Recent Cases in Adoption & Implications for Practice - PowerPoint Presentation

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Recent Cases in Adoption & Implications for Practice

Nicole Hailstone, Senior Solicitor, CSO

Legal Aid Care and Protection Conference

7 August 2015Slide2

Out of home care adoptionsIntercountry adoptionsRelative or step-parent adoptionsSpecial case adoptions

Local and Permanent Care adoptions

Types of Adoption ApplicationsSlide3

2008-2009 Financial Year 302009-2010 Financial Year 482011-2012 Financial Year 652013-2014

Financial Year

84

Figures taken from: “Thinking About Adoption”, June 2013, Family and

Community Services

Numbers of OOHC AdoptionsSlide4

Adoption of KTM and AM [2015] NSWSC 296

Recent Cases

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Section 46 – What is an Adoption Plan

(1) An adoption plan is a plan agreed to by two or more of the

parties to the adoption

of a child that includes provisions relating to: (a) the making of arrangements for the exchange of information between the parties in relation to any one or more of the following:

(

i

) the child’s medical background or condition,

(ii) the child’s development and important events in the child’s life,

(iii) the means and nature of contact between the parties and the child, and

(b) any other matter relating to the adoption of the child.Note. Parties to an adoption is defined in the Dictionary. The Court is required to take an adoption plan into consideration in making an adoption order. See section 90 (2) and (3).(2) Without limiting the matters for which an adoption plan may make provision: (a) it may set out the ways in which the child is to be assisted to develop a healthy and positive cultural identity and for links with that heritage to be fostered, and (b) it may provide for the giving of certain financial and other assistance as referred to in section 201.(2A) A birth parent who has not consented to the adoption of a child (a non-consenting birth parent) 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.(2B) A non-consenting birth parent who agrees to an adoption plan is, for the purposes of sections 47, 48, 50, 51 and 90, to be treated as if the non-consenting birth parent were a party to the adoption of the child.

Adoption Act 2000Slide6

Director-General, NSW Department of Family and Community Services Re JS

[2013] NSWSC 306

CaseSlide7

50   Registration of adoption plans

(1)  The parties to an adoption who have agreed to an adoption plan may apply to the Court for registration of the plan.

(2)  The regulations may make provision for or with respect to such an application.(3)  The Court may register an adoption plan if it is satisfied that:

(a)   the plan does not contravene the adoption principles, and

(b)   the parties to the adoption understand the provisions of the plan and have freely entered into it, and

(c)   the provisions of the plan are in the child’s best interests and is proper in the circumstances.

(4)  An adoption plan that is registered has effect, on the making of the relevant adoption order, as if it were part of the order.

51

Review of adoption plans

(1)  The Court 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 appropriate, or (b)   revoke the plan, or (c)   confirm the plan.(4)  The Court 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.

Adoption Act 2000Slide8

39.49   Enforcement by or against non-party

(1)  If, in any proceedings, a person who is not a party obtains an order, or an order is made in favour of a person who is not a party, that person may enforce the order as if that person were a party.

(2)  If, in any proceedings, a judgment or order may be enforced against a person who is not a party, the judgment or order may be enforced against that person by the same means as if that person were a party.

(3)  If, in any proceedings, compliance with a judgment or order may be enforced against a corporation that is not a party, any senior officer of the corporation is liable to the same process of enforcement as if the corporation were a party.

Uniform Civil Procedure Rules

2005Slide9

2. Adoption of RCC and RZA [2015] NSWSC 813

Recent Cases

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Key background facts:Subject children - twins born 23 September 2005;

Twins assumed into care July 2008;

Lived with proposed adoptive parents since May 2010;

Proposed adoptive parents are of Fijian-Indian origin &Christian faith;

Birth father formally consented to the twins’ adoption; he is of German origin and Christian Faith;Birth mother contesting adoption; Fijian-Indian origin and Muslim faith;

Four teenage siblings also removed from birth parents’ care in 2005;

Section 90 proceedings regarding three of the teenage siblings – birth mother now has parental responsibility;

Mother wants to seek leave under s. 90 to have twins restored.

Adoption of RCC and RZA

[2015] NSWSC 813Slide11

“a clear sense of identity is also an important life foundation for children, particularly against an early background of ambiguity or instability. One important aspect of a child’s identity needs is the need to know his or her origins” (at 26).

Adoption of RCC and RZA

[2015] NSWSC 813Slide12

“birth parent contact is an important aspect of satisfying the identity needs of children who do not reside with their birth family, and mitigating the risks of later identity issues” (at 88).

Adoption of RCC and RZA

[2015] NSWSC 813Slide13

3. Secretary, Department of Family and Community Services by his delegate, Principal Officer, Barnardos Australia; JLR [2015] NSWSC 926

Recent Cases

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Key Background facts:Subject child JLR born 19 February 2011;JLR assumed into care at hospital;

JLR is an anxious child; very settled and attached to her carers, a same sex couple with whom she has been living since June 2011;

Birth mother joined as first defendant, however, is an involuntary inpatient for majority of the proceedings;

Maternal grandfather, who identifies as TSI, participates as mother’s witness;

Paternal grandmother, who is Tanzanian, joined as second defendant;

PGM has shared PR, with the Minister, for JLR’s biological sibling, JR;

Father has no active role in JLR’s life, and his whereabouts are unknown.

Re: JLR [2015] NSWSC 926Slide15

“is aware and understands the preponderance of the evidence, even that of her own expert

(Dr Peter

Krabman), which favours the making of an adoption order”

(at 68).

Re: JLR

[2015] NSWSC 926Slide16

Director-General, Department of Family and Community Services; Re TVK [2012] NSWSC 1629

CaseSlide17

“irrespective of whether PGM could establish that she is a person “having the benefit of a deemed order”...she can approach one of the parties to the Plan including her son BF or Barnardos to make such an application under s 51(1) of the Act” (at 119).

Re: JLR

[2015] NSWSC 926Slide18

Increase in the registration of adoption plans and decrease in contested matters;

Increase in court proceedings regarding the enforcement or review of adoption plans;

The way in which the provisions of Adoption Plans are drafted;

The inclusion of extended family in adoption plans.

Implications for practiceSlide19

“

I do believe that the institution of adoption is different than other ways of family building, not less than, not more than, but not the same as

.”

-

Sharon Kaplan

Conclusion

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