re MAP, SRP and BCP
[2013] NSWSC 2004
•10 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Director-General, Department of Family and Community Services; re MAP, SRP and BCP [2013] NSWSC 2004 Hearing dates: 10 December 2013 Decision date: 10 December 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Consent dispense order and adoption orders made.
Catchwords: ADOPTION - application for adoption in respect of three children - application for order dispensing with consent of natural parents - where making of an adoption order would provide a secure basis for the exploration of children's relationship with natural mother - where court satisfied that an order dispensing with the consent of the children's natural parents is in the best interests of each child - where court satisfied that the making of an adoption order would be clearly preferable to any other action that could be taken in relation to the care of the children Legislation Cited: (NSW) Adoption Act 2000, s 55, s 67, s 88, s 91 Category: Principal judgment Parties: Director-General, Family & Community Services (plaintiff)
MAP, SRP and BCP (children)
Ms P (defendant)Representation: Counsel:
Ms Stevens (plaintiff)
Mr Newby (solicitor) (defendant)
Solicitors:
Crown Solicitor's Office (plaintiff)
Hadden Kemp Solicitors (defendant)
File Number(s): A64/2013
Judgment - EX TEMPORE
HIS HONOUR: In these proceedings the plaintiff Director-General of the Department of Family and Community Services seeks orders for the adoption of three children - SRP born 17 December 1996 who is now aged almost 17 years, MAP born 29 October 1998 who is now 15 years of age, and BCP born 17 June 2003 who is now ten years of age - in favour of proposed adoptive parents to whom I shall refer in this judgment by their first names: R (the proposed adoptive father) who was born 14 July 1947 and is now 66 years of age, and D (the proposed adoptive mother) born 27 October 1948 who is now 65 years of age. The Director-General also seeks orders dispensing with the consent of the birth mother (to whom I shall refer as Ms AP, although she is in some of the documentation described as DAS, Mrs DAG and Mrs DAP and who, at her request, has been joined to these proceedings as a defendant) and birth father in respect of BCP (the two older children having given sole consents under s 55), orders dispensing with notice to the birth father of each child, and orders approving the names that the children would have upon adoption.
MAP has resided with the proposed adoptive parents since 9 December 1998 when he was about six weeks of age. SRP has resided with them since 24 February 1999 when she was a little over two years of age. BCP has resided with them since 11 February 2005, when she was about 18 months of age. The children are clearly settled in their placement with D and R. The evidence establishes that they are meeting ordinary developmental milestones and proceeding satisfactorily socially and academically at school. They have a good relationship with their foster siblings and the extended family of D and R. They plainly regard D and R's family as their own.
BCP is a challenging girl who has demonstrated some undesirable propensities to dishonesty. R and D have in place appropriate strategies, with rules and consequences in that respect, and are also willing to and do seek external counselling assistance for BCP.
As I have indicated in the course of discussion, the issue in these proceedings is not the rights and wrongs of the past. At the forefront of what I must now decide is the best interests and welfare of these children, for the present and future. It is not part of my function in these proceedings to consider the merits of decisions and actions that might have been taken by the Department many years ago, save insofar as they may impact on their present and future welfare.
There is no doubt that Ms P loves her children, and there is no doubt that she has been seriously affected by their removal. It is clear that she wishes to be able to care for them and have them in her care. The fundamental question, however, that I have to consider now is whether, given everything that has happened over effectively almost 15 years, that is a superior proposition to adoption and, on the other side of the coin, whether these children's future - including, for that matter, a firm basis for an ongoing relationship with their birth mother - would be better secured by an adoption order.
I am amply satisfied that the proposed adoptive parents have demonstrated a proper and appropriate attitude to the responsibilities of parenthood. They were married in 1969. They have no biological children, but they have cared as foster parents for a number of infants, children and adolescents. They have previously adopted two children and fostered a third who, though not formally adopted, changed name to their family name.
I am amply satisfied that each of the children have a good relationship with each of the proposed adoptive parents. That is not to say that that relationship is not. in at least some cases, without its challenges. Then again, there are few families in which the relationship between teenage daughters and parents do not have their occasional challenges. I am amply satisfied that each of D and R is suitable and has the capacity to provide for the needs of the children, including their emotional and intellectual needs.
In this case, although there is no direct evidence from the children (which one would not expect to see), there is a significant amount of evidence to which I think it is useful to refer, which casts light on the wishes and attitudes of the children.
The s 91 report of Kelly Walker of 15 March 2013 followed interviews of D and R by telephone on 16 August and in person on 9 June 2011 and again on 7 August 2012 and 9 November 2012, and interviews of MAP and SRP in person on 9 June 2011. Ms Walker refers to an interview of the children by another consultant, Ms Armstrong, on 5 March 2009, in which SRP and MAP both indicated that they felt like they were adopted already and that they each prefer to use D and R's surname.
At the interview with Ms Walker on 9 June 2011, SRP and MAP both demonstrated an appropriate understanding of adoption and a wish for it to proceed. They already used D and R's surname informally at school and with their peers, but understood that their surname would legally change should an adoption order be made, and both identified that as something they would like. They also understood that N would become their legal sibling and would therefore be listed on their birth certificate, as would D and R as their parents. They have both given their sole consent to adoption under s 55 and as I will refer to in a moment, have been assessed as having the capacity to give that consent. They were also both able to explain that they were in care and not with their birth mother because she was not well enough to be able to care for them.
At the interview with Ms Armstrong on 5 March 2009 BCP demonstrated an age appropriate understanding of the differences between foster care and adoption, indicating that she had three mums in her life, namely her birth mother, her previous foster mother and D. She was already using D and R's surname.
On 23 December 2011, SRP reported to Ms Armstrong that she wondered why the adoption had not yet happened, and that her feelings had not changed about being adopted. MAP observed that things probably would not be too different after the adoption. BCP said that she thought being adopted meant "Mum and Dad are mine forever". At the same time, BCP in particular, has identified through her counsellor, Ms Vernon, that she would like to know more about her birth mother and father, and that she had little understanding of her life story and reasons why she came into care.
Ms Vernon, in a report of 14 September 2012, reports that BCP sees her family as "Dad, Mum, SRP, MAP, K-L, N, then the cat, the dog, then F, P, then N and D" in that order with the latter two drawn separate. SRP and MAP have both established a close bond with K-L, another child in the care of D and R. (The references to Dad and Mum are to the proposed adoptive parents. F, P, N and D are other members of their family).
In a report prepared to evaluate MAP's capacity to consent to adoption on 8 December 2010, Nancie Sorenson, psychologist, reported that MAP was clear and precise when asked to comment, stated what he would like his name to be, and spoke about going to live with his current carers, whom he calls Mum and Dad, before he could remember - he thinks he was only three weeks or three months old. He stated that he did not think that adoption would have any of the emotional effects that the counsellor raised with him, "because he feels that his current carers are his family, but agreed he could talk to his carers if he did have these feelings" and demonstrated clearly that he understood that he was the only person who could consent to his adoption and that it was his choice.
SRP's capacity to consent was evaluated by Jo Meredith, clinical psychologist, on 26 October 2009. She reported that SRP was very open in talking about her background; that she went into care at about two years of age, that she had lived with her birth mother and then with R and D, who she refers to as Dad and Mum. She told the counsellor that she used to have contact with her birth mother, but chose not to when she turned 12 years of age. She explained that the reasons she and the other children were taken into care were that her birth mother "had no money and could not look after us very well". She spoke easily and warmly of her relationship with R and D, and described her personal relationship with them as "good". "They're nice". "I love them". "They look after us". "We go to a good school". When asked about her thoughts on the question of adoption, she said that adoption meant to live with people in a permanent way, and that this was different to fostering. She said that she wanted to be adopted because, "they care for me".
Some of the recent evidence deals in some detail with the first occasion on which there has been contact between the children and their birth mother, which occurred on 18 October this year. There is no doubt that it was a difficult occasion for the children, and it is unsurprising that that would be so. The children have always been aware of the existence of their birth mother but, at least since many years ago, have not had contact with her. It is likely, though it cannot be said for sure, that they had some idealistic views as to or in respect of their birth mother. It is inevitable that when, after many years, they met her, they would experience senses of conflict between their affection for and loyalty to the proposed adoptive parents, whom they clearly love, and are closely attached to, but also to their birth mother, especially in circumstances where I suspect they felt some guilt that she appeared to them, from what she said, to have been unaware that they were still alive.
The circumstance that the children would have encountered some considerable difficulties in processing what they learnt and what they felt through that contact experience, and that those difficulties have become manifest in the case of BCP through increased misbehaviour, and in the case of SRP through engaging in self-harm, is troubling but I think unsurprising. I also think that, having made this initial step at contact and begun to process the consequences - and it appears from Heather Vernon's more recent reports of 7 November and 21 November 2013 that the children are processing that information and coping with it better than at the outset - that future occasions of contact, while they will not be easy, especially if Ms P cannot modify her own grief and behaviour on those occasions, will nonetheless prove easier for the children to cope with than on the first occasion.
Thus, on 20 November, SRP expressed to Ms Vernon that she was feeling a lot better, had ceased self-harming, was more settled with "the guilt thing", but still had a "bad feeling because we haven't contacted her, but not as much now", but emphasised, "I really want to be with R and D, and I really love them." BCP expressed the wish that the adoption be finalised soon because she is "sick of it".
It seems to me that the making of an adoption order is something that the children plainly and strongly desire, but also that making such an order will provide them with a firm basis of security in the adoptive family, from which they may then feel able to explore and pursue such relationship as they wish to have with Ms P, less stressed by conflicting loyalties. While the question of adoption remains unresolved, I think that the children are experiencing the fall-out of the conflict, doubt and insecurity that are probably also being experienced by the proposed adoptive parents while they are not entirely certain that there will be an adoption, and the recent physical appearance on the scene of Ms P. Cementing the relationship of the children with their carers through an adoption order will remove much of that sense of insecurity, and provide them with a basis upon which they can explore a relationship with their birth mother without it appearing in any sense to detract from or challenge their relationship with D and R.
Because it seems to me very likely that these children will express a wish to have some further contact with their birth mother I suggested, and the Director-General ultimately agreed, to amend the adoption plan so that it now provides that D and R will encourage and support the children to attend contact should they express a wish to do so. Given the age of the children I think it is almost inevitable that they will at some stage, express a wish to see their birth mother on further occasions. But in the context of this case, I also think it is important that they largely be the arbiters of that. It is particularly important that, should they express the wish to see their birth mother, they be supported in that by their carers, and that they have access to appropriate professional support as they have at the moment with Ms Vernon.
I cannot accept in the context of this case the submission on behalf of the birth mother that a defined contact plan is appropriate. The sensitivities involved, and indeed the effect that the first contact has had on the children, demonstrate that care and flexibility is required. However, by the adoption plan, D and R agree to support face to face contact up to twice a year at a mutually agreed location and for a mutually agreed duration if requested by Ms P, to be facilitated and supervised by a delegate of the Department, in consultation with D and R, and taking into account the children's wishes.
I do think that in the future, these children will face challenges - particularly, it seems to me, SRP and BCP - in reconciling some identity issues, and it is much better that they have the opportunity, should they seek it, to know their birth mother than not, and I say that notwithstanding that contact is likely to bring its own difficulties.
The fact is that these children are going to have to cope with those difficulties at some stage of their life, and it is better that they do so when it can be done in a controlled and supported situation now, than they be left to discover for themselves unsupported as adults. They will, I suspect, also better appreciate the support of D and R in this respect in the future if they are supported to have that contact than if they are obstructed from it.
I do not presume to trespass into areas where D and R will have a much better view of their children's interests than I can, but it is plain enough that SRP is having some challenges and difficulties on a number of fronts. No doubt D and R are best positioned to make decisions about with whom SRP should and should not associate, but at her age, and given the issues that she presently has to process, it may well be that support in her relationship with her boyfriend may produce better outcomes in the long term than resistance to it. As I say, that observation is made without me knowing a great deal that D and R will know, and it might be entirely misconceived, but I suspect that SRP would feel better able to process the difficult issues which confront her if she was not having to deal with that relationship in circumstances where she sensed or knew it was disapproved.
Ultimately, the court must be satisfied that the making of an adoption 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. Other options include (1) leaving things much as they are, which would see the children continue as children in out-of-home care fostered by D and R; or (2) making a parental responsibility order in favour of D and R; or theoretically (3) restoring them to the care of Ms P.
Given the time that has passed, the length of time in which the children have been in D and R's care, their stable relationship with them, the quality of that care, the curricular and extracurricular activities which they have been enabled to pursue, the relationships they have established with D and R's family and extended family and the very small role that Ms P has, for whatever reason, been able to play in their life to this point, changing their care arrangements in any significant way would be not only unnecessary, but a grossly intrusive, disruptive and destabilising act so far as their stability and security is concerned. Given the consents of the two elder children under s 55, it would be plainly contrary to their own wishes. In my view, restoration is not a realistic option.
Adoption in this case offers many significant advantages. First, it provides permanency of placement. Secondly, it means that the children are no longer "wards of the state" or in "out-of-home care", but are in "in-home" care. Thirdly, it brings the legal position and status of the children into line with their practical status and reality, and gives them the same rights and responsibilities so far as D and R are concerned as they would have were they their natural children. It also gives them the same status as siblings of N, and a relation of D and R's family on a legal basis. Importantly, as I have foreshadowed, I think it gives these children a much more secure and stable platform from which to explore, in the future, a relationship with their birth mother.
SRP and MAP, being over the age of 12 years, have each given sole consent under s 55, SRP having given that consent on 29 October 2009 and MAP on 16 December 2010, each of them having been assessed as capable of giving such consent. In those circumstances, the consent of their birth parents is not required to their adoption.
I am satisfied that at least 14 days notice of the application for an adoption order has been given to the birth mother as appears from the affidavit of Kelly Walker of 30 May 2013.
Although there is some doubt about it, on balance it seems likely that one David is the birth father of SRP and MAP. After enquiry it has not been possible to establish David's whereabouts. The affidavit of Megan Waters of 8 April 2013 sets out the endeavours that have been made in that respect. I am satisfied that SRP and MAP's natural father cannot after reasonable enquiry be found and I will dispense with notice to him of the application for an adoption order pursuant to s54(3)(b).
In respect of BCP, who is not of an age to give sole consent under s 55 it is necessary to dispense with the birth parents' consent if an adoption order is to be made in the absence of their consents. D and R are authorised carers, with whom BCP has established a stable relationship. For the reasons already given, I am satisfied that adoption of BCP by those carers will promote her welfare, and that to make a consent dispense order is in BCP's best interests. Notice of the application for a consent dispense order has been given to Ms P at least 14 days prior to today as evidenced by the affidavit of Kelly Walker of 30 May 2013. BCP's birth father is not listed on her birth certificate and has not been identified. I am satisfied that BCP's natural father cannot after reasonable enquiry be identified. Notice of the application for a consent dispense order need not be given to him because he cannot after reasonable enquiry be identified. Accordingly, I will make an order that the consent of BCP's natural father (pursuant to s67(1)(a) and (d)) and mother (pursuant to s 67(1)(d)) be dispensed with.
I am satisfied that at least 14 days notice of the application for an adoption order in respect of BCP has been given to the birth mother, as appears from the affidavit of Kelly Walker of 30 May 2013. Pursuant to s 88(4), I will dispense with the giving of notice under s 88(1) to BCP's natural father as he cannot be identified.
I am satisfied that consent to the adoption of BCP has been given by the Director-General on 22 August 2012 and thus by every person whose consent is required and has not been or will not be dispensed with.
I am satisfied that the prospective adoptive parents have been selected in accordance with the Act. I have already referred to the wishes and feelings expressed by each of the children which have been ascertained and due consideration given to them.
I am satisfied that the best interests of each child will be promoted by adoption by the proposed adopting parents. I have referred to the adoption plan which, as amended, now makes provision for the support of the children to have contact with the birth mother, should they express a wish to do so. In the context of this case, I am satisfied that that is in the children's best interests and proper in the circumstances.
For the reasons I have given I consider that the making of an adoption order would be clearly preferable in the best interests of the children than any other action that could be taken by law in relation to the care of the children.
SRP is to have the surname of D and R, and the given names SR. MAP is to have the surname of D and R, and the given names MA. BCP is to have the surname of D and R, and the given names BC. In changing the surname and given names of the children I have considered the wishes expressed by each of the children and their maturity and level of understanding.
The Court makes orders:
(1) That pursuant to Adoption Act 2000 s 67(1)(d) the consent of BCP's natural mother Mrs DAP, also known as Ms AP, be dispensed with.
(2) That pursuant to Adoption Act 2000 s 67(1)(a) and (d) the consent of BCP's natural father be dispensed with.
(3) That pursuant to Adoption Act s 88(4), the giving of notice of the application for an adoption order to BCP's natural father be dispensed with.
(4) That pursuant to Adoption Act 2000 s 54(3)(b) the giving of notice of the application for an adoption order to the natural father of SRP and MAP be dispensed with.
(5) For the adoption of the children SRP, MAP and BCP in favour of the proposed adoptive parents D and R and approves:
(a) the surname of D and R as the surname and SR as the given names of the child SRP;
(b) the same surname as the surname and MA as the given names of the child MAP; and
(c) the same surname as the surname and BC as the given names of the child BCP.
I thank counsel for your assistance. I particularly thank Mr Newby for remaining in difficult circumstances to assist the Court in the conduct of the matter.
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Decision last updated: 20 February 2014
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