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309 THE TERMS OF REFERENCE require us to consider whether special
provision should be made to recognise Mäori and other cultural adoption practices. Apart from the statutory provisions of the Te Ture Whenua Mäori Act 1993 (the Te Ture Whenua Mäori Act), Mäori customary adoptions are no longer recognised in law.[323]
310 For the purposes of this paper we have concentrated mainly on Mäori adoption issues. This is partly because there is more information available about Mäori perspectives on adoption than there is about the adoption practices and views of other cultural groups. We seek information about other cultural perspectives on adoption, and we would be grateful for submissions on adoption issues from other cultural groups.
Legal constructs and customary ‘adoption’
311 In the paragraphs below we attempt to give a rudimentary definition of how whängai placements differ from adoption. We also provide a brief history of the way in which the New Zealand legal system has chosen to recognise (or has refused to recognise) the legal validity of such placements. Although for the purposes of adoption law, whängai placements are not legally recognised,[324] an informal system of customary ‘adoption’ which corresponds with the traditional concept of whängai or atawhai placements[325] is still practised by some Mäori. This cannot be equated with adoption under the Adoption Act, as it does not carry the same incidents or consequences as adoption.[326] Dame Joan Metge’s studies indicate that the current Mäori use of the term whängai generally makes no reference to the legal status of the child involved.[327] If an analogy needs to be sought, the Päkehä concept of guardianship more closely equates to customary placements.[328] For this reason we have sought to use the terms ‘whängai placement’. Any reference to ‘Mäori customary adoption’ in this paper should be understood in the context of the above comments.
Whängai and atawhai – history
312 The position as far as Mäori custom is concerned is that there was, and still is,[329] a recognised practice of giving a child into the care of relatives. Very often the relative will be the child’s grandparent or an aunt. Children given into the care of persons other than their parents were commonly referred to as whängai or atawhai.[330]
313 There are no particular formalities, but it appears that whängai or atawhai placements were a matter of public knowledge and were made with the express or tacit approval of the whanau or hapu.[331]
314 The child was aware of its birth parents and other family members, and usually had contact with the members of its birth family. Once the child is accepted in this way, the adopter and child will frequently regard each other as parent and child for all significant purposes, as will the other members of the whanau. Whängai placements were not necessarily permanent and it was not uncommon for such a child to later return to its parents.
315 Whängai placements were used for a variety of reasons[332] and with a number of results. The tikanga[333] relating to whängai varies between iwi.[334] Generally, whängai placement was a means of strengthening relations within a hapu or iwi and had the advantage of ensuring that land rights were consolidated within the tribe, rather than diluted. For this reason, whängai adoptions were traditionally arranged between members of the same hapu or iwi, although relations by marriage would sometimes be deemed acceptable candidates.
316 Adoption of children from outside the whanau/hapu/iwi was uncommon. A child who was adopted by a stranger was vulnerable and had little protection.[335] Whängai placements contrast markedly with Päkehä closed adoption practices whereby children were usually adopted by strangers.
Legal recognition of whängai placements
317 The legal system has given varying degrees of recognition to Mäori customary placements. Initially customary placements were made without state intervention or regulation. The Adoption of Children Act 1895 provided a regulatory scheme which gave all citizens the capacity to adopt children by Court order. Mäori could avail themselves of the statutory adoption procedure if they wished to do so, but it was not obligatory. 336
318 The Native Land Claims Adjustment and Laws Amendment Act 1901 provided that claims to adoption could not be recognised unless the adoption was registered in the Native Land Court.[337] Between 1901 and 1904 customary placements became increasingly regulated, largely due to the potential for whängai to dispute land entitlement.[338] If a person wanted to claim against an estate on the basis of whängai, the customary placement had to be registered with the Native Land Court.[339] Mäori began registering customary placements as a means of clarifying rights to Mäori land. When a person sought to register a customary adoption, the Native Land Court would enquire into the nature and circumstances of the placement and seek an opinion on the relevant Mäori customary law from Mäori assessors. Incrementally the Native Appellate Land Court created guidelines (based on the Land Court assessors’ version of Mäori customary law) to help judges assess the validity of customary placements and determine succession rights.[340] To a certain extent, customary law principles informed the substance of the mainstream law relating to adoption.
319 Section 161 of the Native Land Act 1909 provided that no adoption in accordance with Native custom, even if made before the Act was passed, should have any force or effect, particularly as regards intestate succession to Mäori land.[341] An adopted child’s rights were only preserved if the adoption had been registered before 31 March 1910.[342] This was the express intention of the legislature, as indicated by Sir John Salmond’s notes of the Bill which was to become the Native Land Act.
[b]y this Bill, adoption by Native custom is abolished, and adoption by order of the Native Land Court is substituted. Any such order of adoption has the same effect as adoption by a European under the Infants Act 1908. The jurisdiction of Magistrates over Native adoptions is taken away, and the adoption of a European child by a Native is prohibited.[343]
320 The Native Land Court retained jurisdiction over such adoptions. An adoption order made by the Native Land Court carried the same legal consequences as other adoption orders under the Infants Act 1908; the Mäori child assumed the name of the adoptive parents and the law deemed that the legal ties to the birth parents ceased to exist.
321 In 1927 the legislative policy was reversed. Section 7 of the Native Land Amendment Act 1927 and the Native Claims Adjustment Act 1927 re-instated customary adoptions made before 31 March 1902, if they were subsisting at the date of commencement of the Native Land Act 1909. This provision only applied “in the case of a Mäori who dies or who has died subsequently to the commencement of the principal Act”.
322 Section 202 of the Native Land Amendment Act 1931 re-instated the original section 161. It provided, as before, that “no adoption in accordance with Native custom, whether made before or after the commencement of this Act, shall be of any force or effect”.[344] Clearly this provision was intended to have retrospective effect, as had its 1927 predecessor.
323 Thereafter, the proscription of customary placements continued in much the same form until 1955. An abridged version was then inserted in the Adoption Act 1955.[345] That law is still in force.
324 In summary, the law recognised whängai placements between 1899 and 1902. Whängai placements were not recognised between 1902 and 1909, although such placements could be recorded as an adoption in the Native Land Court. Between 1909 and 1927 the law refused to recognise customary placements. Between 1927 and 1930, the law once again recognised whängai and equated such practice with adoption. From 1930 onwards, a whängai child was no longer treated as an adopted child in the eyes of the law. The present Adoption Act confirms that Mäori customary adoptions made after the introduction of the Native Land Act 1909 have no legal effect beyond the recognition accorded to such placements by the Te Ture Whenua Mäori Act.[346]
325 Despite the legal changes, adoption practices in the Magistrates’ Court[347] and the Mäori Land Court remained markedly different. Adoption hearings in the Mäori Land Court took place in open court and the proceedings were published. Adoption proceedings in the Magistrates’ Court were heard in closed chambers and the proceedings were not published. From 1962 all adoptions had to be processed by the Magistrates’ Court (the District Court and the Family Court now have jurisdiction to make adoption orders).
326 Customary law varies as to whether whängai children may inherit from their “adoptive” family. Some iwi allow a whängai child to inherit only if the child is a blood relative. Ngai Tahu, for example, oppose succession by adopted or whängai children.[348]
327 Children who have been formally adopted (and other relatives by adoption) can take the property just as if they were natural children. Whängai children[349] who are not formally adopted (according to Päkehä procedures) can only take (a) under the will of the whängai parent;[350] or (b) by order of the court, on the intestacy of the whängai parent.[351] The Mäori Land Court is able to make provision for whängai when distributing an estate under the Te Ture Whenua Mäori Act.[352] The Court must determine whether a person is to be recognised for the purposes of the Act as having been a whängai of the deceased owner of land.[353] Where the Court determines that a person is to be recognised as whängai, it may then order that the whängai is entitled to succeed to any beneficial interest in any Mäori freehold land belonging to the estate, to the same extent as if the person was the child of the deceased owner.[354] Alternatively, the Court may order that the whängai is not entitled to succeed, or is entitled to succeed to a lesser extent than that person would otherwise be entitled to on the death of that person’s parents.[355] These provisions have effect notwithstanding section 19 of the Adoption Act.[356]
328 Te Puni Kokiri is currently undertaking a review of the Te Ture Whenua Mäori Act. A Bill is currently being prepared which may deal with whängai succession issues. The effect that this Bill will have on the present law is unclear. We consider that it would be advisable to await the results of the Te Puni Kokiri review before commenting further on whängai succession issues.
Mäori concerns about legal adoption
329 In December of 1995 and between May and June 1996 the Law Commission held hui around New Zealand. At these hui a concern was expressed about the way in which adoption impacts on Mäori family structures. Hui participants pointed out that the many concepts that underpin the Adoption Act are alien and constitute an affront to Mäori culture.[357] There was a general concern about the uncertain status of whängai.[358] The following aspects of adoption were singled out for particular criticism:
• Adopted children are treated as the children of the adopters for all legal purposes and cease to be the children of the birth parents once the adoption order is made.[359] The effect of section 16 of the Adoption Act was considered excessive by many Mäori attending the hui.
• Some Mäori consider that the Adoption Act is an imposition on customary law rules relating to lines of descent.[360] The risk that the child will lose its sense of identity was a matter of great concern.[361]
• Many of the participants were highly critical of the secrecy surrounding Päkehä adoption practices.[362]
• The Adoption Act was criticised for being inconsistent with customary law because of the lack of consultation involved in the adoption process.[363]
In spite of the criticisms, some participants at the hui argued that no law can break the links of blood in Mäori tradition, so although the Adoption Act distorts legal relationships, it does not necessarily do so in fact.[364] Furthermore, some saw adoption as a better means of ensuring that a child is provided for upon the parents’ death.[365]
330 Unlike Päkehä adoption, Mäori customary placements were not secret. The transfer of jurisdiction over Mäori adoptions to the Magistrates’ Court was viewed by some Mäori as representing a change in policy regarding adoption by extended family members. It had the effect of imposing Päkehä values upon Mäori. From a Mäori viewpoint this had a negative effect in a variety of ways.
331 An issue of prime importance in the adoption debate is the negative impact of the law upon whakapapa.[366] Mäori regard children as an integral part of the whanau, rather than as individuals divisible from the whanau.[367] When the child is adopted outside of the whanau, it may lose its cultural identity and sense of connection with its forebears and relatives.[368] This concern is magnified when a child is adopted by non-Mäori.
332 Certainty in relation to one’s identity is crucial to facilitating access to a range of opportunities and entitlement. Mäori who are not aware of their ethnic background cannot exercise the right to enrol on the Mäori electoral roll. Similarly, young persons who have no knowledge of their whakapapa find it difficult to access scholarships available for descendants of a particular iwi. Entitlement to Mäori land also depends on the ability to establish whakapapa links or a whängai placement. The secrecy surrounding adoption and the restrictions on access to information makes it difficult for a Mäori person to trace their whakapapa and access entitlements.
333 Päkehä society is often criticised by Mäori for valuing individual rights above communal rights. Many Mäori are critical of the lack of consultation and whanau participation in the adoption process. The process does not facilitate wider family consultation or involvement, either in relation to the decision to have a child adopted, or in relation to the placement of that child. Traditionally, parents alone did not have the right to decide whether and with whom a child should be placed; rather whanau, hapu and iwi played a role in the decision-making.[369]
334 Two claims before the Waitangi Tribunal argue that the Adoption Act and Guardianship Act constitute a breach of the Crown’s obligations to Mäori in terms of Article 2 of the Treaty of Waitangi.[370] The claims state that the Treaty guarantees Mäori full and exclusive control over their taonga (which is interpreted as including children). They claim that the paramountcy principle in family legislation is eurocentric, and fails to take into account the Mäori child’s place in the whanau and does not recognise that issues relating to the care of Mäori children should be resolved at a whanau level. This is not a view held by all Mäori and may not reflect reality for many urban Mäori. In addressing the weight to be accorded to various claims to rights, Professor Hirini Moko Mead indicated that Mäori values and children’s rights can be harmonised when he stated at an adoption conference[371]
Finally, the bottom line position is that the person, the child is the most important taonga to be considered. The question is asked – He aha te mea nui? Maku e ki atu, he tangata, he tangata, he tangata. What is the most important thing? I answer it is the child, the child, the person.
There is ample scope for Mäori values to be recognised, whilst ensuring that the welfare and best interests of the children prevail.
Other jurisdictions
335 Other jurisdictions provide a separate process or additional requirements for adoptions of children from indigenous groups.[372] Most stop short of granting tribes complete jurisdiction over children.[373] A number of states require that when an aboriginal child is placed for adoption there must be consultation with that child’s tribe or band in order to determine the most appropriate placement.[374] Others apply a child placement principle, where placement within the tribe or band is the first option to be considered, placement within the same culture is the next alternative, and placement with persons of another culture is a last resort.[375]
A more accommodating adoption regime
336 Much of the criticism levelled at the Adoption Act relates to lack of input into decision-making and the restrictions placed upon access to information. Some of the changes we have discussed throughout this paper may better accommodate other cultural practices and may assuage some of the concerns that have been expressed in relation to the mono-cultural nature of the present Adoption Act. Such general suggestions accommodate a range of cultural adoption practices, rather than attempting to prescribe a particular approach to adoptions for each culture.
337 Overseas legislation illustrates various ways to accommodate customary adoption practices. Most achieve this by stating that a consideration of the “best interests” of the child involves placing children within their extended family or at least with members of their own cultural/ethnic group.[376] If placement within a family from the same cultural group is not possible, the court should be satisfied that the prospective adopter(s) will help foster the child’s cultural and linguistic heritage, and facilitate contact with that child’s family.
338 Providing counselling throughout the adoption process and allowing family members to participate in decision-making in family group conferences might help to resolve some of the issues Mäori have raised about lack of consultation during the adoption decision-making process.[377] In some cases cultural norms might mean that a family group conference would be inappropriate, and such norms should be taken into account. For this reason it might be better to facilitate rather than mandate such conferences.
339 The present Adoption Act requires that a Mäori social worker (or a person nominated by the Mäori community) deal with applications by a Mäori person or couple to adopt a Mäori child.[378] It would be desirable to involve such persons in all cases involving a Mäori child and we suggest that this provision should be strengthened.
340 An open adoption plan could be attached to the adoption order to allow contact to be maintained between the child and the child’s birth family. In this way the child would retain its genealogical history (whakapapa) and would be aware of its cultural links.[379]
341 Iwi authorities could maintain a register of adoptions of Mäori children of their iwi. The database could include such information as the iwi thinks necessary to enable the child to establish its whakapapa and turangawaewae. Iwi specific guidelines would determine the basis upon which a person would have access to the information contained in the database.[380]
Would:
• the best interests principle;
• counselling and family group conferencing;
• Mäori social workers;
• open adoption plans; and
• iwi databases;
help to resolve the concerns raised by Mäori about adoption?
Should Mäori values be mentioned specifically in a new Adoption Act as they are in the CYP&F Act?
A parallel system
342 Mäori customary adoption was expressly extinguished by the Native Land Act and no longer forms part of the legal system. In spite of this (or perhaps as a result of this) there have been calls by some Mäori for legal recognition of “Mäori customary adoption”.[381] Little consideration has been given to how this might be achieved or what legal consequences Mäori would wish to flow from such recognition.
343 If a parallel system of adoption for Mäori were created, there would need to be a determination of the legal consequences of recognition of that status. Further work needs to be done to determine the consequences that should or would need to flow from any parallel system of adoption. Whatever system is devised, there must be legal certainty.
Should revival of legal recognition of Mäori customary adoption be considered?
If so, what would the legal effect of customary adoption be?
Should customary adoption be defined in accordance with former customary rules, or has it evolved since then?
Who would act as an arbiter to determine the existence of a customary adoption?
Who would determine, and by what criteria, whether a child should be dealt with according to customary law or the general law of the State?
How would jurisdictional debates be resolved where the parents of the child were from different cultural groups?
Which bodies would have overall responsibility for administering customary adoptions or resolving disputes?
344 Little written information is available about Pacific Islands adoption practices. Samoan culture has a form of adoption which appears to be similar to Mäori customary adoption practices, that is, the child is placed within the extended family and kinship links are maintained and strengthened. A considerable proportion of adoptions in New Zealand involve the adoption of a Western Samoan young person (up to the age of 20) by a New Zealand based relative.
345 Judge Mather recently considered an application to adopt a Tongan relative.[382] The judge investigated whether a legal adoption would be in accordance with Tongan custom. He observed that Tongans have a system of informal adoption where a child might go to live with a family member. However, he observed that:[383]
Despite such informal adoptions the children never lose their rights or entitlements or obligations in respect of birth families. The arrangements are voluntary and do not imply a breakdown in formal legal relationships between children and their parents.
Adoption and fostering are more of a continuum in Tongan culture, and birth parents are never “replaced”.[384] Judge Mather considered that guardianship was more consistent with Tongan culture than adoption.[385]
346 Tahiti has two main forms of customary adoption, tavai and faaamu (faaai).[386] Tavai is an agreement to adopt another person’s child and involves a change in the legal status of the child. Faaamu involves transferring a child to other persons for variable periods of time, but did not usually involve a transfer of property rights. One of the difficulties with faaamu adoption is that it has frequently led to disputes over succession rights. Faaamu adoptions almost always take place between family members and the child maintains contact with its birth parents. Adoption is used for a variety of reasons: to release a young mother from the obligation of caring for her child, to reinforce links between family members, to provide a source of labour, or to ensure that there will be a successor.
347 Social workers have indicated that Pacific Island peoples do not regularly resort to legal adoption as a means of ensuring the right to care for a child. When Pacific Island peoples do use the Adoption Act, they appear to do so to secure the legal benefits and consequences that flow from the status of adoption.
348 We are aware that the Asian population of New Zealand is increasing. We are interested to learn whether the Asian population has any concerns about the current adoption regime.
We are interested in receiving submissions about other cultural adoption practices, specifically from Pacific Islands and Asian groups.
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URL: http://www.nzlii.org/nz/other/nzlc/report/PP38/PP38-12.html