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216 THE CHILD’S PARENTS AND GUARDIANS must consent to the adoption
of the child,[241] unless their consent has been dispensed with under section 8 of the Adoption Act.[242] This does not necessarily mean that both the mother and father of the child are required to give consent. A father’s consent will be required only if he was married to the child’s mother at the time of the child’s birth or after the time of conception,[243] or where the father is a guardian of the child.[244] The mother is the sole guardian of a child where:[245]
• she is not married to the father of the child; and either:
– has never been married to the father of the child; or
– was married to the father but the marriage was dissolved before the child was conceived; or
– she and the father were not living together when the child was born.
217 A natural mother cannot give consent to the adoption until the child is at least 10 days old. Childbirth and the post partum period is a time of great physical, emotional and hormonal upheaval,[246] and this can impact upon the mother’s ability to make such an important decision. Parliamentary debates in 1955 indicate that the reason for choosing the 10 day period, rather than the four week period that appeared in the first draft of the Bill, was to ensure that consent was obtained before the birth mother left the hospital and disappeared.[247] It is now extremely uncommon for a woman to remain in hospital for 10 days after the birth of her child, unless there are medical complications. In this respect it now makes little difference whether the period is 10 days or four weeks.
218 Some other jurisdictions provide a lengthier period before the birth mother can give consent to the adoption.[248] It has been suggested that our legislation should also provide a longer period so the mother can make a considered and informed decision, and is not overwhelmed by the stresses of childbirth.[249]
219 The impact of a longer period for consent must be considered. Provisions preventing consent being given during this period give the birth mother time to resolve issues relating to the birth and proposed adoption, but may make the period more difficult for those who have made a firm decision and want the adoption to proceed immediately. A submission by the Australian Association of Social Workers to the New South Wales Law Reform Commission during their review of adoption law states:[250]
In our original submission we stated that we believed birth mothers to be too vulnerable and too much in shock during the immediate post partum period. Lengthening this entire period, while it may be uncomfortable for some women who have envisaged a “clean break”, will mean that birth mothers are able to truly experience the impact of separation from their baby, and to make a more informed and reality-based decision in the end.
220 The next consideration is the impact of a longer consent period on the child. John Bowlby’s research into anxiety of young children when separated from their mothers noted an important difference between infants younger than seven months and infants older than seven months. Bowlby observed that the younger infants[251]
tended to respond to mother and to observers without showing marked discrimination between them. Similarly, when mother departed, whereas older infants cried loudly and for a long time, even desperately, the younger ones showed no signs of protest.
Bowlby went on to observe that:[252]
How the responses of infants of under seven months are best understood, and what their significance for an infant’s future development may be, is difficult to know.
It is plain . . . that the responses of these younger infants are different at every phase from those of the older ones, and that it is only after about seven months of age that the patterns that are the subject of this work are seen.
Adoption inevitably involves more upheaval for an infant than is experienced in a normal situation. It is important that this is managed in a way that minimises stresses upon an infant. An extension of the consent period from 10 days to, for example, one month, is unlikely to increase the effect of any stress, provided suitable arrangements can be devised for the interim care of the child. But real questions arise as to how the child will be cared for during such period.
221 The New South Wales Law Reform Commission was not in favour of placing infants with adoptive parents during this period; the Commission considered it was unfair to the adoptive parents to care and bond with a child whose mother has the right to take the child back. On the other hand, if the adoption does go ahead it may transpire that the child has been unnecessarily placed in temporary care at the taxpayer’s expense and the bonding process may have been disrupted.
222 The original considerations upon which the 10 day period was based are outmoded. Concerns for the mother’s ability to make a considered decision were not given high regard in the parliamentary debates on the third reading of the Adoption Bill; the needs of the adoptive parents were given greater consideration. Adoption is an extremely important decision and at this stage there should be consideration of the interests of the mother, the child and any potential impact on the adoptive parents. It may be advisable for New Zealand to allow a longer period. If so, consideration of the placement and of the child during this period and the impact upon adoptive parents would be required.
Should the period after childbirth before consent can be given be extended?
What would be an appropriate period?
Should the child be placed with adoptive parents during this period?
If not, how should the child be cared for?
223 Where the father is living with, or is married to, the mother at the time of the child’s birth, he is a guardian of that child and required to consent to the adoption.[253] A father who has never been married to the mother, or did not live with[254] the mother when the child was born, will not be a guardian, even if he is named on the birth certificate.[255] In these circumstances, the father’s consent will be required only if the court considers it expedient.[256] The court will often consider the issue of expediency in conjunction with the question whether a father should be appointed as guardian of the child.[257] The issue of expediency generally arises only when the natural father objects to the adoption of the child.[258] Some judges may be reluctant to find that it is expedient to require the father’s consent where it is likely that the father will oppose the adoption:[259]
[C]an the father’s appointment as guardian be justified when as the inevitable result of that appointment the present adoption plans, plainly in the welfare and interests of this child, will be frustrated and the child will be forced into an upbringing by two solo parents who will certainly be in conflict on a variety of issues connected with the child’s upbringing and care?
When there are suitable adoptive parents ready and willing to adopt the child, it may be difficult for the birth father to provide alternative arrangements that compare favourably.
224 Consideration is warranted as to whether recognition should be given to the rights of the natural father who is not a guardian, and to what form that recognition might take. Options include allowing the birth father to object to the adoption, to object to a placement, or to maintain the status quo.
What status should be given to a birth father’s objection?
Should a birth father be empowered to object to the mother’s decision to have the child adopted to strangers?
Should the birth father be allowed to object to the adoption only where he, or his family, wish to raise the child?
Should the father be allowed to object only to a placement decision rather than the mother’s decision to adopt the child?
Should the status quo be retained?
225 Difficulties will always arise where the birth mother will not name and does not wish to contact the birth father. In some cases it may be inappropriate to compel disclosure – for example, where the pregnancy was the result of rape or incest, or where the birth mother has been a victim of domestic violence. In cases that do not involve such factors, social workers or the mother could be required to attempt to identify and locate the putative father.
226 There are practical difficulties associated with locating fathers to obtain their consent, especially where the father has no knowledge of the pregnancy or where he does not wish to acknowledge paternity. For this reason we recommend that any requirement to contact the father be limited to Social Welfare making reasonable attempts to locate and notify the birth father.
Should social workers be required to make reasonable efforts to identify and locate the putative father?
Should an exception be made where the pregnancy has resulted through rape or incest, or where the birth mother has been a victim of domestic violence?
Should the mother be required to identify and locate the putative father?
If so, what if any exceptions should be made?
227 Once a valid consent to the adoption has been given it is in most cases irrevocable. When consent has been given to specified persons[260] (other than the Director-General) it cannot be withdrawn until after the proposed adoptive parents have been given an opportunity to apply to adopt the child. The birth parents of the child do not have standing to appear in court to oppose the adoption application once consent has been given.[261] This means that if the adoptive parents are prompt in filing their application to adopt the child, there is no means by which the birth parent can withdraw consent or voice an opposition to the adoption itself. Where the Director-General has been appointed as the guardian of the child under section 7(4) and consent has been given, that consent may be withdrawn at any time if neither an interim nor final adoption order has been made. Section 9 narrowly limits the circumstances in which a birth parent can withdraw consent to the adoption. This section has been the source of much litigation as birth mothers attempt unsuccessfully to withdraw their consent, or to challenge the validity of the consent.[262]
228 Other jurisdictions allow a defined time period during which a mother can withdraw consent. For example, Australian states allow on average a period of 30 days after the signing of consent, during which time the consent can be withdrawn.[263]
229 To increase the period before which a birth mother may consent to an adoption, as outlined above, would allow her to test her reaction to separation from the child before a binding decision is made. Additionally, or alternatively, the right to revoke consent to an adoption could be granted in every adoption and a defined period could be set during which the parents can revoke consent. But such change could run counter to the desire of the adoptive parents for certainty and a sense of security in respect of their newly forming relationship with the child, and potentially to the child’s security. We seek submissions upon how the tension between these competing interests should be resolved.
Should the entitlement to revoke consent be extended to all adoptions?
If so, what should be the period for revocation of consent?
230 Section 7(6) of the Adoption Act allows parents to impose conditions regarding the religious denomination and practice of the applicants or requesting that the applicants raise the child according to certain religious preferences.[264] Parents cannot give consent to an adoption subject to other conditions. There are a range of matters that birth parents may wish to ensure for their child. They may wish to ensure that their child is raised with knowledge and an understanding of its cultural and linguistic heritage. For Mäori, in particular, there is a strong emphasis on the importance of whakapapa.[265] In practice, Social Welfare attempts to give effect to the wishes of the birth parents by matching the child with suitable adoptive parents, sometimes with the input of the parents. We might wish to consider whether birth parents should be able to attach conditions other than religious conditions to the consent.
231 Social Welfare attempts to ensure that the religious condition is fulfilled when arranging an adoption placement, and the court must be satisfied that such a condition is being complied with before making an interim or adoption order.[266] However, the 1987 Department of Justice review recommended the removal of the provision allowing the imposition of a religious condition, because for practical reasons it is difficult to enforce.[267]
Should birth parents be able to impose conditions upon their consent to the adoption?
What importance should be attached to such conditions?
What would the effect be of a more open system of adoption, with the opportunity for the birth parent(s) to know whether conditions are being observed?
232 The court may dispense with a parent’s consent where the parent is physically or mentally unable to care for the child and that disability is likely to continue for some time,[268] or where the parent has abandoned, neglected, persistently failed to maintain or persistently ill treated the child or failed to discharge obligations as parent or guardian of the child.[269] Although the Adoption Act does not explicitly require the best interests of the child to be promoted by the dispensation of consent, the Court of Appeal has imported the paramountcy principle from the Guardianship Act. Adoption involves the extinguishment of any existing rights of guardianship. The Court of Appeal reasoned that because guardianship issues were involved (albeit peripherally) the paramountcy principle should be applied when making such determinations.[270]
233 Consent is a necessary prerequisite to the adoption order,[271] yet the legislation does not describe the legal consequences of a valid consent. If the intending adopters fail to apply for an interim adoption order, or allow an interim order to lapse without applying for a final adoption order, the birth parents remain the legal parents of the child. As birth parents are not notified when an adoption order is made, they might not be aware that the proposed adoption has not in fact occurred. In such circumstances the present legislation leaves doubt as to the status of the birth parents’ legal relationship to the child.
234 The adoptive parents will be in breach of section 6 of the Adoption Act if they retain custody of the child for more than one month[272] before applying for an adoption order, or if they let the interim order lapse without applying for a final adoption order.
Should new legislation set out the status of the parties once a valid consent has been given?
Should the court be required to notify the birth parents when an adoption order has been made?
235 The legislation does not state whether a consent to adoption remains valid if an interim or adoption order is not made, or the interim order lapses before
an adoption order is made.[273] To clarify the effect of consent in these circumstances, it could be defined as lasting only a finite period. This would also encourage prompt determination of the child’s legal status. An appropriate period might be six months. If an application for an interim adoption order has not been made within that six month period, the social worker involved should call a family group conference with the birth parents and adoptive parents in order to determine a future course of action.
236 However, this option has the disadvantage of potentially allowing a child to be in the care of adoptive parents for longer than one year,[274] and then allowing a birth parent to object to the adoption if the interim order is allowed to lapse.
237 New legislation should clarify these matters.
Should parental consent expire after a certain period if an application for an adoption order is not commenced or an adoption order is not made by the court?
If so, what should that period be?
238 Applicants for an adoption order are deemed to consent to the adoption.[275] Specific consent to the adoption is required only where an application to adopt a child is made by either a husband or a wife alone. In such cases the spouse of the applicant must consent to the proposed adoption.[276] We endorse the exception set out in section 8(4) that the consent of the spouse may be dispensed with if the court “is satisfied that the spouses are living apart and that their separation is likely to be permanent”.
239 There is no provision requiring the court to inquire into the wishes of the child, or to require the consent of the child to the adoption.[277] The UNCROC requires that signatories take into account the views of the child when making a decision affecting the child.[278] Most overseas jurisdictions also stipulate that a child over a certain age must give consent before an adoption order can be made.[279] Below that age it is sometimes required that there be an inquiry into the wishes of the child.
240 An alternative to setting an age at which a child must consent to the adoption is to use a test which determines whether a child can make decisions, taking into account the maturity of the child.[280] A test of this nature is set out in section 23(2) of the Guardianship Act:
the Court shall ascertain the wishes of the child, if the child is able to express them, and shall . . . take account of them to such extent as the Court thinks fit, having regard to the age and maturity of the child.
Should the consent of a child old enough to give consent to the adoption be required?
Should an age limit be set, or should a general competency test apply?
If a child consents to the adoption, should the child be able to revoke consent at any time until the time that the final adoption order is made?
241 Circumstances may arise where the birth mother was unable to give true consent, for example, because of fraud or duress. Similarly, the mother may be unfit or otherwise unable to give consent. In such cases, on application the court has the ability to discharge the adoption order.[281] The existing provisions appear to be satisfactory.
242 In order to be valid a consent to adoption must be witnessed by a District Court Judge, a Registrar of the High Court or of the District Court, or a Solicitor, or a Judge or Commissioner or Registrar of the Mäori Land Court.[282] The document in which consent is given must contain an explanation of the effect of the adoption order and the person witnessing the consent must endorse on the certificate that he or she has personally explained the effect of the adoption order.[283] It may be advisable to set out a standard form explanation of the effect of an adoption order in a schedule to the legislation. The form should be written in plain English (with translations available) and should be made as comprehensible as possible. Every lawyer would have to use this standard form. This option would achieve consistency and ensure the quality of explanations given.
243 In the past many birth mothers have been unaware of the narrow limits of the grounds upon which they may withdraw consent. In order that birth parents understand their right to revoke consent to the adoption the witness could be required to explain the circumstances in which consent can be withdrawn and how to go about it.
Should a standard form explanation of the effects of adoption be set out in legislation?
Should a standard form for revocation of consent be given to the birth parents when they give consent?
Witnessing consents
244 It appears to be common practice for the lawyer of the potential adoptive parents to witness the birth parent’s consent to the adoption. This raises ethical issues as the lawyer owes no duty of care to the birth parent, but is acting for the adoptive parents. It may be thought that there is value in a requirement that, in order for the consent to be valid, it must be taken by an independent party.
Should there be provision in the new legislation that the person witnessing the consent must be independent?
245 The Adoption Act provides that a document signifying consent to an adoption shall not be admissible unless it is witnessed by a District Court Judge, a Registrar of the High Court or District Court, or a Solicitor, or a Judge, Commissioner or Registrar of the Mäori Land Court.[284]
246 Family Court decisions cast doubt on whether a barrister sole can take an effective consent to an adoption.[285] These judgments were overturned when the High Court confirmed that the Adoption Act cannot be taken to have intended to prevent barristers from being able to witness a consent.[286] There appears to be no logical reason to prevent barristers witnessing adoption consents. New legislation provides the opportunity to confirm the decision that barristers are able to witness consents to an adoption.
Should new legislation make it clear that both barristers and solicitors are able to witness consents to adoption?
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URL: http://www.nzlii.org/nz/other/nzlc/report/PP38/PP38-8_.html