When will the Government dare to reform our sixty year old laws on adoption?
by Anne Else
Adoption has been back in the news recently. In March the Human Rights Tribunal issued an important decision* on a long-running claim by Adoption Action Inc. This lobby group works to bring about reform of New Zealand’s seriously outdated adoption legislation. The goal is to arrive at updated law which enhances the rights and wellbeing of children, reflects current social attitudes and values, and accords with national and international human rights standards.
Adoption Action isn’t alone in calling for the law to be overhauled. This campaign has an incredibly long history. For at least three decades, individuals and expert groups have been trying to get the 1955 Act reformed, to bring it into line with later legislation on the care of children, and with contemporary concepts of what works best for children and families of all kinds.
Underlying the Adoption Act 1955 were two key presumptions: that adopted children and their unmarried birth mothers would be best served by a “clean break”, with no future knowledge of or contact with each other; and that this clean break was also required by adoptive parents, in order to make the adopted child fully their own, as if born to them. The Act mentions the child’s interests only once, and those interests are not paramount.
In 1978 Jonathan Hunt introduced the first Bill designed to allow adult adoptees and birth mothers to identify each other, and Fran Wilde continued his work. Two years after the Adult Adoption Information Act came into force in 1986, close to 11,000 adopted people (around one in four of those eligible) had used it, as had over 2,500 birth parents. Yet the Adoption Act itself remained unchanged.
Unlike other statutes on the care and protection of children, the Adoption Act comes under the Ministry of Justice (formerly Department of Justice), which published its first review of the Act in 1979. It was followed by a long string of reports putting forward recommendations for change. The most comprehensive re-think came in 2000 when, after consulting widely, the Law Commission produced a report called Adoption and its Alternatives. It proposed that adoption law be integrated into a Care of Children Act, and made over 100 recommendations for detailed reform.
At first, the report seemed to have made an impact. In 2002 the Associate Minister of Justice, Hon Lianne Dalziel, indicated that an Adoption Bill giving effect to the Law Commission’s recommendations would be introduced later that year. But it wasn’t. A lengthy sequence of reconsiderations, suggestions for change and promises of imminent reform followed. Regardless of which party was in power, none of this commentary led to any changes to the Act.
The 2013-14 hearings of Adoption Action’s claim revealed something surprising: back in 2006, a Bill had in fact been drafted by Parliamentary counsel, though it wasn’t clear who had asked them to do this. For reasons that have not been divulged, it was never released publicly, and never brought to the House.
By then, the United Nations and the Human Rights Commission had repeatedly noted how far out of line with human rights law our adoption statutes were. The law is inconsistent in many respects with New Zealand’s obligations under the United Nations Convention on the Rights of the Child and the Convention on the Rights of Persons with a Disability. Judges and lawyers who had to deal with the 1955 Act were regularly pointing out how outdated it was. They were well aware that the kinds of adoptions it was being called on to legitimise were more diverse than ever.
What most people still think of as “traditional” adoption (although in fact it became the norm only in the 1950s) is a married couple adopting a New Zealand baby who is unrelated to them by birth. By 2006, this type of adoption had already shrunk to well below 100 a year (and was down to 21 in 2012). This decline was in line with most other developed countries. In general, mothers “choose” stranger adoption only when they see no other option.
Instead the courts were dealing with:
• step-parent adoptions, which – in legal terms – cut off one side of the child’s birth family completely;
• adoptions by New Zealand residents of children born in a changing range of other countries, most of which had not signed up to the protective Hague Convention;
• increasing numbers of adoptions involving children born at the behest of the intending parents to a “surrogate” mother, in or out of the country. This has occurred in the wake of the passing of the Human Assisted Reproductive Technology Act 2004. In some cases the “surrogate” was also the child’s genetic mother.
The calls for reform and the UN expressions of concern continued, but the catalogue of delays, broken promises and refusals even to put adoption back on the Justice work programme (because it was “not a priority”) simply grew longer.
One reason for the inaction was obvious: any reform programme would have to cover what was believed to be the highly controversial issue of adoption by same-sex couples, either of existing children or of children created with the assistance of others.
The Homosexual Law Reform Act had been passed in 1986, but the Adoption Act specified that only “two spouses” could adopt jointly. When the Legalise Love campaign was launched in August 2011, it promoted equality in both marriage and adoption. Since same-sex couples became able to marry in 2013, if they do so they are also able to adopt jointly.
By 2011, six separate government committees and two Parliamentary Committees had recommended comprehensive reform. In July that year, Adoption Action lodged a claim with the Human Rights Tribunal under Part 1A of the Human Rights Act. This was supported by the Human Rights Commission and (on two heads of claim alleging discrimination against children on the grounds of their age) by the Children’s Commissioner.
The claim alleged that various provisions in the Adoption Act 1955 and the Adult Adoption Information Act 1985 directly discriminate in eight respects, and on six prohibited grounds. Seven of the allegations involved the grounds of sex, marital status, sexual orientation, disability and age. There was also a claim of indirect discrimination on grounds of race, alleging that Maori were particularly disadvantaged by adoption. Discrimination on all these grounds is illegal under the Human Rights Act 1993 and under the New Zealand Bill of Rights Act 1990.
Adoption Action was frank about the fact that it was bringing the claim in order to bring pressure to bear on the Government over adoption law reform. However, these human rights claims could highlight only a small proportion of the problems with the Adoption Act and the Adult Adoption Information Act. Many other important issues (such as the lack of any genuinely informed consent and the way the Act severed all legal relations with birth families) could not be addressed in terms of discrimination. While the claim did try to address the clash between Maori concepts of whakapapa and the adoption legislation, this was difficult to deal with through this process.
Over a year of mediation with the Crown was unsuccessful, and the case was heard in December 2013 and January 2014. This was a complex case involving very large numbers of disclosed documents, and Tribunal members are funded to serve only part-time. (The Tribunal is funded from Vote Courts, which is the responsibility of the Minister of Justice.) So it was not really surprising that the Tribunal took over two years to reach a decision.
The Tribunal handed down its decision on 7 March 2016. It found in favour of AAI on all the claims except indirect discrimination based on race, which was found to be not made out through lack of evidence. It issued seven declarations that provisions in the law were “inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990’, on the grounds of:
A sole male applicant wanting to adopt a female child must prove special circumstances. A sole female applicant wanting to adopt a female or male child does not have to prove special circumstances.
Marital status and gender:
Birth fathers: The consent of the birth mother is always required, regardless of her marital or relationship status, unless there is proof of circumstances such as abandonment or neglect (or she is disabled – see below). But if a birth father is not married to the mother of the child and not otherwise a guardian, his consent is not required unless the court sees it as “expedient”.
Marital status and sexual orientation:
Joint applicants: According to the 1955 Act, only “spouses” can jointly adopt a child. “Spouses” covers all married couples, and this now includes married same-sex couples. So all married couples can jointly adopt. Opposite-sex couples in a de facto relationship can jointly adopt too – because in a court case, the judges ruled that “spouses” included them if they could show they were in a long-term committed relationship.
But opposite-sex or same-sex couples in a civil union, and same-sex de facto couples, were not able to adopt jointly (although one of the partners could adopt a child as a sole applicant and the other could obtain guardianship and parenting orders). (However, in late 2015, another court decision did allow same-sex de facto couples to be defined as “spouses”.)
Sole applicants: If only one partner in a marriage applies to adopt, the consent of their partner is always required. But the consent of an unmarried partner is not required, even where the couple are living together at the time of the application.
The consent of a disabled parent or parents to the adoption of their child can be dispensed with on the grounds of that parent’s physical or mental incapacity. In other words, the court can simply decide that the disabled parent(s) will be unable to care for their child and grant an adoption order without their consent. There is no proof that this has actually happened, but the law does make it possible.
No one under 25 years can adopt unless the child is a relative or there are other special circumstances. Adopted persons have to be 20 before they can access their original birth certificate with information about their biological parents. The offspring of donors can get information when they are 18, and can apply to get it earlier, at 16 or 17. The Crown did not contest this last point, but AAI still had to make the case against it.
What happens now? The only actual “remedy” available through the Tribunal is these declarations of inconsistency. But as a result, the Minister of Justice must present a report to Parliament, bringing the declarations to the notice of MPs. The report must also contain “advice on the Government’s response to the declaration”.
The time for the Crown to appeal against the decision has now expired. This means that the Minister is required to file her report by 15 August 2016.
The Tribunal stressed how important this case was:
The points raised by Adoption Action are not technical or of little practical relevance. They go to the heart of the circumstances in which an adoption order can be made. Adoption Action has established that both in relation to the giving of consent to adoption and in the making of adoption orders, the rights of birth parents and of would-be adoptive parents are directly affected. Most importantly, the best interests of the child, [when that is] treated as the paramount consideration in the adoption context, are also directly affected.
It also made a very clear, strong statement about the urgent need for reform:
All contemporary commentators are in agreement the [Adoption} Act is now seriously out of date, reflecting as it does the values and practices of its day. Massive social changes have occurred in the 61 years since it was enacted…While several amendments have been made… these changes have been piecemeal, without a fundamental re-appraisal of its underlying assumptions and without a clear statement of the Act’s purpose and of the values and interests it is to reflect in the second millennium.
Commenting on the decision, retired Family Court judge Paul von Dadelszen says that it “delivered a resounding rebuke to the Government”:
This decision by the Human Rights Tribunal sends a clear message to the Government that it cannot delay any longer the updating of the 1955 Adoption Act. It is not now good enough for any Minister to say that there are other priorities. The Government has a number of options. It could introduce as its own legislation the bill drafted by the Green Party member, Mr Kevin Hague, currently languishing, waiting to be pulled from the ballot box. It could introduce the draft prepared by its own Ministry of Justice some 10 years ago. Or, preferably, it could start again with a new law that reflects modern expectations and which cures not only the ills identified by this important decision, but also the many other outdated aspects of the 1955 Act. But there is one option that it does not have – to do nothing.
Footnote : * This case is Adoption Action Inc v Attorney-General  NZHRRT 9
Disclosure: Anne Else is a member of Adoption Action Inc and the author of a history of post-war adoption (A Question of Adoption: Closed Stranger Adoption in New Zealand 1944-1974).