Re W (A Child) [2016]

1. Facts:

• Background: A young girl, born in 2014, had been living with potential adoptive parents since she was 7 months old, making it 17 months at the time of the application.

• Initial Placement: The child was initially placed with foster parents, then moved to potential adoptive parents, with whom she had developed strong attachments.

• Family Situation: The child’s biological paternal grandparents sought custody after it was discovered they had another grandchild who was pending adoption.

• Court Decisions: The first instance judge placed the child with the paternal grandparents, emphasising the importance of keeping her within the 'natural family.'

2. Outcome:

• First Instance (Bodey J):

1. Proposed Adopters: Found that the child was very settled with her potential adoptive parents and that moving her would cause trauma.

2. Paternal Grandparents: Acknowledged their desire to care for the child due to their familial relationship and their capability to raise her alongside her sibling.

The order was made for the child to live with her paternal grandparents.

• Court of Appeal (LJ McFarlane):

• Set aside the first instance decision, criticising the overemphasis on the 'natural family' principle. Emphasised that there is no automatic presumption that a child should be placed with biological relatives and that the status quo should be given significant weight.

• Paramount Consideration: Reiterated that the child's best interests are the primary consideration.

• Rehearing (Justice Cobb):

• Concluded that moving the child to the grandparents would cause short- and long-term damage.

• Determined that the child's welfare would be best served by remaining with the potential adopters, who provided a stable and supportive environment.

The decision was made for the child to be adopted by the potential adopters.

3. Impact and Analysis:

• Full Welfare Analysis: The case reaffirms the necessity of a comprehensive welfare analysis in adoption cases, emphasising that decisions should be based on the child’s best interests rather than presumptive values related to biological relationships.

• Status Quo: The importance of maintaining the current placement was highlighted, especially where a child has formed strong emotional bonds and is settled with their current caregivers.

• Rejection of Presumption: The case demonstrates a critical approach to the 'natural family' presumption, acknowledging that the child's well-being may sometimes be better served by remaining with their current caregivers, even when biological relatives are available.

• Rachel Taylor’s Analysis: Taylor notes the significance of Re W in reinforcing that child welfare decisions must be based on thorough welfare assessments rather than presumptions about biological connections.