Adoption of MSAT

HIS HONOUR: On 30 October 2013 the applicants, who for the sake of confidentiality I shall call MTW and AWC, a married couple, filed two summonses. One sought a declaration pursuant to (NSW) Adoption Act 2000, s 117, to the effect that a "Family Fostering Agreement (Special Cases)" and a "Custody Agreement of a Foundling" between them and the Zayed Higher Organization for Humanitarian Care, Special Needs & Minors Affairs ("ZHO") in respect of the child MST born 19 June 2005, complied with s 116 (the consequence of which would be that the adoption would be recognised in New South Wales). The other summons, which was not initially proceeded with, sought an order for adoption of the child under Chapter 4 of the Adoption Act.

The child MST was born on 19 June 2005 in the United Arab Emirates. She was abandoned at birth and her parents are unknown. Although her Birth Certificate discloses the names of birth parents, the evidence establishes that these are fictitious, being the result of practice in the UAE that insists that every child have parents. (The evidence of Rebecca Kelly, an Australian lawyer who has been employed in the UAE as a senior legal consultant since 2004, is that there is no such concept as having "unknown parents" registered on official birth documentation in the UAE, and that fictitious names are customarily inserted).

The child came into the care of the Dar Zayed, which is an orphanage under the auspices of the ZHO, a foundation established under Law No 2 of 2004 of the United Arab Emirates. However, she was found to be HIV positive, and as a result was left in the care of a hospital.

The applicants travelled to the UAE for employment purposes in 2007. In the course of her work as a nurse in the hospital there, the female applicant met the child in 2008, and ultimately the applicants determined to endeavour to adopt her.

The laws of the UAE, being founded on Sharia Law, do not provide for adoption. As in most Islamic states, adoption, as understood in our system of law, is impossible. Any process that purports to alter family genealogy to change the authentic identity of an individual and potentially disadvantage legitimate children is generally frowned upon in Muslim culture. Adoption is anathema, because it involves the permanent and absolute transfer of parental rights to adoptive parents, a denial of ancestry and falsifying of bloodlines [K O'Halloran, The Politics of Adoption: International Perspectives on Law, Policy & Practice (Springer, 2nd ed, 2009)].

Until relatively recently, fostering arrangements in the UAE were made outside formal government guidelines. However, in 2010, the UAE implemented legislation to formalise foster family status and provide formally for the fostering of abandoned or orphaned children, so as to guarantee their rights and protect their interests [DE Miller, “UAE comes to aid of growing numbers of parentless children" The Medias Line, 4 November 2010; Government of the United Arab Emirates, Ministry of Social Affairs website, Completed Initiatives].

On 16 February 2010, the applicants and the Dar Zayed entered into a "Family Fostering Agreement (Special Cases)”, which recited that the applicants were qualified to foster, and desirous of fostering, a child, and recorded that, with the approval of the Higher Bodies, the parties had agreed that:

On 2 August 2010, the applicants applied for a child migrant class AH subclass 102 Adoption Visa to permit the child to reside in Australia. Eligibility in that subclass is governed by clause 102.211 of Schedule 2 to the (Cth) Migration Regulations 1994, which relevantly provides as follows:

The Migration Regulations, reg 1.04, defines "adoption", for the purposes of those regulations, as follows:

The Visa application was initially unsuccessful. The delegate refused the Visa application on the basis that the child did not satisfy subparagraph 2(d) of clause 102.211, because the adoptive parents had not lawfully acquired "full and permanent parental rights by the adoption".

On 4 November 2010, the applicants applied to the Migration Review Tribunal for a review of the delegate's decision. While the review application was pending, the applicants and the ZHO on 15 February 2011 entered into a “custody agreement of a foundling”, by which the ZHO confirmed that the child was born on 19 June 2005 of unknown parents and was affiliated with the Dar, that the child was in the custody of the applicants who had taken custody of the child, and that the Dar gave up all its custodian and guardian rights in accordance with the family fostering contract, and provided that liability for all matters relating to the child was handed over to the applicants. It contained a "custody plan" in relation to the wishes of the Dar, which made provision for the exchange of information about the child and how she was to be assisted to develop a healthy and positive cultural identity and for links to her heritage and religion to be fostered, but this was expressed to be "without limiting the ability of the applicants to make all decisions in relation to the child's custody, just as in any other natural family". This agreement further provided:

In the light of that document and other evidence, the Migration Review Tribunal found that formal adoption arrangements had been made in accordance with the law of the UAE and, in particular, that the child's natural parents ceased to be recognised as the natural parents and the applicants became so recognised under that arrangement so that there was an adoption within the definition. The Tribunal then found that the applicants had lawfully acquired full and permanent parental rights. The Tribunal remitted the application to the delegate for determination in accordance with its direction, and in due course the child was granted a Visa.

As I have said, the Court was initially asked to consider the application under s 117 for a declaration of the validity of the UAE adoption. The Adoption Act provides for the recognition in this jurisdiction of foreign adoptions. In the case of adoptions made in countries other than convention countries and prescribed overseas jurisdictions – and the UAE is neither a convention country nor a prescribed overseas jurisdiction – this is covered by s 116 and s 117, which relevantly provide as follows:

It is important to recognise that the question for this Court on an application for a declaration under s 117 is not the same as that under the (Cth) Migration Act 1958 and Migration Regulations. Nor does the definition in the Migration Regulations apply in proceedings in this Court. Nor does the definition in the Migration Regulations govern the interpretation of provisions in the Adoption Act of the State of New South Wales.

In connection with applications for declarations of validity under s 117, the rules of this Court require that notice be given to the Director-General. (NSW) Uniform Civil Procedure Rules 2005, r 56.10, relevantly provides as follows:

No such notice had been given when the matter first came before the Court. Had the matter proceeded under s 117, such notice would have been necessary. In any event, the Secretary, as the Director-General is now known, has since been notified of the application.

Section 116(5) apparently creates a rebuttable presumption that an order for the adoption of a person made in a country outside Australia that is not a convention country or a prescribed overseas jurisdiction, complies with subsection (1). Although one does not readily construe legislation on the basis that it is mistaken, in my view the legislative history – including the predecessor section in (NSW) Adoption of Children Act 1965, s 46, the context provided by the equivalent legislation in the other States, and the absence of any indication of legislative intent to depart from that history and context – makes it tolerably clear that this was intended to be a reference to subsection (2), not to subsection (1).

In any event, I was satisfied for the purposes of subsection (1) that, at the time when the legal steps that resulted in the “adoption” were commenced, the applicants had been resident in the UAE for more than twelve months, having been resident there since 2007. I was also satisfied, for the purpose of subsection (2), that the adoption, such as it was, was in accordance with and had not been rescinded under the law of the UAE and that, as a consequence, the adoptive parents under the law of the UAE had a superior right to anyone else to the custody the child. I did not consider that there was any such denial of natural justice or substantial justice as would warrant refusing to recognise the adoption under subsection (3).

However, more difficult questions were posed as to whether the adoption under the law of the UAE placed the adoptive parents generally in relation to the child in the position of parents, and whether s 116 is capable of applying to an adoption effected otherwise than by an order of the Court.

Section 116 applies to an order for the adoption of a person. Section 117(1) confers standing on any of the parties to an adoption under an order made outside Australia. A question therefore arises whether in this case there was any such order that would attract those sections. Section 116 differs from its predecessor, Adoption of Children Act 1965, s 46, which referred to "the adoption of a person", rather than to "an order for the adoption" or "adoption under an order", and thus may not have been limited to adoptions effected or sanctioned by order of a court, tribunal or similar authority.

In my view, the proper construction of the current section requires that it be read as limited to adoptions effected or sanctioned by some judicial or administrative order – not necessarily of the Court, but nonetheless a formal authoritative pronouncement. This accords with the statutory history of adoption in the common law world, commencing with the Massachusetts Act and subsequently reflected in Acts in New Zealand, England and the States of Australia, have always involved an order of a court as an essential part of the process. An agreement by which one guardian hands over guardianship to another does not satisfy that criteria.

Further, s 116(2) requires, as did its predecessor Adoption of Children Act, s 46(2)(d), that under the law of the country where the adoption took place, the adopters were, by virtue of the adoption, placed generally in relation to the adopted person in the position of parents. It is important to recognise that this is not identical to the question that faced the Migration Review Tribunal, which found that formal adoption arrangements had been made in accordance with the law of the UAE and, in particular, that the child's natural parents ceased to be recognised as her natural parents and the applicants became so recognised under that arrangement, so that there was an "adoption" within the definition under which the applicants had lawfully acquired full and permanent parental rights. In any event, I am bound on this application to form my own conclusion.

For my part, I doubt that it can be said, as the Tribunal did, that there were "formal adoption arrangements made in accordance with the law of another country being arrangements under which the persons who were recognised by law as parents of the adoptee before those arrangements took effect, ceased to be so recognised and the adopter became so recognised", within r 1.04(1)(b). Nothing in the documentation states as much and the concluding paragraph of the custody agreement, which I have recited above, implies that, at least until relevant orders are made in Australia, the Dar retains some legal rights as guardian and that the child might not yet be "for all legal purposes" the child of the applicants. The arrangements transferred rights of custody, guardianship and parental responsibility, but did not extinguish parenthood. Indeed, it would have been inconsistent with Sharia Law for it to do so.

However, I would have accepted for the purposes of Migration Regulations that, instead, r 1.04 (c) was satisfied, in that there were "other arrangements entered into outside Australia that under sub-regulation (2) are taken to be in the nature of adoption", being arrangements made in accordance with the usual practice or recognised custom in the culture of the adoptee under which the child/parent relationship between the adoptee and adopter was significantly closer than any such relationship between the adoptee and any other person, and formal adoption was not available under the law of the place where the arrangements were made and the arrangements were not contrived to circumvent Australian migration requirements.

On that basis, I would agree with the Migration Review Tribunal that the applicants lawfully acquired full and permanent parental rights. However, that is not to say that for the purposes of Adoption Act, s 116 (2)(c), the adopters were, by virtue of the adoption, placed generally in relation to the adopted person in the position of parents.

In Re M and the Adoption of Children Act (1989) 13 Fam LR 333, Young J, as the later Chief Judge in Equity and Judge of Appeal then was, held that, although s 46(2)(d) did not require that every incident of the parent/child relationship be present, it did require the adopters to have greater rights with respect to the child than a mere right of custody, and that, because on the evidence, Thai law neither severed the formal bond between natural parent and child nor gave a right of inheritance in respect of Thai immovables to the child in respect of the adoptive parents, it could not be said that for the purposes of s 46(2)(d) the child was placed generally in the position of a child of the adopters.

In Bouton v Labiche (1994) 33 NSWLR 225, Kirby P described Re M as "a sensible and accurate decision", but agreed with the primary judge, Powell J, as he then was, that it could be distinguished in the case of a Mauritian adoption under which the adoption order created rights between the child and the adopters that went beyond a guardianship order that had previously been made, although the child did not lose her rights of succession from her natural father in Mauritius. Kirby P explained that the term "placed generally" was used to permit the Court to make a judgment concerning the post-adoption relationship and the ordinary relationship of parents to children, in recognition of the wide variety in the particular incidents of the adoption relationship under the laws of other countries.

In Public Trustee v Kehagias [2009] NSWSC 972, McLaughlin AsJ considered a Greek adoption under which the adoptee gained the right to use the surname of his adoptive parents (being his aunt and uncle) as well his existing surname and the rights of a child in terms of inheritance from his adoptive parents; but the adoptive parents gained no right to inherit from him and the adoption created no family relationship between him and the relatives of his adoptive parents, nor between the adoptive parents and the adoptee's relatives. His Honour declined to give recognition to the adoption:

In my view, while the "adoption" arrangements in this case confer extensive parental rights and responsibilities on the adopters, they do not extinguish any pre-existing parental relationship, nor substitute the adopters as legal parents under the law of the UAE. Notwithstanding my inclination that the presumption referred to in s 116(5) was intended to operate in respect of s 116(2), here "the contrary appears from the evidence". The so-called adoption arrangements in the UAE do not purport to be an adoption as we would understand it. In my view, under the law of the UAE, the arrangements established a relationship under which the applicants had full parental responsibility for, but did not legally become the parents of, the child. This is unsurprising, because Sharia law would not countenance the latter. That no more could be done under the law of the UAE cannot affect the conclusion that the "adoption" did not, under that law, place the adoptive parents generally in relation to the child in the position of parents.

For that reason, even if s 116 extended to "adoptions" effected otherwise than by "order", the UAE Adoption would not be entitled to recognition under s 116(2)(c).

I was therefore inclined to the view that the UAE adoption was not entitled to recognition under s 116. When these issues were drawn to the attention of the applicants, they determined, in my view correctly, to apply afresh for an adoption order under Chapter 4. To the extent necessary, I give leave under s 116(4) to the applicants to seek an order for the adoption of the child.

The applicants have, as I have said, renewed the application originally made by the summons that was not proceeded with for an adoption order. Consent to their making the application has been given for the purposes of s 87(1)(a) by the relevant delegate on behalf of the Secretary. As the child is a non-citizen child, the Commonwealth Minister for Immigration is her guardian [Re DYK & The Adoption Act 2000 [2005] NSWSC 1045], and consent has been given on behalf of that Minister, as guardian, and an order also made under (Cth) Immigration (Guardianship of Children) Act 1946, s 11, to take effect from the date that an adoption order is made. The birth parents are unknown and there is no prospect that further reasonable inquiry would identify them.

The s 91 report demonstrates that the applicants are superb parents who are devoted to this child, that the child is firmly bonded to them, that they are attuned to her cultural and religious background and are supporting her in learning it, that she is flourishing in their care, and that they have highly appropriate plans in place to deal with the special needs that her HIV status will bring with it.

Adoption Act, s 31, provides as follows:

The applicants have "inter-country parental responsibility" for the child within the meaning of the definition in subsection 2. At first sight, that seems to mean that the Court must not make an adoption order in relation to such a child, except on the application of the Director-General, as this is not a case in which arrangements for the adoption were made by the Director-General or an accredited adoption service provider.

However, s 87, which relevantly provides that an adoption order may be made only on application by the prospective adoptive parents, with the consent of the Director-General, or the Director-General or a principal officer on behalf of the prospective adoptive parent, or parents, indicates that the contemplation was that the Director-General had to consent to an application if the Director-General was not herself the applicant.

The purpose of s 31(1)(a), as it seems to me, is to ensure that, where an application is made for an adoption of a child for which the proposed adoptive parents have inter-country parental responsibility, the Director-General must be involved. I do not think that s 31 was intended to exclude the possibility that the prospective adoptive parents might formally make the application, albeit with the consent of the Director-General.

This conclusion is fortified by s 116(4), which provides that a court that refuses to recognise an adoption may, at the time of that refusal, or a later time, give leave to the applicant to seek an order for the adoption of the child concerned. The applicant under s 117 may be any of the parties to an adoption under an order made outside Australia. It seems to me that the purpose of s 116(4), at least in part, is to enable a party to an adoption outside Australia, where the court was not satisfied of the matters required to support a declaration of validity, to be given leave to apply for an adoption in New South Wales.

As I have said, I do not think s 31(1)(a) was intended to insist that the Director-General be the plaintiff, and that the requirements are sufficiently met in the light of s 116(4) and s 87(1) if the Director-General's consent has been given, as it has been. That the Director-General is fully aware of the circumstances is apparent from the delegate's affidavit of 1 October 2014, paragraph 4, which deposes that the secretary's delegate has consented to the proposed adoptive parents making an adoption application, annexes that consent and, in paragraph 8, asks the Court to note that the proposed adoptive parents' solicitor is preparing the adoption application.

I am satisfied that taking into account all relevant matters referred to in s 8 – and, in particular, the attitude of each proposed adoptive parent to the child and to the responsibilities of parenthood, the nature of the relationship with the child with each proposed adoptive parent and suitability and the capacity of each proposed adoptive parent to provide for the needs of the child, including her emotional and intellectual needs – the best interests of the child will be promoted by adoption by the proposed adoptive parents.

I am satisfied that, as far as practicable, and having regard to the age and understanding of the child, her wishes and feelings have been ascertained and due consideration given to them.

I am satisfied that the prospective adoptive parents have been selected in accordance with the Act.

I am satisfied that consent to the adoption of the child has been given by every person whose consent is required under the Act, or that such consent should be dispensed with, for reasons to which I will shall come.

I am satisfied that, with respect to the child, being a non-citizen child from a country other than a Convention country outside Australia, the applicable requirements of this Act and any other relevant law have been satisfied.

I am satisfied that the culture, disability, language and religion of the child and, so far as possible, her given names, identity, language and cultural and religious ties have been taken into account.

I consider 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.

I am satisfied that the child's natural father and mother cannot, after reasonable enquiry, be identified. I am further satisfied that to make a consent dispense order is in the best interests of the child. I am satisfied that notice of application for a consent dispense order need not be given because s 72(1) does not apply, as the persons whose consent is sought to be dispensed with cannot, after reasonable enquiry, be identified. Accordingly, I will make an order pursuant to s 67 that the consent of the child's natural father and mother be dispensed with.

Pursuant to s 88(4), I will dispense with the giving of notice under s 88(1) to the child's natural mother and father.

The child is to have the surname AT and the given names MMSR.

In changing the given names of the child, I have considered and taken into account the circumstance that the child has been known by the first name M effectively since her birth. The child, being more than one year old and a non-citizen child, I am satisfied that the change in the given names of the child is in her best interests, particularly as her other given names will be preserved, as will her surname, and is, therefore, not inconsistent with the principle referred to in s 8, that a child's names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved.

Accordingly, the Court orders: