Baker v R

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTIONS LIST

80117/04 - APPLICATION OF RM and ESM - CHILD: Y JUDGMENT 1 By their summons filed on 20 July 2004, the plaintiffs, a married couple, seek an order for the adoption of a boy aged 25 months, together with ancillary orders. The child has been in the care of the plaintiffs since being placed with them in February 2003 at the age of five months. 2 The evidence shows that, subject to one qualification, there is a strong and clearcut case for the making of the orders sought. The plaintiffs are in all respects eminently suited to be recognised by adoption order as the parents of the child. The qualification relates to the aspect of the application concerning approval of names for the child. That aspect requires discussion since the Delegate of the Director-General of the Department of Community Services whose affidavit has been filed opposes the making of the order the plaintiffs seek as to the child's names. 3 The child was born in Korea in August 2002 and abandoned at or soon after birth. An extract from a family register maintained by a Korean court records his "family name" as a name beginning with "Y", this name having been given to the child, apparently by Korean social workers, in the absence of knowledge of any other family name. The extract shows his other names as two words beginning with "J" and "H" respectively. I shall refer to these words by their initial letters. In the formulation the plaintiffs have put before the court, the so-called "family name" comes last, with the two names which are not the "family name" preceding it. 4 The order with respect to names sought by the plaintiffs is an order approving a name which consists of six words, of which "J", "H" and "Y" are the second, third and fourth. The proposed first name is another word beginning with "J" but, to avoid further confusion and without intending any disrespect, I shall refer to it as "I". The fifth and sixth names both begin with "M" and again, to avoid confusion and merely for ease of reference, I shall refer to the fifth as "N" and the sixth as "M". 5 Using these symbols, the full name the adopting parents wish their child to have is "IJHYNM". "J", "H" and "Y", as I have explained, make up the child's existing Korean forenames and family name. "M" is the family name of the adopting father and is proposed in accordance with the convention in our society under which a child takes his or her father's surname. "N" is a forename from Europe which is of significance within the family of the adopting mother. 6 In addressing the application for an order with respect to the child's names, the court must obey and give effect to specific provisions of the Adoption Act 2000 concerning the names of a child who is more than one year old or is a non-citizen child - both being categories in which the child the subject of the present application is included. Because the child was placed with the plaintiffs after the commencement of the Act of 2000 on 31 January 2003, it is the Adoption Act 2000 rather than the Adoption of Children Act 1965 that must be applied. 7 Section 101(1) of the Adoption Act says that, upon the making of an adoption order, an adopted child under the age of 18 years is to have as his or her surname and given names "such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents". In cases within the two categories to which I have referred, however, the court is subjected to a specific command by s.101(5). It is convenient to set out s.101 in full: "(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." 8 In the present case, the "special reasons" question posed by s.101(5) arises in relation to both the addition of "I" before "JHY" and the addition of "N" after "JHY". I do not regard it as extending also to the retention of "Y" after "JH" since, although "Y" is represented in the extract from the Korean court as a family name, it is in fact what s.101(5) calls a "given name" because it was conferred upon this child in the absence of knowledge of his family of origin and its name. 9 The rationale behind s.101(5) was explained by Campbell J in Re M and Anor (2004) 31 FamLR 415. It is appropriate to quote at some length from his Honour's judgment, particularly because it explains important matters of background. I hasten to add, however, that the applicable Act there was the Act of 1965, not the Act of 2000 to which his Honour referred merely for guidance. Campbell J said: "One of the obligations under treaties, which s 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 Art 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'.

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 Art 8 of UNCROC, and continued: '10.231 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 .' That report included a draft Bill, which had, as cl 71, a clause almost identical to the text eventually adopted as s 101(4) Adoption Act 2000. (The only difference was in what has now become s 101(4), a subsection not relevant to the present application.) The second reading speech on the Adoption Bill ( Hansard , 5 September 2000, Legislative Council, p 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 p 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 … Thus, under s 34 Interpretation Act 1987 (NSW), the Law Reform Commission report can be taken into account to clarify any ambiguities or obscurities in the Act. In Re MJR (2003) 31 Fam LR 50 at 52, [7] Bryson J referred to s 101 as reflecting: '… a perception that adopted children, including children adopted from overseas, go through change and dislocation and disruption of everything in life that is familiar, and the maintenance of the child's name may have some beneficial influence in this disruption, and in the longer term may have positive influences on the development and strength of the child's sense of identity, in childhood and later.' There is no definition of the expression 'given name or names' which appears in s 101(5) of the Adoption Act 2000. However, as a matter of construction of the Act as a whole, and the policy explained in the portions of the Law Reform Commission report which I have quoted, the 'given name or names' of a person are all the names which that person has which are not a surname. Further, there can be 'a change in the given name or names of a child', within the meaning of s 101(5), not only if one of the existing given names of the child is altered or replaced, but also if there is added to the given name of a child some additional name which is not a surname. Thus, if s 101 applied to the present application, subs (5) would prohibit the court from both approving the contraction of the first given name of the child, and the addition of the new third given name of the child, unless there were special reasons, related to the best interests of the child, to do so." 10 The High Court has recently observed in Baker v R [2004] HCA 45 (1 October 2004) that statutory provisions directing that courts not make orders of a particular type except for "special reasons" are relatively common. As Gleeson CJ said (at [13]): "There is nothing unusual about legislation that requires courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power eg United Mexican States v Cabal (2001) 209 CLR 165. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors." 11 I quote also from the judgment of Callinan J (at [173] - [174]): "Speaking of the expression 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) required for a decision not to impose a sentence of life imprisonment, Lord Bingham of Cornhill CJ said in R v Kelly (Edward) [2000] QB 198 at 208: We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.' 'Special reasons' in my opinion share those characteristics." 12 In the present context, the "special reasons" specification under s.101(5) of the Adoption Act is not unconstrained. The "special reasons" that the court must find in order to be permitted to make an order approving a change in a child's given names may only be reasons "related to the best interests of the child". The court may therefore act only if it positively finds some factor or circumstance related to the best interests of the child that is out of the ordinary course, unusual, special or uncommon and that is not regularly, routinely or normally encountered. 13 I turn now to the matters put forward by the plaintiffs in support of their application with respect to the child's names. The desired first name - which I have designated "I" - is not a name having any pre-existing connection with the child or the adopting parents, apart from having been used by them in relation to him. They say in their affidavit that "I" is, as pronounced (although not as spelled), a Korean name, but one more easily spoken and pronounced by English speakers than "JH" to which, in spoken form, it bears some resemblance. It is because of this resemblance and the fact that it is, in any event, a Korean name that the plaintiffs have chosen "I" as the first of the child's proposed names. The plaintiffs also say that: (a) as "JH" is not pronounced as spelled by English speakers, it could be distressing to the child as he grows up to be referred to, in conversation, by spoken words that do not, in reality, represent his written name; (b) the child has been called "I" from the age of five months and was referred to by the plaintiffs as "I" even before they met him; (c) the child responds to the name "I" and is able to say it; and (d) the child has established a character and reputation within the family and the community as "I". 14 The plaintiffs have put before the court material evidencing a commitment to preserve the child's Korean language and culture. They take him to a weekly playgroup for Korean children at which Korean is taught and awareness is raised through songs, folk stories, cooking and craft. They are also members of a Korean school which aims to encourage awareness of the traditions and culture of Korean adoptees. They intend to travel to Korea regularly and are already planning a trip in 2005. 15 The contention of the Delegate of the Director-General is that the plaintiffs have failed to show "special circumstances, related to the best interests of the child" as required by s.101(5). I quote from the Delegate's affidavit: "20. The affidavit of special circumstances dated 20 July 2004 contends that special reasons are made out because they have been referring to the child since placement as '[I]'. This clearly contravenes the commitment made by applicants through the entire adoption process. I note that the applicants attended the Preparation for Adoption Seminar 5 and 6 July 2001. It is on each Preparation for Adoption Seminar agenda and the practice of the social workers delivering the training to raise and discuss the importance of a child retaining his or her birth names as 'given names' so as to aid the child in maintaining their identity and links with their birth culture. The trainers also highlight the importance of complying with the provisions of s 101(5) of the Adoption Act 2000 . …

21. I note that as part of the assessment process, a social worker [named] contracted by the Department of Community Services discussed with applicants their intention to retain the child's given name. I note that both applicants agreed to retain the child's name. … It is important to note that this information was provided to the Overseas Authority who approved the placement of the child with the Applicants. 22. All departmental correspondence to the applicants has referred to the child's birth name as his or her legal name to comply with section 110(5) Adoption Act 2000 . … 23. I also note that in all correspondence from the Agency, which approved the placement of the child, he is referred to by his birth name. …"

16 The plaintiffs advance two considerations in support of the contention that "special reasons" of the kind referred to in s.101(5) exist in this case, so far as addition of the first name "I" is concerned. These are, first, the fact that the use of "I" in relation to the child is now established within the family and in the circles in which the family moves, with the child himself now able to say "I" and presumably identifying with that name; and, second, the difficulty in relating the written form of "JH" to its spoken form which the plaintiffs apprehend may be a source of distress for the child, as he grows up, because people tend to mispronounce his name. 17 I shall deal with these in turn. The circumstance that a child has actually been called by a name other than his or her given names and can say that name and identifies with it is one that has been considered in several decided cases. In Re MJR and Anor (2003) 31 Fam LR 50 Bryson J said at 53: "I am inclined to think that where a western forename has been given to the child, and the child has for a significant period, by which I mean a year or more, come to know an order of given names to which the western given name comes first, that may well constitute special reasons related to the best interest of the child to approve a change in the given names. … However, this is not a subject which can be generalised; the need is to identify special reasons, and acceptance as a matter of course of changes which adopting parents propose would from now on be altogether inappropriate. Proposed adopting parents should be aware, and adoption agencies will probably make them aware, of the effect of s 101 and of the difficulty created by that section for changes in given names of non-citizen children." 18 There is, of course, no significance to be attached to his Honour's description of the added forename as "western". His observation are to be understood as applying to any added forename. In Re M and Anor (above) Campbell J considered this same issue. At 423 his Honour said: "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 s 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." 19 There appears to be only one case in which s.101(5) has applied directly, as distinct from being considered by way of analogy or background in cases governed by the Act of 1965. The case to which I refer is the decision of Austin J in Re YC; Application by PM and CM [2004] NSWSC 461. That case concerned a child from Taiwan and a proposal that her name consist of a new Anglo-Celtic forename followed by her original Taiwanese given name and the surname of the adopting parents, with that surname replacing her Taiwanese family name. The case thus raised the same considerations as are now before me, so far as the addition of the new first name is concerned. Austin J approved the altered names pursuant to s.101(5) and, in so doing, said: "One special circumstance is that the adopting parents have already adopted a Taiwanese boy under the Adoption Act 1965, which contained no provision equivalent to s 101(5). The name given to him on adoption was an Anglo-Celtic first name, his Taiwanese given name as his middle name, and the surname of his adoptive parents. The present application will confirm a continuity and similarity between the siblings, whereas refusal of the application may be confusing to the child as she grows up, and possibly disruptive of her social and family relationships.

Moreover, the child has been called "C-L" by her family and friends since the adopting parents received an allocation notice from the Department in December 2002, just a few weeks after her birth. By 7 February 2003 the Christian Salvation Service, who were caring for the child, were referring to her as "C-L", and have continued to do so since that time. The Department of Community Services have referred to the child as "C-L" in all correspondence to date, as has the social worker in post-placement reports. The adopting parents have registered the child for enrolment in various private schools under the name "C-L Y-L M", and she has been baptised under that name. She has a bank account and a Medicare card in that name. Generally, she has been referred to as "C-L" from the time of the adopting parents' earliest involvement with her through the Christian Salvation Service in Taiwan, and therefore from shortly after her birth.

Given the commitment of the adopting parents to preserve the language and culture of the child, it does not seem to me that the adoption of an Anglo-Celtic first name will inhibit the child's development in the manner envisaged by the legislation and the Law Reform Commission Report." 20 It will be seen that the fact that the child had been widely referred to by the additional name "C-L" played a part in his Honour's decision but I do not read his judgment as including a finding that that amounted to a "special reason" for the purposes of s.101(5). In that respect, the approach of Austin J is consistent with that reflected in the comments of Campbell J quoted at paragraph [18] above. The only matter referred to as a "special circumstance" by Austin J was that related to the maintenance of a naming pattern among the children of the family to avoid consequent possibilities of confusion for the child and disruption within the family. On the first matter advanced by the plaintiffs as a "special reason" for the purposes of s.101(5), I am satisfied that, for the reasons stated by Campbell J and quoted at paragraph [18] above, no "special reason" is shown. 21 That leads me to the second factor put forward in the present case, namely, that the existing forenames "JH" and problems people reading them may have in pronouncing them correctly will prove a source of distress to the child as he grows up. I accept that anything likely to be productive of distress to a child in formative and later years is readily capable of being regarded as a "special reason" related to "the best interests of the child". In Re M and Anor (above), Campbell J took account of the fact that the original Korean name, when spoken by an English speaker, sounded like an English word used in an affectionate but patronising way in relation to young women and girls. The child there was a boy. His Honour acknowledged that use of the Korean name would entail "a real risk it would be a source of playground jokes at his expense". This, to my mind, would have amounted to a special reason related to the best interests of the child for the purposes of s.101(5). 22 The suggested possibility or likelihood of distress in this case is, I think, something that needs to be tested. In today's Australia where English is the prevailing language, many people have non-English names. The Sydney telephone directory contains more than six pages of entries for the family name "Nguyen", a name I venture to say is mispronounced, from a Vietnamese perspective, by many (probably most) Australians who have no knowledge of the Vietnamese language. Reference may also be made to surnames that have come from non-English sources and have attained an English pronunciation different from the pronunciation in the language of the country of origin. The German "Wagner" is an example that comes to mind. And there are cases in which surnames of non-English origin have been adapted for use in Australia: for example "Jung" changed to "Young". The same approach is often taken to forenames. I recently heard a case in which parties or witnesses with the forenames "Antonio", "Filippo" and "Bartolo" referred to themselves (and were referred to by others) as "Tony", "Phillip" and "Bob". 23 I am not satisfied that, in the context of contemporary Australia, the fact that a name is unfamiliar to English speakers who, seeing it in written form, will not know, without instruction, the correct pronunciation according to the language of origin amounts to a "special reason" of the kind with which s.101(5) is concerned. It would be different if, as in the matter before Campbell J, the pronunciation likely to be adopted by English speakers coincided with some undesirable, objectionable or belittling English word. Nothing of that kind is suggested here. The case is no more than what must today be regarded as the common and ordinary case in which a non-Anglo-Saxon name goes into circulation in Australia and thereby joins a number of other non-Anglo-Saxon names of various national or ethnic origins in enriching Australian language and culture. Many Australians today have names that were not encountered in Australia fifty years ago 24 So far as addition of the proposed new first name "I" is concerned, the two matters put forward by the plaintiffs are not sufficient to enable the court to make the positive finding of special reasons related to the child's best interests that s.101(5) of the Adoption Act makes necessary to justify approval of the addition. That conclusion is, I confess, one that leaves me with some unease based on a general feeling that adopting parents of a child placed with them at the age of five months should not be in any different position from the natural parents of a newborn baby when it comes to the matter of choosing names for their child. But the general feeling must be suppressed because it is, in circumstances such as the present, at odds with contemporary law which, as is shown by the Parliamentary and law reform materials quoted in the extract from Campbell J's judgment at paragraph [9] above, has a firm and considered policy basis and reflects norms that Australia has chosen to adopt by becoming party to a relevant international compact. 25 It remains to consider the proposed addition of the name "N" immediately before the surname "M". The s.101(5) requirement again applies but, in this instance, no reason is advanced by the plaintiffs beyond the attachment that the adopting mother has to the name because of its connection with her family. That cannot be within the statutory specification "special reasons, related to the best interests of the child". 26 As I have already said, there is a strong and clearcut case for the making of an adoption order in this case. Orders dispensing with the consent of the natural parents and with notice to them and the overseas guardian should also be made as sought. The court cannot, however, approve the forenames "IJHYN" and the surname "M". The only approval with respect to names that, on the findings made, the court is permitted by law to make is an order approving the given names "JHY" and the surname "M". That, however, is not, at this point, an order that the plaintiffs seek. 27 This leads me back to the structure of s.101 as a whole. A child under 18 has, upon the making of the adoption order itself, such name or names "as the Court, in the adoption order, approves"; and the court may only approve a name or names in respect of which the adopting parent or parents make an application. It follows that where, as here, the adopting parents' application is for the approval of names involving a change that s.101(5) does not allow the court to approve, the court is left in a position where it cannot make the adoption order, even though in all other respects a very strong case has been made in support of that order. 28 In these circumstances, the best course is for the court to grant leave for the plaintiffs to amend their summons by substituting for the existing prayers 1 and 2 a prayer in or to the effect of the following form: "An order for the adoption of [child's original name] in favour of [name of adopting father] and [name of adopting mother] and approving [adopting father's surname] as the child's surname and [other names] as the child's given names",

with "[other names]" referring to names that it is open to the court to approve conformably with s.101(5) and these reasons. I grant leave to amend accordingly and direct that the amended summons be referred to me in chambers immediately it is filed. **********

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