Application of KLP and JSP [2012] NSWSC 837

Supreme Court New South Wales

Medium Neutral Citation: Application of KLP and JSP [2012] NSWSC 837 Hearing dates: In chambers Decision date: 24 July 2012 Before: Brereton J Decision: The original birth certificate of GSP be returned to the adoptive parents Catchwords: ADOPTION - access to information - right of adoptive parents to return of adopted child's original birth certificate Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 56.8 (NSW) Births, Deaths and Marriages Registration Act 1995, s 25A, s 52 (NSW) Adoption Act 2000 (NSW) Adoption Amendment Act 2008, s 133B, s 133D, s 133E, s 138(2), s 142 (NSW) Adoption Regulation 2003, clause 52 Category: Principal judgment Parties: KLP (First applicant) JSP (Second applicant) Representation: Ellis McLachlan (First & Second Applicants) File Number(s): A167/2011

Judgment 1On 2 March 2012, the Court made an order for the adoption of the child GSP by the applicants KLP and JSP. In conformity with the Court's usual evidentiary requirements in connection with adoption applications, the applicants furnished to the Court the child's original birth certificate. The adoptive parents have now requested the return to them of the original birth certificate. Until now, it has been an administrative practice to retain and not to return the original birth certificate. For the reasons that follow, I am of the view that that practice is no longer appropriate. 2The practice of the Court is to require that the applicant provide the child's birth certificate in support of the application. The applicable rule of Court, UCPR r 56.8, requires that the evidence in support of an application for an adoption order must include evidence of "(c) the date and place of the child's birth". The best evidence of that is the child's birth certificate. 3The Court's "Adoption Applications: Precedents" contains the following (at [6]): Where the child was born in Australia, the original birth certificate must be filed and annexed to an Affidavit of Identity. In overseas applications, the Affidavit of Identity should annex a copy of the child's overseas birth certificate and the original certificate should be supplied to the Court for inspection. The original of the child's birth certificate will be returned to the proposed adoptive parents (upon written request) after the application for an adoption order has been finalised. 4Once an adoption order is made, an updated birth certificate is issued by the Registrar of Births Deaths and Marriages. (NSW) Births, Deaths and Marriages Registration Act 1995 ("BDM Act") provides as follows: 25A Issuing birth certificates to adopted persons (1) After a person's adoption is registered under this Part, a birth certificate issued by the Registrar for the person must contain the relevant information recorded in the Register pursuant to section 24(2) in place of the corresponding information recorded in the Register pursuant to section 17(1). (2) In particular, a birth certificate for an adopted person must not include any information that indicates that he or she has been adopted. 5BDM Act, s 52, provides that supply of information under that Act is subject to the (NSW) Adoption Act 2000 ("the Act"). 6It has not been the practice of the court to return the original in cases where the child is of Australian birth. There does not appear to be any legislative basis for this practice, but it appears to be informed by a desire to avoid potential for confusion or deception. It may also be a practice inherited from the days that preceded "open adoption" practices. 7The (NSW) Adoption Amendment Act 2008 amended the Act by inserting Division 1 Part 2 into Chapter 8 of the Act. The purpose was explained by the Minister in the Agreement in Principle speech, relevantly as follows: However, a significant reform introduced by this bill is the support it provides to facilitating open adoption practices for future adoptions. The bill seeks to establish equitable and open rights to access information, such as birth certificates and birth records, by inserting a new division in the Act, so that a new scheme of general access entitlements will apply to applications for adoption made after the commencement of the division. Under this new scheme, adoptive parents, adopted children, birth parents, and siblings will be more easily able to access adoption information. To enable adopted children to have an accurate picture of their identity from an early age, the new scheme allows for adoptive parents, after the adoption orders are made, to automatically be entitled to receive adoption information. They will be able to access their adopted child's original birth certificate and other prescribed information held by the adoption service provider or an information source such as a hospital, or the Registry of Births, Deaths and Marriages [NSW Legislative Assembly, Parliamentary Debates (Hansard), 25 September 2008 at 10109] (emphasis added). 8Chapter 8 of the Act deals with 'adoption information'. 9The Dictionary to the Adoption Act contains the following relevant definitions: original birth certificate, in relation to an adopted person, means: (a) if the person's birth is registered under the Births, Deaths and Marriages Registration Act 1995 - a certificate certifying the particulars relating to the birth of the person registered under section 17 of that Act, or (b) if the person's birth is not so registered - a copy of any similar document relating to the adopted person identifying the birth parents of the person and contained in records relating to the adoption of the person that are held by an information source. amended birth certificate, in relation to an adopted person, means a certificate certifying the particulars relating to the birth of the person based on the registered record relating to the adoption of the person kept under the Births, Deaths and Marriages Registration Act 1995. 10Part 2 of the Act governs access to birth certificates by adoptive parents and adopted persons. Division 1 of Part 2 applies to adoptions after 1 January 2010 [s 133B]. Section 133D(1) provides that an adoptive parent is entitled to receive the adopted person's original birth certificate: 133D Adoptive parent's rights (1) An adoptive parent of an adopted person is entitled to receive (subject to this Act): (a) the adopted person's original birth certificate, and (b) the adopted person's birth record, and (c) any prescribed information relating to the adopted person held by an information source. 11Section 133E(1) provides that a birth parent is entitled to receive an adopted person's amended birth certificate: 133E Birth parent's rights (1) A birth parent of an adopted person is entitled to receive (subject to this Act): (a) the amended birth certificate of the adopted person if a record of the adoption of the person is registered under the Births, Deaths and Marriages Registration Act 1995, and (b) the adopted person's birth record, and (c) any prescribed information relating to the adopted person or adoptive parents held by an information source. 12The purpose of these provisions was to enable adopted persons and their parents to have information about their identity. While s 133E(1) permits a birth parent to have "post-adoption" information, s 133D(1) enables an adoptive parent to access "pre-adoption" information. The intent was to allow an adopted person, or their adoptive parents where they are under 18, to access information about their identity. While the BDM Act provides for the issuing of a new birth certificate that makes no reference to the fact of adoption, the intent of the access provisions in the Adoption Act is to allow access to information about the adopted person prior to the adoption. 13Section 133D(1) means that the adoptive parents are entitled, subject to the Act, to receive the original birth certificate, being the certificate setting out the information recorded on the register under s 17 of the BDM Act, identifying the particulars of the child's birth prior to the adoption. 14Section 138(2) relevantly provides as follows: (2) An application for the supply of an original birth certificate under this Part may be made in writing: (a) if the person's birth is registered under the Births, Deaths and Marriages Registration Act 1995 - to the Registrar, or (b) if the person's birth is not so registered but his or her original birth certificate is held by an information source - to that information source, if the certificate is held by the Registrar or the information source. 15Section 142 provides that if an information source supplies adoption information under the Act pursuant to an application under the Act, it must comply with relevant guidelines prescribed by the Regulations. Relevantly, the (NSW) Adoption Regulation 2003 provides, by clause 52, that an information source is to make reasonable inquiries to confirm the applicant's identity and relationship to the person to whom the information relates before supplying the information. "Registrar" means the Registrar of Births Deaths and Marriages. "Information source" includes the Supreme Court. 16The effect of s 138(2) is that, if the adoptive parents were not already in possession of it, they would have to apply to the Registrar of Births Deaths and Marriages for it, because the birth is registered under s 17 of the BDM Act, notwithstanding that it is in the Court's possession. However, in this case, the adoptive parents were already in possession of the Certificate. They are not applying to receive the Certificate under s 138, but for the return of the Certificate, already held by them, which they provided to the Court as evidence in support of their application. The amendments to the Act make clear that there is no policy against their having the original certificate, and that whatever considerations informed the former practice of the Court are no longer applicable, so that it is appropriate that, like an exhibit tendered as evidence during a hearing, the original certificate be returned. To facilitate this in the future, original birth certificates should be exhibited, rather than annexed, to the affidavit of identity. 17I order that the original birth certificate be returned to the Applicants. A copy should be made and retained in the Court file.