Robb v Director General Department of Community Services

1 At the conclusion of the hearing of this matter I announced the decision to which I had come in order to save the Applicants and their family any further stress and anxiety during the time it took to prepare my reasons for judgment. I said that I would make the orders for adoption as sought and I would publish my reasons as soon as practicable. These are those reasons. 2 This is an application for the adoption of twin girls by their natural grandparents. The respondent, the Director-General of the NSW Department of Community Services ("the Director-General") opposes the application because of the Department's policy against adoptions by the relatives of children, or 'intra-familial' adoptions, unless it would be in the best interests of the child and preferable to any other action which could be taken. 3 The Adoption Act 2000 (NSW) had not commenced at the date of filing of the application. Accordingly, this matter is dealt with under the provisions of the Adoption of Children Act 1965 (NSW). Section 17 of that Act provides that in an adoption application the welfare and interests of the child are the paramount consideration.

4 The Applicants are a married couple, the husband born in 1947 and now aged 55, the wife born in 1952, now aged 51. There are three children of the marriage: a daughter born in 1973, who is the natural mother of the twin girls, and two sons born in 1974 and 1975. The twins were born in 1989, when their mother was 15 years of age. The girls are now 14. 5 The twins have lived with and been raised by the Applicants since they were three months of age. Their natural mother moved out of the Applicants' house when the twins were four years old and visits occasionally. Their sons still live at home. The twins have at all times been raised as the daughters of the Applicants, and as the little sisters of their natural mother and uncles. A small circle of family and acquaintances knows the truth about the twins' parentage, but within the family and to the wider world they have always been treated as the daughters of the Applicants. 6 The natural mother has had another child by a subsequent relationship, a boy now seven years old. She is separated from the boy's father, who has custody of the child. Access between herself and the child is arranged on a fortnightly basis, and occurs at the Applicants' home and under their supervision. Thus, the twins have regular visits from their natural half-brother, but have always regarded him as their nephew, and the Applicants as his grandparents. 7 The identity of the natural father of the twins has been a matter of some conflicting evidence, although their natural mother gave evidence in the witness box that he could really only be a particular named person. This man, who was a young teenager at the time that the twins were born, has had no involvement with them from their birth, has shown no interest whatsoever in their upbringing, and is now married and has children from that marriage. He has been advised of these proceedings by a letter from the Director-General, and was not present during the hearing. In these circumstances I consider it appropriate to dispense with his consent pursuant to s.32(1)(c) and (d) of the Act. 8 The natural mother has had problems with drug abuse, although she has been trouble-free in that regard for at least eight months up to the hearing date. The mother's drug problem has caused significant stress for the family in the past and her visits to the home have often resulted in angry and violent behaviour on her part. Nevertheless, during this time she has always been welcome in the family home, and a bed and meals have always been available to her. Until recently, the twins have had what could be described as a lukewarm relationship with their natural mother, although that relationship has improved greatly in the time that she has been drug free. Evidence was given of a recent overnight visit to their natural mother's house, which both the girls enjoyed. 9 The girls' natural mother has never evinced any intention to take full parental responsibility for the girls herself. She has experienced difficulties in raising her son, who now permanently resides with his father. Her fervent wish, expressed in compelling evidence given in the witness box, is that the girls have the legal status of children of her own parents, and have their psychological relationship as her sisters confirmed in law.

10 The Applicants informed the twins of the true nature of their relationship with their natural mother when they were 11, going on 12. The Applicants believed that this was the best time to tell them, as they had six weeks holiday between the end of primary school and the beginning of high school to come to terms with the information and to ask whatever questions they wished. Despite some initial shock, the girls absorbed the information well and, from all reports, it appears that they have suffered no emotional or psychological disturbance. They have not shown any desire to contact their birth father, although the Applicants have indicated that they will support them in future should they wish to do so. The girls continue to refer to their mother as their sister, that is, by her first name, and to the Applicants as "Mummy and Daddy". 11 The girls themselves, from the reports of the social workers who interviewed them for this application, are emotionally well-adjusted, confident and happy children. They engage in a wide variety of extra-curricular activities with the full support of their family, and are achieving excellent results at school. They show no signs of any of the behavioural and social problems which have troubled their natural mother. It seems clear that the Applicants have been able to provide amply for the girls emotionally and materially, and have raised them as part of a close-knit, loving family unit. All members of this family, including the girls themselves, support this application. 12 The Applicants had always intended to adopt the girls at some stage, and have decided that now is the appropriate time given the age of the girls, their knowledge and acceptance of their birth status and their stage in school. Whether this application succeeds or fails the girls will remain living with the Applicants. The question for the Court in this application is whether it is in the best interests of the girls that the Applicants should have an adoption order, as opposed to some lower form of custodial right.

13 The general rule is that an adoption order should not be made in favour of grandparents while the mother is still alive unless the circumstances are exceptional. This rule has two principal justifications. First, it is said that an adopted person is likely to suffer significant psychological and emotional harm arising from generational confusion, amounting to a crisis of identity, if his or her true parentage is concealed and then discovered by the child later in life. Even if this knowledge is always kept from the child, it is said that he or she can suffer confusion or distress from a perception of discriminatory treatment by relatives or friends who are aware of the child's true status, or from the perception that an air of secrecy and deception is being maintained within the family regarding the child's origins. In In re D.X. (An Infant) [1949] Ch 320, at 321, Vaisey J said: "The ostensible relationship of sisters between those who are in fact mother and child is unnatural and its creation might sow the seeds of grievous unhappiness for them both, and, indeed, for the adopters themselves." 14 This passage was accepted as a statement of the general principle in NSW in In re X (An Infant) (1964) 81 WN(NSW) 335, and has been followed in Robb v Director General Department of Community Services (unrep.) [1999] NSWSC 754, per Young J (as he then was). 15 The second significant justification for the general rule is that an intra-familial adoption has the potential to cut the natural ties of mother and child by legally excluding the mother from the child's life. In Re DX (at 321) Vaisey J said thus: "Normally, an adoption presupposes a complete and final separation between the child and its natural parents. The child looks thenceforth to the adopters as its parents, and the natural parents, relinquishing all their parental rights and duties, step as it were for ever out of the picture of the child's life."

This statement has also been followed in NSW in the above cases.

16 Recently the NSW Law Reform Commission reviewed the Adoption of Children Act 1965 prior to the enactment of its successor, the Adoption Act 2000 . In the section of the report dealing with adoptions by relatives, the Commission concluded that an adoption of this kind should not be granted unless a guardianship order would not otherwise serve the needs of the parties. In addition to the principle noted above, the report stated that the dismay of the natural mother at the alteration of the birth certificate and the removal of a generation from family history were of particular concern where a formal adoption order is made. Although this part of the report led to s.29 of the new Act, which does not apply to this case, I consider it proper to have regard to the report as providing a useful guide to the effect of intra-familial adoptions on the welfare of children. 17 It should be noted, however, that the general rule to which I have referred is not applied in New Zealand. There, in the case of Re T (An Adoption) [1995] 3 NZLR 373, the High Court held that there is no general policy against intra-familial adoptions and that such a policy should not be read into the judgment of Vaisey J in Re DX as it would not "reflect current present day attitudes in New Zealand, particularly in some sections of the community" . In that case, the applicants were a Samoan couple seeking to formally adopt their grandchild whom, by agreement with the child's mother, they had raised from birth. Such a practice is common among Samoan and Maori families, and the generational difference was already acknowledged by all concerned.

18 What, then, are the circumstances which require an intra-familial adoption order to be made? Waddell J made such an order in two cases, Adoption of Children Act: A An Infant (unrep.) (NSWSC) 1 May 1978, and Re Adoption of Children Act (1979) 5 Fam LN No 15. Both of these cases involved the adoption of a child by its natural grandparents. The factors in those cases, which were held to take them out of the general rule, were that:

• parental ties had formed only with the grandparents;

• no maternal tie had formed with the natural mother at all, and there had been no attempt by her to create one and there was no desire for her to do so in the future;

• the child had already accepted its position within the family as the child of the grandparents; and

• it was the wish of the family for the order to be made. 19 In Re the Application of M (unrep.) [1999] NSWSC 497, Bryson J observed that, having regard to all the potentially adverse consequences that arise from making an intra-familial adoption order, what the Court must ultimately do is balance those adverse consequences against the benefits that would flow to the child, having regard always to the child's best interests.

20 In this case, unlike many other cases of intra-familial adoption perhaps, there is no risk of distress to the adopted child caused by the concealment and later discovery that the child's biological relationships are at variance with the child's psychological relationships. As I have noted above, the girls have already been aware of their biological parentage for some years and, according to the reports, they have adapted extremely well to the information. Their understanding is that their natural mother was incapable of caring for them when they were born, and that the Applicants became their mother and father. They have been left free to explore their relationship with their natural father if they so choose, but it is something in which neither of them has shown an interest so far. As they stated to the Department's social worker, as far as they are concerned they already have a father, the male Applicant. 21 Concerns over a blurring of generational understandings, or the loss of a generation from family history, also do not seem to be a consideration here. The position of the girls within the family structure is accepted by the family and the wider world, and has been so for fourteen years. Their natural mother has another child of her own whom the girls accept as their nephew. The Applicants, at 55 and 51, are by no means so old that it would be regarded as strange for them to be the parents of 14-year-old girls. The psychiatrist consulted by the Applicants for this application, in concluding that the adoption order should be granted, states in her report that: "A formal adoption order … would confirm relationships, which have been in place, virtually since the children were born."

In other words, the granting of an adoption order will confer the status of legal reality on what has been a reality in every other sense for the girls since birth. 22 There is no prevailing atmosphere of secrecy or shame regarding the girls' parentage within the family. The Applicants have been open with the girls about it, while at the same time exercising what I consider to be a commendable level of care in sharing the knowledge with them, and others. This was evident in the judgment exercised by the Applicants in choosing the appropriate time both to tell the girls and to make this application. The Applicants certainly give the impression of valuing family privacy but the number of people outside the family who are aware of the girls' true parentage is not so small as to indicate a concerted effort at secrecy. In any case, the family does not make an issue of the girls' parentage, and there was no evidence that it has affected the way the girls have been treated by any member of the family during their lives. The entire question may be more or less moot now that the girls themselves are aware of their biological status within the family and have no difficulty with the situation. 23 Further, the making of an adoption order will not cut whatever ties the girls have developed with their natural mother. Although those ties have been tenuous at times, I accept that in large measure that was due to the problems the mother was having with drugs. Since she moved out of the Applicants' home some ten years ago her visits had been intermittent and, as said above, she sometimes behaved violently and unpredictably; but I accept that she has never been unwelcome as a family member and the girls have always had contact with her. During this time she was always recognised as a part of the family, as their elder sister, and continues to be so. Since she has been drug-free her relationship with the girls has improved a great deal, and the Applicants have been content for the girls to spend some time with her unsupervised. 24 Significantly, at no stage has she displayed a desire to be a mother to the girls herself. Despite the conviction she displays to remain 'back on track' with her life, a conviction to which she has held for almost a year and which I take seriously, the only wish she has for the girls is that they become the legal children of her own parents. This was a wish she expressed most eloquently and movingly in open court. In any case, the girls are now fourteen and are living quite contentedly with the Applicants. I think it highly unlikely that at this stage any family roles would be upset if an adoption order were made. 25 All of the circumstances identified by Waddell J in the two cases referred to above as justifying an intra-familial adoption order apply here. The girls regard the Applicants as their only parents. No maternal tie has formed with the natural mother at all, there has been no attempt by her to create one, and she has no desire to do so in the future. The girls have clearly accepted their position within the family as the daughters of the Applicants and it is the wish of all the family that the application be made. 26 If the balancing exercise suggested by Bryson J in Re the Application of M is carried out, it becomes clear, in my view, that the factors in favour of the granting of the application far outweigh those counting against it. Indeed, if adoption orders are not made it may be that a positively harmful result will flow in that the twins may in some way perceive that their own view of their position within the family is not shared by the world at large. Their identity over the last fourteen years may in fact be far more confused by the refusal of an adoption order than by the making of one. Taking into account the best interests of the children, I am of the view that this is a case squarely within the category of exceptional circumstances justifying an intra-familial adoption order. Further, I am satisfied that leaving the Applicants with a lesser form of custodial right would be contrary to the best interests of the children.

27 For these reasons, I make the orders for adoption as sought. As I indicated at the conclusion of the hearing, it was proper for the Director-General to oppose the application in order that the Court could, with the benefit of seeing and hearing the witnesses give evidence, determine whether this was an exceptional case in which an adoption order should be made. The Director-General should not, therefore, be penalised in costs for taking that position. Accordingly, there will be no order as to costs; each party will bear his or her or its own costs. - oOo -

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