Adoption Order Made for Child's Best Interests

The Court made an adoption order for a child, despite objections from the child's mother, based on the best interests of the child and the suitability of the adoptive parent. The Court considered the child's welfare under state legislation and determined that adoption was clearly preferable to all alternatives available by law.

Supreme Court New South Wales

Medium Neutral Citation: Adoption of IEK [2019] NSWSC 171 Hearing dates: 26 – 28 November 2018 Date of orders: 01 March 2019 Decision date: 01 March 2019 Jurisdiction: Equity - Adoptions List Before: Robb J Decision: (1) [ADDRESS] makes orders in terms of prayers 1 and 2 of the summons.

(2) Subject to the Court being satisfied with the revised maternal adoption plan to be provided in accordance with par (3), in accordance with the requirements of s 90(2) of the Adoption Act 2000 (NSW), the Court will make orders in the terms of prayers 3 to 6 of the summons.

(3) The Secretary, by his delegate, the [NAME], together with the [NAME] and the [NAME] are directed to confer for the purpose of seeking to agree upon the terms of a revised maternal adoption plan in accordance with the reasons for judgment, and in particular par 294.

(4) The persons referred to in par (3) are directed to inform the Associate to Robb J within four weeks of the publication of these reasons for judgment of the position reached between them concerning the preparation of a revised maternal adoption plan for the purpose of the Court making such directions for the further conduct of the proceedings as may be [NAME], and if necessary the determination of the terms of an [NAME] maternal adoption plan. Catchwords: FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – contested adoption – whether an adoption order should be made – whether the best interests of the child will be promoted by the adoption – whether adoption is clearly preferable to all alternatives that may be available by law

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – sole parental responsibility order – Adoption Act 2000 (NSW) section 92 – powers of the Court – the extent of the power of the Court to make 'orders in relation to the parental responsibility for the [NAME] as it thinks fit'

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – consent to adoption – whether the consent to the making of the adoption order by the [NAME] should be dispensed with

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – adoption – adoption plan – whether the arrangements in the adoption plan are in the [NAME] best interests and are proper in the circumstances Legislation Cited: Adoption Act 2000 (NSW) Adoption of Children Act 1965 (NSW) Adoption Regulation 2015 (NSW) Births, Deaths and Marriages Registration Act 1995 (NSW) Child Protection Legislation Amendment Act 2014 (NSW) [NAME] (Care and Protection) Act 1998 (NSW) [NAME] (Care and Protection) Amendment Act 2018 (NSW) Family Law Act 1975 (Cth) Status of Children Act 1996 (NSW) Cases Cited: Adoption of BS (No 3) [2013] NSWSC 2033 Adoption of J [2016] NSWSC 1098 Adoption of [NAME] (No 2) [2014] NSWSC 680 Adoption of [NAME] [2015] NSWSC 813 Adoption of SVS [2015] NSWSC 2043 [NAME] v Secretary, Department of Family and Community [COMPANY] [2015] NSWCA 105 D v Director-[NAME] Department of Community [COMPANY] [2005] NSWCA 474; (2005) 34 Fam LR 445 Department of Community Services v D [2004] NSWSC 1241; 33 Fam LR 555 Director-[NAME] of the Department of Community Services v Priestley [2004] NSWSC 639 In the marriage of [NAME] and [NAME] [1978] FamCA 84; [1979] FLC 90-725; (1978) 6 Fam LR 570 Re Adoption of JLK and CRK [2017] NSWSC 7 Re [NAME] (2008) 71 NSWLR 573; [2008] NSWSC 379 Re [NAME] and [NAME] [2009] NSWSC 133; (2009) 40 Fam LR 608 Re [NAME] (No 2) [2008] NSWSC 1387; (2008) 40 Fam LR 247 Re Liam [2005] NSWSC 75; (2005) 33 Fam LR 86 Re the Adoption of AJH [2017] NSWSC 1751 Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157 Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19 [NAME] v Department of Family & Community [COMPANY] [2015] NSWSC 694 Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27 Texts Cited: [NAME] and [NAME], "Adoption reforms New South Wales style: A comparative look" (2016) 30 Australian Journal of Family Law 51 Category: [NAME] judgment Parties: The Secretary, New South Wales, Department of Family and Community [COMPANY] by his delegate, [NAME] (Plaintiff) DSC (First Defendant) [NAME] (Second Defendant) Representation: Counsel: [redacted] G Hill (Second Defendant)

Solicitors: [redacted] [NAME] (Second Defendant) File Number(s): A190/2017

Judgment 1. The Secretary, New South Wales Department of Family and Community [COMPANY] ([NAME]), commenced these proceedings for the making of an adoption order and certain related relief by his delegate, the [NAME], on 8 December 2017.

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 [DATE].

3. The [NAME] 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 [NAME].

4. IEK has a maternal half-sibling, her brother [NAME], and a paternal half-sibling, her brother SJC.

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

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 [NAME] 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. By his summons, the Secretary asks the Court to make the following orders:

1. A declaration pursuant to Status of Children Act 1996, s 21(2) that [DSC] is the father of [IEK].

2. An order pursuant to Births, Deaths and Marriages Registration Act 1995 s 19(2), for the inclusion of [DSC] as the father of [IEK] in the Register of Births, Deaths and Marriages.

3. That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the [NAME], [[NAME]] be dispensed with.

4. That pursuant to Adoption Act 2000, s 67(1)(d), the consent of the [NAME] father, [DSC] be dispensed with.

5. An order for the adoption of the child [IEK] in favour of the adopting [NAME] [[NAME]].

6. An order approving the name "[P]" as the surname and "[IEK]" as the given names of the child.

1. 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 [NAME] 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 [NAME] father in the Register of Births, Deaths and Marriages.

2. The Secretary has prosecuted these proceedings by his delegate, the [NAME], and was represented by counsel at the hearing. DSC did not file an appearance and was not represented at the hearing. [NAME] 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 [NAME] related relief in-so-far as it was relevant to [NAME]'s position.

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

4. On the [NAME] hand, [NAME] 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 [NAME] 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. 5. [NAME] 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. [NAME] 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. [NAME] 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 [NAME] as it thinks fit" if it refuses to make the adoption orders sought by the Secretary.

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

7. There are [NAME] 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. 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, [NAME], as this will facilitate the identification of the principle issues.

2. As I have said, IEK was born on [DATE]. She was not assumed into the Minister's care for some two years, so for that period she was in the care of [NAME].

3. The evidence of the Delegate, [NAME], was that between 20 June 2012 and 9 December 2014 [NAME] received 12 risk of significant harm reports and five non-risk of significant harm reports regarding the child.

4. 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 [NAME] father) towards the mother and that the mother was sexually assaulted in the [NAME] presence. 5. [NAME] received a risk of significant harm report on 5 December 2014 and a non-risk of significant harm report on 8 December 2014.

6. 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. 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. On 9 December 2014, [NAME] 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 [NAME] authorised [NAME].

9. 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. The Children's Court made interim orders for parental responsibility for the child to be allocated to the Minister on 16 December 2014. 11. [NAME] participated in the proceedings and was legally represented.

12. On 19 February 2015, the Secretary filed a care plan pursuant to s 78 of the [NAME] (Care and Protection) Act 1998 (NSW) (Care Act). In par 5.1 of the care plan, the Secretary stated that [NAME] 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: [[NAME]] presents as a [NAME] who loves her daughter [IEK] but who at times has struggled to care for her appropriately due to her own mental health and well-being; her drug and alcohol misuse, both of which are likely impacted by her own trauma history. This has left [[NAME]] unable to prioritise [IEK's] needs over her own.

1. 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 [NAME] person has been [NAME] by [[NAME]] to be assessed to take on the role of [NAME] of [IEK]". This is a reference to the possibility that a [NAME] could have been appointed for the child under ss 79A and 79B of the Care Act.

2. 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: In the event that the Court determines there is not a realistic possibility of the restoration of [IEK] to the care of [[NAME]], adoption will be considered as part of [IEK's] case plan goal. Given [IEK's] young age, this will provide [IEK] with a permanent home, with permanent care givers; it will offer [IEK] safety, security and connection to a family structure in which she can grow and develop.

1. The Secretary noted that [NAME] sought restoration of the child to her care.

2. 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. 3. [NAME] was assessed and approved as a permanent [NAME] with a view to adoption on 2 July 2015.

4. On 3 September 2015, the Children's Court made the following orders in respect of IEK: The Children's Court orders as follows:

1. Pursuant to section 79(1)(b) that parental responsibility for [IEK] born 25 October 2012 is allocated to the [Minister] until she attains the age of eighteen (18) years.

2. Pursuant to section 81(1)(b) that all aspects of parental responsibility for [IEK] are allocated solely to [the Minister] until she attains the age of eighteen (18) years.

3. Pursuant to section 82 the Secretary is to file a report detailing [IEK's] settlement in her permanent placement and contact with the mother at six (6) months from the date of final orders.

1. On 25 September 2015, matching approval was given for [NAME] and the child, and IEK was placed with [NAME] on 19 October 2015. 2. [NAME] was born on [DATE] and assumed into care on 8 May 2017.

3. On 8 December 2017, [NAME] 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.

4. The Children's Court dismissed [NAME]'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 [NAME] who was [NAME] when the reasons were given and stated: [ADDRESS] found that although there was a significant change in relevant circumstances as the mother had been engaging with drug rehabilitation, and alcohol abstinence. However, the mother did not have an arguable case as required by s 90(2A) as the mother had not addressed in her application, how she would address [IEK's] needs and those of the year old child ([[NAME]]) being placed together with her, the risk of psychological harm to [IEK] given her attachment to her [NAME] long-term [NAME], and the attachment difficulties she displayed when aged 4 1/2. 1. [NAME] 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.

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

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

4. The Children's Court made the following final orders concerning [NAME] on 9 November 2018 (Exhibit P4): [ADDRESS] orders:

1. Pursuant to section 79 of the [Care Act], all aspects of parental responsibility for [[NAME]] are allocated to [the Minister] for a period of 6 months.

2. At the conclusion of order 1 and pursuant to section 79 of the [Care Act], all aspects of parental responsibility for [[NAME]] are jointly allocated to [the Minister] and the mother [[NAME]] for a period of 6 months.

3. At the conclusion of order 2 and pursuant to section 79 of the [Care Act], all aspects of parental responsibility for [[NAME]] are allocated to [[NAME]] to the exclusion of the Father, unknown, until the child reaches the age of 18 years.

4. Pursuant to section 82 of the [Care Act], the [Secretary] is to provide a report to the Court at 10 months(s) (on or before 9 September 2019) concerning the suitability of the arrangements for the care and protection of [[NAME]] including, but not confined to, the following issues: a) the progress in implementing the Care Plan; b) the progress of [[NAME]] in his mother's care, including his [NAME] development; and c) the mother's engagement with any [COMPANY].

5. Pursuant to section 76(1) of the [Care Act], [[NAME]] is placed under the supervision of the [Secretary] commencing 10 November 2019 for a period of 12 months from 10 November 2019.

6. Pursuant to section 76(4) of the [Care Act], the [Secretary] is to provide a report to the Court on or before 10 September 2020 after the commencement of the supervision order addressing the following issues: (i) The outcomes of supervision; (ii) Whether the purposes of supervision have been achieved; (iii) Whether there is a need for further supervision in order to protect the child; and (iv) Whether any [NAME] orders should be made to protect the child. 1. [NAME]'s care plan, which was filed in the Children's Court on 2 November 2018, included the following statements (Exhibit P5): [[NAME]] appears able to recognise that there are child protection concerns in relation to how she has parented in the past and has spoken about the sudden death of her mother being a precursor for her past issues with alcohol use. She is able to recognise that she needs support to manage being a full-time mother again and is able to articulate what supports she might need. [[NAME]] has spoken about her need to continue to engage with psychological support [COMPANY] to work on her grief and loss as a result of her mother's death and [IEK's] impending adoption. … [[NAME]] are now of the view that there is a realistic possibility of [[NAME]] being restored to [[NAME]]… [[NAME]] appears to have demonstrated a lengthy period of abstinence from alcohol and remains engaged with her drug and alcohol support [COMPANY]… [[NAME]] has consistently and repeatedly maintained that she wants [[NAME]] in her care and is currently residing in [NAME] housing.

1. The care plan itemised [NAME]'s needs and gave the following reasons as to why restoration was being considered: Restoration of [[NAME]] to the mother [[NAME]'s] care is being considered as the mother has been actively engaging with [[NAME]] and [NAME] support [COMPANY]. [[NAME]] worked with a housing support worker to assist her with gaining a Housing transfer and with securing an [NAME] property and household necessities. [[NAME]] has attended recent CDT and urinalysis testing which has been negative for all drugs and for excessive alcohol use. [[NAME]] appears to be committed to abstaining from alcohol and is able to talk to caseworkers about her triggers. [[NAME]] has been attending contact with [[NAME]] and [NAME] reports that these contact visits are positive experiences for [[NAME]]. [[NAME]] wants [[NAME]] in her care and appears to be committed to working with [[NAME]] and [NAME] to keep [[NAME]] safe.

1. 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.

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

3. The restoration process for [NAME] 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.

4. This history of the implementation of the Care Act in relation to [NAME] gives rise to the following issues that are significant to the resolution of the [NAME] case: 1. [ADDRESS] must consider whether there is a realistic possibility that IEK could be restored to the care of [NAME], 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 [NAME] has accepted, and the Children's Court has found, that there is a realistic possibility of [NAME] being restored to [NAME].

2. While the Children's Court has actually made orders that contemplate that, ultimately, parental responsibility for [NAME] will be given solely to [NAME], 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 [NAME] to [NAME]'s care. Consequently, it may not be known until as late as 10 September 2020 whether there has been success in the restoration of [NAME] to [NAME].

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. Although there is no impediment to [NAME] 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 [NAME] 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. Before I address the relevant provisions of the Adoption Act, it will be [NAME] 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 [NAME].

2. 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 [NAME] jurisdiction for the protection of [NAME] under the Care Act, as exercised by the specialist Children's Court.

3. It is proper that I acknowledge my indebtedness to the paper written by [NAME] and [NAME]: Adoption reforms New South Wales style: A comparative look (2016) 30 Australian Journal of Family Law 51 ([NAME]). I have found [NAME] 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 [NAME] 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. It is [NAME] 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. [NAME] 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): Over the same period, there has been a sharp increase in the number of children in out-of-home care in Australia, doubling since 2004, from 21,795 to 43,399 in 2015…" 1. [NAME] conclude at 53: "Very few children in Australia are adopted from out-of-home care". 2. [NAME] make the following observations about recent reforms in New South Wales, at 53 and 54: In New South Wales, the adoption of children from out-of-home care is regulated under two statutes. If the Children's Court makes a finding under the [NAME] (Care and Protection) Act 1998 (NSW) that there is no reasonable possibility of restoration (RPOR) of the child to their parents, then the court must determine an [NAME] placement, which may include adoption. [NAME], including authorised [NAME], must then make an application to adopt [NAME] under the Adoption Act 2000 (NSW) (the Act). Applications for adoption in the Supreme Court can take some time to be finalised, particularly where parents do not consent to the adoption. Recent reforms of the legislation in New South Wales indicate a shift in emphasis in government policy and a preference for adoption over long-term foster care for children under the parental responsibility of the Minister. The aim of these reforms is to strengthen permanency planning practice to ensure stable permanent homes for children. For children who cannot be returned home safely to their [NAME]/s, the first option to be considered is a long-term guardianship arrangement with [NAME] family members or suitable persons in kinship or relative care. The next option to be considered is adoption by non-relatives and [NAME], with parental responsibility to the Minister until [NAME] turns 18 (generally meaning foster care with unknown persons) as the 'last resort'.

1. The authors then refer to two important changes that will affect parents and [NAME] 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 [NAME] 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. 2. [NAME] give the following explanation about the reason for the change of government policy and the amendment to the legislation at 55: A key rationale for these changes was the stated need for children who cannot live safely at home to have 'a long-term, safe, nurturing, stable and secure placement', with timely decision-making.

1. The very idea that the Court should make an adoption order in respect of [NAME] over the objection of [NAME], 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 [NAME] 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 [NAME] to the [NAME] or [NAME], but the change is made openly in a way that acknowledges the reality of the [NAME] parentage, and attempts to facilitate the maintenance of an emotional bond between the child and the [NAME].

2. Be this as it may, government policy and judicial aspirations do not reduce the difficulty of the process. As to this, [NAME] say at 56: The push for more timely decisions as to whether to place children in a secure long-term 'family for life' is, however, often at odds with the time that parents need to make the changes required to become a 'good enough' [NAME]. This tension is exacerbated where rehabilitative and support [COMPANY] for parents are hard to access in a timely manner. The tension between the conflicting needs of parents and children in these circumstances is brought to a head by the application to make long-term orders for children, and more so if the [NAME] orders involve severing the legal relationship between parents and their children via adoption. There are no easy answers and different jurisdictions have tried varied approaches to 'permanency planning' over several decades in their attempts to find an [NAME] balance.

Relevant provisions of the Care Act 1. 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. 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 [NAME] (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. The objects of the Care Act, as stated in s 8, are as follows: 8 What are the objects of this Act? The objects of this Act are to provide: (a) that [NAME] receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or [NAME] persons responsible for them, and (a1) recognition that the primary means of providing for the safety, welfare and well-being of [NAME] is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and (b) that all institutions, [COMPANY] and facilities responsible for the care and protection of [NAME] provide an environment for them that is free of violence and exploitation and provide [COMPANY] that foster their health, developmental needs, spirituality, self-respect and dignity, and (c) that [NAME] assistance is rendered to parents and [NAME] persons responsible for [NAME] in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

1. 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 [NAME] 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 [NAME] towards permanent placement.

2. Section 9 sets out principles for the administration of the Care Act, including at s 9(2)(e): If a [NAME] is placed in out-of-home care, arrangements should be made, in a timely manner, to ensure the provision of a safe, nurturing, stable and secure environment, recognising the [NAME]'s circumstances and that, the younger the age of the child, the greater the need for early decisions to be made in relation to a permanent placement.

1. 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.

2. Section 9(2)(g) was inserted by the Amendment Act. It provides: If a [NAME] is placed in out-of-home care, the permanent placement principles are to guide all actions and decisions made under this Act (whether by legal or administrative process) regarding permanent placement of the [NAME].

1. That is an unambiguous legislative requirement that where a [NAME] 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.

2. 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 [NAME].

3. The Amendment Act also inserted s 10A that sets out the permanent placement principles in the following terms: 10A Permanent placement principles (1) In this Act: permanent placement means a long-term placement following the removal of a [NAME] from the care of a [NAME] pursuant to this Act that provides a safe, nurturing, stable and secure environment for the [NAME]. (2) Subject to the objects in section 8 and the principles in section 9, a [NAME] who needs permanent placement is to be placed in accordance with the permanent placement principles. (3) The permanent placement principles are as follows: (a) if it is practicable and in the best interests of a [NAME], the first preference for permanent placement of the [NAME] is for the [NAME] to be restored to the care of his or her [NAME] (within the meaning of section 83) or parents so as to preserve the family relationship, (b) if it is not practicable or in the best interests of the [NAME] to be placed in accordance with paragraph (a), the second preference for permanent placement of the [NAME] is guardianship of a relative, kin or [NAME] suitable person, (c) if it is not practicable or in the best interests of the [NAME] to be placed in accordance with paragraph (a) or (b), the next preference is (except in the case of an Aboriginal or [NAME]) for the [NAME] to be adopted, (d) if it is not practicable or in the best interests of the [NAME] to be placed in accordance with paragraph (a), (b) or (c), the last preference is for the [NAME] to be placed under the parental responsibility of the Minister under this Act or any [NAME] law, (e) if it is not practicable or in the best interests of an Aboriginal or [NAME] to be placed in accordance with paragraph (a), (b) or (d), the last preference is for the [NAME] to be adopted.

1. 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 [NAME], guardianship by a relative, kin or [NAME] suitable person, adoption, and then the grant of parental responsibility to the Minister.

2. 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 [NAME] relationship between the child and the [NAME]. Although it may not be clear from the terms of the Care Act itself, the [COMPANY], 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 [NAME]".

3. As it happens, [NAME] does not have family in Australia, so that the appointment of a [NAME] by the Children's Court was not considered to be [NAME]. 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 [NAME] position for an adoption order made by the Supreme Court).

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

5. The care plan must make provision, among [NAME] things, for the kind of placement [NAME] to be sought for the [NAME], including "how it relates in [NAME] terms to permanency planning for the [NAME]": see s 78(2)(b)(i).

6. 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 [NAME] 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.

7. Section 78A(2A) provides: A permanency plan need not provide details as to the exact placement in the long-term of the [NAME] but must be sufficiently clear and particularised so as to provide the Children's Court with a reasonably clear picture as to the way in which the [NAME]'s needs, welfare and well-being will be met in the foreseeable future.

1. The significance of these provisions is that they require, from the time when a [NAME] 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 [NAME], the [NAME], particularly when they are out-of-home [NAME], and eventually the children themselves, when they have reached a sufficient degree of self-awareness.

2. Section 79 of the Care Act, which empowers the Children's Court to make orders allocating all aspects of parental responsibility for a [NAME], includes the following provisions: 79 Order ([NAME] than guardianship order) allocating parental responsibility … (3) The Children's Court must not make an order allocating parental responsibility unless it has given particular consideration to the permanent placement principles and is satisfied that the order is in the best interests of the [NAME]. (4) Without limiting subsection (3), the Children's Court must not make an order under this section if, taking into account the permanent placement principles, it would be more [NAME] to make a guardianship order than an order under this section.

1. It follows that, embedded in the process of reasoning that leads to the making of an order allocating parental responsibility for a [NAME], 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.

2. The preparation of permanency plans is governed by s 83 of the Care Act, which is in the following terms: 83 Preparation of permanency plan (1) If the Secretary applies to the Children's Court for a care order (not being an emergency care and protection order) for the removal of a [NAME], the Secretary must assess whether there is a realistic possibility of the [NAME] being restored to his or her parents within a reasonable period, having regard to: (a) the circumstances of the [NAME], and (b) the evidence, if any, that the [NAME]'s parents are likely to be able to satisfactorily address the issues that have led to the removal of the [NAME] from their care. (2) If the Secretary assesses that there is a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan involving restoration and submit it to the Children's Court for its consideration. (3) If the Secretary assesses that there is not a realistic possibility of restoration within a reasonable period, the Secretary is to prepare a permanency plan for another suitable long-term placement for the [NAME] and submit it to the Children's Court for its consideration. (4) In preparing a plan under subsection (3), the Secretary must consider whether adoption is the preferred option for the [NAME]. (5) The Children's Court is to decide whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration within a reasonable period: (a) in the case of [NAME] who is less than 2 years of age on the date the Children's Court makes an interim order allocating parental responsibility for the child to a [NAME]—within 6 months after the Children's Court makes the interim order, and (b) in the case of a [NAME] who is 2 or more years of age on the date the Children's Court makes an interim order allocating parental responsibility for the [NAME] to a [NAME]—within 12 months after the Children's Court makes the interim order. (5A) However, the Children's Court may, having regard to the circumstances of the case and if it considers it [NAME] and in the best interests of the [NAME], decide, after the end of the applicable period referred to in subsection (5), whether to accept the Secretary's assessment of whether or not there is a realistic possibility of restoration within a reasonable period. (6) If the Children's Court does not accept the Secretary's assessment, it may direct the Secretary to prepare a different permanency plan. (7) The Children's Court must not make a final care order unless it expressly finds: (a) that permanency planning for the [NAME] has been appropriately and adequately addressed, and (b) that prior to approving a permanency plan involving restoration there is a realistic possibility of restoration within a reasonable period, having regard to: (i) the circumstances of the [NAME], and (ii) the evidence, if any, that the [NAME]'s parents are likely to be able to satisfactorily address the issues that have led to the removal of the [NAME] from their care. (7A) For the purposes of subsection (7) (a), the permanency plan need not provide details as to the exact placement in the long term of the [NAME] to whom the plan relates but must provide the further and better particulars which are sufficiently identified and addressed so the Court, prior to final orders being made, can have a reasonably clear plan as to the [NAME]'s needs and how those needs are going to be met. (8) A permanency plan is only enforceable to the extent to which its provisions are embodied in, or approved by, an order or orders of the Children's Court. (8A) A reasonable period for the purposes of this section must not exceed 24 months. (9) In this section, [NAME], in relation to the [NAME], means: (a) the [NAME]'s [NAME], or (b) if the [NAME] has been adopted—the [NAME]'s [NAME].

1. 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.

2. Subsection (1) requires the Secretary to assess whether there is a realistic possibility of the [NAME] 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 [NAME].

3. 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.

4. It is self-evident from these provisions that the legislative policy is that the determination of the [NAME] permanency plan for the [NAME] 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 [NAME], and the [NAME]' need for time to address the causes for the [NAME] being taken into care in the first place, the need for expedition is to prevail.

5. 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.

6. 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 [NAME] 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 [NAME]'s needs and how those needs are going to be met.

7. 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 [NAME] permanency plan for the [NAME], 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.

8. 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.

9. For completeness, as [NAME] 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 [NAME] provisions that have been replaced, but, in order to avoid confusion, I have not tried to identify all of the minor changes: 90 Rescission and variation of care orders (1) An application for the rescission or variation of a care order may be made with the leave of the Children's Court. (1AA) An application may be made by: … (d) a person from whom parental responsibility for the [NAME] has been removed, or… … (2) The Children's Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. (2A) Before granting leave to make an application to vary or rescind the care order, the Children's Court must consider the matters set out in subsections (2B) and (2C). [The original (2A), which contained a shorter list of considerations required to be taken into account by the Children's Court, has been replaced]. (2B) The primary considerations are as follows: (a) the views of the [NAME] and the weight to be given to those views, having regard to the maturity of the [NAME] and his or her capacity to express his or her views, (b) the length of time for which the [NAME] has been in the care of the [NAME] and the stability of [NAME] care arrangements, (c) if the Children's Court considers that the [NAME] care arrangements are stable and secure, the course that would result in the least intrusive intervention into the life of the [NAME] and whether that course would be in the best interests of the [NAME]. (2C) Additional considerations are as follows: (a) the age of the [NAME], (b) the nature of the application, (c) the plans for the [NAME], (d) whether the applicant has an arguable case, (e) matters concerning the care and protection of the [NAME] that are identified in: (i) a report under section 82, or (ii) a report that has been prepared in relation to a review directed by the Children's [NAME] under section 85A or in accordance with section 150. (2D) The Children's Court may dismiss an application for leave under this section if it is satisfied that the application is frivolous, vexatious or an abuse of process. (2E) Without limiting subsection (2D), the Children's Court may dismiss an application for leave under this section if it is satisfied that: (a) the application has no reasonable prospect of success, and (b) the applicant has previously made a series of applications for leave under this section that the Court has dismissed. … (6) Before making an order to rescind or vary a care order that places a [NAME] under the parental responsibility of the Minister, or that allocates specific aspects of parental responsibility from the Minister to another person, the Children's Court must take the following matters into consideration: (a) the age of the [NAME], (b) the views of the [NAME] and the weight to be given to those views, (c) the length of time the [NAME] has been in the care of the [NAME] caregivers and the stability of [NAME] care arrangements, [The original pars (b) and (c) have been replaced]. (d) the strength of the [NAME]'s attachments to the [NAME] and the [NAME] caregivers, (e) the capacity of the [NAME] to provide an adequate standard of care for the [NAME], (f) the risk to the [NAME] of psychological harm if [NAME] care arrangements are varied or rescinded. (7) If the Children's Court is satisfied, on an application made to it with respect to a [NAME], that it is [NAME] to do so: (a) it may, by order, vary or rescind an order for the care and protection of the [NAME], and (b) if it rescinds such an order—it may, in accordance with this Chapter, make any one of the orders that it could have made in relation to the [NAME] had an application been made to it with respect to the [NAME]. … 1. 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 [NAME] has been in the care of the [NAME], the new s 90(2B)(b) requires, in addition to that consideration, that the Children's Court consider the stability of the [NAME] care arrangements. The new s 90(2B)(c) requires the Children's Court, if it considers that the [NAME] care arrangements are stable and secure, to consider the course that would result in the least intrusive intervention into the life of the [NAME] and to consider whether that course would be in the best interests of the [NAME].

2. These changes to the Care Act continue the trend of placing particular significance on the length of time for which the [NAME] 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 [NAME], where that is in their best interests.

Role of the Secretary in the administration of the Care Act 1. 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. Section 16 of the Care Act establishes the role of the Secretary as follows: 16 [NAME] role of the Secretary (1) [NAME] role The Secretary is to provide [COMPANY] and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of this Act. Note. This role may include: • providing assistance to [NAME] • involving [NAME] and their families in processes that affect them and making [COMPANY] and information available to them • consistent with the care and protection of [NAME], promoting the raising of [NAME] within families • supporting communities involved in the care and protection of [NAME] • regularly reviewing action • implementing procedures to assess the suitability of people having contact with [NAME] • undertaking or encouraging research, education or training. (2) Interagency procedures and protocols The Secretary is to promote the development of procedures and protocols with government departments and agencies and the community sector that promote the care and protection of [NAME] and to ensure that these procedures and protocols are implemented and regularly reviewed. (3) The objects of the procedures and protocols referred to in subsection (2) are: (a) to promote the development of co-ordinated strategies for the care and protection of [NAME] and for the provision of support [COMPANY] directed towards strengthening and supporting families (including the provision of prioritised access to support [COMPANY] to [NAME] at risk of significant harm and to their families), and (b) to co-ordinate the provision of [COMPANY] for assisting [NAME] leaving statutory out-of-home care, and (c) to co-ordinate the early provision of alternative dispute resolution processes for [NAME] at risk of significant harm and their families who wish to participate in those processes.

1. The Secretary is empowered by s 17 to enlist the aid of [NAME] government departments and agencies: 17 Secretary's request for [COMPANY] from [NAME] agencies (1) In deciding what action should be taken to promote and safeguard the safety, welfare and well-being of a [NAME], the Secretary may request a government department or agency, or a non-government agency in receipt of government funding, to provide [COMPANY] to the [NAME] or to his or her family. (2) Without limiting the generality of subsection (1), the Secretary may request a government department or agency, or a non-government agency in receipt of government funding, to provide prioritised access to [COMPANY] to a [NAME] who is at risk of significant harm and to his or her family.

1. Section 18 imposes a duty on [NAME] government departments and agencies to cooperate: 18 Obligation to co-operate (1) The government department or agency, or the non-government agency, must use its best endeavours to comply with a request made to it under section 17 if it is consistent with its own responsibilities and does not unduly prejudice the discharge of its functions. (2) Subsection (1) does not, in the case of a non-government agency in receipt of government funding, limit any obligation imposed on the agency in accordance with the agreement under which it receives that funding. … 1. 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 [NAME] 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. [ADDRESS]'s power to make an order for the adoption of [NAME] is found in s 23(1) of the Adoption Act.

2. 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 [NAME] case (bearing in mind that IEK is too young for her consent to the adoption to be considered): 90 Court to be satisfied as to certain matters (1) [ADDRESS] must not make an adoption order in relation to [NAME] unless the Court is satisfied: (a) that the best interests of the child will be promoted by the adoption, and … (c) if the [NAME] are persons [NAME] than a step [NAME] or relative of the child—that the [NAME] have been selected in accordance with this Act, and (d) that consent to the adoption of the child has been given by every person whose consent is required under this Act or that consent has been, or should be, dispensed with, and … (2) [ADDRESS] may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements [NAME] in the plan are in the [NAME] best interests and are proper in the circumstances. (3) [ADDRESS] 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 [NAME] action that could be taken by law in relation to the care of the child. Note. [NAME] action that could be taken in relation to [NAME] includes a parenting order under the Family Law Act 1975 of the Commonwealth or a care order under the [NAME] (Care and Protection) Act 1998. Part 1 of Chapter 4 describes the persons who may be adopted and the persons who may adopt. 1. [ADDRESS] must take into account the objects of the Adoption Act, which are set out in s 7 and include: 7 What are the objects of this Act? The objects of this Act are as follows: (a) to emphasise that the best interests of the [NAME], both in childhood and later life, must be the paramount consideration in adoption law and practice, (b) to make it clear that adoption is to be regarded as a service for the [NAME], (c) to ensure that adoption law and practice assist [NAME] to know and have access to his or her [NAME] family and cultural heritage, (d) to recognise the changing nature of practices of adoption, … (f) to ensure that adoption law and practice complies with Australia's obligations under treaties and [NAME] international agreements, (g) to encourage openness in adoption… 1. Section 8 relevantly requires the Court to have regard to the following principles in making a decision about the adoption of [NAME]: 8 What principles are to be applied by persons making decisions about the adoption of [NAME]? (1) In making a decision about the adoption of [NAME], a decision maker is to have regard (as far as is practicable or [NAME]) to the following principles: (a) the best interests of the child, both in childhood and in later life, must be the paramount consideration, (b) adoption is to be regarded as a service for the child, (c) no adult has a right to adopt the child, … (e) the [NAME] given name or names, identity, language and cultural and religious ties should, as far as possible, be identified and preserved, (e1) undue delay in making a decision in relation to the adoption of [NAME] is likely to prejudice the [NAME] welfare, … (2) In determining the best interests of the child, the decision maker is to have regard to the following: (a) any wishes expressed by the child, (b) the [NAME] age, maturity, level of understanding, gender, background and family relationships and any [NAME] characteristics of the child that the decision maker thinks are relevant, (c) the [NAME] physical, emotional and educational needs, including the [NAME] sense of personal, family and cultural identity, (d) any disability that the child has, (e) any wishes expressed by either or both of the parents of the child, (f) the relationship that the child has with his or her parents and siblings (if any) and any significant [NAME] people (including relatives) in relation to whom the decision maker considers the question to be relevant, (g) the attitude of each [NAME] to the child and to the responsibilities of parenthood, (h) the nature of the relationship of the child with each [NAME], (i) the suitability and capacity of each [NAME], or any [NAME] person, to provide for the needs of the child, including the emotional and intellectual needs of the child, (j) the need to protect the child from physical or psychological harm caused, or that may be caused, by being subjected or exposed to abuse, ill-treatment, violence or [NAME] behaviour, or being [NAME] while a third person is subjected or exposed to abuse, ill-treatment, violence or [NAME] behaviour, (k) the alternatives to the making of an adoption order and the likely effect on the child in both the short and longer term of changes in the [NAME] circumstances caused by an adoption, so that adoption is determined among all alternative forms of care to best meet the needs of the child.

1. Section 90(1)(d) prohibits the Court from making an adoption order in relation to [NAME] 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."

2. 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 [NAME] who is less than 18 years of age unless the consent of each [NAME] of the child has been given. In this case, [NAME] have refused to consent to the adoption. 3. [ADDRESS]'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: 67 When can Court dispense with consent of person [NAME] than the child? (1) [ADDRESS] may make a consent dispense order dispensing with the requirement for consent of a person to [NAME]'s adoption ([NAME] than the child) if the Court is satisfied that: … (c) if the person is a [NAME] of, or person who has parental responsibility for, the child—there is serious cause for concern for the welfare of the child and it is in the best interests of the child to override the wishes of the [NAME] or person who has parental responsibility, or (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised [NAME] or the [NAME] for the child: (i) the child has established a stable relationship with those [NAME] or [NAME], and (ii) the adoption of the child by those [NAME] or [NAME] will promote the [NAME] welfare, and… (2) [ADDRESS] must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child. (3) In this section: [NAME] has the same meaning as in section 79A(1) of the [NAME] (Care and Protection) Act 1998.

1. The amendments to s 67 of the Adoption Act concerning the position of [NAME] are not material to the [NAME] 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.

2. As [NAME] (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 [NAME] 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 [NAME] 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."

3. The inclusion of subs (1)(d) represents another significant policy change in favour of the making of an adoption order, where the [NAME] is an authorised [NAME] for the child.

4. 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).

5. Now it is sufficient, where the [NAME] is an authorised [NAME] for the child, that the child has established a stable relationship with the [NAME], the adoption will promote the [NAME] welfare, and it is in the best interests of the child to dispense with the parents' consent.

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

7. 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 [NAME] action that could be taken by law in relation to the care of the child.

8. As the Court is not only required to consider what available actions are preferable, but whether an adoption order is clearly preferable to all [NAME] 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.

9. 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 [NAME] 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.

10. 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 [NAME] cases). It will be sufficient for me to set out, and respectfully adopt, the following extract from his Honour's reasons: [288] In Adoption of [NAME], at [14], stated that s 90(3) requires: … something more than a slight preponderance of considerations in favour of adoption over the alternatives. While not amounting to a requirement for satisfaction "beyond reasonable doubt" [Re D; Application of A [2006] NSWSC 1056, [53]], the requirement that the Court consider that an adoption order be "clearly preferable" is one that adoption be obviously, plainly or manifestly preferable to any [NAME] action that could be taken by law [cf Director-[NAME], Dept of Community Services v D [2007] NSWSC 762; (2007) 37 Fam LR 595, [25]]. … [292] In Re JLR, Bergin CJ in Eq explained, at [99], that: "The words 'clearly preferable' in s 90(3) do not require the court to be satisfied 'beyond reasonable doubt'. Rather "the word 'clearly' serves only to emphasise that the Court should feel a degree of conviction in favour of adoption which is commensurate with the gravity of the decision": Application of A; Re D [2006] NSWSC 1056; (2006) 36 Fam LR 142 at [53] (Palmer J) and that the order for adoption be "obviously, plainly or manifestly preferable" to any [NAME] alternative: Director-[NAME], Department of Community [COMPANY] v D at [25] ([NAME])." [293] In Secretary, New South Wales Department of Family and Community [COMPANY] by his delegate, [NAME], Barnados Australia v HR & CD [2016] NSWSC 1926, Sackar J, after referring to the decisions quoted above, wrote, at [38]: "It requires that adoption be "obviously, plainly or manifestly preferable to any [NAME] action that could be taken by law": Deputy of Community Services v D (2007) 37 Fam LR 595 at [25]." [294] His Honour added, at [41]: "I also note the pertinent remarks of [NAME] in Re O (Contact: Imposition of conditions) [1995] 2 FLR 124, who stated that 'the court should take a medium-term and long-term view of the [NAME] development and not accord excessive weight to what appear likely to be short-term or transient problems'". [295] Thus, it is not enough to show that [NAME] could be placed in a more beneficial environment for her, or his, upbringing. There is often required an acute, and difficult, decision to be made and, often, all practicable answers, to some extent, may be unsatisfactory. Sometimes, the alternatives are finely balanced and will call for critical and often anxious scrutiny. [296] In reaching the conclusion, "a global, holistic evaluation of each of the options available for the [NAME] future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the [NAME] welfare" should be undertaken: Re G ([NAME]) [2013] EWCA Civ 965 at [50].

1. 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. As I have noted at the beginning of these reasons, [NAME] 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 [NAME] until she attains the age of 18 years.

2. 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: 92 Care of child after refusal of an application If the Court refuses an application for an adoption order, the Court may make such orders in relation to the parental responsibility for the [NAME] as it thinks fit, including, if the child is less than 18 years of age, an order declaring the child to be under the parental responsibility of the Minister administering the [NAME] (Care and Protection) Act 1998.

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

2. 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 [NAME] responsibility contracts. Chapter 5 of the Care Act establishes even more complex administrative arrangements designed to ensure the care of [NAME] 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. [NAME] 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 [NAME]. 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 [NAME]. 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.

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

4. 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.

5. 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.

6. 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: (1) On the making of an adoption order: (a) the existing parental responsibility for the adopted child (including the Minister's parental responsibility under the [NAME] (Care and Protection) Act 1998) ceases to have effect… 1. 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.

2. It could hardly be acceptable that two inconsistent but effective orders for the parental responsibility for [NAME] may exist at the one time.

3. 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. [ADDRESS] only has power to interfere with an order of the Children's Court, if it has statutory or inherent power to do so.

4. 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.

5. 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 [NAME] as [the Court] thinks fit…" a power to set aside a subsisting care order made by the Children's Court.

6. 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 [NAME] Act in s 24, which provided:

24. Where the Court refuses an application for an order for the adoption of [NAME], the Court may make such order for the care and custody of the child as it thinks fit, including an order placing the child in the care of the Minister to be dealt with under the provisions of the Child Welfare Act, 1939, as amended by subsequent Acts, as a ward admitted to State control.

1. 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 [NAME] child welfare legislation. That appearance flows from the use of the words "to be dealt with under the provisions of the Child Welfare Act".

2. 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.

3. This point was the subject of a submission put to [NAME] by counsel in Re Adoption of JLK and CRK [2017] NSWSC 7. His Honour responded (footnote omitted): [81] …While, as [NAME] rightly submitted, an order allocating parental responsibility to the [NAME] under Adoption Act, s 92, would not be amenable to an application (NSW) [NAME] (Care and Protection) Act 1998, s 90, which is confined to "care orders" under that Act, a parental responsibility order under s 92 of the Adoption Act, could be re-opened in the event of a significant change of circumstances. 1. [NAME] found support for his conclusion in a decision of the [ADDRESS] of the Family Court of Australia in In the marriage of [NAME] and [NAME] [1978] FamCA 84; [1979] FLC 90-725; (1978) 6 Fam LR 570.

2. 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: …The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as [NAME] submitted, change is an ever [NAME] factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material… 1. Thus, [NAME] 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 [NAME] 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 [NAME] 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.

2. It is not necessary for this Court to express a view about whether [NAME] 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.

3. In Adoption of [NAME] [2015] NSWSC 813, [NAME] 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: [71] There is no equivalent statutory concept in the Adoption Act. Moreover, in a case such as the [NAME], there will already be in place an order of the Children's Court allocating parental responsibility to the Minister until the children attain 18 years of age, implicit in which is a conclusion that restoration is not a realistic possibility. While that conclusion does not bind this court — and between the time when a care order is made in the Children's Court, and an adoption application is considered in this court, much can change (indeed, the Care and Protection Act itself admits, by s 90, of an application for restoration, by way of rescission of the care order, in the event of a change of circumstances, notwithstanding that a final order allocating parental responsibility to the Minister until 18 is in place) — nonetheless, there will have already been a judicial decision, by a specialist court, that the children cannot be satisfactorily cared for by the [NAME], such as to require long-term removal, and that restoration is not a realistic possibility. [72] If this Court were satisfied that restoration, now or in the future, was in the best interests of the children, it could not be satisfied that adoption was "clearly preferable". But short of such a conclusion, while the Court should take into account, on the one hand, that an adoption order would practically preclude the possibility of restoration, that must be weighed on the [NAME] against any disadvantages of preserving that prospect, and the advantages of adoption. Typically, countervailing considerations will include the undesirability of uncertainty and associated instability and insecurity, the risks associated with disturbing an established and functional status quo, and the relative parenting capacities of the [NAME] and the [NAME].

1. 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 [NAME] 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 [NAME]. 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". 2. [NAME] 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. 3. [ADDRESS] of Appeal gave some consideration to the effect of s 92 of the Adoption Act in D v Director-[NAME] Department of Community [COMPANY] [2005] NSWCA 474; (2005) 34 Fam LR 445.

4. It is significant that in that case the child was born on [DATE]. 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 [NAME] on 27 July 2003. The child was placed with the [NAME] 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.

5. There is nothing in the reasons of [NAME], 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-[NAME] of the then Department of Community [COMPANY] was involved, but only in the sense that it was the Director-[NAME] who sought the adoption order.

6. 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.

7. 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.

8. 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 [NAME] who were the [NAME].

9. 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]. 10. [NAME] dealt with the mother's reliance upon s 92 of the Adoption Act as follows: [37] [NAME] submitted that ss 8(2)(k) and 90(3) of the Act meant that all alternatives had to be considered and that while the primary judge did consider the possibility of interim arrangements as an alternative to an adoption order, he did not consider either the possibility of an adjournment for a period of about 2 months with interim orders in place, or the possibility of final orders being made under s 92 giving custody and parental responsibility to [NAME]. He submitted that the drastic nature of an adoption order was emphasised by s 93(4) of the Act, which had the effect that an adoption order could be discharged only if the order had been obtained by fraud, duress, or [NAME] improper means, or there was some [NAME] exceptional reason why the order should be discharged. … [40] In my opinion, the primary judge did consider the alternatives referred to by [NAME]. When he rejected the making of interim orders, it is clear that he had in mind the possibility of orders made under s 92 lasting until the child was 18 as being in the category loosely described as interim orders. Furthermore, having regard to the adjournment application that had been rejected shortly before the hearing, and the terms of the judgment as a whole, I think it is clear that the primary judge also had in mind the possibility of an adjournment for 2 months with interim orders operating in the meantime.

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

2. 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 [NAME] action, for the Court then and there to make [NAME] orders giving effect to the [NAME] 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 [NAME] 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. 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. [ADDRESS] 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. [ADDRESS] 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. 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 [NAME] 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. 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 [NAME] activities of the [NAME] 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 [NAME] generally. I have already mentioned that s 79C of the Care Act authorises the Secretary to provide financial assistance to [NAME]. Section 201 of the Adoption Act authorises the Secretary in various ways to provide financial and [NAME] 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 [NAME] or [NAME]. 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 [NAME] 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. What is sought by [NAME] in the [NAME] case is a simple order allocating parental responsibility for IEK to [NAME] 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 [NAME]. The orders sought would involve IEK simply being handed over to [NAME]. 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 [NAME], 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 [NAME] than the Secretary.

7. 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 [NAME] 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 [NAME], 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 [NAME] or parents. [ADDRESS] 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 [NAME] 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. 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. [ADDRESS] should also exercise its power having regard to the [NAME] 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 [NAME] 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. [ADDRESS] should place due weight on the earlier decision and be resistant to departing from it, or the reasons that motivated the Children's Court. [ADDRESS] 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. 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-[NAME] of the Department of Community Services v Priestley [2004] NSWSC 639; Re Liam [2005] NSWSC 75; (2005) 33 Fam LR 86; Re [NAME] (2008) 71 NSWLR 573; [2008] NSWSC 379; Re [NAME] (No 2) [2008] NSWSC 1387; (2008) 40 Fam LR 247; Re [NAME] and [NAME] [2009] NSWSC 133; (2009) 40 Fam LR 608; [NAME] v Department of Family & Community [COMPANY] [2015] NSWSC 694; and [NAME] v Secretary, Department of Family and Community [COMPANY] [2015] NSWCA 105. In the last-mentioned case, Basten JA said: [15] Before Lindsay J, it was the invocation of the parens patriae jurisdiction which was in issue. The judge stated: [19] The availability of the Supreme Court's protective jurisdiction is not an invitation for parties interested in the welfare of a minor to engage in an exercise of forum shopping, pursuing applications in the Supreme Court during the pendency of regular proceedings in the Children's Court, because dissatisfied with rulings made, or anticipated, in the Children's Court. [20] By virtue of its governing legislation, the Children's Court has sufficient power over its own processes to ensure that its proceedings are conducted, as they must be, in a manner that is procedurally fair. Absent exceptional circumstances, it should be left to discharge its legislative functions, subject to the appeal processes for which the legislation provides. [16] The caution expressed in these paragraphs is amply supported by authority, including Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]–[40] (Palmer J); Re Frances and Benny [2005] NSWSC 1207 at [17] and [18] (Young CJ in Eq), and, recently, R v Baby S [2014] NSWSC 871 at [20]–[23] (White J). It will rarely be in the best interests of the children [NAME] to disrupt the orderly process of investigation and fact finding in the Children's Court by diverting the time, energy and resources of the parties from that exercise into separate proceedings in the Supreme Court… 1. Although the analogy between the [NAME] 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.

[NAME] observations on the application of the adoption principles 1. It is [NAME] that I first note a number of [NAME] considerations that are frequently stated by the Court as having importance to adoption applications.

2. First, the reasoning necessary for the proper determination of an adoption application is "…[NAME] 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 [NAME], the [NAME], [[NAME]] or the Children's Court": see Adoption of [NAME] [2015] NSWSC 813 at [11] per [NAME] (as his Honour then was). See also Adoption of SVS [2015] NSWSC 2043 at [9]. [ADDRESS] does not review the decisions that have already been made by the Children's Court about parental responsibility. [ADDRESS] 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 [NAME] and future objective and emotional circumstances of the child in the light of what is and will be in the [NAME] best interests.

3. Secondly, neither the [NAME] nor the [NAME] have any competing rights in respect of the future parentage of the child to which the Court will give effect. So far as the [NAME] is [NAME], s 8(1)(c) expressly provides that "no adult has a right to adopt the child". So far as the [NAME] are [NAME], the following words of [NAME] in D v Director-[NAME] Department of Community [COMPANY] [2005] NSWCA 474; (2005) 34 Fam LR 445 are pertinent: [60] D has strongly expressed to [NAME] her view that the removal of her child is a violation of her rights as a [NAME]. That view is understandable, but it is not a view that this Court can accept. D's rights as a [NAME] in this context are those recognised by the Adoption Act, and are most relevantly those associated with questions of consent and taking account of her wishes, all of which must be dealt with in accordance with the provisions of the Act and in accordance with the policy of the Act that the best interests of the child are the paramount consideration.

1. This is an important consideration, as although it is perfectly natural for the [NAME] of [NAME] 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 [NAME] will therefore be susceptible to changes in government policy that are manifested in changes to the legislation governing the care of [NAME].

2. Thirdly, where there are existing emotional ties, hopes and expectations in both the [NAME] and the [NAME] or parents in respect of the child, the Court cannot realistically avoid causing hurt and disappointment to one or [NAME] set of parties. As Ipp JA said in D v Director-[NAME] Department of Community [COMPANY], which was a particularly difficult case: [68] One certain result in this tragic case is that, whatever decision is ultimately made, either the [NAME] or the [NAME] will have to bear deep sadness and emotional loss. No court would be able to resolve the dispute by providing satisfaction to both sides. [69] The court can only apply the law and in so doing is required to dismiss from its mind certain factors that, while stark in human terms, are not legally relevant to the issue that has to be adjudicated upon. Firstly, the Court cannot have regard to the unhappiness that an unfavourable judgment inevitably will bring to the [NAME], be it the [NAME] or be it the [NAME]…The paramount and, indeed, sole question is: what is in the best interests of the child? And, although — depending on the ultimate decision — these factors might cause the [NAME], understandably, to be aggrieved, that is not — in law — to the point.

1. A final [NAME] 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 [NAME] 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 "[NAME] 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 [NAME] 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 [NAME] in Adoption of [NAME] (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).

2. 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. 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 [NAME] action that could be taken by law in relation to her care.

2. 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 [NAME] 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 [NAME] 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 [NAME] 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 [NAME] case, but unresolved given that the process of restoration of [NAME] 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. 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 [NAME] circumstances from the making of an adoption order, is also significant.

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

5. 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. [ADDRESS] may make an order in favour of one person (s 23(1) and s 26), IEK is [NAME] in the State and [NAME] 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 [NAME] is more than 21 years of age and more than 18 years older than IEK (s 27(2)(a)).

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

7. 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 [NAME]. 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 [NAME] action that could be taken by law. [NAME] 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 [NAME] herself, establishes that IEK has thrived in [NAME]'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 [NAME], 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 [NAME] following their frequent interactions with [NAME] over the last three or so years.

8. 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 [NAME] in the position of IEK.

9. The author of the s 91 report, [NAME], and the Program Manager, [NAME], 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. 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. [ADDRESS] 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. In the [NAME] case the alternative forms of care that are available in respect of IEK include:

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

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

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

5. Order granting parental responsibility for IEK to [NAME] until IEK attains the age of 18 years (contended for by [NAME]).

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

7. Adoption order in favour of [NAME] (contended for by the [NAME]).

Preliminary observations 1. It will be [NAME] to make some preliminary observations about these alternative actions.

2. 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. [ADDRESS] 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.

3. I have referred to the making of an order appointing a [NAME] 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 [NAME] until the age of 18 years to the [NAME]. 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 [NAME].

4. 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 [NAME] 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 [NAME] 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 "…[NAME] who is under the care…of a person under [NAME] welfare law…".

5. 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.

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

Alternative (1): maintain the status quo 1. Maintaining the status quo is not satisfactory in the [NAME] 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. While it was [NAME] 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 [NAME], the utility of the order has diminished as a result of [NAME] 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 [NAME]'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 [NAME] in Adoption of [NAME] (above) at [81]-[82], and Adoption of [NAME] (No 2) [2014] NSWSC 680 at [92]-[96].

Alternative (2): guardianship or [NAME] care order 1. 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 [NAME] 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 [NAME] and the child, and no [NAME] was identified. The parties did not engage with this possibility, and there is no evidence concerning it.

2. 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 [NAME] as the [NAME], because it would not be permanent. If I am correct in understanding that [NAME] 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 [NAME] 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 [NAME]. No [NAME] was found while proceedings were pending in the Children's Court. [ADDRESS] cannot order the Secretary or [NAME] to apply for a guardianship order. Even if such an order were applied for, the outcome of the application is uncertain.

3. So far as any [NAME] type of care order that may be made under the Care Act is [NAME], the Children's Court has already made a final order allocating parental responsibility for IEK to the Minister. [NAME]'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. In considering whether the making of an adoption order is clearly preferable to any [NAME] 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, [NAME]'s circumstances may change further, and she may be able to satisfy the concerns of the Children's Court that caused it to dismiss [NAME]'s s 90 application. As set out above, those concerns were that [NAME] had not established how she could address IEK's needs and those of [NAME] 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 [NAME], 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. Any consideration of allowing [NAME] 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. 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 [NAME] (which assumes that the Court has power under s 92 of the Adoption Act to make an order granting parental responsibility for IEK to [NAME] immediately after it refuses to make the adoption order).

Alternative (3): parenting order 1. 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 [NAME] and [NAME], or [NAME]

1. As to the possibility that parental responsibility could be allocated to [NAME], either alone or shared with [NAME] has not suggested that she should share parental responsibility for IEK with [NAME]. 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. 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 [NAME], even though they did not consent to such order being made in their favour. In the [NAME] case [NAME] 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. 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 [NAME] by any party, it was not explored at all in the evidence. There was no consideration of how it would work. [NAME] 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, [NAME] would choose the former, even if under protest.

4. It is likely that [NAME] would continue to conscientiously do her best as IEK's [NAME], but this alternative would only create an appearance that IEK had become part of the permanent family of [NAME] from both her and [NAME]'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 [NAME]'s minds that the arrangement was not permanent, and [NAME] remained no more than the out-of-home [NAME] for IEK, with the only practical change being the cessation of the involvement of the Minister.

5. There is also the concern (noted by [NAME] in Adoption of [NAME] (above) at [80]) that it would not be fair to foist on [NAME] 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 [NAME] would be required to conduct and bear the costs of any future litigation.

6. 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. [NAME] entered into the out-of-home care program with the intention to adopt [NAME], IEK was matched with her for that purpose and, during all of the time that IEK has been living with [NAME] and [NAME] 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 [NAME] 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 [NAME] is denied the permanency of an adoption order, that will create real unhappiness and possibly impinge upon the relationship between [NAME].

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

9. 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. [ADDRESS] could only make the order granting parental responsibility for IEK to [NAME] 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 [NAME] 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. In my view, these considerations exclude the making of a parental responsibility order in favour of [NAME] from being a viable alternative to the making of an adoption order.

Alternative (5): parental responsibility order in favour of [NAME]

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

2. 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 [NAME]; 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 [NAME] 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. If the former approach is correct, then the parentage order in favour of [NAME] 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. The significance of this issue may be better appreciated if attention is given to the restoration plan that has been prepared in relation to [NAME], which I have explained in outline above.

5. While this Court may be able to impose some conditions on the restoration of IEK to [NAME] that would alleviate the risks from IEK simply being handed over to [NAME], 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 [NAME] to the making of an adoption order.

6. But the most serious problem that I consider exists with this alternative is the same problem that caused the Children's Court to dismiss [NAME]'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 [NAME] 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 [NAME] to her care.

7. 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. Although the Court wishes [NAME] all the best in her effort to achieve restoration of [NAME] 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 [NAME]'s restoration to be made by the Secretary by 10 September 2020 is available. That is almost 2 years away.

9. Even when the successful restoration of [NAME] to [NAME]'s care has been established, it would then also be necessary to be able to show that, if IEK were then returned to [NAME]'s care, [NAME] 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 [NAME] were restored to [NAME] before she has been able to implement the restoration of [NAME] successfully, the burden of needing to care for both children at the one time could undermine [NAME]'s ability to cope with the restoration of either child.

10. In cross-examination of [NAME], 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 [NAME]. There is some basis for concluding that [NAME]'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 [NAME]. On the [NAME] hand, it may be wrong to draw firm conclusions from these events, as the very fact of having [NAME] in her care, together with the assistance and supervision that she will receive, may well encourage [NAME] 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 [NAME] in any detail. There is no purpose in taking the risk that any negative observation by the Court may discourage [NAME] from achieving her objective of the successful restoration of [NAME].

11. 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 [NAME], I would decline to make that order. [ADDRESS] now cannot have sufficient confidence that restoration of IEK at the same time as [NAME] 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. There is one particular aspect of IEK's emotional behaviour that warrants specific consideration. It derives from a number of reports by [NAME], who is a consultant paediatrician and who has been treating IEK since December 2015. Dr [NAME]'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": Problems… 4. Past history of reactive attachment problems on the background of neglect and maternal substance use (removed from biological mother at 2 years of age), significantly improved over time. … Impressions/Recommendations I have known [IEK] from 2015. She had a background of neglect and has been with the current foster [NAME] since 3 years of age. [IEK] demonstrated signs of on (sic) indiscriminate attachment, language delay and social skill immaturity, however, over time progressed very well with her [NAME] development, language, social emotional development and attachment. … The following recommendations are provided:

1. Children with history of neglect are at high risk of developing attachment disorder – an often lifelong and difficult to treat condition, that not only significantly impacts social/emotional development of affected children, but also makes them vulnerable as adolescents and young adults. [IEK] clearly demonstrated signs of reactive attachment disorder in the past. Pleasingly, we have documented notable improvement of her social interactions and her overall attachment as a reflection of stable and positive home environment. As an integral part of interventions and reparative process to reduce the impact of attachment disorder, rebuild trust and sense of security, it is vitally important to ensure stable care arrangements/placement and loving caretaker environment. This recommendation clearly applies to [IEK] as she still has some residual signs of indiscriminate social behaviour… 1. 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 [NAME] 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 [NAME] and the stability in her life.

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

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

Particular issues relied upon by [NAME] 1. [NAME] substantially, though not solely, based her case on the principle in s 8(1)(e) that, as far as possible, the [NAME] language and cultural and religious ties should be identified and preserved. 2. [NAME] 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. [NAME] is Anglo Australian and agnostic. [NAME] sought to make out a case that [NAME] 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. I am satisfied from hearing [NAME]'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 [NAME] lives with IEK, and the relative absence of a Polish cultural presence in the area. [NAME]'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 [NAME] 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 [NAME] 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. While I acknowledge that this aspect of [NAME]'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 [NAME] care arrangements and making them permanent through an adoption order.

Summary 1. In summary, the [NAME] 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 [NAME] leave to seek a rescission of that order. That was because [NAME] had not demonstrated how she could care for IEK at the same time as she was attempting to achieve successful restoration of [NAME], and because of the risk involved in separating IEK from [NAME]. [NAME] 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 [NAME] case, I share the concerns of the Children's Court, and would not make an order granting parental responsibility for IEK to [NAME] at this time if that would involve IEK being given into the care of [NAME] now. [ADDRESS] does not know whether the restoration of [NAME] to [NAME]'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.

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

Alternative (6): deferral of the question 1. 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 [NAME] has been successful, and if it is, that an [NAME] investigation has been carried out that establishes that [NAME] is capable of adequately caring for both [NAME] 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 [NAME] 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. The only advantage of the deferral of the determination of the proceedings is the possibility that, over time, the [NAME] uncertainty about [NAME]'s ability to properly care for both [NAME] may be reduced. Whether or not that will be so is presently uncertain. Deferral would be to the advantage of [NAME] because it would give her a chance of avoiding the consequence that if an adoption order is made in favour of [NAME] 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. However, the obvious vice in this approach is that it will deny both [NAME] certainty in relation to the nature of their relationship, and in return it will only keep alive a chance that [NAME] will be able to regain parental responsibility for IEK. Furthermore, as time goes by, the relationship between [NAME] will become more and more established, and the risk of harm to IEK (and hurt to [NAME]) will increase. Delay involves an inherent risk of a diminishing return that cannot justify the Court deferring the decision in this case.

4. 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 [NAME] is likely to prejudice the [NAME] welfare": see Adoption of [NAME] (above) at [83] and Adoption of [NAME] (No 2) (above) at [98].

Conclusion as to whether Adoption Order clearly preferable 1. As the question is whether the making of an adoption order is clearly preferable to all [NAME] 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. [NAME] 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 [NAME] (No 2) (above): [75] While an adoption order would not effect any overt improvement in respect of the arrangements for the [NAME] residence, education, and care, that does not mean that it would have no beneficial impact. [76] First, an adoption order will provide certainty and permanence for the child, both directly, and indirectly through the additional certainty it will afford the [NAME]. The possibility of further changes, disruptions and separations will be minimised. The aspirations to restoration expressed by both [NAME], and re-affirmed by the mother in her oral evidence, however improbable as an outcome, will be practically foreclosed. An adoption order is also likely to minimise any remaining temptation for the [NAME] to make comments or suggestions that the child will be returning to her care. In these ways, and others, adoption will contribute to providing for the child the stability, security and certainty that he plainly needs, and will be an important aspect of mitigating his current insecurity. In a case such as the [NAME], where there has been extensive past turbulence and associated vulnerability, and where the child harbours fears of insecurity, this is a telling factor. [77] Secondly, the child would be raised in a legally recognised family, rather than remaining a State ward for the duration of his childhood. He would no longer be in "out-of-home" care, but in "in-home" care. The need for departmental intervention in his care, and departmental approval for significant decisions of the applicants, would be removed, as would be the stigma potentially associated with being a State ward. [78] Thirdly, the [NAME] legal status would be brought into conformity with reality. Psychologically and residentially, he is a member of the [NAME] family. An adoption order would bring the legal position into line with this. His membership of the family that he regards as his own would be perfected, providing him a sense of security and permanent belonging in that family. And the child would be a member of the family not only during childhood, but for life. [79] Fourthly, his legal name would correspond with that of the family with which he lives and identifies. He would be enabled to choose for himself whom he tells of his status, without it being self-evident from his name. [80] While an adoption order would, of course, legally sever the parental relationship between the child and the [NAME], they are relationships which, in reality, have been practically devoid of parental responsibility. An adoption order would in fact serve the [NAME] identity needs by perfecting his membership of the family with which he identifies, while providing a more secure foundation for an ongoing relationship with the [NAME] through contact, which the applicants will be better able to support and facilitate when relieved of the insecurity or doubt that might attend it if some prospect of restoration remained open. [81] Adoption carries a risk that the child may feel unwanted or abandoned. However, this risk is incidental more to the circumstance that he does not reside with his [NAME], than to an adoption order per se: whether he is in foster care, or under a parental responsibility order, or adopted, there is the same [NAME] for the question, "why do I not live with my [NAME]?". Thus, declining to make an adoption order in favour of some [NAME] solution, short of restoration, does not remove the risk of a sense of loss or abandonment. However, the risk is mitigated by the circumstances that the child knows his [NAME], has an understanding of their situations, and will continue to have a relationship with them. While the legal relationship with the [NAME] would be severed, they would not cease to be his [NAME]; the relationship with them will be maintained through contact, and legal parenthood would appropriately reside with those who are discharging the responsibilities of parenthood.

1. In the [NAME] case, the Children's Court concluded that there was no reasonable chance of IEK being returned to the care of [NAME]. This was the basis for the order conferring parental responsibility for IEK on the Minister, and for that Court declining to give [NAME] 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 [NAME] to be restored to [NAME] and restoration is in the process of being implemented. I think that the fact of the restoration of [NAME] makes it impossible to rule out the possibility that at some time in the future [NAME] will become capable of caring for both [NAME].

2. That circumstance brings into play the additional factor that restoration of both [NAME] to [NAME] would enable both siblings to grow up together in the same family, which in principle would be strongly in IEK's interests.

3. Hallen J noted the following in Re the Adoption of AJH (above) at [291]: In In the matter of Campbell [2011] NSWSC 761, Slattery J, at [55], explained that a "possibility" of restoration involved something less than a probability — that is, something that is not impossible; and that to be realistic, it had to be real or practical — not fanciful, sentimental or idealistic or based upon "unlikely hopes for the future". If the Court were to be satisfied that restoration, now or in the future, was in the best interests of the child, it could not be satisfied that adoption was "clearly preferable".

1. In Adoption of [NAME] (No 2) (above) at [83], [NAME] expressed the following view concerning the consequences of there being a possibility of restoration to the [NAME]: [83] Once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the child is vested in the [NAME]. Because of the permanency of an adoption order, and the [NAME] preference based in human nature and experience that, where practicable, children are best raised by their [NAME], the Court would not likely make an adoption order if there were a realistic prospect of the child being restored to the care of one or both of his [NAME]. However, if there is no real prospect of restoration, then the disadvantages of the permanent nature of an adoption order are minimal, and no greater than those of natural legal parenthood; and the advantages of permanency are considerable. Future contingencies in relation to contact can still be addressed and accommodated after an adoption order is made [Re TVK [2012] NSWSC 1629].

1. However, in Adoption of [NAME] (above) at [69] his Honour revised his earlier statement in the following terms: [69] The [NAME] propounds restoration, in the future if not immediately, as an alternative. Moreover, because of the permanency of an adoption order, and the [NAME] preference based in human nature and experience that, where practicable, children are best raised by their [NAME], the Court must in any event consider that once an adoption order is made, the possibility of restoration is practically foreclosed, and future decision-making in respect of the children is vested in the [NAME]. However, although I have previously suggested that the Court would not likely make an adoption order if there were a realistic prospect of restoration [see, for example, Adoption of [NAME] (No 2) [2014] NSWSC 680, [83]], on reflection that overstates the position, which is more accurately stated as that the Court would not make an adoption order unless satisfied that the advantages of adoption clearly outweighed the benefits of preserving the possibility of restoration.

1. I respectfully agree with his Honour's revised view that the realistic prospect of [NAME] being restored to the care of a [NAME] 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 [NAME] 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 [NAME], 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.

2. In the [NAME] case, the possibility of restoration of IEK to the care of [NAME] depends upon the likelihood that [NAME] will successfully be restored to her care and then in the circumstances that then exist that [NAME] 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 [NAME] is a possibility, that possibility is indeterminate and will only be realised, one way or the [NAME], 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.

3. It is in this context that the analysis I have made above of the legislation providing for the care of [NAME], 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 [NAME], that is clearly the preferable course in accordance with the established criteria governing the preferability of one possible action over another.

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

Should the consent of the [NAME] be dispensed with? 1. It is therefore necessary to decide whether the consent to the making of the adoption order by [NAME], 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. The question is, under s 67(1)(d) and (2) of the Adoption Act, whether the following requirements are satisfied: (d) if an application has been made to the Court for the adoption of the child by one or more persons who are authorised [NAME] or the [NAME] for the child: (i) the child has established a stable relationship with those [NAME] or [NAME], and (ii) the adoption of the child by those [NAME] or [NAME] will promote the [NAME] welfare… (2) [ADDRESS] must not make such a consent dispense order unless satisfied that to do so is in the best interests of the child.

1. It is clear that IEK has established a stable relationship with [NAME]. 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.

2.

Accordingly, I will make consent dispense orders in respect of [NAME].

Are the adoption plans proper and in the [NAME] best interests? 1. I will now consider the [NAME] principles that apply to adoption plans, and whether s 90(2) of the Adoption Act is satisfied in the [NAME] case.

Principles applying to adoption plans 1. 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 [NAME] that includes provisions relating to exchanges of information in relation to medical issues, the [NAME] development and important events in its life, the means and nature of contact between the parties and the child, and any [NAME] matter relating to the adoption of the child.

2. 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: 75 Contents of adoption plan For the purposes of section 47(2) of the Act, an adoption plan is to contain the following particulars: (a) a statement of the means and nature by which contact between the child and the [NAME] family and siblings is to be maintained, including people authorised to have contact with the child, purposes of the contact, frequency of contact and location of contact, (b) details of the ways in which the child is to be assisted to develop a healthy and positive cultural identity and of ways in which links with the [NAME] cultural heritage are to be fostered, (c) a description of the type of information to be exchanged under the plan, (d) a statement of the frequency of exchange of information, (e) details of provision to be made for any financial and [NAME] assistance arrangements that the Secretary has agreed be included in the plan under section 201(2) of the Act, (f) a statement of the period for which the plan is to have effect.

1. The evidence contains [NAME] 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 [NAME] and the Delegate, but have not respectively been agreed to or signed by [NAME].

2. Both of the adoption plans in this matter appear to conform to the requirements of s 47 of the Adoption Act and Reg 75. 3. "Parties to an adoption" is a term defined in the Dictionary to the Adoption Act as meaning (a) the child, (b) the [NAME] who have consented to the [NAME] adoption, (c) the person or persons selected to be the [NAME] of the child, (d) the Secretary, and (e) the [NAME] officer. In this case the [NAME] officer (on behalf of the Secretary) and [NAME] are parties to the adoption.

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

5. Section 46(2A) of the Adoption Act provides that a [NAME] who has not consented to the adoption of [NAME] 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 [NAME] 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 [NAME] 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).

6. In-so-far as s 46(2B) has the effect of treating a non-consenting [NAME] who agrees to an adoption plan as if that [NAME] 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.

7. Section 51 of the Adoption Act provides: 51 Review of adoption plans (1) [ADDRESS] may review an adoption plan on application of one or more of the parties to the plan. (2) Unless the Court otherwise determines, the Court is to give each party to the adoption who agreed to the adoption plan an opportunity to make submissions concerning the application. (3) Following its review, the Court may, by order: (a) make such changes (if any) to the provisions of the adoption plan as it considers [NAME], or (b) revoke the plan, or (c) confirm the plan. (4) [ADDRESS] may change the provisions, or revoke, an adoption plan only if it is satisfied that it is in the best interests of the child and proper in the circumstances to do so. (5) An adoption plan that is changed by an order of the Court has effect as if it were the plan originally agreed to by the parties.

1. 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. [NAME], 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 [NAME] 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.

2. This is a strange result, as s 46(2B) was evidently intended to have a remedial effect by giving [NAME] who have not consented to the adoption some rights under s 51 (as well as [NAME] 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 [NAME] 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 [NAME] 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 [NAME] should be precluded from applying for a review of the adoption plan and making submissions for the purposes of that review.

3. 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 [NAME] 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.

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

5. More significantly, however, the provisions in the [NAME] maternal adoption plan for contact visits between [NAME] and [NAME] are relatively infrequent and regulated, and given the need to foster the emotional connection between IEK and both [NAME] and [NAME] 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.

6. 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 [NAME] ultimately agrees to the final form of the maternal adoption plan.

7. 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: (2) [ADDRESS] may not make an adoption order if the parties to the adoption have agreed to an adoption plan unless it is satisfied that the arrangements [NAME] in the plan are in the [NAME] best interests and are proper in the circumstances.

Maternal adoption plan 1. 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 [NAME] to consult with [NAME]'s [NAME] 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 [NAME]'s visits, but the [NAME] two are described as being "wholly sibling focused". 2. [NAME] reduced the number of contact visits to four per year because [NAME] had struggled to attend visits on time, which caused disruption and disappointment to IEK.

3. 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 [NAME] to [NAME].

4. If, as expected, in accordance with the recent orders made by the Children's Court, [NAME] is successfully restored to [NAME], then [NAME] will be the "[NAME]" with whom [NAME] has to arrange two separate contact visits a year between [NAME], when it is contemplated by the maternal adoption plan that [NAME] will not be [NAME].

5. 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 [NAME], the maternal adoption plan appears to assume that [NAME]'s [NAME] will be a person [NAME] than [NAME].

6. It appears from pars 39 to 41 of [NAME]'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 [NAME] will be the [NAME] source of meeting IEK's cultural identity needs, the amount of access will be insufficient. In pars 87 to 97 of her affidavit, [NAME] 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. The evidence suggests that part of the problem lies in the fact that there is significant distance between the locations where [NAME] and [NAME] each live. [NAME] has to travel to contact visits by public transport and the transport schedules have apparently not been sufficiently reliable.

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

7. IDENTITY AND CULTURAL HERITAGE a) [IEK] is from a Polish-Australia background, born to a Polish mother and an Australian father, being raised by a [NAME] with Anglo-Saxon Australian heritage… b) [[NAME]] appreciates the importance of developing [IEK's] understanding of her family background in an age-[NAME] manner. [[NAME]] agrees that contact with [[NAME]] will play an important part in fostering [IEK's] identity and her Polish/Australian heritage. c) [[NAME]] will also ensure that [IEK's] Life story book contains up-to-date information about her [NAME] family background, the circumstances surrounding her entry into care and information relevant to her Polish/Australian heritage. d) [[NAME]] will share her Polish culture and traditions with [IEK] in an age-[NAME] manner during contact visits and/or by way of letters to [IEK]. e) [[NAME]] to provide [IEK] with opportunities to participate in Polish cultural celebrations and activities such as Name Day (Imieniny) and opportunities to interact with people from Polish backgrounds. f) [[NAME]] and [[NAME]] to support [IEK] to learn about and have access to Polish foods and the Polish language. g) A Cultural Plan has been devised to assist the [NAME] attend to [IEK's] identity and cultural heritage in addition to the extensive Life Story Work that has been completed reflecting and incorporating [IEK's] cultural heritage.

8. RELIGIOUS UPBRINGING [IEK's] mother identifies as Roman Catholic and has previously expressed a wish for [IEK] to be baptised into the Roman Catholic faith at some point in the future, but did not wish it to occur at this time. Should [[NAME]] request that [IEK] be baptised in the future, [[NAME]] has agreed to facilitate this, taking into account [IEK's] wishes.

1. The Cultural Plan referred to in par 7(g) of the maternal adoption plan was in evidence. It was signed by [NAME] and [NAME] and representatives of [NAME] in early 2016. As I understand [NAME]'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 [NAME] cultural needs, so that the Court should not be satisfied that the arrangements [NAME] in the adoption plan are in the [NAME] best interests and proper in the circumstances, and accordingly should refuse to make the adoption order.

2. In my view, [NAME]'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 [NAME] 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. [ADDRESS] 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 [NAME] best interests and are proper in the circumstances.

3. 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 [NAME], 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".

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

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

6. 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 [NAME]'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 [NAME] live for people to participate in Polish cultural activities.

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

8. I am [NAME] that [NAME] 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 [NAME]. As I have noted above, the maternal adoption plan does not appear to work properly, given that it provides for [NAME] to have four contact visits per year and [NAME] six visits. At least so long as [NAME] has parental responsibility for [NAME], 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 [NAME] to ensure that all that can be done is done to agree to a plan that facilitates the continuation of a bond between [NAME], and the development and sustainment of a sibling bond between [NAME]. 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.

9. 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 [NAME] family and cultural heritage.

10. 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 [NAME] officer of [NAME] and [NAME] 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. 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 [NAME]'s mother. There is also provision for the possibility of future telephone contact and electronic communication, although that is not happening at [NAME]. [NAME] agrees to provide certain information and photos to DSC. 2. [ADDRESS] does not know what attitude DSC has, if any, to the paternal adoption plan.

3. There is evidence that [NAME] 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. I am satisfied that s 90(2) of the Adoption Act is satisfied in respect of the paternal adoption plan.

Name of IEK 1. 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 [NAME]'s surname as her surname.

2. Section 101(1)(b) of the Adoption Act requires the Court, on the making of an adoption order, for [NAME] 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 [NAME]. 3. [NAME] has applied for IEK to be given the names requested by the Secretary's application. I do not understand [NAME] to have opposed this course, assuming that an adoption order is made.

4. Section 101(2) of the Adoption Act provides that, before changing the surname or given names of [NAME], the Court must consider any wishes expressed by the child and any factors (such as the [NAME] maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the [NAME] wishes. There is evidence that IEK has said on occasion that she would have her "full name" when it had [NAME]'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 [NAME] by [NAME].

5. 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. Section 21(2) of the Status of Children Act 1996 (NSW) (Status Act) provides: (2) On any such application, the Supreme Court may make a declaration that a named or identified person is [NAME]'s [NAME]. 1. "Such application" includes, as in the [NAME] case, an application by the delegate of the Secretary for a declaration as authorised by s 21(1)(d) of the Status Act.

2. 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.

3. The evidence is that [NAME] 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 [NAME] procedure, a parentage testing procedure report issued by [NAME] 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 [NAME] certificate.

4. In Adoption of BS (No 3) [2013] NSWSC 2033, [NAME] said at [100]: Inclusion of his [NAME] father's name on the original [NAME] certificate would enable the child to access that information under the adoption information provisions in due course. If that information is not included, the [NAME] father would be an "unacknowledged [NAME] father" within those provisions, and the child would not be able to access information concerning him… 1. 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].

2. 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.

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. 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 [NAME] maternal adoption plan.

3. The [NAME] maternal adoption plan must be revised to at least accommodate the fact that [NAME] may be restored to the care of [NAME], so that [NAME] may need to be [NAME] on all occasions when [NAME] 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 [NAME] be [NAME]. 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 [NAME] and [NAME] 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 [NAME] 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. It is [NAME] 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 [NAME].

2. 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 [NAME]. 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 [NAME] 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 [NAME].

3. That process requires that a detailed care plan be prepared by the Secretary, directed at achieving the most [NAME] 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 [NAME], and the Children's Court will approach the making of the [NAME] care orders having the Secretary's determination in mind.

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

5. Yet, so far as the Adoption Act is [NAME], 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. [ADDRESS] is also required by s 8(1)(e1), in making a decision about the adoption of [NAME], to have regard to the principle that undue delay in making a decision in relation to the adoption of [NAME] is likely to prejudice the [NAME] welfare, as one of a significant number of factors to be taken into account.

6. 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 [NAME] action that could be taken by law.

7. 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. 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. 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 [NAME] adopting [NAME] 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. 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. [ADDRESS] 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 [NAME] 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. 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 [NAME] 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 [NAME]? If the Court is intended to have a power, independently of the Children's Court, to make parental responsibility orders until the [NAME] 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 [NAME] 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 [NAME] may be reviewed? 12. This is a very important question, because, as happened in the [NAME] case, the [NAME] of [NAME] 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. 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. In any event, it is strange to think that this Court might be given a comprehensive power to regulate the parental responsibility for a [NAME], 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 [NAME].

15. 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 [NAME] 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 [NAME] 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. 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 [NAME]. 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 [NAME] possibilities are likely to receive only rudimentary treatment.

17. 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, [NAME], 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. Among many difficulties that may arise out of the interaction between the Adoption Act and the Care Act, from the perspective of [NAME], 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 [NAME] to challenge the making of an adoption order under the Adoption Act. The [NAME] 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 [NAME] 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 [NAME] 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 [NAME] on 19 October 2015, with the expectation of [NAME] and [NAME] 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. [NAME] had been forming a family attachment over the period.

19. It is in these circumstances that the Court is required to determine whether adoption is clearly preferable to any [NAME] action that may be taken at law. In the [NAME] 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 [NAME] may need time to be able to demonstrate their capacity to take parental responsibility for [NAME], and the child must spend time with the [NAME] or parents before he or she can develop a stable and secure relationship with them. But time is the enemy of [NAME] who lose the care of their children, because, once [NAME] has become attached to the [NAME], 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 [NAME] 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 [NAME], and often also to the child.

20. Then, there is the problem that arises in relation to [NAME] 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. Section 46(2A) of the Adoption Act requires that a [NAME] who has not consented to the adoption of [NAME] be given an opportunity to participate in the development of, and agreement to, an adoption plan. The [NAME] may choose not to avail him or herself of that opportunity. Even if the [NAME] negotiates the adoption plan, he or she may not be happy with it and may not agree with it.

22. 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 [NAME] 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 [NAME] 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 [NAME] who has not agreed to the adoption plan will not have a right to make submissions.

23. Section 46(2B) of the Adoption Act deems a non-consenting [NAME] 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 [NAME] 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 [NAME] who does not consent to the adoption but does consent to the adoption plan. It is difficult to see why, when a [NAME] 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 [NAME] 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. 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 [NAME] 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.

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Amendments 20 March 2019 - Paragraph numbering corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2019