The Adoption of ‘W’
[2021] NSWSC 1642
•15 December 2021
Supreme Court
New South Wales
Medium Neutral Citation: The Adoption of ‘W’ [2021] NSWSC 1642 Hearing dates: 14 December 2021 Date of orders: 15 December 2021 Decision date: 15 December 2021 Jurisdiction: Equity - Adoptions List Before: Sackar J Decision: See paras [20]-[21], [26]-[27]
Catchwords: FAMILY LAW — Children — Adoption — Whether adoption clearly preferable and in the best interests of the child — Whether the consent of the birth parents ought to be dispensed with — Change of name — Registration of adoption plans
Legislation Cited: Adoption Act 2000 (NSW) ss 7, 8
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Category: Principal judgment Parties: Secretary, New South Wales Department of Communities and Justice (plaintiff)
Birth father (first defendant)
Birth mother (second defendant)Representation: Counsel:
Solicitors:
Crown Solicitor’s Office (plaintiff)
Birth parents (self-represented)
File Number(s): 2020/339283 Publication restriction: Nothing that would identify the parties
Judgment
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The plaintiff, the Secretary, NSW Department of Communities and Justice, makes application for the adoption of ‘W’. Further application is made dispensing with the consent of the child’s birth mother and birth father. The application for adoption is in favour of the proposed adoptive parents. The Court is also requested to approve the surname “[birth surname]-[proposed adoptive parents’ surname]” and retaining his given names.
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These proceedings were commenced on 27 November 2020. The birth parents have been involved from about December 2020 and initially made it clear that they opposed all the orders sought by the Secretary. However, after I had reserved my judgment, the birth parents communicated that they requested the name change in the form sought by the Secretary.
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A good deal of evidence is relied upon by the Secretary, but importantly two reports of Ms Penelope Haskins who is a highly experienced social worker and independent assessor in such cases.
Background
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‘W’ was born in July 2015. He has lived continuously with the proposed adoptive parents since 29 September 2015 when he was two months old.
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On 27 July 2016, the Children’s Court of NSW made Final Orders providing that ‘W’ be placed under the parental responsibility of the Minister for Families, Communities and Disability Services until he attains the age of 18 years. Such order was made under the Children and Young Persons (Care and Protection) Act 1998 (NSW).
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The birth parents, although on notice about the proceedings since about December 2020, were joined as defendants formally on 10 March 2021. They both filed appearances on 3 February 2021 and although numerous orders were made for them to do so, they did not file any evidence in the proceedings until the morning of the hearing, 14 December, when they forwarded a letter in the form of a submission setting out their views in some short detail which I have read carefully and taken into account.
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Although in February 2021 the birth parents indicated that they were seeking or had sought Legal Aid they appeared unrepresented throughout the proceedings and at the hearing only the birth mother appeared.
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The matter was initially fixed before me on 3 December 2021 at a directions hearing on 14 July 2021.
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At the request of the parents, on 3 December 2021, I adjourned the proceedings for two weeks due to their ill health. When the matter returned to Court on 14 December, further application was made for an adjournment which I refused. I gave reasons which were recorded in a separate judgment.
Consideration
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The first question that arises is whether adoption is clearly preferable to any other action that could be taken in law in relation to the care of the child, and in the best interests of the child. Pursuant so ss.7 and 8 of the Adoption Act 2000 (NSW), the best interests of the child must predominate and be given paramount consideration.
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Consideration of adoption as opposed to other options requires a balance and each and every case will turn on its own particular facts.
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One of the considerations that must necessarily arise in such contexts is whether restoration to the birth parents is realistic. I note in passing that the birth mother indicated for the first time on 14 December that one reason for an adjournment was to permit he birth father’s three sisters an opportunity to make application for the custody of the child. For reasons elsewhere recorded, in my view that was neither practical nor realistic.
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The plain fact is that ‘W’ has lived exclusively with the proposed adoptive parents since he was two months old.
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He suffers from a mild intellectual disability and is of course still very young.
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On the evidence which is uncontroversial, he has developed a strong attachment to the proposed adoptive parents and their other three children who reside in their home who have also recently been adopted. They are siblings.
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There is no doubt on the evidence that the proposed adoptive parents have demonstrated an ability to cope with ‘W’s’ medical, educational and developmental needs.
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Their home environment on the evidence appears to be stable and loving.
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Ms Haskins has reported on her view of the matter, namely that ‘W’ demonstrates a strong primary attachment to the proposed adoptive parents and he also identifies completely with his foster siblings as his family.
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There is no realistic alternative which in my view would be in ‘W’s’ best interests. I therefore do not regard restoration to either birth parent severally or jointly as a realistic possibility. They both reside in Queensland where they apparently intend to continue to reside. They have never provided any evidence or information to the court, nor can they as a matter of practical reality put forward an alternative to the current stable environment in which ‘W’ is being reared. It would be quite unacceptable without the strongest of cases supported by expert opinion that his current relationship with the proposed adoptive parents be severed or placed in doubt.
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In my view the evidence is overwhelmingly in support of adoption being the clearly preferable outcome. It certainly is much more preferable to any long term care arrangements. In my view and on the evidence, it will assist him to mature accordingly.
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In that event in my view it is appropriate that I dispense with the consent of both birth parents. I acknowledge this is a serious step not to be taken lightly but in the circumstances it is appropriate given my view that adoption is the preferred outcome.
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I note that Ms Haskins in her report of 16 November 2020 supported an order for adoption for the reasons therein set out.
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In her supplementary report of 14 May 2021, Ms Haskins further elaborated upon her conclusion that adoption was the preferable outcome.
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So far as the name change is concerned, again the birth parents were initially opposed to that course. However, there is evidence which I accept that although he is still very young ‘W’ has been observed to become distressed when he is reminded that he has a different last name to his foster siblings and apparently often states that his name is ‘W’ with the surname of the proposed adoptive parents (Second Delegate’s Affidavit [37]-[38]; Proposed Adoptive Mother’s Affidavit at [24]; Proposed Adoptive Father’s Affidavit at [26]). He has expressed a clear wish to share the last name of the proposed adoptive parents and siblings and does not understand why his last name is different.
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The birth parents initially submitted that he is far too young to be making decisions of this sort and that this type of decision ought to be left until he is older, perhaps 12 or 13. I do not agree. ‘W’ wants to feel as if he fits in and he wants to feel that he is genuinely part of the only family he has ever known. I find that neither surprising nor unnatural and I consider that would be a perfectly reasonable response even on behalf of a child as young as ‘W’. The court is required, where appropriate, to take a child’s wishes into account. In my view I find nothing implausible about this evidence and he should be given a voice on the topic. In any event, perhaps upon reflection the birth parents are now content that there be a name change in accordance with the proposed order.
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In those circumstances I would approve the name change as proposed, noting again that he will keep his birth surname as part of his new surname which will be “[birth surname]-[proposed adoptive parents’ surname]”.
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The Secretary proposes an adoption plan which has been agreed to by the Delegate and the proposed adoptive parents. The evidence would suggest that not only does ‘W’ enjoy the contact visits, but they have worked efficiently and they should continue clearly in his best interests. I have carefully considered the proposed adoption plan and I am satisfied it is appropriate in the circumstances and therefore I would approve it.
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Decision last updated: 17 December 2021
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