The Adoption of a Child

Case •

[2022] NSWSC 1737

•

14 April 2022

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: The Adoption of a Child [2022] NSWSC 1737
Hearing dates: 17 February, 14 March, 14 April 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction:Equity - Adoptions List
Before: Slattery J
Decision:

Orders made dispensing with the consent of the birth parents. Orders for the adoption of the child made. Adoption plan approved.

Catchwords:

ADOPTION – contested adoption – Adoption Act 2000, ss 52, 67, 90 and 91 – application to dispense with the consent of the birth mother and birth father and for adoption orders to be made in respect of an infant child – birth mother and birth father do not consent to the making of adoption order – child has been with adoptive parent since leaving hospital postpartum – child is now 3 years old – whether an adoption order is in the best interests of the child – consideration of the alternatives to an adoption order – whether child’s surname should be changed to be that of the prospective adoptive parent.

Legislation Cited:

Adoption Act 2000, ss 8(1), 8(2), 27, 45F, 50, 52, 67(1)(d), 90, 91

Child and Young Persons (Care and Protection) Act 1998

Category:Principal judgment
Parties: Plaintiff: The Secretary, NSW Department of Communities and Justice
Defendants: The birth mother and birth father
Representation:

Counsel:
Plaintiff: N. Hailstone (14 March), G. Moore (14 April)
Defendants: Self-represented.

Solicitors:
Plaintiff: S. Whittaker, Crown Solicitors Office
File Number(s): 2021/271855
Publication restriction: Yes

Judgment

  1. The plaintiff, the Secretary (“the Secretary”) of the Department of Communities and Justice (“the Department”) seeks an order under Adoption Act 2000 (“the Adoption Act”) for the adoption of a child (“the child”) in favour of the proposed adoptive parent.

  2. At the time of the hearing, the child was 3 years and 9 months old. During an Adoption Act, s 80 preliminary hearing on 17 February 2022, the birth father told the Court that he opposed the Secretary’s application. The Adoption Act, s 91 report prepared in respect of the proposed adoption indicates that both birth parents opposed the adoption. As is discussed in these reasons, this position evolved over the course of the proceedings. Ultimately neither birth parent consented to the Secretary’s proposed adoption orders but did not propound a case in opposition to the orders. Both birth parents were joined as defendants to the proceedings.

  3. The Secretary seeks orders under the Adoption Act, s 67(1)(d), dispensing with the consent of the birth parents. The Secretary seeks orders for the adoption of the child by the proposed adoptive parent with the child assuming the adoptive parent’s surname. The Court has decided to grant the orders sought. This judgment sets out the Court’s reasons for determining that the orders proposed by the Secretary should be made.

  4. The Secretary was represented by Ms N. Hailstone of counsel on 14 March and Mr G. Moore on 14 April, instructed by Ms S. Whittaker from the Crown Solicitor’s Office. The birth father was present in Court at the first hearing on 14 March 2022. The birth mother appeared by audio on that date. Both parents appeared in Court for the final hearing on 14 April 2022.

  5. The Court gave ex tempore oral reasons for judgment on 14 April 2022. Those reasons have now been anonymised for publication.

  6. These reasons set out a narrative of the relevant facts about the child, her birth parents, and her proposed adoptive parent that are essential to the Court’s decision. The history provided in these reasons is necessarily less detailed than the material set out in the evidence filed in these proceedings.

  7. The Court has considered all the evidence, including the affidavit of the delegates to the Secretary, Elise Marie Menser and Leanne Martin, and the affidavit of the adoption assessor, Janet Coller, annexing a report as required by Adoption Act, s 91(1). Other affidavits filed include those of the proposed adoptive parent and her referees. Neither of the birth parents filed an affidavit, though they each spoke from the bar table to put their case during the hearing.

The Child, Her Birth Parents and Birth Family

The Child’s Circumstances

  1. The child was born in Australia and is an Australian citizen. The child was placed with the proposed adoptive parent on 24 June 2018 when she was 13 days old. She has lived with the proposed adoptive parent continuously since this time. The child resides with her full sibling, a 7-year-old girl (“the sibling”) who was adopted by the proposed adoptive parent on 14 February 2020.

  2. The sibling is the biological child of the birth parents and was the subject of prior contested adoption proceedings before being adopted by the proposed adoptive parent in this matter. The sibling was assumed into the care of the Minister for the Department (then known as the “Department of Family and Community Services” or “FACS”) in early 2015 and in late 2015 final orders were made granting the Minister parental responsibility to her until the age of 18 years.

  3. Between 4 May and 23 November 2018 FACS received four Risk of Significant Harm Reports (“ROSH”), in respect of the child. Each report raised concerns regarding the birth parents’ ongoing drug use, family violence and hazardous living conditions (associated with an unclean and unhygienic home). The mother’s mental health was also raised as a concern.

  4. On 11 June 2018, the child was born approximately 6 weeks premature, and was admitted to a Neonatal Intensive Care Unit due to her low birth weight and difficulty in feeding. On 13 June 2018, FACS conducted a safety assessment which concluded that the birth parents had not demonstrated changes to their lifestyle. Since the removal of the sibling from them, the birth parents have not engaged in parenting programs or addressed the concerns that had led to the sibling’s removal.

  5. Of significant concern was the mother’s cannabis use during pregnancy. The birth parents both ultimately failed to demonstrate that they were able to provide a safe and secure environment for the children. On the same day, the child was assumed into the care of the Minister and placed into the proposed adoptive parent’s care in the same household as the sibling.

  6. On 20 June 2018, the Children’s Court of New South Wales (“the Children’s Court”) made interim orders allocating parental responsibility for the child to the Minister until the making of further orders. On 12 July 2018, the Children’s Court made a finding that the child was in need of care and protection, which the birth parents consented to on a without admission basis.

  7. On the same day, the child’s paternal grandmother applied to the Department to be assessed as the child’s carer. But an assessment by the Children’s Court Clinician concluded that the paternal grandmother did not have the capacity to care for the child. The FACS’ Care Plan recommended against guardianship generally, concluding that no relatives were suitable for such an arrangement.

  8. On 10 January 2019, the Children’s Court found that there was no realistic possibility of restoration of the child to the birth parents. The Children’s Court made final Orders approving the FACS’ Care plan and orders providing for the child to be placed under the parental responsibility of the Minister until she attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”). These Orders remain in effect.

  9. During the proceedings the birth parents sought to submit that they were not represented at this hearing. But the court record shows that they were represented by a solicitor.

The Birth Parents

  1. The birth father is of Anglo-Australian background. While in his mother’s care, he was the subject of several ROSH reports. Predominantly raised by his mother, he was exposed to extreme incidents of domestic violence along with parental drug and alcohol abuse, and neglect. The birth father was himself placed under the care of the Minister during his childhood, and subsequently restored to the care of his mother.

  2. He left home at the age of 15 and experienced a period of homelessness. The birth father and the birth mother met when they were teenagers and have been in a relationship ever since, having had the child and before that her sibling.

  3. But incidents of violence have marred their relationship. The birth father was for example observed assaulting the birth mother during a meeting with CatholicCare in October 2018. Following that he entered a Behaviour Change Program for domestic violence with Relationships Australia. He did not demonstrate reportable progress in this program. At the time of the hearing the birth father was in employment and presented well to the Court and took a positive role in attempting to engage the birth mother in the legal process, which was of considerable assistance to the Court.

  4. The birth mother is also of Anglo-Australian background. She was the subject of ROSH reports while in the care of her mother, father, extended family and step-father when growing up. The birth mother experienced a childhood characterised by chronic abuse and neglect. In the opinion of clinical psychologists who have examined her, the traumas the birth mother experienced in childhood probably affected her intellectual development and mental health. The expert evidence suggests that the birth mother has poor understanding of the minimum standards of care which a child requires.

  5. The birth parents live together in a domestic relationship. The evidence supports the conclusion that they are not readily able to fully appreciate the effects of violence in their own relationship. Intensive casework support has been provided to the birth parents. But they still from time-to-time experience substance misuse, psychological trauma, and domestic violence. But at the time of the hearing the birth mother was pregnant with their third child and the birth father presented as solicitous for her welfare in the courtroom.

The Child’s Extended Birth Family

  1. The child’s relationship with her sibling must be considered in any adoption plan. The child and her sister have developed a healthy relationship while within the care of the proposed adoptive parent. The Court heard from all sides that maintaining the status quo in this regard was in the child’s best interests.

  2. The child’s paternal grandmother wishes to maintain contact with her granddaughter. It is reported that the child and her paternal grandmother share a positive connection and a warm and loving bond. The paternal grandmother relocated to Queensland but maintains telephone contact and has returned to New South Wales to visit her grandchildren. The child’s maternal extended family, including her paternal uncle, grandmother and aunt also maintain contact with the child and her sister through visits from time to time. The adoption plan makes provision for the maternal and paternal grandmothers to attend contact visits with the birth parents.

The Proposed Adoptive Parent

  1. The proposed adoptive parent has continually demonstrated generosity when providing access to the child’s birth family. The birth father agreed that she had “gone above and beyond her legal requirements to allow the children to see their family”.

  2. The proposed adoptive parent facilitates bi-monthly visits with the birth parents and additional visits for special occasions. She has been open to including extended family into the visits, including visits to the child’s paternal uncle’s house which she identified as a natural environment for the child and her sister. The proposed adoptive parent expresses optimism regarding previous family visits and her communication with the child’s birth parents, paternal grandmother and maternal grandmother. She speaks positively of her relations with the birth parents.

  3. The proposed adoptive parent maintains a “Life Story” photobook, which contains photos of the child and her extended family. The proposed adoptive parent makes a concerted effort to take photos during visits, and sends the photos to the child’s birth parents, paternal grandmother and maternal grandmother after the visits. She regularly shows the child pictures of her birth parents and extended family while talking about the child’s time spent with her birth parents and generally presenting her birth family in a positive light.

  4. Although the child is too young to understand adoption, the proposed adoptive parent is committed to maintaining an openness with her about her adoption. The proposed adoptive parent has been through this process with the sibling and appears to have handled explaining this concept effectively. The proposed adoptive parent demonstrates a proactive approach to preparing the child for when she begins to understand adoption.

  5. The child has demonstrated to various Departmental caseworkers and to the author of the Adoption Act, s 91 report, Ms Coller that she has a close attachment to the proposed adoptive parent and her sibling and that they all connect well as a family unit. The adoptive parent views the making of adoption orders as legal acknowledgment of her existing commitment in taking full parental responsibility for the child, by allowing her to make legal decisions in the child’s best interests as she grows up.

  6. The proposed adoptive parent does not have any other children from previous relationships. The only other child in her care as the sibling. The proposed adoptive parent is Anglo-Australian and is a Christian. She is not related to the child.

  7. The Court is satisfied that the proposed adoptive parent is resident and domiciled in New South Wales, is of good repute and is a proper person to fulfil the responsibilities of a parent: Adoption Act ss 29(1)(a) and 29(1)(b).

  8. The time of the hearing the proposed adoptive parent was 53 years old and is employed in the field of social work as a coordinator. She has a temporary medical condition for which she is receiving treatment. She has been screened and cleared in nationwide criminal record and working with children checks.

  9. The proposed adoptive parent has a long history of providing foster care and has dedicated much of her life to providing care and support to children and families and working with organisations that assist in achieving that objective. Between 2002 and 2006 she was a full-time foster carer. At various times between 2003 and 2020, she worked as a family support worker for a church, and in managerial and coordinator roles for DrugARM, PCYC, Barnardos, Connectability, and Key Assets. The proposed adoptive parent has an unusually rich experience in foster care, bonding with children and in the management side of support structures for foster care. She has a uniquely well-qualified background to assist her in understanding all the requirements of the child and her sibling.

  10. The proposed adoptive parent has established a suitable home which provides for the child’s housing needs. She purchased a four-bedroom house containing a fenced front and rear yard and an internal driveway which the child and her sibling can enjoy. The child rides her tricycle on the driveway and plays in both yards. And she plays with her toys in her bedroom and the back area of the house.

Adoption by a Single Proposed Adoptive Applicant: s 27

  1. The proposed adoptive parent proposes to adopt the child as a single parent. Adoption Act, s 26 provides that an adoption may be made on behalf of one person or jointly on behalf of a couple. Adoption Act, s 27 provides for adoption by one person. There is no material difference under the Adoption Act in the factors the Court must apply when considering adoption by one person or by a couple: cf Adoption Act, s 28. The best interests of the child remain paramount.

  2. There are two distinct steps in that assessment. The first step under the Adoption Act, s 45F and the Adoption Regulation 2015 (“the Regulation”), cl 59, is the for approval of a person as a suitable prospective adoptive parent. Such approval has been granted by the appropriate decision-maker under the regulation. The proposed adoptive parent has been assessed as suitable to adopt the child under the process mandated by Adoption Act, s 45F.

  3. The second step directs the Court’s attention to whether the requirements of Adoption Act, s 45F have been fulfilled, in accordance with s 90(1)(c) of the Adoption Act. The Court should in each case have regard to the considerations set out in Adoption Act, s 8 in assessing whether adoption is in the best interests of the child.

  4. For a single proposed adoptive parent, factors to which the Court may pay particular attention include the financial circumstances of the proposed adoptive parent, the proposed adoptive parent’s individual capacity to provide for the child, and the provision of contingency arrangements in the event the parent loses parental capacity.

  5. The proposed adoptive parent’s current financial situation is stable. She owns her principal place of residence and her repayments on that property are well covered by her income. Her other assets include an investment property, superannuation, life insurance, savings, a motor vehicle, and personal effects. Her investment property is geared positively and provides her with a stable rental income. She receives other steady income from CatholicCare and Centrelink. The Court is satisfied that the proposed adoptive parent’s current financial position gives her ample capacity to provide a stable environment for the child and the sibling in future.

  6. The proposed adoptive parent has addressed appropriate contingency planning in case she requires temporary assistance with the child, or where her parenting capacity is compromised prior to the child reaching 18. Ms Coller, in her s 91 report concluded:

[The proposed adoptive parent] has a sound, supportive network of friends and family, as well as a professional network through her workplace from which she can still call upon if needed. I am confident that [the proposed adoptive parent] has the capacity to parent autonomously.

  1. The adoptive parent deposed that should something happen to her such that she cannot care for the child then her brother and his wife would care for the child and her sibling. The adoption assessor spoke with the adoptive parent’s brother and his wife. The assessor reports that the couple are willing to fulfill this role should such circumstances arise. The child is closely familiar with them as part of the proposed adoptive parent’s family circle. The proposed adoptive parent has also expressed that, should an adoption order be made, she intends to update her will to include the child as a beneficiary and to name her brother and his wife as her guardians.

  2. The Court is satisfied that the proposed adoptive parent meets the requirements under Adoption Act, s 27.

The s 91 Report

  1. Ms Janet Coller provided an Adoption Act, s 91 report dated 21 July 2021. The Court accepts the report’s observations and conclusions, which have been used in the Court’s reasoning. The Court notes that Ms Coller refers to the proposed adoptive parent as being “proactive in meeting the emotional needs of [the child], and… interacting appropriately when meeting [the child’s] physical needs.”

  2. The s 91 report draws the following conclusions. The proposed adoptive parent identifies a strong attachment to the child and her sibling. Ms Coller noted that the proposed adoptive parent maintains close physical contact with the child, and the child seeks her for physical affection and comfort. The proposed adoptive parent has been highly responsive to the child’s medical needs, proactively addressing several potential medical and developmental issues. She has taken the child to numerous specialists, and this has assisted in ruling out medical concerns and treating diagnosed medical conditions. The child is now meeting all developmental milestones.

  1. According to Ms Coller the child refers to the adoptive parent as “Mum” and “Mummy”. Ms Coller describes the home which the proposed adoptive parent provides as “safe, stable and loving”. She concludes that the proposed adoptive parent is appropriately motivated to seek the child’s adoption and understands her legal responsibilities and exclusive parenting rights. The Court is satisfied that the proposed adoptive parent is committed to discharging her parental responsibilities while remaining sensitive to the importance of maintaining the child’s relationships with her birth family.

Relevant Legal Principles and Their Application

  1. When making an adoption order Adoption Act, s 8(1) requires decision makers to consider several core principles. These principles relevantly include:

“(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; and

(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,”

  1. When determining the best interests of the child, Adoption Act, s 8(2) stipulates the factors to which the decision-maker must have regard. These factors include any wishes expressed by the child, the child’s age and maturity and emotional and educational needs, the relationship the child has with parents and others, the attitude of the proposed adoptive parent(s) to the responsibilities of parenthood, the relationship of the child with the proposed adoptive parent(s), the wishes of the parents, the need to protect the child from physical or psychological harm, and the alternatives to making an adoption order.

  2. The decision-maker is required by Adoption Act, s 90 to be satisfied of certain matters. Adoption Act, s 90 relevantly provides:

“(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

…

(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.”

  1. Adoption Act, s 91 prevents the Court from making an adoption order unless a written report is provided to the Court by the plaintiff. As earlier indicated, a s 91 principal report was provided by Ms Janet Coller.

  2. These reasons now set out the Court’s consideration of the best interests of the child consistent with the requirements prescribed under Adoption Act, s 8(2): ss 90(1)(a), 90(3).

The Child’s Wishes: s 8(2)(a) and 90(1)(b)

  1. The child is too young to consent to her adoption. She does not yet understand the adoption process. The only indirect indication of the child’s wishes is her recognition of the people in her life.

  2. The child demonstrates a strong sense of belonging to the proposed adoptive parent and to her sibling as a family unit and sees her identity as being strongly tied to them. The child identifies the proposed adoptive parent as either “mum” or “mummy”. And the child has a strong relationship with the proposed birth parent’s father, whom the child refers to as “grandpa”. The proposed adoptive parent’s mother also maintains a relationship with both the child and the sibling, as Ms Coller describes it, “attuned to that of a grandmother and granddaughters”.

  3. And the child is aware of her relationship with her birth parents, readily recognising them as “mummy” and “daddy”. She refers to her paternal grandmother as “nan”. She refers to her maternal grandmother as “grandma”.

Consent to the Adoption: ss 90(1)(d) and 67(1)(d)

  1. The Secretary’s delegate has provided the requisite consent to the adoption of the child under Adoption Act, s 52. As neither birth parent consents to the adoptions, the Secretary has sought orders dispensing with their consent, which the Court considers appropriate in the circumstances.

  2. The Court is satisfied that the birth parents’ consent can be dispensed with pursuant to the Adoption Act, s 67(1)(d), on account of the child having established a stable relationship with the proposed adoptive parent, who is her “authorised carer”. And that the child’s adoption by the proposed adoptive parent will promote her welfare.

  3. The child has lived with the proposed adoptive parent since she was 13 days old. The adoptive parent has provided a safe, stable, and nurturing environment for the child to thrive. Ms Coller observed:

“It is clear in observing [the child’s] interactions with [the proposed adoptive parent] and [the sibling], that she has a strong sense of belonging to the [adoptive parent’s] family and sees her identity as being strongly tied to [the adoptive parent]…”

“[The child] approaches [the adoptive parent] without hesitation, for physical affection or assistance with a task. I observed [the adoptive parent] to take time to understand [the child’s] requests, and to respond to her verbally and physically in meeting those requests.

[The proposed adoptive parent] identified a strong attachment to both [the child] and [the sibling] and describe the love of both girls as being “overwhelming, I am so attached”. While in [the proposed adoptive parent’s] home, I observed her to maintain close physical contact with [the child] and [the sibling] and engage [the child] in activities and conversations with humour and ease. The child seeks [the proposed adoptive parent] for physical affection and comfort and maintains eye contact while verbally engaging with [the proposed adoptive parent]. [The proposed adoptive parent] and [the child] enjoy special time together whilst [the sibling] is at school, and often sit and have cuddles on the lounge or engage in cooking and play activities. [The proposed adoptive parent] is of an easy-going nature and appears to take matters in her stride without becoming unduly stressed.”

  1. The proposed adoptive parent has been proactive in taking care of the child’s physical, emotional, and psychological needs. She also demonstrates a strong focus on the child’s future, taking deliberate steps to surround the child with options for education and recreational activities. The proposed adoptive parent has introduced the child to the Christian faith and has thoughtfully considered the beliefs of the child. She has also expressed a ready openness to family contact arrangements which demonstrates her understanding of the child’s most complex future emotional needs. A telling example is her plan to maintain contact with the birth parents should the parents separate. On the totality of the evidence, the Court is satisfied that the proposed adoptive parent is committed to ensuring that the full range of the child’s needs are met.

Adoption Plan: s 91(1)(h) - 90(2)

  1. The adoption plan has been agreed to by the proposed adoptive parent and the Secretary. The birth parents did not sign the adoption plan but they have expressed in Court their general satisfaction with the way that is working in practice and with the proposed adoptive parent’s positive and inclusive approach to the obligations it represents on her side.

  2. Adoption Act, s 46(2A) enables a birth parent who does not consent to the adoption nevertheless “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”. This has occurred in this case.

  3. The registration of the adoption plan requires the approval and consent of two parties, which condition is fulfilled here by the consent of the Secretary and the proposed adoptive parent.

  4. The adoption plan provides for the child to have contact with the birth parents at least six times per year, for a minimum of 2 hours. A visit is to occur for Mother’s Day, Father’s Day, Christmas, and the child’s birthday. Additional visits may be arranged for special occasions as agreed between the proposed adoptive parent, the mother, and the father. The adoption plan also provides for telephone calls and other communications to occur between the child and the mother and father in the future, when the child is older and able to act on her own wishes to communicate with the birth parents.

  5. This contact regime has been in place and operating for some time and contact between the child and the birth mother and birth father has been positive. The Court is satisfied that the adoption plan is in the best interests of the child.

Alternatives to an Adoption Order: s 90(3); s 8(2)(k)

  1. Adoption Act, s 90(3) requires 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. That requires the Court to examine the other possible actions to see whether the making of an adoption order for the child is “clearly preferable” to these other actions.

  2. There are three possible alternative courses here to the making of an adoption order. Those alternatives are the following: (a) to maintain the status quo with no new order; (b) to make an order to restore the child to the care of her birth parents (although no formal application by either parent or a family member has been made); and (c) to make an order other than an adoption order in favour of the proposed adoptive parent such as an order for parental responsibility. Otherwise, the Court can make an adoption order.

  3. The Secretary’s submissions supporting the making of an adoption order are persuasive. The making of an adoption order is in the best interests of the child.

  4. The child was removed from the birth parents’ care and responsibility because of the unsafe environment that the child would enter upon leaving hospital. This is on account of the parents’ cannabis-use, lack of hygiene and inadequate and unreliable parenting. The child has been in the full-time care of the proposed adoptive parent since she was 13 days old. She lives with her biological sister and has formed a strong connection with her and the adoptive parent during the first four years of her life.

  5. To pursue option (a) is not in the child’s best interests. Maintaining the status quo would leave the child as a ward of the State until she turns 18. It would also mean that the proposed adoptive parent is unable to make significant decisions regarding the child without informing and seeking the approval of the Minister’s delegate. Indeed, the birth father recognising his own submissions to the Court that this option would place the child in a very different position to her sister and in a position which is in real tension with her lived experience in the proposed adoptive parent’s household. That could potentially create division between the sisters which is not in the child’s best interests.

  6. To pursue option (b) is not in the child’s best interests. On 10 January 2019, the Children’s Court found that there was no realistic possibility of restoration of the child to the birth parents. This finding is supported by the Department and CatholicCare. And there has also been no formal application for restoration of the child from either of the birth parents or from a family member; nor is one foreshadowed. And given that the child is now nearly four, that is significant.

  7. Most importantly, to separate the child from the adoptive parent and restore her to her birth parents would be likely to cause her immediate distress and anxiety. And it would be likely to pose a danger to her welfare because of the continuing lack of permanency in her situation: it being an extremely remote prospect that the Children’s Court would make an order in favour of the birth parents regaining parental responsibility of the child. Moreover, in his own oral submissions to the Court the birth father recognised the difficulties with attempting to pursue this option now.

  8. To pursue option (c) is not in the child’s best interests. An order allocating parental responsibility to the proposed adoptive parent would alleviate some of the disadvantages of maintaining the status quo but would remain a temporary order that would expire when the child attains 18 years of age. The Minister and various caseworkers would continue to be involved in decision-making for the child. This would be the case despite the proposed adoptive parent amply demonstrating a capacity to make decisions for the child at a time in her life when she has the least agency. There is a further risk that the child may experience stigma arising from the fact that she would continue to be a “foster child”, rather than living in a family that is recognised at law as her own. Such an order lacks the permanency required for the child’s long-term best interests.

  9. In the view of the Court, making an adoption order would vest legal parenthood in the individual that has cared for the child continuously since infancy. The legal status of parenthood is a fundamental foundation for the child’s life. To leave this ambiguous is to foster instability. Deciding about her legal parenthood will also provide for the continuation of a clear legal relationship with the proposed adoptive parent when the child develops beyond 18 years of age.

The Child’s Emotional and Educational Needs and Any Disability: ss 8(2)(c) & (d)

  1. In determining the child’s best interests when deciding upon an adoption the Court must have regard to the child’s “physical, emotional and educational needs” including her “sense of personal family and cultural identity” and including “any disability the child has”: Adoption Act, ss 8(2)(c) and (d). These considerations weigh in favour of making the proposed adoption order for the child.

  2. The child’s emotional needs have been discussed above. The proposed adoptive parent well meets the child’s physical and educational needs and manages the child’s slight developmental issues. Overall, the child is healthy. She exhibits mild asthmatic symptoms which are being managed with prescribed medication being administered on an as needed basis. A paediatrician, Dr Chanka Nanayakkara examined the child on 3 November 2020 in relation to concerns about the pace of her language development. Dr Nanayakkara diagnosed the child with mild expressive language delay and recommended intervention.

  3. On 25 June 2021, a speech pathologist Ms Sarah Moran, assessed the child and reported that she presents with a mild language disorder, mild receptive language delay (which is thought to be secondary to conductive hearing loss resulting in delayed speech sound development). Ms Moran reports that following subsequent therapy sessions the child has made significant progress with her speech development. And the proposed adoptive parent reports improvement following ongoing speech therapy. Aside from mild speech delay, the child is within normal physical and intellectual developmental limits.

  4. The child currently attends day care three days per week. She is meeting age-appropriate milestones and her social, emotional, fine motor, gross motor and language skills are developing well. She is an inquisitive learner, easily develops bonds with her educators and peers and has no significant behavioural concerns. Dr Nanayakkaa describes the child as “very cooperative and engaging”. At home she has been observed to be strongly emotionally connected to the adoptive parent, as the observations above from Janet Coller’s report illustrate.

  5. From the time that the child entered her care, the proposed adoptive parent has demonstrated her commitment to attending to the child’s needs. The proposed adoptive parent is an attentive carer and ensures that the child attends regular medical check-ups, and she carefully manages the child’s mild asthmatic symptoms.

  6. The child was enrolled in swimming lessons in 2020 and the adoptive parent intends to enrol her in “Gymbaroo” (an early life development program) and dance classes soon. As she gets older, the proposed adoptive parent proposes to enrol her into music classes. And when she reaches the appropriate age, the proposed adoptive parent will arrange for her to attend the local Catholic primary school with her sister. The Court is satisfied on the evidence that the child is thriving in her placement with the proposed adoptive parent.

Need to Protect the Children from Physical or Psychological Harm: s 8(2)(j)

  1. The Court accepts the affidavit evidence and s 91 report that the child is strongly attached to the proposed adoptive parent who has created a physically and psychologically safe environment for the child.

  2. Because of the circumstances set out earlier in relation to the parents, the Court is not confident that the birth parents can protect the child from physical or psychological harm. The birth father said himself: “[i]t would be rather traumatic on the poor little thing to take her away from the family she has always had, and put her back into our care.”

  3. The child left the care of her birth parents when she was two days old. This meant the child avoided any psychological trauma resulting from her removal from her birth parents. From 13 days old when she was given her present placement the child has developed a strong bond with the proposed adoptive parent and her sibling. There, the child enjoys a nurturing, safe and supportive environment.

  4. Protecting the child from physical or psychological harm weighs in favour of making an adoption order. Making an order for adoption will support the child’s sense of security with the proposed adoptive parent, whom she psychologically identifies as her mother. Bringing her legal relationship into conformity with her lived relationship will promote and protect the child’s psychological and emotional wellbeing.

Wishes of the Birth Parents: s 8(2)(e)

  1. As indicated earlier in these reasons, the birth parents do not consent to the making of adoption orders. Their submissions evolved over the course of the proceedings and ultimately their position was that each did not defend the claim for an order for adoption through a positive case, but each did not consent to the order. At the hearing the Court heard mainly from the birth father, and at times from the birth mother when questions were directed towards her. Their views are also outlined in the s 91 report.

  1. On 12 November 2020, Ms Coller interviewed the birth mother. She informed Ms Coller that she would contest the adoption. She also expressed that she did not want the child’s name to be changed. When discussing the draft adoption plan, the mother spoke positively of her visits with the child. She indicated that she would be content with the child’s adoption plan to be drafted in line with the sibling’s.

  2. On 12 November 2020, Ms Coller also interviewed the birth father. Similarly, the father initially told Ms Coller that he would contest the adoption and that his main concerns for the child’s proposed adoption were around “community and identity”. The father retains the belief that all children “need a mother and a father” and expressed to Ms Coller that he wanted the child to know that he and the mother did not give her up. The father further stated that changing her surname was rubbing “salt in the wound”, although recognised the importance of the child and her sister having the same surname. The father also commented that “it makes sense” for the child’s adoption plan to be drafted the same as the sibling’s.

  3. Despite contesting the adoption, the birth parents have complimented the parenting efforts of the proposed adoptive parent. As the birth father admirably conceded during the hearing:

She's grown to be quite a fine young girl. Again, my statement, even (inaudible) don't have ability like [the proposed adoptive parent] to parent the girl. She is turning into a wonderful girl. I am a bit worried about the education and literacy, but I suppose that's between me and [the adoptive parent].

  1. At the hearing and within the s 91 report the birth parents both expressed a dissatisfaction with the process in which the child was removed from their care. Each expressed in their own terms that they were not given a chance to demonstrate their fitness to parent. But the removal of the child from their care was the subject of the Minister’s delegate’s exercise of authority and the Children’s Court proceedings at which they were represented. The parent’s early contentions on this were not strongly pressed at trial.

Relationships with Birth Parents, Siblings and Significant Others: s 8(2)(f)

  1. Under the adoption plan, it is proposed that the birth parents will have six contact visits for two hours each year, facilitated by the adoptive parent. A visit is to occur for Mother’s Day, Father’s Day, Christmas and the child’s birthday. Additional visits may be arranged for special occasions as agreed between the proposed adoptive parent, the mother and the father. The paternal grandmother, the maternal grandmother, the maternal great grandmother and a maternal aunt are also able to attend these visits.

  2. The adoption plan also provides for telephone calls and other electronic communication to occur between the child and the parents in the future, when the child is older and able to communicate more clearly.

  3. The proposed adoptive parent organises family visits and communicates regularly with the mother and father by text message to update them on the child’s progress. She supports the child in having contact with her birth family and recognises the importance of the child maintaining a connection to her birth family and understand her personal identity. This has allowed the child to maintain a positive relationship with her birth parents.

  4. The proposed adoptive parent speaks positively about the mother and father, saying words to the effect, “we’re going to see your other mummy and daddy soon, it’s going to be so much fun” or “that was so much fun seeing your mummy”. The proposed adoptive parent also facilitates the relationship between the child and the birth parents on important occasions such as Mother’s Day and birthdays or Christmas.

  5. Regarding extended family, the Court expects that contact with the paternal uncle’s family which has occurred in the past will continue, should this remain appropriate. Alongside the provision for other extended family in the adoption plan, the Court is therefore satisfied that the child’s relationship with her birth parents and family has been given adequate priority and consideration.

The Proposed Surname Change: s 101(1)(b)

  1. On the making of an adoption order, a child is to have such name as the Court approves in the adoption order: s 101(1)(b) of the Adoption Act. Before changing the child’s name, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child wishes: s 101(2) of the Adoption Act.

  2. The child’s surname should be changed to that of the prospective adoptive parent for two reasons. First, in considering the child’s wishes, the Court is satisfied that she is too young to comprehend the consequences associated with changing her surname. Second, the Court weighs heavily the fact the child’s sister’s surname is that of the adoptive parent. At the hearing, the birth father commented that the child changing her surname to that of the proposed adoptive parent, and thus sharing the same surname of the sibling “helps with the unity of the familial unit” and that he didn’t want the child being “the odd one out in [the] household”.

  3. The proposed adoptive parent does not wish to change the child’s first or middle name. The child’s middle name is of familial significance, being the same middle name as her birth mother, her paternal grandmother and her paternal great grandmother. The Court agrees with the Secretary’s submission that the child should retain her given names to preserve the link to her birth parents.

  4. The Court also notes that with the introduction of the Integrated Birth Certificate (“IBC”), the child’s birth parents will be noted on the IBC and this will form an important part of the child’s life story. This assists in mitigating the risk of the child’s recorded link to her birth family being severed.

  5. The Court is satisfied that it is in the child’s best interests to share the same surname as her full sibling and the proposed adoptive parent, who the child identifies as her family. The proposed name change will enhance the child’s sense of belonging, security and stability and formally reflect her membership of the proposed adoptive family.

The Adoption Plan: s 90(2)

  1. The Court is not permitted to 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: Adoption Act, s 90(2). The adoption plan has already been described in these reasons and the Court is satisfied that the plan is in the child’s best interests and is proper in the circumstances.

Conclusion and Orders

  1. Accordingly, the Court makes the following orders:

  1. Pursuant to Adoptions Act 2000, s 67(1)(d), the consent of the child’s birth mother [name omitted] be dispensed with.

  2. Pursuant to Adoptions Act 2000, s 67(1)(d), the consent of the child’s birth father [name omitted] be dispensed with.

  3. Order for the adoption of the child [name omitted], in favour of the adopting parent [name omitted].

  4. Order approving [name omitted] as the surname and [name omitted] as the given names of the child.

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Amendments

28 February 2023 - Heading styles corrected

Decision last updated: 28 February 2023

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