M and Adoption of Children Act 1965 [1992] ACTSC 121; (1992) 112 ACTR 39; (1992) 111 FLR 393 (9 December 1992)

SUPREME COURT OF THE ACT

M AND ADOPTION OF CHILDREN ACT 1965
No. AD 28 of 1992
Number of pages - 24
Adoption
[1992] ACTSC 121; (1992) 112 ACTR 39
(1992) 111 FLR 393

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Adoption - Recognition of overseas adoption orders - Domicile or resident in country where order was made - status of child prior to Australian adoption order.

Adoption - Consent of guardian - Guardian of non-citizen child (delegate of Minister of State for Immigration).

Adoption of Children Act 1965 (ACT), ss.8, 9, 19, 24(3), 27, 30, 43, 44, 50

Adoption of Children Regulations (ACT)

Immigration (Guardianship of Children) Act 1946 (Cth), ss.4, 4A, 6, 7(1), 11

Domicile Act 1982 (Cth), s.10

U N Convention on the Rights of the Child, Article 8, 21

Williams v Osenton (1914) US 619

Re: an Infant (1973) Qd R 116

Re C and the Adoption of Children Ordinance 1965 (ACT) (1979) 25 ACTR 43

Re an Infant (1981) Qd R 225

Norman v Norman (1969) 16 FLR 231

Sinclair v Sinclair (1968) P 189

Firebrace v Firebrace (1878) 4 PD 63

HEARING

CANBERRA, 9 December 1992
9:12:1992

Counsel for the Applicants: Self

Instructed by: Self

Counsel for Director of Family Services: Ms K.Y. Sim

ORDER

THE COURT ORDERS THAT:
1. This child hereby become the adopted child of the applicants.

2. Pursuant to s.50 of the Adoption Act these reasons may be
published but otherwise the restriction on publication
imposed by that section will continue to apply.

DECISION

HIGGINS J. This is an application for an adoption order. It is unusual only because of the stance taken by the applicants.

2. Initially, they gave notice, on 6 October 1992, of intention to apply for an order that certain documents be accepted as a report from the Director of Family Services, ACT Housing and Community Services Bureau (the "Director") pursuant to s.19 of the Adoption of Children Act 1965 (ACT) (the "Adoption Act").

3. They also filed on the same day a Notice of Motion seeking an order dispensing with the consent of the birth mother of the child in question pursuant to s.30 of the Adoption Act. I will refer to the child as "M". There was also a request that service of that application on the birth mother be dispensed with.

4. Additionally, an adoption order pursuant to s.16 of the Adoption Act was also sought.

5. M is, by all accounts, a happy and healthy infant. He was born on 10 April 1991 at Colombo, Sri Lanka. The identity of his mother is known but not that of his father. His mother and father were not married. Accordingly, the consent of the putative father is not a legal necessity (see s.24(3) of the Adoption Act).

6. On 7 May 1991, the applicants were notified by the Director that she approved of the applicants as proposed adoptive parents in respect of a Sri Lankan child, as young as possible and "of either gender". They had previously been assessed as suitable adoptive parents for an overseas adoption pursuant to a report prepared for the Director on 7 November 1990. The Regional Director, Department of Immigration and Ethnic Affairs was also advised. The approval related specifically to baby M, born 10 April 1991 in Sri Lanka.

7. The applicants immediately made arrangements to travel to Sri Lanka. They arrived on 10 May 1991.

8. On 7 June 1991 an application was made by the applicants to the District and Family Court of Colombo for the adoption by them of baby M. The birth mother signed a form of consent.

9. Whilst not as extensive as the form of consent required under the Adoption of Children Regulations (ACT) (Form 1), it appears to be a genuine expression of consent. It was accepted as complying with Sri Lankan law. It is not, of course, in the form required by s.27 of the Adoption Act.

10. A Judge of the District and Family Court of Colombo made an order on 7 June 1991 approving the adoption of baby M by the applicants. The applicants and M then left Sri Lanka on 8 June 1991. They arrived in Australia on 10 June 1991. M had been approved as a permanent resident and was allowed entry, in the care of the applicants, accordingly.

11. On 28 October 1992 I made an order, pursuant to s.30 of the Adoption Act, dispensing with the consent of the birth mother. That was not opposed by the Director. However, the Director contended that she, herself, was a legal guardian of the child so that her consent was necessary unless the Court was persuaded to dispense with it. That would require the Court to be satisfied that there were "special circumstances" by reason of which the consent may properly be dispensed with" (s.30(1)(e), Adoption Act).

Consent of Director
12. Section 24(3) of the Adoption Act is in the following terms:-

"In the case of an illegitimate child who has not previously been
adopted, the appropriate person (to give consent) is every person
who is the mother or guardian of the child."

13. The Immigration (Guardianship of Children) Act 1946 (Cth) ("Immigration (GOC) Act") s.6, makes "the Minister" the legal guardian of every "non-citizen child who arrives in Australia".

14. In the Immigration (GOC) Act, the term "non-citizen child" is defined by s.4 as,

"... a person under the age of 18 years who enters Australia as a
non-citizen and who intends to become, or who is intended to
become, a permanent resident of Australia, not being a person who
enters Australia in the charge of, or for the purpose of living
in Australia under the care of, a parent of that person, or a
relative of that person not less than 21 years of age."

15. On 20 June 1991, the Director, as delegate of the Minister certified, pursuant to s.4A of the Immigration (GOC) Act, that M was a "non-citizen child". No challenge was made to the validity of the certificate. It constituted prima facie, but not conclusive, evidence of the fact so certified.

16. Under s.11 of the Immigration (GOC) Act, the Minister may, by order in writing under his hand, direct that the Act shall not apply to a particular child. There was in force, as from 29 July 1991, a delegation to the Director from the Minister of State for Immigration, Local Government and Ethnic Affairs, (the relevant "Minister") of the Minister's powers under s.11. The validity of that delegation was not questioned in the proceedings.

17. The applicants questioned the application of the Immigration (GOC) Act to M. They contended that, by virtue of the order of the Sri Lankan District and Family Court, they each had became a "parent" of M so that the definition of "non-citizen child" under that Act did not apply to M. It would follow, they submitted, that the operative provisions of that Act had no application to M.

18. It is, however, unnecessary to decide whether, as at 10 June 1991, M was "a non-citizen child" within the meaning of that Act as, on 16 November 1992, the Director, as delegate of the Minister, signed a certificate, pursuant to s.11, that the Act no longer applied to M, as and from 18 November 1992.

19. The Immigration (GOC) Act is the only source for the Director to be considered a guardian of M. Accordingly, whether the Act never applied or has, only from 18 November 1992, ceased to apply is presently of only academic interest.

An adoption order - Is it necessary?
20. At the hearing on 18 November 1992, the applicants, although they had given notice of an intention to apply for an adoption order, submitted that no such order was required. All that was required, they contended, was an order declaring that the adoption order made in Sri Lanka on 7 June 1991 should be recognised as an order having effect in this Territory pursuant to s.43 of the Adoption Act.

21. Of course, if that contention is correct, it would also follow that the applicants were each an adoptive "parent" of M at the time he entered Australia. That might well, also, have excluded M from the operation of the Immigration (GOC) Act. However, I do not need to determine that latter question.

22. Recognition of overseas adoption orders is provided for by s.43 of the Adoption Act.

"43. (1) For the purposes of the laws of the Territory, the
adoption of a person (whether before or after the commencement of
this Ordinance) in a country outside the Commonwealth and the
Territories of the Commonwealth, being an adoption to which this
section applies, has, so long as it has not been rescinded under
the law of that country, the same effect as an adoption order
under this Ordinance.
(2) This section applies to an adoption in a country if -
(a) the adoption was effective according to the law of that
country;
(b) at the time at which the legal steps that resulted in
the adoption were commenced, the adopter, or each of
the adopters, was resident or domiciled in that
country;
(c) in consequence of the adoption, the adopter or adopters
had, or would (if the adopted person had been a young
child) have had immediately following the adoption,
according to the law of that country, a right superior
to that of any natural parent of the adopted person in
respect of the custody of the adopted person; and
(d) under the law of that country the adopter or adopters
were, by virtue of the adoption, placed generally in
relation to the adopted person in the position of a
parent or parents.
(3) Notwithstanding the foregoing provisions of this
section, a court (including a court dealing with an application
under the next succeeding section) may refuse to recognize an
adoption as being an adoption to which this section applies if it
appears to the court that the procedure followed, or the law
applied, in connexion with the adoption involved a denial of
natural justice or did not comply with the requirements of
substantial justice.
(4) Where, in any proceedings before a court (including proceedings
under the next succeeding section), the question arises whether an
adoption is one to which this section applies, it shall be presumed,
unless the contrary appears from the evidence, that the adoption
complies with the requirements of sub-section (2) of this section
and has not been rescinded.
(5) Except as provided in this section, the adoption of a
person (whether before or after the commencement of this
Ordinance) in a country outside the Commonwealth and the
Territories of the Commonwealth does not have effect for the
purposes of the laws of the Territory.
(6) Nothing in this section affects any right that was
acquired by, or became vested in, a person before the
commencement of this Ordinance."

23. There are a number of matters not in issue.

24. I accept that the adoption order of 7 June 1991 was effective according to the law of Sri Lanka. I accept that the order extinguished the right of any natural parent to custody of M. It established such right in the applicants, so far as the law of Sri Lanka is concerned, and placed them in the position of any such natural parent. It does not appear to me that the procedure followed or the law applied in connexion with that adoption involved any denial of natural justice or failed to comply with the requirements of substantial justice. I am, in any event, required by sub-s. 43(4) to assume such compliance in the absence of any evidence to the contrary.

25. The Director, however, submits that when the legal steps for the adoption were commenced the applicants were not "resident or domiciled" in Sri Lanka.

26. If they were not, then the adoption order made in Sri Lanka "does not have effect for the purposes of the laws of the Territory" (sub-s. 43(5)).

27. "Domicile" is governed, in this Territory by the Domicile Act 1982 (Cth). That Act does not change the meaning of that term from that usually accepted by the common law.

28. Each of the applicants was born in Australia. They were married to each other in this Territory in 1973. They have each lived here since. I am satisfied that they each regard this Territory as their permanent home. The law assumes that each person at one time has only one "pre-eminent headquarters" (per Holmes J in Williams v Osenton (1914) US 619, 620).

29. Under s.10 of the Domicile Act 1982, if the applicants, or either of them was to acquire a domicile of choice in Sri Lanka they would need to demonstrate an intention to make their home "indefinitely in that country". The applicants do not contend that they went to Sri Lanka for any purpose other than the adoption of M. It is obvious they did not at any stage abandon their Australian domicile. At no time, could it be concluded, did the applicants or either of them acquire a Sri Lankan domicile.

30. They do contend that they were "resident" in Sri Lanka at the time that the legal proceedings leading to adoption were commenced. I am prepared to accept that they were both present in Sri Lanka at that time.

31. There is no evidence to suggest that the legal proceedings for adoption were commenced prior to the date of the order. As at that date the applicants had been present in Sri Lanka for approximately four weeks.

32. Section 8 of the Adoption Act confers jurisdiction on this Court if the child is present in the Territory and the applicant or applicants are domiciled or resident in the Territory, "on a date within twenty-one days before the date on which an application was filed in the Court". If so, "... the Court may, in the absence of evidence to the contrary, presume that the applicant was resident or domiciled in the Territory ... at the time of the filing in the Court of the application".

33. The applicants submitted that under Sri Lankan law they were required to be either domiciled in Sri Lanka or to have been resident in Sri Lanka for at least 21 days before the grant of an adoption order. That was, they contended, a similar criterion to that specified pursuant to the legislation applicable in this Territory.

34. I assume in favour of the applicants that "residence" for the purpose of the Sri Lankan law meant, as at 7 June 1991, no more that previous presence for a continuous period of three weeks. Thus they qualified as "resident" in Sri Lanka for three weeks before the order in question was sought.

35. Section 8 of the Adoption Act does not require any particular length of time for presence to qualify as "residence". It provides only that if the applicant is "resident" at the date of filing of the application, then jurisdiction may be assumed by the Court. Sub-s. 8(2) facilitates proof of the fact of residence by reference to "residence" within the preceding 21 days.

36. It is, in fact, a different requirement than that which the applicants understood to apply to them under Sri Lankan law.

37. It is apparent that the word "resident" in s.8 is to be given the same meaning as the word "resident" in s.43(2)(b). Clearly, the law would recognise overseas adoption orders granted on similar grounds to those granted in the Territory. It does not recognise, necessarily, orders granted on a basis not recognised under Territory law.

38. Section 9 of the Adoption Act permits the making of an adoption order in any case where s.43 does not permit recognition of an overseas adoption order.

39. Whether s.43 permits such recognition therefore depends on whether the presence of the applicants in Sri Lanka, made them "resident" in Sri Lanka at the date on which the "legal steps" for M's adoption were commenced. They must have been so resident in the same sense in which the word is used in the Adoption Act.

40. In Re: an Infant (1973) Qd R 116, the adopters were Australian Citizens. They were stationed in Malaysia. They went to Jakarta, Indonesia. They stayed 10 days during which time they there adopted a child. That adoption, it was accepted, was valid according to Indonesian law.

41. The requirement for recognition of the adoption order under Queensland law was relevantly the same as in this Territory.

42. Williams J held,

(117) "It seems to me that a residence of ten days would in the
circumstances constitute them (that is, the applicants) as
"resident" in that country within the meaning of that section.
Looking at the translation of the documents it is obvious that
the authorities in question had the opportunity of seeing, and if
necessary examining the applicants, with a view to considering
their suitability or otherwise. It seems to me that that is what
is intended by "resident" as referred to in that subsection, the
whole purpose being that the authorities either had the
opportunity, or took the opportunity, of looking at the putative
parents with a view to considering their suitability."

43. I assume, in favour of the applicants' contention, that the waiting period of 21 days required under Sri Lankan law was for a similar purpose. If Williams J is correct, therefore, s.43 would be satisfied.

44. His Honour's opinion has been doubted. In Re C and the Adoption of Children Ordinance 1965 (ACT) (19) 25 ACTR 43 an order was sought under s.44 of the Adoption Act (as it is now cited) for the recognition of an overseas adoption order. The question was whether recognition was excluded by the terms of s.43.

45. The applicants were husband and wife. Only the wife had gone to the foreign country in question to obtain an adoption order there. Nevertheless, the foreign court making the order had, apparently, made an order in favour of both the applicants. Accordingly, in his Honour's opinion, the order failed to satisfy s.43(2)(b). It could not be contended that the husband had ever been resident in the foreign country.

46. Blackburn C.J., accordingly, refused the application for recognition. It is obvious that the decision is not directly applicable to the present case. His Honour, however, added the following obiter dicta,

(45) "There is one further matter. The evidence shows that the
wife went to the foreign country for the purpose of the adoption
proceedings there, and returned 14 days later, after the order
had been made. Apparently she was considered a resident there
for the purposes of the foreign adoption law; but that is
irrelevant. I have no doubt that the word "resident" in s.43(2)
must be construed according to the law of this Territory. On
that footing, I am in some doubt whether the wife was "resident"
in the foreign country at the time of the adoption proceedings.
I note that in Re an infant (1973) Qd R 116, Williams J construed
"resident" in s.38(2) of the Adoption of Children Acts 1964-1967
(Qld) (in which it occurs in a phrase identical with that which
is before me) as being satisfied by a sojourn in the foreign
country of a length sufficient to permit the foreign authorities
to see and examine the applicants with a view to considering
their suitability. With respect to his Honour, I am not
persuaded that that construction is correct, but I do not have to
decide the point and I would prefer to hear it fully argued
before doing so."

47. It follows that it is, at least, likely that his Honour would have refused to recognise the adoption order in question even if both applicants had gone to the foreign country and qualified as "residents" for the purpose of its adoption laws.

48. In Re an Infant (1981) Qd R 225, Kneipp J was asked to recognise an adoption order made in the Philippines. The adopters had each gone to the Philippines and stayed there for a short period. They were usually and permanently resident in Queensland.

49. Kneipp J was invited to follow the opinion of Williams J. As to that invitation, his Honour stated,

(226-7) "I regret that I do not feel able to adopt the view
which His Honour took of the provision. The terms "residence",
"resident" and "resides" have been and are to be found in many
statutes. There have been some variations in meanings which have
been attached to them, depending on the context, but I think that
I am correct in saying that almost invariably they have been
construed by reference to the view that the primary meaning of
"residence" is a permanent place of abode. This construction has
been adopted in relation to statutes concerned with adoption
proceedings. I refer, for instance to Re an infant G, (1968) 87
WN (NSW) (Pt. 1) 561; In re an Adoption application (1952) Ch
16, and In the adoption of D and N, (1977) 1 SR (WA) 7. In my
opinion the applicants were at all material times resident in
Queensland. They could not at the same time be said to be
resident in the Republic of the Philippines. In the result, I
feel constrained, with regret, to the view that the application
fails and should be dismissed. Ironically enough, it is provided
by s.38(4) (formerly sub-sec. (5)) that where in any proceedings
before a court a question arises whether an adoption is one to
which the section applies, it shall be presumed, unless the
contrary appears from the evidence, that the adoption complies
with the requirements of sub-sec. (2) of the section. Had there
been no material before me in relation to the residence of the
applicants, then it would seem that, with the aid of the
presumption, the application would have to succeed. However, as
one would expect, they have in fact put the true facts before the
court and, as I have said, I think that the result is that the
application must fail."

50. There is, of course, no authority which binds me to follow the opinion of Kneipp J rather than Williams J. Nevertheless, it seems to me that the weight of authority favours the doubts expressed by Blackburn C.J.

51. I am fortified in that view by the consideration that the term "resident", used in the Adoption Act, is not qualified by reference to any period of time, such as "residence for a continuous period of ...". It is not qualified, either, by the terms "habitual" or "ordinarily".

52. In Norman v Norman (1969) 16 FLR 231, Fox J considered that, for the purpose of matrimonial causes legislation, the term "resident" could be equated with "ordinarily resident".

53. A real and substantial connection would be expected for recognition of decrees and orders establishing status, such as marriage, divorce and adoption. Even so, more than one place of residence is possible (see, for example, Sinclair v Sinclair (1968) P 189).

54. The casual visitor or traveller would not usually be regarded as "a resident" (see, for example, Firebrace v Firebrace (1878) 4 PD 63).

55. In my opinion, the term "resident" in the Adoption Act is used in the sense that the person referred to is "ordinarily", "habitually" or "usually" so resident. Residence for a short period, merely to satisfy local jurisdictional requirements, based merely on presence for a short period of time, does not qualify.

56. If the term "resident" in the Adoption Act was intended to encompass a temporary stay to qualify for adoption, a view that would not be acceptable, I believe, if the position was reversed, one would expect a specific qualifying period to be nominated. I note that, if the applicants were correctly informed, and I have no cause to doubt that they were, such a qualifying period was expressly nominated under Sri Lankan law.

An adoption order - should it be made?
57. Non-recognition of the Sri Lankan order does not mean it is ignored. Comity demands that it be given due respect. Indeed, I have already done so by accepting that the mother's consent to adoption was freely and properly sought and given so that consent of the birth mother could properly be dispensed with.

58. There was an objection by the applicants to scrutiny of the placement of the child with them even if an order was necessary. They objected that the administrative processes applied to overseas adoptions was discriminatory, unfair and, relevantly, unnecessary.

59. The process required by the authorities with respect to overseas adoptions does differ from those applied to domestic adoptions. Any civilised nation which permits foreign nationals to adopt children of its nationals would have a legitimate interest in ensuring that the country to which the child is taken will respect the rights of that child including its identity and culture derived from its country of origin.

60. Those rights are recognised by Article 8 of the U N Convention on the Rights of the Child.

61. Article 21 deals expressly with inter-country adoptions.

"States Parties that recognize and/or permit the system of
adoption shall ensure that the best interests of the child shall:
(a) Ensure that the adoption of a child is authorized only by
competent authorities who determine, in accordance with
applicable law and procedures and on the basis of all
pertinent and reliable information, that the adoption is
permissible in view of the child's status concerning
parents, relatives and legal guardians and that, if
required, the persons concerned have given their informed
consent to the adoption on the basis of such counselling as
may be necessary;
(b) Recognize that inter-country adoption may be considered as
an alternative means of child's care, if the child cannot be
placed in a foster or an adoptive family or cannot in any
suitable manner be cared for in the child's country of origin;
(c) Ensure that the child concerned by intercountry adoption
enjoys safeguards and standards equivalent to those existing
in the case of national adoption;
(d) Take all appropriate measures to ensure that, in
intercountry adoption, the placement does not result in
improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present
article by concluding bilateral or multilateral arrangements
or agreements, and endeavour, within this framework, to
ensure that the placement of the child in another country is
carried out by competent authorities or organs."

62. Those obligations are binding on welfare authorities in the country receiving the adopted child just as much as they are binding on the country of origin of the child.

63. The Director filed an affidavit in these proceedings in which she outlined the processes for intercountry adoptions as they are observed in this Territory.

64. In September 1986 there was a Report to the Council of Social Welfare Ministers and to the Minister for Immigration and Ethnic Affairs. It was written by the Joint Committee on Intercountry Adoption.

65. That report supports the continued application of the Immigration (GOC) Act. That Act appoints the Minister as guardian of all children brought into Australia following placement overseas with persons then domiciled or resident in Australia. That Act was regarded as providing an important protection for the child pending the making of a local adoption order. Delegation of guardianship responsibility to local welfare departments was also supported.

66. Australia has undertaken treaty obligations with many countries relating to adoptions of children from them and undertakes to provide progress reports on the placement, usually during the first 12 months. Some countries require a longer period.

67. It is, of course, obvious that this process is different from that applicable to intra-country adoptions. That difference is, however, embraced in the interests of international comity and of the children adopted from overseas. It should also be seen as being in the interests of prospective adopters. If that system was to be undermined, it is possible that some countries might refuse to place children with Australian adopters.

68. Accordingly, I believe, both the Director's office and this Court should ensure, so far as possible, that the international obligations mentioned are respected. I would add, as it was mentioned in this case, that the obligations in question are to be respected whether or not the individual parents have personally made similar undertakings to an overseas court or other adopting authority.

69. It was further recommended that the obtaining of a local adoption order by the adoptive parents be encouraged. Of course, a local decree recognising an overseas order would serve as well but it is important, I believe, that the status of a child adopted overseas should not be in doubt. Some countries could well refuse to recognise an adoption order made overseas in favour of Australian domiciliaries or permanent residents. If an order is made both in the country of origin and in that of the adoptive parents, such doubt is highly unlikely to arise.

70. The Ministers, in April 1986, responded with approval to certain of those recommended principles. The principles so approved were followed in this case. It is interesting that the Ministers expressly assumed the residence test applicable in State and Territorial legislation required "a minimum continuous period of residence of twelve months."

71. It seems to me that to have adopted the view urged by the applicants, namely, that they have already acquired unqualified rights to be regarded as M's parents, would seriously jeopardise both the system of intercountry adoptions and, also, place some children at risk should the placement turn out to be unsuccessful.

72. There are, I recognise, cases where the placement in question can be seen, almost immediately, to be successful. These are, also, cases where special circumstances make it desirable, that, in the interests of the child in question, an adoption order should be made forthwith notwithstanding that the 12 month period has not then expired.

73. In those cases, it would, normally, be expected that the adoptive parents would agree to permit the Director to fulfil Australia's obligations to the country of origin of the child insofar as they then remained unfulfilled.

74. I should refer to another matter. The applicants submitted that the Minister, under the Immigration (GOC) Act, should have placed M with a "custodian" pursuant to s.7(1). That section is, however, expressed in permissive not mandatory terms. If a "non-citizen child" is, in fact, placed with a custodian then, of course, Regulation 5 would apply to that process to require a record thereof to be kept.

75. What then is the status of a child adopted overseas in circumstances where that order or placement does not qualify for immediate legal recognition?

76. The applicants are quite correct to point to the ambiguous situation that confronts them. On the one hand, the country of origin regards them, for its purposes, as M's parents. They so regard themselves. Yet the law in this country regards the Director, pursuant to the Minister's delegation, as the child's guardian. Theoretically, she could place the child with other persons than the applicants.

77. There is no satisfactory way to resolve that dilemma other than, in the first instance, to trust that the welfare authorities will act with tact and sensitivity both in the preliminary approval phase and the post-placement adoption process. On the other hand, adoptive parents, in that process, need to understand the legitimate role and concerns of the welfare authorities.

78. If it is of any comfort to applicants, it may be noted that if a person who has obtained an overseas adoption order is concerned that welfare supervision has been too obtrusive or has been inappropriate, this Court has ample powers to resolve the situation.

79. I was concerned, in this case, with the obvious hostility that had developed between the Director's officers and the applicants. It was not a personal hostility so much as an insistence by the applicants that they had parental rights which ought to be respected. That view was, legally, erroneous. I had the impression, however, that, by and large, the welfare officers concerned in the matter understood the applicants' position and, whilst not conceding it to be correct, did not take any precipitate action.

80. It is, I accept, contrary to the interests of any child that its legal status as a family member should be in doubt. The circumstances that arise in this case, post-placement and before the making of a local adoption order, illustrate that. Given the care which welfare authorities take to approve proposed adopters, it is unlikely that there would ever arise a need to alter a placement made pursuant to an overseas adoption order. It is certainly undesirable that such a theoretical likelihood should remain in existence for longer than is necessary.

81. In this regard, I note that welfare authorities do not undertake to overseas authorities that the making of local adoption orders, where required, will be delayed for 12 months (or more). Rather, they promise only to monitor the adoptive relationship for (usually) 12 months and report to overseas authorities on the placement over that period of time.

82. Of course, the Director cannot be expected to relinquish her guardianship rights unless and until she is satisfied that it is in the interests of the child in question so to do. That may well require some time for assessment and report. It is, however, not obvious to me that such process always needs to take longer than for a local placement. Of course, for children older than M (M was, at placement, only two months old) there could be difficulty with cultural adjustment. It is also true that to adopt arbitrary time delays reduces the likelihood that one adoptive couple may feel resentment at being treated differently from another, even though valid reasons may exist for doing so. On balance, however, I feel that a more flexible approach as consistent as possible with that used for local adoptions, would tend to avoid the perception, which I am satisfied is misconceived, that overseas adoptees are discriminated against on the basis of their origin.

83. It is consistent with the UN Declaration, to which I have earlier referred, that in any case where a child is placed for adoption, whether that child be of overseas origin or not, an adoption order be made as soon as practicable. That is, I believe, in the interests, not only of the child in having a secure family with full legal status, but also of the adoptive parents and the relevant welfare authorities.

84. In this case, M has been placed with the applicants since 7 June 1991. The reports produced both by the applicants and the Director attest to the fact that the placement has been most successful. The tensions between the welfare authority and the applicants is greatly to be regretted but it has not adversely affected the welfare of the child.

85. I am satisfied that it is in M's interests that an adoption order be made in favour of the applicants and I propose now to make that order forthwith.