New Zealand Law Commission
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168 THE LAW CURRENTLY PERMITS the making of adoption applications by single persons and two spouses together. Birth parents may adopt their own children. Age restrictions apply to some of these applicants. The law does not permit applications by de facto couples, same-sex couples, or a male in respect of a female child.
169 In this chapter we consider whether there should be any, and if so what, constraints on the categories of persons who may apply to adopt a child. It has traditionally been the dominant opinion in New Zealand and elsewhere that the most satisfactory form of adoption is by persons whose relationships most closely reflect the ‘nuclear family’ – a male and female who are married. But the change in the make-up of contemporary society means that for many families this is no longer the norm. It is necessary to examine whether it is desirable for a single person to adopt a child, whether couples in de facto relationships ought to be permitted to adopt a child together and whether couples in same-sex relationships ought to be permitted to adopt a child together. We consider each in turn.
170 A male may not adopt a female child unless he is the father of the child or there are special circumstances justifying the proposed adoption. This provision was undoubtedly enacted in an attempt to protect female children from sexual abuse. It constitutes a statutory presumption that it is inappropriate for single men to parent a female child. The Houghton Report commenting on this provision in the previous United Kingdom adoption legislation, observed that “a distinction should be drawn between the legal criteria of eligibility and professional assessment of suitability”. A general prohibition against certain classes of persons adopting a child may not be the best approach.
171 Social Welfare screens most applicants for suitability to adopt, and is appropriately placed to make an assessment on an individual basis. While it is the welfare of the child that should predominate, this general prohibition may be viewed as a form of gender discrimination against the male adopter (and perhaps the female adoptee). Consideration is warranted as to whether a general prohibition against adoption of female children by males is necessary where both the court and Social Welfare specifically approve the adoption.
Is section 4(2) of the Adoption Act still necessary or appropriate?
172 As noted earlier, the Adoption Act allows a person alone, and spouses together, to adopt a child. The use of the term ‘spouse’ has posed problems for couples in de facto and same-sex relationships who want to adopt a child.
De facto couples
173 The Adoption Act allows only married couples to adopt. In 1955 it was unlikely that the legislature would have contemplated permitting adoption by unmarried couples. However, over the past 45 years social mores have changed quite dramatically. A significant number of New Zealand children are raised in de facto relationships. The rate of marriage dissolution is rising. The prospect of separating or divorcing is likely to be higher still for second marriages.
174 Single persons can adopt a child, and some de facto couples skirt the apparent prohibition on de facto couples adopting by having one partner apply as a single person to adopt the child. Some judges have adopted a more flexible approach to the issue of whether de facto couples are able to adopt. In Re Adoption by Paul and Hauraki a couple living in Mäori customary marriage successfully applied to adopt their niece. In that case Judge Boshier stated that:
A “spouse” outside marriage is not specifically excluded in terms of section 3 of the Adoption Act. Depending on context, it is appropriate to include partners to a de facto relationship as “spouses”. In pieces of social legislation that may be all the more important . . . For the purposes of the Adoption Act 1955, I am of the view that marriage is not a prerequisite to definition of “spouse” and that the Court is entitled to look at the actual relationship in question to see whether it is of such an enduring and stable nature to enable the word “spouse” to be applied to the partners to that relationship.
175 The issue of whether de facto couples may adopt a child as a couple is still not resolved. In Re T W [adoption] a Päkehä/Mäori couple who had lived in a de facto relationship for 10 years were allowed to adopt a child. Three months after Re T W was decided a similar application came before Judge Inglis. He disagreed with the decision in Re T W, holding that it was an unwarranted extension of the point decided in Paul and Hauraki, which he stated was restricted to situations involving a Mäori customary marriage. He concluded that it was not possible to change the meaning of terms in statutes simply because society’s values had changed. He stated that “the Court is forbidden by Parliament to entertain a joint application for adoption by two people who are not married”. The legality of these adoptions in New Zealand should be clarified. Some Australian state legislation permits de facto couples to adopt, subject to their having been in a relationship for a certain period. 198
176 A consideration of whether de facto couples should be allowed to adopt raises a question of principle. In the case of couples, married or not, who are the birth parents of a child, there is an indelible physical link to the child, even if there is no legal link between the parents.
177 In the case of married adopters there is a double legal tie which may be said to add to the security of the position of the adopted child: the relationship of marriage; and the adoption order. While there is a substantial incidence of marriage dissolution, the formality of two legal acts provides a powerful legal relationship between each spouse and the adopted child.
178 In the case of those who decline to enter a marriage relationship but who wish to adopt, issues arise concerning the interests of children generally, and of the particular child, and whether:
• qualification to adopt should be declined for that reason; or
• such status should be a factor to take into account in considering the potential future stability of the relationship and thus the security of the child.
We seek responses.
Should the Adoption Act treat married and de facto applicants in the same way?
Should there be a requirement that de facto couples have lived together for a certain amount of time prior to seeking to adopt? If so, for how long?
179 In the case of same-sex relationships similar issues arise. It may be said that the absence of one or other sex within the adopting parents’ relationship removes that relationship further from the paradigm. The question is as to the significance of that absence.
180 Same-sex couples cannot adopt a child together under the current law. There have been calls to allow persons in same-sex relationships to be permitted to adopt children as a couple.
181 It is desirable to acknowledge at the outset of this discussion that New Zealanders hold a range of opinions upon issues concerning same-sex relationships. Such opinions are honestly held and require careful consideration. The views now expressed are advanced tentatively to seek response.
182 The Wolfenden Report’s conclusion that homosexual relationships are not the law’s business has been increasingly adopted by the legislature and the judiciary. In New Zealand, section 21(1)(a) of the Human Rights Act 1993 (the ‘Human Rights Act’) confers the right not to be discriminated against on the basis of sexual orientation. A further issue is whether, and if so to what extent, the law should provide for the consequences of homosexual relationships.
183 These factors are important to take into account in relation to whether same-sex couples should be eligible to apply for adoption. But adoption is not primarily about the rights of applicants for adoption, important though those are; it is about the best interests of the child. We have therefore thought it desirable to look beyond that general expression of Parliament’s will to the available evidence and to its application in the present context. We offer for consideration the proposal that sexual orientation towards the same gender should not constitute a general disqualification for making an adoption application.
184 The advent of assisted reproductive technology means that it is no longer necessary to have heterosexual intercourse to conceive a child. In New Zealand and elsewhere some lesbian couples have made a decision that they would like to raise a child together, and one of the partners is artificially inseminated with donor sperm. The birth mother is the child’s legal mother, but her partner has no biological or legal relationship to the child. The threshold question is whether it is in the child’s best interests to permit the same-sex partner of the mother to adopt the child.
185 There are several ways that the status of the child and the status of the birth mother’s partner could be regulated. One option would be to make the Status of Children Amendment Act 1987 neutral as to sexual orientation. This Act applies to heterosexual couples who have a child with the assistance of donor sperm or ovum, and deems the parents of the resulting child to be the birth mother and her spouse (if he consented to the insemination). It would be a simple step to extend this statute to lesbian couples who conceive a child through assisted reproductive technology.
186 A second option would be for the lesbian partner to be treated in the same way as a step-parent adopter. This would entail such a partner applying to adopt the child with the support of the natural mother. We discuss the issues relating to step-parent adoption in more detail in paragraphs 198–207.
187 The third option would be to retain the status quo, whereby the partner can be appointed as a guardian of the child. This has the disadvantage of not automatically conferring succession rights and is perceived as being less permanent than adoption.
188 These options are not available to male same-sex (gay) couples. A gay couple wishing to raise a child together may be reliant on surrogacy to enable the conception and birth of a child who is biologically related to one of the partners.
Should the Status of Children Amendment Act 1987 be amended to allow lesbian couples to be treated as parents?
Should lesbian co-parents be treated in the same way as step-parents?; or
Should the status quo be retained?
189 We have observed that the crux of any discussion about whether same-sex couples should be allowed to adopt a child together is the welfare of the child. Because so few jurisdictions allow same-sex couples to adopt a child together, we draw on research conducted into the experiences of children with gay and lesbian parents.
190 The main concerns that have been expressed about the parenting of children by same-sex persons are:
• that the child will be predisposed to homosexuality;
• that the child will be more prone to develop psychiatric problems;
• about a lack of appropriate role models; and
• about stigma and harassment by peers.
We address each issue in turn.
191 The concern that a child will be predisposed to homosexuality is based upon the premise that homosexuality is itself undesirable. We refrain from making any judgments about this, but the concern must be addressed. Empirical research on children raised by lesbian mothers suggests that these children are no more inclined to become homosexual than children raised by heterosexual parents. A survey of adult sons of gay fathers supports this conclusion. Some scientific analysis, still in its early and controversial stages, suggests that there may be biological rather than environmental reasons for homosexuality. However, studies of children of lesbian mothers do suggest that where these children experience feelings of attraction to a person of the same gender (and they were no more likely to experience this than children raised by heterosexual parents) they are more likely to act on their feelings than children raised by heterosexual parents. This does not mean they ultimately identified themselves as being homosexual, but that they were more inclined to sexual experimentation.
192 The next concern is that children brought up by a gay or lesbian parent are more likely to experience psychological problems. This is based upon findings that some childhood family experiences carry an increased risk of psychiatric problems. Research into the experiences of children raised by lesbian mothers suggests that such children are no more inclined to experience psychiatric or emotional disorders than children raised by single parents. This indicates that a parent’s homosexuality alone does not predispose the child to psychosocial disorder.
193 A third concern that has been expressed is that children raised by homosexual parents will not have appropriate role models, and as a consequence their psychosexual behaviour may not develop normally. In a lesbian-parent family, for example, there will be no ‘father-figure’ and the mother does not play a ‘normal’ female role. A study of children raised by lesbian mothers has concluded that the child’s psychosexual behaviour is not altered by the sexual orientation of the mother. Moreover, children raised in such families generally have greater access to a male role model than do children raised in single-mother families – the lesbian mother tends to make a conscious effort to give her child other role models.
194 The final concern, one frequently expressed by the judiciary in contested custody proceedings involving a homosexual parent, is that the child will be exposed to the ‘stigma’ of homosexuality and will suffer teasing by peers. Tasker and Golombok looked for such an impact in their empirical studies on children raised by lesbian parents. They found that, on the whole, such children experienced no more ‘teasing’ by peers, and no more severity of teasing, than children raised in a heterosexual family. The children were more likely to perceive a sexual overtone to any teasing than were children from a heterosexual family. Much depended on the extent to which the child perceived the parents as being openly homosexual, and how the parents behaved in the presence of the child’s peers.
195 Recent research conducted by Tasker and Golombok into planned lesbian-led families suggests that in these families both parents are more involved in daily caregiving than in heterosexual families. Lesbian-led families were also far more likely to have a coordinated or joint policy on discipline than heterosexual parent families. However this did not appear to influence the child’s feelings about the parents. When feelings of warmth towards parents are measured, the perceptions of the children were similar regardless of the family type.
196 Research into these families suggests that the homosexuality of the parents makes little difference to the ultimate welfare of the child, as long as parents exercise quality parenting skills.
197 Our preliminary view as to whether same-sex couples should be permitted to adopt a child is that, rather than create a blanket prohibition, such applicants should be assessed on their merits, alongside other potential options for the child. The way in which gay or lesbian people plan to take account of their sexual orientation when raising the child – for example, whether they plan to provide appropriate role models – would be an extra element for a social worker and the court to consider.
Should applications to adopt by same-sex couples be permitted?
If so, on what terms, if any?
198 Step-parent adoption is currently used in situations where a parent remarries and the parties want the new family relationships to be legally recognised.
199 Concern has been expressed that step-parent adoption has been used to sever the relationship between the child and the non-custodial parent. The other birth parent will often be a guardian of the child and may also be exercising rights of access. In considering step-parent adoption the Houghton Committee commented
We suggested in our working paper that it was desirable to recognise openly the fact and consequences of divorce and of death; that one of these consequences is that many children are living with a parent and a step-parent; and that the legal extinguishment by adoption of a legitimate child’s links with one half of his own family was inappropriate and could be damaging.
Similarly an English judge has made the following observation:
It is quite wrong to use the adoption law to extinguish the relationship between the protesting father and the child, unless there is some really serious factor which justifies the use of the statutory guillotine. The courts should not encourage the idea that after divorce the children of the family can be reshuffled and dealt out like a pack of cards in a second rubber of bridge. Often a parent who has remarried and has custody of the children from the first family is eager to achieve just that result, but such parents, often faced with very grave practical problems, are frequently blind to the real long-term interests of their children.
200 As we have noted earlier, while the current approach in other areas of family law favours maintaining links between children, their parents and extended family networks, once an adoption order has been made the existing parents of a child cease to be the legal parents. In the absence of guardianship or legal parenthood the court has no jurisdiction to award or enforce access. Step-parent adoption leaves a non-custodial parent without any legal rights of custody or access to the child. Such an adoption leaves the child with only one side of a family; the other birth parent’s family is legally pruned away.
201 The Guardianship Act allows the court to appoint a person as an additional guardian, without derogating from the rights of existing guardians. A step-parent could be made a guardian or joint guardian, whilst maintaining the legal status and rights of the non-custodial parent. Appointing the step-parent as a guardian could be preferable to making an adoption order. Butterworths Family Law in New Zealand notes that:
Adoption is not an accurate expression of what normally happens in the formation of a stepfamily. In reality the child acquires a new day-to-day parent and the role of the absent natural parent changes but does not come to an end . . . The most accurate legal expression of the reality of a step-parent family would be guardianship. Although the failure of guardianship to give “ownership” may render it less satisfactory from the applicants’ perspective, this should not be allowed to obscure the child’s interests. It is generally healthier to help the child to accept that he or she is a member of a reconstituted family and has two “fathers” (or “mothers”) rather than to conceal the truth, or to encourage the child to feel uncomfortable or ashamed about those facts, which is what resorting to adoption can do.
202 Some of the practical concerns about the effect of step-parent adoption upon access might be allayed if open adoption were practised. However, the Adoption Act redefines family links and this has the effect of severing the child’s legal links with other family members. In the absence of a means of ensuring that contact between non-custodial parents will be observed, perhaps step-parent adoption should be permitted only where it is in the best interests of the child and where guardianship or custody orders would not be a more appropriate solution.
203 One argument against restricting step-parent adoption is that children who are adopted are better cared for than children who are cared for by a guardian. We have no evidence to suggest that children who are cared for by a parent and a step-parent pursuant to a guardianship order are less well cared for than children who are adopted by the parent and a step-parent.
204 There may be cases where it is in the child’s best interests not to have contact with a birth parent. In cases where the birth parent has had little or no contact with the child, it may best serve a child’s interests to allow step-parent adoption. The law should be cautious about severing the birth parent-child relationship.
Should there be a presumption that a step-parent may only adopt where this is clearly preferable to being appointed an additional guardian?
205 The result of a presumption against step-parent adoption in favour of guardianship is that children of a former relationship may not have the same rights of succession as their half-siblings from the subsequent relationship. This difference could create undesirable friction within the family unit. This may be one reason why adoption might be preferred to guardianship in some cases.
206 Where a step-parent/step-child relationship exists, the step-child is entitled under section 3 of the Family Protection Act 1955 (the ‘Family Protection Act’) to make an application for provision out of the estate of the step-parent where that step-child was “being maintained wholly or partly or was legally entitled to be maintained wholly or partly by the deceased immediately before his death”.
207 The definition of a step-child in the Family Protection Act precludes claims by a step-child who was born to parents who never marry; furthermore, the deceased step-parent must have been the legal spouse of the step-child’s birth parent. This definition excludes children of de facto relationships.
Should the automatic conferral of equal succession rights with half-siblings be considered a legitimate reason for step-parent adoptions?
208 In a step-parent adoption, the existing parent must consent to the adoption of his or her child, and then apply together with his or her spouse to adopt the child. A birth parent’s legal relationship to the child will be changed from a natural to an adoptive relationship. In our view it is unnecessary for a birth parent to adopt their own child. Australian adoption legislation requires an application to adopt from the step-parent only, and does not terminate the existing parental rights and responsibilities of the birth parent whose partner is seeking to adopt.
209 The birth parent has to give consent to the child being adopted, whether by the step-parent, or another person. Perhaps a better way of dealing with such applications would be for the birth parent (or existing adoptive parent) to file a document in support of the proposed adoption of the child by their spouse. In this way the existing parent’s legal rights would not be extinguished and replaced; but the step-parent could be recognised as a legal parent.
In step-parent adoptions, is it necessary for an adoption order to terminate the rights and responsibilities of the existing parent whose spouse is seeking to adopt the child?
If not, should the existing parent simply be required to endorse or support the application without giving up existing rights and responsibilities in respect of the child?
210 We have observed that families have a legitimate interest in the care of family members. The CYP&F Act operates on the assumption that wherever possible the care and protection issues of their children and young persons should be resolved by their own family, whanau, hapu, iwi and family groups.
211 The Adoption Act does not encourage family members to become involved in deciding whether the child should be placed in another home or adopted. In this respect it is inconsistent with the CYP&F Act and New Zealand’s obligations under the UNCROC.
212 Where a birth parent agrees that the family group should be consulted, adoption law should facilitate this. Social workers should investigate whether members of the family group could provide a suitable home for the child. Children are best cared for within a happy, stable family. Where that family is related the child benefits by retaining its sense of family connection, and where the child already knows the family members the readjustment process for the child will be made easier. In such cases the applicants should be assessed in accordance with the criteria for any placement under the CYP&F Act or Guardianship Act.
Should there be a legislative requirement that the social worker investigate the possibility that the child be cared for within the family group before adoption to non-related persons is considered?
Should there be a legislative requirement that the Family Court Judge inquire whether placement within the family group has been considered?
213 The form of care provided within a family can have important consequences. Although adoption creates a more permanent legal relationship than does guardianship, it severs and distorts family relationships. We observed earlier that guardianship is a less intrusive means of legally recognising the arrangement. Consideration should be given to creating a presumption that guardianship should be used to regulate the care of a child by family members, unless adoption is clearly preferable.
Should there be a presumption that guardianship or custody be used to regulate the care of the child by family members, rather than adoption?
214 If guardianship is used as an alternative to adoption one of the resulting practical differences is that the child’s rights of succession are not changed. As we noted earlier in our discussion of step-parent adoptions, specific dispositions may be made in a will.
215 Section 4(1)(c) provides for the adoption of a child by either of the birth parents alone. When the Act was introduced in 1955 this was a mechanism by which a parent could legitimise his or her illegitimate child. Upon the introduction of the Status of Children Act 1969, the legitimisation of children by adoption became unnecessary. We have found no reported cases of adoption by a birth parent alone. There now appears to be little reason to use this provision other than to deprive the other parent of access rights.
Should the provision for adoption by a parent alone be removed from the Adoption Act?