The Adoption of Johanna (a pseudonym)

[2023] NSWSC 688

Supreme Court

New South Wales

Medium Neutral Citation:

The Adoption of Johanna (a pseudonym) [2023] NSWSC 688

Hearing dates:

14 June 2023

Date of orders:

14 June 2023

Decision date:

21 June 2023

Jurisdiction:

Equity - Adoptions List

Before:

Stevenson J

Decision:

Consent of the child be dispensed with under s 69(1) of the Adoption Act 2000 (NSW)

Catchwords:

CHILD WELFARE – adoption – consent – dispensing with consent of a child to that child’s adoption

Legislation Cited:

Adoption Act 2000 (NSW)

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

Category:

Procedural rulings

Parties:

Principal Officer, Anglicare Community Services (trading as Anglicare) (Plaintiff)
Birth Mother (Defendant)

Representation:

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Defendant (self-represented)

File Number(s):

2023/156231

Publication restriction:

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

JUDGMENT

1. The Principal Officer of Anglicare Community Services seeks an order that a child, who I will refer to as “Johanna” (not her real name), be adopted by a couple to whom I will refer as “the Proposed Adoptive Parents”.

2. Johanna is 17 years of age. She will turn 18 next month.

3. Johanna has lived with the Proposed Adoptive Parents since April 2008, at which time she was two years of age.

4. As long ago as 12 January 2009, the Children’s Court of New South Wales made final orders providing for Johanna to be placed under the parental responsibility of the relevant Minister until she attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”).

5. Johanna’s birth mother has been joined as a defendant to the proceedings. Johanna’s father is believed to have died in 2012.

6. Johanna has a significant number of medical diagnoses which limit her capacity to understand and consider complex information and questions. These diagnoses include cerebral palsy, intellectual impairment and global developmental delay. Johanna has been assessed as having a developmental age of 12 months. She has a diagnosis of developmental encephalopathy, meaning she has severe and significant developmental delays.

7. On 14 June 2023, I made an order, on the application of the Principal Officer, dispensing with the requirement that Johanna consent to her proposed adoption. I made that order pursuant to s 69(1) of the Adoption Act 2000 (NSW) (“the Act”).

8. Johanna’s mother appeared on the application. Although Johanna’s mother has made it very clear that she opposes the proposed adoption by the Proposed Adoptive Parents of Johanna, she did not oppose the making of an order dispensing with Johanna’s consent to any such adoption.

9. Section 55 of the Act provides:

“55 Consent of child

(1) The Court must not make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless—

(a) the child has been counselled as required by section 63, and

(b) the counsellor has certified that the child understands the effect of signing the instrument of consent (as required by section 61), and

(c) the child consents to his or her adoption by the prospective adoptive parent or parents or the Court dispenses with the requirement for consent.

Note—

See Division 3 of Part 5

(2) The Court may make an adoption order in relation to such a child who is incapable of giving consent if the Court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order.”

10. The effect of this section is that a child who is 12 or more, but less than 18 years of age, is required to give consent to their adoption unless the Court dispenses with the giving of consent^[1] or, if a child is incapable of giving consent and the Court is satisfied that the circumstances are “exceptional”, that it would be in the best interests of the child to make the order. ^[2]

    1. Section 55(1)(c).

    2. Section 55(2).

11. In my opinion, on the proper construction of s 55, it would not be possible for the Court to make an order under s 55(2), assuming it was otherwise appropriate to do so, once the child in question turned 18. That is because the Court’s power under s 55(2) is in relation to “such a child”. That means, in my opinion, a child referred to in the chapeau of s 55(1), being a child who is “12 or more but less than 18 years of age”.

12. I am not yet in a position to make a decision as to whether there are “exceptional” circumstances for the purpose of s 55(2).

13. Section 69 of the Act provides, relevantly:

“69 When can the Court dispense with the child’s consent?

(1) Child 12 or more but less than 18 years of age The Court may make a consent dispense order dispensing with the requirement for consent to his or her adoption to be given by a child who is 12 or more but less than 18 years of age if the Court is satisfied that the child is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent.

(2) An order under subsection (1) may be made on the Court’s own initiative or on application by any person. …”

14. Again, the Court’s power here is only available if the child in question is 12 or more but less than 18 years of age. However, under s 69(1), the Court’s power to make a consent dispense order is not premised upon the existence of “exceptional” circumstances but rather on the Court being satisfied that, relevantly to this application, the child is in such a mental condition as not to be able properly to consider the question of whether she should give consent.

15. The evidence clearly established that Johanna has medical conditions that render her incapable of properly considering the question of her own adoption.

16. Accordingly, I made the order to which I have referred.

17. The adoption application will now proceed in the usual way.

18. A preliminary hearing under s 80 of the Act has been fixed for 29 August 2023.

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Endnotes

Decision last updated: 21 June 2023