Re D; Application of A

[2006] NSWSC 1056

CITATION:	Application of A - re D [2006] NSWSC 1056
HEARING DATE(S):	25 August 2006
JUDGMENT DATE :	11 October 2006
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
DECISION:	Consent of birth mother dispensed with; adoption orders made.
CATCHWORDS:	ADOPTION – whether children should be adopted or left in foster care – whether any general rule that adoption is preferable to foster care – relationship between Adoption Act and Children and Young Persons (Care and Protection) Act – whether adoption clearly preferable to long term fostering in the present case – whether consent of birth mother to adoption should be dispensed with.
LEGISLATION CITED:	- Adoption Act 2000 (NSW) – Chapter 2 s.6, s.7, s.8, Pt 9, s.23, s.51, s.52(1), s.67(1), s.70(1), s.90, s.128, s.129, s.180 - Children (Care and Protection) Act 1987 (NSW) – s.62A - Children and Young Persons (Care and Protection) Act 1998 (NSW) – s.9, s.61, s.62, s.78(1), s.79, s.81, s.83.
CASES CITED:	D v Director General Department of Community Services [2005] NSWCA 474
PARTIES:	Mr and Mrs A, Barnardos – Applicants Ms D – Natural mother
FILE NUMBER(S):	SC 0047/06
COUNSEL:	R.S. Angyal SC – Applicants H.I. Ginges (Sol) – Respondent
SOLICITORS:	Mallesons Stephen Jaques – Applicants Hal Ginges & Co – Respondent

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

ADOPTION LIST

PALMER J.

0047/06 Application of A: re D

JUDGMENT
11 October, 2006

Introduction and Issues

1 This is an application for the adoption of two girls, aged ten and nine, who are sisters. The children’s natural father has consented to the adoption but their natural mother opposes it and refuses to give her consent, as required by s.52(1)(a)(i) of the Adoption Act 2000 (NSW) (“the Act”). Accordingly, there are two parts of this proceeding: an application by the Principal Officer of Barnardos for an order dispensing with the consent of the natural mother, under s.67(1) of the Act, and an application by the proposed adoptive parents for adoption orders under s.23 and Pt 9 of the Act.

2 The two applications are being heard in conjunction, as is permitted by s.70(1)(b) of the Act. As the natural mother’s reason for refusing her consent to the adoptions is the same as her reason for opposing the making of the adoption orders, in this particular case it is appropriate for the two parts of the proceeding to be heard together rather than in stages: the fate of the first application will bear directly upon the fate of the second.

3    For the sake of preserving the anonymity of the parties, as is required by s.180 of Act, I will refer to the proposed adoptive parents as Mr and Mrs A, to the elder child as B, to the younger as C, to the natural mother as Ms D, and to the natural father as Mr E.

4    Mr. Angyal SC has appeared for the Applicants and Mr H. Ginges, solicitor, has appeared for Ms D. I should acknowledge at the outset that I am greatly indebted to both Mr Angyal and Mr Ginges for their careful, thorough and helpful submissions.

5 Ms D does not oppose the application for adoption because she wishes to resume parental care and responsibility of the children herself. On the contrary, Ms D freely concedes that the children have been living happily with Mr and Mrs A for six years, that they love Mr and Mrs A and have formed a strong attachment to them, that they are doing well in their care, and that she herself could not look after them as well as can Mr and Mrs A. Rather, Ms D opposes an adoption order because she says that the children’s interests can just as well be served by leaving them in the care of Mr and Mrs A as foster parents, rather than as adoptive parents. That being so, she says, the Court cannot be satisfied – as it must be, according to s.90(3) of the Act – that to make an adoption order is “clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child”.

6    Ms D does not wish an adoption order to be made because she wants the children to know that she loves them and “because it would feel like I have abandoned them and I haven’t”: T46.7-.48, 48.51-.55, T49.29-.32; affidavit 3 August 2006, paras 7,8. These motives, very understandable in any mother, are concerned primarily with how Ms D’s feelings are affected by the proposed adoptions rather than with what is in the best interests of the children themselves.

7    Nevertheless, whatever the motives of Ms D in refusing her consent, the Court must still be satisfied that:

– Ms D’s consent should be dispensed with under s.67(1)(c) and (2) because “there is serious concern for the welfare” of B and C and “it is in the best interests of [B and C] to override the wishes” of Ms D;

– in the particular circumstances of this case, it would be “clearly preferable in the best interests” of B and C that they be adopted by Mr and Mrs A rather than left in their care as foster parents.

Background

8    B was born in January 1996 and C in March 1997. At first the children lived with Ms D and Mr E. Ms D has a developmental delay and she obtained intensive family support from the Department of Community Services (“DOCS”). In November 1997, DOCS referred Ms D to Barnardos for support after a report that she had severely shaken C.

9    In May 1998, Ms D and Mr E separated. C remained with Ms D and B lived with Mr E.

10    In April 1998, both girls were assessed as developmentally delayed in certain areas. C received speech therapy, occupational therapy and physiotherapy but B received no early intervention. In October 1998, C was diagnosed with mild cerebral palsy and she has received some assistance from the Spastic Centre.

11    In January 1999, Ms D moved into Department of Housing accommodation. There were concerns reported that C was suffering physical abuse. B moved in with Ms D in September 1999. From February 2000 onwards Ms D was provided with regular weekend respite care for the girls.

12    On 26 April 2000, B presented to Nepean Hospital with facial lacerations. According to accounts later given by the girls, B had been pushed through a glass cabinet by Ms D’s then partner. After medical assessment, it was found that B had sustained not only these injuries but other injuries of earlier origin on at least three different occasions. The injuries were potentially serious. Her speech was greatly delayed.

13 C was placed in crisis care while B was in Nepean Hospital. A week later B and C were taken into care under s.62A of the Children (Care and Protection) Act 1987 (NSW). Subsequently they were placed in the care of Mr and Mrs A and that placement was made permanent in January 2001.

14    A report by a child psychiatrist in October 2000 concluded that Ms D and Mr E had a surprisingly similar history of behaviour which put young children at risk. Each had previously had a child removed from their custody on the grounds of abuse and neglect. Each was alleged to have sexually abused a young person and, indeed, Ms D was convicted of a sexual assault on a two year old boy. Both Mr E and Ms D had been classified as heavy drinkers. Ms D’s partner at the time that B suffered her injuries had also previously been investigated for physical abuse of very young children.

15    It is clear that both girls have been traumatised by their experiences while in the care of Ms D. In 2004 they were diagnosed as suffering from childhood Post-Traumatic Distress Disorder and were presenting symptoms such as disassociation, repressed fear and anger, hyper-vigilance and hyper-alertness, anxiety, depression, avoidance and internalising and externalising behaviours. They have on occasions displayed anxiety before and during contact with Ms D, as I shall explain later. Their anxiety levels during contact with Ms D were lessened if a supervisor or Mrs A were present.

16    It is beyond argument that Mr and Mrs A have devoted great love, attention and care to the girls’ physical and emotional wellbeing. B and C are now thriving, with special assistance at school.

17    Mr and Mrs A have four children of their own aged from 32 to 20. Their children form a close family and are supportive of their parents’ decision to adopt B and C, whom they regard as sisters.

18    Ms D agrees that it is in the best interests of the girls that they remain in the care of Mr and Mrs A. The only issue which has been debated in this contest is whether Mr and Mrs A are to care for B and C as their parents or as their foster-parents.

The girls’ relationship with Ms D

19    Ms D clearly wishes to be involved in the girls’ lives and to participate in sporting events, outings, birthdays, Mother’s Day and other family occasions.

20    When B and C were first placed in care in 2000, there was frequent supervised contact between them and Ms D. The frequency of contact was reduced when the girls went into foster care with Mr and Mrs A. On some occasions, supervised access with Ms D went well; on other occasions, the children displayed significant anxiety and their behaviour after access was difficult.

21    On one access day in March 2003, B refused to leave the bathroom in the morning because she did not want to see Ms D, and C was in great distress at school, saying that she did not want to see her mother because she was “scared her Mum would hurt her”. However, there was no serious incident during access that day.

22    Not long after this access visit, Mrs A reported that the girls expressed a desire to be called by the same surname as Mr and Mrs A.

23    In October 2005, Ms D told a care worker that she would like the girls to come back to live with her. In November 2005, during a telephone call to C, Ms D told her that she had bought her a puppy and that the puppy was at her home, waiting for C when C went to live with her. After the telephone call, C said that she was scared. B refused to talk to Ms D on the telephone on that occasion. According to Ms D, B still refuses to talk to her on the telephone.

24    Ms D now says that she has changed her mind about wanting the girls to come to live with her. She says that she now realises that that would not be best for them. However, it is clear that the girls become upset at the thought that it is possible that they may have to go back to live with Ms D. It is beyond argument that they are deeply attached to Mr and Mrs A and their children.

25    There is an additional complicating factor which is not adequately explained. Ms D’s mother, who is a New Zealand resident, has been caring for a daughter of Ms D since the child was removed from Ms D’s care at an early age. In May this year, Ms D’s mother wrote to Barnardos saying that she and her husband (not Ms D’s father) wished to apply for shared custody of B and C. In her affidavit of 3 August 2006, Ms D said:

“My mother, who is in New Zealand, said to me: ‘I’m going to come over, and I’ll look after the girls myself if I have to’. My mother looks after other children. She is a very strong and able person.”

26    Ms D said in cross examination that her mother had not told her that she was going to write to Barnardos seeking custody of B and C. She said that she did not know whether her mother intended to proceed with that plan.

27    B and C do not know Ms D’s mother and her family in New Zealand.

The attitude of the children to adoption

28    B and C have not given evidence. Statements from which their attitudes to adoption may be inferred have been reported by Mrs A, who gave evidence and was cross examined. I must say at once that I was very favourably impressed by Mrs A. Despite her obvious deep attachment to B and C, she endeavoured to be as objective as possible when addressing their needs. Significantly, she displayed no animosity at all towards Ms D, for whom she evidently feels some sympathy. Mrs A has frequently driven Ms D home after access visits with the children. I found Mrs A to be a truthful and reliable witness. I consider Mrs A’s evidence as an appropriate means of informing the Court of the wishes of B and C in relation to their adoption: see s.128, s.129 Adoption Act.

29    B and C have been calling Mr and Mrs A “Mum” and “Dad” for the last four or five years. They call Ms D by her first name.

30    About two years ago, a teacher at B’s school told Mrs A of an incident in which B was to receive a merit certificate at a school assembly. The teacher said that when B’s name was called in the assembly, using the surname of her father Mr E, B refused vehemently to accept the award, stating that her name was not “BE” but “BA”, using the surname of Mr and Mrs A.

31    On another occasion, on an access visit with Mr E to a museum, Mr E pointed out to B a nameplate with the surname “E” on it, joking: “You’re famous”. B responded: “No, no, I’m not ‘E’, I’m ‘A’.”

32    According to Mrs A, B and C do not take their bank books to school because they show the surname “E”.

33    The aversion of B and C to use of their surname “E” is such that Mrs A has now to explain to teachers at the beginning of each year that the girls object strongly to being called by the surname “E” in rollcall. When a Medicare form or other document has to be filled in for the girls to take back to school, Mrs A has to fill it in using the surname “E” but she has to put the document in a sealed envelope before giving it to the girls because they will not take it to school knowing that it shows their surname “E”. C would say: “That is not mine. Leave it. I’m not ‘E’.”

34    B is accustomed to signing her name BA, not BE.

35    According to Ms Black, a social worker at the Child Protection Unit at the Children’s Hospital, Westmead, when she visited the children at their home at the beginning of 2005 and asked them what they knew about adoption, both said words to the effect: “We can change our name to A, and use it at school.” I consider Ms Black’s evidence, like Mrs A’s evidence, to be an appropriate means of informing the Court of the children’s wishes.

36    B and C are not old enough to understand fully the legal and social consequences of adoption. However, I am satisfied that they identify themselves strongly as members of Mr and Mrs A’s family, to the point of insisting on that identification being recognised publicly.

Expert evidence

37    In September and October 2005, B and C were reassessed by a clinical psychologist, Ms M. Anderson, who had conducted earlier assessments of the children. Ms Anderson’s report, dated 13 January 2006, concludes:

“Both [B] and [C] have flourished in this placement. With the support of the carers, [C] has substantially overcome the impact of her cerebral palsy and achieved mobility. This is an ongoing process, but [C] has the determination and confidence to achieve her goals. [B] is more retiring, but demonstrates a quiet persistence and focus. Both girls present as enthusiastic, energetic and involved, and their physical appearance is of well groomed glowing physical health.

[B] was assessed as having a mild developmental delay, and is receiving appropriate supports at school. Her verbal and language skills are falling behind, and she would benefit from referral to a speech pathologist.

[C]’s verbal skills are her strength. However, she will need support to keep abreast of literacy tasks. She experiences difficulty with fine motor co-ordination, and referral to an occupational therapist would assist her.

Both girls have developed a relaxed and affectionate relationship with [Mr E], who includes his new family in contact visits. The girls are developing a relationship with their half sister. [Mr E]’s partner is appropriate and supportive, and encourages the girls in their relationship with [Mr E] and sibling. Ongoing contact with [Mr E] is part of the case plan following adoption. [Mr E] is able to take the children’s perspective into account, and states that he sees adoption by[ Mr and Mrs A] as in his daughters’ interests.

Contact with [Ms D] is more problematic, as [Ms D] is herself a needy person. She had difficulty seeing things from the girls’ perspective, focussing instead on her own needs and desires. She continues to focus most of her attention on [C]. [B] pulls away from physical contact with her mother, but agrees to attend the contact so long as she has the support of her foster carer. Ongoing contact with [Ms D] is part of the case plan following adoption.

Both [B] and [C] demonstrate a strong and secure attachment to their foster carers, [Mr and Mrs A], and it is in their best interests to remain in this placement long term. Adoption will assist in ensuring the stability and security of this placement.”

38    Ms Anderson also gave evidence orally. She was asked about the effect of the telephone conversation between Ms D and C in which Ms D referred to having bought a puppy which would be at her home when C came to live with her. Ms Anderson said that such a statement would sound to C as if it were possible or likely that C could return to live with Ms D, which would certainly give rise to:

“… concern, worry about whether or not she was going to go somewhere else, whether or not she could believe in people telling her different things, I think it would be very confusing and disturbing for her.” – T36.38-.41

39    A little later Ms Anderson gave this evidence:

“A. Sorry, I am trying to understand what you're asking, that if an adoption order was made, [Mrs A] would then be in a position to state that that would never happen, and would that be preferable? She would be able to give a stronger reassurance to [C] and say, ‘People can say these things, but we have a piece of paper that this couldn’t happen’. That would give stability to the placement. That is the sort of issue that could come up.

Q. Would that, in your professional opinion, be a preferable state of affairs to the existing state of affairs?
A. Well, it's a much stronger reassurance. It's a much stronger statement to be able to make to a child, a much stronger promise that things are going to remain as they are and not going to change.

Q. And as far as [C]'s mental wellbeing is concerned, does that produce a clearly preferable state of affairs to the current position?
A. Yes, especially to that sort of comment.

Q. Would you draw the same conclusion with respect to [B]?
A. I think even more so for [B].

Q. Why?
A. Because [C] has a more accepting relationship with her mother. [B] actually withdraws from her mother and finds it very difficult to even go to contact without the support of her carers, so I think for [B] the thought of being moved would be an even more de-stabilizing event.” – T37.19-.51

40    Evidence was also given by Ms L. Moggach, the Principal Officer of Barnardos, who is a Plaintiff in these proceedings. Ms Moggach tendered in evidence a number of extracts from literature in the field of child care and psychology on the subject of adoption as compared with long term fostering. Ms Moggach was a co-author of one of the publications.

41 It was suggested to Ms Moggach in cross examination that it would make no practical difference to B and C in their daily lives if they were left in long term foster care with Mr and Mrs A rather than being adopted. She disagreed. She drew attention to the lack of authority of Mr and Mrs A, as carers, to make the sorts of decisions for the girls, particularly in respect of medical, educational and financial matters, which parents can make for their own children. She also drew attention to the possibility that, if the children remained in foster care, Ms D could at some future time apply to the Court for custody whereas such an application would not be possible if adoption orders were made. After an adoption order has been made, a natural parent seeking more contact with the child may only apply to the Court for a review of the Adoption Plan under s.51 of the Adoption Act.

42    The literature which is exhibited to Ms Moggach’s affidavit recognises that “there is debate about whether foster care can offer as secure a placement as adoption, with strongly held positions and some conflicting research findings”. It is the view of Ms Moggach and her co-authors in their publication entitled “On the Move Again?”, that:

“… the overwhelming weight of evidence is on the side of adoption offering the best chance of real permanence for children who cannot return to their families, especially if it can happen when the child is young. However, there will always be cases where a foster placement is the only realistic option, for example for older adolescents and where the child objects to the idea of adoption. Research suggests that there are things that can be done to give the placement a greater sense of permanence, for instance, by allowing long-term carers greater autonomy.”

43    In a paper entitled “Long-term foster care or adoption? The evidence examined” (2001), Prof Triseliotis states (citations omitted):

“Attention was drawn in the early 19890s to findings suggesting that long-term fostering, unlike adoption, appeared then to leave the children feeling unusually insecure and lacking a full sense of belonging to their substitute family. Other studies were to confirm this finding. These studies identified two key areas around which the insecurities were concentrated:

1. Anxiety and uncertainty on the part of the child and their carers arising from the impermanence of their situation.

Because of the lack of legal security, which meant that the placement could be terminated at any time, many children and foster carers were left in a continual state of anxiety of what might happen next. A typical comment by one child was: ‘As a foster child you still worry’.

The foster child’s insecurity was further stressed by more recent studies reporting that a small group of carers gave indications that if the child’s behaviour was to get much worse, or their own children seen to suffer as a result, then the foster child might have to go (Schofield et al 2000; Sinclair et al 2000; Triseliotis et al 2000). This appears to contrast with the reported perseverance demonstrated by most adoptive parents. Rowe et al (1984) also highlighted the element of insecurity operating in long-term fostering by saying that the children did not necessarily feel secure, and the number of changes that occurred while the study was in progress, plus the fact that nearly half the placements had been in some jeopardy at some stage, showed that their fears were not without justification. Bohrman & Sigvardson (1997) attributed the poorer performance of fostered young people to the same insecurities, adding that there was no guarantee that the child might not some day be returned to the biological mother or father. The foster carers also expressed concerns about their insecure position and the researchers went on to add: ‘It is inconceivable that this insecurity has not influenced the relationship between foster parents and the children’.

2. Ambiguity of position

The ambiguous position of children in long-term fostering appears to make many of them feel that they ‘belong’ to nobody. They do not live with their biological parents, and often are not in touch with them, yet their carers are not their ‘parents’, and neither can they call them ‘mum’ or ‘dad’ by right. This ambiguity appears to lead to a sense of unusualness and difference, experienced especially in school and at play. Other happenings in their lives reinforce the sense of ‘difference’, such as a separate surname from that of the substitute family, the anxiety of being moved and sometimes the comings and goings of short-stay children in the household (see Triseliotis 1983; Hill et al 1989; Bohman & Sigvardson 1990; Triseliotis & Hill 1990). The following are typical comments made by foster children moving to adoption:
‘A foster home is in-between.’
‘Fostering is about moving on and on …’

Most children in the same study who moved from long-term fostering to adoption stressed the advantages of the latter in terms of:

Legality:
‘It is something permanent and by law.’
‘They are legally my mum and dad. I can call them mum and dad.’

Security, continuity and permanence:
‘I belong.’
‘You cannot be taken away.’
‘Being a proper part of the family.’

We can conclude that even when long-term fostering lasts, the children still feel less secure and have a weaker sense of belonging compared with those who are adopted. This is possibly the main defining difference between these two forms of substitute parenting.”

44    It will be seen that many of the concerns of foster children reported in the studies referred to are reflected in statements and attitudes of B and C in the present case.

Whether adoption generally preferable to long-term fostering

45 Chapter 2 of the Adoption Act sets out the objects and principles of adoption which are to be applied by the Court:

“ 7. What are the objects of this Act?

The objects of this Act are as follows:

(a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice,

(b) to make it clear that adoption is to be regarded as a service for the child concerned,

(c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage,

(d) to recognise the changing nature of practices of adoption,

(e) to ensure that equivalent safeguards and standards to those that apply to children from New South Wales apply to children adopted from overseas,

(f) to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements,

(g) to encourage openness in adoption,

(h) to allow access to certain information relating to adoptions,

(i) to provide for the giving in certain circumstances of post-adoption financial and other assistance to adopted children and their birth and adoptive parents.

8. What principles are to be applied by persons making decisions about the adoption of a child?

(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles:

(a) the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b) adoption is to be regarded as a service for the child, not for adults wishing to acquire the care of the child,

(c) no adult has a right to adopt the child,

(d) if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e) the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

(f) if the child is Aboriginal – the Aboriginal child placement principles are to be applied,
(g) if the child is a Torres Strait Islander – the Torres Strait Islander child placement principles are to be applied.

(2) In determining the best interests of the child, the decision maker is to have regard to the following:

(a) any wishes expressed by the child,

(b) the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c) the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d) any disability that the child has,

(e) any wishes expressed by either or both of the parents of the child,

(f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

(h) the nature of the relationship of the child with each proposed adoptive parent,

(i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

(j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,

(k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.”

46    In addition, s.90 provides:

“ Court to be satisfied as to certain matters

(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied:

(a) that the best interests of the child will be promoted by the adoption, and

(b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and

(c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child – that the prospective adoptive parent or parents have been selected in accordance with this Act, and

(d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and

(e) if the child is an Aboriginal child – that the Aboriginal child placement principles have been properly applied, and

(f) if the child is a Torres Strait Islander child – that the Torres Strait Islander child placement principles have been properly applied, and

(g) if the child is a non-citizen child from a Convention country or other country outside Australia – that the applicable requirements of this Act and any other relevant law have been satisfied, and

(3) in the case of a child (other than an Aboriginal or Torres Strait Islander child) – that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

(3) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

(3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.”

47 It would be inappropriate for the Court, by undertaking a review of the literature in the field of child psychology and adoption, to come to the view that, as a general rule, adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. When the Court comes to the consideration required of it by s.8(2)(k) and s.90(3), no general rule can be applied. The Adoption Act regulates adoptions in a very wide range of different circumstances: an orphaned infant from Korea; a baby abandoned by parents incapable of caring for it; a teenager removed from abusive parents; a married adult wishing to be adopted by a step-parent.

48    The choice between long-term fostering as an alternative to adoption will, by definition, arise where the child is fairly young. Even so, the age of the child in itself will inevitably give rise to different considerations in different circumstances. The case of a baby some months old, or a child under the age of two, with no possibility of ever being returned to its parents, is very different from the case of a ten year old who has a real prospect of returning to parental care; what a child has experienced before coming into foster care may have a considerable impact on the child’s need for future stability and security.

49 For these reasons, s.8(2) emphasises that the Court must have close regard to the particular circumstances of each case in order to assess whether the child’s interests are best served by an adoption order or some other form of care: s.8(2)(k).

50    Research, and the literature in child psychology, confirm ordinary human experience: in order to attain normal, healthy, emotional, intellectual and physical development, children need to feel stable and secure in a nurturing environment, and they need to feel a sense of identity and belonging within their family and in their community. Human experience also tells us that we very often identify ourselves, both to ourselves and in our community, by reference to who and what the State says we are. We are treated as citizens if we have a passport; we are regarded as capable of driving a car if we have a driving licence; we are identified as the children of those persons whose names appear as our parents on our birth certificates.

51    I do not intend to suggest that learned literature in the field of child psychology has no value in the courtroom in adoption cases. However, the results of research are often disputed and open to different interpretations. In the end, decisions in adoption cases as to what form of care is in a child’s best interests are intuitive, founded on the Judge’s impression of the particular facts of the case formed in the light of the Judge’s experience of life.

52 Section 90(3) of the Act requires that the Court be satisfied that an adoption order is “clearly preferable” to any other form of care for the child. Section 8(2)(k) requires the Court to have regard to “all alternative forms of care” in order to determine whether adoption will “best meet the needs of the child”. These provisions, although differently worded, express the same intent. An adoption order changes, in the eyes of the State, the most fundamental of human relationships, that of parent and child; it gives the child a new identity and family relationship for life. Accordingly, an adoption order is not to be made lightly. The relationship between a child and its natural parents is to be preserved unless the Court is satisfied that the child’s best interests dictate otherwise.

53    The words “clearly preferable” in s.90(3) do not require the Court to be satisfied beyond reasonable doubt that an adoption order is preferable. The word “clearly” serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision.

Submissions of Ms D

54    Mr Ginges, in an eloquent and capable argument, makes the following submissions:

– in considering all other forms of care for B and C, as the Court is required to do under s.90(3) and s.8(2)(k), the Court should look for the least intrusive intervention, i.e., one which will affect the children’s lives least dramatically and will not affect their legal identity. This is a policy common to both the Adoption Act and the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care & Protection Act ”) and is given statutory expression in s.9(d) of that Act;

– adoption should be considered only if all other forms of care cannot work and, in this case, the foster care of B and C has worked very well;

– all of the concerns of Mrs A as to the practical management of the children’s medical, educational, financial and social affairs may be addressed by the making of appropriately framed parental responsibility orders under s.79(1) or s.81(1) of the Care & Protection Act ;

– it is in the best interests of B and C to leave them in the care of Mr and Mrs A as their foster parents, with such additional parental responsibilities as may be conferred on them by orders under s.79 or s.81 of the Care & Protection Act because they will then always remain the children of their natural mother, who loves them, cares about them and wants to be an important person in their lives;

– an adoption order would have a highly distressing effect on Ms D which, in turn, is likely to have an adverse effect on B and C when they have contact with her on the occasions provided in the Adoption Plan.

The relationship between the Adoption Act and the Care & Protection Act

55    Mr Ginges’ first proposition emphasises what he says is a policy common to the Care & Protection Act and the Adoption Act. He places particular emphasis upon s.9(d) of the Care & Protection Act, which is as follows:

“The principles to be applied in the administration of this Act are as follows:
…
(d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.”

56 As will have emerged from my discussion of s.90(3) and s.8(2)(k) of the Adoption Act, I accept that it is the policy of the Adoption Act that children should not be taken from their parents and the parental bond permanently severed unless the Court is of the view that that course, and no other, is clearly in the best interests of the child. That policy is evident as well in the Care & Protection Act. However, as will emerge from a brief examination of the Care & Protection Act, the focus of that Act is on providing children and young people with care and protection with the ultimate objective of returning them to parental care if possible. On the other hand, the Adoption Act comes into play only when it becomes apparent that there is a real question whether the child can ever be returned to parental care.

57 Section 8 of the Care & Protection Act provides:

“The objects of this Act are to provide:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.”

58 Section 9 of the Care & Protection Act relevantly provides:

“The principles to be applied in the administration of this Act are as follows:

(a) In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.

…

(d) In deciding what action it is necessary to take (whether by legal or administrative process) in order to protect a child or young person from harm, the course to be followed must be the least intrusive intervention in the life of the child or young person and his or her family that is consistent with the paramount concern to protect the child or young person from harm and promote the child’s or young person’s development.

(e) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

…

(g) If a child or young person is placed in out-of-home care, the child or young person is entitled to a safe, nurturing, stable and secure environment. Unless it is contrary to his or her best interests, and taking into account the wishes of the child or young person, this will include the retention by the child or young person of relationships with people significant to the child or young person, including birth or adoptive parents, siblings, extended family, peers, family friends and community.”

59    These provisions recognise the importance to a child of identity and origin within the child’s birth family and community; they recognise also the rights of parents not to be separated from their children so far as those rights can be accommodated consistently with the child’s best interests.

60    Under the Care & Protection Act the Director General may apply to the Children’s Court for an order for the care and protection of a child (“care order”): Care & Protection Act s.61. The care order may be interim or final: s.62. Upon applying to the Children’s Court for a final care order the Director General must present to the Court a care plan for consideration: s.78(1).

61 Section 83 of the Care & Protection Act relevantly provides:

“(1) If the Director-General applies to the Children’s Court for a care order (not being an emergency care and protection order) for the removal of a child or young person, the Director-General must assess whether there is a realistic possibility of the child or young person being restored to his or her parents, having regard to:

(a) the circumstances of the child or young person, and

(b) the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.

(2) If the Director-General assesses that there is a realistic possibility of restoration, the Director-General is to prepare a permanency plan involving restoration and submit it to the Children’s Court for its consideration.

(3) If the Director-General assesses that there is not a realistic possibility of restoration, the Director-General is to prepare a permanency plan for another suitable long-term placement for the child or young person and submit it to the Children’s Court for its consideration.

(4) In preparing a plan under subsection (3), the Director-General may consider whether adoption is the preferred option for the child or young person.

(5) The Children’s Court is to decide whether to accept the assessment of the Director-General.

(6) If the Children’s Court does not accept the Director-General’s assessment, it may direct the Director-General to prepare a different permanency plan.

(7) The Children’s Court must not make a final care order unless it expressly finds:

(a) that permanency planning for the child or young person has been appropriately and adequately addressed, and

(b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration having regard to:

(i) the circumstances of the child or young person, and

(ii) the evidence, if any, that the child or young person’s parents are likely to be able to satisfactorily address the issues that have led to the removal of the child or young person from their care.”

62 It will be seen that s.83 of the Care & Protection Act expressly recognises that, in certain cases, an adoption order can be preferable in the child’s best interests to any other form of care available under the Care & Protection Act, but that an adoption order should only be considered where the Director General considers that there is no real possibility of the child being returned to parental care.

63    The Adoption Act and the Care & Protection Act are thus seen to be complementary and to be operating in aid of each other. A Court considering an adoption application must consider whether a care order and a care plan under the Care & Protection Act is preferable in the child’s best interests, and the Children’s Court considering a permanent care plan must consider whether adoption, rather than a care plan, is in the child’s best interests.

64 Where it is clear in an adoption application that there is no realistic possibility of the child being restored to the care of a birth parent, it is not appropriate to apply the principles which s.9 of the Care & Protection Act make applicable to the administration of that Act as if those principles were enshrined verbatim in the Adoption Act. In particular, it is not appropriate to regard as part of the principles to be applied in the administration of the Adoption Act the policy embodied in s.9(d) of the Care & Protection Act. That provision applies to a consideration of what is necessary “to protect a child or young person from harm”. The Adoption Act is concerned with a much wider consideration, namely, what is in the child’s best interests “both in childhood and in later life”: s.8(1)(a).

65 For those reasons, I do not accept Mr Ginges’ submission that in considering this application I must apply the principle embodied in s.9(d) of the Care & Protection Act so that “the course to be followed must be the least intrusive intervention” in the lives of B, C and Ms D consistent with the children’s best interests. In considering this application I must apply only the principles set out in s.8 of the Adoption Act; I must consider the matters which s.8(2) and s.90 require the Court to consider and I must not put a gloss upon those provisions derived from s.9(d) of the Care & Protection Act.

Conclusions

66 In arriving at my conclusions, I have had regard to the objects of the Act as expressed in s.7, to the principles stated in s.8(1), to the factors stated in s.8(2), and to the requirements of s.90. I do not need to go through a check list of every item in s.8 and s.90 in this judgment because some matters are not in issue: see e.g. D v Director General Department of Community Services [2005] NSWCA 474, para 44. For example, there is no dispute that the factors referred to in s.8(2)(d), (g), (h), (i) and (j) militate in favour of the application for adoption. The other factors in s.8(2) and in s.90(1), (2) and (3) are all encompassed in Mr Ginges’ submissions and I will refer to them in the course of explaining the reasons for my decision.

67 I do not accept Mr Ginges’ submission that adoption should be considered only if all other forms of care cannot work. Another form of care may “work” in the sense that the child can manage with that form of care rather than with an adoption order. But the test required by the Act is not whether the child can manage without an adoption order; rather it is whether the child’s best interests throughout life are best served without an adoption order. Put another way, if the child clearly can manage better with an adoption order than without one, then an adoption order satisfies the requirement of s.90(3) that it is clearly preferable to any other form of care order.

68    It is true, as Mr Ginges submits, that many, if not all, of the practical difficulties which Mrs A has experienced in managing the children’s medical, educational and financial needs could probably be removed or considerably alleviated by an appropriately framed parental responsibility order under s.79(1) or s.81(1) of the Care & Protection Act. However, overcoming these practical difficulties addresses only the children’s physical needs. In the circumstances of this case, it seems to me that the children’s emotional needs are much more important than their physical needs.

69    I accept Mr Ginges’ submission that an adoption order would have a highly distressing effect on Ms D. I accept that it is possible that Ms D’s behaviour towards the children may be affected if the adoption orders are made. However, contact between Ms D and the children is limited and, even now, it is strained on occasions. If Ms D’s behaviour towards the children adversely affects them then contact will have to be limited further. I cannot place Ms D’s behaviour towards B and C in access visits above the children’s overall needs and interests, now and throughout their lives.

70    In accordance with the requirements of s.8(2)(a), (b), (c), (d) and (f) I have regard to the following matters. They very largely overlap.

71    I give great weight to the effect which the traumatic experiences of their early years in the care of Ms D have had upon the children’s need for emotional security and stability, now and in their future lives. That need is strongly expressed in the children’s very clear wish to be identified by name and in their school environment as the children of Mr and Mrs A and not as the children of Ms D. The children are not so young that I can regard that wish as irrational and ephemeral. In view of their early childhood experiences, I regard that wish as very understandable and likely to be long-term.

72    The wish to be identified as the children of Mr and Mrs A now manifests itself in a rejection by the children of official forms and documents which do not identify them as the children of Mr and Mrs A. In my opinion, that attitude will, in due time, very probably be manifested whenever birth certificates, marriage certificates and other official documents evidencing parentage are required. On those occasions, B and C will be identified by the State, and consequently by themselves and by others, as not being the children of the people whom they themselves regard as their parents. For children of the background and disabilities of B and C, this self-identification can be damaging. An adoption order will remove this potential for damage to the children, both present and future.

73    B and C have bonded closely with Mr and Mrs A and the older children. I accept that they have a strong need to identify themselves as members of that family in the same sense and to the same degree as Mr and Mrs A’s other children. B and C have no need to identify themselves as members of Ms D’s family.

74    I accept that the children exhibit anxiety and distress at the prospect of ever having to return to the care of Ms D. I am satisfied that adoption orders would go a long way to removing that cause for anxiety and reassuring B and C of the security of their membership of the family of Mr and Mrs A.

75    I accept that Ms D now feels that it is not in the children’s best interests that they return to her care. However, I do not accept that she will necessarily remain of that view throughout the childhood of B and C. It is possible that Ms D’s own needs would impel her to seek return of the children to her care were it not for the existence of adoption orders which precluded that possibility.

76    Additionally, and very importantly, there appears to be a possibility that Ms D’s mother will attempt to gain shared custody of the children. If such an application were made, it would have to be dealt by the appropriate procedures. The children may well become involved in those procedures. B and C become upset and distressed by the possibility that Ms D may attempt to regain care of them. I think it would be even more upsetting and destabilising for them if Ms D’s mother, whom they do not know, were to press ahead with some application for their custody, however remote the success of that application might be. The possibility of such an application being made is, however, removed once and for all if adoption orders are made.

77 In accordance with the requirements of s.8(2)(k) and s.90(3), I have considered whether any form of care order under the Care & Protection Act would meet the best interests of the children as well as an adoption order. In my opinion, an adoption order is far more likely than any care order to remove the residual anxiety of the children that they may one day be removed from Mr and Mrs A’s family and that they are not, in truth, loved by Mr and Mrs A to the same degree as the other children of the family. I consider that the making of adoption orders would be clearly preferable in the best interests of B and C than any other action that could be taken by law in relation to their care.

78    Mr Ginges has not made any submission that the arrangements proposed in the adoption plans for the children are not in their best interests and are not proper in the circumstances. Nevertheless, in accordance with the requirements of s.90(2), I have considered the proposed adoption plans. I am satisfied that the arrangements proposed therein are in B and C’s best interests and are proper in the circumstances.

79    Because of the children’s traumatic experiences in early life and their consequent emotional vulnerabilities, and because I consider it to be in their best interests that they be adopted by Mr and Mrs A, I am satisfied that there is serious concern for their welfare and that it is in their best interests to override the wishes of Ms D that the adoption order be refused and that they be left in foster care. Accordingly, I am satisfied that it is proper to dispense with Ms D’s consent to the adoptions pursuant to s.67.

80    I appreciate that I have expressed my conclusions as to adoption before expressing my conclusions as to whether the Court should dispense with Ms D’s consent. However, in the circumstances of this case, the two applications involve the same considerations. In my view, the order in which the conclusions are expressed is immaterial.

Orders

81    I make orders in respect of each of B and C in the terms respectively appearing in paragraphs 1, 2, 3 and 5 of the Summons filed herein on 28 April 2006. I will hear the parties as to costs.

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