Re Wah and ODH

[2013] NSWSC 378

Supreme Court

New South Wales

Medium Neutral Citation:

Application Director-General, NSW Department of Family and Community Services; Re WAH and ODH [2013] NSWSC 378

Hearing dates:

Wednesday 20 March 2013

Decision date:

20 March 2013

Jurisdiction:

Equity Division - Adoption List

Before:

Brereton J

Decision:

Adoption order made. Consent dispense order made. Order made to register adoption plan pursuant to (NSW) Adoption Act2000, s 50.

Catchwords:

FAMILY LAW AND CHILD WELAFRE - Child welfare under State legislation - Adoption - Adoption order - where natural mother has made considerable efforts to improve parenting capacity - where children are in permanent foster care - whether order in best interests of the child

FAMILY LAW AND CHILD WELAFRE - Child welfare under State legislation - Adoption - Consent dispense order - birth mother indicates agreement to proposed adoption but does not wish to consent under (NSW) Adoption Act 2000 - whether consent may be dispensed with under (NSW) Adoption Act 2000 s 67(1)(d)

FAMILY LAW AND CHILD WELAFRE - Child welfare under State legislation - Adoption - Orders - where reasonable inquires have failed to locate natural father - whether notice requirement should be dispensed with

Legislation Cited:

(NSW) Adoptions Act 2000

Category:

Principal judgment

Parties:

Director-General, Department of Family and Community Services (plaintiff)
DSH (defendant)

Representation:

Counsel:
Ms M Neville (plaintiff)
Ms R Dart (solicitor - defendant)
Solicitors:
Crown Solicitors Office (plaintiff)
Legal Aid (defendant)

File Number(s):

A127/2011

Judgment (ex tempore)

1. HIS HONOUR: The children in respect of whom this application is made, WAH and ODH, are twins born on 6 May 2009 to the defendant DSH and, it would seem, one JS, although there has been a subsequent suggestion that DSH's former partner JN, who was the father of two earlier children born to DSH, may have been the father. That suggestion is disputed by DSH, and there is no evidence to support it.

1. Those two elder children, DN and EN, were removed from the care of JN and DSH on 14 April 2008 and placed with Departmental foster carers, following the receipt by Family and Community Services of nineteen risk of harm reports in relation to them. Final orders allocating parental responsibility for those children to the Minister were made on 14 November 2008, and adoption orders in respect of them were made by this Court on 14 September 2011.

1. WAH and ODH were born after 37 weeks of gestation and were assumed into the care of the Department after birth and placed with Departmental foster carers. On 21 August 2009, they were moved into a second placement, and on 25 February 2010, an order was made in the Children's Court placing them in the parental responsibility of the Minister until the age of 18 years. They were placed with the proposed adoptive parents GMR and HMR on 8 April 2010 at age eleven months, and have resided in their care ever since.

1. By summons filed on 5 October 2011 and amended today, the Director-General seeks orders for adoption of each of the children by GMR and HMR, and associated consent dispense orders and orders in respect of the children's names.

1. The evidence makes abundantly clear that both GMR and HMR are in every way eminently qualified and suitable to be adoptive parents of the children, and that the children are flourishing in their care. Whatever may have been the rights and wrongs of their initial removal, which it is now unnecessary to examine, it is clear that the children are thriving in their current circumstances. Those circumstances are in reality the only parenting arrangements the children have ever known. To change them now would, on any view, require a powerful case, particularly when the alternative is untried. Moreover, the evidence indicates that while DSH has made considerable efforts and has strongly committed to improving her parenting capacity and equipping herself to be a parent over the last several years, particularly since separating from JN, it remains the case that she is a person with vulnerabilities and I am satisfied that while the children's stability, care, safety, security, accommodation, support and opportunities for the future, can be comfortably assured under the current arrangements, there would be doubt that they could be so well assured under a return to the sole care of DSH. Amongst other things, the current arrangements have an inbuilt safety net provided by a parenting couple, which is not present in the case of a single parent, and the additional challenges posed by twins would exacerbate those difficulties.

1. DSH has expressed to the Court strongly and convincingly her love and commitment for the children but has also, through her solicitor, expressed the view that she accepts that the current arrangements for the children are more than satisfactory, and that while she wishes herself to care for the children, she realises that that is unrealistic at present and unlikely to be found by the Court to be in the children's best interests. For DSH to reach that decision and make that statement to the Court has no doubt been an exceptionally difficult decision for her and reflects a degree of maturity and wisdom and, above all, an appreciation of the children's best interests the result of which is that this proceeding has been able to be much less adversarial and in that way much more conducive to ongoing good relations between DSH and GMR and HMR and the interests of the children than might otherwise have been.

1. I agree that the prospect of restoration is, essentially for the reasons I have outlined, not a realistic one. The Court would not likely prefer to expose these children to a future which was unsure and untried, and because of DSH's vulnerabilities involves a significant element of risk, over a situation which is plainly safe, secure, and full of opportunities for them. That is far from saying that were, one to look at the case today from the start, and bear in mind the progress that DSH has made, that the children would be removed in the present circumstances; the courts do not remove children from their birth parents just because they cannot provide superior care and opportunities for them. However, what cannot be overlooked is that four years of water have now passed under the bridge, and a new status quo and bonds of attachment have been established. It would be disruptive to the children, and potentially detrimental to their attachments, if that were to change.

1. Having reached the decision that restoration is not a realistic prospect, one turns to the question as to whether the appropriate course is adoption, or a parental responsibility order in favour of the proposed adoptive parents, or leaving the present arrangements of permanent foster care on foot. The evidence of the forensic psychologist, contained in her report of 10 September 2012, includes reference to the research of Professor Triseliotis and Professor Bohman and Doctor Sigvardsson which finds as the key differences between adoption and permanent foster care higher levels of emotional security, and a sense of belonging and general well-being, in children who were adopted, in contrast to the sometimes ambiguous position of children in longer term foster care, suggesting that in distinction to adoption, children in long-term foster care feel unusually insecure and lack a strong sense of belonging, particularly in areas of anxiety and uncertainty on the part of the child and carers due to the impermanence and lack of certainty in their position.

1. It seems to me that the major considerations in deciding whether adoption is clearly preferable to the alternatives involve, first, the factor I have already considered, whether there is a realistic prospect of restoration. If there were a realistic prospect of restoration, one would not make an adoption order. Having concluded that there is not such a prospect, the considerations based in the research to which I have referred favour an adoption order over other forms of permanent placement.

1. Associated considerations include the additional security that an adoption order will give the whole adopted family unit, but against that the identity issues that the legal severance from the birth parents might occasion. In this case, GMR and HMR, have in their evidence at the preliminary hearing and otherwise, demonstrated a commitment to sustaining contact between the children, their birth mother, and their maternal half siblings. As a result of a mediation in which GMR and HMR and DSH participated, an amended Adoption Plan provides for a total of seven occasions of contact per annum with DSH, four of them including the maternal half siblings, and two additional contacts each year with the half siblings. In addition, it is now proposed that the children retain as a third forename the name H. These two steps will significantly mitigate the identity issues that might otherwise be occasioned by an adoption order. Despite the desirability of permanent placement, children nonetheless generally like to know about their origins and to have links to their birth family. There are many displaced adults who long to know about their origins, and it is important - whether a child is fostered long-term or adopted - for the child to continue to have meaningful contact with their birth parents and family of origin, at least unless there are significant risks in those arrangements.

1. The arrangements now proposed in the Adoption Plan, and the retention of H as a forename, will go a significant way to achieving that. GMR and HMR have demonstrated, as I say, in their evidence and elsewhere that they have, and will continue to adopt, an inclusive approach in respect of DSH. That said, it is not an uncommon experience that adoptions are followed by a reduction in contact for birth parents, and a fear of that is often a significant factor in a birth parent's resistance to an otherwise unobjectionable adoption. A measure of security can be given to the birth parent either by making a contact order concurrently with the adoption, or by having the Adoption Plan registered so that it becomes part of the adoption order and is, therefore, enforceable, including in my view at the suit of the birth parent, even though the birth parent cannot be a party to the plan.

1. As it seems to me that ongoing contact with the birth mother and the half siblings is very much in the interests of these children, and without for a moment reflecting adversely on the intentions of GMR and HMR, it seems to me that DSH will be afforded comfort and security that the contact she has negotiated will happen if the plan is registered, and the Director General has now sought on behalf of the parties to the plan, including GMR and HMR, its registration. I think this is a very appropriate course, and one worthy of consideration in most cases of this type.

1. For those reasons, given the measures contained in the Adoption Plan and its proposed registration, I am satisfied that the making of an adoption order would clearly be preferable and in the best interests of each child than any other action that could be taken by law in relation to their care.

1. I am satisfied that the children's natural father, JS, cannot after reasonable inquiry be found. I am satisfied that the application for the adoption of the children having been made by one or more persons who are authorised carers for both children, the children have established a stable relationship with those carers, and their adoption by those carers will promote their welfare.

1. DSH has, for reasons which are entirely understandable, indicated that she does not feel able to agree to her consent being dispensed with, or to consent to the adoption. As I have said, that is perfectly understandable as part of how she continues to manage and develop her relationships with her children. That said, for the reasons I have given for considering that an adoption order is clearly the preferable course, and having found that the application is made by authorised carers with whom the children have established a stable relationship, I am satisfied that to make a consent dispense order is in the best interests of the children, and I will make an order pursuant to s 67 that the consent of the children's natural father and mother be dispensed with.

1. I am satisfied that notice of the application for a consent dispense order has been given to the mother whose consent is sought to be dispensed with at least 14 days before the order is made. I am satisfied that notice of the application for a consent dispense order need not be given to the father because s 72(1) does not apply, as he cannot after reasonable inquiry be found. Pursuant to s 88(4), I will dispense with the giving of notice under s 88(1) to the child's natural father.

1. I am satisfied that taking into account all relevant matters referred to in s 8, and in particular the attitude of each proposed adoptive parent to the children and to the responsibilities of parenthood, the nature of the relationship of the children with each proposed adoptive parent, and the suitability and capacity of each proposed adoptive parent to provide for the needs of the children, including their emotional and intellectual needs, the best interests of the children will be promoted by adoption by the proposed adoptive parents.

1. I am satisfied that as far as practicable, having regard to their age and understanding the wishes and feelings of the children have been ascertained and due consideration given to them. I am satisfied that the proposed adoptive parents have been selected in accordance with the Act. I am satisfied that consent to the adoption has been given by every person whose consent is required, or that such consent should be dispensed with.

1. I am satisfied that the culture or any disability, language and religion of the children and as far as possible their given names, identity, language and cultural and religious ties have been taken into account in the making of the Adoption Plan. I am satisfied that the arrangements proposed in the Adoption Plan are in the children's best interests, and are proper in the circumstances.

1. I am satisfied that the Adoption Plan does not contravene the adoption principles, that the parties to the adoption understand the provisions of the plan and have freely entered into it, and the provisions of the plan are in the children's best interests and proper in the circumstances.

1. WAH is to have the surname R, and the given names WAH. ODH is to have the surname R, and the given names ODH. In changing the surname and given names of the children I have considered the wishes that have been expressed by the children, having regard to their maturity and level of understanding. I am satisfied that the change in the given names by adding the name H is in the best interests of the children as their given names will otherwise be preserved, and this provides a means of preserving their identity with their birth mother.

1. Accordingly, I order pursuant to (NSW) Adoption Act 2000 s 67(1)(d) that the consent of the child's natural mother, in each case be dispensed with; that pursuant to Adoption Act s 67(1)(a) and s 67(1)(b) the consent of the child's natural father be dispensed with; that pursuant to Adoption Act s 88(4), the requirement for service of notice of the application for an adoption order on the child's natural father be dispensed with.

1. I make an order for the adoption of the child WAH in favour of the adopting parents GMR and HMR, and approve the name R as the surname, and WAH as the given names of the child.

1. I make an order for the adoption of the child ODH in favour of the adopting parents GMR and HMR, and approve the name R as the surname, and ODH is the given names of the child.

1. I order that the Adoption Plan contained in Exhibit PX01 be and hereby is registered.

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Decision last updated: 13 June 2013