Application of "M" and "S" [2004] NSWSC 203

80125/03 APPLICATION OF "M" AND "S" JUDGMENT 1 HIS HONOUR: This is an application by a married couple to adopt a young boy. The merits of the application are strongly in favour of an adoption order being made, and need not be referred to in these reasons. The only aspect of the application which calls for the giving of reasons is that the prospective adopting parents seek certain orders concerning a change of the name of the child. 2 The child in question was born in Korea on 2 April 2002, to a mother who was aged 21 at the time of the child's birth. She had no family support, and did not believe she could raise the child as a single parent. Hence, she surrendered the child for adoption very soon after his birth. 3 The surrender was to a Korean organisation, Eastern Social Welfare Society, Inc, which is an agency approved by the Korean government to conduct intercountry adoption. 4 After being placed in the care of that Society, the child was looked after by foster parents. During the time he was in the care of the Society, he was known by the surname of his birth mother, and by two Korean forenames, the first consisting of two syllables, and second of one syllable. It is likely that his forenames were chosen by either the foster parents, or someone connected with the Society. 5 In May 2002 the New South Wales Department of Community Services ("DOCS") discussed with "M" and "S", the applicants in the present case, a proposal to adopt this child. Those discussions led to "M" and "S" travelling to Korea, where they met the child on 5 August 2002. The child was placed in the care of "M" and "S" on 9 August 2002 in Korea, at a time when he was aged four months. They all left for Australia the next day, arriving on 11 August 2002. 6 From the outset, "M" and "S" decided that they wished to make certain changes to the child's name. They wished to make three changes. The first, unsurprisingly, was to change the surname of the child to "M"'s surname. The second was to alter the first of the forenames of the child, by deleting its second syllable. The name which results from deleting the second syllable of the first forename is not a name which is a common forename in Australia, but is a name which could easily be used as a forename in Australia. The third change which they wished to make was to add an additional forename, to come third in the list of forenames. It is a name used as a forename by people of Anglo-Celtic origins in Australia. They wished to add that name because it is a name which has family significance to one of the proposed adoptive parents. 7 The proposal to change the child's name in this fashion was known to DOCS. It issued a document on DOCS letterhead, entitled "TO WHOM IT MAY CONCERN" dated 13 August 2002, which said: "This is to certify that [full Korean name of child], now known as [name of child stated exactly as adoptive parents wish it to be known], born on 2 April 2002 in Korea was placed with ["M" and "S"] of [address] on 11 August 2002 for the purpose of adoption. [First forename in shortened form which adoptive parents wish the child to be known by] entered Australia on 11 August 2002 under an Adoption Visa (sub class 102) which grants Permanent Australian Residence to the child." 8 The summons for adoption was filed on 11 December 2003. That summons sought an order that the Court approve the child having as his forenames the three names by which his adoptive parents wished him to be known, and his surname as "M's" surname. Evidence filed by DOCS in the application included, as well as the usual information which went to the merits of the adoption application, an intimation that, in accordance with section 101(5) of the Adoption Act 2000, the order seeking the change in name of the child was opposed. DOCS did not oppose the change in the child's surname, nor the addition of the third forename, but opposed the shortening of the first of the child's forenames. 9 I delayed the making of orders so that evidence and submissions could be sought from both the prospective adoptive parents, and DOCS, on the proposed changes to the child's name. 10 Section 38(1) of the Adoption of Children Act 1965 said that a child: "… shall have as his or her forename or forenames such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents." 11 The Adoption Act 2000, which commenced on 1 February 2003, imposes limitations on the discretion of the Court to change the name of a child upon adoption. It says: "(1) On the making of an adoption order: (a) an adopted child who is 18 or more years old is (unless he or she decides otherwise) to have the same surname and given name or names as he or she used immediately before the order is made, and (b) an adopted child who is less than 18 years of age is to have as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents. (2) Before changing the surname or given name or names of a child, 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's wishes. (3) If, before the making of the adoption order, the adopted child has been generally known by a particular surname, the Court may, in the adoption order, order that the child is to have that name as his or her surname. (4) An approval of a change in the given name or names of a child who is over the age of 12 years must not be given by the Court unless the child has, in a consent given under section 55, consented to the change. (5) The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless there are special reasons, related to the best interests of the child, to do so. (6) Nothing in this section prevents the changing of any name of an adopted child, after the making of the adoption order, under the law of New South Wales." 12 In exercising its power under section 101, the Court should take into account matters of policy concerning adoption which are discernible in the Adoption Act 2000. Section 7 of that Act says: "The objects of this Act are as follows: (a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice, (b) to make it clear that adoption is to be regarded as a service for the child concerned, (c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, … (f) to ensure that adoption law and practice complies with Australia's obligations under treaties and other international agreements, …" 13 Section 8 says: "(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, not for adults wishing to acquire the care of the child, … (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, … (2) In determining the best interests of the child, the decision maker is to have regard to the following: … (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, …" 14 Section 32 of the Adoption Act 2000 says: "(1) In placing a child (other than an Aboriginal or Torres Strait Islander child) for adoption, the decision maker must take into account the culture, any disability, language and religion of the child and the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved. (2) Without limiting matters that may be taken into account, the decision maker must take into account whether a prospective adoptive parent of a different cultural heritage to that of the child has demonstrated the following: (a) the capacity to assist the child to develop a healthy and positive cultural identity, (b) knowledge of or a willingness to learn about, and teach the child about, the child's cultural heritage, (c) a willingness to foster links with that heritage in the child's upbringing, (d) the capacity to help the child if the child encounters racism or discrimination in school or the wider community." 15 One of the obligations under treaties, which section 7(f) of the Act says the Act should advance, is Australia's obligation under the United Nations Convention on the Rights of the Child ("UNCROC"). Under Article 8.1 of that Convention, Australia has undertaken to "respect the right of the child to preserve his or her identity, including nationality, name, and family relations". 16 The New South Wales Law Reform Commission issued, in March 1997, Report No. 81, which was a review of the Adoption of Children Act 1965. Part of that Report dealt specifically with how birth names should be treated in intercountry adoptions. At para 10.231, the Report referred to Article 8 of UNCROC, and continued: "Clearly intercountry adoption, which involves a child losing his or her nationality and family relations, is not consistent with Article 8. However, Australia should honour this undertaking at least to the extent that can be accommodated within the practice of intercountry adoption. Accordingly, the right of a child to preserve his or her first name should be respected. 10.232 Even apart from obligations under UNCROC, it would rarely be in the child's best interests for his or her names to be formally changed in the adoption process. The intercountry adoptee endures enormous change and dislocation in the process of being adopted overseas. The child is uprooted from all that is familiar, including relationships and language. The child's name is one of the few remaining links with his or her birth culture. To change this involves further dislocation and disorientation for the child. More importantly, though, the child's name is an integral part of his or her identity: Abandoned children are often renamed … by their adoptive parents who wish to encourage integration into their new culture so that the little they bring with them is taken away. For older children this may be especially painful since it suggests that who they are, which is so often defined by their name, is not acceptable and must be changed. In addition, a name often reflects cultural connectedness and contributes to the establishment of facial identity. 10.233 Although the effects of a name change are intensified in older-aged children, the points made above can be applied to all children. A child who is only one or two years old has already learnt to identify with a particular name. The concept that "I am x and no other" can be powerful even to a very young child. 10.234 In DP 34, it was proposed that the changing of first names of intercountry adoptees should be discouraged. Nineteen submissions were received addressing this proposal, the majority of which supported the proposal but felt that the changing of names should be a matter for parents and not subject to legislation or a court order. Several submissions were unconditionally in favour of the proposal. 10.235 Two submissions pointed out that some overseas names created problems in Western society, either because of the English meaning or association or because of difficulties with pronunciation. It should be borne in mind here that as Australia becomes an increasingly multicultural society more and more non-Anglo-Saxon names, many difficult to pronounce, will become commonplace. However, if there was a real risk that his or her name could, in Australia, cause anguish to the child or make life difficult in any way, then a name change may be justified. But such a decision should be taken in the belief that a name change is an exceptional step, with the child's best interests being paramount. A birth name should not be changed simply because adoptive parents would prefer an Anglicised name for their child. 10.236 It has also been submitted that often a child has been given his or her name by carers at an orphanage and therefore it may have no significance for the child. This argument ignores the point made above that children, particularly older-aged but also young children, identify with the name by which they are addressed so that it becomes an important part of their concept of themselves. 10.237 Recommendations in relation to changing an adoptee's names are made in Chapter 5. These recommendations take into account the provisions of UNCROC, the arguments raised above and the content of submissions. 17 That Report included a draft Bill, which had, as clause 71, a clause almost identical to the text eventually adopted as section 101(4) Adoption Act 2000. (The only difference was in what has now become section 101(4), a sub-section not relevant to the present application.) 18 The Second Reading Speech on the Adoption Bill (Hansard, 5 September 2000, Legislative Council, page 8640) makes clear that the Law Reform Commission Report had been taken into account in preparation of that Bill. The Explanatory Memorandum for the Adoption Bill 2000 stated, at page 1, that: "The Bill gives effect in general to the principal recommendations of the New South Wales Law Reform Commission in its Report No. 81 …"

I shall take the policy underlying section 101 of the Adoption Act 2000 into account in deciding the present application. 23 In accordance with the usual practice for adoptions, the Court has been provided with a report by a social worker. So far as presently relevant, that report says that "M" and "S": "… have begun to talk with him about his background and are preparing themselves for any questions or issues as they arise. They have prepared a life storybook of his history and plan to have this available for him as he grows up. Both ["M" and "S"] are very comfortable in being open with [the child] as he grows up and his understanding develops. They hope to encourage him to ask questions and to discuss any issues with him that his background may raise in him. ["M" and "S"] would also be open to any contact with his birth family if that were possible and at this time plan to send photographs and letters each year to be kept on [the child's] file if his birth family were ever to make contact. They are also planning to retain contact with [the child's] foster mother in Korea. ["S"'s] sisters were adopted from Korea and will be a great source of support for [the child] as he comes to terms with his adoption and background. ["M" and "S"] are encouraging them to develop a close relationship with [the child] and they see each other regularly. ["M" and "S"] would like [the child] to grow up being proud of his cultural background. They collected information about Korean culture and have contact with other families who have adopted from Korea, as well as ["S"'s] sisters who are Korean. They would like to regularly visit Korea so that [the child] could have first hand experience of his birth culture." 24 "M" and "S" have made a written submission providing reasons for the name change which they seek. Those reasons are: · We believe this name change to be in the best interests of the child · It may be detrimental to the child if the name was changed now, as the name [shortened first forename] has already been established and identified · [shortened first forename] will be 2 years of age on 2 April 2004, he has been [shortened first forename] since 4 months of age and responds to [shortened first forename] and he knows his name as [shortened first forename] · All family and friends call him and know him as [shortened first forename] · The name [original Korean forenames] was given to him at birth by a social worker and not his birth family · [original Korean forenames] would not be pronounced properly here in Australia as it would in Korea. This may be frustrating to the child · It is important that [shortened first forename] is accepted into our society · [Shortened first forename's] aunties [two names obviously of English or other European origin] are also adopted from Korea and they have anglicised their names. They have kept their Korean names as middle names. They are glad their names were anglicised and support [shortened forename] as [shortened forename] · As adoptive parents we have tried to keep most of his Korean name, as you can see we have only dropped the [second syllable] from his original name · DOCS asked us when we returned from Korea what his name will be, we responded that the name will be [full name by which adopting parents wish child to be known]. At that time we have received correspondence supporting this name and referring to him as [shortened first forename]. Please see attached. [The To Whom it May Concern document referred to in para [5] above] · The name [shortened first forename] is suited to Australian society and will be easily accepted for schooling purposes and other children he mixes with · The name [shortened first forename] has already been established on all doctor and medical records, including medicare · [Shortened first forename] will never lose his Korean identity. He has 2 Korean aunties whom he sees on a regular basis. As a family we attend Korean cultural days, mix with couples with Korean children, and eat Korean food. We are also a member of ASIAC (Australian Aid for Intercountry adoption). [Shortened first forename] has Korean memorabilia in his room including videos, books, Korean flag etc. · [Shortened first forename's] grandfather's middle name is [proposed third forename]. This name links him to his adoptive family as most biological children do, however we have also kept part of his Korean name, which links him to his Korean culture. · Throughout the adoption process we have met many families with children adopted from Korea. Two families who went through the same process at the same time as us have just been through the court process of finalizing their adoption and they have changed the child's name totally. We see these families on a regular basis so the consistency of names would be beneficial to all concerned, most importantly [shortened first forename]. 25 DOCS has supplied submissions continuing to oppose any change in the original two forenames of the child, but not opposing the addition of the proposed third forename. DOCS's submission states: "As children are generally known by and respond to their first given name, the Department has not objected to the applicants' request out of a belief that the addition of an extra given name (or 'middle name'), as long as it is added after the original given names, would not have a significant impact upon [the child's] sense of identity. In Korea, the two given names are usually spoken together as one name. It is our view that as long as this practice was preserved, [original Korean forenames]'s cultural identity would be enhanced and therefore his best interests ensured." 26 Even if the two original Korean forenames were retained as the forenames of the child, that would not mean that in practice the child was called by both those names spoken together as one name. A court order approving forenames on an adoption does not, either in its terms or its practical effect, require people in the community generally to use all of the forenames which are approved. Further, even if the Court order had the effect that the child's original forenames were retained as his "real" names, that would not stop, in practice, the kind of contraction of the first forename which the adoptive parents wish to achieve from being used in everyday situations. It is common place in Australian families for there to be, for example, a person whose "real" name is James, but who is always referred to as Jim, or a person whose "real" name is Elizabeth, and who is always referred to as Liz. Section 101(5) is directed to preserving, unless there is good reason not to, the original forenames of the child as part of his or her real name. It says nothing, and can say nothing, about the names by which the child will be known in daily life. 27 An additional complication would exist if the two original Korean names of this boy were to be spoken together as one name. When so spoken, they sound fairly close to a single English word which is used, usually affectionately, but sometimes with a touch of the patronising in it, in referring to a woman or young girl, in a way appreciative of their good looks and pleasant disposition. If the two original given names of this boy were to be ordinarily spoken together as one name, there is a real risk it would be a source of playground jokes at his expense, and a lifelong source of potential embarrassment. Taking into account the best interests of the child under section 101, I would not make an order which had that effect. Even if the Korean practice of speaking the two forenames together as one name were not to be followed in daily practice, if the child's original two Korean names were to be retained, there is still some risk, though a lessened risk, of the names being a source of embarrassment to the child in this way. 28 In the circumstances of the present case, where section 101 does not bind me, but the policy which underlies it ought nonetheless be taken into account, it seems to me that the child's interests are better served by modifying his first name in the way in which the adoptive parents seek. The change is slight, there is good reason to make it, and the change is not for reasons connected with the adoptive parents wishing to either ignore or downplay his Korean origins. All the evidence is that they have no such wish. 29 In coming to this conclusion, I do not regard it as sufficient that the child has been known by the shortened forename for the whole time he has been in the custody of the adoptive parents, and that it would be confusing to him to now change back to his original name. Given that children are very frequently placed in the custody of adoptive parents long before an adoption order is made, giving weight to those factors would enable intending adopting parents to subvert the policy of section 101 by presenting the Court, at the time an adoption order came to be made, with a fait accompli so far as the name of the child was concerned. In the present case, though, there is an important additional factor, namely that the name change took place with the knowledge and written consent of DOCS. 30 I turn to whether it is in the best interests of the child to add the proposed third forename. In the present case, I conclude that it is in his best interests to make that addition. The addition is a recognition of the family background of his adoptive family, and does not involve any detraction from or denigration of his birth origins. This recognition is a public demonstration of his incorporation into the adoptive family, in a similar way to that in which taking a surname from his adoptive parents is a public recognition of integration into the new family. 31 For these reasons, I will make the order that the child be known by the names which the adoptive parents seek. **********

At a glance

Court

Decision date

Before

Source

Judgment (9 paragraphs)

Cases Cited (1)

Cited By (7)