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247 SECTION 5 OF THE ADOPTION ACT provides that upon application for an adoption order, an interim order shall be made in the first instance, with the exception that an adoption order can be made where special circumstances render it so desirable[287] and all other conditions governing interim orders are met. Before an interim order is made, the court must be satisfied that the persons applying are fit and proper parents, that the welfare of the child will be promoted and due consideration has been given to the child’s wishes, and that any religious condition imposed by the parent or guardian has been complied with.[288] The court must also have received a report from the social worker on the application, unless one of the applicants is an existing parent of the child.[289] If these requirements are met, there is no restriction on how quickly an interim order may be made.
248 In Chapter 8 we discussed altering the provisions relating to when consent to adoption may be given. In particular we asked whether there might be a lengthier period before which a mother can give consent, and whether consents should be more easily revoked by the mother under a new scheme. Both of these factors will have an impact on when an interim order might be made, and the security of the interim order from the perspective of the adopting parents.
249 It may be more appropriate for the potential adopters to be appointed as guardians of the child (if they so desire)[290] until such time as the period for revocation of consent expires and an interim order can be made. However, circumstances may arise where the birth parent wishes to pass immediate legal responsibility to the adoptive parents.[291] If the adoptive parents are willing to take legal responsibility earlier in such cases, knowing that the parent still may revoke consent, then early placement of the child and an interim order could be considered.
250 Six months after an interim order is granted the prospective adoptive parents may apply for an adoption order.[292] The Registrar shall issue the adoption order without a further hearing if that is in accordance with a social worker’s recommendation, or the interim order did not require the application to be dealt with by the court, or no proceedings for the revocation of the interim order are pending or on appeal, and a District Court has not within the immediately preceding month refused to revoke the interim order.[293]
Is the present system of interim and final orders satisfactory?
251 The terms of reference require us to consider whether it might be desirable to attach conditions to an adoption order. At present a birth parent cannot attach conditions (except as to religion) to an adoption order. We discussed at paragraphs 13–20, and 71–74 the growth in the practice of open adoption over the last 20 years. These practices have developed in spite of current legislation, rather than because of it. The Adoption Act contains no provision for giving effect to any type of contact agreement or plan between the respective parents. Allowing conditions to be attached to an adoption order could provide a means by which an access order can be made in favour of the birth parents. There has been debate over whether the court has jurisdiction to make an access order in favour of a birth parent at the time that the adoption order is made. Blanchard J in Adoption of PAT was of the view that, generally, such an order cannot be made, but that the High Court could use its parens patriae jurisdiction to make such an order.[294] Attaching conditions to the adoption order would allow open adoption agreements to be legally recognised and, if necessary, enforced.
252 A criticism of the current law is that it places control over the process in the hands of the adoptive parents. Many mothers contemplating adoption may do so only on the understanding that they retain some degree of contact with the child. The adoptive parents could renege on that understanding after the adoption and the birth mother would have no avenue of redress. A mother considering adoption may decide against it if there is no means of enforcing a contact agreement.[295]
253 Where the birth parents and adoptive parents agree, the court could be allowed to attach conditions to the adoption order. Contact agreements could take many forms, from limited contact by letter and photographs, to direct regular personal contact. The type of contact might be agreed upon by the birth parents and the adoptive parents. The agreement could provide for contact arrangements to alter as the parties become more comfortable with the situation or as circumstances change.
254 The Adoption Practices Review Committee concluded that an “adoption plan” should accompany all adoption applications.[296] Negotiating a plan would be part of the pre-adoption process. The plan would set out the agreement that the parties made about future contact. The type and degree of contact, if any, would be set by the parties. Such a plan would be submitted to the court, and the Judge would check that it was in the best interests of the child. It would be lodged with the court but would not comprise a formal part of the adoption order.
255 We consider that this proposal is valuable. The use of the word “plan”, rather than “conditions”, recognises that the approach to an open adoption arrangement should be flexible: these arrangements do not work as well if people are compelled.
256 An open adoption plan could also be used to provide for contact with other members of the birth family, for example, grandparents. A birth parent might not want to have contact with the child but might be happy for the grandparents to do so. Attaching an adoption plan to the adoption order would be a flexible way to facilitate this.
257 The family group conference structure might be an appropriate forum in which to negotiate open adoption agreements.[297] However, relatives of the birth parents should only be invited to attend a family group conference where the birth parents agree to their involvement.[298] The agreement could provide for further family group conferences to be held when the parties wish to renegotiate the plan.
Should the Family Court be able to attach an adoption plan to an adoption order?
If not, what would be an appropriate means of recognising open adoption arrangements?
Should the process of negotiating open adoption remain informal?
Would a family group conference be an appropriate forum for negotiating conditions of an open adoption agreement?
258 Issues then arise as to the effect that an adoption plan might have on the adoption order. Should a plan go to the heart of the adoption order, so that non-compliance would invalidate the order, or should non-compliance simply occasion a return to negotiation (assisted by a mediator if necessary) to resolve issues?
259 It would be untoward to suggest that an adoption order could be invalidated by a breach of an adoption plan. This would have severe implications upon the child’s stability. An adoption plan might provide birth families with discretionary access rights in respect of the adopted child, but non-compliance with those conditions (either on the part of the adopters or indeed the birth parents) should not affect validity of the adoption itself. The family group conference procedure might be used to attempt to reconcile the parties in the event of non-compliance with an adoption plan. Alternatively, or perhaps in addition to the family group conference, legislation could allow a Family Court Judge to hold a mediation conference to resolve disputes.[299] If the dispute is still not resolved, then the matter could proceed to a hearing to resolve access issues.[300]
Should an adoption plan be enforceable?
How would a plan be enforced?
Could a family group conference process be used to resolve disputes?
Should a Family Court Judge have powers to hold a mediation conference to attempt to resolve disputes?
Would it be appropriate for access disputes to proceed to a court hearing?
260 Prior to the Child Support Act a natural father could be held liable to pay maintenance for his child after an adoption order had been made in favour of the mother alone, or the mother and her husband:[301]
[T]hese children have three “parents” in respect of maintenance liability although only two parents in terms of legal status.
261 The ability to make maintenance orders with respect to children was repealed by section 10(1)(a) of the Family Proceedings Amendment Act 1991. However, some maintenance orders will survive by virtue of section 16(2)(i) of the Adoption Act, which states that:
where the adopted child is adopted by his mother either alone or jointly with her husband, the order or agreement shall not cease to have effect by reason of the making of the adoption order.
262 The Child Support Act creates a different regime. The Child Support Act provides in section 6(2) that:
Notwithstanding subsection (1) of this section, where –
(a) A child has been adopted under the Adoption Act 1955 or under an adoption to which section 17 of that Act applies; and
(b) That adoption order has not been discharged, –
child support may not be sought in respect of the child in relation to any period after the time at which the final adoption order became effective from any person who was a parent of the child unless that person is also a person who adopted the child.
263 Section 16(2)(i) is subject to section 6(2) of the Child Support Act.[302] The effect of this is that the continuing maintenance provisos only apply in respect of maintenance orders or agreements made prior to the commencement of the Child Support Act. As these maintenance orders and agreements expire and are replaced by child support assessments, the need for these provisos disappears. The provisos could be removed from the main text of the legislation and be placed in transitional provisions, as they are no longer relevant to most adoptions.
Should the provision relating to maintenance and affiliation orders be placed in transitional provisions in new legislation?
264 The terms of reference invite us to consider “whether an adoption order may be cancelled by an adopted person”. Section 20 provides limited justifications for discharging an adoption order. An applicant must first seek the Attorney-General’s approval before applying for the discharge of an adoption order.[303] The court may discharge an adoption order only where the order was made by mistake as to a material fact or by a material misrepresentation to the court or any other person concerned.[304]
265 An adoptee (with the permission of the Attorney-General) may seek to have the adoption order discharged. However, the Court cannot simply discharge an adoption order because there has been an irretrievable breakdown in the relationship between parent and child. In deciding whether to exercise the discretion to discharge an adoption order, the court is not required to consider the welfare of the child.
266 Where no legal ground exists to discharge an adoption order, a person may seek to have the adoption discharged by a private Act of Parliament.[305]
267 We might consider whether a discharge would be warranted in broader circumstances than the legislation currently allows. For example, in cases of severe child abuse and neglect by an adoptive parent, the adopted person may wish to sever all legal ties with the adoptive parents as a symbolic measure.
268 Just as making an adoption order entails serious legal consequences, so does discharging the adoption order. The latter process severs the adoptive family relationships and the adopted person reverts to being the child of the natural parents. It is unclear whether the natural parents would be notified of the discharge as a matter of course,[306] and there is no requirement that the court inquire whether the natural parents are willing or able to resume parental responsibility for the child. We might wish to reconsider what should occur in the event that an adoption order in respect of a child or young person is discharged.
269 When considering this option we should remember that irretrievable breakdown can occur in natural family relationships as well, and there is no ability in law to ‘divorce’ one’s birth parents. We would appreciate submissions on whether it is desirable to discharge an adoption order and if so, upon what grounds.
Should it be necessary for the Attorney-General to grant permission to enable an application for a discharge of an adoption order to be made?
Should the justifications for discharging an adoption order be extended in special circumstances?
If so, in what circumstances?
Should natural parents automatically be notified when an adoption order is discharged?
Should the court be required to request information about the suitability and willingness of the natural parents to resume the care and responsibility for the child, and should alternative care for a child be arranged before an adoption order is discharged?
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URL: http://www.nzlii.org/nz/other/nzlc/report/PP38/PP38-9_.html