In the matters of the adoption of IMN, HM and HI
[2023] ACTSC 115
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | In the matters of the adoption of IMN, HM and HI |
| Citation: | [2023] ACTSC 115 |
| Hearing Date: | 27 April 2023 |
| Decision Date: | 18 May 2023 |
| Before: | McWilliam J |
| Decision: | (1) In proceedings AD 9 of 2022, 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 parents of IMN, to his adoption by his present foster carers, the applicants in the proceeding.
(2)
In proceedings AD 7 and 8 of 2022, 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 HM and HI, to their adoption by his present foster carers, the applicants in each proceeding.
(3)
Proceedings AD 7, 8 and 9 of 2022 are each listed on 2 June 2023 for the hearing of the application for adoption orders to be made pursuant to Div 3.6 of the Adoption Act 1993.
(4) There is no order as to costs.
| Catchwords: | ADOPTION – application to dispense with consent of birth |
| parents for three children who have lived with foster carers for | |
| many years – whether adoption necessary in the best interests of the child – where children have strong attachment to foster carers | |
| and where no realistic prospect of restoration to birth parents at | |
| any time in the future – where adoption would promote security and stability as children move into adolescence – dispensation | |
| orders made | |
| Legislation Cited: | Adoption Act 1993 (ACT) ss 6, 26, 30, 35, 64, 97, 112 |
| Convention on the Rights of the Child 1989 art 12 | |
| 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] (First Respondent in AD 7, 8 and 9 of 2022)) | |
| [Not Published] (Second Respondent in AD 9 of 2022) | |
| Representation: | Counsel |
| D Perks (Applicant) | |
| No appearance (First Respondent in AD 7, 8 and 9 of 2022) | |
| No appearance (Second Respondent in AD 9 of 2022) | |
| J Provost (Child’s Representative) | |
| Solicitors | |
| ACT Government Solicitor (Applicant) | |
| No appearance (Respondent) | |
| Legal Aid ACT (Child’s Representative) | |
| File Number: | AD 7 of 2022; AD 8 of 2022; AD 9 of 2022 |
| McWilliam J: |
1. The three children the subject of these proceedings are maternal siblings who have
resided together for many years with the same foster carers. Long term parenting orders
have been made in respect of each child in favour of the Director-General, Community
Services Directorate (Director-General) which operate until each child turns 18.
2. By way of separate proceedings commenced for each child (AD 7 of 2022; AD 8 of 2022;
AD 9 of 2022), the foster carers are now seeking to adopt the three children.
3. In order to comply with the privacy (s 64) and confidentiality (ss 97 and 112) provisions
of the Adoption Act 1993 (ACT) (Adoption Act), the children will be referred to in these
reasons as “IMN” (presently nine years old), “HM” (presently seven years old), and “HI”
(presently six years old).
The applications
4. The applications presently before the Court are interlocutory proceedings seeking the
dispensation of the statutory requirement for parental consent to the adoption of each of
the three children. The application in each proceeding was filed on 19 December 2022.
The Director-General is the moving party.
5. Before the Court is empowered to make any adoption order in favour of the applicant
foster carers, the birth parents must each provide consent to the adoption: s 26 of the
Adoption Act.
6. In proceedings AD 9 of 2022:
(a) The birth mother does not consent to her child being adopted by their foster carers.
(b) IMN’s birth father has previously expressed sentiments to the effect that he is ‘on board’ with the adoption but has not provided formal consent pursuant to the
requirements of s 30 of the Adoption Act, which requires consent to be in a particular form. He has communicated to those on behalf of the Director-
General that he just cannot bring himself to sign the paperwork.
7. In proceedings AD 7 and 8 of 2022:
(a) The birth mother does not consent to her children being adopted by their foster carers.
(b) HM’s and HI’s birth father consents to the adoption by the foster carers and has executed the formal consent mid-last year.
8. Accordingly, the relief sought by the Director-General is an order pursuant to s 35 of the
Adoption Act dispensing with the requirement for the consent of the birth mother in
respect of all three children, and the birth father in respect of IMN.
Notice of the applications
9. The birth mother for all three children was personally served with notice of the application
on 9 March 2023. The birth father for IMN was personally served with notice of the
application on 8 March 2023.
10. The applications were heard on 27 April 2023, more than 28 days after each parent was
served. Neither appeared at the hearing.
The Court’s power to dispense with consent
11. 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.” That is the ground relied upon by the Director-General in each application.
12. Those words have been interpreted (see In the matter of an adoption of QS (No 2) [2021]
ACTSC 107; 16 ACTLR 25 at [58]) to mean that the Court must be satisfied that adoption
is in the best interests of the child or young person, and therefore it is necessary to
dispense with the statutory requirement for the consent of the person (in this case, the
birth mother and the birth father of IMN).
Issues
13. The overarching issue is whether adoption is in the best interests of each child. 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.
14. These matters will be considered in turn below. In some cases, there are additional
mandatory considerations where the child in question is an Aboriginal or Torres Strait
Islander child (Adoption Act s 6). None of those factors apply to any of the three children
the subject of these applications.
The evidence
15. Comprehensive affidavits have been affirmed in support of each application by Ms Jamie
Edwards, a permanency specialist who has been employed within the ACT Together
consortium since 2020, and by Ms Emma Goodwin the relevant case manager within the
adoption and permanent care team in Child and Youth Protection Services (CYPS) and
the delegate of the Director-General.
Is adoption in the best interests of IMN, HM and HI?
The likely effect of the decision on the children’s life course, taking into account the need
to preserve their cultural inheritance, personal identity and sense of belonging
16. IMN has effectively been cared for by his current foster carers since birth. He was taken
into foster care via emergency action taken by CYPS when he was one week old. For
the first two years of his life, there were ongoing attempts to restore him to the care of
his birth mother. These ultimately failed for various reasons which are explained at
length in the evidence. It is unnecessary at this stage to repeat that history here. IMN
has been the subject of long-term care and protection orders since November 2015.
17. HM and HI have each lived with the same foster carers as their older brother (IMN) since
their respective births. After a number of unsuccessful restoration attempts, final care
and protection orders were made in respect of HM in November 2015 and in respect of
HI in June 2017. HM and HI have a Polish/Russian and Czech cultural background,
which is discussed below in relation to their cultural needs. It suffices to state here that
I am satisfied any existing connection will be preserved through the efforts of the
proposed adoptive parents and their extended family.
18. Having lived with their foster carers for that period of time, the children understandably
view their foster carers as their parents. They each have a well-established sense of
belonging and identity within the foster carers’ family unit. This is evidenced in the stories
they tell, and their drawings (particularly those created by IMN) and the comments they
have made which were included in the annual review reports that were exhibited to the
affidavits. The foster carers are undoubtedly the people to whom the children have
primary attachment, although the foster carers have always been open with the children
about them having a different birth mother and birth father.
19. In many respects then, an order for adoption would not change the daily lives of each of
the children. However, as they grow older and mature, maintaining a sense of belonging
in the family unit will become more important. The decision to dispense with the relevant
birth parents’ consent to adoption as a necessary step in paving the way for adoption will
promote psychological certainty for the children over the course of their lives.
The age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances of each of the children
20. The children are nine, seven and six. The foster carers have shared age-appropriate
information and had discussions with the children over the years regarding their birth
family origins, culture and identity as each child has developed. The children each
understand that they have birth parents, and they have connections to biological extended family (detailed below). The children each have some understanding of what
adoption means, describing it in terms of their “forever family”.
21. There are no personal characteristics for any child that require particular consideration
when considering whether adoption is in the best interests of each child.
The cultural, physical, emotional, intellectual, and educational needs of IMN, HM and HI
22. IMN was exposed to alcohol and substance use whilst in-utero, along with likely in-utero
stress due to family violence experienced by the birth mother. The foster carers have
backgrounds in teaching and child development and have undertaken training in respect
of the impact of trauma on the developing brain. This has given them strategies to assist
IMN in regulating and understanding his anxiety.
23. IMN has a specific physical issue which is being monitored by the foster carers, but he
is generally a healthy child with no major ongoing health issues. He was diagnosed with
mild dyslexia, but the reports indicate that through extra educational support at school
and the commendable efforts of his foster carers in engaging a tutor since 2021, he is
reaching the same developmental milestones as his peers.
24. HI experienced ongoing respiratory medical issues which were attributed to her exposure
to smoking and alcohol during pregnancy. These issues have improved over the
subsequent years. The foster carers attend to HI’s medication needs and have an active
asthma plan for her at school. HI also has a requirement for an eye specialist, and the
foster carers attend to that need.
25. There are no ongoing medical issues for HM. Each child is otherwise up to date with
their immunisations. They have yearly dental checks and an eye test every couple of
years.
26. The children all attend the same primary school, and the reports of their progress as
detailed in the evidence are, on the whole, extremely positive.
IMN’s cultural needs are met through contact and information shared by his birth parents
and his paternal family. In particular, IMN’s paternal grandmother is a positive
connection for IMN, and she wishes to continue to teach him about his cultural
background and birth family story. IMN’s paternal grandfather has given him the family
Coat of Arms for IMN to have and IMN is aware that he is of Irish descent, with relatives
coming to Australia as convicts. IMN has photos of his great-great-grandfather, who was
a veteran of WWII.
28. The cultural heritage of HM and HI is strongly supported by the foster carers and the
assistance of their adoptive paternal grandfather. Together they have been exploring the Slavic and Czech culture and traditions, learning a little bit of the Polish and Czech
languages and singing songs of each culture. HM and HI are learning to play the piano.
The foster carers also explore Russian, Polish and Czech food with the children. They
learn about the traditions in those countries and visit the relevant embassies to
experience the cultural cuisine.
The children’s primary emotional needs are for a safe, stable and loving home, which
they have most definitely found in the foster carers’ household. On the totality 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 needs of the children and have done so for the
past six to nine years. I am satisfied that if an order for adoption were made, the children
would continue to have their needs met by the careful consideration and investment
made by the foster carers in respect of each child that has been evidenced to date.
The views of the children
30. The delegate of the Director-General referred to this criterion being in part reflective of
the United Nations Convention on the Rights of the Child 1989 (art 12), which identifies
that children should have a voice in any matters that affect them.
31. HI has little concept of what adoption is due to her age, development and level of
maturity. However, the two older brothers have each mentioned their desire to all share
the same surname. Being older, IMN has a greater understanding of the significance of
adoption. He has expressed as a personal wish for himself for “adoption”.
32. To the extent that they are able to express them in an age-appropriate way, the views of
the children are entirely consistent with their long-term care placement with their foster
carers moving to adoption.
The likely effect of the decision on the children’s relationship with birth parents, siblings
other relatives and carers or other significant people in their lives
IMN’s birth parents each resided in Queensland for many years although they are no
longer together. The birth mother relocated to Cowra NSW in 2021. IMN has not had
any face-to-face contact with his birth mother since September 2016 and his birth father
since June 2017. HM and HI have not had any contact with their birth mother or birth
father (who are no longer together) since September 2016 or January 2017 respectively.
The birth parents do receive quarterly updates from the foster carers via email.
34. Given those circumstances, the likely effect of the decision on the children’s relationship
with their birth parents is neutral. Although the foster carers have been very supportive
of any ongoing connection with each birth parent, restoration is plainly not an option for any of the children. They require the long-term security and sense of belonging that
adoption can provide.
35. The foster carers have invested significant effort over the years to establish relationships
and naturalise contact with IMN’s birth family members and consider this to be pivotal to
the development of IMN’s identity and sense of belonging, and consequently in his best
interests, regardless of whether adoption takes place for IMN or not. The same may be
said for their efforts with regard to the birth family members of HM and HI. The children
have ongoing contact with their half sibling who lives in Cowra with her father and HM
and HI see their paternal cousins throughout the year and have a good relationship with
their paternal grandmother.
36. It is not anticipated that this would change following any order made for adoption of any
or all of the children. The foster carers have demonstrated both an intention, and an
ability outside statutory oversight, to ensure that any of the children’s meaningful
relationships with their birth family members are maintained.
The relationship of IMN, HM and HI with the proposed adoptive parents
37. The children’s relationship with their foster carers is the equivalent of a natural
parent/child relationship. They are settled in their home life and share a close and secure
attachment with each of the foster carers. They refer to their foster carers as mummy
and daddy and those bonds are strong. An order for adoption would obviously assist in
re-enforcing this relationship and cementing the family unit. Through the many little
benefits that adoption brings, such as the children all being able to have the same
surname, the messaging provided to the children – that the commitment of the foster
carers to the family unit is lifelong – is significantly in the children’s best interests.
The suitability and capacity of the adoptive parents to meet the needs of IMN, HM and HI
38. The foster carers are each on the register of suitable people to adopt in the ACT.
39. To a large extent, their capacity to parent the children and meet their needs has already
been addressed in relation to the other mandatory considerations. It suffices to say that
the foster carers have dedicated their lives over the last six to nine years to raising each
of these children, undertaking parenting courses targeted to their circumstances of
trauma, and altering their living and working arrangements in order to ensure that they
could provide adequate care and attention and develop the bonds of attachment with
each child. They are open and transparent with the three children about their life story.
They are working to preserve cultural connections and family connections wherever
possible. They are reporting to various case managers and biological family members.
They see that the children get sporting, dance, art and travel opportunities. They attend to their various health needs, including the mental development and well-being. It is
exhausting just reading everything that these foster carers do on a daily and yearly basis
for the children. Above all, they have given IMN, HM and HI the safe, stable and loving
family that every child deserves.
The alternatives to adoption for IMN, HM and HI to secure permanent family arrangements
40. It will be clear from what has already been said above that the circumstances of these
children mean that the position has moved beyond any restoration to the biological family
or kinship carers. An enduring parental responsibility order would be a poor substitute
as it is not a life-long commitment and there is no reason why it would be a preferable
alternative. I am satisfied on the evidence that adoption by the foster carers is the course
that is in the best interests of each child.
The continuity and sense of belonging that comes from a child having stable emotional and physical living conditions
41. IMN, HM and HI already have stable emotional and physical living conditions. An
adoption order will serve to further reinforce the permanency and finality of this. This
criterion strongly favours an adoption order being made.
The need to protect IMN, HM and HI from physical or psychological harm associated with exposure to abuse, neglect or family violence.
42. As the children are each the subject of long-term care and protection orders and have
been permanently placed with their current foster carers, the immediate risk of harm is
historical. If an adoption order were not made, the children would continue to live with
their foster carers. However, as the children grow older and their understanding of their
family develops, the change at law may provide what might be described (and has been
so described by those on behalf of the Director-General) as a psychological buffer
against feelings of uncertainty that may creep in, particularly when the children reach
adolescence. Taking this step now is therefore protective of the children’s best interests
into the future.
43. Having considered each of the mandatory considerations, I consider that adoption by the
foster carers is overwhelmingly in the best interests of IMN, HM and HI and that a
dispensation order in respect of the requirement for the birth parents’ consent in respect
of IMN and birth mother’s consent in respect of HM and HI to their adoption is therefore
necessary.
Conclusion
44. For the above reasons, the orders of the Court are as follows:
(1) In proceedings AD 9 of 2022, 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 parents of IMN, to his adoption by his present foster carers, the applicants in the proceeding. (2) In proceedings AD 7 and 8 of 2022, 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 HM and HI, to their adoption by his present foster carers, the applicants in each proceeding. (3) Proceedings AD 7, 8 and 9 of 2022 are each listed on 2 June 2023 for the hearing of the application for adoption orders to be made pursuant to Div 3.6 of the Adoption Act 1993. (4) There is no order as to costs. I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.
Associate:
Date: 18 May 2023
0