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Appendix B

A snapshot of adoption law

ADOPTION

B1 ADOPTION IS A LEGAL PROCESS by which the birth parents of a child

are replaced by adoptive parents. The birth parents cease to have legal responsibility for the child and adoptive parents are placed in their shoes. Original birth records are sealed and a new birth certificate is issued, as if the child was born to the adoptive parents.

B2 This appendix describes the legal processes and consequences of the Adoption Act and related legislation.

Jurisdiction

B3 Section 3 of the Adoption Act gives the Family Court/District Court the power to make adoption orders, on the application of any person, whether resident in New Zealand or not.[465]

Who may adopt a child

B4 Single persons[466] and two spouses jointly[467] are permitted to adopt. Birth parents may adopt their own children.[468] Applicants for adoption must be over 25 years of age and at least 20 years older than the child they are adopting, unless they are a relative of the child in which case they can adopt if they are over the age of 20 years.[469] No age limits apply to the adoption of a child by a birth parent.[470] A male applicant is not able to adopt a female child unless he is the father of the child or there are special circumstances which justify the adoption.[471]

Adopting a child

B5 Any person under the age of 20 years may be adopted, including a married person.[472] A child⁴⁷³  cannot be placed or kept in a home for the purposes of adoption unless a social worker has given prior approval, there is an interim adoption order in force, the child is in the home pursuant to other legislation, or the child is in the home of a relative.[474] It is an offence under the Adoption Act to publish an advertisement indicating that a child is available for adoption, that a person wishes to adopt a child or that a person or organisation is willing to make arrangements for the adoption of any child.[475] Similarly, payments or any other form of reward may not be made in consideration of an adoption or a proposed adoption without the consent of the court.[476]

Consent

B6 The birth mother and any other guardians are required to give consent to the adoption of the child.[477] A birth mother is not legally able to give consent until at least 10 days after the birth of the child.[478] Where a sole applicant applies to adopt a child, that applicant’s spouse (if there is one) must also consent.[479]

B7 Where the Director-General of Social Welfare is the guardian of the child, the parents or guardians cannot withdraw their consent once an interim order or an adoption order has been made.[480] Where the child has been placed with prospective adopters, consent cannot be withdrawn until the prospective adopters have had a reasonable opportunity to apply to adopt the child, or an application to adopt the child is pending.[481]

B8 The court may dispense with the consent of the parents or guardians if the court is satisfied that:

• the parent or guardian has abandoned, neglected, failed to maintain, persistently ill treated the child, or has failed to exercise the normal duty and care of parenthood, and that reasonable notice has been given to the parent or guardian where they can be found;[482] or

• the parent is unfit to care for the child because of physical or mental incapacity and that incapacity is likely to continue indefinitely, and that reasonable notice has been given to the parent or guardian where they can be found;[483] or a licence has been granted in respect of the child under the now repealed Adoption Act 1950 (UK).[484]

B9 Where consent has been dispensed with, the parent or guardian may apply to the High Court within one month for revocation of that order[485] and the discharge of a resulting adoption order (if the adoption order is made within one month of the dispensation of consent).[486] The provisions of section 20, which govern the variance or discharge of adoption orders, apply in connection to such a discharge.[487]

Making an adoption order

B10 Before the court can make an interim adoption order, a social worker must provide a report to the court about the application.[488] This is not required where one of the applicants is a natural or existing adoptive parent of the child.[489]

B11 When making an interim or final adoption order, the court must be satisfied that:

• the applicants are fit and proper persons to have custody and are of sufficient ability to bring up, maintain and educate the child;[490] and

• the welfare and interests of the child will be promoted by the adoption, with consideration being given to the wishes of the child having regard to the child’s age and understanding;[491] and

• any religious condition imposed by the parent or guardian is being complied with.[492]

B12 Where an application to adopt has been made, the court will usually first make an interim order.[493] An interim order has the effect of transferring custody to the adoptive parents, but does not cause the child’s name to be changed.[494] A social worker may visit the adoptive parents and child at any reasonable time, and the ability of the adoptive parents to change residence or leave the country is restricted.[495] On the application of any person the court may, in its discretion, revoke an interim order in respect of any child.[496] The interim order remains in force for 12 months unless it is sooner revoked, or an adoption order is made.[497]

B13 Where the court considers that there are special circumstances that render it desirable to make an adoption order in the first instance and all the conditions for an interim order have been complied with, the court may make an adoption order without first making an interim order.[498]

B14 Six months after an interim order is made, or after a shorter period if specified by the court, the applicants may apply for a final adoption order.[499] This will be automatically granted unless certain defined events have occurred.[500]

Effect of the adoption order

B15 Once an adoption order has been made, the adopted child is deemed to be the child of the adoptive parent, and the adoptive parent is deemed to be the parent of the child, as if the child was born to that parent in lawful wedlock.[501] The adopted child is deemed to cease to be the child of the existing parents and vice versa, except for the purposes of any enactment relating to forbidden marriages or to the crime of incest where the existing parents are the natural parents.[502] The adoption order must give the child a surname and a given name(s).[503] All family relationships are then determined in accordance with these provisions.[504] The adopted child acquires the domicile of the adoptive parents,[505] and any existing appointment as guardian of the child ceases to have effect.[506]

B16 Any affiliation or maintenance order made prior to the adoption order ceases to have effect when the adoption order is made,[507] unless the adopted child is adopted by his or her mother either alone or jointly with her husband.[508]

B17 Subject to the Citizenship Act 1977, the race, nationality and citizenship of the adopted child shall not be affected by the adoption order.[509] Section 3(2) of the Citizenship Act provides that where a New Zealand citizen adopts a child, that child is deemed to be a child of a New Zealand citizen and as such is considered to be a New Zealand citizen by descent.[510] Therefore an adoption may not deprive an adopted child of other citizenship rights.[511]

B18 Where a testator or an intestate dies prior to the making of the adoption order, the changed relationships brought about by the adoption order have no impact on the adopted child’s right to succeed.[512] Where the death occurs after an adoption order is made, for the purposes of succession the child is considered to be a member of the adoptive family.[513]

Discharging an adoption order

B19 The court in its discretion may vary or discharge an adoption order.[514] An application to discharge an adoption order can only be made with the prior approval of the Attorney-General,[515] and a discharge cannot be granted unless the adoption order was made by mistake as to a material fact or in consequence of a material misrepresentation to the court or any person concerned,[516] or the discharge is expressly authorised by any other section of the Adoption Act.[517]

Recognition of Mäori customary adoption

B20 Mäori customary adoption practices were recognised in their own right by the legal system prior to 1909.[518] After the introduction of the Native Land Act, Mäori customary adoptions ceased to have legal effect, unless they had already been registered in the Native Land Court.[519] After 1909 Mäori who wished to adopt had to do so in accordance with the provisions of the Native Land Act.[520] Statutorily defined legal consequences of adoption flowed from the making of the order.[521] Customary adoption in the traditional sense no longer had legal effect. Section 19(1) of the Adoption Act reiterates that no customary adoption made after the introduction of the Native Land Act will have any legal effect.

Birth certificates and access to information

B21 After an adoption order has been made, a new birth certificate is issued with the adoptive parents entered in the place of birth parents.[522] There is no indication on the face of the birth certificate that the child is adopted.[523] The original birth registration of an adopted person is sealed until that child turns 20 and requests access to it under the Adult Adoption Information Act.[524] Access to identifying details on the birth certificate will be restricted if the adoption occurred prior to the commencement of the Adult Adoption Information Act and the birth parent has placed a veto upon the disclosure of information.[525]

B22 Once an adopted person reaches the age of 19, that person can request the Registrar-General to have the original birth certificate endorsed to the effect that the person does not desire any contact with a particular birth parent, or both birth parents.[526] This means that the Director-General is not empowered to release identifying information about the adopted person to the birth parent.[527]

B23 In the case of adoptions for which no section 7 endorsement has been requested by the adopted person, and adoptions before the commencement of the Adult Adoption Information Act for which no veto has been placed, information that identifies an adult adopted child or a birth parent can be requested by either party.[528]

B24 Whenever a person places a restriction upon the other party’s access to identifying information, or attempts to access identifying information, the Adult Adoption Information Act provides that counselling services be offered.[529]

B25 An alternative means of obtaining information is provided by section 23(3)(b) of the Adoption Act. A person can apply to the Family Court or High Court on ‘any special ground’ to have adoption records opened. This provision is interpreted very narrowly.[530]

Overseas adoption

B26 Where a person has been adopted in any place outside New Zealand according to the law of that place and the Adoption (Intercountry) Act does not apply, New Zealand will recognise the adoption if it has certain legal consequences.[531]

B27 A different regime is applied to intercountry adoptions between countries that are signatories to the Hague Convention.[532] The Adoption (Intercountry) Act implements the Hague Convention. The Act provides a framework for the approval of organisations as accredited bodies to arrange intercountry adoption, in accordance with the provisions of the Hague Convention. The overall aim of the Hague Convention is to establish safeguards so that intercountry adoptions accord with the best interests of the child, that such adoptions only proceed when the birth parents give free and informed consent and that information about the child is collected for the child’s benefit.

The role of social workers

B28 While it is the role of the court to make an adoption order, and to judge whether the applicants are suitable persons to adopt and whether the welfare and interests of the child will be promoted by the adoption, social workers control the early stages of the process.

B29 Social workers assess persons who wish to adopt a child, and decide whether they should be placed on a register of people who are considered eligible to adopt. They then select persons to present to birth parents as prospective adopters of their child, and the birth parents choose whom they prefer; sometimes birth parents and prospective adopters will meet before making the final choice. This process is facilitated by section 6 of the Adoption Act, which gives social workers the authority to grant approval to an adoption placement.

B30 A social worker must furnish a report on most[533] adoption applications before the court can make an interim[534] adoption order. This will often be the only information upon which the court can assess the merits of the application as there is no provision in the legislation for the court to appoint counsel for the child, or to order psychological reports. At this point the child will have been in the home of the applicants for a month or more. In most cases the court will not wish to disrupt the arrangements that have been made.

RELATED LEGAL CONCEPTS

Guardianship Act 1968

What is ‘guardianship’?

B31 Guardianship is a legal term used to describe the rights and responsibilities associated with legal parenthood. A guardian has the right to custody of the child (subject to any custody order made by the court) and the right of control over the way the child is brought up.[535] Alongside these rights rest the usual responsibilities of parenthood,[536] for example, the responsibility to maintain and educate the child.

B32 ‘Testamentary’ guardians may be appointed by the parents of the child in a will.[537] Such guardians do not have automatic rights to custody of the child,[538] however, they may, at the court’s discretion, be given the responsibilities of a guardian upon the death of the child’s parent(s).

B33 Any person may apply to the court to be appointed as a sole or additional guardian, either generally, or for a specific purpose.[539] An example of an appointment for a specific purpose might be where medical treatment is required and the parents cannot or will not consent to such treatment. Alternatively, the Family or High Court may appoint itself a guardian if that is necessary to protect the best interests of the child.[540]

How is guardianship different from adoption?

B34 Guardianship differs from adoption in two main respects. Adoption creates the ‘status’ of legal parenthood, ensures permanency, and creates new rights of succession.

B35 Adoption is a legal means by which people can permanently acquire the status of parenthood. Guardianship confers certain rights and responsibilities in respect of a child, but does not have the legal effect of deeming a person to be a parent. Guardianship also provides a less permanent legal status than adoption. The court has a broader discretion to remove a guardian than to discharge an adoption order.[541] In practical terms, an adoptive parent is also a guardian and their rights as a guardian can be terminated in this manner; they still retain the legal status of a ‘parent’ but are absolved of most parental responsibilities.[542] Guardianship terminates when the child attains the age of 20 years or marries under that age.[543] There is no comparable provision in the Adoption Act; adoption creates permanent family relationships.

B36 Guardianship does not carry with it automatic rights of succession as between the guardian and the child in the same manner as adoption.

B37 Most birth parents are automatically guardians of their children. This responsibility can be removed from them by the court, on the application of a guardian or near relative or with leave of the court, where the court is satisfied that the parent is “for some grave reason unfit to be a guardian of the child or is unwilling to exercise the responsibilities of a guardian”.[544] This has the effect of removing parental rights and responsibilities from a parent, but does not deprive a birth parent the right, in law, to be recognised as that child’s parent, nor does it alter the child’s legal identity.

Children, Young Persons, and Their Families Act 1989

B38 The CYP&F Act creates a legal regime to deal with children in need of temporary or continuing care and protection, or who have committed criminal offences. The Act enshrines the principle that families play an important role in the life of the child and that they should be involved in decision-making when that child is in need of care and protection.[545] The welfare and interests of the child are the first and paramount consideration when a care and protection decision has to be made.[546]

B39 Where a child is in need of care and protection a family group conference is convened to provide a forum in which the extended family can discuss means of caring for the child and make decisions, recommendations and plans.[547] This is quite different to adoption which allows at the most, both birth parents, but often just the birth mother, to make decisions in relation to the adoption and/or placement of the child.

B40 Once a care and protection issue reaches the Family Court or Youth Court, the judge may call for social workers’ reports, medical, psychiatric and psychological reports and cultural and community reports to provide assistance.[548] A barrister or solicitor can be appointed to represent the child,[549] and the child or young person can give evidence.[550]

B41 Where the court determines that a child is in need of care and protection, the child may be placed in the custody of another person,[551] or the court may make a guardianship order appointing another person as the guardian of the child.[552] Where a guardianship order is made by the court, existing guardianship rights are suspended.[553] Where a child is in need of care and protection, guardianship or adoption, whether by family members or other persons, may be a suitable option for the child.

Wardship

B42 Wardship is a form of guardianship that allows the High Court or Family Court to become a guardian of the child, replacing existing guardians. Such a replacement may be all-encompassing, or for a specific purpose (for example, to give consent for the child to have a blood transfusion). The wardship jurisdiction is rarely exercised by the court, and when it is exercised it is usually for a specific purpose. McGechan J has stated that[554]

the guardianship or so-called wardship jurisdiction is a matter of last resort, to be used with care, and only where the interests of the child and in that sense any aspects of wider public interest so require. As examples only, it may be invoked where a child is about to be removed from the jurisdiction, or is to be hidden, or a matter of considerable physical or mental health significance is involved.