New South Wales Supreme Court CITATION : Director-General, Dept of Community Services v D & Ors [2007] NSWSC 762 HEARING DATE(S) : 4-8 September, 22 September, 16 October and 16 November 2006 JUDGMENT DATE : 13 July 2007 JURISDICTION : Equity Division Adoptions List JUDGMENT OF : Brereton J DECISION : 1. Revoke previous consent dispense order. 2. Dismiss application for consent dispense order. 3. Dismiss application for adoption order. 4. Order pursuant to Adoption Act, s 92, that proposed adoptive parents have parental responsibility for, and custody and care of, child. 5. Order that child have contact with birth mother. 6. Reserve liberty to the parties to apply for further orders in respect of contact, including orders further defining contact. 7. Order that in exercise of their parental responsibility, applicants may change child's surname to their own, provided that they retain her present surname as middle name. CATCHWORDS : FAMILY LAW – Adoption – jurisdiction - whether court can make order allocating parental responsibility when court refuses to make adoption order - consent to adoption – grounds for revocation of a consent dispense order – grounds for making consent dispense order – whether serious cause for concern for welfare of child – trans-racial adoption – where child of African parentage securely attached to white proposed adoptive parents for nearly four years – where birth mother's consent subsequently declared ineffective - undesirability of child being raised apart from natural mother family culture and ethnicity – undesirability of disrupting secure attachments – significance of birth mother's parenting capacity – relevance of birth mother's wishes – whether adoption in best interests of child – whether adoption clearly preferable to all other alternatives - contact – benefits of contact in reducing sense of abandonment and loss of mother and culture – change of name – where no adoption order but proposed adoptive parents to have parental responsibility - relevant considerations (CTH) Family Law Act 1975 ss 4, 60B, 60CC, 61C, 61DA, 64B, 69ZK (CTH) Family Law Reform Act 1995 (CTH) Family Law Regulations 1984 reg 12D, Sch 5 LEGISLATION CITED : (NSW) Adoption of Children Act 1965 ss 7, 8, 24, 32, 52, 67, 71, 84, 86, 90, 92, 101 (NSW) Children and Young Persons (Care and Protection) Act 1998 ss 90 151 (NSW) Commonwealth Powers (Family Law – Children) Act 1986 (NSW) Mental Health Act 1990 (UK) Children Act 1989 ANR and SCR v LJW (Racine's case) (1983) 36 RFL (2d) 1 Application of DoCS, Re C [2004] NSWSC 702 B & R (1995) 19 Fam LR 594 Beach & Stemmler (1979) FLC 90-692 Chapman & Palmer (1978) FLC 90-510; 4 Fam LR 462 D v Director-General, Department of Community Services [2005] NSWCA 474; 34 Fam LR 445 Department of Community Services v D [2004] NSWSC 1241 Ex parte West (1861) 1 Legge 1475 F v Langshaw (1983) 8 Fam LR 833 Flanagan & Handcock (2001) FLC 93-074 George & Radford (1976) FLC 90-060; 1 Fam LR 11,510 Goudge & Goudge (1984) 9 Fam LR 500; (1984) FLC 91-534 Hodak, Newman & Hodak (1993) FLC 92-421 In re B (an infant) [1971] 2 WLR 129, 138; [1970] 3 All ER 1008 In Re G [2006] UKHL 43 Kelley & Kelley (1981) FLC 91-002 Mahoney & McKenzie (1993) FLC 92-408 McL & McL (1989) 15 Fam LR 7; (1991) FLC 92-238 McMillen & Larcombe [1976] NTJ 1001 Mulhall v Hartnell (1988) 12 Fam LR 361 R & R (1985) FLC 91-615 Re an Infant K [1973] 1 NSWLR 311 Re B & the Adoption of Children Act 1965 (1979) 5 Fam LR 150 CASES CITED : Re C, Mr & Mrs E, Mrs F v LA (EWHC, FamD, Ryder J, 19 July 2006; (The Guardian, 20 July 2006) Re D; Application of A [2006] NSWSC 1056 Re Evelyn [1998] FamCA 55 Re G [2006] UKHL 43 Re P (a minor) (Adoption) (1990) 1 FLR 96 Re Q & R; Application of P [2006] NSWSC 1234 Rice & Asplund (1978) 6 FamLR 570 Rice & Miller (1993) FLC 92-415 Rushby v Roberts [1983] 1 NSWLR 350 Sanders & Sanders (1976) 1 Fam LR 11,433; (1976) FLC 90-078 Skrabl & Leach (1989) FLC 92-016; 13 Fam LR 83 Torrens v Fleming (1980) FLC 90-840 U I & UJ v Minister for Community Services [2006] NSWADT 16 Young v Lalic [2006] NSWSC 18 Texts: Adoption: Achieving the Right Balance (Department of Health UK), 1998 Armstrong & Slaytor, The Colour of Difference: Journeys in Trans-racial Adoption, Annandale, 2001 Brodzinsky & Schechter (eds), The Psychology of Adoption, Oxford 1990 Fratter J, Adoption with Contact, London 1996, p 247 Hansard, Legislative Council, 10 October 2000 Katz, The Construction of Racial Identity in Children of Mixed Parentage: Mixed Metaphors, London 1996 Newman, Trauma in Infancy, the Psychobiology of Attachment Prevatt Goldstein & Spencer, Race and Ethnicity: A consideration of issues for black, minority ethnic and white children in family placement, BAAF 2000 Thoburn et al, Permanent Family Placement for Children of Minority Ethnic Origin, London 2000 Director-General, Dept of Community Services (plaintiff) PARTIES : D (first defendant) Mr and Mrs F (second defendants) FILE NUMBER(S) : SC 80080/04 Mr I G Harrison SC w Mr G W Moore (plaintiff) (4 -8 Sept, 16 Oct 06) Mr A M Colefax SC w Mr G W Moore (plaintiff) (16 Nov 06) COUNSEL : Mr M W Anderson (first defendant) Ms D M Falloon (second defendants) Ms M A Cleary (child representative) I V Knight, Crown Solicitor (plaintiff) SOLICITORS : Legal Aid Commission of NSW (first defendant) Colquhoun & Colquhoun (second defendants) Kathryn Renshall Solicitors (child representative) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADOPTIONS LIST BRERETON J Friday, 13 July 2007 80080/04 Director-General Department of Community Services v D & Ors JUDGMENT 1 HIS HONOUR: The child whose best interests are the paramount consideration in these proceedings, E, was born in New South Wales on 25 July 2003, where her birth mother D had arrived from Africa under a refugee resettlement program on 25 March that year, already pregnant (although she did not then know it) as a result of having been raped in the refugee camp in which she had until then been living. As a result of D having given an apparent consent to adoption, which has since been declared void - on the ground that she was then incapable of properly considering the question of whether she should give consent - E has been in the care of Mr and Mrs F, who have cared for her on the basis that they were to be her legal adoptive parents, for all but the first three months of her life (when she was in temporary foster care). If an adoption order is now made, D – who all parties now accept is capable of properly considering the question of consent – will for all intents and purposes have been deprived of the care of her own child, notwithstanding that she wishes to care for her and has never given a true consent to adoption. On the other hand, if no adoption order is made, then the basis on which Mr and Mrs F have cared for E for in excess of three years, when they were reasonably entitled to assume that E - who has brought them great joy, and from whose care E has obviously benefited - would for all practical purposes be their child, will be falsified. The enormity of the emotions involved for D and for Mr and Mrs F is plain and understandable. An adverse decision to either will not unreasonably be perceived by the unsuccessful party, from his or her perspective, as unfair. 2 Neither D nor Mr and Mrs F have done anything to deserve being in the position in which they now find themselves, and neither deserves to be the unsuccessful party in this unhappy litigation. But ultimately, this case is not about the just deserts of D and Mr and Mrs F: I must regard the interests of E, and not those of D or Mr and Mrs F as paramount, although I accept that the emotional wellbeing of a parent may well impact on a child and thus be relevant to a child's welfare; and I cannot disregard what has happened so far as E is concerned over the last three years or more – it is not possible to begin this case with a clean slate. Neither can I disregard what evidence and human experience suggests is likely to happen in her long term as well as short-term future. 3 The Director-General, Mr and Mrs F, and E's separate representative, all contend that E's best interests will be served by making an adoption order in favour of Mr and Mrs F, and dispensing with D's consent for that purpose. In the event that an adoption order is not or cannot be made, the Director-General, Mr and Mrs F and E's separate representative propose an order that Mr and Mrs F have parental responsibility and sole care and custody of E, and that E may be known by Mr and Mrs F's surname. In either of those events, they proposed (initially – their positions changed during the hearing) that E have contact with D face-to-face twice a year, by telephone twice a year, by exchange of letters and photographs, and otherwise as agreed between Mr and Mrs F and D. D, on the other hand, proposes that E be returned to her care. At the preliminary hearing on 8 August 2006, each of D, Mrs F and Mr F were invited to outline their position. D made the following statement: HIS HONOUR: I would very much like you to tell me, if you would, what you see as the optimum outcome for the child and why you think that's best. D: Your Honour, I think that it is not the place of the child or about being happy about the child. I think that I would like my child to know the language that I speak. I speak Dinka and Swahili is not my mother tongue. I would like my child to know where I am from. Thank you, your Honour. HIS HONOUR: What role would you see the adoptive parents playing in the child's life? D: Your Honour, I would like that Mr and Mrs F, if they want to be in the life of the child, I would like them to be in the life and if they don't want to see the child I wouldn't want to push them or force them about that to see the child. … HIS HONOUR: If the court decided not to make an adoption order, what is your proposal as to with whom the child should live? D: Your Honour, if that was to be so I would like the child to come and stay with me and to know my language. HIS HONOUR: Previously you were very concerned at the risk and dangers to you and the child if your community discovered that you had had a child. What's the position so far as that is concerned now? D: Your Honour, it was true that I was like this. I was a new person in this country. I didn't know what it was like in this country and my family and my community are going along with me well and they are asking me where is my child. 4 Mrs F stated her position as follows: HIS HONOUR: … would you like to tell me what you see as the optimum outcome for the child and why? MRS F: I would like to see an adoption order in favour of Don and I as E's adoptive parents and an adoption order. I would like to continue contact with the birth mother for E on two contact visits a year face-to-face with exchange of mail on two occasions through the year and phone calls, two phone calls a year. I think it is important for E and have always thought it important for E to know her birth mother and to know of her heritage, her African heritage, her Sudanese heritage and her Dinka heritage, but I would like an adoption order in our favour. HIS HONOUR: I know this may be a difficult thing for you and your husband to contemplate at the moment, but obviously the consent has already been declared void so for there to be an adoption order in your favour the court would have to make a consent dispense order and there are only very limited grounds on which that order can be made. If the court wasn't persuaded to make a consent dispense order and therefore couldn't make an adoption order, what would your position be then? MRS F: I would seek for parental responsibility with E retaining our surname, the name she knows as a three-year-old, with the same contact with the birth mother of two visits a year, exchange of mail and two phone calls a year. On both those occasions the contact I would hope may grow as E is older and her interest in her heritage becomes more important to her, her African heritage becomes more important to her, but that would be E's choice when she was older. 5 Mr F's statement was as follows: HIS HONOUR: Mr F, would you like to tell me what you see as optimal? MR F: I back my wife's sentiments. An adoption order would be our preferred outcome. I would say that that would best serve E's interests, and the same stipulations regarding contact and the same stipulations regarding an alternative as my wife expressed and similarly we would be guided by E's wishes as she gets older and is more clearly able to articulate her wishes relating to contact. HIS HONOUR: Why do you think an adoption order would be in her best interests? MR F: It would continue the security and stability that she feels as part of our family. It would give her a clear, defined place in our family, one that she is also able to compare favourably with so many of her young friends who are also adopted, but also give her that same security and stability that children have with their biological parents. It would also mean that she would be, I guess, in the same legal position as any other biological child where we are able to make all decisions relating to her and to her best interests. 6 From this, it will be apparent that there are broadly three proposals, or scenarios, for E's parenting arrangements: · An open adoption by Mr and Mrs F, with limited contact with D largely at the discretion of Mr and Mrs F. This was, broadly speaking, the preferred position of the Director-General, Mr and Mrs F, and E's separate representative, although there were differences between them as to the desirable extent of contact; · Mr and Mrs F to have parental responsibility, care and custody and E to have contact with D. This was the fall-back position of all parties; · D to have parental responsibility, care and custody, and no contact with Mr and Mrs F. This was the preferred position of D, although she is quite content for E to have some contact with Mr and Mrs F in the event that she is primarily in D's care, but the Fs do not propose to maintain contact with E in those circumstances, a position which they explained was not a spiteful stance on their part, but a considered position based on their appreciation that, in the event of a change in E's primary care, she would be even more confused, and the position made even more difficult for her, if they were to have ongoing contact. The birth mother, D 7 D was born, in a Dinka tribe in Sudan, on 31 December 1984. In 1992, her family fled to Kenya. Her father was killed during their escape, and she became separated from her mother and family. Eventually she arrived in a refugee camp in Kenya. In October 2002, she was sexually assaulted in the refugee camp, as a result of which she became pregnant. On 23 January 2003 she was granted residency to Australia, and she arrived in Australia on 25 March 2003 under a refugee resettlement program. She took up residence near her half-brother in the western suburbs of Sydney. 8 In April 2003, having attended a doctor, D discovered that she was pregnant. Due to concerns she then entertained at cultural attitudes in her community to women who became pregnant out of wedlock, she concealed the pregnancy. However, her brother suspected if not discovered it, and he assaulted her at his unit. She attended Blacktown Hospital, and was subsequently transferred to Westmead Hospital, where a social worker arranged for her to be placed in a refuge. 9 On 19 May 2003, D informed a hospital worker that her pregnancy was the result of a sexual assault and that she wanted to surrender the baby for adoption, and she expressed fears in relation to her brother's reaction to the pregnancy. She commenced residing at the refuge on 22 May 2003. Between May and July 2003 she had several meetings with officers of the Department of Community Services and caseworkers from the refuge regarding her options. She was, to some extent at least, confused at the distinction between the concepts of adoption and fostering. On one occasion, she expressed a wish to have the baby back after five years. On another, she expressed reluctance to place the baby with another family permanently, and asked if the baby could come back in three years. She told a caseworker that she would like to have a lot of contact with her baby, and that she wanted the baby with her after it was born until it went to a foster mother. On 1 July 2003 she told another caseworker that she wanted the baby placed with a Catholic family, and to have regular contact. 10 On 16 July 2003, D was admitted to Westmead Hospital under an assumed name with high blood pressure. On 21 July 2003, a diagnosis of depression was made. Lynne Tripet, then an obstetric social worker at the hospital, liaised with the Department of Community Services and was concerned about D's mental and emotional state. D was induced on 24 July, and the child E was born at Westmead Hospital by emergency caesarean section on 25 July. D was discharged on 28 July, having signed temporary care agreements for E to be in the care of the Director-General (pursuant to (NSW) Children and Young Persons (Care and Protection) Act 1998, s 151). On 29 July 2003, E was placed in the temporary care of authorised foster carers, where she remained until she was three months old; during that period while she was cared for by the pre-adoptive foster parents, she had contact with D on five occasions. 11 On or around 14 August, D saw Lynne Tripet, to whom she appeared sad at the separation from her baby, expressing the view that she did not want to lose her baby. On 9 September 2003, D had an appointment with Jenny Klein, a caseworker from DoCS. To Ms Klein, D appeared flat and down, and Ms Klein was worried that she did not understand the full implications of adoption. On 15 September 2003, D attended mandatory counselling with a counsellor at the Adoption & Permanent Care Services office of the Department at Parramatta. Separately, Dr Gobran at the Station Medical Centre prescribed anti-depressant medication for her. However, no psychiatric assessment was arranged prior to 19 September 2003, when D signed her formal consent to E's adoption. 12 When D signed the general consent, she expressed requests as consenting parent that E be placed with adoptive parents who would retain the child's first name; that the child be placed with approved and suitable adoptive parents having a cultural heritage of any group; that the child not be placed with adoptive parents who were African [due to her concerns for D's and E's safety if the connection were discovered by her community]; that the child be raised in the Christian religion; that the child not be placed with adoptive parents who were Muslims; that D receive news and information about E two times a year, and meet with her twice a year; and that there be telephone calls between D and E on each of their birthdays. 13 On 5 October 2003, D presented at Westmead emergency department with left-side body pain and tingling. Dr McKew advised the refuge worker that she may have a blood infection and also needed a psychiatric assessment. At a meeting with DoCS during October 2003, she again asked if she could have the baby back in three or five years. Between 20 and 24 October, D consulted a doctor at the Centre for Infectious Diseases & Microbiology at Westmead, possibly twice. The doctor wrote a report indicating that she was profoundly depressed and that the most urgent problem with her health was her depression. 14 The 30-day period for revocation of the consent expired on 20 October 2003. D was shown the profiles of two potential adoptive families. On 21 October 2003, she informed DoCS that of the two, she preferred Mr and Mrs F. The Proposed Adoptive Parents, Mr and Mrs F 15 Mrs F was born on 19 March 1961, and Mr F on 21 May 1964 in Scotland. They met in 1990, and married on 18 September 1998. They subsequently discovered that they could not conceive a child of their own, even through IVF. On 29 October 2001 they made a formal expression of interest in adoption to the Department of Community Services, indicating that they were open to adopting a child of any ethnic background. On 6 June 2003, DoCS made a recommendation that they be approved generally for adoption purposes. On 19 August 2003, their application to adopt a child through the Department's local adoption and permanent care program was approved without conditions. 16 On 22 October 2003, Mrs F received a call from the Department's Adoptions Branch caseworker, Jenny Klein, advising that a female child with dark skin was available for adoption. Mr and Mrs F were told that the child had been conceived as a result of a rape and that she was very dark, and were asked whether they needed to consider those matters. They said they did not need further time to consider those issues: they had previously contemplated adopting an African baby. They told family and friends that they had been allocated a baby girl, and told most to whom they spoke about the child's colour. They cancelled travel they had planned for a five-week holiday. The next day, 23 October, they went to the DoCS offices in Parramatta, signed documents and saw photographs of E. They met E at the foster carers' home; they researched her name in an Arabic dictionary and found that it meant "gift". Over the next four or five days, they visited E daily at her foster carers' home. 17 On 27 October 2003, Mr and Mrs F went to the DoCS offices at Parramatta to receive E, then three months of age. They met D and hugged her. They told D that they loved E's given name and would never change it. They gave D a gold heart-shaped locket engraved with a Celtic design, to join D to their family. Their intention was to give D a photograph of E to place in the locket, but at that stage this was thought not a good idea because other members of D's community might see the photo and ask D the identity of the baby. E was placed into the care of Mr and Mrs F, the proposed adoptive parents, in whose care she has been ever since, and where she has thrived. The proceedings 18 The Director-General applied for an adoption order in favour of Mr and Mrs F. On 31 May 2004, the court dispensed with the consent of E's father to the adoption. However, in or about mid-2004, D changed her mind about the adoption. She decided that she wished to revoke her consent and have E returned to her care. At a meeting with Ms Dulcie, Amanda Whitbread and Michelle Henderson on 30 August 2004, she gave a letter to the Department from the Legal Aid Commission, stating that she wanted to withdraw her consent to the adoption. On 10 September 2004, the Director-General replied to D that he had declined her request that E be returned to her care. 19 The adoption application was set down for hearing, commencing on 15 December 2004. D's application for an adjournment, on the grounds of her then mental ill-health (she had been admitted to hospital with major depression), was refused on 14 December 2004, essentially because of the urgency of resolving the future of E, and the apparent unlikelihood that an adjournment would result in the court being presented with a substantially different state of affairs. The hearing proceeded, a tutor having been appointed to represent D, whose instructions could not be obtained, and at the conclusion of the hearing on 17 December 2004, Palmer J made orders, for which reasons were later published [Department of Community Services v D [2004] NSWSC 1241]. His Honour concluded – as D had contended and the Director-General conceded – that D had not been in a fit condition to give the consent when she had done so, and declared that her consent was ineffective [(NSW) Adoption Act 2000, s 58(2)(d)]. Nonetheless, over D's opposition, his Honour made a consent dispense order on the grounds that D was (at the time of the hearing) in such a physical and mental condition as not to be capable of properly considering the question of whether she should give consent [Adoption Act, s 67(1)(b)], and that there was serious cause for concern for the welfare of the child and it was in the best interests of the child to override D's wishes as parent [s 67(1)(c)]. His Honour then made an adoption order in favour of Mr and Mrs F. 20 D appealed, and following a hearing on 7 December 2005, and the reception of further evidence, the Court of Appeal (Hodgson and Ipp JJA, Hunt AJA) on 22 December 2005 allowed the appeal, set aside the adoption order (but not the consent dispense order), and remitted the matter to the Equity Division for a new hearing of the adoption application [D v Director-General, Department of Community Services [2005] NSWCA 474, 34 Fam LR 445]. The appeal succeeded essentially on the basis that further evidence, not available at trial, showed that D's condition had improved in a way not previously anticipated, so that there was a likelihood that there would be a positive involvement of her family in the care and upbringing of E if the adoption did not proceed, with the result that assumptions upon which the primary judge had proceeded were retrospectively falsified. Following that decision, under an interim order made by Nicholas J on 23 December 2005 [Adoption Act, s 84], Mr and Mrs F have had interim parental responsibility for E, who has had very occasional contact with D. The Legal Framework 21 The objects of the Adoption Act are expressed to include [Adoption Act, s 7]: (a) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice, (b) to make it clear that adoption is to be regarded as a service for the child concerned, (c) to ensure that adoption law and practice assist a child to know and have access to his or her birth family and cultural heritage, … 22 In making a decision about the adoption of a child, the court is required to have regard (as far as is practicable or appropriate) to the principles specified in Adoption Act, s 8(1), including: (a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, not for adults wishing to acquire the care of the child, (c) no adult has a right to adopt the child, … (e) the child's given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, … 23 In determining the best interests of the child, the court is required to have regard to, inter alia [Adoption Act, s 8(2)]: (a) any wishes expressed by the child, (b) the child's age, maturity, level of understanding, gender, background and family relationships and any other characteristics of the child that the decision maker thinks are relevant, (c) the child's physical, emotional and educational needs, including the child's sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant other people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each proposed adoptive parent, (i) the suitability and capacity of each proposed adoptive parent, or any other person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, or being present while a third person is subjected or exposed to abuse, ill-treatment, violence or other behaviour, (k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the child's circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child. 24 Adoption Act, s 90, prescribes pre-conditions of which the Court must be satisfied before making an adoption order, including that it considers that the making of such an order would be clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the care of the child; as the note to s 90(3) records, other action that could be taken includes a parenting order under (CTH) Family Law Act 1975, or a care order under Children and Young Persons (Care and Protection) Act: 90 Court to be satisfied as to certain matters (cf AC Act s 21) (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 Note . Sections 127–129 contain provisions about ascertainment of the wishes of a child by the Court. (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 Note . See Part 3 of this Chapter. (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 … (g) if the child is a non-citizen child from a Convention country or other country outside Australia—that the applicable requirements of this Act and any other relevant law have been satisfied, and Note . See for example, section 31. (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. Note . Other action that could be taken in relation to a child includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the Children and Young Persons (Care and Protection) Act 1998 . Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt. 25 In my view, s 90(3) requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While I agree with Palmer J that it does not require satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any other action that could be taken by law. 26 Adoption Act, s 92, provides for the Court to make orders for a child's care and custody upon dismissal of an adoption application, as follows: 92 Care of child after refusal of an application If the Court refuses an application for an adoption order, the Court may make such orders for the care and custody of the child concerned as it thinks fit, including, if the child is less than eighteen years of age, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998. 27 There is an issue as to whether s 92 authorises an order allocating parental responsibility other than to the Minister, or whether such an order could only be made under the Family Law Act. As one of the potential outcomes is that E lives with Mr and Mrs F otherwise than under an adoption order, it is necessary at the outset to resolve the jurisdictional basis, if any, upon which such an order might be made. The Director-General submits that should I decline to make an adoption order, I should make an order under s 92. D submits that any such order should be made as a parenting order, under the Family Law Act. 28 Adoption Act, s 92, uses the term "care and custody", which is not defined, save that it includes an order declaring the child to be under the "parental responsibility" of the Minister. In the Adoption Act, "parental responsibility" is defined in the Dictionary to mean "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". "Care and custody" is not defined, but ordinarily those words connote something less than parental responsibility, being elements but not the whole of parental responsibility. 29 Other provisions in the Act, including one that is closely analogous to s 92, refer to parental responsibility. Thus s 84 authorises the making of interim orders "for parental responsibility" in favour of the prospective adoptive parents, or in favour of the Director-General, and s 86 provides that the Court may at any time make an order discharging such an interim order and: (2) If the Court discharges an interim order the Court may make any order concerning parental responsibility for the child that it thinks fit, including, if the child is less than eighteen years of age, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998. 30 Part 8 is concerned with interim orders, and at first sight it is surprising that upon discharge of an interim order which could be made only in favour of a prospective adoptive parent, the Court is authorised to make "any order concerning parental responsibility … that it thinks fit", apparently not limited to an interim order. But this is less surprising when it is appreciated, from s 86(3), that an interim order also ceases to have effect on the making of an order for the adoption of a child. In other words, where an interim order has been made, if an adoption order is then made the interim order ceases to have effect, parental responsibility then being covered by the adoption order. If, however, the Court discharges the interim order without making an adoption order, the Court may make a parental responsibility order to operate in place of the interim order. The intent was to give the court, in circumstances where an adoption application is made, the fullest power to deal with parental responsibility for the child, even if an adoption order not be made in favour of the persons who had interim parental responsibility. 31 Despite the use of the words "care and custody" in s 92, some indication that it was intended to cover parental responsibility is given by the circumstance that s 92 explicitly includes, in "orders for the care and custody of the child concerned", an order placing the child under the parental responsibility of the Minister. That is a clear indication that, for the purposes of s 92, "orders for the care and custody of the child" were intended to include orders allocating parental responsibility. Such a construction would be consistent with the evident purpose of s 86. The explanation for the different wording is that, in s 92, Parliament has adopted the wording of the corresponding section of the former (NSW) Adoption of Children Act 1965, which provided as follows: 24 Care of child after refusal of an application Where the Court refuses an application for an order for the adoption of a child, the Court may make such order for the care and custody of the child as it thinks fit, including, where the child has not attained the age of 18 years, an order declaring the child to be under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998 . 32 In 1965, the term "parental responsibility" was not in general legal use; the then equivalent was guardianship. The concept of "parental responsibility" came into Australian law in place of "guardianship" in the (CTH) Family Law Reform Act 1995, which was in large respects modelled on the (UK) Children Act 1989. The terminology of "parental responsibility" has been employed in the new provisions of the Adoption Act 2000, but apparently overlooked when a provision of the 1965 Act was repeated. Construing the 2000 Act as a whole, with reference to s 86 and to the inclusion within the concept of "care and custody" in s 92 of parental responsibility of the Minister, I conclude that, as in s 86, so in s 92, Parliament intended the Court to have the fullest power to deal with a child's guardianship, custody and care in the event that an adoption application was unsuccessful. 33 The power under s 92 survives the referral – by the (NSW) Commonwealth Powers (Family Law – Children) Act 1986 - to the Parliament of the Commonwealth, of "the custody and guardianship of, and access to, children …" (to the extent to which they were not otherwise included in the legislative powers of the Commonwealth), which thereupon became matters with respect to which the Commonwealth Parliament may make laws. Excluded from the matters referred were "the matter of the adoption of children" and "the matter of the taking or the making of provision for or in relation to or authorising the taking of action that would prevent or interfere with … the jurisdiction of a Court of the State … under a provision specified in Schedule 1, to make orders, or take any other action, in respect of (i) the custody, guardianship, care or control of children, or (ii) access to children or the supervision of children". Provisions specified in Schedule 1 include Adoption Act, ss 84, 86 and 92. 34 Reflecting this limitation on the referred powers, Family Law Act, s 69ZK, provides: Child Welfare Laws not affected (1) A Court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a Child Welfare Law unless (a) The order is expressed to come into effect when the child ceases to be under that care; or … (2) Nothing in this Act, and no decree under this Act, affects: (a) The jurisdiction of a Court, or the power of an authority, under a Child Welfare Law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a Child Welfare Law; or (b) Any such order made or action taken; (c) The operation of a Child Welfare Law in relation to a child. (3) If it appears to a Court having jurisdiction under this Act that another Court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first mentioned Court may adjourn any proceedings before it that relate to the child. 35 The combined effect of Family Law Act, s 4(1), and (CTH) Family Law Regulations 1984, regulation 12D and Schedule 5, is that the (NSW) Adoption Act is a Child Welfare Law. Also worthy of note is Family Law Act, s 61C, which recognises that parental responsibility (which in the Family Law Act is defined in terms identical to those in the Adoption Act), may be affected by orders of courts other than the Family Court, under Acts other than the Family Law Act: 61C Each parent has parental responsibility (subject to Court orders) (1) Each of the parents of the child who is not eighteen has parental responsibility for the child. … (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section). 36 Nonetheless, I do not accept that it follows that the State intended to retain, to the exclusion of the Commonwealth, power over children whose application for adoption was dismissed. To the contrary, Adoption Act, s 90(3) and the note thereto makes clear that it was contemplated that a parenting order under the Family Law Act might be a preferable alternative to an adoption order. Family Law Act, s 69ZK, permits an order to be made under that Act, if the relevant child is not under the care (however described) of a person under a Child Welfare Law (for example, if no order is made under the Adoption Act), or if the order under the Family Law Act is expressed to come into effect when the child ceases to be under that care. 37 The Supreme Court is invested with the jurisdiction of the Family Court under the Family Law Act [Mulhall v Hartnell (1988) 12 Fam LR 361; Young v Lalic [2006] NSWSC 18, [37]–[49]]. Thus if on declining to make an adoption order the Court did not make an order under s 92, it could make a parenting order under the Family Law Act. 38 Under the Family Law Act, the Court may make a parenting order dealing with the allocation of parental responsibility for a child, in favour of a person (or persons) other than the parent of the child [s 64B(2)]. While neither the objects and principles which govern the exercise of jurisdiction under the Family Law Act in respect of children [Family Law Act, s 60B; cf Adoption Act, ss 7, 8(1)], nor the factors to be taken into account [Family Law Act s 60CC; cf Adoption Act, s 8(2)], are identical to those in the Adoption Act, in each case the best interests of the child are the paramount consideration, and there is a substantial coincidence of the relevant considerations. It is true that under the Family Law Act, the Court is required to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child [Family Law Act, s 61DA(1)], but that presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility [s 61DA(4)]. 39 The result of all this may be summarised as follows. First, on the proper construction of the (NSW) Adoption Act, the power under s 92 extends to orders allocating parental responsibility. Secondly, nothing in the Family Law Act excludes the jurisdiction of the Supreme Court to make orders under Adoption Act, ss 86 and 92 [Family Law Act, s 69ZK; Commonwealth Powers (Family Law – Children) Act, s 3(2)(d)]. Thirdly, a parenting order can be made under the Family Law Act in respect of a child who is not under the care of a person under the Adoption Act (for example, one in respect of whom no order is made), or even in respect of one who is under the care of a person under the Adoption Act, if the order is expressed to come into effect when the child ceases to be under that care – for example, such an order could be made expressed to come into effect upon termination of any subsisting order under Adoption Act, s 92. 40 Accordingly, this Court could, if it declines to make an adoption order, make an order allocating parental responsibility, either under the Adoption Act, ss 86 or 92, or under the Family Law Act. I prefer to approach the matter, in the context of this case, under the Adoption Act, because slightly although not materially different considerations apply under the Family Law Act, and if I were to exercise the cross-vested jurisdiction of the Family Court, an appeal from that decision would lie to the Full Family Court, whereas an appeal from a decision under the Adoption Act lies to the Court of Appeal, and it is not in the interests of the parties that their rights of appeal be bifurcated. 41 Finally, under Adoption Act, s 126, the court may, in the hearing of any proceedings or in determining any application or matter under the Act, act on any statement, document, information or matter that may in its opinion assist it to deal with the matter of the proceedings or before it for determination, whether or not it would be admissible in evidence. I have had regard to a considerable body of literature in the field, which was referred to in various of the expert reports and provided to me by the parties during the course of the proceedings. The issues 42 At a directions hearing on 6 July 2006, after discussion with the parties, the issues for trial were recorded, as follows: (1) Is D in such a physical or mental condition as not to be capable of properly considering the question of whether she should give consent? (2) Is there serious cause for concern for the welfare of E such that it is in the best interests of E to override the wishes of D? (3) If yes to (1) and/or (2), is it in the best interests of E to make a consent dispense order. (4) If so, will the best interests of E be promoted by adoption, and would an adoption order be clearly preferable in the best interests of E to any other action that could be taken by law in relation to the care of E, having regard in particular to: · D's mental health; · D's relationship with her family; · D's capacity to care for, understand and cope with E, especially with E's response to separation from Mr and Mrs F; · the short and long term effects on E of being removed from the primary care of Mr and Mrs F; · the short and long term effects on E of being raised apart from her natural family and culture by persons who are patently ethnically different; · the alternatives to the making of an adoption order and the likely effect on E in both the short and longer term of changes in E's circumstances caused by an adoption; and · the ability of Mr and Mrs F to foster a relationship between E and D. 43 The issues numbered (1), (2) and (3) pertain to whether a consent dispense order should be made. The issues in (4) pertain to whether it is in E's best interests to make an adoption order (or some other order for her care, in particular, parental responsibility to Mr and Mrs F, or return to D's care). As the factors which inform whether there is a "serious cause for concern" overlap those which inform whether it will promote E's interests to make a consent dispense order and override her mother's wishes, and whether it is in E's best interests to make an adoption order, it is convenient to consider the factors in (4) before addressing the question of whether a consent dispense order should be made [cf Re D; Application of A [79]-[80]]. 44 There is a fundamental tension between two of them, which point in opposite directions, and create one of the major issues in the case: first, that all else being equal, it is undesirable that a child such as E be raised apart from her natural family and culture by persons who are patently ethnically different; but secondly, that it is undesirable that a child such as E be removed from the care of those who have parented her since she was three months old and in whose care she has obviously thrived. Professor Katz, an expert called by the Director-General, conceding that all else being equal it is better for children to remain with their natural parents in their own community of origin, put it this way: The issue is not whether D would be a better parent for E than Mr and Mrs F, but whether she can provide adequate parenting for E over the long term, whether she has support from her community, and whether separation from Mr and Mrs F at this point in E's life will cause her irreparable damage. 45 The critical considerations that inform a judgment as to where E is best placed may now be summarised as follows: · The disadvantages for E of being brought up apart from her natural family, ethnic and cultural origins – including the extent to which those disadvantages can be mitigated. The extent to which Mr and Mrs F will foster contact between E and D and her family and culture is an aspect of this; · The risks of separating E from Mr and Mrs F at this point in E's life; · The capacity of D to provide adequate parenting for E in the long term, aspects of which include whether E would be at risk if in her care, and the extent to which D will be supported by her extended family and community; and · The respective benefits of adoption and other arrangements for long-term care. 46 No party now submits that D's consent should be dispensed with pursuant to Adoption Act, s 67(1)(b), it being accepted by all that she is now capable of properly considering the question of whether she should give consent. However, there remains a very live issue as to whether the grounds for making a consent dispense order under s 67(1)(c) are established, and whether such an order should be made. If there is no consent dispense order, it will follow that an adoption order cannot be made. This gives rise to a preliminary matter, namely the status of the consent dispense order made by Palmer J, which was not set aside by the Court of Appeal. Very sensibly, the parties agreed that the previous order should be revoked, but I should explain why that course is appropriate, in circumstances that it was not set aside by the Court of Appeal. Revocation of the previous consent dispense order 47 The previous consent dispense order was made on the grounds in (NSW) Adoption Act 2000, s 67(1)(b) and (c). Section 67 provides as follows: 67 When can Court dispense with consent of person other than the child? (cf AC s 32 (1)) (1) The Court may make a consent dispense order dispensing with the requirement for consent of a person to a child's adoption (other than the child) if the Court is satisfied that: (a) the person cannot, after reasonable inquiry, be found or identified, or (b) the person is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent, or (c) if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or person who has parental responsibility, or (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. (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child. 48 In D's appeal from Palmer J's decision, she challenged (1) the refusal of an adjournment, (2) the making of the consent dispense order, and (3) the adoption order. The first and second challenges failed, but the Court of Appeal allowed her appeal against the adoption order on the basis of fresh evidence adduced in the Court of Appeal, described by Hodgson JA in the following terms: [48] The further evidence does show that D has recovered, in a way not anticipated, and shows a likelihood that there would be positive involvement of her family in the care and upbringing of E if the adoption was set aside. I think it is fair to say that this does amount to the falsification of assumptions, rather than merely being the realisation of a contingency taken into account by the primary judge. Had the primary judge not acted on the contrary assumptions but been in a position to make a correct assessment of these potentialities, a different outcome of the case would have been a substantial possibility; though I could not say that a different outcome would have been likely. In my opinion, to refuse to admit this evidence would affront common sense and a sense of justice. 49 In allowing the appeal, the Court of Appeal set aside the adoption order and remitted the adoption application for rehearing; it is on that rehearing that I have been engaged. However, the Court of Appeal did not set aside the consent dispense order, and found that it was unaffected by error. 50 In the course of the preliminary hearings, the issues for trial were discussed and defined, and on 6 July 2006, the list of issues for trial, set out above, was settled. That those remained the relevant issues was confirmed at the commencement of the final hearing on 4 September 2006. The list included: (1) Is D in such a physical or mental condition as not to be capable of properly considering the question of whether she should give consent? (2) Is there serious cause for concern for the welfare of E such that it is in the best interests of E to override the wishes of D? (3) If yes to (1) and/or (2), is it in the best interests of E to make a consent dispense order? Accordingly, then and ever since, all parties have proceeded on the basis that whether a consent dispense order should now be made was in issue. 51 On the first day of the hearing, I raised the matter with counsel, as follows: We have been proceeding to this point on the basis that whether a consent dispense order should be made is in issue. On reviewing the file closely, it seems to me that the Court of Appeal set aside only the adoption order and did not set aside the consent dispense orders. I notice that an order was made by consent setting aside an order of Palmer J made on 15th December 2004, but I suspect that was the order appointing a tutor. The order is not explicit as to what it is setting aside, but I think it was the order appointing a tutor. That said, I am inclined to the view that it is inappropriate to conduct this hearing in 2006 on the basis of a consent dispense order made in different circumstances in 2004. Certainly, if it's a matter of consent I will do it. If it's not, I will give serious consideration as to whether I can, in any event, on the basis that it's an interlocutory order, set aside the consent dispense order, no final adoption order now having been made. Could counsel give some consideration to that over the adjournment. HARRISON: I think we've all been proceeding to this point on the basis that a consent dispense order was in issue. 52 Subsequently, after counsel had had an opportunity to consider the matter, the following transpired: HIS HONOUR: On the other matter, I draw counsel's attention to section 71, which provides that a consent dispense order may be revoked on the Court's own initiative or on the application of various parties at any time before the making of the adoption order. HARRISON: I would only repeat the comment I made that was effectively the comment your Honour made just before the adjournment, the parties have proceeded upon the basis that that issue was an issue that needed to be relitigated, in fairness to everybody. I don't know any of us at this table that take a different view. FALLOON: That is the case. CLEARY: We have had that discussion. HIS HONOUR: I will at an appropriate time make an order revoking the consent dispense order. 53 Adoption Act, s 71 provides as follows: 71 Revocation of consent dispense order (1) A consent dispense order in relation to the adoption of a child made before an application for an adoption order has been made may be revoked by the Court at any time before the making of the adoption order. (2) The consent dispense order may be revoked on the Court's own initiative or on the application of: (a) the Director-General or of the person whose consent was dispensed with, or (b) if the order was made on the application of a principal officer - the principal officer. 54 Section 72(3) provides as follows: (3) The Court must not revoke any consent dispense order on application of a person unless not less than 14 days' notice of the application has been given: (a) in the case of an application for revocation made by a person other than the Director-General — to the Director-General, and (b) in the case of an application for revocation made by a person other than the principal officer who applied for the consent dispense order—to the principal officer, or (c) if an application has been made to the Court for the adoption of the child by the mother, the father or a relative of the child (whether alone or jointly with another person) — to the applicant or applicants. 55 Dispensing with consent is a very serious matter. The provisions of the Act that surround the requirements for valid consent make clear that this is so. The basis on which the Court of Appeal allowed D's appeal – a change of circumstances relating to the birth mother D – was equally applicable to the consent dispense order as it was to the adoption order: it vitiated at least one of the bases for the consent dispense order. That this is so is confirmed by the circumstance that no party now contends that a consent dispense order could be based on s 67(1)(b), reliance now being placed exclusively on s 67(1)(c). 56 Section 71 empowers the court to act of its own motion, in which case notice under s 72(3) is not required. In any event, all parties have proceeded on the basis that whether a consent dispense order should be made is in issue, and accordingly the existing consent dispense order should no longer be regarded as effective. Given the serious nature of dispensing with a natural parent's consent to adoption, and the removal of at least one of the foundations for the consent dispense order previously made, it is inappropriate to proceed to consider the adoption application now on the basis of a consent dispense order made in quite different circumstances two years ago. Indeed, at least one of the purposes of the facility of revocation of a consent dispense order is to enable such a change of circumstances to be addressed. That of course is not to say that a consent dispense order should not now be made; but whether or not such an order is now appropriate should depend on the evidence before me now, and not on the situation that prevailed in December 2004. 57 Accordingly, pursuant to Adoption Act, s 71(1), I will revoke the consent dispense order made on 2 February 2005 in respect of D's consent. The effects on E of being raised apart from her natural family and culture by persons who are patently ethnically different 58 The expert evidence in the case, judicial decisions, and common sense, uniformly accept that, all else being equal, it is preferable for children to be raised by their natural parents in their own community of origin. In every case of adoption, to a greater or lesser extent, separation from the child's natural family is involved. Cases such as the present, which practitioners call trans-racial adoptions, involve not only separation from natural family, but also separation from the child's culture and ethnicity of origin. 59 Evaluation of the impact on a child of being raised in such a context necessarily involves hypothesis and prediction; it cannot be said with certainty what will be the effect on E. Insofar as expert evidence is concerned, care needs to be taken in applying to this case in its particular context deductions drawn from experience in different cases in their own different contexts; in the field of human affairs, even identical conditions do not always produce identical results. The same applies to judicial decisions; no other case precisely replicates the circumstances of this case, and even if one did, it would not follow that the same outcome would be the best for this case. But while, on the one hand, prediction of the future based on expert opinion in this field is fraught with difficulty, on the other, it is probably the best one can do, and is decidedly preferable to speculation. 60 Quite apart from the additional considerations that arise in a case of trans-racial adoption, judicial authority, expert opinion and common sense dictate that the fact of "natural" parenthood is an important consideration. This is because, in the ordinary case, natural parents can be expected to bring a special commitment to, and have a special relationship with, their natural child, and it is the ordinary and natural way of life that children are raised by their natural parents. The authorities were reviewed in the House of Lords in In Re G [2006] UKHL 43, by Baroness Hale, with whom the other Law Lords agreed, although Lord Nicholls added an emphasis of his own (at [2]). Her Ladyship adopted (at [31]) what Lindenmayer J said in the Family Court of Australia in Hodak, Newman & Hodak (1993) FLC ¶92-421 (His Honour's statement had subsequently been twice approved by the Full Family Court: Rice & Miller (1993) FLC ¶92-415; Re Evelyn [1998] FamCA 55]), and which states the law in this country (the emphasis is Baroness Hale's): I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process … Each case should be determined upon an examination of its own merits and of the individuals there involved. 61 Baroness Hale explained (at [33]-[35]) that nowadays one could become a "natural" (as distinct from "legal") parent of a child in at least three ways: genetic parenthood, gestational parenthood, and psychological parenthood. While the natural mother would often combine all three, that is not always so; and it is not so in this case, because D is a genetic and gestational parent, but Mr and Mrs F are E's psychological parents. 62 Relevant expert evidence was given by Professor Ilan Katz for the Director-General, Ms Beverly Prevatt Goldstein, Ms Julianna Ampofowaa Nkrumah, Associate Professor Green and Sarah Armstrong for D, and touched on by Dr Robinson as court expert, and by Ms Julie Selwyn who was qualified on other issues by the Director-General. 63 Professor Ilan Katz is Acting Director of the Social Policy Research Centre, at the University of New South Wales. He has a PhD from Brunel University, conferred in 1994, for a thesis, The Development of Racial Identity in Children of Mixed Parentage. He has studied, taught and published in the fields of complex family and community interventions, race culture and ethnicity, child protection and parenting in poor environments, and adoption. 64 Professor Katz said that after four decades of debate regarding the impact of trans-racial adoption on children, during which the prevailing view had undergone a number of distinct shifts, there was now a degree of consensus: whereas, during the 1960s, trans-racial adoption was actively promoted as a progressive policy that would give children from ethnic minorities a second chance, and whereas it was challenged in the 1980s by black professionals who viewed the practice not as progressive but as a perpetuation of colonialism and a cause of psychological trauma because of identity confusion and racism which white families did not have the capacity to address, in the 1990s these views were replaced by a consensus expressed in Adoption: Achieving the Right Balance (Department of Health (UK), 1998), the essence of which is that while the most advantageous placement for children who cannot live with their families is within their own community, and the child's ethnic and racial background is an important factor to be taken into account in the adoption process, a child should not be denied loving adoptive parents solely on the grounds that the child and adopters do not share the same racial or cultural background. 65 Professor Katz noted that most research into trans-racial adoption was conducted during the 1970s and the 1980s, and that the practice of adoption had since changed, with a decisive move towards "open" adoptions, maintaining contact between birth parents and relatives and adopted children, and pointed out that there were no longitudinal follow-up studies of trans-racially adopted children in open adoptions. He reported that the research since the 1970s on trans-racial adoption indicated, first, that there was no evidence that trans-racially adopted children have higher levels of behavioural or emotional difficulties than equivalent children in same race placements, but secondly, that such children did tend to be alienated from their birth culture and community and to identify with the culture of their adoptive parents. A definitive analysis of the research commissioned by the UK Department of Health on adoption (Parker, 1999) summarised the risk factors associated with poor outcomes for adopted children, and trans-racial placement was not found to be one of them. Interestingly, however, Professor Katz added that in the case of indigenous children, there was a tendency for much poorer outcomes in adoptive placements; it is not apparent to me why there would be a difference in this respect between indigenous and other trans-racially adopted children. 66 According to Professor Katz, the most recent and comprehensive review (Rushton & Minnis, 1997; 2000), while identifying methodological flaws and a diversity of approaches in the empirical literature, found a consistent pattern emerging that the vast majority of children in trans-racial placements had done well in their adoptive placements, in the sense that the placement remained stable, their relationships with their adoptive families were strong, and their psychological and social adjustment was good. Outcomes for trans-racially adopted children were found to be similar to those for same-race adoptions. However, despite those positive findings, as in same-race placements, there were a minority of trans-racially adopted children whose adoptions were not successful; in about half of those cases the failure could be traced, at least in part, to issues relating to racial adjustment. Professor Katz continued: In terms of racial identity there were mixed findings from the research. The research confirms that trans-racially adopted children are removed from their own culture and community, and have difficulty identifying or mixing with them. Even when adoptive parents took active steps to bring their culture of origin into the home and/or to ensure the children had contact with their community of origin, this is not a substitute for growing up in that community. However, the research does not confirm the hypothesis that trans-racially adopted children would inevitably be confused or torn about their identity, and this will have adverse psychological effects on the child. In some studies a high proportion of children had mixed or negative views about their racial or ethnic group, but this is not a general finding (Triseliotis, 1991). 67 Professor Katz explained that there was now a fair degree of consensus as to strategies that adoptive parents could use to facilitate a child's positive identity and self-concept in the context of trans-racial adoption, namely to live in an area where there were people from the child's background and/or from other minority groups, to engage positively with the child's family in the community, to promote positively the child's heritage, to make efforts to mix with people of different races and religions, openly to discuss the child's background, and to acknowledge and address racism. He continued: It is important here to differentiate between culture on the one hand and race . Both need to be addressed by the adoptive parent, but they raise different issues. Culture refers to the practices and beliefs of the child's community of origin, and the task for adopters is to ensure that children have access to that culture and do not see it as strange or alien. Adoptive parents are not in a position to bring the child up in their own culture, can never substitute for that experience, but they can enhance the child's knowledge and identification of his or her community of origin. Race in this context refers to the child's physical characteristics – skin colour, hair type etc. The issue here is that, growing up in a white society with a high level of racism, the child is very likely to encounter various forms of racism from bullying or teasing in school to perhaps discrimination in the work place. The job of parents is to help the child develop beliefs and strategies which help her to mitigate the effects of racism and address these. In particular the child needs to be encouraged to have a sense of pride in her own community and not to believe that they are inferior, and that it is the racists that are at fault. Although this task seems straightforward it can be quite complex. The child may unconsciously internalise racist beliefs, for example blaming her racial origins for failure at school or rejection by friends, and it can be difficult for parents who have not experienced racism to help her with these feelings. It is therefore important that the parents have access to advice and support in this respect. 68 Professor Katz observed that there are considerable limitations on much of the research in the area, partly because research findings do not readily translate into judgments about individual children, and partly because much of the research comprises case studies, qualitative interviews and practice guidance and opinion based on "professional wisdom", which is beneficial for practitioners in that it explores issues in depth, but is not quantitative. He mentions Armstrong & Slaytor's work, referred to below, as an outstanding example of this genre, illustrating "what sort of outcomes can be expected for adoptees, but not how likely it is that any particular outcome will result from a particular set of circumstances. Nevertheless it is interesting to note that the vast majority of these 27 adoptees were doing rather well, despite some intensely painful experiences, and that those who had major difficulties such as mental illness tended to be young people who had suffered abuse in the adoptive household". However, in cross-examination on the Armstrong & Slaytor work, he said: Q. Well, it's the case, isn't it, that there was difficulty in more than, the majority of those adoptees had difficulty with their racial and ethnic identity arising from their placement with essentially white, middle-class families in middle-class suburbs? A. They had had issues, yes. I mean I think it is undeniable that this is an issue in trans-racial adoption. I think it would be crazy to say that you can have an adoption where the racial origin of the child is never going to be an issue. That would be silly. The question is whether it be an issue to the extent that it is going to cause the child long term psychological damage, that's the real question. 69 Professor Katz identified a number of factors as pointing to a positive outcome should E remain with Mr and Mrs F, namely that she was placed with them early, that she has formed a positive bond with them, that she will have contact with her natural mother and extended family, and that Mr and Mrs F have made efforts to keep in touch with others in a similar situation. Risk factors include that her contact and identification with her culture of origin will be diminished, and conflict between Mr and Mrs F and D may be detrimental. And while he remarked that there were some pertinent factors unknown to him - the main being the current nature of the bond between E and Mr and Mrs F, and the second being their attitude to E's culture and race and the efforts they have made or intend to make to maintain those links - I think both of those should also be seen as relatively positive. 70 Professor Katz concluded that, should E remain with Mr and Mrs F, the protective factors far outweighed the risks, but there were inevitably a number of risk factors and unknowns; that the period of greatest risk for identity confusion was the teenage years, and that it was in E's interests to maintain contact with her birth mother: The period of greatest risk for identity confusion is the teenage years, and so it is currently only possible to speculate to what extent this will be problematic for E. Whatever decision the Court makes in this case, E is likely to face a range of challenges. She is likely to need very sensitive and responsive parenting to help address those challenges. She and her carers, whoever they are, will need to be aware of these and be willing to seek advice and support where necessary. 71 Ms Julie Selwyn is the Director of the Hadley Centre for Adoption and Foster Care Studies within the School for Policy Studies at the University of Bristol. She has been a researcher, author, lecturer, advisor and practitioner in that field for over 25 years. Her particular expertise is in the area of adoption and foster care. She was called by the Director-General to address the effect on E of separation from Mr and Mrs F, and the comparative merits of adoption and foster case; her evidence on those topics will be considered later. She was not asked to address the issue of trans-racial placements in her report or in chief, but in cross-examination conceded that it was a "highly contested area", and that there was a school of thought that children should be placed with people of the same ethnicity or race if not able to stay with their family of origin, in order to retain a connection with their ethnicity and race. She thought that with the child having contact with the birth mother there would be an ability throughout the child's childhood and teenage years - when issues of identity usually become more important - to ask questions, and that would have an important bearing on the outcome. She accepted that it would be very helpful for E to have a good relationship with her birth mother, which would make contact and other issues about explaining culture and discovering heritage easier. 72 Ms Beverley Prevatt Goldstein has studied, taught and published on the topic of race and ethnicity in childcare and placement, including in particular adoption and fostering. She is one of the authors of Race and Ethnicity: A consideration of issues for black, minority ethnic and white children in family placement, a practice guide for British agencies for adoption and fostering. Its basal premises include that placements should meet the individual needs of each child in respect of health, education, identity, family and social relationships, social presentation, emotional and behavioural development and self-care skills; and that the (UK) legislative requirement to consider racial origin, culture, religion and language applies to every child in every placement. In chapter 6, entitled "Identity and Self Esteem", the authors wrote: Identity and self-esteem are not mentioned in UK legislation but have underpinned the concern with the "racial origin, culture, language and religion". They are, however, an explicit part of the assessment framework for all children as demonstrated by the LAC materials (Department of Health, 1995), the Working Together to Safeguard Children document (Department of Health et al, 1999) and the framework for assessing children in need (Department of Health et al, 2000). The Utting Report (1997) states: A positive sense of identity, of being somebody, of belonging to oneself, is an inner strength which provides the strongest personal defence against harm. Helping children achieve that identity … ought to be the explicit objective of any organisation entrusted with the care of children. This sense of identity is derived from membership of family and other groups with similar values with which early life experience is shared. Detachment from family and culture plainly impairs its development; membership of a distinctive or disadvantaged community may compound the difficulties; in the case of black children, their situation is further aggravated by the pervasive effects of racism (p113). 73 In chapter 10, entitled "Placement of black children: specific guidelines", the authors advise that a black family is more likely to provide a black child of the same ethnic background with positive black attachment figures which the child can internalise, with an environment where the black child is normal rather than exceptional, with a range of black role models coping with everyday life, and with a resource for ways of coping with and challenging racism. Additionally, such a family with similar culture, religion, language and class to the child is likely to provide continuity of some aspects of the child's heritage; access to aspects of culture not available in the dominant society that involves ways of being and seen as well as ways of doing; access to some of the symbols which enables the child to fit comfortably if they so wish with their ethnic group; and a secure and informed framework in which to reject or adapt aspects of their heritage. On the topic of placement in a white family, the authors say: There will be gaps in what most white families can offer a black child, because of dissimilarities in "racial" identity, a lack of shared experience of racism, an inability to provide black primary attachment figures as well as some of the other factors noted above. These gaps may be particularly damaging to children who will already have experienced separation, loss and discontinuity (Prevatt Goldstein, 1997). There can also be a qualitative difference between black perspectives being an integral part of the home environment and approach of the principal carer, and being only occasionally made available to the child (Kirton & Woodger, 1999). Delay is an important factor and drift in the care system must be avoided for all children. There should be a clear plan for each child and individual time scales. Social workers, having made intensive attempts to locate a black family, and in consultation with specialist black practitioners, may deem it in the best interests of a particular black child to be placed with a white family. Adoption Now: Messages from Research (Department of Health, 1999) advocates that: …such discretion has to be exercised within a framework of policy about what is normally expected. The question arises as to how far the reasons for failing [to observe these policy injunctions] are analysed and justified. (p116). It is essential that such placements remain exceptional, and that the placement decisions are analysed, justified and authorised by senior management. Kirton & Woodger (1999) and Thoburn et al (1998, p28) indicate that some white families can successfully parent black children. The available research suggests that these white families and their extended families must be able to demonstrate an active understanding of the developing needs of the black child; an understanding of racism; commitment to challenging racism and discrimination; the provisional development of networks which can include those of their own extended family or of their child's birth relatives; and enable the child to have access to cultural frameworks which will provide continuity for the child. Nevertheless, the task must not be underestimated as some white families may, despite their best efforts, have difficulty in sustaining these throughout their child's childhood into adulthood. Kirton & Woodger (1999, pp 74-6) and Thoburn et al (1998, pp 34-41) provide a detailed guidance on the assessment and support needed for all families engaged in parenting black children. Kirton & Woodger (1999) warn that a one-off training program is unlikely to engender any fundamental and lasting change in attitude and the careful assessment by aware and competent workers of foster carers' and adoptive parents' current attitudes, with examples, is needed. 74 Ms Prevatt Goldstein gave the following evidence: Q. As I understand your opinion overall, the most significant I think you described as vital elements that are potentially missing from what is otherwise a satisfactory parenting relationship at the moment are, first of all, the opportunity to know and have a relationship with the birth mother? A. Mmm. Q. Secondly, an opportunity to learn the child's culture from someone who knows and is part of that culture and, thirdly, the ability to build defences or protections from the threat of racism in the future. Is that basically right? A. I think so. I would also add about identity in there somewhere, Q. I will add identity and culture, yes. A. Mmm. Mmm. Q. If the child were to remain with Mr and Mrs F, living with them though not necessarily under an adoption order, but have much more extensive contact with D than she presently has, would that go a considerable way to addressing the issues about knowing and having a relationship with the birth mother and learning her culture and identity? A. I think it would go a considerable way. I think it would not be the same and it would require an openness from Mr and Mrs F, which is a lot to ask. It would require an openness ideally, an openness to D, an openness to her extended family so the child has the opportunity of knowing not just one way of being black or being Dinka or being Sudanese, but a range of ways so that she can develop her own way, which of course would be part of her wider Australian identity and, in a sense, I think if her parents – her adoptive parents are so open to contact, to contact the extended family, to understand the issues of racism, in a sense for me I think this – and perhaps this is what I was talking about earlier about giving up some of the privileges of being white, that kind of openness to the black community, but I do think it is not easy to obtain and it asks a great deal of adoptive parents or parents with parental responsibility. 75 Ms Prevatt Goldstein referred to research findings that children who had been placed trans-racially were much more likely than those in same race placements to have felt different to their adoptive families while growing up, and more likely to be classified as "alienated" or "differentiated", and less likely to be classified as "integrated", in terms of their adoptive experience, and that intensity of identity issues was often more pronounced among those who had been in trans-racial placements, and was less likely to have been resolved by contact. She thought that this suggested that, if placed with Mr and Mrs F, E would not be able to reconnect in the long term with her mother D's culture. She accepted that some children had positive outcomes in trans-racial placements, but thought that the research (particularly Brooks & Barth, 1999, on which Professor Katz relied) overestimated the positive outcomes: first, by interviewing only the adoptive parents but not the children, or if the children were interviewed at all only while they were unable to speak negatively about the adoptive parents; and secondly, by prioritising material and educational benefits while minimising the importance of a sense of self. She observed that a positive outcome appeared more likely if the adoptive parents lived in multi-racial areas where the children became familiar with role models of their own ethnicity. 76 It was her opinion that placing E with parents who were ethnically different compounded the difficulties in adoptive parenting: to leave E in the care of Mr and Mrs F risked "genealogical bewilderment and trauma of separation from birth parents". In particular, E would not have the benefit of the cultural traditions to which she was entitled and which could not be passed down to those outside them; nor would she have the benefit of an extended family or peer group with which she was visibly similar, yet she would continually be identified by others as part of that group; and she was likely to encounter racism, but might feel unsupported by, or unable to share it in depth with, her adoptive parents, who would not have known the same experience. These factors would become increasingly significant in adolescence and adulthood, and may affect E's sense of self, and would restrict the traditions that she would in turn be able to pass on to her own children. 77 Ms Julianna Ampofowaa Nkrumah holds a Bachelor of Science with Honours in sociology and social anthropology, and a Masters in Sociology, from the University of Zimbabwe. She was born in Ghana and lived there until 24 years of age, when she came to Australia, where she has lived for 17 years. She has studied African ethnicities and cultures. She is now Senior Health Education Officer at the multi-cultural health unit of the Sydney West Area Health Service. In that capacity she has worked with nine African communities in Australia, including the Sudanese and Dinka community. She is not Sudanese, let alone Dinka, and concedes that this limits the depth of her knowledge of Dinka culture. 78 Ms Nkrumah opines that the long-term effect of E being raised apart from her natural family and culture is that she will lose her biological culture and be culturally separated from her mother and extended family. She explains that to be part of an African culture one has to have a reference point back to a specific cultural group. If brought up by Mr and Mrs F, E will have the physical appearance of an African, but will not be able to operate as an African within an African community. She says that if D's family were aware of these proceedings, the family would find it very difficult to accept the role of adoptive parents in raising E as an adopted child, and that lack of acceptance would create barriers between E, the adoptive parents and her family of origin. 79 Ms Sarah Armstrong has fifteen years' experience in out of home placements, and nine years experience in post adoption work as the senior manager for the Post Adoption Resource Centre, a service of the Benevolent Society based in Sydney that provides counselling for people affected by adoption. She is one of the authors of a book, Armstrong & Slaytor, The Colour of Difference: Journeys in Trans-racial Adoption, which relates the experiences of 27 adoptees, then aged between 17 and 54, so as to draw together the experiences of both Australian-born trans-racial adoptees and inter-country adoptees. She summarised the main findings that emerge from that study: · While some adoptees had experienced unkindness or abuse, the majority had been treated with love and real efforts had been made to incorporate them and their culture into the adoptive family; · Most adoptees thought that the adoptive parents were trying to do their best; · Most adoptees had a strong sense of the opportunities that being brought to Australia had given them in terms of education, health services, career prospects and material benefits, but for those who had come from other countries with a non-white appearance their adoptions had been a badge that they had had to wear whether they liked it or not, and their status was so obvious that strangers could see it and felt justified in commenting on it, there being "no place to hide"; · A significant number referred to the circumstance that, based on their place in the family and society, they almost perceived themselves as white, and many trans-racial adoptees reported a negative view of their own colour and culture. The majority felt that they would never truly fit in their birth culture; · There was general agreement that one's original culture can only be learnt from someone of that culture, and that adoptive parents cannot teach what they would first have to learn themselves; · The presence of an adopted sibling from the same culture was a positive factor; · Almost all had experienced racism, though to varying degrees. Some learnt to cope, and the experience may have contributed to their resilience and strength as adults; for others, the experiences were traumatic and ultimately damaging to the essence of their self-esteem, and may have been impossible to communicate to the adoptive parents, or a source of shame and self-blame. 80 Armstrong & Slaytor suggest "the fragile sense of self described by adoptees in general is perhaps further compounded by cultural differences". From the circumstances that those adoptees who had experienced very little or no racism in Australia had generally grown up in multicultural areas where their school playground was full of children from a variety of cultural backgrounds, and that the adoptees expressed the hope that in cases in trans-racial adoption the adoptive families would see the need to base themselves in areas where their children would have opportunities to meet and get to know people of their own race, the authors posit that residence in such an area and contact with people of the adoptee's own race are an important factor for mitigating identity issues. 81 Associate Professor Green, of the University of New South Wales, is an indigenous Australian from the Wiradjuri people of western New South Wales and holds a Bachelor of Social Work with Honours from the University of Sydney. Her expertise is in the counselling and support of Aboriginal and Torres Strait Islander people. A significant proportion of her clients have been removed as children from their families and culture. She has also worked with Aboriginal women whose children have been removed, in some cases through apparently consensual adoptions. She reports that most of those who were removed as children have experienced more than usual difficulties emotionally and in developing positive relationships, and that amongst them there is a high incidence of confusion regarding identity, and frequent claims of feeling they belong neither to their natural nor to their adoptive parents. They often report little self-worth, and there is a high incidence of self-harming behaviour. She says: It is essential for people to have a full and cohesive sense of self, that they are able to develop their cultural and ethnic identity as they develop their individual identity as they grow and develop from children into adults. If a person is denied access to their culture and are not able to develop that cultural identity through the process of socialisation which occurs within families and communities, the person will experience greater difficulties as an adult in forming a positive self identity and esteem. It is well documented within the Aboriginal community that growing up outside of your cultural and ethnic community and/or with the family who are culturally and ethnically different has detrimental effects upon the social and emotional growth of an individual and is highly likely to result in personality and social difficulties for the individual. The clients I work with (or are currently working with) within the university settings who were removed as children are trying to build new lives. However, this is extremely difficult and the majority suffer from regular setbacks due to the ongoing stress, sense of loss and difficulties with developing relationships. Of all the students and staff that I work with, the people who were removed from their Aboriginal families and cultures are the people who require the most intensive interventions and support of any group. 82 Associate Professor Green suggests that it is not unreasonable to draw conclusions for other cultural and ethnic groups from the experience with Aboriginal children. I agree; there seems no basis for supposing that children of other ethnic groups would be radically different in their response to separation from their family, culture and ethnicity. 83 The court expert, Dr Robinson, accepted that there were many advantages in being raised by a biological parent situated in a similar ethnic community containing extended family members, but said that unresolved identity issues could occur in young adults raised in such an environment, as well as those removed from it. She did not believe that D was necessarily better equipped than Mr and Mrs F to help E cope with racism. 84 In my view, the expert evidence supports the following propositions. First, all else being equal, it is preferable that a child be raised in the context of her natural family, ethnicity and culture. These all contribute to the development of a robust self-concept, which is important to psychological development and the ability to form relationships. Secondly, adoptees generally have a more fragile sense of self, and are more prone to identify confusion, because of the separation from their birth family. The period of greatest risk for this is adolescence. To some extent, this can be mitigated by "open adoption", in which a relationship with the birth mother is maintained. Thirdly, the risk of a diminished self-concept and of identity confusion is exacerbated in cases of trans-racial adoption, because the child is deprived not only of the birth mother, but also of her ethnic and cultural context of origin. Cultural traditions cannot be handed down by those outside them. Trans-racial adoptees are less likely to be able to develop robust mechanisms for dealing with the racism that they might well encounter. Fourthly, these consequences can be mitigated to some extent, though not avoided, by the adoptive family providing exposure to and contact with the child's ethnic and cultural origins, in particular through living in a setting in which there are present black families and role models. 85 The ability of Mr and Mrs F to foster a relationship between E and D and her culture. All parties propose that, in the event of an adoption, there be ongoing contact; in the light of the conclusions just expressed as to the potential consequences of trans-racial adoption, this is an important potential mitigating strategy. The extent to which Mr and Mrs F would promote it is, therefore, an important consideration. If they are supportive of contact, both with D an otherwise with her culture, then the disadvantages of trans-racial adoption can at least be reduced, though not entirely averted. 86 From the outset, it was envisaged that the adoption of E would be an "open" one, in which E would have ongoing contact with D - the proposed adoption plan envisaged face-to-face contact at six-monthly intervals, and telephone contact and correspondence exchanges biannually. On 22 March 2004, the first contact between D and E since the placement with Mr and Mrs F took place, under supervision of Mr and Mrs F and Jenny Klein of DoCS. D and Mrs F hugged. The Fs took E's baby record book and photos to show D. 87 The next contact was on 13 October 2004. Mr and Mrs F, who had learnt in August 2004 that D had changed her mind about the adoption, understandably found this meeting very difficult. 88 On 14 January 2005, DoCS informed D's solicitor that the next planned contact could not take place, as Mr and Mrs F would be travelling overseas. D's solicitor sought details of the trip by letter dated 17 January 2005. On 23 February, the Crown Solicitor requested from D's solicitor an assurance from her treating psychiatrist that contact with E was appropriate. On 4 April, the Crown Solicitor informed D's solicitor that Mr and Mrs F had provided a letter on E's progress and photographs of E, and that these would be forwarded to D once the requested assurance from the psychiatrist was received; D's solicitor responded, questioning why they should be withheld. 89 On 20 May 2005, D's solicitor forwarded to the Department a copy of a report of Dr Anthony Harris, psychiatrist, in whose care she had been since about December 2004. After several requests for contact in June 2005, D was by letter dated 1 July 2005 provided with a letter, photo and drawings from Mr and Mrs F, but informed that Mr and Mrs F did not consent to face-to-face contact as the pending appeal was creating increased stress and anxiety. On 15 August 2005, D's solicitor wrote that she would have no other option but to relist the matter, as contact was not occurring. Mr and Mrs F's solicitor responded on 19 August 2005, that they were not then satisfied that face-to-face contact would be in E's best interests, and requesting a report from Dr Newman, D's expert psychiatrist, as a pre-condition to considering it, but subject to its receipt tentatively proposing contact on 9 or 12 September. E had contact with D on 12 September 2005 at DoCS' offices, for an hour and 20 minutes, in the presence of Mr and Mrs F, supervised by Ms Amanda Whitbread and Ms Pancia of DoCS, and Sr Hixon as support person for D. Although Ms Whitbread reports that towards the end of the session E was slightly unsettled and became more agitated when she was not getting things her way, neither of the independent reports of that occasion – by Ms Whitbread and Sr Hixon – suggests that E was at all distressed. 90 On 26 September 2005, the Crown Solicitor wrote to D's solicitor, encouraging an exchange of information to assist E to know her birthmother and her family and cultural origins. D's solicitor responded on 24 October, maintaining that there was no substitute for E learning these things from D, and seeking further contact. This request was repeated on 15 November. On 25 November, D's solicitor wrote to the Crown Solicitor requesting photographs of E and details of the website which Mr and Mrs F had foreshadowed establishing, and seeking further contact. The Crown Solicitor replied on 1 December that Mr and Mrs F did not feel able to have further contact until the appeal was determined. 91 When, on 23 December, DoCS applied to the court on an urgent basis for orders allocating parental responsibility to Mr and Mrs F, D sought further contact, but it was not agreed, the child representative asserting that contact on the last occasion had been stressful for E. The Department forwarded to D's solicitor a packet of photographs of E. On 23 January 2006, D's solicitor asked the separate representative to explain the basis on which it had been asserted that E was distressed on the last contact occasion; no response was forthcoming. On 16 February 2006, D filed a motion seeking further contact, including telephone contact; the application was listed for hearing on 20 March 2006. 92 Contact took place between E and D on 10 March 2006 at DoCS' offices, for about one hour and 50 minutes, in the presence of Mr and Mrs F, Ms Whitbread and Ms Waterman from DoCS, and Sr Aileen Crowe as support person for D. Although, not unexpectedly, they present slightly different perspectives and sensitivities, neither of the independent accounts – by Ms Whitbread and Sr Crowe – indicate any significant problem with this visit. 93 On 3 April 2006 Barrett J made orders for further contact between D and E, in accordance with which contact took place on 28 April 2006 at DoCS' offices, in the presence of Mr and Mrs F, Ms Whitbread, Ms Waterman and Sr Hixon. Ms Whitbread says that D was agitated throughout. Sr Hixon describes the visit as a tense one. Mrs F thought D was openly angry towards her. D felt that Mrs F demeaned her role. Once again, the various accounts present slightly different perspectives and sensitivities; in my view each of Mrs F and D was determined to make a point that she was E's mother, and not unnaturally that aggravated the other; both contributed to the difficulties on this occasion. 94 Telephone contact between D and E took place on 29 May, and D forwarded a letter to Mr and Mrs F on 26 June 2006. 95 Apart from contact with D, Mr and Mrs F have taken other steps to promote E's understanding of her origins, although until recently they eschewed contact with the Sudanese community because of the fears that had been expressed for the safety of D and E. During 2004, Mrs F made enquiries about an appropriate school for E, and identified that the head girl of one of the schools under consideration was of African background. In October 2004, Mr and Mrs F became members of the Australian-African Children's Support Association (AACSA). At that time, they were contemplating adopting a second child of African heritage, but these plans are at least on hold pending this litigation. In July or August 2006, Mr and Mrs F enrolled in a course on African languages and culture. The results include that E describes herself as "a strong Dinka girl", has some early appreciation of her geographical origins, and knows that D is her "tummy-mummy". 96 By any measure contact to date has been minimal, although it should be acknowledged that it was seen as the beginning, with a view to a potential increase in the future. Despite these constraints, E told the original court expert Dr Milch that D was her "tummy mummy", and that she enjoyed seeing her a lot. According to Dr Robinson, when she observed E with D, they played happily together. But my overall impression of the evidence of the contact visits is that E is not yet entirely comfortable with D, and during contact from time to time seeks out Mrs F for comfort. 97 Since D resiled from supporting the adoption, contact between her and E has been fraught, because of the understandable tension between the parties. There is not much doubt that in those circumstances contact has been stressful for Mr and Mrs F. Visits have taken place in artificial, supervised, circumstances in the offices of DoCS, under supervision of three attendants as well as Mr and Mrs F. At times, emotions of all parties have been relatively highly charged. At times, each of Mrs F and D has sought to emphasise that she is E's mother, which has inevitably aggravated the other. I do not doubt that the tension has in large part resulted from the pendency of these proceedings, in the context of which I think Mr and Mrs F, and in particular Mrs F, have felt somewhat threatened by contact, and have been highly sensitive to any suggestion by D that she is E's mother – as has been D to corresponding assertions by Mrs F. 98 Dr Robinson reported that Mr F was "rather outraged" at a suggested scenario where the child spent "quite a bit of time" with D, saying words to the effect "We're not in it for shared parenting. We want to be the parents. We are the parents. We have been the parents to date. We are not here for a shared parenting arrangement." Mrs F in particular could not contemplate E having contact with D in her absence, at least until her teenage years, because "I just don't consider it would be in E's best interest". When asked to consider that it might facilitate the development of a relationship with E's birth mother, Mrs F said "I consider the relationship with her birth mother is just – is the need for her cultural identity and I don't think that needs to be without Mr F and I there". When asked whether she saw nothing more than a need for cultural identity in contact with the birth mother, she said "No, I don't, your Honour. I consider that I am E's mother and I think that that will be an ongoing process where she will understand that that's, you know – more clearly understands what a tummy mummy is, but no. She's got the love and security of her family. I don't think a child needs to be confused at a young age". In the context of that evidence and other references to her intent to be E's adoptive mother, she was asked: "And is it fair to say that in that context you see the birth mother's role as a very minor one?", to which she answered "Yes". Mrs F accepted that as there had been no valid consent to adoption the whole basis of the relationship was now rather different to that which all parties initially had assumed, which meant that everyone's expectations might have to be modified in E's interests, but she maintained that she did not see the benefit to E in increased contact with D. 99 Mrs F in particular has a minimalist view of the role of D in E's life, which might have been appropriate in the original context of D apparently consenting to those arrangements and there being fears for hers and E's safety, but which is no longer so. I formed the impression that Mrs F had considerable difficulty with, and felt threatened in her maternal role by, the concept of increased contact; and Mr F too was outraged by the thought that anyone other than he and his wife might have a parental role. I was and am troubled by this aspect of their evidence, because it was given in the context that the significant potential benefits of a strong relationship with D had been pointed out to Mr and Mrs F (in particular, by me at the preliminary hearing), and I believe it illustrates that the objection is based largely in the needs of Mr and Mrs F for security in their parental position, rather than in the interests of E. Ms Prevatt Goldstein commented that indications that Mr and Mrs F were threatened by regular, frequent contact would suggest that they were unable to accept D's role and continuing contact, or facilitate bridging the cultural gap, with significant consequences for E's sense of self. 100 Nonetheless, the indications are that contact to date has produced an incipient positive relationship between E and D. This is unlikely to have occurred without the support of Mr and Mrs F, even if they have found it difficult. In the context of the pendency of the proceedings, I do not consider that such resistance as there has been to further contact is indicative of persistent opposition on the part of Mr and Mrs F to the idea of increasing contact over time, of which both indicated acceptance. Indeed, they have always adhered to the view that contact might increase over time, largely according to E's wishes. Given their original disposition to an "open adoption", and their facilitation of contact when it has taken place, I accept that Mr and Mrs F are committed to maintaining contract between E and D, even if they find it somewhat threatening in the context of these proceedings. Although in the absence of an order, if they were left the arbiters of contact, E would not have physical contact with D more frequently than a couple of times a year for two hours or so, at least for some years, I have not the slightest reason to suspect that Mr and Mrs F will not fully comply with any contact order that the Court might make, and do their best to make it work, although at first it may be difficult for them. I expect that they will come to appreciate that it is in E's interests for more contact to occur. 101 Conclusion. If not brought up in, or at the very least with a very strong connection with, her ethnicity and culture of origin, E is at risk of being deprived of the cultural traditions to which she is entitled but which cannot be passed down except by those in them, of the extended family and peer group with which she is visibly similar, and as a result, of having a diminished sense of identity and self-esteem, and a reduced ability to develop the more resilient defences against racism that those who have a shared experience of it can foster. To some extent, the risk can be mitigated, though not removed, by contact with D and her family and community and culture; in my judgment Mr and Mrs F will be sufficiently supportive of such contact that it can be a significant mitigator of the risk. The effects on E of being removed from the primary care of Mr and Mrs F 102 Mrs F took maternity leave from October 2003. In December 2005, having completed a period of leave without pay, Mrs F left her job to be a fulltime parent. It is not in dispute that E is securely attached to and bonded with Mr and Mrs F, who are the only parental figures she has ever known, and in their care, E has developed marked developmental competencies – physically, cognitively and emotionally. They have a substantial circle of friends and relatives with whom E has had contact. To E, Mr and Mrs F are her parents; Mr F's parents are her grandparents; Mrs F's sister and niece are her aunt and cousin, and E has met a female child, Alex who has become her best friend. Placing E with D now would obviously disrupt her existing attachments. The question is whether that disruption is likely to be damaging for E. 103 There are two main themes in the evidence on this issue. The first emphasises that the disruption of attachment bonds involves risk for subsequent development. The second suggests such a disruption can be managed successfully – depending on a number of factors, including in particular the competence of the replacement parent. 104 The terms "attachment" and "bond" are clinical terms, used by practitioners in the field of children's care to describe the emotional ties, essential to a child's psychological well-being, that develop between a child and the caring adults who nurture that child. Secure attachment in infancy is a prerequisite for normal social development, and later positive experiences only partially offset the effects of early social deprivation in this respect, as D's expert Dr Newman has explained in an article [Newman, Trauma in Infancy, the Psychobiology of Attachment]: The infant will be irrevocably affected by earlier experiences. Many appear to have been blinded by theories of infantile amnesia unwilling to consider the plight of infants trapped in chronically traumatising environments of pathogenic parenting and sometimes violence. I would like to argue today that infancy research, developmental psychopathology and Attachment Theory as overlapping approaches can offer a useful understanding of the response of infants to disturbed parenting and its effects on both neurobiological and psychosocial development ... Harlow demonstrated that secure attachment in infancy is a prerequisite for normal social development. Later experiences only partially offset the effects of early social deprivation. The Protest/Despair response to separation is seen in all primates and mammalian infants emit a separation cry when left by the carer. As in humans, the separated infant seeks proximity and comfort in the face of external danger even if the source of danger is the attachment figure itself ... At least in animal species, attachment security and poor parenting with resultant attachment insecurity appears to have long aterm neurobiological consequences. In the human infant, the primary caretaker also acts as an external psychobiological regulator of brain development. Shore argues that this operates via affect - that the caretaker regulates the infant's affective experience. In misattuned relationships, the infant experiences a predominance of negative affect and this has a direct impact on the structure of cortical and sub-cortical limbic areas. What we call insecure attachment is based on alterations in these corticolimbic circuits. 105 Professor Katz, observing that research showed that the most important determinant for future mental health in children was to have secure attachments with their carers at an early age, pointed out that the proposed change was a radical one: From E's point of view, moving to D's care would be a 'reverse adoption' in the sense that she will be taken from her home and familiar surroundings and be placed with a (virtual) stranger in an unfamiliar situation. 106 He continued that the older a child is when placed, the greater the chance of failure, because the child has to cope with the trauma of separation and integration into a new family, and most children placed for adoption have had traumatic experiences in infancy, which become "hard wired", so that they never fully recover from the early trauma. He added that because E has had a loving and stable first three years, she was in very different situation from the majority of children placed at age three and was likely to be much more resilient than many adoptive children, "but the trauma of separation would likely be more acute because she would be removed from loving parents rather than from an abusive or neglectful situation, which is the norm". 107 According to Ms Selwyn, it is widely accepted that the quality of children's early experiences shapes their development in significant ways, and that young children do badly when attachment bonds are disrupted: though they can be moved when this is inevitable, it is very risky, and it is difficult to justify moving a child from a secure good home on the grounds of future possible benefit. "The most important determinant of a secured attachment relationship is the sustained presence of responsive attachment figures". Ms Selwyn described the disruption of attachment bonds as "very risky". She refers to research (Rutter, 1989) indicating that while very young children are protected from separation experiences because they are yet to develop strong attachments, and older children are protected because they have learnt to maintain relationships over time and space, "toddlers are most at risk because attachments first become established at that age and because they lack the cognitive skills required to maintain relationships during absence". Disruption of attachment at that stage will cause extreme stress at the loss of the previous family, and a new carer would have to spend considerable time and be able to offer sensitive care attuned to the needs of the child. "There would need to be an intensively nurturing environment to restore the child's faith in their own competence, love, ability and trust. A child this age is likely to blame themselves for the loss of their loved ones". The immediate stress on the child is likely to be seen in reverting to more infantile behaviour, and there is a risk of the child having difficulty forming and maintaining close personal relationships that may affect the transition to school. 108 Ms Selwyn said that separation of E from Mr and Mrs F would be a highly traumatic experience for E, and would place her in the high risk category for developing a depressive disorder in the future: Even if the child is able to attach to D, she will experience bereavement. She will lose her primary attachment figures (adoptive mother and father), friends, neighbourhood – everything she knows. There is a large literature on the effects of childhood bereavement. Children who lose a parent before the age of ten have approximately double the risk of developing a depressive order in later childhood or adult life compared with children who remain with their primary carers. The risk for children under four years of age is approximately 4-5 times higher (Black, 2000). Since this child has known no other parents but her adoptive parents she would fall into the high risk category for developing a depressive disorder. There is also a significant literature in the UK and USA that emphasises the importance of placement stability. Indeed placement stability has become a key factor in understanding the poor outcomes for children in care …. 109 In cross-examination, Ms Selwyn gave the following evidence (emphasis added):- Q. And would it be fair to say that as long as the quality of parenting is good enough for the child to develop a secure attachment to that parent? A. That is correct, but in this case, if you are suggesting a child is removed from a secure attachment to another family, the quality – because of all the issues that the – the child will bring with them from the losses that they will suffer. It will have to be extremely good enough . Q. Well, would you agree - - A. There are additional – sorry, there are additional parenting tasks as a consequence if a child is removed. Q. You would agree, in terms of attachment theory, if a child is securely attached to a caregiver the prognosis for that child to be able to attach to another caregiver is very good? A. Yes. … Q. And although there will be issues of grief and perhaps some distress from the breaking of that primary attachment to those caregivers that can be managed so that the child suffers minimal distress and is given the opportunity to grieve that loss and form a new attachment, that can be done, can't it? A. It can be done but I wouldn't want to minimise how difficult that is. As I have stated in my evidence because of this child's age and intellectual ability it would be very hard for her to understand why this is happening. The research evidence suggests that to do that would put her at a really high risk of developing a depressive disorder herself. She would be extremely distressed. To move a child should not be minimised, the distress will be great. 110 In December 2004, when E was only about 17 months old, Dr Milch (the original court expert) and Dr Newman (D's expert) concurred that the attachment relationship between E and Mr and Mrs F was secure and E was developing well, and "The removal of the child from her attachment figures would be extremely damaging and distressing to her". It is difficult to see how, in the light of the still longer establishment of the bonds now, and the greater age of the child, that could be any less so now. Subsequently, in his report of 31 July 2006, Dr Milch said that E would, in the short term, experience significant distress and disorganisation, losing not only her secure attachment to her (adoptive) parents, but also the strong sense of community which had been established in the local neighbourhood; in the longer term, the outcome would depend both on the new environment, and also on E's capacity to adapt to her new circumstances. 111 The court expert Dr Robinson (with reference to work by Steinhauer), said that the intensity of an individual child's reaction to separation may be influenced by seven factors, namely: · The age of the child, with emotional distress being maximal between six months and four years of age. E falls within that range; · Whether the previous attachment was a secure one: there is less short-term distress following interruption of a secure attachment. This means that E, having been securely attached to Mrs F, is better positioned for re-attaching to D, and is a positive factor for re-attachment; · The temperament of the child. So far as the evidence goes, E appears to have a temperament which would assist her to re-attach, and has already had some exposure to D, whom she already knows as her "tummy-mummy". But this is highly speculative: as Thoburn et al remark [Permanent Family Placement for Children of Minority Ethnic Origin, London 2000, p 207]: The possible impact of separation from parents or previous carers must be carefully assessed since the evidence suggests that, while children can overcome the stress and sadness of loss and form new attachments, some will be unable to do so. It is rarely possible to be clear as to which will be the resilient children who will get over the temporary harm of separation, and which will carry the emotional scars for the rest of their lives. There were examples of both in all age groups and we could not easily see why, for example, one four-year-old settled in and bonded with the new parents, whereas another four-year-old carried on grieving and failed to fully attach after the move to new parents. Our study gives many clues as to how such decisions can be made and how, if it is right for a child to remain with a white carer to whom he or she is attached, his or her special cultural needs can be met, and pride in belonging to a particular ethnic group encouraged. · Whether there is a history of previous separation experiences. The presence of such a history is a negative factor for re-attachment following separation, apparently because the child becomes conditioned to be reluctant to commit a close relationships. E's only previous experience was at too young an age to be of significance, so the absence of previous separation experience, if not a positive factor for a successful transition now, at least means that a common negative factor is absent; · The duration of the separation. Distress is greater with a longer duration of separation. The proposed separation here is permanent, which will maximise the distress; · The effects of a strange environment. E's new environment will be very different from that to which she is accustomed. Her entire belief system will be challenged. This must maximise the risk. On the other hand, the new environment would be one to which she might be assumed to have some natural affinity, ethnically and culturally; · The nature of the child's situation subsequent to separation, in that the sooner an adequate parent substitute is available, the less the risk of serious long-term sequelae. This factor highlights the significance of the competence of the replacement parents and their ability to tolerate the acute distress of the child precipitated by the separation. 112 Dr Robinson said that removing E from the care of Mr and Mrs F would potentially inhibit her capacity to form intimate relationships in the future and would certainly create a significant risk factor for future psychopathology. According to Dr Robinson, in the short term E is likely to grieve or mourn the loss of Mr and Mrs F, and this will include "signs of anger, pining, sadness and preoccupation with memories and fantasies of her lost parenting", although "there is less short term distress following interruption of a secure attachment". 113 Dr Robinson acknowledged that the disruption of the secure attachment, which would be occasioned by placing E with D, could be successfully managed, so that E would reattach to her new caregiver, D, so long as D provided "good enough" parenting. The circumstance that E was securely attached to Mr and Mrs F bode well for her ability to reattach to a replacement parent, and E's secure attachment to Mr and Mrs F made it more likely that E would be able to "mourn their loss and be able to reattach to [D] than most children who are removed from their parent because of impaired parenting", but this did not diminish the fact that her removal from their care would be a traumatic experience for her, with both the short and long-term consequences being significantly influenced by D's capacity to help her mourn, to parent her in all domains, and her "scaffolding for parenting": her knowledge base and parenting experience, the availability of support (or distress) from extended family and other external sources, the means of financial support (or stress), and her willingness and ability to obtain professional assistance. 114 Ms Prevatt Goldstein reported experience in placing several 2 to 4 year olds in new families, she said all with positive outcomes, but observed that it required careful planning and sensitivity from, and support from professionals to, both sets of caregivers. She concedes "there are no guarantees", and that success would require close work between Mr and Mrs F and D carefully to transfer the attachment, and the ability to convey to E some continuity and respect between caregivers. She opined that E's attachment to Mr and Mrs F and the lack of disruption in her early life augured well for a placement with D, having facilitated E in forming a capacity to attach and to develop trusting relationships with her carers. 115 Ms Prevatt Goldstein did not see the parties, but identified, from Dr Robinson's reference to Steinhauer's research, as positive factors suggesting a reduced likelihood of significant trauma if E were removed from the care of Mr and Mrs F, (1) that D had the firm base of a secure attachment to Mrs F, (2) that there was not a history of previous separations, (3) that the temperament of the child appeared robust, and (4) that her prospective situation following separation was favourable. As I have already observed, I think the third is speculative, and the fourth depends on D's parental competence. 116 In cross-examination, Ms Goldstein emphasised a distinction between distress and damage. She accepted that removal of E as a three-year-old from Mr and Mrs F and placement with D would be distressing, and that distress would occur, and may occur at different periods throughout her life; but did not feel that it would be damaging to E. She accepted that E's distress would be severe, but said that in bonding with her birth mother and working through the distress with her, the process would not be damaging. 117 Ms Prevatt Goldstein was of the view that if it were deemed in E's interests to be in D's care, that change should not be delayed, as E would need to be integrated into an unfamiliar cultural pattern which would become challenging as she grew older. This accords with the view that a successful change becomes more difficult with increasing age. She recommended that, if E were returned to D, support be given to all so that, following a gradual and carefully planned transition, Mr and Mrs F have contact perhaps at six weekly intervals, gradually reducing to six monthly, and that they would need to be supported in providing some continuity so that E did not feel abandoned while transferring her attachment and parenting to D. This reflects the difficulty of managing such a change. 118 The evidence supports the following propositions. First, secure attachment bonds for young children are a very important factor in their development. Secondly, the disruption of attachment bonds involves considerable risk. It would occasion a high degree of trauma and distress. There is no guarantee that E will be able to reattach to D, though she may well do so. It is a significant risk factor for future psychopathology - in particular, a markedly elevated risk of depressive disorder, and inhibition of the ability to form intimate relationships in the future. Thirdly, such disruptions can be managed successfully, depending on a number of factors. Negative factors in this case are that E is in the most vulnerable age range, the separation will be permanent, and the changes in environment will be radical. Positive factors are that she does not have a history of separations, her secure attachment to the Fs provides a sound base for establishing a secure attachment with a replacement parent, and she already knows D as her "tummy-mummy". The long-term prospects would be heavily dependant on the competence of D as a replacement parent. 119 The trend of judicial decision in similar situations was summarised by Hutley JA in Re an Infant K [1973] 1 NSWLR 311, as follows (at 349-350): In his Honour's judgment he said: "I do not believe that a child of six is of an age that permanent damage will result from a change of homes." This is to reject the psychiatric evidence of Dr. Blow and it is not based upon any direct knowledge of the child concerned. It must be based upon his Honour's knowledge of the world. It is true that in O'Connor v. A. & B. (58) Lord Reid said: "In a case like this (it was a case involving the dispensing with the consent of natural parents) I think that a judge is well able to estimate the probable effect of uprooting a child of tender years and transferring it from adopting parents with whom it is happy to its natural parents of whom it has no recollection. In unusual cases medical evidence may be helpful but I should be sorry to see any general tendency to call medical evidence in these cases." Such an opinion does not appear to accord with the practice of English courts. In Re C. (an infant) ([1965] 2 Q.B. 449) expert evidence was received and relied on by the trial judge and the Court of Appeal. The instant case is one in which medical evidence was called and was received without objection and without cross-examination. In my opinion a judge is not entitled to disregard such evidence and decide to the contrary based on his own general knowledge. Dr. Blow, though an officer of the Department of Child Welfare, was more in the position of the reporter of the Scottish Court of whose reports Lord Reid said ([1971] 1 W.L.R. 1227, at p. 1229; [1971] 2 All E.R. 1230, at p. 1232): "A reporter who sees the parties in an informal way has perhaps a better opportunity to form a correct impression that a judge who sees them for a short time in the unaccustomed atmosphere of a court." The expert who sees the child in its every day world is in a better position than a judge who has never seen the child at all, or any of the members of the family of which she now forms an integral part. His Honour could have himself seen the child or, if he considered that there were unsatisfactory features in the evidence of Dr. Blow which required analysis, further elaboration or testing, he could have himself asked that Dr. Blow be brought to the court for questions to be asked by himself ( McCormick on Evidence , 2nd ed., p. 12; Wigmore on Evidence , 3rd ed., par. 2484). The obligation which lies upon the court to consider the welfare of the child requires, in my opinion, the court to depart on occasion from the methods appropriate in adversary proceedings and to take upon itself inquisitorial responsibilities. If regard is had to the weight of judicial wisdom rather than expert evidence there is little support for his Honour's view. Thus in O'Connor v. A. & B. ([1971] 1 W.L.R. 1227, at p. 1231; [1971] 2 All E.R. 1230, at p. 1233) Lord Guest said: "I refer to the disruptive element which must occur in the life of a child now over three years of age by removing him from the home of the adopters who have had him under their care for close on two and a half years to the home of his parents who are really strangers to him." and Lord Simon of Glaisdale ([1971] 1 W.L.R. 1227, at p. 1238; [1971] 2 All E.R. 1230, at p. 1240) said: "Expert evidence is not required to tell us that the handing over of the child from a family into which he has been integrated to one of total strangers is likely to be far more disruptive and damaging to him now (i.e. 30th June, 1971) than it would have been at the end of 1968 or up to the middle of 1969." This was also emphasised in Re C. (an infant) ([1965] 2 Q.B. 449, at pp. 452- 455), a case in which the medical evidence quoted in the judgment of Pearson L.J. is very similar to that given in this case. The question as to the effect upon the welfare of the child of a change in a settled relationship which the child has developed, if she is to be returned to her parent or parents has often come before the courts in cases concerning custody. Though every case depends on its own facts, the advantages of the child remaining where it had developed stable emotional connections have usually prevailed over the speculative claims of the natural parents or parent that they can replace these connections without harm to the child: see, e.g. In re E. (an infant) ([1967] Ch. 761), a very strong case involving the preference of a paternal aunt over the mother; J. v. C. ([1969] 2 W.L.R. 540; [1969] 1 All E.R. 788); McKee v. McKee ([1951] A.C. 352, at p. 361), a contest between husband and wife; Platz v. Lear & Lear ([1936] 3 W.W.R. 464), a contest between grandparents and father. In re R. (an infant) ([1966] 1 W.L.R. 1527; [1966] 3 All E.R. 58) is perhaps to the contrary. 120 Conclusion. Accordingly, the effects on E of being removed from the primary care of Mr and Mrs F would be a certainty of a high degree of trauma and distress in the short term, a high risk for developing a depressive disorder in the future, and potential inhibition of her ability to form intimate relationships in the future, notwithstanding a reasonable prospect - but one which could not be guaranteed - that with "good enough" parenting from D, she could reattach to D. This focuses attention on D's competence as a parent. D's capacity to care for, understand and cope with E, especially with her response to separation from Mr and Mrs F. 121 As has been observed, Dr Robinson explained that both the short and long-term consequences for E of removal from the care of Mr and Mrs F into that of D would be significantly influenced by D's capacity to help her mourn, to parent her in all domains, and her "scaffolding for parenting". Professor Katz, conceding that all else being equal it is better for children to remain with their natural parents in their own community of origin, identified the issue as "not whether D would be a better parent for E than Mr and Mrs F, but whether she can provide adequate parenting for E over the long term", which, he said, was a matter of clinical judgment to be addressed by Dr Robinson. Ms Selwyn went somewhat further, suggesting that, in order to justify the removal of E from Mr and Mrs F and the associated distress for E - a move from a certain stable future to an uncertain one - it was insufficient that D might be able to provide "good enough" parenting; to justify such a course, "it would have to be extremely good enough". Particularly relevant in this case are D's knowledge and experience to be a parent, her relationship with her extended family and the availability of support or vulnerability to danger from them, and her mental health and stability. 122 D's parenting skills, knowledge and experience. While it is true that D's parenting capacity is largely untried and unproved, it should not be overlooked that the parenting capacity of every first time parent is untried and unproved, yet the overwhelming majority of them make "good enough" parents. 123 Jennifer Brown, a social worker, observed D with a child about E's age over a period of about two hours in a McDonald's restaurant. D selected the child – who was a child of D's extended family - and the child's mother, apparently a relative of D, was present throughout. Ms Brown's view was that D interacted appropriately with this child. Unfortunately, I am unable to derive any assistance from Ms Brown's observation; it was too limited in time, and too artificial in context, to found any sound conclusion as to whether D has the requisite parenting capacity to cope with E upon removal from Mr and Mrs F. 124 More significantly, from the age of 14, in the refugee camp, D cared for children. Dr Robinson suggested that she was "precociously thrust into care-giving", and that this was not necessarily to her best advantage, but this experience must have given D some preparation for the role of caring for a child, which many first-time parents in Australia do not have. Dr Robinson quibbled that while she had done some care-giving, this would not be called parenting - because while she provided some functional care, it did not involve the emotional nurturing aspect of parenting. That may be so, but, nonetheless, I think she must have acquired some skills in providing at least for the lower-level needs of children. 125 However, to cope with E in the context of separation from Mr and Mrs F will require more than the ability to provide for her lower-level needs. Neither in D's presentation at the pre-trial hearing, nor subsequently when she gave evidence and was cross-examined, nor in the evidence of the contact occasions, did I detect a comprehension of the enormity of the changes that would be involved for E, and the potential consequences. In my view, her insight in this respect is somewhat shallow. D has an understandable and enormous need to have her child with her, to care for her, and to be seen to be her parent. She cannot understand why she cannot commence mothering the child and have the child with her at all times. She is subject to family pressure to recover the child, some members of her community alleging that she has sold her child; she wishes to show her community that she has not done so. It is perceived by her, entirely reasonably, to be unfair that, because of her purported consent, now established to be invalid, she has, in effect, lost her child. But while that perception is entirely reasonable, it has little to do with the best interests of the child in the situation that has now evolved. 126 Moreover, D is determined to raise E as a sole parent. There is nothing inherently inappropriate about this, but it has the practical significance that D would not have the support and safety net that a partner provides, and E would be totally reliant on D's physical and psychological well-being. (Although it also means that E would never have a brother or sister, that counts for little as she may well have neither if she remains with Mr and Mrs F). D's evidence on this issue was illustrative of what I thought, again, was a lack of depth in her insight into the complexity of E's interests: Q. Just so the last question or answer might not appear confusing on the transcript, if E is returned to you, you tell us here today you will not be involved with any man of any sort whatsoever. A. Yes. Q. And if E is returned to you she can expect to grow up in the family that is made of just you and her? A. Yes. Q. And that means of course as well, do you agree, that there is no prospect that she would ever have a brother or sister? A. Yes. Q. And do you think that is in her best interests? A. She will understand it and it is her best interests if she grows up knowing my language. She will understand it how we do things. 127 Dr Robinson commented: ... I would be very surprised for a young woman to make that sort of resolution, and for it to that way be, that the future holds that sort of prospect. It sounds very bleak to me to make a resolution that I would stay - if this is how I am understanding what you are saying - I will stay single so I can parent this child. I think that's an extreme sacrifice that is not in the best interests of the parent and, therefore, certainly not in the best interests of the child. One of the tenets, I think, of parenting, to be able to parent well, is that a parent, the adult, must meet adult needs and by being a "physically fulfilled and well rounded", if you like, type of person that should be able to parent your child. To make extreme sacrifices for your child, I think, can be quite a burden for the child, especially if the child is aware that Mummy/Daddy did this for me, and can see that the parent might be suffering for that decision. It concerns me, that proposition. 128 I should interpose that while I by no means reject Dr Robinson's evidence, which in many respects I found instructive and helpful, I am not unmindful of the legitimate criticism that she was inclined to be somewhat too pessimistic so far as D was concerned: Ms Prevatt Goldstein pointed to a number of matters in Dr Robinson's report that tended to suggest a propensity to interpret the facts more in favour of Mr and Mrs F than in favour of D, and I must say that I thought Dr Robinson was inclined to hypothesise excessively for deep psychological explanations for D's perceived need to have a child and as to her attitudes. Accordingly, while there is much of assistance in her evidence, I treat it with a degree of caution when she moves from general professional opinion to its application to the facts of the case. However, I share her concern expressed in the above passage. 129 Dr Robinson described D's early life experiences and tragedies as "very well known risk factors for impairing a person's parenting of a child". 130 Dr Harris, on the other hand, who had discussed with D the prospective care of E and her integration into D's family, and her history of providing care to the children of relatives in the refugee camp, opined that she had both the maturity and the ability to care for her child through a very difficult period, and to tolerate the distress and anger that a child may have at that stage. He thought that D had the aptitude and intelligence to be her child's mother, and that her wish to bring her child back into a large family was both a culturally appropriate one, and a recognition of her isolation as a single parent. However, Dr Harris was D's treating doctor and I thought rather aligned with her; as will be seen in connection with his prognosis for her mental health, I think he was inclined to be somewhat too optimistic; I treat his evidence with similar caution as I apply to Dr Robinson, when he moves from general professional opinion to opinions on the capacity of D as a parent. 131 In summary, while D has the benefit of some experience in caring for young children, her parenting capacity is untried, and may be compromised by her considerable losses in her life. I am concerned that she lacks insight into the complexity of E's best interests, and the enormity of the challenge that parenting D in the circumstances of a removal from Mr and Mrs F will pose. 132 D's relationship with her brother and family. The Director-General, supported by Mr and Mrs F and the child's representative, contend that E would be at risk in D's care, because of the attitudes of D's brother and community, who might cause harm to E, or to D. If this be correct, it would tell strongly against E now being placed in D's care, and would also tell strongly in favour of a finding of "serious cause for concern" under s 67(1)(c). Quite apart from any such risk, the extent of support that D's family and community would provide for her and E is an important component of her total parenting capacity. 133 It cannot be doubted that from the time that she learned of her pregnancy until at least some time in 2005, D entertained great fear as to the safety of E, and indeed her own safety, if it were discovered that she had given birth to E. The Blacktown Hospital notes in respect of D for 22 April 2003 record that she wished her admission to remain confidential, as she was fearful of her brother's reaction to a pregnancy. On 19 May 2003, D saw Janet Colgan, an obstetric social worker at Blacktown hospital, and told her that she was living with her brother and cousins who did not know she was pregnant, and that she was very frightened about how her brother would react if he found out about the baby. Ms Colgan understood that D did not want an interpreter present, as she was fearful that someone from her community would inform her family of her situation. The Blacktown Hospital notes for 19 May record that D was frightened of how her brother would react if he found out that she was pregnant. 134 The Westmead Hospital notes for 23 May 2003 record D as having stated that she was raped and consequently concealed the pregnancy from her family, and was concerned that if they found out, she would be stoned to death as this was part of her culture. On 26 May there is an entry in the Blacktown Hospital notes: "She says she can't keep it as it is against her culture and if they knew she would be harmed, said if she was in her country she would be made to kill her baby. She has had to keep this secret from all her family". 135 On 27 May 2003, D told Lynne Tripet that she was too young to have a baby in her culture, and that because she was not married she and the baby would be killed if her family found out. She was afraid that someone from her community would find out that she was pregnant, and afraid of what her brother would do. She refused the use of an interpreter, because her brother was an interpreter with the Department of Housing and she was afraid that word might get back to him through other interpreters. Ms Trippet explained that attempts were made to stall D's visit to her aunt for long enough after the birth to allow her to recover from the surgery so as not to cause further suspicion. The Westmead Hospital notes for 27 May record that if anyone found out about her pregnancy she would be killed, and that she was terrified that someone in her community or family would find out about the pregnancy. D has never given Ms Trippet any indication that anyone in her family or community knew about the baby - apart from Mary, a Sudanese Anglicare worker. 136 In her most recent affidavit, sworn 4 August 2006, D said that on arrival in Australia she lived about five minutes away from her brother's flat, and mixed mainly with her brother and cousins who lived with him. She says that after seeing the doctor, when she was told that she was pregnant, she had occasion to visit her brother's unit in the evening, and he asked "Can you tell me who is the man who made you pregnant?", to which she responded: "I don't know what you are talking about". He kept pressing her and she denying it, until he locked her in his bedroom, took off his belt, threw her on the bed and started beating her. The beating continued on and off for about an hour: He was hitting me with the belt and slapping me. He was also trying to punch my stomach. I had to bend over to hide my stomach so he could not hit the baby. I tried to get away from him and he pushed me back. I have a scar on my right lower back from where my brother hit me with the belt. 137 When plans were made for D's admission for confinement, it was planned (as eventuated) that she would be admitted under a pseudonym, Catherine. The "confidential birth plan" records: She hid the pregnancy from her family and friends because in her culture she would be killed. She is now in the Parramatta Mission Refuge until she has the baby and is planning to place the baby for adoption in order to ensure the safety of herself and the baby … Catherine has been told that her brother has the Sudanese Community looking for her and so is very anxious to remain hidden. There is also a history of abuse by her brother and she does not want to return to live with him. Under no circumstances must any information about her be given out and we need to ensure the security of Catherine and her baby as much as possible. 138 On 3 June 2003, Ms Trippet told Jenny Klein of DoCS that D did not want to use an interpreter, as she was afraid that her family and community would find out she was pregnant. On 1 July 2003, D and Karen Devins, her support person from the refuge, saw Ms Klein. D said that she really wanted to keep the baby, but was afraid if she were to keep it her brother and family would find and kill them. Ms Klein recalls that D was worried about being "casted", or killed or beaten, and the baby being killed; D said that she would not be able to get married, and that no-one would provide for her and the child as an unmarried mother, as it was unacceptable in her culture to have a baby out of wedlock. 139 In a conversation on 3 August 2003 about her options for the baby, D told Ms Devins that she would be "cast" from the family, as they would not understand that she was not drunk or wild and it would not matter that she was raped, "they would kill the child and cast me". The caseworker notes from the refuge, made by Ms Devins, record on 3 August 2003: "She said she would be cast from the family. He wouldn't understand that she was not drunk or wild. It wouldn't matter that she was raped – family would kill the child and cast her". 140 On 5 August 2003, D told Ms Klein that her decision for adoption was based on her fear that no-one in her family would love E, because she had the child while unmarried, and that she and E would be at risk of being harmed: "If my family know about the baby they would ask a lot of questions which I do not want to answer, it would lead to fights. I wonder if my mother was here whether it would be different, because women look after each other". 141 On 29 September 2003, D and Karen Devins met with Ms Klein. Ms Klein mentioned that there had recently been a story about a Nigerian woman who was to be stoned for having a baby out of wedlock, to which D replied: "I think that woman is a Muslim, and the Muslims deal with things very differently from my own culture. In my culture and tribe, if a woman leaves her husband and has a baby to another man, the baby will die. If you have a baby out of wedlock, then both baby and mother will be beaten by the parents and outcast". 142 Karen Devins thought that D was very fearful of her brother finding out that she was pregnant: when she was admitted to Westmead Hospital shortly before the birth, she was concerned that someone would see her in the hospital, because Sudanese people frequented the hospital. D said: "Someone might look in and recognise me and tell my family". Ms Devins observed that after the baby was born, when D was leaving the hospital she encountered some Sudanese people who knew her, and she seemed very afraid. D said: "They'll go back and tell someone else and I'm worried about my safety and the baby's safety". As Ms Devins was D's support person, and as there is no reason to suppose that she was otherwise than inclined to help D, her evidence is significant. 143 According to D's former tutor Ms Dulcie, in late 2004 and early 2005 she had a number of conversations with D about her attitude to her family and community members, when D said that she was prepared to leave the family and community and relocate out of Sydney if necessary to protect the child, given the previous assault by her brother. According to Ms Dulcie's recollection, D had not told anyone in the community, and she did not want to tell people about the child until the child was back with her. Ms Dulcie thought this was due to a combination of factors, partly a want for privacy about how she had become pregnant, partly an element of shame as to what had happened, and partly a want to protect herself and the child from scrutiny as well as from any further risk of harm. There is no reason to suppose that Ms Dulcie was other than sympathetic to D, or to doubt her evidence. It is consistent with what D said in an affidavit sworn on 16 November 2004, shortly before the hearing before Palmer J, in which she deposed that if her brother found out about E she did not know what his reaction would be, but that she now knew that she could go to the police and the police would protect her. She said that she had not seen her brother since the assault and only spoke to him occasionally and does not see people from her community: "I do not wish to see my brother. I would happily give up seeing my brother forever if it meant I could have E returned to me". 144 An assessment in the Western Sydney Health notes (Merrylands Community Health Centre) on 24 December 2004 records "brother is verbally abusive over the phone about past events". Dr Harris, D's treating psychiatrist, reported that at the time he first saw her, in December 2004, she had said that she thought her life and the child's was at risk because it had been born out of wedlock; he explained that this was D's description, in December 2004 or January 2005, of her state of mind some eighteen months earlier rather than her then current state of mind. He described his understanding of the position as involving "some ambiguity" as to whether or not her brother knew of the child much earlier, and as to whether the cause of difficulties between her brother and her was that she was pregnant or had a baby. Dr Harris was generally supportive of D's case. 145 Jennifer Brown, a social worker and case manager at Barnados in adoption and permanent care, was retained on behalf of D to prepare a report for this litigation. She interviewed D and reported that she arrived in Australia and within six weeks found she was pregnant: At this time she was living with her brother who suspected the pregnancy and assaulted her to find out the identity of the father for dowry reasons. D took herself to Blacktown hospital and as she was fearful of returning home she was referred to a refuge. 146 D's oral evidence as to the period of and immediately following her pregnancy was surprisingly vague, about events at the time of E's birth, the pseudonym she adopted to protect her identity, how E's forenames were chosen, and in particular of a letter she wrote to E at the time of the adoption. She said that she could not now remember much from that time: she could not remember telling people in the hospital that it was important to protect her identity, and she claimed no memory of the name that she assumed at that time. Despite having acknowledged in her statement at the preliminary hearing that she had previously been very concerned at the risk and dangers to herself and her child if her community discovered that she had had a child, she could not particularly remember telling Ms Devins that she would be cast from the family or that she and the child would be killed. Despite the graphic and specific description in her affidavit evidence, her evidence as to the fight with her brother was extraordinarily vague. When interviewed by Dr Robinson, D had described her beating by her brother as a "misunderstanding". 147 D says that she has now told her family about E. Indeed, it appears from her affidavit, sworn 4 August 2006, that she is under some pressure from her community to regain the care of her child. At a meeting with Amanda Whitbread and Michelle Henderson on 25 August 2004, D said that her mother did not want the baby adopted, and that adoption does not happen in their culture. An entry for 29 June 2005 in the Merrylands Community Health Centre notes records that D's solicitor Beth Jarman stated that D had informed the rest of her family about the baby, and they were applying pressure for her to get the baby back. However, there are significant inconsistencies in her evidence as to the timing and extent of her family and community's knowledge about E. In her most recent affidavit, D said that she informed her family about E in about April 2005, first telling her sister overseas, then her brother, and then her aunt who arrived in Australia with her six children in April 2005. She said that she has also told her mother and grandmother, who continue to live in Kenya, about E. In her oral evidence, D said that she told her brother about E in December 2003, but this seems most improbable. She denied that she was afraid to tell her family about E until April 2005, but on balance, having regard in particular to the Merrylands CHC note and her earlier affidavit evidence, that is probably when she did inform them, other than her mother in whom she confided at an earlier time. 148 D now says that she is no longer frightened of her brother and does not believe that he would harm E in any way, but now knows that she can go to the police who would protect her, and that she now has a network of support and family members in Australia who were not available in 2003: two aunts, one uncle and eight cousins in Sydney; an uncle in Wagga; four uncles, six aunts (four of them maternal) and thirteen cousins in Adelaide; one first cousin, seven second cousins and one great aunt in Brisbane; and an aunt with three children, and an uncle with his wife and two children in Western Australia. All these have arrived since E's birth, and D says that as a result, her brother no longer has direct responsibility over her. She says that since having told her brother about E, "He has not been aggressive or angry at me". 149 In my view there can be no doubt but that D, during her pregnancy and for some time thereafter, entertained great fears for the safety of E and herself at the hands of her brother and perhaps her community, and her oral evidence considerably understates the level of fear which she then had. However, while it is clear that those fears were then entertained, it is important to understand whether there was, or would now be, substance in them, such that she and/or E would in fact be at risk. This depends on Dinka cultural attitudes. In her oral evidence, D explained "It's usual for someone to be afraid in our tribe if they can see that you are pregnant but they don't know who your husband is". She agreed that she had been afraid of her brother discovering that she had become pregnant in the manner in which she did, and "It is usual in our tribe to be afraid if you are pregnant and then you feel embarrassed for yourself and for others". 150 This derives some corroboration from the evidence of Ms Nkrumah, who though not of Sudanese, let alone Dinka, origin, and not professing intimate knowledge of Dinka culture, claimed some knowledge of it, and -although Mr F gave some contrary evidence - provided the best evidence (despite its not inconsiderable limitations) on the topic of Dinka cultural practices. She explained that a child born out of wedlock was not treated in a discriminatory manner once the child was born, regardless of his or her paternity, but that the mother would be stigmatised while she carried the child. The stigma did not persist after the child was born, either in respect of the child or the mother. Similarly, if a girl were raped there was a stigma attached to her, but not to any child born as a result, whereupon the stigma attached to the mother evaporated. 151 Ms Nkrumah also explained that in traditional societies, children were valuable as they brought families access to wealth, and in the event of marriage the parents or father of a Dinka child would receive a dowry in the form of many cows, and wealth would be brought to the parents of a Dinka girl in that way. She was unable to say whether that attitude persisted in the current Dinka community. Although she was uncertain about it, she expected that it would be quite difficult for a girl to resist divulging the source of a pregnancy and that she might well be in trouble if she did not, at least partly because no-one could be identified in that event to meet the dowry payment. 152 It is clear that the time of her pregnancy, and a period subsequent to it, was very difficult for D. She had been the subject of a quite vicious attack by her brother. All concerned had been in Australia for only a relatively short time. I am inclined to the view that, as she has suggested on at least one occasion, her fight with her brother was "for dowry reasons"; and for cultural reasons she felt shame during her pregnancy and would have been stigmatised had it been discovered. This explains her fears at the time. There is no basis in the evidence for concluding that there was any risk after the child was born. 153 The Director-General, Mr and Mrs F and the child representative legitimately point out that D has not called her brother or any other member of her family, or for that matter of her community, to give evidence, who could have shed light on his and their attitudes towards E, when she would ordinarily be expected to have done so in the light of the other evidence. D said that she had not told her family and friends about the current proceedings: … as they would not understand as they do not understand adoption. I believe they would be greatly upset by the current matter and I do not want them to be over-involved in the court proceedings. 154 On the third day of the hearing, D introduced two women as supporting persons who were permitted to remain in the courtroom, and who she said were an aunt and a cousin. However, they did not give evidence, and did nothing to advance the state of the court's knowledge of the attitude towards D and E in her community. Thus, to a considerable extent, the court is deprived of evidence as to whether D's family and community would be supportive of D and E. No acceptable reason was given for not calling any of these people, and there is not inconsiderable force in the submission that an adverse inference should be drawn. When asked whether she understood that one of the major points being made against her case was that no-one from her family or her culture had come forward to give evidence on her behalf, she answered: A. Yes, your Honour, but I think my aunty is here. As I told my – part of my relatives, some – except my brother, that I didn't let him to see my lawyer, but the rest doesn't speak English and it's not good the way I feel to come and interpret what they say. I don't feel it's a fair way to do it so I decide not to give any affidavit. Q. Did you just say something about your brother seeing your lawyer? A. I didn't tell him to see my lawyer. 155 Despite this serious deficiency, and despite the circumstance that she was obviously once very frightened for herself and for E, I am not satisfied that she or E would be at risk of harm from her family or community in the event that E were placed in her care. While it is true that there is an absence of evidence from her brother and her family and community, and the evidence of Ms Nkrumah is not that of someone intimately familiar with Dinka culture, it can also be observed that on the other side there is a total absence of evidence that there would be a risk. No expert has been called, nor any document tendered, to show that there is any such practice of "casting" amongst the Dinka. On the other hand, although D was obviously once very fearful, the very fact that she is evidently no longer afraid, itself suggests that she now appreciates that there is not a reasonable basis to harbour fears for her own or E's safety. However, the extent to which her family or her community would be supportive remains unsatisfactorily explained, since no member of either was called. 156 D's mental health and stability. Is D's parenting capacity jeopardised by vulnerabilities in her mental health and stability? 157 It is not in issue that D suffered from major depression at and about the time of E's birth; indeed it was on that basis that her "consent" was agreed and held to be ineffective. 158 She was depressed again at the time of the hearing before Palmer J in December 2004, and when she first came into the care of Dr Harris at about that time or early 2005. On 9 December 2004, D learned of the death of her best friend in the refugee camp, and on 13 December she was admitted to hospital under the (NSW) Mental Health Act 1990. At that time, she was diagnosed as suffering from clinically significant depression and Post Traumatic Stress Disorder. Both Dr Newman and Dr Milch reported that she required treatment, and that her competency should be reassessed following a period of supervised treatment. She was discharged on 20 December. 159 She had a minor relapse in December 2005, and a major relapse, following the distressing contact visit in April 2006, in May-June 2006. During her May 2006 relapse, D admitted to a health worker that things were not going very well for her, and that she felt low and had had suicidal thoughts, but she did not think she would do anything to herself. Later, at the Merrylands Community Health Centre, she felt "flat and teary", stating that "she was emotionally exhausted and could no longer cope"; when asked about suicidal thoughts she stated "she knows she will kill herself if her child is not returned to her", because there is "no other solution". The May 2006 episode was sufficiently severe that a community health worker recommended hospitalisation, and Dr Harris increased her medication from 15mg to 30mg Mirtazapine. Mirtazapine is an antidepressant in the serotonin-noradrenaline re-uptake inhibitor family, prescribed for major depression. 160 Dr Harris agreed that D suffered from major depression, though it was currently in remission. Her PTSD remains untreated: Dr Harris has considered that such treatment would be difficult for her to undertake at present, and ought to be postponed. The long term implications of untreated PTSD for someone in D's position include an increased risk of a number of psychiatric conditions, major depression being the most likely, but others include a range of anxiety and substance use disorders. 161 Doctor Harris maintains that D's prognosis is good. Although that was an opinion he first offered in August 2005, before the relapses, it - somewhat surprisingly, given the stark evidence of the relapses after the prognosis was first offered - remains unchanged. But he conceded that a history of major depression, especially with relapses, is indicative of a significantly increased risk of further episodes, and that one could not be confident that there would not be further episodes in the future. Dr Harris opines that D should remain on medication for at least two years. 162 On one view of the evidence, D says she will not take medication if prescribed for her: Q. What I am asking you is, if in the future Dr Harris says I think you need more medication than you are presently taking, will you take it? A. No, I will not take it. If I am with my child and there is nothing caused me depressed, my child is with me, my child will be with me. Q. If she comes back into your care does that mean you will continue seeing Dr Harris or not? A. Well, I have to see Dr Harris anyway to see, to tell him how I am going with my child. Q. But your own view is you probably won't, he will tell you, you don't need the medication any more once she is with you, is that what you think will happen? A. I don't know. I am not a doctor but the Doctor, he knows, he is going to take me off the medication, that is why I follow what he says. 163 However, taken as a whole, and making due allowance for language difficulties, I am not persuaded that D's initial answer should be read as a refusal to take medication if prescribed. Nonetheless, she has not always been fully compliant with treatment, and the evidence does not support the submission made on her behalf that she is compliant with her treatment regime. D is currently prescribed Mirtazapine, 30mg, but is only taking 15mg. Mirtazapine is prescribed for D because it is a sedating medication and treats one of the features of her depression, which is agitation and insomnia. The usual dose is between 30mg and 60mg; D's prescribed dose was increased to 30mg at the time of the relapse in June 2006. However, on that dose of 30mg, D feels sedated through to the following morning, and finds it difficult to get up, so she has unilaterally reduced her dose to 15mg. The first her treating doctor knew of this was when he came to Court to give evidence and was so informed by D's lawyer. 164 Dr Newman opines that D's prognosis is largely related to the outcome of the case, and that there is a risk of recurrence if she remains estranged from her daughter, whereas if reunited with her child , while D would face issues of becoming a parent under difficult circumstances "her depression currently has resolved to the extent that her mental health status is not seen as a contraindication to this". Mr Anderson points out that Dr Newman was not required for cross-examination and that her evidence was unchallenged. However, in her earlier affidavit of 16 December 2004, Dr Newman had identified that D was suffering a severe mental disorder which had been inadequately treated, and considered that she was then impaired in her capacity to care for a child. Moreover, insofar as her more recent report contains a professional psychiatric opinion, it does not deny that D is at an elevated risk of relapse; and insofar as it contains an assertion that D's mental health status is not a contraindication to having care of E, that is not strictly a matter of expert professional psychiatric opinion, but ultimately an issue for the judgment of the Court. 165 Dr Robinson thought that D had not satisfactorily grieved the many losses in her own life, and that whereas at the moment she was able to defend against it, while she was focussing on the fight for the child and for a life in Australia but not looking too much back at what has happened in the past, in the event of E coming into her care the experience of the child's pain might drag her back to her own grief, whereupon she might decompensate and relapse into depression, leaving E unsupported or inadequately supported. 166 As Ms Falloon submitted, D's mental health is fragile. Superimposed on a presumed genetic susceptibility or predisposition to depression, events in her life before as well as after E's birth have contributed to her depression: the separation from her parents, the loss of her father, the rape, then subsequently the practical loss of her child, and the stresses of life in a strange and foreign environment in Australia. In my view, the combination of the history of major depression with relapses and her untreated PTSD combine to indicate a real and significant risk of relapse. Her medication on a reduced dose does not necessarily control her depression, but on an ordinary dose renders her too drowsy to function normally. To become responsible for the care of E may bring D joy and pleasure, but the difficulties and challenges of caring for a child - who would undoubtedly be, at least for a time, highly distressed following separation from Mr and Mrs F - would also be a further stressor, and might trigger a decline into depression. It is impossible to predict the impact on D's mood of the return to her care of E, but it is plainly within the realm of possibilities that short-term elation might be followed by longer-term depression as the burdens of caring for a four-year-old take their toll. Any recurrence is a risk not only to D's own welfare, but if E were in her care, to the welfare of E also. 167 Conclusion. E would not be at risk of violence or abuse from D's brother or family in D's care. It is likely that D will ordinarily have adequate, or "good enough", parenting skills; her experiences in the refugee camp gave her additional background experience that, to some extent, advantages her. However, D's parenting capacity is compromised: by lack of insight into the complexity of E's needs and the potential difficulties upon removal of E from Mr and Mrs F; by her resolution not to have a partner and the absence of any other apparent support mechanism; and by her mental health vulnerabilities. Together, these leave doubt as to whether D will always be able to provide the requisite quality of care; it may be that she can, but there is a not insignificant risk that her ability to do so may, at least from time to time, be compromised. In circumstances where no evidence has been called that enables me to form any view as to the support that D may or may not receive from her family and community, this concern cannot be mitigated by confidence that D's wider family or community could or would bridge any gap. The alternatives to an adoption order and the likely effect on E in both the short and longer term of changes in E's circumstances caused by an adoption 168 The Court is required to consider the alternatives to the making of an adoption order, and the likely affect on the child in both the short and longer term of changes in her circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child [Adoption Act, s 8(2)(k)]. As has been foreshadowed, the alternatives to the making of an adoption order in this case include making an order that has the effect of giving Mr and Mrs F parental responsibility for E. 169 Ms Selwyn was asked to express an opinion on the respective benefits of adoption and foster care. Her view was that where the aim was to provide a family for life, adoption was preferable, and that research showed that adoption was more stable, produced better psychosocial outcomes for children, and was far more likely to provide support for the transition to adulthood. She referred to research showing that when asked, children preferred adoption because it gave them a greater sense of belonging (Triseliotis, 2002), and that the relationship between foster parents and children was influenced by insecurity (Bohman & Sigvardsson, 1990, p105). Her own study (Selwyn, 2006) of the care histories and placements of 130 children all thought suitable for adoption, but not all of whom were placed for adoption, showed that over time, adoptive placements were far more stable than long term foster care placements; and children were far more likely to report that they felt close to and able to confide in adoptive parents than was the case with foster parents. Ms Selwyn explained that the research tended to show that children placed in foster care without the security of an adoption order were left anxious and uncertain about their future, as were their carers, and the impermanency of the situation left those involved wondering what would happen next. The children felt that they belonged to nobody, having a different surname from the adults with whom they resided. This extended to the circumstances of "open adoption": Q. … the studies that you have referred to about the comparative success of adoption and long term foster placements, in those studies have cases in which there has been a birth parent on the scene and keen to be involved featured in those studies to any extent? A. Yes. In my own about a quarter of the children who were placed for adoption, and similarly the foster care group, had contact with birth family members. 170 When asked whether an adoption order would be appropriate in a context where a hypothetical possibility was that the child might live with Mr and Mrs F but have increasing contact with D, and in adolescence decide that she wanted to live permanently with D, she answered that for a child as young as E the benefits of an adoption order - even if there were such a change in adolescence – would be the stability at an earlier age which would position her to make such a decision later. She gave this evidence: Q. Wouldn't making an adoption order put a further mental or notional obstacle in the way of a relationship between E and D by removing D as a legal parent? A. That is a possibility, Your Honour, but it may also make the situation much clearer to the parties. It may remove any ambiguity. 171 Ms Selwyn says that parental responsibility without adoption would not give the adoptive parents enough legal and emotional security to parent effectively, and that the potential for future legal challenges would leave them unsure of the future, which could lead to them pulling back from the commitment and unconditional love that typifies successful adoptions. Ms Selwyn explained that the adopted child's greater sense of belonging was associated with a sense of "this being their place in the world, their home, and their family"; and the corresponding sense of the adoptive parents that this child was theirs, so that all were confident that the child would remain with the adoptive parents, who would be able to parent the child. All this was productive of relatively high self-esteem, at least when compared to children who are fostered. 172 When asked how and at what age the child could cope with the knowledge that Mrs F was her mother and D was her biological mother, Ms Selwyn said that this happened gradually; she pointed out that in today's society many children had to cope with quite complicated arrangements following divorce and re-partnering, and that children were very able to understand different relationships and who was who: it was the quality of the parenting that influenced the outcome, and it would not be helpful if the birth parent could not accept or tried to undermine the status of the adoptive parents. She thought that the legal status and authority of being adoptive parents would better equip Mr and Mrs F to manage and cope with ongoing contact; where as if they were not adoptive parents they may never feel really secure in their own parenthood, but always fear a further legal challenge and return to court. 173 Ms Prevatt Goldstein thought that the value of adoption as opposed to a parental responsibility order was not so clear, and that a parental responsibility order could work, as could adoption, in the appropriate circumstances. 174 Dr Robinson explained that in recommending that "the open adoption be re-instated", she had not considered or intended to convey anything as to a preference between parental responsibility and adoption, and that what she intended was that E should live with Mr and Mrs F and have contact with D. But she added that while she had not thought about the scenario of the child living with the Fs without them being her legal parents, her understanding was that parents felt more secure when they have a legal order, and the child who is officially adopted will often feel more secure also. She mentioned Mr F's stated opposition to "a shared parenting arrangement" as indicative of the insecurity of Mr and Mrs F as parents if they did not have a legal order. However, it also illustrates that Mr and Mrs F's perspectives and wishes are, in this context, understandably, connected with the fulfilment of their own perceived need to feel secure as parents. 175 Dr Robinson was asked what where the implications for E if she lived with Mr and Mrs F, understood them to be her mother and father but also came to understand that D was her mother: Q. … can she comprehend that and is there an age limit at which she could if she can't do it now? A. I am sure she could – she can, or would comprehend it. I think children who are adopted – other children who are adopted can comprehend that notion. Q. What age? A. Look, I think I might have to pass on that one as well. I am not sure. 176 Dr Robinson agreed with Ms Cleary's suggestion that Mr and Mrs F would be better able to countenance E spending time with D, especially in adolescence, if they were very secure in their legal position with E, whereas if they experienced D as a rival parent then they might "shut down and withdraw", as had been seen in some of their behaviours in the last couple of years during the pendency of the litigation. 177 When asked whether someone in E's position was able to cope with the concept of having two mums, Professor Katz said: That is a very difficult question for me to answer. I think again my answer must be that that depends on how these issues are dealt with by the adults in her life. Because I think that if there is a situation of constant conflict, then obviously that's one situation. But if the adults are able to get together and form some sort of coalition around her, then I think that that obviously would be a positive thing from her point of view. And that would be similar to a divorce situation, a reconstituted family. 178 On this issue, the evidence supports the following propositions. First, an adoption order is permanent; a parental responsibility order may be varied, although usually a significant change of circumstances will be required to justify re-opening the issue. Because of the permanence of an adoption order, the parents are likely to feel more secure and perhaps more committed to the child than if they entertain a concern that there may be a future legal challenge, which might cause them to hold back from the unconditional and unreserved commitment that is a feature of successful adoptions. In this way, the security afforded by an adoption order is in the interests of the child as well as the parents. Secondly, the security of an adoption order may provide a firmer basis for the adoptive parents to be supportive of contact between the child and the natural parent. Thirdly, on the other hand, an adoption order represents a permanent legal severance of the relationship between natural parent and child, which a parental responsibility order does not. This may reduce the prospects of the child growing a strong relationship with the natural parent, and exacerbate the identity confusion issues that the child may encounter, particularly in adolescence. Fourthly, children can and do cope with complex family relationships, involving multiple parenting arrangements, as is evident in circumstances that follow divorce and repartnering. Dispensing with consent 179 The Director-General, Mr and Mrs F, and the child's representative, submit that a consent dispense order should be made pursuant to s 67(1)(c), which has the effect that the court may make an order dispensing with the requirement for D's consent if satisfied that: (c) if the person is a parent of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or guardian. 180 Section 67(2) provides: (2) The Court must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child. 181 Adoption Act, s 52, 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, in the case of a child who has not been previously adopted, by each parent of the child, and any guardian of the child. Section 54 provides that consent is not required under s 52 if the court has dispensed with the requirement for the consent. Section 90(1)(d) provides that the Court must not make an adoption order unless satisfied 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. 182 The consent of the birth father has been dispensed with, and no issue arises in that respect. The question is whether the court should dispense with the consent of the birth mother, D. Under s 67(1)(c) and (2), there are broadly speaking two questions: first, is there serious concern for the welfare of the child, and secondly, is it in the best interests of the child to make a consent dispense order which has the effect of overriding the wishes of the parent. 183 The Director-General contends that s 67(1)(c) should be given a broad construction, and that it does not require that the "serious cause for concern for the welfare of the child" be directly linked to the alternatives available for the child's care, so that the Court is not limited to considering whether there is "serious cause for concern" in E's present circumstances with Mr and Mrs F, but may also take into account E's situation should she be returned to D. The relevant "serious cause for concern" is said to be provided by the risk posed by D's brother and her community, D's state of mental health, and the effect on E of being removed from Mr and Mrs F. 184 The submission that s 67(1)(c) does not require that the "serious cause for concern" be closely linked to the alternatives available to the court is supported by the judgment of the Court of Appeal in the present case [D v Director-General, Department of Community Services [2005] NSWCA 474, 34 Fam LR 445, [43]]. Hodgson JA, with whom Ipp JA and Hunt AJA agreed, said: [43] As regards s 67(1)(c), in my opinion it is not necessary that the "serious cause for concern" be closely linked to the alternatives available to the court. The other requirement of s 67(1)(c), that it be in the best interests of the child to override the wishes of the parent or guardian, is plainly directed to the alternatives available; but the requirement of "serious cause for concern" is not explicitly linked to the alternatives and in my opinion can be approached more generally. In this case, there had been past violence to the mother from a member of her family, there was evidence of risk to the child from the mother's family, and there was serious cause for concern due to the mother's mental health. In my opinion, these factors were sufficient. 185 This was said in response to a submission, on behalf of D, to the effect that the primary judge had erred in finding that s 67(1)(c) applied, because the "serious cause for concern" referred to must relate to the available alternatives, and the primary judge did not find that there was serious cause for concern operating as between the alternatives of orders falling short of adoption (such as a s 92 care and custody order) and an adoption order. 186 In Application of DoCS, Re C [2004] NSWSC 702, the father did not wish to be involved in the adoption process. Austin J concluded: [11] In light of the evidence of the father's attitude to the child and the adoption process, I consider that there is serious cause for concern for the welfare of the child, should the father continue to be a party to the adoption process. I am also satisfied that in light of the father's attitude it is in the best interests of C to dispense with the need for his consent to the adoption. If it were to be necessary to continue the father's involvement in the adoption process, the quick resolution of the matter in the child's best interests would be impeded. Accordingly it would assist C's adoption to dispense with the need for the father's consent. [12] This is not a case where the court is invited to override the wishes of a parent who opposes the child's adoption. In this case, by dispensing with the father's consent, the court will bring the father into the adoption process in order to deal with his rights in a manner that will make his further participation unnecessary. To the limited and temporary extent that the orders will have this effect, they will override the father's wish to have no involvement in the adoption process. The consent dispense order is therefore authorised by s 67(1)(c). 187 Given the unusual factual circumstances in it, Re C does not provide much guidance in the present situation. 188 In Re D; Application of A, Palmer J, said that whatever were the mother's motives in refusing her consent (which his Honour thought were concerned primarily with the impact on her feelings of the proposed adoptions, rather than the best interests of the children themselves), the court could not dispense with her consent under s 67(1)(c) and (2) unless satisfied that there was serious concern for the welfare of the two children concerned, and that it was in their best interests to override her wishes. His Honour found that both children had been traumatised by their experience while in the care of their mother, had been diagnosed as suffering from childhood post-traumatic distress disorder, had on occasions displayed anxiety before and during contact with her, but were now thriving in the care of the proposed adoptive parents. The mother agreed that it was in the best interests of the children to remain in the care of the proposed adoptive parents, and the only issue was whether that should be as adoptive parents or as foster parents. His Honour concluded (at [79]): Because of the children's traumatic experiences in early life and their consequent emotional vulnerabilities, and because I consider it to be in their best interests that they be adopted by Mr and Mrs A, I am satisfied that there is serious concern for their welfare and that it is in their best interests to override the wishes of Ms D that the adoption order be refused and that they be left in foster care. Accordingly, I am satisfied that it is proper to dispense with Ms D's consent to the adoptions pursuant to s 67. 189 These cases tend to show that in recent times a broad view has been taken of the concept of "serious concern". But it has not always been so. In Re an Infant K [1973] 1 NSWLR 311, Moffitt JA, as he then was, in the context of the then Adoption of Children Act 1965, described the step of dispensing with consent as an extreme one, to be taken only for weighty and convincing reasons (at 320-1): It will be seen that under s 32(1)(e) it is provided that the court may dispense with the consent of the parent to enable an adoption order to be made, if "the interests and welfare of the child will be promoted", while s 21(1) provides that no adoption order (i.e. in any case) can be made unless the court is satisfied "that the welfare and interests of the child will be promoted by the adoption". However, the Act elsewhere provides for dispensing with a consent upon proof of conduct by the parent, which has to be of quite an extreme nature where in effect the parent has deprived himself or herself of his or her rights concerning the child, such as under s 32(1)(c), where it is proved the parent is unfit to discharge the obligations of a parent by reason of his having abandoned, deserted, neglected or ill-treated the child. … The presence of the power in s 32(1)(e), then, cannot mean that there is really no point in any case for the court to be concerned about the provisions of or make determinations under … s 32(1)(a)-(d), so that, without regard to the conduct of the parents or how their consent was given, it is a simple matter in all cases just to look to the interests of the child and deal with the case under s 32(1)(e). It is important that the court have a clear appreciation of the significance of an order made under s 32(1)(e), namely, that by it a parental right not found on any basis by conduct or consent to be lost, is to be ended and the parental tie destroyed forever. It must appear that the taking of that extreme step "will" promote the welfare and interests of the child. The courts have always regarded the severance of the natural tie and the making the child of one person the child of another as a most serious step particularly when opposed by a parent or parents. It has been said it is a rare case that the judicial mind will be satisfied to take this step against the consent of a parent; Mace v Murray (1955) 92 CLR 370, at pp 380, 385; O'Connor v A & B [1971] 1 WLR 1227; [1971] 2 All ER 1230; Re Betar & the Child Welfare Act 1939 [1965] NSWR 321. The step is of particular gravity where, as here, the parents sincerely object to the adoption, sincerely seek the return of the child and are able and willing to bring it up as their child. It was said in Mace v Murray (at p 385): It must be conceded at once that in the ordinary case the mother's moral right to insist that her child shall remain her child is too deeply grounded in human feeling to be set aside by reason only of an opinion formed by other people that a change of relationship is likely to turn out for the greater benefit of the child. It is apparent, too, that a court which is invited to make an order of adoption must appreciate that the child is another's and that only the most weighty and convincing reasons can justify the involuntary breaking of a tie at once so delicate and so strong as the tie between parent and child. But these considerations cannot carry such overwhelming weight where the mother, with premeditation and full knowledge of what she is about, has excluded the child from her life from the moment of its birth. In such a case, and especially where others have taken the mother's place both materially and emotionally during the period of her renunciation of him, her proved unfitness to be a mother to the child is clearly relevant to the question whether it is just and reasonable for the court to substitute those others for her in the parental status despite a newfound desire on her part to retrace her steps. 190 His Honour would not make a consent dispense order. However, Hutley JA, with whom Hardie JA agreed, concluded that such an order should be made, overturning Helsham J's refusal to do so. Nonetheless, Hutley JA accepted (at 347A) that the evidence to justify a finding that s 32(1)(e) was made out must be strong, having regard to the drastic result. 191 In Re B & the Adoption of Children Act 1965 (1979) 5 Fam LR 150, Moffitt P again stressed the gravity of the step of dispensing with consent and the great reluctance with which it would be done: The courts, consistently with, and indeed usually in aid of, the welfare of the child, have emphasized their great reluctance to dispense with the consent of a parent to the intent that his or her child shall be made the child of another. I shall not repeat what I said on this subject in Re an Infant, K [1973] 1 NSWLR 311 at 321, nor cite again the authorities there referred to. As also there pointed out, the terms of s 32, and in particular s 32(1)(e) [which provided that it was a ground for dispensing with consent that an order for the adoption of the child will promote the interests and welfare of the child], do not undermine past judicial views as to dispensing with the consent of a parent ( ibid 320-1). The gravity of the question whether the court should dispense with the consent of a parent, never given or purported to have been given, is such that a heavy onus must rest on those who seek to persuade the court that the consent should be dispensed with. For example, if in such a case, it were sought to dispense with the consent of a mother under s 32(1)(b) on the ground that she was "in such a physical or mental condition as not to be capable of properly considering the question whether (she) should give (her) consent", it is difficult to think (in view of the alternatives to adoption such as custody: Re Betar [1965] NSWLR 321 at 328; A v C-S (No. 1) [1955] VLR 340 at 347-8), that consent would be dispensed with, except possibly in the most exceptional cases touching the urgent needs of the child, unless it were positively established that the incapacity in relation to making the relevant decision and in relation to her capacity to remain a parent of the child was not of a temporary nature. For example, it would be impossible to contemplate that an adoption order, rather than some temporary arrangement for care of the child, should be made because the mother was then suffering from a mental illness such as schizophrenia, whether the mother was in or out of an institution, unless there was evidence of a convincing nature that the mother's incapacity to continue to be the mother of the child in respects materially adverse to the welfare of the child was of a permanent nature. Evidence, as in the present case, where the medical evidence leaves uncertain what the mother's future condition will or is likely to be, would not be sufficient to discharge the onus which rests on an applicant who seeks to have the mother's consent dispensed with. 192 Reynolds JA, with whom Hutley JA agreed, said: Section 32(1)(e) invests the Court with a general power to dispense with a mother's consent. However, where she is available, not mentally or physically unfit nor unfit as a parent or guardian, due and full consideration must be given to the great seriousness of the step involved. 193 Nor is it at all apparent that it was Parliament's intention that "serious concern" be given so broad a reach; the Parliamentary debate rather suggests the contrary. Although the interests of the child are paramount, the Adoption Act does not entirely disregard the parental rights of the birth parents, as is evident from the requirement for their consent. The amendment made in the course of the Parliamentary debate to s 67(1)(c) is an illustration of this, representing a withdrawal from the position under s 32(1)(e) of the former Act - under which it was sufficient to authorise a dispensation with consent that to do so in order that an adoption order might be made would promote the interests and welfare of the child - by superadding the requirement that there be serious cause for concern as to the welfare of the child. In the Bill as introduced, clause 67(1)(c) required only that it be in the best interests of the child to override the wishes of the parent or guardian. After the Bill had passed the Legislative Assembly, an amendment was introduced in the Committee stage in the Legislative Council [Hansard, Legislative Council, 10 October 2000], by the Hon RSL Jones, who proposed the amendment (Amendment No 2) to make it a requirement that consent for adoption can only be dispensed with "when there is serious concern for the welfare of the child and it is in the best interests of the child to override the wishes of the parent or guardian". He said: In the current proposal, paragraphs (b) and (c) of Clause 67 are too broad and may impact adversely upon parents who suffer from a mental illness or some form of intellectual or other disability, parents who are prisoners and drug-using parents. I have already raised the problems experienced by parents with intellectual disabilities, those with mental illness and people with physical disabilities when dealing with the care system. The problems with these groups of vulnerable people are encapsulated in the following concerns expressed by the NSW Users & Aids Association [NUAA] in its briefing paper to the cross-bench on 29 August: NUAA has found that many drug using parents "over compensate" for their children as they are acutely aware and afraid of their drug use having a negative impact on their children. In fact, many of the drug using parents we see will do things for their children that they would never do for themselves such as making sure they have regular health check-ups, ensuring they eat well and that they have everything they need. Many drug-using parents are also very much aware that they could come to the attention of DoCS due to a prior drug conviction or if they are on the methadone program. These people are extra vigilant about being good parents so they won't have their children taken away … The other fact that goes unrecognised by policy makers is that drug dependence is something for which you can be treated and from which you can recover. Removing someone's children forever and putting them up for adoption does not recognise that a parent can change … Too often under the current DoCS system, those who ask for assistance in the early stages of problems are punished by having their children removed rather than gaining help to change things … Actual or suspected illicit drug use by a parent can sometimes be more obvious to both neighbours and DoCS workers than problems such as child physical or sexual abuse. Although NUAA represents a specific client group – people who use illicit drugs – its concerns are shared, and my amendment has been supported by a wider community base, including People with Disabilities and the New South Wales Intellectual Disability Rights Centre. … 194 The Hon Carmel Tebbutt (Minister for Juvenile Justice, Minister Assisting the Premier on Youth and Minister Assisting the Minister for the Environment), who had the carriage of the Bill in the Council, responded: The Government supports both amendments. Amendment No 2 makes it clear that if a parent's wishes are to be overridden by a court, there must be serious cause for concern for the welfare of the child, notwithstanding the fact that the amendment addresses the requirements of clause 8(2)(i) to protect a child from harm caused by abuse, ill-treatment or violent behaviour. The Government is comfortable with supporting this amendment. … 195 The debate suggests that it was intended that the test be more demanding, not less demanding, than that which had applied under the 1965 Act. It is curious that the recent authorities indicate a trend the other way, but it is perhaps a reflection of the paradigm shift from parental rights to the paramountcy of the best interests of the child. The debate indicates that it was intended to be insufficient to justify a consent dispense order merely that the parent was a drug user, intellectually disabled, or a prisoner, and that some additional element of risk to the child was required. It is also significant that it appears in the context of adoption, so that dispensing with consent is a step preliminary to severing permanently a parental bond, contrary to the wishes of the parent. That is a very grave step; as Winn LJ put it in In re B (an infant) [1971] 2 WLR 129, 138; [1970] 3 All ER 1008, 1015, in a passage cited with approval by Hutley JA in Re K (at 346): "A decision that a mother is permanently to be parted from her infant child is one of the gravest that a judge may ever take". It is a step to be taken only for weighty and convincing reasons. The "serious cause for concern" must in my view be a risk of an order that could justify permanent removal of the child from her natural parent(s). 196 Although the Court of Appeal's decision in this case, which I must follow, establishes that the requirement for "serious cause for concern" does not necessitate comparison of the position if an adoption order be made as against the position if some other order be made, s 67(1)(c) necessarily contemplates the situation if an adoption is otherwise precluded by the absence of consent, so that the requirement for "serious cause for concern" is implicitly addressed to the child's welfare in his or her unadopted status. Accordingly, I accept the submission by Mr Harrison SC (as his Honour then was) on behalf of the Director-General that, in considering the question of serious concern, it is permissible (and indeed obligatory) to take into account the circumstances that would pertain if D had parental responsibility for E. Consistent with Hodgson JA's judgment, I accept that evidence of risk to E from D's mental health, or from violence directed to her or to D by members of D's family, would be relevant considerations on the question of "serious cause for concern". 197 Is there serious cause for concern for the welfare of the child? In the Court of Appeal, Hodgson JA said: 43 … In this case, there had been past violence to the mother from a member of her family, there was evidence of risk to the child from the mother's family, and there was serious cause for concern due to the mother's mental health. In my opinion, these factors were sufficient. 198 As I have explained, I am unpersuaded that E is risk of abuse, ill treatment or violence from D's family if in the care of D. Additionally, the faint suggestion that she would be at risk of being subjected to female genital mutilation was not sustained: Ms Nkrumah said categorically that FGM was not part of Dinka culture (contrary to Mr F's evidence), and I prefer her evidence on that topic, due to her considerable experience in the field, which Mr F does not share. But there remains the concerns for E's welfare that her care may be jeopardised by D's mental health vulnerabilities, and that these would be superimposed on the risks of depression for E consequent upon separation from Mr and Mrs F. Ms Selwyn explained that research showed that children who were parented by mothers who had mental health disorders were themselves more likely to develop mental health disorders in adolescence or early adulthood. The prospect of adding this risk factor to the risk factors for depression that would already attend removal from Mr and Mrs F is a matter of considerable concern. Together, these are more than the mere risks associated with care by a parent who is prone to depression, because they involve the significant additional element that the child would by reason of having been removed from Mr and Mrs F already be in a high-risk category for depression. Together, they suggest very high vulnerability to depressive disorders. This provides serious cause for concern for E's welfare. 199 Accordingly, this threshold requirement for a consent dispense order is established. Resolution 200 The second pre-requisite for a consent dispense order is satisfaction that it is in the best interests of the child to override the wishes of the parent or guardian, and that overlaps with whether it is in the child's best interests to make an adoption order. The ultimate issue, which informs both whether a consent dispense order should be made, and if so whether an adoption order should be made, is whether the best interests of E will be promoted by adoption, and whether an adoption order would be clearly preferable in the best interests of E to any other action that could be taken by law in relation to her care. In reaching those decisions the Court is required to have regard, to the extent that they are relevant, to the factors specified in Adoption Act, s 8(2). Although it is not necessary to review s 8(2) as a checklist [D v Director-General, Department of Community Services [2005] NSWCA 474, [44]], in a difficult and finely-balanced case it is a great help to address each of the listed factors, along with any others that may be relevant, so as to ensure that no particular feature of the case is overlooked or given more weight than it should properly bear in context [Re G [2006] UKHL 43, [40]]. 201 Because of E's age, any wishes expressed by her are not a material consideration (s 8(2)(a)). Understandably, there is no evidence that she has expressed, or has been asked to express, any. Her behaviour on contact occasions and her close attachment the Mr and Mrs F indicate that she would, at this stage, not want to be separated from them. But she could not at this age appreciate the longer-term issues. 202 E's relevant characteristics (s 8(2)(b)) are that she is a three-year-old girl, of African origin, her mother being Sudanese. Her age tells against removing her from a secure placement. Her racial and cultural origin tells in the opposite direction. 203 E's relevant needs (s 8(2)(c)) are not only physical and educational but emotional, including self-esteem, and cultural. 204 E has no relevant disability (s 8(2)(d)). 205 While the wishes of E's father are and will remain unknown, they can in the circumstances be disregarded. Her natural mother D opposes the making of an adoption order. This is not an insignificant matter, albeit that the interests of the child are paramount. The wishes of the natural parents are one of the specified relevant considerations (s 8(2)(e)), and the strict requirements for consent emphasise its importance. Accordingly, this factor weighs against making an adoption order. 206 As to E's relationships (s 8(2)(f)), her psychological family relationship is with Mr and Mrs F, with whom she is closely bonded. She has relationships with their family and friends. Her own friends, home and neighbourhood and environment are with Mr and Mrs F, where she is doing very well. This tells strongly against removing her from their care. It is an important and significant countervailing consideration that D is E's natural mother, but that establishes neither presumption nor even a starting-point in D's favour. While D is E's genetic and gestational mother, and E recognises D as her "tummy mummy", Mr and Mrs F are her psychological parents. Her relationship with D so far has been a very limited one; she has never resided with D, and she has had no contact with members of D's family or acquaintances. Overall, this factor is against removing E from the care of Mr and Mrs F, and in favour an adoption order. 207 As to the attitude of the proposed adoptive parents (s 8(2)(g)), Mr and Mrs F are plainly devoted to E and have provided her with excellent care. Dr Robinson and Dr Milch describe their parenting capacity as highly functional. I have expressed reservations as to Mr and Mrs F's willingness and ability to foster a relationship between E and D, and a criticism that might be made of their attitude to the responsibilities of parenthood is that they insufficiently appreciate the importance for E of developing a significant relationship with D, by which Mrs F in particular is somewhat threatened. I do not doubt that, as Dr Robinson accepted in her oral evidence, there is an element of their own interest involved, and that they have a significant need to be parents, and to be secure in that role, especially given their unsuccessful attempts to conceive a child, a history of unsuccessful IVF, and then their great joy at the wonderful arrival of E and their subsequent structuring of their lives around her. But I do not think that they are unable to subordinate their own needs to those of E when appropriate. After all, they originally assumed E's care on the basis of an "open adoption", they have taken significant steps to promote in E an awareness of her cultural origins, and contact to date has produced a positive attitude in E towards D; those matters indicate that though in the context of the litigation they have felt somewhat threatened by contact and the possibility that D will play a greater role in E's life, they do appreciate the importance for E of maintaining a relationship with D and her culture, and they would support it in the future. I think it unrealistic, and unnatural, to pretend that in the present context parental needs will not to some extent intrude, and I am unpersuaded that this counts significantly to their detriment as parents. 208 So far as D is concerned, Dr Robinson suggested that D was driven by her own needs, rather than a child-focussed perspective, in that she had great needs of her own arising from her own childhood experiences, and expectations of her community, that might be met by having her child with her. This opinion is consistent with the impression I gained of D through her cross-examination. Again, I do not doubt that there is a significant element of D's own needs involved. Again, this is natural, and, again, I am unpersuaded that this counts significantly to her detriment as a parent. However, the difference is that she has not demonstrated to nearly the same extent any willingness to subordinate her own needs to the interests of the child. I was troubled by, inter alia, the following part of her evidence: Q. Would you explain to me what you mean when you say depends how much contact I was having with her, would you tell me some more about that? A. Yeah. If I had contact by myself, not DOCS being there or Mr and Mrs F being there, not to tell her that this is come and live with me, no. I have to introduce myself to her slowly by slowly not to give her emotionally, this is what is happening and this is this, you know. But she will still understand someone looking like her and why not living with her. Q. I want to understand what you have just said you tell me if this is wrong? A. Yeah. Q. If you could have contact visits with her just the two of you by yourself? A. Yeah. Q. Then you wouldn't talk to her about coming to live with you, or you would? A. Well, I don't have an answer to that question in my mind, all I need is my child to be with me. Why should I be talking to her that come and live with me and not fully to come and live with me or talk to myself? HIS HONOUR: Q. D can I say you really need to have an answer to that question? A. Yes I need, your Honour I need to identify myself to my child that I am your mother. Q. That's not the question though. The question is about whether you would be during contact encouraging E to want to come and live with you? A. Your Honour, I didn't get it. Is it in future or in the age she is at the moment, because that is why I am getting confused. Q. Let's start with the age she is at the moment? A. Yes. I have to encourage her and talk to her and identify if they will have interest on what I am talking to her. Q. How will you encourage her, what will you be encouraging her to do? A. Describing myself to her, that I am your mother. Mrs F, they are primary carers at the moment, I am your mother and she will know as she's growing up and I am her mother. I love my child to be with me. Q. What if she says, "Well, if you are my mother why aren't I living with you?" How would you deal with that? A. Yes. I say because the law say that I am not living with you in Australia but it is still, it's hard for me to explain it to her why she's not living with me if she asks me that question, it is hard for me to say what's wrong, why. Q. Would you be able to explain to her that when she was born you were very, very sick and very, very scared and at that time it was better for her to be brought up by someone else? A. Yes, it will, but I am better, I am well enough to look after her. It's not permanent sickness to me. Q. But you think you would be able to explain to her that the reason why she wasn't living with you was because you had been ill and scared? A. Yes, your Honour, I would but still difficult for me because I feel better and how I should be explaining to her while the time I was sick is not something permanent on me that I remain sick forever, still hard for me to explain it to her. Q. Would you be able to explain to her that because you were sick for a while and because she had done so well with the F's and because they loved her the same way that you did that it was best that she stay with them for the time being? A. Yes, your Honour. 209 The last answer was given only in the context of a very leading question from the Bench, after she had been offered ample opportunity to show that she could subordinate her needs to the child's interests, but had failed to do so. 210 E has an excellent parental relationship with each of Mr and Mrs F and is securely attached to them (s 8(2)(h)). They are the only parents she has ever really known. She has an incipient relationship only with D. 211 Mr and Mrs F have a demonstrated and proven capacity to provide for all E's physical and educational needs (s 8(2)(i)); however, their capacity to provide for her cultural and identity needs is less clear. D is better positioned to provide for E's cultural and identity needs, and may have the capacity to provide for E's other needs, but, for no fault of her own, has had no real opportunity to demonstrate it, and remains in a sense untested, and there are grounds for concern: I have already remarked on D's lack of insight into the complexity of E's needs; her apparent inability to subordinate her own needs to those of the child; and there are reasons for concern that she may regress into depression. It is true, as Mr Anderson points out, that Mrs F had herself been the victim of a sexual assault in the past, but she has - with individual and group counselling - been able to move on and, according to Dr Robinson, has adequately addressed the issue, so that there are no lingering concerns that this may adversely impact on her mental health in the future. Because D's PTSD remains untreated, with a significant risk of recurrence of episodes of major depression, the same cannot be said in her case. Thus, although D is more suitable and probably has greater capacity to provide for E's sense of personal and cultural identity, the satisfaction of her physical, educational and emotional needs otherwise is more assured in the care of Mr and Mrs F than in the care of D. 212 As I have concluded above, E is not at risk of abuse, ill treatment, violence or other behaviour at the hand of D's family (s 8(2)(j). She is certainly not at any such risk in the care of Mr and Mrs F. 213 If an adoption order is made in favour of Mr and Mrs F: · E will remain in an indisputably safe and loving family environment, with continuity and stability, where she has secure attachments, in the care of those she has always known psychologically as her parents and in the environment that she has always known as her home, and will avoid the risks associated with disruption of secure attachments. With an adoption order, Mr and Mrs F will have a sense of security and comfort from which E will benefit. All her material needs will be amply satisfied. · However, her identity and cultural needs will not be fully met. E will be raised apart from her natural mother, by people who are not her natural parents, outside her culture and ethnic group of origin, and will likely encounter in her adolescence the identity confusion and self-esteem issues that almost all adoptees experience, exacerbated by separation from her culture and ethnicity. She may develop less robust defences against racism than otherwise. Her legal parental relationship with D will be permanently severed. The arrangements will be contrary to the wishes of her natural mother. These disadvantages will be mitigated to some extent, but not averted, through E having contact with her natural mother and, through her, with her culture of origin. 214 If E is restored to the care of D: · E will be raised by her natural mother, in her cultural and ethnic group of origin. Her identity and cultural needs will be better satisfied. Identity confusion and self-esteem issues in adolescence will be minimised. Her defences against racism will likely be more robust. The arrangements will accord with the wishes of her natural mother. · E will be removed from the care of Mr and Mrs F, to whom she is securely bonded, at a very vulnerable age, with the certainty of short term trauma and distress, a risk that she will not re-attach to D, a significantly increased risk of depressive disorder in adolescence and subsequently, and the prospect of difficulties in forming intimate relationships in the future. These risks are exacerbated by uncertainty as to D's capacity, due to her own fragile mental health, to cope with E in the distressed state in which she would arrive into D's care. E's material educational and other emotional needs may not be so amply met as they would be if she were in the care of Mr and Mrs F. 215 If E is left in the care of Mr and Mrs F, but without an adoption order: · The advantages are largely as for an adoption order: E will remain in the same environment, with her secure attachments, in the care of her psychological parents, and will avoid the risks associated with disrupting secure attachments. All her material needs will be amply satisfied. However, with no adoption order, there is no permanent legal severance of the parental relationship with D, and reduced risk of E developing a sense of abandonment or loss as a result of adoption. Although the arrangements will be contrary to the wishes of her natural mother, they would be distinctly less so than an adoption. · The disadvantages are also largely the same as for an adoption order: her identity and cultural needs will not be fully met, and E will likely encounter in her adolescence identity confusion and self-esteem issues, and build less robust defences against racism. Mr and Mrs F may feel less secure without an adoption order and this may impact on E's sense of belonging and security. Again, the disadvantages will be mitigated, to some extent, by contact with D and, through her, with her culture of origin, and in the absence of an adoption order the severance of the relationship would be less absolute. 216 Which of these options is the best for E? Ultimately, the important differences revealed by the above analysis are: · First and foremost, the respective balance of the risks of adolescent identity confusion and self esteem issues and less resilient defences against racism if E is raised apart from her natural mother, outside her culture and ethnic group of origin; against those of certain short term trauma, possible failure to re-attach to D, significantly elevated prospects of psychopathology in adolescence and subsequently, and of impairment of her ability to form and maintain intimate relationships, if she is removed from the care of Mr and Mrs F with fracturing of her existing attachment bonds, particularly at this age; · Secondly, the respective merits of the permanence and security afforded by adoption, with permanent severance of E's legal parental relationship with D; and the greater flexibility of parental responsibility without adoption, leaving open the possibility that one day E might return to D's care. 217 As to the balance of risk between raising E apart from her mother and culture against that of disrupting an established secure attachment, the dilemma is not a novel one. Ms Prevatt Goldstein and her co-author, in "Race and Ethnicity", address it in chapter 11, entitled "Some Practice Dilemmas": The child is settled with white foster carers. Surely it will do more harm than good to remove her? Practitioners need to strenuously avoid placing children in short term situations which do not meet their needs, be diligent and speedy in seeking appropriate long term placements, and work with short term carers and children to enable children to move on and make new attachments. Practitioners need to assess whether the quality of the attachment on the part of the carers is based on the reality of the child as a black child and if it can meet the developing needs of that child into adolescence and through to adulthood. Practitioners need to assess the ability of the carers and their extended family to provide the environment identified in section 10 (see sub-section entitled "Placement with a white family"). Practitioners need to recognise that the child's attachment may need to withstand growing feelings of alienation and difference as the child develops into adulthood and meets institutional as well as personal racism. Decisions need to be based on the individual situation. If the decision is that the child should stay, practitioners need to recognise the possible long term consequences for the child and ensure that the carer has the social work support and resources to meet the needs of the child as fully as possible. If the decision is to move the child, practitioners need to locate this in the social work task of removing children from environments that do not meet their basic needs, engage with the feelings of loss of both the child and the carers as well as with their own feelings of contributing to disruption and loss while acknowledging the long term benefits to the child. 218 It has also been encountered in the cases, a thorough and illuminating review of which was undertaken by the Full Court of the Family Court (Fogarty, Kay and O'Ryan JJ) in B & R (1995) 19 Fam LR 594. While that was in the context of Aboriginality, the lessons are equally applicable in a case such as the present. Their Honours review of the Australian cases (at 606-615) shows that while outcomes inevitably depend on the particular facts and circumstances of the individual case, the emotional and psychological benefits of being brought up in the child's culture and ethnic group of origin have generally been judged to outweigh the material benefits offered by the alternative, the exception being where there is a very well established attachment to the non-Aboriginal carer [see: Ex parte West (1861) 1 Legge 1475 (removal and retention by squatter of aboriginal child from parents described as an outrage and return of child directed); Sanders & Sanders (1976) 1 Fam LR 11,433; (1976) FLC ¶90-078 (on appeal, decision placing child of mixed parentage with white father reversed for insufficient weight given to benefits to emotional development of being in Aboriginal mother's care – including experience of discrimination, family and tribal relationships); R & R (1985) FLC ¶91-615 (appeal against placement of child of mixed parentage with Aboriginal mother dismissed, the judge having appropriately had regard to evidence that living in a tribal situation would better equip the child to cope with periodic visits to non-tribal societies than vice versa, and given weight to issues of racial discrimination and potential loss of contact with mother's culture and traditions); Goudge & Goudge (1984) 9 Fam LR 500; (1984) FLC ¶91-534 (appeal against judgment placing child of mixed parentage with European father dismissed by majority on basis that judge did not fail to give appropriate weight to racial and cultural factors, but Evatt CJ dissenting on the basis that while neither culture was to be preferred, and both may be of importance, the implications of an order for the continuing connection of the child with each culture, and the consequences for the child of loss of contact with an Aboriginal parent's traditions and culture, Aboriginal origins, and the extent of discrimination in particular situations, had been given insufficient weight); McL & McL (1989) 15 Fam LR 7; (1991) FLC ¶92-238 (children of mixed parentage placed with Aboriginal mother where they would be raised as tribal Aboriginals because, for reasons associated with their Aboriginality, that enhanced their prospects of growing up as well-adjusted individuals)]. 219 Three of the cases referred to by their Honours warrant closer comment in the present context, because of their considerable similarities. In McMillen v Larcombe [1976] NTJ 1001, Forster J (as he then was) in the Supreme Court of the Northern Territory considered an application for adoption of a child that bears many similarities to the present. At the time of the hearing the child, a boy of mixed aboriginal and white parentage, was aged two years. The proposed adoptive parents were an American couple resident in the Territory but proposing to return to the USA. The child had lived with his aboriginal mother until, at 6 months of age, he was admitted to a home suffering from under-nourishment; he was declared to be a "neglected child" in circumstances that his Honour described as involving a particularly serious denial of justice, and had been in the care of the proposed adoptive parents for about 18 months. Forster J accepted that the proposed adopters were determined so far as they were able to make the child aware and proud of his origins, but that they admitted that he would probably have no contact with his mother or other Aboriginal relatives. His Honour accepted evidence that all adopted children at some stage encounter problems of identity, compounded when the child was of a different ethnic origin from the adoptive parents, which necessitated access to people of the child's ethnic origin; and that as the child grew older in a white society he was very likely to undergo an identity crisis when he realised he was different to the people around him. Concluding that, while the adoptive parents would provide the child with all things he was likely to need and love and security, they could not satisfy his proper wish to make contact with Aboriginal people in general and his own relatives in particular - and being satisfied that the child would be treated as Aboriginal by the people with whom he would live, and that while his living conditions would be considerably inferior to those offered by the proposed adopters, they were perfectly adequate - his Honour did not think that, viewed as a whole, the adopters' proposal was "superior at all" to the mother's proposal, refused to dispense with consent, and returned the child to the mother. However, the significance of severing an attachment of 18 months standing in a two-year old child does not seem to have received attention. 220 In Torrens v Fleming (1980) FLC ¶90-840, Kearney J in this Court considered an application by an Aboriginal mother for custody of her ten-year-old daughter, who had been living with a white couple since shortly after birth. While acknowledging the mother's case as a "well-recognised claim of a natural mother to the custody of a child", strengthened by the desirability of the child having the opportunity to learn the culture of her race and establishing her identity, his Honour concluded that, the wishes of the child being to remain where she was, the critical feature was that the child was living a happy and well-adjusted life in a stable environment with a family with whom she had a very close bond and with whom she had lived for virtually the whole of her life, and there was psychological evidence that there may be long term harm to the child by forcing her to make a change of such magnitude. This reflects the significance of a well-established attachment bond. 221 And in F v Langshaw (1983) 8 Fam LR 833; affirmed Rushby v Roberts [1983] 1 NSWLR 350, Waddell J, as he then was, considered competing claims by an Aboriginal father for custody and a white couple for adoption. In a decision that was upheld by the Court of Appeal, his Honour made an order for custody in favour of the father, giving some weight to the view that Aboriginal parents would be better placed to inculcate self-esteem in such a child. 222 In B & R, their Honours observed similar trends in Canada, New Zealand and the United Kingdom. Two particular aspects are worthy of note here. In the (relatively early) Canadian case of ANR and SCR v LJW (Racine's case) (1983) 36 RFL (2d) 1, the Supreme Court of Canada – reversing the Court of Appeal and restoring the judgment of the trial judge – downplayed the significance of the trans-racial aspect of the adoption, and observed (at 13) (per Wilson J, who delivered the judgment of the Court): In my view, when the test to be met is the best interests of the child, the significance of cultural background and heritage as opposed to bonding abates over time. The closer the bond that develops with the prospective adoptive parents the less important the racial element becomes. 223 As their Honours observed in B & R, this was relatively early in the understanding of the difficulties encountered in that country by adopted native children, and it was also relatively early in the evolution of understanding of the consequences of trans-racial adoption. I would not accept that the significance of cultural background and heritage diminishes with the passage of time, since the evidence suggests that it is a crucial aspect of equipping a child to address identity issues in adolescence. But the idea that the significance of bonding may increase with the passage of time remains valid, and reflects the importance of not disrupting secure attachments. 224 In Re P (a minor) (Adoption) (1990) 1 FLR 96, the Court of Appeal of England dismissed an appeal from a trial judge's decision refusing an adoption application in respect of an 18-month old child of part Afro-Caribbean and part white European parentage by the child's white foster mother and her husband, preferring to place the child with a family of the same race and ethnicity. The Court of Appeal said that it was open to the trial judge to conclude that the advantages of bringing up a child of mixed race in a black family outweighed the importance of continuing a status quo for a child who was thriving in a stable home with a white foster mother, with whom she had lived since only a week or so after birth. This involved disruption of a secure attachment, but at a younger and less vulnerable age. See also Re C, Mr & Mrs E, Mrs F v LA (EWHC, FamD, Ryder J, 19 July 2006; (The Guardian, 20 July 2006), in which account was taken of a child's ability to build new attachments, and of the ethnicity of the prospective parents, in preferring a placement where the parents' ethnicity most suited that of the child, who were said to provide "a better cultural match", including matching better with C's "visual identity". 225 As Mr Anderson pointed out, in other circumstances, the Director-General had supported the removal of children aged 6, 4 and 2 from white foster carers with whom they had a secure attachment and from whom they received appropriate care, in order to place them in a more culturally appropriate (aboriginal) environment [UI & UJ v Minister for Community Services [2006] NSWADT 16. However, little attention seems to have been given in that case to the risks associated with disrupting close attachments, there was a carefully thought out transition plan, and the statutory "Aboriginal Placement Principle" gave very great weight to maintaining cultural links. 226 I accept that it is not in E's interests to be raised apart from her natural mother, by people who are not her natural parents, outside her culture and ethnic group of origin. If she is, she will likely encounter identity confusion and self-esteem issues in her adolescence, as most adoptees do, but exacerbated by the loss of her cultural and ethnic connections. In my view, it considerably understates the risk, in the sense that it disregards the impact on her sense of self and self-esteem, to submit (as did Mr and Mrs F) that the only detriment seriously advanced is that E would be deprived of a perspective on racism unique to a racial minority. The identity confusion issues and challenges faced by many adoptees in their teens will be accentuated for E by the cultural gap. E has a need for much more extensive contact with her culture of origin than can be provided by Mr and Mrs F, despite their best intentions. D is better able to meet that need. I fully accept that Mr and Mrs F will do their best, within their circumstances, to acquaint E with her origins so as to foster in her a sense of self. But their best is not likely to approach what E could gain in that respect, were she to be brought up in her birth family and culture. 227 However, I also accept that it is not in E's interests to have her secure attachment to Mr and Mrs F disrupted, particularly at this age. Placing E in the care of D will be very distressing for E, will occasion at least short term distress, and very great distress, to E who would be separated permanently from the only parents and environment she has known, and placed with a parent she barely knows in a quite different environment, effectively challenging her whole belief system. Disruption to attachment is a well-known developmental risk, which may hinder E's ability to foster future intimate relationships, and may move her into the group who mentally represent close relationships as untrustworthy, and place her in a high-risk category for depression in later life. Ms Prevatt Goldstein recognised that placement with D would produce some trauma of separation from Mr and Mrs F. Although she suggested that this was unlikely to carry the weight or stigma of separation from the birth mother, I am unpersuaded, given that Mr and Mrs F have been the only parents that E has ever known, and that all agree that she is securely attached to them. 228 On behalf of D, Mr Anderson did not dispute that the experience of permanent separation from Mr and Mrs F would be a traumatic one for E; rather, D's case was she had the capacity to manage it. Mr Anderson submitted that the disruption of E's secure attachment to Mr and Mrs F, which would be occasioned by placing E with D, can be successfully managed, so that E would reattach to her new caregiver, D, so long as D provides "good enough" parenting, and that the indications were favourable for E's ability to reattach to a replacement parent. 229 There is reason to think that E may be better equipped than many to deal with such a change, first because it will ultimately be recognised as a return to her natural mother and culture, rather than a removal from it; and secondly because there are positive factors which may mitigate the distressing consequences of separating her from Mr and Mrs F: that her existing secure attachment to Mr and Mrs F provides a sound psychological basis for grieving its loss and moving on; that there is no history of significant separations; that her temperament appears robust; and that following separation she would be with her natural mother. 230 On the other hand, while there is reason to be hopeful, there is also reason for concern. Although there are some favourable factors for the prospect of a successful re-attachment to D, there are also some negative factors: E's age, and the magnitude and permanence of the change, are among them. Ms Prevatt Goldstein acknowledged that there could be no guarantee of success. The research does not suggest that there is any reliable predictor of which children will not reattach. 231 Perhaps more significantly, D's parenting capacity will be critical to the success of any such change. I have already explained that while it is likely that D will ordinarily have adequate, or "good enough", parenting skills, her parenting capacity is compromised by her vulnerabilities: my conclusions about D's mental health, her lack of insight into the extent of E's needs and the potential difficulties, and her resolution not to have a partner, leave doubt as to whether D will always be able to provide adequate care; it may well be that she can, but there is a not insignificant risk that her ability to do so may, at least from time to time, be compromised. Although Ms Prevatt Goldstein thought that there was no compelling reason why D should not have the care of E, on the available evidence there is a significantly greater risk associated with D (as to emotional health, and availability of support in the event of any crisis) than with Mr and Mrs F. Ms Prevatt Goldstein's opinion that D's understanding and competence, and the presence of a supportive extended family, was a very good prognosis for E's attachment and well-being, involved assumptions – both as to her understanding and competence, and as to a supportive extended family – that in my view the evidence does not bear out. 232 Ms Prevatt Goldstein pointed out that, should E remain with Mr and Mrs F, there would be some grieving for her birth parent: in other words, whether E remains with Mr and Mrs F, or is removed from their care and placed with D, she will in either event suffer distress and loss at various points in her life. However, the grief at the loss of her birth mother can, the evidence suggests, be mitigated by the contact that all parties propose should occur. It might be added that E will also have to confront the circumstances of her conception and absence of a birth father; her secure attachment to Mr and Mrs F provides a secure base from which she can explore those difficult issues. The risks of separation from natural mother, culture and ethnicity are and can be mitigated somewhat in the present case by the circumstance that Mr and Mrs F are E's psychological parents, and by contact between E and her natural mother, family and culture. 233 Although Dr Robinson recommended reinstatement of the "open adoption", in her oral evidence she suggested that if D "had the profile of the Fs, with her added advantage of being Sudanese and so forth, my recommendation would have been different" - notwithstanding that this would involve a change of placement for E and separation from Mr and Mrs F at the age of three, after three years in their care. She explained: Yes, because, even though I am very aware of the risk factors of that, and the potential for long term problems, if she is, one, well parented by her mother, with the added bonus of what she would get from the cultural aspect of it, I would think - I would have been very hard pressed to know where to put the balance. I am very concerned about moving children out from an established family by the time they are three, but I am also very conscious of the potential for difficulties in a child who has been adopted who's in a family where there are sorts of racial differences, I am not saying - I would be hard pressed to know just how to make a recommendation. 234 Contrary to Mr Anderson's submission, this evidence does not support the view that separation from Mr and Mrs F is not per se a cause for concern; what Dr Robinson was there saying was that though such a disruption was always a cause for concern, the countervailing benefits were such as would have made it very difficult to choose between the alternatives, had adequacy of D's parenting capacity been more manifest. Ultimately, I agree with Dr Robinson that in this case the benefits of placing E with D now, which are not insignificant, do not justify the significant associated risks. Focussing on E's interests in the short term, the issue is not difficult. As Ms Cleary, for the separate representative, submits, the child E is presently well-balanced, well brought-up, and well-loved; every witness agrees that she will be distressed, if not damaged, by removal from Mr and Mrs F; the only difference of opinion is as to the degree and extent of that distress, and the speed and facility with which she might recover from her grief and attach to D. As counsel poses: "The question has to be asked, why have professional services involved to minimise E's distress and to manage the distress of Mr & Mrs F, and manage the expectations of D, when it need not be done at all?". The only answer can be, if the benefits of a change are such as to justify a course that involves that distress. Because E is obviously thriving in the care of Mr and Mrs F, to justify the removal of E from her secure attachments and the associated distress for E – and the risk involved in a move from a certain stable future to an uncertain one – one would need to be satisfied that the benefits outweighed the risks, and that D's parenting skills were adequate to meet the occasion; in Ms Selwyn's words, her parenting would have to be "extremely good enough" in these circumstances to justify the "very risky" disruption of well established attachment bonds. There is no short-term benefit that justifies such a course. 235 E's best interests in the longer term, however, are far more ambiguous. Being raised by D in her family and culture of origin will better provide for her the development of her identity and self-esteem, and avert the identity issues that will otherwise arise. It may well offer a better prospect of her growing up as a well-adjusted human being. However, it remains associated with significant long-term as well as short-term risks – including that E may not re-attach to D, and in any event that she may become distrustful of close relationships, and will be at increased risk of depressive illness, exacerbated by her being in the care of a mother herself at significant risk of relapse into depression. It is a less stable option, including a radical change now, and a less certain future. Given Mr and Mrs F's proven parenting capacity, against the relatively untried capacity of D, the risk of recurrence of D's depression, the absence of evidence of family support or another "safety net", and the slight evidence as to D's actual plans for E's accommodation care and education, placement with D, it is a less safe, higher risk option. The potential advantages are outweighed by the associated risks: I am unable to see that it is in E's interests to take those risks, when they can be avoided by leaving her in the environment in which she is presently doing so well. I am convinced that, despite the potential benefits, E's best interests would not be served by a radical change in her arrangements at this time in her life, all the moreso when the countervailing risks - of personal and cultural identity confusion issues in her teen years, and the development of robust techniques to deal with racism – are more amenable to mitigation, through sustaining a relationship with D, than are the risks of moving her. 236 As to the respective merits of E being placed with Mr and Mrs F under a parental responsibility order, or under an adoption order, the major argument in favour of adoption is that it is more beneficial than long-term fostering, because it removes uncertainty and encourages a lifetime commitment between the adoptive parents and the child. On the other hand, it represents a permanent termination of D's legal parental status, and to that extent a weakening of the bond – a severing of the legal bond – between E and her natural mother. 237 I am not unmindful that a parental responsibility order is a less permanent solution than adoption, may result in some competition between D and Mr and Mrs F for E's loyalty and resultant conflict, and carries a greater risk that there will be further litigation – whether instituted by D to seek additional contact or custody or parental responsibility, or by Mr and Mrs F if they form the view that contact is not working satisfactorily. The desirability of an adoption order, to foreclose the possibility of further litigation, has sometimes been emphasised. Thus in Re an Infant K [1973] 1 NSWLR 311, Hutley JA said (at 351): Dr Blow's evidence is that the fact that K is a foster child and known to be such is not endangering her present home situation but that possibly the foster mother's concern at her insecure status is being communicated to the family as a whole. If there were no danger in this present situation being upset it might be contended with considerable force that adoption is not necessary for the welfare of the child and the foster parent relationship should it continue. Therefore the court should not use its powers under s 32(1)(e), because the making of an adoption order is not required to promote the interests and welfare of the child. If, for example, her status as a foster child was a source of real anxiety to the child or to the foster mother then the case for dispensing with the natural father's consent would be much stronger than it is. … The real question is, is it in the interest of K that there should remain available to her the possibility of being reunited to her own parents, if the Minister should so determine? The principal justification for terminating the natural ties is to give security to the child by removing any temptation from A and B to continue to exert pressure for the return of the child. Though one can appreciate the motives which drove them to do it, one cannot ignore the danger to the wellbeing of the child from publicity … The continuing effect of inquiries, representations and publicity of various kinds upon the stability of the foster home cannot but be detrimental to the child. No undertaking that the campaign already begun would be abandoned or suspended if an order was not made was suggested by their counsel. In the light of Dr Blow's evidence that the removal of the child from her present custody would be harmful, this Court should remove any temptation to the parents to continue their efforts, by making the orders sought. Steps to ensure that K is fully integrated into the foster mother's family should now be taken. 238 Much more recently, in Re Q & R; Application of P [2006] NSWSC 1234, Palmer J, dispensing with the consents of the natural mother S and the natural father T, said: 75 Ms S has made it clear that she refuses her consent to the children's adoption because she intends to use every possible legal avenue to have them returned to her parental care. She has made it clear that she will persist in litigation to achieve this end as long as she has any legal standing to do so. 76 I have reached the conclusion, without the slightest doubt or hesitation, that it would be very dangerous to the children and highly detrimental to their welfare to remove them from their loving, secure and supporting relationship with Mr and Mrs P and to return them to the parental care of Ms S. Indeed, in my opinion, the risks to the physical safety and emotional wellbeing of these highly vulnerable children are so great as to make their return to the care of Ms S an impossibility, now or at any time in the future. 77 In my view, there is a serious concern for the welfare of the children if the consent of Ms S to their adoption is not dispensed with under s.67(1)(c). I am satisfied that the making of such an order is in the best interests of the children. If an order is not made, Ms S will undoubtedly continue in her litigious efforts to regain custody of the children, which will inevitably place enormous stress on Mr and Mrs P. That stress will inevitably reflect upon the children. 78 Further, if the children are continually subjected to psychological assessments for the purpose of litigation instituted by Ms S they themselves will feel that the security of their relationship with Mr and Mrs P is undermined, to their great detriment. 79 For these reasons, I conclude that an order should be made under s.67(1)(c) dispensing with the consent of Ms S to the adoption of the children. … 83 In my opinion, having regard to Mr T's violent relationship with Ms S before they separated, his violent behaviour towards her after their separation, his inflammatory conduct in Court, his inability to focus upon the needs of the children and to understand their present vulnerabilities, and the absence of any evidence which could demonstrate his fitness and capacity to resume care of the children, it would be impossible to consider the return of the children to his parental care either now or at any time in the future. 84 Mr T demonstrates all of the hallmarks of the querulant litigant. The files in evidence show that he has been engaged in many proceedings concerned with the custody of the children. The transcripts of those proceedings show the same obsessive behaviour as he has demonstrated in this Court. I have no doubt at all that if an adoption order is not made, he will continue to harass Mr and Mrs P and the children with every conceivable manner of litigation in order to regain control of the children. For the reasons I have given in relation to Ms S, it is in the children's best interests that they be removed once and for all from the possibility of such harassment and its resultant insecurity and disturbance. 85 I am satisfied that there is a serious concern for the welfare of the children if the consent of Mr T to their adoption is not dispensed with under s.67(1)(c). I am satisfied that the making of such an order is in the best interests of the children. … 87 The matters to which I have given particular weight in considering whether adoption orders should be made are: – the strong wishes of the children to be adopted; – the length and strength of the children's relationship with Mr and Mrs P; – the vulnerability of the children and their emotional and physical needs for a secure and permanent relationship with Mr and Mrs P; – the absence of any positive relationship between the children and either Ms S and her family or Mr T; – the real possibility that not making the adoption orders will leave the children exposed to the risk of continued attempts by Ms S and Mr T to regain custody or increase access, with a consequential very damaging impact upon the children. 239 Both those cases involved judgments that it was not in the interests of the child that there should remain available the possibility of being reunited with the natural parent(s). As Palmer J explained in Re D; Application of A, there is no general rule that adoption is more likely to be in the best interests of a child than long-term fostering, and the choice is influenced by the age of the child, the history, and the possibility of the child ever returning to her natural parents, having close regard to the particular circumstances of the individual case:- 47 It would be inappropriate for the Court, by undertaking a review of the literature in the field of child psychology and adoption, to come to the view that, as a general rule, adoption is more likely to be in the best interests of a child than long-term fostering or, indeed, any other form of care. When the Court comes to the consideration required of it by s.8(2)(k) and s.90(3), no general rule can be applied. The Adoption Act regulates adoptions in a very wide range of different circumstances: an orphaned infant from Korea; a baby abandoned by parents incapable of caring for it; a teenager removed from abusive parents; a married adult wishing to be adopted by a step-parent. 48 The choice between long-term fostering as an alternative to adoption will, by definition, arise where the child is fairly young. Even so, the age of the child in itself will inevitably give rise to different considerations in different circumstances. The case of a baby some months old, or a child under the age of two, with no possibility of ever being returned to its parents, is very different from the case of a ten year old who has a real prospect of returning to parental care; what a child has experienced before coming into foster care may have a considerable impact on the child's need for future stability and security. 49 For these reasons, s.8(2) emphasises that the Court must have close regard to the particular circumstances of each case in order to assess whether the child's interests are best served by an adoption order or some other form of care: s.8(2)(k). 240 As E will know and have ongoing contact with D, it is inevitable that she will come to know that D is her natural mother; she is already acquiring that knowledge. Accordingly, E is going to know all three of D, Mr and Mrs F as her parents in one way or another. Sooner or later E will question why she is not with her natural mother. This issue, which has to be faced by virtually all adoptees, will be exacerbated for E by the cultural and ethnic gap. Inevitably, she is going to be faced with issues of identity arising from those circumstances. The principal challenge, which she will almost certainly confront in her teenage years, will be reconciling her experience of living in a loving family with Mr and Mrs F, with her separation from her natural mother and ethnic group, in circumstances where her natural mother has, except for a few weeks around the time of her birth, wanted to parent her. The crucial issue, so far as E's longer-term interests are concerned, involves positioning her best to deal with that challenge. 241 Having regard to the conclusions I have reached about the risk of identity confusion and cultural deprivation issues, it is clear that E should be given ample opportunity to develop a good relationship with D, from whom she can gain much, through which relationship some of the issues which she will otherwise face can be minimised. Minimising E's relationship with D will if anything exacerbate the issues she will ultimately have to face. Sustenance of the ongoing relationship with D is important for E's long-term welfare, not just to gain some knowledge of her cultural background, but to know her birth mother, to learn her family heritage and background, and to grow her identity and sense of belonging. Adoption may have a negative effect on the potential of her relationship with D. Bearing in mind the evidence that children often have to deal with complex family relationships involving multiple parental figures, and ordinarily are able to do so, I do not perceive a necessity from E's perspective to clarify that two of the three are legally her parents and one is not; in particular I do not share the concerns expressed by Mrs F that there is a need to avoid confusing E about who are her parents; the evidence shows that children are well able to cope with this type of complexity. 242 As it is impossible to predict with any degree of certainty how E will respond, it is preferable not to take the irrevocable step of making an adoption order, but rather to leave the position more flexible, so that it can respond to E's needs and wishes as they emerge in the future. While uncertainty as to the long-term future has disadvantages, they should not be overstated. First, it is impossible to foretell E's future. Circumstances change. The attitudes of individuals, including children, fluctuate. An irrevocable order precludes the opportunity of adjusting arrangements to meet such changes. Thus in cases relating to children upon relationship breakdown, in which typically residence/contact or residence/residence orders are made, such orders are always amenable to change, although some significant change of circumstances is required to warrant re-opening the issue [see Rice & Asplund (1978) 6 FamLR 570]. Generally, it is thought that the impossibility of foretelling the future, and the desirability of preserving some flexibility, outweighs the benefits of permanence achieved by an immutable order. Secondly – unlike A re D and Re Q & R; Application of P - this is not a case in which the child has been removed from circumstances of great risk in which she has experienced considerable trauma, and fears the prospect of being returned to the care environment from which she was removed, so that it would be an important step in her interests to demonstrate that such a return was impossible. Thirdly, insofar as the security of the parents is important to the welfare of the child, Mr and Mrs F would have in their favour an order allocating to them parental responsibility for E, as well as care and custody. That gives them all the rights and responsibilities of a parent. While it may not be as permanent as an adoption order, it still affords a very considerable measure of security. Although there is a risk that Mr and Mrs F, even unintentionally, might withdraw somewhat from their parental commitment to E, for fear that they might be disappointed in the future, Mr and Mrs F always contemplated that the adoption would be an "open" one, in which E would know and have contact with D, perhaps increasingly as she became older. If Mr and Mrs F are as committed to E as they say, and I do not doubt that they are, I cannot conceive that they would reduce that commitment on account of a risk that she might want to spend more time with D at some time in the future. 243 Fourthly – particularly because of the trans-racial aspect - it is quite likely that, knowing D is her natural mother, and if they develop a good relationship through contact, E may find the biological and genealogical ties and the desire to be with her own people very strong in her adolescence. The following excerpt is instructive (Fratter, p235): The adoptive parents whose son had left their family believed that he had become attached to them, but that in adolescence, the pull of the 'genetic bond" had been too strong, and he had felt that 'his loyalties lay with his birth family'. They thought with hindsight that fostering would have been a less difficult option for him than adoption, and that the disruption was caused not by contact but by a 'crisis of identity'. 244 That is not to say that it is a probability, or that it should happen, but it is a sufficient possibility that it needs to be accommodated. I am unpersuaded that this is a case in which the possibility that at some future time, perhaps in adolescence, E may move into the care of D should be forever foreclosed. Fifthly, I think for E in her teens that the concept that she is being parented by Mr and Mrs F who love her, in circumstances where her natural mother was initially unable to care for her, is a less confronting challenge, carrying less of a suggestion of abandonment, than one that involves legal adoption. It better empowers E to deal with the issues that will arise, and to feel more that she has some influence upon the situation. The less irrevocable nature of a parental responsibility order, not involving formal severance of the parental bond with D, provides a more promising environment for E to deal with and resolve these issues in her teenage years, leaving her with some sense of control, or at least influence, in the situation. Not permanently severing the legal parental bond, as an adoption order would, leaves more scope for flexibility in the future, and for effect to be given to E's own wishes as she matures. In my view, it better positions E for the future, in that it leaves her with more ability to make choices for herself, rather than being confronted with a situation in which all decisions have been made for her. This empowers E, in a context in which traditionally, adopted children are 'the most disempowered' of all those involved in adoption [cf Hartman A, and Laird J, 'Family treatment after adoption: common themes', in Brodzinsky, Schechter (eds), The Psychology of Adoption, Oxford 1990; Fratter J, Adoption with Contact, London 1996, p 247]. 245 That adoption would be contrary to the wishes of D is also a relevant, though very much subsidiary, consideration. 246 I am therefore of the view that a parental responsibility order is preferable in the best interests of E to an adoption order. It follows that I am not satisfied that the best interests of E will be promoted by an adoption order (s 90(1)(a)). Having regard to E's age, it is not practicable to ascertain or give effect to her wishes and feelings on the crucial issues (s 90(1)(b)). The prospective adoptive parents have been selected in accordance with the Act; this is not in issue (s 90(1)(c)). The consent of E's father has been dispensed with, but the consent of D has not been dispensed with, and I am unpersuaded that it should be (s 90(1)(d)). I am satisfied that, as far as possible, the child's given names, identity, language and culture and religious ties have been taken into account, but I am of the view that an adoption will not promote E's identity and cultural ties (s 90(1)(e)). 247 As I certainly do not consider that the making of an adoption order would be clearly preferable in E's best interests to a parental responsibility order, the Court is prohibited from making an adoption order, by s 90(3). 248 [If I were required to rest my order on the Family Law Act, there is nothing in the relevant considerations under that Act relevant to the decision in this particular case that I have not taken into account in the exercise of jurisdiction under the Adoption Act. I am satisfied that it would not be in the best interests of the child for her parents to have equal shared parental responsibility. I do not overlook the emphasis that the Family Law Act places on the benefit to the child of having a meaningful relationship with both of the child's parents. In the present case, so far as the father is concerned that is impossible, and so far as the mother is concerned it has to be balanced against the disadvantages of a change in the child's circumstances and the likely effect on her of any separation from Mr and Mrs F with whom she has been living [Family Law Act, s 60CC(3)(d)(ii)]]. Contact 249 Professor Katz explained that the main purpose behind "open adoption" was that it mitigated, apparently successfully, one of the largest traumas for adoptive children, namely the search for their own origins. Ms Prevatt Goldstein said that research evidence appeared to favour contact with birth parents as being beneficial, or at least neutral, for the child, and that even after contested adoptions contact appeared neither to reduce attachment to, nor sense of entitlement of, the adoptive parents, with some research (Fratter, 1996) suggesting that contact every six weeks did not appear to affect the attachment of the children concerned – although, unsurprisingly, it was found to work most satisfactorily with respect if not affection between the adults. 250 In E's case, the need for contact is accentuated by the complication of separation from her ethnic and cultural origins as well as from her birth family. The most important mitigating factor for reducing the risks for E of personal and cultural identity issues in the future is contact with D, to facilitate knowledge of and a relationship with her natural mother, extended family, ethnicity and culture. 251 Dr Robinson said (emphasis added): I mean, my general principle for contact in any scenario is: what is the aim of the contact? What are you trying to establish? What type of relationship are you trying to establish between the child and the person? I wouldn't see the aim of this contact to establish that D is a parent . I would want – and therefore any parenting role to the child. I would want the type of relationship to be that the child is very familiar with D, comfortable around her. That D is meeting E's cultural needs, exposure to a Sudanese woman, exposure to her biological mother who is able to talk to her in a way Mr and Mrs F and nobody else will be able to talk to her about grandma and grandad and so on and so forth. That they can share some history, that's some history between them. Not only sharing the family history, but that there is some history between them built up so that E has a sense that D is a caring, involved, biological parent, so that the potential for abandonment fears in the future are minimised and if – as we might expect this at times of adolescence, that if she needs to spend more time with D in her own home and in her culture, and if Mr and Mrs F can countenance that, that she can comfortably go and spend time with her biological mother at that point in her life. 252 There is a certain amount of confusion in Dr Robinson's thought on this topic. For speaking "about grandma and grandad and so on and so forth" goes beyond meeting cultural needs and involves imparting a sense of belonging to D's family. I do not accept that in the present case contact is merely for the purpose of providing E with some connection with her cultural origins: at least as important is reducing the risk that she will experience feelings of having been rejected by her mother, through preserving a relationship with her. 253 Ms Prevatt Goldstein's opinion was that if E were not returned to D, it would be in E's interest to have regular, frequent contact with D, and that both D and Mr and Mrs F would need to be assisted in managing it in ways that clarified their respective roles. She thought it would be helpful to begin face-to-face contact of approximately two hours in Mr and Mrs F's home or in a neutral venue at three monthly intervals, progressing in frequency to six weekly and in duration to one day and in location to D's home or another relaxed venue within one to two years. 254 Dr Milch and Dr Robinson concurred that contact as frequently as monthly would not be excessive. Dr Robinson thought the key factor, as to the frequency of contact, was not so much what the child could tolerate but what the parents could tolerate; that if Mr and Mrs F were very anxious and distressed about contact with D and if D was very anxious about not having their child in her care, the contact would not be too pleasant an experience for E, though she would possibly cope with that, "but what will make her not cope with it is returning to a mother who has fallen apart, wondering what has happened and who feels very, very undermined, as I said, very anxious about what it all means". She would not advocate overnight contact until Mr and Mrs F felt secure that E was safe and secure in the care of D, and that E was very comfortable with D. She accepted that twice a year was probably too little, and that if the relationships were not perfect but reasonably good, monthly contact would not be too frequent. She suggested perhaps an hour, initially with a health professional, just D and E together, without Mr and Mrs F; followed if possible by some activity involving Mrs F also, which would help E trust D as a benign person in her life. 255 In final submissions, Mr and Mrs F proposed contact at this stage three monthly, acknowledging that it would increase in the future and indicating that they would regard it more or less as at E's discretion once she reached her teens. The Director-General and the separate representative appear to support contact on a monthly basis, consistent with the evidence of Dr Milch and Dr Robinson. 256 It is necessary to balance E's interests in Mr and Mrs F, with whom she will be living, feeling secure and being supportive of contact, and E's interests in developing a good relationship with D. Contact of the order supported by Dr Milch and Dr Robinson will be very much more than had been contemplated at the time when E came into Mr and Mrs F' care. On the other hand, the situation has changed since then, and it is the interests of E, not those of Mr and Mrs F or D, that are paramount. 257 Particularly in the context that they will not have the security of an adoption order, I think it is important, and in E's interests, that Mr and Mrs F's security in their relationship with E not be undermined by too rapid an introduction of contact more extensive than they wish. To preserve their sense of security, it is important that they have some comfort in respect of contact. I therefore propose to make provision for a minimum level of contact, but in the hope that Mr and Mrs F will recognise that it is in E's interests, consistent with the expert evidence, to see more of D. I will provide for contact second monthly for a year (until E is five), then six weekly (until she is six), then monthly. I would anticipate and hope that by about the time she commences High School there would be overnight contact, but it is too early to be prescriptive about this, and E's own wishes will be much more significant at that stage. I will reserve liberty to apply for further contact orders in the event that the parties are unable to agree on the detail, or in the future. Name 258 The Director-General seeks an order, under s 92, allowing E to be referred to by Mr and Mrs F's surname. Such an order would not involve an exercise of power under Adoption Act, s 101, and the restrictions referred to in that section do not apply. In any event, s 101 does not impose relevant limitations upon the change of the surname, as distinct from the given name of a child. However, it would be curious if a name could more easily changed when an adoption application had been dismissed, than upon a successful adoption application. The name of a child is an aspect of parental responsibility. Without any order, the persons having parental responsibility are entitled to change the name of a child. In my view power to make orders with respect to parental responsibility must carry with it power to make orders with respect to the child's name. 259 Issues of changing the surname of a child have been considered in a number of cases in the Family Court of Australia [George & Radford (1976) FLC ¶90-060; 1 Fam LR 11,510; Chapman & Palmer (1978) FLC ¶90-510; 4 Fam LR 462; Beach & Stemmler (1979) FLC ¶90-692; Kelley & Kelley (1981) FLC ¶91-002; Skrabl & Leach (1989) FLC ¶92-016; 13 Fam LR 83; and Mahoney & McKenzie (1993) FLC ¶92-408]. Usually, they have arisen in the context of applications for injunctions to restrain one parent from causing or allowing the child to be known by a new name. A convenient summary of the cases and the principles to be extracted from them is to be found in the judgment of Kay and Holden JJ in Flanagan & Handcock (2001) FLC ¶93-074. Relevantly, they establish that the welfare of the child is the paramount consideration, and that the court should have regard to the short and long-term effects of any change in the child's surname; any embarrassment likely to be experienced by the child if his or her name were different from that of the parent with whom the child resides; any confusion of identity which may arise for the child if his or her name is changed or not changed; the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and the effect of frequent or random changes of name [Chapman & Palmer (1978) FLC ¶90-510; 4 Fam LR 462]. Further considerations include the advantages in the short and long-term of the name remaining unchanged, and the degree of identification that the child has with the various parties [Beach & Stemmler (1979) FLC ¶90-692]. 260 In support of the submission that a change of name should be authorised, it is contended that E will live in the household of Mr and Mrs F who will be responsible for her day to day education, sporting and leisure activities, all of which will require her to be enrolled or registered, such that it would be in her interest to be able to use Mr and Mrs F's surname. To that might be added that, at present, E more closely identifies with Mr and Mrs F than with D, and that she already uses their surname. 261 On the other hand, a change in surname will be a further breach in the connection between her and her birth mother and family, and may make it more difficult for her to be accepted by her family of origin. 262 Names are important to children. They are a significant aspect of their sense of belonging. At least in the short term, E will identify more closely with Mr and Mrs F than with D. She already uses their surname. She will continue to reside with them for the foreseeable future. While the position in the longer term is not so clear, the probabilities are that even then she will identify more with Mr and Mrs F. To change now from their name will be productive of confusion and distress. Retaining E's present surname as a middle name will preserve the connection with D's family. In my view, her greater identification in the short term, and probably the longer term, with Mr and Mrs F, the circumstance that she already uses their name, so that from her perspective no "change" would involved, and the undesirability of causing identity confusion at this stage, indicate that Mr and Mrs F should be permitted, in exercise of their parental responsibility for E, to change her surname to their own, provided that if they do so, E's current surname be retained as her middle name. Conclusions 263 My conclusions may be summarised as follows. 264 On its proper construction, (NSW) Adoption Act, s 92, authorises orders allocating parental responsibility. Nothing in the Family Law Act excludes the jurisdiction of the Supreme Court to make orders under Adoption Act, s 92. A parenting order can be made under the Family Law Act in respect of a child who is not under the care of a person under the Adoption Act (for example, one in respect of whom no order is made), or even in respect of one who is under the care of a person under the Adoption Act, if the order is expressed to come into effect when the child ceases to be under that care. Accordingly, this Court could, if it declines to make an adoption order, make an order allocating parental responsibility, either under the Adoption Act, ss 86 or 92, or under the Family Law Act. I prefer to approach the matter, in the context of this case, under the Adoption Act. 265 If not brought up in, or at the very least with a very strong connection with, her ethnicity and culture of origin, E would be at risk of being deprived of the cultural traditions to which she is entitled but which cannot be passed down except by those in them, and of an extended family and peer group with which she is visibly similar. As a result, she would likely have a diminished sense of identity and self-esteem, and less resilient defences against racism than otherwise. To some extent, these risks can be mitigated, but not averted, by contact with D and her family and community; in my judgment Mr and Mrs F would be sufficiently supportive of such contact that it can be a significant mitigator of the risks. 266 The effects on E of being removed from the primary care of Mr and Mrs F would be a certainty of a high degree of trauma and distress in the short term, a high risk for developing a depressive disorder in the future, and potential inhibition of her ability to form intimate relationships in the future, notwithstanding a reasonable prospect - albeit one that could not be guaranteed - that with "good enough" parenting from D, she could reattach to D. 267 In D's care, E would not be at risk of violence or abuse from D's brother or family. It is likely that D will ordinarily have adequate, or "good enough", parenting skills. However, her parenting capacity is compromised: by lack of insight into the complexity of E's needs and the potential difficulties upon removal of E from Mr and Mrs F; by her vulnerability to depression; and by the absence of any apparent safety net support from her family or community. 268 Whereas an adoption order is permanent; a parental responsibility order may be varied, although usually a significant change of circumstances will be required to justify re-opening the issue. The security afforded by an adoption order is in the interests of the child as well as the parents, and may provide a firmer basis for the adoptive parents to be supportive of contact between the child and the natural parent. On the other hand, an adoption order represents a permanent legal severance of the relationship between natural parent and child, which a parental responsibility order does not, and may reduce the prospects of the child growing a strong relationship with the natural parent, and exacerbate the identity confusion issues that the child may encounter, particularly in adolescence. Children can and do cope with complex family relationships, involving multiple parents. 269 Section 67(1)(c) necessarily contemplates the situation if an adoption is otherwise precluded by the absence of consent, so that the requirement for "serious cause for concern" is implicitly addressed to the child's welfare in his or her unadopted status. In considering the question of serious concern, it is permissible (and indeed obligatory) to take into account the circumstances that would pertain if D had parental responsibility for E, and evidence of risk to E as a result of D's mental health, or from violence directed to her or to D by members of D's family, would be relevant considerations on the question of "serious cause for concern". 270 I am unpersuaded that E would be at risk of abuse, ill treatment or violence from D's family if she were in the care of D. However, the combination of D's own vulnerability to depression, superimposed on the risks of depression for E from disruption of her attachment to Mr and Mrs F, suggests that E would be in a very high-risk category for depressive disorders if she were removed from Mr and Mrs F and placed in the care of D. This is a serious cause for concern for E's welfare. Accordingly, the first of the threshold requirements for a consent dispense order is established. 271 I am satisfied that it is not in E's interests to be raised apart from her natural mother, by people who are not her natural parents, outside her culture and ethnic group of origin. E has a need for much more extensive contact with her culture of origin than can be provided by Mr and Mrs F, despite their best intentions. D is better able to meet that need. I fully accept that Mr and Mrs F will do their best, within their circumstances, to acquaint E with her origins so as to foster in her a sense of self. But their best is not likely to approach what E could gain in that respect, were she to be brought up in her birth family and culture. 272 However, I am also satisfied that it is not in E's interests to have her secure attachment to Mr and Mrs F disrupted, particularly at her present age. Disruption to attachment is a well-known developmental risk, which may hinder E's ability to foster future intimate relationships, may move her into the group who mentally represent close relationships as untrustworthy, and will place her at high risk of depression in later life, a risk that is further exacerbated by the circumstance that she would be in the care of a parent herself prone to depression. 273 Ultimately, I agree with Dr Robinson that the benefits of placing E with D now, which are not insignificant, do not justify the significant associated risks. Focussing on E's interests in the short term, the issue is not difficult: E is presently well-balanced, well brought-up, and well-loved; every witness agrees removing her from Mr and Mrs F - the only parents and environment she has known - and placing her in the care of D who she barely knows in a quite different environment, effectively challenging her whole belief system, will be very distressing for E, and that there is no guarantee, notwithstanding good prospects, that she will reattach to D. There is no short-term benefit that justifies such a course and its risks. E's best interests in the longer term are far more ambiguous, because being raised by D in her family and culture of origin will better provide for the development of her identity and self-esteem, and avert the identity issues that will otherwise arise. However, that course remains associated with significant long term risks – most significantly a high risk of depression, and also a mistrust of close relationships - as well as the short-term risks already mentioned. Placement with D is a less stable, less safe, higher risk option, including a radical change now, and a less certain future. In the light of the risks associated with it, and because the risks of the alternative - personal and cultural identity confusion issues in adolescence, and the development of robust techniques to deal with racism – are more amenable to mitigation through sustaining a relationship with D, than are the risks of moving her, I am convinced that E's best interests would not be served by moving her at this time in her life. 274 However, I am unpersuaded that this is a case in which the possibility that at some future time, perhaps in adolescence, E may move into the care of D should forever be foreclosed by the making of an adoption order. The less irrevocable nature of a parental responsibility order, not involving formal severance of the parental bond with D, provides a more promising environment for E to deal with and resolve the inevitable identity issues in her teenage years, leaving her with some sense of control, or at least influence, in the situation, and greater scope for flexibility in the future, having regard to E's own wishes as she matures. This empowers E, in a context in which traditionally adopted children are 'the most disempowered' of all those involved in adoption. 275 I am therefore of the view that a parental responsibility order is preferable in the best interests of E to an adoption order. It follows that I am not satisfied that the best interests of E will be promoted by an adoption order, nor that it is in the interests of E to override D's wishes in that respect by making a consent dispense order. As I certainly do not consider that the making of an adoption order would be clearly preferable in E's best interests to a parental responsibility order, the Court is prohibited from making an adoption order, by s 90(3). 276 E should have contact with D at least second monthly for two hours until age five, then six weekly for three hours until age six, then monthly, increasing in length and reducing in supervision until by twelve unsupervised overnight contact should be envisaged, but it is too early to be prescriptive about what will be appropriate at that age. Although I have provided for supervision of contact for the first twelve months, I intend that the supervisor have the latitude to permit some one-to-one time between D and E alone. Subsequently, I intend that Mr and Mrs F would be present for a while at the commencement of contact, and then leave D and E to some time alone. 277 E's greater identification in the short term, and probably in the longer term, with Mr and Mrs F, the circumstance that she already uses their name - so that from her perspective no change would be involved - and the undesirability of disrupting her sense of belonging at this stage, indicate that Mr and Mrs F should be permitted, in exercise of their parental responsibility for E, to change her surname to their own, provided that if they do so, E's current surname be retained as a middle name. 278 I am acutely aware of the tragedy for Mr and Mrs F that their dream of being adoptive parents of E, which seemed so close to reality, will be disappointed; and equally of the tragedy for D, who has never truly agreed to surrender her parental responsibility for her daughter, that she be unable to exercise it. I fully appreciate that this outcome involves elements of compromise, and that it is not an ideal solution; but in the circumstances that have arisen, through no-one's fault, there is no ideal solution. The best one can do is to recognise that any outcome is going to leave E with challenges in the future, most likely during her teenage years, and to adopt that solution which, while providing her with a safe, secure and stable environment, best positions her to meet them. The solution of leaving E in the care and parental responsibility of Mr and Mrs F, but without severing the legal parental relationship with D, and providing for her to have more extensive contact with D than had originally been anticipated, will provide a secure, stable and loving environment for E, and preserve the opportunity for a meaningful relationship with her family and culture of origin, thereby mitigating the risks of identity and self-esteem issues in adolescence. I have seriously considered whether an "all or nothing" solution, with the greater security it would offer the prevailing party, and perhaps the child, and the greater certainty it would afford, would not be preferable, but I think the advantages of not permanently severing E's legal parental bond with D on the one hand, and of not disrupting her secure attachment bonds with Mr and Mrs F at her present age on the other, outweigh the attractions of security and certainty, which in the context of this case are more related to the perceived needs of the parents than of E: it is clear that children such as E can cope with the concept of multiple parents. I have also considered whether it involves unreasonable expectations of the parents, but I am very confident that Mr and Mrs F, who indicated acceptance of a parental responsibility solution if an adoption order were not made, will not allow their natural disappointment to affect their deep commitment to and love for E; and D must understand that if she were to endeavour to undermine their position that would not only be detrimental for E, but would be a strong negative factor in respect of further contact. Of course if the benefits for E are to be optimised, goodwill and trust between the parties, and refraining from conduct that undermines the position and standing of the others, will be important. It is plainly in E's best interests that, putting aside their personal needs and beliefs, all three work together to provide the best outcome for her. But as has been pointed out, even after contested adoptions, contact with the birth parent has typically proven beneficial. 279 My orders are: 1. Revoke the consent dispense order (Order 2) made on 2 February 2005. 2. Dismiss the application for a consent dispense order. 3. Dismiss the application for an adoption order. 4. Order pursuant to Adoption Act , s 92, that Mr and Mrs F have parental responsibility for, and custody and care of, E. 5. Order that E have contact with D as agreed between D and Mr and Mrs F, but failing agreement: 5.1 Until she attains five years of age, for a period of not less than two hours every second month, the first such contact to take place on 4 August 2007 and on the first Saturday of each second month thereafter, and such contact to be supervised by an officer of the Department of Community Services, and/or a health professional or other person agreed between D and Mr and Mrs F or failing agreement nominated by the Department; 5.2 From her fifth birthday until she attains six years of age, for a period of not less than three hours every six weeks, the first such contact to take place on the first Saturday of August 2008 and on each sixth Saturday thereafter, and such contact to include at least one hour of unsupervised contact between E and D; 5.3 Thereafter until further order, for a period of not less than four hours every month, the first such contact to take place on the first Saturday of August 2009 and on the first Saturday of each month thereafter, and such contact to include at least three hours of unsupervised contact between E and D. 6. Reserve liberty to the parties to apply for further orders in respect of contact, including orders further defining contact. 7. Order that in exercise of their parental responsibility for E, Mr and Mrs F may change her surname to their own, provided that they retain her present surname as E's middle name. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.