Under NSW law, when a judge is considering the placement of a child with adoptive parents, various considerations need to be addressed before any formal Order is made.
One of those considerations, which has received media attention recently, is that under the Adoption Act the Court must ensure the "culture, any disability, language and religion of the child and the principle that the child's given name, identity, language and cultural and religious ties should, as far as possible, be preserved." This includes the Court taking into account the capacity of the proposed adoptive parents to promote a relationship between the child and the child's cultural heritage.
The Supreme Court last month made a decision regarding a child, referred to in that decision as 'CJD', being adopted by a same sex couple that the child had lived with since she was six months old. The adoption was being disputed by CJD's birth parents on the grounds that the proposed adoptive parents were unwilling to commit to raising her as a Catholic. The adoption agency acting on behalf of the proposed adoptive parents stated that it wasn't in the child's best interests to be baptised or christened because her adoptive parents would "not be able to facilitate her involvement and development with Catholicism due to their sexual orientation."
Judge Sackar, heard submissions from both parties and ultimately found that the willingness of the proposed adoptive parents to commit to regular contact visits with the birth parents was sufficient to allow the birth parents to facilitate her involvement with the Christian faith if they wished to. Judge Sackar also found this would allow the child future involvement in the Christian faith, in accordance with her wishes.
The Judge indicated that although the cultural heritage of the child is an important issue to consider, ultimately the best interests of the child must be of the utmost importance, and that in circumstances when neither birth parent had shown capacity to care for CJD, it was in her best interests to remain living with two loving parents.
The case of CJD highlights the potential for further cultural issues to arise following recent amendments to the state's adoption laws, and how the Court will deal with those issues moving forward.
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