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1 THE MINISTER OF JUSTICE’S TERMS OF REFERENCE[1] require the Law Commission to examine 45 years after the Adoption Act 1955 (the ‘Adoption Act’) what changes to that institution are desirable in today’s conditions. The primary focus of our inquiry is upon the welfare and interests of children.
2 Since 1955 changes in social conditions and public attitudes have had a marked effect upon the institution of adoption. They include:
• the Status of Children Act 1969 (the ‘Status of Children Act’), which removed the legal concept of ‘illegitimacy’;
• the Adult Adoption Information Act 1985 (the ‘Adult Adoption Information Act’), which has facilitated the open exchange of information between adopted persons and birth parents; and
• the increasing practice of open (as opposed to closed) adoption.
3 It is perhaps ambitious to expect ‘social’ legislation to have a life of more than 15–20 years in view of the way societal needs, expectations and values can change so rapidly from one generation to the next. This has certainly been the experience with adoption legislation. Changing social needs and expectations have prompted several reviews of the Adoption Act, the first of which was conducted in 1979.[2] Other such reviews occurred in 1987[3] and 19904 and 1993.[5] None of these reviews have led to legislative reform. The result is that adoptions must be conducted in accordance with law that was drafted some 45 years ago and which may not adequately represent contemporary social needs and values.
4 The Law Commission, in its role of reviewing the law of New Zealand and advising the Minister of Justice on ways in which the law can be made as understandable and accessible as is practicable, welcomes the opportunity to address the adequacy of the current adoption legislation. The purpose of this paper is to offer for criticism and comment some tentative proposals for reform.
5 The precise purpose and effect of ‘adoption’ varies depending upon the context, society and era in respect of which it is discussed. An early purpose of adoption was to create legal heirs; in more recent times adoption has been used to secure the permanent placement of a child in a family. The reasons for adoption, its legal form, and consequences, have varied throughout history.[6]
6 There are regional and cultural variances in adoption law and practice. The consequences that attach to adoption orders may also vary between jurisdictions. Different states have different preconditions for an application for an adoption order.
7 Cultural practices may focus upon transferring the care of a child, often, but not always, to cement family or tribal relationships.[7] The consequences of such practice, sometimes called adoption, may be quite different from those articulated by the law. In New Zealand a prime example is the Mäori practice of ‘whängai’ placement, which varies substantially from the legal regime of adoption.[8]
8 Adoption in twentieth century New Zealand is a legal order which places a child permanently in the care of an adoptive parent(s). The United Kingdom Houghton Report[9] on the adoption of children observed that adoption:[10]
[E]nables the child to achieve permanent security in a substitute home with a couple fully committed to fulfilling parental responsibilities. The child is the focal point in adoption; providing homes for children who need them is its primary purpose.
9 New Zealand society today is quite different from that in the 1950s. Adoption law and practice have had to cope with modern challenges that legislators in 1955 would have been hard-pressed to predict. The traditional ideals of the ‘nuclear’ family and ‘legitimate’ children have been challenged by de facto relationships, same-sex relationships, reconstituted families after relationship breakdowns, ‘single’ parenthood and the rapid development of artificial reproductive technologies (ART).[11] New legislation must be responsive to the needs of citizens.
10 The basis of Western European society is the reproduction and upbringing of children by their parents. For many Mäori and other cultural groups there is a greater emphasis on the broader family.
11 Though for many people the Western European paradigm of a family comprising husband, wife and children within the wider family group remains the ideal, in the years since the enactment of the Adoption Act society has become more tolerant of alternative formulations of the family. For many people marriage is not seen as a condition of responsible child-rearing. De facto and single families now account for a significant proportion of families in New Zealand. The 1996 Census revealed that 62.75 percent of families with children are headed by a married couple, 28.29 percent are headed by a single parent, 8.17 percent are headed by a de facto opposite-sex couple and 0.06 percent are headed by a same-sex couple.[12]
12 Society recognises the right of de facto couples[13] and gay parents[14] to raise their own children. It is unusual that only married couples or single persons are permitted to adopt a child. The Adoption Act reflects the Western European paradigm of family, and does not recognise alternative formulations of the family. Adoption legislation must address differing concepts of family and parenting.
13 The Adoption Act was based upon an assumption that the best way to conduct an adoption was in secret. The birth mother could then forget the ordeal and get on with her life, the new adoptive family unit could develop like any other family unit, and an illegitimate child was legitimised. This was a new notion in adoption practice; traditionally adoptions did not involve secrecy. Indeed, the English Tomlin Committee which reported on adoption in 1925 observed:[15]
This notion of secrecy has its origin partly in a fear (which a legalised system of adoption should go far to dispel) that the natural parents will seek to interfere with the adopter and partly in the belief that if the eyes can be closed to the facts the facts themselves will cease to exist so that it will be an advantage to an illegitimate child who has been adopted if in fact his origin cannot be traced. Apart from the question whether it is desirable or even admissible deliberately to obscure the traces of a child’s origin . . . we think that this system of secrecy would be wholly unnecessary and objectionable in connection with a legalised system of adoption.
14 The advantages and disadvantages of a system of ‘closed’ adoption and ‘open’ adoption with varying degrees of contact have been assessed in great depth over the last 20 years.
15 Longitudinal research into the experiences of closed stranger adoption has indicated that the expectations of the 1955 Parliamentarians have not always been fulfilled. Birth mothers do not just ‘forget’ about the child and carry on with life; rather, it has been shown that they go through a complex grieving process, similar to that undergone when a child dies. However, when secrecy shrouds the adoption, the natural grieving process that the birth mother goes through is not acknowledged by society.[16]
16 Some adoptees report problems in establishing a sense of ‘identity’. Simple things like common interests, common thinking patterns, common behavioural and personality characteristics and common physical attributes may be lacking in an adoptive environment. Most people gain background knowledge of one’s family as a part of normal development, yet an adopted person will never experience that in an environment of secrecy.[17] Problems of identity do not always occur, however, and many adoptees of this era have no desire to trace their biological family origins.
17 Over the last two decades, social workers have facilitated the practice of open, rather than closed adoption. Open adoption involves varying degrees of contact between the child, members of its adoptive family and members of its birth family. Contact may involve communication by mail at periodic intervals, or regular visits. The degree and regularity of contact is decided upon by the parties involved. Although the statute presumes secrecy, it does not prohibit communication and contact between the parties. Participants in such adoptions for the most part are positive about the benefits contact can confer.
18 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, and their questioning the suitability of applicants for adoption if they do not wish to be involved in an open adoption. Throughout this period birth parents have become more involved in selecting adoptive parents for their child. Birth parents who wish to have some form of future contact with their child will be inclined to choose adoptive parents who are amenable to this arrangement.
19 During this period research has been conducted into the consequences of open adoption. 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. Adoptees are better able to establish a sense of self, come to terms with feelings of ‘abandonment’, and feel secure in their adoptive family environment.[18] The experience of adoptive parents has been that although they may be initially apprehensive, contact can improve their relationship with the child. Evidence suggests that adoptive children are more able to develop a successful attachment to their adoptive parents when there is contact with birth parents.[19]
20 Previous reviews of adoption have recommended that open adoption be facilitated by new legislation.[20] At this stage of the review we do not wish to take a formal position, but prefer to invite public submissions on the consequences of open and closed adoption and views as to which is the better practice.
21 New Zealand is a multicultural society – in the 1996 Census 15.1 percent of our population identified as Mäori, 5 percent as of Pacific Island origin, and 4.6 percent as Asian. New Zealand Europeans comprised 69 percent of our population.[21] Adoption legislation must take into account all of the ethnic groups in New Zealand. New Zealand Mäori, as a partner to the Treaty of Waitangi, have a special place in New Zealand society. The terms of reference ask us to consider whether special recognition should be given to Mäori customary adoptions or any other cultural adoption practices.[22]
22 Adoption of New Zealand born children has become increasingly less common. In 1955 there were 1455 total adoptions, of which 984 were ‘stranger’ adoptions. In 1998 only 645 adoptions were processed by the Adoption Information Services Unit (the ‘AISU’) of Social Welfare, and of these only 125 were traditional ‘stranger’ adoptions.[23] In contrast, there is a growing number of adoptions by New Zealanders of children from other countries. This may be influenced by other countries applying less rigid criteria to adopting parents, or by the desire to obtain the advantages of New Zealand citizenship for relatives born in less affluent states. In 1998, 102 intercountry adoptions were made under New Zealand legislation, up from 70 in 1997.
23 New reproductive technologies also present challenges to the current adoption regime. The availability of in-vitro fertilisation and intra-fallopian gamete transfer has reduced the demand for adoption in some cases. Medically assisted surrogacy arrangements, however, present a unique situation that could not have been envisaged by lawmakers in 1955. A woman who agrees to carry a child (whether biologically her own or not) for another person or persons (commissioning parent(s)) is legally the mother of the child. In order for the commissioning parent(s) to become legal parents they must legally adopt the child. The law does not give any direction as to what rules or guidelines should apply in such instances. Any new legislation must address the challenges that these arrangements present.
24 The legal effect of adoption is to sever the legal ties between one or both of the birth parents[24] and the child, and establish substitute legal relations between the child and the adoptive parents. The change in legal relations does not alter the historical and genetic facts, but may give adoptive parents a greater sense of emotional security in relation to their newly formed family.[25]
25 In 1955 elaborate attempts were made to suppress such history. In an era when illegitimacy had significant legal and social consequences, such policy was intelligible. The former has since been removed by the Status of Children Act, the latter is now seen very differently.
26 The first question is whether in today’s conditions adoption in some form continues to serve a valuable purpose. If it does serve a purpose, what is that purpose and how can it best be achieved? It is desirable to begin by placing the current institution of adoption within its wider context.
27 The Commission’s enquiries suggest that adoptions occur to achieve, among others, the following results:
• to provide new legal parents for a child whose birth parents are unwilling or unable to care for the child;
• to substitute relations as between child and parents for a legal relationship with other members of the extended family;
• to recognise the advent of a step-parent;
• to regularise the status of a child born through surrogacy arrangements.
These purposes may, in various ways and to various degrees, be met by other means.
28 The essence of adoption is its permanency; adoption confers the status of parenthood which extends beyond the child reaching the age of majority. Adoption carries with it a clear change of status that has consequences in terms of:
• the legal responsibilities of the parents in respect of the child;
• succession;
• citizenship;
• status.
29 At present the law providing for the welfare of children comprises, in addition to adoption law:[26]
• the Children, Young Persons, and Their Families Act (the ‘CYP&F Act’);
• the Guardianship Act 1968 (the ‘Guardianship Act’);
• the parens patriae jurisdiction of the High Court.
There is some inconsistency in policy among the statutes. The expression of whether the welfare and interests of the child shall be paramount, and the role of the wider family, differs in each.
30 There is a need to consider the nature of “welfare and interests of the child”, what legal rights should attach to that expression and what interests of the mother, the father and the wider family should receive recognition.
31 The common law treats the interests of the mother as paramount to the extent that they may conflict with the interests of an unborn child.[27] After birth the law immediately confers upon the new baby legal rights.[28] The interests of a child in the security of good parenting normally coincides with maternal, and usually paternal, love for the child. No issue of inconsistent legal rights exists. At the other extreme where parents abandon, neglect, persistently fail to maintain or persistently ill treat a child the Family Court and District Court have jurisdiction to dispense with consent to adoption.
32 Adoption involves the careful consideration of all of these interests, but should keep at the centre of the process the interests of the child. Throughout this paper we give consideration to how the interests of all parties might best be protected at all stages of the adoption process.
33 The United Nations has articulated the social and legal needs of children in order that principles for the protection of children can be applied internationally. The United Nations Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (the ‘UN Declaration on Child Placement’)[29] sets out the principles that should apply to the placement of children.[30] Generally it includes the principle that the child’s interests should be the paramount consideration,[31] that where possible a child should be cared for within its extended family,[32] and that the child’s need to know about family background should be recognised unless this is contrary to the child’s best interests.[33] It states that the purpose of adoption is to provide a permanent family for a child whose birth parents cannot care for the child.[34]
34 New Zealand signed and ratified the United Nations Convention on the Rights of the Child (‘UNCROC’)[35] on 13 March 1993. UNCROC affirms that when a state permits a system of adoption, the interests of the child shall be the paramount consideration. States shall ensure that the adoption is authorised by competent authorities. State parties must ensure that persons giving consent to an adoption give informed consent, with the assistance of such counselling as may be necessary.[36]
35 By becoming a signatory to and ratifying UNCROC, New Zealand has committed itself to implement UNCROC’s principles in our domestic legislation. The UN Declaration on Child Placement has a less formal status. Declarations are not legally binding instruments; however, they do have moral force, particularly so where, as in the case of the Declaration on Child Placement, New Zealand participated in the drafting process.
36 Adoption differs from guardianship in four respects:[37]
• an adoption order is not easily revoked and so can be regarded as more permanent than guardianship;
• an adoption order confers the permanent status of parenthood upon adoptive parents;
• succession rights flow from an adoption order;[38]
• child support obligations automatically flow from the status of parenthood; conversely child support liability in respect of the birth parents ceases upon the making of the adoption.
37 In paragraph 22 we noted that adoption as an institution is becoming less common in contemporary society. It is necessary to consider whether it is in the interests of society to retain adoption.
38 Two alternative options present themselves. First, Parliament could retain adoption but modify the legislation so that it reflects contemporary adoption practice; or secondly, it might abolish the legal concept of adoption and replace it with a modified version of guardianship, for example a Care of Children Act that would provide a means of recognising and conferring the status of legal parenthood, whilst also encompassing custody and access issues.
39 Caldwell has observed that the Adoption Act has been described as:[39]
an anachronistic, adult-centred piece of legislation that fails to reflect child-focused values otherwise embedded in the modern family law framework.
Despite this criticism however, it can be powerfully argued that adoption maintains an important place in our society. Adoption is a process that is familiar to society. Inasmuch as it promotes the welfare and security of children, provides a permanent family unit that would not otherwise be available, and allows adoptive parents security in their parenting of a child, adoption has much to offer.
40 We should consider the appropriateness of the current adoption regime in its dealing with contemporary social issues such as surrogacy, de facto and same-sex relationships, the growing cultural diversity in New Zealand, the increasing practice of ‘open adoption’, and the use of adoption to ‘cement’ reconstituted families. Many of the original provisions of the Adoption Act should be reconsidered in light of society’s increased understanding of issues relating to pregnancy and childbirth, and the importance of genetic identity. Although previous reviews of adoption legislation have considered such issues,[40] the law has not been amended in response.
41 In chapters 5 to 15 of this paper we examine most aspects of adoption legislation and consider how it might be reformed to better address the needs of contemporary society.
42 We should also consider whether contemporary developments might mean that adoption is outmoded and should be abolished in favour of a modified form of guardianship. Caldwell in 1994 observed the existence of an “ideology in favour of abolishing adoption, adhered to in some influential Department of Social Welfare quarters”.[41] There has been a swing in favour of guardianship which can, in some cases, provide some of the advantages of adoption without creating the legal fictions consequent upon adoption. It is common practice today for the courts when confronted with a step-parent adoption or an intra-family adoption to suggest that guardianship would be a better alternative.[42] Given that the majority of adoptions today involve step-parents and relatives, it is necessary to question the role of adoption in contemporary society.[43]
43 There are important distinctions between guardianship and adoption that mean that guardianship in its present form could not be substituted for adoption in every case. Issues of permanency, status and succession will always intervene.[44] The following paragraphs describe the conferment on the Family Court of a flexible jurisdiction to treat guardianship and adoption as different points on a single continuum of consequences attaching to a ‘care of children’ order.
44 At the least intrusive end of the spectrum of guardianship is testamentary guardianship, followed by the ability of the court to appoint additional guardians, either generally or for specific purposes. Natural guardianship would remain the same.
45 The other end would be a new concept of ‘legal parenthood’. This would create ‘legal parents’ and confer upon them all parental rights and responsibilities. ‘Legal parenthood’ would carry with it rights of succession. The status of legal parenthood would not terminate upon the marriage or twentieth birthday of the child.
46 An order establishing a permanent arrangement could provide for complete openness from the beginning. An order appointing ‘legal parents’ would not conceal the existence of the birth parents but simply relieve them of such rights that normally flow from parental responsibility as the court sees fit. The court could determine what specific legal consequences should flow from the order – for example, in some instances it might be considered appropriate that the child have succession rights in respect of both sets of parents.
47 The advantage of a continuum of options is that the court could select the approach that would best suit the needs of the individuals involved, rather than imposing the ‘all or nothing’ status that constitutes adoption today.
48 At this preliminary stage of the process, we are wary of acting with haste and responding to perceived difficulties with a solution that is too flexible a response to the problem of excessive rigidity. Adoption has worked well for many people. A view that many hold is that the current system has virtues of permanence and security that are essential to provide a stable and secure future for the child. Amendments can be made to bring the law into line with contemporary social needs and perspectives.
49 But we are acutely conscious of the opposing opinion – that the severing in law of blood ties is never justifiable. The members of the Law Commission’s Mäori Committee are firmly of this view. Their opinion may reflect the Mäori practice of family rather than stranger adoption. We are anxious to seek public comment on this fundamental issue.
Should the institution of adoption be retained?
Do the needs of contemporary society require amendment of the current law?
If so, what system should be adopted?
For example, could a new, more flexible system of ‘care of children’ be created?
50 Our terms of reference[45] direct us to review the legal framework for adoption, and more specifically to consider 15 defined issues that stretch across all stages of the adoption process – from the commencement of an application to adopt a child, to the parties’ entitlement to discover adoption information after the adoption order is made. We have approached this sometimes daunting task by first considering the interests of all of the participants in an adoption and asking how the process might best meet their needs. We then consider the interests of the wider community in adoption and ask whether adoption is necessarily the best way to fulfil the community interest.
51 We then address in specific detail each element of adoption law. We ask first whether there should be an expression of the principles upon which adoption in New Zealand is based. We then discuss the jurisdiction of the court over adoptions, the recognition in New Zealand of adoptions made overseas and the conferment of citizenship upon children adopted by New Zealand citizens. We consider who should be able to be adopted, which involves consideration of the purpose of adoption itself. We then discuss who should be entitled to adopt, which necessitates consideration of how adoption law should apply to non-traditional concepts of family. Consent is discussed next in considerable detail – this is an area where the current adoption law has been perceived not to serve the interests of all the parties.
52 The next chapter then turns to the adoption order itself. We ask whether the current process is necessary, and consider the possibility of attaching conditions to the adoption order so that those involved can formally record an agreement as to future contact. The grounds upon which an adoption order may be discharged are also considered here.
53 We then move on to issues that are consequent upon an adoption order. We consider the succession rights of adopted persons, and again, ask whether the current legislation is working. Following this, there is a chapter exploring how adoptive relationships should be treated for the purposes of the crime of incest and the prohibited degrees of marriage.
54 The final few chapters address overarching issues that are no less important but do not fit neatly within the parameters of the current adoption process. We felt that it was necessary to consider the way in which adoption works before discussing matters of more general importance. Chapter 12 considers the extent to which cultural adoption practices, including Mäori customary adoption, are, and should be, recognised in adoption legislation. The following chapter considers how surrogacy arrangements fit within the framework of adoption, and the extent to which they should.
55 We have allocated a chapter to consideration of the ancillary services that could be attached to the adoption process. Counselling, general powers of inquiry and independent counsel for the child are already an integral part of many proceedings of the Family Court – for example, custody and access disputes, and dissolution of marriage. We ask whether it might assist the participants to provide these services for adoption.
56 The final chapter discusses access to adoption information and asks how access should be governed and whether the current procedures are appropriate.
57 For those unfamiliar with the legal framework of adoption, and the legal concepts of guardianship (defined in the Guardianship Act), care and protection (established by the CYP&F Act) and wardship, Appendix B provides a basic explanation.
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