Re the Adoption of GJJM and IHD [2019] NSWSC 1822 - NSWSC 2019 case summary — Zoe

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Re the Adoption of GJJM and IHD [2019] NSWSC 1822

[2019] NSWSC 1822

Supreme Court of NSW|2019-12-18|Before: Hallen J, Robb J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-12-18

Before

Hallen J, Robb J

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Counsel: Ms M Falloon and Ms S Swami (Defendant) File Number(s): A178/2018

[2]

The Proceedings

HIS HONOUR: The Secretary for the Department of Communities and Justice ("the Secretary"), by his delegate, the Principal Officer of Barnardos Australia ("Barnardos"), applies, in these proceedings, for an adoption order under the Adoption Act 2000 (NSW) ("the Act"), with respect to GJJM and IHD, two siblings of the half blood, who were born in October 2010 and March 2015 respectively.
The Secretary also seeks orders dispensing with the consent of the birth parents of each child, an order that an amended paternal Adoption Plan in respect of GJJM, be registered, and an order approving the use of the first names "GJJM" and "IHD" respectively, and the use of the surname of the proposed adoptive parents, "S", for each of the children.
The Dictionary to the Act relevantly defines the expression "parties to an adoption" to mean: (a) the child; (b) the birth parent or birth parents who have consented to the child's adoption; (c) the person selected to be the prospective adoptive parent of the child; (d) the Secretary; (e) the appropriate principal officer.
For the sake of preserving the anonymity of the parties, as is required by s 180 of the Act, I have referred to, and shall refer to, the children, somewhat impersonally, as "GJJM" and "IHD"; to the people in whose favour the adoption order is sought, as "CMS" and "DOS"; to the mother of the children, as "KAD"; to the father of GJJM, as "GSM"; and to the father of IHD, as "MBD". The medium neutral citation has been anonymised accordingly.

[3]

The Involvement of Barnardos

Barnardos is a delegate of the Secretary by virtue of an order given under his hand pursuant to s 206 of the Act. Under s 206(2)(a), the Principal Officer may be conferred with any of the functions delegated to the Secretary by the Minister, or, under s 206(2)(b), any of the Secretary's other functions under the Act or the regulations. In addition, the Principal Officer may be given all of the powers of the Secretary. Relevantly, included in the powers listed in s 10 of the Act, the Principal Officer is given the ability to make an application for orders to be made for the adoption of a child, or children, in this case, GJJM and IHD.
Barnardos has delegated parental responsibility for both of the children, GJJM and IHD, until they each attain the age of 18 years, with no plan of restoration to their birth parents, pursuant to final orders made by the Children's Court of New South Wales, at Port Kembla, on 20 October 2014 (in respect of GJJM), and the Children's Court of New South Wales, at Kempsey, on 9 September 2015 (in respect of IHD).
Barnardos is also a designated agency under s 139 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Care Act") and has delegated parental responsibility for GJJM and IHD, including case management and supervisory responsibility for their out-of-home care placement.
Barnardos offers a range of services to children in need of care, including temporary and long term foster care placement. It also offers, under the Find-a-Family program, an integrated service of permanent family care and adoption, to children who have been permanently removed from their birth families by the Courts. Children are referred to Barnardos Find-a-Family by the Department.
Children who are placed in Barnardos' foster care placements are allocated a Case Manager. The role of the Case Manager includes visiting the child's placement on a regular basis, spending time with the carers and the child to ensure that the placement is adequately meeting the child's needs, obtaining updates from the carers on the child's progress, and exploring with the carers how they are managing and if any extra support (emotional or practical) is required. Depending on a child's age and maturity, the Case Managers also spend time alone with the child to explore the child's feelings and sense of happiness within the placement. The Case Managers also have ongoing contact with the child's parents in order to provide them with information as to the child's wellbeing, to discuss any concerns that have been identified and to schedule contact visits and Case Review meetings.
Case management responsibilities for GJJM and IHD were transferred from the Department to Barnados, and parental responsibility for each child was delegated by the Department to Barnados in February 2016.
In the case of GJJM and IHD, day to day responsibility for casework was managed by Barnardos' Case Manager, Ms M Mantel, between 14 January 2016 and 23 January 2017, Ms J Norderyd, between 24 January 2017 and 31 March 2017, by Ms C Walker between 1 April 2017 and 20 November 2018, by Ms A Strus between 21 November 2018 and 1 July 2019, and by Mr B Anderson, who is a Program Manager, since that time.
Ms R Wald had case management responsibility for GJJM and IHD (supervising the Case Manager) until 6 April 2018. Regional Manager, Ms J Atkinson, then supervised Ms Walker between 7 April 2018 and 22 June 2018. Since 22 June 2018, Mr Anderson has had case management responsibility for each of GJJM and IHD.
Ms D K Berry is the Principal Officer for Barnardos, and has affirmed three affidavits in these proceedings, each of which I have read. I shall refer to these affidavits later in these reasons. She commenced her employment with Barnardos in October 2016, having previously been employed as Principal Officer, Adoptions, CatholicCare NSW, from December 2015 to September 2016, a Family Therapist at the Cerebral Palsy Alliance between 2006 and 2015, and a Program Manager, Adoption and Permanent Care Program, and a caseworker and Senior Manager, at Barnardos, between 1994 and 2005. There can be little doubt that she is well qualified.
Ms C Walker is a Case Manager, Adoption, at Barnardos Find-a- Family. She commenced with Barnardos in March 2017. She is an "authorised person" for the purposes of s 91(2A) of the Act, being a suitably qualified person employed, or nominated, by an approved organisation, to prepare reports in accordance with s 91 of the Act. She has 9 years' experience as a Case Manager within the non-government sector. She affirmed one affidavit that I have read. I shall refer to the contents of this affidavit later in these reasons as I am satisfied that she is well qualified to express the opinions expressed.

[4]

The Evidence

The Secretary's application was supported by: 1. An affidavit of Ms C Walker, affirmed 20 September 2017, to which affidavit was annexed a confidential report, dated 21 March 2017, prepared under s 91 of the Act. The report was based upon interviews with GJJM, KAD, MBD and GSM, and Ms Walker's observations of GJJM and IHD in the home of CMS and DOS. I shall refer to this report in detail later in these reasons. 2. An affidavit affirmed 25 September 2018, by Ms D K Berry. In preparing her affidavit, she gave evidence that she had access to Barnardos' records in relation to GJJM and IHD (some of which were provided to Barnardos by the Department). Exhibited to her affidavit, marked Ex. DKB-1, was a folder of documents, comprising 451 pages, being copies of the documents to which she referred in that affidavit. It is this affidavit, and the exhibit to it, that included most of the factual information to which reference will be made. Two further affidavits, affirmed 23 May 2019 and 31 July 2019 respectively, by Ms D K Berry, together with Ex. DKB-2 and Ex. DKB-3 were subsequently filed and served. The purpose of these affidavits was said to be to provide an update of casework that had been completed in respect of GJJM and IHD. For the most part, the documents referred to in, and the exhibits to, Ms Berry's affidavits, included documents provided to Barnardos by officers of the Department of Communities and Justice, including documents created during proceedings in the Children's Court; 6 monthly reviews, conducted by Barnardos, in relation to each child; summaries of "family contact visits" and "worker visits" that had occurred; copy medical, and other, reports, in relation to GJJM; and medical reports in relation to IHD. They also included a copy of the earlier Adoption Plan in relation to each birth parent. 1. One affidavit by CMS and by DOS, each sworn 23 August 2018. 2. Three affidavits, one from each of three different referees, attesting to the good fame and character of CMS and DOS. 3. An affidavit of service of Mr M Folkes, sworn 8 October 2018. 4. An affidavit of service of Ms C Walker, affirmed 9 October 2018. 5. An affidavit of service of Mr C Zadravec, sworn 22 October 2018. 6. A report prepared by Dr Neveling, Clinical Psychologist, prepared on 10 September 2019. This report is referred to in more detail later in these reasons.
For his part, GSM only relied on two affidavits, the first sworn on 26 March 2019 and the other sworn 1 April 2019.
Naturally, as a contested hearing did not take place, none of the deponents of the above affidavits was cross-examined. That did not matter in this case as much of the factual content of the affidavits is not really controversial.

[6]

Formal Matters

Before an adoption order can be made in New South Wales, the Court must be satisfied that a number of other procedural factual safeguards, required by the Act, have been met.
I shall refer to the formal matters that are required by the Act, by reference to the facts of this case, as there is no dispute about them: 1. When the Summons seeking the adoption order was filed, GJJM and IHD was each present, and the adoptive father, DOS, as well as the adoptive mother CMS, was each resident and domiciled in New South Wales: s 23(2) and 28(1)(a) of the Act. Each is an Australian citizen. 2. Each of GJJM and IHD is under the age of 18 years, having been born in October 2010 and March 2015, respectively, in Australia: s 24 of the Act. GJJM is now 9 years old and IHD is now almost 5 years old. 3. The application for the adoption order has been made in accordance with the Act, jointly, in favour of a couple, being CMS and DOS: s 23(1) of the Act. 4. Each of CMS and DOS meet the age requirements prescribed by the Act: s 28(3)(a) of the Act. 5. CMS and DOS have been married to each other since November 2009 and have lived together for a continuous period, in New South Wales, longer than 2 years: s 28(4) of the Act. 6. On about 23 July 2014, CMS and DOS submitted an Expression of Interest to adopt and on 9 September 2015, they signed an application form to adopt GJJM and IHD pursuant to s 43 of the Act. 7. Between February and June 2015, CMS and DOS were assessed to determine their suitability to be approved to adopt pursuant to s 45 of the Act. Barnardos had regard to many matters during the assessment process, following which, CMS and DOS were found to be fit and proper persons to adopt a child pursuant to the Act (known as a "general approval"). 8. On 24 March 2017, CMS and DOS attended a Transition to Adoption Training Seminar, organised by Barnardos, which covered a number of topics relating to the application for adoption. 9. CMS and DOS are authorised carers. (The Dictionary to the Act, relevantly, defines "authorised carer" as including any person who has care and responsibility for a child under out-of-home care arrangements made under the Care Act.) Section 135A(1) of the Care Act, relevantly, provides that "statutory out-of-home care is out-of-home care that is provided in respect of a child or young person for a period of more than 14 days, pursuant to a care order of the Children's Court". Each of CMS and DOS had been approved as long term permanent carers. 10. Each of GJJM and IHD has lived with CMS and DOS continuously, in New South Wales, since 14 January 2016. 11. There are three affidavits attesting to the good fame and character of CMS and DOS: s 28(1)(b) of the Act. Furthermore, National Police Certificates have been issued in respect of each of them, showing "no disclosable Court outcomes" or outstanding matters present. Each of the proposed adoptive parents has received a Working with Children Check clearance from the New South Wales Office of the Children's Guardian. In addition, the evidence of the referees and of caseworkers, establishes that they are able to fulfil the responsibilities of parents. 12. Each of KAD, GSM and MBD has been provided with a copy of the Mandatory Written Information in regard to the adoption of the children, as required by s 59 of the Act. 13. Consent to the adoption must be given by every person whose consent is necessary, unless that consent has been, or should be, dispensed with: s 90(1)(d) and s 52 of the Act. That consent has not been given by KAD, GSM or MBD. 14. For the purposes of s 87 of the Act, the application is made by the Secretary. The Secretary has consented to the adoption order being made for GJJM and IHD, as required by s 52(a)(ii) of the Act. The Minister, who has parental responsibility, has, by an authorised delegate, consented in December 2017. 15. The Court may not make an order for the adoption of a child unless a report in writing concerning the proposed adoption has been provided to the Court: s 91(1) of the Act. I have referred to a copy of that report having been annexed to an affidavit of Ms Walker, earlier in these reasons. 16. Neither GJJM, nor IHD, is an Aboriginal or Torres Strait Islander child. 17. Each of GJJM and IHD has an established relationship with DOS and CMS. 18. Notice was given to each of KAD, GSM and MBD formally advising her, and him, respectively, that approval had been given for the commencement of adoption proceedings.

[7]

Uncontested Background Facts

A comprehensive account of the history is contained in the affidavits read in the case for the Secretary. It is, now, not necessary to repeat all of that history in detail. The following facts, by way of a summary, are clearly established.
GJJM was born in October 2010 at Wollongong Hospital, Wollongong. His Birth Certificate identifies his birth parents as KAD and GSM.
IHD was born in March 2015 at Kempsey Hospital, Kempsey. Her Birth Certificate identifies her birth parents as KAD and MBD.
GSM was born in October 1966, and he is presently 53 years of age. He resides in Sydney. It is unclear whether he is presently in a relationship, and if so, the identity of any partner.
KAD was born in March 1980, and is presently 39 years of age. The evidence indicates that GSM and KAD were in a relationship, though it is unclear when that relationship ended. However, since the birth of GJJM, GSM has never lived with KAD.
MBD was born in December 1974, and he is presently 44 years of age. As has been stated earlier in these reasons, KAD and MBD are married, and they reside together in Sydney.
GSM is of Croatian-Australian cultural heritage. His religion, if any, is not known.
KAD and MBD are each of Anglo-Australian cultural heritage. Each of KAD and MBD is Catholic.
GJJM has two full siblings. They are the maternal half siblings of IHD. They are MLM, born August 2003, and MRM, born December 2004. MLM and MRM live, together, in a kinship placement with JB, their maternal grandmother. Each is under the parental responsibility of the Minister until each attains the age of 18 years, pursuant to orders made by the Children's Court of New South Wales on 20 October 2014.
GJJM has one paternal half sibling, KW, who is now an adult. Not much is known about her, though it is believed that she resides overseas.
IHD has four paternal half siblings: SD, whose birth date is unknown but who is said to be approximately 20 years of age; KD, whose birth date is unknown but who is said to be approximately 19 years of age; KB, born December 2005; and RB, born August 2007. It is believed that SD and KD reside with their mother in Queensland. KB and RB reside with their maternal grandmother in the Shoalhaven region of New South Wales, in a guardianship placement, pursuant to orders of the Children's Court on 9 May 2006 (in respect of KB) and 18 July 2008 (in respect of RB).
Other significant people in the lives of the children are JB, who lives in Albion Park, New South Wales; AW, IHD's paternal grandmother, who lives in Robertson, New South Wales; and CW, IHD's paternal aunt, who lives with AW.
I shall not set out all of the details relating to the child protection histories in relation to GJJM and IHD. It is fair to say, however, it is lengthy and detailed. Included are allegations of domestic violence and drug abuse to which the children of KAD and GSM were separately exposed, as well as lack of supervision and parental neglect.
GJJM was assumed into the care of the Minister on 25 August 2011, along with MLM and MRM. They were placed, together, in three different out-of-home care placements, until November 2011, when GJJM was placed with KAD at the rehabilitation facility she was attending.
On 24 February 2012, final orders were made allocating parental responsibility for GJJM (and MLM and MRM) to the Minister for a period of six months, and following the expiry of the six month period, to KAD, provided her compliance with various undertakings.
In April 2012, MLM and MRM returned to the care of KAD, with whom GJJM was already living. Following the receipt of further risk of significant harm reports in relation to KAD, on 9 January 2014, GJJM (and MLM and MRM) were again removed from the care of KAD. GJJM was then placed in two further short-term foster carer placements. MLM and MRM were also temporarily placed with GJJM in one of these placements.
On 21 March 2014, the Children's Court of New South Wales, at Port Kembla, New South Wales, granted the Secretary leave to rescind/vary the final orders made in respect of GJJM and his older siblings.
On 20 October 2014, the Children's Court of New South Wales, at Port Kembla, made final orders in respect of GJJM and his older siblings, allocating parental responsibility for each child to the Minister until each attains the age of 18 years.
On 24 March 2015, IHD was assumed into the care of the Minister pursuant to s 44 of the Care Act.
On 1 April 2015, IHD was discharged from hospital and on the same date, she was placed with GJJM in his temporary foster carer placement.
On 9 September 2015, the Children's Court of New South Wales, at Kempsey, New South Wales, made final orders allocating parental responsibility for IHD to the Minister until she attains 18 years of age.
On 14 January 2016, each of GJJM and IHD was placed with CMS and DOS. Both have lived with them, continuously, since that time.

[9]

The Proposed Adoptive Parents

The proposed adoptive parents identify as being Australian and being of the Anglican (Christian) religion.
DOS is employed as a Sales Manager, whilst CMS is employed as a Registered Nurse. Between them, they have sufficient financial resources to meet the needs of both children. They live in a two storey, four bedroom home with many amenities. (Material circumstances are important but not necessarily decisive.)
The needs of both children are very well met under the care of DOS and CMD, the proposed adoptive parents. Both children are well bonded to the proposed adoptive parents. They are also very close to each other as siblings. Both children share a stable, and nurturing, relationship with DOS and CMS, and refer to the proposed adoptive parents as "daddy" and "mummy" respectively.
I am satisfied that each child has a warm, positive, strong, and loving relationship, and each shares his, and her, primary attachment, respectively, with the proposed adoptive parents. They all have a close bond.
All of these matters are clearly endorsed by the referees.
The proposed adoptive parents have demonstrated a strong commitment to both children's ongoing care, and have expressed a clear wish to provide them with a strong sense of stability and permanency.
Reports that I have read confirm that the proposed adoptive parents interact with IHD in a loving, calm and gentle manner and are pro-active in attempting coping strategies in relation to the needs of GJJM.
KAD and MBD share an Anglo-Australian cultural heritage with the proposed adoptive parents, making IHD's placement with CMS and DOS culturally appropriate. Each of KAD and MBD are Catholic, which CMS and DOS have supported by raising IHD and GJJM in the Catholic faith. GJJM has been christened in the Catholic Church, and CMS and DOS have indicated an intention to baptise IHD in the future.
In relation to GSM's Croatian-Australian cultural heritage, the evidence indicates that no additional requests have been made by GSM regarding GJJM's religious or cultural heritage.
CMS and DOS have exchanged mobile telephone numbers with each of the birth parents, to provide updates of the children and to facilitate contact. They appear to be committed to maintaining the contact between the birth parents and the children and have demonstrated this commitment by the scheduling of contact visits between them. In addition, each of DOS and CMS has signed the Adoption Plans in respect of IHD and GJJM.
CMS and DOS have created Life Story books for GJJM and IHD which document each child's life and significant events, including birth family contact visits, and which also set out the reasons they are in care. Currently, the evidence indicates each child has an age appropriate understanding of his, and her, life story. The books are readily accessible by each of the children.

[10]

The Children - GJJM and IHD

Each of GJJM and IHD enjoys good health.
IHD appears to be developing well, and is reaching age-appropriate milestones.
GJJM has had some developmental issues. He sees a speech therapist, and until recently, also saw a school-based occupational therapist, to support his developmental needs.
GJJM has some behavioural issues. In the court report annexed to her affidavit, Ms C Walker notes that: "Prior to his placement with the proposed adoptive parents, [GJJM] experienced a lot of instability due to his numerous placement changes. [GJJM] struggled with his transition to his permanent placement, but has progressively become more settled into his routine and has developed positive attachments to his proposed adoptive parents."
Ms Walker's report also refers to the proposed adoptive parents reporting GJJM experiencing behavioural issues, following contact visits with birth family.
To support GJJM, CMS and DOS have enrolled GJJM in a "play therapy" program to "support [GJJM] to express and explore his sense of self and provide opportunity to process thoughts and feelings through play".
GJJM has also recently started attending fortnightly appointments with a clinical psychologist, which aim to support GJJM with "anxiety management and emotional regulation strategies", among other things.
CMS and DOS have also completed two parenting programs, "123 Magic" and "Circle of Security", to better support GJJM's emotional and behavioural needs. In Dr Neveling's report prepared in September 2019 (to which reference is made later in these reasons), she indicated each of DOS and CMS have also now attended trauma-specific therapy to support GJJM.
GJJM does not have a full understanding of the legal aspects of adoption, due to his young age. The evidence indicates that he has, nonetheless, "articulated that being part of the proposed adoptive parents' family made him happy and that he wanted to be an '[S]'". IHD, naturally, is too young to have articulated any views in relation to the proposed adoption.
Ms Berry concludes that each has "an age appropriate understanding of their (sic) identity and where they fit within their birth and foster families. They are supported in developing their identity through social stories; regular conversations with the proposed adoptive parents about their birth families, birth family contact and having numerous photographs of birth family on display in their bedrooms".

[11]

Contact

The evidence indicates that a concern held by GSM, in relation to the proposed adoption of GJJM and IHD, is his lack of contact with GJJM, and a concern that his contact with GJJM, and GJJM's contact with MLM and MRM, would be reduced in the event an adoption order in respect of GJJM was made.
GJJM has not had face-to-face contact with GSM since December 2017. This is, apparently, due to fears expressed by GJJM, of GSM, following a contact visit in late 2017.
In his affidavit, GSM wrote: "25. From December 2017, I decided to stop visits following this in 2018 because I did not want [GJJM] to be scared of me. 26. I really want to re-start my visits with [GJJM]. It has now been over 15 months since I have seen him, so I realise that we will need to gradually start visits again."
As has been indicated earlier in these reasons, during the course of the proceeding, a report was prepared by Dr Neveling, clinical psychologist, in respect of (amongst other things) the fears held by GJJM around contact with GSM. The Terms of Assessment were said to be: "1. The advantages and disadvantages of the following for [GJJM]: a) Maintaining the current status quo (i.e. long-term parental responsibility to the Minister) b) Long-term parental responsibility order in favour of the proposed adoptive parents. c) Adoption by the proposed adoptive parents. 2. The recommended frequency, duration, and supervision of contact between [GJJM] and [GSM] and any recommendations you may have about re-introduction of such contact."
In preparing her report, Dr Neveling interviewed GSM, GJJM, CMS, DOS and GJJM's maternal grandmother, JB, with whom his older siblings live, and with whom contact with his older siblings is arranged. In broad summary, the report concludes: 1. There are advantages and disadvantages to each option posed in Part 1 of the Terms of Assessment. 2. Irrespective of the legal order, provided that GJJM's current placement is stable, it can provide GJJM with a sense of belonging, continuity and security (from an attachment perspective). GJJM will have responsive carers who support him to develop life skills to manage his anxiety and emotional responding. A stable placement can ensure GJJM will have ongoing love and support (from an emotional perspective). GJJM will have the opportunity to interact with other individuals in a similar social standing and to develop long-term "prosocial" relationships (from a social perspective). GJJM can and does identify DOS and CMS as his parents in social relationships. 3. The contact between GJJM and GSM does not appear to provide a positive emotional, or developmental, function for GJJM. The converse appears to apply, as GJJM is reportedly "significantly retraumatised by each contact". 4. GJJM and GSM do not appear to have an "attachment relationship". 5. Dr Neveling is not "aware of any information that documents physical risks to [GJJM] posed by [GSM] in a supervised contact setting". However, information provided by GJJM's carers, and GJJM, "strongly suggests that the primary risk to the safety of [GJJM] is emotional distress, related to negative memories". 6. GSM appears to have a reasonable understanding of the limits of his relationship with GJJM. 7. In Dr Neveling's opinion, face-to-face contact between GSM and GJJM should not resume at this point. 8. If GSM wishes to make an ongoing contribution to the life history of GJJM at this time, he could provide letters, photographs and gifts that could be held in safekeeping for GJJM until GJJM is ready to access this information. 9. Ongoing contact between GJJM and his siblings and maternal grandmother JB (with whom the siblings live) should be encouraged and supported. Dr Nevelling has some concerns that the contact schedule of sibling visits (as it was at that time) is inadequate to meet GJJM's need to see his siblings. 10. In respect of any future re-introduction of contact (should the Court determine that GJJM will have contact with GSM, or if GJJM asks to re-establish contact with GSM), the following should be taken into account: GSM is to continue to receive updates and information about GJJM (unless GJJM requests specifically that this does not take place); GSM provides information about his family and himself to each of CMS and DOS for safe-keeping for GJJM; any contact is to resume at GJJM's pace and essentially at his request; CMS and DOS should make stored information about GSM and his family (if any) available to GSM to peruse; contact should commence with contact that is not face-to-face (for example, by telephone call, photographs, gifts, letters, Skype or email). 11. Face-to-face contact between GJJM and GSM should be reintroduced at a sibling visit to provide a greater sense of safety for GJJM, and a less intense interaction for GSM.
As is set out below, it is anticipated that the registration of the amended Adoption Plan, which was provided to GSM prior to these reasons being prepared, will go some way to alleviating the concerns of GSM. His concerns appear to have been alleviated and he has now signed the amended Adoption Plan.

[12]

The Adoption Plans

Section 46 of the Act, relevantly, provides: "46 What is an adoption plan? (1) An 'adoption plan' is a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to: (a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following: (i) the child's medical background or condition, (ii) the child's development and important events in the child's life, (iii) the means and nature of contact between the parties and the child, and (b) any other matter relating to the adoption of the child. … (2) Without limiting the matters for which an adoption plan may make provision: (a) it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and (b) it may provide for the giving of certain financial and other assistance as referred to in section 201. (2A) A birth parent who has not consented to the adoption of a child (a 'non-consenting birth parent') is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child. (2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child. ..."
It has been said that "a significant element in meeting the identity needs of a child who does not reside with his or her birth family is birth parent contact": Adoption of NG (No 2) [2014] NSWSC 680, per Brereton J (as his Honour then was), at [59].
Ms Berry's affidavit of 25 September 2018, states: "242. The proposed adoptive parents and I as the Principal Officer Barnardos have agreed to an Adoption Plan in respect of the mother and [MBD], and also a Paternal Adoption Plan in respect of [GSM] for [GJJM]. The signed original Adoption Plans are at pages 380 to 388 of Exhibit DKB-1. 243. The Adoption Plan makes provision for contact between the children, their siblings and each of their birth parents, as well as setting out a plan to maintain the children's identity. 244. The Adoption Plan makes provision for future contact between the children and each of their birth parents to occur a minimum of 3 times per year for a minimum period of 2 hours each visit. 245. The Adoption Plan also makes provision for face-to-face contact between the children and their maternal siblings to occur a minimum of 6 times per year as well as Skype calls in between visits. 246. The Adoption Plan also makes provision for future face-to-face contact between [IHD] and her paternal half siblings in the future at the discretion of the proposed adoptive parents and the carers of the paternal half siblings. 247. The proposed adoptive parents have agreed to provide the birth parents with information and updates about [GJJM] and [IHD] during contact visits, as well as providing photographs of the children to the birth parents on significant occasions, or at any other time in accordance with the children's wishes. The proposed adoptive parents have also agreed to facilitate future telephone contact and contact via electronic means between GJJM, IHD, the siblings and the birth parents in accordance with the children's wishes. 248. On 18 August 2017, Ms Walker advised the mother that an Adoption Plan would be prepared setting out future birth family contact arrangements. She also advised that she would have a right to have these arrangements reviews by the Supreme Court if the proposed adoptive parents did not adhere to the plan. ... 249. I say that the contact proposed in the Adoption Plans are proper in the circumstances as it allows the current arrangements to remain in place, while providing sufficient flexibility for adjustment as the children grow older and their needs change. 250. The cultural provisions of the Adoptions Plans are proper in the circumstances as they provide for GSM to be provided with information in relation to his Croatian heritage. 251. The identify and cultural provisions of the Adoptions Plans in relation to IHD are proper in the circumstances where the proposed adoptive family and birth family share a similar cultural background; I am of the view that the cultural provisions are sufficient."
(Of course, the Paternal Adoption Plan in respect of GJJM has been amended since Ms Berry's affidavit was written. The amended Paternal Adoption Plan makes specific, and practical, reference, to the way any future contact between GSM and GJJM should be initiated, and, expressly, notes the perspective of GSM, and the assurances of CMS and DOS, in relation to the recommencement of future contact.)
Since the completion of Dr Neveling's report, and the subsequent finalisation of the amended Paternal Adoption Plan, GSM, CMS, DOS, and Ms Berry have signed the amended Adoption Plan. I am satisfied it fulfils the needs of GJJM.
I am satisfied that each of KAD and MBD, being a birth parent who has not consented to the adoption of their respective child/children, has been given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child/children.
Where a birth parent does not consent to the adoption of the child, under s 46(2A), the birth parent must "as far as possible" be "given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child".
I am satisfied that the opportunity has been given to GSM in this case and he has now chosen to sign the amended Paternal Adoption Plan and is a party to it.
Section 90(1)(h) of the Act requires, in the case of a child (other than an Aboriginal or Torres Strait Islander child) that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption.
Section 90(2) of the Act provides that the Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances. Thus, it is necessary to consider this aspect also.
As I have earlier indicated, I am satisfied that the amended Paternal Adoption Plan, which has been signed and agreed to by GSM, CMS, DOS and Ms Berry, is in the best interests of GJJM. The amended Adoption Paternal Plan also appears to have specifically taken into account some of Dr Neveling's recommendations in respect of any future recommencement of contact, and notes the current wishes of GJJM. It also considers the perspective of GSM.
The parties seek registration of the amended paternal Adoption Plan in respect of GSM. Section 50 of the Act sets out the circumstances where an adoption plan can be registered.
Having reviewed the Adoption Plans in respect of KAD and MBD, and the amended Paternal Adoption Plan in respect of GSM that is sought to be registered, I am satisfied that each is appropriate and proper in the circumstances. Each broadly reflects contact arrangements which have been in place for some time, and in the case of GSM, makes provision for steps towards re-commencing contact with GJJM. Each provides for contact at a frequency that has been working, or appears otherwise suitable. Each allows flexibility in timing of contact, and also allows for future telephone contact and contact by electronic communication. Each specifies a minimum level of contact that is, in all the circumstances reasonable; and importantly, provides for continued, or the opportunity for, contact between GJJM and IHD and their various siblings, and siblings of the half blood.
Each Adoption Plan also may be adapted to the needs of each of the children as he, and she, respectively grows. As Brereton J has pointed out, "adoption plans are not set in stone, and a birth parent retains the ability to apply to the court for contact, or for a variation of the adoption plan, if that becomes necessary in the future": Adoption of KH, at [43].
Each of the Adoption Plan and the amended Paternal Adoption Plan, respectively, should be registered as I am satisfied that it is in the best interests of each child and is proper in the circumstances.

[14]

The Legal Framework Regarding Adoption - Statutory Framework and Principles

I shall not repeat what I wrote in Re the Adoption of CCS and FLS [2019] NSWSC 71. I have set out the statutory framework and principles in relation to adoption in some detail in that case.
I shall not deal in this part with the parts of the Act to which reference has already been made.
Section 32(1) of the Act requires the Court, when making an adoption decision, to also take into account, amongst other things, the culture, language and religion of the child and the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved.
Section 52 of the Act relevantly provides that the Court must not make an adoption order in relation to a child who is less than 18 years of age unless consent has been given by each parent of the child, and any person who has parental responsibility for the child. However, s 54 of the Act provides that consent is not required under s 52 if, relevantly, the requirement for the consent has been dispensed with by the Court: s 54(1)(a) of the Act.
There is no signed "instrument of consent" from either any of each child's birth parents (s 61 of the Act). Section 66 provides: "A requirement for the consent of a child or any other person to the child's adoption under this Act can be dispensed with if the Court makes an order under this Division dispensing with the requirement (a consent dispense order)."
In certain circumstances, the Court can make a consent dispense order, dispensing with the requirement for consent to an adoption. Relevantly, s 67 of the Act confers a power on the Court to make a consent dispense order in relation to the requirement for consent by a parent if the Court is satisfied of certain matters.
White J (as his Honour then was) explained in Re K & The Adoption Act 2000 [2005] NSWSC 858, at [21]: "Before consent can be dispensed with under s 67, it is necessary, but it is not sufficient, that the Court is satisfied that dispensation of consent is in the best interests of the child. In order to dispense with the consent, one of the paragraphs in subs 67(1) must be satisfied."
With respect to dispensing with the consent of the birth parents, in this case, s 67(1)(d) is relied upon. It provides that: "(d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised carers for the child: (i) the child has established a stable relationship with those carers, and (ii) the adoption of the child by those carers will promote the child's welfare, and (iii) in the case of an Aboriginal child, alternatives to placement for adoption have been considered in accordance with section 36"
The dictionary to the Act defines "authorised carer" as including any person who has care and responsibility for a child under out-of-home care arrangements made under the Care Act.
Section 67(2) further provides that the Court must not make a consent dispense order unless satisfied that to do so is in the best interests of the child (or children).
In Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, Slattery J, at [72], wrote: "Consent dispense orders have also been made: where a birth parent does not seek to appear at a hearing, although the parent is clearly aware of the proceedings and chooses to play no part; where the views of the birth parent have changed throughout the adoption process; and where the parents are ambivalent about giving consent: cf Director General Department of Human Services; Re M [2011] NSWSC 369."
In Re Adoption of RCC [2015] NSWSC 813, Brereton J made the following remarks with respect to the history of, and rationale for, s 67(1)(d): " … Dispensing with consent is a grave step, not lightly to be taken. The law permits the consent of birth parents to be dispensed with only in limited cases. Prior to 2006, they were limited to cases in which the birth parent was unable to be identified or found, or there was serious cause for concern for the child's welfare. In 2006, the ground provided by s 67(1)(d) was introduced, permitting consent to be dispensed with where a child has been in the long-term care of authorised carers and has established a stable relationship with them, and the interests and welfare of the child would be promoted by adoption by those carers. This was explained, in the second reading speech (Hansard, Legislative Council, 25 October 2006), as enabling consent to be dispensed with where adoption would enhance a child's sense of belonging and permanence in the carers' family notwithstanding that there is no concern about the child's current welfare (as distinct from the child's welfare at the beginning of the placement). As the Court of Appeal observed in Re Sarah [2013] NSWCA 379, [68] - endorsing what Slattery J had said in Director General Department of Family and Community Services; Re Stephen [2011] NSWSC 1521, [59] - the focus of s 67(1)(d) is not the capacity or quality of the parent or person with parental responsibility, but the child's present situation. Essentially, this reflects a policy decision that once a child has, by judicial decision, been removed from his or parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the court is satisfied that the interests of the child will be best served by adoption. Because one of the conditions for dispensing with consent under this power is satisfaction that it is in the best interests of the child to make a consent dispense order, this is necessarily interwoven with consideration of whether adoption is clearly preferable to any other action that could be taken by law in relation to the care of the child."
The relevant circumstances in this case, in which the consent of KAD, GSM and MBD can be dispensed with, are limited by s 67(1)(d) of the Act. Section 67(1)(d) provides that the Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption, if an application has been made to the Court for the adoption of the child by one, or more, persons, who are authorised carers for the child, that the child has established a stable relationship with those carers, and the adoption of the child by those carers will promote the child's welfare.
Section 70(1)(b) of the Act permits the Court to make a consent dispense order in conjunction with an adoption order.
The Court must not make an adoption order in relation to a child unless the Court is satisfied of a number of matters. Section 90 of the Act relevantly provides: "(1) The Court must not make an adoption order in relation to a child unless the Court is satisfied: (a) that the best interests of the child will be promoted by the adoption, and (b) that, as far as practicable and having regard to the age and understanding of the child, the wishes and feelings of the child have been ascertained and due consideration given to them, and (c) if the prospective adoptive parent or parents are persons other than a step parent or relative of the child-that the prospective adoptive parent or parents have been selected in accordance with this Act, and (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and... ... (h) in the case of a child (other than an Aboriginal or Torres Strait Islander child)--that the culture, any disability, language and religion of the child and, as far as possible, that the child's given names, identity, language and cultural and religious ties have been taken into account in the making of any adoption plan in relation to the adoption. (2) The Court may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements proposed in the plan are in the child's best interests and are proper in the circumstances. (3) The Court may not make an adoption order unless it considers that the making of the order would be clearly preferable in the best interests of the child than any other action that could be taken by law in relation to the care of the child."
As has recently been written by Sackar J, the Adoptions List Judge, in Adoption of BL [2018] NSWSC 391, at [12]-[16]: "Section 90 also requires the Court take into account a large number of factors including the relationship the child has with his or her parents and siblings, the attitude of each of the proposed adoptive parents, the nature of that relationship and their suitability. The expression "clearly preferable" to which I have previously referred requires something more than a slight preponderance of consideration in favour of adoption over the alternatives. It does not require satisfaction beyond reasonable doubt however the word "clearly" serves to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision. In requiring as the Act does to place paramount importance on the best interests of the child a balance needs to be struck. There is a need to protect the child from physical or psychological harm and in so doing consider his or her physical, emotional and educational needs. When considering the birth parents clearly their wishes are important as is the nature of the child's relationship with them. Their parenting capacity and their attitude to the child and to the responsibilities of their parenthood are of course vital. As far as the proposed adoptive parents are concerned their suitability and capacity to provide for the child's needs, their attitude to the child and to the responsibilities of parenthood and the nature and quality of the child's relationship with them is also vital. There are of course theoretically a number of possibilities. Adoption to one side, parental responsibility can be allocated in favour of a person or persons. The present status quo could theoretically be maintained and BL kept in care. That would leave open the possibility of an application to restore the child to the care of the birth parents, or one of them, should they not be together at the time the application is made. Theoretically the question of adoption could be deferred until the child is older when for example his or her wishes may be of greater relevance."
On the making of an adoption order, the existing parental responsibility for the adopted child (including the Minister's parental responsibility under the Care Act) ceases to have effect: s 96(1)(a) of the Act.
There is one other matter to which I should refer. It was repeated by Robb J in Adoption of IEK at [159]: "…neither the birth parents nor the proposed adoptive parent have any competing rights in respect of the future parentage of the child to which the Court will give effect. So far as the proposed adoptive parent is concerned, s 8(1)(c) expressly provides that "no adult has a right to adopt the child". So far as the birth parents are concerned, the following words of Hodgson JA in D v Director-General Department of Community Services [2005] NSWCA 474; (2005) 34 Fam LR 445 are pertinent: [60] D has strongly expressed to Dr Newman her view that the removal of her child is a violation of her rights as a parent. That view is understandable, but it is not a view that this Court can accept. D's rights as a parent in this context are those recognised by the Adoption Act, and are most relevantly those associated with questions of consent and taking account of her wishes, all of which must be dealt with in accordance with the provisions of the Act and in accordance with the policy of the Act that the best interests of the child are the paramount consideration."

[15]

Determination

At the outset, I remember "the grave responsibility" which the application places on the judge hearing an adoption application, that "the natural ties between [parent] and child[ren] ought not to be lightly broken" and to the need for "powerful reasons ... [to] be shown before a court can properly deem it just and reasonable, notwithstanding a [parent's] objection, to sever the relationship between her child and herself and make the child for most purposes of the law ... the child of other persons": Mace v Murray (1955) 92 CLR 370; [1955] HCA 2, at 380;.
In the circumstances, restoration is clearly to be assessed as at the date of the hearing, according to the paramount consideration of what is in the best interests of the children, GJJM and IHD. It is my view that there is no realistic possibility of restoration of GJJM and IHD respectively to his and her birth parents, on the facts.
Even though restoration of GJJM and IHD to KAD, or MBD (in respect of IHD) and GSM (in respect of GJJM) is not, in the present case, an option, it does not automatically follow that there should be an adoption order made in respect of each of the children. Rather, the Court must be satisfied that this proposed course is truly in the best interests of GJJM and IHD, and must be satisfied that the making of such an order is clearly preferable to any other: s 90(1)(a) and s 90(3) of the Act.
Ms Walker and Ms D K Berry have each provided an opinion that an adoption order would be in the best interests of GJJM and IHD. Their evidence, prima facie, indicates that adoption would be preferable, without the stigma and uncertainty attached with the maintenance of the status quo, in which CMS and DOS would continue to care for GJJM and IHD, but be faced with a potential application for restoration sometime in the future.
From what I have read about each of CMS and DOS, they appear to be compassionate and loving, and perfectly capable of parenting GJJM and IHD, and caring for each child financially and emotionally. In particular, they seem to be proactive in supporting GJJM's emotional and behavioural issues. Each of GJJM and IHD has been in the care of CMS and DOS for some years, since they were 5 years old and 9 months old, respectively. This is also extremely relevant in assessing the bond GJJM and IHD have with CMS and DOS.
In addition, for the purposes of s 90(1)(b) of the Act, there is evidence to indicate GJJM has expressed he wants to be a part of the proposed adoptive parents' family. Each of GJJM and IHD call CMS and DOS "Mummy" and "Daddy".
For the purposes of s 90(1)(c) of the Act, each of CMS and DOS is an authorised carer selected in accordance with the requirements of the Act.
I have already set out my reasons that the arrangements proposed in the Adoption Plans are in the best interests of each child, and are proper in the circumstances: s 90(2) of the Act.
I shall mention the other options briefly. I have considered a parental responsibility order in favour of GJJM and IHD, without adoption; leaving in place the status quo, with the Minister continuing to have parental responsibility and GJJM and IHD remaining in the care of CMS and DOS; and, at least theoretically, deferring making a decision about adoption.
A parental responsibility order in favour of CMS and DOS would have some, but not all, of the benefits of adoption. In particular, such an order would alleviate the requirement for the intervention of the Department in significant decisions about GJJM and IHD. However, such an arrangement would last only until GJJM and IHD attains 18 years of age, and, importantly, it would not confer the benefits of adoption, namely, permanence, security, stability, and lifetime membership in the adoptive family.
Additionally, a parental responsibility order can be varied (although, usually, a significant change of circumstances is required for this to occur), and while such an order gives a carer the rights and responsibilities of parenthood, it does not sever the legal relationship between the child and their birth parents. Conversely, an adoption order is permanent, which will provide a significant source of continuity throughout the lifetime of GJJM and IHD.
Another option I have considered is to maintain the status quo, which would involve GJJM and IHD continuing to reside with CMS and DOS as their carers, while remaining under the parental responsibility of the Minister. GJJM and IHD would continue to be in "out-of-home" care, with the consequence that departmental approval would be required for significant decisions concerning their care and welfare until each attains 18 years of age. I do not think that taking this course is in the best interests of GJJM and IHD.
Further, I consider that to defer the final determination of the adoption application until GJJM and IHD is older would not benefit him or her, the birth parents or CMS and DOS. Any emotional anguish, stress and uncertainty, for all parties, would simply continue until such time the matter was determined. Furthermore, to take this course would be inconsistent with s 8(1)(e1) of the Act, namely the principle that "undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child's welfare".
In Re the Adoption of AJH, at [310], I wrote that it was necessary to consider the option of an order for parental responsibility being made in favour of the proposed adoptive parents, even though they did not consent to such order being made in their favour. In the present case, neither has offered, or consented to, take parental responsibility for GJJM and IHD. Such an order would not be inherently permanent, and would be subject to rescission or variation by this Court at any time. It is not a realistic alternative.
In her report, Dr Neveling noted there were advantages and disadvantages to each of the options available to the Court in respect of the legal status, and care, of children in out-of-home care. In respect of adoption, and specific to GJJM, Dr Neveling opined that advantages for GJJM included having a safe home for life and the opportunity to be raised as part of a family without frequent interruptions from child protection services; a sense of "legal belonging", and that restoration to his birth parents was not being considered, and adoption would give GJJM a family, and extended family, with whom to identify. Dr Neveling also identified disadvantages to the proposed adoption of GJJM. These included that his legal relationship with his older siblings will be changed; all future contact arrangements will be elft to CMS and DOS and it will be difficult to ensure contact continues in the long term; and that both GSM and GJJM's maternal grandmother expressed concern about the nature of their relationships with CMS and her motivation to continue facilitating contact.
Courts have long recognised that "a clear sense of identity is an important life foundation for children and this is particularly so against an early background of ambiguity or instability. It is also well recognised that anxiety and uncertainty on the part of the child and the carers due to the impermanence of their position and the lack of certainty can or in some cases can be a very stressful situation. It is also stressful, where relevant for the birth parents": Adoption of BL, per Sackar J, at [17].
It is also useful, at this point to refer, briefly, to what was written by Dr Nicola Ross and Professor Judy Cashmore: "Adoption Reforms New South Wales style: A comparative look" (2016) 30 Australian Journal of Family Law 51, at [53]-[55], in relation to recent reforms in New South Wales: "In New South Wales, the adoption of children from out-of-home care is regulated under two statutes. If the Children's Court makes a finding under the Children and Young Persons (Care and Protection) Act 1998 (NSW) that there is no reasonable possibility of restoration (RPOR) of the child to their parents, then the court must determine an appropriate placement, which may include adoption. Potential adoptive parents, including authorised carers, must then make an application to adopt a child under the Adoption Act 2000 (NSW) (the Act). Applications for adoption in the Supreme Court can take some time to be finalised, particularly where parents do not consent to the adoption. Recent reforms of the legislation in New South Wales indicate a shift in emphasis in government policy and a preference for adoption over long-term foster care for children under the parental responsibility of the Minister. The aim of these reforms is to strengthen permanency planning practice to ensure stable permanent homes for children. For children who cannot be returned home safely to their parent/s, the first option to be considered is a long-term guardianship arrangement with other family members or suitable persons in kinship or relative care. The next option to be considered is adoption by non-relatives and other carers, with parental responsibility to the Minister until a child turns 18 (generally meaning foster care with unknown persons) as the 'last resort'. A key rationale for these changes was the stated need for children who cannot live safely at home to have 'a long-term, safe, nurturing, stable and secure placement', with timely decision-making."
(There are some earlier articles referred to in the evidence but these are articles written in 2000 and 2002 respectively.)
On the evidence, I am of the view that adoption is clearly in the best interests of GJJM and IHD now, and in the future, and that it is the clearly preferable course to take above all others that I have mentioned. CMS and DOS have provided each of GJJM and IHD with a loving and supportive relationship for a significant portion of their lives, and they have shared a stable relationship with each other for some years. It is my view that adoption will enhance the sense of belonging and permanence of GJJM and IHD in relation to CMS and DOS and the adoptive family, and that such an order will promote the welfare of GJJM and IHD. This is particularly so, given the struggles GJJM has faced, and faces, arising from the instability and multiple placements in his earlier years.
Furthermore, the making of an adoption order in relation to both children will have the added advantage of the siblings growing up together in the same family, which, in principle, would be strongly in both of their interests.
The making of the adoption order, in relation to each child, that is sought, in my view, will clearly satisfy the objective of providing for his, and her, safety, welfare and well-being by providing each with a long-term, safe, nurturing, stable and secure environment through a permanent placement, which, after all, is what is ultimately sought to be achieved in providing the necessary long-term care for these children.
Section 70(1)(b) of the Act permits the Court to make a consent dispense order in conjunction with an adoption order. Notice of the intention to apply for an order dispensing with consent is required: s 72(1)). Such notice has been provided to each of KAD, MBD and GSM within the relevant time period.
Each of GJJM and IHD was placed with DOS and CMS on 14 January 2016 and has lived with them, continuously, since that time. KAD, GSM and MBD have had contact with GJJM and IHD since their removal, but have not held the position of parental responsibility. Although the parental responsibility is formally held by the Secretary, it has been practically exercised by CMS and DOS.
As I have stated, CMS and DOS are authorised carers for the purposes of the Act. Further, there is evidence that GJJM and IHD have established a stable relationship with them. Accordingly, it is appropriate, and in the best interests of GJJM and IHD to dispense with the consent of the birth parents, and it is desirable to make a consent dispense order, notice of the application having been given to each of KAD, GSM and MBD at least 14 days prior to the order being made: s 72(1) of the Act.
In this case, the Court will also make the consent dispense order in respect of each of KAD, MBD and GSM. KAD and MBD have not appeared at any time throughout the proceedings. In my view, they have chosen to play no part in the proceedings. MBD has left it to the Court to consider what is in the best interests of GJJM who has been in the long-term care of authorised carers and has established a stable relationship with them. As stated, I have formed the view that the best interests and welfare of GJJM would be promoted by adoption by those carers.
Section 101(1)(b) of the Act provides that on the making of an adoption order, a child under 18 years of age is to have "as his or her surname and given name or names such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents".
Under s 101(2) of the Act, before changing the surname or given name or names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's wishes.
The name change that is proposed for each of GJJM and IHD involves a change of their surnames, from that of GSM, and MBD, respectively, to that of DOS and CMS. The change of surname will avoid GJJM and IHD being questioned and reminded of their adoption as they grow older, and will contribute to their sense of belonging and identity as a member of CMS and DOS's family.
CMS and DOS have agreed to retain the family name of each child's birth father in their given names, which will continue their connection to their paternal families. Such a connection to their biological heritage may be of some importance to the children as they grow older. The retention of GJJM and IHD's first names, "GJJM" and "IH" respectively, will provide a similar connection to KAD, who, presumably, participated in choosing those names for the children.
Before concluding, I should mention that the Court has remembered that the views, ultimately, expressed by GSM, and through his legal representatives, could not have been reached lightly. It is clear to the Court, that in expressing the views that he has considered the best interests of his son, GJJM, and has placed those interests at the forefront of his considerations as to the approach to be taken in the conduct of the proceedings. For that, he is to be commended.
In this regard, I again express the Court's gratitude to the legal representatives in the proceedings, who must have provided the legal, and other advice to GSM to enable him to come to the views that he expressed. Undoubtedly, that advice has saved him a significant amount of anguish as well as the stress involved in the conduct of a contested adoption hearing.
In the circumstances, and using the initials used in these reasons, but noting that in the orders, as entered, the full names of the relevant parties will have been included, the Court: 1. Orders pursuant to the Act, s 67(1)(d), that the consent of the children's birth mother, KAD, be dispensed with. 2. Orders pursuant to the Act, s 67(1)(d), that the consent of the child GJJM's birth father, GSM, be dispensed with. 3. Orders pursuant to the Act, s 67(1)(d), that the consent of the child IHD's birth father, MBD, be dispensed with. 4. Orders pursuant to the Act, s 50(1) and s 50(3), the amended Paternal Adoption Plan signed by the proposed adoptive parents on 19 November 2019, a delegate of the Secretary on 20 November 2019, and GSM on 26 November 2019 (being Ex. GSM-1), be registered. 5. Makes an order for the adoption of GJJM in favour of the adopting parents CMS and DOS and approves the name "S" as the surname and "GJJM" as the given names of the child GJJM. 6. Makes an order for the adoption of IHD in favour of the adopting parents CMS and DOS and approves the name "S" as the surname and "IHD" as the given names of the child IHD.