The Adoption of Jacob

[2024] NSWSC 991

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Jacob [2024] NSWSC 991

Hearing dates:

9 August 2024

Date of orders:

9 August 2024

Decision date:

09 August 2024

Jurisdiction:

Equity - Adoptions List

Before:

Hmelnitsky J

Decision:

(1)   The Court makes an order for the adoption of the child Jacob in favour of the Proposed Adoptive Parents, and approves the surname of the Proposed Adoptive Parents as the surname and “Jacob” as the given name of the child.

Catchwords:

CHILD WELFARE – Adoption – Best interests of the child – Where child consents to adoption

Legislation Cited:

Adoption Act 2000 (NSW) ss 8, 50, 51, 54, 90, 101

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases Cited:

Adoption of NG (No 2) [2014] NSWSC 680

Adoption of SVS [2015] NSWSC 2043

Application of A – re D [2006] NSWSC 1056

In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793

Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241

Re the Adoption of CCS and FLS [2019] NSWSC 71

Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087

Category:

Principal judgment

Parties:

The Secretary, New South Wales Department of Communities and Justice (Plaintiff)

Representation:

Counsel: determined on the papers

Solicitors:

File Number(s):

2024/131234

Publication restriction:

This judgment has been anonymised pursuant to s 180 of the Adoption Act 2000 (NSW).

JUDGMENT

1. The Secretary of the NSW Department of Communities and Justice seeks an order that “Jacob” (not his real name), now twelve years of age, be adopted by “Linda” (not her real name) and “Dennis” (not his real name) (the Proposed Adoptive Parents), together with an order that Jacob adopt surname of the Proposed Adoptive Parents.

2. Jacob has lived with the Proposed Adoptive Parents since just before his eighth birthday. The Proposed Adoptive Parents have no biological children.

3. The Proposed Adoptive Parents previously cared for another child in a placement from October 2021 until January 2024, when the child transitioned to a kinship placement. The Proposed Adoptive Parents, and Jacob, continue to see the other child on a monthly basis.

4. Jacob was born to “Lauren” (not her real name) and “Tony” (not his real name). Tony has passed away. Lauren has been served with this application and has signed the Adoption Plan, although she has neither formally consented nor entered an appearance. She appears to have some contact with Jacob about once every two to three months, which the Proposed Adoptive Parents facilitate. Lauren’s consent is not required in this case, as Jacob has consented, a matter to which I return below.

5. I have determined to make the orders sought and to register the adoption plan. These are my reasons for doing so.

The circumstances of this case

6. At the time of Jacob’s birth, his mother was 22 years of age and his father was 52 years of age. Jacob has two full siblings: “Mark” (not his real name), an older brother, and “Patricia” (not her real name), a younger sister, as well as three paternal half-siblings. For reasons that do not need to be fully explored here, parental responsibility for Jacob was allocated to the relevant Minister on an interim basis on 8 March 2013. Jacob was taken into care on 15 March 2013.

7. On 11 November 2013, final orders were made in the Children’s Court of New South Wales allocating parental responsibility for Jacob to the relevant Minister pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). Those orders remain in effect.

8. From 15 March 2013, until 8 November 2019, Jacob lived in foster care. For other reasons that do not need to be fully explored here, that care arrangement came to an end, in circumstances which suggest that Jacob was not well cared for.

9. Since 8 November 2019, when he was eight years of age, Jacob has lived with the Proposed Adoptive Parents. He came into their care on a respite basis and has remained ever since. Both of the Proposed Adoptive Parents consent to the adoption of Jaocb.

10. Linda and Robert are gainfully employed. I have read their affidavits, and those of their referees.

11. Since coming into the care of the Proposed Adoptive Parents, all the evidence before me suggests that Jacob has been very well cared for and is thriving. The Proposed Adoptive Parents maintain a loving home in a semi-rural setting with plenty of room for Jacob to explore and grow. The environment in which Jacob now resides seems to me to be conducive to his wellbeing, which is borne out by the various reports in evidence.

12. As I noted above, Lauren’s consent is not required in this case, as Jacob is twelve years of age and has given his consent to the adoption: see s 54 of the Adoption Act 2000 (NSW). Reports supporting this application satisfy me that he is of sufficient maturity to understand what adoption means to him, and the facts of this case are that he has been cared for by the Proposed Adoptive Parents for at least two years: Adoption Act s 54(2). I am also satisfied that Lauren has had at least 14 days’ notice of this application: Adoption Act s 54(3). Jacob can therefore consent to his own adoption. If I may say so, the reports concerning his consent evidence his insight and thoughtfulness as to this profound decision.

The formal requirements for adoption

13. I am satisfied that the formal requirements of the Adoption Act have been met.

Adoption orders generally and the “best interests” principles” under the Adoption Act

14. Section 8 of the Adoption Act provides:

“(1)   In making a decision about the adoption of a child, a decision maker is to have regard (as far as is practicable or appropriate) to the following principles—

(a)   the best interests of the child, both in childhood and in later life, must be the paramount consideration,

(b)   adoption is to be regarded as a service for the child,

(c)   no adult has a right to adopt the child,

(d)   if the child is able to form his or her own views on a matter concerning his or her adoption, he or she must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the developmental capacity of the child and the circumstances,

(e)   the child’s given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved,

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

…

(2)   In determining the best interests of the child, the decision maker is to have regard to the following—

(a)   any wishes expressed by the child,

(b)   the child’s age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant,

(c)   the child’s physical, emotional and educational needs, including the child’s sense of personal, family and cultural identity,

(d)   any disability that the child has,

(e)   any wishes expressed by either or both of the parents of the child,

(f)   the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant,

(g)   the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood,

(h)   the nature of the relationship of the child with each proposed adoptive parent,

(i)   the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child,

(j)   the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour,

(k)   the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child’s circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.”

15. Section 90 of the Adoption Act further 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

(e)   if the child is an Aboriginal child—that the Aboriginal child placement principles have been properly applied, and

(f)   if the child is a Torres Strait Islander child—that the Torres Strait Islander child placement principles have been properly applied, and

(g)   if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and

(h)   in the case of a child (other than an Aboriginal or Torres Strait Islander child)—that the culture, any disability, language and religion of the child and, as far as possible, that the child’s given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.

(2)   The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances.

(3)   The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child.”

16. I note the paramount consideration in s 8(1)(a). Of this principle, and adoptions more generally, Brereton J said in Adoption of SVS [2015] NSWSC 2043 at [9]:

“it is worth remembering that these inquiries are concerned with the future rather than with the past. At their centre is ascertaining the best interests and welfare of the child, now and in the future, and not the rights and wrongs of past conduct and decisions – whether of the birth parents, the adoptive parents or the Department.”

17. Sackar J pointed out in Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9] that “arguably the most important work at least in this Division of the court by a very large margin in my view is determining applications for adoption. It is one of the most profound and important decisions a judge can be called upon to make.”

18. Brereton J further summarised the principles applicable to the interaction of ss 8(2) and 90 of the Adoption Act in Adoption of NG (No 2) [2014] NSWSC 680 at [15]-[16]:

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

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

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

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

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

19. His Honour continued at [74]:

“[74]   Consideration of whether adoption would promote the child's best interests, and whether it is clearly preferable to any other order that could be made, involves identification of the likely effects of adoption, and of the various available alternatives, and examining their respective benefits and detriments from the perspective of the best interests of the child, so as to conclude whether adoption is, or is not, clearly preferable to all the others. In the light of the proposals of the parties, the alternatives to adoption that require consideration in this case are:

-   restoring the child to the care of the birth mother;

-   allocating parental responsibility in favour of the applicants;

-   maintaining the status quo, with the Minister having parental responsibility and the child in foster care; and

-   deferring determination of the question until the child is older, either maintaining the status quo or making a parental responsibility order in the meantime.”

20. The question of what is in a child’s best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion must be reached which will be inherently imprecise: Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 at [16] (Lord Nicholls of Birkenhead), cited with approval in Re the Adoption of CCS and FLS [2019] NSWSC 71 at [164].

Is adoption clearly preferable in the best interests of Jacob?

21. I am comfortably satisfied that adoption is clearly preferable and in Jacob’s best interests. By this, I mean that there is no other option available that I consider is better for Jacob’s long-term best interests, having regard to the factors in s 8(2), and I consider this to be the case overwhelmingly.

22. Jacob has consented to the adoption and as set out above I am satisfied that he has the insight and thoughtfulness to know what this means for him. I am satisfied that this is in his “service”, to borrow from s 8(1)(b), and that it has not been thrust upon him by the Proposed Adoptive Parents. Indeed, I am satisfied to the contrary: that the Proposed Adoptive Parents have supported Jacob’s empowerment and decision-making as to what is right for him. They are to be commended for doing so.

23. I am further satisfied that it is in Jacob’s best interests in that Lauren has indicated that she is, in broad terms, at peace with the adoption process, and that Jacob’s physical and emotional needs will be met. His identity will be strengthened and I note the Proposed Adoptive Parents are supportive of Jacob exploring his heritage and developing any religious views that he may wish to investigate.

24. The Proposed Adoptive Parents support contact with Jacob’s birth family, as appropriate, and in my view have a thorough and responsible attitude to parenting. They are hardworking and positively contributing members of society. They can sustain a suitable familial environment for Jacob.

25. This adoption is a paradigmatic example of what was described as one of the “principal benefits of adoption”, namely “to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters”: In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793 at [64].

26. I am therefore satisfied that this adoption is in Jacob’s best interests. I am fortified in this view, and in determining that this adoption is “clearly preferable”, as one alternative – that Jacob remains a ward of the state in the foster care of the Proposed Adoptive Parents, which is the status quo – has no practical advantages over an adoption. Indeed, it is quite the opposite, and would in all likelihood stymie Jacob’s positive bond with, and attachment to, the Proposed Adoptive Parents. So, too, an order allocating parental responsibility for Jacob to the Proposed Adoptive Parents would alleviate some of the disadvantages of leaving the status quo in place, but it would remain a temporary order expiring when Jacob reaches 18 years of age, and in the meantime the Minister and relevant caseworkers would remain involved in Jacob’s life. A further advantage of the adoption, therefore, is that it provides certainty and permanence for Jacob and recognises his bond with the Proposed Adoptive Parents beyond his adolescence. It also mitigates any stigma that may be associated with being a “foster child”, and instead recognises that, as a matter of law, Jacob lives with his family, who can make decisions about what works best for them.

27. I note that no party suggests, consistently with the judgment of the Children’s Court in 2013, that there is any realistic prospect of restoration to Lauren.

28. I will therefore make the order sought for Jacob’s adoption, subject to the below, having satisfied myself to a degree commensurate with the gravity of this decision: Application of A – re D [2006] NSWSC 1056 at [53].

The Adoption Plan

29. I may not make an adoption order, where the parties to the adoption have agreed to an adoption plan, unless I am 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 proposed adoption plan in this case is a maternal adoption plan, there being no occasion for a paternal adoption plan.

30. As I noted, the proposed adoption plan is signed by Lauren, as well as Jacob, the Proposed Adoptive Parents and a delegate of the Secretary of the Department of Communities and Justice. It provides for in-person visits between Jacob and Lauren of at least two hours four times per year. These visits will include Mark and Patricia, Jacob’s siblings, with whom Jacob will visit at least a further four times per year. There is a sensible provision for further visits according to Jacob’s wishes and the Proposed Adoptive Parents’ availability.

31. The plan further provides for contact with Jacob’s maternal grandmother, when Jacob visits Lauren. It provides for contact with Jacob’s maternal grandfather, when Jacob requests it.

32. There is further provision for electronic communication between Jacob and the above persons. Included in that is provision for the Proposed Adoptive Parents to provide updates relating to Jacob’s progress to Lauren on four occasions each year, together with text message and photographic updates (which I understand the Proposed Adoptive Parents already send to Lauren).

33. I am well satisfied that the adoption plan is in Jacob’s best interests and is proper in the circumstances. It seems to me to be eminently sensible and the product of a mature and level-headed approach by all concerned to the prioritisation of Jacob’s best interests, which is paramount in all decisions here.

Proposed name change

34. It is proposed that, on the making of the adoption order, Jacob is to have the surname of the Proposed Adoptive Parents.

35. Before changing Jacob’s name, I must consider any wishes expressed by Jacob and any factors relevant to the weight that should be given to those wishes: Adoption Acts s 101(2). Jacob consents to the name change, which is a pre-requisite given his age: Adoption Act s 101(4).

36. Jacob’s wishes on this matter are very clear and supported by the Proposed Adoptive Parents. Jacob is, as I have noted, mature and insightful. I am confident that he understands what is best for him in this respect.

37. I will therefore make the order sought in respect of Jacob’s name.

38. Once the adoption order is made, an Integrated Birth Certificate will be created which will include details of Jacob’s birth parents. It will be an important part of Jacob’s life story.

Conclusion

39. I am grateful to all concerned for their approach to this matter. The orders of the Court will be:

1. The Court makes an order for the adoption of the child Jacob in favour of the Proposed Adoptive Parents, and approves the surname of the Proposed Adoptive Parents as the surname and “Jacob” as the given name of the child.

The court notes:

i. That the court is satisfied that the arrangements proposed in the Maternal Adoption plan, a copy of which is annexed and marked A  and attached to the orders, are in the child’s best interests and are proper in the circumstances.

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Decision last updated: 09 August 2024