Re C and the Adoption Act 2000 (NSW)

[2007] NSWSC 768

CITATION:	Re C and the Adoption Act 2000 (NSW) [2007] NSWSC 768
HEARING DATE(S):	n/a
JUDGMENT DATE :	16 July 2007
JURISDICTION:	Equity Division Adoption List
JUDGMENT OF:	Palmer J
DECISION:	Summons dismissed.
CATCHWORDS:	FAMILY LAW – ADOPTION – HAGUE CONVENTION – Adoption order made in China – order not obtained in accordance Hague Convention - whether Court has power to make a declaration of validity under the Adoption Act in respect of an adoption order made in a Convention country – whether validity of an adoption order made in contravention of Hague Convention could be recognised by declaratory order.
LEGISLATION CITED:	- Adoption Act 2000 (NSW) – s.17(1), s.108, s.116 - Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoptions – Articles 15, 16, 17, 23.
PARTIES:	Ms C – Plaintiff
FILE NUMBER(S):	SC 42/07
COUNSEL:	n/a
SOLICITORS:	n/a

42/07 Re C and the Adoption Act 2000 (NSW)

JUDGMENT
16 July, 2006

Introduction

1 The Plaintiff, to whom I will refer for reasons of anonymity as “Ms C”, was born in the People’s Republic of China. She came to Australia several years ago and is now permanently resident in this State. In February 2006 Ms C went to China and obtained an adoption order from the Chinese authorities in respect of a baby girl. Ms C has not been permitted by the Australian immigration authorities to bring the child to Australia to live with her. 2 Ms C has filed a Summons seeking a declaration that the adoption order made in her favour in China complies with s.108 of the Adoption Act 2000 (NSW). There is no other party to the Summons and it has been dealt with in Chambers. Ms C has filed a number of affidavits in support and has made written submissions.

The Facts

3    The Plaintiff says that she was born in Shanxi Province in China in 1968. She went to study in Beijing when she was seventeen and was married in 1993. 4    In July 2000, Ms C came to Australia on a student visa and commenced a course of study at the University of New South Wales. Her husband remained in China. In 2002 she and her husband were divorced. There were no children of the marriage. 5    In July 2003, Ms C obtained a permanent residency visa. She commenced employment with a bank and has apparently been very successful in her career. 6    Ms C says that in June 2005 her father, who is still resident in China, found a baby girl on the streets. He took the baby home to care for her and reported the finding to the police. Ms C says that the police asked her parents to look after the child temporarily while they searched for her biological parents. They agreed. Ms C was told about the baby a short time afterwards when she rang her parents from Sydney. Her parents asked whether she would like to adopt the child if the biological parents were not found. 7    The Plaintiff started to make enquiries about the possibility of adopting the child in China. Her parents obtained some advice from local authorities as to the procedures for adoption of a child born in China by a Chinese person resident overseas. 8    Ms C also made enquiries about the relevant procedures from the NSW Department of Community Services (“DoCS”). She made these enquiries herself and did not obtain any legal assistance although it is clear that she could have well afforded to have done so. 9    By an e-mail to DoCS dated 21 September 2005, Ms C said that the Chinese authorities had told her that she needed a number of specific documents to support her application. Ms C enquired whether she could obtain these documents from DoCS and whether DoCS would recognise an adoption order made by a Chinese provincial welfare authority. 10    By e-mail dated 26 October 2005, DoCS responded:

“The most important aspect of your current investigation is to ensure that the Department of Immigration and Multicultural Affairs (DIMIA) will grant a visa to the child that you would adopt from the Hebei Province. You will need to contact DIMIA, explain to them the visa that you have for working and residing in Australia and explain your question.

Our Department (Department of Community Services) does not have a role to play in your plans. The documents that the Hubei (sic) Province has requested from you are not documents that we issue. You say in your inquiry that the Hubei Province Welfare Authority requires evidence of your marriage status, health, criminal record and financial status from the government authority of the country of your current residence. These are not documents that we deal in. You would need to obtain these documents/evidence through other professionals (doctors, accountants, etc) or government departments (tax assessments, criminal record check through the police, etc).

It is not for our Department to recognise the adoption order. You need to make sure that DIMIA recognises the order and can provide your adopted child with a visa to stay with you for the duration of your residence in Australia.”
11    Apparently, Ms C did not make enquiries with DIMIA until 20 January 2006, when she sent an email in the following terms:

“I write to inquire about your adopted child visa.

I’m going to adopt a child in China in February/March under the scheme of the Overseas Chinese Adoption, which is regulated by the China’s Adoption Law. I currently live and work in Sydney on a permanent residency visa and hold a Chinese passport.

With regards to the adopted child visa, I did notice one of the requirements on your website, which is 'The adoption must be supported by a State or Territory adoption authority, unless the adoptive parent has been resident overseas for a period of at least 12 months at the time of the migration application, and they can demonstrate that their residence overseas was not contrived to deliberately bypass the requirements concerning entry of adopted children.’

Well, I have been living in Sydney since 2000. Thus I’m not in the category of ‘unless the adoptive parent has been resident overseas for a period of at least 12 months’. I have made inquiry to the NSW Department of Community Service (DoCS) in relation to my adoption with a view of obtaining support from them. Attached are my email inquiry dated 21.09.2005 and the reply from them dated 26.10.2005.

As you can see from the reply, DoCS considers that they do not have a role to play in my situation. In other words, I’m not able to obtain the support from the State authority, which you require for an adopted child visa. Now my query is what I should do when I need to bring my adopted child to Sydney?

The child is only 6 months old now and she is an abandoned child. I have obtained all documents from various Australian authorities which Chinese Welfare Authority have requested for processing the adoption, which will be finalised in February/March of this year when I go back to sign the documents.

At this stage, I would like to know what documents I need to prepare for bringing my adopted daughter to Sydney if the adoption is successful.”
12    It is clear from this e-mail that Ms C had already made up her mind to proceed with the adoption in China and wished to be assured the child would be permitted entry to Australia. 13    Ms C had received no response to the enquiry from DIMIA by the time she went to China on 17 February 2006. Three days after her arrival, i.e., on 20 February 2006, Ms C obtained a “adoption certificate” from the Civil Affairs Bureau of Zhangjiakou City of Hebei Province of China in respect of the child. On 16 April 2006, she came back to Australia, leaving the child with her parents. 14    Ms C then sought to obtain a visa to permit the child to enter Australia to reside permanently with her. The visa application was refused because the adoption was not recognised in Australia and did not otherwise fall into any appropriate category. DoCS explained the position fully and carefully to Ms C in a letter dated 1 June 2006, as follows:

“In reply to your enquiry about the placement of a relative or specific child from overseas with you here in New South Wales, I regret to advise that the Department of Community Services (DoCS), Adoption & Permanent Care Services does not generally assist with the placement of relative or specifically identified children who are currently living overseas.

The main purpose of adoption is to secure a placement for children whose families are not able to care for them. Adoption permanently changes a child’s legal status and severs family relationships. The care of a child by extended family members does not necessitate a change in the legal relationship of a child to his/her parents and other family members. DoCS regards adoption to be an inappropriate legal mechanism to achieve Australian permanent residence for a child and in 1998 all Australian states made an agreement that adoption would not be used in these circumstances.

The only circumstances in which adoption of a relative or specific child from overseas would be considered are when:

the child has lived with the adoptive applicants for the major portion of his/her life immediately prior to the adoption application and the child has come to regard the applicants as his/her emotional parents, and/or

when the welfare authorities in the overseas country request DoCS NSW to assess the adult relatives of the child (resident in New South Wales) with a view to the placement of the child because the welfare authorities (or a Court) have determined that it is unsafe for the child to continue to live with his/her birth family and that there are no extended family members available to care for the child in the child’s country of origin, and

the child must also be residing in a country with which we have an existing intercountry adoption arrangement and/or who is a member of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption.

If you believe that the child you wish to adopt meets the above criteria, then please provide the information listed in the attached document for consideration. You will be informed as to whether DoCS is able to proceed to further assess your request to adopt the child.

Alternatively, the child may be eligible for an Orphan Relative visa (subclass 117 or 837), which would allow them to live in Australia on a permanent basis. This visa is for a child under 18 whose parents are permanently unable to care for them and who has an Australian relative sponsor who is their brother, sister, grandparent, aunt, uncle, niece or nephew.

If your relative’s situation does not meet the criteria for this visa, another option to consider may be sponsoring the child on a Student visa.”
15 On 27 March 2007, Ms C filed a Summons seeking a declaration that the adoption order made in China complies with s.108 of the Adoption Act 2000 . Again, she has not sought legal assistance in making and pursuing this application.

Whether a declaration of validity can be made

16 Section 108 provides as follows:

“ Recognition of adoption of a child from a Convention country in that country

(1) This section applies if:

(a) an adoption (whether before or after the commencement of this section) by a person who is habitually resident in the State, of a child who is habitually resident in a Convention country, is granted in that country, and

(b) an adoption compliance certificate issued (whether before or after the commencement of this section) in the Convention country in which the adoption is granted is in force for the adoption.

(2) Subject to section 110, the adoption is recognised and effective, for the law of the State, on and from the day the certificate becomes effective.”

Section 110 is not relevant for present purposes.

17 The “Convention” referred to in s.108 is the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoptions (“the Hague Convention”). The People’s Republic of China became a “Convention country”, as defined in the Adoption Act for the purposes of s.108(1), on 1 January 2006. 18 Because the Chinese “adoption order” which Ms C obtained on 20 February 2006 was made at the time when China was a Convention country, the adoption order would be given full effect in the law of New South Wales under s.108(2) Adoption Act if the requirement of s.108(1)(b) were fulfilled, that is, if an “adoption compliance certificate” as defined in the Act had been issued in China. 19 If such a certificate had been issued by the relevant Chinese authority, the adoption would be valid in New South Wales law by force of s.108(2) without any order or declaration of validity by this Court. There is no provision in the Adoption Act for the Supreme Court to make a declaration of validity of an adoption order made in a Convention country when the requirements of s.108(1) and (2) are satisfied. Of course, in the present case the Court could make a declaration in the exercise of its general declaratory jurisdiction as to whether or not the Chinese adoption order had recognition in New South Wales law in accordance with s.108(1) if the validity of that order was an issue in contested proceedings. The validity of the order could have been determined in this way if Ms C had commenced proceedings against DIMIA seeking such a declaration. 20 As I have noted, Ms C has not joined any party to the Summons. The Court does not make declarations of right in vacuo nor does it usually make declarations where there is no real contest between the parties. For this reason, the Summons must be dismissed. 21 However, as Ms C could commence new proceedings against DIMIA for a declaration as to the validity of the Chinese adoption order under s.108 of the Adoption Act , I shall give my reasons for concluding that such proceedings would inevitably fail. I do so in the hope that unnecessary expense and distress may be avoided.


The Chinese adoption order does not comply with s.108

22 Section 108(1)(b) and (2) operate to recognise a Convention country adoption if that country issues “an adoption compliance certificate” . Ms C has filed in support of the Summons a document which does not appear on its face to be an “adoption compliance certificate” as defined in the Act. The document, in its English translation, is called “Adoption Registration Certificate”. In order to qualify as an “adoption compliance certificate” for the purposes of s.108(1)(b), the Dictionary in the Act requires the certificate to be issued in accordance with Article 23 of the Hague Convention. 23 Article 23(1) of the Hague Convention provides that the certificate must specify “when and by whom the agreements under Article 17(c) were given” . 24 Article 17(c) provides that any decision in the State of origin that a child should be entrusted to prospective parents may only be made if the Central Authorities of both the State of origin and the receiving State have agreed that the adoption may proceed. Accordingly, for the purposes of the present case, a valid “adoption compliance certificate” for the purposes of s.108 must state when each Central Authority in China and New South Wales agreed that the adoption may proceed. The “Adoption Registration Certificate” obtained by Ms C does not state this information. 25 The reason that the “Adoption Registration Certificate” does not state when New South Wales and China agreed that the adoption may proceed is that Ms C did not seek the agreement of the Central Authority in New South Wales before proceeding with her adoption application to the Chinese authorities. If she had proceeded in the proper manner, she would have first been assessed by DoCS for the purposes of preparing a report to the Chinese authorities under Article 15 of the Hague Convention. No such report was prepared and, accordingly, the Chinese adoption Central Authority was not in a position to comply with Article 16 of the Hague Convention, which requires it to determine on the basis of a report received from the NSW Central Authority, whether the envisaged adoption is in the best interests of the child. The evidence does not explain how the adoption order in favour of Ms C could have been made by the Chinese authorities in the absence of a report from DoCS as to the suitability of Ms C as an adopting parent. 26 The “Adoption Registration Certificate” and whatever orders were made by the relevant Chinese authority effecting the adoption of the child in favour of Ms C have, therefore, no validity under s.108 of the Adoption Act in order to effect recognition of the adoption by the law of New South Wales.


Other declaratory procedure under the Adoption Act

27 Ms C requests the Court, however, to make a declaration that the Chinese adoption order is valid notwithstanding that the requirements of s.108 are not satisfied. As I have already observed, this Court has no power to make such a declaration under the Adoption Act . 28    The only power under the Act which the Court has to make a declaration as to the validity of a foreign adoption is conferred by s.117(1), which is in the following terms:

“ Declarations of validity of foreign adoptions

(1) Any of the parties to an adoption under an order made outside Australia may apply to the Court for a declaration that the order complies with section 116.”

Section 116 relevantly provides:

“ Recognition of foreign adoptions in countries other than Convention countries and prescribed overseas jurisdictions

(1) This section applies to an order for the adoption of a person:

(a) that was made (whether before or after the commencement of this section) in a country other than Australia that is not a Convention countr y or a prescribed overseas jurisdiction, and

(b) if, at the time at which the legal steps that resulted in the adoption were commenced, the adoptive parent or parents:

(i) had been resident in that country for 12 months or more, or

(ii) were domiciled in that country.

(2) An order for the adoption of a person to which this section applies is to have the same effect as an adoption order made under this Act if:

(a) the adoption is in accordance with and has not been rescinded under the law of that country, and

(b) in consequence of the adoption, the adoptive parent or parents, under the law of that country, have a right superior to that of the adopted person’s birth parents in relation to the custody of the adopted person, and

(c) under the law of that country the adoptive parent or parents were, because of the adoption, placed generally in relation to the adopted person in the position of a parent or parents.

(3) Despite subsection (2), a court (including a court dealing with an application under section 117) may refuse to recognise an adoption under this section if it appears to the court that the procedure followed, or the law applied, in connection with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice.

…

(5) In any proceedings before a court (including proceedings under section 117), it is to be presumed unless the contrary appears from the evidence, that an order for the adoption of a person that was made in a country outside Australia that is not a Convention country or a prescribed overseas jurisdiction complies with subsection (1).

(6) Nothing in this section affects any right that was acquired by, or became vested in, a person before the commencement of this section.” (Emphasis added.)
29 It is clear from the terms of s.117(1) and 116(1) that in the present case the Court cannot make a declaration under s.117 that the Chinese adoption order complies with s.116 because s.116(1) does not apply to an order made in a Convention country and China was a Convention country at the time that the adoption order was made. 30 The evident policy of the Act is that in the case of the adoption of a child from a Convention country, the validity of the adoption is to be determined according to whether compliance with the requirements of the Hague Convention has been properly certified in accordance with the Convention, and not according to the provisions of domestic law. 31 For these reasons, the Court has no power to make any declaration under the provisions of the Adoption Act validating for the purposes of New South Wales law the adoption order made in Ms C’s favour by the Chinese authority on 20 February 2006. These reasons also show why Ms C would inevitably fail if she were to initiate fresh proceedings against DIMIA for a declaration under the general law that the Chinese adoption order is valid and recognised by New South Wales law. The Court would never, in the exercise of its discretion, make a declaration that an adoption order made in a Convention country was valid for the purposes of New South Wales law when the procedures for that adoption laid down in the Hague Convention had not been followed.

Order

32    The Summons is dismissed.

– oOo –