Re: the Adoption of a (anonymised)

[2020] NSWSC 124

Supreme Court

New South Wales

Medium Neutral Citation:	Re: the Adoption of A (anonymised) [2020] NSWSC 124
Hearing dates:	10 February 2020
Date of orders:	14 February 2020
Decision date:	14 February 2020
Jurisdiction:	Equity - Adoptions List
Before:	Sackar J
Decision:	Adoption Orders Made
Catchwords:	FAMILY LAW – Children – Adoption – Whether adoption clearly preferable – whether adoption is in child’s best interests – whether the consent of the birth parents ought to be dispensed with – contact – adoption plans – change of name
Legislation Cited:	Adoption Act 2000 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adoption of AT [2016] NSWSC 1971 Adoption at BS (No 3) [2013] NSWSC 2033 Adoption of KH [2015] NSWSC 274 Adoption of NG (No 2) [2014] NSWSC 680 Adoption of RCC and RZA [2015] NSWSC 813 Adoption of Taylor-Clay [2019] NSWSC 27 Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; (2007) 37 Fam LR 595 In the matter of O; In the matter of S [2019] NSWSC 20 Re the Adoption of AJH [2017] NSWSC 751
Texts Cited:	n/a
Category:	Principal judgment
Parties:	The Secretary, New South Wales Department of Family and Community Services (as they then were) (Plaintiff) H I (First Defendant) J C (Second Defendant)
Representation:	Counsel: Ms Sproston (Plaintiff) Self representation (First Defendant) Self representation (Second Defendant)   Solicitors: Crown Solicitor of NSW(Plaintiff) No representation (First Defendant) No representation (Second Defendant)
File Number(s):	230/2018

Judgment

1. These proceedings concern the adoption by D E F (‘the proposed adoptive parent’) of A B C (‘A’).

2. By amended Summons filed on 3 February 2020, the Secretary, New South Wales Department of Family and Community Services (having since become known as New South Wales Department of Communities and Justice) (‘the Secretary’) seeks the following orders:

That pursuant to Adoption Act 2000, s. 67(1)(d), the consent of the child’s birth mother, H I be dispensed with.

That pursuant to Adoption Act 2000, s. 67(1)(d), the consent of the child’s birth father, J K C, be dispensed with.

That pursuant to Adoption Act 2000, s 50(3) the Registered Adoption Plan, signed by the adopting parent D E F on 31 January 2020, and a Delegate of the Secretary on 3 February 2020, be registered.

An order for the adoption of the child A B C in favour of the adopting parent D E F.

An order approving the name “F” as the surname and “A B” as the given names of the child.

3. The proceedings were conducted before me on 10 February 2020. Both birth parents participated in the proceedings and opposed the adoption. Counsel appeared for the Secretary. The birth parents were self-represented.

4. On 14 February 2020, I gave short reasons and made the orders sought by the Secretary. I now publish my reasons in full.

Background facts

5. A was born in January 2015 to H I (‘birth mother’) and J C (‘birth father’).

6. A has one full sibling, G C (‘G’), who was born in June 2018. G was assumed into care and placed with the proposed adoptive parent in June 2018, where she has remained. The Secretary intends to seek an order for G to be adopted by the proposed adoptive parent once these proceedings are finalised.

A’s care history

7. Between 8 October 2014 and 20 February 2015, two risk of significant harm (“ROSH”) reports were made to the Department of Family and Community Services (‘FACS’) in relation to A. The reports raised concerns about the birth parents’ limited parenting capacity, their heavy marijuana use, domestic violence, the birth mother’s mental health, and records indicating that the birth mother had stated that the pregnancy was unwanted.

8. Due to the concerns raised in the ROSH reports, FACS conducted regular visits to the family home between 5 December 2014 and 20 February 2015. Observations and concerns noted during the visits included frequent disclosures of marijuana use by both parents; failure to attend urinalysis drug screens as requested; the mother’s refusal to be compliant with prescribed mental health medication; the birth parents forgetting or not being available for scheduled appointments; disclosures from the mother that the father had been yelling at her; the father’s failure to make a phone call to self-refer to a Drug and Alcohol service; the father’s disclosures that he used marijuana to control his anger and was fearful of reducing his usage; and the deteriorating state of the home.

9. On 3 February 2015, FACS engaged an intensive family support service to work with the family to address those concerns. However, on 20 February 2015, FACS conducted a home visit during which A was sighted in her basinet with a basinet mobile tangled around her foot. The caseworkers observed that the mother appeared lethargic. She informed them that she had consumed “two cones” of marijuana to help her sleep. The case workers also observed what appeared to be a “bong” in a spare bedroom, three full nappies on the floor and half-eaten take away containers in the room where A was sleeping. In response to questions from the case workers, the birth mother confirmed that the birth father had been yelling at her and that they had been fighting. The caseworkers reported that the birth mother stated, ‘[the birth father] doesn’t want her [A] anymore.’ The case workers determined that A was at immediate risk of serious harm and removed her from the birth mother’s care. She was placed with a Barnardos emergency placement until 24 February 2015, when she was placed with the paternal grandmother.

10. On 25 February 2015, the Secretary filed an Application and Report initiating care proceedings dated 16 February 2015 in the Children’s Court of New South Wales (‘the Children’s Court’) seeking interim and final orders that parental responsibility for A be allocated to the Minister until she attains 18 years of age. On 19 March 2015, the Children’s Court made interim orders to that effect.

11. On 11 November 2015, A was placed with short-term foster carers after the paternal grandmother requested another placement for A.

12. On 27 August 2015, the Secretary filed a Care Plan for A pursuant to s 78 of the Children and Young Persons (Care and Protection) Act 1998 recommending that A be placed under the parental responsibility of the Minister until she attains 18 years of age. On 17 December 2015, the Children’s Court made final orders to that effect.

13. A was placed with the proposed adoptive parent on 1 March 2016, when she was almost 14 months old. The proposed adoptive parent is an authorised carer who has had the care and responsibility of A under an out of home care arrangement pursuant to the Children and Young Persons (Care and Protection) Act 1998 since that time.

A’s development in the care of the proposed adoptive parent

14. A has had a variety of medical issues. Since being placed with the proposed adoptive parent, she has been treated for ongoing respiratory issues (throughout 2016), undergone surgery for grommet insertion (June 2017) and removal (November 2018), and attended eight months of regular physiotherapy appointments to improve her gross motor skills (from 18 April 2018).

15. In 2019, concerns about A’s behaviour led to an appointment with an Occupational Therapist. On 11 September 2019, an NDIS plan was activated for early intervention in relation to A’s social, emotional and physical development and delays in her fine motor skills. She is receiving ongoing support in relation to her eye sight and her Occupational Therapy is reportedly going well.

16. On 12 November 2019, A attended an appointment with a paediatrician whose report noted that A has diagnoses including Attention Deficit Hyperactivity Disorder and Chronic Adjustment Disorder. The report recommended possible medication options and prescribed Melatonin to help A with her interrupted sleeping patterns. Recently, A has had regular appointments with psychologists.

17. While the birth father is diagnosed with Wolff-Parkinson White Syndrome, A was examined by Dr Warner on or around 19 March 2015 and was found to have a minor intraventricular conduction delay and innocent systolic flow murmur but not Wolff-Parkinson White Syndrome.

18. A attended early childhood care two days per week from 16 March 2016 until January 2018 when she began attending another centre for four days per week. Her November 2019 report noted her improvement over the course of the year and her growing confidence and abilities.

19. A was attending horse-riding and swimming lessons and plays in a soccer team. She intended to recommence her swimming lessons in the summer and the proposed adoptive parent would like her to try a range of extracurricular activities to work out what she likes.

20. The s 91 report notes that A is generally in good health and is meeting developmental milestones.

Restoration Assessment

21. On 6 December 2017, CatholicCare carried out a restoration assessment to determine the possibility of restoration both to the birth parents and the paternal grandmother. The assessment concluded that, although the father demonstrated a strong ability to meet A’s care needs, the mother did not, and that both parents failed to act appropriately to ensure A’s safety. It also indicated that the father relied heavily on the paternal grandmother for support and was still a heavy drug user.

22. The assessment concluded that the paternal grandmother demonstrated adequate parenting capacity. However, it also noted that she lacked insight into safety risks for A, as well as the reasons for A’s assumption into care. This, it was said, indicated an inability on the part of the paternal grandmother to prioritise A’s safety by ensuring that she did not have unsupervised contact with her birth parents.

History of birth family contact

23. During the 2015 Children’s Court proceedings, A had contact with her birth parents, supervised by the paternal grandmother, approximately three times per week. It was generally positive.

24. The Care Plan filed in the Children’s Court proceedings on 27 August 2015 recommended that contact occur between A and the birth parents once per month for a minimum period of three hours, and between A and the paternal grandmother regularly, as agreed between the grandmother and A’s carer and at a minimum of once per fortnight.

25. Following the making of final orders, A had contact with the birth parents once per month between 17 December 2015 and September 2018. The paternal grandmother also had separate fortnightly contact with A between 1 March 2016 and 20 December 2017, then monthly contact with the birth parents between 20 December 2017 and September 2018.

26. In October 2018, contact with the birth parents and paternal grandmother was reduced to bimonthly visits for periods of two hours, although some recent scheduled visits were cancelled due to the birth mother being in hospital. The reduction to bimonthly visits followed a contact review that advised that the reduction would reflect A’s current developmental level and that informal visits for birthdays could also take place. The birth parents have had formal contact with A on important family occasions.

27. FACS and CatholicCare contact records indicate that A has a strong relationship with the paternal grandmother and contact with her is positive. It has been noted that the birth father engages with A and is observed to have a strong connection with her; however, the birth mother appears to struggle to bond with A. Contact reports have also raised concerns about the birth parents arguing in front of A during contact visits (held on 13 July 2017 and 21 December 2017), the failure of the parents to prevent A running out onto the road on one occasion (16 March 2018), and the father presenting with blood shot eyes and strong body odour during one visit (15 February 2018). The proposed adoptive parent has reported that A appeared unsettled after some contact visits (held on 30 January 2018 and 15 February 2018).

28. CatholicCare records indicate that the maternal grandmother attended contact visits on at least 2 December 2015, 14 December 2015, 21 December 2015, 27 May 2016, 1 August 2016, 11 August 2018, 24 December 2018 and 23 November 2019, and that she engaged positively with A on those dates.

29. A has demonstrated a close and loving bond with her sister, G.

Legal Principles

The best interests of the child

30. It is clear that, when considering the potential adoption of a child, the best interests of that child is to be the paramount consideration at all times. Relevantly ss 7 and 8 of the Adoption Act 2000 (NSW) (‘the Act’) provide:

1. 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.

1. 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,

(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,

(e1)   undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare,

(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.

Clearly preferable

31. The Court must not make an adoption order unless the requirements in s 90 of the Act have been complied with:

1. 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

(h)   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.

(2)   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.

In accordance with s 90(3), the Court cannot make an adoption order unless it is clearly preferable to any other action that could be taken (for example, a long-term parenting order, restoration, etc.). Brereton J said of the section, in Adoption of KH [2015] NSWSC 274 (at [46]):

This requires identification of the likely effects of adoption, and of the various available alternatives, and their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is or is not clearly preferable to all others.

32. In Adoption of NG (No 2) [2014] NSWSC 680, Brereton J described the principles applicable with respect to s 8 (at [14]-[17]):

In speaking of adoption being a "service to the child", the Act requires decisions in connection with adoption to be made on the basis that the prime consideration is benefit to the child, as distinct from providing a service to people who wish to adopt a child. However, that does not mean that no service is provided to a child by adoption just because his or her needs are already being adequately met.

Adoption Act, s 90(3), provides that 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. This requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law [cf Director-General, Dept of Community Services v D and Ors [2007]NSWSC 762;(2007) 37 Fam LR 595, [25]].

The answer to the question whether adoption is "clearly preferable" is informed by various other considerations, referred to in s 8(2), which may generally be summarised as follows:

• Concerning the child: his physical, emotional and educational needs, including sense of personal, family and cultural identity, and any disabilities; his wishes, and other relevant characteristics including age, maturity, level of understanding, gender, background, and family relationships;

• Concerning the birth parents: their wishes; the nature of the child's relationship with them; their parenting capacity; and their attitude to the child and to the responsibilities of parenthood; and

• Concerning to the proposed adoptive parents: their suitability and capacity to provide for the child's needs; their attitude to the child and to the responsibilities of parenthood; and the nature and quality of the child's relationship with them.

In addition, all these are informed by 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, ill-treatment, violence or other behaviour; and the alternatives to adoption, in the light of the short and long term effects of adoption.

33. Later at [76]-[80]:

First, an adoption order will provide certainty and permanence for the child, both directly, and indirectly through the additional certainty it will afford the adoptive parents. The possibility of further changes, disruptions and separations will be minimised. The aspirations to restoration expressed by both birth parents, and re-affirmed by the mother in her oral evidence, however improbable as an outcome, will be practically foreclosed. An adoption order is also likely to minimise any remaining temptation for the birth mother to make comments or suggestions that the child will be returning to her care. In these ways, and others, adoption will contribute to providing for the child the stability, security and certainty that he plainly needs, and will be an important aspect of mitigating his current insecurity. In a case such as the present, where there has been extensive past turbulence and associated vulnerability, and where the child harbours fears of insecurity, this is a telling factor.

Secondly, the child would be raised in a legally recognised family, rather than remaining a State ward for the duration of his childhood. He would no longer be in "out-of-home" care, but in "in-home" care. The need for departmental intervention in his care, and departmental approval for significant decisions of the applicants, would be removed, as would be the stigma potentially associated with being a State ward.

Thirdly, the child's legal status would be brought into conformity with reality. Psychologically and residentially, he is a member of the proposed adoptive family. An adoption order would bring the legal position into line with this. His membership of the family that he regards as his own would be perfected, providing him a sense of security and permanent belonging in that family. And the child would be a member of the family not only during childhood, but for life.

Fourthly, his legal name would correspond with that of the family with which he lives and identifies. He would be enabled to choose for himself whom he tells of his status, without it being self-evident from his name.

While an adoption order would, of course, legally sever the parental relationship between the child and the birth parents, they are relationships which, in reality, have been practically devoid of parental responsibility. An adoption order would in fact serve the child's identity needs by perfecting his membership of the family with which he identifies, while providing a more secure foundation for an ongoing relationship with the birth parents through contact, which the applicants will be better able to support and facilitate when relieved of the insecurity or doubt that might attend it if some prospect of restoration remained open.

34. Brereton J considered the effects of adoption and the various alternatives again more recently in Adoption of Taylor-Clay [2019] NSWSC 27. At [58], his Honour noted that the benefits of adoption include that it provides ongoing stability, security and certainty for children who can no longer be cared for by their birth family, and provides for a child’s identity needs in circumstances where they are emotionally, psychologically and residentially members of the proposed adoptive family. Later in his judgment at [64]-[69], his Honour noted the range of findings that researchers have consistently made in relation to the significant benefits of adoption over long-term placements.

35. It is clear from the learned Judge’s discussion that an adoption order that brings a child’s legal relationship into conformity with the practical realities of a situation provides enhanced stability and certainty for all concerned, and that, by and large, such orders are to be regarded as being in the best interests of the child concerned. However, the facts of any particular case must be carefully evaluated.

Consent

36. Section 90(1)(d) of the Act prevents the Court from making an adoption order unless consent has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with.

37. Relevantly, section 52 provides:

1. Consent of parents and persons who have parental responsibility generally required

(1)   The Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given:

(a)   in the case of a child who has not been previously adopted by:

(i)   each parent of the child, and

(ii)   any person who has parental responsibility for the child, or

(b)   in the case of a child who has previously been adopted—by each adoptive parent of, or person who has parental responsibility for, the child.

38. However, s 54 provides for certain circumstances where consent is not required:

1. When consent of parent or person who has parental responsibility not required:

(1)   Consent is not required under section 52 if:

(a)   the requirement for the consent has been dispensed with by the Court, or

(b)   the parent whose consent would otherwise be required by section 52 is a proposed adoptive parent, or

(c)   the child gives sole consent to his or her adoption in accordance with subsection (2), or

(d)   the child is 18 or more years of age.

(2)   A child who is 12 or more years of age and of sufficient maturity to understand the effect of giving consent may give sole consent to his or her adoption by a proposed adoptive parent or parents if the child has been cared for by the proposed adoptive parent or parents for at least 2 years.

(3)   However, the Court must not make an adoption order in relation to a child who is less than 18 years of age who gives sole consent to his or her adoption, unless:

(a)   the Court is satisfied that at least 14 days’ notice of the application for the adoption order has been given by the Secretary or appropriate principal officer to the parent or person who has parental responsibility whose consent would otherwise be required, or

(b)   the Court dispenses with the giving of notice.

(4)   The regulations may prescribe the particulars to be contained in a notice under this section.

39. If consent to an adoption is not obtained, the court may make a consent dispense order under s 67:

1. When can Court dispense with consent of person other than the child?

(1)   The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child’s adoption (other than the child) if the Court is satisfied that:

(a)   the person cannot, after reasonable inquiry, be found or identified, or

(b)   the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or

(c)   if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or

(d)   if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers or the guardians for the child:

(i)   the child has established a stable relationship with those carers or guardians, and

(ii)   the adoption of the child by those carers or guardians will promote the child’s welfare, and

(iii)   in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36.

(2)   The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

40. Several cases have considered the issue of when consent ought to be dispensed with, noting the gravity of taking such action. In Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762; (2007) 37 Fam LR 595, Brereton J said (at [193]):

Although the interests of the child are paramount, the Adoption Act does not entirely disregard the parental rights of the birth parents, as is evident from the requirement for their consent. The amendment made in the course of the Parliamentary debate to s 67(1)(c) is an illustration of this, representing a withdrawal from the position under s 32(1)(e) of the former Act - under which it was sufficient to authorise a dispensation with consent that to do so in order that an adoption order might be made would promote the interests and welfare of the child - by superadding the requirement that there be serious cause for concern as to the welfare of the child.

41. Similarly, in Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142, Palmer J noted (at [52]):

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

42. In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J also said (at [17]):

Because the birth mother has not given consent, an adoption order can be made only if her consent is dispensed with. Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child’s welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child’s sense of belonging and permanence in the carers’ family notwithstanding that there is no concern about the child’s current welfare (as distinct from the child’s welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] – endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] – the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child’s present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child.

43. In addition, notice of the application to make a consent dispense order must be given to the person whose consent is sought to be dispensed with at least 14 days before the order is made (s 72), unless one of the exceptions in s 72(2) applies.

Notice

44. Importantly, section 88 of the Act provides:

88   Notice of application for adoption orders

(1)   The Court may not make an adoption order unless at least 14 days’ notice of the application for the order (containing the particulars, if any, prescribed by the regulations) has been given:

(a)   to any person whose consent to the adoption of the child concerned is required under this Act and has not been given (or the requirement for which has been dispensed with by the Court), and

(b)   to any person (not being a person whose consent is so required) with whom the child resides or who has parental responsibility for the child.

(2)   Except as the Court may otherwise determine, nothing in subsection (1) requires a notice referred to in that subsection to be given to a person referred to in subsection (1) (b) if that person is:

(a)   an applicant for the adoption order, or

(b)   a person with whom the child resides only as a patient or inmate of a hospital of which that person is in charge or a person who has parental responsibility for a child only as the person in charge of a hospital.

(3)   The notice must not specify the name of, or identify, any applicant.

(4)   The Court may dispense with the giving of the notice.

(5)   If it appears to the Court to be necessary in the interests of justice so to do, the Court may direct that notice of an application for an adoption order be given to any specified person.

45. The Uniform Civil Procedure Rules, apply to adoption proceedings and provide detail of when service is taken to be effected, informal service, etc. (see in particular r 10.14).

Who can adopt

46. Part 1 of Chapter 4 of the Act places certain restrictions on who can adopt a child in New South Wales which differ according to whether the persons seeking to adopt be an individual, couple, relative or step parent.

47. Relevantly, section 27 provides in relation to adoption by a single person:

1. Adoption by one person

(1)   Basic requirements One person may, subject to this Act, adopt a child only if the person is:

(a)   resident or domiciled in the State, and

(b)   of good repute and a fit and proper person to fulfil the responsibilities of a parent.

(2)   Age requirements The Court must not make an adoption order in favour of one person who is not a birth parent or relative of the child unless:

(a)   the person is 21 or more years of age and 18 or more years older than the child, or

(b)   the Court considers that in the particular circumstances of the case it is desirable to make the order even though the person does not fulfil the age requirements.

(3)   Consent of spouse The Court must not make an adoption order in favour of one person who is living with a spouse unless the person’s spouse consents in writing to the application for the adoption order.

48. In addition, Part 3A of Chapter 4 governs adoption of a child by authorised carers. In particular, under s 45D, the Secretary or principal officer of an accreditation adoption service provider may invite an authorised carer of a child to submit an application to adopt that child.

Change of name

49. Section 101(1) provides that on the making of an adoption order, an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents.

50. The Court must not order a name change unless satisfied that the name change is in the best interests of the child (s 101(5)). As Justice Brereton acknowledged in Adoption of RCC and RZA [2015] NSWSC 813 at [104], re-iterating his own comments in Adoption of NG (No 2)[2014] NSWSC 680 at [109] and Adoption at BS (No 3)[2013] NSWSC 2033 at [86], ‘[t]he adoption principles set out in s 8 include, in (e), the principle that a child's given name or names, and identity, should, as far as possible, be preserved.’ However, at [105], his Honour also explained:

Upon adoption, a child under 18 years of age ordinarily assumes the surname of the adopting parents, so that the child’s family name accords with that of his or her legal family. Indeed, children see that outcome as one of the most significant indicia of the sense of “belonging” that adoption is intended to nurture, and not to do so would detract from the benefits of adoption. The proposed surname P accords with this approach, and will recognise the children’s place in the adoptive family and reinforce their sense of permanency and belonging, in that they will be in name as well as in law a member of the adoptive family. Moreover, the children have expressed a wish to have the surname P.

Adoption plan

51. The importance of an adopted child’s contact with their birth family has been noted in several cases (see e.g. Adoption of AT [2016] NSWSC 1971; Adoption of NG (No 2 ) [2014] NSWSC 680; In the matter of O; In the matter of S [2019] NSWSC 20; Adoption of KH [2015] NSWSC 274), and adoption plans are frequently used to provide certainty around contact regimes.

52. Section 46 of the Act defines what ‘an adoption plan’ is:

1. What is an adoption plan?

(1)   An adoption plan is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to:

(a)   the making of arrangements for the exchange of information between the parties in relation to any one or more of the following:

(i)   the child’s medical background or condition,

(ii)   the child’s development and important events in the child’s life,

(iii)   the means and nature of contact between the parties and the child, and

(b)   any other matter relating to the adoption of the child.

(2)   Without limiting the matters for which an adoption plan may make provision:

(a)   it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and

(b)   it may provide for the giving of certain financial and other assistance as referred to in section 201.

(2A)   A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child.

(2B)   A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child.

(3)   An adoption plan for an Aboriginal child or Torres Strait Islander child to be adopted by persons of whom neither is an Aboriginal or Torres Strait Islander, as the case may be, must make provision of the kind referred to in subsection (2) (a).

(4)   If provisions of the kind referred to in subsection (2) (a) are proposed to be included in an adoption plan, those provisions should be made after consultation with a local, community-based and relevant Aboriginal or Torres Strait Islander organisation.

53. Importantly, where there is an adoption plan, the Court may not make an adoption order unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances (s 90(2)). In addition, the Court may register the plan if it is satisfied that the plan does not contravene the principles of the Act, the parties to the adoption understand the provisions of the plan and have freely entered into it, and the plan is in the best interests of the child (s 50(3)). An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order (s 50(4)).

54. In relation to the ‘best interests of the child’, Hallen J noted in Re the Adoption of AJH [2017] NSWSC 751:

[T]he terms regarding contact should be “realistic and achievable. Unduly generous promises of, or indications as to, future contact should not be made in order to achieve a resolution of a case, however tempting that may be. Agreements as to contact should not include provision for excessive contact which is not in the interests of the children”: Kate and William, Re– Reduction of Post Adoption Contact [2017] NIFam 13 at [16].

Evidence

The Secretary’s evidence

55. The Secretary relied on several affidavits in this case. In particular, I note the affidavit of Ms Coller and the s 91 report which Ms Coller dated 14 December 2018. In preparing the s 91 report, Ms Coller interviewed the proposed adoptive parent, the birth parents, the paternal grandmother and others. Ms Coller is of the view that an adoption order is clearly preferable to any other order. She notes that an adoption order would normalise A’s life, more closely reflect her position within the F family, remove any potential stigma associated with being “a child in care”, ensure that she would remain within the family to which she has a strong emotional attachment if anything were to happen to the proposed adoptive parent, and afford her life life-long stability and security.

56. In contrast, Ms Coller notes that restoration to the birth parents is not a suitable permanency option for A and ‘would cause significant trauma for [A] in removing her from the only home she has known, and move her from [the proposed adoptive parent]’s care, where she has formed a healthy, secure attachment.’ She also notes that neither a guardianship order nor a continuation of the status quo would provide the same level of stability as an adoption order, and that neither of those options would fully reflect A’s position within the F family.

57. In relation to contact, Ms Coller notes that the current level of contact was reached following consultation between the proposed adoptive parent, the birth parents and the paternal grandmother, and that the proposed adoptive parent is supportive of increasing the length of contact visits if the visits are a positive experience for A.

58. I note the affidavits of the delegates, Ms Roberts (dated 21 December 2018) and Ms Wilson (dated 24 October 2019) and the affidavit of the Out of Home Care Adoption Manager, Ms Ambesi (dated 31 January 2020), which outline A’s placement and care history as well as the history of contact between A and her birth family. In her affidavit, Ms Wilson notes that the proposed adoptive parent has reported that A expresses insecurity about whether she will be permitted to stay with the proposed adoptive parent forever. Ms Ambesi states that ‘[A] continues to appear secure and stable in her placement with [the proposed adoptive parent]’ and that a home visit report made on 25 November 2019 noted that A and G refer to the proposed adoptive parent as “Mum” or “Mummy” and that they ‘referred to [the proposed adoptive parent] for permission to have food and change the T.V show.’

59. The proposed adoptive parent affirmed one affidavit on 14 January 2019. She states that she is assisting A to know her life story and legal status and to have access to her birth family and cultural heritage, as appropriate to her needs. She does this by taking photos at contact visits and talking positively to A about them afterwards, encouraging A to give artwork to her birth parents and paternal grandmother and keeping a photobook of A’s birth parents and paternal grandmother in A’s bedroom. She has had conversations with A about her dad and ‘tummy mum’ and the fact that they live ‘at their house’. She states that she is supporting A to have access to her birth family by having contact every second month.

60. I note the affidavit of Ms Burgess, solicitor, (dated 31 January 2020) and the affidavits of the referees.

61. The Secretary also tendered additional documentary material, including

• a report by Ms Pitman, provisional psychologist with the Family Psychology Clinic, made in relation to her work with A and the proposed adoptive parent (dated 6 February 2020);

• a report by Ms Walton, behavioural optometrist, in relation to A (dated 3 February 2020);

• a Children’s Court Clinic Assessment report made by Ms Napier in relation to G (dated 8 November 2018);

• A Mental Health Clinical Review made by Ms Taylor at the James Fletcher/Mater Mental Health Service in relation to the birth mother (dated 10 December 2019);

• An NDIS Supporting Document made by Ms Taylor, Senior Clinical Psychologist, in relation to the birth mother (dated 23 July 2016 and amended on 6 January 2020);

• An NDIS Supporting Review Document made in relation to the birth mother (dated 14 January 2020);

• A James Fletcher/Mater Mental Health Service discharge referral in relation to the birth mother (dated 7 November 2019); and

• A James Fletcher/Mater Mental Health Service discharge referral in relation to the birth mother (dated 27 November 2019).

62. In particular, I note the passages relied upon by Counsel for the Secretary in oral submissions. In her report dated 6 February 2020, Ms Pitman states:

It appears that [the proposed adoptive parent] has a number of supports in place as well as a host of positive parenting skills and techniques she is using and continuing to build on. Through these observations [made during consultations] it has been evident that [A] has a strong attachment to [the proposed adoptive parent], with [A] on multiple occasions each session climbing on her lap, being affectionate toward her, asking for help from [the proposed adoptive parent], and talking positively about home life with ‘Mum’. [A] appears to see [the proposed adoptive parent] affectionately as a mother figure. [The proposed adoptive parent] appears to be a dedicated foster mother who is seeking out the best supports possible for her foster children and providing a stable, loving family life for [A] and her foster sister.

63. In the Children’s Court Clinical Assessment report made in relation to G and dated 8 November 2018, Ms Napier states:

[The birth mother], [the birth father] and [the paternal grandmother] clearly love [G] very much. They have attended their visits with great dedication and have shown a great deal of care. Each, to varying degrees, focus on her when she is in their care and each to varying degrees are affectionate and loving. Together, for short periods, they have shown they are able to provide careful and attentive care. There (sic) love is strong motivation to seek any possible way to restore [G] to their care.

As individuals they have not been able to provide adequate care and likely will not be able to do so in the future. [The birth mother] probably has a mild intellectual disability, has a history of major mental illness with a post-natal context and has no insight to her limitations. While it is easy to point to [the birth mother’s] intellectual disabilities or her mental-illness history as her predominant limitations, more important perhaps is her lack of bonding with her children. She has amply demonstrated that she finds no joy in the presence of her children, has bore them for her partner’s benefit and is unable to provide them with adequate emotional interaction. She has been observed many times to actively withdraw from them, ignores them and participates in visits like a bystander. While pregnant she has demonstrated few protective behaviours and in fact has spoken out loud her desire to violently abort. Unfortunately, all evidence suggests that she cannot learn to love her children enough, certainly not in time for them.

[The birth father] has none of the same easily identified limitations but presents with dysfunction of his own. He is of average intelligence and has not had clearly diagnosed major mental illness, but his own trauma history continues to have a significant impact on his functioning. He has a long term cannabis dependence and some peculiarities but is able to demonstrate a capacity to adequately care for [G]. He is affectionate and attentive to [G] and loves [the birth mother]. He does not intend to care for [G] alone; he is committed to [the birth mother] quite sincerely and sees them as a family. There is a power imbalance between [the birth mother] and [the birth father] that seems to suit [the birth father’s] idiosyncrasies; perhaps this is an outcome of his own trauma history. Given his conservative views and the strong power imbalance there is little chance of [the birth father] taking a primary caring role for [G], care would inevitably fall to [the birth mother].

[The paternal grandmother], on face value, appears to be a competent and capable parent. She presents well, is professionally employed and is very emotionally engaged with [G]. Sadly, her child protection history is significant and despite her self-report she just has not been able to demonstrate sustained change. Over ten years ago psychiatrist wrote that she had made great efforts at self-development and she clearly had, but the efforts were not sustained beyond her own children’s court case. She sought no additional counselling and periodically child protection issues arose again. Indeed her ambivalence as a mother continued up until [A]’s placement only two years ago. There is evidence of recent drug use and her surprising positive impression management means it is impossible to discern truth from denial.

There is a temptation to argue that the sum of the three parts are greater than a whole parent, or at least as good. On first blush this seems to present as a reasonable alternative; some kind of shared care arrangement. But, the three do not, in my opinion, fit into a neat whole. [The paternal grandmother] will most likely revert to her ambivalence and likely withdraw, [the birth father] will also likely revert to previous behaviour and [the birth mother] will likely be left with the primary care of [G]. This outcome will be despite the best short-term efforts of the three adults. The potential effects on [G] are significant. In the long term the effects of emotional neglect and instability are numerous; they result in many of the behavioural problems we have seen in the adults in this assessment. Mental health problems, cognitive disadvantage, drug misuse, involvement in violent relationships all arise from a childhood of parental emotional disconnect and ambivalence. In my opinion, sadly there is not enough surety to outweigh the risks so starkly reported, so there is no argument for restoration. [G]’s placement with her sister should be made permanent as soon as possible.

64. The Mental Health Clinical Review made by Ms Taylor on 10 December 2019 notes that [the birth mother] was ‘re referred to [the James Fletcher/Mater Mental Health Service] late October after being found by carers in a very distressed state.’ It notes that the issues in relation to the birth mother on that date included that ‘two of her babies previously removed by FAC’s are being adopted out’, ‘[the birth father] was reportedly unfaithful to [the birth mother] a few months ago’ and that ‘[the birth mother] had lost significant weight, appeared malnourished, not eating.’ It also states, ‘Distress around the relationship, not resolved.’

65. The James Fletcher/Mater Mental Health Service Discharge Referral dated 7 November 2019 shows that the birth mother was admitted to the service on 5 November 2019. That document describes the birth mother’s primary diagnosis on that date as ‘Emotionally unstable personality disorder, borderline type’ and the secondary diagnoses as ‘Possible psychotic illness – longitudinal assessment required for further diagnosis.’

66. The James Fletcher/Mater Mental Health Service Discharge Referral dated 27 November 2019 shows that the birth mother was admitted to the service again from 20 November 2019 to 26 November 2019. That document describes the birth mother’s primary diagnosis as ‘Emotionally unstable personality disorder, borderline type’ and the secondary diagnosis as ‘Mental and behavioural disorders due to the use of cannabinoids, dependence syndrome, Problem related to unspecified psychosocial circumstances.’ It also notes that the birth mother was referred to the service ‘by ACT and Newcastle Community Health Team due to concerns about weight loss and psychotic symptoms.’

67. In the NDIS Supporting Document dated 23 July 2016 and amended on 6 January 2020, Ms Taylor states that

[The birth mother’s] presentation has remained stable. She is withdrawn, childlike, immature in her verbal responses to conversation, often not showered & ungroomed. [The birth mother]’s emotional responses are likewise immature. She is interpersonally sensitive. She frequently misinterprets peoples response’s to her (sic). The house and yard is untidy * overgrown. She spends vast amounts of time, sitting, or in bed (sic).

…

The psychological impact of trauma and neglect has resulted in the development of a General Personality Disorder with marked dependent, avoidant & borderline traits. The further comorbidities of anxiety, depression, a Cannabis Use Disorder and ultimately a First Episode Psychosis, along with [the birth mother]’s low intellectual functioning, makes it very difficult for her to take on board new information required in active cognitive based therapies.

The birth parents’ evidence

68. Apart from the materials filed by the Secretary, I note that the birth mother filed two affidavits (dated 29 May 2019 and 2 September 2019). The birth father did not file any written material but made a short statement from the Bar table, which I have also taken into account.

69. The birth mother’s affidavits are in largely similar terms but are not identical. In both affidavits, the birth mother expresses her opposition to the adoption of A on the basis that it will dissolve her legal connection to A and prevent her from commencing restoration proceedings under s 90 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). She expresses concern that the adoption of A will lead to the adoption of her other child, G, but is also concerned that A will have a different legal status to G in the meantime. She states that her relationship with A will likely suffer if A is adopted. She believes that the adoption will negatively impact A’s identity, and that A might be teased at school because she is adopted. She also believes that the application for adoption does not take into account her increasing capacity as a parent; she has completed ‘1, 2, 3 Magic’ parenting course and ‘Kids in care’. She seeks the restoration of A into her care, or, alternatively, continuation of the current Children’s Court orders.

70. In relation to contact, the birth mother expresses concerns about the ability of A to maintain ongoing relationships with her extended maternal and paternal families under the adoption plan that was proposed at the time her affidavits were made.

71. The birth mother currently lives in a three bedroom townhouse. She is on a Disability Support Pension and NDIS Plan. At paragraph [84] of her most recent affidavit (2 September 2019), the birth mother states that she has separated from the birth father, that he lives at a separate residence, and that they only communicate for the purposes of Court.

72. In both affidavits, the birth mother states that she considers her mental health stable at the date of the respective affidavits.

73. In paragraph 18 of both affidavits, the birth mother states:

I am distressed that the effect of A’s adoption on my health will be destructive. I am diagnosed as having Bipolar Affective Disorder, Borderline personality traits/complex post-traumatic stress disorder, Substance Use Disorder (cannabis abuse), and Borderline intellectual function.

Submissions

74. Counsel for the Secretary provided written submissions to the Court.

75. The Secretary submitted that an adoption order is clearly preferable and in A’s best interests, taking into account the criteria in s 8(2). In particular, the Secretary noted A’s sense of belonging within the proposed adoptive parents’ family; ongoing issues with the birth mother’s ability to develop a bond with A; the proposed adoptive parents’ commitment to A’s care and development; and the certainty adoption would provide.

76. The Secretary also submitted that the risks which led to A’s removal from her birth parents remain, and that the birth mother’s statement that she is seeking restoration should be understood as an aspiration rather than an application as no s 90 proceedings have been commenced in the Children’s Court and no case has been developed by the birth mother in relation to how restoration might be implemented.

77. Further, the Secretary submitted that the birth parents consent should be dispensed with under s 67(1)(d), and that A’s surname should be changed to F in line with her link to the proposed adoptive parent’s family and the proposed adoptive parent’s wish.

78. The birth father indicated that he opposed the adoption. He also indicated that he opposed the name change on the basis that the proposed adoptive parent was a single woman, leaving open the possibility that she could marry and change her name to something other than F in the future. He also stated that he opposed the name change because he wants A to be able to trace her medical history, and expressed concern about the preservation of heritage. He stated, ‘It’s just a heritage thing. She’s an C. She comes from the Cs.’

79. In response, the Secretary submitted that the proposed adoptive parent had provided instructions that if she was to form a relationship with somebody, whether by marriage or a de facto relationship, she would keep her surname, F.

Consideration

80. Considering all the circumstances and the factors contained within ss 7 and 8 of the Act, I am of the view that an adoption order is in A’s best interests and clearly preferable to any other action that could be taken.

81. Restoration to the birth family is simply not possible in this case. While the birth parents appeared together at the hearing, the evidence is that they have separated and no longer live together. This was not denied at the hearing. The birth parents have not demonstrated that they are capable of providing adequate care to A and recent mental health reviews, NDIS supporting documents and discharge reports suggest that cannabis use and mental illness continue to present risks in relation to the birth mother. She indicates this in her own affidavit. Further, while the birth mother has indicated that she would like restoration to occur, she has not taken steps towards achieving this and has struggled to bond with A in the past. Removal from the proposed adoptive parent would likely be traumatic for A at this time; A has lived with the proposed adoptive parents continuously since she was 14 months old.

82. While an adoption order will dissolve the legal relationship between A and her birth parents, it will perfect her membership within the family with which she identifies. While A is too young to express a view in relation to the adoption, she has demonstrated a strong sense of belonging to the proposed adoptive parent’s family. She appears to have developed a loving mother/daughter relationship with the proposed adoptive parent and refers to her as ‘Mum’. The proposed adoptive parent has demonstrated commitment to meeting A’s emotional, physical and educational needs.

80. A needs stability and, as she grows, certainty, and I do not think that leaving her in limbo for an indefinite period of time, for no particularly good reason, is in her interest. An adoption order will provide the certainty and stability that A needs and should assist in easing her apparent insecurities; continuation of the status quo will not.

81. While it is not determinative of this application, I also note that A has developed a loving relationship with her sister G who is also in the proposed adoptive parent’s care.

82. I am satisfied that the consent of the birth parents should be dispensed with under s 67(1)(d) of the Act; A has developed a stable, loving relationship with the proposed adoptive parent and the adoption will promote her welfare. While a grave step, the above considerations indicate that dispensing with consent is in A’s best interests.

83. I am of the view that the formal requirements have been met. A was present in the State when the adoption application was filed (s 23(2)(a)) and less than 18 years of age when the summons was filed (s 24(1)(a)). The appropriate notice was given to the birth parents (s 88(1)(a) and s 72). They were provided with the mandatory information in November 2017 (s 59). The birth parents both contended that they had not read the information and were provided with additional copies by Ms Coller, the author of the s 91 report. For the purposes of s 87, the application was made by the Secretary; the Minister, who has, by an authorised delegate, consented.

84. I am satisfied that the proposed adoptive parent is domiciled in the State (s 23(2)(b) and s 27(1)(a)) and meets the age requirement in s 27(2). I am also satisfied that the proposed adoptive parent is of good repute and a fit and proper person to fulfil the responsibilities of a parent, in particular taking into account the quality of care and commitment she has provided to A since 1 March 2016.

85. In relation to the name change, I note that A’s first and middle names were chosen by her birth mother and birth father, respectively. These names maintain an important link between A and her birth family and should be preserved (s 8(1)(e)). However, I am of the view that the proposed change to A’s surname will promote her best interests; it is consistent with A having a sense of stability and, more importantly, certainty about herself, her identity, her surroundings and the person that is going to be her legal parent into the future. I accept that the proposed adoptive parent will not change A’s first and middle names and that, at this time, she does not intend to change her own surname if she does enter a relationship.

86. I have considered the adoption plan and believe it to be proper in the circumstances and in A’s best interests. It provides for face to face contact between A and her birth parents at least six times a year for a minimum period of two hours (or three hours if the birth parents wish to attend the one visit separately and have one and a half hours each). Additional visits may be arranged for special occasions. This is in line with current arrangements, which were made following a contact review. The plan provides for visits between A and her maternal and paternal grandmothers in response to the birth mother’s concerns that A would not be able to maintain an ongoing relationship with them. It also makes provision for G to attend visits with A and the birth parents should G be living in a separate household to A.

87. While the birth parents have not signed the adoption plan, it has been agreed to by two of the parties to the adoption, the proposed adoptive parent and an authorised delegate of the Secretary (s 46(1)). I am of the view that it ought to be registered.

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Decision last updated: 27 February 2020