Norman v Attorney-General - [2020] NZHC 336

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norman v Attorney-General

Details

AGLC: Norman v Attorney-General [2020] NZHC 336
Case: [2020] NZHC 336
Decision Date: 28 February 2020

CaseChat Overview and Summary

The appeal by Ms Norman against the Family Court decision to decline her application for adoption of four children from Ethiopia was dismissed by Doogue J in the High Court of New Zealand. Ms Norman sought to adopt the four children of her eldest sister, who are aged 19, 18, 16, and 15 years. The Family Court had declined Ms Norman’s application for an adoption order on the grounds that the children’s identity and blood-link with Ms Norman had not been established, and that even if established, the adoption would not be in the children's best interests. Ms Norman appealed the decision on the grounds that the Family Court erred in its findings and that new evidence, including DNA testing, should be considered.

The High Court found that the Family Court did not err in its decision, and that the adoption would not be in the children's best interests. The Court held that the children had a suitable caregiver in Ethiopia and a strong relationship with their current caregiver, and that the proposed adoption was primarily motivated by socioeconomic factors rather than a genuine desire to create a new family unit for the children. The Court also found that the children's wishes to come to New Zealand were not well-informed, as they did not fully understand the implications of moving to a new country and being separated from their current caregiver.

The appeal was dismissed, and no costs were ordered. The Court's decision was based on a careful consideration of the principles and factors relevant to intercountry adoptions, including the best interests of the child, the modern purpose of adoption, and New Zealand's international obligations. The Court emphasized the importance of ensuring that adoptions are not used as a means to circumvent immigration laws and that the motivations of the adoptive parents are genuinely focused on the welfare and interests of the child.

Orders