The Adoption of Johanna (a pseudonym)

The Principal Officer of Anglicare Community Services seeks an order that a child, who I will refer to as “Johanna” (not her real name), be adopted by a couple to whom I will refer as “the Proposed Adoptive Parents”.

Johanna is 17 years of age. She will turn 18 next month.

Johanna has lived with the Proposed Adoptive Parents since April 2008, at which time she was two years of age.

As long ago as 12 January 2009, the Children’s Court of New South Wales made final orders providing for Johanna to be placed under the parental responsibility of the relevant Minister until she attains the age of 18 years, pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Care Act”).

Johanna’s birth mother has been joined as a defendant to the proceedings. Johanna’s father is believed to have died in 2012.

Johanna has a significant number of medical diagnoses which limit her capacity to understand and consider complex information and questions. These diagnoses include cerebral palsy, intellectual impairment and global developmental delay. Johanna has been assessed as having a developmental age of 12 months. She has a diagnosis of developmental encephalopathy, meaning she has severe and significant developmental delays.

On 14 June 2023, I made an order, on the application of the Principal Officer, dispensing with the requirement that Johanna consent to her proposed adoption. I made that order pursuant to s 69(1) of the Adoption Act 2000 (NSW) (“the Act”).

Johanna’s mother appeared on the application. Although Johanna’s mother has made it very clear that she opposes the proposed adoption by the Proposed Adoptive Parents of Johanna, she did not oppose the making of an order dispensing with Johanna’s consent to any such adoption.

Section 55 of the Act provides:

The effect of this section is that a child who is 12 or more, but less than 18 years of age, is required to give consent to their adoption unless the Court dispenses with the giving of consent [1] or, if a child is incapable of giving consent and the Court is satisfied that the circumstances are “exceptional”, that it would be in the best interests of the child to make the order. [2]

In my opinion, on the proper construction of s 55, it would not be possible for the Court to make an order under s 55(2), assuming it was otherwise appropriate to do so, once the child in question turned 18. That is because the Court’s power under s 55(2) is in relation to “such a child”. That means, in my opinion, a child referred to in the chapeau of s 55(1), being a child who is “12 or more but less than 18 years of age”.

I am not yet in a position to make a decision as to whether there are “exceptional” circumstances for the purpose of s 55(2).

Section 69 of the Act provides, relevantly:

Again, the Court’s power here is only available if the child in question is 12 or more but less than 18 years of age. However, under s 69(1), the Court’s power to make a consent dispense order is not premised upon the existence of “exceptional” circumstances but rather on the Court being satisfied that, relevantly to this application, the child is in such a mental condition as not to be able properly to consider the question of whether she should give consent.

The evidence clearly established that Johanna has medical conditions that render her incapable of properly considering the question of her own adoption.

Accordingly, I made the order to which I have referred.

The adoption application will now proceed in the usual way.

A preliminary hearing under s 80 of the Act has been fixed for 29 August 2023.