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133 SECTION 3(1) OF THE ADOPTION ACT provides that a court may make
an adoption order on the application of any person, whether domiciled in New Zealand or not, in respect of any child, whether domiciled in New Zealand or not. The effect of section 3 is that the parties need neither be resident, nor intend to be resident in New Zealand, for an adoption order to be made under New Zealand legislation by a New Zealand court.
134 Campbell argued in 1957 that:[138]
[S]ome connection with New Zealand is essential. Parliament has the power to legislate for the peace, order and good government of New Zealand, and the Act must be interpreted in the light of the legislative competence of Parliament. The Adoption Act should not be construed as empowering the Court to make an adoption order where persons resident and domiciled abroad come to New Zealand solely for the purpose of obtaining an order of adoption in New Zealand. Nor should it be considered that there is an appropriate connection with New Zealand if the sole connecting factor is the New Zealand citizenship of any of the parties.
135 In terms of jurisdiction, section 3 would allow New Zealand to be used as a ‘clearing house’ for adoptions. This could be seen as undesirable: if persons are unable to adopt in their own country, should New Zealand provide an easy alternative? The United Kingdom, by contrast, imposes a residency requirement on applicants for adoption.[139]
136 However, there is no evidence that this provision has been misused. For this reason our preliminary view is that it is unnecessary to impose limitations on the jurisdiction of the Family Court. Perhaps the Court should entertain an ultimate discretion to allow non-citizens or non-residents to adopt a child in New Zealand, and exercise it if it sees fit. Factors to consider might include whether there is some material connection to New Zealand.
Should section 3 remain unencumbered by residency requirements?
Should a list of factors to consider be provided?
If so, what factors?
137 Section 3 of the Adoption Act allows children who are not domiciled in New Zealand to be adopted under New Zealand legislation. This provision was not amended when the Adoption (Intercountry) Act 1997 (the ‘Adoption (Intercountry) Act’) was enacted and would appear to allow adoptions to occur without benefit of the safeguards provided by the Adoption (Intercountry) Act and the Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption (the ‘Hague Convention’). This should be clarified, as section 3 could potentially be interpreted so as to render the provisions of the Adoption (Intercountry) Act a dead letter.
138 None of the following comments are intended to apply to adoption orders made in another state in favour of applicants who are citizens (or residents) of another state. If a family comes to New Zealand and one or more of their children have been adopted according to the laws of another state and those laws are sufficient to satisfy the requirements of section 17, then that adoption is recognised in New Zealand.
139 Section 17 of the Adoption Act provides that where a person has been adopted in another country, and that country is not a Hague Convention State,[140] then the adoption shall have the same effect as an adoption order validly made in New Zealand if:[141]
• the adoption is legally valid according to the law of that place; and
• in consequence of the adoption the adoptive parents would have a right superior to that of any natural parent[142] of the adopted person in respect of custody of that person; and either:
• the adoption order was made by a court, judicial or public authority in a Commonwealth country or in the United States or any other country which the Governor-General by Order-in-Council may prescribe; 143 or
• in consequence of the adoption, the adoptive parent(s) had, immediately following the adoption, a right superior to or equal with that of any natural parent in respect of any property the adopted person was capable of passing to parents in the event of the adopted person dying intestate without any other next of kin.
Section 17 does not apply to an adoption by a New Zealand citizen which takes place in a Hague Convention State. Such adoptions are now governed by the provisions for recognition contained in s 11 of the Adoption (Intercountry) Act.
Intercountry adoption
140 The Adoption (Intercountry) Act came into force on 1 January 1999. It provides that, subject to the provisions of the Act, the provisions of the Hague Convention have the force of law in New Zealand.[144] The Hague Convention applies to the intercountry adoption of children between states that are parties to the Hague Convention. Adoptions of overseas children by a New Zealand resident will not be recognised unless they are made in accordance with the Hague Convention.
141 The Hague Convention establishes safeguards to ensure that the child is adoptable, that placements within the child’s country of origin are unavailable, that informed consent from the necessary persons or institutions has been obtained freely and legally, that persons giving consent have been counselled if that is necessary, and that, having regard to the age and maturity of the child, the child has been counselled and consideration has been given to the child’s wishes and opinions.[145] Competent authorities in the receiving State must ensure that the prospective adoptive parents are eligible and suitable to adopt, that they have been given any necessary counselling, and that the child is or will be authorised to enter and reside permanently in that State.[146] Article 30 provides that the authorities of a Contracting State shall ensure that information held by them about the child’s origin is preserved, particularly information concerning the identity of the child’s parents, and the child’s medical history. Procedural requirements are set out in the Hague Convention to ensure that practical effect is given to the safeguards.[147]
142 Adoptions by New Zealanders of a foreign child in a foreign country that is not a Hague Convention State are not made with any of the safeguards of the Hague Convention. No doubt most children adopted overseas do end up in suitable homes, but the existing law provides no assurance that this will be the ultimate result. In 1996 a case was brought to media attention involving a prominent Hawkes Bay clergyman who had adopted 19 children from foreign countries over a five year period, in groups of up to six children. Sixteen of those children had complained of sexual or physical abuse. The adoptive father was found guilty of sexual offences relating to three of the children.[148]
143 The court has no discretion to refuse to recognise an adoption if it complies with the provisions of section 17. By way of contrast, the Adoption (Intercountry) Act gives a judge (with the prior approval of the Attorney-General) the discretion to refuse to recognise an overseas adoption subject to such terms and conditions as the judge thinks fit.[149] Statistics suggest that many people wishing to adopt a child from a foreign country choose to adopt from non-Hague Convention countries where there are fewer hurdles to intercountry adoption. In 1990 and 1991, prior to ratification of the Hague Convention by Romania, New Zealanders adopted 159 Romanian children. Since the ratification of the Hague Convention, New Zealanders have adopted only six Romanian children. As the frequency of such adoptions in Romania decreased dramatically, they increased equally dramatically with respect to Russia, which as yet has not signed the Hague Convention. In the 14-year period 1980–1994 there were 76 intercountry adoptions between New Zealand and Russia. In the five-year period 1994–1999 there were 298 such adoptions. Couchman notes that section 17 may fail to prevent:[150]
the recognition in New Zealand, of adoptions made in states which either overtly, or by omission, permit:
– abduction of children for adoption
– adoption without consent of birth parents
– payment for adoption
– adoption by persons with serious criminal records
– adoption by the very elderly or the very young
– adoption by those with serious mental incapacity
– adoption by those with no means of financial support
– adoption of a large number of children by the same person / couple
– adoption by a parent with a terminal illness.
These are all factors which New Zealand’s domestic adoption practices have sought to prevent through law and policy.
144 The United Kingdom Adoption Act 1976 provides for recognition of defined overseas[151] and regulated152 adoptions and deems that they have the same incidents and effects as if the order were made in the United Kingdom.[153]
145 The courts in the United Kingdom have a broad discretion when dealing with these adoptions. Overseas and regulated adoptions may be denied recognition or declared invalid if the adoption is held to be contrary to public policy: for example, where the law of the other state differs greatly from that of the United Kingdom, or if the authority which purported to authorise the adoption was not qualified to do so.[154] The authors of Dicey and Morris The Conflict of Laws comment that:[155]
[A]part from exceptional cases . . . it is submitted that the court should be slow to refuse recognition to a foreign adoption on the ground of public policy merely because the requirements in the foreign law differ from those of the English law.
146 The courts may also choose to deny recognition in relation to the incidents of adoption and the effect of the adoption on the status of the parties (ie whether a new parent/child relationship had been created at all). Thus there is a distinction between recognising an adoption and giving effect to its result.
147 In addition to statutory rules, common law also governs the recognition of overseas adoptions. The private international law principles relating to recognition of overseas adoption orders were discussed in the Court of Appeal decision Re Valentine’s Settlement.[156] Lord Denning MR stated that the United Kingdom courts would recognise an adoption order made in another country if the adopting parents were domiciled in that other country at the time of the adoption, and if the adoptive child were resident there.[157] Salmon J observed that recognition should not be refused lightly:[158]
It seems to me that we should be slow to refuse recognition to an adoption order made by a foreign court which applies the same safeguards as we do and which undoubtedly had jurisdiction over the adopted child and its natural parents.
148 The commentary of the Commerce Select Committee when it reported to the House of Representatives on the Adoption Amendment Bill (No 2)[159] observed that Professor Angelo160 had argued that section 17 of the Adoption Act should be amended to prohibit overseas adoption without the prior approval of the Director-General of Social Welfare, in order to ensure children in non-Hague Convention countries were afforded protection from the risks we identified in paragraph 143. The Select Committee commented that this was outside the scope of the Bill, but was a matter that might be considered during a review of the Adoption Act.
149 Clearly there are inconsistencies in New Zealand’s current approach to intercountry adoption. Children who are being adopted from Hague Convention States are afforded greater protection than children adopted from other states. Considering New Zealand’s commitment to the principles of the Hague Convention, we should consider various ways of reconciling the two approaches in order to protect the children involved.
150 This issue could be partially resolved if adoptions made by New Zealand citizens in non-Hague Convention states were not recognised unless procedures akin to those contained in the Hague Convention were observed. A licensing regime akin to that created by the Adoption (Intercountry) Act could authorise agencies to conduct such adoptions; in the case of non-Convention states, additional criteria might need to be added as there may not be a similar agency set up for screening to deal with in the other state. Extra obligations might need to be imposed on agencies in this country, in order to ensure compliance in both countries with the principles of the Hague Convention. By imposing such procedures, there could be assurance that a child being adopted from or in a non-Hague Convention state is free to be adopted, that the child’s parents have given free and informed consent to an overseas adoption, and that the prospective adoptive parents have been screened for suitability.
151 An alternative could be to allow the Family Court to assess an overseas adoption order and confirm its validity. This would be similar to the United Kingdom approach, and could allow a court to determine whether appropriate consents had been sought and to assess the adoptive parents. The difficulty with this approach is that the adoption has already occurred, and the child has already been transferred to another country. Refusing to recognise the adoption at this stage could have serious implications for the welfare of the child.
Should non-Hague Convention State intercountry adoptions by persons domiciled in New Zealand be recognised?
Should recognition depend on whether prior approval for the adoption has been given by the Director-General of Social Welfare?
Should such adoptions be regulated by procedures akin to those contained in the Hague Convention?
Should adoptions made in non-Hague Convention States by New Zealand citizens be subject to confirmation by the New Zealand Family Court?
Citizenship and the Adoption Act
152 Intercountry adoption is frequently used to circumvent New Zealand immigration laws, to allow the adoptee to secure a New Zealand citizenship. Section 3(2) of the Citizenship Act 1977 (‘Citizenship Act’) confers New Zealand citizenship upon:
• Children who have been adopted by a New Zealand citizen in New Zealand by an adoption order made under the Adoption Act.
• Children who are adopted outside New Zealand by New Zealand citizens by an adoption to which section 17 of the Adoption Act applies and either the adoption took place before the commencement of the Citizenship Amendment Act 1992, or the child was under the age of 14 at the time that the adoption order was made.
• Children adopted by New Zealand citizens in accordance with the Hague Convention.
153 Prior to the Citizenship Act, adoption by a New Zealand citizen did not confer New Zealand citizenship on the adopted child. Section 16(2)(e) of the Adoption Act provided that an adoption shall not affect the race, nationality or citizenship of the adopted child. To obtain citizenship, the adopter had to apply under section 9 of the British Nationality and New Zealand Citizenship Act 1948 to register the child as a New Zealand citizen.
154 The automatic conferment of citizenship upon an adopted child of a New Zealand citizen may cause problems when adoption is used to circumvent immigration laws and to secure New Zealand citizenship for the child. A number of cases involving such motivation have been heard in the Family Courts.[161] The situation arises most often in the context of adoption by New Zealand citizens of family members who are citizens of another state, to secure New Zealand citizenship.[162]
155 A new adoption statute could contain a provision to the effect that the Court may decline an application for adoption where it considers that citizenship is the primary motivation for adoption. This option is not straightforward. It may not be possible to ascertain the primary motivations behind an application for adoption – issues of citizenship may not be separable from educational and quality of life issues.[163]
156 Consideration should also be given to whether adoption is the most appropriate option; guardianship may be preferable in cases where the child will be cared for by extended family, or where legal adoption is not part of the child’s culture.[164] Perhaps where the Immigration Service receives an application for citizenship for a child who has a New Zealand guardian, lenient criteria might be more appropriate than in other cases, so as to remove the need for intra-family adoption.
157 Alternatively, some immigration problems could be resolved by reverting to the pre Citizenship Act approach, requiring an application for citizenship rather than automatically conferring citizenship by descent when an adoption order is made. The disadvantage of the pre 1977 approach is in the potential for genuinely motivated adoptions to be thwarted by an overly rigid application of immigration policy. This might also deter some people from adopting overseas, since adoptions by New Zealanders made in an overseas country would risk not automatically conferring citizenship rights upon the adopted child. The Hague Convention requires that the child is or will be authorised to enter and reside permanently in the receiving state.[165] To avoid uncertainty, an application for adoption under New Zealand legislation of a foreign child could be made subject to a determination of citizenship status by the Immigration Service.
Should there be a legislative provision requiring or permitting a judge to reject an adoption application where citizenship is the primary motivation for the adoption?
Should adopters be required to lodge an application for citizenship for the child with the Immigration Service?
Should change of citizenship be a factor in considering whether an adoption order should be made?
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