Re K, L and M

[2010] NSWSC 1264

CITATION:	K, L and M, Re [2010] NSWSC 1264
HEARING DATE(S):	29 October 2010
JUDGMENT DATE :	29 October 2010
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	29 October 2010
DECISION:	Consent dispensed with, adoption orders made, access increased.
CATCHWORDS:	ADOPTION – children with special needs – whether in children’s best interests that adoption order be made rather than continue parental responsibility order – whether natural parents’ consent should be dispensed with – whether access to natural parents should be increased.
LEGISLATION CITED:	Adoption Act 2000 (NSW) - s 67(1)(d)
CATEGORY:	Principal judgment
PARTIES:	Delegate of the Director-General, Department of Human Services (Plaintiff) Mr B (First Defendant) Ms A (Second Defendant)
FILE NUMBER(S):	SC A15/2010
COUNSEL:	M.W. Anderson (Plaintiff) In person (First Defendant) Ms D. Ward (Second Defendant)
SOLICITORS:	I.V. Knight, Crown Solicitor (Plaintiff) In person (First Defendant) Ms M. Phillips (Second Defendant)

A15/2010 Re K, L and M

JUDGMENT – Ex tempore
29 October, 2010

1 In accordance with the requirements of s 180 of the Adoption Act 2000 (NSW), I will not refer to the persons concerned in these proceedings in a manner which will identify them.

2 This is an application by the Delegate of the Director-General, Department of Human Services, for an order under s 67(1)(d) of the Adoption Act dispensing with the consent of the natural parents to the adoption of their three children and for a consequential order for the adoption of those children by their present foster parents.

3 The natural parents, Ms A and Mr B, do not seek the return of the children to their custody. They recognise that the foster parents, Mr and Mrs J, are caring for the children very well and that the children will have a better standard of life if they remain in the care of Mr and Mrs J. However, Mr B and Ms A love their children very much and cannot bring themselves to consent to their adoption. Further, they wish to maintain the level of contact they presently have with the children, which is nine times a year, whereas the clinical psychologist who has assessed the children's needs recommends a reduction in contact to a minimum of four longer periods per year during school holidays in order to avoid disruption to the schooling of the children.

4 Accordingly, the issues are:

– is an immediate adoption order clearly preferable in the interests of the children to the continuation of a parental care order, so that the natural parents' consent to adoption should be dispensed with;

– if an adoption is made, is the level of contact which is recommended sufficient or should it be increased or maintained as the natural parents wish?

5 At the hearing, Mr M.W. Anderson of Counsel appeared for the Director-General's delegate, Ms D. Ward of Counsel appeared for Ms A, and Mr B appeared in person. I would like to acknowledge at the outset that I am grateful to all three of them for the assistance that they have provided.

6 Because the facts are not in dispute and Ms A and Mr B do not seek custody of the children, the background circumstances of the case can be briefly summarised.

7 The children, K, now almost twelve years old, L, now ten, and M, now eight, were placed by the Children's Court in the parental responsibility of the Minister in June 2003. They were restored to the natural parents in December 2003, but were taken back into the care of the Minister in February 2004.

8 In November 2004, the Children's Court made final orders, placing the children in the care of the Minister until the age of eighteen years. The children had been with temporary carers since February that year.

9 In May 2005, the children were placed with Mr and Mrs J and they have remained there ever since. There is no question that the children have thrived in the care of Mr and Mrs J and they feel loved and secure.

10 Ms A and Mr B had fortnightly contact with the children until they were placed with Mr and Mrs J, at which time contact was reduced to nine times per year, namely, three periods of five hours during school holidays, two periods of four hours in school holidays and four periods of two hours during the week in each school term.

11 All of the children have special needs. K is at the lower end of the average range of cognitive functioning and her intellectual capacities are at the lower end of the average range. She shows some symptoms of attention deficit hyperactivity disorder and she receives additional help at school. L has Asperger's Syndrome and a lower level of intellectual capacity than K. The clinical psychologist who has assessed all children, Ms Lindfield, is of the view that L's cognitive and emotional limitations will become more pronounced as he grows older. M is in the lower range of intellectual capacity.

12 All children have received devoted care from Mr and Mrs J and they are doing well at school, according to their respective capacities. As I have noted, all identify strongly with Mr and Mrs J as their family, while being very much aware that Ms A and Mr B are their natural parents.

13 K has a good concept of adoption and is very keen to be adopted. L's concept is less clear, but he has made it evident that he wants to stay with Mr and Mrs J "forever". M understands little about adoption but, like K and L, he has made it clear that he is very happy in Mr and Mrs J’s family and he wishes to remain there.

14 What is remarkable about this case is that the relationship between Ms A, Mr B and Mr and Mrs J is extremely cooperative. All are focused on being supportive of the children. It is clear that the children enjoy very much their contacts with their natural parents. They all speak lovingly of Ms A and Mr B and they look forward to the good times which they have together.

15 It is because the relationship between the natural parents and the foster parents is so good that Ms Ward submits that an adoption order is not necessary and that the parental arrangements presently in force should continue. However, Ms Lindfield has given evidence that K, L and M have a strong need to feel identified with and to belong to "a real family". This is both because of the disruption to their early life and to the intellectual and emotional difficulties which they now have. Ms Lindfield is of the view that L, in particular, will feel a strong need to identify and feel secure as he grows to adolescence.

16 Ms Lindfield's experience generally with fostered and adopted children, which is very extensive, is that they need to feel that they have a real family, like other children, with no difference in family names and that, if they are not adopted by their long-term foster carers, they question whether they really have been loved.

17 I accept Ms Lindfield's evidence. I am persuaded that, having regard to the history and special needs of K, L and M, it is clearly preferable that they should now have the certainty and stability that only an adoption order affords.

18 Accordingly, although I understand and respect the reasons which Ms A and Mr B have for opposing the adoptions of their children, whom they love so much, I consider it to be clearly in the best interests of the children to dispense with their consents. There is no issue about the fitness and suitability of Mr and Mrs J as adoptive parents. Accordingly, I will make the adoption order in their favour.

19 What has concerned me greatly is the level of contact which should be ordered as part of the adoption plan. Ms Lindfield was at pains to emphasise that the children benefited very much indeed from their contact with Ms A and Mr B and that her recommendations of a minimum of four longer access visits per year during school holidays was based solely on her view that it was undesirable, particularly with children having special needs, to interrupt the children's normal term time activities and focus.

20 Bearing in mind the very high level of cooperation and goodwill between the natural parents and the adoptive parents and their evident willingness to place the children's interests first, and bearing in mind also how much the children enjoy their visits with Ms A and Mr B, I think that two additional contacts per year should be allowed in the adoption plan, those visits to occur on weekends during term time and to be of three hours' duration each.

21 I have no doubt that the natural parents and the adoptive parents will cooperate willingly to ensure that these visits do not unduly interrupt the children's school routines and their extracurricular activities.

22 The adoption plan should, therefore, be amended to incorporate the access recommended by Ms Lindfield and the additional access to which I have referred.

23 On the basis that the adoption plan is so amended, I approve the plan and, in respect of each of the children, I make orders in the terms sought in the Summons.

24 Finally, I wish to commend especially Ms A and Mr B for their devotion to their children and for their willingness to sacrifice their own feelings for the best interests of the children.

25 Again, I express my appreciation to Counsel and to the solicitors involved for their efficient and very sensitive presentation of this case.

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