Supreme Court New South Wales Medium Neutral Citation: Adoption of SRB, CJB and RDB [2014] NSWSC 138 Hearing dates: 19 and 20 February 2014 (Orange) Decision date: 20 February 2014 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Adoption orders made Catchwords: FAMILY LAW - child welfare under state legislation - adoption - whether making of adoption orders clearly preferable to any other legal action which can be taken in respect of the care of the children - held, the making of adoption orders clearly preferable to any other action which can be taken with respect to the care of the children Legislation Cited: (Cth) Family Law Act 1975, s 64B(2)(b) (NSW) Adoption Act 2000, s 8, s 59, s 67(1)(d), s 90, s 91, s 118 Cases Cited: Director General, Department of Community Services v D [2007] NSWSC 762, 37 FamLR 595 Re TVK [2012] NSW SC 1629 Category: Principal judgment Parties: Director General, NSW Department of Family & Community Services, by his delegate, the Principal Officer, Barnardos Australia (plaintiff) Ms KSA and Mr CDB (defendants) Representation: Counsel: Ms E Lawson (plaintiff) Mr I R Coleman SC (defendants) Solicitors: Crown Solicitor (plaintiff) Neil Jones Solicitors (defendants) File Number(s): A74 / 2013 Judgment (ex tempore) 1HIS HONOUR: This case has been argued with great ability and great sensitivity by counsel on both sides. Their written submissions and oral arguments have very much contributed to the Court being in a position to give judgment now. It might be easier to return to Sydney and do so from the comfort of chambers, remote from those who will be most emotionally affected by the outcome. But where it is possible, I think it is preferable that those concerned have the opportunity to hear the judge's reasons, and that the judge assume the obligation of facing them with those reasons. In this case, the outcome and some of my observations will necessarily be emotionally very difficult for one or other of Mr and Mrs D on the one hand, or Mr B and Ms A on the other. I will completely understand if any of the parties wish for that or any other reason to leave the Court while I am giving these reasons. 2By summons filed on 9 May 2013 the plaintiff Director General of the Department of Family and Community Services, by his delegate the principal officer of Barnardos Australia, seeks orders dispensing with the consents of the children's natural mother and father and for the adoption of the children SRB, CJB and RDB in favour of the proposed adopting parents RMD and LAD. Orders are also sought approving 'D' - being the proposed adoptive parents' family name - as the surname of each child, and SRB, CJB and RDB respectively as their given names. After the proceedings were instituted and notice given to the birth parents, each applied to be joined as a defendant and orders were made under (NSW) Adoption Act 2000, s 118, joining the birth mother KSA and the birth father CDB as first and second defendant respectively. 3Mr B was born on 31 June 1976 and Ms A on 15 March 1979. Each of them had children prior to the children the subject of the present proceedings. 4SRB was born on 1 June 2007, CJB on 17 September 2008 and RDB on 3 October 2009. On 15 February 2010 the children were removed from their birth parents' care pursuant to a child protection order, essentially on the grounds that they were living in an unsafe environment due to issues of domestic violence and substance abuse (including alcohol, cannabis and heroin) on the part of their birth parents. At that stage the children were aged two years and eight months, seventeen months and four months respectively. They were initially placed with foster parents. Interim orders for their care were made on 22 February 2010 in the Children's Court at Woy Woy. 5On 29 July 2010, final orders were made in the Children's Court at Woy Woy allocating parental responsibility for the children to the Minister until they attained eighteen years of age. No formal orders were then made for contact, but the care plan for each child contemplated that there would be contact, which took place four times each year for a period of approximately two hours on each occasion. 6On 28 February 2011, Barnardos approved Mr and Mrs D as carers for the children and, at an initial review of arrangements conference, which the birth father attended but the mother did not, their placement with a view to adoption was discussed. On 25 March 2011, the children were placed with Mr and Mrs D, with a view to adoption. At this time they were respectively three years eleven months, two years eight months and eighteen months of age. 7A second review of arrangements conference was held on 21 June 2011. The mother and father did not attend on that occasion, having recently relocated from the Central Coast to Orange. An attempt to contact them by telephone was unsuccessful but a record of the meeting and its decisions was sent to them. 8A third review of arrangements was conducted on 24 November 2011. The mother attended in person and the father by telephone. On 20 March 2012, Barnardos' adoption approval panel decided to proceed with the proposed adoption. 9On 2 April 2012, the first occasion of contact after the children had been placed with the proposed adoptive parents took place. Both the birth father and the birth mother attended. Unsurprisingly, for a first occasion, there were some minor issues with that contact. 10A fourth review of arrangements was conducted on 24 May 2012. The mother attended by telephone and the father did not. 11On 23 July 2012, a second contact occasion occurred. Both parents attended, and there were no issues or difficulties. The third contact occurred on 24 September 2012. On this occasion only the mother attended, the father having previously advised that he was unable to do so, presumably due to employment reasons. 12A fifth review of arrangements was conducted on 6 November 2012. The mother was unable to be reached, and the father advised that he was unable to attend. 13In December 2012 contact did not take place, due to a number of difficulties and changes, for which I do not think it is necessary to attribute blame to anyone. 14The summons for adoption was filed, as I have said, on 9 May 2013. 15Ms A is expecting another child by Mr B on 8 March 2014. 16As I have recorded, the children came into care at a very young age, due to the inability of their birth parents to provide a safe environment for them. I do not think, in the way these proceedings have developed, and particularly given the birth parents' more recent acceptance that that was an appropriate decision at the time, to visit in any greater detail their histories in that respect. 17In broad terms, the plaintiff's case is that there is now no realistic prospect of the children being restored to the care of their birth parents, and that their stability and security will be best fostered for the future by an adoption order that brings their legal status into line with their de facto status. The defendants do not seek to change the extant arrangements for the children's residence and care. However, they wish to keep open the prospect, in the long term, that the children might return to live with them one day, and for that reason to maintain flexibility for the future. Alternatively they seek an increased amount of contact with the children. 18It is appropriate briefly to recall the relevant principles by which decision-makers under the Adoptions Act are required to abide, according to s 8 of the Act. First and foremost, the best interests of the child, both in childhood and in later life, are the paramount consideration. Adoption is to be regarded as a service for the child; this operates hand-in-hand with the next principle, that no adult has a right to adopt a child. In that context, the concept of adoption being a service for the child means that adoption orders are made or declined according to what will best advance the interests of the child, not the interests of proposed adoptive parents nor, for that matter, the interests of birth parents. 19Thus adoption is not to be seen as a reward for being an outstandingly good foster parent, nor is refusing an adoption order to be seen as an incentive for birth parents to improve their lives or improve their parenting capacity. The focus must be on the best interests of the child, not the wishes and aspirations of adoptive applicants or birth parents. Ultimately, for the purposes of this principle, the question is whether adoption serves the interests of the child, rather than whether making or not making an adoption order serves the interest of one or other set of parents. 20Other relevant principles include that the given names, identity, language and cultural and religious ties of a child should be preserved; that a child has a right to know and have contact with his or her birth parents; and that delay in making a decision about adoption may be detrimental to the welfare of the child. This last-mentioned principle recognises that it is in the interests of children generally to make decisions as early as possible about their long-term care, so that there is certainty rather than doubt in that respect. This reflects the importance of security and stability in the raising of children, particularly in the context of early disruption. 21Section 90(3) requires that, before making an adoption order, the Court be satisfied that adoption is clearly preferable in the interests of the child to any other action that could be taken by law with respect to the care of the child. 22As was said in Director General, Department of Community Services v D [2007] NSWSC 762, 37 FamLR 595, s 90(3) requires something more than a slight preponderance of considerations in favour of adoption over the alternatives. While it does not require satisfaction "beyond reasonable doubt", 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. 23Section 8(2) specifies a list of factors to which the Court is to have regard in deciding what are the best interests of the children. In this case, it is convenient to deal with the seriatim. 24Subsection (a) refers to any wishes expressed by the child. In this case, appropriately, no attempt has been made expressly to elicit the wishes of the children. In any event, at their age it is unlikely that they would have formulated wishes about the concept of adoption or legal parentage. However, I think it can be inferred from the evidence that they would not wish a change in their current living arrangements in which they appear to be settled and content. I think it can also be inferred from the evidence, and there is even a little direct evidence on the topic, that they, in particular SRB, wish to continue to have contact with their birth parents. But I do not think that anything can safely be inferred as to whether they would have any wishes one way or the other about the concept of adoption. 25Subsection (b) refers to the children's age, maturity, level of understanding, gender, background and family relationships and any other relevant characteristics. These children are relatively young. Perhaps most significantly, they entered into the child welfare system at an early age. That means - as the evidence of the clinical psychologist Ms Lindfield demonstrates - that they are at an increased level of vulnerability. As she stated, the years between the ages of two and six are the most critical years for forming attachments. The children are very much in that spectrum at present, and have largely been in that spectrum during the time that they have lived with Mr and Mrs D. 26Ms Lindfield also said that numerous studies have consistently shown that children who experience childhood neglect and/or abuse are at much greater risk of poor adjustment in adulthood, and that for young children who are in their critical attachment forming years the issue of permanency and guaranteed security is of paramount importance. Referring to these children in particular, she said that their attachment potential was compromised as a result of their early history, and therefore it was vital that the bonds they have now formed to Mr and Mrs D are afforded maximum protection and security. 27Subsection (c) refers to the child's physical, emotional and education needs, including sense of personal family and cultural identity. So far as their physical needs are concerned, there is not likely to be anything special or particular about these children. So far as their emotional needs are concerned, the matters to which I have referred arising from their early entry into the child welfare system increases their need for stability and security and minimising disruption to bonds that they have now formed. 28So far as their identity needs are concerned they, like most children in similar situations, are likely to have identity issues in the future. However, as it seems to me, such children normally have difficulties with identity issues when they do not know who their birth parents (or one of them) are, or they are deprived of contact with their birth parents, or they are unable to understand why they do not live with their birth parents. In this case, the children know who their birth parents are. They have contact with them, and they are increasingly on the way to understanding why they do not live with them and why they were removed from their care when they were. This, I think, goes a substantial way towards meeting their identity needs. 29They would also have needs for sibling contact with their full sibling soon to be born to Ms A and Mr B, and perhaps with their half siblings. That said, this is in the context where the various half siblings in particular have never really lived in the same family as these children, and while it is conventional to say that sibling contact is important, I do not view it as a particularly significant issue in this case. Nor do I see that Mr B's approach to it is a particularly surprising or inappropriate one. 30It seems to me that these children, particularly CJB and also to an extent SRB, may have particular educational and intellectual needs. The psychometric testing conducted by Ms Lindfield tends to show that CJB is a particularly intellectually able and gifted boy, with a full scale IQ of 132, placing him in the very superior range in the 96th percentile of his age group, while SRB is in the superior range, in the 92nd percent of her age group. This suggests that whoever is responsible for their care will need to be able to meet, challenge and extend them intellectually. 31Subsection (d) refers to any disability that the child has. While each of the children have some health issues, none of these appear to be of a kind that would affect the appropriate order to be made in these proceedings, although it may be observed that the health issues have been very capably and diligently managed by Mr and Mrs D since the children came into their care, and that Mrs D may be, as a trained nurse, particularly well positioned to attend to them. 32Subsection (e) refers to wishes expressed by the birth parents. The birth parents do not consent to an adoption order. Until quite recently, they expressed the intention of bringing an application under s 90 of the Children and Young Persons (Care and Protection) Act for restoration of the children to their care. Before the Court, in their oral evidence, they said that this was no longer their intention, and that they did not seek to disturb the current care arrangements for the children. This change in position on their part is - far from being the subject of criticism - to be commended as demonstrating increasing insight on their part into the welfare and needs of these children. Mr B, I thought, demonstrated that insight quite well when, expressing a position that had evolved considerably from that which he adopted at the preliminary hearing, he said: "I'd love to have my children back, but I've moved on. That I don't think that's the right thing to do now." He disavowed any intention now of making a s 90 application, and maintained that he just wanted a relationship with the children, which could occur through contact. He volunteered that they were in the best care that they could be in, that he could not ask for better for his children, and that he was glad that they are where they are. 33Ms A similarly disavowed any intention of making a s 90 application and demonstrated in her evidence a clear sense of not just respect but I think affection for the proposed adoptive parents, particularly in her case (perhaps unsurprisingly) for Mrs D. Ms A ultimately said that she was not able to bring herself to consent to an adoption order, a position which is perfectly natural and very commonly seen on the part of birth parents in this context. Mr B went a little further and said in particular that he opposed an adoption order because it would take away his name and rights in respect of the children. I will return to this in due course. 34Subsection (f) refers to the relationship that the child has with the parents. It is clear that these children now have a warm and affectionate relationship with their birth parents. After the initial episode to which I referred, contact has proceeded very smoothly and satisfactorily for all concerned. As I have mentioned, there is evidence that suggests that the children - at least SRB - overtly expresses a wish to see her birth parents. Remarkably in this type of case, there is no hint in the evidence of any insecurity on the part of the proposed adoptive parents in respect of contact, nor any suggestion that they see it as a threat, nor that the children are stressed by it. This is the best possible context for such contact to flourish. It can only have been the result of both sets of parents placing the children's interests at the forefront. The children, as I have said, are increasingly developing an understanding of an age appropriate kind of why they went into care and why they do not live with their birth parents. 35All that said, so far as the quality of the contact relationship is concerned, it has to be acknowledged that the children's relationship with their birth parents is in many ways a very limited one. It is one that for several years now has effectively represented two hours, four times a year. Their life is centred elsewhere, and while their birth parents, especially in more recent times, have made enormous strides forward, their role vis-a-vis the role of Mr and Mrs D in the raising of these children to this point must be seen as very much a minority one. 36Subsection (g) refers to the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood. There is no issue in the case but that Mr and Mrs D have shown a highly appropriate attitude to the children and to the responsibilities of parenthood. The assumption of caring responsibility for three children who at the time were from a disadvantaged background and were emerging from a period of suboptimal care was itself an enormous demonstration of responsibility, and their attitude and diligence to the care of their health and attendance to their health issues also demonstrates a highly appropriate attitude. But there are more minor aspects that also speak volumes. The support that they have provided for contact, including their acceptance when presented with it out of the blue in cross examination of an expanded contact regime, and their acceptance very rapidly in that context that some increase would be appropriate, was indicative of that. 37Ms Lindfield observed in her report that they were proactive in facilitating contact visits and was impressed by their natural acceptance and understanding of the importance of birth family contact for the children. She noticed that each of the children had their own photo album of pictures with their birth parents and she noticed photographs of the children with their birth parents on display in the family home. 38It cannot be and was not disputed that the children have flourished in the care of Mr and Mrs D. The warmth of the relationship between Mrs D and the birth mother also emerged in Ms A's evidence. It seems to me that, unlike many of the adoptive parents that one encounters, these in particular understand that, in the context of open adoption, contact with the children's birth parents is an essential incident and in the children's interests and not to be perceived as a threat. 39Subsection (h) refers to the nature of the relationship of the child with each proposed adoptive parent. Again, Ms Lindfield's evidence establishes that there is a close attachment between each child and the proposed adoptive parents. As she says, the older two children are well aware that this is their permanent family, and RDB has no other perception. She adds that there is no question that Mr and Mrs D have now become the children's psychological parents. 40Subsection (i) refers to the suitability and capacity of each proposed adoptive parent or any other person to provide for the needs of the child, including emotional and intellectual needs. 41Mr D was born in 1970 in Northern Ireland but has been in Australia for many years and is an Australian citizen. He obtained his Higher School Certificate in New South Wales and holds the degree of Bachelor of Engineering, a certificate in marketing and a postgraduate certificate in project management. He earns $1800 net per week from his employment and also receives $1350 per week net rents. Mrs D was born in 1973 in Australia, has a Higher School Certificate and Diploma of Applied Science, a Bachelor of Nursing and a Masters of Health Science. Presently she receives $809 per month carer's allowance. Their home in the Blue Mountains is one in which each of the children has a room of their own. 42Ms A was educated to School Certificate standard. Although she appears, on her evidence, to have been a good student to that point, her education was brought to an end by her first pregnancy. Ms A has four children of previous relationships, none of whom reside with her. Three were removed from her care in 2000 but returned to live with her subsequently until the relationship with their father broke up. She is currently employed as a housemaid at a motel in Orange. 43Mr B left school before completing his School Certificate. He has three, possibly four, children of prior relationships, none of whom resides with him. He is employed as a machine operator, until recently as a permanent casual but there appears to be a very good prospect that he might secure permanent employment in the next few days. 44After a very troubled period, which included the time surrounding the birth of these children, in which both Ms A and Mr B had serious issues with substance abuse and domestic violence, they have made great efforts to reform their lives and achieved great progress in doing so. Their move to Orange was a significant element in this. 45This process, it seems to me, is ongoing and that is illustrated by the evolution of their position and attitude in the course of these proceedings from the preliminary hearing until now and their ability to accept now, which they did not then, the appropriateness of the removal of the children from their care when it occurred. I have already referred to the insight demonstrated by each of them in aspects of their evidence. They have recently - indeed as recently as yesterday - apparently been approved to acquire a house and land package in North Orange. 46Subsection (j) refers to the need to protect the child from harm. In this case, where restoration is not presently contemplated, this issue does not loom large; but the need to avoid further disruption to already disrupted lives is not irrelevant. 47Subsection (k) requires the Court to consider the alternatives to the making of an adoption order and I shall come to that, too, in due course. 48The issues have been significantly reduced by the acceptance that the formal prerequisites for an adoption order and a number of other relevant matters are satisfied. Thus it is not in issue that the children were present in the State when the application was filed; that the prospective adoptive parents are currently domiciled in New South Wales; that the children were under eighteen years of age when the summons was filed and remain under that age; the adoptive applicants Mr and Mrs D are of good repute, fit and proper within the meaning of the Act; that they have no charges or convictions recorded against them; that they meet the age requirements the Act; thus they have been a couple living together for longer than two years and are lawfully married to each other, and that the Director General has consented to the adoption order being sought in their favour; that the birth parents have been provided with a copy of the mandatory written information required by s 59; and that a report pursuant to s 91 of the Act has been provided to the Court and a redacted copy served on the defendants' legal representatives. It is also accepted that the wishes of the children have been ascertained and duly considered to the extent appropriate; the proposed adoptive parents have been selected in accordance with the Act; that save with respect to the defendants, the consent of every other person whose consent is required has been given; and that to the extent it is relevant, the culture, any disability, language or religion of the subject children and as far as possible their names, identity, language and cultural and religious ties have been taken into account in the making of the adoption plan. 49That enables attention to be focused on the real issues in the case, which were in substance twofold. The first is whether the making an adoption order is, as s 90(3) requires, clearly preferable to any other action that could be taken by law with respect to the care of the children. The second was contact, but while it will be necessary to say something about that, this was largely resolved in the course of the proceedings. 50That then brings me to the alternatives to an adoption order. In the broadest terms, they boil down to restoration to the birth parents; remaining in foster care either in accordance with the status quo where the Minister has parental responsibility or under a parental responsibility order in favour of the proposed adoptive parents; and finally, adoption. The status quo would involve the children remaining "wards of the State", requiring the involvement and agreement of the Minister's delegate in many decisions concerning their welfare, and being the stigma of being a "word of the State" to the extent that there still is some stigma associated with that status. They would not be complete members of the family with whom they reside. 51If a parental responsibility order were made in favour of the proposed adoptive parents, but there was no order for adoption, there would be more flexibility to accommodate any further changes, given that the future of these children cannot be completely predicted. On the other hand, such flexibility tends to be inconsistent with the principle that decisions should, so far as possible, be made with respect to children's future care at an early stage, in order to provide certainty. A parental responsibility order would leave an element of uncertainty because it remains vulnerable to a future s 90 restoration application. Like the status quo, it would leave parental responsibility reposed in persons other than the legal parents. 52In addition, such an order is not sought in this case by the Director General, as the Ds are concerned that it would leave them legally exposed to a future s 90 application, as distinct from the Minister being the respondent to such an application. In circumstances where the Ds have already assumed a considerable burden so far as the care of these children are concerned, I do not think that that can be regarded as a churlish position. 53Adoption, on the other hand, would provide finality, conclusiveness and certainty so far as these children's future is concerned. It would reconcile their legal status with their defacto status. But it would, as Mr B says, sever the tie of legal parentage and the connection of name and such parental rights if any as the legal parents retain. 54Before I consider the question of resolving the competing advantages and disadvantages of those courses, it is appropriate to refer to some aspects of the expert evidence of Ms Lindfield. With reference to literature, Ms Lindfield has expressed a number of opinions which, while she accepted ought not be applied invariably to every case, nonetheless provide some useful statements of general principle so far as the social science is concerned. 55The first is that children who have experienced childhood neglect or abuse are at increased risk of poor adjustment in adulthood. She refers to the study of Vinnerljung, Hjeern and Lindblad (2006), which suggests that former child protection clients should be considered a high risk group for future suicidal behaviour and severe psychiatric morbidity, being four to five times more likely than peers in the general population to have been hospitalised for serious psychiatric disorders in their teens and four to six times more likely in young adulthood. 56Secondly, she says that adopted children generally do better than long term foster care children. In this respect she refers first to Bohman and Sigvardsson (1980) who studied children adopted in the 1950s in Sweden, with the result that at all stages the adopted children did better than their fostered peers. Next, she referred to Vinnerljung, Hjeern and Lindblad, who found that long term foster children tended consistently to have the most dismal risk ratios, which the adoptee comparison group tended to have more favourable outcomes than the child protection clients, suggesting that adoption offered a form of long-term substitute care that had stronger compensatory potential than what was offered to foster children. Then she referred to a later study by Vinnerljung and Hjeern (2011), which compared outcomes of long term foster care and adoption for children who came into the child welfare system at an early age and concluded that, while the crude outcomes for both groups were substantially weaker than for majority population peers, the foster children fell clearly short of adoptees on all outcomes - including school performance at 15, cognitive competence at 18, educational achievement and self support capability in young adult years, and also after adjustments for birth parent related confounders and age placement in substitute care. That qualification seems to address the question put to her in cross examination as to whether issues concerning birth parents were reflected in the studies. 57Next, Ms Lindfield referred to a study in the United States by Lloyd and Bath (2011) who used a sample of 353 children who were less than 13 months of age when investigated by child welfare services, and followed their progress over 66 months. The results indicated that remaining in foster care was less developmentally advantageous than having a more permanent arrangement of either adoption or return to birth family. 58Finally, she referred to two studies by John Triseliotis in 1983 and 2002 which are often cited in this context. The first showed that adoptees generally had a more problem free life as adults and tended to have a better education, less self-support problems and better self-esteem than long term foster children. The second was a review article, which examined the research literature and contrasted six variables. The findings were that placement breakdowns amongst the adoption group were significantly lower compared with the fostering group; that even when long term fostering survived, the children felt less secure and had a weaker sense of belonging compared with those who were adopted; that adoptees perceived themselves to be doing significantly better than do those in foster care; and that the weight of evidence suggested that adoption conferred significant advantages on children who could not return to their birth families, especially in terms of emotional security and sense of belonging. Thus adoption provided higher levels of emotional security, a stronger sense of belonging, and a more enduring psycho-social base in life for those who could not live with their birth families, than did long term fostering. 59Taking this research with her own clinical observations, Ms Lindfield expressed the opinions, which I accept as instructive, that adopting parents do tend to persevere more than foster parents when difficulties arise, and that adopted children experience an increased sense of belonging and family ownership, which in turn enhances their security and self-esteem. Taking these strands Ms Lindfield concluded that the permanence of adoption improves the security - or, as I would put it, the commitment - of the foster parents, and the security of the child; and that together these contribute to the development of stronger bonds of attachment between them. I absolutely accept that these are not conclusions to be applied willy-nilly to every case. On the other hand, they provide a useful basis in social science for supposing that, where the choice is between adoption and long term foster care, in general adoption may be regarded as offering positive advantages for a child over long term foster care. 60It is no longer suggested in this case that restoration now is a realistic possibility. However whether there is a reasonable prospect of restoration at some time in the future must be an important consideration. If it were regarded as a realistic or reasonable future prospect, even though less than likely, one would not lightly make an adoption order that would foreclose that possibility. In this case, the possibility that one or more of the children, perhaps in their teenage years, would want to search out their birth parents and perhaps live with them, either on account of identity issues or curiosity or in one of those rebellious phases through which teenagers are known to go, cannot be excluded. On the other hand, the background is that as things stand, the Minister has parental responsibility until they are eighteen. They are in a stable relationship with the Ds, with whom they have bonds of close attachment. They identify the Ds as their psychological parents. They are receiving an exceptional quality of care, and are not only progressing but flourishing. They have an accentuated need for ongoing stability because of their unstable early years. The Ds, it seems to me, are likely better to be able to provide for their intellectual needs, to enable these children - who as I have said seem to be of very considerable potential to flourish and exploit their intellectual talents. Their accommodation is more appropriate to accommodate these children than that which Mr B and Ms A are about to acquire in Orange. 61All of those considerations seem to me to make it highly unlikely that restoration is a realistic prospect. The countervailing consideration of preserving the possibility of restoration, against what seems the strong probabilities, would involve giving very great weight to the bare fact of birth parentage. I do not doubt that birth parentage is an important consideration. Indeed, judicial decisions and commonsense uniformly accept, as does the expert evidence seen in many cases, that all else being equal it is preferable the children to be raised by their natural parents in their community of origin. That is, to an extent, reinforced by the Convention on the Rights of the Child, invoked on behalf of the defendants, article 9 of which provides that state parties shall ensure that a child shall not be separated from his or her parents against their will, except where competent authorities subject to judicial review determine in accordance with applicable law and procedures that such separation is necessary for the best interests of the child. 62This is, of course, a case in which competent authorities have made such a decision, and it is no longer in issue that it was a decision then appropriately made. Once that decision has been made, while one would not lightly remove children from their birth parents in the first place, the bare fact of birth parentage, while it remains important, cannot outweigh the overall interests of the children. What to my mind this reduces to in this case is that, even if today Mr B and Ms A were in a position to offer a quality of care and ability to provide for these children equivalent to that being offered by Mr and Mrs D, it would be very difficult to justify changing the current living arrangements for the children and to subject their already disrupted lives to further disruption and the associated jeopardy to their attachments. 63This is no reflection on the very commendable efforts which Mr B and Ms A have made, which have no doubt been difficult and in which they have demonstrated a great deal of perseverance. It is rather a reflection of the reality that the water that has flowed under the bridge cannot now be turned back. That, it seems to me, means that the likelihood of restoration is sufficiently remote that the court need not be concerned about foreclosing it. 64I agree that this is a case in which not making an adoption order would not compromise the interests or welfare of these children, as they are well cared for under the status quo; but I do not agree that the absence of such detriment means that there is no manifest benefit in making an adoption order. The test is that adoption be clearly preferable in the interests of the child to other alternatives, not that it be necessary. 65Moreover one cannot overlook that, while the children by all accounts are secure, comfortable and safe in their present arrangements, that is a situation that has been achieved as a result of a placement with a view to adoption. The children have been living with what they perceive will be their "forever family", and in that sense the prospect of adoption has provided the underlying context for the results that have already been achieved. 66I accept that the main detriment of an adoption order would, as Mr B articulated, be the severance of the legal parental relationship with the birth parents (and, for that matter, their prospective sibling) or, as Mr B expressed it, "taking away our name and rights". Such a view is again entirely understandable, but I think it is much mitigated in this case by two things. The first that the name B will be preserved, at the suggestion of the prospective adoptive parents, as an additional middle name for each child; and the second is that when one speaks of parental rights or parental responsibility, in this case in a practical sense the only relevant "right" that Mr B and Ms A presently have is that of contact, and that will be secured by the order that I have been invited to make. In reality, the legal status of the birth parents, since the removal of the children, has otherwise been parentage without parental rights or responsibility. 67It was argued for the defendants that making an adoption order would lead to confusion, because the children would have two sets of parents, their birth parents and their legal parents. I am quite unconvinced that it would lead to any confusion, or any more confusion than would exist under the status quo. Children can and do adapt to having multiple sets of parents. This is seen on a daily basis in the context of the children of parents who separate and then re-partner and it is seen also in the context of open adoption. It seems to me that leaving legal parentage with birth parents who have no parental responsibility, while vesting parental responsibility either in the Minister or the foster parents, and while the children see their psychological parents as those in whose care they spend virtually their whole lives, would produce more confusion than consolidating legal parentage with where parental responsibility resides by an adoption order. 68I also accept that an adoption order can lead to identity issues for children. That begs the question, however, how will they identify in the future. It seems to me that whether or not an adoption order is made, they will identify primarily with the family with whom they reside and who they see as their psychological parents. The evidence shows that they identify them now as their psychological parents, while at the same time they recognise that they were born to their birth parents, with whom they will maintain an affectionate relationship. On that basis, it seems to me that an adoption order will better accord with how they identify themselves primarily as members of their proposed adoptive family, than leaving things as they stand. 69Mr B may well come to understand this. He gave evidence that after the relationship between his parents broke down, he came to identify his stepfather, with whom he clearly has an ongoing relationship, as his true father, rather than his birth father. He may well see, in due course, that an adoption order will reflect the reality of how these children will identify themselves, yet at the same time the contact order will preserve his not unimportant place in their lives. 70An adoption order will end the children's wardship status, and remove the requirement for Ministerial or delegate involvement and the stigma associated with that status. 71Emphasis was rightly placed on the aspect of the children's interest in their future life as well as in childhood. In the context of adoption, again, the principal concern in this respect is likely to be identity issues. As I have said, if these children know who their birth parents are, maintain contact with them (as I am very confident will occur with the support of the Ds) and come to understand why they were originally removed from their care, that will minimise the risk of identity issues in this case. With an adoption order these children will become full members of the D family. They will share the name of the family with whom they reside and which they identify as their family. They will have what is sometimes called the "felt security" provided by legal membership of the family with whom they are living. 72In my view, for these reasons, an adoption order is clearly preferable in the interest of the children to any other action that could be taken by law. That decision is my own, reached for the reasons set out above, but I note that it accords with the recommendation of Ms Lindfield and with that of Ms Bell in the s 91 report. 73As I propose to make an adoption order, it is appropriate that the children's surname be that of what will be their legal family. As I have foreshadowed, their middles names will be altered to include the name B which will preserve an important aspect of their identity for the future. 74I turn to the question of contact. An adoption plan proposed that contact continue to be four times per annum. The birth parents initially put forward a proposal that this be increased to 12 times per annum. As I have indicated the adoptive parents initial response was that that would be too much, but that some increase would be acceptable and desirable. 75Ms Lindfield was asked to comment on the matter in cross-examination and expressed the view that monthly would probably be too frequently at least at this stage, but that every second month should be workable. Ultimately, the birth parents accepted that that was a reasonable position. The Director General then indicated that the adoptive parents and the Director General would submit to an order to that effect. 76Although it was originally proposed in an adoption plan, there are difficulties with adoption plans in cases of non-consenting parents because they cannot, by definition, be a party to the adoption plan. Neither party opposes a formal order being made in respect of contact, which better secures the position of the birth parents and which (for reasons I gave in Re TVK [2012] NSWSC 1629) the Court can make. 77Section 90(2) requires that the Court must be satisfied that an adoption plan is in the interests of the children before it makes an adoption order where there is one. In this case, it seems to me that the contact order I propose to make will effectively supersede the adoption plan. 78For those reasons, the Court orders: (1)That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the child's natural mother KSA be dispensed with. (2)That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the children's natural father CDB be dispensed with. (3)The adoption of the children SRB, CJB and RDB by the adopting parents RMD and LAD, and approves the name 'D' as the surname and SRB as the given names of the child SRB; the name 'D' as the surname and CJB as the given names of the child CJB; and the name 'D' as the surname and RDB as the given names of the child RDB. (4)That pursuant to the (Cth) Family Law Act 1975, s 64B(2)(b) the children will have reasonable time with CDB and KSA as agreed between them and the adoptive parents, but in default of such agreement: (a)every second month commencing April 2014; (b)on the second Saturday of the month; (c)between the hours of 1pm and 3pm; (d)at XXX Club; and (e)supervised by Mr and/or Mrs D who are to convey the children to and from the place of contact. 79I wish both Mr and Mrs D and Mr B and Ms A the very best for the future, particularly for the impending birth of Ms A and Mr B's child and the opportunity that they will have to rear their own child, who I am sure will be very precious to them. That child will be made of the same genetic material as the three children, the subject of these proceedings. If one can draw any inference from that, that child may be a very able and very capable child indeed, and an awesome responsibility to raise. ********** 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. Decision last updated: 26 May 2014