In the matter of YL

[2023] NSWSC 787

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of YL [2023] NSWSC 787

Hearing dates:

In Chambers

Date of orders:

6 July 2023

Decision date:

06 July 2023

Jurisdiction:

Equity - Adoptions List

Before:

Black J

Decision:

Orders sought in application not made.

Catchwords:

FAMILY LAW – Children – Adoption – Where adoption order made in a Hague Convention country – Where order not obtained in accordance with the Hague Convention – Whether declaration of recognition of foreign adoption can be made

FAMILY LAW – Children – Adoption – Where adoption alternatively order sought ab initio – Where evidence not led to satisfy ss 8 and 90 of the Adoption Act 2000 (NSW) – Whether adoption order can be made

Legislation Cited:

- Adoption Act 2000 (NSW), Ch 2 Pt 2, Sch 1, ss 8, 28, 29, 30, 67, 87, 90, 91, 103, 105, 108, 109, 116, 117, 118

- Children and Young Persons (Care and Protection) Act 1998 (NSW)

- Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, opened for signature 29 May 2023 (entered into force 1 May 1995), art. 17, 23

- Family Law Act 1975 (Cth)

- Family Law (Hague Convention of Intercountry Adoption) Regulations 1998 (Cth), Sch 2, cl 4

- Family Law (Bilateral Arrangements—Intercountry Adoptions) Regulations 2023 (Cth), s 5

Cases Cited:

- Re C and the Adoption Act [2007] NSWSC 768

- Adoption of CAR [2018] NSWSC 1552

Texts Cited:

• M Davies et al, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th ed, 2020) 764 [30.37]

Category:

Principal judgment

Parties:

LL (First Plaintiff)
WD (Second Plaintiff)
Department of Communities and Justice (Intervener)

Representation:

Solicitors:
Avantro Solicitors (First and Second Plaintiff)
Crown Solicitor’s Office (Intervener)

File Number(s):

2023/74220

Judgment

Nature of the application and evidence

1. By Summons filed on 2 March 2023, the Plaintiffs, to whom I will refer as “LL” and “DW”, sought a declaration that an adoption order or adoption compliance certificate issued in the People’s Republic of China on 30 October 2014 in respect of a child, to whom I will refer as “YL”, complied with ss 108 and 109 of the Adoption Act 2000 (NSW) (“Adoption Act”) or alternatively s 116 of the Adoption Act. It appears that YL’s birth parents are resident in China and they are not party to the application.

2. The application is supported by an affidavit of LL dated 2 March 2023. Her evidence is that YL was born in August 2011 in the People’s Republic of China, and that the adoption relationship came into effect in October 2014. LL’s evidence is that LL was then a resident of the People’s Republic of China and domiciled in the People’s Republic of China and she moved to Australia on 13 February 2016 and married DW in April 2016. Her evidence is that DW and YL are Australian citizens and LL is a permanent resident of Australia and that YL was the third daughter of her nephew and she is YL’s biological aunt (I interpolate, more precisely, YL’s great-aunt).

3. LL also gives evidence of the steps involved in the adoption and her evidence is that, due to the passage of time since the adoption application in 2014, she no longer has a copy of the adoption application form or other documents. It is perhaps surprising that, in a matter of the significance of an adoption, the adopting party would not retain the documents for even nine years. LL also gives evidence, by way of submission, that she followed all legal requirements required for the adoption process in the People’s Republic of China. She also gives evidence in support of a change of name of YL, which it will not be necessary to address given the conclusions I reach on other grounds.

4. At the Court’s request LL and DW, through their solicitors, made initial submissions in respect of the application. Those submission addressed the factual background to the adoption and rely on several matters which are not established by evidence, but it is also not necessary to address that difficulty given the conclusions that I reach on other grounds. At the Court’s invitation, the Secretary, Department of Communities and Justice intervened in the proceedings and, on 14 April 2023, I joined the Secretary as intervenor in the proceedings under s 118 of the Adoption Act. The Secretary made submissions on 13 June 2023. The Secretary submits, and I accept for the reasons noted below, that the orders sought by LL cannot be made. L and DW were given the opportunity to make further submissions, and I address those submissions below.

Application under ss 108-109 of the Adoption Act

5. As I noted above, LL’s and DW’s application primarily relies on ss 108 and 109 of the Adoption Act. As the Secretary points out in submissions, Chapter 2 Part 2 of the Adoption Act relates to intercountry and overseas adoptions. Section 103 provides for the object of Divisions 1 to 3 of that Part, namely:

“To provide for the application of provisions of State law that have effect, or comparable effect, to certain provisions of Commonwealth law.”

6. Section 105 of the Adoption Act relevantly provides:

“Except as provided by this Act, the adoption of a person (whether before or after the commencement of this section) in a country outside Australia does not have effect for the purposes of the law of the State.”

7. Section 108 of the Adoption Act in turn provides:

“108 Recognition of adoption of a child from a Convention country in that country

(1)    This section applies if—

(a)    an adoption (whether before or after the commencement of this section) by a person who is habitually resident in the State, of a child who is habitually resident in a Convention country, is granted in that country, and

(b)    an adoption compliance certificate issued (whether before or after the commencement of this section) in the Convention country in which the adoption is granted is in force for the adoption.

(2)    Subject to section 110, the adoption is recognised and effective, for the law of the State, on and from the day the certificate becomes effective.”

8. As the Secretary points out, the term “Convention” is defined in the Dictionary to the Adoption Act to mean the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption signed at the Hague on 29 May 1993 (“Convention"), the English version of which is replicated in Schedule 1 of the Adoption Act. The People’s Republic of China became a “Convention country” as defined in the Adoption Act, by reference to the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), on 1 January 2006. The term “adoption compliance certificate” is also defined in the Dictionary of the Adoption Act to mean, in this context, a certificate issued in accordance with article 23 of the Convention. Article 23 of the Convention provides:

“1.    An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognised by operation of law in the other Contracting States. The certificate shall specify when and by whom the agreements under Article 17, sub-paragraph c, were given.

2.    Each Contracting State shall, at the time of signature, ratification, acceptance, approval or accession, notify the depositary of the Convention of the identity and the functions of the authority or the authorities which, in that State, are competent to make the certification. It shall also notify the depositary of any modification in the designation of these authorities…”

[emphasis added]

9. Article 17 of the Convention in turn provides:

“Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if—

a.    the Central Authority of that State has ensured that the prospective adoptive parents agree,

b.    the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin,

c.    the Central Authorities of both States have agreed that the adoption may proceed, and

d.    it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State.”

10. Returning to the Adoption Act, s 109 provides:

“109 Effect of recognition

For the purposes of the law of the State, an adoption of a child that is recognised and effective under section 108—

(a)   is to be treated as having the same effect as an adoption order made under this Act, and

Note—

See Part 11 of Chapter 4, especially section 95 (General effect of adoption orders) and cf Articles 26 and 27 of the Convention.

(b)    if the law of the Convention country where the adoption was granted provide that the adoption of the child terminates the legal relationship between the child and the individuals who were immediately before the adoption, the child’s parents—the relationship is terminated.”

11. The Secretary also refers to Re C and the Adoption Act 2000 [2007] NSWSC 768 (“Re C”), where Palmer J considered the effect of these sections. His Honour noted (at [19]) that, if an adoption compliance certificate had been issued by the relevant authority, the adoption would be valid in New South Wales, by force of s 108(2), without any order or declaration of validity. However, in that case, the agreement of the Central Authority in NSW had not been sought before proceeding with an adoption in China, and the adoption registration certificate could not and did not comply with Article 17(c) of the Convention. His Honour held that the adoption registration certificate and the adoption orders were not valid under s 108 of the Adoption Act (at [26]) and observed (at [30]):

“The evident policy of the Act is that in the case of the adoption of a child from a Convention country, the validity of the adoption is to be determined according to whether compliance with the requirements of the Hague Convention has been properly certified in accordance with the Convention, and not according to the provisions of domestic law.”

12. Turning now to the parties’ submissions, the solicitors for LL and DW note the application of s 108 of the Adoption Act in respect of the adoption of a child who is habitually resident in a Convention country where an adoption compliance certificate is issued in that Convention country. They also note the effect of s 109 of the Adoption Act in that respect and note that the People’s Republic of China is a Convention country and party to the Convention. They fairly acknowledge that the adoption registration certificate issued by the People’s Republic of China dated 30 October 2014 does not comply with Article 17(c) of the Convention. They submit that:

“The Court should exercise discretion and find that the Adoption Registration Certificate, although it does not strictly comply with Article 23 insofar as specifying when and by whom the agreements were given on the certificate in respect of the Central Authorities of both States, however, should nonetheless be found as valid as satisfying Article 17(c) by grant of [YL’s] Australian residency and subsequent grant of Australian citizenship.”

13. The difficulty with that proposition is that the Court is here determining whether the requirements of the Adoption Act are satisfied and the statute does not confer a discretion generally to treat them as satisfied if they are not satisfied.

14. The Secretary submits, and I accept, that the declaration sought by LL and DW that the adoption order or adoption compliance certificate complied with ss 108 and 109 of the Adoption Act cannot be made. First, LL was not habitually resident in New South Wales at the time of the adoption of LL in China, as required by s 108(1)(a) of the Adoption Act. As the Secretary points out, LL did not move to Australia until approximately 15 months later, on 13 February 2016. Second, as LL’s and DW’s solicitors acknowledge, the adoption registration certificate does not meet the requirements of Article 23 of the Convention and is not an adoption compliance certificate for the purposes of the Adoption Act, because it does not specify when and by whom the agreements under Article 17(c) were given. As the Secretary points out, this is not merely a formal defect. No such agreements were specified because no such agreements existed, where the Central Authority in Australia (or New South Wales) had no involvement in the adoption, which was concluded wholly in China without reference to any Australian adoption authority. The Secretary submits, and I accept, that the policy of the Adoption Act is that the validity of an adoption is to be determined according to its compliance with the Convention, and the adoption registration certificate does not here comply with the Convention. This case is not distinguishable from Re C in that respect, although I recognise that that finding does not exclude the possibility that the Chinese adoption would be recognised under general law conflict of law principles, so far as it took place as a Chinese domestic adoption between Chinese residents and in accordance with Chinese law. The parties made no submissions as to the application of those principles and I reach no decision in that regard.

15. The solicitors for DW and LL alternatively submit that the Court should make rectification orders to the adoption registration certificate so that it complies with the requirements of the Convention. With respect, it is not apparent to me that the Court has any jurisdiction that would allow it to make rectification orders in respect of the exercise of powers by a Chinese regulatory authority or Court in respect of an adoption in China. Second, there is no factual basis for rectification, since the agreement with an Australian Central Authority necessary to satisfy Article 17(c) of the Convention did not exist.

Alternative application under s 116 of the Adoption Act

16. Section 116 provides for the recognition of certain other foreign adoptions as follows:

“116 Recognition of foreign adoptions in countries other than Convention countries and prescribed overseas jurisdictions

(1)    This section applies to an order for the adoption of a person—

(a)    that was made (whether before or after the commencement of this section) in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction, and

(b)    if, at the time at which the legal steps that resulted in the adoption were commenced, the adoptive parent or parents—

(i)    had been resident in that country for 12 months or more, or

(ii)    were domiciled in that country.

(2)    An order for the adoption of a person to which this section applies is to have the same effect as an adoption order made under this Act if—

(a)    the adoption is in accordance with and has not been rescinded under the law of that country, and

(b)    in consequence of the adoption, the adoptive parent or parents, under the law of that country, have a right superior to that of the adopted person’s birth parents in relation to the custody of the adopted person, and

(c)    under the law of that country the adoptive parent or parents were, because of the adoption, placed generally in relation to the adopted person in the position of a parent or parents.

(3) Despite subsection (2), a court (including a court dealing with an application under section 117) may refuse to recognise an adoption under this section if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice.

(4)    A court that refuses to recognise an adoption may, at the time of refusing or at a later time, give leave to the applicant to seek an order for the adoption of the child concerned. …

(5) In any proceedings before a court (including proceedings under section 117), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia that is not a Convention country or a prescribed overseas jurisdiction complies with subsection (1).

(6)    Nothing in this section affects any right that was acquired by, or became vested in, a person before the commencement of this section.”

17. A “prescribed overseas jurisdiction” is defined with reference to s 5 of the Family Law (Bilateral Arrangements—Intercountry Adoption) Regulations 2023 (Cth) and in predecessor provisions. As noted above, the People’s Republic of China is presently within the definition of a “Convention country” and, the Secretary points out, it was formerly defined as a prescribed overseas jurisdiction under previous regulations.

18. Section 117 provides that any party to an adoption order made outside Australia may apply to the Court for a declaration that the order complies with s 116. As the Secretary also points out, in Re C Palmer J held that s 116(1) does not apply to an order made in a Convention country (at [29]). Where an order for adoption had been made in that case in China, which was a Convention country at the time the adoption order was made, his Honour declined to make a declaration under s 117. In Adoption of CAR [2018] NSWSC 1552 (“CAR”), Darke J similarly held (at [8]) that the text of s 116(1)(a) conveys a clear meaning, that the section applies only to an order for the adoption of a person that was made in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction. His Honour also observed (at [9]) that:

“Moreover, it appears to me that a policy of Part 2 of Chapter 5 of the Act, ascertained from the text and structure of the Act itself, is that in the case of an adoption order made in a Convention country, the validity of the adoption is to be determined according to compliance with the Convention, rather than with domestic law (see [Re C] at [30]). This policy would be undermined if adoption orders made in Convention countries but not made in accordance with the Convention were recognised under s 116 of the Act. I note that CAR sought to distinguish Re C (supra) on the basis that the case concerned a child under the age of 18 years able to seek an order under s 108 of the Act. That may be so, but I consider that recognition of any overseas adoption order from a Convention country that was not procured in accordance with the Convention would be inconsistent with the policy of the Act outlined above.”

19. The Secretary submits, and I accept, that LL’s and DW’s alternative claim that the adoption complies with s 116 of the Adoption Act must fail, because s 116 applies to an order for the adoption of a person made in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction. That section does not apply, where the People’s Republic of China is a Convention country. That position is recognised in M Davies et al, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10^th ed, 2020) at [30.37].

Further alternative application

20. As a further alternative, the solicitors for LL and DW submit that s 87 of the Adoption Act would apply as LL is a relative of YL, being her biological aunt, and the consent of the Secretary to an application for an adoption order is not required as the Court would be satisfied that YL’s best interests will be promoted by the adoption and would make an adoption order in favour of DW and LL. The Secretary rightly points out that (as I noted above) LL is not YL’s aunt, but her great aunt, as YL is her nephew’s daughter. Section 87 of the Adoption Act goes no further than to provide that the consent of the Secretary to an application for an adoption order is not required if the applicant is a relative of the child. It does not provide an affirmative basis for making an adoption order, without more.

21. In submissions in reply, LL and DW also sought to rely on ss 28, 29 and 90 of the Adoption Act. These provisions relate to the making of an adoption order, ab initio, by a New South Wales court. I will assume, without deciding, that a New South Wales Court could make such an order in respect of a child who has already been adopted under a foreign law, where the requirements for recognition of that adoption under the provisions I have addressed above are not satisfied.

20. Section 28 of the Adoption Act specifies certain requirements where an adoption application is brought by a couple, but the satisfaction of those requirements is necessary but not sufficient for an adoption order. Section 29 requires that, before making an adoption order in favour of a relative, the Court be satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child, in parallel to the requirements under ss 8 and 90 of the Adoption Act. Section 90 of the Adoption Act prohibits the making of an adoption order unless it is satisfied of specified matters, which are largely not addressed by evidence led by LL and DW.

21. LL and DW also submit that the adoption registration certificate evidences consent by YL’s birth parents. I cannot accept that submission where there is no evidence of the circumstances in which that certificate was issued and no reason to assume, for example, compliance in China with the counselling requirements in respect of such consent under the Adoption Act. LL and DW alternatively submit that the Court should dispense with YL’s birth parents’ consent under s 67(1)(d) of the Act, because YL has lived with LL for the last seven years. That section only applies where the applicants are authorised carers or the guardians for the child. The term “authorised carer” is defined as any person who has care and responsibility for a child under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998 (NSW), or has responsibility for the day-to-day care, welfare and development of a child under the Family Law Act 1975 (Cth) and it is not apparent that LL or DW fall within either category, where it appears LL’s care for YL arises under her previous adoption in China and not otherwise. That section also requires that the child has established a stable relationship with the relevant carers or guardians, and that the adoption of the child by those carers or guardians will promote the child's welfare, and that the making of the consent dispense order is in the best interests of the child. Comprehensive evidence as to those matters is rightly required and generally led in adoption applications and has not been led here.

22. I recognise that LL and DW have cared for YL for a considerable time but that, without more, is not sufficient basis for an adoption order under the Adoption Act, if it were open to the Court to make such an order in respect of a child who had already been adopted under foreign law. LL and DW do not here lead evidence to establish that the requirements of s 8(2) of the Adoption Act are satisfied or to address the matters specified in s 90 of the AdoptionAct. No report by an authorised person has been provided to the Court under s 91 of the Adoption Act, which prohibits the Court making an adoption order for a child under 18 years of age unless, inter alia, a report in writing concerning the proposed adoption has been provided to the Court by the applicant, and that report has been prepared by the Secretary or an authorised person. There is no evidence that YL’s birth parents consent to an Australian adoption of YL, or that they have been given notice of this application, and no basis is shown to dispense with their consent under Australian law for the reasons noted above. No adoption plan has been prepared and there is no evidence that arrangements are in place for continuing birth family contact.

23. I put aside the fact that this alternative relief sought in that respect is not sought in the Summons filed by the Plaintiffs, where that Summons could be amended. The more fundamental difficulty is that it is not presently possible to make the orders for adoption sought by LL and DW under other provisions of the Adoption Act, because LL and DW have not established the matters necessary for an adoption order as set out in ss 8 and 90 of the Adoption Act.

Order

26. For these reasons, I dismiss the application. I reserve, to the extent possible, liberty to LL and DW to bring further proceedings, if they wish to lead evidence of the kind that would ordinarily be led in an adoption application, including evidence of the birth parents’ consent to the Australian adoption and a report complying with the requirements of s 91 of the Adoption Act. In reserving that liberty, I express no view as to whether a new adoption order could be made in Australia, where an adoption order has already been made in China, or whether there would be any utility in making such an order.

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Decision last updated: 07 July 2023