In the matter of the adoption of XSE
[2023] ACTSC 114
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | In the matter of the adoption of XSE | |
| Citation: | [2023] ACTSC 114 | |
| Hearing Date: | 27 April 2023 | |
| Decision Date: | 18 May 2023 | |
| Before: | McWilliam J | |
| Decision: | ||
|
Court dispenses with the requirement for the consent of the
respondents, the birth mother and birth father of XSE, to her
adoption by her current foster carers.
(2) Proceeding AD 5 of 2022 is listed on Friday 2 June 2023 at 3.30pm for the hearing of the application for adoption orders to be made in relation to XSE pursuant to Div 3.6 of the Adoption Act 1993. (3) There is no order as to costs.
Catchwords: | ADOPTION – application to dispense with requirement for consent of birth parents to adoption of child by her foster carers – |
| whether dispensation necessary in the best interests of the child | |
| – where child has been residing 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, 35, 64, 97, 112 Court Procedures Rules 2006 (ACT) rr 3171, 6008 |
| Cases Cited: | In the matters of the adoption of BB, BM and BD [2023] ACTSC 45 In the matter of the adoption of MSN [2017] ACTSC 92 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 |
| D Perks (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 5 of 2022 |
| McWilliam J: |
1. The child who is the subject of this proceeding is eight years old. She has been residing
with her two foster carers since she was eight months old, with minimal contact with her
birth parents during that time, by their choice. She has had no contact with either of them
for the past four years.
2. By application filed 1 December 2022, the foster carers are now seeking to adopt the
child. 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 “XSE”.
3. The application in proceeding presently before the Court for determination was also filed
on 1 December 2022 by the Director-General, Community Services Directorate
(Director-General). The Director-General has been responsible for the child effectively
since her birth. When XSE was born she spent the first five weeks of her life in hospital
in the special care nursery, being treated for neonatal abstinence syndrome. Before she
was discharged from hospital, emergency action was taken by Child and Youth
Protection Services, with an assessment made at that time that there was a high
likelihood that XSE would be at risk of future abuse and neglect should she remain in the
care of her birth mother. At the time, the birth mother declined to provide information
about the identity of the birth father. His identity was established in 2017. In the
meantime, final care and protection orders were made in favour of the Director-General
in the ACT Children’s Court on 9 February 2016. Those orders operate until XSE
reaches 18 years of age.
4. The present application is brought under s 35 of the Adoption Act It seeks the
dispensation of the statutory requirement for the birth parents’ formal consent to the
adoption of the child. 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. Neither birth parent consents to the
adoption of XSE by the proposed adoptive parents.
Notice of the application
5. The Court needs to be satisfied that each birth parent is properly on notice of the
application: In the matter of the adoption of MSN [2017] ACTSC 92 at [17], cited more
recently in a judgment dealing with a similar application, namely In the matters of the
adoption of BB, BM and BD [2023] ACTSC 45 at [9].
6. The Adoption Act does not expressly require personal service of an application to
dispense with consent on each birth parent. Rule 3171 of the Court Procedures Rules
2006 (ACT) (Rules) provides that service of the application and supporting affidavit must
be served 28 days before the application is heard. The rule does not require personal
service, which is consistent with the statute itself not containing such a requirement.
7. However, r 6008(3) of the Rules provides that if an application in a proceeding is to be
served on a person who is not an active party, the application must be served personally
unless the Court otherwise orders, and not later than two days before the return date.
Neither birth parent were active parties in the proceeding (as neither had filed any notice
of intention to respond).
8. In this case, the evidence before the Court (an affidavit of service) established that the
birth mother was personally served with notice of the application for dispensation of her
consent. On 28 March 2023, she was personally served with notice that the hearing of
this application was listed for 27 April 2023. She did not appear at the hearing, but I am
satisfied that the application in proceeding and its return date were properly brought to
her attention and that the Director-General complied with the Rules pertaining to service.
9. In respect of the birth father, orders for substituted service were made on 24 March 2023.
Pursuant to those orders, the birth father was served by three means:
(a) By email to two email addresses known to the Director-General to be used by the birth father;
(b) By text message to the mobile phone number known to be used by the birth father; and
(c) By post to the address of the parents of the birth father, where he was known to reside intermittently.
10. The affidavit of service deposed to service at two email addresses, each of them incorrect
by reason of a typographical error in respect of the birth father’s surname which formed
part of each email address. This appears to have arisen from orders that were recorded
on the bench sheet on the court file, which contained the same typographical error in each of the email addresses. That error was then replicated when the affidavit of service
was prepared.
11. Fortunately, however, the solicitor who affirmed the affidavit of service on 11 April 2023
followed best practice in what was included in the affidavit. By that I mean that she took
the trouble to annex to the affidavit both the documents that she served and the email
she sent which attached those documents. I have been able to discern from the
solicitor’s email itself that the documents were in fact sent to the correct email addresses.
I am therefore satisfied that the birth father has been properly served in compliance with
the orders for substituted service.
12. The evidence established that each birth parent was served more than 28 days before
the hearing. Neither appeared at the hearing.
The Court’s power to dispense with the requirement for a parent’s consent
13. Under s 35(1)(c) 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.”
14. Detailed consideration have previously been given to those words in the case of In the
matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25. At [58], I
concluded that they meant “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.” The
Director-General did not argue that any different interpretation applied in the present
case.
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:
5 Best 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. Section 6 of the Adoption Act contains mandatory, additional considerations if the child
or young person is of Aboriginal or Torres Strait Islander descent. On the evidence in
support of the application, the considerations in s 6 do not apply to XSE.
The evidence
17. Each of the matters the subject of s 5 of the Adoption Act has been addressed in the
separate reports provided for each child which form the substance of the affidavits of the
following:
(a) Ms Jamie Edwards, a permanency specialist who has been employed within the ACT Together consortium since 2020 (and involved in XSE’s case since
September 2021); and
(b) Ms Nerida McCarthy-Nielson, the relevant case manager within the adoption and permanent care team of Child and Youth Protective Services.
18. 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. I have expressly stated where I have actively
accepted an opinion of either Ms Edwards or Ms McCarthy-Nielson.
Is adoption in the best interests of XSE?
The likely effect of the decision on XSE’s life course, taking into account the need to
preserve her cultural inheritance, personal identity and sense of belonging
19. As I have stated, XSE has lived with her current foster carers since she was eight months
old. Although she has knowledge that her foster carers did not give birth to her,
psychologically, her foster carers are the only parents she has ever really known.
20. Given that connection and history, it is not practicable or suitable, now, to contemplate a
move to live with other biological family members (a matter discussed more fully below),
and neither of the birth parents have demonstrated any ability or willingness to care for
XSE.
21. There are no cultural connections that require particular consideration.
22. XSE is in the process of forming her personal identity. The proposed adoptive parents
fully support an open adoption now and into the future, meaning that relationships with
other half-siblings and biological family members are encouraged. These are considered
further below.
XSE’s sense of belonging is likely to be enhanced by an adoption order, particularly as
she grows older and into adolescence. Overall, the effect of a decision in favour of
adoption on XSE’s life course is likely to be positive, primarily due to the enhanced sense
of security and stability afforded by an adoption order.
XSE’s age, level of understanding, level of maturity, gender, personal characteristics and
individual circumstances
24. XSE is eight years old. She has some understanding of who her birth parents are. The
proposed adoptive parents have laid the foundations for developing that understanding
as XSE matures, with a special box that has photos, cards and other memorabilia, as
well as a baby book or life story book, which XSE and the foster carers completed
together.
25. In terms of XSE’s individual circumstances, she is the fourth child born to the birth
mother. Her three older maternal siblings have all been removed from the birth mother’s
care. Initially, XSE and her oldest sister were placed in foster care together. However,
her oldest sister subsequently transitioned to live with her other two siblings and have
remained in foster care since in a different placement, with similar long-term care and
protection orders made until they each attain the age of 18 years. XSE’s sibling
attachment with her three elder siblings has been supported by ongoing contact.
26. XSE is the third child born to the birth father. The first of her paternal siblings died while
in the care of the birth father and his mother, who also later died. The second of the
paternal siblings has been in the care of XSE’s paternal grandparents since he was four
months old, and they have an enduring parental responsibility order in respect of him.
XSE does not presently have any contact with her elder brother or her paternal
grandparents.
27. XSE also had a younger brother, born to both her birth parents after XSE. He died at
three months of age while in the birth mother’s care, residing in crisis accommodation at
the time.
XSE’s family circumstances are discussed in further detail in the considerations that
follow, insofar as they are relevant.
XSE’s cultural, physical, emotional, intellectual, and educational needs
29. Although XSE’s start in life was challenging due to her birth mother’s drug and
methadone use, she has since managed to meet her developmental milestones in the
expected timeframes. She wears glasses but it otherwise a healthy girl, with annual
reviews by a paediatrician and check-ups at the dentist.
In terms of preserving XSE’s cultural identity, no cultural needs have been identified for
XSE deriving from either birth parent.
XSE’s emotional and intellectual needs are being met through the stable placement with
her proposed adoptive parents and their investment in her development. She is
described in the reviews as a sensitive and intelligent child who thrives on routine and
consistency. She speaks English and French at home.
The proposed adoptive parents have attended to XSE’s educational needs in ways that
demonstrate they view her as their most treasured child. By way of a non-exhaustive
summary of the evidence, she has been given every opportunity to pursue her
enthusiasm for life and learning, whether it be skiing trips, ballet or swimming lessons,
puzzles during lock-down, French cooking lessons or looking after a pet. She attends a
primary school with a less structured pedagogical approach, which appears to have
suited her. XSE has had a variety of opportunities for interstate and international travel,
and participates in all the things that children generally love, such as the beach,
waterslides, trampolines or visits to many of the galleries, museums, cafes and
restaurants in and around Canberra.
33. I am satisfied that XSE’s needs are being thoughtfully met through the independent
efforts of her foster carers and that they will continue to give her needs the careful
consideration that has been evidenced to date following any order for adoption.
XSE’s views
34. XSE has known her foster carers as her parents, with an understanding that she has a
birth mother and father that she has not seen in a long time. XSE’s view of her family is
that this is her “normal”. To the extent that her views are able to be sensitively
ascertained, it is reasonable to assume that XSE would desire legal permanency in the
family in which she has lived for most of her life and to which she has strong attachment.
The likely effect of the decision on XSE’s relationship with birth parents, siblings other
relatives and carers or other significant people in her life
XSE does not currently have a relationship with either of her birth parents. XSE’s foster
carers have always supported whatever opportunities there may be for XSE to have a
relationship with any members of her biological family. As such, any decision in relation
to adoption is unlikely to have any effect on whether a relationship develops in the future
with either of XSE’s birth parents.
36. The foster carers have succeeded in building and maintaining a loving and supportive
sibling attachment between XSE and her maternal half-siblings, to the point where XSE
refers to the foster carers of those siblings as aunt and uncle. An adoption order is not
expected to have any effect in the continuation of XSE’s relationship with those siblings.
37. XSE has some contact with her maternal grandmother and maternal uncle and has
recently been made aware of her paternal half-sibling, residing with XSE’s paternal
grandparents.
XSE’s paternal grandparents previously applied to have XSE placed in their care in
August 2017 and were assessed as suitable. A transition plan was then created.
However, at the time, XSE had already been placed with her foster carers for 21 months.
Because XSE had suffered a period of instability and disruption in the first eight months
of her life, and following an extensive review, the decision was made that it was
preferable for her to remain with her current foster carers rather than to transition her to
kinship carers. That decision was obviously disappointing for the paternal grandparents,
and they have since chosen not to maintain contact with XSE. She has not had any
contact with them since November 2017. It is not to be assumed from that lack of contact
that the absence of present connection is due to any lack of love or interest in XSE.
Experience suggests that people deal with painful events in different ways and it is clear
that the paternal grandparents are family-oriented people, as they are already caring for
XSE’s paternal half sibling. Whatever the reasons, that choice may well change in the
future and the evidence before the Court established that the foster carers are very
supportive of re-establishing biological family connections post adoption. The evidence
of Ms Edwards, which I accept, was that she holds no concerns in relation to contact with
those members of XSE’s biological family continuing post-adoption.
39. Taken as a whole, there is consistency of strong inter-connected associations between
foster families and siblings, so that the likely effect of the decision on those relationships
appears to be minimal. There is no connection between XSE and her birth parents,
paternal grandparents and paternal half-sibling. Either way, any adoption order is
unlikely to have any significant impact. This is because the foster carers have
demonstrated an intention to ensure that XSE’s relationships with all of her family
members are maintained or developed. An adoption order would not close off
opportunities for any relationships with XSE’s biological family to be re-established in the
future.
XSE’s relationship with the proposed adoptive parents
40. XSE’s relationship with her foster carers is the same as any natural parent/child
relationship. They are her primary attachments. The grant of an adoption order would
serve to remove any doubt or uncertainty about the legitimacy of that relationship that
might arise as XSE grows up. I consider that the cementing of XSE’s relationship with
her proposed adoptive parents is a consideration strongly in her best interests.
The suitability and capacity of the adoptive parents to meet XSE’s needs
41. 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 XSE.
42. The foster carers are meticulous in their documentation of XSE’s growth and
development. They take pride in recording XSE’s life with both her foster family and birth
family through photos, stories, books and newsletters. They have explained XSE’s
family circumstances to her at times when they feel she is ready to understand them.
They have researched extensively and participated in courses and support groups for
foster and adoptive parents so that they can better support and assist XSE in
understanding her life story and her sense of self as she matures and learns about how
she came into their care. Through the years of reports and reviews that have been put
before the Court, the love and devotion from these two highly capable individuals to XSE
is evident. The proposed adoptive parents have fulfilled the role of highly suitable and
capable parents to XSE for many years and there is no doubt that they will continue to
do so following the making of any adoption order.
The alternatives to adoption for XSE to secure permanent family arrangements
43. As the Director-General’s delegate, Ms McCarthy-Nielson has deposed to the
alternatives to adoption that have been considered since XSE was two years old.
The lack of any connection with XSE’s biological parents for many years, combined with
the history of neglect of other children and historical substance misuse means that
reconnection with a view to restoration to the birth parents is not a realistic alternative.
45. At this stage, there is also no real prospect of XSE being placed with any other kinship
carer, such as her paternal grandparents. It is in XSE’s best interests for the future that
she remain with her current foster carers, with or without an adoption order.
46. An enduring parental responsibility order has been considered. The assessment was
that XSE has been given the very best opportunity for a healthy and prosperous life with
her current foster carers and that this should be made life-long. I agree. It is important
for XSE’s security and identity within her family unit to be embedded while she is
younger, and that she knows her adoptive parents are her parents for life.
The continuity and sense of belonging that comes from a child having stable emotional and physical living conditions
47. XSE already has stable emotional and physical living conditions. As has been stated in
different ways throughout these reasons, an adoption order will serve to further reinforce
the permanency and finality of this stability and continue the sense of belonging that XSE
already has as she grows older and understands more about her biological family.
The need to protect XSE from physical or psychological harm associated with exposure to abuse, neglect or family violence.
48. As XSE 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 XSE from physical
harm is now historical.
49. The view of the delegate was that in the event that her biological parents re-establish
meaningful communication with XSE at a later stage in her life, adoption would serve to
buffer XSE from any psychological harm that might arise from mixed messages
potentially presented by her birth parents. That concern may fall within a broad reading
of this criterion and provides some further support for the certainty of an adoption order.
However, I have ultimately placed little weight on that possibility because it is somewhat
hypothetical and what will be more significant (in my view) is the foster carers’ open and
supportive attitude to any connection with XSE’s birth parents. I have confidence in their
ability to navigate those challenges with XSE regardless of whether any adoption order
is made.
50. Having considered each of the mandatory considerations, I am persuaded that adoption
is overwhelmingly in XSE’s best interests and that a dispensation order in respect of the
requirement for the birth parents’ consent to her adoption is therefore necessary.
Conclusion
51. 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 respondents, the birth mother and birth father of XSE, to her adoption by her current foster carers. (2) Proceeding AD 5 of 2022 is listed on Friday 2 June 2023 at 3.30pm for the hearing of the application for adoption orders to be made in relation to XSE pursuant to Div 3.6 of the Adoption Act 1993. (3) There is no order as to costs. I certify that the preceding fifty-one [51] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.
Associate:
Date: 18 May 2023
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