for time together with them in the community.
In addition, XAL has quarterly visits with her maternal uncle. She finds these visits positive and it supports and enhances her sense of belonging within her family network.
There has been some contact with the maternal grandmother, although this has been a mixed outcome.
What is important is that the foster carers have at all times openly communicated and been responsive to promoting relationships with XAL’s biological family. They have an ongoing commitment to ensuring that XAL remains connected in a natural and meaningful way with her birth family. Contact is not forced and only occurs if XAL is comfortable and willing to do so. An order for adoption would not change this.
(f) XAL’s relationship with the proposed adoptive parents
XAL’s relationship with her foster carers is shown through their commitment to XAL. She is a valued part of their family and they have a special attachment to her. The foster mother has a lived experience of being adopted and she wants for XAL to experience the stability and security that comes with permanency. They know XAL wants to be adopted and be part of the family forever. This is what has motivated them to apply for adoption. They want XAL to know that they want this permanency as much as she wants it. Again, cementing XAL’s relationship with her proposed adoptive parents through adoption is a consideration strongly in her best interests.
(g) The suitability and capacity of the adoptive parents to meet XAL’s needs
The proposed adoptive parents are on the register of people suitable for adoption and have consistently demonstrated an ability to provide a high level of care for XAL.
The foster carers have been transparent with XAL about her life story and XAL feels safe to ask questions when they arise. There are no concerns expressed anywhere in the evidence about either the suitability or capacity of the adoptive parents to meet XAL’s needs.
(h) The alternatives to adoption for XAL to secure permanent family arrangements
The lack of any connection with XAL’s biological parents for many years, combined with their history of neglect of both XAL and their other children, and their historical substance misuse, means that reconnection with a view to restoration to the birth parents will never be a realistic alternative to secure permanent family arrangements.
It is plainly in XAL’s best interests for the future that she remain with her current foster carers, with or without an adoption order. Other alternatives to adoption have been considered by the Director-General. The main alternative permanency option is an enduring parental responsibility order. However, the drawback of this alternative is that the order only operates until the young person reaches eighteen years of age. Given the clear views articulated by XAL, it is very important for her security and well-being that she knows her adoptive parents are her parents for life.
The reality is that in three years, XAL and her foster carers will be able to take steps to achieve adoption themselves. There is nothing to be gained in making them wait. In all practical senses, XAL and her foster carers are already a family.
(i) The continuity and sense of belonging that comes from XAL having stable emotional and physical living conditions
XAL already has stable emotional and physical living conditions. That will not change if an adoption order is not made. However, as has been stated in different ways throughout these reasons, I accept that an adoption order will serve to further reinforce the permanency and finality of this stability.
(j) The need to protect XAL from physical or psychological harm associated with exposure to abuse, neglect or family violence.
As XAL has been the subject of long-term care and protection orders and has been permanently placed with her current foster carers, any need to protect XAL from physical harm is now historical. As an adopted child, she will be cared for in a way that ensures a safe, stable and nurturing family and home life, helping to counterbalance the accumulative emotional toll of her past and the worry of wondering whether her birth parents want to pursue a relationship with her.
Conclusion
Having considered each of the mandatory considerations, I am satisfied that adoption is overwhelmingly in XAL’s best interests and that a dispensation order in respect of the requirement for the birth mother’s consent to her adoption is therefore necessary.
For the above reasons, the orders of the Court are as follows:
(1) Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT),the Court dispenses with the requirement for the consent of the respondent, the birth mother of XAL, to her adoption by her current foster carers.
(2) Proceeding AD 6 of 2022 is listed on Friday 25 August 2023 at 4.15pm for the hearing of the application for adoption orders to be made in relation to XAL pursuant to Div 3.6 of the Adoption Act 1993.
(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: 11 July 2023 |
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