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Endnotes

[1] See Appendix A for the terms of reference.

[2] P Webb A Review of the Law on Adoption (1979).

[3] Department of Justice Adoption Act 1955: A Review by an Interdepartmental Working Party: Proposals for Discussion (Wellington, 1987).

[4] New Zealand Adoption Practices Review Committee Report to the Minister of Social Welfare (Wellington, 1990).

[5] Department of Social Welfare Review of Adoption Law: Adoption by Mäori, A Consultation Document (Social Policy Agency, Department of Social Welfare, Wellington, 1993).

[6] See Chapter 2 for a fuller discussion of these developments throughout history.

[7] J Metge New Growth from Old (Victoria University Press, Wellington 1995) 210_257; New South Wales Law Reform Commission The Aboriginal Child Placement Principle (NSWLRC R 7, Sydney, 1997).

[8] Metge, above n 7. See Chapter 12 for a discussion of whängai.

[9] Home Office and Scottish Education Department Report of the Departmental Committee on the Adoption of Children (HMSO, London, 1976) [Houghton Report]. This report was a comprehensive review of adoption law in the United Kingdom and formed the basis of the Adoption Act 1976 (UK).

[10] Above n 9, 4.

[11] See M Henaghan and W Atkin (eds) Family Law Policy in New Zealand (Oxford University Press, Oxford, 1992).

[12] See Appendix D, Table 3.

[13] Section 6 Guardianship Act 1968.

[14] VP v PM (1998) 16 FRNZ 621 (FC); Re an Application by T [1998] NZFLR 769 (HC).

[15] Cited in I Johnston "Is Adoption Outmoded?" (1985) 6 Otago LR 15, 21.

[16] See G Palmer "Birth Mothers: Adoption in New Zealand and the Social Control of Women 1881_1985" (MA Hons thesis, University of Canterbury, 1991); L Langridge "Adoption: The Birth Mother's Experience" (MA thesis, University of Auckland, 1984); R Winkler and M van Keppel Relinquishing Mothers in Adoption: Their Long-term Adjustment (Institute of Family Studies Monograph No 3, Melbourne, 1984).

[17] M Ryburn Open Adoption: Research, Theory and Practice (Avebury, Sydney, 1994) [Open Adoption].

[18] Open Adoption, above n 17, 180.

[19] Open Adoption, above n 17, 84_86.

[20] Above n 3, n 4.

[21] Statistics New Zealand New Zealand Official Yearbook on the Web 1999 (http://www.stats.govt.nz) para 6.4.

[22] See Chapter 12.

[23] K Griffith New Zealand Adoption: History and Practice (Wellington, 1998) 132. See Appendix D, Table 1. The term `stranger adoption' refers to the adoption of a child by a person who is not a relative. It does not necessarily mean that the birth parents have not met the adoptive parents.

[24] Or `existing' parents _ for example, a second adoption or IVF surrogacy.

[25] Although these facts may be obscured by a birth certificate.

[26] See Appendix B for a description of the Adoption Act and the related concepts of guardianship, care and protection, and wardship.

[27] See St Georges Healthcare NHS Trust v S, R v Collins, ex parte S [1999] Fam 26 (CA) (UK); Winnipeg Child and Family Services (Northwest Area) v G (DF) [1997] 3 SCR 1210 (SC) (Can). This does not mean that the law does not recognise any interests of an unborn child _ see R v Henderson [1990] 3 NZLR 174 (CA); In the matter of Baby P (an unborn child) [1995] NZFLR 577 (FC).

[28] For example, the rights conferred by the United Nations Convention on the Rights of the Child (UNCROC).

[29] Set out in Appendix C.

[30] New Zealand participated in the formulation of this declaration.

[31] Article 5.

[32] Article 4.

[33] Article 9.

[34] Article 13.

[35] Set out in Appendix C.

[36] Article 21(a).

[37] See Appendix B for a more detailed description of the differences.

[38] But see Chapter 12 for a discussion of Mäori succession rights.

[39] J Caldwell "Adoption: Keeping the Options Open" (1994) 1 BFLJ 86.

[40] Webb, above n 2; Department of Justice, above n 3; New Zealand Adoption Practices Review Committee, above n 4.

[41] Caldwell, above n 39, 86.

[42] See, for example, Parker v Pearce (1985) 4 NZFLR 150 (HC); MR v DSW (1986) 4 NZFLR 326 (HC); Application to adopt M [1993] NZFLR 744 (FC); Re Adoption Application 02100191 [1991] NZFLR 510 (FC).

[43] In 1998, over half of the adoption orders made were in favour of a natural parent and step-parent, relatives or friends. P Trapski (ed) Trapski's Family Law (Brookers, Wellington, 1999) V App-4(r).

[44] See Appendix B for a discussion of the differences between guardianship and adoption.

[45] See Appendix A.

[46] See reference to the Acadian legend of Sargon in JB Prichard The Ancient Near East (Oxford University Press, London, 1958) 85_86; Code of Hammurabi 2285_2242 BC; Exodus 2:1_10 c 1200 BC.

[47] WW Buckland A Manual of Roman Private Law (2 ed, Cambridge University Press, Cambridge, 1953); I Campbell A Compendium of Roman Law (Stevens & Haynes, London, 1892).

[48] Although more recently one hears such whängai arrangements being referred to as `Mäori customary adoption'.

[49] Metge, above n 7.

[50] Various Australian states and Canadian provinces enacted adoption legislation between the 1890s and 1920s. The United Kingdom did not enact adoption legislation until 1926.

[51] ID Campbell Law of Adoption in New Zealand (Butterworth & Co, Wellington, 1957) 1.

[52] (4 August 1881) 39 NZPD 281.

[53] Arani v Public Trustee [1920] AC 198, (1919) NZPCC 1 (PC).

[54] For a comprehensive history of social welfare practice in New Zealand see B Dalley Family Matters: Child Welfare in Twentieth-Century New Zealand (Auckland University Press, Auckland, 1998).

[55] M Tennant "Maternity and Morality: Homes for Single Mothers 1890_1930" (1985) 2 Women's Studies Journal 28, 39.

[56] A Else A Question of Adoption (Bridget Williams Books, Wellington, 1991) 23.

[57] C Smart "Law and the Problem of Paternity" in Stanworth (ed) Reproductive Technologies: Gender, Motherhood and Medicine (Polity Press, Cambridge, 1987) 109.

[58] Else, above n 56, 23_24.

[59] Else, above n 56, 23_24.

[60] N Collins "Adoption" (1966) 2(2) NZ Social Worker 71.

[61] Else, above n 56, 39.

[62] Cited by Else, above n 56, 44.

[63] See Else above n 56, and Dalley above n 54.

[64] Sections 8 and 26 Destitute Persons Act 1910.

[65] Sections 35, 36 and 39 Domestic Proceedings Act 1968.

[66] Sections 8(3) and 26 of the Destitute Persons Act 1910 contained a capped rate for maintenance of children. The judge could decide to award any amount below this rate as maintenance for the child. The Domestic Proceedings Act 1968 gave the judge more discretion (section 35 Domestic Proceedings Act 1968).

[67] Section 8(3) Destitute Persons Act 1910, section 29 Domestic Proceedings Act 1968.

[68] Section 38 Domestic Proceedings Act 1968.

[69] By the Social Security Amendment Act 1973.

[70] See sections 27A_31 Social Security Act 1964.

[71] C Hadfield "Adoptions 1963 to 73" (DSW Conference, Department of Social Welfare, Wellington, 1973) 23, 30.

[72] Statistics New Zealand New Zealand Official Yearbook 1998 (GP Publications, Wellington, 1998) 95.

[73] Griffith, above n 23, 133.

[74] Else, above n 56, 168_170.

[75] Form 5, Schedule, Adoption of Children Act 1895.

[76] (26 October 1955) 307 NZPD 3349 per the Hon J R Marshall.

[77] Above n 76, 3356 per Mr Warren Freer.

[78] [1995] NZFLR 817, 819 (HC).

[79] Form 3.

[80] Else, above n 56, 123.

[81] The adoptive parents have the option of being described as `adoptive parents' on the birth certificate, but this is rarely done. See section 23(d) Births, Deaths and Marriages Registration Act 1995.

[82] Although the child and the birth parent(s) may place a veto upon access to information.

[83] Studies indicate that open adoption can be a positive experience for both birth parents and adoptive parents _ see M Iwanek A Study of Open Adoption Placements (1987). Mary Iwanek is now the National Manager of the AISU. See also Open Adoption, above n 17.

[84] Open Adoption, above n 17, 16.

[85] See for example In the Guardianship of J (1983) 2 NZFLR 314 (CA); Adoption of PAT above n 78; In the Guardianship of P (1983) 2 NZFLR 289 (HC); Hamlin v Rutherford (1989) 5 NZFLR 426 (HC). See also the UK case Re O (a minor) (wardship: adopted child) [1978] Fam 196 (CA).

[86] See Chapter 15.

[87] Sections 3(3) and 16(2)(a). These provisions are still in force, although the Status of Children Act 1969 and changing societal attitudes towards illegitimacy mean that it is no longer used for this purpose.

[88] For discussion on surrogacy, see Chapter 13.

[89] Commissioner in charge of the New South Wales Law Reform Commission review of adoption law.

[90] Chisholm J "The Directions of Legislative Reform in Adoption" in Post Adoption Resource Centre (ed) Has Adoption A Future? Proceedings of the Fifth Australian Adoption Conference (NSW, 1995) 408.

[91] Article 8 UNCROC.

[92] See Palmer, above n 16; Langridge, above n 16; Winkler and van Keppel, above n 16.

[93] See Langridge, above n 16; Winkler and van Keppel, above n 16.

[94] Sections 7(4) and (7) Adoption Act.

[95] See Department of Justice, above n 3, 21; New South Wales Law Reform Commission Review of the Adoption of Children Act 1965 (NSW) (NSWLRC R81, Sydney, 1997) 140_141; Victorian Adoption Legislation Committee Report of the Adoption Legislation Review Committee (Department of Community Welfare Services, Melbourne, 1983).

[96] See NSWLRC R81, above n 95, 141.

[97] See discussion of counselling as an ancillary service, in Chapter 14, paragraphs 395_401.

[98] Children, Young Persons, and Their Families Service Local Adoptions Placements Manual (1996) 29.

[99] Of which rape is the clearest example.

[100] Else, above n 56, 14.

[101] Section 7(3)(b) Adoption Act.

[102] Compare the comments of Judge Mahony in In Guardianship of B (1986) 4 NZFLR 306, 315 (FC) with those of Judge Inglis QC in K v B [1991] NZFLR 168, 187_188 (FC).

[103] See for example Re Baby "C" [1996] NZFLR 280 (FC).

[104] See K v B above n 102.

[105] Above n 4, 28.

[106] Department of Social Welfare, above n 5, 7 and 10.

[107] Sections 20 to 38 CYP&F Act.

[108] Section 67 CYP&F Act.

[109] Above n 4, 26.

[110] Article 5.

[111] See below Chapter 13.

[112] As to adoption creating a legal fiction, see for example Adoption Application by T [1999] NZFLR 300, 306 (FC); Adoption application by T [1996] NZFLR 28, 31 (DC); Re Application by Nana [1992] NZFLR 37, 47 (FC).

[113] Section 3(1) Children Act 1989 (UK) uses the concept of parental responsibility to describe who should have authority to make decisions in relation to the child, where the child should live (residence) and whom the child should have contact with (contact).

[114] Open Adoption, above n 17; Adult Adoption Information Act 1985. Openness in adoption has been reported to help birth mothers come to terms with their loss, and may help adoptive parents to parent their adoptive children. See Palmer, above n 16; Langridge, above n 16; Winkler and van Keppel, above n 16.

[115] See discussion of the role of social workers in Appendix B.

[116] Section 6 of the Adoption Act provides that only social workers can approve the placement of a child in another household. This restriction does not apply where the child is placed in a home pursuant to a provision of the CYP&F Act, or an order under the Guardianship Act. Nor does it apply where the child is in the home of a parent and a step-parent or is in the home of a relative.

[117] Section 3 Adoption Act 1976 (UK).

[118] Section 9 Adoption Act 1976 (UK).

[119] Sections 15_22 Adoption (Intercountry) Act. The Act came into force at the beginning of 1999. As yet there is little information upon which the efficacy of such bodies can be assessed.

[120] Without the prior consent of the court.

[121] Section 25 Adoption Act.

[122] Legislation Manual (NZLC R35, Wellington, 1996) 11 para 35.

[123] Conditions cannot currently be attached to an adoption order; we consider this option later in the paper at paragraphs 251_259. If it is accepted that conditions could be attached then this would be an appropriate point for these guiding principles to be considered.

[124] NV Lowe "The Gift/Donation Model versus the Contract/Services Model _ The Changing Face of Adoption in England and Wales" in J Eekelaar and T Nhlapo (eds) The Changing Family (Hart Publishers, Oxford, 1998) 581, 582 referring to S Cretney Principles of Family Law (4th ed, Sweet & Maxwell, London, 1984) 418. See also Article 13 UN Declaration on Child Placement; and the remarks of Hardie-Boys J in DGSW v L [1990] NZFLR 125, 137 (CA).

[125] `Permanent' could encompass an application to adopt that would `regulate' the child's legal status, for example to give a co-parent a legal role in the child's life. This can give the child's place in the family a more permanent status.

[126] Article 4 UN Declaration on Child Placement.

[127] Article 21 of UNCROC states that in a system of adoption "the best interests of the child shall be the paramount consideration".

[128] See Palmer v Palmer [1961] NZLR 702 (CA).

[129] See for example In the Adoption of G (1984) 3 NZFLR 175 (FC); L v B (1982) 1 NZFLR 232 (HC).

[130] DGSW v L above n 124, 129 per Richardson J.

[131] Section 8(1)(a) Adoption Act.

[132] Section 8(1)(b) Adoption Act.

[133] Section 8(1)(a) and (b) Adoption Act.

[134] See Palmer, above n 16; Langridge, above n 16; Winkler and van Keppel, above n 16.

[135] See Open Adoption, above n 17; J Triseliotis "Identity and Genealogy in Adopted People" in Hibbs (ed) Adoption: International Perspectives (International Universities Press, Connecticut, 1991); J Triseliotis In Search of Origins: The Experiences of Adopted People (Routledge & Kegan Paul, London, 1973).

[136] M Ryburn "Openness and adoptive parents" in A Mullender (ed) Open Adoption: the philosophy and the practice (British Agencies for Adoption and Fostering, London, 1991) 65.

[137] See paragraphs 395_401.

[138] Campbell, above n 51, 175.

[139] Sections 14(2) and 15(2) Adoption Act 1976 (UK).

[140] As at 1 September 1999, Uruguay, the United Kingdom, the United States, Switzerland, Luxembourg, Italy, Ireland, Germany, Belarus, Belgium, Slovakia, Panama and Portugal had signed but not yet ratified the Convention; Mexico, Romania, Sri Lanka, Cyprus, Poland, Spain, Ecuador, Peru, Coast Rica, Burkina Faso, The Philippines, Canada, Venezuela, Finland, Sweden, Denmark, Norway, The Netherlands, France, Colombia, Australia, El Salvador, Israel, Brazil, Austria and Chile had ratified the Convention; and Andorra, Moldora, Lithuania, Paraguay, New Zealand, Mauritius, Burundi, Georgia and Monaco had acceded to the Hague Convention (http://www.hcch.net/e/status/adoshte.html).

[141] Section 17(2) Adoption Act.

[142] Section 17(2)(b) Adoption Act. The Governor-General, by Order-in-Council, has deemed the following countries to be approved Countries for the purposes of s 17(2)(c)(i) Adoption Act: Australia, Austria, Belgium, Brazil, Bolivia, Canada, China, Cook Islands, Denmark, England, Fiji, France, Ghana, Hong Kong, India, Kenya, West Malaysia, Malta, Mexico, Nauru, North Mariana Island, Papua New Guinea, Peru, Rhodesia, Romania, Russia, Republic of Georgia, Spain, Samoa (American and Western), Scotland, Saint Lucia, Sierra Leone, Singapore, South Africa, Sri Lanka, Tahiti, Tonga, Trinidad and Tobago, Tuvalu, Ukraine, United States of America, Vanuatu, Venezuela, Zimbabwe, Zambia.

[143] Section 17(2)(c)(i) Adoption Act.

[144] Section 4.

[145] Article 4.

[146] Article 5.

[147] Articles 14_22.

[148] J Couchman "Intercountry Adoption in New Zealand _ A Child Rights Perspective" (1997) 27 VUWLR 421, 431.

[149] Sections 11(3), 11(4) and 11(5) Adoption (Intercountry) Act.

[150] Above n 148, 432.

[151] An overseas adoption is an adoption made in a country that has been specified by Order-in-Council.

[152] A regulated adoption is an adoption made in accordance with the Hague Convention on Adoption (1965). This Convention governs choice of law issue relating to adoption between the United Kingdom and Austria and Switzerland.

[153] See PM North and JJ Fawcett Cheshire and North's Private International Law (12th ed, Butterworths, London, 1992) 765_766 [Cheshire and North].

[154] Section 53(2)(a) Adoption Act 1976 (UK); Cheshire and North, above n 153, 766.

[155] L Collins (ed) Dicey & Morris The Conflict of Laws (12th ed, Stevens and Sons Ltd, London, 1992) 898.

[156] [1965] Ch 831, 842.

[157] Above n 156, 843.

[158] Above n 156, 852.

[159] Renamed the Adoption (Intercountry) Bill 1997.

[160] Professor of Law, Law Faculty, Victoria University of Wellington.

[161] See Judge Mahony's comments in Re an Adoption by L and L (1984) FRNZ 144 (FC) where he remarked that where adoption is sought only to secure immigration status or citizenship the order will not be granted. See also Re Application by Nana above n 112; Re Adoption of Patel [1992] NZFLR 512 (FC); Application by Webster [1991] NZFLR 537 (FC); Adoption Application by T [1999] NZFLR 300 (FC).

[162] See Adoption Application by T above n 161, a case involving the proposed adoption of a 19-year-old Tongan man by his relatives. Judge Mather adjourned the application to allow the Immigration Service to consider accepting the young man as a permanent resident pursuant to a guardianship order. Note also that this can occur in the reverse _ Children, Young Persons, and Their Families Agency (CYPFA) has also observed its use in the context of emigration. An adoption by a step-parent for example could be used in order to gain the benefits of that step-parent's citizenship. This has occurred particularly in relation to obtaining United Kingdom or American citizenship.

[163] See cases discussed at n 161.

[164] See cases discussed at n 161.

[165] Article 5(c).

[166] See above n 124.

[167] Article 13.

[168] Where the application is made before the person turns 20 it may proceed after the person turns 20. See section 2 Adoption Act.

[169] See for example, Adoption Application by T, above n 161.

[170] 19 years _ see section 5 Child Support Act 1991.

[171] Section 72 Adoption Act 1976 (UK).

[172] Section 10 Adoption Act 1984 (Vic).

[173] Section 4 Adoption Act 1994 (WA).

[174] Section 6 Adoption of Children Act 1965 (NSW).

[175] Section 12 Adoption of Children Act 1995 (NT).

[176] Re E (1991) 7 FRNZ 530 (FC).

[177] Above n 176.

[178] Above n 176, 533.

[179] Section 3(2) Adoption Act.

[180] Section 3(3) Adoption Act.

[181] Applicants must be at least 25 years old and at least 20 years older than the child unless the applicant is a relative of the child, in which case the applicant must be 20 years old. No age restriction is applied to natural parents: section 4(1) Adoption Act.

[182] See discussion below at paragraphs 173_178.

[183] Section 4(2) Adoption Act.

[184] See the discussion on the formulations of family relationships in contemporary society, above paragraphs 9_12.

[185] Section 4(2) Adoption Act.

[186] See the debate at (22 July 1881) 40 NZPD 7.

[187] Houghton Report, above n 9, 21.

[188] Section 21(1)(a) of the Human Rights Act 1993.

[189] Section 3(1), (2) and (3) Adoption Act.

[190] The debate preceding the passage of the Adoption Bill contrasted unmarried mothers with adoptive parents. There was an unspoken presumption that adoptive parents would be a married couple (26 October 1955) 307 NZPD 3349.

[191] The 1996 Census data reveals that 8.17 percent of New Zealand families with children are headed by a de facto (opposite-sex) couple.

[192] Johnston, above n 15, 40 citing from Institute of Family Studies Paper Legal Status and Family Relationships of Children in Step-families _ the legal options (Institute of Family Studies Paper, Conference of Welfare Administrators, Alice Springs, October 1982) 16. Unfortunately, census data does not measure the rate of breakdown of second marriages / relationships.

[193] [1993] NZFLR 266 (FC).

[194] The couple deposed that they lived together in a traditional Mäori marriage. In making this ruling, Judge Boshier emphasised the couple's commitment to Mäori culture. However, the judgment did not discuss the nature of Mäori customary marriage or the status given to such marriage by law. For a discussion of Mäori customary marriage, see Law Commission Justice: The Experiences of Mäori Women Te Tikanga o te Ture: Te Mätauranga o ngä Wähine Mäori e pa ana ki tënei (NZLC R53, Wellington, 1998) 19_20.

[195] Paul and Hauraki, above n 193, 271.

[196] (1998) 17 FRNZ 349 (FC).

[197] In the matter of R (adoption) [1998] NZFLR 145, 159 (FC).

[198] See section 11 Adoption Act 1984 (Victoria); section 19(1A) Adoption of Children Act 1965 (New South Wales); section 12 Adoption Act 1988 (South Australia); section 18 Adoption Act 1993 (Australian Capital Territory).

[199] In 1996 there were 3,255 same-sex couple families of which 571 had dependent children living with them. This is of a total pool of 949,497 families living in private dwellings, as measured by the 1996 Census. See Statistics New Zealand Census 1996: Families and Households (Statistics New Zealand, Wellington, 1998) 39.

[200] See comments in the Evening Post, Thursday 5 August, 1999.

[201] HMSO Report of the Committee on Homosexual Offences and Prostitution (HMSO, London, 1957) [the Wolfenden Report].

[202] See Quilter v Attorney-General [1998] 1 NZLR 523 (CA), especially Thomas J's dissenting judgment. See also Re W (A Minor) (Homosexual Adopter) [1997] 3 WLR 768 (HC); Re AMT (Known as AC) (Petitioners for authority to adopt SR) [1997] Fam Law 225 (Sc); Fitzpatrick v Sterling Housing Association Ltd [1997] 4 All ER 991 (CA); Re K and B [1995] 125 DLR (4th) 653 (Ontario Court Provincial Division).

[203] See Law Commission Succession Law: A Succession (Adjustment) Act (1997) NZLC R39.

[204] Re an application by T, above n 14.

[205] See discussion in Appendix B for the disadvantages of guardianship as compared with adoption.

[206] S Golombok and F Tasker "Do Parents Influence the Sexual Orientation of Their Children? Findings from a Longitudinal Study of Lesbian Families" (1996) 32 Developmental Psychology 3 ["Do Parents Influence the Sexual Orientation of Their Children"]; R Green, J Mandel, J Grey and L Smith "Lesbian Mothers and Their Children: A Comparison with Solo-Parent Heterosexual Mothers and Their Children" (1986) 15 Archives of Sexual Behaviour 167.

[207] J Bailey, D Bobrow, M Wolfe and S Mikach "Sexual Orientation of Adult Sons of Gay Fathers" (1995) 31 Developmental Psychology 124.

[208] D Hamer, S Hu, V Magnuson, N Hu, A Pattatucci "A Linkage Between DNA Markers on the X Chromosome and Male Sexual Orientation" (1993) 261 Science 321; S Le Vay and D Hamer "Evidence for a Biological Influence in Male Homosexuality" [1994] Scientific American 20; C Burr A Separate Creation: How Biology Makes Us Gay (Bantam Books, London, 1997).

[209] "Do Parents Influence the Sexual Orientation of Their Children?" above n 206.

[210] It is important to note here that these children were raised in an environment where homosexuality was accepted. During this era (children born in the early 1970s) the average heterosexual family may not have been as accepting of homosexuality and this is likely to have influenced the behaviour of the children when they experienced feelings of same-gender attraction. It will be interesting to see whether studies of children born in more recent years and raised in heterosexual environments reveal a different result, given the increased public acceptance of homosexuality.

[211] For example, family discord and disruption and rearing in a single parent household carry increased risks of psychosocial disorder. See S Golombok, A Spencer and M Rutter "Children in Lesbian and Single-Parent Households: Psychosexual and Psychiatric Appraisal" (1983) 24 Journal of Child Psychology and Psychiatry 551 [Psychosexual and Psychiatric Appraisal]; F Tasker and S Golombok "Children Raised by Lesbian Mothers: The Empirical Evidence" [1991] Fam Law 184 ["Children Raised by Lesbian Mothers: The Empirical Evidence"].

[212] Golombok, Spencer and Rutter above n 211; M Gold, E Perrin, D Futterman and S Friedman "Children of Gay or Lesbian Parents" (1994) 15 Pediatrics in Review 354; F Tasker and S Golombok Growing Up in a Lesbian Family: Effects on Child Development (The Guilford Press, New York, 1997).

[213] Golombok, Spencer and Rutter, above n 206, 561; "Do Parents Influence the Sexual Orientation of Their Children", above n 206.

[214] Golombok, Spencer and Rutter, above n 206, 557; M Gold, E Perrin, D Futterman and S Friedman "Children of Gay or Lesbian Parents" (1994) 15 Paediatrics in Review 354; CJ Patterson "Children of Gay and Lesbian Parents" (1992) 63 Child Development 1025, 1033_1034; M Kirkpatrick, A Smith and R Roy "Lesbian Mothers and Their Children: A Comparative Study" (1981) 51 American Journal of Orthopsychiatry 545; M Kirkpatrick "Clinical Implications of Lesbian Mother Studies" (1987) 14 Journal of Homosexuality 210, 204.

[215] VP v PM above n 14; B v B (Minors) (Custody, Care and Control) [1991] 1 PLR 402 (HC) (UK); In the Marriage of L (1983) FLC 91_353; In the Marriage of Doyle (1992) FLC 90_286 (FC) (Aust).

[216] Growing Up in a Lesbian Family, above n 212, 89.

[217] Growing Up in a Lesbian Family, above n 212, 90.

[218] Growing Up in a Lesbian Family, above n 212, 84_85.

[219] F Tasker and S Golombok "The Role of Co-Mothers in Planned Lesbian-Led Families" (1998) 2 Journal of Lesbian Studies 49.

[220] Based on the research discussed above in paragraphs 191_196.

[221] Tasker and Golombok observe that "[e]mpirical evidence demonstrates that the mother's sexual orientation does not appear to influence the child's wellbeing. Legal decisions concerning where the child should reside ... should focus instead on the quality of parenting" in "Children Raised by Lesbian Mothers: The Empirical Evidence", above 211, 187.

[222] Above n 9, 29.

[223] Re B (a minor) [1975] Fam 127, 143 per Cumming-Bruce J (CA).

[224] Above at paragraphs 33, 86_91, Appendix B.

[225] Section 16 (2)(a) Adoption Act.

[226] Section 8 Guardianship Act.

[227] Webb et al Butterworths Family Law in New Zealand (8th ed, Wellington, 1997) 1186.

[228] If the step-parent does not think to, or decides not to, include the children of a former relationship in his or her will.

[229] Section 3(1)(d).

[230] Section 2 Family Protection Act 1955.

[231] We use the term existing parent because that parent may be a natural parent or an existing adoptive parent who has re-partnered.

[232] See section 11(2) Adoption Act 1984 (Victoria); section 15(4) Adoption of Children Act 1995 (Northern Territory); section 18(1) and (2) Adoption Act 1993 (Australian Capital Territory); section 67 Adoption Act 1994 (Western Australia).

[233] Above paragraphs 86_91, 199_204.

[234] Sections 2, 4, 5 CYP&F Act. Section 2 defines family group as:

a family group including an extended family,—

(a) In which there is at least 1 adult member—

(i) With whom the child or young person has a significant relationship; or

(ii) To whom the child or young person has a significant psychological attachment; or

(b) That is the child's or young person's whanau or other culturally recognised group.

[235] Article 5 UNCROC, see Appendix C.

[236] Above paragraph 42; paragraphs 201_202.

[237] This approach was recommended in the Houghton Report, above n 9, 30_31; NSWLRC R8, above n 95, 98_114.

[238] See Webb, above n 2, 14_16; Department of Justice, above n 3, 12; Webb et al, above n 227, paragraph 6.708.

[239] This is not to say that such cases have not occurred. Social Welfare would not record such cases as a natural parent does not have to apply to Social Welfare for permission to adopt. Court records are sealed and so we are unable to verify whether there have been any adoptions by a parent alone.

[240] See the Houghton Report, above n 9, 27_28 which reaches the same conclusion.

[241] Section 7(2)(a); 7(3)(a)(b) Adoption Act.

[242] Section 7 (3) Adoption Act.

[243] Section 7(2) and (3)(a) Adoption Act.

[244] Section 7(2) and 7(3)(a)(b) Adoption Act.

[245] Section 6(2) Guardianship Act.

[246] See C Hapgood, GS Elkind and JJ Wright "Maternity Blues and Post Partum Depression" (1988) 22 Australia and New Zealand Journal of Psychiatry 299; M Steiner "Perinatal Mood Disorders: Position Paper" (1998) 34 Psychopharmacology Bulletin 301; MG Areias, R Kumar, H Barros and E Figueiredo "Comparative Incidence of Depression in Women and Men, During Pregnancy and after Childbirth" (1996) British Journal of Psychology 169; GN Marsh (ed) Modern Obstetrics in General Practice (Oxford University Press, Oxford, 1985) 389 ff; S Kitzinger The Complete Book of Pregnancy and Childbirth (Alfred A Knopf, New York, 1996); S Pullon The New Zealand Pregnancy Book (Bridget Williams Books, Wellington, 1996).

[247] (26 October 1955) 307 NZPD 3349 per Hon J Marshall.

[248] United Kingdom. Section 18 of the Adoption Act 1976 (UK) and section 17(4) of the Adoption (Northern Ireland) Order 1987 provide that consent is invalid if given within six weeks of the birth of the child. Norway. A parent cannot give consent within two months of the birth of the child (section 7 Adoption Act 1986). Canada. Nova Scotia: Consent will not be effective if given less than 15 days after the birth of the child (section 74(4) Children and Family Services Act 1990); British Columbia: Consent can only be given 10 days after the birth of the child (section 14 Adoption Act 1996). Australia. Victoria: Consent can be given after 14 days, or less if the Court deems it in the best interests of the child (section 42(2) and (3) Adoption Act 1984); Western Australia: Consent is not effective unless it is given 28 days after the child is born (section 18(1) Adoption Act 1994); New South Wales: No adoption order can be made of a consent signed by the mother on or within three days of birth unless it is proved that the mother was in a fit condition to give consent (section 31(3) Adoption of Children Act 1965); South Australia: Consent is invalid unless given five days after the birth of the child. Between five and 14 days after the birth of the child, consent will be recognised if supporting evidence is provided (section 15(2) and (3) Adoption Act 1988); Australian Capital Territory: The general rule is that consent will be invalid if given within seven days of the birth unless there are circumstances that justify treating the consent as valid (section 34 Adoption Act 1993); Northern Territory: Consent is invalid if given within one month of the birth unless there are circumstances that justify treating the consent as valid.

[249] G Weiss "Revocation of Mother's Consent to Adoption _ Some Proposals for Reform" [1976] NZLJ 497.

[250] NSWLRC R81, above n 95, 141.

[251] J Bowlby Attachment and Loss: Volume 2. Separation: Anxiety and Anger (Penguin Books, London, originally published 1973, Reprint 1991) 76.

[252] Bowlby, above n 251, 77.

[253] Section 7(2) and (3) Adoption Act.

[254] Living together as husband and wife.

[255] Section 7(2) and (3) Adoption Act and section 6(2) Guardianship Act.

[256] Section 7(3)(b) Adoption Act.

[257] See K v B above n 102.

[258] See K v B above n 102; Application by GN (adoption) (1991) NZFLR 513 (FC); Re Adoption A9_90 (1990) 7 FRNZ 524 (FC); Re Baby "C" above n 103.

[259] K v B above n 102, 187.

[260] Adoptions to specified persons account for the majority of adoptions in New Zealand today.

[261] L v R and H [1980] 2 NZLR 765 (HC); In the Matter of A (adoption) [1998] NZFLR 964, 970 (FC). The issue of standing was again raised before the High Court, which declined to address the issue in general terms _ H and R v C above n 286.

[262] See for example In the Matter of A above n 261; B v M [1997] NZFLR 126 (FC); B v H [1996] NZFLR 390 (FC); CL v R [1993] NZFLR 351 (FC); Re an Application by H and H (1987) 4 NZFLR 389 (FC); In the adoption of G (1981) 1 NZFLR 116 (DC).

[263] Victoria: Consent can be revoked within 28 days (or 56 days in certain circumstances) of the signing of consent (section 41 Adoption Act 1984); Western Australia: Consent can be revoked up to 28 days after consent has been given (section 22 Adoption Act 1994); New South Wales: Consent may be revoked up to 30 days after the original consent was signed, or up until the day on which the adoption order is made, whichever event is the earlier (section 28 Adoption of Children Act 1965); South Australia: A parent may revoke consent up to 25 days (or 39 days with the approval of the Chief Executive of the Department for Family and Community Services) after the original consent was signed (section 15(6) Adoption Act 1984); ACT: Consent may be withdrawn within 30 days (or 44 days if notice has been given to the Registrar of the Court) of the consent being signed (section 31 Adoption Act 1993); Northern Territory: Consent may be revoked within one month of the consent being signed (section 33 Adoption of Children Act 1995).

[264] There is no provision for a parent to impose this condition if their consent has been dispensed with by the court.

[265] Metge, above n 7, 90; New Zealand Adoption Practices Review Committee, above n 4, 50.

[266] Section 11(c) Adoption Act.

[267] Department of Justice, above n 3, paragraph 4.36.

[268] Section 8(1)(b) Adoption Act; notice must be given to the birth parents.

[269] Section 8(1)(a). See, for example, In the Adoption of J [1992] NZFLR 369 (FC); Re Applications by W [1991] NZFLR 231 (FC); D-GSW v L above n 124; Whittaker v Hancox [1991] NZFLR 328 (FC); D-GSW v H (1984) 3 NZFLR 183 (FC); D-GSW v Pond (1985) 3 NZFLR 660 (FC).

[270] D-GSW v L above n 124.

[271] Section 7 Adoption Act.

[272] Section 6(2) Adoption Act.

[273] Judge Mill considered an application for an adoption order after an interim order had lapsed in H v S [1999] NZFLR 241 (FC), where the birth mother was objecting to the adoption. Judge Mill did not consider whether the consent to the new adoption application was still valid in light of the birth mother's objections to the adoption. He allowed the adoption application to proceed.

[274] This is the term for which an interim order remains in force.

[275] Section 7(10) Adoption Act.

[276] Section 7(2)(b) Adoption Act.

[277] See also paragraphs 162_165 which discuss adoption of a married person.

[278] Article 12 _ if that child is `capable of forming his or her own views', and having regard to `the age and maturity of the child'.

[279] England: section 6 UK Adoption Act 1976 places the court under a duty to promote the welfare of the child and states that the court shall "so far as is practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding". Section 9 Adoption (NI) Order 1987 also reads the same. Australia: Victoria _ section 14 Adoption Act 1984 places the court under a duty to ascertain the wishes of the child so far as that is practicable and to give due consideration to

those wishes, having regard to the age and understanding of the child. Western Australia _ section 17(1)(c)(ii) of the Adoption Act 1994 requires the consent of the child where the child to be adopted is over the age of 12. New South Wales _ the Adoption of Children Act provides in section 26(4A) that where a child is aged between 12 and 18 years of age and has been brought up and maintained by the applicants for a period of five years before the making of the application, the only appropriate person to give consent is the child. South Australia _ section 16 of the Adoption Act 1988 provides that the court may not make an adoption order in respect of a child over the age of 12, unless the child has given written consent to the adoption after counselling has taken place. Twenty five days must have elapsed since the consent was given, and the court must have interviewed the child in private and established that the child's consent is genuine and the child does not wish to revoke consent. Northern Territory _ section 10 of the Adoption of Children Act 1995 requires the court to have regard to the wishes and feelings of the child, having regard to the child's age and understanding. Section 10(2) prevents the court from making an adoption order for a child over the age of 12 years unless the child has consented to the adoption. The court may disregard the child's refusal to consent to the adoption where it is satisfied that there are special reasons relating to the welfare and interests of the child that would justify the making of the order (section 10(2)(b)). Canada: Nova Scotia _ section 74(1) of the Children and Family Services Act 1990 states that the court cannot make an adoption order in respect of a child over the age of 12 years who is of sound mind, unless that child gives his or her written consent to the adoption. Alberta _ section 56(1)(b) of the Child Welfare Act 1984 requires the consent of a child over the age of 12 before an adoption order can be made. British Columbia _ section 13 of the Adoption Act 1996 requires the consent of the child where the child is over 12 years of age. The court can dispense with the child's consent (section 17), but only where the child is not capable of giving informed consent. Furthermore, the child can revoke consent at any time before the adoption order is made (section 20).

[280] Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (HL).

[281] Section 20 Adoption Act.

[282] Section 7(8)(a) Adoption Act.

[283] Section 7(9) Adoption Act, unless the consent is given by the Director-General.

[284] Section 7(8)(a) Adoption Act.

[285] H v S (4 July 1996) unreported, Family Court, Thames Registry, Adoption 1/96; Adoption application by B (28 April 1999) unreported, Family Court, Gisborne Registry, A6/98.

[286] H and R v C [1999] NZFLR 721 (HC).

[287] In practice a final order is readily made in the first instance where there is a connection between the adopters and the child.

[288] Section 11 Adoption Act.

[289] Section 10 Adoption Act.

[290] Prospective adoptive parents may not want to begin to care for the child while there is a possibility that the birth parent may revoke consent.

[291] An example might be where the birth parent knows the adopters and is firmly resolved that the adoption take place or where there has been some trauma such as rape and the birth mother does not want involvement with the child. There may be continuing expenses with respect to the care of the child which the parent is unwilling to meet but for which the parent could be held responsible. A parent in such circumstances might be anxious to be relieved of legal responsibility. There should be provision that the birth parent reimburse the adoptive parent for expenses incurred in relation to the child if consent is later revoked.

[292] Section 13 Adoption Act.

[293] Section 13(3) Adoption Act.

[294] Above n 78.

[295] Iwanek, above n 83.

[296] Above n 4, 41_43. The Committee noted that there would be cases where a plan was not suitable _ for example, where the birth parents are dead or contact would place the child at risk. The court would have the power to dispense with the requirement for a plan in such exceptional circumstances.

[297] See paragraphs 402_405 for an explanation of the family group conference.

[298] See CMP v DGSW [1997] NZFLR 1 (HC).

[299] Similar to the procedure provided in sections 13 and 14 of the Family Proceedings Act 1980 (the `Family Proceedings Act').

[300] Sections 15 and 16 of the Guardianship Act would have to be expanded to give the court jurisdiction to hear such matters.

[301] Burrows v Whittington (1984) 3 NZFLR 340, 344 (FC); see also K v F (1983) 2 NZFLR 1, 12 (HC).

[302] Section 16(5) and (6) Adoption Act.

[303] Section 20(3) Adoption Act.

[304] Section 20(a) and (b) Adoption Act.

[305] See Thomson Adoption Discharge Act 1958, the Thomas Adoption Discharge Act 1961, the Liddle Adoption Discharge Act 1963, the Papa Adoption Discharge Act 1982.

[306] Section 20(c) requires the court to serve notice of the discharge upon every person who is bound by an affiliation order, maintenance order or agreement in respect of the child.

[307] If the gift specifies that it is to pass to "children", or where there is a Family Protection Act claim.

[308] Re O (deceased) [1975] 1 NZLR 444, 447 (SC).

[309] Reeves, Rhodes and Reeves v Public Trustee (16 July 1993) unreported, High Court, Christchurch Registry, M 658/91.

[310] Re Walker (deceased) [1973] 1 NZLR 449 (SC).

[311] Section 115 Te Ture Whenua Mäori Act 1993 (Mäori Land Act 1993)(`Te Ture Whenua Mäori Act').

[312] Section 16(2)(b) Adoption Act.

[313] Section 15(2) Marriage Act.

[314] In Re Thomson and Thomson [1958] NZLR 580, 581(HC).

[315] (1985) 3 NZFLR 714 (HC).

[316] Above n 315.

[317] Section 15(2) Marriage Act.

[318] Rhyl, Lady Jansen "Building the smallest democracy at the heart of society" (1995) 1 BFLJ 160, 160_161.

[319] Law Commission (Scotland) The Law of Incest in Scotland (Scot Law Com 69, Edinburgh, 1981) 9.

[320] (1990) 7 CRNZ 173, 174 (HC).

[321] The parties need only show that there has been an irreconcilable breakdown in the marriage and that the parties have been separated for two years before the filing of the order for dissolution (section 39 Family Proceedings Act).

[322] The court may take into account any misconduct that has had a negative effect on the value of the matrimonial property (section 15(3) Matrimonial Property Act 1976 (the `Matrimonial Property Act')) or any circumstances that render equal sharing repugnant to justice (section 14 Matrimonial Property Act).

[323] See section 19 Adoption Act. Section 3 Te Ture Whenua Mäori Act defines "whängai" as "a person adopted in accordance with tikanga Mäori".

[324] Section 19 Adoption Act.

[325] Discussed in paragraphs 312_324.

[326] See D Durie-Hall and Dame J Metge "Kua Tutu Te Puehu, Kia Mau Mäori Aspirations and Family Law" in Henaghan and Atkin, above n 11, 54_82.

[327] Above n 7, 211.

[328] Department of Social Welfare, above n 106, 7,10.

[329] Metge above n 7, 252.

[330] See HM Mead "Tamaiti Whängai: The Adopted Child: Mäori Customary Practices" (Paper delivered at the Adoption Conference, Victoria University of Wellington, 1990); F Acheson "Adoption Amongst the Mäoris of New Zealand" (1922) 4 Journal of Comparative Legislation and International Law (3rd series) 60; Metge, above n 7, 228_257.

[331] See Arani v Public Trustee above n 53, 201.

[332] As with Päkehä adoption, infertility was often a reason why a child was offered as a whängai to a relative. See paragraph 92.

[333] Tikanga can be defined as law, custom, traditional behaviour, philosophy.

[334] For this reason we have not attempted to articulate the tikanga. The Law Commission's forthcoming Mäori Custom Law paper will attempt to identify principles of tikanga in respect of a number of practices, one of which is whängai placement.

[335] Mead, above n 330, 7. See also paragraph 49 which discusses the Mäori Committee's view of adoption.

[336] Arani v Public Trustee above n 53.

[337] Section 50 Native Land Claims Adjustment and Laws Amendment Act 1901.

[338] Department of Social Welfare, above n 5, 6.

[339] Section 50 Native Land Claims Adjustment and Law Amendment Act 1901.

[340] See Appendix E.

[341] Sections 161_164. It also provides that adoption in this form has the same effect as adoption under the Infants Act 1908, but "subject to the rules of Native custom as to intestate succession to Native land": section 168.

[342] Section 161(2); Piripi v Dix [1918] NZLR 691 (SC).

[343] New Zealand Law Commission The Law of Succession _ hui notes (unpublished, 1997) 11.

[344] Section 202 Native Land Amendment Act 1931.

[345] Section 19 Adoption Act.

[346] Section 19(1).

[347] Now the District Court, or the Family Court.

[348] Above n 343, 44.

[349] It was originally assumed that Mäori custom would not allow European children to succeed to Mäori land. The Native Land Court interpreted tikanga to allow an adopted Päkehä child to succeed.

[350] Section 108(2)(e) Te Ture Whenua Mäori Act.

[351] Section 115 Te Ture Whenua Mäori Act.

[352] Section 115 Te Ture Whenua Mäori Act.

[353] Section 115(1) Te Ture Whenua Mäori Act.

[354] Section 115(2)(a) Te Ture Whenua Mäori Act.

[355] Section 115(2)(b) Te Ture Whenua Mäori Act.

[356] Section 115(3) Te Ture Whenua Mäori Act.

[357] Law Commission Draft Preliminary Paper on Mäori Succession Law (NZLC Draft, 31 January 1997) [Draft Preliminary Paper on Mäori Succession Law].

[358] Hui notes above n 343, 39 to 44.

[359] Above n 357, 144. See also Hui notes above n 343, 43.

[360] Hui notes, above n 343, 42.

[361] Hui notes, above n 343, 42, 43.

[362] Hui notes, above n 343, 42

[363] Draft Preliminary Paper on Mäori Succession Law, above n 357, 145.

[364] Above n 357, 144.

[365] Above n 357, 144.

[366] Genealogy.

[367] In re T (1998) 16 FRNZ 599.

[368] Mead, above n 330, 13.

[369] Above n 326, at 69.

[370] Wai 160, Wai 286.

[371] Mead, above n 330.

[372] See Appendix F for a discussion of procedures in other jurisdictions.

[373] The United States grants limited jurisdiction over Indian children to Indian tribal authorities.

[374] United States, Nova Scotia, Alberta.

[375] British Columbia, Victoria, South Australia, Northern Territory.

[376] See Appendix F.

[377] See paragraphs 329, 333.

[378] Section 2 Adoption Act.

[379] See paragraphs 329_332.

[380] Submission by Ngai Tahu Mäori Trust Board to Social Welfare above n 106, 30 September 1993.

[381] See paragraphs 311_316 for discussion about the difference between whängai and legal adoption.

[382] Adoption application by T, above n 112.

[383] Adoption application by T, above n 112.

[384] Adoption application by T, above n 112.

[385] Adoption application by T, above n 112.

[386] G Coppenrath La Délégation d'Autorité parentale: prélude à l'adoption en Polynésie Française (2nd ed Haere po no Tahiti 1990).

[387] New South Wales Law Reform Commission Surrogate Motherhood (NSWLRC DP18, Sydney, 1988) 9.

[388] Genesis 16: 1_16.

[389] In May 1998 NECAHR issued draft criteria for non-commercial IVF surrogacy to be considered by the provider when assisting with a surrogacy arrangement.

[390] Section 5 Status of Children Act.

[391] Section 6(2) Guardianship Act. The father must apply to the Court under section 6(3) if he wants to become a guardian.

[392] Status of Children Amendment Act.

[393] Re P [1990] NZFLR 385 (FC); In re G (3 February 1993) unreported, District Court, Invercargill Registry, Adopt 6/92.

[394] See section 5 Adoption Act for Social Workers Report, which assesses the parenting ability of the adopters, and section 11(b) which states that the welfare and best interests of the child must be promoted when the court makes an adoption order.

[395] See Department of Justice New Birth Technologies: An Issues Paper on AID, IVF, and Surrogate Motherhood (Wellington, 1985) 54; and articles in The Dominion Sunday Times (21 April 1991); The Dominion Sunday Times (2 June 1991); More (December 1990) 30; New Zealand Woman's Weekly (19 March 1990) 42; New Zealand Women's Weekly (21 May 1991) 36; New Zealand Woman's Weekly (27 May 1991) 36; New Zealand Woman's Weekly (17 May 1993) 24.

[396] For example, by applying for a step-parent adoption, or by the surrogate using the name of the commissioning mother and recording the names of the commissioning mother and father on the birth certificate as the parents of the child.

[397] Including a father who has that status via section 28 of the Human Fertilisation and Embryology Act 1990, which is similar to our Status of Children Amendment Act.

[398] M Brazier, A Campbell and S Golombok Surrogacy: Review for Health Ministers of Current Arrangements for Payments and Regulation _ Report of the Review Team (October 1998) 64 [Brazier Report].

[399] Brazier Report, above n 398.

[400] Above n 398, 60.

[401] Above n 398, 64.

[402] For example, the surrogate mother would still be the legal mother of the child and may attempt to exercise her legal rights at some future point. The same can be said for the legal father if the surrogate mother had a partner at the time of the conception and birth. The child would have no automatic rights of succession to the commissioning parents, and should the commissioning parents die the future care of the child would not be certain.

[403] For example, child abuse and sex offences.

[404] Section 26 Adoption Act.

[405] Above n 393, 386.

[406] Above n 393, 387.

[407] Contrast this with section 3 of the Adult Adoption Information Act which requires that birth parents and adopted children be informed about the availability of counselling. A request under the Act will only proceed if the applicant either attends counselling or informs the Registrar-General that he or she does not want counselling.

[408] British Columbia children over the age of 12 years must be informed about a proposed adoption and must consent to adoption.

[409] Paragraph 3.6.

[410] BA Kelly "The Role of the State and the Private Sector in the Provision of Placement and Long Term Support Adoption Services in New Zealand" (Master Social Sciences thesis, University of Waikato, 1998).

[411] A Weaver "Addressing the Psycho-Social Implications in Social Policy: The Case of Adoption and Early Intervention Strategies" (MPP Research Paper, Victoria University of Wellington, 1999) 53_61.

[412] Langridge, above n 16, 102_106; Palmer, above n 16; Winkler and van Keppel, above n 16.

[413] Above n 411.

[414] Early intervention is a strategy that recommends the early provision of services before the individual reaches a crisis point.

[415] Above n 411, 79.

[416] Above n 411, 79.

[417] Ann Weaver outlines a number of models for providing early intervention strategies to persons who need such support; see above n 411, 62_81.

[418] Above n 4.

[419] See CMP v DGSW [1997] NZFLR 1 (HC) where Elias J (as she then was) stated that it was inappropriate for the social worker to convene a family group conference against the stated wishes of the natural mother.

[420] See sections 29_36.

[421] However, many Mäori would assert that such a decision should be made as a result of whanau consultation.

[422] Sections 17, 49, 52, 56, 128 and 178 CYP&F Act.

[423] Sections 28A, 29 and 29A Guardianship Act.

[424] Sections 58, 180 CYP&F Act; section 29A(6)(b) Guardianship Act.

[425] Section 30 Guardianship Act; section 162 CYP&F Act.

[426] Section 22(3)(a) Ombudsman Act 1975 (the `Ombudsman Act').

[427] Section 22(3)(b) Ombudsman Act.

[428] Section 22(3)(c) Ombudsman Act.

[429] Section 22(3)(d) Ombudsman Act.

[430] Section 22(3)(e) Ombudsman Act.

[431] Section 22(3)(f) Ombudsman Act.

[432] See discussion in paragraphs 71_74 and Parliamentary debate on the Adult Adoption Information Act (7 August 1985) 465 NZPD 6132_6158, 6306_6309, 6701_6712.

[433] I and I v S (1986) 2 FRNZ 112, 117 (FC).

[434] See sections 5_17, 23_27, 28_33, 63_71 Births, Deaths and Marriages Registration Act.

[435] Section 2 Births, Deaths and Marriages Registration Act.

[436] Sections 63, 64 Births, Deaths and Marriages Registration Act.

[437] Age and citizenship are the two factors which are commonly used to determine entitlement to services.

[438] For example when applying for a driver's licence or passport, or when starting school or tertiary training.

[439] Roman law provides the basis for the presumption that it is always clear who the mother is "mater semper certa est". Paternity can be established by a variety of means, in this context see section 8(1)(a) Status of Children Act.

[440] "Natural" parents may or may not be the birth parent or genetic parent(s) of the child. Adoptive parents are legal parents of the child and are substituted for the natural parents in the birth certificate.

[441] The father's name frequently does not appear on the birth certificate, but may appear in the adoption files.

[442] Section 9(3)(a)(b) Adult Adoption Information Act.

[443] Section 3 Adult Adoption Information Act.

[444] Section 7 Adult Adoption Information Act.

[445] Although coverage is not prohibited for those under the age of 20, neither is it mandated.

[446] (25 October 1983) 454 NZPD 3401.

[447] Submission of the Privacy Commissioner on the Adult Adoption Information Amendment Bill, 14 April 1994.

[448] Re Adoption of S [1996] NZFLR 552 (FC).

[449] A Mikaere "Mäori Women: Caught in the Contradiction of a Colonised Reality" (1994) 1 Waikato L Rev 125.

[450] "Providers" refers to persons or organisations providing access to assisted reproductive technology.

[451] Prescribed information will be set out in regulations.

[452] Section 3 Adult Adoption Information Act.

[453] 1996 saw a slight increase in an otherwise declining rate of new vetoes _ some of these may be replacements for vetoes that had expired.

[454] W v B (1997) 16 FRNZ 479 (DC). Judge Whitehead held that the blood tie between an adopted child and a natural parent establishes a domestic relationship for the purposes of the Domestic Violence Act.

[455] New South Wales Law Reform Commission Review of the Adoption Information Act 1990 (NSWLRC R69, Sydney, 1992) 186.

[456] For example birth parents cannot lodge a veto in respect of a child adopted after 1986.

[457] 7 CCNO 224 (L J Castle).

[458] I Eagles, M Taggart and G Liddell Freedom of Information (OUP, Auckland, 1992) 529.

[459] Correspondence held on file. See also sections 9(2)(a) and 6(c) Adult Adoption Information Act respectively.

[460] These circumstances include inspection by an executor, administrator, trustee for a purpose in connection with the administration of an estate or trust, inspection by a Registrar of Marriages or marriage celebrant for the purpose of investigating forbidden marriages, by a doctor who needs the information for medical purposes, or on the order of a Family Court, District Court or High Court for the purposes of a prosecution for making a false statement or in the event of a question as to the validity or effect of any interim order or adoption order.

[461] D v Hall [1984] 1 NZLR 727, 733 (HC).

[462] Above n Re Adoption of S [1996] NZFLR 552 (FC).

[463] Based on discussions with the Ombudsman and the AISU, Social Welfare.

[464] Correspondence held on file.

[465] Section 3(1) Adoption Act.

[466] Section 3(1) Adoption Act.

[467] Section 3(2) Adoption Act.

[468] Section 3(3) Adoption Act.

[469] Section 4(1)(a) and (b) Adoption Act.

[470] Section 4(1)(c) Adoption Act.

[471] Section 4(2) Adoption Act.

[472] See definition of "child" section 2 Adoption Act; see also Re E (1991) 7 FRNZ 530 (FC).

[473] For this purpose a child is a person under the age of 15.

[474] Section 6 Adoption Act. The other legislation is the CYP&F Act and the Guardianship Act. The term "relative" does not include a person who is prohibited by reason of age or sex from adopting the child.

[475] Section 26(1) Adoption Act. The Director-General has the discretion to approve in particular cases advertisements published by a group or society caring for the welfare of children.

[476] Section 25 Adoption Act.

[477] Section 7(2)(a) Adoption Act.

[478] Section 7(4) and (7) Adoption Act.

[479] Section 7(2)(b) Adoption Act.

[480] Section 9(2) Adoption Act.

[481] Section 9(1) Adoption Act.

[482] Section 8(1)(a) Adoption Act.

[483] Section 8(1)(b) Adoption Act.

[484] Section 8(1)(c) Adoption Act. There is no corresponding provision in the Adoption Act 1976 (UK).

[485] Section 8(6) Adoption Act.

[486] Section 8(7) Adoption Act.

[487] See paragraphs 264_269 for a discussion of discharging an adoption order.

[488] See section 10 Adoption Act. Where a Mäori applicant seeks to adopt a Mäori child a community officer appointed under the Mäori Community Development Act 1962 acts in the place of the social worker.

[489] Section 10 Adoption Act.

[490] Section 11(a) Adoption Act.

[491] Section 11(b) Adoption Act.

[492] Section 11(c) Adoption Act.

[493] Section 5 Adoption Act.

[494] Section 15(2)(a) and 15(1)(b) Adoption Act.

[495] Section 15(b), (c) and (d) Adoption Act.

[496] Section 12(1) Adoption Act.

[497] Section 15(1)(c) Adoption Act.

[498] Section 5 Adoption Act.

[499] Section 13(1) and (2) Adoption Act.

[500] Section 13(3) Adoption Act.

[501] Section 16(2)(a) Adoption Act.

[502] Section 16(2)(b) Adoption Act.

[503] Section 16(1), (1a) and (1b) Adoption Act.

[504] Section 16(2)(c) Adoption Act.

[505] Section 16(2)(f) Adoption Act.

[506] Section 16(2)(h) Adoption Act.

[507] Section 16(2)(i) Adoption Act.

[508] Section 16(2)(a) and (i) Adoption Act.

[509] Section 16(2)(e) Adoption Act.

[510] Section 7 Citizenship Act.

[511] This may depend on the laws of the country of which the child was a citizen before the adoption.

[512] Subject to express provision otherwise, section 16(2)(d) Adoption Act.

[513] Unless there is express provision to the contrary.

[514] Section 20(1) Adoption Act.

[515] Section 20(3) Adoption Act.

[516] Section 20(3)(a) Adoption Act.

[517] Section 20(3)(b) Adoption Act. Section 8(7), relating to dispensation of consent, is the only other section of the Adoption Act that authorises the court to discharge an adoption order.

[518] Section 50 Native Land Claims Adjustment and Laws Amendment Act 1901 provided an optional means of registration of customary adoption, but this did not supplant customary adoption.

[519] Section 161 Native Land Act. Section 19(2) of the Adoption Act provides that these adoptions will be recognised during their subsistence.

[520] Section 162_170 Native Land Act.

[521] Section 168 Native Land Act.

[522] Section 63 Births, Deaths and Marriages Registration Act.

[523] Unless an adopted parent requests that the words `adoptive parent' appear on the face on the birth certificate _ s 23(d) Births, Deaths and Marriages Registration Act. The legal adviser to the Births, Deaths and Marriages Office suggests that this option is very rarely exercised.

[524] Section 4 Adult Adoption Information Act.

[525] Sections 4(1)(c) and 5 Adult Adoption Information Act.

[526] Section 7(1) Adult Adoption Information Act.

[527] Section 8(2)(d) Adult Adoption Information Act.

[528] Sections 8 and 9 Adult Adoption Information Act.

[529] Sections 3(2), 5(2), 6 and 7(2) Adult Adoption Information Act.

[530] Above n 461.

[531] Section 17 Adoption Act.

[532] Section 17(5) Adoption Act.

[533] This does not apply where the applicant or one of the applicants is an existing parent of the child (section 10 Adoption Act).

[534] Or an adoption order without first making an interim adoption order (section 5 Adoption Act).

[535] Section 3 Guardianship Act.

[536] Section 3 Guardianship Act.

[537] Section 7 Guardianship Act.

[538] Section 3 Guardianship Act.

[539] Section 8 Guardianship Act.

[540] Section 10(2) extends the wardship jurisdiction of the High Court to the Family Court. For a discussion of wardship, see below paragraph B42.

[541] Compare section 10 Guardianship Act with section 20 Adoption Act.

[542] Although they would continue to be liable for child support.

[543] Section 21 Guardianship Act.

[544] Section 10 Guardianship Act.

[545] Long title CYP&F Act.

[546] Section 6 CYP&F Act.

[547] Sections 20_38 CYP&F Act.

[548] Sections 178, 179, 186 and 187 CYP&F Act.

[549] Sections 159_162 CYP&F Act.

[550] Section 167 CYP&F Act.

[551] Sections 101_109 CYP&F Act.

[552] Section 110 CYP&F Act.

[553] Section 114 CYP&F Act.

[554] Berghan v Lambourn (25 February 1991) High Court, Wellington Registry, M 67/91.

* Original birth certificate.

** Onus is on the applicant to show the person is dead. This is therefore artificially low as usually applicant will not know the person's identity.

Source: Births, Deaths and Marriages, Department of Internal Affairs.

All cells in this table have been randomly rounded to base 3.

Source: Statistics New Zealand.

[1] The marital status of couples was not always able to be determined. Some people who we classified as being in a parental role and part of a couple, specified that they were non-partnered when asked about their marital status. These and other couples with inconsistent responses have been categorised as `Not able to determine' in the above table.

[555] Rules laid down in judgments of the Native Land Court by Judges Edgar and Mair; Aperahana te Kume and Hemi Erueti in certain judgments delivered in Hastings June 19, 1895. See description in [1907] 4 AJHR G5.

[556] BA Atwood "Identity and Assimilation: Changing Definitions of Tribal Power Over Children" (1999) 83 Minnesota Law Review 927, 929.

[557] Section 7 British Columbia Adoption Act 1996.

[558] Section 46(1) British Columbia Adoption Act 1996.

[559] Section 68(11) Nova Scotia Children and Family Services Act 1990.

[560] Section 62 Alberta Child Welfare Act 1984.

[561] NSWLRC R7, above n 7, 39.

[562] Section 19(1A)(c)(i) and (ii) New South Wales Adoption Act 1965.

[563] NSWLRC R7, above n 7.

[564] Aboriginal agencies are run by Aborigines, for the benefit of Aborigines, and have experience in child and family welfare matters.

[565] Section 11 Adoption Act 1988 (SA).

[566] Section 21 Adoption Act 1993 (ACT).

[567] Section 13 Adoption of Children Act 1995 (Northern Territory).

References are to paragraphs in the main text of the report unless

marked B (Appendix B); E (Appendix E) or F (Appendix F)