66 In arriving at my conclusions, I have had regard to the objects of the Act as expressed in s.7, to the principles stated in s.8(1), to the factors stated in s.8(2), and to the requirements of s.90. I do not need to go through a check list of every item in s.8 and s.90 in this judgment because some matters are not in issue: see e.g. D v Director General Department of Community Services [2005] NSWCA 474, para 44. For example, there is no dispute that the factors referred to in s.8(2)(d), (g), (h), (i) and (j) militate in favour of the application for adoption. The other factors in s.8(2) and in s.90(1), (2) and (3) are all encompassed in Mr Ginges' submissions and I will refer to them in the course of explaining the reasons for my decision.
67 I do not accept Mr Ginges' submission that adoption should be considered only if all other forms of care cannot work. Another form of care may "work" in the sense that the child can manage with that form of care rather than with an adoption order. But the test required by the Act is not whether the child can manage without an adoption order; rather it is whether the child's best interests throughout life are best served without an adoption order. Put another way, if the child clearly can manage better with an adoption order than without one, then an adoption order satisfies the requirement of s.90(3) that it is clearly preferable to any other form of care order.
68 It is true, as Mr Ginges submits, that many, if not all, of the practical difficulties which Mrs A has experienced in managing the children's medical, educational and financial needs could probably be removed or considerably alleviated by an appropriately framed parental responsibility order under s.79(1) or s.81(1) of the Care & Protection Act. However, overcoming these practical difficulties addresses only the children's physical needs. In the circumstances of this case, it seems to me that the children's emotional needs are much more important than their physical needs.
69 I accept Mr Ginges' submission that an adoption order would have a highly distressing effect on Ms D. I accept that it is possible that Ms D's behaviour towards the children may be affected if the adoption orders are made. However, contact between Ms D and the children is limited and, even now, it is strained on occasions. If Ms D's behaviour towards the children adversely affects them then contact will have to be limited further. I cannot place Ms D's behaviour towards B and C in access visits above the children's overall needs and interests, now and throughout their lives.
70 In accordance with the requirements of s.8(2)(a), (b), (c), (d) and (f) I have regard to the following matters. They very largely overlap.
71 I give great weight to the effect which the traumatic experiences of their early years in the care of Ms D have had upon the children's need for emotional security and stability, now and in their future lives. That need is strongly expressed in the children's very clear wish to be identified by name and in their school environment as the children of Mr and Mrs A and not as the children of Ms D. The children are not so young that I can regard that wish as irrational and ephemeral. In view of their early childhood experiences, I regard that wish as very understandable and likely to be long-term.
72 The wish to be identified as the children of Mr and Mrs A now manifests itself in a rejection by the children of official forms and documents which do not identify them as the children of Mr and Mrs A. In my opinion, that attitude will, in due time, very probably be manifested whenever birth certificates, marriage certificates and other official documents evidencing parentage are required. On those occasions, B and C will be identified by the State, and consequently by themselves and by others, as not being the children of the people whom they themselves regard as their parents. For children of the background and disabilities of B and C, this self-identification can be damaging. An adoption order will remove this potential for damage to the children, both present and future.
73 B and C have bonded closely with Mr and Mrs A and the older children. I accept that they have a strong need to identify themselves as members of that family in the same sense and to the same degree as Mr and Mrs A's other children. B and C have no need to identify themselves as members of Ms D's family.
74 I accept that the children exhibit anxiety and distress at the prospect of ever having to return to the care of Ms D. I am satisfied that adoption orders would go a long way to removing that cause for anxiety and reassuring B and C of the security of their membership of the family of Mr and Mrs A.
75 I accept that Ms D now feels that it is not in the children's best interests that they return to her care. However, I do not accept that she will necessarily remain of that view throughout the childhood of B and C. It is possible that Ms D's own needs would impel her to seek return of the children to her care were it not for the existence of adoption orders which precluded that possibility.
76 Additionally, and very importantly, there appears to be a possibility that Ms D's mother will attempt to gain shared custody of the children. If such an application were made, it would have to be dealt by the appropriate procedures. The children may well become involved in those procedures. B and C become upset and distressed by the possibility that Ms D may attempt to regain care of them. I think it would be even more upsetting and destabilising for them if Ms D's mother, whom they do not know, were to press ahead with some application for their custody, however remote the success of that application might be. The possibility of such an application being made is, however, removed once and for all if adoption orders are made.
77 In accordance with the requirements of s.8(2)(k) and s.90(3), I have considered whether any form of care order under the Care & Protection Act would meet the best interests of the children as well as an adoption order. In my opinion, an adoption order is far more likely than any care order to remove the residual anxiety of the children that they may one day be removed from Mr and Mrs A's family and that they are not, in truth, loved by Mr and Mrs A to the same degree as the other children of the family. I consider that the making of adoption orders would be clearly preferable in the best interests of B and C than any other action that could be taken by law in relation to their care.
78 Mr Ginges has not made any submission that the arrangements proposed in the adoption plans for the children are not in their best interests and are not proper in the circumstances. Nevertheless, in accordance with the requirements of s.90(2), I have considered the proposed adoption plans. I am satisfied that the arrangements proposed therein are in B and C's best interests and are proper in the circumstances.
79 Because of the children's traumatic experiences in early life and their consequent emotional vulnerabilities, and because I consider it to be in their best interests that they be adopted by Mr and Mrs A, I am satisfied that there is serious concern for their welfare and that it is in their best interests to override the wishes of Ms D that the adoption order be refused and that they be left in foster care. Accordingly, I am satisfied that it is proper to dispense with Ms D's consent to the adoptions pursuant to s.67.
80 I appreciate that I have expressed my conclusions as to adoption before expressing my conclusions as to whether the Court should dispense with Ms D's consent. However, in the circumstances of this case, the two applications involve the same considerations. In my view, the order in which the conclusions are expressed is immaterial.
Orders