SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Case Title: In the matters of the adoptions of NBE and NSE Citation:
[2023] ACTSC 87
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matters of the adoptions of NBE and NSE |
Citation: | [2023] ACTSC 87 |
Hearing Date: | 11 April 2023 |
DecisionDate: | 21 April 2023 |
Before: | McWilliam AsJ |
Decision: | 1) Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT),the Court dispenses with the requirement for the consent of the birth parents of NBE and NSE to their adoption. 2) The parties in proceedings AD 10 of 2022 and AD 11 of 2022 have leave to approach the Senior Deputy Registrar to list the matters for the hearing of the application for adoption orders to be made in relation to NBE and NSE pursuant to Div 3.6 of the Adoption Act 1993. 3) There is no order as to costs. |
Catchwords: | ADOPTION – application to dispense with requirement for consent of birth parents to adoption of two children by their foster carers – where children have been residing with the same foster carers since infancy – where no realistic prospect of children establishing any relationship with birth parents – dispensation order made |
Legislation Cited: | Adoption Act 1993 (ACT) ss 5, 6, 26, 30, 35, 64, 112 Court Procedures Rules 2006 (ACT) r 3171 |
Cases Cited: | In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25 |
Parties: | Director-General, Community Services Directorate (Applicant) [Not Published] (Respondent) |
Representation: | Counsel I Collins (Applicant) No appearance (Respondent) J Cruise (Children’s Representative) |
| Solicitors ACT Government Solicitor (Applicant) No appearance (Respondent) ACT Legal Aid (Children’s Representative) | |
File Number: | AD 10 of 2022; AD 11 of 2022 |
McWilliam AsJ
The Director-General, Community Services Directorate (Director-General) is in the process of facilitating the adoption of two male children, who are siblings and currently in foster care, with long term parenting orders made in favour of the Director-General.
The long term foster carers have applied to adopt the children, who are seven and eight. I will refer in these reasons to the oldest child as NBE and the youngest child as NSE, in order to comply with the requirements of the Adoption Act 1993 (ACT) (Adoption Act), and in particular, the requirement for privacy (s 64) and confidentiality (s 112).
Proceeding AD 10 of 2022 concerns NBE. Proceeding AD 11 of 2022 concerns NSE. The matters are travelling together.
In the context of those overarching applications for adoption, the Director-General has brought an interlocutory application in each proceeding, seeking the dispensation of the statutory requirement for the birth parents’ formal consent to the adoption of the two children. Because of the substantial overlap in considerations concerning the children, these reasons deal jointly with the separate applications made in each proceeding.
Applications before the Court
The starting point is that before any orders for the adoption of the children can be made, the birth parents must each provide consent to the respective adoptions (see s 26 of the Adoption Act).
Neither birth parent has provided formal consent pursuant to the requirements of s 30 of the Adoption Act, which requires consent to be in a particular form.
Accordingly, an application in each proceeding has been filed pursuant to s 35 of the Adoption Act seeking the dispensation of the requirement for each parent’s consent.
Notice of the applications
Rule 3171 of the Court Procedures Rules 2006 (ACT) (Rules) provides that the application and supporting affidavit must be served on the interested parties 28 days before the application is heard. There was affidavit evidence before the Court from Ms Jamie Edwards, affirmed 17 March 2023, confirming that each birth parent had been personally served on 3 March 2023. As the applications for dispensation were heard on 11 April 2023, I am satisfied that each birth parent was properly on notice of the application and that the Director-General has complied with the Rules pertaining to service. Neither appeared at the hearing.
The Court’s power to dispense with consent
Under s 35(1) of the Adoption Act, the Court may make an order dispensing with the requirement for consent of a person to the adoption of a child or young person in a variety of circumstances, one of which is where it is satisfied that “it is necessary in the best interests of the child or young person to dispense with the requirement for consent of the person” (s 35(1)(c)).
Those words have been interpreted to mean that “it is necessary to dispense with the requirement for consent of the person because adoption is in the best interests of the child or young person”: In the matter of an adoption of QS (No 2) [2021] ACTSC 107; 16 ACTLR 25 at [58].
Sections 5 and 6 of the Adoption Act deal with the factors to consider when deciding what is in the best interests of the child or young person:
5Best interests of child or young person paramount consideration
(1)A person making a decision under this Act in relation to a child or young person must regard the best interests of the child or young person as the paramount consideration.
(2)In forming a view about the best interests of a child or young person, a person making a decision under this Act must take into account the following:
(a)the likely effect of the decision on the life course of the child or young person taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging;
(b)the child’s or young person’s age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances;
(c)the child’s or young person’s cultural, physical, emotional, intellectual, and educational needs;
(d)the views expressed by the child or young person in relation to the decision (including views expressed with adequate and appropriate support to actively participate, to the best of their ability, in consultation related to the decision);
(e)taking into account the benefit of maintaining meaningful relationships, the likely effect of the decision on the child’s or young person’s relationship with the following people:
(i) the child’s or young person’s birth parents;
(ii) the child’s or young person’s siblings (if any);
(iii) the child’s or young person’s other relatives;
(iv) carers or other significant people in the child’s or young person’s life;
(f)the relationship the child or young person has with the adoptive parents;
(g)the suitability and capacity of the adoptive parents to meet the child’s or young person’s needs;
(h)the alternatives to adoption for the child or young person to secure permanent family arrangements;
(i)the continuity and sense of belonging that comes from a child or young person having stable emotional and physical living conditions;
(j)the need to protect the child or young person from physical or psychological harm associated with exposure to abuse, neglect or family violence.
Section 6 of the Adoption Act contains mandatory, additional considerations if the child or young person is Aboriginal or Torres Strait Islander. Those considerations do not apply here.
The evidence
The substantive evidence in support of the dispensation applications was provided in affidavit form by:
(a) Ms Leanne Graham, a social worker employed within Child and Youth Protection Services (CYPS) who is the case manager with the daily carriage of the matters involving the two boys involved; and
(b) Ms Rebekah van der Spek, who has a Masters in social work, is employed in the ACT Together consortium and in that role, has the case management for the two boys.
Both have a high degree of familiarity with the families involved in fostering the two boys and their broader family circumstances.
Is adoption in the best interests of NBE and NSE?
The likely effect of the decision on NBE and NSE’s life course, taking into account the need to preserve their cultural inheritance, personal identity and sense of belonging
The likely effect of the decision will be beneficial for the life course of both NBE and NSE. The boys were taken into the care of the Director-General following steps that were taken when they were both infants (less than 12 months old) following neglect by the birth parents.
The boys have been in the care of their current foster carers (the proposed adoptive parents) from July 2016 to date. The evidence disclosed a well-established sense of belonging and identity within the foster carers’ family unit. Detailed evidence was provided as to the boys’ understanding of their family tree and the attempts the carers have made to engage with the birth parents and the boys’ siblings and half siblings. It is unnecessary to set the evidence out in full here. It suffices to find that the stability of the boys’ present family environment in practice would be further enhanced by an adoption order in favour of the adoptive parents. Because the boys are at an age where they have an awareness of what adoption means (discussed below) this would then promote their sense of belonging.
In terms of cultural heritage, the boys have a diverse ethnic and cultural background. Their birth father is of Colombian heritage. Their birth mother is of Finnish heritage through her paternal side, and Swedish through her maternal side. Historically, efforts have been made to maintain cultural connections, through either contact with the birth parents or with their extended families. I accept that the present lack of connection with the birth parents, now for many years, is not through any lack of effort on the part of the foster carers.
In the absence of sharing culture through a connection to the birth parents, the foster carers have supported the children’s cultural awareness and identity in a variety of different ways. These include creating laminated cards about Finnish and Colombian culture that the boys can access when playing. The carers talk about and link interests to what they know of the two cultures, such as making them aware of small snippets of Spanish, through dual-language books. The carers have taken the boys to events at the Finnish Embassy and also participated in an event for Colombian Independence Day. The carers have taken the boys to the multicultural festival, where they visit the stands for Finland and Colombia. Sometimes the carers cook food that is from these cultures and talk about the animals or environment of each country. The boys are able to identify the countries of Finland and Colombia in the world map.
The clear intention of the carers is to preserve the boys’ cultural heritage and to maintain connections to the heritage of their birth parents whenever opportunities to do so arise. I accept there is an expectation that the children will be raised with a sense of pride of their cultural background and in an environment where they can speak openly and ask questions. An adoption order is unlikely to have any detrimental effect on the preservation of the boys’ cultural heritage or personal identity.
Age, level of understanding, level of maturity, gender, personal characteristics and individual circumstances of NBE and NSE
Cultural, physical, emotional, intellectual, and educational needs of NBE and NSE
As these two considerations partially overlap, it is convenient to address them together.
Historically, NBE (the eight-year-old) had developmental delays and was described as having a history of complex developmental trauma by Dr Taryn Bloom, the Clinical Psychologist who completed a neuropsychological assessment for him. However, his circumstances have improved markedly under the care of his foster carers. There are otherwise no particular physical needs that either boy has which require separate comment. NBE has high intellectual ability, but with dyslexia in reading. He also has symptoms consistent with ADHD.
Dr Bloom also completed a neuropsychological assessment for NSE (the seven-year-old). NSE was also assessed as having a high intellectual ability, with symptoms consistent with ADHD Hyperactivity-Impulsive presentation, and oppositional defiant disorder. He also has a number of therapeutic needs, displaying strong emotions and poor impulse control, among other things. The foster carers have been reported as being attuned to those needs, implementing calming strategies, ensuring one-on-one quality time, providing stability through routine and clear expectations around behaviour.
The carers are in the process of implementing the therapeutic recommendations made for each boy and I accept that the Court can have a degree of confidence from their past conduct that they will access the therapeutic supports available for each child in an appropriate way.
In terms of educational needs being met, the children both regularly attend the same primary school. NBE is in year three and NSE is in year two. The schooling of the boys was adversely affected during the home-schooling period imposed as a response measure to the COVID-19 pandemic. Between April and June 2022, NBE and NSE were also home schooled, spending three months travelling around Australia with their foster carers. During this time, they completed distance education. Their most recent school reports following their return from travel were before the Court. The reports are generally positive and encouraging. There was no indication of any matters to suggest that the educational needs of NBE and NSE are not being met. Specifically, NBE has access to appropriate learning supports to manage his dyslexia and ADHD needs at school.
In addition, the foster carers have a demonstrated commitment to numerous extra-curricular activities for the boys to promote physical, intellectual and emotional development, which were detailed in the reports.
The cultural needs of the boys have already been addressed above.
On the totality of the evidence provided in the reports, it is clear that the foster carers are providing a high level of care and proactivity in relation to the needs and challenges in raising each child and have done so for the past seven years. I am satisfied that the boys’ general and particular needs are being well met by their foster carers and that they will continue to give those needs the appropriate attention that has been evidenced to date.
NBE and NSE’s views
The boys are reported as having a basic understanding of what adoption means, in that they know their foster carers will become their parents. They were reported as being aware their last name would change and both believed adoption would be very special as their foster carers would become their “forever family”.
The likely effect of the decision on NBE and NSE’s relationship with their birth parents, siblings, other relatives and carers or other significant people in their lives
The various relationships with the relatives and other significant people will be considered in turn.
Birth parents
The boys have not had any form of contact with their birth parents since approximately June 2016. The carers support the boys to write cards for their birth parents and provide photos of the boys to the birth parents throughout the year. Despite the efforts of case workers at CYPS and ACT Together, and the willingness of the foster carers themselves, the numerous opportunities provided to the birth parents to connect and engage with their children have not been taken up. The result is that there is no pre-existing relationship with the birth parents that could be compromised by an adoption order.
Siblings
The boys have a younger sister, who is also under the care of the Director-General and is currently in a separate long-term foster placement in the Territory. The carers for each of the children were friends prior to each becoming foster carers. The placement of the full siblings between the two sets of carers already known to each other has assisted with NBE, NSE and their sister having consistent, regular, and meaningful contact with each other for the entire time that they have been in care. The children have close relationships with each other, and this is considered to be sustainable over the longer term. Both carers view the connection and the sibling relationship as a necessity.
While an adoption order would sever the legal family relationship with their sister, it is unlikely to sever the actual family bonds they have built, or to create a barrier to the maintenance of those bonds through adolescence and adulthood. As the children are all young, it is difficult to predict any longer-term consequences if the children are adopted by different families, but it must be remembered that the children have grown up knowing their sister is living in a different household. It is actually their “normal” family connection and they have achieved family integration with their sister (to the credit of their respective carers) notwithstanding the physical separation. I therefore consider that any potential consequences arising from the boys being adopted severing the legal tie to their sister is far outweighed by the other benefits to be gained discussed in these reasons above and below.
Half-siblings
NBE and NSE have three older half siblings. The eldest two were adopted in New South Wales to separate carers and are now adults. They have had some periodic communication with NBE and NSE, but unsurprisingly, the age gap has meant that there is no actual established relationship.
The third half sibling is currently 15. He resides with his birth mother in Tasmania. They have recently been given information to assist with establishing a connection with their half-brother in Tasmania. An adoption order will not affect whether a relationship with that person and his family is established in the future.
Grandparents
The children’s paternal grandfather and maternal grandparents and maternal great grandmother are known to the Director-General and to the foster carers.
NBE and NSE have had face-to-face contact with their paternal grandfather in the past. At one point it was weekly contact with both children. They know who he is and refer to him as Poppy. Over the last two years, their grandfather’s health has prevented regular contact but there is some relationship between the two. The paternal grandfather is not supportive of adoption. Part of the reason appears to be because their surname would be changed. In my view, the more critical factor for the preservation of the relationship between NBE and NSE with their paternal grandfather will be the grandfather’s ability and willingness to see the boys. The foster carers have indicated a willingness (current and post any adoption order) to facilitate and support the family tie to their paternal grandfather.
Before last year, NBE and NSE had no contact with their maternal grandparents or their great grandmother. However, this has now changed, and the boys have exchanged introductory correspondence and met their maternal grandmother and great-grandmother. While the connection appears to be positive, it is relatively new and I do not consider that an adoption order would be a circumstance that would change the boys’ relationship with their extended family on the maternal side, nor prevent it from being strengthened in the future.
Other significant people in NBE and NSE’s life
NBE and NSE have a younger foster sister living in the same household. They have a strong psychological family bond with her and an adoption order would enhance that connection.
In practice, the likely effect of the decision on the boys’ biological family relationships, including extended family, appears to be minimal. The foster carers have demonstrated both an intention, and an ability outside statutory oversight, to ensure that to the extent the boys have any meaningful relationships with family members, they are maintained.
NBE and NSE’s relationship with the adoptive parents
As might be expected, the boys’ relationship with their foster carers is the same as any natural parent/child relationship, with a warm and loving connection observed between the boys and their carers. NBE and NSE refer to them as “mum and dad”. They identify them as their parents. The grant of an adoption order would serve to remove any doubt or uncertainty about the legitimacy of that relationship that might arise as the boys grow up.
The suitability and capacity of the adoptive parents to meet NBE and NSE’s needs
I accept the evidence contained in each of the affidavits that the carers have provided a high level of attuned care for NBE and NSE for the years that they have been in their care. There are no concerns raised in relation to meeting the needs of either boy. The challenges they will face are the same as any parent would face and they are as well-equipped as any other parent would be. The evidence referred to the carers engaging in “help-seeking” behaviour, and upskilling to manage the new challenges that arise as the boys develop. That indicates a natural parenting desire to do the best they can for their children.
The alternatives to adoption for NBE and NSE to secure permanent family arrangements
Detailed evidence was provided by Ms Graham, as the Director-General’s delegate, of the consideration given to alternatives to adoption. It will be apparent from what has been said above that there are no realistic alternatives to adoption that would secure permanent family arrangements. There is no prospect that either biological parent will at this stage take any permanent parenting role. Similarly, no kinship carer has any relationship with the children to make that person a realistic alternative.
Consideration was given to an enduring parental responsibility order. While that is an alternative option, the considerable disadvantage of such an order is that it is only made until the child attains the age of 18. The carers have shared their perspective in writing as to why, for them, adoption is strongly preferred. They want the boys to have no doubt that they are fully integrated into their family, legally and emotionally. They want the boys to know that their love is for a lifetime. They want all their children to have the same surname so that as they grow up, no one feels a less complete or inferior part of the family. They feel that adoption at a younger age would profoundly increase the feeling of belonging and security.
That is a genuine, reasonable view, clearly directed to the best interests of the boys. I accept that adoption is preferable to any of the alternative options available to secure permanent family arrangements.
The continuity and sense of belonging that comes from a child having stable emotional and physical living conditions
NBE and NSE already have stable emotional and physical living conditions. An adoption order will serve to further reinforce the permanency and finality of this.
The need to protect NBE and NSE from physical or psychological harm associated with exposure to abuse, neglect or family violence.
NBE and NSE have been the subject of long-term care and protection orders. As a result, the need to protect either of the boys from exposure to abuse, neglect or family violence has long since ceased. There may have been historical reasons, but this factor is neutral as the boys will remain with their current foster carers with or without an adoption order.
Conclusion
Having considered each of the mandatory considerations, I am satisfied that adoption is plainly in the best interests of each of NBE and NSE. As I have said in relation to other cases where the child has been in care since birth for many years, such an order would achieve at law what is already the case in practice. A dispensation order in respect of the requirement for the birth parents’ consent to the adoption of NBE and NSE by their current foster carers is necessary.
For the above reasons, the orders of the Court are as follows:
1) Pursuant to s 35(1)(c) of the Adoption Act 1993 (ACT),the Court dispenses with the requirement for the consent of the birth parents of NBE and NSE to their adoption.
2) The parties in proceedings AD 10 of 2022 and AD 11 of 2022 have leave to approach the Senior Deputy Registrar to list the matters for the hearing of the application for adoption orders to be made in relation to NBE and NSE pursuant to Div 3.6 of the Adoption Act 1993.
3) There is no order as to costs.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 21 April 2023 |
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