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G v M HC Christchurch AP22/01 [2001] NZHC 1279; [2002] NZFLR 241; (2001) 21 FRNZ 650 (18 December 2001)

Last Updated: 11 November 2013

ORDER SUPPRESSING PUBLICATION OF THE NAMES OF THE PARTIES AND THE CHILD INVOLVED IN THIS CASE

IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY AP22/01

BETWEEN G M G
Appellant

AND M A B AND ANOTHER
Respondent

Hearing: 12 October 2001

Appearances: S van Bohemen for the Appellant
P C Maciaszek for the Respondents
M A Malloch as Amicus Curiae

Judgment: 18 December 2001

JUDGMENT OF THE COURT (JOHN HANSEN AND WILLIAM YOUNG JJ)

Solicitors:
McNulty van Bohemen, Christchurch for Appellant
Geddes & Maciaszek, Christchurch for Respondents
McCormack Law, Christchurch (Counsel for the child)

Index

Paragraph Number

JOHN HANSEN J [1]

WILLIAM YOUNG J

Introduction [10]

Factual Background [12]

The relevant provisions of the Adoption Act [32]

The judgment of the Family Court Judge [39]

The grounds of appeal [44]

The current controversy as to adoption [46]

The United Nations Convention on the Rights of the Child [49]

The authorities as to the role of a natural parent in adoption proceedings after a s 7 consent has been given [51]

The appropriate legal test to apply on an application under s 12 [69]

The findings of fact made by the Judge [79]

Disposition [88]

Final comments [95]

JOHN HANSEN J

[1] I have had the advantage of reading in draft the judgment of William Young J. I fully concur in both his reasoning and conclusions.

[2] Any opposed adoption will necessarily be fraught with emotions of an intensity I am sure it is difficult for Courts to fully comprehend. We are cognisant of those emotions and have the greatest sympathy for the parties involved in this litigation.

[3] Commencing at paragraph 46 of the judgment of William Young J, is a section dealing with the current controversy as to adoption. Not surprisingly, given the content of such debate, it has engendered some heat. However, it is clear from Professor Campbell’s book published in 1957, and referred to extensively by William Young J, that the controversy is not new. As can be seen from the citation at paragraph 60 of William Young J’s decision the reasoning and conclusions in his judgment were, to a large extent, foreseen by Professor Campbell over 40 years ago.

[4] Furthermore, such reasoning and conclusions are clearly consistent with our international obligations.

[5] For myself, like William Young J, I would have preferred to be able to resolve this appeal without remitting the matter to the District Court. However, a careful reading of the judgment below demonstrates that it is impossible for us to conclude whether the granting or the refusal of the interim order would promote the welfare and interests of S. So reluctantly, like William Young J, I consider a rehearing is inevitable.

[6] I am conscious that this judgment could be seen as a major departure in approach to the issues raised in this appeal. However, I do not consider that is actually the case. The decision is consistent with the views expressed by Professor Campbell, with New Zealand’s international obligations, and with the decision of the Court of Appeal in Director-General of Social Welfare v L [1989] 2 NZLR 314.

[7] An approach that makes the interests and welfare of the child the major focus can hardly be controversial. In my view this has always been inherent in the Act and any approach which ignores changed circumstances that could impact on the interests and welfare of the child can not be right.

[8] Finally, I strongly endorse the comments contained in para [99] of William Young J’s judgment. Adoptive parents, natural parents and, most importantly, the children involved are entitled to that.

[9] Accordingly, for the reasons given by William Young J, the appeal is allowed and the case is remitted to the Family Court for re-hearing. Costs are reserved.

WILLIAM YOUNG J

Introduction

[10] This is an appeal by G M G (“Ms G”) against a judgment delivered in the Family Court at Christchurch on 19 June 2001 in which her application for the revocation of an interim adoption order was dismissed.

[11] The case relates to her daughter “S” who is presently the subject of an interim adoption order made in favour of M A B and P M B (to whom I will refer as “Mr and Mrs B”).

Factual Background

[12] Ms G was born in England but was brought up in New Zealand. She is of European descent. In 1992 she married E N (“Mr N”) who is a Solomon Islander. Ms G and Mr N have two children, a boy “K” who was born on 30 November 1993 and a girl, “C”, who was born on 6 May 1996.

[13] Between 1995 and April 1999, Ms G lived in the Solomon Islands. Up until May 1998, this was with Mr N but she and Mr N separated in that month. In November 1998, she had a brief relationship with J L (“Mr L”), who is also a Solomon Islander and she became pregnant.

[14] Ms G was very concerned about the implications of her pregnancy given the cultural milieu in which she lived. She was of the view that Mr L’s physical safety was at risk. She was also concerned that K and C might be removed from her by Mr N or his relatives. These and related concerns led to her returning to New Zealand in April 1999.

[15] Concerns as to how her pregnancy and the birth of the child would be regarded by Solomon Islanders (including those living in Christchurch) resulted in Ms G deciding that she would have her child adopted. She approached the Adoption Information and Service Unit (“AISU”) of the Department of Child, Youth and Family Service. She looked at a number of profiles of prospective adoptive parents. She chose the respondents, Mr and Mrs B.

[16] Mr and Mrs B are also of European descent. They were then in their early 30s. They had already adopted one other child, “E”, who was born on 21 November 1997.

[17] Ms G and Mr and Mrs B met several times while Ms G was still pregnant.

[18] S was born on 13 August 1999.

[19] On 2 September 1999, Ms G and Mr and Mrs B entered into what was styled a “contact agreement”. The agreement expressly recorded that it was not legally enforceable but it sets out a series of expectations as to contact. This was initially envisaged as being on a weekly basis but was then to change to monthly. The agreement recorded the expectation (or hope) that the parties would be able to resolve conflict by open and honest communication and failing that by mediation.

[20] On 14 September 1999, Ms G signed a consent to the adoption. This was 32 days after S’s birth. S then went to live with Mr and Mrs B.

[21] During the latter part of 1999 and the early part of 2000, relationships between Ms G, on the one hand, and Mr and Mrs B, on the other, remained on a friendly footing. There was a good deal of contact between Ms G and S.

[22] On 4 April 2000 an interim adoption order was made under s 5, Adoption Act 1955. The court dispensed with the obtaining of the consent of Mr L.

[23] Tension in relation to contact first came to the surface in or about late May or early June 2000. This tension was resolved, at least superficially, in early June and this resolution was recorded in an exchange of personal correspondence between Ms G and Mrs B. Extensive contact resumed with Ms G having contact with S on 9, 14, 20, 27 June and 4, 11, 18, 25 and 30 July 2000.

[24] The contact on 30 July involved a meeting at the Botanical Gardens in Christchurch at which difficulties over contact again emerged and these difficulties resulted in a further meeting at Mr and Mrs B’s house on 1 August which was attended by a social worker associated with the AISU, Ms Helen Pashley. At this meeting Mr and Mrs B took the position that the regularity of contact was having a detrimental effect on them and their family and suggested that the contact be reduced to four times a year. There was a final meeting on 8 August at which Mr and Mrs B reiterated their position that contact was to be restricted to four times a year.

[25] Ms G was very distressed by this turn of events.

[26] The upshot was that, on 15 September, Ms G filed applications for access, interim access and revocation of the interim adoption order.

[27] Following a hearing on 21 December 2000, the Family Court ordered that Ms G have fortnightly access (over the weekend) initially for one hour and then, after the first three access periods, for two hours. Access on this basis has continued to be exercised without any difficulty.

[28] After the litigation between Mr and Mrs B and Ms G had commenced, Mrs B became pregnant.

[29] Mr and Mrs B successfully resisted the suggestion that the application for revocation of the interim order be heard at the same time as their application for a final adoption order. Their opposition to the two applications being heard together was understandable given the existence of authority which supports the view that Ms G has no right to be heard on the application for a final order, see para [63] below. This was, however, I think unfortunate, see para [94] below.

[30] The application for the revocation of the interim adoption order was heard over 7 days in the Family Court at Christchurch in May this year and by a judgment delivered on 19 June, the Family Court dismissed the application. The present appeal is from this decision.

[31] Before I discuss the judgment of the Family Court Judge, I should, by way of further background, refer briefly to the salient provisions of the Adoption Act.

The relevant provisions of the Adoption Act

[32] Under s 7 of the Adoption Act 1955, the consent of Ms G to the adoption was required. Such consent cannot validly be given until the child is at least 10 days old (see s 7(7)). Under s 9 such a consent cannot, in the circumstances which were extant in this case, be withdrawn.

[33] In the absence of special circumstances, an adoption order is made on an interim basis only in the first instance (see s 5). A final adoption order cannot be applied for until six months (or such shorter period as might be fixed by the court) has elapsed after the making of the interim order (see s 13(2)).

[34] An interim order remains in force for one year or until it is sooner revoked or an adoption order is made. It has the effect that persons in whose favour the order is made are entitled to custody of the child (see s 15).

[35] Sections 11, 12 and 13 provide relevantly as follows:-

“11. Restrictions on making of orders in respect of adoption -

Before making any interim order or adoption order in respect of any child, the Court shall be satisfied-

(a) That every person who is applying for the order is a fit and proper person to have the custody of the child and of sufficient ability to bring up, maintain, and educate the child; and

(b) That the welfare and interests of the child will be promoted by the adoption, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child; and

(c) That any condition imposed by any parent or guardian of the child with respect to the religious denomination and practice of the applicants or any applicant or as to the religious denomination in which the applicants or applicant intend to bring up the child is being complied with.

12. Revocation of interim order-

(1) On the application of any person, the Court may in its discretion revoke an interim order in respect of any child on such terms as the Court thinks fit, including an order for the refund by some person specified in the order of money spent by any proposed adopter for the child’s benefit.

(1A) Where on the application of any person a District Court has refused to revoke an interim order in respect of any child, that person may, within one month after the date of the refusal, appeal to the High Court against the refusal; and the High Court may in its discretion make any order which the District Court could have made under subsection (1) of this section.

. . .

13. Issue of adoption order where an interim order has been made-

(1) The person or persons in whose favour an interim order has been made in respect of any child may apply to the Court for the issue of an adoption order in respect of the child, if-

(a) The interim order is in force at the date of the application and has continued in force for not less than the prescribed period specified in subsection (2) of this section; and

(b) In any case where the child is under the age of 15 years, the child has been continuously in the care of the applicant or applicants for not less than the said prescribed period since the adoption was first approved by a Social Worker or the interim order was made, whichever first occurred.

(2) The prescribed period mentioned in subsection (1) of this section shall be 6 months, or such shorter period as may in special circumstances be specified by the Court either in the interim order or, whether or not a shorter period has already been specified in the interim order, subsequent to the making of the interim order.

[36] I generally, in this judgment, refer to an interim order as an “interim adoption order” and an adoption order as a “final adoption order”.

[37] There is scope for debate as to the role, if any, the natural mother has in relation to adoption proceedings once she has signed a consent. I will discuss this in more detail later in this judgment. For present purposes, it is sufficient to note that the Act does not make specific provisions for the natural mother to be heard or to be represented when an interim adoption or a final adoption order is under consideration. Nor does the Act confer a right of appeal against an interim or final adoption order. As will become apparent, there are conflicting decisions as to whether a mother who has signed a valid consent but who has changed her mind as to an adoption can oppose the making of an interim or final adoption order. There is, however, no doubt that the natural mother can apply under s 12 for the revocation of an interim order. I say this because the section provides that such an application may be made by “any person”. While that phrase has been restrictively interpreted (cf. T v S (No 1) [1990] NZFLR 411) it must include a child’s natural mother who, during the currency of an interim adoption order, remains the guardian of the child.

[38] Very much in issue in the appeal is the basis upon which an application for revocation can properly be brought and considered. It is clear that a natural mother who wishes to challenge the validity of a consent which she has given to an adoption may do so by means of an application under s 12, see for instance N v P [1979] 2 NZLR 761. Less clear, is whether it is open to a natural mother who has given a valid consent to seek to terminate the adoption process because she has changed her mind.

The judgment of the Family Court Judge

[39] The judgment recorded, at considerable length, the factual background to the case and the evidence which was given, including the expert evidence.

[40] The Judge then reviewed the authorities as to the basis upon which the discretion under s 12 should be exercised. The flavour of his approach is captured by the following passages from his judgment:-

“It is trite to say that the revoking of an interim adoption order is a very serious step indeed . . .

Any application for revocation of an interim order is not a hearing de novo as to whether the interim order should have been made. At the time of the making [of] the interim order the Court has to be satisfied that the adoption is in the welfare and interests of the child, as well as the other matters set out in s 11. Section 11(a) and (c) are not in issue in the present case.

A question, therefore, arises as to [the] circumstances in which a Court can revoke the interim order in relation to the welfare and interests of the child. Clearly, the Court would need to be satisfied that the continuation of the interim order no longer promotes the welfare and interests of the child . . .

Generally, in my view, leaving aside the validity of the birth mother’s consent, the circumstances must have materially altered which require the Court to revisit the position as to whether the interim order is still in the welfare and interests of the child. A possible exception to this may be where a mistake has been made at the time of the making of the interim order. For example, there may be circumstances which should have been brought to the Court’s attention, but were not, that impact on the welfare and interests of the child . . . .

Counsel in this case have been unable to locate any reported cases where a mother has sought revocation on the grounds that the interim order is no longer in the welfare and interests of the child. This is no doubt because a birth mother, who gives a valid consent, must be taken as having been satisfied that the adoption promotes the welfare and interests of the child.

It would be difficult for a birth mother to demonstrate that any change in her circumstances would justify the Court in finding that the welfare and interests of the child are no longer being promoted. This is because her position and circumstances will, of course, have been given full consideration by her when she made the decision to adopt the child.

In my assessment where consent is not in issue the focus in respect of [the] welfare and interests of the child must be on the child or the adopting parents. . .

[T]he emphasis in a case such as this moves away from consideration of the child’s natural status and family relationship to an overall consideration of the child’s welfare and interests. That overall consideration may well, of course, involve considerations as to the natural tie between a child and the birth parent . . .

S 12 cannot be used to enable a party who has subsequent regrets to effectively say to the Court that ‘I now withdraw my consent because I have reviewed the situation and I now regret having given my consent’. . .

It must also be remembered that the Court, when considering a s 12 application based on the welfare and interests test is faced with a contest different in nature from a custody dispute under the Guardianship Act where the parties often start with an equal claim to the care and control of the child. On a s 12 application the Court has already been satisfied, at least provisionally, in relation to the welfare and interests of the child when making the interim order. In my view it must be demonstrably shown that the situation has changed and that it can now no longer be said that the interim order is in the welfare and interests of the child.

On an application of this nature I am uncomfortable about imposing on a party a strict onus of proof. The Court’s function is inquisitorial. Nevertheless an Applicant must be able to show that the welfare and interests of the child require an order and to that extent he/she will have an evidential onus . . .

The United Nations Convention on the Rights of the Child is helpful in interpreting all domestic legislation, including the Adoption Act 1955.”

[41] It is not entirely easy to extract from the passages (and still less easy to state succinctly) the test which the Judge set for himself. Broadly, I think it had these components:-

1. The onus was on the mother to show that the interim adoption order ought to be revoked.

2. The revocation of an interim adoption is a serious step. Leaving aside cases where the validity of the birth mother’s consent is an issue, revocation is appropriate “generally” where the circumstances have materially altered or where a mistake was made at the time of the making of the interim order.

3. In a case where an applicant has shown “demonstrably” that the situation has changed so that the welfare and interests of the child require the revocation of an interim order, the court should revoke an interim adoption order.

4. In the overall assessment of the child’s welfare and interests, considerations as to the natural tie between a child and birth parent would be relevant.

5. A birth mother who signs a consent must be taken to have been satisfied that the adoption would promote the welfare and interests of the child.

6. The finding of the Court when the interim adoption order was made that the adoption would promote the welfare and interests of the child was also relevant.

7. A change of mind by the natural mother does not, itself, warrant revocation.

8. After consent has been given, adoption issues should be addressed primarily by reference to a consideration of the positions of the child and the adopting parents.

[42] The Judge then discussed the facts. His conclusions were as follows:-

1. S regards Mr and Mrs B as her primary family albeit that she retains an attached and perhaps a maternal bond with Ms G.

2. There could well be risks to S’s well-being if the attachment to Mr and Mrs B were broken.

3. She would be able to shift to Ms G but this would be ‘fraught with risks’.

4. There are ‘dangers and pitfalls’ involved in trans-racial adoptions (as this is). But Mr and Mrs B have taken steps to deal with these issues as best they could.

5. There could be problems for S associated with the possibility that she might feel that she had been abandoned and challenge the actions of Mr and Mrs B in not returning her to Ms G as soon as she wished to back out of the adoption process. However, the Judge was of the opinion that Mr and Mrs B would be able to address these issues in a way which would minimise the risk of S being adversely affected.

9. Contact arrangements broadly in terms of those envisaged in the contact agreement would continue and, on that basis, “there has been little change from what was foreseen by Ms G when she gave her consent to the adoption”.

10. The Judge was of the view that:-

“There is no substance in the claim that the impending birth of [Mr and Mrs B’s] child is of such significance that it would warrant the interim order being revoked. In fact, viewed positively, the birth will mean that [S] will have another sibling to grow up with if she remains with [Mr and Mrs B]. If there is an issue as [S] grows older about her origins being different from that of the new baby these, I am sure, can be sensitively and appropriately dealt with by [Mr and Mrs B and Ms G].”

[43] The Judge concluded by saying this:-

“Much of the evidence that I have heard looked at the situation of whether or not there should be an adoption order made. In this case an interim adoption order has been made. It clearly was made on the basis that s 11(a) and (b) requirements were satisfied and it was supported by the social worker at the time. Whilst it is now submitted that the social worker may not have recommended an adoption be made knowing the events as they have occurred, I do not consider that really takes the matter much further. Certainly, it would be a reasonable inference to say that Ms Pashley perhaps regrets the situation now as clearly does [Ms G].

In my view there has not been a change of circumstances relating to [S’s] welfare and interests in this case. I am satisfied that nothing has irreversibly changed from that foreseen by [Ms G] when she gave her consent to the adoption. Her regret and sorrow is understandable, but she agreed to an adoption after making her own inquiries and, obviously being confident of [Mr and Mrs B’s] ability to parent [S], selected [Mr and Mrs B]. [S] is now attached to [Mr and Mrs B] and that attachment is stronger than her attachment to [Ms G].

It is my view it has not been demonstrated that the revocation of the interim order is justified on the basis of the welfare and interests of [S]. The difficulties that there have been in relation to contact (as originally envisaged) have by and large been worked through by the parties. [S] is a child that is part of [Mr and Mrs B’s] family. The application is declined.”

The grounds of appeal

[44] Mr van Bohemen, for the appellant, contended that the Judge made no less than seven errors of law in his decision as well as a number of errors of fact. In reality, however, I think that the appeal is best addressed in terms of two headings:-

1. The appropriate legal test to apply on an application under s 12; and

2. The findings of fact made by the Judge.

[45] I will, later in this judgment, address the arguments addressed to us by reference to these two headings. But before I do so, and by way of context, I will discuss briefly first the current controversy as to adoption, secondly the United Nations Convention on the Rights of the Child and, thirdly, the authorities as to the continuing role of a natural parent in adoption proceedings after a s 7 consent has been given.

The current controversy as to adoption

[46] Adoption is now very controversial and, indeed, has been for many years. I refer to Law Commission Report No 65, Adoption and its Alternatives, A Different Approach and A New Framework (September 2000). A Parliamentary inquiry into New Zealand adoption laws by the Government Administration Committee resulted in two conflicting reports in August this year. This is all of very limited relevance. The reports to which I have referred provide interesting contextual material which has helped me see the issues raised by the case in a broad social context. But our task is to apply the law as it is - not as it perhaps should be. I note that there is in fact no unanimity as to what if any changes should be made to the current legislation and there is certainly no consensus in support of the view that adoption is an outmoded concept. Indeed, if the recommendations of the Law Commission were implemented, adoption orders would be final in the first instance and there would be no scope for an application such as that made by Ms G.

[47] It is trite to observe that society has changed much since the Adoption Act 1955 was enacted. This is perhaps most obvious in relation to the now rather strange reason given in the Hansard debates in 1955 for adopting a 10 day waiting period for the giving of maternal consent to adoptions. The reason this 10 day period was chosen was the concern that if the period was longer mothers might leave nursing homes before consents could be obtained. But human nature has not changed since 1955. The possibility that a mother might give a valid consent under s 7 but later change her mind and wish to oppose the making of an adoption order was recognised as early as (and perhaps earlier than) 1957, see para [60] below. It may well be that in the social climate of the 1950s it was thought this particular problem would not arise very frequently. Perhaps this explains why the Act is opaque as to how the courts should deal with such a problem when it does arise. But the reality that cases of this sort could arise and that the Act was unclear as to how they should be dealt with was recognised from the very outset.

[48] Given what I have just said, I do not see any particular need for consideration of the concept of “ambulatory interpretation”. I think that the statute should be interpreted in accordance with usual principles giving effect to the values which are implicit in it, to the extent to which they can be fairly discerned. It further follows that it would be wrong to adopt an interpretation of the Act which is based on the viewpoint that adoption is an outmoded social institution and ought to be discouraged.

The United Nations Convention on the Rights of the Child

[49] New Zealand is a signatory to the United Nations Convention on the Rights of the Child. I will refer to this as the Convention. Article 21 of the Convention provides:-

“States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

Ensure that the adoption of a child is authorised 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 . . . .”

Other provisions of the “Convention” that deal directly with adoption relate principally to inter-country adoption which is not relevant in the context of this appeal (at least on my appreciation). More general provisions of the Convention dealing with associations between children and their parents (eg articles 7, 8 and 9) but which do not specifically refer to adoption seem to me to be of little moment in the present context, see for instance Re Adoption of PAT (1995) 13 FRNZ 651 at 657-58. I am of the view, however that article 21(a) is of considerable significance in this case.

[50] Section 11 of the Adoption Act does not, unequivocally, make “the best interests of the child” the paramount consideration in relation to whether a final or interim adoption order should be made. In practice, however, there should be no difficulty in applying s 11 in a way which is at least consistent with the paramountcy principle. What is important in this case is whether s 12 (the section invoked by Ms G) should also be administered by the courts on a basis which is consistent with the paramountcy principle. As to this, the authorities provide some assistance for Ms G, see Tavita v Minister of Immigration [1994] 2 NZLR 257 and, in a context more closely linked with the present case, Re SJD (Adoption Application) [2000] NZFLR 193.

The authorities as to the role of a natural parent in adoption proceedings after a s 7 consent has been given

[51] Adoption has been on a statutory footing in New Zealand since the Adoption of Children Act 1881. This was replaced by the Adoption of Children Act 1895 which, with further amendments, was re-enacted as Part III of the Infants Act 1908. The history of the legislation is reviewed helpfully in the introduction to The Law of Adoption in New Zealand, 2nd Ed (1957) by Professor I D Campbell.

[52] As Professor Campbell put it at page 39:-

“Before the passing of the Adoption Act 1955 it was a cardinal principle in the law of adoption that a person whose consent was required had to be still consenting at the moment when the adoption order was made. It was not sufficient that a parent, for example, had consented previously, and that a document had been filed evidencing his consent: his consent had to be operative at the moment when the Court acted upon it. Consent could be withdrawn at any time before a formal adoption order was made.”

This statement is amply supported by Viggars v Smylie [1949] NZLR 906. In that case the Magistrate had announced his intention of making an order of adoption but no order of adoption had been signed before the parents withdrew their consent. Hutchison J held that, in those circumstances, the adoption could not proceed.

[53] Section 9(1), Adoption Act 1955 provides:-

“Where any consent to an adoption of a child by any specified person or persons is given by any parent . . . , the consent shall not be withdrawn at any time while an application by the said person or persons to adopt the child is pending, or until the said person or persons have had a reasonable opportunity to make an application to adopt the child.”

[54] There can be no doubt that s 9(1) was intended to change, significantly, the law as it was prior to the 1955 Act. That this is so is emphasised by a perusal of the Hansard debates.

[55] What is not spelt out with any precision in the Adoption Act is the nature of the continuing role (if any) of a natural parent in relation to adoption proceedings once he or she has given consent. This has led to the necessity for the courts to grapple with three partly overlapping questions:-

1. Does a natural parent who has given a valid consent under s 7 have standing, nonetheless, to oppose the making of an interim or final adoption order?

2. Does a natural parent who has given a valid consent under s 7 have the right to seek a revocation of an interim order and, if so, on what grounds?

3. Where a natural parent has given a valid consent under s 7 has changed his or her mind, how should the court address the issue under s 11(b) whether the proposed adoption will promote the welfare and interests of the child?

[56] There are two broad ways of approaching these issues.

[57] To allow a natural parent to participate in the applications for interim or final adoption orders and to oppose the making of such orders would appear to be inconsistent with s 9 which provides that a consent, once given, cannot be withdrawn while an application for an adoption order is pending. The Adoption Act in its reasonably prescriptive approach to procedure makes no provision for the natural parents to be served or to participate in steps in adoption proceedings which are downstream of the giving of consent. The purpose of making adoption orders on an interim basis is plainly to provide a probationary period for adopting parents and not to give natural parents an opportunity to change their minds. There is no right of appeal against the making of interim or final orders. I will call this the irrevocability of consent approach.

[58] The second approach is to start at the other end of the process. An adoption order must not be made unless it will promote the welfare and interests of the child. This necessarily involves a comparison: how the child will fare if the adoption order is made as against how he or she will fare if no such order is made. If it is the case that the natural parents of a child oppose the making of an order notwithstanding having given s 7 consents, and if those natural parents are willing and able to care for the child, it is difficult to see how this can be ignored. Attempts to circumscribe the s 11(b) assessment so as to exclude these considerations are necessarily clumsy, artificial and not consistent with the wording of s 11 or article 21 of the Convention. I will call this the welfare and interests of the child approach.

[59] Both the irrevocability of consent approach and the welfare and interests of the child approach involve an analysis of the scheme and purpose of the Act as a whole. Obviously a scheme and purpose approach is required in respect of the Act, see Director-General of Social Welfare v L [1989] 2 NZLR 314 and Re Adoption of PAT (1995) 13 FRNZ 651. The acute problem here, however, is that there are two credible scheme and purpose approaches which point in opposite directions.

[60] Before turning to the decisions, it is worth noting what Professor Campbell, writing in 1957, had to say. In The Law of Adoption in New Zealand, 2nd Ed, page 41 he noted:-

“Even though consent may, by virtue of s.9, be irrevocable, the parent or guardian, whose consent has been filed may still oppose the application for an interim order on grounds other than the absence of consent. It is even possible that he may be able to oppose it on the ground that he no longer wishes the child to be adopted. It will require a judicial decision to determine the precise effect of s.9. It is clear beyond question that the section has altered the law in this respect: an interim order or adoption order may be made although, at the time the order is made, the parent or guardian is no longer consenting in fact. The Court is plainly authorised to proceed as if the parent or guardian was still consenting. But is the Court required to proceed on this basis? The making of an order is in the discretion of the Court. May the Court take into consideration the fact that the parent or guardian has actually ceased to be a consenting party, or must it disregard this fact?

The same problem arises in regard to an application under s.12 to revoke an interim order. If, for example, after the interim order had been made, the mother of an illegitimate child regretted her decision, could she apply for revocation of the order notwithstanding the fact that she could not withdraw her consent? Is the Court required to decide the matter on the assumption that she still consents?

It is difficult to find in the Act any clear indication of the clear answer to these questions. Luxford and Astley, Domestic Proceedings (1956) 214, state that an interim order may be revoked where the natural parents show that they have made a hasty decision and that the child’s welfare will be promoted just as well if the adoption is not proceeded with. But it is extremely doubtful whether this is consistent with the Act. The intention of s.9 is surely to protect the adoptive parents from this very risk. As soon as the child is placed for adoption and the parents or guardians have given their written consent (a consent the significance of which has to be explained fully to them before they sign), section 9 makes the consent irrevocable. This can only be for the purpose of protecting the intending adoptive parents from entering upon the enterprise and later having their plans and hopes shattered by a change of heart on the part of those who originally consented. This evil was well known before the Act of 1955 was enacted. It is impossible to reconcile completely the competing interests of the natural parents and the adoptive parents. From s.9 the Legislature appears to have decided that the natural parents, after consenting shall be allowed no after-thoughts. The provision making consent irrevocable would afford no firm protection to adoptive parents if the natural parents who at first consented could still oppose the making of an interim order or apply to have it revoked by reason of their wanting the child back.

The Adoption Bill as first introduced would have made consent irrevocable when an interim order or adoption order had been made. An amendment introduced by the Statutes Revision Committee and accepted by the House extended this provision by the addition of what is now s. 9 (1). This indicates a desire to give the maximum protection to persons receiving a child for adoption. On the whole the better view would appear to be that if consent is irrevocable under s. 9, the Court must, on the hearing of an application for an adoption order and any subsequent proceedings under s. 12, proceed as if the person whose consent has been filed is in fact still consenting, and decline to give effect to any evidence showing that he would (if he could) withdraw his consent, unless the Court is satisfied that the making of the adoption order will not be in the best interests of the child. The absence of real consent may be a strong ground for concluding that the welfare of the child will not be promoted by the adoption: cf A. v. C.-S. (No. 1) [1955] VicLawRp 61; [1955] V.L.R. 340; A. v. C.-S. (No. 2) [1955] VicLawRp 62; [1955] V.L.R. 376.”

[61] The way in which Professor Campbell expressed his conclusions serves to highlight the problems. It also illustrates that the problems thrown up by this case are not just a product of social changes since 1955 but rather have always been implicit in the legislation and recognised by those who have studied the Act.

[62] With those comments in mind I will now note briefly the state of the authorities in relation to the three questions which I have identified in para [55] above.

[63] On the procedural issue - that is whether natural parents who have given consent have a right to be heard in opposition to the making of interim or final adoption orders - the current state of the authorities and the practice of the Family Court would appear to have produced a somewhat unhappy compromise. The cases proceed on the basis that natural parents have no right to be heard in opposition to interim and final adoption orders and, in this sense, are consistent with the irrevocability of consent approach. To this effect is the judgment of Casey J in L v R [1980] 2 NZLR 765. In that case the Judge held that the natural parents, having signed consents to their child’s adoption, had no right to be heard by the Court before a final order was made. To a similar effect is B v H [1996] NZFLR 390. In my judgment in B v M [1999] NZFLR 1 at 12, I expressed reservations as to whether a natural parent, who had given an irrevocable consent, could nonetheless be permitted to oppose an adoption order (although I subsequently noted that these reservations were not meant to be determinative of the issue, see B v M (No 2) [1998] NZFLR 865). When this case was re-heard in the Family Court, the natural mother was not permitted to appear in person to oppose the making of the final adoption order, see the judgment in Re A (unreported, Family Court, Christchurch A009 008 98, judgment of Judge Inglis QC delivered 24 September 1998). Going the other way, is the judgment of Judge Johnston in the Family Court in Re B (Adoption) [1999] NZFLR 161. The judgment of Judge Johnston in B is out of line with authority which is binding on the Family Court (in particular the judgment of Casey J in L v R, supra). Nonetheless, it is clear enough that, one way or another, a natural parent can bring his or her opposition to the making of an adoption order to the attention of the court. This might be through a social worker (cf the remarks in L v R at 768) or perhaps by way of an amicus as in Re A (to which I have just referred). This is, as I have indicated, something of an unhappy compromise. That the Family Court has felt obliged to have regard to the opposition of natural parents to adoptions despite consents having been given perhaps implies that such natural parents should be heard if they wish. This, however, is not an issue which arises in respect of this appeal and I can put it to one side.

[64] I turn now to the authorities as to the circumstances in which a natural parent can apply for the revocation of an interim adoption order. As to this, the dominant approach, for the last 20 years or so, is represented by the judgment of Quilliam J in N v P [1979] 2 NZLR 761. In that case, at 763, the Judge observed that:-

“Perhaps it is possible to visualise a situation in which the revocation of an interim order should turn upon some consideration other than the reality of the consent which was given, but I confess I can think of none. There may be many circumstances which are capable of raising the issue of whether the consent was a real one or not and that will, of course, be a question of fact in each case. I am, however, unable to agree that the statute intended to confer a completely unlimited discretion. If, upon the facts, it is apparent that the consent was freely given by someone who understood what he or she was doing and who was acting rationally and exercising a freedom of choice, then I do not consider any ground will exist for revoking the interim order.”

Very much in issue in this case is whether this approach is correct. I note in passing that in L v R Casey J expressed the view that concerns by a natural parent as to a child’s welfare could be addressed by a s 12 application, see his remarks at 767:-

“It seems to me abundantly clear that the natural parents’ rights are protected by those parts of the Act relating to consent and the provisions of s 12 enabling revocation of an interim order with rights of appeal. Any concern by such parent for the child’s welfare may be directly raised at that time; thereafter, the detailed procedure for obtaining final orders entrusts the child’s interests and welfare solely to the Social Welfare Department.”

By way of completeness, I also note that I have come across a rather elderly decision, S v R (1963) 11 MCD 20, in which a Stipendiary Magistrate expressed the view that it was open to a natural mother to seek the revocation of an interim adoption order in circumstances where she had changed her mind although the case was decided on the basis of the invalidity of her consent.

[65] The third question which I identified in para [55] focuses on the extent to which the Family Court should take into account opposition to an adoption by a natural parent when considering whether the proposed adoption will promote the welfare and interests of the child. From time to time, Judges have indicated that it is possible to put on one side or minimise advantages to the child associated with the maintenance of that child’s natural status and family relationship. For instance, in the Re A decision to which I have referred, Judge Inglis QC said:-

“[T]he adoption application must be approached on the basis which emerges from the Court of Appeal’s decision in Director-General of Social Welfare v L . . . that once the natural parent has consented to the adoption the natural status and family relationships will be of little, if any, consequence in the overall assessment of the child’s welfare and interests that is needed for making an adoption order. On that assessment, the new status and the new family relationships are all-important.”

[66] I am very uncomfortable with any approach which involves a Family Court Judge taking a blinkered or strictured approach to the fundamental question whether a proposed adoption will promote the welfare and interests of the child.

[67] Director-General of Social Welfare v L [1989] 2 NZLR at 314, the case relied upon by Judge Inglis QC in Re A, was a judgment of the Court of Appeal. In that case, the mother had failed to exercise the normal duty and care of parenthood in respect of the child. So the remarks made by the Judges in that case must be read in light of that context. There are two passages from the judgment to which I refer. The first is from the judgment of Casey J at 322:-

“Once a necessary condition of s 8(1)(a) has been established [as to the dispensing of consent], I see no room for any consideration other than the welfare and interests of the child. The maintenance of its legal status may be desirable, but only if it is in the child’s welfare and interests. Or despite their proved failure in the past, the natural parents might still be seen as likely to provide future care and stability which would further its welfare more effectively than an adoption would allow. However, where a statutory ground has been found to exist to the degree appropriate to support the serious step of dispensing with consent, I would normally expect an order to be made to that effect, unless there are persuasive reasons not to do so in the child’s interests.”

[68] In the same case Hardie Boys J observed at page 326:-

“Looked at separately from the parental right, the child’s birth status and natural family relationship are of relevance only so far as they are of benefit to the child. There will doubtless be cases where they are important in themselves. Where they are, they are factors to be considered under s 11. But generally of themselves they are not. Their importance for the child usually lies in the willingness or the ability of the parent to give them practical expression. Except in a singular case, once consent is given or dispensed with the natural status and family relationship will be of little, if any, consequence in the overall assessment of the child’s welfare and interests that is needed for the making of an adoption order. In that assessment, the new status and the new family relationship are all-important.”

The words which I have italicised are consistent with the view that the application of s 11(b) is not controlled by the way in which the jurisdiction to make an adoption order has arisen, whether it be the giving of parental consent or the dispensing with consent. So I see no scope for the view that Ms G’s giving of consent in September 1999 means that her ability and willingness to care for S are irrelevant under s 11(b). I might add that an approach to s 11(b) which involved the excluding from consideration of factors which are logically relevant to the child’s welfare and interests would not be consistent with article 21 of the Convention.

The appropriate legal test to apply on an application under s 12

[69] I can now return to the first of the critical issues associated with this appeal, namely the identification of the appropriate legal test to apply to an application under s 12.

[70] I accept the force of what I have described as the irrevocability of consent approach. I also think that litigation of this type (with all its stress and uncertainty for everyone involved) is not desirable. But I am driven to the conclusion that a natural mother, in the position of Ms G, who has given a consent to adoption and who has changed her mind, may seek the revocation of an interim order which has been made and broadly on the grounds invoked by Ms G in this case.

[71] My specific reasons for this conclusion are as follows:-

1. When a Judge hears an application for a final adoption order he or she must take into account, where it is raised, the willingness and ability of the natural parents to care for and bring up the child. Unless persuaded that the proposed adoption will promote the interests and welfare of the child, despite that willingness and ability, the Judge may not make an adoption order. This follows from the wording of s 11(b), article 21 of the Convention and, in my view, the remarks of Casey and Hardie Boys JJ in L to which I have referred.

2. If the welfare and interests of a child will not be promoted by adoption, given the willingness and ability of the relevant natural parent to care for and bring up that child, logic suggests that an interim order (which, on that hypothesis, ought never crystallise into a final order) ought to be revoked.

3. Accordingly, a natural mother who can show that the welfare and interests of the child will not be promoted by the making of a final adoption order is entitled to apply for and obtain revocation of an existing interim order.

4. Such an approach is consistent with article 21 of the Convention because if s 12 is to be administered in a way which is consistent with that article, the best interests of the child should be the paramount consideration on any application made under that section. It is also consistent with the approach Professor Campbell espoused as long ago as 1957, see para [60] above.

5. This approach is also consistent with s 9 which provides that a consent, once given, cannot be withdrawn (at least in the circumstances which exist in this case). A consent, once given, remains valid in the sense that the court retains jurisdiction to make an adoption order notwithstanding the natural parents’ change of mind.

[72] Implicit in this approach is that it would be for the natural parent who is making an application under s 12 to establish that a final adoption order ought not to be made. Given, however, that it would be for the proposed adopting parents to establish that a final adoption ought to be made on an application for a final order, I would not myself place too much emphasis on the onus issue.

[73] Accordingly, in my view, the Family Court Judge ought to have revoked the interim order in this case if persuaded that the welfare and interests of the child would not be promoted by the adoption.

[74] It also follows that I am of the view that aspects of the approach adopted by the Family Court Judge are not right. Because the Judge’s discussion of the relevant legal principles was so discursive it is difficult to identify precisely and succinctly what he regarded as the appropriate test, see paras [40] and [41] above. In turn this makes it difficult for me to express succinctly where I think that he went wrong. Fundamentally, however, it was because he adopted a strictured approach to the relevance of Ms G’s willingness and ability to care for S and her opposition to the adoption.

[75] The Judge was required to address S’s welfare and interests in the circumstances as they were in May and June this year and as they are likely to be in the future. He was required to do so in light of all relevant circumstances including the willingness and ability of Ms G to care for her and her opposition to the adoption (at least to the extent that this would be likely to have an impact on S in the future).

[76] That Ms G had consented to the adoption was relevant for a number of reasons. Without such consent there would have been no jurisdiction to make an adoption order. The consent was followed by the change of care arrangements which meant that S went into the custody of Mr and Mrs B. It may also have been relevant to Ms G’s ability to bring up S (in that the reasons which induced her to give her consent might, conceivably, be thought to cast a shadow over her ability to look after S). The making of the interim adoption order was also relevant in a factual sense. It resulted in Mr and Mrs B having legal custody of S. By the time the case came to be decided by the Judge, S had been in the custody of Mr and Mrs B for nearly 2 years. So I have no difficulty with the Judge seeing the consent and the interim adoption order as being relevant.

[77] On the other hand, I do not accept Ms G’s assessment of what was best for S when she signed the consent or the assessment of the Court when the interim adoption order was made as directly relevant to the exercise which the Judge was required to address in his judgment. What was important was what he thought, in the circumstances as they were in May and June 2001, not what Ms G had thought in September 1999 or what the Family Court Judge who granted the interim adoption order had thought in April 2000. Nor do I regard it as appropriate to regard post-consent consideration of the case as primarily focused on S and Mr and Mrs B with the considerations associated with the natural tie between Ms G and S accorded a secondary significance.

[78] As is apparent from what I have said (see para [75] above), I am of the view that Ms G’s willingness and ability to care for the child and her opposition to the adoption constituted a change of circumstances which was logically relevant to whether a final adoption order ought to be made and thus to the revocation issue. But the Judge observed:

“S 12 cannot be used to enable a party who has subsequent regrets to effectively say to the Court that ‘I now withdraw my consent because I have reviewed the situation and I now regret having given my consent’. . .”

While this is literally true (in the sense that consent cannot be withdrawn), I am of the view that the Judge meant that the change of mind by Ms G was either not relevant to the s 12 discretion or was at best a factor of limited relevance. This conclusion is reinforced by the Judge’s comment:-

“In my view there has not been a change in circumstances relating to [S’s] welfare and interests in this case.”

There plainly had been a change of circumstances relating to S’s welfare and interests in that Ms G, by September 1999, was opposed to the adoption and was willing to care for S herself. Whether that change of circumstances warranted revocation of the interim adoption order was always, no doubt, a closely balanced issue. Conceivably all the Judge meant was that there was no change of circumstances warranting revocation. But, this is not what he said and I do not think that this was really what he meant.

The findings of fact made by the Judge

[79] It is appropriate to commence this section of my judgment by mentioning what I think are the primary competing factors as revealed in the evidence placed before the Family Court Judge.

[80] The principal factors which favour the continuation in force of the interim order (and, indeed, the making of a final order) are, broadly, as follows:-

1. Mr and Mrs B would be suitable adoptive parents for S.

2. S has been in their custody since September 1999 and, if the adoption is derailed this will necessarily result in disruption to S and her associations with Mr and Mrs B and, indeed, with E with possibly significant adverse psychological consequences for S.

3. Although Mr and Mrs B are European, and thus of different ethnicity to S, they have the same ethnicity as Ms G and are sensitive to the difficulties which can occur in trans-racial adoptions.

[81] The principal factors which favour Ms G’s position (which is that the adoption should be derailed) are, broadly, as follows:-

1. She is willing and able to care for S and would be a suitable parent for her.

2. If the adoption does not proceed and S is returned to her (as she almost certainly would be, at least in my opinion) the consequence will be that S will be brought up with her half-siblings, K and C, who share S’s ethnicity, ie have a European mother and a father from the Solomon Islands (albeit that the father of K and C is Mr N and S’s father is Mr L).

3. For the reasons just mentioned and also given her life in the Solomon Islands and her continuing involvement with the Solomon Islands community in Christchurch, including some limited continuing association with Mr N, Ms G is better positioned than Mr and Mrs B to bring S up in a way in which she maintains connections with the Solomon Islands community.

4. If the adoption proceeds there are likely to be complexities for S in Mr and Mrs B’s household. These are associated with S’s ethnicity differing from that of all other members of the household and her being one of two adopted children in a family in which there will also be a natural child of Mr and Mrs B. Further, the contested nature of the adoption (about which S will no doubt learn about in due course) will also create further complexities for S in her association both with Mr and Mrs B as adoptive parents and with Ms G (assuming that contact continues).

[82] I have not listed the issues associated with contact. The evidence as to this was reviewed extensively by the Family Court Judge. Its relevance was primarily contextual. If a final adoption order is made, Ms G’s ability to obtain legally enforceable access to S may well depend upon other proceedings being taken. The options are reviewed in the judgment of Blanchard J in Re Adoption of PAT (1995) 13 FRNZ 651. Should a final adoption order be made, I rather think that Ms G will, in fact be successful in obtaining legal access despite the legal difficulties which she would face. So I think that whatever happens there will be continuing contact between S and Ms G. However, the very different personality styles of Mr and Mrs B, on the one hand, and Ms G, on the other, and understandable feeling between them associated with this litigation would make such access not entirely easy.

[83] Broadly, the Judge in his judgment made findings which favoured Mr and Mrs B. He emphasised the factors which favour them, to which I have referred to in para [80]. He placed less significance on the factors which favour Ms G, to which I have referred in para [81]. His ultimate conclusions, however, were addressed, as I read his judgment, to what he regarded as being the legal test which he had to apply under s 12.

[84] Many criticisms were made of the Judge’s findings of fact by Mr van Bohemen. I have considered them carefully. But my principal concern about the findings of fact is that they were not addressed to what I consider to be the correct legal test. One of the major difficulties I have had with this case is determining whether the findings made by the Judge should be regarded as addressing, at least by implication, and answering in favour of Mr and Mrs B what I think is the real question raised by the application for revocation.

[85] It may be that the Judge’s approach was underpinned by a conclusion that the risk to S of disrupting her well-established relationship with Mr and Mrs B is the dominating consideration in the case. It may also be that such conclusion, along with the views which the Judge reached about other aspects of the case, left him with the opinion that the best interests of S require that the interim order be made final and that, accordingly, the interim order ought not to be revoked. I think it is possible, to say the least, that this was his opinion. Indeed, there are passages in his judgment which, at least when read in isolation, support the view that this is so. For instance, he concluded the principal section of his judgment by saying:-

“It is my view it has not been demonstrated that the revocation of the interim order is justified on the basis of the welfare and interests of [S]. The difficulties that there have been in relation to contact (as originally envisaged) have by and large been worked through by the parties. [S] is a child that is part of [Mr and Mrs B’s] family. The application is declined.”

[86] On the other hand, the Judge did not unequivocally say that he rejected Ms G’s argument that, by reason of her change of mind and her readiness and ability to care for S, the adoption proposed by Mr and Mrs B would not promote the welfare and interests of the child. As I have indicated already, I think that the Judge did take an inappropriately strictured approach to the relevance and significance of Ms G’s willingness and ability to care for S and her opposition to the adoption, see paras [74] to [78] above. If the Judge’s views were, in fact, along the lines set out in para [85] above, it would have been easy enough for him to have said so. Indeed, if it was his conclusion that Ms G could not succeed on what was her best case as to the way in which s 12 should be applied, I would have expected him to have said just that. Such a conclusion would have rendered redundant his extensive analysis of the law.

[87] I see this as a very difficult and important case with very serious implications for the future welfare of S. What troubles me is that the judgment of the Family Court Judge is so discursive that it is hard to identify with precision the legal test the Judge applied and equally hard to identify with precision the exact scope of the findings of fact which the Judge made. I am of the view that the case should be dealt with on the basis of unequivocal findings as to what is best in terms of the welfare and interests of S in the circumstances as they actually are and will be. The approach adopted by the Judge in the Family Court meant that he did not expressly square up to this issue. In the circumstances of the case as a whole, I do not think that it would be right to treat the judgment as resolving, by implication, this key issue of fact in favour of Mr and Mrs B.

Disposition

[88] The issue then is what should be done. There are really two choices:-

1. Decide the case based on our perusal of the evidence and such discrete or intermediate findings of fact made by the Judge in relation to that evidence as we can discern from the judgment and in light of the arguments of counsel as to the evidence; or

2. Remit the case to the Family Court for rehearing.

[89] I am most reluctant to direct a rehearing given the stress and uncertainty for all concerned in relation to this case. Further, as I have indicated, I think it is at least possible (and perhaps more than that) that the Judge would have found in favour of Mr and Mrs B if he had addressed himself to the correct test. In the months which have passed since the Family Court, judgment was delivered in June, the arguments in favour of Mr and Mrs B based on preservation of the status quo have, no doubt, become more cogent.

[90] Nonetheless, I think that proper course here is to remit the case to the Family Court for rehearing. This is for the following reasons:-

1. I see the case as very closely balanced and my perusal of the evidence has left me particularly troubled by the risks which I have identified in para [81.4] above.

2. I do not think it would be right for us, on evidence which we have not heard but only read, to revoke the interim adoption order. Further, first instance decisions in cases of this sort are vested in Family Court judges and on the factual issues associated with the case the parties are, in my view, therefore, entitled to the view of a Family Court judge directed, of course, to the appropriate legal test.

[91] I note, as well, that even on the Family Court Judge’s judgment, a further hearing in relation to the making of a final adoption order was always going to be necessary. Authorities which are binding on the Family Court establish that Ms G would not have a right to participate as a party in relation to the hearing of that application (see para [63] above). But as I have indicated, Family Court judges have found it difficult to keep away from the hearing of such applications natural mothers who wish to oppose the making of final adoption orders. So even if the judgment stood, Ms G’s position would have been likely to be placed firmly before the Judge hearing Mr and Mrs B’s application for a final order, either via a social worker or, perhaps, an amicus. It may be that the social worker would, in fact, not have supported the making of a final adoption order. So, although the Family Court Judge’s judgment might be thought to pre-suppose that a final adoption order would be made, it was always likely that there would be a further hearing. Moreover, the Judge did not, in an unstrictured way, express a conclusion that, despite Ms G’s change of heart, the welfare and interests of S would be promoted by adoption. Accordingly, the judgment could not be regarded as having precluded further argument addressed to s 11(b).

[92] Given these conclusions, I do not think it is necessary or desirable to review in detail the criticisms made by Mr van Bohemen of the factual findings of the Judge and for this reason did not do so when I was addressing the Judge’s findings of fact.

[93] So I would allow the appeal and direct a rehearing.

[94] Although I recognise that the authorities indicate that Ms G is not entitled to be heard in relation to the making of a final adoption order, I see no reason why the application for the revocation of the adoption order should not be heard at the same time as the application for the making of a final adoption order. If this course had been adopted in the Family Court earlier this year, the Judge may have addressed issues associated with the welfare and interests of S in an unstrictured way. If he had done so and concluded that a final order for adoption ought to have been made, notwithstanding Ms G’s change of heart and her willingness and undoubted ability to care for S, the fundamental issues associated with this case would have been addressed in the manner which I regard as being appropriate. As well, if he had found in favour of Mr and Mrs B and made a final adoption order, his decision would have been final and not subject to appeal.

Final comments

[95] Because I see this case as turning on what will best promote the welfare and interests of S, I have not addressed the positions of the principal protagonists, Mr and Mrs B and Ms G or the positions of E or K and C. The distressing nature of the situation in which they all find themselves should, nonetheless, be recognised (and I do, indeed, recognise it). Obviously it is desirable, to say the least, that other people should not find themselves in a similar situation.

[96] One of the difficulties with applying the paramountcy principle on a case by case basis is that the system as a whole can become distorted - distorted in the sense of producing results which are consistent with the best interests of the children immediately concerned, but which may be inimical to the interests of children as a whole or particular classes of children. This was particularly so in child abduction cases where application of the paramountcy principle encouraged kidnapping - a problem which has been addressed by the Hague Convention.

[97] If an adoption proceeds over the mother’s objection, particularly if she is truly able (as Ms G is) to care adequately for the child, it is likely to have reverberations when the child reaches adolescence and later. Adoptions which proceed over the objections of the birth mother are exposed to greater risks than adoptions where changes of heart have not been articulated by birth mothers. Yet especially when the change of heart comes late in the process, status quo considerations may well dictate that a final adoption order be made. Applying the paramountcy principle on a case by case basis and throughout the adoption process encourages changes of heart by birth mothers. When such a change of heart occurs, it can be expected to lead to distressing and damaging litigation and, if such litigation results in an adoption order being made (which will often enough happen), the fact that there was a change of heart may jeopardise the likely success of the adoption. This is particularly so in the case of an open adoption where there is going to be continuing contact between birth mother and adopted child. It is for this reason that the application of the paramountcy principle on a case by case basis throughout the process may be inimical to the interests of adopted children generally.

[98] As is apparent from this judgment I think that the paramountcy principle must be applied throughout the adoption process; this given s 11, Article 21 of the Convention and contemporary thinking. So the problem I have identified is not really capable of being addressed adequately by the courts. Furthermore, any change to the Adoption Act would also have to proceed on the basis of the paramountcy principle. But the scope of the problem would be reduced if the adoption process was accelerated and in particular if adoption orders were made on a final basis in the first instance, something which has been recommended by the Law Commission. There may be other possible approaches which might limit the scope for disputes of this sort but which would also be consistent with Article 21 of the Convention.

[99] In saying all of this I recognise that the desirability of avoiding late changes of heart by birth mothers and thus litigation of this type is not the only policy consideration which would be relevant to reform of the Adoption Act. But the grief (both short term and possibly long term) that cases like this cause warrants serious and prompt legislative consideration. The problem thrown up by this case was recognised as long ago as 1957. With open adoptions now the norm, the problem has become more acute and it is time that it was addressed.