Norman v Attorney-General
[2020] NZHC 336
•28 February 2020
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 336
BETWEEN NORMAN
Appellant
AND
ATTORNEY-GENERAL
Respondent
Hearing: 24 February 2020 Counsel:
L Lewes for the Appellant
K Wevers and R Rutherford for the Respondent
Judgment:
28 February 2020
Reissued:
3 March 2020
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Ms Norman, is a New Zealand citizen living in Wellington. She is originally from Ethiopia and came to New Zealand in 2009. In September 2017 she made an application under the Adoption Act 1955 (the Act).
[2] Ms Norman is seeking to adopt the four children of her eldest sister. The children are aged 19, 18, 16, and 15 years.
NORMAN v ATTORNEY-GENERAL [2020] NZHC 336 [28 February 2020]
[3] The Family Court declined Ms Norman’s application for an adoption order on 6 September 2019.1 Judge Grace declined the application for two reasons:
(a)He held that the children’s identity and blood-link with Ms Norman had not, on the balance of probabilities, been established to the degree where it would be safe to proceed with the application.2 The Judge went onto consider the substantive application in the event he was incorrect on the question of identity.
(b)He concluded that even if the question of identity was resolved in favour of Ms Norman, the welfare and interests of the children would not be promoted by approving the adoption.3
[4] Ms Norman has appealed that decision under s 13A of the Act. The Notice of Appeal identifies a number of alleged errors made by the Family Court. Most of the alleged errors are failing to place sufficient weight on certain factors, such as the position of the caregiver in Ethiopia and the views of the children. As this is a general appeal Ms Norman must demonstrate that the Family Court arrived at the wrong decision. Ms Norman is entitled to this Court’s fresh assessment of the welfare and interests of the children.
[5]Ms Norman submits the Judge erred in:
(a)holding the issue of identity and familial link had not been established; and
(b)concluding that an Adoption Order would not promote the welfare and interests of the children.
[6] Since the Family Court decision, Ms Norman and the children have undergone DNA testing. The DNA test results support the claimed relationship.
1 [2019] NZFC 7023 [Family Court decision].
2 At [85].
3 At [115].
[7] Ms Norman also applies to adduce new evidence on appeal: the DNA evidence that supports the claimed relationship; and Baptismal Certificates as proof of the age of the children.
[8] Since the Family Court decision, Ms Norman’s spouse has also filed a formal consent to the adoption as required by s 7(2)(b).
Approach on appeal
[9] There is limited authority that expressly considers the nature of an appeal against a refusal to make an adoption order under the Act. The authorities that exist point towards the appeal being a general right of appeal, to be determined in accordance with the approach in Austin, Nichols & Co Inc v Stichting Lodestar.4
[10] This is supported by the approach to appeals from Parenting Orders under the Care of Children Act 2004. The Supreme Court has confirmed that when making a Parenting Order, the Court is not exercising a discretion; rather it is making an assessment and decision in the best interests of the child, based on the evidence.5
[11]As a general appeal, the approach is:6
(a)The appellant bears the onus of satisfying this Court that it should differ from the Family Court’s decision.
(b)This Court is only justified in interfering with the Family Court’s decision if this Court considers that it is wrong.
(c)This Court is required to come to its own view on the merits.
(d)The weight this Court gives to the Family Court’s decision is a matter of judgment.
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; Re Gordon
[2019] NZHC 184 at [4].
5 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [35].
6 Austin, Nichols & Co Inc v Stichting Lodestar, above n 4, at [4]-[17].
[12] In the context of an appeal from a Parenting Order made by the Family Court the Court of Appeal has commented:7
Whilst the High Court will naturally give weight to the views of the specialist Court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interests of the child or children concerned. There is no rule of law requiring the High Court to defer in these respects to the Family Court even in a finely balanced case.
The Family Court decision
[13] The application was heard on 4 and 5 September 2019. The Judge issued his decision on 6 September 2019, declining to make the Adoption Orders.
[14] The Judge held that the children’s identity and blood link with Ms Norman had not on the balance of probabilities been established to the degree where it would be safe to proceed with the application.8
[15] He also held that even if the children’s identity could be established it would not be in their best interests to approve the adoption.9
[16] His reasoning included that the fundamental purpose of an adoption is to provide a child or young person with a new family unit because they do not have a family unit, and that in this case the children have a family unit and a loving and supportive relationship with their aunt.10
[17] Further, he concluded that poverty was not a basis for removing young people and allowing them to be adopted.11
Factual overview
[18] Ms Norman was born in Ethiopia. In approximately 2000, her husband at the time arrived in New Zealand as a refugee. At this time, Ms Norman was living in
7 D v S [2003] NZFLR 81 at [18]; Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40 at [9]-[24].
8 Family Court decision, above n 1, at [85].
9 At [115].
10 At [112].
11 At [112].
Khartoum, Sudan. Ms Norman was eventually granted a visa based on her relationship with her husband and came to New Zealand in 2009. Ms Norman became a New Zealand citizen in 2015.
[19] In 2011 Ms Norman and her husband applied to the New Zealand Family Court to adopt five children aged 14 to 19 from her husband’s extended family in Ethiopia. This application was successful, and the children became New Zealand citizens by virtue of the adoption. They arrived in New Zealand on 6 July 2013. Ms Norman and her husband separated later that same year. Ms Norman’s ex-husband and the five children now all reside in Australia.
[20] Ms Norman met her current partner on a trip to Ethiopia in 2015. He travelled to New Zealand in June 2016 on a visitor’s visa. He was granted residence based on his relationship with Ms Norman on 23 July 2018. The couple now have two young daughters.
[21] The children currently live with and are cared for by their aunt (“the current caregiver”) in Ethiopia. The current caregiver is the youngest sister of Ms Norman and the children’s mother. The children have lived with their current caregiver since they were born and she has been their primary caregiver for approximately seven years. The current caregiver also has her own daughter, who is about nine years old. The Child Study Report, prepared by a lawyer in Ethiopia, observes that the relationship between the children and their current caregiver is strong and tight “and that they see [her] more as a mother than an aunt”.
[22] The evidence suggests that the children’s father left Ethiopia in 2010 and ended up in Eretria. In 2012, the children’s mother decided to meet her husband in Eretria and left her children under the care of the current caregiver. There was some telephone contact from the parents in 2011. No one has heard from either parent since approximately 2013.
[23] The current caregiver, her daughter and the children share a room in a house owned by a member of their extended family. Other family members also live in the house. Approximately 15 people live in the house.
[24] The current caregiver supports herself and the children financially with money remitted to her by Ms Norman from New Zealand, and money she earns baking and selling bread. None of the children currently attend school and the younger two have never attended school. The Child Study Report observes that the care the current caregiver is able to provide to the children is limited to basic needs such as food and shelter. There is no question that she is their primary attachment figure and that she provides their needs for love and affection in the absence of their parents.
[25] Before coming to New Zealand in 2009, Ms Norman had limited contact with the children as she was living in Khartoum, Sudan. She gave evidence that during this time she visited the children and their mother once a year at Christmas time. Since moving to New Zealand in 2009, Ms Norman has made two trips back to Ethiopia in 2011-2012 and again in 2015. She visited the children and their current caregiver on these trips.
Overview of legal framework
International dimension
[26] There are three ways in which adoptions with an international dimension might be given effect to in New Zealand.
[27] First, if the child’s country of origin is a signatory to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“the Hague Convention”), an intercountry adoption can occur in accordance with the provisions of the Adoption (Intercountry) Act 1997 (AIA). The AIA does not apply in this case as Ethiopia is not a signatory to the Hague Convention.
[28] Second, s 17 of the Act provides that an adoption that occurs outside of New Zealand according to the law of that place will have the same effect as an Adoption Order validly made under the Act. This does not generally apply to Adoption Orders made in Hague Convention countries if the adoption is by a person habitually resident in New Zealand.
[29] Third, if the child’s country of origin is not a signatory to the Hague Convention, a person can apply for an Adoption Order pursuant to s 3 of the Act. This is the basis of the present application. Section 3(1) provides:
(1) Subject to the provisions of this Act, a court may, upon an application made by any person whether domiciled in New Zealand or not, make an adoption order in respect of any child, whether domiciled in New Zealand or not.
[30] New Zealand is party to two international conventions that are of particular relevance to this case. The first is the Hague Convention. Although Ethiopia is not a signatory to the Hague Convention, it is well recognised by New Zealand courts that it is appropriate to take the principles of the Hague Convention into account in any intercountry adoption. The Hague Convention principles have been “accepted as a benchmark of good practice and have influenced New Zealand responses to inter- country adoptions from countries that are not parties to the Convention.”12 In cases involving adoptions from non-Hague Convention countries, the High Court has held that “the principles of the Hague Convention should be applied by analogy in the application in New Zealand of relevant adoption law”.13
[31] The objects of the Hague Convention are to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child; to prevent the abduction, sale of or traffic in children; and to secure the recognition of adoptions made in accordance with the convention.14
[32] The second international convention of particular relevance is the United Nations Convention on the Rights of the Child (UNCROC). Both New Zealand and Ethiopia are parties to UNCROC. UNCROC contains 54 articles that enshrine a number of civil, political, economic, social and cultural rights for children (being persons under the age of 18). Like the Hague Convention, the UNCROC also recognises the need to take measures to prevent the illicit transfer and
12 Re SP-I-HT (2011) 29 FRNZ 8 at [26]-[27]; see also Re SN [2012] NZFC 9705 at [3].
13 P v Department of Child, Youth and Family Services [2011] NZFLR 721 (HC).
14 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, art 1.
non-return of children abroad.15 UNCROC also includes specific rights that apply in the adoption context.16
Domestic law criteria
[33]The statutory criteria for an adoption order under the Act are as follows:
(a)A person can only be adopted if they are under the age of 20 years.17
(b)Except in special circumstances, the applicant must satisfy one of the criteria in s 4(1). In this case, the applicant relies on s 4(1)(b), that she has attained the age of 20 years and is a relative of the child.
(c)Certain persons, including the child’s parents, are required by s 7 to formally consent to an adoption, unless the Court dispenses with the consent requirement pursuant to s 8.
(d)Before making an adoption order, a social worker is required to furnish a report to the Court on the application.18 The purpose of the social worker’s report is to provide an assessment of the child’s placement with the adopting parents and provide information regarding the fundamental criteria in s 11 of the Act.19
[34]Before making an adoption order the Court must be satisfied that:
(a)every person who is applying for the order is a fit and proper person to have the role of providing day to day care for the child and of sufficient ability to bring up, maintain and educate the child;20
(b)the welfare and the interests of the child will be promoted by the adoption, due consideration being for this purpose given to the wishes
15 United Nations Convention on the Rights of the Child, art 11.
16 Article 21.
17 Adoption Act 1955, s 2, definition of “child”.
18 Section 10(1).
19 TVS (No 1) [1990] NZFLR 411 at 419.
20 Adoption Act, s 11(a).
of the child, having regard to the age and understanding of the child;21 and
(c)any condition imposed by any parent or guardian of the child with respect to the religious denomination in which the applicant intends to bring up the child is being complied with.22
[35] Unless there are special circumstances rendering it desirable that an adoption order should be made in the first instance, the Court will make an interim adoption order.23
[36] The applicant meets the criteria in s 4(1)(b), namely that she is over the age of 20 and is a relative of the child. Ms Norman is 39 years old.
[37] The Judge exercised his discretion under s 8 and dispensed with the requirement under s 7 for the children’s parents to consent to the adoption.24 He concluded that there could be no doubt that the parents had not exercised the duties or obligations over these young people for at least seven years.25 I consider that he was right to do so.
[38] Section 7(2)(b) requires that the spouse of an applicant for adoption must also file a consent if the application is made by one spouse alone. That consent has been filed since the matter came before the Judge.
[39] The social worker has assessed Ms Norman and her partner as fit and proper people to adopt, notwithstanding some concerns regarding their financial resources, housing situation and ability to support the children’s transition to New Zealand.26
21 Section 11(b).
22 Section 11(c).
23 Section 5(b).
24 Family Court decision, above n 1, at [71].
25 At [70].
26 Adoption Act 1955, ss 11(1)(a) and 10(1).
Identity and familial connection
[40] The first issue on appeal is whether the Family Court erred in holding that the issue of identity and familial link had not been established.
[41] In most adoptions, the identity of the child will be established by the child’s birth certificate.27 However, in an intercountry adoption from a fragile state, reliable identity documents are unlikely to be available. Ms Sharyn Titchener of Oranga Tamariki and Mr Matthew Burden of Immigration New Zealand gave evidence that there is often a risk of fraudulent documentation coming from fragile states. In 2019, Ethiopia ranked 23rd out of 178 countries on the Fragile States Index.28
[42] Ms Titchener gave evidence that children living in fragile states are particularly exposed to the risk of child trafficking. They are less likely to have had their births registered and may have been separated from their family through conflict and death. These risks, combined with the risks of living in a country characterised by conflict, corruption and poverty, puts them at greater risk of being moved across borders by people smugglers and traffickers. Accordingly, in an intercountry adoption from a fragile state, it is important that the Court applies a high level of scrutiny to evidence of identity and relationship to the applicant.
[43] The basis of this application is that Ms Norman is the maternal aunt of the four children. The court needs to be satisfied, therefore, that the relationship has been established before proceeding to consider the merits of the application.
[44] By consent I granted leave to Ms Norman to adduce fresh evidence, namely DNA testing results and new Baptismal Certificates. As a result of the new DNA evidence admitted on this appeal, it is incumbent on this Court to consider the question of relationship afresh.
[45] The DNA report summary states that the DNA evidence supports the claim to relationship between Ms Norman and the children. For each child, the report states
27 An applicant for adoption is required to lodge a certified copy of the child’s birth certificate with the court before the hearing (Adoption Regulations 1959, r 8(2)(a)).
28 Fragile States Index Annual Report 2019 (The Fund For Peace, 2019).
that the most likely relationship is aunt and niece/nephew, or grandmother and grandchild. The DNA test results confirm a family relationship between Ms Norman and the four people who went to the DNA clinic in Addis Ababa.
[46] The DNA testing by itself does not link to the children who are the subject of this application. Theoretically DNA samples could have come from other relatives of Ms Norman. However, the DNA test report dramatically narrows the range of individuals potentially in question.
[47] Together with the other evidence, the DNA test report is very helpful in building an identity profile and significantly reduces the risk of identity fraud. I must assess the DNA report alongside all the evidence and determine whether it is sufficient to be satisfied on the question of identity.
[48] The other aspect of identity evidence is age, because a person can only be adopted if they are under 20 years old.
[49] This Court must be satisfied that each of the children are under the age of 20.29 The DNA evidence does not establish the children’s age. There is no state issued identity document to verify their age either. Ms Norman relies primarily on the baptismal certificates to establish age. I agree with the Judge’s observation that a degree of caution is needed when considering the validity of the Baptismal Certificates because of the risk of fraudulent documentation in fragile states.30
[50] The Family Court’s decision at [28]-[31] identifies a number of issues with the baptismal certificates including:
(a)the dates on the certificates are different from the dates on the English translated copies. Ms Norman has explained this is due to Ethiopia using a different calendar – not the standard Gregorian calendar. The Judge accepted that explanation appeared to have some validity.
29 Adoption Act, s 2, definition of “child”.
30 Family Court decision, above n 1, at [27].
(b)The photos of the children that were attached to the certificates appeared to have been attached nine years after the baptism. There is no formal identification that the young person in the photo is the person named in the certificate.
[51] Counsel for Ms Norman submits that the identity of the children is established by an aggregate of several pieces of evidence:
(a)the DNA testing;
(b)the photographs attached to the DNA tests;
(c)the signature of witnesses who attested to sighting the children in person, on the photo of each child;
(d)the Baptismal Certificates (which included a photo in each case);
(e)the Child Study Report; and
(f)interviews conducted with the children.
[52] I have considered this evidence and have also compared the photographs that accompany the DNA test report, the photos in the Child Study Report, and the Baptismal Certificates.
[53] I conclude that Ms Norman has proved the necessary familial link to the children to the requisite burden of proof – the balance of probabilities.
[54] Counsel for Ms Norman submits the Judge’s decision was incorrect on this point. I do not agree. He did not have the benefit of the fresh evidence now available and I would have come to the same conclusion on the evidence available to him at the time he heard the matter.
Is it in the welfare and best interests of the children to be adopted by the appellant?
Legal principles
[55] The second issue on appeal is whether the Family Court erred in concluding that even if Ms Norman is the maternal aunt of the children and they are all under the age of 20, the proposed adoption would not promote their welfare and best interests.
[56] Adoption is a significant step involving the substitution of new parents for the existing parents of a child. The substitution is total: the existing parents cease in law to be parents of the child.31 It has been described as a “statutory guillotine”.32 Due to the legal fiction and permanence that adoption involves, the court has shied away from making adoption orders in the domestic context, preferring guardianship orders unless there is a particular advantage to the child from the adoption.33
[57] In this case there are additional reasons for the court to exercise caution. First, Ethiopia is not a signatory to the Hague Convention. Accordingly, the safeguards in the Hague Convention, including steps by the state of origin to ensure the adoption is in the children’s best interests, are not in place here. Second, the Court is unlikely to have the option, in practical terms, of first granting an interim adoption order. Under the Act, the Court is required to first make an interim adoption order unless special circumstances exist.34 One of the reasons for this is to provide Oranga Tamariki with an opportunity to monitor the placement to ensure that adoption will promote the children’s welfare and interests.35 However, the children would not be able to travel to New Zealand without first obtaining New Zealand passports, which will only be possible with a final adoption order. Third, the children have not been able to appear personally before the court, as is generally required.36
31 Adoption Act, s 16; Mark Henaghan and others Family Law in New Zealand (19th ed, LexisNexis, Wellington, 2019) at [6.701A].
32 Brookers Family Law - Child Law (online ed, Thomson Reuters) at [PA5.25].
33 Henaghan, above n 31, at [6.701B]; Adoption of AJM [2005] NZFLR 529 at [33].
34 Adoption Act, s 5.
35 Henaghan, above n 31, at [C6.713A].
36 Adoption Regulations 1959, r 10.
[58] The Court is required to make an overall assessment of whether the welfare and interests of the children would be promoted by the adoption. This involves a comparison with what can reasonably be predicted if the adoption does not proceed.37 A number of cases set out non-exhaustive lists of considerations that are taken into account.38 Ultimately, however, the assessment is fact dependent and case specific.
[59] In a case of intercountry adoption under the Act, the “welfare and interests” of the child in s 11(b) must be interpreted in a manner that is consistent with international law and New Zealand’s international obligations.39
[60] The Hague Convention and UNCROC both reflect the subsidiarity principle, that an intercountry adoption may only be considered if a child cannot be cared for “in a suitable manner” within the child’s country of origin.40
[61] The Hague Convention and UNCROC explicitly recognise that intercountry adoption can be in the best interests of a child in an appropriate case, however the subsidiarity principle enshrined in these conventions has the effect of placing what counsel for the Attorney-General described as a “thumb on the scale” in favour of a child remaining in their country of origin.
[62] The preamble to the Hague Convention recognises that “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”. Under the Hague Convention, intercountry adoptions can only proceed after the state of origin has given due consideration to the possibilities for placement of the child within the state of origin and concluded that an intercountry adoption is in the child’s best interests.41
[63]Article 21(b) of the UNCROC provides that parties shall:
37 Re B [2007] NZFLR 399 at [44].
38 See for example Re Finau [2016] NZFC 9646 at [31]; K v Attorney-General (2006) 25 FRNZ 413 at [48].
39 New Zealand Airline Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (NZCA) at 289; Tukaki v Commonwealth of Australia [2018] NZCA 324 at [34].
40 John Tobin The UN Convention on the Rights of the Child (Oxford University Press, 2019) at 795- 796; see also Nigel Cantwell The Best Interests of the Child in Intercountry Adoption (UNICEF Office of Research, 2014) at [3.3].
41 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, article 4.
Recognise that inter-country adoption may be considered as an alternative means of 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.
[64] The United Nations Committee on the Rights of the Child (CRC) has said that intercountry adoption should be considered “as a measure of last resort”.42 This likely goes too far as the principle of subsidiarity has to be interpreted in light of the principle of the best interests of the child.43 The Hague Convention has said in the majority of cases an intercountry adoption would be preferred ahead of institutionalisation or multiple temporary foster homes. In that sense, an intercountry adoption is not a “last resort”.44 The CRC has recommended that:45
Priority must be given to adoption by relatives in their country of residence. Where this is not an option, preference will be given to adoption within the community from which the child comes or at least within his or her own culture.
[65] The Hague Convention Guide to Good Practice confirms that the Hague Convention applies to intercountry adoptions by relatives, and also notes that adoption by a family member abroad might be preferable to a national adoption by a non-relative.46
[66] In New Zealand, the Family Court in K v Attorney-General commented that many of the concerns regarding international adoptions are not necessarily apposite where a family member is seeking to step into a caregiving role when children have been orphaned in another country.47 Judge Ullrich said that in such a case there would be “no question of depriving the natural parents of the child and the prospective adopters share the language, culture, racial and religious characteristics of the potential adoptees.”48
42 UN Committee on the Rights of the Child General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin CRC/GC/2005/6 (1 September 2005) at 18; Tobin, above n 40, at 796; UNICEF Implementation Handbook for the Convention on the Rights of the Child (3rd ed, UNICEF, 2009) at 298.
43 The Implementation and Operation of the 1993 Hauge Intercountry Adoption Convention: Guide to Good Practice (Hauge Conference on Private International Law, Bristol, 2008) at [51].
44 At [52]-[53].
45 UN Committee on the Rights of the Child, above n 42, at 25; UNICEF, above n 42, at 298.
46 The Implementation and Operation of the 1993 Hauge Intercountry Adoption Convention: Guide to Good Practice, above n 43, at [511] – [516].
47 K v Attorney-General, above n 38, at [52].
48 At [53].
[67] The Act does not contain the stated purpose for an adoption. However, a number of cases recognise that the purpose of adoption in the modern day is to create a permanent family life for a child that otherwise does not have one.49 The Law Commission has recommended that the fundamental purpose of an adoption should be to provide a child, who cannot or will not be cared for by his or her own parents, with a permanent family life.50 It has been said that an applicant for adoption must have a bona fide desire to create a parent-child relationship.51 Although the Act does not expressly require an adoptive parent to have a particular purpose, the adoptive parent’s motivation is plainly relevant to the assessment of the welfare and interest of the child. If an adoptive parent is motivated by factors other than a genuine desire to care for and raise the child as their parent, that is likely to speak against the adoption being in the best interests of the child.52 This is particularly so given that the legal effect of an adoption is to bring a permanent end to the existing parental relationship. The corollary is that where a proposed adoption is driven by other factors, such as socioeconomic factors, adoption is likely to be unnecessary and disproportionate.
[68] There is a significant body of case law (mostly at Family Court level) that considers the relevance of immigration factors to an adoption application.53 This issue arises because of the potential for intercountry adoptions to be used to circumvent immigration restrictions. New Zealand has a detailed legislative framework to manage and control the persons entitled to reside in New Zealand. For example, New Zealand citizens and permanent residents who wish to bring a dependent child (who is not a New Zealand citizen) to live with them permanently in New Zealand must apply for a dependent child resident visa.54 I received evidence about the checks and processes that Immigration New Zealand (INZ) undertakes on persons applying for visas to New Zealand. By comparison, INZ has no formal role when a
49 For example, Re application by Nana [1992] NZFLR 37 at 42; K v Attorney-General above n 38, at [31]. As discussed above at [16], the Judge noted this in the Family Court decision.
50 Law Commission Adoption and Its Alternatives: A different Approach and a New Framework
(NZLC R65, 2000) at [168].
51 Brookers Family Law - Child Law, above n 32, at [PA2.1.02].
52 Henaghan, above n 31, at [6.708E].53 For example: Re application by Webster [1991] NZFLR 537; Adoption Application by V [2001] NZFLR 241; K v Attorney-General, above n 38; DJS v NPF FC Tokoroa FAM-2008-077-000050 (19 December 2008); Re SP-I-HT, above n 12; Re NCS [2013] NZFC 3034; GI v PAI [2014] NZFLR 93; Bahri v Adoption Services [2017] NZFC 8164; Re A [2019] NZFC 1913.
54 See “Information about Dependent Child Resident Visa” Immigration New Zealand
< Zealand Citizen adopts a child from overseas. Once the Family Court makes the adoption order, the child automatically becomes a New Zealand Citizen by virtue of ss 3(2) and 7 of the Citizenship Act 1977.
[69] There is some variation in the Family Court’s approach to immigration factors, but in broad terms, the weight of Family Court authority is to the effect that it is not appropriate to make an adoption order where the adoption is “purely for the purpose of immigration.”55 However, if the immigration advantage is only one of the motivations and the adoptive parents are also motivated by a genuine interest in the upbringing of the child, then an adoption order may be appropriate provided that the adoption is in the best interests of the child, taking all factors into account.56
[70] There is limited High Court authority on the issue. In Lynch v Peach the High Court cited with approval the following statement:57
Where an application is made to adopt a child not domiciled in New Zealand the Court must be satisfied that the child’s welfare will be promoted by being a member of a family in New Zealand rather than the advantages that merely flow from residing in New Zealand. An application for adoption involves the creation of a parent/child relationship and is not a substitute for an entry permit into this country.
[71] That case concerned an application by a husband and wife to adopt the wife’s four siblings from Samoa. The Judge commented that if one merely had regard to the quality of life in Samoa as compared with the quality of life in New Zealand, one may quite easily be able to say that it would be to a person’s advantage to be brought up in New Zealand rather than Samoa. However, he concluded that could not be the overriding factor in relation to an adoption application, because the courts must look at the motives behind the application and endeavour to ascertain whether the application is genuine.58
[72]The more recent High Court decision in Henderson v Attorney-General
appears to prefer a different approach, although the question of immigration purpose
55 K v Attorney-General, above n 38, at [98].
56 See, for example: Bahri v Adoption Services, above n 53, at [50]; Re SP-I-HT 29, above n 12, at [34]–[54]; Re Rahal [2017] NZFC 2152 at [33]; DJS v NFC, above n 53, at [5].
57 L v L (1984) 1 FRNZ 144 as cited in L and L v P (1986) 4 NZFLR 75 at 78.
58 L and L v P, above n 57, at 78.
was not squarely before the Court.59 In that case, and without discussing the existing authorities, Whata J commented that:
… there is nothing in the Act to suggest that concerns about immigration are mandatory relevant considerations, let alone provide a proper basis by themselves for declining an adoption order to an otherwise satisfactory parent.
[73] Other aspects of Whata J’s decision indicate that he did not intend to suggest that immigration is not relevant to an application to adopt. He observed further:
… rigorous application of the s 11 criteria should provide an adequate immigration filter in terms of excluding those persons who do not have a genuine interest in the bringing up of the children or where adoption is not in their best interests ...
[74] In a footnote, he also cited with approval the Family Court’s approach in GI v PAI where the court considered that an adoption being used for “purely” immigration purposes should be refused, but that if it is not the primary motivation it need not be a barrier to approving the application.60 Finally, Whata J commented “some care is needed to avoid inadvertently grafting onto the s 3 jurisdiction the capacity to circumvent the detailed and complex legislative regime dealing with immigration”.61 He did not indicate how that might be achieved.
[75] A very helpful summary of the law, jurisprudence and legal commentary was provided to me by counsel for the Attorney-General. Counsel for Ms Norman agreed with it.
[76] Thus, I am satisfied that the general approach which ought to be brought to considering cases with an immigration dimension should include consideration of the following principles and factors:
(a)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;62
59 Henderson v Attorney-General, above n 4, at [55].
60 GI v PAI, above n 53, as cited in Henderson v Attorney-General, above n 4, at [59].
61 At [64].
62 See Grant v McDermott [2014] 2 NZLR 696 at [21].
(b)the jurisdiction of the Family Court should not be misused to circumvent the Immigration Act 2009;
(c)the motivation behind an adoption application is relevant to the assessment of whether the applicants are fit and proper persons to adopt, and to the assessment of the welfare and interest of the child;
(d)the statutory criteria in s 11 should be interpreted in light of the modern purpose of adoption to create a permanent family life for a child who otherwise does not have a suitable permanent family life;
(e)the welfare and interests of the child should be interpreted consistently with New Zealand’s international obligations, which demonstrate a strong preference for children remaining in their country of origin;
(f)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, rather than to welcome that child as a permanent member of their family and commit to their upbringing. For example, a child who is adopted to achieve an immigration outcome may not feel they have been really accepted by their new family.
(g)The Family Court in Re SP-I-HT listed a number of factors that can be considered when determining whether an adoption application is made solely for the purposes of securing immigration status or not.63 These factors include the ages of the children;64 whether the children have carers who can adequately provide for their care; whether there is a blood relationship between the applicants and the children; whether the applicant has previously provided care for the children; and the situation in the children’s home country.
(h)It will always be a case specific, fact dependent inquiry.
63 Re SP-I-HT, above n 12, at [34].
64 Henaghan, above n 31, at [6.712C]; Adoption application by T [1999] NZFLR 300 at 304.
Family Court decision
[77] The Family Court’s decision includes a detailed discussion of the relevant facts at paragraphs [87]-[114]. The Judge framed the query as involving a comparison with the children’s current circumstances in Ethiopia, to their prospects in New Zealand. On the one hand, if the children were to stay in Ethiopia they would live a life of poverty in a country marked by conflict, with limited prospects of education or employment. However, they would be living in their own culture with a caregiver with whom they have a strong and loving relationship, and with other extended family. On the other hand, if the children were to be adopted they would be living with an aunt they do not know very well, in a country with a different culture and where they do not speak the language. They would be living in a much more secure and stable country with better health care and other forms of social support, and with greater potential for education and economic advantage.
[78] After undertaking this comparison, he held that he would not approve the adoption for the following reasons:
(a)Due to the age of the two eldest children they would be unable to attend school, and that would likely impact on their future role and contribution to society.65
(b)The children would be dependent on Ms Norman and her partner, and if the arrangement did not work then they would be the responsibility of the state.66
(c)The economic and lifestyle position of the children in Ethiopia was not a dominant factor.67
(d)Ms Norman’s partner had not filed affidavit evidence and his position is not before the Court.68
65 Family Court decision, above n 1, at [96] and [111].
66 At [100].
67 At [104].
68 At [107].
(e)The children had a carer and family unit in Ethiopia, and a “supportive and loving relationship” with their current carer.69 .
Factor (d) is no longer a countervailing factor as I have said in [8].
Analysis
[79]I now consider the principles and factors enunciated in [76].
[80] Having considered (a) and (b), I do not consider this application to be a calculated or cynical attempt to use the Family Court or this Court to circumvent the Immigration Act 2009.
[81] Considering (c), Ms Norman is a fit and proper person to adopt these children. Her motivation is genuine. She should be commended both for the sacrifices she has made for these children already and for the sacrifices she is prepared to make for them both in terms of applying for the Adoption Order and in continuing to financially support them in Ethiopia.
[82] For reasons I shall explain however, in my view she is misguided as to what is in the children’s best interests. Relatedly I do not need to consider (f).
[83]I now consider the statutory criteria in light of principle (d).
[84] The first and critical question is whether the children can be cared for in a suitable manner in Ethiopia. If so, it would be inconsistent with New Zealand’s international obligations to permit an intercountry adoption.70
[85] The children have lived with their current caregiver since they were born, and she has been their sole caregiver for the past seven or so years. There seems no doubt that she is suitable from the perspective of providing the children with a loving and stable family life. The Child Study Report observes that the children have a “very strong and tight relationship amongst each other” and that “they love each other as a
69 At [113].
70 See discussion at [64]–[65] above.
family”, and that the children treat her “more as a mother than as an aunt”. The Child Study Report records that all the children express their “deepest love to each other and to their aunt”. The social worker commented in her report that it is unknown what the impact may be for the children having to leave their current caregiver, as they have already experienced the loss of their parents.
[86] The Child Study Report also observes the presence of a “smooth relationship” between the children and their maternal great aunt, whom the children also live with. Although there are some inconsistencies in the evidence as to exactly who else lives in the home with the current caregiver, maternal great-aunt and children in Ethiopia, it is evident that the children live with family and appear to have wider family support to some extent.
[87] The children’s current caregiver is dependent on funds remitted from Ms Norman in order to provide food and shelter for the children. She is unable to provide the children with anything more than a subsistence lifestyle. The children are not currently receiving any formal education, and it appears the younger two have never attended school. The Child Study Report records that the current caregiver has been acting as guardian of the children without the required court approval; and that this would make it difficult for her to register a child for school or medical care. It is not clear why the current caregiver has not obtained guardianship status or whether there is anything to stop her from doing so now.
[88] The Child Study Report also refers to potential alternative caregiving options in Ethiopia, including community reunification and institutionalisation. Neither of those appear to be suitable alternatives for these young people.
[89] An issue in this case is the weight to be given to the current caregiver’s financial circumstances when assessing her suitability as caregiver in Ethiopia. In New Zealand intercountry adoption cases, the Family Court does take account of the caregiver’s financial position as one of many factors that are relevant to assessing the interest of the child.71 However there does not appear to be a New Zealand authority that directly considers the relevance of financial factors to the meaning of “suitable”
71 Re K [1999] 18 FRNZ 142; Re Teaupa [2016] NZFC 6920.
care in terms of the international conventions. In 2014 UNICEF published a report on the best interests of the child in intercountry adoption which noted that “material poverty should not be seen as a key element in determining whether or not intercountry adoption is in the best interests of a child” and that “allowing [material poverty] to remain as a major consideration in adoption decisions will inevitably and significantly falsify the [best interest determination] process”.72
[90] The UNICEF position is consistent with Oranga Tamariki policy. If the reasons for an intercountry adoption relate to poverty, education opportunities and other issues that can be remediated by continuing or increasing financial support from relatives in New Zealand, prospective adoptive parents in New Zealand are encouraged to find ways to continue supporting their relatives, so that children can remain with their families in their country.73 To conclude that a person with limited independent financial means is an unsuitable caregiver is to completely discount other equally, if not more valuable, welfare factors for the children, namely love and attachment. In this case Ms Norman has said that she would continue to provide that financial support, so it is less of a concern than it would be in other cases. A review of other cases is of limited value on this point because in most of the available cases the caregiving option in the children’s country of origin was much less “suitable” than in the present case.
[91] Under cross-examination in the Family Court, Ms Norman agreed that the children have a family in Ethiopia but said that it was hard for them financially. She described the reasons for the adoption in terms of providing the children with better opportunities, rather than creating a family for them. Whilst I acknowledge she has other motives in pursuing this adoption I was struck by how persistent these themes remained. I think it is realistic of Ms Norman to identify those outcomes and not the creation and preservation of a new family unit, given the relatively mature ages of all four children. This does not mean that the motivations are malign or purely driven by immigration factors, because I accept that Ms Norman is genuine in her interest in the welfare and the support of these children.
72 Cantwell, above n 40, at 73.
73 “Supplementary Report to Adoption Application” (Oranga Tamariki, 13 February 2019).
[92] Further, while I accept the bona fides of Ms Norman, I question whether she truly apprehends the burden she and her partner would be assuming – attempting to assist four teenagers to make such a significant move at such a vulnerable age in their development.
[93] The children say they want to come to New Zealand in order to get an education and employment. There does not appear to be any suggestion from the children that they want to come to New Zealand in order to be raised and cared for by Ms Norman. It seems clear that the purpose of this adoption is to enable the children to live in New Zealand, rather than to create a permanent family life with Ms Norman.
[94] Given that the proposed adoptions are socioeconomic and educationally driven, rather than driven by the need for the children to have a new family, consideration of this factor points against the adoption being appropriate in this case.
[95] I now consider (e) and (g) and conclude that the following factors point against adoption being in the children’s best interests:
(a)Given the ages of the children, they are not going to recreate a parent child relationship with Ms Norman and her partner.
(b)It is not appropriate to sever their obvious, loving and interdependent relationship with one another and their current caregiver and their great-aunt and extended family in Ethiopia.
(c)The psychological distress of leaving their primary attachment figure in the face of the already significant loss of their biological parents would be injurious to their psychological health.
(d)In addition, given their ages in terms of cognitive and psychological development, there would be a risk that they would be vulnerable and not settle easily in New Zealand, in other words, it is not in their benefit to do so psychologically.
(e)Poverty and lack of educational opportunities are not enough to constitute a valid reason for an adoption, particularly whereas here Ethiopia does have free education, even though these children are not accessing it.
(f)Education and economic advantage, alone, are insufficient to amount to best interests of the children and such advantages can be completely undermined by unhappiness and distress, caused by separation from known, loving attachment figures and language and custom.
Wishes of the children
[96] The Court is required by s 11(b) to give due consideration to the wishes of the children, having regard to their age and understanding. The children have expressed a strong desire to come to New Zealand. They are all of an age where their wishes can be given weight. However, caution is required because it is not clear that the children have a well-informed or good understanding of what moving to New Zealand would actually entail.
[97] The children say they want to come to New Zealand for education and employment. Ms Norman gave evidence that she told the children that they could maybe go to school and that they might be able to get jobs. It seems somewhat unlikely that the children have a realistic understanding of what their education or employment opportunities in New Zealand might be. There is simply no evidence that the eldest child understands Ms Norman’s intention is that she will be the caregiver for the younger children (including Ms Norman’s own two children) so that Ms Norman can return to work. That would in my view deprive at least the eldest child of education or employment opportunities outside the home and would almost inevitably lead to social isolation for her.
[98] Furthermore, the children are understandably reluctant to leave their current caregiver. At the Family Court hearing, Ms Norman said in evidence that she had told the children “later they can have [the current caregiver]”, and that the children were asking her to ask the Judge if their current caregiver could come too. One child said on the call with the social worker that she would love their current caregiver to come
to New Zealand, so they could all live together. Another child similarly wanted other family to come and live in New Zealand. It is not entirely clear that the children understand that their current caregiver would not be able to come with them.
[99] I consider the children’s wishes are not well-informed enough for reliance to be placed on the fact that they consent to the adoption.
Conclusion
[100] Having reviewed the evidence (including the fresh evidence relating to the DNA testing, the endorsement of the Baptismal Certificates and the consent of Ms Norman’s spouse to the adoption), I decline to make a final adoption order in favour of Ms Norman for the reasons set out above.
[101] I do not consider the Judge erred in any aspect of his reasoning on the evidence available to him at the time.
Orders
[102]The appeal is dismissed. There will be no costs ordered.
Addendum
[103] This judgment was initially issued on 28 February 2020. However, some typographical errors, a misdescription of the witness Matthew Burden and the omission of the qualifying words “if the adoption is by a person habitually resident in New Zealand” at the end of [28] were brought to my attention by Ms Wevers for the respondent. These errors have now been corrected.
Doogue J
Solicitors:
Crown Law, Wellington
Cuba Family Law Ltd, Wellington
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