Adoption of BL [2018] NSWSC 391

Supreme Court of NSW|2017-08-23|Before: Sackar J

Solicitors: Crown Solicitors (plaintiff) Self represented (birth mother) Self represented (birth father) File Number(s): A093/2017

The Proceedings

The Secretary for the Department of Family and Community Services applies for the making of an adoption order under the Adoption Act 2000 with respect to the child BL born October 2012.
The Adoption Order is sought in favour of YS and MA.
BL's birth parents HC and VM are the defendants to the application. They oppose the orders sought.
In the summons filed on 16 June 2017 the Secretary seeks the making of orders in particular the dispensing with the consent of HC and VM and for the adoption of BL by YS and MA.
The evidence relied upon by the Secretary includes amongst other things a Section 91 report completed by TR the Adoption Case Manager from Anglicare dated 25 May 2017 and a clinical psychological report completed by SD on 5 February 2018.

Relevant Principles

By Section 8(1) of the Act the Court is to have regard to specified matters when making a decision about the adoption of a child including the best interests of the child both in childhood and in later life which must be the paramount consideration. Adoption is to be regarded as a service for the child and no adult has a right to adopt the child.
It is plain from the legislation that the focus is on BL's best interests and how the making of an adoption order would benefit her rather than on how such an order would or would not benefit others.
Section 90 of the Act enforces this notion and requires a court must not make an adoption order unless it is satisfied that the best interests of the child will be promoted by the adoption and that as far as practicable 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. The adoptive parents must be selected in accordance with the Act and subject to certain criteria. The child's culture, any disability, language and religion, his or her given names and/or identity must be taken into account in making any adoption plan in relation to the adoption. Any adoption plan needs to be considered appropriate by the Court and again it must be in the best interests of the child.
The Court should not make an order for adoption unless it considers that the making of such an order would be clearly preferable in the best interests of the child.
Section 90 also requires the Court take into account a large number of factors including the relationship the child has with his or her parents and siblings, the attitude of each of the proposed adoptive parents, the nature of that relationship and their suitability.
The expression "clearly preferable" to which I have previously referred requires something more than a slight preponderance of consideration in favour of adoption over the alternatives. It does not require satisfaction beyond reasonable doubt however the word "clearly" serves to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision. In requiring as the Act does to place paramount importance on the best interests of the child a balance needs to be struck. There is a need to protect the child from physical or psychological harm and in so doing consider his or her physical, emotional and educational needs.
When considering the birth parents clearly their wishes are important as is the nature of the child's relationship with them. Their parenting capacity and their attitude to the child and to the responsibilities of their parenthood are of course vital.
As far as the proposed adoptive parents are concerned 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 is also vital.
There are of course theoretically a number of possibilities. Adoption to one side, parental responsibility can be allocated in favour of a person or persons. The present status quo could theoretically be maintained and BL kept in care. That would leave open the possibility of an application to restore the child to the care of the birth parents, or one of them, should they not be together at the time the application is made. Theoretically the question of adoption could be deferred until the child is older when for example his or her wishes may be of greater relevance.
Judges have long since recognised that a clear sense of identity is an important life foundation for children and this is particularly so against an early background of ambiguity or instability. It is also well recognised that anxiety and uncertainty on the part of the child and the carers due to the impermanence of their position and the lack of certainty can or in some cases can be a very stressful situation. It is also stressful, where relevant for the birth parents.
The practical effect of adoption does rule out for practical purposes restoration to birth parents. Equally however it does perfect the child's membership of the family in which in every other sense he or she is or has become a member and which is essentially the only family he or she has ever known. It has the effect of bringing the legal relationship of parentage into conformity with the reality of the situation.
It also means the child becomes a child of the adoptive parents, not just until he or she attains 18 years of age but for life. It also confirms his or her identification with the family with which he or she lives and which the child may see both emotionally and psychologically as his or her family.
Adoption of course severs the legal relationship with the birth family. But again that needs to be placed into context. In some instances and BL is perhaps an example she has never had a relationship literally since birth with either biological parent. The severance of the legal relationship will of course never sever the biological relationship nor will it detract from the potential for developing a meaningful relationship through ongoing contact.
Again because of the permanency of an adoption order the general preference based in human nature and experience is that where practicable children are best raised by their birth parents. In general terms at least the Court would not make an adoption order unless it is satisfied that the advantages of adoption clearly outweigh the benefits of preserving the possibility of a restoration order to the biological parent or parents. If there was a realistic possibility of restoration then adoption would not in theory at least be the preferable option.
In appropriate circumstances the Court can dispense with the consent of the birth parents. It is accepted that dispensing with consent is a grave step not to be lightly taken. Dispensing with consent arises only in a limited number of circumstances. Section 67(1)(d) was introduced into the legislation in 2006. It permits consent to be dispensed with where a child has been in long term care of authorised carers and has established a stable relationship with them and the interests and welfare of the child would be promoted by adoption by those carers. In particular the Court can dispense with consent where the adoption would enhance a child's sense of belonging and permanence in the carers' family.

As I have already noted BL was removed from the care of her birth parents when she was about four days old. She commenced living with the proposed adoptive parents and her foster siblings Q and A at about the age of eight months. BL told SD she understands adoption to mean that she would "get to stay with her current family forever and that that would be good".
She has developed physically and emotionally and is doing well at school. She currently attends kindergarten but has after school activities which include French classes and gymnastics. She has been described by her case worker TR as a friendly, softly spoken and affectionate child. SD thought she was quite confident for her age.
BL is physically very well and is an active girl.
SD remarks in her report that BL knows no psychological family other than the foster family. She also observes that she has had regular and generally positive contact with her biological mother and father but the fact is she has not resided with them and they are not her psychological parents. She also observes that whilst this is sad for the birth parents BL's psychological attachment to her foster family must be taken into account in any future plan.
BL's cultural background is somewhat mixed. She has a Filipino background through her birth mother and otherwise her birth father and the proposed adoptive parents are Anglo-Australian. The proposed adoptive parents have conversations with BL about her Filipino background, show her pictures and videos about traditional Filipino dancing, culture and language. They are very supportive of her having an ongoing relationship with her biological family.
With respect to BL's religious background, HC was raised a Catholic and currently attends a Presbyterian church with VM. Both she and VM would it appears prefer BL to attend a Catholic school but both fairly recognised in their evidence that any disruption to BL's schooling may not be advisable.

The Birth Parents

Both birth parents oppose the possibility of adoption. They both assert that they are not only ready and willing but more than able currently to properly care for BL.
HC the biological mother moved to Australia from the Phillipines with her first husband, since deceased, in about 1995. She commenced a relationship with VM the biological father in approximately 2010 although there have been periods of separation in that time.
HC admitted to previous drug use but asserts that she has not used methamphetamine as an example since prior to BL's birth. VM on the other hand gave slightly different accounts as to when he last used drugs. On one of those accounts it was as recent as at or about the time of P's birth which is about two and a half years ago.
Various of HC's children have been assumed into care with the exception of her youngest child B. The assumption into care has related to reports of domestic violence, illicit drug use and mental health issues in particular with respect to VM. VM the biological father has reported that he has been diagnosed in the past with major depression, bipolar disorder and possibly some form of schizophrenia.
The birth parents reside currently together in a unit and care for B without the involvement of the Secretary. Their home has been assessed by SD, an expert psychologist, as tidy and homely. There is no recent evidence of violence or drug use. Both have completed programs aimed at addressing drug and alcohol misuse and domestic violence.
Both have completed other certificates in terms of parenting skills, computing and other matters in order to assist at least in VM's case of future employment. Both are however currently unemployed. VM indicated his unemployment was due to his involvement in preparing for these current proceedings and in attempting to obtain representation.
I should observe in passing that P, (also their child, born September 2015) is in care and resides with foster carers. He is approximately two and a half years old and was taken into care as the result of what has been described as a breach of safety order. HC in order to pick up a pram or stroller took him to VM's mother's house. At that time P was not meant to be in the vicinity of that house. There may well be proceedings concerning P in the not too distant future.
As I have said both birth parents deny any current drug use. VM in particular is on medication for his bipolar disorder and has done courses relating to drug abuse but also in relation to domestic violence issues which he frankly accepts he was guilty of in the past.
HC takes medication but only for hypertension.
HC and VM apparently did wish to make some formal application to have BL returned to their care but have not taken steps in that regard perhaps because they have not had legal support to do so.
Both birth parents have had serious mental health and drug issues in the past, but both firmly assert that is all now behind them. There is clearly currently no concern about their most recent child B and there has been no attempt on the part of the Secretary to intervene in that regard.

Proposed adoptive parents

MA works in a government department. He has experienced depression at times and has sought treatment for that. He is currently on medication which is managed by his general practitioner.
YS does freelance work as an actor and is very supportive of her husband in relation to his condition when that is required.
As a couple they have been together in a stable and loving relationship for many years and married in 2001.
They have two biological children Q and A (who requires some special attention) who as far as the evidence is concerned are well adjusted and happy.

The Evidence

Each of the biological parents and proposed adoptive parents gave evidence before me.
So far as the biological parents are concerned they have had struggles in the past and have worked very hard to confront and overcome them. In VM's case however on the evidence as I understand it his rehabilitation process has really only occurred in the last two years or so. That said, I accept that he has worked extremely hard to address his issues and says one of his regrets is that the courses and the assistance that he has obtained in the last year or two were simply not available to him earlier in his life. He believes had they been it would have made a difference.
HC appears to have had a more stable life in the last four or five years, but she and VM have had serious problems, stemming from drug use and/or domestic violence.
I am however concerned that so far as the biological parents relationship is concerned it is relatively early days given their separations, their temporary living arrangements and VM's uncertain employment situation.
They are still working through according to SD some personal issues in their relationship, added to which not only parenting B, but must also face the possibility of further stressful Court proceedings involving P.
The proposed adoptive parents on the other hand and their biological children are a unit. Notwithstanding difficulties experienced by MA they work as a team and provide on the evidence a most stable environment for their biological children, which has for some years now included BL.

The Expert Evidence

TR (who although a caseworker has considerable expertise) along with SD, expert psychologist clearly favour adoption over any other alternative.
Both I think it is fair to say are of the view that because of the psychological attachment and bond which BL has made not just with the proposed adoptive parents but with the biological children Q and A that she would suffer irreparable harm if she was separated from her psychological parents and siblings.
There is no doubt that in theory a transitional process could occur but as SD points out getting that transitional process just right is essential because a slow transition could actually cause more stress for a child in separating him or her from the psychological parents. That in turn could exacerbate and perhaps obstruct the likelihood of adjustment.
Both TR and SD are highly experienced in this field. Both made their own independent assessments. TR in May 2017 and SD in February 2018. Although their assessments are obviously different their central views and reasons are identical.
They both feel that the biological parents have had and likely still do have difficulties in successfully parenting. They also feel that maintenance of the status quo is not in BL's best interest and that the making of an adoption order is in her best interests because it would provide the legal recognition for the relationship that currently factually exists.
Further I think they are both of the view that the making of an adoption order would not negatively impact BL's emotional relationship with her birth parents and siblings, nor clearly would it prevent it further developing. The proposed adoptive parents have a positive view of the birth parents and are committed to ensure ongoing quality contact between them and BL. The birth parents also acknowledge this fact.
Leaving open the possibility of a Section 90 application for restoration to the birth parents would perpetuate a degree of uncertainty and in my view not be in BL's best interest because it would simply perpetuate anxiety and stress on everyone concerned.
Having heard from all relevant people including the experts, in my view an adoption order is clearly preferable in the best interests of BL.
In saying that I acknowledge the birth parents enormous efforts they have made to address each of their respective problems. At the moment as I see it BL is in a stable loving environment that provides structure and order in respect of which there is a clear vision. She deserves like all children nothing less. This stability currently exists on a daily basis. It must be reassuring and comforting for her that such a routine is in existence. In my view it is vitally important for her and her alone that that continue.
As I have said I am not satisfied that the birth parents at the moment given housing and employment issues would be able to provide her with anything like the stability she currently enjoys. The likelihood of deep and lasting psychological damage were the situation to change is a realistic outcome. She should not be put through that in my view.
I accept the birth parents obviously love their biological daughter. The same is obviously the case on the part of the adoptive parents and their children.
BL psychologically identifies with her adoptive parents and her foster siblings as her family. I cannot see any tangible benefit in disrupting this situation even if it were possible. I am therefore satisfied adoption is the preferable course. In addition in all the circumstances I consider it appropriate to dispense with the consent of the birth parents. I also consider the Adoption Plan as discussed in TR's report is appropriate in the circumstances.

Amendments 07 May 2018 - Further anonymising of parties DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2018

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