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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV
2004-404-7230
BETWEEN GEORGE SOLLY ANQUANDAH
LEVINIA KUTORKOR ANQUANDAH
Applicants
AND
THE ATTORNEY GENERAL OF NEW
ZEALAND
Respondent
Hearing: 8 & 9 May 2007
Appearances: J E Dorbu for the applicants
M J Hodge for the respondent
L J Kearns amicus curiae
Judgment: 11 July 2007
RESERVED
JUDGMENT OF PRIESTLEY J
This judgment was delivered by me on 11 July 2007 at 4.15 pm
pursuant to Rule 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date: ..............................
Counsel/Solicitors:
Mr Dorbu, Barrister , P O Box 105 345, Auckland
(Fax: 309 9819)
Mr M Hodge, Crown Law Office P O Box 2858, Wellington (Fax: 04 473 3482)
Ms L J Kearns, Barrister, P O Box 1857,
Shortland Street, Auckland (Fax: 377 0220)
ANQUANDAH AND ANOR V ATTORNEY GENERAL OF NZ HC AK CIV 2004-404-7230 11 July 2007
TABLE OF CONTENTS
The Issue [1]
The People
[3]
The Applicants [4]
Procedural History
[13]
Chronology Relating to Applicants and Child [ 14]
Section 17 Adoption Act 1955 [15]
Processes and Documents [26]
Ghana Law [56]
Discussion
[ 61]
Result [ 76]
Additional Comment
[ 77]
Costs [ 78]
____________________
The Issue
[1] The applicants wish to adopt an eight year old boy who currently lives with
an elderly woman in Accra in Ghana.
[2] The means whereby the applicants wish to achieve that end is to ask this
Court to make a declaration under the Declaratory
Judgments Act 1908. The
declaration sought would be to the effect that a customary adoption of the child in
Ghana complies
with s 17 of the Adoption Act 1955.
The People
[3] The materials before the Court refer to a number of people. In respect
of
some family members the inter-relationship is complex or obscure. It is thus
convenient to list them, indicating the name
by which they will be called in this
judgment, and their role.
Name Called Description
George Anquandah "George" Male applicant married to Levinia
Levinia Anquandah "Levinia" Female
applicant married to George
Joshua Kennedy "Joshua" The child
Kwabena Ekuban
Catherine Yaasewah "Mrs
Kotey" Elderly widow living in Ghana.
Kote y Mother of Levinia. Guardian of
Joshua and party to Deed of
Adoption.
Cynthia Amoako
"Cindy" Cousin of Levinia. Attorney of
George and Levinia for
application to
High Court of Justice, Accra in
January 2005.
Catherine Kotey (Junior) "Catherine Joshua's mother. Child of Mrs
Kotey"
Kotey's deceased cousin. Levinia's
second cousin. Member of Mrs
Kotey's household for some years.
Fritz Lobsinger
Ekuban "Fritz" Joshua's father.
Kennedy Amoako "Kennedy" On basis of July 2003 Social Welfare
report, son of Cindy Amoako and
John Mensah.
Happens to have the
same date of birth as Joshua.
John Mensah "Mr Mensah"
Kennedy's father.
Ernestina Fati Pwamang "Ernestina" Author of Social Welfare report of 3
July 2003 relating to Kennedy
Justice Anthony Abada "Justice Abada" Judge of the Superior Court
of
Judicature in the Court of Justice,
Accra, Ghana who made court order
of 2 February 2005.
The names and descriptions
in the above table are findings of fact based on the
materials before the Court. The narrative will thus be simplified.
The Applicants
[4] George swore three affidavits. Levinia swore none which is surprising since
Joshua currently resides with her mother Mrs
Kotey.
[5] Both George and Levinia gave evidence before me. I regarded them as being
sincere and truthful. I am also satisfied
that Levinia has been an important figure for
Joshua during his early formative years. I am satisfied that she loves Joshua, that
George feels affection towards the child, and that their motivation in wanting to
adopt Joshua and bring him to New Zealand to live
with them is genuine.
[6] George is aged 42. He was born in Durban in South Africa of African
ethnicity. He has lived in New
Zealand for some years and has held a New Zealand
passport since August 1999.
[7] George lived in Ghana for a short period with
his South African parents when
he was a child but returned to Natal. He holds various South African and New
Zealand engineering qualifications.
He is in full time employment. He and Levinia
own a home in Manukau.
[8] Levinia is 37. She was born in Ghana. In her teens
she travelled to London
where she obtained A levels. She too has diplomas in engineering from English
tertiary colleges. Before
emigrating to New Zealand she was an information
technology consultant.
[9] Levinia became eligible for New Zealand citizenship
last month. She is
pregnant. She and George were married on 14 June 2003 in Ghana by way of a
traditional marriage ceremony. On 24
August 2004 they were married in New
Zealand. Prior to her current pregnancy Levinia had a miscarriage in Ghana.
[10] Levinia's
introduction to George was apparently effected by a friend in 2001.
Their initial encounter was by telephone. They did not meet until
June 2003 when
George travelled to Ghana. During a period of just under four weeks in that month,
the marriage took place and there
was some form of family meeting relating to
Joshua. George left Ghana to return to New Zealand on 29 June 2003. Levinia has
been
officially a resident of New Zealand since March 2005.
[11] Since Levinia's arrival in New Zealand the couple have regularly
sent money
and gifts to Ghana for Joshua. There have been regular telephone calls between the
couple and Joshua and Mrs Kotey.
[12] I have described the relationship of George and Levinia, although it has no
legal relevance, nor unfortunately will it determine
the outcome of my decision.
They are a mature, well-settled, and well-educated couple who have qualified for
residence in New Zealand
and seem to me to be doing well. Levinia's concern for
Joshua's welfare and the joint wish of the couple to adopt him are understandable,
particularly given Mrs Kotey's age. I am conscious of the fact their application has
been before this Court for two and a half years.
Extracting relevant information, as
can be seen from the procedural history (infra), has not been easy. Even discounting
the benefit of hindsight, I consider
there were probably better ways to try to achieve
George and Levinia's objective.
Procedural History
[13] A brief summary will
suffice.
i) 22 December 2004. Ex parte application for declaration under
s 17 filed.
ii) 23 December 2004. Court issues minute declining to grant
application on an ex parte basis and pointing out various
difficulties
iii) 14 February 2005. Minute directing appointment of Ms
Kearns as amicus and directing all
papers to date to be served
on the Solicitor-General.
iv) 30 March 2005. Copy of order of Supreme Court of
Judicature in Accra, Ghana, made on 2 February 2005, filed.
v) 22 April 2005. Affidavit by Mr Samuel Koranteng, an English
solicitor and expert on Ghanaian law, filed.
vi) June October 2005. Various conferences and minutes
designed to obtain further updating advice from Mr Koranteng
on Ghanaian law and inquiring whether a Ghanaian Social
Welfare report was available.
vii) 9 February 2006. Second affidavit from Mr Koranteng filed
and further affidavits
from Mr Anquandah.
viii) February June 2006. Various efforts by the High Court
Registry to extract Social Welfare report
from the court in
Ghana.
ix ) 25 August 2006. Fixture vacated.
x) 13 November 2006. Further fixture vacated as
a result of
arrival of Ghanaian Social Welfare report which raised a
number of fundamental questions about identity.
x i) 11 December 2006. Counsel for applicant seeks
unsuccessfully to have amicus curiae removed.
Chronology Relating to Applicants and Child
[14] There is no dispute over various important dates and events. Rather than
surround
them by narrative it is convenient to list them in chronological order.
· 8 June 1999. Joshua born.
· May 2001. George and
Levinia have preliminary telephone contact.
· June 2003. George meets Levinia for the first time in Ghana
· 14 June 2003.
Traditional marriage of George and Levinia.
· June 2003. Contact made with Social Welfare in Ghana and George and Levinia
interviewed by Ernestina.
· 3 July 2003. Social Welfare report for Kennedy's adoption but containing
personal details
of George and Levinia.
· 22 June 2004. George makes inquiries with Department of Internal Affairs in
Wellington about the
possibility of adopting the son of his partner's cousin.
· 2 July 2004. Department of Internal Affairs writes to George and encloses
considerable New Zealand and Ghanaian statutory material.
· 24 August 2004. George and Levinia marry in New Zealand.
·
7 October 2004. Deed of Adoption executed.
· 22 December 2004. George and Levinia apply ex parte to High Court for
declaration
relating to s 17.
· 31 January 2005. Ex parte application filed in Supreme Court in Accra.
· 2 February 2005. Ghana court
order relating to customary adoption.
Section 17 Adoption Act 1955
[15] The facts of this case do not require an extensive
analysis of the relevant
policy and legislation relating to people officially resident in New Zealand wishing
to adopt a foreign
child.
[16] New Zealand, unlike Ghana, has ratified the Hague Convention on
Intercountry Adoption. That Convention sets out New
Zealand's international law
obligations and led to the passage of the Adoption (Intercountry) Act 1997.
[17] Those statutory
provisions, however, do not apply because Ghana has not
acceded to the Convention.
[18] The adoption of a foreign child, of course,
has immigration ramifications. A
foreign adoption order has the potential, by virtue of ss 3(2) and 7 of the Citizenship
Act 1977,
to give the child a claim to New Zealand citizenship. Ms R M Atkinson,
an officer in the Department of Internal Affairs has deposed that between 1 April
2005 and 24 April 2007,
741 adoptions were recognised for citizenship purposes.
[19] One route whereby a foreign adoption can lead to citizenship and
the lawful
entry of a foreign child into New Zealand is s 17 which provides:
17 Effect of overseas adoption
(1) Where a person has been adopted (whether before or after the
commencement of this section) in any place outside New
Zealand according
to the law of that place, and the adoption is one to which this section applies,
then, for the purposes
of this Act and all other New Zealand enactments and
laws, the adoption shall have the same effect as an adoption order validly
made under this Act, and shall have no other effect.
(2) Subsection (1) of this section shall apply to an adoption
in any place
outside New Zealand, if--
(a) The adoption is legally valid according to the law of that
place; and
(b) In consequence of the adoption, the adoptive parents or any
adoptive
parent had, or would (if the adopted person had been a
young child) have had, immediately following the adoption,
according to the law of that place, a right superior to that of any
natural parent of the adopted person
in respect of the role of
providing day-to-day care for the person; and
(c) Either--
(i)
The adoption order was made by any Court or
judicial or public authority whatsoever of a Commonwealth
country, or of the United States of America, or of any State
or territory of the United States of America,
or of any other
country which the Governor-General, by an Order in
Council that is for the time being
in force, has directed to be
deemed to be referred to in this subparagraph; or
(ii) In consequence
of the adoption, the adoptive parents
or any adoptive parent had, immediately, following the
adoption,
according to the law of that place, a right superior
to or equal with that of any natural parent in respect of any
property of the adopted person which was capable of passing
to the parents or any parent of the person
in the event of the
person dying intestate without other next of kin and
domiciled in the place where
the adoption was made and a
national of the State which had jurisdiction in respect of that
place--
but not otherwise.
(2A) The production of a document purporting to be the original or a
certified copy of an order or record
of adoption made by a Court or a judicial
or public authority in any place outside New Zealand shall, in the absence of
proof to
the contrary, be sufficient evidence that the adoption was made and
that it is legally valid according to the law of that place.
(3) Nothing in this section shall restrict or alter the effect of any other
adoption made in any place outside New Zealand.
(4) In this section the term New Zealand does not include any territory
in which this Act is not in force.
(5) This section
does not apply to any adoption in another Contracting
State that is an adoption--
(a) By a person habitually resident
in New Zealand; and
(b) To which the Convention applies; and
(c) Which takes place in that Contracting
State on or after the
date on which the Convention has entered into force as between New
Zealand and that Contracting
State.
(6) In subsection (5), Contracting State and Convention have the same
meaning as in the Adoption (Intercountry) Act 1997.
[20] Because the Convention does not apply between New Zealand and Ghana,
ss 5 has no application. The focus instead is on s 17(2). If the requirements of that
provision
are satisfied then, in terms of ss (1), the foreign adoption order has the
same effect as if it were validly made under the Act.
However, as is apparent from
the use of the words in ss (2) "but not otherwise", the jurisdictional requirements
must be met.
[21]
It is on ss 17(1) and (2) that George and Levinia rely.
[22] Mr Dorbu sees the issue simply. He accepts that the applicants
must prove
three elements being:
a) That the adoption is legally valid according to the law of Ghana.
b)
That in consequence of the adoption the applicants have a custody
right to the child superior to that of his natural
parents and
c) That adoption is made by any court or judicial public authority of a
Commonwealth country
(which Ghana is).
[23] There is no requirement under s 17 for any inquiry into a child's welfare. A
foreign court order that
meets the ss (2) requirements dictates the s 17(1) outcome. It
may well be that there has been no or scant inquiry by the foreign
authority into the
welfare aspects of an adoption order.
[24] In this case, the request to Ghanaian authorities for a copy of
any social
welfare report was at the instance of Ms Kearns. She considered that, in a general
way, any such report might be helpful,
particularly since the process on which the
applicants relied was a customary adoption rather than a court order.
[25] The relevant
s 17(2) procedure on which the applicants factually rely divides
into two stages. First it is asserted that Joshua has been lawfully
adopted by George
and Levinia as a result of a Ghanaian customary adoption. Secondly the validity of
that customary adoption has
been asserted by Justice Abada in the Superior Court of
Judicature in Accra on 2 February 2005.
Processes and Documents
[26]
The evidence of George and Levinia and the documents on which they rely
state that Joshua's natural mother is Catherine Kotey and
his father Fritz Ekuban.
[27] Although there is no mention of this in any of George's three filed affidavits,
it would seem that
there was some form of family meeting when George visited
Ghana in June 2003. Both George and Levinia mentioned that meeting when
giving
viva voce evidence. As a result of that meeting, contact was made with the Social
Welfare authorities. The couple were subsequently
interviewed by Ernistina. It is
clear, however, from Levinia's evidence that neither Fritz nor Catherine Kotey, the
child's natural
parents, attended the meeting.
[28] The document on which George and Levinia rely is a Deed of Adoption dated
7 October 2004.
That document was annexed to George's first affidavit of 14
December 2004. He deposed:
[O]n the 7th day of October 2004,
by an instrument of adoption valid in
accordance with the law of the Republic of Ghana my wife and I have
adopted the
following child, namely:
i) Joshua Kennedy Kwabena Ekuban, a male child aged five.
[29] Interestingly neither
the affidavits nor the annexed 7 October 2004 Deed
make any reference to Joshua's date of birth.
[30] The parties to the Deed
are Mrs Kotey, George, and Levinia. The preambles
to the Deed recite that Joshua's natural mother (unnamed) "has, owing to
circumstances
beyond her control relinquished custody, care, control, and
maintenance to the guardian". The guardian for the purposes of the Deed
is Mrs
Kotey. The Deed further asserts that the child's natural father, also unnamed, has
similarly relinquished all custody rights
to the guardian.
[31] A further preamble to the Deed states:
Both parties hereto are subject to the same native law
and customs of the Ga-
Adamgbe tribe of Ghana which encourages the adoption of children of blood
relations.
[32]
The operative part of the Deed contains Mrs Kotey's consent as "guardian" to
George and Levinia adopting the child, and asserts that their rights "... with regard
to the
property, custody, education, and residence and location of the adopted child
supersede those of the guardian and natural parents".
[33] Catherine Kotey's signature was witnessed in Ghana on 7 October 2004 by a
lawyer and notary public. The signatures of George
and Levinia were witnessed in
Auckland, (probably, given geography and the date of the deed some time earlier),
by Mr Richard Connell
a solicitor and notary public in Auckland.
[34] Various other documents were attached to the Deed of Adoption. The first is
a
declaration (but in affidavit form) by a lawyer in Accra, Opoku Amponsah who
says he prepared the Deed of Adoption dated 6th (sic)
October 2004 "... on the joint
instructions of the natural parents and the adoptive parents" of Joshua. He also
exhibits what he
swears is a true copy of the affidavit of "Catherine Kotey, the
natural mother of the child". He further swears that the Deed of
Adoption was
prepared after he had been satisfied "...with the truth of the facts of the instructions I
received from the natural
parents and the adoptive parents of the young child and due
interview of the said child".
[35] Finally Mr Amponsah swears that
to the best of his knowledge the Deed of
Adoption is valid under Ghanaian laws, "both customary and common law", and that
with immediate
effect Joshua ceases to be the child of his natural parents.
[36] The annexed declaration by Catherine Kotey, also sworn on 7
October 2004,
before the same notary public, states that she is a widow, that George is Joshua's
uncle, that Joshua is her grandson,
(certainly not the child's natural mother as Mr
Amponsah would have us believe), and she has "the authority as the only surviving
parent (sic) and sole guardian of my said grandson to make this declaration".
[37] Finally, as part of the set of documents,
is a "Consent to Adoption" signed by
Fritz in Accra on 9 October 2004, two days after the Deed of Adoption. His
signature has been
witnessed by Cindy Amoako who gives her occupation as
seamstress. Confusingly, at the foot of the document is the seal and signature
of one
Julianna Amonoo-Nizer, a lawyer and legal practitioner who states that the person
signing the document (presumably Fritz)
"appeared before me on the 9th day of
October 2004 and appended his signature in my presence".
[38] The problems and inconsistencies
with this set of documents are self-evident.
Assuming for the moment that Fritz, one of Joshua's natural parents, has consented,
and his execution of the consent two days after the Deed and the preamble alleging
that he has relinquished all rights to custody,
care, and maintenance to Mrs Kotey,
can somehow be construed as a consent to the adoption, there is clearly no consent
from Joshua's
natural mother. There was no statement as to how Mrs Kotey,
wrongly called the child's mother, became Joshua's guardian. Nor
was it clear what
her guardianship rights were.
[39] The next phase, probably triggered by this Court's refusal to make an ex
parte declaration on 22 December 2004, was an application to the Superior Court of
Judicature in the High Court of Justice in Accra
on 28 January 2005. George and
Levinia were the applicants. Mr Amponsah, whose affidavit is described in para
[34] (supra), was appearing
counsel.
[40] The supporting affidavit was sworn by Cindy. She, (George and Levinia
have confirmed this), was their lawful attorney
for the purpose of the application.
She states that George is Joshua's uncle; that Joshua is the son of Fritz and Catherine
Kotey;
that Catherine Kotey has abandoned Joshua and relinquished his custody,
care, and control to Mrs Kotey; and that efforts to locate
Catherine Kotey have been
futile, it being believed she is residing in Cote d'Ivoire or Nigeria.
[41] The affidavit also asserts
that there was a family meeting in Accra attended
by George, Levinia, Fritz, Catherine Kotey, and other family members at which
George and Levinia expressed their willingness
"to customarily adopt the juvenile"
and that all family members consented to this. Reference is made to Fritz's consent
which is
annexed.
[42] There is a further supporting affidavit from Mrs Kotey in which she says she
is Joshua's grandmother, refers to
the customary adoption, and states that she has
authority as Joshua's sole guardian to make the declaration since the whereabouts
of
Joshua's mother is unknown.
[43] On the basis of that documentation Justice Abada, having read the two
supporting affidavits
and having heard Mr Amponsah, issued an order in the
following terms:
It is hereby confirmed that Joshua Kennedy Kwabena
Ekuban was
customarily adopted by George Solly Anquandah and Levinia Kutorkor
Anquanda under the customary legal system
of Ghana and Joshua Kennedy
Kwabena Ekuban is at liberty to join George Solly Anquanda and Lenivia
(sic) Kutorkor Anquandah,
the applicants herein, who are currently
ordinarily resident at Unit 4, 5A Wade Avenue, Onehunga, Auckland New
Zealand.
[44] The information placed before Justice Abada (outlined above) is important.
The supporting affidavits did not refer to or
exhibit the 7 October 2004 Deed of
Adoption which, on the basis of Mr Amponsah's declaration, was valid under
customary law. Nor
does there appear to have been any reference to native law and
the customs of the Ga-Adamgbe tribe referred to in the preamble of
the Deed.
[45] The final document, on which George and Levinia do not rely, but which in
the submissions of Mr Hodge and Ms Kearns
is significant, is the 3 July 2003 social
welfare report signed by Ernestina. The appearance of this report on the court file is
noteworthy. At my direction the Civil Registrar of this Court wrote twice to the
Registrar of the Superior Court of Judicature in
Ghana. The Registrar's letters were
dated 31 March and 17 May 2006. The letters referred specifically to Justice
Abada's
declaration and sought a direction from Justice Abada, on the basis of
judicial comity, that a copy of any welfare report relating
to Joshua be made
available.
[46] A reply from Ghana, dated 21 June 2006, advised that a thorough search had
been made of the
court's record and there was no social welfare report.
[47] In the meantime, Mr Hodge wrote to the Principal Social Development
Officer of Ghana's Department of Social Welfare in similar terms on 2 June 2006.
Mr Hodge requested the Ghanaian authorities forward
any report direct to the
Auckland High Court Registry.
[48] As a result of Mr Hodge's request, a letter dated 5 September 2006
from the
Regional Director at Kumasi (a city in Ghana's interior approximately six hours
drive from Accra), arrived for the Auckland
Registry headed "Social Welfare report
on Joshua Kenedy (sic) Kwabena Ekuban"; It attached a report dated 3 July 2003.
[49] That
report, to which reference has already been made, on its face relates to a
child Kennedy Amoako. The report has a suit number on
it being a reference to a
court file. It is not the same court file as the 28 January 2005 application.
[50] The report has full
and correct personal details of both George and Levinia
who are described as the applicants. Kennedy's date of birth is identical
to Joshua's.
Joshua is described as the son of Levinia's cousin Cindy. Cindy and Mr Mensah are
recorded as the names of Kennedy's
natural parents.
[51] The report states that Kennedy's mother has given her consent to the
adoption. The "investigation officer",
Ernestina, recommends that it would be in the
best interests of Kennedy to be adopted by George and Levinia and recommends the
granting
of an adoption order.
[52] Understandably counsel cross-examined both George and Levinia about the
report. They were both adamant
they had never sought to adopt a child of Cindy or
indeed a child called Kennedy Amoako. Nor were they able to explain why this
report, clearly triggered by a request they both
made in Ghana in June 2003, and
containing correct information about them, gave the name of the wrong child albeit
the same date
of birth.
[53] In the wake of the hearing, and with leave, Mr Dorbu filed a further
declaration from Opoku Amponsah who acted
as George and Levinia's counsel
before Justice Abada and whose evidence on another aspect I have already canvassed
(supra [34]
).
[54] That declaration states that he has not filed any adoption proceedings for
George and Levinia in respect of Kennedy;
that if any such adoption application had
been granted or refused a circuit court order should be available; that "inadvertently"
the social welfare report is inaccurate; and that
"... I personally introduced [George] and [Levinia] to the Social Welfare
Department in Accra for a social welfare report in respect of the adoption
application at the High Court."
This last
assertion is puzzling since the only introduction of the couple to the social
welfare authorities would have been to Ernestina in
2003. The involvement of the
High Court in Accra does not appear to have occurred until 28 January 2005. If
some High Court application
involving the social welfare authorities and Ernestina
were afoot in June 2003, there has been absolutely no evidence about it.
[55] A social welfare report, as I have stated, is not an essential prerequisite to any
foreign orders to which s 17 relates or
indeed to a declaration in respect of s 17. I am
not, on the basis of the evidence before me, prepared to make a finding that George
and Levinia took steps to adopt Kennedy. I do find that Ernestina's 3 July 2003
report was triggered by approaches made in June 2003
when George was in Ghana
and Joshua's adoption was being discussed. I think it likely the report was prepared
in respect of some
adoption application relating to Joshua which George and Levinia
brought in Ghana, which either did not proceed or for some reason
failed.
Ghana Law
[56] Mr Dorbu arranged for evidence on Ghana law to be provided by Mr Samuel
Koranteng, a graduate of the
University of Ghana currently practising as a solicitor
in partnership in London. He has filed two affidavits.
[57] I remind
myself it is not for me to interpret the law of a foreign state.
Foreign law is a question of fact to be pleaded and proved by counsel,
and to be
decided by a Judge: see Dicey, Morris and Collins, The Conflict of Laws, 14th ed,
2006, R 18(1) at p 255; Attorney-General
for England and Wales v R [2002] 2
NZLR 91 at [31]; Glencore International AG v Metro Trading International Inc
[2001] 1 Lloyd's Rep. 284. Foreign law will not usually be inferred from previous
decisions, even when these concern the same subject. It must generally be
proved
each time: Brenan and Galen's case [1847] EngR 443; (1847) 10 QB 492; Mount Cook (Northland)
Ltd v Swedish Motors Ltd [1986] 1 NZLR 720. Expert witnesses are not entitled to
give a statement of their opinion. Their evidence should be restricted to recital of the
relevant
legal facts: Mount Cook (Northland) Ltd v Swedish Motors Ltd [1986] 1
NZLR 720.
[58] A court cannot reject uncontested or uncontradicted evidence on the basis of
its own research: Bumper Development Corp
Ltd v Commissioner of Police of the
Metropolis [1991] 1 WLR 1362 at 1371 (CA). Such evidence can, however, be
rejected in the event that it is `obviously false' (O'Callaghan v O'Sullivan [1925] 1
IR 90), obscure (Allen v Hay (1922) 69 DLR 193 (SCC)), or internally inconsistent
(Buerger v New York Life Assurance Co (1927) 137 LT 431); and Grupo Torras SA
v Sheikh Fahad Mohammed Al-Sabah [1996] 1 Lloyd's Rep 7 at 18 (CA) per Stuart-
Smith LJ).
[59] Evidence is only admissible where the proposed witness is properly qualified.
A Judge
or practitioner in the jurisdiction whose law is in question is properly
qualified: Baron de Bode's case [1845] EngR 8; (1845) 8 QB 208. There is no challenge to Mr
Koranteng's experience or expertise in Ghanaian family law. He is the only witness
in this area.
[60]
Mr Koranteng's evidence can best be summarised as follows:
· He has been shown the 7 October 2004 Deed and Justice
Abada's order.
· Articles IV (1) and (2) of the Constitution of Ghana include as the law of
Ghana, common
law and customary law, which is defined as "the rules of
law which by custom are applicable to particular communities
in Ghana".
· He opined (this in part being an issue for me (supra [57])) that the
"customary adoption" was valid in accordance
with the laws of Ghana
and that a child so adopted ceased for all purposes to be a child of the
natural parents.
· The
law of Ghana recognises a customary adoption is valid in the same
way as an adoption under statute law such as Ghana's Children's
Act
1998. In that regard he referred to the 1974 Ghana Court of Appeal
decision of Tanor v Akosua Koko [1974] 1 GLR 451.
· In that decision the Court of Appeal held that the two principal
requirements needed to make a customary adoption valid
were first the
consent of the child's parents and secondly the expression of the
adopter's intention to adopt the infant
before witnesses.
· A customary adoption made in Ghana does not require the sanction of a
court to be valid. A customary
adoption is valid and complete as soon as
the Tanor requirements are met.
· A family that seeks to adopt a child in Ghana,
regardless of whether the
child was a member of an extended family or from some other family,
would ordinarily do so customarily
in consultation with the elders of the
clan and/or the traditional chiefs rather than going through a court
process.
·
Customary adoption exists in Ghana in tandem with statutory adoption.
· Because of the strong unifying rules played by chiefs
and traditional
rulers in Ghanaian communities, customary usages have been preserved
including the areas of marriage and
adoption. For these reasons a court in
Ghana would have no difficulty confirming the adoption of a child unless
there was
opposition or something untoward which would adversely
affect the child's interests.
· Ghana has not acceded to the
relevant Hague Convention.
· The customary adoption of Joshua is valid under Ghanaian law.
· On adoption under
Ghana law, the adoptive parents have a superior right
to that of any of Joshua's natural parents and for all intents and
purposes
he ceases to be a child of the natural parents and becomes a child of the
adoptive parents.
Discussion
[61] The central issue for this Court is whether the process relating to Joshua
between 2003 and 2005 fits inside the s 17(1)
requirement of the child being adopted
in Ghana according to Ghana's law and in particular whether the adoption complies
with s 17(2).
On those aspects I must be satisfied on the balance of probabilities.
[62] A related issue is whether s 17(2A) extends to the
order made by Justice
Abada on 2 February 2005. There is no doubt in my mind that were Justice Abada's
order to be "an order or record
of adoption made by a court or a judicial or public
authority" in Ghana then such order would be conclusive.
[63] But that is
not what the 2 February 2005 order is. It is a declaration that on
the basis of information placed before the Judge by Cindy Amoako
and Mrs Kotey,
there has been a customary adoption of Joshua by George and Levinia. The order,
with respect, strays somewhat beyond
the declaration in any event, by stating that the
child is "at liberty" to join George and Levinia in New Zealand, which is essentially
a New Zealand immigration issue.
[64] There is force in Mr Hodge's submission, supported by Ms Kearns, that the 2
February 2005
order is confirmatory. It is not in itself an adoption order nor can the
order have the effect of transforming what might otherwise have been an invalid
adoption under Ghanaian
law into a valid one.
[65] Mr Hodge further submitted that were s 17(2A) to apply, there is indeed
"proof to the contrary" before
the Court relating to the validity of Joshua's adoption
because the consent of Joshua's natural mother, Catherine Kotey, was never
obtained. (There is a valid consent from Fritz, but there is no consent whatever
from the natural mother). Whether or not under Ghanaian
law, particularly when a
customary adoption is involved, the natural mother's consent can be dispensed with,
and if so in what circumstances,
is not a matter on which there has been any
evidence.
[66] Nor, if the focus is to be on the 7 October 2004 Deed, is it clear
from the
evidence whether Mrs Kotey as "guardian" of Joshua is able to stand in the shoes of
the natural mother for consent purposes.
[67] Mr Amponsah's first declaration (supra [34]) asserts that he prepared the
Deed of Adoption on the joint instructions of
both natural parents and adoptive
parents. But there is absolutely no evidence on how the natural mother's
"instruction" came
to Mr Amponsah. The evidence, and indeed the documents,
suggest she cannot be located.
[68] Mr Koranteng's evidence has something
to say about the mechanics of a
customary adoption in Ghana. This involves a consultation with elders or traditional
chiefs, and,
on the authority of Tanor v Akosua Koko, the consent of the child's
parents and an expression of the adopter's intention to adopt
before witnesses.
[69] It may well be that the family meeting in June 2003 was a consultation and
expression of intention of
this type. But, on the authority of Tanor, the absence of
both the child's natural parents from the meeting would result in the meeting
not
complying with what Mr Koranteng advises are the requirements of a customary
adoption.
[70] The 22 December ex parte application's
supporting affidavit (supra [28] )
expressly states that the 7 October 2004 Deed is, in effect, the customary adoption.
But that
cannot be right in terms of Ghanaian law and Mr Koranteng's evidence as to
what constitutes customary adoption.
[71] A preamble
to the Deed refers to the customs of the Ga-Adamgbe tribe yet
the Deed on its face involves George, Levinia, and Mrs Kotey with the
signatures of
the first two parties being witnessed in Auckland before a New Zealand solicitor and
notary public. Such is a far cry
from the customary procedures Mr Koranteng
outlines. Levinia's evidence was that the Ga-Adamgbe Tribe is matriarchal. But
whether
George, from a different part of Africa, became, on marriage, a member of
that tribe is unclear. The assertion that the Deed is itself
a customary adoption sits
uneasily with the evidence of what occurred in June 2003. And in June 2003, neither
of Joshua's natural
parents attended the family/tribal meeting.
[72] Finally, the evidence of George and Levinia, that they instructed lawyers in
Ghana to proceed with the adoption and that they were interviewed by Ernestina,
suggests that in June 2003 at least, some process
other than a customary adoption
was envisaged.
[73] Were George and Levinia in a position to produce a Ghanaian adoption order
covering Joshua then the declaration procedure and the requirements of s 17 would
present no difficulties. There is, however, no
adoption order. As is clear from the
approach adopted by Harrison J in Tjoing v District Court North Shore (CIV 2003-
404-006528,
21 April 2004) the absence of an order would not be fatal provided
there was evidence of a legally valid adoption and the requirements
of ss 17(2)(b)
and (c)(ii) being satisfied.
[74] But regrettably, for the reasons I have stated, on the basis of the evidence
of
Ghanaian law and the various documents placed before the Court, Joshua's
"adoption" in Ghana is problematic. The applicants have
chosen to assert there is a
valid customary adoption. However, for the reasons I have stated I am far from
convinced that is the case.
[75] Thus, and for
the same reasons, on the balance of probabilities I do not
consider the requirements of s 17(1) and 17(2)(a) are met.
Result
[76] Accordingly the application for a declaration is refused.
Additional Comment
[77] As I stated in an earlier section
of this judgment I consider that there are valid
and genuine reasons why George and Levinia want to adopt Joshua and bring him to
be part of their family in New Zealand. The route they have chosen to that objective
has been unsuccessful. There are, however, other
routes which they would be well
advised to try. It is not this Court's function to give the applicants legal advice.
Suffice to say
this Court has sympathy with their inevitable disappointment and
regrets that another route was not attempted at an earlier stage.
Costs
[78] Mr Hodge, for the respondent, asked that costs be reserved. Some thought
needs to be given, in the circumstances,
as to whether costs should be pursued. The
applicants are not necessarily, on the basis of my findings, personally responsible for
the course this proceeding has taken since December 2004. They will doubtless have
incurred considerable expense to no avail. The
Crown is to some extent a legitimate
gatekeeper in applications relying on s 17 where, as is apparent from Ms Atkinson's
affidavit,
there are many borderline and/or dubious cases. Should the respondent
seek costs, a memorandum should be filed and served.
[79]
There is a direction that Ms Kearns's reasonable costs are to be paid by the
Registrar of this Court from the appropriate fund.
The Court has been assisted by
Ms Kearns persistence over the past two years. I do not in the circumstances intend
to order a contribution
to her costs from either party.
...........................
Priestley J
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