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116 WE HAVE DESCRIBED the change in attitudes towards adoption and unmarried motherhood. The Adoption Act is a product of attitudes that are now less prevalent in contemporary New Zealand. Adoption practices have changed so considerably over the past 45 years that it is time to review the legislation. This section identifies some of the principles that might be reflected in any new legislation.
117 The Adoption Act does not contain a statement of purpose or guiding principles. By contrast, the long title of the CYP&F Act states that it is:
An Act to reform the law relating to children and young persons who are in need of care and protection or who offend against the law and, in particular–
(a) To advance the wellbeing of families and the wellbeing of children and young persons as members of families, whanau, hapu, iwi and family groups;
(b) To make provision for families, whanau, hapu, iwi and family groups to receive assistance in caring for their children and young persons.
118 The long title, or statement of purpose, can be a useful interpretation tool when there is ambiguity in a statutory provision. The Law Commission has commented that “purpose provisions [that is, long titles] help users of legislation to understand the particular Act or part of an Act to which the provisions relate”.[122]
119 Section 11 of the Adoption Act does set out certain restrictions upon making adoption orders, including that the welfare and best interests of the child be promoted. This is not, however, expressed to apply throughout the whole adoption process; for example, it is not stipulated that the best interests of the child must be taken into account when a court considers whether to dispense with the consent of a birth parent. More principled legislation would provide a focused set of guiding principles similar to those contained in the long title of the CYP&F Act. Such principles would be taken into account by social workers and the court at each step of the adoption process, for example when the court decides whether to make an adoption order or whether it is appropriate to attach conditions to an adoption order.[123]
Should a new Adoption Act contain guiding principles?
120 The following paragraphs invite discussion as to what principles might or should be included in a statement of purpose.
121 While in early times succession was a motivation for adoption, this has been more a consequence of, than a reason for, adoption in common law systems.[124]
. . . [E]nglish law differs sharply from civil law systems which inherited the Roman concepts of adoptio and adrogatio in that its primary goal is and always has been to provide a new permanent, secure and loving home for the child and not to govern succession rights.
122 Article 13 of the UN Declaration on Child Placement states that “the primary aim of adoption is to provide the child who cannot be cared for by his or her own parents with a permanent family”. Adoption practices over the past 20 years have shifted from providing infertile couples with children to an approach that seeks to determine whether adoption is the best option for the child and who might be an appropriate family to care for that child. The purpose of adoption in contemporary New Zealand society is to provide a child with a secure and permanent[125] family life.
Should new legislation state the purpose of adoption?
Would an appropriate formulation be that the purpose of adoption is to provide a secure and permanent family life?
123 Adoption is one of several ways in which permanent care can be provided for a child. Child welfare legislation as a whole should encourage parties to consider all the possible forms of care that might be appropriate for the child. Adoption need not be presumed to be the first or only option. The State should first look at ways of supporting the child in its existing family.[126] Guardianship orders may be appropriate where other family members wish to care for the child. Guardianship has the advantage of not displacing legal relationships between family members. Only where care within the family unit is not feasible should adoption be considered. To this end, it may be appropriate that adoption legislation places social workers and the court under a duty to consider the alternatives to adoption before an adoption proceeds.
Should alternatives to adoption be canvassed before decisions regarding adoption are made?
124 Section 6 of the CYP&F Act asserts the principle that the welfare and interests of the child are the first and paramount consideration in administering or applying the provisions of the Act. This ‘paramountcy principle’ was enacted to bring New Zealand’s child welfare legislation in line with its obligations as a signatory to and ratifier of the UNCROC,[127] although the principle had been developed and applied by the judiciary for many years.[128]
125 Section 11(b) of the Adoption Act requires that the
welfare and interests of the child will be promoted by the adoption, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child.
Whether this means that the welfare and interests of the child are the paramount consideration in the making of an adoption order has been the subject of some judicial debate.[129] The issue has been discussed by the Court of Appeal in an application to dispense with the consent to adoption of a birth parent. To the extent that adoption will terminate the guardianship rights of an existing parent, the Court imported the paramountcy principle expressed in section 23 of the Guardianship Act:[130]
Inasmuch as the first and paramount consideration in guardianship and custody cases is the welfare of the child, it is not to be expected that a lesser emphasis on the welfare of the child would justify the termination of guardianship on the making of an adoption order.
126 As an expression of the high value to be attached to the welfare and interests of the child, the paramountcy principle is valuable. But the expression is of a value, not of a legal right to be given effect without regard to other considerations. It does not derogate from the legal protections conferred upon other parties to an adoption.
127 One important protection conferred upon the parent of a child is that a parent’s consent may not be dispensed with by the court unless it is satisfied that the parent has[131]
abandoned, neglected, persistently failed to maintain, or persistently ill-treated the child, or failed to exercise the normal duty and care of parenthood in respect of the child;
or[132]
that the parent or guardian is unfit, by reason of any physical or mental incapacity, to have the care and control of that child; that the unfitness is likely to continue indefinitely;
and the parent has been given reasonable notice of the application.[133]
128 To this extent the term ‘paramount’ may be a misnomer. Thought should be given to an alternative way to express the importance of the child’s welfare and interests in adoption. One method might be to replace ‘paramount consideration’ with ‘principal consideration’, which allows a recognition that the child’s interests may not be the only interests.
129 We seek submissions on whether adoption legislation should set out the paramountcy principle, or whether another expression might be used that more accurately identifies the position of the interests of the child.
Should the paramountcy principle be set out in a new Adoption Act?
If not, should a new expression be used that recognises other interests are also protected?
What should that expression be?
130 New legislation could include guidelines by which the Family Court can assess the welfare and best interests of the child. A determination of such factors is often made by Family Court judges at their discretion, but is not provided for in the current legislation. It may be desirable to formalise this practice. Any such list of guidelines would not be exhaustive. Factors to be considered could include:
• the physical and emotional needs of the child;
• the importance of having a secure place as a member of a family;
• the quality of the child’s relationship with a birth parent or other members of the child’s extended family and the effect of maintaining or severing that relationship;
• the preservation of the cultural, linguistic and religious heritage of the child; and
• the quality of the potential relationship of the child with the proposed adoptive parents;
• the character and attitudes of the proposed adoptive parents.
Should there be statutory guidelines to take into consideration in the determination of the welfare and best interests of the child?
If so, what guidelines?
131 The 1955 legislation treats the making of an adoption order as an ‘event’ – it does not recognise that an adoption has lifelong implications. It does not acknowledge the needs of the birth parents to express grief for their loss, 134 nor does it recognise the issues of identity and rejection that an adoptive child may experience.[135] The 1955 legislation also fails to recognise that adoptive families face challenges that do not arise in the context of biological families. Past adoption theory has been criticised for its[136]
failure to take full account of the fact that adoption is both for the present and for the future, so that decisions taken in the light of present knowledge and understanding require the flexibility to accommodate changing future circumstances.
132 Although the needs of all parties involved in adoption should be identified at the outset, legislation should also recognise that the psychological needs of the parties may continue to change. The process must meet the parties’ changing requirements at various stages. A new Act should recognise that the psychological, social and emotional effects of an adoption may be felt long after an order is made. We might give consideration to whether services should be provided to all those directly involved in the adoption process on a longer term basis.[137]
Should there be recognition in the principles of the legislation that adoption has long-term consequences?
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URL: http://www.nzlii.org/nz/other/nzlc/report/PP38/PP38-4_.html