In the matter of YL

By Summons filed on 2 March 2023, the Plaintiffs, to whom I will refer as “LL” and “DW”, sought a declaration that an adoption order or adoption compliance certificate issued in the People’s Republic of China on 30 October 2014 in respect of a child, to whom I will refer as “YL”, complied with ss 108 and 109 of the Adoption Act 2000 (NSW) (“Adoption Act”) or alternatively s 116 of the Adoption Act. It appears that YL’s birth parents are resident in China and they are not party to the application.

The application is supported by an affidavit of LL dated 2 March 2023. Her evidence is that YL was born in August 2011 in the People’s Republic of China, and that the adoption relationship came into effect in October 2014. LL’s evidence is that LL was then a resident of the People’s Republic of China and domiciled in the People’s Republic of China and she moved to Australia on 13 February 2016 and married DW in April 2016. Her evidence is that DW and YL are Australian citizens and LL is a permanent resident of Australia and that YL was the third daughter of her nephew and she is YL’s biological aunt (I interpolate, more precisely, YL’s great-aunt).

LL also gives evidence of the steps involved in the adoption and her evidence is that, due to the passage of time since the adoption application in 2014, she no longer has a copy of the adoption application form or other documents. It is perhaps surprising that, in a matter of the significance of an adoption, the adopting party would not retain the documents for even nine years. LL also gives evidence, by way of submission, that she followed all legal requirements required for the adoption process in the People’s Republic of China. She also gives evidence in support of a change of name of YL, which it will not be necessary to address given the conclusions I reach on other grounds.

At the Court’s request LL and DW, through their solicitors, made initial submissions in respect of the application. Those submission addressed the factual background to the adoption and rely on several matters which are not established by evidence, but it is also not necessary to address that difficulty given the conclusions that I reach on other grounds. At the Court’s invitation, the Secretary, Department of Communities and Justice intervened in the proceedings and, on 14 April 2023, I joined the Secretary as intervenor in the proceedings under s 118 of the Adoption Act. The Secretary made submissions on 13 June 2023. The Secretary submits, and I accept for the reasons noted below, that the orders sought by LL cannot be made. L and DW were given the opportunity to make further submissions, and I address those submissions below.

As I noted above, LL’s and DW’s application primarily relies on ss 108 and 109 of the Adoption Act. As the Secretary points out in submissions, Chapter 2 Part 2 of the Adoption Act relates to intercountry and overseas adoptions. Section 103 provides for the object of Divisions 1 to 3 of that Part, namely:

Section 105 of the Adoption Act relevantly provides:

Section 108 of the Adoption Act in turn provides:

As the Secretary points out, the term “Convention” is defined in the Dictionary to the Adoption Act to mean the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption signed at the Hague on 29 May 1993 (“Convention"), the English version of which is replicated in Schedule 1 of the Adoption Act. The People’s Republic of China became a “Convention country” as defined in the Adoption Act, by reference to the Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 (Cth), on 1 January 2006. The term “adoption compliance certificate” is also defined in the Dictionary of the Adoption Act to mean, in this context, a certificate issued in accordance with article 23 of the Convention. Article 23 of the Convention provides:

Article 17 of the Convention in turn provides:

Returning to the Adoption Act, s 109 provides:

The Secretary also refers to Re C and the Adoption Act 2000 [2007] NSWSC 768 (“Re C”), where Palmer J considered the effect of these sections. His Honour noted (at [19]) that, if an adoption compliance certificate had been issued by the relevant authority, the adoption would be valid in New South Wales, by force of s 108(2), without any order or declaration of validity. However, in that case, the agreement of the Central Authority in NSW had not been sought before proceeding with an adoption in China, and the adoption registration certificate could not and did not comply with Article 17(c) of the Convention. His Honour held that the adoption registration certificate and the adoption orders were not valid under s 108 of the Adoption Act (at [26]) and observed (at [30]):

Turning now to the parties’ submissions, the solicitors for LL and DW note the application of s 108 of the Adoption Act in respect of the adoption of a child who is habitually resident in a Convention country where an adoption compliance certificate is issued in that Convention country. They also note the effect of s 109 of the Adoption Act in that respect and note that the People’s Republic of China is a Convention country and party to the Convention. They fairly acknowledge that the adoption registration certificate issued by the People’s Republic of China dated 30 October 2014 does not comply with Article 17(c) of the Convention. They submit that:

The difficulty with that proposition is that the Court is here determining whether the requirements of the Adoption Act are satisfied and the statute does not confer a discretion generally to treat them as satisfied if they are not satisfied.

The Secretary submits, and I accept, that the declaration sought by LL and DW that the adoption order or adoption compliance certificate complied with ss 108 and 109 of the Adoption Act cannot be made. First, LL was not habitually resident in New South Wales at the time of the adoption of LL in China, as required by s 108(1)(a) of the Adoption Act. As the Secretary points out, LL did not move to Australia until approximately 15 months later, on 13 February 2016. Second, as LL’s and DW’s solicitors acknowledge, the adoption registration certificate does not meet the requirements of Article 23 of the Convention and is not an adoption compliance certificate for the purposes of the Adoption Act, because it does not specify when and by whom the agreements under Article 17(c) were given. As the Secretary points out, this is not merely a formal defect. No such agreements were specified because no such agreements existed, where the Central Authority in Australia (or New South Wales) had no involvement in the adoption, which was concluded wholly in China without reference to any Australian adoption authority. The Secretary submits, and I accept, that the policy of the Adoption Act is that the validity of an adoption is to be determined according to its compliance with the Convention, and the adoption registration certificate does not here comply with the Convention. This case is not distinguishable from Re C in that respect, although I recognise that that finding does not exclude the possibility that the Chinese adoption would be recognised under general law conflict of law principles, so far as it took place as a Chinese domestic adoption between Chinese residents and in accordance with Chinese law. The parties made no submissions as to the application of those principles and I reach no decision in that regard.

The solicitors for DW and LL alternatively submit that the Court should make rectification orders to the adoption registration certificate so that it complies with the requirements of the Convention. With respect, it is not apparent to me that the Court has any jurisdiction that would allow it to make rectification orders in respect of the exercise of powers by a Chinese regulatory authority or Court in respect of an adoption in China. Second, there is no factual basis for rectification, since the agreement with an Australian Central Authority necessary to satisfy Article 17(c) of the Convention did not exist.

Section 116 provides for the recognition of certain other foreign adoptions as follows:

A “prescribed overseas jurisdiction” is defined with reference to s 5 of the Family Law (Bilateral Arrangements—Intercountry Adoption) Regulations 2023 (Cth) and in predecessor provisions. As noted above, the People’s Republic of China is presently within the definition of a “Convention country” and, the Secretary points out, it was formerly defined as a prescribed overseas jurisdiction under previous regulations.

Section 117 provides that any party to an adoption order made outside Australia may apply to the Court for a declaration that the order complies with s 116. As the Secretary also points out, in Re C Palmer J held that s 116(1) does not apply to an order made in a Convention country (at [29]). Where an order for adoption had been made in that case in China, which was a Convention country at the time the adoption order was made, his Honour declined to make a declaration under s 117. In Adoption of CAR [2018] NSWSC 1552 (“CAR”), Darke J similarly held (at [8]) that the text of s 116(1)(a) conveys a clear meaning, that the section applies only to an order for the adoption of a person that was made in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction. His Honour also observed (at [9]) that:

The Secretary submits, and I accept, that LL’s and DW’s alternative claim that the adoption complies with s 116 of the Adoption Act must fail, because s 116 applies to an order for the adoption of a person made in a country other than Australia that is not a Convention country or a prescribed overseas jurisdiction. That section does not apply, where the People’s Republic of China is a Convention country. That position is recognised in M Davies et al, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 10th ed, 2020) at [30.37].

As a further alternative, the solicitors for LL and DW submit that s 87 of the Adoption Act would apply as LL is a relative of YL, being her biological aunt, and the consent of the Secretary to an application for an adoption order is not required as the Court would be satisfied that YL’s best interests will be promoted by the adoption and would make an adoption order in favour of DW and LL. The Secretary rightly points out that (as I noted above) LL is not YL’s aunt, but her great aunt, as YL is her nephew’s daughter. Section 87 of the Adoption Act goes no further than to provide that the consent of the Secretary to an application for an adoption order is not required if the applicant is a relative of the child. It does not provide an affirmative basis for making an adoption order, without more.

In submissions in reply, LL and DW also sought to rely on ss 28, 29 and 90 of the Adoption Act. These provisions relate to the making of an adoption order, ab initio, by a New South Wales court. I will assume, without deciding, that a New South Wales Court could make such an order in respect of a child who has already been adopted under a foreign law, where the requirements for recognition of that adoption under the provisions I have addressed above are not satisfied.

Section 28 of the Adoption Act specifies certain requirements where an adoption application is brought by a couple, but the satisfaction of those requirements is necessary but not sufficient for an adoption order. Section 29 requires that, before making an adoption order in favour of a relative, the Court be satisfied that the making of the adoption order is clearly preferable in the best interests of the child to any other action that could be taken by law in relation to the child, in parallel to the requirements under ss 8 and 90 of the Adoption Act. Section 90 of the Adoption Act prohibits the making of an adoption order unless it is satisfied of specified matters, which are largely not addressed by evidence led by LL and DW.

LL and DW also submit that the adoption registration certificate evidences consent by YL’s birth parents. I cannot accept that submission where there is no evidence of the circumstances in which that certificate was issued and no reason to assume, for example, compliance in China with the counselling requirements in respect of such consent under the Adoption Act. LL and DW alternatively submit that the Court should dispense with YL’s birth parents’ consent under s 67(1)(d) of the Act, because YL has lived with LL for the last seven years. That section only applies where the applicants are authorised carers or the guardians for the child. The term “authorised carer” is defined as any person who has care and responsibility for a child under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998 (NSW), or has responsibility for the day-to-day care, welfare and development of a child under the Family Law Act 1975 (Cth) and it is not apparent that LL or DW fall within either category, where it appears LL’s care for YL arises under her previous adoption in China and not otherwise. That section also requires that the child has established a stable relationship with the relevant carers or guardians, and that the adoption of the child by those carers or guardians will promote the child's welfare, and that the making of the consent dispense order is in the best interests of the child. Comprehensive evidence as to those matters is rightly required and generally led in adoption applications and has not been led here.

I recognise that LL and DW have cared for YL for a considerable time but that, without more, is not sufficient basis for an adoption order under the Adoption Act, if it were open to the Court to make such an order in respect of a child who had already been adopted under foreign law. LL and DW do not here lead evidence to establish that the requirements of s 8(2) of the Adoption Act are satisfied or to address the matters specified in s 90 of the Adoption Act. No report by an authorised person has been provided to the Court under s 91 of the Adoption Act, which prohibits the Court making an adoption order for a child under 18 years of age unless, inter alia, a report in writing concerning the proposed adoption has been provided to the Court by the applicant, and that report has been prepared by the Secretary or an authorised person. There is no evidence that YL’s birth parents consent to an Australian adoption of YL, or that they have been given notice of this application, and no basis is shown to dispense with their consent under Australian law for the reasons noted above. No adoption plan has been prepared and there is no evidence that arrangements are in place for continuing birth family contact.

I put aside the fact that this alternative relief sought in that respect is not sought in the Summons filed by the Plaintiffs, where that Summons could be amended. The more fundamental difficulty is that it is not presently possible to make the orders for adoption sought by LL and DW under other provisions of the Adoption Act, because LL and DW have not established the matters necessary for an adoption order as set out in ss 8 and 90 of the Adoption Act.

For these reasons, I dismiss the application. I reserve, to the extent possible, liberty to LL and DW to bring further proceedings, if they wish to lead evidence of the kind that would ordinarily be led in an adoption application, including evidence of the birth parents’ consent to the Australian adoption and a report complying with the requirements of s 91 of the Adoption Act. In reserving that liberty, I express no view as to whether a new adoption order could be made in Australia, where an adoption order has already been made in China, or whether there would be any utility in making such an order.