New Zealand Law Commission
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158 NEW ZEALAND HAS SUPPORTED the UN Declaration on Child
Placement. This declaration states that the primary purpose of adoption is to provide a child with a permanent family.
159 At present any person under (and in some cases over) the age of 20 years may be adopted. Whether an adult needs to be adopted is doubtful. Where the upper age limit is so high, other motivations often become apparent, such as to secure citizenship status.
160 The maximum age for adoption could be fixed to the maximum age for which child support is payable. The Child Support Act 1991 (‘Child Support Act’) links the upper age limit to a stage when a person is considered to be independent of that person’s parents.
161 Alternatively, New Zealand could adopt the approach taken in the United Kingdom, Victoria,172 Western Australia,173 New South Wales, and Northern Territory175 which restricts adoption to those who are under the age of 18; but in the case of a young person who has been brought up by or maintained by the applicant(s) and/or their spouse, allows an adoption after that person has reached the age of 18.
What should be the maximum age at which a person can be adopted?
Should adult adoption be allowed in exceptional circumstances?
162 The Adoption Act allows the adoption of a married person. Allowing married persons to be adopted expresses a different policy from that of sections 9C and 21 of the Guardianship Act which provide that guardianship rights terminate upon the marriage of a child. The principles of the UN Declaration on Child Placement raise the question of whether it is necessary to permit a person to be adopted once the law has recognised that person’s entitlement and ability to live independently. Marriage may provide a suitable conclusion to status as a child.
163 In Re E the applicant had been adopted by her mother and stepfather without her knowledge; by law her consent to the adoption was not required. Judge Boshier commented that178
It is surprising that the Adoption Act, while recognising in broad terms a child’s welfare, contains no express provision restricting adoption in the event of marriage.
The Judge indicated that had the Magistrate known that the woman was married, he would not have granted the order in the absence of strong support from the woman.
164 Our tentative view is that a married person should be treated in the same way as a person over the age of 20 (or any other maximum age that might be set) for the purposes of adoption legislation.
165 The fact that an increasing number of young people live in de facto relationships requires consideration in the present context. Difficulties of proof may require such relationships to be disregarded.
Should the court be prevented from granting an adoption order in respect of a person who is or has been married?
Should the same restriction apply in the case of a person who is living or has lived in a de facto relationship?
166 Altering the age under which a person can be adopted, and restricting adoption to those who are not married (or living in a de facto relationship) could, in some cases, prevent succession rights from being automatically conferred by adoption. However, were adult adoption allowed in circumstances where the adult was raised by the applicants, this difficulty might be resolved.
167 Succession can also be determined by inter vivos disposition or a testamentary disposition. Both of these options are less intrusive ways of achieving a desired outcome. The disadvantage is that a testamentary disposition can be challenged by children of the deceased and this could have a substantial effect on the intended disposition.
Should adoption be used to secure succession rights?