APPLICATION OF M.J.R. AND M.J.R. - CHILD: K.H.B. [2003] NSWSC 937

New South Wales Supreme Court

CITATION : APPLICATION OF M.J.R. AND M.J.R. - CHILD: K.H.B. [2003] NSWSC 937 HEARING DATE(S) : Application in Chambers JUDGMENT DATE : 20 October 2003

JURISDICTION: EQUITY ADOPTIONS LIST JUDGMENT OF : Bryson J at 1 DECISION : Order approving change of name.

CATCHWORDS : ADOPTION - name of child - overseas adoption - considerations affecting change of name of non-citizen child or child over one year old. LEGISLATION CITED : Adoption Act 2000 Adoption of Children Act 1965 PARTIES : M.J.R. Department of Community Services FILE NUMBER(S) : SC 80052/2003 COUNSEL : M.S. Austin, solicitor - Applicant Director General, Department of Community Services SOLICITORS : Hardings - Plaintiffs

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

BRYSON J.

MONDAY 20 OCTOBER 2003

80052/2003 APPLICATION OF M.J.R AND M.J.R CHILD: K.H.B. JUDGMENT 1 HIS HONOUR: The plaintiffs applied by Summons filed on 4 July 2003 for an order for the adoption of K.H.B. Among other things they asked for "An order that the Court approves that the child have his forenames as X.H.B. and his surname as R." 2 The child was born in Korea on 18 October 2001. His Korean surname is K and his forenames, appearing after the surname in the Korean manner, are H.B. In support of the application the plaintiffs filed an affidavit of a Delegate of the Director General of the Department of Community Services which among other things produced a report on the adoption by a Social Worker. The Social Worker's report and the Delegate's affidavit support, overall quite strongly, the making of an adoption order. The child is an ex-nuptial child who was admitted to a licensed adoption agency in Seoul when surrendered for adoption by his birth mother one day after his birth. On 1 May 2002 the adoption agency in Korea placed him in the care of the plaintiffs, in pursuance of arrangements earlier made with the Department of Community Services. The evidence generally shows strong grounds for making an adoption order, which I earlier decided to do. These observations are directed to what the order is to provide about the child's forenames. The plaintiffs wish the forenames to be X.H.B. in that order. The plaintiffs are Roman Catholic Christians, they attend church regularly, both their children have been baptised and they intend to raise the children in the Roman Catholic religion. They wish the child's first forename to be X, a name which commemorates a Roman Catholic saint of great fame. The child was baptised with the forenames X.H.B. on 25 May 2002. 3 The affidavit of the Delegate expressed opposition and contended that the child should maintain his forenames H.B., which are his Korean forenames and easily recognisable as Korean names, and add X as his new middle name. I asked the solicitor representing the plaintiffs and the Director General to make written submissions on this contention, and I have considered their submissions. 4 Where the Adoption Act 2000 applies, s.101 names of adopted children imposes several tests on the court's decision about a child's given name or names and surname. Subsection 101(5) provides: The Court must not approve a change in the given name or names of a child who is more than one year old, or a non-citizen child, unless there are special reasons, related to the best interests of the child, to do so. 5 The child is a non-citizen child and is more than one year old. The Adoption Act 2000 commenced on 1 February 2003. The Act of 2000 does not apply to this application because of the transitional provisions in Schd.(3) which provides in cl.8: Child placed for Adoption If immediately before the commencement of this clause a child was placed with a view to adoption by a prospective parent or parents, an application to adopt the child by that parent or those parents is to continue to be dealt with under the repealed Adoption Act, despite its repeal. 6 This application is to be decided under the provisions of the Adoption of Children Act 1965. It can be expected that a small number of applications to which the Act of 1965 applies will come before the Court over the next few years as there is often an interval of one or several years between an adoption placement and an application for an order. Section 38 of that Act dealt with names of adopted children. Its provisions bore a general resemblance to provisions now found in s.101, but it did not have a provision corresponding to s.101(5), or a test of special reasons. (In the Act of 1965 the terminology referred to forenames whereas the Act of 2000 refers to given names). Section 17 made the welfare and interest of the child concerned the paramount consideration, and this extends to decision on what should be the child's forenames. 7 Subsection 38(1) said to the effect that the child "… shall have as his or her forename or forenames such name or names as the Court, in the adoption order, approves on the application of the adoptive parent or parents." Although it was for the adopting parents to make an application for approval of forenames, the Court was not bound to accept what they asked. The practice has long been for the Court to accept what the adopting parents propose. However submissions made in this case, and the terms of s.101 of the Act of 2000 show that this will not always be appropriate. A special test relating to children who are more than one year old, or who are non-citizens, reflects a perception that adopted children, including children adopted from overseas, go through change and dislocation and disruption of everything in life that is familiar, and the maintenance of the child's name may have some beneficial influence in this disruption, and in the longer term may have positive influences on the development and strength of the child's sense of identity, in childhood and later. The New South Wales Law Reform Commission's Report 81 Review of the Adoption of Children Act 1965 (NSW) dealt with the maintenance of birth names and pointed to advantages for the child of maintaining the birth name, with a reference to a provision of the United Nations Convention on the Rights of the Child to "… preserve his or her identity, including nationality, name and family relations." 8 These things have revealed perceptions of the interrelation between the welfare and interest of the child concerned and decision on whether the child's forename should be maintained or changed in an overseas adoption which were not earlier available and which the Court did not earlier act upon. Now that this perception is available it is appropriate for the Court to bring it to bear on its consideration of the interest of the child in any application to change the child's forenames, not only under the Adoption Act 2000 where a special statutory test has been prescribed, but also under the Act of 1965. 9 In this case the child was known in Korea by the name H.B. and can have heard only that name, and only speech in the Korean language until he was placed with the adopting parents at a little over the age of six months. He may well have begun to recognise and respond to that name during this period; with fair certainty he heard no other name given to him. On the other hand the adopting parents have used the name X as well as his earlier forenames H.B. since then, for almost 18 months. The adopting parents have contended that use of the name X has assisted in creating their special bonding with the child and that they intended that the use of that name would establish and foster a sense of belonging for the child in the context of his Australian family. The religious reference in the name X, and the context of religious belief and observance in the family assist this. 10 There is an elder adopted child in the family whose forenames are formed in a similar pattern – first a distinctly western forename followed by the child's two original Korean forenames. The parents wish to preserve this pattern while also preserving and encouraging cultural links with Korean culture and the child's birth history, and they see the forenames H.B. as contributing to this. 11 Submissions on behalf of the Director General pointed to the uniform use of the Korean forenames by the Korean Adoption Agency, and in the course of considerations by the Department and the proposed adopting parents leading to the placement; uniformly the child was referred to as K.H.B. before placement. The Department's submission points to the fact that Korean authorities including the Korean Adoption Agency continue to refer to adopted persons, when there is occasion to do so, by those persons' original Korean names. The Department regards the use of Korean forenames as contributing to the child's sense of identity, including identity with and, as a possibility, contact with the birth family. 12 My conclusion is that the interest and welfare of the child are properly served by maintaining the position which the adoptive parents propose in which the child has both a western forename, and also the child's original Korean forenames, in that order. The child's Korean forenames are not lost but are maintained, but the naming practice which has been observed since May 2002 will be continued. A second change in the naming practices in which the child has been involved would be undesirable. In my judgment, and applying the test required by the Act of 1965, I have concluded that I should approve what the adopting parents propose. 13 Consideration of an application under the Act of 2000 would take a somewhat different course, as subs.101(5) prescribes the approach which the Court must take unless there are special reasons; special reasons must be identified and if none can be, the Court is not able to approve a change. I am inclined to think that where a western forename has been given to the child, and the child has for significant period, by which I mean a year or more, come to know an order of given names in which the western given name comes first, that may well constitute special reasons related to the best interest of the child to approve a change in the given names. I have acted on that basis in a case which did not appear to me to be contentious. However this is not a subject which can be generalised; the need is to identify special reasons, and acceptance as a matter of course of changes which adopting parents propose would from now on be altogether inappropriate. Proposed adopting parents should be aware, and adoption agencies will probably make them aware, of the effect of s.101 and of the difficulty created by that section for changes in given names of non-citizen children. 14 In the present case however I have decided to include the order which the adopting parents asked for in the Adoption Order I have made today.