Adoption of IEK

1. [1]

   The Secretary, New South Wales Department of Family and Community Services (FACS), commenced these proceedings for the making of an adoption order and certain related relief by his delegate, the Principal Officer, Barnardos Australia, on 8 December 2017.

2. [2]

   The proceedings concern a girl aged about 6 years at the time of the hearing on 26, 27 and 28 November 2018, who I will call the child, or alternatively I will refer to her by her initials as IEK. The child was born on 25 October 2012.

3. [3]

   The birth parents of the child are the first defendant, who I will call the father or DSC, and the second defendant, who I will call the mother or EK.

4. [4]

   IEK has a maternal half-sibling, her brother RK, and a paternal half-sibling, her brother SJC.

5. [5]

   The Secretary asks for an order for the adoption of the child by a single woman, who I will call PAP, or the adopting parent. PAP is not a party to the proceedings.

6. [6]

   I acknowledge that it may appear impersonal for me to refer to the child and the persons who have an interest in her future by description or by their initials. This is, however, the customary approach of the courts in order to permit the judgment to be published for the benefit of any member of the public who may take an interest in it, without identifying the interested parties. This is in keeping with the spirit of s 180 of the Adoption Act 2000 (NSW) (Adoption Act), which makes it an offence for other parties to publish material that identifies, or is reasonably likely to identify, the persons to whom I will refer by description or by their initials.

Orders sought

1. [7]

   By his summons, the Secretary asks the Court to make the following orders:

2. [8]

   It will be convenient to start by considering whether the Court should make the adoption order sought in prayer 5 and an order approving a change in the child’s name as sought in prayer 6. That will require the Court to consider whether, before actually making the adoption order, it should make orders dispensing with the consent of the mother and the father, as neither has consented to the adoption order being made. Finally, I will deal with prayers 1 and 2, as DSC has not been entered as the child’s father in the Register of Births, Deaths and Marriages.

3. [9]

   The Secretary has prosecuted these proceedings by his delegate, the Principal Officer, Barnardos Australia, and was represented by counsel at the hearing. DSC did not file an appearance and was not represented at the hearing. EK did file an appearance, and was represented by counsel at the hearing, and opposed the orders sought by the Secretary for the adoption of the child and other related relief in-so-far as it was relevant to EK’s position.

4. [10]

   As is clear from the relief claimed in the summons, the Secretary seeks an order for the adoption of IEK by PAP. The making of that order is supported by PAP.

5. [11]

   On the other hand, EK submitted that the best interests of the child require that IEK be restored to her biological mother's full-time care, which I understand to mean that the Court should make an order granting sole parental responsibility for IEK to EK until the child attains the age of 18 years. That order would be necessary to counteract an order made by the Children’s Court granting sole parental responsibility for IEK to the Minister. It would also exclude DSC being entitled to exercise parental responsibility in relation to IEK.

6. [12]

   EK pursued her claim for an order granting her sole parental responsibility for IEK on the basis of a submission that an order to that effect would be preferable to the making of the adoption order sought by the Secretary, and based her claim on the evidence tendered in these proceedings, as if this Court were required to decide the issue anew, without regard to orders that have already been made in the Children’s Court, and the reasons that supported the making of those orders. EK did not attempt to prove that this Court should make different orders than have been made by the Children’s Court because circumstances have materially changed since those orders were made. EK has relied on the power apparently granted to this Court by s 92 of the Adoption Act to “make such orders in relation to the parental responsibility for the child concerned as it thinks fit” if it refuses to make the adoption orders sought by the Secretary.

7. [13]

   Much of the reasoning in this judgment is concerned with the question whether the Court in fact has the power assumed by EK, whether there are any limitations on that power, and how such power as may be available should be exercised.

8. [14]

   There are other alternatives available to the Court in respect of IEK's future, and I will return to identify them after I have considered the terms of the relevant legislation.

History of child care orders

1. [15]

   It will be convenient for me to outline at this point how the legislation governing the care and protection of children has been applied to IEK and her maternal brother, RK, as this will facilitate the identification of the principle issues.

2. [16]

   As I have said, IEK was born on 25 October 2012. She was not assumed into the Minister's care for some two years, so for that period she was in the care of EK.

3. [17]

   The evidence of the Delegate, Denise Kay Berry, was that between 20 June 2012 and 9 December 2014 FACS received 12 risk of significant harm reports and five non-risk of significant harm reports regarding the child.

4. [18]

   The concerns raised by these reports included drug and alcohol misuse, mental health issues and concerns regarding the mother's parenting capacity, such as leaving the child with inappropriate and unsafe people, lack of supervision and presenting as distressed. The reports also raised concerns of domestic violence perpetrated by IEK's previous partner (who was not the child's father) towards the mother and that the mother was sexually assaulted in the child's presence.

5. [19]

   FACS received a risk of significant harm report on 5 December 2014 and a non-risk of significant harm report on 8 December 2014.

6. [20]

   The risk of significant harm report of 5 December 2014 raised concerns in relation to the mother's ability to care for the child, including allegations that the mother presented as distressed and requested that the child be placed in foster care, had used inappropriate disciplinary methods, had on occasion left the child unintended and unsupervised, and had disclosed that she may harm the child. The report also alleged that the mother had a history of depression, drug and alcohol abuse and self-harm.

7. [21]

   The non-risk of significant harm report of 8 December 2014 alleged that the mother had disclosed that she may hurt the child, and raised concerns in relation to neglect and drug abuse.

8. [22]

   On 9 December 2014, FACS conducted a safety assessment in relation to the child, with the result that the child was assessed as unsafe in the mother's care. She was assumed into the care of the Minister on that date and placed with a FACS authorised carer.

9. [23]

   On 12 December 2014, an application was filed in the Children's Court on behalf of the Secretary commencing proceedings in relation to the child.

10. [24]

    The Children's Court made interim orders for parental responsibility for the child to be allocated to the Minister on 16 December 2014.

11. [25]

    EK participated in the proceedings and was legally represented.

12. [26]

    On 19 February 2015, the Secretary filed a care plan pursuant to s 78 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act). In par 5.1 of the care plan, the Secretary stated that FACS had formed the view that there was not a realistic possibility of restoration of the child to the care of the mother at that point in time. The secretary said:

13. [27]

    In par 6.1, the Secretary stated the opinion that guardianship would not provide a safe, nurturing, stable and secure environment for the child, as "no family member or other person has been proposed by [EK] to be assessed to take on the role of Guardian of [IEK]". This is a reference to the possibility that a guardian could have been appointed for the child under ss 79A and 79B of the Care Act.

14. [28]

    Paragraph 6.2 of the care plan requires the Secretary to respond to the question whether adoption would provide a safe, nurturing, stable and secure environment for the child. The care plan notes that this Court has jurisdiction under the Adoption Act and that identifying adoption as a suitable arrangement for the child does not mean that the child will automatically be adopted. The Secretary answered yes to this question and gave the following reasons:

15. [29]

    The Secretary noted that EK sought restoration of the child to her care.

16. [30]

    In par 9.2, the Secretary sought orders pursuant to s 79(1)(b) and s 81(1)(b) of the Care Act that parental responsibility for the child be allocated to the Minister until she attained the age of 18 years, and that all aspects of parental responsibility be allocated solely to the Minister.

17. [31]

    PAP was assessed and approved as a permanent carer with a view to adoption on 2 July 2015.

18. [32]

    On 3 September 2015, the Children's Court made the following orders in respect of IEK:

19. [33]

    On 25 September 2015, matching approval was given for PAP and the child, and IEK was placed with PAP on 19 October 2015.

20. [34]

    RK was born on 4 May 2017 and assumed into care on 8 May 2017.

21. [35]

    On 8 December 2017, EK filed an application in the Children's Court under s 90 of the Care Act seeking leave to make an application for rescission or variation of the final care order whereby parental responsibility for IEK was placed with the Minister until she attained the age of 18 years.

22. [36]

    The Children's Court dismissed EK's s 90 application on 16 April 2018. The only evidence of the reasons given by the Children's Court was contained in an email prepared by a representative of FACS who was present when the reasons were given and stated:

23. [37]

    EK has not appealed to the District Court against the order of the Children's Court dismissing her application under s 90 of the Care Act.

24. [38]

    The Secretary commenced proceedings in the Children's Court in respect of RK, and the hearing took place on 27 July, 17 August, 31 August, 22 October and 5 November 2018.

25. [39]

    On 22 October 2018, the Children's Court made a finding that there was a realistic possibility of RK being restored to the care of the mother.

26. [40]

    The Children's Court made the following final orders concerning RK on 9 November 2018 (Exhibit P4):

27. [41]

    RK's care plan, which was filed in the Children's Court on 2 November 2018, included the following statements (Exhibit P5):

28. [42]

    The care plan itemised RK's needs and gave the following reasons as to why restoration was being considered:

29. [43]

    The care plan then set out minimum outcomes to be achieved prior to the commencement of restoration, transition arrangements to support restoration and how the transition arrangements were to be undertaken. The care plan includes a detailed restoration plan.

30. [44]

    The arrangements made in the care plan for the restoration of RK appear to be thorough, and involve Barnardos being available to support the transition, weekly visits leading up to restoration, gradual increases in EK having custody of RK, and the implementation of a therapeutic restoration program by a service provider arranged by Barnardos. Barnardos would review the restoration plan regularly and make changes appropriate to RK’s needs. Barnardos would be available for six months of post restoration support. This would involve home visiting, assessing needs, and recommending referrals if other support services were required. The restoration plan appropriately provides detailed steps and procedures, timeframes and the identification of responsible persons.

31. [45]

    The restoration process for RK was just on the verge of commencement at the time of the hearing, and the Court does not know how successful the restoration has been.

32. [46]

    This history of the implementation of the Care Act in relation to IEK and RK gives rise to the following issues that are significant to the resolution of the present case:

    1. (1)

       The Court must consider whether there is a realistic possibility that IEK could be restored to the care of EK, in so far as that may be relevant to the making of an adoption order in respect of IEK, in light of the fact that FACS has accepted, and the Children's Court has found, that there is a realistic possibility of RK being restored to EK.

    2. (2)

       While the Children's Court has actually made orders that contemplate that, ultimately, parental responsibility for RK will be given solely to EK, the orders made by the Children’s Court provide for that outcome to be reached in steps over a 12 month period, and the Children's Court requires that the Secretary provide it with reports before 9 September 2019 and 10 September 2020 concerning the success of the steps taken in restoring RK to EK's care. Consequently, it may not be known until as late as 10 September 2020 whether there has been success in the restoration of RK to EK.

    3. (3)

       The Children's Court has made final orders, which are now in force, giving sole parental responsibility of IEK to the Minister until she attains the age of 18 years.

    4. (4)

       Although there is no impediment to EK making a further application under s 90 of the Care Act for leave to make an application to rescind or vary the order for parental responsibility in favour of the Minister, it is probable that EK would have to demonstrate a further change in circumstances since 16 April 2018, and that the change enabled her to deal with the issues that caused the Children's Court to dismiss her first s 90 application.

Legislation governing the care and protection of children

1. [47]

   Before I address the relevant provisions of the Adoption Act, it will be appropriate to consider how the Care Act provides a legislative context to the making of an adoption order under the Adoption Act in a case such as the present.

2. [48]

   One reason why that is necessary is that the Court must deal with the fact that there is an existing order of the Children's Court giving sole parental responsibility for IEK to the Minister until she attains the age of 18 years. Secondly, and more broadly, the making of an adoption order under the Adoption Act is not an isolated judicial act, but in a real and practical way is made in the context of, and is one outcome contemplated by, the exercise of the more general jurisdiction for the protection of children and young persons under the Care Act, as exercised by the specialist Children's Court.

3. [49]

   It is proper that I acknowledge my indebtedness to the paper written by Dr Nicola Ross and Professor Judy Cashmore: Adoption reforms New South Wales style: A comparative look (2016) 30 Australian Journal of Family Law 51 (Ross and Cashmore). I have found Ross and Cashmore to be enlightening, primarily in relation to the history of the making of adoption orders in this State, the legislative intent in recent amendments to the Care and Adoption Acts, and the manner in which the Adoption Act fits into the scheme of the legislative protection of children and young persons in this State. I should add that I have read with interest a number of papers published by the Institute of Open Adoption Studies of the University of Sydney, particularly in relation to open adoption of children in this State from out-of-home care. It will not be necessary for me to refer to specific aspects of those studies, but I have found them to be generally useful on the basis that an educated judge is a better judge.

4. [50]

   It is appropriate to begin by acknowledging that one of the objects of the Adoption Act, as set out in s 7(d), is "to recognise the changing nature of practices of adoption”. That is an object that could easily be overlooked.

5. [51]

   Ross and Cashmore note at 52 that there has been a very significant reduction in the numbers of Australian-born children, especially infants, who are now able to be adopted. They say: "From a peak in the early 1970s, the numbers of adoptions in Australia have dropped from 9798 in 1971-2 to 292 in 2014-15, the lowest number on record". They say at 53 (I will generally omit the footnotes given by the authors):

6. [52]

   Ross and Cashmore conclude at 53: "Very few children in Australia are adopted from out-of-home care".

7. [53]

   Ross and Cashmore make the following observations about recent reforms in New South Wales, at 53 and 54:

8. [54]

   The authors then refer to two important changes that will affect parents and adoptive parents in relation to the likely speed and ease of finalising adoptions. I will return to these matters below, but they include the introduction of specified timeframes for decisions about returning children to their parents, and the making of distinct provisions for long-term carers who wish to adopt. The authors also refer to a change in the circumstances in which the Court may dispense with parental consent to the making of an adoption order.

9. [55]

   Ross and Cashmore give the following explanation about the reason for the change of government policy and the amendment to the legislation at 55:

10. [56]

    The very idea that the Court should make an adoption order in respect of a child over the objection of birth parents, at least where it is not reasonably self-evident that those parents are not capable of properly caring for the child, is a challenging issue for all reasonable-minded people. Such people could defensibly adopt a range of responses to this question from a natural resistance against breaking the parental bond to the position that the opportunity to care for one's birth child is more an obligation than a right, so that, when the chips are down, it is the opportunity of the child to enjoy the best future that is available that is paramount. In part, it is this conflict that has led to the introduction of the process of open adoption. Where it is adjudged to be in the best interests of the child for an adoption order to be made, that order is made, so that parentage of the child moves from the birth parents to the adoptive parent or adoptive parents, but the change is made openly in a way that acknowledges the reality of the birth parentage, and attempts to facilitate the maintenance of an emotional bond between the child and the birth parents.

11. [57]

    Be this as it may, government policy and judicial aspirations do not reduce the difficulty of the process. As to this, Ross and Cashmore say at 56:

Relevant provisions of the Care Act

1. [58]

   As I have said, I will start by considering the relevant provisions of the Care Act. Both that Act, and the Adoption Act, were amended by the Child Protection Legislation Amendment Act 2014 (NSW), which I will call the “Amendment Act”.

2. [59]

   Since the Court reserved judgment at the end of the hearing, both the Care Act and the Adoption Act have been further amended by the Children and Young Persons (Care and Protection) Amendment Act 2018 (NSW), which I will call the “2018 Amendment Act”. The 2018 Amendment Act came into effect on 4 February 2019. On my reading of that Act, it does not have any effect on the outcome of these proceedings. However, a number of the statutory provisions that are set out and discussed in these reasons for judgment have been amended by the 2018 Amendment Act. In order to avoid these reasons being misleading as to the current wording of the relevant provisions, I have underlined provisions added by the 2018 Amendment Act and identified the principle parts of the provisions discussed that have now been amended.

3. [60]

   The objects of the Care Act, as stated in s 8, are as follows:

4. [61]

   Paragraph (a1) was inserted by the Amendment Act in 2014. Thus, in the administration of the Care Act, the "primary means" of providing the necessary care for children and young persons is to be "through permanent placement in accordance with the permanent placement principles". That plainly creates an impetus in the implementation of the system of care of children and young persons towards permanent placement.

5. [62]

   Section 9 sets out principles for the administration of the Care Act, including at s 9(2)(e):

6. [63]

   This provision expressly requires, in principle, that the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

7. [64]

   Section 9(2)(g) was inserted by the Amendment Act. It provides:

8. [65]

   That is an unambiguous legislative requirement that where a child or young person is placed in out-of-home care the permanent placement principles must be a guide to all actions under the Care Act regarding permanent placement.

9. [66]

   While that is a legislative statement as to how the Care Act must be administered, and not the Adoption Act, it may not be immaterial to the administration of the Adoption Act, once the role of the Adoption Act is properly understood in the whole scheme for the protection of children and young persons.

10. [67]

    The Amendment Act also inserted s 10A that sets out the permanent placement principles in the following terms:

11. [68]

    The permanent placement principles establish an order of priority, being, except in relation to Aboriginal and Torres Strait Islander children or young people, restoration to the birth parents, guardianship by a relative, kin or other suitable person, adoption, and then the grant of parental responsibility to the Minister.

12. [69]

    I have noted above, in relation to IEK's care plan, that guardianship was not recommended. I understand that to be because the view has been taken that if guardianship is to be a better outcome for the child than out-of-home care, there should be some appropriate relationship between the child and the guardian. Although it may not be clear from the terms of the Care Act itself, the Minister for Family and Community Services, in her second reading speech in support of the enactment of the Amendment Act, referred to guardianship as being “with family or kin – or in some circumstances with a non-relative carer”.

13. [70]

    As it happens, EK does not have family in Australia, so that the appointment of a guardian by the Children's Court was not considered to be appropriate. As a guardianship order is a "care order" for the purposes of s 90 of the Care Act, it can be subject to rescission or variation by the Children's Court (unlike the general position for an adoption order made by the Supreme Court).

14. [71]

    Section 78 of the Care Act requires the Secretary to present to the Children's Court a care plan before final orders are made, in relation to most applications for care orders.

15. [72]

    The care plan must make provision, among other things, for the kind of placement proposed to be sought for the child or young person, including "how it relates in general terms to permanency planning for the child or young person": see s 78(2)(b)(i).

16. [73]

    Permanency planning is dealt with in s 78A, which in subs (1) provides that "…permanency planning means the making of a plan that aims to provide a child or young person with a stable placement that offers long-term security…", and that has regard to the principles set out in ss 9(2)(e) and (g). The reference to par (g) was inserted by the Amendment Act.

17. [74]

    Section 78A(2A) provides:

18. [75]

    The significance of these provisions is that they require, from the time when a child or young person is first taken into care by the Minister, that there is a process whereby a care plan is prepared which includes a permanency plan, which itself has regard to the order of priorities in the permanent placement principles. Whatever the outcome of this process, it could not in any legal sense bind or determine the exercise by this Court of its jurisdiction under the Adoption Act. However, it does not follow that the process should be ignored. The process will characteristically take place over a number of years, notwithstanding even recent legislative attempts to accelerate the process. The conduct of interested persons and the formation of reasonable expectations will be influenced by the process. That will include the birth parents, the proposed adoptive parents, particularly when they are out-of-home carers, and eventually the children themselves, when they have reached a sufficient degree of self-awareness.

19. [76]

    Section 79 of the Care Act, which empowers the Children's Court to make orders allocating all aspects of parental responsibility for a child or young person, includes the following provisions:

20. [77]

    It follows that, embedded in the process of reasoning that leads to the making of an order allocating parental responsibility for a child or young person, is a consideration of how the permanent placement principles apply to that case. The order that is made will contemplate a particular permanent outcome, albeit that under the Care Act no such order is permanent and beyond revision.

21. [78]

    The preparation of permanency plans is governed by s 83 of the Care Act, which is in the following terms:

22. [79]

    Schedule 1, clause 53 of the 2018 Amendment Act makes amendments to Schedule 3 to the Care Act to provide for transitional provisions for the operation of the amendments to the Care Act made by the 2018 Amendment Act. The transitional provisions have the effect that the amendments to s 83 of the Care Act apply “…to assessments or findings under that section occurring on or after the commencement of those amendments irrespective of whether the proceedings before the Children’s Court to which they relate were pending (but not finally determined) immediately before that commencement”. The changes to s 83 have no application in this case because the proceedings before the Children’s Court concerning IEK have been finally determined.

23. [80]

    Subsection (1) requires the Secretary to assess whether there is a realistic possibility of the child or young person being restored to his or her parents. If the Secretary assesses that there is not such a realistic possibility, the Secretary must prepare a permanency plan for another suitable long-term placement: see subs (3). In preparing that plan, subs (4) requires the Secretary to consider whether adoption is the preferred option for the child or young person.

24. [81]

    Subsection (5) is important for two reasons. First, it requires the Children's Court to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration. If the child is less than 2 years of age, that must be done within 6 months. Otherwise it must be done within 12 months after the Children's Court makes the interim order.

25. [82]

    It is self-evident from these provisions that the legislative policy is that the determination of the appropriate permanency plan for the child or young person must be made earlier rather than later, and to the extent that there is a tension between the need for expedition in the interests of the child or young person, and the birth parents' need for time to address the causes for the child or young person being taken into care in the first place, the need for expedition is to prevail.

26. [83]

    It may be observed that, where the amendments to s 83 of the Care Act apply, the timescale for the assessment by the Secretary of whether there is a realistic possibility of restoration will not be open-ended, but rather the Secretary will have to consider whether there is a realistic possibility of restoration within a reasonable period that must not exceed 24 months. This change will tend to reduce the likelihood of a determination that there is a realistic possibility of restoration, as that possibility must eventuate within 24 months.

27. [84]

    Subsection (7) has the effect that the Children's Court must not make a final care order unless it expressly finds that the permanency planning for the child or young person has been appropriately and adequately addressed, and subs (7A) has the effect that, prior to final orders being made, the permanency plan must be reasonably clear as to the child's or young person's needs and how those needs are going to be met.

28. [85]

    Consequently, when the Children's Court makes a final care order, it must first decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration. That is a decision which is amenable to an appeal to the District Court. The Children's Court does not make any positive determination as to the appropriate permanency plan for the child or young person, but it must have before it such a permanency plan, which must be reasonably clear as to its details. The terms of the permanency plan are at least likely to inform the basis upon which the Children's Court makes the particular care order.

29. [86]

    Thus, although the making by this Court of adoption orders is governed by the Adoption Act, and in determining whether such orders should be made the Court must apply the Adoption Act in accordance with its terms, it seems clear that the making of an application for an adoption order is not an isolated event, but is rather the culmination of a process that is regulated in detail by the Care Act. Decisions are made about the appropriateness of adoption relatively early in the process and must be taken into consideration by the Children’s Court. The possibility of adoption is one of the alternatives in the permanent placement principles, and the implementation of the Care Act involves the possibility that adoption may be the best outcome for the child from early in the process after the child is taken into care.

30. [87]

    For completeness, as EK has already made an application for leave to apply for the parental responsibility order made by the Children’s Court in favour of the Minister to be rescinded, I will set out relevant parts of the current s 90 of the Care Act, under which such applications are now to be made. I have indicated the principal provisions that have been replaced, but, in order to avoid confusion, I have not tried to identify all of the minor changes:

31. [88]

    It is of some note for future applications that, while the previous version of s 90(2A)(c) required the Children’s Court to take into account the length of time for which the child or young person has been in the care of the present carer, the new s 90(2B)(b) requires, in addition to that consideration, that the Children’s Court consider the stability of the present care arrangements. The new s 90(2B)(c) requires the Children’s Court, if it considers that the present care arrangements are stable and secure, to consider the course that would result in the least intrusive intervention into the life of the child or young person and to consider whether that course would be in the best interests of the child or young person.

32. [89]

    These changes to the Care Act continue the trend of placing particular significance on the length of time for which the child or young person has been in the current form of care, the stability of those arrangements, and adopting care arrangements that will result in the least intrusive intervention into the life of the child or young person, where that is in their best interests.

Role of the Secretary in the administration of the Care Act

1. [90]

   Another notable feature of the Care Act is the extent to which administrative resources are made available for the purpose of the implementation of the Act, including for the assistance of the Children’s Court exercising its jurisdiction.

2. [91]

   Section 16 of the Care Act establishes the role of the Secretary as follows:

3. [92]

   The Secretary is empowered by s 17 to enlist the aid of other government departments and agencies:

4. [93]

   Section 18 imposes a duty on other government departments and agencies to cooperate:

5. [94]

   There is a disparity between the administrative resources that are available to assist the Children’s Court in the exercise of its jurisdiction under the Care Act, and the resources that may be available following the exercise by this Court of its jurisdiction under the Adoption Act. I will return to those differences below. Those differences may be relevant to determinations made by this Court as to how it should exercise its jurisdiction, as the effectiveness of many orders made for the protection of children and young persons may ultimately depend on the extent to which administrative support and supervision of the implementation of the orders is available.

Relevant provisions of the Adoption Act

1. [95]

   This Court's power to make an order for the adoption of a child is found in s 23(1) of the Adoption Act.

2. [96]

   Section 90 of the Adoption Act contains the following restrictions on the Court's power to make an adoption order, so far as is relevant to the present case (bearing in mind that IEK is too young for her consent to the adoption to be considered):

3. [97]

   The Court must take into account the objects of the Adoption Act, which are set out in s 7 and include:

4. [98]

   Section 8 relevantly requires the Court to have regard to the following principles in making a decision about the adoption of a child:

5. [99]

   Section 90(1)(d) prohibits the Court from making an adoption order in relation to a child unless the Court is satisfied that consent to the adoption of the child “has been given by every person whose consent is required” under the Adoption Act “or that consent has been, or should be, dispensed with.”

6. [100]

   Consent to the making of an adoption order is governed by Part 5 of the Adoption Act. Section 52 prevents the Court from making an adoption order in relation to a child who is less than 18 years of age unless the consent of each parent of the child has been given. In this case, EK and DFC have refused to consent to the adoption.

7. [101]

   The Court's power to dispense with parental consent, where the parents have been found and identified, and are capable of considering the question of whether consent should be given, is found in s 67 of the Adoption Act, which relevantly provides:

8. [102]

   The amendments to s 67 of the Adoption Act concerning the position of guardians are not material to the present application, but the transitional provisions to the 2018 Amendment Act have the effect that, as these proceedings have not finally been determined, the amendments would have applied if relevant.

9. [103]

   As Brereton J (as his Honour then was) explained in Adoption of SVS [2015] NSWSC 2043 at [44], it is "…a grave step, not lightly to be taken…" to dispense with the consent of the parents of a child to the making of an adoption order. However, as his Honour also noted, "…the enactment of s 67(1)(d) in 2006 reflects a policy decision that once a child has, by judicial decision, been removed from his or her parents and placed in permanent out-of-home care, the rule that the legal parental relationship is not to be severed without the consent of the parents is displaced if the Court is satisfied that the interests of the child will be best served by the adoption."

10. [104]

    The inclusion of subs (1)(d) represents another significant policy change in favour of the making of an adoption order, where the proposed adoptive parent is an authorised carer for the child.

11. [105]

    Previously, where the parents could be identified and were capable of giving consent, they had an effective veto over the making of an adoption order unless there was "…serious cause for concern for the welfare of the child…", and unless it was also in the best interests of the child to override the wishes of the parents (see section 67(1)(c) of the Adoption Act).

12. [106]

    Now it is sufficient, where the proposed adoptive parent is an authorised carer for the child, that the child has established a stable relationship with the carer, the adoption will promote the child's welfare, and it is in the best interests of the child to dispense with the parents' consent.

13. [107]

    I will consider the issue raised by s 90(2), being whether the Court is satisfied that the arrangements proposed in the adoption plan are in the child's best interests and are proper in the circumstances, separately below.

14. [108]

    Section 90(3) of the Adoption Act is of primary importance, in that 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.

15. [109]

    As the Court is not only required to consider what available actions are preferable, but whether an adoption order is clearly preferable to all other available actions, the Court is called upon to make a value judgment. That judgment should not be based upon the idiosyncratic views of the particular judge. The criteria upon which the evaluation must be made should be drawn from the guidance provided in the legislation. That must include the objects of the Adoption Act, as set out in s 7, and the guidance that will flow from the identification in s 8 of the matters required to be considered.

16. [110]

    As I have set out above, the object identified in s 7(d) is “to recognise the changing nature of practices of adoption”. As is shown by the analysis of the legislation set out above, most of those changes appear to have been introduced into the Care Act, rather than the Adoption Act itself. The changes appear to be primarily concerned with the primary means of providing proper care being through permanent placement in accordance with the permanent placement principles. Those principles embrace a number of different actions with different priorities, and adoption is not the first choice. However, it is clear that the stress is on permanency.

17. [111]

    The meaning of the expression "clearly preferable" has recently been considered in detail by Hallen J in Re the Adoption of AJH [2017] NSWSC 1751 (as well as in other cases). It will be sufficient for me to set out, and respectfully adopt, the following extract from his Honour's reasons:

18. [112]

    It is necessary to defer the further consideration of how these principles should be applied until after the evidence has been examined.

Meaning and effect of s 92 of the Adoption Act

1. [113]

   As I have noted at the beginning of these reasons, EK has submitted that the Court should refuse the application to make an order for the adoption of IEK, and should make an order granting parental responsibility of IEK to EK until she attains the age of 18 years.

2. [114]

   That submission is, as I understand it, based upon an interpretation of s 92 of the Adoption Act, which is said to give the Court power to make the order. The section provides:

3. [115]

   It must be acknowledged that a grant of power to the Court to "make such orders in relation to the parental responsibility for the child concerned as it thinks fit" seems to be unrestricted, and would permit the Court to make the order sought by EK.

4. [116]

   It would nonetheless be a strange outcome for an unfettered power (save for the need to further the objects and apply the considerations in ss 7 and 8 of the Adoption Act) to become exercisable by this Court simply by reason of the making of a decision by the Court to refuse an adoption application. Chapter 4, Part 3 of the Care Act contains detailed provisions governing the development and enforcement of care plans and parent responsibility contracts. Chapter 5 of the Care Act establishes even more complex administrative arrangements designed to ensure the care of children and young persons over the period of their minority, including enabling the Children's Court to enlist the resources of the Secretary to undertake investigations and provide information to the Children's Court. Among other things, s 74 of the Care Act empowers the Children's Court to make an order directing a person or organisation named in the order to provide support for a child or young person. It may also order the Secretary to provide support under the section. Section 85A requires that a permanency plan involving restoration be reviewed by the designated agency responsible for the placement of the child or young person. Importantly, even if it is implied in s 92 of the Adoption Act that this Court has power to fashion qualifications to any order in relation to the parental responsibility for the child to emulate the administrative arrangements available to the Children's Court, this Court cannot command the ongoing assistance of the Secretary.

5. [117]

   Before I consider the authorities dealing with the application of s 92 of the Adoption Act it will be appropriate to make the following observations.

6. [118]

   As was noted by Hallen J in Re the Adoption of AJH (above) at [243]: "Adoption, in its legal sense, has always been regulated by, and is purely a creature of, statute. There is no adoption at common law…" Consequently, when an adoption order is made, its effect is as set out in the statute that authorises its making. An adoption order does not have any inherent effect at common law that has the result that its making has any natural consequences.

7. [119]

   It is therefore necessary to remember that there is a subsisting order of the Children's Court that grants sole parental responsibility to the Minister until IEK attains the age of 18 years. As there has been no appeal from that order, it will continue in effect unless and until it is rescinded or varied by the Children's Court, following leave being granted on an application under s 90 of the Care Act.

8. [120]

   If the Court makes an adoption order, the existing parental responsibility for the adopted child (including the Minister's parental responsibility under the Care Act) ceases to have effect, but that is by force of s 96(1)(a) of the Adoption Act, which specifically provides for that consequence in these terms:

9. [121]

   If the Court refuses an application for an adoption order, which is the condition for the application of s 92 of the Adoption Act, there is no equivalent provision that affects the subsistence of any care order made by the Children's Court.

10. [122]

    It could hardly be acceptable that two inconsistent but effective orders for the parental responsibility for a child may exist at the one time.

11. [123]

    Although the Supreme Court is a superior court to the Children's Court, it does not follow that a later order made by this Court automatically overrides an earlier order by the Children's Court to the extent that this Court's order is inconsistent with that order. This Court only has power to interfere with an order of the Children's Court, if it has statutory or inherent power to do so.

12. [124]

    It is also significant that the drafters of the Adoption Act saw the need to include s 96(1)(a), but they did not include a similar provision in respect of any order made by the Court under s 92.

13. [125]

    It would severely strain the language of s 92 to read into the power to "…make such orders in relation to the parental responsibility for the child concerned as [the Court] thinks fit…" a power to set aside a subsisting care order made by the Children's Court.

14. [126]

    It is of some interest to note that the former Adoption of Children Act 1965 (NSW) had an equivalent provision to s 92 of the present Act in s 24, which provided:

15. [127]

    This provision seems to suggest somewhat more clearly than does s 92 of the Adoption Act, although not in any comprehensive way, that the object of s 24 was to address the short-term need to provide for the care of the child following the refusal of the adoption order, so that the child could be cared for under the provisions of the general child welfare legislation. That appearance flows from the use of the words "to be dealt with under the provisions of the Child Welfare Act".

16. [128]

    An additional factor is that any long-term parental responsibility order that may be made under s 92 of the Adoption Act will not fall within the definition of "care order" in s 60 of the Care Act, which limits “care order” to an order made under Chapter 5 of the Care Act, which deals with Children's Court proceedings. Nothing in the Care Act appears to invest the Supreme Court with the same jurisdiction as it vests in the Children's Court. Section 247 of the Care Act provides that nothing in that Act limits the jurisdiction of the Supreme Court, but that provision begs the question of what the jurisdiction of this Court is.

17. [129]

    This point was the subject of a submission put to Brereton J by counsel in Re Adoption of JLK and CRK [2017] NSWSC 7. His Honour responded (footnote omitted):

18. [130]

    Brereton J found support for his conclusion in a decision of the Full Court of the Family Court of Australia in In the marriage of Rice and Asplund [1978] FamCA 84; [1979] FLC 90-725; (1978) 6 Fam LR 570.

19. [131]

    In that decision, Evatt CJ, with whom Pawley SJ and Fogarty J agreed, dismissed an appeal from a single judge who had made a new custody order reversing the effect of a custody order made by a judge of this Court before the commencement of the Family Law Act 1975 (Cth). Her Honour said at 572:

20. [132]

    Thus, Brereton J appears to have accepted that any order made by this Court under s 92 of the Adoption Act could not subsequently be dealt with in the Children's Court as a care order, but it could in appropriate circumstances be varied by this Court on the principle adopted by Evatt CJ. This reinforces the conclusion that, if s 92 of the Adoption Act is treated as a complete source of power to make parental responsibility orders, then the supervision of parental responsibility for the child is, during the child's minority, permanently transferred from the Children's Court to this Court, for no better reason than that this Court has refused to make an adoption order in respect of the child. That is because the Children’s Court is not given jurisdiction to rescind or vary any parental responsibility order made by this Court.

21. [133]

    It is not necessary for this Court to express a view about whether Brereton J is correct in his conclusion that there is inherent in s 92 of the Adoption Act a subsequent power to review parental responsibility orders made under that section. It may be noted that there is no such express power, whereas s 51 of the Adoption Act grants an express power to the Court to review adoption plans. It may be arguable whether or not the power to review parental responsibility orders resides in this Court.

22. [134]

    In Adoption of RCC and RZA [2015] NSWSC 813, Brereton J at [71] and [72] said, concerning the concept of a "reasonable possibility of restoration", which is derived from s 83(1) of the Care Act:

23. [135]

    His Honour noted that there was in place an order of the Children's Court allocating parental responsibility to the Minister until the children attained 18 years of age, and that implicit in the making of that order was a conclusion that restoration was not a realistic possibility. His Honour said that that conclusion did not bind this Court, which must be correct, as there could be a material change in circumstances between the time the order was made by the Children's Court and the time of the hearing in this Court. The significance that Brereton J attributed to the order of the Children's Court was that there had been a judicial decision, by a specialist court, that the children could not satisfactorily be cared for by their birth parents. If this Court formed the view that restoration was in the best interests of the children, it could not be satisfied that adoption was "clearly preferable".

24. [136]

    Brereton J was not required to consider the question of the continuing effect of the Children's Court order, in the event that such order was not extinguished by s 96(1)(a) of the Adoption Act by the making of an adoption order.

25. [137]

    The Court of Appeal gave some consideration to the effect of s 92 of the Adoption Act in D v Director-General Department of Community Services [2005] NSWCA 474; (2005) 34 Fam LR 445.

26. [138]

    It is significant that in that case the child was born on 25 July 2003. The child had been conceived by the rape of her mother, who was a refugee who had suffered substantial and terrible deprivation and abuse. The mother decided it was unavoidable that the child be adopted and she was placed in the temporary care of foster parents on 27 July 2003. The child was placed with the proposed adoptive parents on 27 October 2003. The mother signed a consent to the adoption, but she changed her mind, and, on 27 October 2004, the mother by notice of motion sought an order setting aside the consent that she had given. The proceedings for the adoption of the child were set down for a contested hearing to commence on 15 December 2004.

27. [139]

    There is nothing in the reasons of Hodgson JA, with whom Ipp JA and Hunt AJA agreed, to suggest that any order had been made by the Children's Court, or that parental responsibility for the child had been granted to the Minister. The Director-General of the then Department of Community Services was involved, but only in the sense that it was the Director-General who sought the adoption order.

28. [140]

    A review of the judgment of Palmer J in the proceedings at first instance, Department of Community Services v D [2004] NSWSC 1241; 33 Fam LR 555, appears to confirm that no order had been made by the Children's Court, either allocating parental responsibility for the child to the Minister, or otherwise.

29. [141]

    Apart from seeking an order that her consent to the adoption was not valid, the mother sought orders the effect of which would be to return the parental care and custody of the child to the mother, or alternatively an order under s 92 that she have some, if not all, parental responsibility for the child until the child attained the age of 18 years.

30. [142]

    Palmer J had made a declaration that the consent given by the mother was ineffective, but also made an order dispensing with the mother's consent under s 67 of the Adoption Act, as well as an order for the adoption of the child in favour of the carers who were the proposed adoptive parents.

31. [143]

    In brief, the Court of Appeal allowed the appeal because, on the basis of new evidence that was tendered before the Court of Appeal, it had become apparent that there was a realistic possibility that the child could be raised by her mother in the environment of her extended family and culture, which was not the appearance at the time of the trial: see [65].

32. [144]

    Hodgson JA dealt with the mother's reliance upon s 92 of the Adoption Act as follows:

33. [145]

    It is implicit in these reasons that the Court of Appeal accepted that the Court could have made an order under s 92 of the Adoption Act giving parental responsibility for the child to the proposed adoptive parents until the child attained the age of 18. However, the Court of Appeal did not give any specific attention to this issue, and was not required to consider how s 92 of the Adoption Act may operate when there is a subsisting order of the Children’s Court allocating parental responsibility for the child in a way that is inconsistent with the order requested to be made by this Court under s 92.

How is s 92 of the Adoption Act to be applied?

1. [146]

   In the light of these considerations, it is necessary to decide how s 92 of the Adoption Act is to be applied.

2. [147]

   For obvious reasons, it would be convenient in cases where the Court has refused to make an adoption order, for the reason that the making of an adoption order is not clearly more preferable to some other action, for the Court then and there to make appropriate orders giving effect to the other action. That would prevent further delay, uncertainty and cost. It is, however, not merely a matter of convenience. The manner in which alternative actions may be taken may have a substantive effect on the determination of the primary issue of whether the making of an adoption order is clearly preferable to the alternative actions that are available. It is one thing for the Court to identify the alternative action compared to which the making of an adoption order is not clearly more preferable, and then immediately make the necessary orders, as the immediacy of those orders will have a bearing on them being relatively preferable. It is another thing for the Court to try to foresee the likely result of the process whereby the alternative action must be pursued in some other court, over a period of time, and with uncertain prospects of success. The doubts that arise where this course is necessary will tend to diminish the attractiveness of the alternative action.

3. [148]

   The advantages in giving s 92 of the Adoption Act a generous interpretation, in order to enable the Court to make alternative orders immediately, may be obvious; but it is clear that s 92 does not permit the Court to implement all alternative actions permitted by law. The Court cannot make a care order that may be made under the Care Act, with all of the consequences that may flow from such an order being made. The Court cannot make a guardianship order, and the best that it could do is to try to mimic such an order by reason of its power to make orders for the parental responsibility for the child. This is at best an untidy solution to the need to make immediate alternative orders when an application for the making of an adoption order is refused.

4. [149]

   A further problem is that the parties to the proceedings may not fully litigate the issues involved in taking all alternative actions that could be taken by law. As in the present case, the parties will usually support the orders that they wish to be made. Matters relevant to alternative actions may only be addressed obliquely. The issue that arises under s 90(3) of the Adoption Act is whether adoption is clearly preferable to all alternative actions that could be taken by law. The enquiry into whether adoption is clearly preferable to all alternatives that may be available by law is conceptually different to an enquiry as to which alternative action is actually the most preferable, and as to the precise form that the alternative action should take.

5. [150]

   A final cause for concern about how s 92 of the Adoption Act was intended to work arises out of the legislative provisions that empower the Secretary to provide financial assistance where that may be necessary following the making of orders under the child protection legislation. I take it that the legislative arrangements for funding the general activities of the Secretary and FACS will provide the necessary resources for the Secretary to comply with the Secretary’s obligations under s 16 of the Care Act, and in relation to the activities of the Secretary in protecting the interests of children and young persons generally. I have already mentioned that s 79C of the Care Act authorises the Secretary to provide financial assistance to guardians. Section 201 of the Adoption Act authorises the Secretary in various ways to provide financial and other assistance in order to promote the best interests of the child to persons with whom the child has been placed for the purposes of adoption, and to the adoptive parent or adoptive parents. This authorisation operates in contemplation of the making of an adoption order and following it being made. Relevantly, there does not appear to be any equivalent authorisation concerning persons who may be allocated parental responsibility for a child under s 92 of the Adoption Act. Perhaps this absence may be filled if the Secretary otherwise has adequate spending discretion. The point is that the subject matter of funding authorisations made by the legislature may throw real light on how ambiguous provisions in statutes were in fact intended to operate. The difficulty is, of course, that it cannot be known whether the real explanation is simply legislative absent-mindedness.

6. [151]

   What is sought by EK in the present case is a simple order allocating parental responsibility for IEK to EK until she attains the age of 18 years. Such an order would be devoid of all of the precautions contained in the equivalent orders made in respect of RK. The orders sought would involve IEK simply being handed over to EK. It may be that to some extent this Court could fashion conditions that would provide some protection, but realistically this Court does not have the facilities or the expertise to monitor and supervise over a period of years the restoration process. That shortcoming could be ameliorated by assistance provided by the Secretary, or a party like Barnardos, but the Court is not given power to require that such assistance be provided. The position may be compared to that which applies under s 91(4)-(6) of the Adoption Act, where the Court is given some power to require the Secretary to provide reports in relation to an application for an adoption order made by a person other than the Secretary.

7. [152]

   The better view is, in my opinion, that this Court is given by s 92 of the Adoption Act full power in accordance with the literal wording of that provision. That view is consistent with the general principle that when a statute appears to vest a wide jurisdiction in a court, the width of the jurisdiction should not generally be read down on the basis of implications that are not clear and unmistakable: see for example Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19 at [34]. There may well be situations where s 92 can be applied in accordance with its terms without any difficulty following a refusal to make an adoption order. It is possible for applications for adoption orders to be made privately by intending adoptive parents, with the consent of the Secretary under s 87(1)(a), without there being any existing orders of the Children’s Court. There may be cases where, although the Children’s Court has made a subsisting order allocating parental responsibility for the child to the Minister, the parties to the adoption proceedings come to an agreement that an order for adoption should not be made, but parental responsibility should be given to the proposed adoptive parent or parents. The Court might make such an order, effectively by consent, subject to the condition that the order could only take effect if, on application, the Children’s Court rescinded the order made in favour of the Minister. There may be many other situations where the application of s 92 will not be problematic. It would be folly to try to identify fully the metes and bounds of the operation of s 92 of the Adoption Act.

8. [153]

   However, that power must be exercised with awareness of the fact that existing rights and powers may have been created by orders made by the Children's Court that are not automatically affected by any order made by this Court under s 92. Assuming this Court has the power literally conferred by s 92 of the Adoption Act, this Court in the exercise of its discretion should not make any order that would be inconsistent with a subsisting order of the Children’s Court that would otherwise co-exist with this Court’s order.

9. [154]

   This Court should also exercise its power having regard to the potential for the Children's Court, as the specialist court created for the purpose, to deal more fully and efficiently with the need to provide care to children and young persons than is available by this Court. Most importantly, this Court should not ignore the existence of subsisting Children’s Court orders, or the reasons that caused that Court to make the orders that it did. This Court should place due weight on the earlier decision and be resistant to departing from it, or the reasons that motivated the Children’s Court. This Court should not generally entertain an application for the making of parental responsibility orders based upon evidence that is divorced from the circumstances of proceedings before the Children’s Court, and should ordinarily require proof of those circumstances, and some adequate satisfaction that departure from the findings of the Children’s Court is justified, which will usually, if not always, require proof of some material change in circumstances.

10. [155]

    This approach would be consistent with that adopted by this Court to the exercise of its parens patriae jurisdiction in circumstances where the Children's Court is seized of jurisdiction, or where the matter may more effectively be dealt with by that Court: see Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157; Director-General of the Department of Community Services v Priestley [2004] NSWSC 639; Re Liam [2005] NSWSC 75; (2005) 33 Fam LR 86; Re Alan (2008) 71 NSWLR 573; [2008] NSWSC 379; Re Georgia and Luke (No 2) [2008] NSWSC 1387; (2008) 40 Fam LR 247; Re Frieda and Geoffrey [2009] NSWSC 133; (2009) 40 Fam LR 608; TF v Department of Family & Community Services [2015] NSWSC 694; and CAC v Secretary, Department of Family and Community Services [2015] NSWCA 105. In the last-mentioned case, Basten JA said:

11. [156]

    Although the analogy between the present issue and those considered in these authorities is not complete, it does in my view justify circumspection in this Court in its preparedness to make orders under s 92 of the Adoption Act in cases where it refuses to make an adoption order.

General observations on the application of the adoption principles

1. [157]

   It is appropriate that I first note a number of general considerations that are frequently stated by the Court as having importance to adoption applications.

2. [158]

   First, the reasoning necessary for the proper determination of an adoption application is "…concerned much more with the future than with the past, and [that what is] at their core is the best interests and welfare of the child, now and in the future, and not the rights or wrongs of past conduct and decisions – whether of the birth parents, the adoptive parents, [FACS] or the Children's Court": see Adoption of RCC and RZA [2015] NSWSC 813 at [11] per Brereton J (as his Honour then was). See also Adoption of SVS [2015] NSWSC 2043 at [9]. The Court does not review the decisions that have already been made by the Children's Court about parental responsibility. The Court does not form judgments about the fault of any person who had parental responsibility for the child in the past, and the only concern is the present and future objective and emotional circumstances of the child in the light of what is and will be in the child's best interests.

3. [159]

   Secondly, neither the birth parents nor the proposed adoptive parent have any competing rights in respect of the future parentage of the child to which the Court will give effect. So far as the proposed adoptive parent is concerned, s 8(1)(c) expressly provides that "no adult has a right to adopt the child". So far as the birth parents are concerned, the following words of Hodgson JA in D v Director-General Department of Community Services [2005] NSWCA 474; (2005) 34 Fam LR 445 are pertinent:

4. [160]

   This is an important consideration, as although it is perfectly natural for the birth parents of a child to believe that they have a paramount right to parental responsibility for the child, the true rights of the parents are those that can coexist with the faithful application by the Court of the provisions of the Adoption Act. The position of birth parents will therefore be susceptible to changes in government policy that are manifested in changes to the legislation governing the care of children and young persons.

5. [161]

   Thirdly, where there are existing emotional ties, hopes and expectations in both the birth parents and the proposed adoptive parent or parents in respect of the child, the Court cannot realistically avoid causing hurt and disappointment to one or other set of parties. As Ipp JA said in D v Director-General Department of Community Services, which was a particularly difficult case:

6. [162]

   A final general observation that I would make is that, where s 8(2)(k) requires consideration of "all alternative forms of care", and s 90(3) refers to "any other action that could be taken at law", those expressions require the Court to compare the actual adoption that is on offer with the alternatives that are realistically and practically available in the timeframes by which they could be achieved. In-so-far as s 90(3) requires the Court to compare the preferability of an adoption order to all “other action[s] that could be taken by law” it might be argued that what is required is a theoretical comparison of the various alternative actions available, irrespective of by whom and in what circumstances the actions may be implemented. However, given that s 7(a) makes the best interests of the child concerned the paramount consideration in adoption law and practice, it is in my view obvious that the Court is required to compare the preferability of actual possible alternatives having regard to who must implement them and what the likely outcome is and when it might be achieved. The exercise does not only involve a theoretical comparison of the advantages and disadvantages of the possible alternative forms of care, although that may form part of the consideration. This conclusion appears to be reflected in the statement made by Brereton J in Adoption of RCC and RZA (above) at [11], where his Honour referred to the need "…to judge which of the competing proposals (and any viable alternatives) will best serve the interests of these children now and in the future…" (Emphasis added).

7. [163]

   If that observation is correct, it highlights an issue that may be very difficult for the Court properly to resolve on the limited facts of the particular case, concerning which alternative forms of care are truly viable, and what the reality of pursuing them would be.

Should an adoption order be made in this case?

1. [164]

   I will now address the requirements of s 90(1)(a) and s 90(3) of the Adoption Act, being whether I am satisfied that the making of the adoption order sought will promote the best interests of IEK, and whether I consider that the making of the order would be clearly preferable in the best interests of IEK than any other action that could be taken by law in relation to her care.

2. [165]

   In doing this, the principle that the best interests of IEK, both in childhood and in later life, must be the paramount consideration (s 8(1)(a)), and that adoption is to be regarded as a service for the child (s 8(1)(b)) are of particular relevance. I have had regard to all of the matters listed in s 8(2) of the Adoption Act that I consider to be relevant, although I do not think that it is necessary for the Court mechanically to consider each of the matters separately in detail. Some of the matters will be of greater importance in a particular adoption application than others. In the present case, IEK is too young to have expressed mature views concerning her adoption (s 8(2)(a)). I will address the various characteristics of IEK referred to in s 8(2)(b) and (c), in-so-far as they are relevant to this case, where they arise below. The only possible disability that IEK has is that she has developed symptoms of attachment disorder, which raises an important consideration. Both parents have declined to give their consent to the adoption (s 8(2)(e)). IEK lived with EK for the first two years of her life and has maintained some connection through limited visits with IEK since she was taken into care. DSC has little connection to IEK (s 8(2)(f)). All of the issues concerning PAP and her relationship with IEK raised by s 8(2)(g), (h) and (i) are strongly favourable to the making of an adoption order. The matters relevant to the protection of IEK raised by s 8(2)(j) are important in the present case, but unresolved given that the process of restoration of RK has only just begun and is expected to take some two years before it is completed. I will touch upon these issues more fully below.

3. [166]

   Related to the requirement in s 90(3), the consideration in s 8(2)(k) that adoption should be determined among all alternative forms of care to best meet the needs of the child, having regard to the short and longer term changes in the child's circumstances from the making of an adoption order, is also significant.

4. [167]

   I will now address the specific considerations relevant to whether an adoption order should be made.

5. [168]

   First, I note that the substantive conditions for the making of the adoption order sought set out in Ch 4 Pt 1 of the Adoption Act are all satisfied. The Court may make an order in favour of one person (s 23(1) and s 26), IEK is present in the State and PAP resides in the State (s 23(2) and s 27(1)(a)), IEK is less than 18 years of age (s 24(1)(a)), and PAP is more than 21 years of age and more than 18 years older than IEK (s 27(2)(a)).

6. [169]

   Secondly, it is clear from PAP’s evidence, the terms of the report under s 91 of the Adoption Act, and the evidence generally, that PAP is of good repute and a fit and proper person to fulfil the responsibilities of a parent, as required by s 27(1)(b) of the Adoption Act. The contrary was not suggested.

7. [170]

   I am entirely satisfied by the evidence that it will be in the best interests of IEK for an adoption order to be made in favour of PAP. The terms of the Adoption Act contemplate that the issue of whether the making of an adoption order will promote the best interests of the child (s 90(1)(a)) may be determined in favour of an adoption, separately to the enquiry required by s 90(3) as to whether an adoption order is clearly preferable in the best interests of the child than any other action that could be taken by law. PAP has been caring for IEK and exercising practical parental responsibility for her (within the context of the Minister formally having that responsibility) for some three years now. The evidence, principally in the form of the s 91 report and the evidence of PAP herself, establishes that IEK has thrived in PAP’s care, and that a strong de facto maternal bond has been created. Further, over the years, many of the problematic emotional and behavioural problems exhibited by IEK at the beginning of her placement with PAP, arising from the shortcomings in the care that she received for the first two years of her life, have substantially resolved. These conclusions are amply borne out by a reading of the substantial body of notes made by representatives of Barnardos following their frequent interactions with PAP and IEK over the last three or so years.

8. [171]

   The making of the adoption order that is sought will in my view clearly satisfy the objective of providing for IEK’s safety, welfare and well-being by providing her with a long-term, safe, nurturing, stable and secure environment through a permanent placement. I have taken that objective from s 8(a1) of the Care Act, rather than the Adoption Act, but only for the reason that I think that it encapsulates the ultimate goal in providing the necessary long-term care for a child in the position of IEK.

9. [172]

   The author of the s 91 report, Ms Leigh-Anne Norris, and the Program Manager, Adoptions of Barnardos, Ms Debbie Palacios, who supported the report, provided comprehensive and persuasive reasons, and embrace the conclusion that the making of the adoption order would be in the best interests of IEK.

10. [173]

    The question therefore becomes whether the making of the adoption order is clearly preferable to the alternative actions that are available at law.

Available alternative actions that may be taken in law

1. [174]

   The Court must identify all of the actions that could be taken in law in relation to IEK, and after considering the extent to which the alternative actions would be in her best interests, the Court may only make an adoption order if it is satisfied that such an order is "clearly preferable" to the alternatives.

2. [175]

   In the present case the alternative forms of care that are available in respect of IEK include:

   1. (1)

      No order, leaving the status quo created by the order of the Children's Court granting parental responsibility for IEK to the Minister, together with such out-of-home care arrangements as the Secretary may make from time to time (not contended for by any party).

   2. (2)

      Guardianship or other care order under the Care Act (not contended for by any party).

   3. (3)

      Parenting order under the Family Law Act 1975 (Cth) (Family Law Act) (not contended for by any party).

   4. (4)

      Order that parental care for IEK be granted to PAP, either solely or shared on some basis with EK (not contended for by any party).

   5. (5)

      Order granting parental responsibility for IEK to EK until IEK attains the age of 18 years (contended for by EK).

   6. (6)

      Defer dealing with the application for a time sufficient to know whether RK will successfully be restored to EK and that IEK may also be restored to EK (not contended for by any party).

   7. (7)

      Adoption order in favour of PAP (contended for by the Secretary and PAP).

3. [176]

   It will be appropriate to make some preliminary observations about these alternative actions.

4. [177]

   Alternative (2) would apply if the Court determined to refuse to make an adoption order, and to leave it to any interested party to make whatever application for a care order that may be available in the Children’s Court. The Court could not itself make a care order under the Care Act, and the Court’s consideration of the relative preferability of this order would require a consideration not only of what care order may be available, but also of how long it would take to obtain the order, and the likelihood that the order would be made.

5. [178]

   I have referred to the making of an order appointing a guardian for IEK separately, as it is a new care order introduced into the Care Act by the Amendment Act. It is not an order that can be made by this Court. A consideration of ss 79A and 79B of the Care Act shows that a guardianship order is a special form of order allocating all aspects of parental responsibility for a child or young person until the age of 18 years to the guardian. The difference between such an order and an order allocating parental responsibility under s 79 is not entirely clear. The procedure for the making of a guardianship order is set out in detail in the sections, and it may be that part of the change sought to be achieved by the legislature will emerge out of the procedure that leads to the making of the guardianship order. As such an order ultimately deals with parental responsibility for the child, it may be that, if s 92 of the Adoption Act is an available source of power to make a parental responsibility order in this case, then the Court may be able to fashion an order that mimics to a significant extent a guardianship order made by the Children’s Court. But an order of that nature would not technically be a guardianship order, and it could not, for instance, attract the power of the Secretary contained in s 79C of the Care Act and reg 131 of the Adoption Regulation 2015 (NSW) (Adoption Regulation) to provide financial assistance to the guardian.

6. [179]

   Alternative (3) is specifically identified in the Note to s 90 of the Adoption Act. It is an order that could be made by the Family Court of Australia, or other court exercising jurisdiction under the Family Law Act, and could be made by this Court if jurisdiction under the Family Law Act were cross-vested to it: see for example Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27 at [38]-[42]. As this alternative was not raised or considered by the parties, and as special considerations apply to the application of the Family Law Act, it will not be appropriate for this possibility to be explored in any detail. Furthermore, the effect of s 69ZK of the Family Law Act is that a parenting order cannot be made under that Act because of the subsistence of the Children’s Court’s order allocating parental responsibility for IEK to the Minister, which has the effect that IEK is “…a child who is under the care…of a person under a child welfare law…”.

7. [180]

   Alternatives (4) and (5) have been included upon the assumption that orders to this effect can be made in these proceedings by this Court pursuant to s 92 of the Adoption Act, if the Court refuses to make the adoption orders sought by the Secretary.

8. [181]

   Alternative (7) is potentially more attractive in the present case than it ordinarily would be, because it is too early to know whether the restoration of RK to EK will be successful, or whether, if it is, EK will then be able to care properly for IEK as well.

Alternative (1): maintain the status quo

1. [182]

   Maintaining the status quo is not satisfactory in the present case, and is rightly not supported by any party. The continuation of parental responsibility for IEK residing in the Minister is the least preferable action according to the permanent placement principles in s 10A of the Care Act. Alternative (1) would not strictly satisfy the definition of “permanent placement” in s 10A(1) of the Care At as it would not be a long-term placement that provided a safe, nurturing, stable and secure environment for the child.

2. [183]

   While it was appropriate for the Children's Court initially to make an order granting parental responsibility for IEK to the Minister, once it was satisfied that there was no realistic possibility of restoration of IEK to EK, the utility of the order has diminished as a result of PAP proving that she is capable of properly exercising parental responsibility for IEK. There is therefore no longer any need for a succession of strangers acting on behalf of the Secretary to make significant decisions in the upbringing of IEK (even though they do so in a caring and conscientious fashion). There is no continuing need for IEK to be, in effect, a ward of the State, or for PAP's relationship with IEK to depend upon the continuation of out-of-home care arrangements put in place by the Secretary. IEK should not suffer the risk of having no close, permanent family when she reaches the age of 18. This alternative action would provide IEK with none of the permanency that would flow from the making of an adoption order. This conclusion is consistent with that reached by Brereton J in Adoption of RCC and RZA (above) at [81]-[82], and Adoption of NG (No 2) [2014] NSWSC 680 at [92]-[96].

Alternative (2): guardianship or other care order

1. [184]

   For the reasons that I have given above after setting out the alternative actions that are available at law, the making of a guardianship order (although accorded preference to the making of an adoption order by the permanent placement principles contained in s 10A of the Care Act) is not a viable alternative. It was not considered appropriate at any time when the proceedings before the Children’s Court were on foot. That is apparently because a view was taken that there should be a particular relationship between the guardian and the child, and no appropriate guardian was identified. The parties did not engage with this possibility, and there is no evidence concerning it.

2. [185]

   The making of a guardianship order in these proceedings would give IEK much the same security as would an adoption order, but it would be liable to be rescinded at some later time by the Children’s Court. That would make it more attractive to EK as the birth mother, because it would not be permanent. If I am correct in understanding that guardians are usually chosen on the basis that they are family or kin of the child, the lack of permanence may not be a serious concern because family members or kin of the birth parents may often be prepared to care for the child until the parents have demonstrated that they are able to do so. Strangers may not be prepared to take on the parental burden on those terms. A guardianship order requires there to be a guardian. No guardian was found while proceedings were pending in the Children’s Court. The Court cannot order the Secretary or PAP to apply for a guardianship order. Even if such an order were applied for, the outcome of the application is uncertain.

3. [186]

   So far as any other type of care order that may be made under the Care Act is concerned, the Children’s Court has already made a final order allocating parental responsibility for IEK to the Minister. EK’s application for leave to apply for that order to be rescinded has been dismissed, and there has been no appeal from the dismissal, so the order will stand unless in the future the Children’s Court gives leave following another application under s 90 of the Care Act for the final order to be rescinded or varied.

4. [187]

   In considering whether the making of an adoption order is clearly preferable to any other action that may be available at law, it is necessary for the Court to allow for the possibility that, at some unknown time in the future, EK’s circumstances may change further, and she may be able to satisfy the concerns of the Children’s Court that caused it to dismiss EK’s s 90 application. As set out above, those concerns were that EK had not established how she could address IEK’s needs and those of RK if they were both placed with her at the same time, IEK was likely to suffer psychological harm as a result of being separated from PAP, and there may be some recurrence of the attachment difficulties that IEK had acquired as a result of the circumstances of her early life.

5. [188]

   Any consideration of allowing EK to pursue a further application in the Children’s Court for the purpose of varying the existing care order, and obtaining an order that parental responsibility for IEK be given to her, must have regard to the uncertainty and the likely distance in time when any such application might succeed.

6. [189]

   It will be convenient to defer further consideration of this question and to deal with it at the same time as I consider alternative action whereby this Court might make an order granting parental responsibility for IEK to EK (which assumes that the Court has power under s 92 of the Adoption Act to make an order granting parental responsibility for IEK to EK immediately after it refuses to make the adoption order).

Alternative (3): parenting order

1. [190]

   The making of a parenting order under the Family Law Act is also not a viable alternative, because so long as the Children’s Court order allocating parental responsibility for IEK remains in effect, a parenting order cannot be made.

Alternative (4): parental responsibility order in favour of PAP and EK, or PAP

1. [191]

   As to the possibility that parental responsibility could be allocated to PAP, either alone or shared with EK, EK has not suggested that she should share parental responsibility for IEK with PAP. That would likely be an unsatisfactory arrangement because of the difficulty in effectively dividing parental responsibility between the two parties, and in any event it would be likely to promote dissension.

2. [192]

   In Re the Adoption of AJH (above) at [310], Hallen J said that it was necessary for him to consider the option of an order for parental responsibility being made in favour of the proposed adoptive parents, even though they did not consent to such order being made in their favour. In the present case PAP has not offered or consented to take parental responsibility for IEK. Such an order would not be inherently permanent, and would be subject to rescission or variation by this Court at any time.

3. [193]

   While I agree with Hallen J that the Adoption Act imposes upon the Court a requirement to consider this alternative, in my view the Court should be realistic about what would be involved. As a result of this alternative not being proposed by any party, it was not explored at all in the evidence. There was no consideration of how it would work. PAP was not asked whether she would accept this outcome as a second-best result to the making of an adoption order. It may be reasonable, nonetheless, to infer that, if she had been presented with the option of being the subject of an order for the parental care of IEK, or giving up IEK, PAP would choose the former, even if under protest.

4. [194]

   It is likely that PAP would continue to conscientiously do her best as IEK's parent, but this alternative would only create an appearance that IEK had become part of the permanent family of PAP from both her and PAP's perspectives. It is an arrangement that would cease on IEK's 18th birthday. It would likely remain in the back of both IEK's and PAP's minds that the arrangement was not permanent, and PAP remained no more than the out-of-home carer for IEK, with the only practical change being the cessation of the involvement of the Minister.

5. [195]

   There is also the concern (noted by Brereton J in Adoption of RCC and RZA (above) at [80]) that it would not be fair to foist on PAP parental responsibility for IEK, without the security of an adoption order, when the result would be that the Minister’s responsibility to bear the costs of any future proceedings about the care of the child would cease, and PAP would be required to conduct and bear the costs of any future litigation.

6. [196]

   Thus, compared to the making of an adoption order, most of IEK's practical and short-term needs would be satisfied, but there would not be the benefit of permanency and family membership.

7. [197]

   PAP entered into the out-of-home care program with the intention to adopt a child, IEK was matched with her for that purpose and, during all of the time that IEK has been living with PAP, PAP and Barnardos on behalf of the Secretary have been moving towards adoption. A real expectation that an adoption order would be made will have been created, although at all times it was known by PAP that the making of an adoption order depended upon the decision of this Court, applying the Adoption Act. There must be a significant likelihood that, if PAP is denied the permanency of an adoption order, that will create real unhappiness and possibly impinge upon the relationship between PAP and IEK.

8. [198]

   From IEK's perspective, the only benefit of this alternative, given that it involves denying IEK becoming part of PAP's permanent family, is that the opportunity for EK to obtain an order rescinding the parental responsibility order in favour of PAP is preserved. Thus, the less the likelihood that an order will ever be made granting parental responsibility for IEK to EK, the more reason to prefer the making of an adoption order.

9. [199]

   Even if this course of action were available to the Court under s 92 of the Adoption Act, it would be necessary for the Court to face the fact that the Children’s Court’s order will remain in place. As I have said above, I do not think that s 92 gives this Court the power to set aside the parental responsibility order made by the Children’s Court. Even if it does have the power, in the ordinary case the Court should not interfere with the order of the Children’s Court. The Court could only make the order granting parental responsibility for IEK to PAP subject to the condition that, on application, the Children’s Court rescinded the existing order. The Children’s Court might defer to this Court, but that Court would have to exercise its own judgment concerning the suitability of PAP to exercise parental responsibility for IEK, and this Court cannot presume the outcome of the application. This alternative action would to that extent involve delay and uncertainty.

10. [200]

    In my view, these considerations exclude the making of a parental responsibility order in favour of PAP from being a viable alternative to the making of an adoption order.

Alternative (5): parental responsibility order in favour of EK

1. [201]

   I therefore come to the alternative of making an order allocating parental responsibility for IEK to EK following a refusal to make an adoption order. That is the order sought by EK.

2. [202]

   I have considered above the difficulties that I consider may arise in the interpretation of s 92 of the Adoption Act. There are two alternatives: (a) that this Court could make an order granting parental responsibility for IEK to EK; or (b) this Court either cannot, or should not do so, and should leave the question of whether such a parentage order in favour of EK should be made to the Children's Court. Although for the reasons that I have explained above, I think that alternative (a) is correct, against the possibility that I am wrong in that view I will also consider the application of alternative (b).

3. [203]

   If the former approach is correct, then the parentage order in favour of EK could be made immediately by this Court. However, even if the Court has power to impose conditions on the order, which it probably does, the Court does not have available the expertise or facilities to prepare and supervise a restoration plan over the long term.

4. [204]

   The significance of this issue may be better appreciated if attention is given to the restoration plan that has been prepared in relation to RK, which I have explained in outline above.

5. [205]

   While this Court may be able to impose some conditions on the restoration of IEK to EK that would alleviate the risks from IEK simply being handed over to EK, the significance of the relative lack of resources of this Court, when compared to the operation of the Children's Court, would create a substantial disadvantage when comparing the preferability of immediate restoration of the child to EK to the making of an adoption order.

6. [206]

   But the most serious problem that I consider exists with this alternative is the same problem that caused the Children’s Court to dismiss EK’s application for leave to apply to rescind or vary the order granting parental responsibility for IEK to the Minister. That is that I could not be satisfied that EK will be able to successfully implement an order granting her parental responsibility for IEK, at the same time as she was engaged in the effort to successfully complete the restoration of RK to her care.

7. [207]

   It cannot be known now whether that process of restoration will be successful, and a consideration of the likelihood of success would essentially be a speculative exercise.

8. [208]

   Although the Court wishes EK all the best in her effort to achieve restoration of RK to her parental care, the success of that effort will not be established until the Children’s Court is satisfied that it has been successful, and that may not be known until the report required by order 5 in relation to RK’s restoration to be made by the Secretary by 10 September 2020 is available. That is almost 2 years away.

9. [209]

   Even when the successful restoration of RK to EK’s care has been established, it would then also be necessary to be able to show that, if IEK were then returned to EK’s care, EK would be able to cope with the proper parentage of the two children. That is not a matter that can be taken for granted. There is then the further consideration that, if both IEK and RK were restored to EK before she has been able to implement the restoration of RK successfully, the burden of needing to care for both children at the one time could undermine EK’s ability to cope with the restoration of either child.

10. [210]

    In cross-examination of EK, a number of matters were put to her concerning her recent attempts to rehabilitate herself and to prepare herself to be able successfully to take care of RK. There is some basis for concluding that EK’s efforts have not been consistently successful, and there may be room for doubt as to whether she will succeed in achieving satisfactory restoration of RK. On the other hand, it may be wrong to draw firm conclusions from these events, as the very fact of having RK in her care, together with the assistance and supervision that she will receive, may well encourage EK to achieve a level of success that may otherwise have been doubted. I see no need for the Court to examine the relevant aspects of the cross-examination or the events with which they were concerned in any detail. There is no purpose in taking the risk that any negative observation by the Court may discourage EK from achieving her objective of the successful restoration of RK.

11. [211]

    In these circumstances, assuming the Court has power under s 92 of the Adoption Act to make an order now, after refusing to make the adoption order, to allocate parental responsibility for IEK to EK, I would decline to make that order. The Court now cannot have sufficient confidence that restoration of IEK at the same time as RK has a sufficient likelihood of success, without being injurious to either child, to justify the order being made.

Significance of IEK’s attachment disorder

1. [212]

   There is one particular aspect of IEK’s emotional behaviour that warrants specific consideration. It derives from a number of reports by Dr Arman Babajanyan, who is a consultant paediatrician and who has been treating IEK since December 2015. Dr Babajanyan’s most comprehensive report is dated 4 July 2018. IEK has had a number of medical issues, some of which are not common, but one in particular can be traced to the relative deprivation that she experienced in the first two years of her life. I will extract the observations made by the doctor concerning what he described as IEK’s “reactive attachment problems”:

2. [213]

   DSM-5 (Exhibit P3) describes reactive attachment disorder as involving minimal social and emotional responsiveness to others, and that the child rarely or minimally seeks comfort when distressed or responds to such comfort. It is not clear whether Dr Babajanyan was referring to attachment disorder rather than reactive attachment disorder. The former disorder involves an excessive tendency indiscriminately and inappropriately to form attachments with strangers. The resolution of this doubt is not important because it is clear that either disorder could be seriously disabling to IEK. She showed significant signs of suffering from the disorder as a result of her initial neglect, and the disorder has substantially resolved by reason of the care that she has received from PAP and the stability in her life.

3. [214]

   As Brereton J recognised in Adoption of RCC and RZA (above) at [74], the vulnerability of a child to attachment disorder arising from disrupted care in early years increases the risk that they would not re-attach to their birth mother, and the disruption involved in restoration after a considerable period in care is likely to be harmful to the child’s emotional development.

4. [215]

   The point of this evidence is that not only does it point to there being serious uncertainty about whether it will ever be appropriate to restore IEK to EK’s parental responsibility, but it also indicates that there is a risk in doing so that precludes that course being appropriate at this time.

Particular issues relied upon by EK

1. [216]

   EK substantially, though not solely, based her case on the principle in s 8(1)(e) that, as far as possible, the child’s language and cultural and religious ties should be identified and preserved.

2. [217]

   EK is Polish. Polish is her first language although she speaks English well. She is Roman Catholic by religion, and wishes that IEK be baptised and brought up in that religion. PAP is Anglo Australian and agnostic. EK sought to make out a case that PAP would not as a practical matter be able adequately to foster IEK’s Polish cultural identity and the possibility of her following the Catholic religion.

3. [218]

   I am satisfied from hearing PAP’s evidence in cross-examination that she realises the importance of IEK’s language, cultural and religious ties, and that she has made efforts to preserve them. It is probably true that the effort has been somewhat limited given the locality where PAP lives with IEK, and the relative absence of a Polish cultural presence in the area. PAP’s capacity to involve IEK in the Catholic religion is also inhibited by the fact that she is not an adherent of that religion. It is probably also true that EK is the best, if not the only real source of IEK’s exposure to both the Polish culture and the Catholic religion. The capacity of EK to assist in preserving IEK’s language, cultural and religious ties will be significantly reduced by the limited opportunities she will have if she only has a finite number of visits with IEK each year.

4. [219]

   While I acknowledge that this aspect of EK’s case has considerable strength, the Court must undertake an evaluative exercise in balancing all of the principles and considerations. I am quite satisfied that these negative considerations are significantly outweighed by the benefits to IEK of continuing her present care arrangements and making them permanent through an adoption order.

Summary

1. [220]

   In summary, the present position is that parental responsibility for IEK has been granted to the Minister until she attains the age of 18 years. The Children’s Court has declined recently to give EK leave to seek a rescission of that order. That was because EK had not demonstrated how she could care for IEK at the same time as she was attempting to achieve successful restoration of RK, and because of the risk involved in separating IEK from PAP. EK in these proceedings has not to my satisfaction demonstrated that the concerns of the Children’s Court have been resolved. I do not think that this Court has jurisdiction to interfere with the order made by the Children’s Court. However, even if the Court has power to set aside the Children’s Court order, and should do so in an appropriate case, I share the concerns of the Children’s Court, and would not make an order granting parental responsibility for IEK to EK at this time if that would involve IEK being given into the care of EK now. The Court does not know whether the restoration of RK to EK’s care will succeed, and adding responsibility for the care of IEK at this stage would in my view jeopardise the prospects of a successful restoration in respect of both children.

2. [221]

   Accordingly, the granting of parental responsibility for IEK to EK is not at this time a viable action.

Alternative (6): deferral of the question

1. [222]

   No party asked the Court to defer making a determination and to adjourn the proceedings. There would have been no point in any party making that request unless the Court was prepared to adjourn the proceedings until after it is known whether the restoration of RK has been successful, and if it is, that an appropriate investigation has been carried out that establishes that EK is capable of adequately caring for both IEK and RK at the same time. The period of such an adjournment would therefore most likely be in the order of two years. The actual period of any adjournment may in fact be less certain, because of the possibility that EK might take the view that she has demonstrated the capacity to care for both children at the same time at an earlier time than the Secretary will accept.

2. [223]

   The only advantage of the deferral of the determination of the proceedings is the possibility that, over time, the present uncertainty about EK’s ability to properly care for both IEK and RK may be reduced. Whether or not that will be so is presently uncertain. Deferral would be to the advantage of EK because it would give her a chance of avoiding the consequence that if an adoption order is made in favour of PAP, EK will permanently lose the opportunity to apply to the Children’s Court for leave to make an application that will have the effect that parental responsibility for IEK is returned to her.

3. [224]

   However, the obvious vice in this approach is that it will deny both IEK and PAP certainty in relation to the nature of their relationship, and in return it will only keep alive a chance that EK will be able to regain parental responsibility for IEK. Furthermore, as time goes by, the relationship between IEK and PAP will become more and more established, and the risk of harm to IEK (and hurt to PAP) will increase. Delay involves an inherent risk of a diminishing return that cannot justify the Court deferring the decision in this case.

4. [225]

   That is the only course consistent with the principle in s 8(1)(e1) of the Adoption Act, which provides that “undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare”: see Adoption of RCC and RZA (above) at [83] and Adoption of NG (No 2) (above) at [98].

Conclusion as to whether Adoption Order clearly preferable

1. [226]

   As the question is whether the making of an adoption order is clearly preferable to all other actions that are available in law, the fact that I have not found any alternative action that is viable or satisfactory strongly points to an affirmative answer to the question.

2. [227]

   Brereton J has in a number of cases set out the beneficial effects of the making of an adoption order. I respectfully accept the following extract from his Honour’s judgment in Adoption of NG (No 2) (above):

3. [228]

   In the present case, the Children’s Court concluded that there was no reasonable chance of IEK being returned to the care of EK. This was the basis for the order conferring parental responsibility for IEK on the Minister, and for that Court declining to give EK leave to apply to rescind that order. However, that circumstance is tempered by the fact that both the Secretary and the Children’s Court have accepted that there is a reasonable chance for RK to be restored to EK and restoration is in the process of being implemented. I think that the fact of the restoration of RK makes it impossible to rule out the possibility that at some time in the future EK will become capable of caring for both IEK and RK.

4. [229]

   That circumstance brings into play the additional factor that restoration of both IEK and RK to EK would enable both siblings to grow up together in the same family, which in principle would be strongly in IEK’s interests.

5. [230]

   Hallen J noted the following in Re the Adoption of AJH (above) at [291]:

6. [231]

   In Adoption of NG (No 2) (above) at [83], Brereton J expressed the following view concerning the consequences of there being a possibility of restoration to the birth parents:

7. [232]

   However, in Adoption of RCC and RZA (above) at [69] his Honour revised his earlier statement in the following terms:

8. [233]

   I respectfully agree with his Honour’s revised view that the realistic prospect of a child being restored to the care of a birth parent should not by itself prevent adoption being the clearly preferable action, and the proper course is for the Court to determine whether the advantages of adoption clearly outweigh the benefits of preserving the possibility of restoration. It is true that the permanent placement principles set out in s 10A(3) of the Care Act give the restoration of care to the birth parents priority over adoption. But the question of whether adoption is clearly preferable must be determined having regard to the real likelihood of the alternative outcomes. The effect of s 9(2)(e) of the Care Act is that, as IEK has been placed in out-of-home care, arrangements must be made in a timely manner for the creation of a stable and secure environment for her, and the younger the age of the child, the greater the need for early decisions to be made in relation to permanent placement. The definition of permanent placement in s 10A(1) of the Care Act requires that IEK receive “…a long-term placement…”. Although these are provisions of the Care Act, in the manner that I have described above the possibility of adoption for IEK has been part of the implementation of the Care Act leading up to the application for an adoption order in these proceedings. That process was on foot between 9 December 2014 and 8 December 2017. Where there is a real chance of restoration to the birth parents, but the realisation of that chance may occur only in the indefinite future, the important objective of securing a timely and early permanent placement for the child would be undermined if the chance of restoration were sufficient to negate adoption being clearly preferable. Consequently, preferability should depend upon a comparison between the benefit of preserving the chance of restoration and the advantages of adoption.

9. [234]

   In the present case, the possibility of restoration of IEK to the care of EK depends upon the likelihood that RK will successfully be restored to her care and then in the circumstances that then exist that EK will persuade the Children’s Court in a new application under s 90 of the Care Act to give leave to apply for a rescission of the parental responsibility order in favour of the Minister, and then succeed in obtaining an order to that effect. While success by EK is a possibility, that possibility is indeterminate and will only be realised, one way or the other, in a number of years’ time. In the meantime, the status quo will prevail with all of the unsatisfactory consequences that have been considered above.

10. [235]

    It is in this context that the analysis I have made above of the legislation providing for the care of children and young persons, in-so-far as it establishes a legislative preference for early determination, permanency of care arrangements, and certainty, becomes significant. Although the making of an adoption order will foreclose the alternative of the possible ultimate restoration of IEK to the parental responsibility of EK, that is clearly the preferable course in accordance with the established criteria governing the preferability of one possible action over another.

11. [236]

    Consequently, I have concluded that the making of an adoption order is clearly preferable to all other actions that are available at law, including but not limited to restoration of parental responsibility for IEK to EK.

Should the consent of the birth parents be dispensed with?

1. [237]

   It is therefore necessary to decide whether the consent to the making of the adoption order by EK and DSC, which they have withheld, should be dispensed with, which is made a condition of the making of an adoption order by s 90(1)(d) of the Adoption Act.

2. [238]

   The question is, under s 67(1)(d) and (2) of the Adoption Act, whether the following requirements are satisfied:

3. [239]

   It is clear that IEK has established a stable relationship with PAP. Once the Court has decided that it is in the best interests of IEK to make the adoption order that is sought, it will follow that the requirements in s 67(1)(d)(ii) and (2) are satisfied.

4. [240]

   Accordingly, I will make consent dispense orders in respect of EK and DSC.

Are the adoption plans proper and in the child’s best interests?

1. [241]

   I will now consider the general principles that apply to adoption plans, and whether s 90(2) of the Adoption Act is satisfied in the present case.

Principles applying to adoption plans

1. [242]

   Section 46(1) of the Adoption Act defines “adoption plan” as a plan agreed to by two or more of the parties to the adoption of a child that includes provisions relating to exchanges of information in relation to medical issues, the child’s development and important events in its life, the means and nature of contact between the parties and the child, and any other matter relating to the adoption of the child.

2. [243]

   Under s 47(1) of the Adoption Act, before the making of an adoption order, the parties to the adoption may agree on an adoption plan. Sub-section (2) requires an adoption plan to be in writing and to contain the particulars (if any) required by the regulations. Regulation 75 of the Adoption Regulation provides:

3. [244]

   The evidence contains proposed maternal and paternal adoption plans (pages 253 to 260 of the exhibit to the affidavit of the Delegate). The plans have been agreed to and signed by PAP and the Delegate, but have not respectively been agreed to or signed by EK and DSC.

4. [245]

   Both of the adoption plans in this matter appear to conform to the requirements of s 47 of the Adoption Act and Reg 75.

5. [246]

   “Parties to an adoption” is a term defined in the Dictionary to the Adoption Act as meaning (a) the child, (b) the birth parent or parents who have consented to the child’s adoption, (c) the person or persons selected to be the prospective adoptive parent of the child, (d) the Secretary, and (e) the appropriate principal officer. In this case the appropriate principal officer (on behalf of the Secretary) and PAP are parties to the adoption.

6. [247]

   As neither EK nor DSC has consented to the adoption of IEK, they do not fall within the definition of parties to an adoption.

7. [248]

   Section 46(2A) of the Adoption Act provides that a birth parent who has not consented to the adoption of a child is, as far as possible, to be given the opportunity to participate in the development of, and agree to, an adoption plan in relation to the child, and sub-s (2B) provides that a non-consenting birth parent who does agree to an adoption plan is to be treated for the purposes of various sections of the Adoption Act as if the non-consenting birth parent were a party to the adoption of the child. Those sections are s 47 (empowering the parties to the adoption to agree on an adoption plan); s 48 (requiring the adoption plan to accompany the application for adoption unless it is registered under s 50); s 50 (governing registration of adoption plans); s 51 (giving this Court power to review an adoption plan on application of one or more of the parties to the plan); and s 90 (imposing conditions on the Court making an adoption order).

8. [249]

   In-so-far as s 46(2B) has the effect of treating a non-consenting birth parent who agrees to an adoption plan as if that parent were a party to the adoption of the child for the purposes of a review by this Court under s 51 of the Adoption Act, a problem arises.

9. [250]

   Section 51 of the Adoption Act provides:

10. [251]

    Under sub-s (1), an application for review can only be made by a party to the adoption plan and not by a party to the adoption who is not also a party to the adoption plan. Sub-section (2) only requires the Court to give parties to the adoption who have agreed to the adoption plan an opportunity to make submissions. EK and DSC, who have not consented to the adoption and not agreed to the adoption plans, will not have rights of review under s 51 on its literal application. Section 46(2B) will not avail them, as that only gives non-consenting birth parents who agree to an adoption plan a right to be treated as parties to the adoption for the purposes of various sections including s 51 of the Adoption Act.

11. [252]

    This is a strange result, as s 46(2B) was evidently intended to have a remedial effect by giving birth parents who have not consented to the adoption some rights under s 51 (as well as other sections). However that section only gives rights to parties to the adoption plans – not to parties to the adoption. Section 46(2B) does not require that birth parents who have not consented to the adoption and have not agreed to the adoption plan be treated as parties to the adoption plan. It is difficult to see why, when a birth parent neither consents to the adoption nor agrees to the adoption plan, but an adoption order is nonetheless made because the Court finds that s 90(2) is satisfied, the birth parent should be precluded from applying for a review of the adoption plan and making submissions for the purposes of that review.

12. [253]

    This is not just a technical problem, because in a finely balanced case the Court may come to the view that the absence of any right of the birth parent to apply for a review of the adoption plan may be a factor that limits the capacity of the adoption to be in the best interests of the child, as required by s 90(1), before the adoption order can be made.

13. [254]

    The possibility that there will be a need to review the maternal adoption plan is in my view real in the present case. The initial maternal adoption plan must make provision for contact visits between IEK and both EK and RK on the basis that EK will be RK’s carer. In the unfortunate event, if it should happen, that the restoration of RK to EK is not successful, then a provision will be required to accommodate any new carer.

14. [255]

    More significantly, however, the provisions in the present maternal adoption plan for contact visits between IEK and EK and RK are relatively infrequent and regulated, and given the need to foster the emotional connection between IEK and both EK and RK at the same time over the period to when IEK reaches 18 years of age, there is a real need to accommodate the possibility that some flexibility and revision of the maternal adoption plan may be beneficial to IEK, and in the absence of agreement that may require review by this Court.

15. [256]

    As will be seen, I will not make an adoption order in this matter until the parties to the proceedings have conferred for the purpose of reviewing the terms of the maternal adoption plan. I will give the parties the opportunity to make submissions on the effect of s 51 of the Adoption Act in the light of the questions that I have raised above concerning its curious operation. The issue will disappear if EK ultimately agrees to the final form of the maternal adoption plan.

16. [257]

    The final condition for the making of an adoption order that must be satisfied is that created by s 90(2) of the Adoption Act which provides:

Maternal adoption plan

1. [258]

   The maternal adoption plan provides for a minimum of four contact visits per year having a duration of two hours per visit. Practical terms are set out for arranging visits and the consequences of non-attendance. It also provides for PAP to consult with RK’s carer to facilitate a total of six sibling contact visits per year lasting a minimum duration of one hour per visit. Four of these visits are to coincide with EK’s visits, but the other two are described as being “wholly sibling focused”.

2. [259]

   Barnardos reduced the number of contact visits to four per year because EK had struggled to attend visits on time, which caused disruption and disappointment to IEK.

3. [260]

   For the purpose of considering whether s 90(2) is satisfied, it is important to note that the maternal adoption plan was signed in December 2017, which was long before the Children’s Court made the orders that are set out above for the restoration of RK to EK.

4. [261]

   If, as expected, in accordance with the recent orders made by the Children’s Court, RK is successfully restored to EK, then EK will be the “carer” with whom PAP has to arrange two separate contact visits a year between IEK and RK, when it is contemplated by the maternal adoption plan that EK will not be present.

5. [262]

   There is an obvious difficulty with this aspect of the maternal adoption plan, and it is difficult to see how it could be made to work sensibly. In contemplating that IEK will have two contact visits per year that are not attended by EK, the maternal adoption plan appears to assume that RK’s carer will be a person other than EK.

6. [263]

   It appears from pars 39 to 41 of EK’s written submissions, that she submits that the maternal adoption plan is inadequate. That appears to be principally because it only provides for four visits of two hours each per year, and as EK will be the principal source of meeting IEK’s cultural identity needs, the amount of access will be insufficient. In pars 87 to 97 of her affidavit, EK explained difficulties that she had experienced in attending contact visits, and the problems involved in only having four visits annually of two hours’ duration.

7. [264]

   The evidence suggests that part of the problem lies in the fact that there is significant distance between the locations where PAP and EK each live. EK has to travel to contact visits by public transport and the transport schedules have apparently not been sufficiently reliable.

8. [265]

   The maternal adoption plan contains the following provisions concerning culture and religious upbringing:

9. [266]

   The Cultural Plan referred to in par 7(g) of the maternal adoption plan was in evidence. It was signed by PAP and EK and representatives of Barnardos in early 2016. As I understand EK’s submission, it is that the level of involvement of the mother under the maternal adoption plan is so limited that she cannot meet the child’s cultural needs, so that the Court should not be satisfied that the arrangements proposed in the adoption plan are in the child’s best interests and proper in the circumstances, and accordingly should refuse to make the adoption order.

10. [267]

    In my view, EK’s submission concerning the inadequacy of the maternal adoption plan is put too highly in-so-far as it seems to claim that, if the provisions for the support of the child’s cultural and religious identity are not entirely satisfactory, then the condition in s 90(2) should be found not to be satisfied, with the result that the adoption order must be refused. In fact, the principle in s 8(1)(e) of the Adoption Act is but one of many principles that may not always mesh together seamlessly and may sometimes raise contradictory considerations. The Court is required to consider all of the objects and all of the principles and make an evaluative judgment as to whether, on the whole, the arrangements in the adoption plan are in the child’s best interests and are proper in the circumstances.

11. [268]

    The maternal adoption plan in clause 1 contains the statement: “It is envisaged that the current arrangements will continue until [IEK] reaches 18 years of age unless the Plan is reviewed prior to this time”. Clause 12 refers to the parties having a right mutually to agree to changes in the plan, and if any difficulties arise they are invited to contact Barnardos, who will endeavour to resolve any difficulties via a process of consultation and mediation with the parties. It is then noted: “In the event that a resolution is not possible, the Adoption Plan may be formally reviewed by the Supreme Court”.

12. [269]

    As I have explained above, it appears that so long as EK does not consent to the adoption plan, she may not have standing to apply to this Court for an order reviewing the plan.

13. [270]

    In any event, once an adoption order is made, unless some special funding arrangement is made by either the Secretary or Barnardos, PAP, EK and DSC would be responsible for making and funding an application for a review of the adoption plans by this Court, if PAP (being the only one of them with standing under s 51) made an application for review.

14. [271]

    I am broadly but not entirely satisfied in this case that the maternal adoption plan satisfies the condition in s 90(2). I accept that the arrangements made for IEK’s cultural and religious identity are not ideal. However, having heard PAP’s evidence from the witness box, I am satisfied that she genuinely appreciates the need to do all that she can to achieve a satisfactory outcome to the best of her ability, and that the Court can have confidence that she will be as good as her word. The difficulty is that, for practical reasons, the ideal cannot be achieved, partly through the tyranny of distance, and also the relatively limited opportunities in the area in which PAP and IEK live for people to participate in Polish cultural activities.

15. [272]

    I accept that it is desirable, when an adoption order is made, for the adoptive parent to be given the primary role of arranging the matters the subject of the adoption plan as part of the adoptive parent’s parental responsibility. It is also desirable that the adoption plan not be too prescriptive, as complex prescriptions tend to invite dissension.

16. [273]

    I am concerned that EK may not have been given an effective opportunity to negotiate the terms of the maternal adoption plan, particularly in the light of the making of the recent orders for the restoration to her of RK. As I have noted above, the maternal adoption plan does not appear to work properly, given that it provides for EK to have four contact visits per year and RK six visits. At least so long as EK has parental responsibility for RK, it would seem that both should be entitled to the same number of contact visits at the same time. I am inclined to the view that, at this stage, six visits per year would be realistic and sufficient, given the difficulties experienced in the past with travel, and the probable need to find time outside school days for the visits to occur. I am particularly concerned to ensure that all that can be done is done to agree to a plan that facilitates the continuation of a bond between IEK and EK, and the development and sustainment of a sibling bond between IEK and RK. In saying this, I appreciate that there are limits to what can be achieved. It is important that the requirements of implementing an adoption plan not become an excessive burden that risks crushing the benefits of the making of the adoption order.

17. [274]

    In my view, given the recent legislative changes that are likely to lead to applications for the making of adoption orders being made earlier in the lives of the subject children, and the likelihood that a higher proportion of adoption applications will be contested, there is a special need to ensure that adoption plans are tailored as carefully as possible to make good the overall objectives of open adoption, and to foster the object in s 7(c) of the Adoption Act, being to ensure that the child is assisted to know and have access to his or her birth family and cultural heritage.

18. [275]

    I propose to make an adoption order as sought in the summons in due course, but I will not make it immediately. I will give the Secretary through the principal officer of Barnardos, PAP and EK a further opportunity to agree upon an amended maternal adoption plan, having regard to the observations made in these reasons, before I am finally satisfied that the condition in s 90(2) of the Adoption Act has been established.

Paternal adoption plan

1. [276]

   The paternal adoption plan provides for contact visits with DSC two times per year lasting a duration of two hours. It also provides for three contact visits of a minimum of two hours each between IEK, and her half-brother SJC, to be arranged between PAP and SJC’s mother. There is also provision for the possibility of future telephone contact and electronic communication, although that is not happening at present. PAP agrees to provide certain information and photos to DSC.

2. [277]

   The Court does not know what attitude DSC has, if any, to the paternal adoption plan.

3. [278]

   There is evidence that PAP has attempted to facilitate a relationship between IEK and DSC, and is open to cooperating with DSC for that purpose. As DSC has not appeared, and has not made any submissions concerning the inadequacy of the paternal adoption plan, there is no basis for the Court to consider it to be inadequate. The paternal adoption plan is broadly consistent with the extremely limited contact that has occurred between IEK and DSC to date.

4. [279]

   I am satisfied that s 90(2) of the Adoption Act is satisfied in respect of the paternal adoption plan.

Name of IEK

1. [280]

   The Secretary applies for an order that IEK’s name be changed, so that she would retain the names IEK as her given names and have PAP’s surname as her surname.

2. [281]

   Section 101(1)(b) of the Adoption Act requires the Court, on the making of an adoption order, for a child who is less than 18 years of age, to make an order that the child have as his or her surname and given names such name or names as the Court approves on the application of the adoptive parent or parents.

3. [282]

   PAP has applied for IEK to be given the names requested by the Secretary’s application. I do not understand EK to have opposed this course, assuming that an adoption order is made.

4. [283]

   Section 101(2) of the Adoption Act provides that, before changing the surname or given names of a child, the Court must consider any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes. There is evidence that IEK has said on occasion that she would have her “full name” when it had PAP’s surname at the end. Because of IEK’s age, I would not place great weight on this evidence, but it suggests that IEK is content to have the names proposed by PAP.

5. [284]

   When I formally make the adoption order, I will make an order that IEK have the given names IEK and the surname P.

Paternity of DSC

1. [285]

   Section 21(2) of the Status of Children Act 1996 (NSW) (Status Act) provides:

2. [286]

   “Such application” includes, as in the present case, an application by the delegate of the Secretary for a declaration as authorised by s 21(1)(d) of the Status Act.

3. [287]

   Section 19(2) of the Births, Deaths and Marriages Registration Act 1995 (NSW) authorises this Court to make an order that DSC’s name be entered in the register of births as IEK’s father, if it makes the declaration sought by the Secretary.

4. [288]

   The evidence is that EK has named DSC as IEK’s father, and DSC has acknowledged that it is possible that he is. DSC agreed to participate in DNA paternity testing, and following an appropriate procedure, a parentage testing procedure report issued by Sonic Genetics on 27 June 2014 stated that the probability of DSC being IEK’s genetic father is 99.999997%. DSC has subsequently acted as if he has acknowledged that he is IEK’s father, although he has stated that he does not want his name on IEK’s birth certificate.

5. [289]

   In Adoption of BS (No 3) [2013] NSWSC 2033, Brereton J said at [100]:

6. [290]

   The benefits to adopted children of the making of parentage orders have been set out by Hallen J in Adoption of J [2016] NSWSC 1098 at [45]-[49].

7. [291]

   I am satisfied on the evidence that the orders sought by the Secretary should be made, and in due course I will make them when I make the final orders in these proceedings.

Conclusion

1. [292]

   For the reasons given above, I propose in due course to make all of the orders sought by the Secretary in these proceedings, subject to first being satisfied that the maternal adoption plan is in IEK’s best interests and is proper in the circumstances. I have set out above some considerations that should be taken into account in revising the existing maternal adoption plan.

2. [293]

   I will give the parties interested in the maternal adoption plan an opportunity to confer, and those parties have leave to contact my Associate to arrange a further hearing date to deal with the settling of an appropriate maternal adoption plan.

3. [294]

   The present maternal adoption plan must be revised to at least accommodate the fact that RK may be restored to the care of EK, so that EK may need to be present on all occasions when RK has contact with IEK. Thought, at least, must also be given to the arrangements that the parties will put in place should the restoration of RK be unsuccessful. It is unfortunate that transport difficulties presently limit the number of contact visits that are feasible each year, as it would be desirable for both EK and RK to have more contact with IEK than is presently provided for. I do not suggest that many more contact visits each year would be feasible, but perhaps some additional or longer contact visits could be contemplated. The parties must also give some thought to the question of how EK may have standing to apply to the Court for the review of the maternal adoption plan, if she does not agree to and become a party to the plan that is ultimately approved by the Court.

Questions arising out of adoption principles

1. [295]

   It is appropriate that I make a number of observations that flow out of my analysis of how the adoption principles apply in a case such as the present.

2. [296]

   It is not clear that the Adoption Act and the Care Act will always operate seamlessly to further the legislative intention, concerning the proper long-term care of children and young persons. There have in recent times been relatively significant amendments to the Care Act, to establish the primacy of the permanent placement principles, and the need for expedition in ensuring that children and young persons are provided with a safe, nurturing, stable and secure environment; all within the framework of elaborate judicial and administrative arrangements to ensure, so far as is possible, that the measures are implemented effectively in the best interests of children and young persons.

3. [297]

   That process requires that a detailed care plan be prepared by the Secretary, directed at achieving the most appropriate form of long-term care in accordance with the permanent placement principles. Although adoption is not the most preferred alternative, it is one that the Secretary will sometimes decide is the most appropriate, and the Children’s Court will approach the making of the appropriate care orders having the Secretary’s determination in mind.

4. [298]

   Reduced to its essence, what this means in the present case is that PAP has engaged in the out-of-home care process since 2 July 2015 for the purpose of adopting an appropriate child, and IEK has been placed with PAP since 19 October 2015, after the Secretary determined that the best long-term placement for IEK was adoption by PAP. Since that time, both PAP and IEK have been living their lives in the hope and expectation that this Court would make an adoption order. That is more than three years. This Court can hear evidence about the effect of those expectations and the day-to-day reality of PAP and IEK living together, but it is plainly unrealistic that comprehensive evidence can be given of those matters.

5. [299]

   Yet, so far as the Adoption Act is concerned, this Court is only required by s 7(d) to recognise the changing nature of the practices of adoption, as one among nine objects of the Adoption Act. The Court is also required by s 8(1)(e1), in making a decision about the adoption of a child, to have regard to the principle that undue delay in making a decision in relation to the adoption of a child is likely to prejudice the child’s welfare, as one of a significant number of factors to be taken into account.

6. [300]

   And then, before the Court can make an adoption order, it is required by s 90(3) of the Adoption Act to consider that the making of the adoption order would be clearly preferable in the best interests of the child than any other action that could be taken by law.

7. [301]

   It does not require much thought before it is realised that all of the enumerated objects and principles do not apply consistently or cumulatively, and that in reality the course that the Court decides should be taken is a matter of evaluation and judgment.

8. [302]

   In particular, how all of the important principles in the Care Act should be taken to have significance in the decision to make an adoption order is an obscure question, and must be found unexpressed in the objects and principles that are stated in the Adoption Act, and in the making of some judgment as to the principles that govern the preferability of one course of action over another.

9. [303]

   One strange consequence of these matters is that the Care Act and the Adoption Act do not necessarily gel seamlessly or effectively. All of the requirements of the Care Act may be implemented flawlessly leading to care orders being made that prepare the child and proposed adopting parent or parents for adoption, but the fact that the making of an adoption order must be clearly preferable to all alternative actions means that this Court may in some cases refuse to make an adoption order. If that happens, it plainly may undermine everything that has been done under the Care Act. Has sufficient legislative attention been given to the remediation of the consequences of the implementation of the Adoption Act in such a case?

10. [304]

    Relevant to this question is the issue of how s 92 of the Adoption Act is meant to operate. On its face, this Court is given some power to make parental responsibility orders. This Court cannot make all of the care orders that may be made by the Children’s Court, including a guardianship order. There is a real question about whether this Court has sufficient power immediately to make appropriate orders to minimise the harm caused by a refusal to make an adoption order. If the Court does not have the power to minimise that harm, realistically that will be a disincentive to the Court refusing to make an adoption order, unless such refusal is plainly necessary.

11. [305]

    Is the power granted to this Court by s 92 of the Adoption Act intended merely to give the Court the power to make short-term parental responsibility orders when necessary to enable the child or young person to be handed back, so to speak, to the responsibility of the Children’s Court, which is the Court most suitable to deal with the care of children and young persons? If the Court is intended to have a power, independently of the Children’s Court, to make parental responsibility orders until the child or young person attains the age of 18, what is to be done about the fact that the Adoption Act does not entitle the Court to require that it be provided with administrative assistance, and there is no express provision for the Secretary to provide financial assistance in appropriate cases to the persons involved? Does this Court have a power to review parental responsibility orders made under s 92, given that there is no such express power in the Adoption Act, and generally in this area the legislature makes express provision for the circumstances in which orders for the care of children and young persons may be reviewed?

12. [306]

    This is a very important question, because, as happened in the present case, the birth parents of a child may defend an application for an adoption order on the basis that the Court can, and should, make a parental responsibility order in their favour in the exercise of a supposed power in s 92 of the Adoption Act to do so.

13. [307]

    There is also the particular problem of identifying this Court’s power under s 92 of the Adoption Act, in cases where there is a subsisting care order made by the Children’s Court, which is inconsistent with the parental responsibility order that this Court is asked to make. I have expressed the conclusion above that this Court has the power to make a parental responsibility order, but that in the exercise of its discretion it should generally not do so, if that order would be inconsistent with a subsisting order of the Children’s Court. An alternative way of looking at the matter might be to interpret s 92 as being subject to an implied limitation that there is no power to make a parental responsibility order that is inconsistent with a subsisting Children’s Court order. These considerations depend upon the correctness of my view that an order under s 92 does not automatically extinguish an inconsistent Children’s Court order, and that this Court is not given implied power to set aside the Children’s Court order.

14. [308]

    In any event, it is strange to think that this Court might be given a comprehensive power to regulate the parental responsibility for a child or young person, simply because it has refused to make an adoption order; in circumstances where there are none of the comprehensive judicial and administrative arrangements contained in the Care Act for the protection of children and young persons.

15. [309]

    There are then a number of problems with the requirement in s 90(3) of the Adoption Act that this Court must consider that adoption is clearly more preferable than any other action that may be taken in law before it can make an adoption order. The first problem arises out of arguable uncertainty as to the thought process that is required in making the preferability determination. Is the Court to decide the matter on principle having regard to the general attributes of the various alternative actions, or is the Court required to descend into the nitty-gritty of what is on offer, who will pursue it, will it be pursued, will it be implemented, and if so when and on what terms? I have preferred the latter approach, but the correctness of the former may be arguable.

16. [310]

    The problem with the former approach is that it may lead the Court to decline to make an adoption order on the ground that an adoption order is not clearly more preferable than some alternative, where in reality the alternative will never be implemented. That can hardly be in the best interests of the child or young person. The latter approach is more defensible, but it is somewhat artificial to think that this is a course that the Court can realistically follow. One difficulty is that the parties only litigate the actions that they contend should be implemented, and the other possibilities are likely to receive only rudimentary treatment.

17. [311]

    The problem would be less significant if this Court, upon a refusal to make an adoption order, had the power to immediately implement any alternative action that was sufficiently satisfactory to undermine an adoption order being clearly preferable to the particular alternative. In that case, the ability of this Court to make objective judgments about relative preferability would be realistic. Where the alternative action must be taken somewhere else, usually by means of a combination of decisions by the Secretary, the Secretary’s delegate, potential adoptive parents or carers, and the Children’s Court, the suggestion that this Court, on the evidence that happens to be before it in the particular case, will be able to determine which alternative actions are genuinely preferable is likely to be unrealistic.

18. [312]

    Among many difficulties that may arise out of the interaction between the Adoption Act and the Care Act, from the perspective of birth parents, is the length of the time that will usually elapse between the making of the administrative decision for the child to be adopted and the opportunity given to the birth parents to challenge the making of an adoption order under the Adoption Act. The present case serves as an example. IEK was taken into care on 9 December 2014. The care plan filed by the Secretary on 19 February 2015 stated affirmatively that adoption would be an appropriate outcome for IEK. The Children’s Court made an order granting parental responsibility for IEK to the Minister on 3 September 2015. That order would have been made in the knowledge that the proposal was that IEK would be placed for adoption. However, no part of the order directly related to the adoption process. An appeal by EK against the Children’s Court order could only challenge the granting of parental responsibility to the Minister. There was no convenient forum for challenging any administrative step concerning the initiation of the adoption process for IEK. IEK was placed with PAP on 19 October 2015, with the expectation of PAP and Barnardos on behalf of the Secretary that an application for an adoption order would ultimately be made. That application was made on 8 December 2017, and the hearing took place in November 2018. PAP and IEK had been forming a family attachment over the period.

19. [313]

    It is in these circumstances that the Court is required to determine whether adoption is clearly preferable to any other action that may be taken at law. In the present case, the determination must be made some four years after the care plan was prepared by the Secretary, which disclosed the original decision to proceed towards adoption. I accept this is a complicated issue, as birth parents may need time to be able to demonstrate their capacity to take parental responsibility for a child, and the child must spend time with the proposed adoptive parent or parents before he or she can develop a stable and secure relationship with them. But time is the enemy of birth parents who lose the care of their children, because, once a child has become attached to the proposed adoptive parent, it will be difficult for the Court to find that adoption is not clearly preferable to all alternative actions. Even in a case where the birth parents are able to demonstrate, at the time of the adoption hearing, an immediate capacity to take parental responsibility for the child, if that leads to the Court refusing to make the adoption order, then great grief will be caused to the aspiring adoptive parents, and often also to the child.

20. [314]

    Then, there is the problem that arises in relation to birth parents who do not agree to adoption plans that I have considered above. At the risk of repetition, I will repeat my explanation of this problem, because if I am right it is a defect in the Adoption Act that should be corrected.

21. [315]

    Section 46(2A) of the Adoption Act requires that a birth parent who has not consented to the adoption of a child be given an opportunity to participate in the development of, and agreement to, an adoption plan. The birth parent may choose not to avail him or herself of that opportunity. Even if the birth parent negotiates the adoption plan, he or she may not be happy with it and may not agree with it.

22. [316]

    Section 51(1) of the Adoption Act empowers the Court to review an adoption plan on application of one or more parties to the plan. A birth parent who has not agreed to the adoption plan will not have standing to apply for its review by the Court. That will be so whether or not the birth parent has consented to the adoption. Under sub-s (2), the Court is to give each party to the adoption who agreed to the adoption plan an opportunity to make submissions concerning the application, unless the Court otherwise determines. A birth parent who has not agreed to the adoption plan will not have a right to make submissions.

23. [317]

    Section 46(2B) of the Adoption Act deems a non-consenting birth parent who agrees to an adoption plan to be a party to the adoption for the purposes of s 51. Being a party to the adoption has no consequence for the purposes of s 51 unless the party also agreed to the adoption plan. Deeming a birth parent who does not consent to the adoption plan to be a party to the adoption makes no difference. Section 46(2B) only makes a difference in respect of s 51 for a birth parent who does not consent to the adoption but does consent to the adoption plan. It is difficult to see why, when a birth parent neither consents to the adoption nor agrees to the adoption plan, but an adoption order is nonetheless made because the Court finds that s 90(2) is satisfied, the birth parent should be precluded from applying for a review of the adoption plan and making submissions for the purposes of that review. For the reasons I outlined at pars [247]-[257] above, this is a strange result.

24. [318]

    Many of the issues that I have raised involve significant questions that may simply have to be worked out by the Court as cases come forward, but there is a case for some legislative consideration of the difficulties that may arise out of the relationship between the Care and Adoption Acts. For example, there may be advantage in considering the true effect that s 92 of the Adoption Act was intended to have, and its relationship to the orders that may be made by the Children’s Court. There is also a case for the legislature to consider whether birth parents who do not agree to adoption plans should be given standing to apply to the Court for such plans to be reviewed, and to make submissions on applications for review. The list of difficulties arising out of the relationship between the Care and Adoption Acts contained in these reasons is not intended to be exhaustive.