Cross Examination: Time to Adopt a New Approach – Confronting the Adoption Issue

Content Contributor, Daniel Gambitsis

New Zealand’s adoption laws are widely recognised to be ‘discriminatory and outdated’:[1] the Adoption Act 1955, and the Adult Adoption Information Act 1985, discriminate against people on multiple grounds prohibited under the New Zealand Bill of Rights Act 1990 (NZBORA).[2] Despite the veritable age of the Adoption Act and its anachronistic presence in the modern social context, successive governments have demonstrated a disappointing lack of initiative. Given the tide of opinion being overwhelmingly in favour of change, the most prudent path for this government or the next to take would be to finally amend or completely replace the current Act.

An irony of history is that when the predecessor of the current act was enacted in 1881, New Zealand was the first Commonwealth country to enact adoption legislation.[3] Alas, many years have passed since New Zealand was progressive in this area. Critics argue that both related Acts discriminate based on sexual orientation, marital status, age, sex, disability and race/ethnic origin, all prohibited grounds of discrimination as listed in s 21 of the Human Rights Act 1993.

Piecemeal Change

Previous court decisions have sought to rectify some of the failings of the current act in a piecemeal fashion, focussing on the word ‘spouse’. ‘Spouse’ is not defined under section 2 in the ‘Interpretation’ section despite the presence of other key words such as ‘adoptive parent.’[4] Yet ‘spouse’ is the key word in determining the eligibility to apply for an adoption, before consideration of whether adoption is in the child’s best interest.[5] In Re Application by AMM and KJO to adopt [2010] NZFLR 629 the High Court acknowledged that the word “spouse” in the context of when the Act was written referred to married couples as that was ‘the predominant relationship in society at that time’.[6] However the Court instead decided to interpret ‘spouse’ in the Adoption Act to encompass de facto heterosexual couples, despite considering ‘that language has [not] particularly changed since the Act was passed’ in terms of the meaning of ‘spouse’.[7] But while the meaning of ‘spouse’ was interpreted so as not to discriminate against unmarried heterosexuals, the judge specifically excluded same-sex couples from the judgment.[8] Thus the discrimination based on sexual orientation and on marital status was not altered by this judgment (e.g. partners in a civil union of either sex or de facto same-sex couples could still not adopt).

Most recently in the Central Family Court in Re Pierney and Hsieh [2015] NZFC 9404 it was held that ‘spouse’ could also include de facto same-sex couples for joint application.[9] This removed an unjust scenario where in a de facto homosexual couple only one partner could adopt and the other could only at most apply to be the child’s guardian.[10]

Although these are positive advancements, they are slow to arrive, whereas the government could save much time and money by changing the law. The fact that discriminatory provisions remain in these Acts is especially disappointing given that the Acts have been amended throughout the years, but the problematic provisions were simply left in place.

The Human Rights Review Tribunal

The Human Rights Review Tribunal is an independent judicial body overseen by the Ministry of Justice. It deals with claims of breaches of the Human Rights Act 1993, the Privacy Act 1993 and the Health and Disability Commissioner Act 1994.[11] The case Adoption Action Inc v Attorney-General [2016] NZHRRT 9 was brought by Adoption Action, a group which aims to reform the current adoption law. To decide the case, the Court used the approach established in R v Hansen [2007] NZSC 7 to determine whether Part 1A of the HRA had been breached, and summarises their approach as follows:

“…in the present case Adoption Action can only succeed in its claim if the ordinary meaning of the relevant provision infringes s 19 of the Bill of Rights and is not justifiable under s 5 and it is not reasonably possible to give to the provision a meaning consistent (or less inconsistent) with the rights and freedoms in the Bill of Rights.”[12]

Additionally, they employed the discrimination test for s 19 of NZBORA regarding the question of whether there was differential treatment on the basis of a prohibited ground of discrimination which creates a material disadvantage on that group/person.[13]

The Attorney-General argued that none of the provisions were in breach of Part 1A of the Human Rights Act 1993 because either the provisions of the Adoption Act could be interpreted to avoid discrimination, or the discrimination was a justifiable limitation as under s 5 of the Bill of Rights.[14] For example, the Crown argued that the requirement of ‘special circumstances’ is no additional hurdle for single men compared to single women, and that spouse includes all de facto and civil union couples. Should the Court find any of the provisions to breach Part 1A nevertheless, the Attorney-General argued that the Tribunal ‘ought to decline to grant declaratory relief’ regardless.[15] The impact of Adoption Action Inc is outlined via the observations below.

The Attorney-General argued that none of the provisions were in breach of Part 1A of the Human Rights Act 1993 because either the provisions of the Adoption Act could be interpreted to avoid discrimination, or the discrimination was a justifiable limitation as under s 5 of the Bill of Rights.
  1. The Crown rejected the claim that s 16(2) results in indirect racial discrimination against Maori and Pacific Islanders, not because there was no discrimination, but due to a lack of sufficient evidence.[16] This section expressly forbids ‘Adoptions according to Maori custom’. [17] Thus the Adoption Act has no recognition of Whangai adoptions. Whangai adoptions are the Maori custom of one whanau raising another whanau member’s children.[18] They are thus not a formal legal process, which may deprive the people involved of recourse to legal processes.[19]
  2. Single men are prevented from adopting a female child except under ‘special circumstances’,[20] with no corresponding requirement for females wishing to adopt. This is discrimination based on sex. The Court held that the requirement of special circumstances (s 4(2)) cannot be read as ‘best interests of the child’, therefore there is no interpretation consistent with the right to be free from discrimination based on sex. So Parliament’s intended meaning had to be preferred. [21]
  3. The Adoption Act allows the consent of the birth father when he is not married to the birth mother and not the baby’s guardian to be dispensed with (s 7), unless it is ‘expedient’ in the court’s opinion for such consent to be had. The Court held that this was similarly discriminatory on the ground of ‘sex because the birth mother’s consent by contrast can only be overridden in certain circumstances (s 7(3)(b) and s 8(1)(a)). Parliament’s intended, discriminatory meaning had to be preferred.[22]
  4. The Adoption Act prevents partners in a civil union and same-sex de facto couples from adopting, which is discrimination based on marital status and sexual orientation (the Tribunal does not discuss the case Re Pierney, which is a Family Court case).[23] The Court held that “Spouses” as it appears in s 3 of the Adoption Act cannot be interpreted to include civil union partners, opposite or same-sex, or to include same-sex partners in a de facto relationship.[24] If the Court were to do so, it would be a too “aggressive” use of s 6 of the NZBORA (that interpretation consistent with the BORA is to be preferred) and it would effectively involve the Court legislating in place of parliament.[25] As with the previous two provisions, following s 4 of NZBORA the intending meaning of parliament must be adopted.[26]
  5. There is no requirement for the consent of the unmarried partner, whether same- or opposite-sex (s 7(2)(b)), whereas the consent of the spouse of a married applicant is always necessary (s 7), which is discrimination based on marital status. Again the Court again held that it was impossible to give a meaning consistent, or less inconsistent with the right to be free from discrimination based on marital status and sexual orientation.[27]
  6. The Adoption Act allows the consent of permanently mentally disabled parents to be dispensed with because they are unfit to look after the child, whereas the consent of non-disabled parents can only be overridden in the case of dereliction.[28] This is discrimination on the ground of disability. The Law Commission noted that this provision contravenes New Zealand’s obligations under Article 2(1) of UNCROC and the Convention of the Rights of Persons with Disabilities [174/5].[29] Similarly, the Court held that the Act is discriminatory and that this section can only be given a rights-inconsistent meaning.[30]
  7. The Adoption Act requires that the applicant or joint applicants be 25 years old and 20 years older than the child to be adopted except in special circumstances (s 4(1)(a)), whereas those over 25 can adopt with no need for special circumstances. This is age-based discrimination; once more the Court held that no rights-consistent meaning could be adopted.[31]
  8. Concerning the prohibition on persons under 20 from obtaining a copy of their original birth certificate under s 4 of the Adult Adoption Information Act 1985, which is discrimination based on age, no rights-consistent meaning can be given, so Parliament’s intended, discriminatory, meaning is adopted.[32]

The declaration

The Human Rights Review Tribunal can only grant a declaration of inconsistency with the right to be free from discrimination as affirmed by s 19 of the NZBORA.[33] Although such a declaration does not affect the legality or enforcement of the Adoption Act and the Adult Information Act,[34] it sends a strong message to the legislature that the aforementioned Acts, being discriminatory on multiple counts as judged by an independent tribunal, should be revised.

The Court moreover rejected the Crown’s argument that such a declaration was an impingement on the duties of parliament, observing that parliament expressly provided for this remedy and that it was the Courts’ duty to make rights inconsistencies known.[35] Finally, the Court rejected the Crown argument that as the Ministry of Social Development did not act in a discriminatory manner despite these enactments there was no issue – this is because ‘good practice cannot make otherwise discriminatory legislation non-discriminatory’.[36] The Court then declared accordingly.[37]

To reform or remake?

These Acts should at the very least be revised in order to remove these infringements of the right to be free from discrimination. However, previous governments and the latest government have actively shut down attempts at reform, the latest being a bill sponsored by Labour MP Jacinda Ardern in 2013.[38] All the Ministers of Justice under the National government have declared that Adoption law reform is not a priority.[39] The current government has, in opting to face the Adoption Alliance in the Human Rights Review Tribunal, even expended resources in defending the current laws.[40] There has been no shortage of commentary on and criticism of the current adoption laws, which as proven by a list compiled by Adoption Action, goes back at least as far as 1979.[41] It is probably preferable that the entire Adoption Act be rewritten to reflect the substantial changes needed to law, rather than continuing to “patch it up” and leave ambiguities.

The Adoption Act 1955 in particular, but also the Adult Adoption Information Act 1985, are anachronistic documents which have by far outlived their used by date. Despite a wealth of critical commentary which has established that these enactments are discriminatory on not one ground, but on multiple grounds, the government of today and the governments of the previous decades have all actively ignored the issue. It is not a question of whether the Adoption Act and the Adult Information Act need to be changed. It is question of when, and how.

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[1] “Human Rights Commission Calls for urgent reform of New Zealand adoption laws” (March 9 2916) Human Rights Commission <https://www.hrc.co.nz/news/human-rights-commission-calls-urgent-reform-new-zealand-adoption-laws/>

[2] New Zealand Bill of Rights, s 19.

[3] Adoption Action Inc v Attorney-General [2016] NZHRRT 9 at [2].

[4] Adoption Act 1955, s 2.

[5] Stewart Dalley “Adoption law change for same-sex de facto couples” LawTalk (New Zealand, 26 February 2016).

[6] Re Application by AMM and KJO to adopt [2010] NZFLR 629 at [16].

[7] Above n 7 at [17].

[8] Above n 7 at [39].

[9] Above n 6.

[10] http://www.gaynz.com/articles/publish/2/article_17710.php

[11] “Human Rights Review Tribunal” Ministry of Justice <http://www.justice.govt.nz/tribunals/human-rights-review-tribunal>

[12] Adoption Action Inc v Attorney-General [2016] NZHRRT 9 at [57].

[13] Above n 12 at [58].

[14] At [33.3].

[15] At [33.4].

[16] At [49].

[17] Adoption Act 1955, s 19.

[18] “Whangai” Adoption Option <http://adoptionoption.org.nz/adoption/whangai/>

[19] Above n 18.

[20] Adoption Act 1955, s 4(2).

[21] Above n 13 at [97].

[22] Aboe n 13 at [128].

[23] Max Towle “Adoption law ‘outdated, discriminatory’” (9 March 2016) Radio New Zealand <http://www.radionz.co.nz/news/political/298480/adoption-law-‘outdated,-discriminatory’>

[24] Above n 13 at [158].

[25] At [158].

[26] At [158].

[27] At [172].

[28] Adoption Act 1955, s 8.

[29] Above n 13 at 174 and 175.

[30] Above n 13 at [203].

[31] Above n 13 at [237].

[32] Above n 13 at [256].

[33] Human Rights Act 1993 s 92J.

[34] Above n 34 at s 92K.

[35] Above n 13 at [266.1].

[36] Above n 13 at [270].

[37] Above n 13 at [277].

[38] Above n 24.

[39] Adoption Action “Major victory for those seeking adoption reform” (8 March 2016).

[40] Rubort Ludbrook and Annel Else (editors) “Adoption News and Views March 2016” (March 2016) Adoption Action Inc <http://adoptionaction.co.nz/wp-content/uploads/2016/04/ANV-2016-01.pdf>

[41] “Chronology of moves to reform adoption laws over the last 36 years” (March 2016) Adoption Action Inc http://adoptionaction.co.nz/wp-content/uploads/2016/04/Chronology.pdf.