The Adoption of Jacob

1. [1]

   The Secretary of the NSW Department of Communities and Justice seeks an order that “Jacob” (not his real name), now twelve years of age, be adopted by “Linda” (not her real name) and “Dennis” (not his real name) (the Proposed Adoptive Parents), together with an order that Jacob adopt surname of the Proposed Adoptive Parents.

2. [2]

   Jacob has lived with the Proposed Adoptive Parents since just before his eighth birthday. The Proposed Adoptive Parents have no biological children.

3. [3]

   The Proposed Adoptive Parents previously cared for another child in a placement from October 2021 until January 2024, when the child transitioned to a kinship placement. The Proposed Adoptive Parents, and Jacob, continue to see the other child on a monthly basis.

4. [4]

   Jacob was born to “Lauren” (not her real name) and “Tony” (not his real name). Tony has passed away. Lauren has been served with this application and has signed the Adoption Plan, although she has neither formally consented nor entered an appearance. She appears to have some contact with Jacob about once every two to three months, which the Proposed Adoptive Parents facilitate. Lauren’s consent is not required in this case, as Jacob has consented, a matter to which I return below.

5. [5]

   I have determined to make the orders sought and to register the adoption plan. These are my reasons for doing so.

The circumstances of this case

1. [6]

   At the time of Jacob’s birth, his mother was 22 years of age and his father was 52 years of age. Jacob has two full siblings: “Mark” (not his real name), an older brother, and “Patricia” (not her real name), a younger sister, as well as three paternal half-siblings. For reasons that do not need to be fully explored here, parental responsibility for Jacob was allocated to the relevant Minister on an interim basis on 8 March 2013. Jacob was taken into care on 15 March 2013.

2. [7]

   On 11 November 2013, final orders were made in the Children’s Court of New South Wales allocating parental responsibility for Jacob to the relevant Minister pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW). Those orders remain in effect.

3. [8]

   From 15 March 2013, until 8 November 2019, Jacob lived in foster care. For other reasons that do not need to be fully explored here, that care arrangement came to an end, in circumstances which suggest that Jacob was not well cared for.

4. [9]

   Since 8 November 2019, when he was eight years of age, Jacob has lived with the Proposed Adoptive Parents. He came into their care on a respite basis and has remained ever since. Both of the Proposed Adoptive Parents consent to the adoption of Jaocb.

5. [10]

   Linda and Robert are gainfully employed. I have read their affidavits, and those of their referees.

6. [11]

   Since coming into the care of the Proposed Adoptive Parents, all the evidence before me suggests that Jacob has been very well cared for and is thriving. The Proposed Adoptive Parents maintain a loving home in a semi-rural setting with plenty of room for Jacob to explore and grow. The environment in which Jacob now resides seems to me to be conducive to his wellbeing, which is borne out by the various reports in evidence.

7. [12]

   As I noted above, Lauren’s consent is not required in this case, as Jacob is twelve years of age and has given his consent to the adoption: see s 54 of the Adoption Act 2000 (NSW). Reports supporting this application satisfy me that he is of sufficient maturity to understand what adoption means to him, and the facts of this case are that he has been cared for by the Proposed Adoptive Parents for at least two years: Adoption Act s 54(2). I am also satisfied that Lauren has had at least 14 days’ notice of this application: Adoption Act s 54(3). Jacob can therefore consent to his own adoption. If I may say so, the reports concerning his consent evidence his insight and thoughtfulness as to this profound decision.

The formal requirements for adoption

1. [13]

   I am satisfied that the formal requirements of the Adoption Act have been met.

Adoption orders generally and the “best interests” principles” under the Adoption Act

1. [14]

   Section 8 of the Adoption Act provides:

2. [15]

   Section 90 of the Adoption Act further provides:

3. [16]

   I note the paramount consideration in s 8(1)(a). Of this principle, and adoptions more generally, Brereton J said in Adoption of SVS [2015] NSWSC 2043 at [9]:

4. [17]

   Sackar J pointed out in Secretary, New South Wales Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia v MB and JW [2017] NSWSC 1087 at [9] that “arguably the most important work at least in this Division of the court by a very large margin in my view is determining applications for adoption. It is one of the most profound and important decisions a judge can be called upon to make.”

5. [18]

   Brereton J further summarised the principles applicable to the interaction of ss 8(2) and 90 of the Adoption Act in Adoption of NG (No 2) [2014] NSWSC 680 at [15]-[16]:

6. [19]

   His Honour continued at [74]:

7. [20]

   The question of what is in a child’s best interests involves the making of a judicial evaluation and the balancing of many factors from which an overall conclusion must be reached which will be inherently imprecise: Re B (A Minor) [2001] UKHL 70; [2002] 1 All ER 241 at [16] (Lord Nicholls of Birkenhead), cited with approval in Re the Adoption of CCS and FLS [2019] NSWSC 71 at [164].

Is adoption clearly preferable in the best interests of Jacob?

1. [21]

   I am comfortably satisfied that adoption is clearly preferable and in Jacob’s best interests. By this, I mean that there is no other option available that I consider is better for Jacob’s long-term best interests, having regard to the factors in s 8(2), and I consider this to be the case overwhelmingly.

2. [22]

   Jacob has consented to the adoption and as set out above I am satisfied that he has the insight and thoughtfulness to know what this means for him. I am satisfied that this is in his “service”, to borrow from s 8(1)(b), and that it has not been thrust upon him by the Proposed Adoptive Parents. Indeed, I am satisfied to the contrary: that the Proposed Adoptive Parents have supported Jacob’s empowerment and decision-making as to what is right for him. They are to be commended for doing so.

3. [23]

   I am further satisfied that it is in Jacob’s best interests in that Lauren has indicated that she is, in broad terms, at peace with the adoption process, and that Jacob’s physical and emotional needs will be met. His identity will be strengthened and I note the Proposed Adoptive Parents are supportive of Jacob exploring his heritage and developing any religious views that he may wish to investigate.

4. [24]

   The Proposed Adoptive Parents support contact with Jacob’s birth family, as appropriate, and in my view have a thorough and responsible attitude to parenting. They are hardworking and positively contributing members of society. They can sustain a suitable familial environment for Jacob.

5. [25]

   This adoption is a paradigmatic example of what was described as one of the “principal benefits of adoption”, namely “to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters”: In re W (A Child) (Adoption: Grandparents’ Competing Claim) [2017] 1 WLR 889; [2016] EWCA Civ 793 at [64].

6. [26]

   I am therefore satisfied that this adoption is in Jacob’s best interests. I am fortified in this view, and in determining that this adoption is “clearly preferable”, as one alternative – that Jacob remains a ward of the state in the foster care of the Proposed Adoptive Parents, which is the status quo – has no practical advantages over an adoption. Indeed, it is quite the opposite, and would in all likelihood stymie Jacob’s positive bond with, and attachment to, the Proposed Adoptive Parents. So, too, an order allocating parental responsibility for Jacob to the Proposed Adoptive Parents would alleviate some of the disadvantages of leaving the status quo in place, but it would remain a temporary order expiring when Jacob reaches 18 years of age, and in the meantime the Minister and relevant caseworkers would remain involved in Jacob’s life. A further advantage of the adoption, therefore, is that it provides certainty and permanence for Jacob and recognises his bond with the Proposed Adoptive Parents beyond his adolescence. It also mitigates any stigma that may be associated with being a “foster child”, and instead recognises that, as a matter of law, Jacob lives with his family, who can make decisions about what works best for them.

7. [27]

   I note that no party suggests, consistently with the judgment of the Children’s Court in 2013, that there is any realistic prospect of restoration to Lauren.

8. [28]

   I will therefore make the order sought for Jacob’s adoption, subject to the below, having satisfied myself to a degree commensurate with the gravity of this decision: Application of A – re D [2006] NSWSC 1056 at [53].

The Adoption Plan

1. [29]

   I may not make an adoption order, where the parties to the adoption have agreed to an adoption plan, unless I am satisfied that the arrangements proposed in the plan are in the child’s best interests and are proper in the circumstances: Adoption Act s 90(2). The proposed adoption plan in this case is a maternal adoption plan, there being no occasion for a paternal adoption plan.

2. [30]

   As I noted, the proposed adoption plan is signed by Lauren, as well as Jacob, the Proposed Adoptive Parents and a delegate of the Secretary of the Department of Communities and Justice. It provides for in-person visits between Jacob and Lauren of at least two hours four times per year. These visits will include Mark and Patricia, Jacob’s siblings, with whom Jacob will visit at least a further four times per year. There is a sensible provision for further visits according to Jacob’s wishes and the Proposed Adoptive Parents’ availability.

3. [31]

   The plan further provides for contact with Jacob’s maternal grandmother, when Jacob visits Lauren. It provides for contact with Jacob’s maternal grandfather, when Jacob requests it.

4. [32]

   There is further provision for electronic communication between Jacob and the above persons. Included in that is provision for the Proposed Adoptive Parents to provide updates relating to Jacob’s progress to Lauren on four occasions each year, together with text message and photographic updates (which I understand the Proposed Adoptive Parents already send to Lauren).

5. [33]

   I am well satisfied that the adoption plan is in Jacob’s best interests and is proper in the circumstances. It seems to me to be eminently sensible and the product of a mature and level-headed approach by all concerned to the prioritisation of Jacob’s best interests, which is paramount in all decisions here.

Proposed name change

1. [34]

   It is proposed that, on the making of the adoption order, Jacob is to have the surname of the Proposed Adoptive Parents.

2. [35]

   Before changing Jacob’s name, I must consider any wishes expressed by Jacob and any factors relevant to the weight that should be given to those wishes: Adoption Acts s 101(2). Jacob consents to the name change, which is a pre-requisite given his age: Adoption Act s 101(4).

3. [36]

   Jacob’s wishes on this matter are very clear and supported by the Proposed Adoptive Parents. Jacob is, as I have noted, mature and insightful. I am confident that he understands what is best for him in this respect.

4. [37]

   I will therefore make the order sought in respect of Jacob’s name.

5. [38]

   Once the adoption order is made, an Integrated Birth Certificate will be created which will include details of Jacob’s birth parents. It will be an important part of Jacob’s life story.

Conclusion

1. [39]

   I am grateful to all concerned for their approach to this matter. The orders of the Court will be:

   1. (1)

      The Court makes an order for the adoption of the child Jacob in favour of the Proposed Adoptive Parents, and approves the surname of the Proposed Adoptive Parents as the surname and “Jacob” as the given name of the child.