Re WJP and the Adoption Act 2000

[2014] NSWSC 783

Supreme Court

New South Wales

Case Title:	Re WJP and the Adoption Act 2000
Medium Neutral Citation:	[2014] NSWSC 783
Hearing Date(s):	7 March 2014
Decision Date:	12 June 2014
Jurisdiction:	Equity Division
Before:	Kunc J
Decision:	Consent dispense order and order for adoption made
Catchwords:	FAMILY LAW - Adoption -Order dispensing with consent - Whether Korean birth parents cannot, after reasonable inquiry, be found or identified - Adoption through intervention of Korean state sponsored agency - Adoption Act 2000 (NSW), s 67(1)(a)
Legislation Cited:	Adoption Act 2000 (NSW)
Cases Cited:	Application C and C; re Y [2014] NSWSC 634 In the Matter of N and the Adoption Act 2000 [2012] NSWSC 1263 Re K and The Adoption Act 2000 [2005] NSWSC 858 Re KSE and The Adoption Act 2000 [2006] NSWSC 92
Category:	Principal judgment
Parties:	Department of Community Services
Representation
- Counsel:	Counsel: T. Stevens
- Solicitors:	Solicitors: Crown Solicitor
File Number(s):	164/2013
Publication Restriction:	No

JUDGMENT

Summary

1. By summons filed on 14 November 2013 the plaintiffs apply for an order for the adoption in their favour of a child to whom I shall refer as "WJP".

2. Subject to the resolution of the issue which is dealt with in these reasons, the Court is satisfied that it is in the best interests of WJP that he be adopted by the plaintiffs. The plaintiffs seek an order under s 67(1)(a) of the Adoption Act 2000 (NSW) (the "Act") dispensing with the consent of WJP's natural parents to his adoption and consequential orders.

3. When these proceedings were first referred to me in chambers I was not satisfied on the evidence, as it then stood, that there was a proper basis for an order to be made under s 67 of the Act. Directions were made for the filing of further evidence and for submissions. Having reviewed that further evidence and the written submissions dated 18 May 2014, the Court is satisfied that the orders sought under s 67(1)(a) of the Act and for adoption and consequential orders should be made.

The facts

1. In July 2010 the plaintiffs lodged with the NSW Department of Community Services (the "Department") an application to adopt a child from overseas, preferably Korea. Following its investigations, the Department informed the plaintiffs that they had been approved to adopt a child from Korea and that a confidential home report on their circumstances would be forwarded to the Eastern Social Welfare Society ("ESWS") in Korea, an agency approved by the Korean Government to conduct inter-country adoptions.

2. WJP was born in Seoul, Korea on 19 February 2011.

3. On 31 March 2011, in accordance with Korean law, the President of ESWS was named as WJP's guardian. As I infer that it was entitled to do under Korean law, the ESWS issued a certificate of birth in relation to WJP which gives no details as to the identity of either natural parent.

4. In October 2011 the plaintiffs were told about WJP by an officer of the Department. They completed various documents to confirm that they wished to adopt WJP. Those documents were returned to the Department who, in turn, forwarded them to ESWS in Korea.

5. On 5 January 2012, the President of ESWS completed a "Statement of Consent to Overseas Adoption" which provided:

   Date: Jan. 05, 2012

   By virtue of my right as Guardian of [WJP], a minor child and having sole custody of the said, I, Kim, Jin Sook, hereby irrevocably consent to his/her immigration to the Australia and his/her adoption by suitable parents. I hereby authorize the Department of Community Services to make any and all decisions and to take any and all legal steps necessary to accomplish his/her immigration to the Australia and adoption, including the right to consent to medical and surgical treatment, the right to consent to adoption and the right to release the custody of this child, and to transfer the right to consent to the adoption of this child to any agency authorized to place children for adoption.

   I fully understand that I am hereby releasing irrevocably the custody of this child and I understand also that once the legal adoption has been completed, the adoptive parents will assume all the legal responsibilities for the child and will acquire all the legal rights incident to the relationship of parent and child. In consideration of this assumption of my legal obligations by the adoptive parents, I hereby waive all the rights which I now have over this child.

6. In September 2012 the plaintiffs went to Korea, where WJP was placed into their care and returned to Australia with them. Since that time WJP has come to be loved and cared for by the plaintiffs as their son.

7. A report to the Court under s 91 of the Act which was included as part of the plaintiffs' evidence in support of their application for an adoption order stated:

   Eastern Social Welfare Society provided [WJP's] background history at the time of his allocation to [the plaintiffs] for adoption. His birth father, [the name was given] was aged 21 and his birth mother, [the name was given] was aged 20 at the time of his birth. They dated for five months from March 2010 to July 2010 when the relationship ended. [The birth mother] discovered she was pregnant with [WJP] after the relationship ended. [The birth mother] told [the birth father] about the pregnancy. He is reported to have told her that he was about to begin his military service and that he could not afford to raise a child. [The birth mother] cared for [WJP] on her own from his birth on 19 February 2011 until 4 March 2011. On this day she placed him for adoption through the Eastern Social Welfare Society as she realised that she could not afford to raise him properly on her own. [WJP] was then placed in pre-adoptive foster care, where he remained until [the plaintiffs] travelled to Korea to collect him.

The additional evidence

1. In accordance with the directions which I made referred to in paragraph [3] above, on 22 April 2014 a further affidavit was filed sworn by Ms G Romeo, the Acting Director, Adoption and Permanent Care Services of the Department. Ms Romeo's evidence included:

   7. I understand from my experience in the role of Acting Director that the Korean Ministry of Health and Welfare has authorised a number of adoption agencies to facilitate the overseas adoption of Korean children. Eastern Social Welfare Society (hereinafter referred to as "ESWS") is currently the only Korean agency responsible for facilitating Intercountry adoptions with Australia.

   8. The Australia-South Korea Intercountry Adoption Program is managed by the Australian Central Authority, located in the Australian Government Attorney-General's Department. In particular, the role of the Australian Central Authority is to ensure that Australia meets its obligations under the Hague Convention on Intercountry Adoption.

   9. Each state of Australia has a Central Authority which is responsible for assessing prospective adoptive parents suitability to adopt, and to manage the adoption process by liaising with overseas agencies, such as ESWS. The NSW Central Authority is the Secretary of the Department and this role is delegated to the Director of Adoption and Permanent Care Services.

   10. The state of New South Wales has been facilitating the adoption of children from South Korea since 1991.

   11. There is currently an informal agreement between Community Services and ESWS in regard to the process for intercountry adoptions between the two countries (although I understand from the Commonwealth Government that the Australian Central Authority and ESWS are in the process of finalising a written agreement, to be signed by the Australian Central Authority on behalf of all the state Central Authorities, confirming the process).

   ...

   14. All communication in regard to an adoption application occurs between Community Services and ESWS, and not directly with birth parents. This is a part of the informal agreement between Community Services and ESWS, referred to at paragraph 11 above.

   15. In my experience as Acting Director, ESWS has only ever provided Community Services with general information about the birth parents of proposed adoptive children, such as the surnames and general personal circumstances of the birth parents. Further, I understand that ESWS has refused to provide specific and/or contact information about birth parents to Community Services or proposed adoptive parents in other adoption applications on the basis that the provision of such information would breach the privacy of the birth parents under South Korean law.

   ...
   19. Community Services facilitates an ongoing relationship between adoptive parents in NSW and ESWS. ESWS has an ongoing role in providing information to adoptive parents in NSW and Community Services provided reports to ESWS about the progress and development of an adoptive child in NSW.

   20. As part of the informal agreement referred to at paragraph 11 above, ESWS requires all post adoption services to be facilitated between the agency and the relevant authority in the receiving country. In NSW, the relevant authority is Community Services.

   21. ESWS provides a number of post adoption services including: meeting with a child's foster family; future searches for birth family and place; language assistance; counselling before and after the contact with birth family if considered appropriate in the future; and reviewing the child's file.

   22. I understand that the ESWS policy is that services for birth search and viewing of the child's file are only provided on application for adoptees over aged over 13 years.

   23. ESWS also facilitates "Birthland [Homeland] tours", where adoptive families are invited to return to South Korea with their children, to allow the children to reconnect with the Korean culture.

   24. ESWS also provides scholarship programs for adoptees (aged over 18 years) who are interested in learning the Korean language and cultural classes at Korean universities, while living in Korea.

   25. I am concerned that if Community Services was to contact or attempt to contact the birth parents directly, that this may have a detrimental effect on the following:
   a. the working relationship with ESWS and the facilitation of other adoptions; and

   b. the engagement by the applicants with any services provided by ESWS in the future, such as the Birthland Tours.

2. Ms Romeo's affidavit also annexed an email from the Director of ESWS' Post Adoption Service Center, which included:

   ... In Korea, if birth parent(s) are going to place the child for adoption, they should seek out personal counselling with an adoption agency and write down their personal information in the Consent to Adoption and signs it in person. If the Consent to Adoption cannot be obtained as the birth parents have not been reached, we cannot proceed with the adoption process of the child involved. Furthermore, the child cannot be placed in the care of an adoption agency. There are no exceptions in this. The Consent to Adoption filled out by the birth parent(s) are reported to the Korean government and filed with the child's file at the adoption agency.
   ...
   In the case of [WJP], ... [t]he contact details we have are the ones that the birth parents wrote down in the Consent to Adoption. As they have not contacted us since relinquishing the child for adoption, we don't have their recent contact details. ...

   As the adoption process is being done and supervised by the Korean government and court and there is a stage in the process to confirm the birth parents' consent to adoption, it is not necessary that the other country should be aware of the information on the birth parents as the government and court process is being done legally. Moreover, the contact details of the birth parent(s) cannot be provided to any other third party as it is against personal information protection law.

The law

1. The Act provides:

   52 Consent of parents and persons who have parental responsibility generally required

   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,

   ...

   66 How is need for consent dispensed with?
   A requirement for the consent of a child or any other person to the child's adoption under this Act can be dispensed with if the Court makes an order under this Division dispensing with the requirement (a "consent dispense order").

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

   67(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 ..

   (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.

Consideration

1. The question to which this judgment is devoted, in what would otherwise be a straightforward and entirely appropriate case for an adoption order to be made, is whether, for the purposes of s 67(1)(a), WJP's birth parents cannot, after reasonable inquiry, be found or identified. It is clear that they can be identified, given that there was evidence before the Court (reproduced in anonymised form in paragraph [10] above) as to their names. The issue is therefore further refined to be whether those birth parents cannot, after reasonable inquiry, be found.

2. The issue of consent dispense orders has been considered by several judges sitting in the Equity Division Adoptions List in relation to the adoption of children from Korea through ESWS. In each of those cases the Court was satisfied that a consent dispense order should be made. However, each case can only be decided by the Court on the evidence brought before it in that particular case. Conclusions that have been reached in earlier authorities cannot be reached in a subsequent case unless appropriate evidence is available to the Court in that case. Having had the benefit of Ms Romeo's affidavit of 16 April 2014, the Court is satisfied that, in accordance with those earlier authorities, a consent dispense order should be made in these proceedings.

3. What I respectfully refer to as the foundation case in this area is the decision of White J in Re K and The Adoption Act 2000 [2005] NSWSC 858:

   21 Before consent can be dispensed with under s 67, it is necessary, but it is not sufficient, that the Court is satisfied that dispensation of consent is in the best interests of the child. In order to dispense with the consent, one of the paragraphs in subs 67(1) must be satisfied.

   22 Whether s 67(1)(a) is satisfied, depends upon whether I am satisfied that the child's parents cannot, after reasonable inquiry, be found or identified. That question turns on what is meant by the expression "reasonable inquiry". Whether an inquiry is reasonable is to be evaluated from the perspective of the person making the application and the perspective of the person about whom the inquiry is to be made. Section 68 stipulates which parties are entitled to apply for a order. In the present case, the application is made by the prospective adoptive parents with the consent of DOCS. They have no capacity to make any inquiry in Korea to identify the child's mother or father. It is possible that DOCS might be prepared to make an inquiry on their behalf by contacting ESWS and asking it to reveal the contact details of the mother, and possibly, through her, of the father. In my view, it is not reasonable to require the plaintiffs to embark upon such an inquiry. Nor would such an inquiry be reasonable from the perspective of the child's parents. It would involve the violation of the privacy of the mother in circumstances where the Korean public records confer anonymity on her. An inquiry which attempts to circumvent privacy measures of the foreign state and which, in effect, would amount to a trespass on issues which the Korean agency could properly consider to be within its exclusive province, is not "reasonable" for the purposes of s 67(1)(a). The child's parents cannot presently be found or identified. No additional inquiry is required to satisfy s 67(1)(a).

4. In Re KSE and The Adoption Act 2000 [2006] NSWSC 92, Brereton J applied White J's decision:

   10 Consent dispense orders, and orders dispensing with giving of notice of the application to the natural parents, are authorised by AdoptionAct 2000 (NSW), s 67(1)(a) and s 72(2)(a). The court may make a "consent dispense order" if satisfied that the person whose consent is otherwise required cannot after reasonable inquiry be found or identified, but not unless it is satisfied that to do so is in the best interests of the child. As White J has explained in Re K, what amounts to "reasonable inquiry" is to be evaluated from the perspective both of the applicants and of the person whose consent is otherwise required.

   11 Neither the identities of the child's natural parents (save for surnames), nor their whereabouts, are presently known to the applicants or to the Director General. There is no evidence of the identity of the birth father or birth mother other than surnames; no hint of the father having ever had anything to do with the child, or even being aware of his existence; and no suggestion that the mother has had any contact with the child after his birth. The evidence shows that the birth mother, thinking that she could not provide a proper environment for the baby, and that it was most desirable for him to grow up well in an appropriate adoptive home, relinquished him to ESWS for adoption. While that is not a "consent" for the purposes of the Adoption Act, it is highly relevant in considering whether any further inquiries would be "reasonable". The view that they would not is reinforced by the circumstance that, from the perspective of the birth parents, their anonymity, which has been conferred on them by the measures taken in Korea in respect of the birth documentation, would be infringed.

   12 There is no likelihood that any inquiry of which the applicants are capable would find either of the natural parents, and scant likelihood that they would wish to be contacted. I am satisfied that it would not be reasonable to require further inquiry as to the identity and whereabouts of the natural parents, and, therefore, that the natural parents cannot after reasonable inquiry be found. I am also satisfied that it is in the interests of the child that a order in respect of the parents be made. For the same reasons, I am satisfied that notice should not be required to be given to the birth parents.

5. I respectfully adopt and follow those decisions. For the same reasons given by their Honours in those decisions, the Court is satisfied that, after reasonable inquiry, WJP's birth parents cannot be found. That conclusion is reached by considering the position in relation to each of the plaintiffs, the Department and WJP's birth parents.

6. The evidence about WJP's birth parents is set out in paragraph [10] above. Insofar as the plaintiffs are concerned it is not reasonable to require them to embark upon inquiries in Korea when that is the only information they have.

7. It would not be reasonable to require the Department to make further inquiries of ESWS for two reasons. First, the Department knows that the provision of such information would be contrary to Korean law. Second, the Department has what I find to be a reasonably based concern that making such inquiries would run the risk of upsetting longstanding arrangements that have worked to the great advantage of Korean children and their adoptive Australian parents.

1. It would not be reasonable from the perspective of WJP's birth parents for such inquiries to be made because it would invite a breach of Korean privacy laws. Furthermore, the evidence of the reasons why WJP's birth mother relinquished him for adoption (see paragraph [10] above) fortify the Court in its conclusion that it would not be reasonable for any further inquiries to be required.

2. In reaching a conclusion that consent dispense orders should be made, I also respectfully rely upon and adopt the reasoning of Black J in In the Matter of N and the Adoption Act 2000 [2012] NSWSC 1263. That case concerned the adoption of a child from Taiwan. On the material before his Honour it appeared that the child's birth mother could both be found and identified because the adopting parents had met with her while in Taiwan. Looking at the matter more broadly, in this age of social media and internet search engines, it is possible to imagine cases where, armed with the names of the birth parents and perhaps some other basic details, applicants for adoption might be able to find a child's birth parents in a foreign country.

3. Black J had the benefit of evidence from the Department, as I do in this case, concerning what his Honour found to be the Department's legitimate concerns that its relationship with the relevant foreign agency could be adversely affected by inquiries being made to identify or make contact with the birth parents directly. I respectfully apply the same reasoning which found favour with Black J on this point:

   8. In this case, it is theoretically possible that the adopting parents could, by making further private inquiries, locate the birth mother. I do not think that it is reasonable that they be required to do so in circumstances that the Department does not consider it appropriate for it to take steps to do so, given the concerns that it has identified as to potential prejudice to its continuing relationship with the Agency. I am therefore satisfied that it would not be reasonable to require further inquiry to be made in respect of the birth mother and that, whatever the previous situation, she cannot now after reasonable inquiry be found. I am also satisfied that it is in the interests of N that a order in respect of the birth mother be made.

4. Other decisions taking this approach are noted by Pembroke J in Application C and C; re Y [2014] NSWSC 634 at [9].

5. Section 67(2) of the Act provides that "the Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child". In this case the Court is satisfied on the balance of probabilities of the existence of one of the matters referred to in s 67(1)(a). There is therefore a proper basis for the consent dispense order to be made. The Court is also satisfied, for reasons which it is unnecessary for me to detail in this judgment, that it is in the best interests of WJP that an adoption order be made in favour of the plaintiffs. Such an order cannot be made without the consent dispense order. For this reason the Court is satisfied that it is in the best interests of WJP that the consent dispense order be made.

Conclusion

1. The Court will make orders in accordance with the Summons, including for the adoption of WJP by the plaintiffs and the consent dispense orders.