Norman v Attorney-General

[2020] NZHC 1483

NOTE: PURSUANT TO S 22A OF THE ADOPTION ACT 1955, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE

SEE judgments/

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-000579

[2020] NZHC 1483

BETWEEN

NORMAN

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing:

4 June 2020

Appearances:

B Keith and R Fletcher for the Appellant

K Wevers and L MacKay for the Respondent

Judgment:

29 June 2020

JUDGMENT OF DOOGUE J

Introduction

[1]                 On 28 February 2020,1 this Court gave judgment on an appeal from a judgement of Judge P Grace in the Family Court at Wellington,2 dismissing the appeal. The intended appellant, Ms Norman, has applied for leave to appeal this decision to the Court of Appeal.

1      Norman v Attorney-General [2020] NZHC 336.

2      [2019] NZFC 7023.

NORMAN v ATTORNEY-GENERAL [2020] NZHC 1483 [29 June 2020]

[2]                 Section 60 of the Senior Courts Act provides that the decision of the High Court on appeal from the Family Court is final, unless a party obtains leave to appeal against the High Court decision.

[3]                 Ms Norman also sought an extension of time for filing the application for leave to appeal, from 30 March 2020 to 11 May 2020. The delay in filing was occasioned by the impact of the COVID-19 pandemic. No opposition was mounted to the application for an extension, and I granted it at the outset of the hearing.3

Approach on appeal

[4]                 The principles applying to applications for leave to appeal were set out in the Court of Appeal decision of Waller v Hider.4 They are:

(a)the case must show some features that justify a second appeal, such as raising some question of law or fact which is capable of bona fide and serious argument;

(b)there must be some interest, public or private, of sufficient importance to outweigh the costs of the appeal; and

(c)the function of the second appeal Court is not general correction of error, but is to clarify the law.

[5]The Court of Appeal has subsequently affirmed these principles.5

[6]                 Not every alleged error of law will be of such importance to justify further litigation of a matter which has already twice been considered by a Court.6

[7]                 In Williams v Scott, Faire J stated that the High Court needs to identify the questions on which it grants leave, noting that the Court of Appeal disapproves of

3      High Court Rules 2016, r 1.19.

4      Waller v Hilder [1998] 1 NZLR 412 (CA).

5      Snee v Snee (1999) 13 PRNZ 609, [2000] NZFLR 120 (CA); JEF v TLR [2012] NZCA 612,

(2012) 29 FRNZ 150; and S v W [2014] NZCA 199.

6      Waller v Hilder, above n 4, at 413.

attempts, by way of second appeal, “to air, for the third time, every issue between the parties, no matter how trivial.”7

Issues raised by appeal

[8]The application for leave to appeal seeks to raise the following issues:

(a)Did the Court err in law in its assessment of the best interests of the children by:

(i)treating the relative beneficial effect of the proposed adoption on the children’s immigration status as distinct from and/or limited in its relevance to the best interests of the children;

(ii)conditioning its assessment on the premise that the purpose of adoption is the creation of a new family; and

(iii)not placing more weight on the educational and other socioeconomic advantages the children would enjoy as a result of the proposed adoption.

(b)Did the Court err in law in construing New Zealand’s international obligations under art 21(b) of the United Nations Convention on the Rights of the Child (the CRC),8 when assessing whether the children could be cared for in “any suitable manner” in Ethiopia, by:

(i)finding the children could be cared for in a suitable manner by their current caregiver in Ethiopia, notwithstanding the fact that they live in poverty; and

(ii)not recognising the distinct nature of intrafamily adoptions (as compared to other intercountry adoptions).

7      Williams v Scott [2014] NZHC 3385 at [20], relying on GFM v JAM [2013] NZCA 660, [2014] NZFLR 418 at [19]-[22].

8      United Nations Convention  on the Rights of the  Child 1577 UNTS 3 (opened for signature     20 November 1989, entered into force 2 September 1990).

(c)Did the Court err by relying on assumptions, without evidence, contrary to the requirements:

(i)in art 21 of the CRC that an adoption decision be made in light of reliable information;

(ii)of procedural fairness; and

(iii)that the children’s views are considered.

Submissions

[9]                 Counsel for Ms Norman, Mr Keith, submitted that the issues raised on this appeal are capable of bona fide and serious argument, raising questions of law, of both public and private interest, of sufficient importance to outweigh the cost and delay of a further appeal. Mr Keith further submitted that the appeal is sought to clarify the law and determine whether the law has been properly interpreted and applied in the High Court decision, as he claims an injustice has occurred.

[10]              Counsel for the respondent, Ms Wevers, submitted the Court did not err, and none of the grounds meet the standard for leave to appeal. She also submitted a change in circumstances since the hearing creates an additional hurdle for Ms Norman; the eldest child is now 20 years old, and the Court no longer has jurisdiction to make an adoption order in relation to her,9 so any further consideration of the proposed adoption would have to consider the disadvantage of separating her from her siblings.

Analysis of the grounds of appeal

Assessment of the best interests of the children

Relevance of immigration advantages

[11]              Mr Keith submitted that the consequences of immigration in the present case should be considered a positive contribution to the children’s best interests. Mr Keith

9      Adoption Act 1955, s 2, definition of “child”.

also submitted that if adoption is in the children’s best interests, “concerns for immigration policy fall away”.

[12]              This argument suggests that the judgment dismissed the appeal in order to uphold immigration policy, by viewing immigration as a negative rather than positive factor, rather than properly assessing the best interests of the children.

[13]              The judgment contained an expression of two principles in relation to the relevance of immigration status to the assessment of best interests: it is unlikely to be in the best interests of a child to be adopted by a person who is primarily motivated to confer citizenship or residency;10 and there is some tension between the effect of the Act on citizenship and the Immigration Act 2009, and the Act should be applied in a way that is mindful of the statute book as a whole.11 The judgment also recognised the potential material and educational advantages for the children should they become New Zealand citizens, and took this into account in determining whether the proposed adoption would be in the children’s best interests.

[14]              Further, the judgment records that Ms Norman’s application for an adoption order was not an attempt to circumvent the Immigration Act and that her motivation for wishing to adopt the children was genuine.12

[15]              I am therefore not satisfied that this ground establishes a question of law or fact that justifies granting leave.

Premise that the purpose of adoption is the creation of a new family

[16]              Mr Keith submitted that the conception of adoption as directed towards the creation of a new family arises  in  the  particular  context  of  adoptions  within  New Zealand, where more flexible measures such as long term placement or shared care are available and preferable. He submitted the concept of adoption as creating a new family is less relevant to an intrafamily intercountry adoption, as such adoptions

10     Norman v Attorney-General, above n 1, at [76(f)].

11     At [76(a)].

12     At [80]-[81].

do not entail the formation of a “new” family, but rather a profound change in primary parental responsibility within the wider family.

[17]              He also submitted that the assessment of the best interests of the children should focus on whether the adoption promotes full and effective enjoyment of the rights conferred by the CRC; and it would be inconsistent with art 21 to “focus or precondition [the] best interests assessment on the creation, or not, of a new family”.

[18]              I do not consider that the judgment did “precondition” the assessment of the best interests of the children in this way. Rather, before I assessed what was in the children’s best interests, I first considered the purpose of adoption, recognising the reality that an adoption order alters the child or children’s existing family relationships. Further, the judgment recorded this was but one factor pointing against granting the adoption order. The judgement traversed various advantages and disadvantages of the proposed adoption and concluded that, overall, it was not in the best interests of the children.

[19]              However, I consider Mr Keith has presented an arguable case that the judgment may have placed too much weight on this factor, and I grant leave to appeal on this ground.

Consideration of socioeconomic and educational factors in adoption applications

[20]              Here the question sought to be raised on appeal is whether it is correct to treat socioeconomic and educational advantages as either: rendering an adoption unnecessary, disproportionate or not appropriate; and/or insufficient to justify making an adoption order, whether alone or relative to the unhappiness and distress caused by separation of the children from their current family connections.

[21]              Mr Keith submitted that the CRC makes express and mandatory provision for the rights of children to healthcare, education, and a standard of living sufficient for their development. More simply, he submitted the Court ought to have had greater regard to the fact that Ethiopia is a “fragile state”, and a state in which girls and women are at particular risk.

[22]              A proper reading of the judgment makes it clear the Court did not consider that socioeconomic and educational factors render or exclude an intercountry adoption as disproportionate or inappropriate. Rather the judgement observed that if the primary motivation of a proposed adoption is to create educational or socioeconomic opportunities, rather than to create a permanent family life for a child or children, that will be a factor pointing against an adoption order being an appropriate step. Further, the Court did engage in a comprehensive assessment of the interests of the children, albeit without reference to the articles of the CRC. Two Courts have now considered the best interests of the children, and found the potential benefits gained from living in New Zealand do not outweigh the negative consequences of relocating the children.

[23]              I am not satisfied that this ground establishes a question of law or fact that justifies granting leave.

Assessment of whether the children could be cared for in “any suitable manner” in Ethiopia

[24]              Mr Keith submitted that if the circumstances in the country of origin do not afford the children their basic rights under the CRC, care in that country cannot be suitable in terms of art 21(b). Mr Keith submitted that the ultimate issue is whether the care in Ethiopia is “suitable”, informed by reference to the best interests of the children interpreted in light of the totality of rights provided under the CRC.13 Mr Keith also submitted intrafamily adoptions can be distinguished from other intercountry adoptions.

[25]              As Ms Wevers submitted, the terms of art 21(b) of the CRC and the preamble to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention) make clear that the question of suitability relates primarily to the caregiver, rather than to the general suitability of the country of origin itself. For example: the preamble to the Hague Convention states intercountry 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”; art 21(b) of the CRC states intercountry adoption may be considered as an alternative means of a

13     Philip Alston, Nigel Cantwell and John Tobin “Article 21: Adoption” in John Tobin (ed) The UN Convention on the Rights of the Child: A Commentary (Oxford University Press, 2019) 759 at 800.

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”; and commentary records that intercountry adoption may be the best permanent solution for “children who cannot be cared for in a family setting”.14

[26]              The logical extension of Mr Keith’s argument is that all children whose CRC rights are not being met are not being cared for in a suitable manner for the purposes of an intercountry adoption. That would mean that significant numbers of children around the world, particularly the developing world, would be eligible for intercountry adoption. That is contrary to the purpose of the Hague Convention and to art 21(b) of the CRC.

[27]              It is not clear what error Ms Norman relies on for claiming that the distinct character of intrafamily adoption was critical here. Neither the Act nor the international conventions distinguish intrafamily and stranger adoptions. The judgment referred to the authorities recognising that intercountry adoptions, particularly by family members, might be preferable to the options in the child or children’s country of origin.15 Ultimately, the Court has to consider each proposed adoption on the facts and circumstances of the case, which is what the judgement traversed in this case.

[28]              I am not satisfied that there is a question of law or fact under this ground to justify granting leave.

Whether further enquiry was necessary given adverse assumptions/uncertainties

[29]              Mr Keith submitted the judgment relied on certain assumptions and uncertainties:

(a)an expression of doubt as to whether Ms Norman “truly apprehends” the burden of the proposed adoption;16

14     At 800.

15     Norman v Attorney-General, above n 1, at [64]-[66].

16 At [92].

(b)concerns about the potential risk to the psychological wellbeing of the children if they are separated from their current caregiver, and their ability to settle in New Zealand;17 and

(c)a lack of clarity about whether the children were well-informed enough for reliance to be placed on their views.18

Requirements that decisions be made in light of reliable information and in accordance with procedural fairness

[30]              Mr Keith submitted that “risks or assertions”, including the unknown impact of the relocation on the children, ought not to be relied on. Mr Keith also submitted the CRC required concerns lacking evidence to be further investigated, otherwise those concerns may not displace the evidence-based best interests assessment.

[31]              In this case, the Court had before it four social worker reports, a Child Study Report from an approved report writer in Ethiopia, four affidavits from Ms Norman, and evidence from Oranga Tamariki and MBIE officials. Given the range of evidence relied on, I do not consider it was necessary to seek further information.

[32]              Determining whether or not a proposed adoption is in the best interests of a child or children necessitates consideration of potential impacts of a future event. The nature of the assessment of the children’s best interests unavoidably includes some uncertainties, and the Court needs to take account of risks when making its assessment. I note Whata J’s comments in Henderson v Attorney-General, that the absence of a social worker’s report or an incomplete report may provide a proper basis for declining an adoption application,19 and in international adoptions there is no obligation on a social worker to make any particular inquiries beyond what is reasonable and practicable in the circumstances.20

17     At [95(c)]-[95(d)].

18 At [99].

19     Henderson v Attorney-General [2015] NZHC 1971, [2016] NZFLR 687 at [67].

20 At [70].

[33]              I also note it is not clear what fresh evidence Mr Keith would seek to rely on, to show the judgment was in error. I am therefore not satisfied there is a question of law of fact under these grounds that justifies granting leave.

Requirement to ensure the children’s views are considered

[34]Article 12 of the CRC provides:

1.   States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2.   For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

[35]              The United Nations Committee on the Rights of the Child has described the art 12 right as unique in international human rights law, and has noted “[t]he right of all children to be heard and taken seriously constitutes one of the fundamental values of the [CRC].”21 To be effective, that requires the provision, and the elucidation where needed, of appropriate information:22

…a child’s right to seek, receive and impart information under article 13 and the right to receive information more generally under article 17 are key to the implementation of article 12. Both are ‘crucial prerequisites for the effective exercise of the right to be heard’.23

[36]In respect of adoption in particular, the requirement is more stringent still:24

Article 21 of the [CRC] states that the best interests of the child shall be the paramount consideration. In decisions on adoption, kafalah or other placement, the “best interests” of the child cannot be defined without consideration of the child’s views. The Committee urges all States parties to inform the child, if possible, about the effects of adoption …

21 UN Committee on the Rights of the Child General Comment No. 12 (2009): The right of the child to be heard CRC/C/GC/12 (20 July 2009) at [1]-[2].

22  Laura Lundy, Aisling Parkes and John Tobin “Article 12: The Right to Respect for the Views of  the Child” in John Tobin (ed) The UN Convention on the Rights of the Child: A Commentary (Oxford University Press, 2019) 397 at 402.

23 UN Committee on the Rights of the Child, above n 21, at [80].

24 At [56].

[37]Consequent on that right, Mr Keith submitted:

(a)the obligation to take account of the children’s views may not be set aside on the basis of concern over whether it is, for example, “entirely clear” that the children are informed; but

(b)instead, the response must either be to seek further information, if there is an evidential basis for concern, and accord the children opportunity to comment or, absent further evidence, to put that concern to one side.

[38]              The judgment recorded that “the children’s wishes are not well-informed enough for reliance to be placed on the fact that they consent to the adoption.”25

[39]              The children were given the opportunity to be heard and to comment. Mr Keith was unable to identify by what mechanism further information could have been gleaned about the children’s wishes.

[40]              The Court did give due consideration and weight to the wishes of the children as required by s 11(b) of the Act. The art 12 rights were thereby recognised. The judgment recognised the children’s expressed wishes. The Court is not required to follow those wishes in the overall assessment of the best interests of the child, for reasons that do not need to be stated. I am therefore not satisfied that there is a question of law or fact on this ground justifying leave to appeal.

Conclusion

[41]              I consider the present appeal raises one issue of sufficient importance to justify an appeal, which is capable of bona fide and serious argument.

Result

[42]              I grant leave to appeal, in relation to the ground set out at [8(a)(ii)], on the following question: did the Court err in finding the creation of a new family should be

25     Norman v Attorney-General, above n 1, at [99].

considered the purpose of an intrafamily intercountry adoption, or inappropriately precondition its assessment of the best interests of the children on this purpose?

Doogue J

Solicitors:

Woods Fletcher, Wellington Crown Law, Wellington