L v The Chief Executive of the Department of Child, Youth and Family Services HC Auckland M.329-sw00

[2001] NZHC 606

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M.329-SW00

UNDER the Judicature Amendments Acts of 1972 and 1977

AND the Bill of Rights Act 1990

BETWEEN [LP] and [JP]
Plaintiffs

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CHILD, YOUTH
AND FAMILY SERVICES
First Defendant

AND MARY IWANEK
Second Defendant

AND HER MAJESTY’S ATTORNEY GENERAL FOR AND ON BEHALF
OF THE DEPARTMENT OF CHILD, YOUTH AND FAMILY SERVICES
Third Defendant

Hearing: 12-15 March 2001

Counsel: Grant Illingworth, Anthony Lendrum and Michael Taggart
for the plaintiffs
Rebecca Ellis and Jason McHerron for the defendants

Judgment: 5 July 2001

JUDGMENT OF POTTER J

Solicitors:
Reeves Middleton Young, 136-138 Powderham Street, New Plymouth
Crown Law Office, DX SP 20208, Wellington

Introduction

[1] The plaintiffs [LP] and [JP], wanted to adopt a child, in particular a Thai child. In August 1996 they made application through the New Plymouth office of Child, Youth & Family Services (“the Service”). In June 1999 they were advised that the Service would not support their application for an inter-country adoption. In December 1999 the plaintiffs filed an application for judicial review of the decisions of the Service relating to their suitability for inter-country adoption.

[2] The plaintiffs claim that the Service has acted -

[a] In breach of law;

[b] Unfairly, in breach of the rules of natural justice;

[c] Unreasonably.

[3] They seek a declaration that the decision of the Service declining their application to be accepted for inter-country adoption was invalid.

[4] They also seek against the third defendant, the Attorney-General, for and on behalf of the Service -

[a] A declaration that the conduct of the defendants was in breach of the New Zealand Bill of Rights Act 1990 (“NZBORA”);

[b] Compensation in the sum of $500,000, together with interest.

Issues

[5] The issues for the Court to determine are -

[a] Whether in making the decisions relating to the plaintiffs’ suitability for inter-country adoption and in particular the decision of June 1999 not to support their application, the Service acted -

[i] In breach of law;

[ii] Unfairly in breach of the rules of natural justice; in particular whether the Service failed to provide to the plaintiffs an opportunity to be heard, and acted in respect of the plaintiffs’ application with predetermination and bias;

[iii] Unreasonably, and in breach of the plaintiffs’ legitimate expectation.

[b] Whether the defendants breached the provisions of NZBORA and in particular the provisions of s 27(1) which affirms the right to the observance of the principles of natural justice by any public authority in making a determination in respect of a person’s rights, obligations or interests protected or recognised by law.

[c] If so, whether the plaintiffs are entitled to damages.

The regulatory regime for inter-country adoptions

[6] Inter-country adoptions occur when adoptive parents from one country adopt a child from another country.

[7] Thus the law governing inter-country adoptions involves the domestic law of the jurisdiction of the adoptive parent and the domestic law of the jurisdiction of the child to be adopted.

[8] In addition there are various international instruments which may have an effect on the interpretation and application of the relevant law.

Adoption Act 1955

[9] The Adoption Act is a code governing adoptions in New Zealand -

[a] The Court may make an adoption order on the application of any person whether domiciled in New Zealand or not and in respect of any child whether domiciled in New Zealand or not.

[b] In the first instance an interim order is made by the Court followed by an adoption order, generally after 6 months, which changes the status of the adopted child who is deemed to become the child of the adoptive parents, and they to become the child’s parents.

[c] Before making an interim order or an adoption order the Court must be satisfied that the applicants are fit and proper persons to have the custody of the child and of sufficient ability to bring up, maintain and educate the child, and that the welfare and interests of the child will be promoted by the adoption.

[d] By s 6 it is unlawful for any person to place or receive or keep any child under the age of 15 years in the home of any person for the purpose of adoption, unless prior approval has been given a social worker, or an interim adoption order for the proposed adoption is for the time being in force. Breach of s 6 is an offence under the Act carrying a penalty of imprisonment, a fine or both.

[e] Section 7 of the Act requires consents to adoptions by the birth parents and/or guardians of the child. It includes detailed provisions regarding the execution and witnessing of consents.

[f] Before an interim adoption order can be made, a report from a social worker is required and the social worker must report again before the final adoption order is made. A social worker (being a social worker employed by the Service) has various rights under the Act, e.g. a right of access to the adoptive parents’ home, to enable him/her to report to the Court regarding the matters with which the Court must be concerned in relation to the adoption.

[g] Section 17 provides for recognition in New Zealand of adoptions that have taken place and are legally valid in a State specified in section 17 or named in an Order in Council made under the Act. (Thailand is so specified or named).

[10] In addition to the Act, the Adoption Regulations 1959 specify detailed requirements in respect of applicants and applications for adoption.

[11] The Act is administered by the Service through its adoption arm, the Adoption Information & Services Unit (“AS”).

Adoption Law Thailand

[12] Because the plaintiffs wanted to adopt a Thai child, the law governing adoption in Thailand was relevant.

[13] The Child Adoption Act 1979 governs adoption of children in Thailand. Section 18 of that Act provides -

“No person shall take or send any child out of the Kingdom for the purpose of its adoption, directly or indirectly, unless approval of the Minister is granted in accordance with the principles, procedures and conditions stipulated in Ministerial Regulations.”

[14] The Ministerial Regulations No 2 (BE 2523 AD 1980) issued pursuant to the Child Adoption Act 1979 provide for persons domiciled in foreign countries which have diplomatic relations with Thailand who desire to take or send children out of Thailand for the purpose of adoption, to submit an application to the Director-General in the prescribed form.

[15] Article 2 requires that the application be submitted through the Governmental Welfare Authority of the country where the applicant is domiciled. In New Zealand the recognised authority is the Service.

[16] The application submitted through the Service must be accompanied by a statement of approval from the Service that the applicant is a suitable person to adopt a child, an agreement by the Service that it will supervise the pre-adoption placement and report to the Director-General during the probationary placement period of not less than 6 months, and a Home Study Report by the Service. (The content of the Home Study Report is not defined).

[17] The principal requirements of the Act and the Regulations are set forth in a brochure issued by the Child Adoption Centre of the Department of Public Welfare in Thailand. The brochure includes the following statements -

“Prospective parents must apply through an official government social welfare office or recognised non-government agency in their country of residence.

Children who have no parents or legal guardians or who have been abandoned or committed to the care of the Department of Public Welfare of Thailand may be adopted.

The Department of Public Welfare considers only those applications that are made through an official government social welfare office in the country of residence of the prospective parents, or duly authorised non-government agency of that country.

Private allocation of children is not allowed.”

The brochure indicates that about one year from the time the Department of Public Welfare receives the application, the adoptive parents will be invited to visit Thailand to be interviewed by the Child Adoption Board and receive the child into their family for a probationary period of not less than 6 months.

Adoption (InterCountry) Act 1997

[18] This Act implements in the law of New Zealand the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention). The Adoption (Intercountry) Act and the Hague Convention govern inter-country adoptions between Contracting States. In respect of adoptions governed by the Act, the Act imposes on the Chief Executive of the Service the duties, powers and functions of a Central Authority under the Convention. As Thailand has not signed or acceded to the Hague Convention, the Act does not apply to intercountry adoptions between Thailand and New Zealand.

United Nations Convention on the Rights of the Child (“UNCROC”)

[19] UNCROC has been signed and ratified by New Zealand, and in force for New Zealand since 1993. Thailand acceded to UNCROC on 27 March 1992. Ratification and accession both entail a State’s formal expression of consent to be bound by a treaty.

[20] Accordingly, pursuant to the Treaty (Article 21) both New Zealand and Thailand are required in respect of adoptions to -

“. . . ensure that the best interests of the child shall be the paramount consideration.”

[21] Party States must ensure that the adoption of a child is authorised only by competent authorities, and are required to recognise that inter-country adoption may be considered as an alternative means of a child’s care if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.

[22] Other more general Articles in UNCROC support the fundamentals in respect of adoption set forth in Article 21, e.g. Article 3 requires that the best interests of the child shall be the primary consideration in all actions concerning children. Article 7 states that a child has the right as far as possible to know and be cared for by his or her parents. Article 8 requires that States parties respect the right of the child to preserve his/her identity including national and family relations.

[23] Unlike the Hague Convention, UNCROC has not been implemented as part of New Zealand law. Nevertheless its relevance and importance to New Zealand’s adoption law has been emphasised in a number of cases (GM v T [1996] NZFLR 817, 827; Re Adoption Application by JLH [1994] NZFLR 798, 805; T v J [2000] 2 NZLR 236). In T v J the Court referred to the commitment made by New Zealand to implement the principles of UNCROC in domestic legislation; and that while Declarations are not binding, they have moral force which requires domestic legislation to be read and interpreted, to the extent it permits, in a manner consistent with New Zealand’s international obligations under the Treaty. In that case the Court quoted from the judgment of the Court of Appeal delivered by Keith J in New Zealand Airline Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269, 289 -

“We begin with the presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand’s international obligations . . . That presumption may apply whether or not the legislation was enacted with the purpose of implementing the relevant text.”

The Hague Convention

[24] Similarly, the principles of the Hague Convention should be applied by analogy in the application in New Zealand of relevant adoption law when a non-Convention country, such as Thailand, is involved. This was the approach of the High Court in Jayamohan v Jayamohan [1995] NZFLR 913 where Blanchard J considered a provision of the Hague Convention incorporated into New Zealand law by s 4 of the Guardianship Act, where the other State concerned was Sri Lanka which had not signed or acceded to the Convention. The Court said the fact that a particular country chooses not to commit itself to an internationally accepted practice should not dictate New Zealand’s stance on such matters.

[25] The Hague Convention establishes safeguards to try to ensure that all parties to an inter-country adoption are as informed and protected as possible. The introduction to the Hague Convention states the recognition of the signatory States to ensure that inter-country adoptions are made in the best interests of the child and with respect for his or her fundamental rights; that a child should grow up in a family environment; that each state should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin; that inter-country adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her state of origin.

United Nations Declaration on Child Placement

[26] While the Declaration is not a treaty with State parties, New Zealand was a party to the preparation of the Declaration and participated in the drafting process. The moral force of the Declaration was recognised in the Law Commission’s 65th report “Adoption: Options for Reform”, NZLC pp 38 (1999) para 35, page 8.

[27] It declares that the first priority for a child is to be cared for by his or her own parents; that inter-country adoption may be considered as an alternative means of providing the child with a family when care by the child’s own parents is unavailable or inappropriate; that inter-country adoption placements should be made through competent authorities or agencies with application of appropriate safeguards; and that no inter-country adoption should be considered before it has been established that the child is legally free for adoption.

International Covenant on Civil and Political Rights

[28] Article 23 recognises -

“The right of men and women of marriageable age to marry and to found a family.”

The plaintiffs contend that the right to found a family recognised by Article 23 includes the right to adopt.

New Zealand Government policy on adoption

[29] As published by the Department of Social Welfare in 1989 and amended in 1990 this states -

“Inter-country adoption is a service for children. It recognises and upholds the rights of children by acknowledging and respecting their needs for attachments in relation to their biological family, culture, religion and country.”

Adopting a Thai Child in New Zealand

[30] Because the Adoption (Intercountry) Act 1997 does not apply to an adoption between Thailand and New Zealand, adoptive parents must rely on the provisions of the Adoption Act 1955, which means obtaining an order of the New Zealand Family Court for the adoption of the child. This necessitates the adoptive parents being able to bring the child to New Zealand through legal processes so that the final step of obtaining an adoption order under domestic law can be effected.

[31] The alternative available under s 17 of the Act (where the adoption order has been made in another country pursuant to the adoption law of that country, which can then be recognised in New Zealand), is not available in respect of Thai adoptions because Thailand does not qualify for recognition under s 17.

[32] The necessity to comply with the domestic laws of two countries which do not necessarily intermesh and reconcile, renders the process inevitably complex, and likely to involve significant time delays, frustrations, difficulties, disappointments and the risk of non-compliance with legislation.

Background Facts

[33] The following material facts are derived from the complex factual background to this matter, extending over 3 1/2 years.

[34] Mr and Mrs [P] first made inquiries about adopting a child in July 1996. Their initial contact was with Patricia Brooke, a social worker at AS in New Plymouth. While Patricia Brooke was the only AS social worker in the Service’s New Plymouth office, she worked in a team which included AS social workers in Wanganui and Palmerston North. Her immediate supervisor, Jean Cunningham, was in the Palmerston North office. She maintained close contact with, and had professional support from, the AS national office in Wellington.

[35] The plaintiffs advised that they particularly wanted to adopt a child from Thailand because they had a relative who had adopted a Thai child. They also considered that to adopt a Thai child would be an opportunity to give a child “without a home, a home”.

[36] In the initial meeting with Patricia Brooke at the end of July she provided them with the brochure published by the Child Adoption Centre in Thailand which is described in para [17].

[37] That brochure set out the process involved in inter-country adoptions of Thai children, including the advice that the Department of Public Welfare considers only applications made through official government social welfare offices in the country of residence of the respective parents; that the Child Adoption Centre on behalf of the Department examines applications made through such an agency, evaluating them on the basis of documents and reports of suitability submitted through such an official agency, and that private adoptions are not permitted.

[38] They then completed an application dated 2 August 1996. That application referred to a particular child [KB], who Thai authorities subsequently advised, was not available for adoption.

[39] The plaintiffs completed an Adoption Services Agreement with the Department for Social Welfare in respect of inter-country adoption services to be provided. Above the plaintiffs’ signatures appears this sentence -

“We realise that our application may not succeed and that if it does we may have to wait a considerable time before a placement can be arranged.”

That statement is part of the printed form and is an acknowledgement made by all adoptive parents who complete an application for adoption. It is a statement particularly relevant to inter-country adoptions involving as they do the laws and procedural requirements of two countries involved in the adoption process.

[40] Patricia Brooke engaged the assistance of Beth Nelson, Senior Advisory Officer in AS based at the national office in Wellington, who inquired of the Thai authorities about adoption of a particular child, [KB]. The response of the Department for Public Welfare dated 29 November 1996 to her letter of 30 September 1996 states -

“In consideration of the proposed adoption of [KB] by the [P] family which is a private arrangement for adoption, the Department of Public Welfare wishes to inform that in the case of the prospective adoption parents living overseas wishing to adopt a child in Thailand that have direct contact with a child’s mother, the adoption placement can not be taken place and is not permitted by the Department of Public Welfare and the Child Adoption Board. Private adoption in Thailand may be considerately approved case by case if the prospective parents have residence in Thailand and have their qualification approved as required by adoption Thai law. Kindly convey this information to Mr and Mrs [P].

This letter was made available to the [P]s by AS.

[41] The [P]s undertook the required preparations for adoptive parents. These include Police and medical checks and attendance at parenting seminars.

[42] On 29 January 1997 Patricia Brooke interviewed the plaintiffs at their home for the purpose of preparing a Home Study Report in accordance with the requirements of the Thai Government (Thai Ministerial Regulations Article 2 - refer para [16]).

[43] The report was completed on 3 March 1997 and approved the plaintiffs for inter-country adoption. It stated that it was valid for a period of 2 years (“the 1997 report”).

[44] On the same day Patricia Brooke and Jean Cunningham sent the report to the Department of Public Welfare in Bangkok confirming that the [P]s fulfilled the requirements to adopt a child under New Zealand law and that their application to adopt a child from Thailand was supported by the Service. Further that should a child be placed with Mr and Mrs [P], AS agreed to supervise the pre-adoption placement and to provide bi-monthly reports to the DPW in Bangkok as required by the Thai Regulations, until an adoption was finalised in New Zealand.

[45] The letter requested that an application form be provided through the Service in the first instance, if the Department of Public Welfare was interested in considering Mr and Mrs [P] as adoptive applicants.

[46] There was no response to that letter despite a follow-up inquiry by Patricia Brooke in June 1997, and the re-sending by Beth Nelson of a copy of the full application in December 1997. There was almost a year’s delay before Beth Nelson was advised by the New Zealand Embassy in Bangkok on 5 February 1998, that the file had been located in Thailand. It would appear that the file was “buried” in the office of the Department of Public Welfare which resulted in a disappointing and frustrating delay from the [P]s’ perspective. (Subsequently, in July 1998 the Department of Public Welfare acknowledged receipt of the December 1997 despatch).

[47] In April 1998 Mr [P] travelled to Thailand on business and himself visited the Child Adoption Centre, when he was apparently told the documents had not been received, though this was clearly not so.

[48] On his visit to Thailand in April 1998 Mr [P] met the parents of a child [N] through their employer Mr Nataporn Hongsaparabhas, a business contact of Mr [P]. [N] was 2, born December 1995. Mr Hongsaparabhas employed [N]’s parents as cook, gardener and house attendants. Mr [P] arranged that [N] and members of her family would visit the [P]s in New Zealand to view for themselves the sort of life the child might have in New Zealand as the plaintiffs’ adopted daughter. [N] arrived [in] May 1998 on a 3 months visitors’ permit.

[49] On 20 May 1998, the day [N] with her mother, grandfather, parents’ employer Mr Hongsaparabhas and an assistant arrived in New Plymouth, the [P]s contacted Patricia Brooke and arranged a meeting. Patricia Brooke made a careful file note of that meeting. The [P]s were mindful, as they stated in their affidavit sworn 15 May 2000, that approval to adopt the child had to be given by the Thai authorities acting in reliance on New Zealand documents. Patricia Brooke advised them of the need to consult a lawyer. She recorded concern as to an imbalance of power because the child’s mother spoke no English and all communication had to be through Mr Hongsaparabhas who was her employer. Her file note states -

“I tried to convey what adoption means that they will lose [N], and to [JP] and [LP] that [N] is not “in need of a family”, and that she has an intact family. However, the birth mother and her father, through Nataporn (Mr Hongsaparabhas) both said they are happy to be here and happy that [N] will have a better life. Nataporn said he had spoken with a lawyer in Thailand who had explained what they needed to do, but I explained that was when they were applying through the authorities in Thailand.”

[50] The [P]s sought the assistance of their lawyers in respect of an application to the Family Court for an interim adoption order in respect of [N] under the Adoption Act 1955. That application was filed on 28 May 1998.

[51] On 10 June 1998 Govett Quilliam (Emma Smith), acting for the [P]s, requested that the Service confirm that [N] could stay with them without it being considered that the [P]s were in breach of s 6 of the Adoption Act (refer para [9][d]).

The Service declined to give such approval for reasons subsequently advised to the Family Court. This left the [P]s in a situation where they urgently needed an interim adoption order to avoid being in breach of s 6 of the Adoption Act.

[52] On 26 June 1998 the matter came before the Family Court. Judge Somerville stated -

“I cannot at this point of time be satisfied that her welfare and interests would be promoted by the adoption. She comes from an intact family with twin sibling and there is no evidence available to me which would enable me to weigh the various alternatives, including being brought up by her own family, by wider family, or being adopted by a Thai national, all of which would need to be excluded before I would be prepared to countenance an out of country adoption.”

[53] Having indicated his views the Judge offered the plaintiffs the options of his dismissing and adjourning the interim adoption application, or refusing the adoption application totally. The plaintiffs elected the latter course. The refusal of the adoption order was to avoid a situation where they were automatically in breach of s 6 by retaining [N] in their home while the matter went to hearing of the adoption application following refusal of an interim adoption application. Their lawyer had indicated at the hearing that they were exploring applying for custody and/or guardianship of [N] as an alternative but the plaintiffs did not proceed with an application for custody or guardianship. However, [N] remained in their home.

[54] Mr and Mrs [P] said in an affidavit sworn 22 September 1998 in Care and Protection proceedings subsequently brought by the Service, that they accepted the decision of the Court to refuse an interim adoption order. They stated (para 16) -

“[N] was and is here on holiday. She must be. She has no other ability to stay in the country and we were very clear at the hearing in front of Judge Somerville that we did not want her to be in our care for the purposes of adoption. Simply because we have made an application to adopt her in due course, does not mean that she is in our care for that purpose at the moment.”

[55] Their stance is confirmed by the lawyer who acted for them on the interim adoption application, Emma Smith, who in an affidavit sworn 7 September 2000 stated (para 14) -

“I took instructions from my clients who were adamant that they did not want to be doing anything inappropriate or illegal and elected to have their Application dismissed so it could not be alleged that [N] was in their care for the purposes of adoption.”

She stated that it was her clear recollection that Mr and Mrs [P] intended to return [N] to Thailand at the conclusion of her visitor’s permit and any extension of it, so there could be no suggestion that [N] was at that time in their care and control for the purposes of adoption. She regarded her instructions at that time, i.e. from 26 June 1998, as being two-fold, to pursue the [P]s’ application for approval as suitable persons for inter-country adoption and to assist with any miscellaneous matters prior to [N]’s intended return to Thailand including attendances on the Immigration Service.

[56] [N] returned to Thailand [in] July 1998 to be present for the investiture of a relative as a monk and returned to New Zealand with Mrs [P] [in] July 1998.

[57] In the meantime, before the application for interim order was heard by the Family Court, the Service had become concerned about the continuing presence of [N] in the home of the [P]s. On 10 June 1998 Beth Nelson wrote to the New Zealand Immigration Service (Mr Mahesh Kumar) and to the New Zealand Embassy in Bangkok (Ms Jane Henaghan) under the heading “Adoption proposal relating to a Thai citizen”, advising their concerns. These communications were not made known to Mr and Mrs [P].

[58] In the letter to Immigration Ms Nelson advised that the child had been brought to New Zealand with its birth mother, maternal grandfather, and the birth parents’ employer, and that the birth mother had signed her consent to the adoption of her daughter while in New Zealand. She also advised that the Thai visitors were due to leave New Zealand the next week and intended to leave the child in New Zealand -

“. . . presumably in the home of the adoptive applicants.”

She expressed the view that without an interim adoption order or the approval of a social worker from the Service, that would be illegal. She advised that the Service would not be issuing an approval for the child to be in the home for the purposes of adoption, and that the Service would not support any visa extension for the child.

[59] In her letter to the New Zealand Embassy, Ms Nelson canvassed the possibility that the child’s birth father might approach the Embassy for assistance in relation to the giving of his consent to the adoption. Ms Nelson expressed a number of concerns in relation to the birth father’s consent and the proposed adoption generally, and requested that care be taken by Embassy representatives in the event of an approach from the father (which subsequently occurred, as reported by the Embassy).

[60] On 12 June Ms Nelson wrote to the Child Adoption Centre in Bangkok advising that the Service had received a request from the New Zealand Family Court to report on the adoption application lodged by Mr and Mrs [P] in respect of [N], setting out the background to that application including [N]’s presence in New Zealand with her birth mother and other Thai nationals, and some of the concerns of the Service about the situation. She requested an urgent independent child study report in respect of [N] from the Department of Public Welfare as the authorised body in Thailand to undertake such reporting. The response to that request came by letter from the Child Adoption Centre on 28 July 1998 (i.e. after the Court hearing), advising that the proposed adoption of [N] by the [P]s did not comply with Thai law. The letter further confirmed that the [P]s’ application through the Service sent on 12 December 1997 had been received -

“However, their adoption file had not been completed.”

This letter was not copied to the [P]s.

[61] Mrs [P] experienced some difficulty at the airport when she returned with [N] [in] July 1998. She apparently believed [N] had a current visitor’s permit, but her previous permit had expired when she left the country at the beginning of July. The visitor’s permit on [N]’s passport entered on 16 May 1998 clearly stipulates “Current for three (3) months or earlier if holder leaves New Zealand”. The Immigration computer prompted an “alert flag” which caused Immigration to make contact with the Service to check [N]’s status. Eventually a further temporary visa for 2 weeks, was issued to enable [N] to enter New Zealand with Mrs [P]. That visa was subsequently extended until 31 August, then 4 October 1998.

[62] A file note of Patricia Brooke on 22 July records a phone call from Rosemary Pitt, a social worker in Palmerston North, to advise that the Immigration authorities in Auckland had telephoned her concerning the impending arrival of Mrs [P] from Thailand that morning. Rosemary Pitt had directed the Immigration authorities to national office.

[63] At this stage Mr and Mrs [P] through their solicitors, prepared an application for custody and limited guardianship in respect of [N]. They had obtained consents of her birth parents to the application, their consents being dated 20 July 1998 and witnessed in each case by their employer Mr Hongsaparabhas. Emma Smith in her affidavit sworn 7 September 2000 explains that this step was considered because Mr and Mrs [P] were concerned about their legal status, given [N]’s mother had returned to Thailand. The application was not pursued.

[64] The episode at the airport on 22 July led the [P]s to become suspicious that the Service had views which they had not advised to Mr and Mrs [P]. Emma Smith states in her affidavit that Mr and Mrs [P] were particularly distressed because in their view they had been completely open and honest with the Service and with Immigration. They were concerned that information had been provided to the Immigration Department of which they were not aware. Emma Smith wrote to the office solicitor of the Service at New Plymouth on 23 July and when Mr Malu could not provide her with information, at his suggestion she wrote to Ms Iwaneck at national office on 28 July 1998. She did not receive a reply. This was the point at which the [P]s first became aware of Ms Iwaneck and that she had an involvement with the matter.

[65] Emma Smith filed on behalf of Mr and Mrs [P] a further application for inter-country adoption approval on or about 29 July 1998. The application was completed not on the Service’s standard application form headed “Application to Receive a Child with a view to Adoption” addressed to the Director, Department of Social Welfare, but on an application form for child adoption apparently for submission to Thai authorities. It was accompanied by a declaration made 10 July 1998, the final paragraph of which (para 15) states -

“We would be delighted to adopt any Thai child. However, we are in the process of trying to adopt a Thai child being [N] a female child born 30 December 1995. Both of her parents have consented to an adoption of her by ourselves . . .”

[66] It appears that prior to lodging this application with the Service on 29 July 1998 the [P]s had investigated lodging the application through the Thai Embassy who, as advised to Mr and Mrs [P] by their lawyer in a letter dated 30 July 1998, declined to accept it because the application is required to go through the competent authority in New Zealand, which is the Service.

[67] The [P]s completed an application dated 18 August 1998 using the standard Application to Receive a Child with a view to Adoption directed to the Director Department of Social Welfare. Although the application does not refer to [N] as the child they want to adopt, a supporting reference does. [N] was still resident with the [P]s at the time this application was made. They answered in the negative the question in the application form, “Have you previously applied to adopt?” This is possibly because of their view that the application for interim adoption order had been withdrawn on 26 July 1998, rather than refused.

[68] On 30 July 1998 Emma Smith acting for the [P]s, received advice from the Immigration Service declining a renewal of the two weeks’ permit granted on 22 July when Mrs [P] returned to New Zealand with [N], advising -

“. . . it is difficult for a reasonable person to accept that a 2 year old child can be considered to be on holiday, in such circumstances, when its parents are not present - lead me to a conclusion that the child is not a genuine visitor to New Zealand and that the child has been brought to New Zealand for the main purpose of having her remain here. Only those who are genuine visitors to New Zealand are able to secure visitor permits.”

Comment was invited within 7 days. Further submissions on behalf of the [P]s resulted in extensions of the permit to 4 October 1998.

[69] On 17 August Beth Nelson acknowledged to Emma Smith receipt of the [P]s’ second application. The letter states -

“Your letter is in relation to an existing application that Mr and Mrs [P] have made to the Department of Public Welfare (DPW) in Thailand and you request that CYPFS forward an affidavit and additional documentation in relation to an application that they have already made to the DPW. Your letter also identifies that Mr and Mrs [P] also wish to adopt [N] a Thai citizen for whom an application for an interim adoption has been refused by the New Plymouth Family Court.”

She advised that any adoption of [N] would require the approval of the Department of Public Welfare and cited from the Thai legislation that -

“No person shall take or send any child out of the Kingdom for the purpose of arranging its adoption, directly or indirectly, unless with a permit from the Minister in accordance with the principles, procedure and conditions stipulated in Ministerial Regulations.”

She reminded Mrs Smith that Mr and Mrs [P] were aware of the Thai legal requirements, having been advised in 1996 when they were proposing to adopt another Thai child. She then continued -

“[N] will need to be returned to Thailand in order for the Thai authorities to consider her best interests in relation to any adoption proposal. Until such time as the Thai authorities have had the opportunity to observe their own law and policies in relation to their citizens, CYPFS would not be supportive of any adoption proposal for this child.”

She concluded that because of the lapse of time, the documentation previously sent to the Department of Public Welfare was out of date, that a new application form and supporting documents would be required; when those had been completed, the Service would undertake a reassessment of the [P]s’ current circumstances and suitability as adoptive applicants, and the documentation would then again be sent to Thailand.

[70] The letter also confirmed that the previous application and supporting documentation had been received by the Thai authorities, but that the Department of Social Welfare had not forwarded their application form for completion by the [P]s which was the next essential step in the adoption process. Therefore the previous adoption process was incomplete.

[71] At this point a new dimension was introduced. Patricia Brooke’s file note records advice from national office of their decision to take Care and Protection proceedings in respect of [N]. Mary Iwanek, national manager Adoptions, and the second defendant, advised in her notification dated 10 August 1998 -

“Reason for notification is that there are concerns that the child is in need of care and protection and that the child is emotionally harmed. Concerns are that the needs of the caregivers for a child are undermining the child’s rights under the United Nations Convention of the Rights of the Child.”

[72] Ms Iwanek had been made aware of the situation concerning [N] when advised by Beth Nelson that [N] had been brought to New Zealand in mid-July 1998. In her affidavit sworn 29 June 2000, Ms Iwanek states that her concerns arose from a number of sources. From the investigations made by the Service it was apparent to her that the adoption would not be permissible in [N]’s case because she had an intact family and was not available for adoption at all. She was also of the clear view that the [P]s were aware that it was unlawful to keep a child in their home for the purposes of adoption -

“That seems to me to be why they applied to the Family Court for the interim adoption order. Yet once that adoption application had been refused by Judge Somerville, the [P]s continued to pursue an application to adopt [N], and kept her in their home for that purpose. (para 16)”

[73] She states that her concerns intensified in July 1998 when she was informed that Mrs [P] had returned from Thailand to New Zealand with [N]. She was further concerned by remarks of Mrs [P] to immigration officials at the airport on 22 July 1998 (reported to her by Stuart Young, a senior officer at national office) to the effect that they would get the adoption through in Thailand, that she and [N] would go back to Thailand before too long, and when reminded that the adoption must comply also with New Zealand law, that their lawyers were working on that and would get around it. Ms Iwanek formed the view that the [P]s were attempting to circumvent adoption requirements based on their actions to date and these reported remarks. She had further concerns that the [P]s were again making application to adopt [N] (their solicitor’s letter of 29 July 1998 enclosing application and declaration), and at the same time seeking to extend [N]’s visitor’s permit in the face of clear advice from Immigration that [N] did not qualify as a visitor. Against this background she was cynical of a claim made by the [P]s’ lawyer in a letter to Immigration dated 10 August 1998 that their clients were very cautious to ensure that the child was not in their care for the purposes of adoption following their unsuccessful application for an interim adoption order. She states -

“It seemed to me to be rather clear that [N] was indeed being kept by the [P]s in their home in a way which they thought would assist their adoption application.” (para 21)

[74] Mrs [P] takes issue with the discussion at the airport as reported by Stuart Young of national office to Ms Iwanek. Mrs [P] in her affidavit sworn 5 September 2000 says the correct position is that she told the immigration officer that -

“The lawyers were working on it.”

She referred, she says, to lawyers in both New Zealand and Thailand.

[75] Ms Iwanek was concerned that there was evidence of an intention to take [N] back and forth between New Zealand and Thailand to sustain her residency in New Zealand under visitors’ permits. In a letter of 28 July 1998 to the New Zealand Immigration Service Emma Smith, representing Mr and Mrs [P], sought to extend the “sponsorship” of [N] which was described as currently being for a 2 week period.

[76] Ms Iwanek’s concerns were not for the immediate physical care of [N] but for the harm associated with long separation from her family in a foreign country against a background where there was no evidence that her parents were unable to care for [N], nor evidence that she was better off with the [P]s in New Zealand than with her family at home in Thailand. She was concerned that the [P]s’ need for a child was undermining [N]’s rights.

[77] While Ms Iwanek accepted responsibility for initiating the notification under s 15 of the Children Young Persons & Their Families Act 1989 (“the CYPF Act”) she states that she was not actively involved in the Care and Protection investigation. It was her belief that [N] needed to be restored to the permanent care of her biological family in Thailand to minimise the interruption to her bonding with them. It was accordingly necessary to involve the Care and Protection division of the Service whose powers would, if necessary, enable them to obtain orders from the Family Court to restore [N] to her family in Thailand.

[78] On 26 August 1998 Lael Sharland with her colleague Francis Farmer visited Mr and Mrs [P] and recorded in a file note details of their visit which she described as being for the purpose of gathering information to help ascertain whether [N] was being emotionally harmed by the [P]s’ actions. The notification received from Ms Iwanek was treated as “low urgency” because there was no allegation of abuse or neglect and it was clear that [N] was safe with the [P]s. The element of concern was that she was being alienated from her family, culture and religion which had the potential to impact on her well-being.

[79] Ms Sharland’s affidavit sworn 29 June 2000 in these proceedings, records the following advice received from the [P]s during that visit, as recorded in a file note prepared by Francis Farmer -

• The [P]s told us that although [N]’s visa was due to expire on 31 August, they would not be able to take her back to Thailand then because of work commitments.

• [N]’s parents had asked the [P]s to look after [N] until she was old enough to make her own decisions and decide where she wanted to live.

• The [P]s had a lawyer in Thailand who told them that adoption was a mere formality and they would have no problem adopting a Thai baby.

• The [P]s said they wanted to adopt [N]’s twin siblings as well.

• [LP] was adamant that adoption should have been a simple procedure and that the Department was blocking it and holding everything up.

• [LP] did not accept that there was any reason why [N] should not stay in New Zealand with the [P]s until she was a teenager and then she could decide whether she wanted to go back to Thailand.

• [N]’s parents had offered to have another baby for the [P]s to adopt if the adoption of [N] did not work out.

• The [P]s said that parents should have the right to say what would happen to their children and it had nothing to do with anything or anyone else, so if [N]’s parents wanted the [P]s to adopt [N], it should be solely their decision.

• The [P]s did not believe [N] would be returning to Thailand permanently.

• The [P]s thought that the Department was incompetent and delaying the inevitable.

[80] Ms Sharland after consultation with a Care and Protection social work supervisor, determined that [N] was in need of care and protection and that the Service should take steps to ensure that [N] was returned to her family in Thailand. She states -

“We reached this conclusion easily, as it was clear that the correct adoption process had not been followed by the [P]s and [N] had an intact family in Thailand.” (para 7)

[81] Following a telephone conference on 11 September 1998 between a number of parties including Mary Iwanek, Tasi Malu (office solicitor, New Plymouth) and Beth Nelson, it was decided to advise the [P]s on the next scheduled home visit on 14 September that the result of the Care and Protection investigation was that the Service would apply to the Court for various orders, including for the custody of [N], pending determination of the Service’s application for a declaration that [N] was in need of care and protection.

[82] On the visit on 14 September 1998, Ms Sharland was accompanied by senior social worker Ngaio McCulloch. The [P]s were advised of the proposed applications by the Service and the reasons for them - that the Service needed to return [N] to Thailand because she was not available for adoption. A formal assessment was completed by Ms Sharland and the relevant applications were filed in the Family Court on 14 September 1998. They sought a declaration that [N] was in need of care and protection; that [N] be placed in the interim custody of the Director-General of Social Welfare; for the surrender to the Court of [N]’s travel documents, especially her passport; for an order restricting reporting; for the appointment of counsel for the child. The applications relating to travel documents and reporting were granted ex parte by Judge Frater on 15 September 1998.

[83] The [P]s opposed the Service’s applications for the declaration that [N] was in need of care and protection and for interim custody, stating it was clear [N] had to return to Thailand before 4 October 1998 (when her visa expired) and that it was their intention to return her, so to that extent the Service’s application was redundant. They further stated -

“[N] is here on an extended holiday . . . [N] is not in our care for the immediate purpose of adoption . . . However . . . in the long term we would certainly like to continue to try and adopt [N].”

[84] Ms Sharland noted the scepticism of the Immigration Service expressed in their letter of 30 July 1998 that [N] could truly be considered to be on holiday or a visitor. Ms Sharland states in her affidavit (para 16) -

“It greatly surprised me that the [P]s were still claiming that [N] was in New Zealand on holiday.”

[85] At the Court hearing on 25 September 1998, Judge Frater indicated that the “givens” in the case were that [N] would be returning to Thailand and that Ms Sharland would accompany [N] and the [P]s. It was agreed that [N], Mrs [P], Mrs [P]’s parents and Ms Sharland would fly to Thailand on 4 October. However, on 28 September Mrs [P] advised that due to family commitments, 4 October was inconvenient and sought an extension to 12 October. The Service would not support such an extension. Ms Sharland states (para 21) -

“The [P]s seemed to me to be deliberately trying to delay [N]’s return. Eventually, the parties agreed to [N] returning with me alone on 4 October 1998.”

[86] The arrangements incorporated in a consent order dated 1 October 1998 included the provision that upon arrival in Bangkok, [N] was to be handed to the care of the Department of Public Welfare and that other applications outstanding before the Court were to be adjourned for 3 weeks. [N] was returned without incident to Thailand on 4 October 1998 in the company of Ms Sharland. She collected [N] from the [P]s’ house without opposition or difficulty (but she noted Mr [P] was present whereas she had previously been advised that he was unable to meet travel arrangements on that day because of business commitments). She states that [N] was not traumatised by being taken back to Thailand and seemed comfortable with the international travel.

[87] Kaye McKenzie, appointed as counsel for the child, supported the return of [N] to Thailand. She expressed the view that it was imperative that [N] leave New Zealand and return to Thailand as quickly as possible, and that had she remained in New Zealand care and protection issues would have arisen. She stated in a letter of 5 October 1998 to the national office of the Service that she did not condone the arrival of [N] in New Zealand without the requisite permit, nor did she wholly accept Mr and Mrs [P]’s assertions that [N] remained in their care on a holiday basis. However, she expressed concern that towards the conclusion of the matter the needs, both physical and emotional of [N], appeared to become somewhat less important than the needs of the Service to meet political pressure and obligations and to assert its authority over Mr and Mrs [P]. She described as being “a less than desirable outcome for the child”, that [N] was obliged to return to Thailand in the company of a virtual stranger (Ms Sharland), and that this could have been avoided if the parties had been able to take a more conciliatory attitude towards the practical aspects of the child’s return. She nevertheless “totally accepted in general terms” the view of the Service that [N]’s emotional needs were not being met by her being away from her parents.

[88] The Service required the Care and Protection proceedings to be finalised before they were prepared to enter upon any further reassessment of Mr and Mrs [P]’s suitability as adoptive parents. This was advised to Mr and Mrs [P] by Patricia Brooke by letter of 4 November 1998. Although the Service’s application for a Care and Protection order had been largely overtaken by the child’s return to Thailand, the Service required an assurance from the [P]s that they would not seek the return of [N] to New Zealand. This was supplied by Mr and Mrs [P] by an undertaking dated 10 December 1998 in favour of the Family Court -

“. . . that we shall not cause to bring into New Zealand the child [N] for either the purposes of a holiday or adoption without the appropriate authority of the appropriate Thai authorities and/or agencies.”

There was also an issue of costs, with both the Service and the [P]s seeking costs of the other in respect of the Care and Protection application. Following the provision of the undertaking the proceedings were withdrawn with the consent of all parties, and the applications for costs were also withdrawn.

[89] Finally in the Care and Protection matter, Ms Sharland submitted a formal report to Ms Iwanek dated 19 January 1998 (should be 1999) in which she reviewed all aspects of the proceedings, concluding -

“There are no current care and protection matters in respect of this child. The application for declaration and ancillary orders has now been withdrawn by the Director-General for Social Welfare in consideration of the [P]s providing a written undertaking to the Court that they will not bring the child back into the country for the purposes of a holiday or adoption without the appropriate authority of the Thai agencies and authorities.”

The [P]s were not given the opportunity to comment upon this document. Counsel submitted that it was an “expectable” document conveying the “official line” with no attempt to include the [P]s’ perspective as conveyed in their sworn testimony in the Care and Protection proceedings.

[90] Although on 10 August 1998 Ms Iwanek had issued the notification for Care and Protection under s 15 CYPF Act, when Ms Nelson wrote to the [P]s’ solicitors on 17 August acknowledging their affidavit and second application to adopt, this was not mentioned. Instead the letter concluded that when the necessary documentation had been completed, the Service would undertake a reassessment of the [P]s’ current circumstances and suitability as adoptive applicants, and the documentation would then again be sent to Thailand. Nor were they advised of a letter dated 11 August 1998 received from the Child Adoption Centre of the DPW in Thailand confirming the necessity to comply with both Thai and New Zealand law in respect of any adoption of [N] and providing a Home Visit Study Report in respect of [N].

[91] On 15 September Ms Brooke advised Mr [P] by telephone that she would not be able to update the Home Study Report until [N] was returned to Thailand. By letter of 21 September 1998 she confirmed this and stated that the Care and Protection investigation also had to be concluded.

[92] Patricia Brooke states that she was feeling under pressure. When Lael Sharland and Ngaio McCulloch visited the [P]s on 14 September, Mr [P] had inquired about the application forms. Emma Smith telephoned on 15 September to advise that the [P]s were seriously thinking of suing the Service because the Service (Patricia Brooke) had told them originally to seek an interim adoption order from the Court. Ms Brooke’s evidence in her affidavit affirmed 28 June 2000 is that she merely told the [P]s that they were entitled to make such an application to the Family Court. She expressed to Emma Smith her genuine belief that the [P]s would not wish to continue with a fresh application until the business with [N] had been resolved as it might not present them in the best light. Emma Smith advised that the child was going back to Thailand at the end of the month.

[93] Ms Brooke states that by 21 September 1998 when she wrote to the [P]s she was feeling overwhelmed by the pressure that the [P]s and their lawyer were putting on her to complete the Home Study Report. She was beginning to think that it would be better if another social worker who had not worked so closely with the [P]s as she had, could take over and bring a fresh approach. She made this offer to the [P]s in her letter of 21 September 1998. But through their solicitors the [P]s advised they had no objection to her continuing. On 6 October Ms Brooke received a letter from Emma Smith stating that now [N] had returned to Thailand the [P]s wanted her to complete a new home study as soon as she was able as they wanted their application to adopt the Thai child to proceed as soon as possible.

The letter was dated 2 October 1998, that is before [N] left New Zealand.

[94] Ms Brooke arranged a meeting with the [P]s on 14 October 1998 to update their home study. Ms Brooke says that when she completed the updated home study report, she was partly mistaken as to its purpose. She thought the purpose of the report was to indicate whether the applicants fulfilled the requirements to adopt a child from New Zealand, and to provide information to the Thai Government about the applicants, rather than an assessment as to suitability for an inter-country adoption. She considered it doubtful that the Thai Government would consider the [P]s suitable for adoption mainly because of their involvement with [N], a child who was not available for adoption. She therefore included relevant information. Towards the end of her report she stated -

“It does however, seem to me that unfortunately Mr and Mrs [P] lost sight of some major issues when they attempted to adopt [N]. The child was from an intact family who had not ever given any thought before they met Mr [P], to placing their daughter for adoption. The birthparents did both sign adoption consents because they believed that the child would have a “better life” in New Zealand than they could give her in Thailand, but obviously had not given enough thought to the effect this would have had on the child to be separated permanently from her family and brought up in a different country and culture. It is also more than likely that the birthparents were not aware of their own country’s adoption processes and procedures.

Also, Mr and Mrs [P] due to their previous attempt at a private adoption in Thailand in 1996 knew that private adoption are not permissible, and were aware that the process they affected to adopt [N] did not follow the correct procedures as laid down by this country and Thailand.

However, Mr and Mrs [P] wish to continue with this new application to adopt a Thai child and as there is no reason why we would not accept them into the local in-country adoption “pool”, I would recommend that they be considered for a Thai adoption.”

[95] Early in the report at p 7 she stated -

“It would appear that Mr and Mrs [P] were trying to circumvent the correct adoption procedures and processes again, as they had previously in 1996 tried to adopt a child privately in Thailand but learned that this was not permissible by the Thai Department of Public Welfare and the Child Adoption Board.”

[96] Nevertheless the updated report, dated 20 October 1998, concluded by recommending that the [P]s be considered for a Thai adoption and stated that the home study was valid for 2 years. It was signed by Patricia Brooke and Jean Cunningham. Patricia Brooke also prepared a letter to the Thai authorities confirming the suitability of the [P]s for inter-country adoption. Neither the report nor the letter was sent to the Thai authorities or the [P]s. Ms Brooke notes in her affidavit that home study reports are not in any event usually provided to applicants for adoption. She says she held the report to include in the package of documents which would be forwarded to the Thai authorities.

[97] On 27 October 1998, Patricia Brooke had occasion to discuss the matter with Mary Iwanek. Ms Iwanek apparently expressed surprise to Patricia Brooke that she was completing the Home Study Report. Patricia Brooke states in her affidavit -

“Ms Iwanek was surprised at this news and indicated that although the assessment of the [P]s in the home study was for me to make, the care and protection investigation had not been fully resolved and that she thought the assessment of the [P]s should wait until it was.”

[98] On 29 October 1998 in a telephone conference involving Patricia Brooke, Beth Nelson, Jean Cunningham and others, it was agreed that it was premature to finalise the home study and send it to Thailand until AS had received a report of the Care and Protection investigation. Patricia Brooke then noted the file: “This home study is no longer valid”. Patricia Brooke states that having reflected on the situation, she agreed it was not appropriate to support the [P]s’ application to adopt a child from Thailand at that stage, and that the situation needed to be reassessed after outstanding issues were resolved. She advised Mrs [P], in response to a telephone inquiry on the same day, that “one or two issues had come to light”, and on 4 November she wrote to them saying that she needed to know the outcome of the Care and Protection investigation before a proper assessment of their application could be completed. On 30 November she advised them that a total reassessment of their suitability for inter-country adoption was required rather than simply an update of the previous home study. On 15 December 1998 Patricia Brooke advised [JP] that a final report on the Care and Protection investigation was still awaited, that a total reassessment of the [P]s’ application would then be made; that the reassessment would done by another member of the team.

[99] From the perspective of the Service the following matters were outstanding in relation to the Care and Protection proceedings -

[a] While [N] had been returned to Thailand in the company of Lael Sharland on 4 October, AS had residual concerns that the [P]s would try to return her to New Zealand.

[b] A final report was awaited from Lael Sharland on the whole investigation which AS regarded as relevant to their final assessment of the [P]s’ suitability for inter-country adoption.

[c] Costs had been sought by both parties.

The Care and Protection proceedings stood adjourned pending resolution of these matters. The Service did not regard the proceedings as finalised until they received the agreement from Mr and Mrs [P] on 10 December 1998 not to return [N] to New Zealand either for the purposes of holiday or adoption without the authority of the appropriate Thai authorities and/or agencies.

[100] In response to a letter of 21 December from Emma Smith inquiring about the delay in advancing the [P]s’ application for adoption and seeking urgency, Tasi Malu solicitor to the Service advised that the Care and Protection report was required, it comprising -

“. . . vital information that needed to be taken into consideration in order to complete a full and comprehensive assessment of the [P]s’ application.”

He also advised that Mr D Weston from Wanganui AS, and Mrs R Pitt from Palmerston North AS, would undertake the assessment.

[101] On 8 January 1999 Emma Smith wrote for the attention of Mr Malu stating -

“There is absolutely no reason whatsoever why our client’s application for an inter-country adoption cannot be immediately forwarded to the appropriate authorities.”

The letter also maintained that the Care and Protection proceedings were confidential and could not influence any assessment for adoption purposes. Tasu Malu in reply on 20 January 1999 disagreed with that stance, describing the adoption proceedings and the Care and Protection proceedings as “inextricably linked in this matter”. As to Ms Brooke’s involvement being discontinued, he said -

“It is Ms Brooke’s opinion, one shared by the Adoption Service, that in light of the history of this matter, the fact that she opposed the [P]s’ adoption of [N], and that it was the Adoption Service that made the notification to care and protect, that a person who had nothing to do with this matter will bring a new and fresh approach as well as independent thought to the matter. Accordingly, the [P]s’ application will be processed by Mr Weston.”

He confirmed that the application would not progress until the Care and Protection report recently completed by Ms Sharland had been considered by AS.

[102] By letter of 21 January 1999 Emma Smith expressed concern on a number of matters including -

“We had no idea that the notification received from CYPS was from the Adoption Service (referring to the Care and Protection proceedings).”

She sought release by fax of Ms Sharland’s report -

“You will appreciate our clients want to assess the accuracy of the same.”

She stressed that it was never the [P]s’ intention to keep the child in New Zealand; that has simply been an assumption by the Service that the child was never to return -

“There can be nothing further from the truth and this might be a small example of why our clients are so concerned about the prospect of CYPS making any kind of report to the Adoption Service without their scrutiny of the same.”

There appears to have been no reply to that letter.

[103] The [P]s then changed their solicitors; Charles Wilkinson of Reeves Middleton Young acted for them from the end of January 1999. He wrote on 24 February seeking a timetable for completion of the approval process and an indication as to whether the facts of the Care and Protection proceedings were to be held against the [P]s for the purpose of their approval for inter-country adoption. Mr Malu replied on 25 February that he was “unsure of how the report will influence the agency”. He confirmed, however, that Mr and Mrs [P] would be asked to comment on any aspect of the report which the Adoption Service was concerned about.

[104] The visit by Mr Weston and Ms Pitt took place on 4 March 1999. Following the visit, through their solicitor, the [P]s described it as “very positive”. That was before they learned of the outcome which did not happen until 2 June 1999 when David Weston, Rosemary Pitt and Jean Cunningham met with the [P]s at the Service’s New Plymouth office. They were advised that their reassessment had been completed and that the Service would not be supporting their inter-country adoption application. In her affidavit affirmed 28 June 2000 Rosemary Pitt sets out the main reasons for the decision not to recommend the [P]s for inter-country adoption. They -

[a] had demonstrated that they were inclined to put their own wants and needs before those of a child;

[b] had shown that they lacked understanding of the psychological and emotional needs of a young child;

[c] had demonstrated a disregard for international laws and conventions that are designed to serve the best interests of children.

[105] In that interview Mrs [P] raised that a previous approval had been given to them in an earlier report. It was explained to the [P]s that their actions in respect of [N] had meant that the Service had decided that it was necessary to conduct a complete reassessment.

[106] The nature of the interview conducted by Rosemary Pitt and David Weston on 4 March 1999 can be derived from the statement of Points/Issues developed by Rosemary Pitt in preparation for the interview. They were annexed to her affidavit. It is clear that much of the discussion was directed at what the plaintiffs had learned from their experiences in respect of [N]. Ms Pitt’s notes record that -

“David and I attempted to offer the [P]s the opportunity to review events (from 1996) in their own minds and to express/share anything they might do differently, with hindsight, or to acknowledge and state anything that they have regretted or “learnt” from their actions and the events to date.”

Ms Pitt’s conclusions include the following -

“Mr and Mrs [P] are still choosing to ignore, dismiss, and minimise the real and ongoing issues that occur in adoption and in inter-country adoption. They appear to consider/want to believe, that “love and stability”, along with visits to Thailand and contact with other Thai people in New Zealand, will be enough to prevent any issues . . . I have to query their ability to be open to an adopted child’s feelings, to acknowledge a child’s own unique perspective, or even to provide an environment in which a child could openly and honestly express him or herself.

I can only conclude that the “mission” to bring a child into their home from Thailand has become so dominant that it has overridden their ability to stand back and see what they are doing/have done, to examine their own real motives and to see the wider picture. It appears that the “mission” has turned into a “we must win”/“we won’t back down”/“we are right” scenario.

They appear to take a somewhat simplistic view of child care, focusing mostly on the physical and material needs, and on what they can give to a child, without any thought of what might be taken away.

Neither do they appear able to accept that a child has rights and that a child who has an intact family is not in need of adoption and should not be deemed “available” for adoption.

The query that remains is whether or not the [P]s can recognise, acknowledge and uphold a child’s rights and put those rights and interests over their own needs.

There appear to be a number of instances where they have chosen to not “just accept” the boundaries around a situation and, while checking on the information given to one on the “rules” is legitimate and assertive behaviour, in these instances (e.g. visa rulings) the reactions and consequent behaviours appear to have been more directly about flouting/bending the rules, howbeit “legally”, or “getting around” the rules.”

Under issues of power and control Ms Pitt recorded -

“Linked to power and control is the issue of whether “parents (alone) should be able to decide what happens to their children” - i.e. in the situation that arose the [P]s considered that if the mother and father had agreed to adoption - so that the child could have more opportunities in life - then protocols and conventions (UNCROC) should not get in the way. This indicates a view that child “belong” to the parents, that parents have “ownership” of their child and can decide, even in contravention of the child’s basic rights.”

[107] Mr Weston’s notes were briefer. He concluded his notes with the following statement -

“The [P]s stated during our visit that their preference was to adopt from Thailand rather than within New Zealand. They saw this as the best thing for them.”

[108] Ms Pitt’s affidavit describes how she and Mr Weston wrote up their notes separately in the days following the interview. They met on 10 March to discuss the home visit. They found that they had each reached the same conclusion, namely that they could not support the [P]s’ application for inter-country adoption. A process of collation followed. The finalised report was dated 10 May 1999 (“the 1999 report”). The report records that the [P]s show that they have met the requirements of s 11(a) of the Adoption Act 1955 in so far as each of them is a “fit and proper person to have the custody of the child and of sufficient ability to bring up, maintain and educate the child”. However, concern centred around issues relating to inter-country adoption, particularly their lack of understanding of the needs of children. The areas of concern were summarised as follows -

(1) A limited understanding or awareness of the additional needs of an adopted child, not only from normal adoption issues, but, especially with inter-country adoption and an older child, the child’s previous life experiences which can include institutionalisation, separation from known people, major changes in environment and various traumas.

(2) A limited understanding of the developmental stages of childhood and the emotional and psychological needs of children and the consequences of a child’s needs not being met.

(3) Their own desires and determination to have a child in their home appears to have had precedence over other considerations, and led to the ignoring of protocols, established practices and legal safeguards that have been put in place to protect the basic rights and needs of children.

(4) An apparent lack of understanding or acceptance of internationally established protocols set up to protect children. While the [P]s acknowledge that there are set processes and protocols in place for inter-country adoption their actions in trying to adopt [N] were contrary to such protocols.

(5) Their apparent inability to learn, not only from their own experiences of inter-country adoption, but also from professional advice received about it.

[109] The result of the report was formally notified to Mr and Mrs [P] by letter of 11 June 1999 written by Jean Cunningham.

[110] At the meeting on 2 June 1999 the [P]s were offered a review of the process leading to the decision not to approve them for inter-country adoption, but not of the decision itself. They indicated there and then that they wished such a review to take place.

[111] Ms Iwanek in her affidavit describes the review process. She says it was established after the 1990 Ministerial review of AS because there is no statutory mechanism whereby the decisions of social workers relating to the suitability of prospective adoptive parents can be appealed or reviewed.

[112] The review process initiated by Ms Iwanek has no statutory basis. The review offered is a review on the papers leading to the social worker’s decision. It is conducted by a review panel comprising Ms Iwanek as national manager adoptions, and two other persons she selects. These are usually trained social workers and psychologists from outside the Service who have significant experience in the area of adoptions.

[113] In a detailed letter of 30 August 1999 Mr Wilkinson acting for the [P]s set out their concerns about lack of independence of the proposed review panel, particularly in respect of Ms Iwanek as a member of the panel. The letter also questions the independence of Ms Pitt in relation to the 1999 report on the basis that she had prior direct involvement in the concerns relating to [N].

[114] On 30 September 1999 Mr Malu advised that the Service would not deviate from the proposed terms of the review - the matter would be dealt with “on the papers, and the panel would comprise Ms Iwanek and two independent consultants with specialist skills and experience”.

[115] The review has not yet occurred because Mr and Mrs [P] did not accept the terms upon which the Service was prepared to conduct the review. The plaintiffs issued Judicial review proceedings in December 1999.

Jurisdiction - Judicial Review

[116] The plaintiffs’ first cause of action for Judicial review claims that the Service exercised or purported to exercise a statutory power and/or a statutory power of decision within the meaning of the Judicature Amendment Acts of 1972 and 1977. In relation to various of the decisions made in the process, the plaintiffs’ amended statement of claim dated 8 November 2000 assumed the application of the Adoption (Intercountry) Act 1997. But in oral submissions at the hearing, counsel for the plaintiffs accepted that the Act does not apply. Consequential amendments to the amended statement of claim were made without objection by the respondent.

[117] It is debatable whether the decisions and actions of the Service of which judicial review is sought, are in fact the exercise of statutory powers, given that they were not taken pursuant to the Adoption (Intercountry) Act 1997. The defendants submitted that the powers in issue in these proceedings are plainly not statutory ones. Nevertheless the defendants properly accepted that the powers and functions exercised by the Service are of a sufficiently “public nature” and of sufficient consequence to the persons affected by them to be amenable to judicial review. (Mercury Energy Limited v Electricity Corporation of New Zealand Limited [1994] 2 NZLR 385).

Is the welfare of the child a paramount consideration?

[118] The plaintiffs submitted that because the Adoption Act 1955 is the statute which governed this adoption and because s 11(b) of the Adoption Act requires that before an adoption order is made in respect of any child the Court shall be satisfied -

“That the welfare and interests of the child will be promoted by the adoption . . .”

it would do violence to s 11 of the Adoption Act 1955 to apply the paramountcy directive stated in Article 21 of UNCROC. It was further submitted that Article 21 is inconsistent with the scheme of the Adoption Act and that the Act must prevail. The authority cited was Re Adoption of PAT (1995) 13 FRNZ 651 (also reported as Re T (an adoption) [1996] 1 NZLR 368).

[119] At issue here is not the decision of a Court on an interim or final adoption order but the decisions of the Service as the governmental agency responsible in New Zealand in respect of an inter-country adoption. The Home Study Report required by the Thai authorities is not defined in the Thai Ministerial Regulations but appears to be acted upon by the Department of Public Welfare in Thailand as “the State of origin” or the “sending State”, and relied upon by the Service as “the receiving State”, in the same way as a report furnished pursuant to the Adoption (Intercountry) Act and the Hague Convention.

[120] As previously stated (para [23]) there is a presumption of statutory interpretation that, so far as its wording allows, legislation should be read in a way which is consistent with New Zealand’s international obligations (New Zealand Airline Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269, 289).

[121] The principle that the welfare of the child should be regarded as paramount under the Adoption Act is referred to in a number of decisions. In Re Adoption of PAT the High Court considered whether an adoption order could be made subject to an access condition in favour of the paternal parent of the child in question, and held that the making of access orders in favour of a birth parent was inconsistent with the Act’s scheme, which effected a severance of ties. Blanchard J said at p 656 -

“The promotion of the welfare and interests of the child is of paramount importance in exercising powers conferred under the Adoption Act: DGSW v L [1990] NZFLR 125, 127. It will therefore be a weighty matter to take into account in interpreting the provisions of the Act which confer powers. But the principle cannot determine the existence of those powers in the first place.”

[122] Re Adoption of PAT was concerned with whether a power to make the order sought existed under the Adoption Act. In this case the Service, in making the decisions of which review is sought, was not exercising powers under the Act. Section 11 has no direct relevance to the decisions under review. They were taken at a stage well in advance of the making of an application for an adoption order which comes at the end of the process for an inter-country adoption, after the child has been brought lawfully into New Zealand to enable the application to be made. The relevance of the observation by Blanchard J is his acceptance that the promotion of the welfare and interests of the child is of paramount importance under the Adoption Act. The decision referred to, Director General of Social Welfare v L (also reported in [1989] 2 NZLR 314), concerned an application to dispense with the consent of the birth mother to the adoption of a child and the exercise by the Court of its discretion under s 8 Adoption Act, in specified circumstances. The Court stated at p 319 -

“. . . where an overall failure of that kind is established what remains for consideration in the exercise of the discretion to refuse consent is the welfare of the child . . . To rest the exercise of the power under s 8(1), on the welfare of the child also reflects the effect on the status, custody and guardianship of a child under an adoption order expressed through s 16 and, through that link with the Guardianship Act the emphasis placed on the welfare of the child under that legislation . . . And s 6 of the Children, Young Persons & Their Families Act 1989 is a contemporary re-statement of that same legislative policy in providing as it does for the welfare and interests of the child or young person to be the deciding factor where any conflict of principles or interests arises.”

[123] It does not in my view, assist the plaintiffs’ argument that as recently as December 2000 in Children in New Zealand: United Nations Convention on the Rights of the Child: Second Periodic Report of New Zealand it was acknowledged that the Adoption Act 1955 does not contain a paramountcy provision. The report stated that the Act was currently under review and it was likely that the review would consider this issue. The commitment of New Zealand to the relevant international covenants and the importance of giving effect to that commitment in matters concerning adoption has been now firmly recognised by our Courts (refer para [23]). In this case where both New Zealand and Thailand have ratified UNCROC it would, I consider, be incorrect and inconceivable that the Service in playing its part in the process involved in an inter-country adoption between the two jurisdictions should not pay due regard to Article 21 of UNCROC and the relevant provisions of the Hague Convention.

[124] Against that background must be put in perspective the reliance placed by the plaintiffs on Article 23.2 of the International Covenant on Civil and Political Rights. This article reads -

“The right of men and women of marriageable age to marry and found a family shall be recognised”

To the extent that it has been considered on the few occasions it has come before the European Commission on Human Rights (though apparently not the European Court of Human Rights), there has been some dispute as to whether the right to found a family includes the right to adopt. At best the right to adopt is a right by inference, which would need to be considered alongside the more explicit intent of Article 23 which is clear from Article 23.1 -

“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

Thus Article 23 accords to families a right of protection from interference or intervention in the family unit.

[125] Rather than assisting the plaintiffs, Article 23 is reflected in UNCROC and the Hague Convention, which recognise the priority of enabling a child to remain in the care of his or her family of origin.

[126] I conclude that the Service and AS properly treated the welfare and interests of the child, [N], as a paramount consideration in the decisions they took in the matters concerning her, in relation to both adoption and Care and Protection matters.

Has there been a breach of natural justice?

[127] Counsel for the plaintiffs commenced submissions by referring to Upton v Green (No 2) [1996] 3 HRNZ 179 (which concerned breach of natural justice arising from denial of a right to be heard before sentencing), and what Tompkins J described as the “oft quoted dicta” of Megarry J in John v Rees [1970] Ch 345, 4502; [1969] 2 All ER 274, 309 -

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start”. Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature, who pause to think for a moment, likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.”

[128] Counsel also referred to the leading New Zealand authority of Daganayasi v Minister of Immigration [1980] 2 NZLR 130 where Cooke J delivering the judgment of the Court of Appeal, stated at p 141 -

“The requirements of natural justice vary with the power which is exercised and the circumstances. In their broadest sense they are not limited to occasions which might be labelled judicial or quasi-judicial. Their applicability and extent depend either on what is to be inferred or presumed in interpreting the particular Act.”

[129] For New Zealand the most authoritative decision is that of the Privy Council in Furnell v Whangarei High School Board [1973] AC 660; [1973] 2 NZLR 705, with the well-known statement of the majority judgment (at pp 679 and 718 of the respective reports) that -

“. . . natural justice is but fairness writ large and juridically, fair play in action.”

[130] The plaintiffs claim that by approving them for inter-country adoption on or about 3 March 1997 (the 1997 report) the Service created a legitimate expectation in the plaintiffs of a continuation of that approval for the 2 year period granted (i.e. to 3 March 1999) and thereafter upon reassessment, and that a fair procedure was required to be followed if that expectation was to be lawfully defeated or withdrawn. They submitted that the approval is analogous to a renewable licence which cannot be revoked or not renewed unless fair procedure has been observed (McInnes v Onslow-Fane [1978] 3 All ER 211 (Ch); Smitty’s Industries Limited v Attorney-General [1990] 1 NZLR 355 (HC)), and the renewable “licence” created a “protectable interest” in administrative law terms.

[131] Counsel then posed the questions -

[a] Have the plaintiffs been treated fairly?

[b] Is the treatment of the plaintiffs acceptable in our society?

[132] The defendants do not dispute that the 1997 report gave rise to a legitimate expectation by the [P]s that their status would not be altered within the notified 2 years of its currency without the Service first following fair procedures. They say, however, that the Service had the power to revisit the approval of the [P]s at any time if the circumstances warranted it, and that in any event the approval was not revoked within the 2 year period; it was not revoked until the decision in the 1999 report was notified to the plaintiffs.

[133] It is necessary to consider carefully the circumstances, because what is, or is not, fair procedure or fair play, will depend on the relevant circumstances of each and every case.

[134] From the outset the plaintiffs were particularly interested in adopting a child from Thailand. From the outset they were aware of the need to comply with Thai law and with New Zealand law. That was made abundantly clear in the brochure “Adoption in Thailand” issued by the Child Adoption Centre of the Department of Public Welfare. Further, the plaintiffs had some previous knowledge and experience of trying to adopt a child from Thailand because of their earlier efforts in respect of the child [KB] who was determined by the Child Adoption Board to be a child not available for adoption. Indeed in their own affidavit the [P]s state at para 3.9 -

“We knew at this point (referring to April 1998) that approval to adopt the child had to be given by the Thai authorities acting in reliance on our New Zealand documents.”

[135] Against that background the 1997 report was completed on 3 March 1997 and forwarded with the plaintiffs’ application and other relevant documents to the Thai authorities. It must have been disappointing, frustrating and agonising, for Mr and Mrs [P], to discover about a year later that not only had their application not been actioned, but apparently the Child Adoption Centre purported to know nothing of it. Genuine steps seem to have been taken by the Service to trace the application and put it on track. However, Mr and Mrs [P], understandably frustrated by the lack of progress, and determined to pursue their wish to adopt a Thai child, either created or saw an opportunity to influence the course of events through Mr Hongsaparabhas, a business contact of Mr [P] in Thailand.

[136] [N] with members of her family and Mr Hongsaparabhas were brought to New Zealand, specifically to the [P]s’ home in New Plymouth, by the [P] family.

[137] [N], her family and the adoption proposal in respect of [N] were immediately presented to Patricia Brooke at the office of the Service in New Plymouth. She had immediate, serious concerns about the situation which she advised to the [P]s and recorded in file notes. She advised them to seek legal advice in respect of obtaining an interim adoption order. Some criticisms were subsequently levied at her through the [P]s’ solicitors for this suggestion, even to the point of mentioning legal action, following the unsatisfactory outcome from the [P]s’ point of view. However, given the provisions of s 6 of the Adoption Act that render it unlawful for any person to place or receive or keep any child under the age of 15 years in their home for the purpose of adoption unless there has been prior approval by a social worker or an interim adoption order is in force, her advice cannot be criticised. Clearly at that stage the [P]s proposed to adopt [N]. The mother’s consent was available; it was intended to obtain the father’s consent in Thailand.

[138] Patricia Brooke, the relevant social worker, did not give consent to [N] being in the [P]s’ home. That left them with the only alternative, to obtain an interim adoption order from the Court. When the matter came before the Court the Service was represented and the reasons for its objection were put before the Court. They included concern about -

[a] The involvement of Mr Hongsaparabhas, [N]’s parents employer, which cast doubt on whether the mother had given informed consent to [N]’s adoption;

[b] The urgency had been created by the plaintiffs themselves. They had taken upon themselves to bring the child to New Zealand rather than following the required adoption procedures; in the view of the Service the plaintiffs were attempting “to hold a gun at the head” of the Court and the Service;

[c] The Thai authorities had not had a proper opportunity to find a home for [N] (if that was necessary);

[d] There was no evidence that [N]’s parents could not provide for her welfare and interests;

[e] The proposed adoption was contrary to Thai law;

[f] The child, aged 2 1/2 years, comes from an intact family and has known no other environment.

[g] The adoption did not conform with UNCROC which the New Zealand Government had ratified, nor with the New Zealand Government’s policy and criteria for inter-country adoptions established in 1989 and amended in 1990.

Ms Brooke’s report to the Court advised that there was considerable further information required which could be gathered in 2-3 months.

[139] The Court refused the adoption order. The decision of Judge C P Somerville states his reasons for refusing the adoption - he was not at that time satisfied that [N]’s welfare and interests would be promoted by the adoption. He noted that she came from an intact family with twin siblings, and there was no evidence available to him which would enable him to weigh the various alternatives including being brought up in her family, by wider family or being adopted by a Thai national -

“All of which would need to be excluded before I would be prepared to countenance an inter-country adoption.”

The reasons given by the Judge reflected some of the concerns expressed in Ms Brooke’s report, and the Court’s concern for [N]’s rights established and reflected in UNCROC and the Hague Convention.

[140] The plaintiffs refer to the application being withdrawn because of their concern that they should not be placed in a situation where they had [N] in their home for the purposes of adoption. The decision of Judge Somerville dated 26 June 1998 clearly states that the application was refused. By whichever method, the application for an adoption order in respect of [N] was brought to an end. In the [P]s’ view she was therefore no longer in their home for the purpose of adoption because that possibility had (at least for the present time) been extinguished. According to Mr and Mrs [P], [N] was in their home for a different purpose - holiday with her parents’ consent.

[141] The Service did not share that view of the matter. I consider it quite reasonable that they did not, for just days later, on 29 July 1998, they received, through Mr and Mrs [P]s’ solicitors, a further application and declaration to adopt a child. The application was on a Thai form. One of the attached references referred to [N]. It was an inevitable inference for the Service to draw that having been unsuccessful with their previous application to adopt [N], the [P]s were proceeding with a fresh application and that application related to [N] who remained in their home. Their previous concerns were confirmed, indeed intensified. [N]’s rights under New Zealand Government policy and international conventions ratified by New Zealand, were at risk, in particular her right to remain as part of an intact family and to be brought up in her own culture in the country of her birth. Further, the process apparently being followed by Mr and Mrs [P], did not comply with Thai law because [N] had not been approved as a child available for adoption by the Thai authorities, and on the basis of the information available to the Service, probably would not be. The [P]s appeared to be pursuing a private arrangement to adopt [N], contrary to Thai law. Ms Iwanek, national manager Adoptions, determined that the appropriate course was to commence Care and Protection proceedings in respect of [N].

[142] Ms Iwanek’s decision to pursue Care and Protection proceedings was strenuously criticised by the plaintiffs as an over-reaction to the situation. They claimed they had done nothing wrong, and that the decision was born of an animus developed by the Service, and in particular Ms Iwanek, against the plaintiffs which was unjustified and unfair. They pointed to errors in information upon which Ms Iwanek made her decision: for example that the plaintiffs had applied to extend for a year [N]’s temporary visa issued for 2 weeks when Mrs [P] returned from Thailand with [N] on 22 July, when in fact the extension sought was for less than 8 months, and the extension actually granted after submissions on behalf of the plaintiffs, was until 4 October 1998; that she over-stated the period [N] had been separated from her family; that she misinterpreted entirely the reason or purpose for [N]’s returning to New Zealand with Mrs [P] on 22 July, which according to Mr and Mrs [P], was simply to continue her holiday with the consent of her parents until her temporary visa expired, when she would be returned to Thailand and her home.

[143] Ms Iwanek exercised a discretion in deciding to pursue the Care and Protection proceedings. She was required to consider [N]’s welfare as a paramount consideration. I find her decision in the circumstances was not unjustified or unreasonable.

[144] The Service pursued the Care and Protection proceedings which resulted in [N] returning to Thailand in the company of Lael Sharland from the Care and Protection Division of the Service. Having ensured the return of [N] to Thailand, which the Service considered was necessary in her best interests, they were then intent to ensure that the [P]s would not attempt to bring her back to New Zealand. The agreement to that effect was obtained on 10 December 1998. The Care and Protection report by Ms Sharland was furnished in January 1999. Then and only then were the Service prepared to embark on a further Home Study Report which continued to be a prerequisite if the plaintiffs were to pursue an adoption application.

[145] In response to the [P]s’ fresh application to adopt lodged at the end of July, the Service advised that an updated Home Study Report would be required because previous information was out of date. This was not strictly so, as the 1997 report remained current. The defendants acknowledge this, but say the intervention of the Court hearing and the refusal of an adoption order followed by the [P]s’ fresh application to adopt, introduced new circumstances which required that their report and approval be revisited.

[146] On 20 October 1998 Ms Brooke had completed but not issued her second report. It was never issued because following discussion with Ms Iwanek, after completion but before issue of the report, matters were drawn to Patricia Brooke’s attention which, following a conference with a number of her colleagues (excluding Ms Iwanek), caused her to determine it should not be issued. She marked the report “no longer valid”.

[147] The plaintiffs claim that the second report could not be “revoked” because it had been completed by Ms Brooke the social worker concerned, and countersigned by Jean Cunningham her supervisor. Ms Iwanek’s intervention was inappropriate and unjustified - she was not the social worker involved in the preparation of the report. It was motivated by bias and predetermination on her part and it resulted in an adverse outcome which was unfair to the plaintiffs.

[148] Counsel submitted that AS was not lawfully able to revoke the second Home Study Report, or in the alternative they were not able to revoke the report without informing the [P]s of the reasons and giving them an opportunity to respond. While acknowledging that the law on revocation of administrative decisions is complicated and not entirely settled, and that the authorities quoted in favour of the proposition that the decision could not be revoked related to decisions that had been announced or published (Re War Damage Act (1943); Re 56 Denton Road Twickenham Middlesex [1953] 1 Ch 51; Rootkin v Kent County Council [1981] 2 All ER 227), counsel submitted that the fact the report was not disclosed to anyone outside the Service, including the [P]s, made no difference and that because the Home Study Report affected the [P]s’ rights/interests/expectations they can plead the benefit of what was described as the “no revocation” rule.

[149] It seems clear from the authorities that when there is a duty to decide and a decision is made and published, it will be irrevocable unless it is subsequently found that the decision has been based on a mistake of fact, when it may be revocable. This was observed by Smellie J in Triton Textiles Limited v Minister of Trade & Industry [1986] 6 NZAR 261, 274 where the factual situation before the Court was the purported withdrawal by Gazette notice by the Minister of tenders invited under the Import Licence Tender scheme. Smellie J held in circumstances where there was no mistake of fact, but only a change of opinion by officials, that the plaintiff was on firm ground in contending that it had a reasonable expectation the Minister would process its tenders along with any others with which they were competing, in a fair manner, and that the Minister was not entitled to revoke his decision to the plaintiff’s detriment.

[150] The plaintiffs relied on R v Criminal Injuries Compensation Board, ex parte Tong [1976] 1 All ER 171 in support of the proposition that AS could not “revoke” the second report. In Tong’s case a decision was made by the Criminal Injuries Board to pay compensation to Mr Tong from a non-statutory fund. Because of a slight administrative delay Mr Tong died before the decision was communicated to him. The Board held that the offer lapsed on Mr Tong’s death since the entitlement to compensation was personal to him and he had not accepted it. The Court of Appeal disagreed. It held that the entitlement to the award of compensation vested on the making of the decision by the Board, because it would be unfair that Mr Tong’s widow should be prejudiced by the delay in notification.

[151] In the Tong case the Court had to consider whether an external event (the death of Mr Tong) entitled the Board to revoke its decision, made but not communicated to the person concerned. The circumstances differ from the circumstances in this case, where there is no comparative external event involved at all. In this case Ms Brooke wrote up her report and she and Ms Cunningham signed it. Before it was promulgated or published to anyone, Ms Brooke had cause to discuss with Ms Iwanek some of the issues with which the report was concerned, and then to have further discussions with Ms Cunningham and others about those issues. That led her to the view that the report was premature to the extent that she determined to resile from the report and the approval of the [P]s for adoption, contained in it, pending finalisation of the Care and Protection proceedings. In my view there was no reason why she should not do so. Until the report was communicated or published it was an internal document of the Service not binding on the Service or its author. Ms Brooke, with the approval of Ms Cunningham as co-signatory to the report, was at liberty to amend it, or to resile from it. That she decided to do so following discussions with the senior officer in AS Ms Iwanek, and with others with whom she regularly conferred, did not render her actions unfair or unlawful.

[152] The report had not reached the point where it became a promulgated decision of AS such that it could not be revoked except for mistake of fact (Rootkin and Triton Textiles). Once communicated, such a decision will be relied upon as a binding decision of the body who made it, and there is good reason for recognising the legitimate expectations of those who receive it. But that was not the case here. Ms Brooke simply changed her mind after consultation.

[153] Further, I reject the submissions of the plaintiffs that somehow the intervention of Ms Iwanek in this process was improper. Ms Iwanek as the national manager of Adoptions had responsibility for the whole organisation. Although a Home Study Report is prepared by a social worker, in this case Patricia Brooke, that does not exclude Ms Iwanek, or for that matter other persons in the organisation, from contributing their views on the issues with which the report is concerned. That is an unsurprising process, particularly in an organisation where the responsibilities carried by individual officers, including social workers, are such that consultation and reference to others, particularly persons more experienced or specialised within the organisation, are encouraged. Ultimately with the benefit of the input she received, including the comments of Ms Iwanek, it was for Ms Brooke to make her own decision about the second report. She did so. She decided it should not be issued in the form in which she had completed it and she invalidated it. The effect of this is that there was no second report. As at October 1998 the 1997 report remained current and had not been superseded.

[154] Following [N]’s return to Thailand on 4 October 1998 the plaintiffs were pressing for an updated Home Study Report to be completed to the extent that it appears their solicitor prepared a letter on 2 October in anticipation of [N]’s departure with Ms Sharland on 4 October. The Service advised they were not prepared to complete the updated Home Study Report until the Care and Protection proceedings were completed and Ms Sharland’s final report received. This approach is criticised by the plaintiffs who contend AS was being less than open with them and motivated by pre-determined views, antagonistic to them. From their perspective [N] had been returned to Thailand in accordance with the requirements of AS and the unresolved issue of costs was no reason for AS to delay any longer in finalising the Home Study Report.

[155] However, the Service took the view that the Care and Protection proceedings remained current and necessarily so, for they required to be satisfied that Mr and Mrs [P] would not again attempt to return [N] to New Zealand. It was not until 10 December 1998 that an agreement was signed by Mr and Mrs [P] to that effect. The proceedings were then withdrawn by the Service with both parties agreeing not to pursue issues of costs.

[156] That left outstanding Ms Sharland’s final report on the Care and Protection proceedings. Mr and Mrs [P] through their solicitors, claimed that the report was not relevant to finalising the Home Study Report and did not provide a valid reason for further delay. AS disagreed. Mr Malu wrote that the Care and Protection proceedings were “inextricably linked” with the matter of the Home Study Report and that AS required Ms Sharland’s final report before proceeding with the Home Study Report. Mr Malu further advised that Mr and Mrs [P] would have the opportunity to comment on Ms Sharland’s report.

[157] However, this never occurred. Ms Sharland’s report dated 19 January 1998 (which clearly should have read 1999) was addressed to National Manager Adoptions for the attention of Mary Iwanek. It was not made available to Mr and Mrs [P], nor were the contents of it conveyed to them by AS in a way that would enable them to receive and properly consider the report. Had they received the report, Mr and Mrs [P] would have been confronted with the comprehensive list of concerns set out by Ms Sharland on p 6 of her report. They included concerns that -

[a] The [P]s were not acting in the best interests of the child but rather in the promotion of their own desire to have a child;

[b] The [P]s were providing conflicting information to the New Zealand Immigration Service, the Family Court and AS;

[c] The [P]s were circumventing Thai law by taking [N] out of Thailand for the purposes of adoption;

[d] [N] while living in New Zealand was alienated from her natural and extended family;

[e] [N] was a member of an intact family;

[f] Options for [N] to be brought up within her own family group or by a Thai family needed to be considered;

[g] There was no evidence that [N]’s parents were unable to provide and care for her;

[h] The extended stay in New Zealand was prejudicing the natural bonds and attachments [N] had with her family and siblings which was of particular concern considering her young age;

[i] The [P]s’ business commitments and own plans seemed to take priority to [N]’s welfare and the [P]s did not seem to comprehend that the continual delays could hamper a successful reintegration of [N] with her family;

[j] The [P]s were putting their own needs before those of the child.

[158] The full nature of these concerns was not communicated to the [P]s until on 4 March 1999 when Mr Weston and Ms Pitt, appointed by AS as independent social workers to complete the Home Study Report, made a home visit. The comprehensive notes prepared by Ms Pitt in preparation for that home visit, her notes following the visit and the final report prepared by Mr Weston, show that the concerns of AS that prompted Ms Iwanek in the first place to initiate the Care and Protection proceedings, and which were confirmed and elaborated upon by Ms Sharland in relation to the Care and Protection proceedings, remained concerns of the Service. At the heart of the matter was the concern that the [P]s’ actions in relation to [N] showed a lack of appreciation of the needs of the child in the broad sense, including her emotional, familial and cultural needs, to the extent that they were not persons whom AS should approve for an inter-country adoption. Closely associated with that central concern was the concern that Mr and Mrs [P] motivated, perhaps driven, by their personal very strong desire and need to adopt a child were prepared to pursue that end to the exclusion, or at least subordination, of the needs of the child.

[159] These matters were thoroughly traversed with Mr and Mrs [P] at the home visit by Mr Weston and Ms Pitt. Questions were directed to establishing Mr and Mrs [P]’s responses to the situation that had evolved from their initial decision to bring [N] to New Zealand so they could adopt her. Ms Pitt’s notes state that she and Mr Weston offered the [P]s the opportunity to review all the events from 1996 to the time of the review and to express and share anything they might do differently with hindsight or to acknowledge and state anything they regretted or learnt from their actions and the events to date. In the defendants’ submission, this home study interview was the [P]s’ opportunity not only to hear, but to respond to, all the concerns the Service had in respect of the events concerning [N], and in respect of the [P]s as potential adoptive parents.

[160] It would have been naive of the [P]s to suggest that at this stage they remained in ignorance of the concerns of AS. They had been the subject of submission to the Family Court when AS opposed the making of the interim adoption application; they had been canvassed at least to some extent before Judge Frater in the Care and Protection proceedings, although that matter did not proceed to a full hearing; they had been referred to in correspondence with the [P]s’ solicitors. But at no stage until Ms Pitt and Mr Weston confronted the [P]s on the home study visit on 4 March 1999 were the full nature and extent of the concerns which had prompted AS in the actions it took, and which would inform its ultimate decision not to recommend Mr and Mrs [P] for an inter-country adoption, put to the [P]s for their consideration and response. Indeed on 25 February 1999 Mr Malu wrote to Mr Wilkinson at Reeves Middleton Young, then acting for the [P]s, that he was “unsure of how the (Care and Protection) report will influence the Agency”, but that the report would of course be considered and the [P]s invited to comment.

[161] The defendants submitted that the plaintiffs could not reasonably have been left in any doubt that the defendants disapproved of their actions in relation to [N], that they would have been well aware of the nature of this disapproval from the adoption proceedings and the Care and Protection proceedings, that they had a full opportunity during the Pitt and Weston interview to answer the matters of concern to AS when they were put fully to them by the social workers and that they were -

“. . . well aware of the purpose of the Home Study Report and could not have reasonably expected that it would necessarily be positive.”

[162] This view of the situation overlooks some important aspects relating to the Pitt and Weston visit. Mr and Mrs [P] had been pressing through their solicitors for the updated Home Study Report to be completed. They had experienced a home study visit by Patricia Brooke prior to the first report and were familiar with the ensuing report which was favourable to them. They had experienced a second home study visit from Patricia Brooke in October 1998. They were subsequently advised that a third home study visit would be conducted by other independent social workers so that a fresh Home Study Report could be completed. I do not consider it can reasonably or fairly be suggested that Mr and Mrs [P] should have anticipated or understood that the occasion of the visit of Mr Weston and Ms Pitt was their opportunity, and their only opportunity, to hear, receive and respond to the numerous concerns and allegations concerning their actions in respect of [N] which would be absolutely crucial in informing the ultimate decision of AS whether to approve them as adoptive parents. At the very least, in my view, they should have been provided with Ms Sharland’s Care and Protection report of 19 January 1999 and provided full and fair opportunity to respond to it. They should also have been advised that the matters which prompted the Care and Protection proceedings and which were referred to in Ms Sharland’s report, would indeed be relevant to the decision AS would need ultimately to take, as to whether to approve Mr and Mrs [P] as adoptive parents.

[163] The Pitt and Weston home visit did not provide Mr and Mrs [P] with a fair opportunity to be heard on these very critical concerns and issues. They were confronted with a series of very important and difficult issues put in the form of questions by Ms Pitt, derived from her examination of the file and her background research into the matter. The manner and environment in which they were confronted, did not provide them with fair opportunity to be heard in their own defence in relation to matters which affected them crucially. In short, to adopt the expression of the Court in Furnell v Whangarei High School Board, it was not “fair play” and in answer to the questions posed by the plaintiffs’ counsel, they were not treated fairly in accordance with the principles of natural justice. For these reasons the Home Study Report of 10 May 1999 must be unlawful and declared invalid.

[164] The plaintiffs also alleged that Ms Pitt did not have the necessary degree of independence in relation to the home visit and the 1999 report. The allegation is based on her receiving and redirecting a telephone inquiry from Immigration on 22 July 1998, and working in the Palmerston North office of the Service where Jean Cunningham, Ms Brooke’s supervisor, also worked. Ms Pitt’s evidence is that she had no association with the matter beyond conveying the telephone inquiry on 22 July 1998. Given my finding of invalidity in respect of the 1999 report on other grounds, it is unnecessary to decide this point. However, while I doubt that the evidence sufficiently supports the plaintiffs’ allegation, I express the view that it was unfortunate in a matter of such delicacy and importance, that the independence of the social workers appointed to the task, was not beyond question.

[165] The plaintiffs allege against the defendants and in particular the second defendant Ms Iwanek, that she showed bias and predetermination against them. The contention seems to rely significantly on Ms Iwanek’s intervention in relation to the October 1998 report. This is linked with a submission that Ms Iwanek was motivated by improper purpose in that her dominant purpose in opposing the adoption was to avoid getting off side with the Thai authorities. I do not accept those contentions. While it is demonstrably clear that AS, including Ms Iwanek, formed an adverse view of the plaintiffs’ actions in respect of [N], that view was reached on the facts known to AS and from inferences reasonably available from those known facts. I do not find evidence which supports the plaintiffs’ contention that Ms Iwanek or other officers in the Service were biased against the plaintiffs, nor that they predetermined the unfavourable decision in the 1999 report.

Claim under the New Zealand Bill of Rights Act 1990

[166] The plaintiffs claim against the third defendant, the Attorney-General, compensation for breach of the New Zealand Bill of Rights Act 1990, in particular s 27(1). While I have found a breach of the principles of natural justice which leads to a declaration of invalidity in respect of the 1999 Home Study Report, I do not consider this is an appropriate situation for an award of compensation. The amended statement of claim alleges that the plaintiffs have been or will be deprived of the opportunity to adopt children. They claim they are now past the age where they can be considered for adoption, based on what is referred to as “a long standing departmental practice” that to be suitable for adoption, prospective parents must both be under the age of 40. No evidence was offered in support of this “practice”. There is certainly nothing in the Thai Regulations which suggests a maximum age limit for adoptive parents. Further, in their own affidavit sworn 15 May 2000 (para 5), Mr and Mrs [P] request that the Service be directed to forward without delay their ICA documents to the Thai authorities and that they be placed immediately and without further inquiry in the “pool” for in-country adoption. That certainly does not suggest that they are ineligible to pursue an adoption.

[167] Further, the ultimate decision as to whether Mr and Mrs [P] would have succeeded in adopting a Thai child did not, and does not, rest with the Service. Even assuming that a report containing a positive recommendation had been sent to the Thai authorities, there must have been considerable doubt given the history of the [N] matter, that the Thai authorities at that stage would have approved adoption by the [P]s of a Thai child, let alone [N].

[168] Finally, I consider the declaration of invalidity provides an adequate remedy in the circumstances of this case. It will be open to Mr and Mrs [P] if they wish to pursue adoption, to have their suitability for adoption reconsidered by AS. Mr and Mrs [P] would need to accept that the history of the matter involving [N] will form part of the background upon which AS will draw in making its determinations. The matter would need to be reconsidered by or on behalf of the Service by persons who have not been associated in any way with its history. Any future processes or decisions of AS in the matter, would need to be conducted in the light of this judgment.

The Review Process

[169] AS offered Mr and Mrs [P] a review of the processes leading up to the decision in the 1999 report. They declined, because they did not accept the terms and conditions upon which the review was offered. One condition was that Ms Iwanek would be part of the panel of three to conduct the review. I do not see that Ms Iwanek could properly form part of a review panel given her involvement in this matter.

[170] There is no statutory basis for the review. It was a mechanism offered by the Service to try to ensure integrity in relation to the reports of social workers in adoption matters (whether under s 10 of the Adoption Act or in relation to inter-country adoptions). Given the important rights of persons which may be affected by such reports, it is unfortunate indeed that there is no statutory right of appeal or review, and it can only be hoped that in the forthcoming review of the adoption legislation this serious gap will be remedied.

[171] However, in the light of my decision in relation to the 1999 Home Study Report, nothing turns on this matter.

Result

[172] For the reasons set out in this Judgment -

[a] There will be a declaration that the 1999 Home Study Report is invalid and unlawful.

[b] All other claims of the plaintiffs are dismissed.

Costs

[173] The plaintiffs have been partially successful. They are entitled to costs. If the parties cannot agree upon costs they may submit memoranda - the plaintiffs within 21 days, the defendants within a further 7 days of the date of this judgment.