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Moody, Catherine --- "Adoption Law in New Zealand: The Rights and Well-Being of the Child" [2008] NZLawStuJl 7; (2008) 1 NZLSJ 487

Last Updated: 14 January 2013

ADOPTION LAW IN NEW ZEALAND:

^{THE RIGHTS AND WELL- BEING OF THE CHILD}

CATHERINE MOODY^∗

Introduction

The focus of this paper is on the rights and well-being of adopted children in New Zealand and how these can be advanced through reform of the Adoption Act 1955. The aspects focused on are those with significant effects on adopted children and those which are in need of reform to ensure consistency with other areas of law affecting children and to meet our international obligations. Only selected areas of adoption law will be addressed and this paper should not be viewed in isolation from other areas of the Act also requiring reform. The history of adoption legislation and changing social attitudes, values and norms will be discussed to illustrate how the 1955 Act is archaic in nature and is no longer meeting the diverse needs of those subject to its proceedings. A child centered approach will be used to examine the concept of the welfare and best interests of the child, the importance of preserving the child’s self identity, the ability of the child to express their views, and the need to give children the opportunity to consent, refuse or abstain from consenting to their adoption, if they are deemed capable of doing so. The paper concludes by showing that reform is urgently required to bring this statute in line with current societal values, research and practice, and to secure the rights and best interests of children in New Zealand.

A. History of New Zealand adoption law

Adoption law historically dates back as far as 2800 BC where it was first used to secure succession rights in Roman times.¹ Many centuries later, a customary form of adoption known as ‘Whangai adoption’ was commonly used in New Zealand, and Europeans also practiced

^∗ _{LLB, University of Otago. The author would like to acknowledge Nicola Taylor of the}

University of Otago Children’s Issues Centre, her employer Morgan Coakle Lawyers & Professor Mark Henaghan, University of Otago, for his dedication to family law.

¹ K Griffith, The Right to Know Who You Are (K Kimbell, Canada, 1991) 2, 6.

informal adoption from the earliest days of settlement.² The Maori customary adoption system of caring for children occurs when the child is given to other members of the family to raise as their own through an informal ‘customary practice’.³ The principles that underpin Whangai adoption are those of openness; placement within the family; genealogy and the centrality of relationships to the Maori way of life.⁴

In contrast to Pakeha adoption practices, Maori customary adoption does not involve secrecy and the child is aware of both sets of parents and maintains contact with them. “An Atawhai (Whangai) though not born of my womb, is born of my heart”.⁵

In 1881 New Zealand became the first country in the commonwealth to enact adoption legislation, which arose directly from Maori customary adoption.⁶ The Bill was introduced by George Waterhouse, who was deeply concerned with the social process and had personal experience of adoption. His reasons for introducing the Bill were to benefit children deprived of their natural parents who would otherwise be exposed to want and privation; and that adoption would confer full parent-child status at a time when illegitimate children were nullius filius. The social context at the time of the legislations enactment was that children were parental possessions, should be silent and obey adults, and that birthmothers of ‘bastards’ should be punished and banished.⁷

Following the introduction of the Act the pace of change to the practice of legal adoption was slow, as suspicion remained over legitimacy and property estate issues.⁸ It was not until the early 1900s that legal adoption became more common than informal adoption.⁹

In the early 1900s statutory adoption was viewed by many as a means of lightening the burden on the state. Up until the 1940s many believed the fitting punishment for mothers who gave birth to an “illegitimate child” was keeping the child. This served as a warning to other women

² K Griffith, New Zealand Adoption Law, History and Practice, (Wellington, 1997), 6.

³ New Zealand Law Commission, Maori Custom and Values in New Zealand Law ( 2001) 64.

⁴ Ibid.

⁵ Ibid.

⁶ Above n2, 5.

⁷ Ibid.

⁸ Above n2, 6.

⁹ Ibid.

who might be tempted to stray. However the 1940s and 1950s saw a change in attitudes and keeping the child as a means of punishment was no longer seen as appropriate. Adoption was encouraged and the prevailing view was that children were best raised in two parent families.¹⁰

For a time adoption was seen as the end of a process. The birth parents were to no longer think of the child as born to them, and the birth mother bore both her unborn child and her shame in secrecy if possible.¹¹ In effect, this gave the adoptive parents the security of raising their new child without threat of interference by the birth parents.¹² Adoptees thus were seen as born to the adoptive parents and for all purposes “disappeared”¹³ into the adoptive family. This created the complete break theory which is based on a legal fiction rather than reality.

At this time the status of a child was determined by the marital relationship of their parents. Prior to the 1900s illegitimacy was seen as a major threat to public morality, and almost all children who were adopted were born outside marriage. The common law attitude, as explained by Inglis QC, was that illegitimate children were “unlawful productions” and not to be encouraged.¹⁴ This attitude stemmed from medieval land law so as to ensure that land was passed through families by marriage, and not by other means.¹⁵

The Status of Children Act 1969, section 3, abolished what was termed an ‘illegitimate child’ and social progress was then made to treat all children equally, no matter what the status of their birth. The Act created some controversy due to its anticipated deterrent effect on fathers who would then bear some obligation for the child. However, others believed that the Act would have the opposite effect by making people careless as to the importance of marriage since all children were

¹⁰ Law Commission, Adoption and its Alternatives, A Different Approach and a New Framework,

(Wellington, 2000) 15.

¹¹ Ibid.

¹² Above n1, 2, 9.

¹³ Ibid 2, 10.

¹⁴ Kerv Tutors of Moriston (1692) Mor Dict 1363.

¹⁵ M Henaghan and B Atkin, Family Law Policy in New Zealand, (2^nd Ed., LexisNexis

Butterworths, Wellington, 2002) 29.

to be treated equally.¹⁶ Significantly, this Act was seen as more consistent with Maori and Polynesian values which fail to distinguish between legitimate and illegitimate children.¹⁷

1. Complete break adoption theory

The complete break theory, primarily in use from 1950-1980, stemmed from the belief that the family environment could overcome heredity factors. Genetic determinism was the first theory to dominate adoption law. Since most adopted children were ‘illegitimate’, and were therefore considered to come from sinful families, it was believed that the sin would be passed on to the child. Genetic determination was believed to control behaviour and morality within the child.¹⁸

At the other extreme, was the theory that an adopted child, by being transplanted into the adopted family, would grow and develop as if born to them. It was believed that nurturing an adopted child within a family environment should be no different than rearing a natural child within that same environment.¹⁹ This theory became an ideology by the late 1940’s and replaced the heredity explanation since genetic factors were then believed to be overcome by environmental ones.

This environmental dominance was one of the foundations of the complete break theory.²⁰ Other contributing factors were the bonding theory - which provided security for adoptive parents so that bonding could take place, psychodynamic theory - which assumed that birth parents were likely to cause trouble for adoptive parents, and that good adoptees did not need to know about their origins.²¹

A complete break would allow the adoptive environment full reign to take over and shape the adoptee’s life into the mould of the adoptive family.²² Thus, secrecy provisions were inserted into the Adoption Act

1955 and became fundamental to the complete break theory. During

¹⁶ Above n14.

¹⁷ Ibid.

¹⁸ Above n2, 1.

¹⁹ Above n2, 9.

²⁰ Ibid.

²¹ Above n2, 10.

²² Ibid.

this time, both adoptive practice and policy were directed at implementing the ideology of a clean break, and little attention was given to the founding principles of adoption such as openness, centrality of relationships and concern for the adopted person.

2. Secrecy in adoption

Secrecy has surrounded the formal adoption process as it was regarded as necessary to foster normal family relationships and to protect all those involved in the adoption triangle.²³ Concealing the origins of the adoptee was seen as the best option to enable a second chance for the usually illegitimate child. The secrecy surrounding the adoption was also justified because of the stigma which once attached to a woman who had a child out of wedlock.

It was the Adoption Act 1955 which first erected secrecy barriers, and incorporated both the secrecy and the clean break provisions as a foundation policy and practice.²⁴ This led to birth mothers being ill- informed about their rights, no passage of information between the birth and adoptive parents, and adopted children not being informed of their adoptive status.²⁵ Birth mothers were being hidden from friends and their own family, either from the outset of their pregnancy or once they began to ‘show’.²⁶

In New Zealand it was common practice for lawyers and professionals to cover up names when parties were signing consent documents, so as to not reveal the name of the other party.²⁷ It has also been reported that birth mothers, when signing the consent documents, were made to swear while holding the Bible that they would never attempt to identify or contact the child in the future.²⁸ The Adoption Regulations 1959 also allowed the identities of the adoptive parents to be kept secret by providing forms which identified the adoptive parents by a reference number if they so wished. Once a child was adopted, the birth record was sealed and a new birth certificate was issued. This certificate only

²³ Above n2, 314.

²⁴ Ibid.

²⁵ Ibid.

²⁶ Ibid.

²⁷ Ibid.

²⁸ Ibid.

showed the names of the adoptive parents and their ages at the birth of the child. This obscuring of the factual history of the child’s life further served to entrench the culture of secrecy but has now, however, been partially eroded by the Adult Adoption Information Act 1985. This provides a process by which birth parents can seek contact with their children and by which adopted children²⁹ can obtain their original birth certificates and make contact with their birth parents.³⁰

Myths began to grow out of the complete break theory, with the secrecy and legal fictions preventing any critical analysis of these.³¹ This philosophy of secrecy and clean break, embedded in the 1955 Act, has been subsequently questioned and challenged on many levels due to its detrimental impact on those affected by adoption.³²

3. The demise of the clean break theory

The ideology of a clean break came under increasing pressure from ten sources³³ such as new psychological theory and practices, adoptees and birth mothers speaking out, and adoption law changes in England. Although professionals continued to defend the theory, the foundations were already beginning to collapse under them.³⁴

The secrecy, anonymity, and mystique surrounding the traditional adoptions of the past have created numerous psychological problems for adoptees, birth parents, and adoptive parents.³⁵ A modern philosophical movement, stressing the importance of personal experience and the need for self identity, challenged the foundations of the clean break theory. This illustrated how any deception, fiction, secrecy, or suppression of personal information was not addressing the reality of people’s lives, impeded personal growth and had dysfunctional consequences.³⁶

²⁹ From the age of 20 years.

³⁰ Unless a veto has been placed: see Adult Adoption Information Act 1985, sections 4 and 8.

³¹ Above n2, 315.

³² Above n2, 316-317.

³³ Above n2, 7.

³⁴ Above n2, 11.

³⁵ Above n1, 7, 1.

³⁶ Above n2, 11.

4. The decline in adoption

Since peaking in 1971 there has been a decline in the number of adoptions in New Zealand, stemming from several interrelated factors.³⁷ Firstly ‘The Contraceptive Revolution’ whereby it was an offence for those under 16 to procure a contraceptive, even though many illegitimate children were born (and subsequently adopted) as a result of this policy. Since 1976 contraceptive advice and devices have been more freely available and have led to fewer unplanned pregnancies, thus diminishing the number of children available for adoption.³⁸ Secondly abortion has been more readily available since

^{1976 and has meant some pregnancies have been terminated that might}

otherwise have led to adoption.³⁹ Thirdly, there has been a decreased stigma associated with illegitimacy which was affirmed by The Status of Children Act 1969 by removing illegitimacy and an increased acceptance of de facto marriages. Finally, the greater economic independence of solo mothers has also contributed to the decline in the number of adoptions. This is largely due to The Destitute Persons Act

1910 and the Domestic Proceedings Act 1968 which created a statutory means by which a woman could seek a maintenance order against the father of her children. Previously, an unmarried mother had to obtain an acknowledgement of paternity from the father or a declaration of paternity from the court in order to be entitled to seek maintenance. The Domestic Purposes Benefit (DPB), mitigated this and other difficulties by providing financial support for single mothers, irrespective of whether the father was contributing to maintenance payments. The introduction of the DPB was blamed for “creating a shortage of babies for adoption.”⁴⁰

A combination of these and other factors led to a decrease in the rate of adoption. Statistics show that total adoptions have decreased since their peak at 3967 in 1971, compared with only 540 total adoptions in

1996.⁴¹

³⁷ Above n2, 13.

³⁸ Ibid.

³⁹ Ibid.

⁴⁰ C Hadfield “Adoptions 1963 to 73” (paper presented at Departmental Conference on

Adoption, Department of Social Welfare, Wellington, 1973) 23, 30.

⁴¹ Above n2.

5. The opening up of adoption

Secrecy has surrounded the adoption process since the middle of the

^{20th century. However, there has never been a prohibition on open}

adoptions in New Zealand legislation, and this has always been a matter of choice.⁴² Social pressures in the past have meant open adoption was not the norm and any open adoption contract still has no secure standing in law. Judges are continuing to struggle in reconciling the practice of open adoption with the Act and legal recognition is required to remove the secrecy which surrounds adoption and to reflect the values and practices of adoption in New Zealand.

Section 7(6) of the Adoption Act 1955 provides that a parent or guardian of a child may give consent to an adoption without knowing the identity of the prospective adoptive parents. As mentioned previously, the Adult Adoption Information Act 1985 has somewhat eroded the secrecy surrounding adoptions as it provides processes for both birth parents and adoptees to seek information and contact.⁴³

Over the last two decades, social workers have facilitated the practice of open, rather than closed adoption in New Zealand. Open adoption involves varying degrees of contact between the child, members of its adoptive family and members of its birth family. The degree and regularity of contact is decided upon by the parties involved and contact may involve communication by mail at periodic intervals, or regular visits. Although the statute presumes secrecy, it does not prohibit communication and contact between the parties.⁴⁴

The growth in open adoption arrangements has been achieved through the promotion by social workers of the idea that open adoption is beneficial for all involved.⁴⁵ Over the past twenty years, research has been conducted into the consequences of open adoption⁴⁶ and at the

⁴² Above n2, 280.

⁴³ Although child or birth parent may place a veto upon access to information, section 3 and 7 Adult Adoption Information Act 1985.

⁴⁴ Above n15, 39.

⁴⁵ M Ryburn, Open Adoption: Research, Theory and Practice (Avebury, Sydney, 1994) [Open

Adoption] 17, 84-86.

⁴⁶ HD Grotevant and RG McRoy, Openness in Adoption: Exploring Family Connections (Sage

Publications, California, 1998) [Openness in Adoption].

centre of this practice are the best interests of the child. Studies have shown that openness helps to alleviate the disadvantages associated with closed adoption.⁴⁷ Birth mothers have found that contact with the adoptive family and the child assists them in alleviating their sense of loss and helps them come to terms with the adoption.⁴⁸ While the experience of adoptive parents has been that although they may be initially apprehensive, contact can improve their relationship with the child.⁴⁹ Evidence also suggests that adoptive children are more able to develop a successful attachment to their adoptive parents when there is contact with birth parents.⁵⁰

In 1955, 67.6% of adoptions were by strangers and 32.4% by non- strangers. In1996 this had changed substantially with only 21.1% being adoptions by strangers and 78.9% by non-strangers.⁵¹ Today most adoptions are made within a family or step family and this represents a significant shift in the reasons for adoption. Therefore there is no longer a need for secrecy in the majority of adoptions as the parties to the adoption know each other, and secrecy is therefore unnecessary, impractical, and is more likely to create disadvantages for all parties.

The continued focus on secrecy within the legislation governing adoption is now unrealistic.⁵² The effect of the current legislation is that of a “statutory guillotine” as it legally chops off the child’s genetic roots⁵³ and this is no longer plausible given the nature of the majority of adoptions currently taking place. The removal of secrecy barriers is still likely to benefit the small number of stranger adoptions taking place as the adoptee is more likely to establish a sense of identity,⁵⁴ birth mothers are likely to experience greater grief resolution and adoptive parents are more likely to feel secure in their role.⁵⁵ There is now an even greater need for legally opening up adoption both for birth and adoptive parents, and for the welfare of the child.

⁴⁷ Ibid.

⁴⁸ Ibid.

⁴⁹ Above n45.

⁵⁰ Ibid.

⁵¹ Above n15, 317.

⁵² Ibid 41.

⁵³ Above n2, 60B.

⁵⁴ Law Commission Adoption: Options for Reform: A Discussion Paper: NZLC pp38 (Wellington, 1999) 15-16.

⁵⁵ Above n15, 40.

6. The current legislation

Once an adoption order has been made, the adopted child is deemed to be the child of the adoptive parent, and the adoptive parent is deemed to be the parent of the child, as if the child was born to that parent in lawful wedlock.⁵⁶ The adoption order must give the child a surname and a given name(s).⁵⁷

After an adoption order has been made, a new birth certificate is issued with the adoptive parents entered in the place of birth parents. There is no indication on the face of the birth certificate that the child is adopted. The original birth registration of an adopted person is sealed until that child turns 20 and requests access under the Adult Adoption Information Act 1985. Access to identifying details on the birth certificate will be restricted if the adoption occurred prior to the commencement of the Adult Adoption Information Act and if the birth parent has placed a veto upon the disclosure of information. Once an adopted person reaches the age of 19, that person can request the Registrar-General to have the original birth certificate endorsed to the effect that they do not desire any contact with either a particular birth parent or both birth parents. This means that the Registrar- General is not empowered to release information that would identify the adopted person to the birth parent. In the case of adoptions for which no section 7 endorsement has been requested by the adopted person, and adoptions before the commencement of the Adult Adoption Information Act for which no veto has been placed, information that identifies an adult adopted person or a birth parent can be requested by either party.⁵⁸

7. Adoption in 2008

The current reasons for adoption in New Zealand have changed from those as historically outlined. However, the legislation itself has not kept pace with the changing social context and is now well out of touch with current family values and practices in regard to adoption. There

⁵⁶ Adoption Act 1955, s.16(2)(a).

⁵⁷ Adoption Act 1955, s.16(1), (1A) and (1B).

⁵⁸ Ibid.

have been no less than six reviews of our adoption law since 1979, with each review recommending significant reform to the legislation.⁵⁹ The most comprehensive review so far was undertaken by the Law Commission in the year 2000, entitled ‘Adoption and its alternatives: A different approach and a new framework’. Despite the continued recognition of the need for adoption law reform and the legislative blueprint provided by the Law Commission, unfortunately little progress has been made on this issue.⁶⁰

B. Adoption law: A child rights and welfare approach

This section of the paper will examine four significant aspects of a child-centered approach to adoption law. The welfare and best interests of the child, the self identity of the child, the ability of the child to have a voice in proceedings, and whether the child should be able to consent to their own adoption will all be examined. This section is to be viewed in light of the history of adoption and the Adoption Act as it stands in

^2008.

1. Welfare and best interests of the child: paramount or primary consideration?

The United Nations Convention on the Rights of the Child 1989 (UNCROC) provides a comprehensive framework of principles touching on every aspect of a child’s life. New Zealand ratified this Convention in 1993 and is now bound to comply with its internationally recognised principles. Article 21, relating to adoption, states that:

state parties...shall ensure that the best interests of the child shall be the paramount consideration...

The Adoption Act 1955, however, states that adoption must be “in the best interests of the child”.⁶¹ The Court of Appeal has made it clear that when a decision about adoption is made, the welfare and interests

⁵⁹ R Ludbrook Adoption Law Revision Required, (2006) <www.acya.org.nz> accessed

25/08/07.

⁶⁰ R Ludbrook, Copy of letter to Minister of Justice, published in Adoption News and Views, August 2007.

⁶¹ Adoption Act 1955, s. 11.

of the child are the first and paramount consideration,⁶² although this is not stipulated in the legislation. Mark Henaghan notes that the welfare and interests of the child have become focal points in adoption although this is still open to context within the legislation and priorities given will depend on the facts of the case and the values of the Judge.⁶³

^{Thus, although the provision is a primary consideration, it is not}

entrenched as the first and paramount consideration in the Act. To ensure children’s rights are secure in each and every case, the welfare and best interests of the child must be the first and paramount consideration and this must be stipulated in the legislation.

The Law Commission in 2002 recommended that adoption law reform should be included in a Care of Children Bill which was to cover guardianship, custody and access as well as adoption.⁶⁴ A Care of Children Bill was introduced in 2003 and passed in 2004 which replaced the Guardianship Act 1968, but only made technical amendments to the Adoption Act. The purpose of what is now the Care of Children Act 2004 (COC Act) is to promote children’s welfare and best interests and to facilitate their development by helping to ensure that appropriate arrangements are in place for their guardianship and care.⁶⁵

The terms welfare and best interests signifies that decisions must not only focus on immediate welfare concerns such as care and nurture, but also the long term interests such as giving effect to the mandatory principles found in section 5.⁶⁶

Section 4(b) of the COC Act states that the welfare and best interests of the child must be the first and paramount consideration in all proceedings under the COC Act, but also in ‘any other proceedings involving the guardianship of, day-to-day of, or contact with a child’. It is arguable⁶⁷ that the Adoption Act falls within ‘any other proceedings’ and is now coloured by this requirement and should be applied consistently with it. The courts are yet to address this issue, however proceedings under the Adoption Act can be argued to fall irrevocably

⁶² Social Welfare v L [1989] NZCA 130; [1989] 2 NZLR 314 (CA).

⁶³ M Henaghan, Welfare and Interests of the Child in Adoption Proceedings, (1990) 2 Family Law

Bulletin, 86.

⁶⁴ Above n59.

⁶⁵ Care of Children Act 2004, s.3(1)(a).

⁶⁶ Mark Henaghan, Care of Children (LexisNexis NZ Limited, Wellington, 2005) 5.

⁶⁷ R Ludbrook, personal communication, 6/9/07.

within this. The effect of this colouring can only have positive implications for children subject to proceedings under the Adoption Act until amendments to the Act are made. Due to the substantial delays and prolonging of amendments,⁶⁸ the courts could use this reading to protect the welfare and best interests of children in proceedings, by making this a mandatory consideration.

This reading is strengthened when read in light of section 5 which states the principles that are relevant to the child’s welfare and best interests. In particular section 5(b) emphasises continuity in arrangements for the child’s care, development and upbringing and stability in relationships and section 5(f) emphasises that the child’s identity should be preserved and strengthened.

It is not clear whether the courts would be willing to interpret section

^{4(b) of the COC Act when applying the Adoption Act. The Children}

Young Person and Their Families Act 1989 (CYPF Act) also recognises the rights of children⁶⁹ and our obligations under article 21 of UNCROC support the view that the welfare and best interests of the child should be the first and paramount consideration in adoption law. These factors may sway the court to adopt section 4(b) of the COC Act when applying the Adoption Act prior to its reform.

2. Self identity of the child

Secrecy in adoption serves to create a legal fiction, whereby the child is transplanted into an adoptive family and is meant to grow up ‘as if the child had born to the adopted parents in lawful wedlock’.⁷⁰ This legislation is based upon the assumption that the past should be concealed, that the birth mother would forget her ordeal and get on with her life, and that the new adoptive family unit would develop like any other.⁷¹ However, the assumptions underlying this legislation have been shown to be flawed and some adoptees have reported problems in establishing a sense of identity as a result.⁷²

⁶⁸ Above n60.

⁶⁹ Children Young Person and their Families Act 1989, s.13.

⁷⁰ Adoption Act 1955, s.16(2)(a).

⁷¹ Above n15, 36.

⁷² Above n54, 15-16.

The ability to cope fully with different life situations or to enter relationships with others is largely dependent on the strength and quality of the individual’s self identity.⁷³ Adoption legislation needs to set the framework for the adoptee to establish their identity should they desire to do so through family origins or the like. Most people gain background knowledge of their family as a part of their regular development, yet an adopted person can never experience this in an environment favouring secrecy.⁷⁴ A system of open adoption enables the adoptee to have contact with the birth parents and thus their genealogical roots are not severed. The adoptee is more likely to feel a closer attachment to their adoptive family in such situations.⁷⁵ Research shows that adoptees are better able to establish a sense of the self, come to terms with feelings of ‘abandonment’, and feel secure in their adoptive family environment when an open adoption is used.⁷⁶ Thus, the Adoption Act 1955 needs to be reformed to reflect the importance of the adoptee establishing their self identity.

3. Wishes or views of the child in adoption proceedings

Section 11(b) of the Adoption Act states that due consideration should be given to the ‘wishes’ of the child, having regard to the age and understanding of the child. Historically, the reasons for adoption were not child centered and took little or no account of the child’s own views.

The COC Act now gives prominence to the views of the child⁷⁷ and has abandoned qualifiers such as ‘age and maturity’ and ‘wishes’ which were central to its predecessor, s23 of the Guardianship Act 1968. It is argued that ‘wishes’ as found in the Adoption Act, does not accord with child development theory as it is a future orientated aspiration rather than grounded in the current experiences and concerns of children. It is a one off inquiry and it gives the child the impression they need to make a choice between parents.⁷⁸ In contrast, the word

^{‘views’ implies that children are able to contribute what they regard as}

⁷³ Above n1, 11, 3.

⁷⁴ Above n45.

⁷⁵ Above n45, 84-86.

⁷⁶ Above n45, 180.

⁷⁷ Care of Children Act 2004, s. 6.

⁷⁸ Above n2, 294.

important without having to make a choice about what they may prefer. Furthermore, ‘having regard to the age and understanding of the child’ although consistent with the qualifiers found in UNCROC, is also out of touch with developmental theories as it presumes that children progress along standard developmental lines. Another important aspect of the child expressing their views is the ability of adults to ascertain those views without arbitrary consideration of factors such as the child’s age.

Within reform of the Adoption Act the words ‘wishes’ as currently found in section 11 should be replaced with the word ‘views’ and ‘age and understanding’ should also be removed. This wording would be consistent with the approach taken in the COC Act.

The COC Act elevates children’s rights and requires that child’s views always be taken into account in relevant proceedings under the Act.⁷⁹

This elevation of children’s views is consistent with our international obligations under Articles 12 and 13 of UNCROC.

Article 12 of UNCROC 1989 states that:

state parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

The reason for obtaining the child’s views is not to determine the outcome of the case. Rather, it is to listen to the child and to show respect to the person who the decision is in reference to.⁸⁰ Section 6(2) requires that “a child must be given reasonable opportunities to express views on matters affecting the child” and that “any views the child expresses (either directly or through a representative) must be taken into account”. To ensure compliance with section 6 the Court must appoint a lawyer to act for a child unless the Court is satisfied the appointment would serve no useful purpose.⁸¹

A useful guide as to the role of lawyer for the child is found in section 7

⁷⁹ Brown v Argyll [2006] NZFLR 705; (2006) 25 FRNZ 383 at paras [44] and [46].

⁸⁰ M Henaghan, Case Note: Children’s Views -Two Steps Forwards, One Step Backwards (2006) 5

NZFLJ 154.

⁸¹ Care of Children Act 2004, s.7.

of the COC Act. This is consistent with article 12.2 of UNCROC and equally applicable in adoption proceedings:⁸²

The lawyer must act for the child, obtain their views and act on those views. The lawyer must also ensure that the child’s best interests are put before the court and in the rare case where conflict arises between these two roles then the lawyers is to ask for counsel to be appointed in order to assist the court.

For the rights of children to be effective, the Family Justice system has the correlative duty of providing a range of resources so that a child is offered reasonable opportunities, appropriate to them, to express their views and so that the Court is given the information required to ensure that any views the child chooses to express are understood from the child’s perspective.⁸³ Judicial interviews with the child are now increasingly undertaken although problems⁸⁴ may still be associated with this.⁸⁵ Pauline Tapp has researched Judges interviewing children and has stated that the Judge should be the leader of a team with a plan in each case that “best suits the wishes and characteristics of the particular child concerned”.⁸⁶

The CYPF Act was the first major piece of legislation that moved towards a child focused approach in relation to children’s participation in decision making.⁸⁷ Section 5(d) states that consideration “should be” given to the wishes of the child or young person, as far as those wishes can be reasonably ascertained, and accorded weight, as is appropriate in the circumstances, having regard to the age, maturity and culture of the child or young person. Judge von Dadelszen has stated that it would be a “brave Judge” who did not interpret section 5(d) as a requirement to ensure that appropriate inquiry was made to ascertain the child’s views.⁸⁸ The Court of Appeal has stated that a Judge is “obliged” to

⁸² Above n66, 9.

⁸³ P Tapp, A Child’s Right to Express Views: a Focus on Process, Outcome or a Balance? (2006) 5

NZFLJ 209.

⁸⁴ For example, consistency in how Judges talk to children, lack of time and resources dedicated to children and the fact that usually the interviews are one off events.

⁸⁵ M Cochrane, Children’s Views and Participation in Decision Making, (2006) 5 NZFLJ 183.

⁸⁶ P Tapp, Examining Judicial Approaches to Interviewing Children, Paper presented at the 4th

Annual LexisNexis Child Law Conference, Langham Hotel, Auckland, 10 March 2005,

23.

⁸⁷ S Porteous, Children and Consent to Adoptions, (2006) 5 NZFLJ 107.

⁸⁸ D-GSW v R (1997) 16 FRNZ 357, 369-370.

give consideration to the wishes of the child, but how a Judge ascertains those wishes is a matter for his or her discretion.⁸⁹

The extent to which a child’s ‘wishes’ are ascertained under the Adoption Act 1955 is dependent upon the information before the court. This then raises issues as to how the child’s wishes are ascertained, whether through a social worker, or via a judicial interview. Unlike other family law statutes there is currently no power in the Adoption Act to appoint a lawyer to represent the child, although counsel can be appointed to assist the court under its inherent jurisdiction. This is increasingly used by the courts to ascertain the child’s wishes and advise the court of those wishes.⁹⁰ There is also inherent jurisdiction for a Family Court Judge to interview the child through R 54 of the Family Court Rules.⁹¹

It is crucial that information before the court is accurate and represents the child’s true ‘views’. Regrettably, the lack of processes and mechanisms for obtaining this information and placing it before the court threatens to jeopardise this. The child’s views are unlikely to be central in adoption proceedings, nor is the child likely to feel their voice has been heard.

The UNCROC recognises that the level of a child’s participation in decisions must be appropriate to their age and level of maturity. Some studies have shown a child’s ability to form and express their opinion develops with age and that most adults will naturally give the views of teenagers greater weight than those of a preschooler, whether in family, legal, or administrative decisions.⁹² However the ability to ‘hear’ the perspective of a child is constrained by a number of factors, particularly the inability of the system to understand that reality is socially constructed. Thus, age, culture, race, and gender will affect how people perceive a situation and will influence the aspects of the child’s reality which the adult sees as relevant. However there should be no presumption that a child’s wishes are irrelevant because of the child’s

⁸⁹ B (CA 204/97) v Department of Social Welfare (1998) 16 FRNZ 522 at 527 citing M v Y

[1993] NZCA 329; [1994] 1 NZLR 527, 537 (CA).

⁹⁰ Brookers Family Law-Child Law (Vol. 1, Wellington, Brookers) 2005, CC7, 09.

⁹¹ Above n66, 10.

⁹² FACT SHEET: A Summary of the Rights Under the Convention on the Rights of the Child

<http://www.unicef.org/crc/files/Rights_overview.pdf,> accessed 20/08/07.

age, nor because of what a legal system defines as relevant.⁹³

It is important that solutions are built with children, considering their perspective on the realities at issue and ensuring that they are empowered to form their own view. If the legal system does not listen to children it may miss information vital to finding a solution that fits with the child’s reality and any decision which does not take into account the child’s perspective is less likely to be effective.⁹⁴

Canadian research has shown that by giving children the opportunity to express their views and be heard they are more likely to develop respect and trust in others in order to form meaningful bonds, and develop self esteem and a sense of belonging which will help them to cope with the challenges of adult life.⁹⁵ This is particularly important in regard to adoption as it has far reaching consequences for the child in that it affects their legal status, family relationships, and often their cultural identity.⁹⁶

Given the archaic nature of the Adoption Act and the lack of reform, these other legal and social advancements with respect to children’s views are yet to have a significant effect on adoption proceedings. Although Judges may now be more receptive to a child’s views through recent experience with the COC Act and the CYPF Act, there is still no statutory right which authorities must adhere to when dealing with these issues under the Adoption Act.

An aspect of the ‘paramountcy principle’ found in section 4 of the

^{COC Act requires that section 6 on the child’s views is adhered to.97}

There is a need to ensure consistency between our obligations under UNCROC and between other legislation dealing with children.⁹⁸ Thus, if Adoption proceedings do fall within ‘any other proceedings’⁹⁹ then

⁹³ Smith, Taylor and Gollop, Children’s Voices, Research, Policy and Practice, (Pearson

Education Ltd, 2000) 96.

⁹⁴ Ibid 97.

⁹⁵ http://www.crin.org/docs/GDD_2006 _Canadian_Child_Care_Federation.doc., accessed 20/08/07.

⁹⁶ Above n87, 110.

⁹⁷ See Care of Children Act 2004, s. 4(6).

⁹⁸ Such as the Care of Children Act 2004 and the Children Young Person and their

Families Act 1989.

⁹⁹ Care of Children Act 2004, s. 4(1)(b) see above discussion.

there is a statutory duty requiring the child’s views to be ascertained as one aspect of the inquiry found in section 4. Although not satisfactory in the long term, this interpretation may provide a blueprint for proceedings under the Adoption Act to ensure that the welfare and best interests of the child are the first and paramount consideration and that an aspect giving effect to this is participation by the child, and the right to express their views. This will make some inroads in the short term to ensure consistency between laws in regard to children and will also seek to meet our international obligations under UNCROC.

Reform is required in this area to bring the Adoption Act in line with current societal thinking, other areas of the law and UNCROC.¹⁰⁰ As previously discussed, ‘any other proceedings’ in section 4(b) of the COC Act can be read as inherently applying to the Adoption Act as it currently stands. Thus it can be argued that there is now statutory basis in adoption proceedings for applying both the ‘paramountcy principle’ of welfare and best interests of the child and also the right of the child to express his or her views and have these taken into account by the court.

This interpretation is consistent with other jurisdictions that also recognise the right of a child involved in adoption proceedings, to express their views. Under the Children (Scotland) Act 1995 section 6 places a duty on adoption agencies and courts to consider the views of the child in "any decision relating to the adoption." This covers all planning decisions by the adoption agency. No fixed age is set out in section 6 and the reference applies to all children. Agencies and courts need to consider the views of the child "so far as practicable...taking account of his age and maturity". However section 6(2) also states the presumption that a child of 12 years or over shall be presumed to have a view. The Adoption Act 2000 (New South Wales) places strong emphasis on participation of Children in adoption decision-making. Section 9 is to ensure a child is able to participate in any decision made under the Act that has a significant impact on the child’s life. The section goes on to state information the decision maker is responsible for providing the child with which includes the opportunity to express his or her views freely according to his or her abilities

¹⁰⁰ See: ACYA, Children and Youth in Aotearoa 2003 (ACYA, Wellington, 2003) 38.

4. Children and consent to their adoption

The Adoption Act 1955 does not require that children consent to their adoption. The NGO report to the United Nations on Children and Youth in Aotearoa¹⁰¹ highlights the lack of opportunity under current legislation for anyone under 20 years old to have participation rights in proceedings under the Adoption Act. As outlined before, children should not be mere passive recipients of decisions which affect them and should be actively involved in the proceedings.

Currently only a minority of adoptions are ‘stranger adoptions’ where the birth parents do not know the adoptive parents. This is a significant change from earlier adoptions which because of secrecy meant ‘stranger adoptions’ were the norm and the child’s consent to the adoption was less relevant, perhaps because of the child’s age. There has been a shift in theory from regarding children as passive and voiceless victims towards regarding them as social actors with their own views and strategies.¹⁰² By giving effect to this socio- cultural theory of development, children are thus seen as capable of contributing to the decision making process. Adoption within one’s own family highlights different needs and different considerations which the authorities should be required to consider before making an order.

Currently an adoption order can be made in respect of a child under the age of twenty years without the child’s consent and sometimes without his or her knowledge.¹⁰³ The Law Commission report in the year

2000,¹⁰⁴ took submissions on whether the consent of a child old enough to give consent to their adoption should be required. Forty one submitters said yes, three said no.¹⁰⁵ This illustrates clear support within New Zealand for reform of this aspect of the Adoption Act.

At common law in the leading case of Gillick¹⁰⁶ the House of Lords decided that the issue of consent is one of the child’s capacity rather than the chronological age and a child who is capable of making a

¹⁰¹ Ibid.

¹⁰² Above n2, 293 see also n93.

¹⁰³ Re E [1992] NZFLR 216; (1991) 7 FRNZ 530.

¹⁰⁴ Above n2.

¹⁰⁵ Above n2, 159.

¹⁰⁶ Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112, 186.

decision should be able to make that decision. The main issue in this case was whether doctors would be acting lawfully if they gave contraceptive advice and treatment to fifteen-year-old young women without the young women’s parents knowing about the advice and treatment. In this case, Lord Scarman took the most robust approach, and made it clear that once a child has sufficient understanding and maturity then the child has the capacity to make decisions of his or her own. He set out a stringent test whereby the child must not only understand the nature of what is decided, but also be able to assess its implications. Lord Frazer added another aspect to the test, advocating that the final decision must be in the best interests of the child¹⁰⁷

Issue may arise as to whether the autonomy rights of the child are superseded by what the court views to be in the child’s welfare and best interests if the two appear to be at odds with each other. However, if a child is deemed to be Gillick competent, is it then appropriate for the court to dispense with the child’s consent on the basis of their view of the child’s welfare and best interests?

Other jurisdictions have acknowledged the right of a child to consent to their adoption. For example, the New South Wales Adoption Act

^{2000, section 55, requires that older children give consent to their}

adoption. The court is not to make an adoption order in relation to a child who is 12 or more but less than 18 years of age and who is capable of giving consent unless satisfied that the child is in such a physical or mental condition as not to be capable of properly considering the question of whether he or she should give consent.¹⁰⁸

^{The court can also make an adoption order in relation to a child who is}

incapable of giving consent ‘if the court is satisfied that the circumstances are exceptional and that it would be in the best interests of the child to make the order’.¹⁰⁹

The NSW test is a mixture of both a Gillick competency test and a fixed age of 12 years. However, setting an age limit as to when a child can even be considered whether they are Gillick competent or not only adds an arbitrary element to the decision at hand and does not reflect a child

¹⁰⁷ Ibid, at 174.

¹⁰⁸ Adoption Act 2000 (NSW), s. 69.

¹⁰⁹ Adoption Act 2000 (NSW), s. 55.

rights centered approach. Any child, regardless of chronological age, should be given an opportunity to be considered for whether or not they are Gillick competent. A child of 11 years may be just as competent as a child of 12 years. However if a chronological age is fixed at 12 years before Gillick competency will be considered, then the

^{11 year old is not even given the opportunity to establish their}

competence.

The Adoption Act in its current form is parental based, with children’s rights given little or no prominence. Reform needs to ensure that children’s rights are at the forefront within the legislation and a crucial aspect of this is the right of the child to consent to their adoption if they are deemed capable of doing so. There are no fixed limits where nature knows only a continuous process of growth and maturity¹¹⁰ and thus it is difficult to establish a fixed age at which a child becomes competent to give or refuse their consent.

To avoid problems associated with fixing an arbitrary age limit, the courts could solely employ a Gillick competency test when dealing with consent of the child. As established before, reform of the Adoption Act should incorporate a mandatory duty to ascertain the views of the child and for these to be taken into account. Furthermore, each child should be considered on a case by case basis as to whether they are Gillick competent, and able to understand both the legal and personal consequences of their decision.¹¹¹

If a child is deemed Gillick competent they should then be able to consent, refuse to consent, or abstain from consenting to their adoption. Each of these options must then be considered against what the court deems to be in the welfare and best interests of the child. Thus, the overriding factor will always be a mandatory consideration of the welfare and best interests of the child, but consideration must be also be given to the views of the child and any consent or refusal of consent they may express.

The COC Act 2004 has chosen not to address the Gillick competent child with regard to consent to medical procedures. Under the Act a

¹¹⁰ Above n106.

¹¹¹ Above n87, 110.

child aged 16 years or over now has the legal ability to both consent or refuse to consent to medical procedures.¹¹² The COC Act does not rule out a Gillick competent child and therefore it is still possible to act on the consent of a child who is under 16 and who has sufficient knowledge and understanding of a particular decision.¹¹³ Bill Atkin, in his paper “The Care of Children Bill-All Right But Only As Far As It Goes”, concluded that the Care of Children Act 2004 does not make as much progress as it could in the area of the children’s rights.¹¹⁴ By reforming the Adoption Act in the way this paper recommends, children’s rights are likely to be advanced in a greater way than they currently are under the medical consent provisions of the COC Act in this respect.

The difficult task will be determining how competence is to be judged and by whom. The child’s views are to be ascertained through a lawyer appointed to represent the child and competence could be determined as part of the judicial process by specially trained experts such as child psychologists or counselors. A pilot study and further research should be conducted in this area to best determine the most appropriate way of deciding whether a child is Gillick competent with regard to Adoption proceedings. Gillick’s case itself highlights the difficulty of the test with the Law Lords unable to agree on whether fifteen-year olds had sufficient knowledge and understanding on contraceptive decisions.¹¹⁵ However, clinicians and professionals already have experience with determining competence in regard to medical procedures and this experience will be of value to the determination under adoption proceedings. Furthermore, although a test may be difficult to apply it is essential that a test be used which is flexible and applicable to all circumstances as the case may arise.

D. Discussion and recommendations

This paper aims to focus on the rights and well being of New Zealand children through illustrating some of the required reform to the Adoption Act 1955. The issues as outlined above are certainly not exhaustive and it is not intended that this paper is inclusive of all

¹¹² Above n66, 20.

¹¹³ Ibid.

¹¹⁴ Ibid.

¹¹⁵ Ibid.

reform in relation to the Adoption Act and children’s rights.

The Adoption Act is archaic. It is based on parental rights and fails to address the rights, needs, or wants of children. Although adoption is a life changing experience for all concerned, the Act does not address the repercussions it can have on children or indeed on their birth and adoptive parents. It is important to address the history of the Act to fully understand that it was based on different social perceptions, different needs within society and different social attitudes including concepts such as secrecy, illegitimate children and nullius filius (nobody’s child). Open adoption is now practiced and should be recognised within the legislation and the environment of secrecy can be removed. We have moved on from the society of 1955. The Act however has remained unchanged in substance and still represents the social stigmas of our society in the mid-twentieth century.

Given the lack of commitment by the Government to reforming the Act, interpretations of the Adoption Act which are consistent with the COC Act should instead be read when applying the legislation. The welfare and best interests of the child are not currently a mandatory consideration within the Adoption Act and the requirement that adoption be in the best interests of the child can be overlooked dependent on the context and the values of the Judge. Section 4(b) of the COC Act requires that the welfare and best interests of the child be the first and paramount consideration within the Act and ‘any other proceedings involving the guardianship of, or the role of providing day- to-day care for, or contact with a child’. This paper recommends that the Adoption Act, can be considered to fall irrevocably within ‘any other proceedings’ and is therefore coloured by this requirement. The consequences of this reading are that the welfare and best interests of the child are the first and paramount consideration in adoption proceedings. This is a plausible reading when read in light of UNCROC and the CYPF Act 1989 and is likely to have a positive effect on children who are subject to adoption proceedings. In the long term, reform of the Act in relation to the welfare and best interests of children should be modeled on section 4 of the COC Act.

The Adoption Act states that due consideration should be given to the wishes of the child having regard to the age and understanding of the child. The term ‘wishes’ should be replaced by the term ‘views’ as

found in the COC Act and article 12 of UNCROC, as it is a grounded term which implies that the child is able to contribute to the decision without having to make a choice. In the short term, before reform takes place, relevant to the child’s welfare and best interests¹¹⁶ is that a child must be given reasonable opportunities to express views on matters affecting the child and that any views the child expresses must be taken into account. By interpreting ‘any other proceedings’ as applying to proceedings under the Adoption Act, the child’s views would then be a mandatory consideration as an inherent part of the welfare and best interests of the child test, as found in section 4.

Other legislation such as the COC Act now recognises that children’s maturity does not develop along stringent developmental lines according to their age. Thus any reference to ‘age and understanding’ should be removed from the legislation and the reform of this area of the Adoption Act should be modeled on section 6 of the COC Act and also section 7 (appointment of lawyer to represent the child).

As the type of adoptions taking place has changed significantly, and only a small proportion of adoptions are now stranger adoptions, it is appropriate that children have the opportunity to consent, refuse to consent, or abstain from consenting to their adoption. Rather than fixing an arbitrary age as to when a child is capable to consent or otherwise, the test should be based on whether the child is deemed Gillick competent. The test is that a child must not only understand the nature of what is being decided, but also understand its implications. Once a child has sufficient understanding and maturity then the child has the capacity to make decisions of his or her own and the overriding discretion is to lie with the Judge as to whether the adoption is in the welfare and best interests of the child.

Reform to the Adoption Act is well overdue. Ensuring the suggestions discussed in this paper are included in reform of the Adoption Act, will mean greater advancements of children’s rights, greater consistency between legislation affecting children, and it will ensure New Zealand adheres to its international obligations. In the interim prior to reform, the suggested interpretations of the COC Act should be applied during Adoption Proceedings. This will seek to promote the rights, welfare

¹¹⁶ Care of Children Act 2004, s. 4(6).

and best interests of children in New Zealand.

Conclusion

It is clear that the legislation governing adoption in New Zealand is in grave need of reform. The Act must move forward from the policy of the 1950s to the practice and research of the present day. At the forefront of this reform must be the rights of children. It is essential that children’s rights and well being are elevated and no longer capable of being so easily overridden by parental rights. Children must have a voice within the legislation, an opportunity to express this and a means of doing so. An important aspect of this is giving children who are deemed capable an opportunity to consent or refuse to consent to their adoption. It is also essential that any adoption law reform addresses all aspects of children’s rights, not only those focused on within this paper.

This paper recommends that the welfare and best interests of the child must be the first and paramount consideration in adoption proceedings, that the child must be given reasonable opportunity to express their views and have these placed before the court and that a child who is deemed Gillick competent should have the opportunity to consent, refuse to consent, or abstain from consenting to their adoption. These changes need to be facilitated through amendments to legislation, procedures, judicial training, and through the allocation of resources.

In conclusion the time is well overdue for adoption law to be transformed into an Act applicable within today’s society, culture, and diverse needs. This law should strive to promote a more child-centered approach and ultimately give prominence to children’s rights and well being.

‘Ui mai koe ki ahau he aha te mea nui o tea o, Maku e ki atu he tangata, he tangata, he tangata!

^{Ask me what is the greatest thing in the world, I will reply:}

It is people, it is people, it is people!’