New Zealand Law Commission
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395 THE CURRENT LAW does not require prospective adoptive parents and the birth parents to undergo any counselling or assessment prior to the adoption of a child. Social Welfare offers information sessions, but there is no legal obligation to participate. Where counselling does occur, Social Welfare and the court both benefit from a pre-adoption report that assesses the suitability of adoptive parents in respect of age, education, attitudes to adoption, and physical, mental and emotional health so far as it impacts on ability to nurture the child, as well as any other relevant considerations.
396 New Zealand is a signatory to the UNCROC. Article 21 requires State Parties to ensure that “the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary”. It may be desirable to enact a requirement that a birth mother undergo counselling before the legal process of adoption is commenced, in order to explore fully all the available options and ensure that the birth mother understands the consequences of her decision. We might wish to consider whether counselling should be provided for the adoptee, where the child is sufficiently mature.
397 An important question is whether counselling prior to adoption should be mandatory or optional. If it were mandatory then all prospective adopters would have to explore issues relating to the way in which they contemplate caring for the child and the effect that adopting may have on their lives. It could also help provide a framework for dialogue between the birth parent(s), adoptive parent(s) and child. Pre-adoption counselling could reap other benefits such as obtaining health information about the birth parents for the future benefit of the child.
398 The CYP&F Adoption Placements Manual cautions social workers that birth parents, particularly the birth mother, will need support for some time after the relinquishment of the child. Such support may not be sought immediately.
399 Birth mothers also have special needs that may require counselling after the adoption has proceeded. A recent New Zealand study reveals that few support services were available to birth mothers in the era of closed adoption. When treatment was sought, the symptoms were treated but for many the underlying causes were not identified. During the period when closed adoption was practised, birth mothers in the following years experienced depression, addiction, grief, relationship difficulties and subsequent parenting problems that they believed could be linked back to their experience of adoption. Ann Weaver’s study of birth mothers indicates that birth mothers who relinquished children during the era of closed adoption are more likely to be clients of mental health, relationship, and addiction services.
400 Although the number of closed adoptions has declined over the last 15 years, adoption remains a profoundly distressing event for many birth mothers. Early intervention is a key means by which birth mothers can access counselling to help them deal with issues relating to the relinquishment of their child. Weaver has stated that counselling services should not be regarded as an extra cost for the State. Rather, provision of such services should be viewed as a means of avoiding the need for more resource intensive services at a later stage. We should consider providing continuing counselling for birth mothers and others involved in the adoption process.
401 At present Social Welfare provides information sessions for all persons involved in the adoption process. Some community-based organisations such as Barnados and private counsellors also provide adoption counselling services.
Should pre-adoption counselling and information sessions be mandatory or optional for adoptive and birth parents?
Should counselling also be available to children and young persons who are to be adopted?
Should counselling be available to adoptees?
Should post-adoptive counselling be provided?
To whom would this be available?
Which organisations would provide the counselling?
Should the State bear the cost of such counselling?
402 It has been suggested that the family group conference process established by the CYP&F Act could be a useful adjunct to the adoption process, and might provide a forum for discussion and decision-making between the birth parent(s), wider family members and adoptive parents. It would be particularly useful where the birth parents have decided to have the child adopted or placed in the care of family members or friends. If the birth parents sought to create an adoption plan, the family group conference might provide a constructive forum within which to negotiate such matters.
403 These conferences could be authorised at the court’s discretion. In some cases it might not be appropriate to use a family group conference, particularly where the family is dysfunctional. This process might impose extra pressure on a young woman making the decision whether to adopt. Where the pregnancy is a consequence of rape it would plainly be inappropriate to involve the father of the child. It might also be inappropriate to mandate a family group conference in the face of the opposition of a birth parent.
404 Whether the process is labelled a family group conference is also an important point to consider. Family group conferences conducted under the CYP&F Act have decision-making powers. This might not be appropriate in the context of adoption, as in general the decision to adopt a child is a decision for the birth parents to make. The structure would, however, suit the making of agreements regarding future contact between the birth and adoptive families.
405 An alternative option would be to provide for family meetings and counselling (where appropriate) before decisions are made about adoption, and convene a family group conference between the birth and adoptive families after the decision to adopt is made in order to resolve any issues of contact.
Should a procedure akin to a family group conference be available during the adoption process?
If so, what form should it take, and who should be entitled to be present?
Should a family group conference be available at any stage of the process or only once the birth parent(s) has made the decision to adopt?
Should family meetings and counselling be available prior to the adoption decision?
406 When considering an adoption application, the Family Court must be able to inform itself. Although section 25 of the Adoption Act allows the Court to receive such evidence as it sees fit, it does not allow the Court to request that reports be commissioned.
407 The CYP&F Act and the Guardianship Act allow the Family Court (or Youth Court) to call evidence and commission reports from doctors, psychologists and social workers to help assess the physical and psychological wellbeing of the child. At times the expense of these reports is absorbed by the court, but often the parties will be asked to make a contribution towards the cost of the report. It might be desirable that the same tools be extended to proposed adoption legislation.
Should the court be able to call for reports, where necessary?
408 Section 159 of the CYP&F Act and section 30 of the Guardianship Act gives the court the ability, if they consider it desirable, to appoint counsel for the child. This gives the child an advocate who can independently assess and represent to the court the best interests of the child. Counsel for the child is paid out of public money appropriated by Parliament for this purpose, although the court may order the parties to the proceedings to make a contribution to the costs of counsel for the child.
409 To ensure that children’s interests are represented in proceedings it may be desirable to give the Family Court the power to appoint counsel for the child in adoption proceedings.
Should the court have the ability to appoint counsel for the child in an adoption application?
410 The terms of reference require us to consider whether there should be a right of review for those persons refused permission to adopt. At present there is no formal right of review for applicants to whom Social Welfare refuses to assess as suitable to enter the pool of prospective adoptive parents.
411 An ad hoc mechanism for review currently operates within Social Welfare. The AISU has a policy of telling applicants the reason for the refusal of permission to adopt. Some complaints are resolved once the applicants have been told the reason why permission was refused. A small proportion of applicants proceed to the complaints procedure whereby a panel is convened to review the decision-making process that led to the refusal. The panel comprises persons from within Social Welfare and from elsewhere. The actual result is not reviewed, just the process that led to the decision. Social Welfare processes approximately three or four formal complaints each year relating to permission to adopt.
412 Applicants have the right to apply to the court for a judicial review of Social Welfare’s decision, but this can be prohibitively expensive. Judicial review does not evaluate the merits of the applicant’s case.
413 Applicants may also request the Ombudsman to investigate the refusal. As a result of a complaint the Ombudsman may recommend to Social Welfare that:
• the matter be referred to the appropriate authority for further consideration; or
• an omission be rectified; 427 or
• a decision be cancelled or varied; 428 or
• any practice upon which the decision was based should be altered; 429 or
• reasons for the decision be given; or
• any other steps should be taken.
414 Although the Ombudsman’s recommendations are not binding, government agencies are loath to ignore them. The advantage of this process is that it already exists, the process is confidential and is not costly. Applicants could be advised of their right to apply to the Ombudsman in the event of an unfavourable decision from the AISU. The disadvantage is that the staff at the Ombudsman’s office are not necessarily specialised in dealing with such matters.
Should applicants who are rejected as prospective adopters be informed of their right to lodge an application for review with the Ombudsman?
415 We seek submissions on whether the current mechanisms for review are adequate.
416 An alternative option would be to create a formal review mechanism. The usual practice in the public sector is to provide an internal review panel and a right of review by an external arbiter. An external review board could be established, with members drawn from Social Welfare, specialists in the legal profession and a person from a relevant community group. This would have the appearance of being more independent, but has the disadvantage of potentially being more costly. Because of the low numbers of complaints filed annually, it would meet infrequently and consequently may not be able to form a comprehensive overview of the issues involved.
417 Alternatively, the Family Court might be given jurisdiction to review cases where persons were rejected as candidates for the AISU list of potential adopters. This proposal has several advantages. The Family Court is well established and has satellite courts in most parts of the country. The Judges specialise in family law and are independent of Social Welfare.
Should there be a statutory right to external review for those applicants who are rejected as prospective adoptive parents?
Who should review the decision?
Where should the costs lie?