Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 | Case summary

Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 | Case summary | Zoe

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ANR and SCR v LJW (Racine's case) (1983) 36 RFL (2d) 1 Application of DoCS, Re C [2004] NSWSC 702 B & R (1995) 19 Fam LR 594 Beach & Stemmler (1979) FLC 90-692 Chapman & Palmer (1978) FLC 90-510; 4 Fam LR 462 D v Director-General, Department of Community Services [2005] NSWCA 474; 34 Fam LR 445 Department of Community Services v D [2004] NSWSC 1241 Ex parte West (1861) 1 Legge 1475 F v Langshaw (1983) 8 Fam LR 833 Flanagan & Handcock (2001) FLC 93-074 George & Radford (1976) FLC 90-060; 1 Fam LR 11,510 Goudge & Goudge (1984) 9 Fam LR 500; (1984) FLC 91-534 Hodak, Newman & Hodak (1993) FLC 92-421 In re B (an infant) [1971] 2 WLR 129, 138; [1970] 3 All ER 1008 In Re G [2006] UKHL 43 Kelley & Kelley (1981) FLC 91-002 Mahoney & McKenzie (1993) FLC 92-408 McL & McL (1989) 15 Fam LR 7; (1991) FLC 92-238 McMillen & Larcombe [1976] NTJ 1001 Mulhall v Hartnell (1988) 12 Fam LR 361 R & R (1985) FLC 91-615 Re an Infant K [1973] 1 NSWLR 311 Re B & the Adoption of Children Act 1965 (1979) 5 Fam LR 150 CASES CITED : Re C, Mr & Mrs E, Mrs F v LA (EWHC, FamD, Ryder J, 19 July 2006; (The Guardian, 20 July 2006) Re D; Application of A [2006] NSWSC 1056 Re Evelyn [1998] FamCA 55 Re G [2006] UKHL 43 Re P (a minor) (Adoption) (1990) 1 FLR 96 Re Q & R; Application of P [2006] NSWSC 1234 Rice & Asplund (1978) 6 FamLR 570 Rice & Miller (1993) FLC 92-415 Rushby v Roberts [1983] 1 NSWLR 350 Sanders & Sanders (1976) 1 Fam LR 11,433; (1976) FLC 90-078 Skrabl & Leach (1989) FLC 92-016; 13 Fam LR 83 Torrens v Fleming (1980) FLC 90-840 U I & UJ v Minister for Community Services [2006] NSWADT 16 Young v Lalic [2006] NSWSC 18 Texts: Adoption: Achieving the Right Balance (Department of Health UK), 1998 Armstrong & Slaytor, The Colour of Difference: Journeys in Trans-racial Adoption, Annandale, 2001 Brodzinsky & Schechter (eds), The Psychology of Adoption, Oxford 1990 Fratter J, Adoption with Contact, London 1996, p 247 Hansard, Legislative Council, 10 October 2000 Katz, The Construction of Racial Identity in Children of Mixed Parentage: Mixed Metaphors, London 1996 Newman, Trauma in Infancy, the Psychobiology of Attachment Prevatt Goldstein & Spencer, Race and Ethnicity: A consideration of issues for black, minority ethnic and white children in family placement, BAAF 2000 Thoburn et al, Permanent Family Placement for Children of Minority Ethnic Origin, London 2000

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80080/04 Director-General Department of Community Services v D & Ors JUDGMENT 1 HIS HONOUR: The child whose best interests are the paramount consideration in these proceedings, E, was born in New South Wales on 25 July 2003, where her birth mother D had arrived from Africa under a refugee resettlement program on 25 March that year, already pregnant (although she did not then know it) as a result of having been raped in the refugee camp in which she had until then been living. As a result of D having given an apparent consent to adoption, which has since been declared void - on the ground that she was then incapable of properly considering the question of whether she should give consent - E has been in the care of Mr and Mrs F, who have cared for her on the basis that they were to be her legal adoptive parents, for all but the first three months of her life (when she was in temporary foster care). If an adoption order is now made, D - who all parties now accept is capable of properly considering the question of consent - will for all intents and purposes have been deprived of the care of her own child, notwithstanding that she wishes to care for her and has never given a true consent to adoption. On the other hand, if no adoption order is made, then the basis on which Mr and Mrs F have cared for E for in excess of three years, when they were reasonably entitled to assume that E - who has brought them great joy, and from whose care E has obviously benefited - would for all practical purposes be their child, will be falsified. The enormity of the emotions involved for D and for Mr and Mrs F is plain and understandable. An adverse decision to either will not unreasonably be perceived by the unsuccessful party, from his or her perspective, as unfair. 2 Neither D nor Mr and Mrs F have done anything to deserve being in the position in which they now find themselves, and neither deserves to be the unsuccessful party in this unhappy litigation. But ultimately, this case is not about the just deserts of D and Mr and Mrs F: I must regard the interests of E, and not those of D or Mr and Mrs F as paramount, although I accept that the emotional wellbeing of a parent may well impact on a child and thus be relevant to a child's welfare; and I cannot disregard what has happened so far as E is concerned over the last three years or more - it is not possible to begin this case with a clean slate. Neither can I disregard what evidence and human experience suggests is likely to happen in her long term as well as short-term future.

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7 D was born, in a Dinka tribe in Sudan, on 31 December 1984. In 1992, her family fled to Kenya. Her father was killed during their escape, and she became separated from her mother and family. Eventually she arrived in a refugee camp in Kenya. In October 2002, she was sexually assaulted in the refugee camp, as a result of which she became pregnant. On 23 January 2003 she was granted residency to Australia, and she arrived in Australia on 25 March 2003 under a refugee resettlement program. She took up residence near her half-brother in the western suburbs of Sydney. 8 In April 2003, having attended a doctor, D discovered that she was pregnant. Due to concerns she then entertained at cultural attitudes in her community to women who became pregnant out of wedlock, she concealed the pregnancy. However, her brother suspected if not discovered it, and he assaulted her at his unit. She attended Blacktown Hospital, and was subsequently transferred to Westmead Hospital, where a social worker arranged for her to be placed in a refuge. 9 On 19 May 2003, D informed a hospital worker that her pregnancy was the result of a sexual assault and that she wanted to surrender the baby for adoption, and she expressed fears in relation to her brother's reaction to the pregnancy. She commenced residing at the refuge on 22 May 2003. Between May and July 2003 she had several meetings with officers of the Department of Community Services and caseworkers from the refuge regarding her options. She was, to some extent at least, confused at the distinction between the concepts of adoption and fostering. On one occasion, she expressed a wish to have the baby back after five years. On another, she expressed reluctance to place the baby with another family permanently, and asked if the baby could come back in three years. She told a caseworker that she would like to have a lot of contact with her baby, and that she wanted the baby with her after it was born until it went to a foster mother. On 1 July 2003 she told another caseworker that she wanted the baby placed with a Catholic family, and to have regular contact. 10 On 16 July 2003, D was admitted to Westmead Hospital under an assumed name with high blood pressure. On 21 July 2003, a diagnosis of depression was made. Lynne Tripet, then an obstetric social worker at the hospital, liaised with the Department of Community Services and was concerned about D's mental and emotional state. D was induced on 24 July, and the child E was born at Westmead Hospital by emergency caesarean section on 25 July. D was discharged on 28 July, having signed temporary care agreements for E to be in the care of the Director-General (pursuant to (NSW) Children and Young Persons (Care and Protection) Act 1998, s 151). On 29 July 2003, E was placed in the temporary care of authorised foster carers, where she remained until she was three months old; during that period while she was cared for by the pre-adoptive foster parents, she had contact with D on five occasions.

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11 On or around 14 August, D saw Lynne Tripet, to whom she appeared sad at the separation from her baby, expressing the view that she did not want to lose her baby. On 9 September 2003, D had an appointment with Jenny Klein, a caseworker from DoCS. To Ms Klein, D appeared flat and down, and Ms Klein was worried that she did not understand the full implications of adoption. On 15 September 2003, D attended mandatory counselling with a counsellor at the Adoption & Permanent Care Services office of the Department at Parramatta. Separately, Dr Gobran at the Station Medical Centre prescribed anti-depressant medication for her. However, no psychiatric assessment was arranged prior to 19 September 2003, when D signed her formal consent to E's adoption. 12 When D signed the general consent, she expressed requests as consenting parent that E be placed with adoptive parents who would retain the child's first name; that the child be placed with approved and suitable adoptive parents having a cultural heritage of any group; that the child not be placed with adoptive parents who were African [due to her concerns for D's and E's safety if the connection were discovered by her community]; that the child be raised in the Christian religion; that the child not be placed with adoptive parents who were Muslims; that D receive news and information about E two times a year, and meet with her twice a year; and that there be telephone calls between D and E on each of their birthdays. 13 On 5 October 2003, D presented at Westmead emergency department with left-side body pain and tingling. Dr McKew advised the refuge worker that she may have a blood infection and also needed a psychiatric assessment. At a meeting with DoCS during October 2003, she again asked if she could have the baby back in three or five years. Between 20 and 24 October, D consulted a doctor at the Centre for Infectious Diseases & Microbiology at Westmead, possibly twice. The doctor wrote a report indicating that she was profoundly depressed and that the most urgent problem with her health was her depression.

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The Proposed Adoptive Parents, Mr and Mrs F 15 Mrs F was born on 19 March 1961, and Mr F on 21 May 1964 in Scotland. They met in 1990, and married on 18 September 1998. They subsequently discovered that they could not conceive a child of their own, even through IVF. On 29 October 2001 they made a formal expression of interest in adoption to the Department of Community Services, indicating that they were open to adopting a child of any ethnic background. On 6 June 2003, DoCS made a recommendation that they be approved generally for adoption purposes. On 19 August 2003, their application to adopt a child through the Department's local adoption and permanent care program was approved without conditions. 16 On 22 October 2003, Mrs F received a call from the Department's Adoptions Branch caseworker, Jenny Klein, advising that a female child with dark skin was available for adoption. Mr and Mrs F were told that the child had been conceived as a result of a rape and that she was very dark, and were asked whether they needed to consider those matters. They said they did not need further time to consider those issues: they had previously contemplated adopting an African baby. They told family and friends that they had been allocated a baby girl, and told most to whom they spoke about the child's colour. They cancelled travel they had planned for a five-week holiday. The next day, 23 October, they went to the DoCS offices in Parramatta, signed documents and saw photographs of E. They met E at the foster carers' home; they researched her name in an Arabic dictionary and found that it meant "gift". Over the next four or five days, they visited E daily at her foster carers' home. 17 On 27 October 2003, Mr and Mrs F went to the DoCS offices at Parramatta to receive E, then three months of age. They met D and hugged her. They told D that they loved E's given name and would never change it. They gave D a gold heart-shaped locket engraved with a Celtic design, to join D to their family. Their intention was to give D a photograph of E to place in the locket, but at that stage this was thought not a good idea because other members of D's community might see the photo and ask D the identity of the baby. E was placed into the care of Mr and Mrs F, the proposed adoptive parents, in whose care she has been ever since, and where she has thrived. The proceedings 18 The Director-General applied for an adoption order in favour of Mr and Mrs F. On 31 May 2004, the court dispensed with the consent of E's father to the adoption. However, in or about mid-2004, D changed her mind about the adoption. She decided that she wished to revoke her consent and have E returned to her care. At a meeting with Ms Dulcie, Amanda Whitbread and Michelle Henderson on 30 August 2004, she gave a letter to the Department from the Legal Aid Commission, stating that she wanted to withdraw her consent to the adoption. On 10 September 2004, the Director-General replied to D that he had declined her request that E be returned to her care. 19 The adoption application was set down for hearing, commencing on 15 December 2004. D's application for an adjournment, on the grounds of her then mental ill-health (she had been admitted to hospital with major depression), was refused on 14 December 2004, essentially because of the urgency of resolving the future of E, and the apparent unlikelihood that an adjournment would result in the court being presented with a substantially different state of affairs. The hearing proceeded, a tutor having been appointed to represent D, whose instructions could not be obtained, and at the conclusion of the hearing on 17 December 2004, Palmer J made orders, for which reasons were later published [Department of Community Services v D [2004] NSWSC 1241]. His Honour concluded - as D had contended and the Director-General conceded - that D had not been in a fit condition to give the consent when she had done so, and declared that her consent was ineffective [(NSW) Adoption Act 2000, s 58(2)(d)]. Nonetheless, over D's opposition, his Honour made a consent dispense order on the grounds that D was (at the time of the hearing) in such a physical and mental condition as not to be capable of properly considering the question of whether she should give consent [Adoption Act, s 67(1)(b)], and that there was serious cause for concern for the welfare of the child and it was in the best interests of the child to override D's wishes as parent [s 67(1)(c)]. His Honour then made an adoption order in favour of Mr and Mrs F. 20 D appealed, and following a hearing on 7 December 2005, and the reception of further evidence, the Court of Appeal (Hodgson and Ipp JJA, Hunt AJA) on 22 December 2005 allowed the appeal, set aside the adoption order (but not the consent dispense order), and remitted the matter to the Equity Division for a new hearing of the adoption application [D v Director-General, Department of Community Services [2005] NSWCA 474, 34 Fam LR 445]. The appeal succeeded essentially on the basis that further evidence, not available at trial, showed that D's condition had improved in a way not previously anticipated, so that there was a likelihood that there would be a positive involvement of her family in the care and upbringing of E if the adoption did not proceed, with the result that assumptions upon which the primary judge had proceeded were retrospectively falsified. Following that decision, under an interim order made by Nicholas J on 23 December 2005 [Adoption Act, s 84], Mr and Mrs F have had interim parental responsibility for E, who has had very occasional contact with D.

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29 Other provisions in the Act, including one that is closely analogous to s 92, refer to parental responsibility. Thus s 84 authorises the making of interim orders "for parental responsibility" in favour of the prospective adoptive parents, or in favour of the Director-General, and s 86 provides that the Court may at any time make an order discharging such an interim order and: (2) If the Court discharges an interim order the Court may make any order concerning parental responsibility for the child that it thinks fit, including, if the child is less than eighteen years of age, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998. 30 Part 8 is concerned with interim orders, and at first sight it is surprising that upon discharge of an interim order which could be made only in favour of a prospective adoptive parent, the Court is authorised to make "any order concerning parental responsibility … that it thinks fit", apparently not limited to an interim order. But this is less surprising when it is appreciated, from s 86(3), that an interim order also ceases to have effect on the making of an order for the adoption of a child. In other words, where an interim order has been made, if an adoption order is then made the interim order ceases to have effect, parental responsibility then being covered by the adoption order. If, however, the Court discharges the interim order without making an adoption order, the Court may make a parental responsibility order to operate in place of the interim order. The intent was to give the court, in circumstances where an adoption application is made, the fullest power to deal with parental responsibility for the child, even if an adoption order not be made in favour of the persons who had interim parental responsibility. 31 Despite the use of the words "care and custody" in s 92, some indication that it was intended to cover parental responsibility is given by the circumstance that s 92 explicitly includes, in "orders for the care and custody of the child concerned", an order placing the child under the parental responsibility of the Minister. That is a clear indication that, for the purposes of s 92, "orders for the care and custody of the child" were intended to include orders allocating parental responsibility. Such a construction would be consistent with the evident purpose of s 86. The explanation for the different wording is that, in s 92, Parliament has adopted the wording of the corresponding section of the former (NSW) Adoption of Children Act 1965, which provided as follows: 24 Care of child after refusal of an application

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34 Reflecting this limitation on the referred powers, Family Law Act, s 69ZK, provides: Child Welfare Laws not affected (1) A Court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a Child Welfare Law unless (a) The order is expressed to come into effect when the child ceases to be under that care; or … (2) Nothing in this Act, and no decree under this Act, affects: (a) The jurisdiction of a Court, or the power of an authority, under a Child Welfare Law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a Child Welfare Law; or (b) Any such order made or action taken; (c) The operation of a Child Welfare Law in relation to a child. (3) If it appears to a Court having jurisdiction under this Act that another Court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first mentioned Court may adjourn any proceedings before it that relate to the child. 35 The combined effect of Family Law Act, s 4(1), and (CTH) Family Law Regulations 1984, regulation 12D and Schedule 5, is that the (NSW) Adoption Act is a Child Welfare Law. Also worthy of note is Family Law Act, s 61C, which recognises that parental responsibility (which in the Family Law Act is defined in terms identical to those in the Adoption Act), may be affected by orders of courts other than the Family Court, under Acts other than the Family Law Act: 61C Each parent has parental responsibility (subject to Court orders) (1) Each of the parents of the child who is not eighteen has parental responsibility for the child. … (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section). 36 Nonetheless, I do not accept that it follows that the State intended to retain, to the exclusion of the Commonwealth, power over children whose application for adoption was dismissed. To the contrary, Adoption Act, s 90(3) and the note thereto makes clear that it was contemplated that a parenting order under the Family Law Act might be a preferable alternative to an adoption order. Family Law Act, s 69ZK, permits an order to be made under that Act, if the relevant child is not under the care (however described) of a person under a Child Welfare Law (for example, if no order is made under the Adoption Act), or if the order under the Family Law Act is expressed to come into effect when the child ceases to be under that care.

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44 There is a fundamental tension between two of them, which point in opposite directions, and create one of the major issues in the case: first, that all else being equal, it is undesirable that a child such as E be raised apart from her natural family and culture by persons who are patently ethnically different; but secondly, that it is undesirable that a child such as E be removed from the care of those who have parented her since she was three months old and in whose care she has obviously thrived. Professor Katz, an expert called by the Director-General, conceding that all else being equal it is better for children to remain with their natural parents in their own community of origin, put it this way: The issue is not whether D would be a better parent for E than Mr and Mrs F, but whether she can provide adequate parenting for E over the long term, whether she has support from her community, and whether separation from Mr and Mrs F at this point in E's life will cause her irreparable damage. 45 The critical considerations that inform a judgment as to where E is best placed may now be summarised as follows: · The disadvantages for E of being brought up apart from her natural family, ethnic and cultural origins - including the extent to which those disadvantages can be mitigated. The extent to which Mr and Mrs F will foster contact between E and D and her family and culture is an aspect of this; · The risks of separating E from Mr and Mrs F at this point in E's life; · The capacity of D to provide adequate parenting for E in the long term, aspects of which include whether E would be at risk if in her care, and the extent to which D will be supported by her extended family and community; and · The respective benefits of adoption and other arrangements for long-term care. 46 No party now submits that D's consent should be dispensed with pursuant to Adoption Act, s 67(1)(b), it being accepted by all that she is now capable of properly considering the question of whether she should give consent. However, there remains a very live issue as to whether the grounds for making a consent dispense order under s 67(1)(c) are established, and whether such an order should be made. If there is no consent dispense order, it will follow that an adoption order cannot be made. This gives rise to a preliminary matter, namely the status of the consent dispense order made by Palmer J, which was not set aside by the Court of Appeal. Very sensibly, the parties agreed that the previous order should be revoked, but I should explain why that course is appropriate, in circumstances that it was not set aside by the Court of Appeal. Revocation of the previous consent dispense order

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(iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child. 48 In D's appeal from Palmer J's decision, she challenged (1) the refusal of an adjournment, (2) the making of the consent dispense order, and (3) the adoption order. The first and second challenges failed, but the Court of Appeal allowed her appeal against the adoption order on the basis of fresh evidence adduced in the Court of Appeal, described by Hodgson JA in the following terms: [48] The further evidence does show that D has recovered, in a way not anticipated, and shows a likelihood that there would be positive involvement of her family in the care and upbringing of E if the adoption was set aside. I think it is fair to say that this does amount to the falsification of assumptions, rather than merely being the realisation of a contingency taken into account by the primary judge. Had the primary judge not acted on the contrary assumptions but been in a position to make a correct assessment of these potentialities, a different outcome of the case would have been a substantial possibility; though I could not say that a different outcome would have been likely. In my opinion, to refuse to admit this evidence would affront common sense and a sense of justice. 49 In allowing the appeal, the Court of Appeal set aside the adoption order and remitted the adoption application for rehearing; it is on that rehearing that I have been engaged. However, the Court of Appeal did not set aside the consent dispense order, and found that it was unaffected by error. 50 In the course of the preliminary hearings, the issues for trial were discussed and defined, and on 6 July 2006, the list of issues for trial, set out above, was settled. That those remained the relevant issues was confirmed at the commencement of the final hearing on 4 September 2006. The list included: (1) Is D in such a physical or mental condition as not to be capable of properly considering the question of whether she should give consent? (2) Is there serious cause for concern for the welfare of E such that it is in the best interests of E to override the wishes of D? (3) If yes to (1) and/or (2), is it in the best interests of E to make a consent dispense order? Accordingly, then and ever since, all parties have proceeded on the basis that whether a consent dispense order should now be made was in issue. 51 On the first day of the hearing, I raised the matter with counsel, as follows: We have been proceeding to this point on the basis that whether a consent dispense order should be made is in issue. On reviewing the file closely, it seems to me that the Court of Appeal set aside only the adoption order and did not set aside the consent dispense orders. I notice that an order was made by consent setting aside an order of Palmer J made on 15th December 2004, but I suspect that was the order appointing a tutor. The order is not explicit as to what it is setting aside, but I think it was the order appointing a tutor.

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(1) A consent dispense order in relation to the adoption of a child made before an application for an adoption order has been made may be revoked by the Court at any time before the making of the adoption order. (2) The consent dispense order may be revoked on the Court's own initiative or on the application of: (a) the Director-General or of the person whose consent was dispensed with, or (b) if the order was made on the application of a principal officer - the principal officer. 54 Section 72(3) provides as follows: (3) The Court must not revoke any consent dispense order on application of a person unless not less than 14 days' notice of the application has been given: (a) in the case of an application for revocation made by a person other than the Director-General - to the Director-General, and (b) in the case of an application for revocation made by a person other than the principal officer who applied for the consent dispense order - to the principal officer, or (c) if an application has been made to the Court for the adoption of the child by the mother, the father or a relative of the child (whether alone or jointly with another person) - to the applicant or applicants. 55 Dispensing with consent is a very serious matter. The provisions of the Act that surround the requirements for valid consent make clear that this is so. The basis on which the Court of Appeal allowed D's appeal - a change of circumstances relating to the birth mother D - was equally applicable to the consent dispense order as it was to the adoption order: it vitiated at least one of the bases for the consent dispense order. That this is so is confirmed by the circumstance that no party now contends that a consent dispense order could be based on s 67(1)(b), reliance now being placed exclusively on s 67(1)(c). 56 Section 71 empowers the court to act of its own motion, in which case notice under s 72(3) is not required. In any event, all parties have proceeded on the basis that whether a consent dispense order should be made is in issue, and accordingly the existing consent dispense order should no longer be regarded as effective. Given the serious nature of dispensing with a natural parent's consent to adoption, and the removal of at least one of the foundations for the consent dispense order previously made, it is inappropriate to proceed to consider the adoption application now on the basis of a consent dispense order made in quite different circumstances two years ago. Indeed, at least one of the purposes of the facility of revocation of a consent dispense order is to enable such a change of circumstances to be addressed. That of course is not to say that a consent dispense order should not now be made; but whether or not such an order is now appropriate should depend on the evidence before me now, and not on the situation that prevailed in December 2004. 57 Accordingly, pursuant to Adoption Act, s 71(1), I will revoke the consent dispense order made on 2 February 2005 in respect of D's consent. The effects on E of being raised apart from her natural family and culture by persons who are patently ethnically different 58 The expert evidence in the case, judicial decisions, and common sense, uniformly accept that, all else being equal, it is preferable for children to be raised by their natural parents in their own community of origin. In every case of adoption, to a greater or lesser extent, separation from the child's natural family is involved. Cases such as the present, which practitioners call trans-racial adoptions, involve not only separation from natural family, but also separation from the child's culture and ethnicity of origin.

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59 Evaluation of the impact on a child of being raised in such a context necessarily involves hypothesis and prediction; it cannot be said with certainty what will be the effect on E. Insofar as expert evidence is concerned, care needs to be taken in applying to this case in its particular context deductions drawn from experience in different cases in their own different contexts; in the field of human affairs, even identical conditions do not always produce identical results. The same applies to judicial decisions; no other case precisely replicates the circumstances of this case, and even if one did, it would not follow that the same outcome would be the best for this case. But while, on the one hand, prediction of the future based on expert opinion in this field is fraught with difficulty, on the other, it is probably the best one can do, and is decidedly preferable to speculation. 60 Quite apart from the additional considerations that arise in a case of trans-racial adoption, judicial authority, expert opinion and common sense dictate that the fact of "natural" parenthood is an important consideration. This is because, in the ordinary case, natural parents can be expected to bring a special commitment to, and have a special relationship with, their natural child, and it is the ordinary and natural way of life that children are raised by their natural parents. The authorities were reviewed in the House of Lords in In Re G [2006] UKHL 43, by Baroness Hale, with whom the other Law Lords agreed, although Lord Nicholls added an emphasis of his own (at [2]). Her Ladyship adopted (at [31]) what Lindenmayer J said in the Family Court of Australia in Hodak, Newman & Hodak (1993) FLC ¶92-421 (His Honour's statement had subsequently been twice approved by the Full Family Court: Rice & Miller (1993) FLC ¶92-415; Re Evelyn [1998] FamCA 55]), and which states the law in this country (the emphasis is Baroness Hale's): I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process … Each case should be determined upon an examination of its own merits and of the individuals there involved. 61 Baroness Hale explained (at [33]-[35]) that nowadays one could become a "natural" (as distinct from "legal") parent of a child in at least three ways: genetic parenthood, gestational parenthood, and psychological parenthood. While the natural mother would often combine all three, that is not always so; and it is not so in this case, because D is a genetic and gestational parent, but Mr and Mrs F are E's psychological parents. 62 Relevant expert evidence was given by Professor Ilan Katz for the Director-General, Ms Beverly Prevatt Goldstein, Ms Julianna Ampofowaa Nkrumah, Associate Professor Green and Sarah Armstrong for D, and touched on by Dr Robinson as court expert, and by Ms Julie Selwyn who was qualified on other issues by the Director-General. 63 Professor Ilan Katz is Acting Director of the Social Policy Research Centre, at the University of New South Wales. He has a PhD from Brunel University, conferred in 1994, for a thesis, The Development of Racial Identity in Children of Mixed Parentage. He has studied, taught and published in the fields of complex family and community interventions, race culture and ethnicity, child protection and parenting in poor environments, and adoption. 64 Professor Katz said that after four decades of debate regarding the impact of trans-racial adoption on children, during which the prevailing view had undergone a number of distinct shifts, there was now a degree of consensus: whereas, during the 1960s, trans-racial adoption was actively promoted as a progressive policy that would give children from ethnic minorities a second chance, and whereas it was challenged in the 1980s by black professionals who viewed the practice not as progressive but as a perpetuation of colonialism and a cause of psychological trauma because of identity confusion and racism which white families did not have the capacity to address, in the 1990s these views were replaced by a consensus expressed in Adoption: Achieving the Right Balance (Department of Health (UK), 1998), the essence of which is that while the most advantageous placement for children who cannot live with their families is within their own community, and the child's ethnic and racial background is an important factor to be taken into account in the adoption process, a child should not be denied loving adoptive parents solely on the grounds that the child and adopters do not share the same racial or cultural background.

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65 Professor Katz noted that most research into trans-racial adoption was conducted during the 1970s and the 1980s, and that the practice of adoption had since changed, with a decisive move towards "open" adoptions, maintaining contact between birth parents and relatives and adopted children, and pointed out that there were no longitudinal follow-up studies of trans-racially adopted children in open adoptions. He reported that the research since the 1970s on trans-racial adoption indicated, first, that there was no evidence that trans-racially adopted children have higher levels of behavioural or emotional difficulties than equivalent children in same race placements, but secondly, that such children did tend to be alienated from their birth culture and community and to identify with the culture of their adoptive parents. A definitive analysis of the research commissioned by the UK Department of Health on adoption (Parker, 1999) summarised the risk factors associated with poor outcomes for adopted children, and trans-racial placement was not found to be one of them. Interestingly, however, Professor Katz added that in the case of indigenous children, there was a tendency for much poorer outcomes in adoptive placements; it is not apparent to me why there would be a difference in this respect between indigenous and other trans-racially adopted children. 66 According to Professor Katz, the most recent and comprehensive review (Rushton & Minnis, 1997; 2000), while identifying methodological flaws and a diversity of approaches in the empirical literature, found a consistent pattern emerging that the vast majority of children in trans-racial placements had done well in their adoptive placements, in the sense that the placement remained stable, their relationships with their adoptive families were strong, and their psychological and social adjustment was good. Outcomes for trans-racially adopted children were found to be similar to those for same-race adoptions. However, despite those positive findings, as in same-race placements, there were a minority of trans-racially adopted children whose adoptions were not successful; in about half of those cases the failure could be traced, at least in part, to issues relating to racial adjustment. Professor Katz continued: In terms of racial identity there were mixed findings from the research. The research confirms that trans-racially adopted children are removed from their own culture and community, and have difficulty identifying or mixing with them. Even when adoptive parents took active steps to bring their culture of origin into the home and/or to ensure the children had contact with their community of origin, this is not a substitute for growing up in that community. However, the research does not confirm the hypothesis that trans-racially adopted children would inevitably be confused or torn about their identity, and this will have adverse psychological effects on the child. In some studies a high proportion of children had mixed or negative views about their racial or ethnic group, but this is not a general finding (Triseliotis, 1991). 67 Professor Katz explained that there was now a fair degree of consensus as to strategies that adoptive parents could use to facilitate a child's positive identity and self-concept in the context of trans-racial adoption, namely to live in an area where there were people from the child's background and/or from other minority groups, to engage positively with the child's family in the community, to promote positively the child's heritage, to make efforts to mix with people of different races and religions, openly to discuss the child's background, and to acknowledge and address racism. He continued: It is important here to differentiate between culture on the one hand and race . Both need to be addressed by the adoptive parent, but they raise different issues. Culture refers to the practices and beliefs of the child's community of origin, and the task for adopters is to ensure that children have access to that culture and do not see it as strange or alien. Adoptive parents are not in a position to bring the child up in their own culture, can never substitute for that experience, but they can enhance the child's knowledge and identification of his or her community of origin. Race in this context refers to the child's physical characteristics - skin colour, hair type etc. The issue here is that, growing up in a white society with a high level of racism, the child is very likely to encounter various forms of racism from bullying or teasing in school to perhaps discrimination in the work place. The job of parents is to help the child develop beliefs and strategies which help her to mitigate the effects of racism and address these. In particular the child needs to be encouraged to have a sense of pride in her own community and not to believe that they are inferior, and that it is the racists that are at fault. Although this task seems straightforward it can be quite complex. The child may unconsciously internalise racist beliefs, for example blaming her racial origins for failure at school or rejection by friends, and it can be difficult for parents who have not experienced racism to help her with these feelings. It is therefore important that the parents have access to advice and support in this respect. 68 Professor Katz observed that there are considerable limitations on much of the research in the area, partly because research findings do not readily translate into judgments about individual children, and partly because much of the research comprises case studies, qualitative interviews and practice guidance and opinion based on "professional wisdom", which is beneficial for practitioners in that it explores issues in depth, but is not quantitative. He mentions Armstrong & Slaytor's work, referred to below, as an outstanding example of this genre, illustrating "what sort of outcomes can be expected for adoptees, but not how likely it is that any particular outcome will result from a particular set of circumstances. Nevertheless it is interesting to note that the vast majority of these 27 adoptees were doing rather well, despite some intensely painful experiences, and that those who had major difficulties such as mental illness tended to be young people who had suffered abuse in the adoptive household". However, in cross-examination on the Armstrong & Slaytor work, he said: Q. Well, it's the case, isn't it, that there was difficulty in more than, the majority of those adoptees had difficulty with their racial and ethnic identity arising from their placement with essentially white, middle-class families in middle-class suburbs? A. They had had issues, yes. I mean I think it is undeniable that this is an issue in trans-racial adoption. I think it would be crazy to say that you can have an adoption where the racial origin of the child is never going to be an issue. That would be silly. The question is whether it be an issue to the extent that it is going to cause the child long term psychological damage, that's the real question.

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69 Professor Katz identified a number of factors as pointing to a positive outcome should E remain with Mr and Mrs F, namely that she was placed with them early, that she has formed a positive bond with them, that she will have contact with her natural mother and extended family, and that Mr and Mrs F have made efforts to keep in touch with others in a similar situation. Risk factors include that her contact and identification with her culture of origin will be diminished, and conflict between Mr and Mrs F and D may be detrimental. And while he remarked that there were some pertinent factors unknown to him - the main being the current nature of the bond between E and Mr and Mrs F, and the second being their attitude to E's culture and race and the efforts they have made or intend to make to maintain those links - I think both of those should also be seen as relatively positive. 70 Professor Katz concluded that, should E remain with Mr and Mrs F, the protective factors far outweighed the risks, but there were inevitably a number of risk factors and unknowns; that the period of greatest risk for identity confusion was the teenage years, and that it was in E's interests to maintain contact with her birth mother: The period of greatest risk for identity confusion is the teenage years, and so it is currently only possible to speculate to what extent this will be problematic for E. Whatever decision the Court makes in this case, E is likely to face a range of challenges. She is likely to need very sensitive and responsive parenting to help address those challenges. She and her carers, whoever they are, will need to be aware of these and be willing to seek advice and support where necessary. 71 Ms Julie Selwyn is the Director of the Hadley Centre for Adoption and Foster Care Studies within the School for Policy Studies at the University of Bristol. She has been a researcher, author, lecturer, advisor and practitioner in that field for over 25 years. Her particular expertise is in the area of adoption and foster care. She was called by the Director-General to address the effect on E of separation from Mr and Mrs F, and the comparative merits of adoption and foster case; her evidence on those topics will be considered later. She was not asked to address the issue of trans-racial placements in her report or in chief, but in cross-examination conceded that it was a "highly contested area", and that there was a school of thought that children should be placed with people of the same ethnicity or race if not able to stay with their family of origin, in order to retain a connection with their ethnicity and race. She thought that with the child having contact with the birth mother there would be an ability throughout the child's childhood and teenage years - when issues of identity usually become more important - to ask questions, and that would have an important bearing on the outcome. She accepted that it would be very helpful for E to have a good relationship with her birth mother, which would make contact and other issues about explaining culture and discovering heritage easier.

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72 Ms Beverley Prevatt Goldstein has studied, taught and published on the topic of race and ethnicity in childcare and placement, including in particular adoption and fostering. She is one of the authors of Race and Ethnicity: A consideration of issues for black, minority ethnic and white children in family placement, a practice guide for British agencies for adoption and fostering. Its basal premises include that placements should meet the individual needs of each child in respect of health, education, identity, family and social relationships, social presentation, emotional and behavioural development and self-care skills; and that the (UK) legislative requirement to consider racial origin, culture, religion and language applies to every child in every placement. In chapter 6, entitled "Identity and Self Esteem", the authors wrote: Identity and self-esteem are not mentioned in UK legislation but have underpinned the concern with the "racial origin, culture, language and religion". They are, however, an explicit part of the assessment framework for all children as demonstrated by the LAC materials (Department of Health, 1995), the Working Together to Safeguard Children document (Department of Health et al, 1999) and the framework for assessing children in need (Department of Health et al, 2000). The Utting Report (1997) states: A positive sense of identity, of being somebody, of belonging to oneself, is an inner strength which provides the strongest personal defence against harm. Helping children achieve that identity … ought to be the explicit objective of any organisation entrusted with the care of children. This sense of identity is derived from membership of family and other groups with similar values with which early life experience is shared. Detachment from family and culture plainly impairs its development; membership of a distinctive or disadvantaged community may compound the difficulties; in the case of black children, their situation is further aggravated by the pervasive effects of racism (p113). 73 In chapter 10, entitled "Placement of black children: specific guidelines", the authors advise that a black family is more likely to provide a black child of the same ethnic background with positive black attachment figures which the child can internalise, with an environment where the black child is normal rather than exceptional, with a range of black role models coping with everyday life, and with a resource for ways of coping with and challenging racism. Additionally, such a family with similar culture, religion, language and class to the child is likely to provide continuity of some aspects of the child's heritage; access to aspects of culture not available in the dominant society that involves ways of being and seen as well as ways of doing; access to some of the symbols which enables the child to fit comfortably if they so wish with their ethnic group; and a secure and informed framework in which to reject or adapt aspects of their heritage. On the topic of placement in a white family, the authors say: There will be gaps in what most white families can offer a black child, because of dissimilarities in "racial" identity, a lack of shared experience of racism, an inability to provide black primary attachment figures as well as some of the other factors noted above. These gaps may be particularly damaging to children who will already have experienced separation, loss and discontinuity (Prevatt Goldstein, 1997). There can also be a qualitative difference between black perspectives being an integral part of the home environment and approach of the principal carer, and being only occasionally made available to the child (Kirton & Woodger, 1999). Delay is an important factor and drift in the care system must be avoided for all children. There should be a clear plan for each child and individual time scales. Social workers, having made intensive attempts to locate a black family, and in consultation with specialist black practitioners, may deem it in the best interests of a particular black child to be placed with a white family. Adoption Now: Messages from Research (Department of Health, 1999) advocates that: …such discretion has to be exercised within a framework of policy about what is normally expected. The question arises as to how far the reasons for failing [to observe these policy injunctions] are analysed and justified. (p116). It is essential that such placements remain exceptional, and that the placement decisions are analysed, justified and authorised by senior management. Kirton & Woodger (1999) and Thoburn et al (1998, p28) indicate that some white families can successfully parent black children. The available research suggests that these white families and their extended families must be able to demonstrate an active understanding of the developing needs of the black child; an understanding of racism; commitment to challenging racism and discrimination; the provisional development of networks which can include those of their own extended family or of their child's birth relatives; and enable the child to have access to cultural frameworks which will provide continuity for the child. Nevertheless, the task must not be underestimated as some white families may, despite their best efforts, have difficulty in sustaining these throughout their child's childhood into adulthood. Kirton & Woodger (1999, pp 74-6) and Thoburn et al (1998, pp 34-41) provide a detailed guidance on the assessment and support needed for all families engaged in parenting black children. Kirton & Woodger (1999) warn that a one-off training program is unlikely to engender any fundamental and lasting change in attitude and the careful assessment by aware and competent workers of foster carers' and adoptive parents' current attitudes, with examples, is needed. 74 Ms Prevatt Goldstein gave the following evidence: Q. As I understand your opinion overall, the most significant I think you described as vital elements that are potentially missing from what is otherwise a satisfactory parenting relationship at the moment are, first of all, the opportunity to know and have a relationship with the birth mother? A. Mmm. Q. Secondly, an opportunity to learn the child's culture from someone who knows and is part of that culture and, thirdly, the ability to build defences or protections from the threat of racism in the future. Is that basically right? A. I think so. I would also add about identity in there somewhere, Q. I will add identity and culture, yes. A. Mmm. Mmm. Q. If the child were to remain with Mr and Mrs F, living with them though not necessarily under an adoption order, but have much more extensive contact with D than she presently has, would that go a considerable way to addressing the issues about knowing and having a relationship with the birth mother and learning her culture and identity? A. I think it would go a considerable way. I think it would not be the same and it would require an openness from Mr and Mrs F, which is a lot to ask. It would require an openness ideally, an openness to D, an openness to her extended family so the child has the opportunity of knowing not just one way of being black or being Dinka or being Sudanese, but a range of ways so that she can develop her own way, which of course would be part of her wider Australian identity and, in a sense, I think if her parents - her adoptive parents are so open to contact, to contact the extended family, to understand the issues of racism, in a sense for me I think this - and perhaps this is what I was talking about earlier about giving up some of the privileges of being white, that kind of openness to the black community, but I do think it is not easy to obtain and it asks a great deal of adoptive parents or parents with parental responsibility. 75 Ms Prevatt Goldstein referred to research findings that children who had been placed trans-racially were much more likely than those in same race placements to have felt different to their adoptive families while growing up, and more likely to be classified as "alienated" or "differentiated", and less likely to be classified as "integrated", in terms of their adoptive experience, and that intensity of identity issues was often more pronounced among those who had been in trans-racial placements, and was less likely to have been resolved by contact. She thought that this suggested that, if placed with Mr and Mrs F, E would not be able to reconnect in the long term with her mother D's culture. She accepted that some children had positive outcomes in trans-racial placements, but thought that the research (particularly Brooks & Barth, 1999, on which Professor Katz relied) overestimated the positive outcomes: first, by interviewing only the adoptive parents but not the children, or if the children were interviewed at all only while they were unable to speak negatively about the adoptive parents; and secondly, by prioritising material and educational benefits while minimising the importance of a sense of self. She observed that a positive outcome appeared more likely if the adoptive parents lived in multi-racial areas where the children became familiar with role models of their own ethnicity. 76 It was her opinion that placing E with parents who were ethnically different compounded the difficulties in adoptive parenting: to leave E in the care of Mr and Mrs F risked "genealogical bewilderment and trauma of separation from birth parents". In particular, E would not have the benefit of the cultural traditions to which she was entitled and which could not be passed down to those outside them; nor would she have the benefit of an extended family or peer group with which she was visibly similar, yet she would continually be identified by others as part of that group; and she was likely to encounter racism, but might feel unsupported by, or unable to share it in depth with, her adoptive parents, who would not have known the same experience. These factors would become increasingly significant in adolescence and adulthood, and may affect E's sense of self, and would restrict the traditions that she would in turn be able to pass on to her own children.

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78 Ms Nkrumah opines that the long-term effect of E being raised apart from her natural family and culture is that she will lose her biological culture and be culturally separated from her mother and extended family. She explains that to be part of an African culture one has to have a reference point back to a specific cultural group. If brought up by Mr and Mrs F, E will have the physical appearance of an African, but will not be able to operate as an African within an African community. She says that if D's family were aware of these proceedings, the family would find it very difficult to accept the role of adoptive parents in raising E as an adopted child, and that lack of acceptance would create barriers between E, the adoptive parents and her family of origin. 79 Ms Sarah Armstrong has fifteen years' experience in out of home placements, and nine years experience in post adoption work as the senior manager for the Post Adoption Resource Centre, a service of the Benevolent Society based in Sydney that provides counselling for people affected by adoption. She is one of the authors of a book, Armstrong & Slaytor, The Colour of Difference: Journeys in Trans-racial Adoption, which relates the experiences of 27 adoptees, then aged between 17 and 54, so as to draw together the experiences of both Australian-born trans-racial adoptees and inter-country adoptees. She summarised the main findings that emerge from that study: · While some adoptees had experienced unkindness or abuse, the majority had been treated with love and real efforts had been made to incorporate them and their culture into the adoptive family; · Most adoptees thought that the adoptive parents were trying to do their best; · Most adoptees had a strong sense of the opportunities that being brought to Australia had given them in terms of education, health services, career prospects and material benefits, but for those who had come from other countries with a non-white appearance their adoptions had been a badge that they had had to wear whether they liked it or not, and their status was so obvious that strangers could see it and felt justified in commenting on it, there being "no place to hide"; · A significant number referred to the circumstance that, based on their place in the family and society, they almost perceived themselves as white, and many trans-racial adoptees reported a negative view of their own colour and culture. The majority felt that they would never truly fit in their birth culture;

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· There was general agreement that one's original culture can only be learnt from someone of that culture, and that adoptive parents cannot teach what they would first have to learn themselves; · The presence of an adopted sibling from the same culture was a positive factor; · Almost all had experienced racism, though to varying degrees. Some learnt to cope, and the experience may have contributed to their resilience and strength as adults; for others, the experiences were traumatic and ultimately damaging to the essence of their self-esteem, and may have been impossible to communicate to the adoptive parents, or a source of shame and self-blame. 80 Armstrong & Slaytor suggest "the fragile sense of self described by adoptees in general is perhaps further compounded by cultural differences". From the circumstances that those adoptees who had experienced very little or no racism in Australia had generally grown up in multicultural areas where their school playground was full of children from a variety of cultural backgrounds, and that the adoptees expressed the hope that in cases in trans-racial adoption the adoptive families would see the need to base themselves in areas where their children would have opportunities to meet and get to know people of their own race, the authors posit that residence in such an area and contact with people of the adoptee's own race are an important factor for mitigating identity issues. 81 Associate Professor Green, of the University of New South Wales, is an indigenous Australian from the Wiradjuri people of western New South Wales and holds a Bachelor of Social Work with Honours from the University of Sydney. Her expertise is in the counselling and support of Aboriginal and Torres Strait Islander people. A significant proportion of her clients have been removed as children from their families and culture. She has also worked with Aboriginal women whose children have been removed, in some cases through apparently consensual adoptions. She reports that most of those who were removed as children have experienced more than usual difficulties emotionally and in developing positive relationships, and that amongst them there is a high incidence of confusion regarding identity, and frequent claims of feeling they belong neither to their natural nor to their adoptive parents. They often report little self-worth, and there is a high incidence of self-harming behaviour. She says: It is essential for people to have a full and cohesive sense of self, that they are able to develop their cultural and ethnic identity as they develop their individual identity as they grow and develop from children into adults. If a person is denied access to their culture and are not able to develop that cultural identity through the process of socialisation which occurs within families and communities, the person will experience greater difficulties as an adult in forming a positive self identity and esteem. It is well documented within the Aboriginal community that growing up outside of your cultural and ethnic community and/or with the family who are culturally and ethnically different has detrimental effects upon the social and emotional growth of an individual and is highly likely to result in personality and social difficulties for the individual. The clients I work with (or are currently working with) within the university settings who were removed as children are trying to build new lives. However, this is extremely difficult and the majority suffer from regular setbacks due to the ongoing stress, sense of loss and difficulties with developing relationships. Of all the students and staff that I work with, the people who were removed from their Aboriginal families and cultures are the people who require the most intensive interventions and support of any group. 82 Associate Professor Green suggests that it is not unreasonable to draw conclusions for other cultural and ethnic groups from the experience with Aboriginal children. I agree; there seems no basis for supposing that children of other ethnic groups would be radically different in their response to separation from their family, culture and ethnicity. 83 The court expert, Dr Robinson, accepted that there were many advantages in being raised by a biological parent situated in a similar ethnic community containing extended family members, but said that unresolved identity issues could occur in young adults raised in such an environment, as well as those removed from it. She did not believe that D was necessarily better equipped than Mr and Mrs F to help E cope with racism. 84 In my view, the expert evidence supports the following propositions. First, all else being equal, it is preferable that a child be raised in the context of her natural family, ethnicity and culture. These all contribute to the development of a robust self-concept, which is important to psychological development and the ability to form relationships. Secondly, adoptees generally have a more fragile sense of self, and are more prone to identify confusion, because of the separation from their birth family. The period of greatest risk for this is adolescence. To some extent, this can be mitigated by "open adoption", in which a relationship with the birth mother is maintained. Thirdly, the risk of a diminished self-concept and of identity confusion is exacerbated in cases of trans-racial adoption, because the child is deprived not only of the birth mother, but also of her ethnic and cultural context of origin. Cultural traditions cannot be handed down by those outside them. Trans-racial adoptees are less likely to be able to develop robust mechanisms for dealing with the racism that they might well encounter. Fourthly, these consequences can be mitigated to some extent, though not avoided, by the adoptive family providing exposure to and contact with the child's ethnic and cultural origins, in particular through living in a setting in which there are present black families and role models.

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86 From the outset, it was envisaged that the adoption of E would be an "open" one, in which E would have ongoing contact with D - the proposed adoption plan envisaged face-to-face contact at six-monthly intervals, and telephone contact and correspondence exchanges biannually. On 22 March 2004, the first contact between D and E since the placement with Mr and Mrs F took place, under supervision of Mr and Mrs F and Jenny Klein of DoCS. D and Mrs F hugged. The Fs took E's baby record book and photos to show D. 87 The next contact was on 13 October 2004. Mr and Mrs F, who had learnt in August 2004 that D had changed her mind about the adoption, understandably found this meeting very difficult. 88 On 14 January 2005, DoCS informed D's solicitor that the next planned contact could not take place, as Mr and Mrs F would be travelling overseas. D's solicitor sought details of the trip by letter dated 17 January 2005. On 23 February, the Crown Solicitor requested from D's solicitor an assurance from her treating psychiatrist that contact with E was appropriate. On 4 April, the Crown Solicitor informed D's solicitor that Mr and Mrs F had provided a letter on E's progress and photographs of E, and that these would be forwarded to D once the requested assurance from the psychiatrist was received; D's solicitor responded, questioning why they should be withheld. 89 On 20 May 2005, D's solicitor forwarded to the Department a copy of a report of Dr Anthony Harris, psychiatrist, in whose care she had been since about December 2004. After several requests for contact in June 2005, D was by letter dated 1 July 2005 provided with a letter, photo and drawings from Mr and Mrs F, but informed that Mr and Mrs F did not consent to face-to-face contact as the pending appeal was creating increased stress and anxiety. On 15 August 2005, D's solicitor wrote that she would have no other option but to relist the matter, as contact was not occurring. Mr and Mrs F's solicitor responded on 19 August 2005, that they were not then satisfied that face-to-face contact would be in E's best interests, and requesting a report from Dr Newman, D's expert psychiatrist, as a pre-condition to considering it, but subject to its receipt tentatively proposing contact on 9 or 12 September. E had contact with D on 12 September 2005 at DoCS' offices, for an hour and 20 minutes, in the presence of Mr and Mrs F, supervised by Ms Amanda Whitbread and Ms Pancia of DoCS, and Sr Hixon as support person for D. Although Ms Whitbread reports that towards the end of the session E was slightly unsettled and became more agitated when she was not getting things her way, neither of the independent reports of that occasion - by Ms Whitbread and Sr Hixon - suggests that E was at all distressed. 90 On 26 September 2005, the Crown Solicitor wrote to D's solicitor, encouraging an exchange of information to assist E to know her birthmother and her family and cultural origins. D's solicitor responded on 24 October, maintaining that there was no substitute for E learning these things from D, and seeking further contact. This request was repeated on 15 November. On 25 November, D's solicitor wrote to the Crown Solicitor requesting photographs of E and details of the website which Mr and Mrs F had foreshadowed establishing, and seeking further contact. The Crown Solicitor replied on 1 December that Mr and Mrs F did not feel able to have further contact until the appeal was determined. 91 When, on 23 December, DoCS applied to the court on an urgent basis for orders allocating parental responsibility to Mr and Mrs F, D sought further contact, but it was not agreed, the child representative asserting that contact on the last occasion had been stressful for E. The Department forwarded to D's solicitor a packet of photographs of E. On 23 January 2006, D's solicitor asked the separate representative to explain the basis on which it had been asserted that E was distressed on the last contact occasion; no response was forthcoming. On 16 February 2006, D filed a motion seeking further contact, including telephone contact; the application was listed for hearing on 20 March 2006. 92 Contact took place between E and D on 10 March 2006 at DoCS' offices, for about one hour and 50 minutes, in the presence of Mr and Mrs F, Ms Whitbread and Ms Waterman from DoCS, and Sr Aileen Crowe as support person for D. Although, not unexpectedly, they present slightly different perspectives and sensitivities, neither of the independent accounts - by Ms Whitbread and Sr Crowe - indicate any significant problem with this visit. 93 On 3 April 2006 Barrett J made orders for further contact between D and E, in accordance with which contact took place on 28 April 2006 at DoCS' offices, in the presence of Mr and Mrs F, Ms Whitbread, Ms Waterman and Sr Hixon. Ms Whitbread says that D was agitated throughout. Sr Hixon describes the visit as a tense one. Mrs F thought D was openly angry towards her. D felt that Mrs F demeaned her role. Once again, the various accounts present slightly different perspectives and sensitivities; in my view each of Mrs F and D was determined to make a point that she was E's mother, and not unnaturally that aggravated the other; both contributed to the difficulties on this occasion. 94 Telephone contact between D and E took place on 29 May, and D forwarded a letter to Mr and Mrs F on 26 June 2006. 95 Apart from contact with D, Mr and Mrs F have taken other steps to promote E's understanding of her origins, although until recently they eschewed contact with the Sudanese community because of the fears that had been expressed for the safety of D and E. During 2004, Mrs F made enquiries about an appropriate school for E, and identified that the head girl of one of the schools under consideration was of African background. In October 2004, Mr and Mrs F became members of the Australian-African Children's Support Association (AACSA). At that time, they were contemplating adopting a second child of African heritage, but these plans are at least on hold pending this litigation. In July or August 2006, Mr and Mrs F enrolled in a course on African languages and culture. The results include that E describes herself as "a strong Dinka girl", has some early appreciation of her geographical origins, and knows that D is her "tummy-mummy".

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98 Dr Robinson reported that Mr F was "rather outraged" at a suggested scenario where the child spent "quite a bit of time" with D, saying words to the effect "We're not in it for shared parenting. We want to be the parents. We are the parents. We have been the parents to date. We are not here for a shared parenting arrangement." Mrs F in particular could not contemplate E having contact with D in her absence, at least until her teenage years, because "I just don't consider it would be in E's best interest". When asked to consider that it might facilitate the development of a relationship with E's birth mother, Mrs F said "I consider the relationship with her birth mother is just - is the need for her cultural identity and I don't think that needs to be without Mr F and I there". When asked whether she saw nothing more than a need for cultural identity in contact with the birth mother, she said "No, I don't, your Honour. I consider that I am E's mother and I think that that will be an ongoing process where she will understand that that's, you know - more clearly understands what a tummy mummy is, but no. She's got the love and security of her family. I don't think a child needs to be confused at a young age". In the context of that evidence and other references to her intent to be E's adoptive mother, she was asked: "And is it fair to say that in that context you see the birth mother's role as a very minor one?", to which she answered "Yes". Mrs F accepted that as there had been no valid consent to adoption the whole basis of the relationship was now rather different to that which all parties initially had assumed, which meant that everyone's expectations might have to be modified in E's interests, but she maintained that she did not see the benefit to E in increased contact with D. 99 Mrs F in particular has a minimalist view of the role of D in E's life, which might have been appropriate in the original context of D apparently consenting to those arrangements and there being fears for hers and E's safety, but which is no longer so. I formed the impression that Mrs F had considerable difficulty with, and felt threatened in her maternal role by, the concept of increased contact; and Mr F too was outraged by the thought that anyone other than he and his wife might have a parental role. I was and am troubled by this aspect of their evidence, because it was given in the context that the significant potential benefits of a strong relationship with D had been pointed out to Mr and Mrs F (in particular, by me at the preliminary hearing), and I believe it illustrates that the objection is based largely in the needs of Mr and Mrs F for security in their parental position, rather than in the interests of E. Ms Prevatt Goldstein commented that indications that Mr and Mrs F were threatened by regular, frequent contact would suggest that they were unable to accept D's role and continuing contact, or facilitate bridging the cultural gap, with significant consequences for E's sense of self. 100 Nonetheless, the indications are that contact to date has produced an incipient positive relationship between E and D. This is unlikely to have occurred without the support of Mr and Mrs F, even if they have found it difficult. In the context of the pendency of the proceedings, I do not consider that such resistance as there has been to further contact is indicative of persistent opposition on the part of Mr and Mrs F to the idea of increasing contact over time, of which both indicated acceptance. Indeed, they have always adhered to the view that contact might increase over time, largely according to E's wishes. Given their original disposition to an "open adoption", and their facilitation of contact when it has taken place, I accept that Mr and Mrs F are committed to maintaining contract between E and D, even if they find it somewhat threatening in the context of these proceedings. Although in the absence of an order, if they were left the arbiters of contact, E would not have physical contact with D more frequently than a couple of times a year for two hours or so, at least for some years, I have not the slightest reason to suspect that Mr and Mrs F will not fully comply with any contact order that the Court might make, and do their best to make it work, although at first it may be difficult for them. I expect that they will come to appreciate that it is in E's interests for more contact to occur. 101 Conclusion. If not brought up in, or at the very least with a very strong connection with, her ethnicity and culture of origin, E is at risk of being deprived of the cultural traditions to which she is entitled but which cannot be passed down except by those in them, of the extended family and peer group with which she is visibly similar, and as a result, of having a diminished sense of identity and self-esteem, and a reduced ability to develop the more resilient defences against racism that those who have a shared experience of it can foster. To some extent, the risk can be mitigated, though not removed, by contact with D and her family and community and culture; in my judgment Mr and Mrs F will be sufficiently supportive of such contact that it can be a significant mitigator of the risk. The effects on E of being removed from the primary care of Mr and Mrs F 102 Mrs F took maternity leave from October 2003. In December 2005, having completed a period of leave without pay, Mrs F left her job to be a fulltime parent. It is not in dispute that E is securely attached to and bonded with Mr and Mrs F, who are the only parental figures she has ever known, and in their care, E has developed marked developmental competencies - physically, cognitively and emotionally. They have a substantial circle of friends and relatives with whom E has had contact. To E, Mr and Mrs F are her parents; Mr F's parents are her grandparents; Mrs F's sister and niece are her aunt and cousin, and E has met a female child, Alex who has become her best friend. Placing E with D now would obviously disrupt her existing attachments. The question is whether that disruption is likely to be damaging for E.

[92]

104 The terms "attachment" and "bond" are clinical terms, used by practitioners in the field of children's care to describe the emotional ties, essential to a child's psychological well-being, that develop between a child and the caring adults who nurture that child. Secure attachment in infancy is a prerequisite for normal social development, and later positive experiences only partially offset the effects of early social deprivation in this respect, as D's expert Dr Newman has explained in an article [Newman, Trauma in Infancy, the Psychobiology of Attachment]: The infant will be irrevocably affected by earlier experiences. Many appear to have been blinded by theories of infantile amnesia unwilling to consider the plight of infants trapped in chronically traumatising environments of pathogenic parenting and sometimes violence. I would like to argue today that infancy research, developmental psychopathology and Attachment Theory as overlapping approaches can offer a useful understanding of the response of infants to disturbed parenting and its effects on both neurobiological and psychosocial development ... Harlow demonstrated that secure attachment in infancy is a prerequisite for normal social development. Later experiences only partially offset the effects of early social deprivation. The Protest/Despair response to separation is seen in all primates and mammalian infants emit a separation cry when left by the carer. As in humans, the separated infant seeks proximity and comfort in the face of external danger even if the source of danger is the attachment figure itself ... At least in animal species, attachment security and poor parenting with resultant attachment insecurity appears to have long aterm neurobiological consequences. In the human infant, the primary caretaker also acts as an external psychobiological regulator of brain development. Shore argues that this operates via affect - that the caretaker regulates the infant's affective experience. In misattuned relationships, the infant experiences a predominance of negative affect and this has a direct impact on the structure of cortical and sub-cortical limbic areas. What we call insecure attachment is based on alterations in these corticolimbic circuits.

[95]

107 According to Ms Selwyn, it is widely accepted that the quality of children's early experiences shapes their development in significant ways, and that young children do badly when attachment bonds are disrupted: though they can be moved when this is inevitable, it is very risky, and it is difficult to justify moving a child from a secure good home on the grounds of future possible benefit. "The most important determinant of a secured attachment relationship is the sustained presence of responsive attachment figures". Ms Selwyn described the disruption of attachment bonds as "very risky". She refers to research (Rutter, 1989) indicating that while very young children are protected from separation experiences because they are yet to develop strong attachments, and older children are protected because they have learnt to maintain relationships over time and space, "toddlers are most at risk because attachments first become established at that age and because they lack the cognitive skills required to maintain relationships during absence". Disruption of attachment at that stage will cause extreme stress at the loss of the previous family, and a new carer would have to spend considerable time and be able to offer sensitive care attuned to the needs of the child. "There would need to be an intensively nurturing environment to restore the child's faith in their own competence, love, ability and trust. A child this age is likely to blame themselves for the loss of their loved ones". The immediate stress on the child is likely to be seen in reverting to more infantile behaviour, and there is a risk of the child having difficulty forming and maintaining close personal relationships that may affect the transition to school. 108 Ms Selwyn said that separation of E from Mr and Mrs F would be a highly traumatic experience for E, and would place her in the high risk category for developing a depressive disorder in the future: Even if the child is able to attach to D, she will experience bereavement. She will lose her primary attachment figures (adoptive mother and father), friends, neighbourhood - everything she knows. There is a large literature on the effects of childhood bereavement. Children who lose a parent before the age of ten have approximately double the risk of developing a depressive order in later childhood or adult life compared with children who remain with their primary carers. The risk for children under four years of age is approximately 4-5 times higher (Black, 2000). Since this child has known no other parents but her adoptive parents she would fall into the high risk category for developing a depressive disorder. There is also a significant literature in the UK and USA that emphasises the importance of placement stability. Indeed placement stability has become a key factor in understanding the poor outcomes for children in care ….

[99]

111 The court expert Dr Robinson (with reference to work by Steinhauer), said that the intensity of an individual child's reaction to separation may be influenced by seven factors, namely: · The age of the child, with emotional distress being maximal between six months and four years of age. E falls within that range; · Whether the previous attachment was a secure one: there is less short-term distress following interruption of a secure attachment. This means that E, having been securely attached to Mrs F, is better positioned for re-attaching to D, and is a positive factor for re-attachment; · The temperament of the child. So far as the evidence goes, E appears to have a temperament which would assist her to re-attach, and has already had some exposure to D, whom she already knows as her "tummy-mummy". But this is highly speculative: as Thoburn et al remark [Permanent Family Placement for Children of Minority Ethnic Origin, London 2000, p 207]: The possible impact of separation from parents or previous carers must be carefully assessed since the evidence suggests that, while children can overcome the stress and sadness of loss and form new attachments, some will be unable to do so. It is rarely possible to be clear as to which will be the resilient children who will get over the temporary harm of separation, and which will carry the emotional scars for the rest of their lives. There were examples of both in all age groups and we could not easily see why, for example, one four-year-old settled in and bonded with the new parents, whereas another four-year-old carried on grieving and failed to fully attach after the move to new parents. Our study gives many clues as to how such decisions can be made and how, if it is right for a child to remain with a white carer to whom he or she is attached, his or her special cultural needs can be met, and pride in belonging to a particular ethnic group encouraged. · Whether there is a history of previous separation experiences. The presence of such a history is a negative factor for re-attachment following separation, apparently because the child becomes conditioned to be reluctant to commit a close relationships. E's only previous experience was at too young an age to be of significance, so the absence of previous separation experience, if not a positive factor for a successful transition now, at least means that a common negative factor is absent; · The duration of the separation. Distress is greater with a longer duration of separation. The proposed separation here is permanent, which will maximise the distress; · The effects of a strange environment. E's new environment will be very different from that to which she is accustomed. Her entire belief system will be challenged. This must maximise the risk. On the other hand, the new environment would be one to which she might be assumed to have some natural affinity, ethnically and culturally; · The nature of the child's situation subsequent to separation, in that the sooner an adequate parent substitute is available, the less the risk of serious long-term sequelae. This factor highlights the significance of the competence of the replacement parents and their ability to tolerate the acute distress of the child precipitated by the separation.

[105]

118 The evidence supports the following propositions. First, secure attachment bonds for young children are a very important factor in their development. Secondly, the disruption of attachment bonds involves considerable risk. It would occasion a high degree of trauma and distress. There is no guarantee that E will be able to reattach to D, though she may well do so. It is a significant risk factor for future psychopathology - in particular, a markedly elevated risk of depressive disorder, and inhibition of the ability to form intimate relationships in the future. Thirdly, such disruptions can be managed successfully, depending on a number of factors. Negative factors in this case are that E is in the most vulnerable age range, the separation will be permanent, and the changes in environment will be radical. Positive factors are that she does not have a history of separations, her secure attachment to the Fs provides a sound base for establishing a secure attachment with a replacement parent, and she already knows D as her "tummy-mummy". The long-term prospects would be heavily dependant on the competence of D as a replacement parent. 119 The trend of judicial decision in similar situations was summarised by Hutley JA in Re an Infant K [1973] 1 NSWLR 311, as follows (at 349-350): In his Honour's judgment he said: "I do not believe that a child of six is of an age that permanent damage will result from a change of homes." This is to reject the psychiatric evidence of Dr. Blow and it is not based upon any direct knowledge of the child concerned. It must be based upon his Honour's knowledge of the world. It is true that in O'Connor v. A. & B. (58) Lord Reid said: "In a case like this (it was a case involving the dispensing with the consent of natural parents) I think that a judge is well able to estimate the probable effect of uprooting a child of tender years and transferring it from adopting parents with whom it is happy to its natural parents of whom it has no recollection. In unusual cases medical evidence may be helpful but I should be sorry to see any general tendency to call medical evidence in these cases."

[109]

If regard is had to the weight of judicial wisdom rather than expert evidence there is little support for his Honour's view. Thus in O'Connor v. A. & B. ([1971] 1 W.L.R. 1227, at p. 1231; [1971] 2 All E.R. 1230, at p. 1233) Lord Guest said: "I refer to the disruptive element which must occur in the life of a child now over three years of age by removing him from the home of the adopters who have had him under their care for close on two and a half years to the home of his parents who are really strangers to him." and Lord Simon of Glaisdale ([1971] 1 W.L.R. 1227, at p. 1238; [1971] 2 All E.R. 1230, at p. 1240) said: "Expert evidence is not required to tell us that the handing over of the child from a family into which he has been integrated to one of total strangers is likely to be far more disruptive and damaging to him now (i.e. 30th June, 1971) than it would have been at the end of 1968 or up to the middle of 1969." This was also emphasised in Re C. (an infant) ([1965] 2 Q.B. 449, at pp. 452- 455), a case in which the medical evidence quoted in the judgment of Pearson L.J. is very similar to that given in this case. The question as to the effect upon the welfare of the child of a change in a settled relationship which the child has developed, if she is to be returned to her parent or parents has often come before the courts in cases concerning custody. Though every case depends on its own facts, the advantages of the child remaining where it had developed stable emotional connections have usually prevailed over the speculative claims of the natural parents or parent that they can replace these connections without harm to the child: see, e.g. In re E. (an infant) ([1967] Ch. 761), a very strong case involving the preference of a paternal aunt over the mother; J. v. C. ([1969] 2 W.L.R. 540; [1969] 1 All E.R. 788); McKee v. McKee ([1951] A.C. 352, at p. 361), a contest between husband and wife; Platz v. Lear & Lear ([1936] 3 W.W.R. 464), a contest between grandparents and father. In re R. (an infant) ([1966] 1 W.L.R. 1527; [1966] 3 All E.R. 58) is perhaps to the contrary. 120 Conclusion. Accordingly, the effects on E of being removed from the primary care of Mr and Mrs F would be a certainty of a high degree of trauma and distress in the short term, a high risk for developing a depressive disorder in the future, and potential inhibition of her ability to form intimate relationships in the future, notwithstanding a reasonable prospect - but one which could not be guaranteed - that with "good enough" parenting from D, she could reattach to D. This focuses attention on D's competence as a parent. D's capacity to care for, understand and cope with E, especially with her response to separation from Mr and Mrs F. 121 As has been observed, Dr Robinson explained that both the short and long-term consequences for E of removal from the care of Mr and Mrs F into that of D would be significantly influenced by D's capacity to help her mourn, to parent her in all domains, and her "scaffolding for parenting". Professor Katz, conceding that all else being equal it is better for children to remain with their natural parents in their own community of origin, identified the issue as "not whether D would be a better parent for E than Mr and Mrs F, but whether she can provide adequate parenting for E over the long term", which, he said, was a matter of clinical judgment to be addressed by Dr Robinson. Ms Selwyn went somewhat further, suggesting that, in order to justify the removal of E from Mr and Mrs F and the associated distress for E - a move from a certain stable future to an uncertain one - it was insufficient that D might be able to provide "good enough" parenting; to justify such a course, "it would have to be extremely good enough". Particularly relevant in this case are D's knowledge and experience to be a parent, her relationship with her extended family and the availability of support or vulnerability to danger from them, and her mental health and stability.

[110]

122 D's parenting skills, knowledge and experience. While it is true that D's parenting capacity is largely untried and unproved, it should not be overlooked that the parenting capacity of every first time parent is untried and unproved, yet the overwhelming majority of them make "good enough" parents. 123 Jennifer Brown, a social worker, observed D with a child about E's age over a period of about two hours in a McDonald's restaurant. D selected the child - who was a child of D's extended family - and the child's mother, apparently a relative of D, was present throughout. Ms Brown's view was that D interacted appropriately with this child. Unfortunately, I am unable to derive any assistance from Ms Brown's observation; it was too limited in time, and too artificial in context, to found any sound conclusion as to whether D has the requisite parenting capacity to cope with E upon removal from Mr and Mrs F. 124 More significantly, from the age of 14, in the refugee camp, D cared for children. Dr Robinson suggested that she was "precociously thrust into care-giving", and that this was not necessarily to her best advantage, but this experience must have given D some preparation for the role of caring for a child, which many first-time parents in Australia do not have. Dr Robinson quibbled that while she had done some care-giving, this would not be called parenting - because while she provided some functional care, it did not involve the emotional nurturing aspect of parenting. That may be so, but, nonetheless, I think she must have acquired some skills in providing at least for the lower-level needs of children. 125 However, to cope with E in the context of separation from Mr and Mrs F will require more than the ability to provide for her lower-level needs. Neither in D's presentation at the pre-trial hearing, nor subsequently when she gave evidence and was cross-examined, nor in the evidence of the contact occasions, did I detect a comprehension of the enormity of the changes that would be involved for E, and the potential consequences. In my view, her insight in this respect is somewhat shallow. D has an understandable and enormous need to have her child with her, to care for her, and to be seen to be her parent. She cannot understand why she cannot commence mothering the child and have the child with her at all times. She is subject to family pressure to recover the child, some members of her community alleging that she has sold her child; she wishes to show her community that she has not done so. It is perceived by her, entirely reasonably, to be unfair that, because of her purported consent, now established to be invalid, she has, in effect, lost her child. But while that perception is entirely reasonable, it has little to do with the best interests of the child in the situation that has now evolved.

[121]

135 On 27 May 2003, D told Lynne Tripet that she was too young to have a baby in her culture, and that because she was not married she and the baby would be killed if her family found out. She was afraid that someone from her community would find out that she was pregnant, and afraid of what her brother would do. She refused the use of an interpreter, because her brother was an interpreter with the Department of Housing and she was afraid that word might get back to him through other interpreters. Ms Trippet explained that attempts were made to stall D's visit to her aunt for long enough after the birth to allow her to recover from the surgery so as not to cause further suspicion. The Westmead Hospital notes for 27 May record that if anyone found out about her pregnancy she would be killed, and that she was terrified that someone in her community or family would find out about the pregnancy. D has never given Ms Trippet any indication that anyone in her family or community knew about the baby - apart from Mary, a Sudanese Anglicare worker. 136 In her most recent affidavit, sworn 4 August 2006, D said that on arrival in Australia she lived about five minutes away from her brother's flat, and mixed mainly with her brother and cousins who lived with him. She says that after seeing the doctor, when she was told that she was pregnant, she had occasion to visit her brother's unit in the evening, and he asked "Can you tell me who is the man who made you pregnant?", to which she responded: "I don't know what you are talking about". He kept pressing her and she denying it, until he locked her in his bedroom, took off his belt, threw her on the bed and started beating her. The beating continued on and off for about an hour: He was hitting me with the belt and slapping me. He was also trying to punch my stomach. I had to bend over to hide my stomach so he could not hit the baby. I tried to get away from him and he pushed me back. I have a scar on my right lower back from where my brother hit me with the belt.

[122]

137 When plans were made for D's admission for confinement, it was planned (as eventuated) that she would be admitted under a pseudonym, Catherine. The "confidential birth plan" records: She hid the pregnancy from her family and friends because in her culture she would be killed. She is now in the Parramatta Mission Refuge until she has the baby and is planning to place the baby for adoption in order to ensure the safety of herself and the baby … Catherine has been told that her brother has the Sudanese Community looking for her and so is very anxious to remain hidden. There is also a history of abuse by her brother and she does not want to return to live with him. Under no circumstances must any information about her be given out and we need to ensure the security of Catherine and her baby as much as possible. 138 On 3 June 2003, Ms Trippet told Jenny Klein of DoCS that D did not want to use an interpreter, as she was afraid that her family and community would find out she was pregnant. On 1 July 2003, D and Karen Devins, her support person from the refuge, saw Ms Klein. D said that she really wanted to keep the baby, but was afraid if she were to keep it her brother and family would find and kill them. Ms Klein recalls that D was worried about being "casted", or killed or beaten, and the baby being killed; D said that she would not be able to get married, and that no-one would provide for her and the child as an unmarried mother, as it was unacceptable in her culture to have a baby out of wedlock. 139 In a conversation on 3 August 2003 about her options for the baby, D told Ms Devins that she would be "cast" from the family, as they would not understand that she was not drunk or wild and it would not matter that she was raped, "they would kill the child and cast me". The caseworker notes from the refuge, made by Ms Devins, record on 3 August 2003: "She said she would be cast from the family. He wouldn't understand that she was not drunk or wild. It wouldn't matter that she was raped - family would kill the child and cast her".

[124]

141 On 29 September 2003, D and Karen Devins met with Ms Klein. Ms Klein mentioned that there had recently been a story about a Nigerian woman who was to be stoned for having a baby out of wedlock, to which D replied: "I think that woman is a Muslim, and the Muslims deal with things very differently from my own culture. In my culture and tribe, if a woman leaves her husband and has a baby to another man, the baby will die. If you have a baby out of wedlock, then both baby and mother will be beaten by the parents and outcast". 142 Karen Devins thought that D was very fearful of her brother finding out that she was pregnant: when she was admitted to Westmead Hospital shortly before the birth, she was concerned that someone would see her in the hospital, because Sudanese people frequented the hospital. D said: "Someone might look in and recognise me and tell my family". Ms Devins observed that after the baby was born, when D was leaving the hospital she encountered some Sudanese people who knew her, and she seemed very afraid. D said: "They'll go back and tell someone else and I'm worried about my safety and the baby's safety". As Ms Devins was D's support person, and as there is no reason to suppose that she was otherwise than inclined to help D, her evidence is significant. 143 According to D's former tutor Ms Dulcie, in late 2004 and early 2005 she had a number of conversations with D about her attitude to her family and community members, when D said that she was prepared to leave the family and community and relocate out of Sydney if necessary to protect the child, given the previous assault by her brother. According to Ms Dulcie's recollection, D had not told anyone in the community, and she did not want to tell people about the child until the child was back with her. Ms Dulcie thought this was due to a combination of factors, partly a want for privacy about how she had become pregnant, partly an element of shame as to what had happened, and partly a want to protect herself and the child from scrutiny as well as from any further risk of harm. There is no reason to suppose that Ms Dulcie was other than sympathetic to D, or to doubt her evidence. It is consistent with what D said in an affidavit sworn on 16 November 2004, shortly before the hearing before Palmer J, in which she deposed that if her brother found out about E she did not know what his reaction would be, but that she now knew that she could go to the police and the police would protect her. She said that she had not seen her brother since the assault and only spoke to him occasionally and does not see people from her community: "I do not wish to see my brother. I would happily give up seeing my brother forever if it meant I could have E returned to me".

[125]

144 An assessment in the Western Sydney Health notes (Merrylands Community Health Centre) on 24 December 2004 records "brother is verbally abusive over the phone about past events". Dr Harris, D's treating psychiatrist, reported that at the time he first saw her, in December 2004, she had said that she thought her life and the child's was at risk because it had been born out of wedlock; he explained that this was D's description, in December 2004 or January 2005, of her state of mind some eighteen months earlier rather than her then current state of mind. He described his understanding of the position as involving "some ambiguity" as to whether or not her brother knew of the child much earlier, and as to whether the cause of difficulties between her brother and her was that she was pregnant or had a baby. Dr Harris was generally supportive of D's case. 145 Jennifer Brown, a social worker and case manager at Barnados in adoption and permanent care, was retained on behalf of D to prepare a report for this litigation. She interviewed D and reported that she arrived in Australia and within six weeks found she was pregnant: At this time she was living with her brother who suspected the pregnancy and assaulted her to find out the identity of the father for dowry reasons. D took herself to Blacktown hospital and as she was fearful of returning home she was referred to a refuge. 146 D's oral evidence as to the period of and immediately following her pregnancy was surprisingly vague, about events at the time of E's birth, the pseudonym she adopted to protect her identity, how E's forenames were chosen, and in particular of a letter she wrote to E at the time of the adoption. She said that she could not now remember much from that time: she could not remember telling people in the hospital that it was important to protect her identity, and she claimed no memory of the name that she assumed at that time. Despite having acknowledged in her statement at the preliminary hearing that she had previously been very concerned at the risk and dangers to herself and her child if her community discovered that she had had a child, she could not particularly remember telling Ms Devins that she would be cast from the family or that she and the child would be killed. Despite the graphic and specific description in her affidavit evidence, her evidence as to the fight with her brother was extraordinarily vague. When interviewed by Dr Robinson, D had described her beating by her brother as a "misunderstanding".

[146]

The alternatives to an adoption order and the likely effect on E in both the short and longer term of changes in E's circumstances caused by an adoption 168 The Court is required to consider the alternatives to the making of an adoption order, and the likely affect on the child in both the short and longer term of changes in her circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child [Adoption Act, s 8(2)(k)]. As has been foreshadowed, the alternatives to the making of an adoption order in this case include making an order that has the effect of giving Mr and Mrs F parental responsibility for E. 169 Ms Selwyn was asked to express an opinion on the respective benefits of adoption and foster care. Her view was that where the aim was to provide a family for life, adoption was preferable, and that research showed that adoption was more stable, produced better psychosocial outcomes for children, and was far more likely to provide support for the transition to adulthood. She referred to research showing that when asked, children preferred adoption because it gave them a greater sense of belonging (Triseliotis, 2002), and that the relationship between foster parents and children was influenced by insecurity (Bohman & Sigvardsson, 1990, p105). Her own study (Selwyn, 2006) of the care histories and placements of 130 children all thought suitable for adoption, but not all of whom were placed for adoption, showed that over time, adoptive placements were far more stable than long term foster care placements; and children were far more likely to report that they felt close to and able to confide in adoptive parents than was the case with foster parents. Ms Selwyn explained that the research tended to show that children placed in foster care without the security of an adoption order were left anxious and uncertain about their future, as were their carers, and the impermanency of the situation left those involved wondering what would happen next. The children felt that they belonged to nobody, having a different surname from the adults with whom they resided. This extended to the circumstances of "open adoption": Q. … the studies that you have referred to about the comparative success of adoption and long term foster placements, in those studies have cases in which there has been a birth parent on the scene and keen to be involved featured in those studies to any extent? A. Yes. In my own about a quarter of the children who were placed for adoption, and similarly the foster care group, had contact with birth family members. 170 When asked whether an adoption order would be appropriate in a context where a hypothetical possibility was that the child might live with Mr and Mrs F but have increasing contact with D, and in adolescence decide that she wanted to live permanently with D, she answered that for a child as young as E the benefits of an adoption order - even if there were such a change in adolescence - would be the stability at an earlier age which would position her to make such a decision later. She gave this evidence: Q. Wouldn't making an adoption order put a further mental or notional obstacle in the way of a relationship between E and D by removing D as a legal parent? A. That is a possibility, Your Honour, but it may also make the situation much clearer to the parties. It may remove any ambiguity.

[154]

184 The submission that s 67(1)(c) does not require that the "serious cause for concern" be closely linked to the alternatives available to the court is supported by the judgment of the Court of Appeal in the present case [D v Director-General, Department of Community Services [2005] NSWCA 474, 34 Fam LR 445, [43]]. Hodgson JA, with whom Ipp JA and Hunt AJA agreed, said: [43] As regards s 67(1)(c), in my opinion it is not necessary that the "serious cause for concern" be closely linked to the alternatives available to the court. The other requirement of s 67(1)(c), that it be in the best interests of the child to override the wishes of the parent or guardian, is plainly directed to the alternatives available; but the requirement of "serious cause for concern" is not explicitly linked to the alternatives and in my opinion can be approached more generally. In this case, there had been past violence to the mother from a member of her family, there was evidence of risk to the child from the mother's family, and there was serious cause for concern due to the mother's mental health. In my opinion, these factors were sufficient. 185 This was said in response to a submission, on behalf of D, to the effect that the primary judge had erred in finding that s 67(1)(c) applied, because the "serious cause for concern" referred to must relate to the available alternatives, and the primary judge did not find that there was serious cause for concern operating as between the alternatives of orders falling short of adoption (such as a s 92 care and custody order) and an adoption order. 186 In Application of DoCS, Re C [2004] NSWSC 702, the father did not wish to be involved in the adoption process. Austin J concluded: [11] In light of the evidence of the father's attitude to the child and the adoption process, I consider that there is serious cause for concern for the welfare of the child, should the father continue to be a party to the adoption process. I am also satisfied that in light of the father's attitude it is in the best interests of C to dispense with the need for his consent to the adoption. If it were to be necessary to continue the father's involvement in the adoption process, the quick resolution of the matter in the child's best interests would be impeded. Accordingly it would assist C's adoption to dispense with the need for the father's consent. [12] This is not a case where the court is invited to override the wishes of a parent who opposes the child's adoption. In this case, by dispensing with the father's consent, the court will bring the father into the adoption process in order to deal with his rights in a manner that will make his further participation unnecessary. To the limited and temporary extent that the orders will have this effect, they will override the father's wish to have no involvement in the adoption process. The consent dispense order is therefore authorised by s 67(1)(c). 187 Given the unusual factual circumstances in it, Re C does not provide much guidance in the present situation.

[155]

188 In Re D; Application of A, Palmer J, said that whatever were the mother's motives in refusing her consent (which his Honour thought were concerned primarily with the impact on her feelings of the proposed adoptions, rather than the best interests of the children themselves), the court could not dispense with her consent under s 67(1)(c) and (2) unless satisfied that there was serious concern for the welfare of the two children concerned, and that it was in their best interests to override her wishes. His Honour found that both children had been traumatised by their experience while in the care of their mother, had been diagnosed as suffering from childhood post-traumatic distress disorder, had on occasions displayed anxiety before and during contact with her, but were now thriving in the care of the proposed adoptive parents. The mother agreed that it was in the best interests of the children to remain in the care of the proposed adoptive parents, and the only issue was whether that should be as adoptive parents or as foster parents. His Honour concluded (at [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. 189 These cases tend to show that in recent times a broad view has been taken of the concept of "serious concern". But it has not always been so. In Re an Infant K [1973] 1 NSWLR 311, Moffitt JA, as he then was, in the context of the then Adoption of Children Act 1965, described the step of dispensing with consent as an extreme one, to be taken only for weighty and convincing reasons (at 320-1): It will be seen that under s 32(1)(e) it is provided that the court may dispense with the consent of the parent to enable an adoption order to be made, if "the interests and welfare of the child will be promoted", while s 21(1) provides that no adoption order (i.e. in any case) can be made unless the court is satisfied "that the welfare and interests of the child will be promoted by the adoption". However, the Act elsewhere provides for dispensing with a consent upon proof of conduct by the parent, which has to be of quite an extreme nature where in effect the parent has deprived himself or herself of his or her rights concerning the child, such as under s 32(1)(c), where it is proved the parent is unfit to discharge the obligations of a parent by reason of his having abandoned, deserted, neglected or ill-treated the child. … The presence of the power in s 32(1)(e), then, cannot mean that there is really no point in any case for the court to be concerned about the provisions of or make determinations under … s 32(1)(a)-(d), so that, without regard to the conduct of the parents or how their consent was given, it is a simple matter in all cases just to look to the interests of the child and deal with the case under s 32(1)(e). It is important that the court have a clear appreciation of the significance of an order made under s 32(1)(e), namely, that by it a parental right not found on any basis by conduct or consent to be lost, is to be ended and the parental tie destroyed forever. It must appear that the taking of that extreme step "will" promote the welfare and interests of the child. The courts have always regarded the severance of the natural tie and the making the child of one person the child of another as a most serious step particularly when opposed by a parent or parents. It has been said it is a rare case that the judicial mind will be satisfied to take this step against the consent of a parent; Mace v Murray (1955) 92 CLR 370, at pp 380, 385; O'Connor v A & B [1971] 1 WLR 1227; [1971] 2 All ER 1230; Re Betar & the Child Welfare Act 1939 [1965] NSWR 321. The step is of particular gravity where, as here, the parents sincerely object to the adoption, sincerely seek the return of the child and are able and willing to bring it up as their child. It was said in Mace v Murray (at p 385): It must be conceded at once that in the ordinary case the mother's moral right to insist that her child shall remain her child is too deeply grounded in human feeling to be set aside by reason only of an opinion formed by other people that a change of relationship is likely to turn out for the greater benefit of the child. It is apparent, too, that a court which is invited to make an order of adoption must appreciate that the child is another's and that only the most weighty and convincing reasons can justify the involuntary breaking of a tie at once so delicate and so strong as the tie between parent and child. But these considerations cannot carry such overwhelming weight where the mother, with premeditation and full knowledge of what she is about, has excluded the child from her life from the moment of its birth. In such a case, and especially where others have taken the mother's place both materially and emotionally during the period of her renunciation of him, her proved unfitness to be a mother to the child is clearly relevant to the question whether it is just and reasonable for the court to substitute those others for her in the parental status despite a newfound desire on her part to retrace her steps. 190 His Honour would not make a consent dispense order. However, Hutley JA, with whom Hardie JA agreed, concluded that such an order should be made, overturning Helsham J's refusal to do so. Nonetheless, Hutley JA accepted (at 347A) that the evidence to justify a finding that s 32(1)(e) was made out must be strong, having regard to the drastic result.

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191 In Re B & the Adoption of Children Act 1965 (1979) 5 Fam LR 150, Moffitt P again stressed the gravity of the step of dispensing with consent and the great reluctance with which it would be done: The courts, consistently with, and indeed usually in aid of, the welfare of the child, have emphasized their great reluctance to dispense with the consent of a parent to the intent that his or her child shall be made the child of another. I shall not repeat what I said on this subject in Re an Infant, K [1973] 1 NSWLR 311 at 321, nor cite again the authorities there referred to. As also there pointed out, the terms of s 32, and in particular s 32(1)(e) [which provided that it was a ground for dispensing with consent that an order for the adoption of the child will promote the interests and welfare of the child], do not undermine past judicial views as to dispensing with the consent of a parent ( ibid 320-1). The gravity of the question whether the court should dispense with the consent of a parent, never given or purported to have been given, is such that a heavy onus must rest on those who seek to persuade the court that the consent should be dispensed with. For example, if in such a case, it were sought to dispense with the consent of a mother under s 32(1)(b) on the ground that she was "in such a physical or mental condition as not to be capable of properly considering the question whether (she) should give (her) consent", it is difficult to think (in view of the alternatives to adoption such as custody: Re Betar [1965] NSWLR 321 at 328; A v C-S (No. 1) [1955] VLR 340 at 347-8), that consent would be dispensed with, except possibly in the most exceptional cases touching the urgent needs of the child, unless it were positively established that the incapacity in relation to making the relevant decision and in relation to her capacity to remain a parent of the child was not of a temporary nature. For example, it would be impossible to contemplate that an adoption order, rather than some temporary arrangement for care of the child, should be made because the mother was then suffering from a mental illness such as schizophrenia, whether the mother was in or out of an institution, unless there was evidence of a convincing nature that the mother's incapacity to continue to be the mother of the child in respects materially adverse to the welfare of the child was of a permanent nature. Evidence, as in the present case, where the medical evidence leaves uncertain what the mother's future condition will or is likely to be, would not be sufficient to discharge the onus which rests on an applicant who seeks to have the mother's consent dispensed with. 192 Reynolds JA, with whom Hutley JA agreed, said: Section 32(1)(e) invests the Court with a general power to dispense with a mother's consent. However, where she is available, not mentally or physically unfit nor unfit as a parent or guardian, due and full consideration must be given to the great seriousness of the step involved. 193 Nor is it at all apparent that it was Parliament's intention that "serious concern" be given so broad a reach; the Parliamentary debate rather suggests the contrary. Although the interests of the child are paramount, the Adoption Act does not entirely disregard the parental rights of the birth parents, as is evident from the requirement for their consent. The amendment made in the course of the Parliamentary debate to s 67(1)(c) is an illustration of this, representing a withdrawal from the position under s 32(1)(e) of the former Act - under which it was sufficient to authorise a dispensation with consent that to do so in order that an adoption order might be made would promote the interests and welfare of the child - by superadding the requirement that there be serious cause for concern as to the welfare of the child. In the Bill as introduced, clause 67(1)(c) required only that it be in the best interests of the child to override the wishes of the parent or guardian. After the Bill had passed the Legislative Assembly, an amendment was introduced in the Committee stage in the Legislative Council [Hansard, Legislative Council, 10 October 2000], by the Hon RSL Jones, who proposed the amendment (Amendment No 2) to make it a requirement that consent for adoption can only be dispensed with "when there is serious concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or guardian". He said: In the current proposal, paragraphs (b) and (c) of Clause 67 are too broad and may impact adversely upon parents who suffer from a mental illness or some form of intellectual or other disability, parents who are prisoners and drug-using parents. I have already raised the problems experienced by parents with intellectual disabilities, those with mental illness and people with physical disabilities when dealing with the care system. The problems with these groups of vulnerable people are encapsulated in the following concerns expressed by the NSW Users & Aids Association [NUAA] in its briefing paper to the cross-bench on 29 August: NUAA has found that many drug using parents "over compensate" for their children as they are acutely aware and afraid of their drug use having a negative impact on their children. In fact, many of the drug using parents we see will do things for their children that they would never do for themselves such as making sure they have regular health check-ups, ensuring they eat well and that they have everything they need. Many drug-using parents are also very much aware that they could come to the attention of DoCS due to a prior drug conviction or if they are on the methadone program. These people are extra vigilant about being good parents so they won't have their children taken away … The other fact that goes unrecognised by policy makers is that drug dependence is something for which you can be treated and from which you can recover. Removing someone's children forever and putting them up for adoption does not recognise that a parent can change … Too often under the current DoCS system, those who ask for assistance in the early stages of problems are punished by having their children removed rather than gaining help to change things … Actual or suspected illicit drug use by a parent can sometimes be more obvious to both neighbours and DoCS workers than problems such as child physical or sexual abuse. Although NUAA represents a specific client group - people who use illicit drugs - its concerns are shared, and my amendment has been supported by a wider community base, including People with Disabilities and the New South Wales Intellectual Disability Rights Centre. … 194 The Hon Carmel Tebbutt (Minister for Juvenile Justice, Minister Assisting the Premier on Youth and Minister Assisting the Minister for the Environment), who had the carriage of the Bill in the Council, responded: The Government supports both amendments. Amendment No 2 makes it clear that if a parent's wishes are to be overridden by a court, there must be serious cause for concern for the welfare of the child, notwithstanding the fact that the amendment addresses the requirements of clause 8(2)(i) to protect a child from harm caused by abuse, ill-treatment or violent behaviour. The Government is comfortable with supporting this amendment. … 195 The debate suggests that it was intended that the test be more demanding, not less demanding, than that which had applied under the 1965 Act. It is curious that the recent authorities indicate a trend the other way, but it is perhaps a reflection of the paradigm shift from parental rights to the paramountcy of the best interests of the child. The debate indicates that it was intended to be insufficient to justify a consent dispense order merely that the parent was a drug user, intellectually disabled, or a prisoner, and that some additional element of risk to the child was required. It is also significant that it appears in the context of adoption, so that dispensing with consent is a step preliminary to severing permanently a parental bond, contrary to the wishes of the parent. That is a very grave step; as Winn LJ put it in In re B (an infant) [1971] 2 WLR 129, 138; [1970] 3 All ER 1008, 1015, in a passage cited with approval by Hutley JA in Re K (at 346): "A decision that a mother is permanently to be parted from her infant child is one of the gravest that a judge may ever take". It is a step to be taken only for weighty and convincing reasons. The "serious cause for concern" must in my view be a risk of an order that could justify permanent removal of the child from her natural parent(s). 196 Although the Court of Appeal's decision in this case, which I must follow, establishes that the requirement for "serious cause for concern" does not necessitate comparison of the position if an adoption order be made as against the position if some other order be made, s 67(1)(c) necessarily contemplates the situation if an adoption is otherwise precluded by the absence of consent, so that the requirement for "serious cause for concern" is implicitly addressed to the child's welfare in his or her unadopted status. Accordingly, I accept the submission by Mr Harrison SC (as his Honour then was) on behalf of the Director-General that, in considering the question of serious concern, it is permissible (and indeed obligatory) to take into account the circumstances that would pertain if D had parental responsibility for E. Consistent with Hodgson JA's judgment, I accept that evidence of risk to E from D's mental health, or from violence directed to her or to D by members of D's family, would be relevant considerations on the question of "serious cause for concern".

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207 As to the attitude of the proposed adoptive parents (s 8(2)(g)), Mr and Mrs F are plainly devoted to E and have provided her with excellent care. Dr Robinson and Dr Milch describe their parenting capacity as highly functional. I have expressed reservations as to Mr and Mrs F's willingness and ability to foster a relationship between E and D, and a criticism that might be made of their attitude to the responsibilities of parenthood is that they insufficiently appreciate the importance for E of developing a significant relationship with D, by which Mrs F in particular is somewhat threatened. I do not doubt that, as Dr Robinson accepted in her oral evidence, there is an element of their own interest involved, and that they have a significant need to be parents, and to be secure in that role, especially given their unsuccessful attempts to conceive a child, a history of unsuccessful IVF, and then their great joy at the wonderful arrival of E and their subsequent structuring of their lives around her. But I do not think that they are unable to subordinate their own needs to those of E when appropriate. After all, they originally assumed E's care on the basis of an "open adoption", they have taken significant steps to promote in E an awareness of her cultural origins, and contact to date has produced a positive attitude in E towards D; those matters indicate that though in the context of the litigation they have felt somewhat threatened by contact and the possibility that D will play a greater role in E's life, they do appreciate the importance for E of maintaining a relationship with D and her culture, and they would support it in the future. I think it unrealistic, and unnatural, to pretend that in the present context parental needs will not to some extent intrude, and I am unpersuaded that this counts significantly to their detriment as parents. 208 So far as D is concerned, Dr Robinson suggested that D was driven by her own needs, rather than a child-focussed perspective, in that she had great needs of her own arising from her own childhood experiences, and expectations of her community, that might be met by having her child with her. This opinion is consistent with the impression I gained of D through her cross-examination. Again, I do not doubt that there is a significant element of D's own needs involved. Again, this is natural, and, again, I am unpersuaded that this counts significantly to her detriment as a parent. However, the difference is that she has not demonstrated to nearly the same extent any willingness to subordinate her own needs to the interests of the child. I was troubled by, inter alia, the following part of her evidence: Q. Would you explain to me what you mean when you say depends how much contact I was having with her, would you tell me some more about that? A. Yeah. If I had contact by myself, not DOCS being there or Mr and Mrs F being there, not to tell her that this is come and live with me, no. I have to introduce myself to her slowly by slowly not to give her emotionally, this is what is happening and this is this, you know. But she will still understand someone looking like her and why not living with her.

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Q. Would you be able to explain to her that because you were sick for a while and because she had done so well with the F's and because they loved her the same way that you did that it was best that she stay with them for the time being? A. Yes, your Honour. 209 The last answer was given only in the context of a very leading question from the Bench, after she had been offered ample opportunity to show that she could subordinate her needs to the child's interests, but had failed to do so. 210 E has an excellent parental relationship with each of Mr and Mrs F and is securely attached to them (s 8(2)(h)). They are the only parents she has ever really known. She has an incipient relationship only with D. 211 Mr and Mrs F have a demonstrated and proven capacity to provide for all E's physical and educational needs (s 8(2)(i)); however, their capacity to provide for her cultural and identity needs is less clear. D is better positioned to provide for E's cultural and identity needs, and may have the capacity to provide for E's other needs, but, for no fault of her own, has had no real opportunity to demonstrate it, and remains in a sense untested, and there are grounds for concern: I have already remarked on D's lack of insight into the complexity of E's needs; her apparent inability to subordinate her own needs to those of the child; and there are reasons for concern that she may regress into depression. It is true, as Mr Anderson points out, that Mrs F had herself been the victim of a sexual assault in the past, but she has - with individual and group counselling - been able to move on and, according to Dr Robinson, has adequately addressed the issue, so that there are no lingering concerns that this may adversely impact on her mental health in the future. Because D's PTSD remains untreated, with a significant risk of recurrence of episodes of major depression, the same cannot be said in her case. Thus, although D is more suitable and probably has greater capacity to provide for E's sense of personal and cultural identity, the satisfaction of her physical, educational and emotional needs otherwise is more assured in the care of Mr and Mrs F than in the care of D.

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· First and foremost, the respective balance of the risks of adolescent identity confusion and self esteem issues and less resilient defences against racism if E is raised apart from her natural mother, outside her culture and ethnic group of origin; against those of certain short term trauma, possible failure to re-attach to D, significantly elevated prospects of psychopathology in adolescence and subsequently, and of impairment of her ability to form and maintain intimate relationships, if she is removed from the care of Mr and Mrs F with fracturing of her existing attachment bonds, particularly at this age; · Secondly, the respective merits of the permanence and security afforded by adoption, with permanent severance of E's legal parental relationship with D; and the greater flexibility of parental responsibility without adoption, leaving open the possibility that one day E might return to D's care. 217 As to the balance of risk between raising E apart from her mother and culture against that of disrupting an established secure attachment, the dilemma is not a novel one. Ms Prevatt Goldstein and her co-author, in "Race and Ethnicity", address it in chapter 11, entitled "Some Practice Dilemmas": The child is settled with white foster carers. Surely it will do more harm than good to remove her? Practitioners need to strenuously avoid placing children in short term situations which do not meet their needs, be diligent and speedy in seeking appropriate long term placements, and work with short term carers and children to enable children to move on and make new attachments. Practitioners need to assess whether the quality of the attachment on the part of the carers is based on the reality of the child as a black child and if it can meet the developing needs of that child into adolescence and through to adulthood. Practitioners need to assess the ability of the carers and their extended family to provide the environment identified in section 10 (see sub-section entitled "Placement with a white family"). Practitioners need to recognise that the child's attachment may need to withstand growing feelings of alienation and difference as the child develops into adulthood and meets institutional as well as personal racism. Decisions need to be based on the individual situation. If the decision is that the child should stay, practitioners need to recognise the possible long term consequences for the child and ensure that the carer has the social work support and resources to meet the needs of the child as fully as possible. If the decision is to move the child, practitioners need to locate this in the social work task of removing children from environments that do not meet their basic needs, engage with the feelings of loss of both the child and the carers as well as with their own feelings of contributing to disruption and loss while acknowledging the long term benefits to the child. 218 It has also been encountered in the cases, a thorough and illuminating review of which was undertaken by the Full Court of the Family Court (Fogarty, Kay and O'Ryan JJ) in B & R (1995) 19 Fam LR 594. While that was in the context of Aboriginality, the lessons are equally applicable in a case such as the present. Their Honours review of the Australian cases (at 606-615) shows that while outcomes inevitably depend on the particular facts and circumstances of the individual case, the emotional and psychological benefits of being brought up in the child's culture and ethnic group of origin have generally been judged to outweigh the material benefits offered by the alternative, the exception being where there is a very well established attachment to the non-Aboriginal carer [see: Ex parte West (1861) 1 Legge 1475 (removal and retention by squatter of aboriginal child from parents described as an outrage and return of child directed); Sanders & Sanders (1976) 1 Fam LR 11,433; (1976) FLC ¶90-078 (on appeal, decision placing child of mixed parentage with white father reversed for insufficient weight given to benefits to emotional development of being in Aboriginal mother's care - including experience of discrimination, family and tribal relationships); R & R (1985) FLC ¶91-615 (appeal against placement of child of mixed parentage with Aboriginal mother dismissed, the judge having appropriately had regard to evidence that living in a tribal situation would better equip the child to cope with periodic visits to non-tribal societies than vice versa, and given weight to issues of racial discrimination and potential loss of contact with mother's culture and traditions); Goudge & Goudge (1984) 9 Fam LR 500; (1984) FLC ¶91-534 (appeal against judgment placing child of mixed parentage with European father dismissed by majority on basis that judge did not fail to give appropriate weight to racial and cultural factors, but Evatt CJ dissenting on the basis that while neither culture was to be preferred, and both may be of importance, the implications of an order for the continuing connection of the child with each culture, and the consequences for the child of loss of contact with an Aboriginal parent's traditions and culture, Aboriginal origins, and the extent of discrimination in particular situations, had been given insufficient weight); McL & McL (1989) 15 Fam LR 7; (1991) FLC ¶92-238 (children of mixed parentage placed with Aboriginal mother where they would be raised as tribal Aboriginals because, for reasons associated with their Aboriginality, that enhanced their prospects of growing up as well-adjusted individuals)]. 219 Three of the cases referred to by their Honours warrant closer comment in the present context, because of their considerable similarities. In McMillen v Larcombe [1976] NTJ 1001, Forster J (as he then was) in the Supreme Court of the Northern Territory considered an application for adoption of a child that bears many similarities to the present. At the time of the hearing the child, a boy of mixed aboriginal and white parentage, was aged two years. The proposed adoptive parents were an American couple resident in the Territory but proposing to return to the USA. The child had lived with his aboriginal mother until, at 6 months of age, he was admitted to a home suffering from under-nourishment; he was declared to be a "neglected child" in circumstances that his Honour described as involving a particularly serious denial of justice, and had been in the care of the proposed adoptive parents for about 18 months. Forster J accepted that the proposed adopters were determined so far as they were able to make the child aware and proud of his origins, but that they admitted that he would probably have no contact with his mother or other Aboriginal relatives. His Honour accepted evidence that all adopted children at some stage encounter problems of identity, compounded when the child was of a different ethnic origin from the adoptive parents, which necessitated access to people of the child's ethnic origin; and that as the child grew older in a white society he was very likely to undergo an identity crisis when he realised he was different to the people around him. Concluding that, while the adoptive parents would provide the child with all things he was likely to need and love and security, they could not satisfy his proper wish to make contact with Aboriginal people in general and his own relatives in particular - and being satisfied that the child would be treated as Aboriginal by the people with whom he would live, and that while his living conditions would be considerably inferior to those offered by the proposed adopters, they were perfectly adequate - his Honour did not think that, viewed as a whole, the adopters' proposal was "superior at all" to the mother's proposal, refused to dispense with consent, and returned the child to the mother. However, the significance of severing an attachment of 18 months standing in a two-year old child does not seem to have received attention.

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220 In Torrens v Fleming (1980) FLC ¶90-840, Kearney J in this Court considered an application by an Aboriginal mother for custody of her ten-year-old daughter, who had been living with a white couple since shortly after birth. While acknowledging the mother's case as a "well-recognised claim of a natural mother to the custody of a child", strengthened by the desirability of the child having the opportunity to learn the culture of her race and establishing her identity, his Honour concluded that, the wishes of the child being to remain where she was, the critical feature was that the child was living a happy and well-adjusted life in a stable environment with a family with whom she had a very close bond and with whom she had lived for virtually the whole of her life, and there was psychological evidence that there may be long term harm to the child by forcing her to make a change of such magnitude. This reflects the significance of a well-established attachment bond. 221 And in F v Langshaw (1983) 8 Fam LR 833; affirmed Rushby v Roberts [1983] 1 NSWLR 350, Waddell J, as he then was, considered competing claims by an Aboriginal father for custody and a white couple for adoption. In a decision that was upheld by the Court of Appeal, his Honour made an order for custody in favour of the father, giving some weight to the view that Aboriginal parents would be better placed to inculcate self-esteem in such a child. 222 In B & R, their Honours observed similar trends in Canada, New Zealand and the United Kingdom. Two particular aspects are worthy of note here. In the (relatively early) Canadian case of ANR and SCR v LJW (Racine's case) (1983) 36 RFL (2d) 1, the Supreme Court of Canada - reversing the Court of Appeal and restoring the judgment of the trial judge - downplayed the significance of the trans-racial aspect of the adoption, and observed (at 13) (per Wilson J, who delivered the judgment of the Court): In my view, when the test to be met is the best interests of the child, the significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents the less important the racial element becomes. 223 As their Honours observed in B & R, this was relatively early in the understanding of the difficulties encountered in that country by adopted native children, and it was also relatively early in the evolution of understanding of the consequences of trans-racial adoption. I would not accept that the significance of cultural background and heritage diminishes with the passage of time, since the evidence suggests that it is a crucial aspect of equipping a child to address identity issues in adolescence. But the idea that the significance of bonding may increase with the passage of time remains valid, and reflects the importance of not disrupting secure attachments. 224 In Re P (a minor) (Adoption) (1990) 1 FLR 96, the Court of Appeal of England dismissed an appeal from a trial judge's decision refusing an adoption application in respect of an 18-month old child of part Afro-Caribbean and part white European parentage by the child's white foster mother and her husband, preferring to place the child with a family of the same race and ethnicity. The Court of Appeal said that it was open to the trial judge to conclude that the advantages of bringing up a child of mixed race in a black family outweighed the importance of continuing a status quo for a child who was thriving in a stable home with a white foster mother, with whom she had lived since only a week or so after birth. This involved disruption of a secure attachment, but at a younger and less vulnerable age. See also Re C, Mr & Mrs E, Mrs F v LA (EWHC, FamD, Ryder J, 19 July 2006; (The Guardian, 20 July 2006), in which account was taken of a child's ability to build new attachments, and of the ethnicity of the prospective parents, in preferring a placement where the parents' ethnicity most suited that of the child, who were said to provide "a better cultural match", including matching better with C's "visual identity".

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231 Perhaps more significantly, D's parenting capacity will be critical to the success of any such change. I have already explained that while it is likely that D will ordinarily have adequate, or "good enough", parenting skills, her parenting capacity is compromised by her vulnerabilities: my conclusions about D's mental health, her lack of insight into the extent of E's needs and the potential difficulties, and her resolution not to have a partner, leave doubt as to whether D will always be able to provide adequate care; it may well be that she can, but there is a not insignificant risk that her ability to do so may, at least from time to time, be compromised. Although Ms Prevatt Goldstein thought that there was no compelling reason why D should not have the care of E, on the available evidence there is a significantly greater risk associated with D (as to emotional health, and availability of support in the event of any crisis) than with Mr and Mrs F. Ms Prevatt Goldstein's opinion that D's understanding and competence, and the presence of a supportive extended family, was a very good prognosis for E's attachment and well-being, involved assumptions - both as to her understanding and competence, and as to a supportive extended family - that in my view the evidence does not bear out. 232 Ms Prevatt Goldstein pointed out that, should E remain with Mr and Mrs F, there would be some grieving for her birth parent: in other words, whether E remains with Mr and Mrs F, or is removed from their care and placed with D, she will in either event suffer distress and loss at various points in her life. However, the grief at the loss of her birth mother can, the evidence suggests, be mitigated by the contact that all parties propose should occur. It might be added that E will also have to confront the circumstances of her conception and absence of a birth father; her secure attachment to Mr and Mrs F provides a secure base from which she can explore those difficult issues. The risks of separation from natural mother, culture and ethnicity are and can be mitigated somewhat in the present case by the circumstance that Mr and Mrs F are E's psychological parents, and by contact between E and her natural mother, family and culture.

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233 Although Dr Robinson recommended reinstatement of the "open adoption", in her oral evidence she suggested that if D "had the profile of the Fs, with her added advantage of being Sudanese and so forth, my recommendation would have been different" - notwithstanding that this would involve a change of placement for E and separation from Mr and Mrs F at the age of three, after three years in their care. She explained: Yes, because, even though I am very aware of the risk factors of that, and the potential for long term problems, if she is, one, well parented by her mother, with the added bonus of what she would get from the cultural aspect of it, I would think - I would have been very hard pressed to know where to put the balance. I am very concerned about moving children out from an established family by the time they are three, but I am also very conscious of the potential for difficulties in a child who has been adopted who's in a family where there are sorts of racial differences, I am not saying - I would be hard pressed to know just how to make a recommendation. 234 Contrary to Mr Anderson's submission, this evidence does not support the view that separation from Mr and Mrs F is not per se a cause for concern; what Dr Robinson was there saying was that though such a disruption was always a cause for concern, the countervailing benefits were such as would have made it very difficult to choose between the alternatives, had adequacy of D's parenting capacity been more manifest. Ultimately, I agree with Dr Robinson that in this case the benefits of placing E with D now, which are not insignificant, do not justify the significant associated risks. Focussing on E's interests in the short term, the issue is not difficult. As Ms Cleary, for the separate representative, submits, the child E is presently well-balanced, well brought-up, and well-loved; every witness agrees that she will be distressed, if not damaged, by removal from Mr and Mrs F; the only difference of opinion is as to the degree and extent of that distress, and the speed and facility with which she might recover from her grief and attach to D. As counsel poses: "The question has to be asked, why have professional services involved to minimise E's distress and to manage the distress of Mr & Mrs F, and manage the expectations of D, when it need not be done at all?". The only answer can be, if the benefits of a change are such as to justify a course that involves that distress. Because E is obviously thriving in the care of Mr and Mrs F, to justify the removal of E from her secure attachments and the associated distress for E - and the risk involved in a move from a certain stable future to an uncertain one - one would need to be satisfied that the benefits outweighed the risks, and that D's parenting skills were adequate to meet the occasion; in Ms Selwyn's words, her parenting would have to be "extremely good enough" in these circumstances to justify the "very risky" disruption of well established attachment bonds. There is no short-term benefit that justifies such a course.

[188]

235 E's best interests in the longer term, however, are far more ambiguous. Being raised by D in her family and culture of origin will better provide for her the development of her identity and self-esteem, and avert the identity issues that will otherwise arise. It may well offer a better prospect of her growing up as a well-adjusted human being. However, it remains associated with significant long-term as well as short-term risks - including that E may not re-attach to D, and in any event that she may become distrustful of close relationships, and will be at increased risk of depressive illness, exacerbated by her being in the care of a mother herself at significant risk of relapse into depression. It is a less stable option, including a radical change now, and a less certain future. Given Mr and Mrs F's proven parenting capacity, against the relatively untried capacity of D, the risk of recurrence of D's depression, the absence of evidence of family support or another "safety net", and the slight evidence as to D's actual plans for E's accommodation care and education, placement with D, it is a less safe, higher risk option. The potential advantages are outweighed by the associated risks: I am unable to see that it is in E's interests to take those risks, when they can be avoided by leaving her in the environment in which she is presently doing so well. I am convinced that, despite the potential benefits, E's best interests would not be served by a radical change in her arrangements at this time in her life, all the moreso when the countervailing risks - of personal and cultural identity confusion issues in her teen years, and the development of robust techniques to deal with racism - are more amenable to mitigation, through sustaining a relationship with D, than are the risks of moving her. 236 As to the respective merits of E being placed with Mr and Mrs F under a parental responsibility order, or under an adoption order, the major argument in favour of adoption is that it is more beneficial than long-term fostering, because it removes uncertainty and encourages a lifetime commitment between the adoptive parents and the child. On the other hand, it represents a permanent termination of D's legal parental status, and to that extent a weakening of the bond - a severing of the legal bond - between E and her natural mother.

[189]

237 I am not unmindful that a parental responsibility order is a less permanent solution than adoption, may result in some competition between D and Mr and Mrs F for E's loyalty and resultant conflict, and carries a greater risk that there will be further litigation - whether instituted by D to seek additional contact or custody or parental responsibility, or by Mr and Mrs F if they form the view that contact is not working satisfactorily. The desirability of an adoption order, to foreclose the possibility of further litigation, has sometimes been emphasised. Thus in Re an Infant K [1973] 1 NSWLR 311, Hutley JA said (at 351): Dr Blow's evidence is that the fact that K is a foster child and known to be such is not endangering her present home situation but that possibly the foster mother's concern at her insecure status is being communicated to the family as a whole. If there were no danger in this present situation being upset it might be contended with considerable force that adoption is not necessary for the welfare of the child and the foster parent relationship should it continue. Therefore the court should not use its powers under s 32(1)(e), because the making of an adoption order is not required to promote the interests and welfare of the child. If, for example, her status as a foster child was a source of real anxiety to the child or to the foster mother then the case for dispensing with the natural father's consent would be much stronger than it is. … The real question is, is it in the interest of K that there should remain available to her the possibility of being reunited to her own parents, if the Minister should so determine? The principal justification for terminating the natural ties is to give security to the child by removing any temptation from A and B to continue to exert pressure for the return of the child. Though one can appreciate the motives which drove them to do it, one cannot ignore the danger to the wellbeing of the child from publicity … The continuing effect of inquiries, representations and publicity of various kinds upon the stability of the foster home cannot but be detrimental to the child. No undertaking that the campaign already begun would be abandoned or suspended if an order was not made was suggested by their counsel. In the light of Dr Blow's evidence that the removal of the child from her present custody would be harmful, this Court should remove any temptation to the parents to continue their efforts, by making the orders sought. Steps to ensure that K is fully integrated into the foster mother's family should now be taken. 238 Much more recently, in Re Q & R; Application of P [2006] NSWSC 1234, Palmer J, dispensing with the consents of the natural mother S and the natural father T, said: 75 Ms S has made it clear that she refuses her consent to the children's adoption because she intends to use every possible legal avenue to have them returned to her parental care. She has made it clear that she will persist in litigation to achieve this end as long as she has any legal standing to do so. 76 I have reached the conclusion, without the slightest doubt or hesitation, that it would be very dangerous to the children and highly detrimental to their welfare to remove them from their loving, secure and supporting relationship with Mr and Mrs P and to return them to the parental care of Ms S. Indeed, in my opinion, the risks to the physical safety and emotional wellbeing of these highly vulnerable children are so great as to make their return to the care of Ms S an impossibility, now or at any time in the future. 77 In my view, there is a serious concern for the welfare of the children if the consent of Ms S to their adoption is not dispensed with under s.67(1)(c). I am satisfied that the making of such an order is in the best interests of the children. If an order is not made, Ms S will undoubtedly continue in her litigious efforts to regain custody of the children, which will inevitably place enormous stress on Mr and Mrs P. That stress will inevitably reflect upon the children. 78 Further, if the children are continually subjected to psychological assessments for the purpose of litigation instituted by Ms S they themselves will feel that the security of their relationship with Mr and Mrs P is undermined, to their great detriment. 79 For these reasons, I conclude that an order should be made under s.67(1)(c) dispensing with the consent of Ms S to the adoption of the children.

[196]

239 Both those cases involved judgments that it was not in the interests of the child that there should remain available the possibility of being reunited with the natural parent(s). As Palmer J explained in Re D; Application of A, there is no general rule that adoption is more likely to be in the best interests of a child than long-term fostering, and the choice is influenced by the age of the child, the history, and the possibility of the child ever returning to her natural parents, having close regard to the particular circumstances of the individual case:- 47 It would be inappropriate for the Court, by undertaking a review of the literature in the field of child psychology and adoption, to come to the view that, as a general rule, adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. When the Court comes to the consideration required of it by s.8(2)(k) and s.90(3), no general rule can be applied. The Adoption Act regulates adoptions in a very wide range of different circumstances: an orphaned infant from Korea; a baby abandoned by parents incapable of caring for it; a teenager removed from abusive parents; a married adult wishing to be adopted by a step-parent. 48 The choice between long-term fostering as an alternative to adoption will, by definition, arise where the child is fairly young. Even so, the age of the child in itself will inevitably give rise to different considerations in different circumstances. The case of a baby some months old, or a child under the age of two, with no possibility of ever being returned to its parents, is very different from the case of a ten year old who has a real prospect of returning to parental care; what a child has experienced before coming into foster care may have a considerable impact on the child's need for future stability and security. 49 For these reasons, s.8(2) emphasises that the Court must have close regard to the particular circumstances of each case in order to assess whether the child's interests are best served by an adoption order or some other form of care: s.8(2)(k).

[197]

240 As E will know and have ongoing contact with D, it is inevitable that she will come to know that D is her natural mother; she is already acquiring that knowledge. Accordingly, E is going to know all three of D, Mr and Mrs F as her parents in one way or another. Sooner or later E will question why she is not with her natural mother. This issue, which has to be faced by virtually all adoptees, will be exacerbated for E by the cultural and ethnic gap. Inevitably, she is going to be faced with issues of identity arising from those circumstances. The principal challenge, which she will almost certainly confront in her teenage years, will be reconciling her experience of living in a loving family with Mr and Mrs F, with her separation from her natural mother and ethnic group, in circumstances where her natural mother has, except for a few weeks around the time of her birth, wanted to parent her. The crucial issue, so far as E's longer-term interests are concerned, involves positioning her best to deal with that challenge. 241 Having regard to the conclusions I have reached about the risk of identity confusion and cultural deprivation issues, it is clear that E should be given ample opportunity to develop a good relationship with D, from whom she can gain much, through which relationship some of the issues which she will otherwise face can be minimised. Minimising E's relationship with D will if anything exacerbate the issues she will ultimately have to face. Sustenance of the ongoing relationship with D is important for E's long-term welfare, not just to gain some knowledge of her cultural background, but to know her birth mother, to learn her family heritage and background, and to grow her identity and sense of belonging. Adoption may have a negative effect on the potential of her relationship with D. Bearing in mind the evidence that children often have to deal with complex family relationships involving multiple parental figures, and ordinarily are able to do so, I do not perceive a necessity from E's perspective to clarify that two of the three are legally her parents and one is not; in particular I do not share the concerns expressed by Mrs F that there is a need to avoid confusing E about who are her parents; the evidence shows that children are well able to cope with this type of complexity.

[198]

242 As it is impossible to predict with any degree of certainty how E will respond, it is preferable not to take the irrevocable step of making an adoption order, but rather to leave the position more flexible, so that it can respond to E's needs and wishes as they emerge in the future. While uncertainty as to the long-term future has disadvantages, they should not be overstated. First, it is impossible to foretell E's future. Circumstances change. The attitudes of individuals, including children, fluctuate. An irrevocable order precludes the opportunity of adjusting arrangements to meet such changes. Thus in cases relating to children upon relationship breakdown, in which typically residence/contact or residence/residence orders are made, such orders are always amenable to change, although some significant change of circumstances is required to warrant re-opening the issue [see Rice & Asplund (1978) 6 FamLR 570]. Generally, it is thought that the impossibility of foretelling the future, and the desirability of preserving some flexibility, outweighs the benefits of permanence achieved by an immutable order. Secondly - unlike A re D and Re Q & R; Application of P - this is not a case in which the child has been removed from circumstances of great risk in which she has experienced considerable trauma, and fears the prospect of being returned to the care environment from which she was removed, so that it would be an important step in her interests to demonstrate that such a return was impossible. Thirdly, insofar as the security of the parents is important to the welfare of the child, Mr and Mrs F would have in their favour an order allocating to them parental responsibility for E, as well as care and custody. That gives them all the rights and responsibilities of a parent. While it may not be as permanent as an adoption order, it still affords a very considerable measure of security. Although there is a risk that Mr and Mrs F, even unintentionally, might withdraw somewhat from their parental commitment to E, for fear that they might be disappointed in the future, Mr and Mrs F always contemplated that the adoption would be an "open" one, in which E would know and have contact with D, perhaps increasingly as she became older. If Mr and Mrs F are as committed to E as they say, and I do not doubt that they are, I cannot conceive that they would reduce that commitment on account of a risk that she might want to spend more time with D at some time in the future.

[199]

243 Fourthly - particularly because of the trans-racial aspect - it is quite likely that, knowing D is her natural mother, and if they develop a good relationship through contact, E may find the biological and genealogical ties and the desire to be with her own people very strong in her adolescence. The following excerpt is instructive (Fratter, p235): The adoptive parents whose son had left their family believed that he had become attached to them, but that in adolescence, the pull of the 'genetic bond" had been too strong, and he had felt that 'his loyalties lay with his birth family'. They thought with hindsight that fostering would have been a less difficult option for him than adoption, and that the disruption was caused not by contact but by a 'crisis of identity'. 244 That is not to say that it is a probability, or that it should happen, but it is a sufficient possibility that it needs to be accommodated. I am unpersuaded that this is a case in which the possibility that at some future time, perhaps in adolescence, E may move into the care of D should be forever foreclosed. Fifthly, I think for E in her teens that the concept that she is being parented by Mr and Mrs F who love her, in circumstances where her natural mother was initially unable to care for her, is a less confronting challenge, carrying less of a suggestion of abandonment, than one that involves legal adoption. It better empowers E to deal with the issues that will arise, and to feel more that she has some influence upon the situation. The less irrevocable nature of a parental responsibility order, not involving formal severance of the parental bond with D, provides a more promising environment for E to deal with and resolve these issues in her teenage years, leaving her with some sense of control, or at least influence, in the situation. Not permanently severing the legal parental bond, as an adoption order would, leaves more scope for flexibility in the future, and for effect to be given to E's own wishes as she matures. In my view, it better positions E for the future, in that it leaves her with more ability to make choices for herself, rather than being confronted with a situation in which all decisions have been made for her. This empowers E, in a context in which traditionally, adopted children are 'the most disempowered' of all those involved in adoption [cf Hartman A, and Laird J, 'Family treatment after adoption: common themes', in Brodzinsky, Schechter (eds), The Psychology of Adoption, Oxford 1990; Fratter J, Adoption with Contact, London 1996, p 247]. 245 That adoption would be contrary to the wishes of D is also a relevant, though very much subsidiary, consideration.

[202]

248 [If I were required to rest my order on the Family Law Act, there is nothing in the relevant considerations under that Act relevant to the decision in this particular case that I have not taken into account in the exercise of jurisdiction under the Adoption Act. I am satisfied that it would not be in the best interests of the child for her parents to have equal shared parental responsibility. I do not overlook the emphasis that the Family Law Act places on the benefit to the child of having a meaningful relationship with both of the child's parents. In the present case, so far as the father is concerned that is impossible, and so far as the mother is concerned it has to be balanced against the disadvantages of a change in the child's circumstances and the likely effect on her of any separation from Mr and Mrs F with whom she has been living [Family Law Act, s 60CC(3)(d)(ii)]]. Contact 249 Professor Katz explained that the main purpose behind "open adoption" was that it mitigated, apparently successfully, one of the largest traumas for adoptive children, namely the search for their own origins. Ms Prevatt Goldstein said that research evidence appeared to favour contact with birth parents as being beneficial, or at least neutral, for the child, and that even after contested adoptions contact appeared neither to reduce attachment to, nor sense of entitlement of, the adoptive parents, with some research (Fratter, 1996) suggesting that contact every six weeks did not appear to affect the attachment of the children concerned - although, unsurprisingly, it was found to work most satisfactorily with respect if not affection between the adults. 250 In E's case, the need for contact is accentuated by the complication of separation from her ethnic and cultural origins as well as from her birth family. The most important mitigating factor for reducing the risks for E of personal and cultural identity issues in the future is contact with D, to facilitate knowledge of and a relationship with her natural mother, extended family, ethnicity and culture. 251 Dr Robinson said (emphasis added): I mean, my general principle for contact in any scenario is: what is the aim of the contact? What are you trying to establish? What type of relationship are you trying to establish between the child and the person? I wouldn't see the aim of this contact to establish that D is a parent . I would want - and therefore any parenting role to the child. I would want the type of relationship to be that the child is very familiar with D, comfortable around her. That D is meeting E's cultural needs, exposure to a Sudanese woman, exposure to her biological mother who is able to talk to her in a way Mr and Mrs F and nobody else will be able to talk to her about grandma and grandad and so on and so forth. That they can share some history, that's some history between them. Not only sharing the family history, but that there is some history between them built up so that E has a sense that D is a caring, involved, biological parent, so that the potential for abandonment fears in the future are minimised and if - as we might expect this at times of adolescence, that if she needs to spend more time with D in her own home and in her culture, and if Mr and Mrs F can countenance that, that she can comfortably go and spend time with her biological mother at that point in her life.

[203]

252 There is a certain amount of confusion in Dr Robinson's thought on this topic. For speaking "about grandma and grandad and so on and so forth" goes beyond meeting cultural needs and involves imparting a sense of belonging to D's family. I do not accept that in the present case contact is merely for the purpose of providing E with some connection with her cultural origins: at least as important is reducing the risk that she will experience feelings of having been rejected by her mother, through preserving a relationship with her. 253 Ms Prevatt Goldstein's opinion was that if E were not returned to D, it would be in E's interest to have regular, frequent contact with D, and that both D and Mr and Mrs F would need to be assisted in managing it in ways that clarified their respective roles. She thought it would be helpful to begin face-to-face contact of approximately two hours in Mr and Mrs F's home or in a neutral venue at three monthly intervals, progressing in frequency to six weekly and in duration to one day and in location to D's home or another relaxed venue within one to two years. 254 Dr Milch and Dr Robinson concurred that contact as frequently as monthly would not be excessive. Dr Robinson thought the key factor, as to the frequency of contact, was not so much what the child could tolerate but what the parents could tolerate; that if Mr and Mrs F were very anxious and distressed about contact with D and if D was very anxious about not having their child in her care, the contact would not be too pleasant an experience for E, though she would possibly cope with that, "but what will make her not cope with it is returning to a mother who has fallen apart, wondering what has happened and who feels very, very undermined, as I said, very anxious about what it all means". She would not advocate overnight contact until Mr and Mrs F felt secure that E was safe and secure in the care of D, and that E was very comfortable with D. She accepted that twice a year was probably too little, and that if the relationships were not perfect but reasonably good, monthly contact would not be too frequent. She suggested perhaps an hour, initially with a health professional, just D and E together, without Mr and Mrs F; followed if possible by some activity involving Mrs F also, which would help E trust D as a benign person in her life. 255 In final submissions, Mr and Mrs F proposed contact at this stage three monthly, acknowledging that it would increase in the future and indicating that they would regard it more or less as at E's discretion once she reached her teens. The Director-General and the separate representative appear to support contact on a monthly basis, consistent with the evidence of Dr Milch and Dr Robinson. 256 It is necessary to balance E's interests in Mr and Mrs F, with whom she will be living, feeling secure and being supportive of contact, and E's interests in developing a good relationship with D. Contact of the order supported by Dr Milch and Dr Robinson will be very much more than had been contemplated at the time when E came into Mr and Mrs F' care. On the other hand, the situation has changed since then, and it is the interests of E, not those of Mr and Mrs F or D, that are paramount. 257 Particularly in the context that they will not have the security of an adoption order, I think it is important, and in E's interests, that Mr and Mrs F's security in their relationship with E not be undermined by too rapid an introduction of contact more extensive than they wish. To preserve their sense of security, it is important that they have some comfort in respect of contact. I therefore propose to make provision for a minimum level of contact, but in the hope that Mr and Mrs F will recognise that it is in E's interests, consistent with the expert evidence, to see more of D. I will provide for contact second monthly for a year (until E is five), then six weekly (until she is six), then monthly. I would anticipate and hope that by about the time she commences High School there would be overnight contact, but it is too early to be prescriptive about this, and E's own wishes will be much more significant at that stage. I will reserve liberty to apply for further contact orders in the event that the parties are unable to agree on the detail, or in the future. Name 258 The Director-General seeks an order, under s 92, allowing E to be referred to by Mr and Mrs F's surname. Such an order would not involve an exercise of power under Adoption Act, s 101, and the restrictions referred to in that section do not apply. In any event, s 101 does not impose relevant limitations upon the change of the surname, as distinct from the given name of a child. However, it would be curious if a name could more easily changed when an adoption application had been dismissed, than upon a successful adoption application. The name of a child is an aspect of parental responsibility. Without any order, the persons having parental responsibility are entitled to change the name of a child. In my view power to make orders with respect to parental responsibility must carry with it power to make orders with respect to the child's name. 259 Issues of changing the surname of a child have been considered in a number of cases in the Family Court of Australia [George & Radford (1976) FLC ¶90-060; 1 Fam LR 11,510; Chapman & Palmer (1978) FLC ¶90-510; 4 Fam LR 462; Beach & Stemmler (1979) FLC ¶90-692; Kelley & Kelley (1981) FLC ¶91-002; Skrabl & Leach (1989) FLC ¶92-016; 13 Fam LR 83; and Mahoney & McKenzie (1993) FLC ¶92-408]. Usually, they have arisen in the context of applications for injunctions to restrain one parent from causing or allowing the child to be known by a new name. A convenient summary of the cases and the principles to be extracted from them is to be found in the judgment of Kay and Holden JJ in Flanagan & Handcock (2001) FLC ¶93-074. Relevantly, they establish that the welfare of the child is the paramount consideration, and that the court should have regard to the short and long-term effects of any change in the child's surname; any embarrassment likely to be experienced by the child if his or her name were different from that of the parent with whom the child resides; any confusion of identity which may arise for the child if his or her name is changed or not changed; the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and the effect of frequent or random changes of name [Chapman & Palmer (1978) FLC ¶90-510; 4 Fam LR 462]. Further considerations include the advantages in the short and long-term of the name remaining unchanged, and the degree of identification that the child has with the various parties [Beach & Stemmler (1979) FLC ¶90-692]. 260 In support of the submission that a change of name should be authorised, it is contended that E will live in the household of Mr and Mrs F who will be responsible for her day to day education, sporting and leisure activities, all of which will require her to be enrolled or registered, such that it would be in her interest to be able to use Mr and Mrs F's surname. To that might be added that, at present, E more closely identifies with Mr and Mrs F than with D, and that she already uses their surname. 261 On the other hand, a change in surname will be a further breach in the connection between her and her birth mother and family, and may make it more difficult for her to be accepted by her family of origin. 262 Names are important to children. They are a significant aspect of their sense of belonging. At least in the short term, E will identify more closely with Mr and Mrs F than with D. She already uses their surname. She will continue to reside with them for the foreseeable future. While the position in the longer term is not so clear, the probabilities are that even then she will identify more with Mr and Mrs F. To change now from their name will be productive of confusion and distress. Retaining E's present surname as a middle name will preserve the connection with D's family. In my view, her greater identification in the short term, and probably the longer term, with Mr and Mrs F, the circumstance that she already uses their name, so that from her perspective no "change" would involved, and the undesirability of causing identity confusion at this stage, indicate that Mr and Mrs F should be permitted, in exercise of their parental responsibility for E, to change her surname to their own, provided that if they do so, E's current surname be retained as her middle name.

[216]

278 I am acutely aware of the tragedy for Mr and Mrs F that their dream of being adoptive parents of E, which seemed so close to reality, will be disappointed; and equally of the tragedy for D, who has never truly agreed to surrender her parental responsibility for her daughter, that she be unable to exercise it. I fully appreciate that this outcome involves elements of compromise, and that it is not an ideal solution; but in the circumstances that have arisen, through no-one's fault, there is no ideal solution. The best one can do is to recognise that any outcome is going to leave E with challenges in the future, most likely during her teenage years, and to adopt that solution which, while providing her with a safe, secure and stable environment, best positions her to meet them. The solution of leaving E in the care and parental responsibility of Mr and Mrs F, but without severing the legal parental relationship with D, and providing for her to have more extensive contact with D than had originally been anticipated, will provide a secure, stable and loving environment for E, and preserve the opportunity for a meaningful relationship with her family and culture of origin, thereby mitigating the risks of identity and self-esteem issues in adolescence. I have seriously considered whether an "all or nothing" solution, with the greater security it would offer the prevailing party, and perhaps the child, and the greater certainty it would afford, would not be preferable, but I think the advantages of not permanently severing E's legal parental bond with D on the one hand, and of not disrupting her secure attachment bonds with Mr and Mrs F at her present age on the other, outweigh the attractions of security and certainty, which in the context of this case are more related to the perceived needs of the parents than of E: it is clear that children such as E can cope with the concept of multiple parents. I have also considered whether it involves unreasonable expectations of the parents, but I am very confident that Mr and Mrs F, who indicated acceptance of a parental responsibility solution if an adoption order were not made, will not allow their natural disappointment to affect their deep commitment to and love for E; and D must understand that if she were to endeavour to undermine their position that would not only be detrimental for E, but would be a strong negative factor in respect of further contact. Of course if the benefits for E are to be optimised, goodwill and trust between the parties, and refraining from conduct that undermines the position and standing of the others, will be important. It is plainly in E's best interests that, putting aside their personal needs and beliefs, all three work together to provide the best outcome for her. But as has been pointed out, even after contested adoptions, contact with the birth parent has typically proven beneficial. 279 My orders are:

Director-General, Dept of Community Services v D & Ors

At a glance

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Judgment (224 paragraphs)

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