Registrar-General of Births, Deaths and Marriages v AA
[2020] NZHC 22
•22 January 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 NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2019-442-000022
[2020] NZHC 22
UNDER the Adoption (Intercountry) Act 1997 IN THE MATTER OF
section 12 of the Adoption (Intercountry) Act 1997
BETWEEN
REGISTRAR-GENERAL OF BIRTHS, DEATHS AND MARRIAGES
Appellant
AND
AA AND MM
Respondents
Hearing: 18 November 2019 Appearances:
C M Hutchison and A J Liddell for Appellant Respondent MM in Person
Judgment:
22 January 2020
Reissued:
Reissued:
26 February 2020
4 March 2020
JUDGMENT OF CLARK J
[1] This appeal concerns the scope of the powers exercised by the Registrar- General when registering births and names under the Births, Deaths, Marriages, and Relationships Registration Act 1995 (the BDMRR Act or, the Act).
REGISTRAR-GENERAL OF BIRTHS, DEATHS AND MARRIAGES v AA AND MM [2020] NZHC 22
[4 March 2020]
[2] Prior to adoption, the adopted child whose birth certificate details are at the heart of the appeal was known by his family and first names. After adoption, his adoptive parents gave him a new name. To protect the identity of the child and his family, instead of his pre or post-adoption names, I use the expressions (respectively) “birth name” and “new name”.
Background
[3] The respondents are foreign nationals and New Zealand residents. In 2015, pursuant to the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention), the respondents were agreed to be eligible and suited to adopt a child born overseas.1 In February 2016, they adopted their son. The decision of the [Overseas] Child Adoption Board became final on 20 April 2016 when the respondents registered their son’s adoption at the [Overseas] Embassy in Wellington.
[4] On 31 May 2016, acting under art 23 of the Convention, the overseas Department of Children and Youth issued a “Certificate of Conformity of Intercountry Adoption” (art 23 certificate). The art 23 certificate certified:
(a)the child’s birth name, gender, date and place of birth and habitual residence at the time of adoption;
(b)that the child was adopted according to the decision of the Child Adoption Board by the adoptive parents (whose personal details were also recorded);
(c)that the adoption was made in accordance with the Convention; and
(d)that the adoption “had the effect of terminating the pre-existing legal parent-child relationship”.
1 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption signed at The Hague on 29 May 1993. All references to the adopted child’s nationality, and to that country, are replaced with a reference to “overseas”.
[5] In December 2016, the respondents applied to the Family Court for an order pursuant to s 12(2) of the Adoption (Intercountry) Act 1997 (the Intercountry Adoption Act) terminating their son’s pre-existing legal parent-child relationship with his birth parents. On 21 March 2017, Judge Grace made an order in the following terms:
The adoption of the child [birth name and date of birth] registered on 20 April 2016 at the [Overseas] Embassy, Wellington, in accordance with the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, is hereby converted to an adoption having the effect of terminating the pre-existing legal parent-child relationship.
(March order)
[6] Subsequently, the respondents applied to the Family Court to vary the March order. They had intended that the new name they had given to their son would be recorded in the March order. They wished to have the March order corrected and to have their son’s new name recorded on any legal documents for their child.
[7] The Family Court Judge before whom the application was first placed appointed counsel to assist to ensure there were no legal or procedural impediments to the child’s name being changed in the way sought. Counsel advised the Family Court it had jurisdiction to grant a variation order in the same terms as the March order but with the child’s new name in place of his birth name.
[8] On 20 September 2017 the respondents appeared before Judge Russell in support of their application. After hearing also from counsel assisting (who confirmed her view there was no legal or procedural impediment to the proposed variation), and from his review of the proceedings, Judge Russell saw no difficulty in varying the March order so that the child was named by reference to his new name only. Judge Russell made a number of orders and directions and closed the file.2 The sealed order of the Family Court contains a brief narration of the March order, then the following two orders:
·On 20 September 2017 Judge RJ Russell, Family Court Judge varied the [March order] to record the name of [birth name] from 21 March 2017 to be [new name].
2 Re MM [2017] NZFC 7521.
·Judge Russell also directs that any re-issued birth registration papers for [new name] do not contain [the respondents’] name noted as being the adoptive parents of [new name].
(September order)
[9] The registry forwarded a copy of the September order to the Department of Internal Affairs.
[10] Subsequently, the respondents and Registrar-General communicated about whether their son was a New Zealand citizen by birth and whether their son’s birth certificate was to be issued in his birth name or in his new name. The Registrar- General took the view he was bound to record the name stated in the adoption order3 which, for his immediate purposes, was the child’s birth name as recorded in the art 23 certificate.
[11] As the Registrar-General’s view did not accord with the respondents’ position or wishes, he suggested in a letter dated 21 February 2018 two possibilities for their consideration. The respondents could ascertain whether it was possible to alter the art 23 certificate or they could register a name change with the Department of Internal Affairs. In the event the respondents elected to register a name change, the necessary fee would be waived (in recognition of the earlier incorrect advice given to the respondents about the legal implications of the Convention adoption).
[12] The Registrar-General also recommended the parents consider registering the child’s birth and change of name because registration and completion of the name change process would enable the child’s new name to be officially recognised.
[13] On 16 October 2018 the child was granted New Zealand citizenship pursuant to section 9 of the Citizenship Act 1977. On 31 October 2018, a New Zealand birth certificate was issued in the child’s birth name, that is, the name certified on the art 23 certificate. The respondents maintained the birth certificate showed the wrong details and asked for reasons why it did not state their son’s new name as the Judge recorded in the September order of the Family Court.4
3 Impliedly invoking ss 24 and 25 of the BDMRR Act which is discussed later in this judgment.
4 See [8] above.
[14] On 3 January 2019 the respondents filed in the Family Court an application for enforcement of the September order. On 11 April 2019, the Registrar-General filed a notice of appeal against that order.
Registrar-General’s standing to bring the appeal
[15] The Registrar-General purports to bring this appeal pursuant to s 124 of the District Court Act 2016. Section 124 provides:
124 General right of appeal
(1)This Part applies to a decision of the court, other than a decision of a kind in respect of which an enactment other than this Act—
(a)expressly confers a right of appeal; or
(b)expressly provides that there is no right of appeal.
(2)A party to a proceeding in the District Court may appeal to the High Court against the whole or a part of a decision made by the District Court in or in relation to the proceeding.
(Emphasis added.)
[16] The District Court Act 2016 applies to the Family Court in the same manner and to the same extent as it applies to the District Court.5
[17] The September order which the Registrar-General seeks to appeal was made on the application of the respondents pursuant to s 12 of the Intercountry Adoption Act. Under s 12 the Family Court may make an order terminating a pre-existing legal parent-child relationship if satisfied the statutory pre- conditions for an order are met. Significantly, the Registrar-General was not a party to the s 12 application.
[18] Shortly before the commencement of this appeal I foreshadowed to the parties through the case officer my concern about the Registrar-General’s standing to bring the appeal. Counsel for the Registrar-General, Ms Hutchison, advised at the hearing that the Registrar-General had been cognisant of the procedural difficulties. He and his legal advisers considered the most desirable way to attempt to resolve the issue for the parents, and to achieve certainty, was by bringing the appeal.
5 Family Court Act 1980, s 16.
[19] At the conclusion of the hearing I invited counsel to file brief submissions addressing the Court’s jurisdiction to entertain an appeal brought by an appellant pursuant to an appeal right which seemingly has no application to him as he was not a party to the decision he seeks to appeal. Just prior to the Christmas break, however, I advised the parties of the course I proposed to take and that further submissions were no longer required.
[20] Rule 1.9 of the High Court Rules empowers the Court to regularise procedural defects and failures. There is a strong argument, however, that where a non-party to a proceeding advances an appeal in reliance on a statutory power that confers appeal rights only on parties to the proceeding, the question raised is one of standing, or of the Court’s jurisdiction to entertain the appeal, rather than one of procedure.
[21] In Niak v Armitage, an application was made to the High Court to set aside an arbitral award.6 Mrs Niak opposed. One of her grounds of opposition was that the Court had no jurisdiction to deal with the application on an interlocutory basis. There was no doubt the proceedings were irregular but Fraser J exercised the wide power conferred by the predecessor to r 1.9 and considered the application on the merits.
[22]As did Fraser J, I recognise the “substantive reality” which is that, in this case:7
(a)An important issue concerning the scope of the powers of the Registrar- General is raised for determination.
(b)The respondents need certainty.
(c)The respondents are not alone. There is evidence before the Court suggesting a number of adoptive parents have sought post-adoptive birth certificates for their children. The Registrar-General awaits the outcome of this appeal to ensure decisions are made in accordance with the High Court’s determination.
6 Niak v Armitage (1992) 6 PRNZ 566.
7 At 570.
(d)The parties have submitted to the jurisdiction of the High Court, have made submissions addressing the issue8 and the Court has before it all that is necessary in order to determine the issue, which is primarily one of statutory interpretation.
[23] I believe these considerations warrant the Court taking a broad view of its discretion to make any amendments to the procedure that are necessary for determining the real controversy between the parties.9
[24] Essentially, the Registrar-General desires to take a step or do an act the validity or effect of which depends on the construction of the statutory provisions pursuant to which he is required to register adoptions and may issue birth certificates. In those circumstances the Registrar-General, or the respondents, could apply to the High Court for a declaratory order determining any question as to the construction of the statute.10 Or, the Court is able to invoke its inherent jurisdiction to grant declaratory relief.
[25] I see no impediment to exercising the discretion the High Court has to make a declaration. The issue raises a legal question, not one of mixed fact and law. There are no facts in dispute and the question for determination is not hypothetical but arises from actual controversy.11
[26] Further, I consider that, regardless of the outcome, proceeding in this way ultimately benefits the respondents. If this Court declines to determine the legal issue on the grounds the appeal is irregular, the Registrar-General will maintain the view he takes of his powers and will continue to decline to issue a birth certificate in the form
8 Although I am sure the respondent father would wish it to be recorded that, during a case management conference in May 2019, his view was that the appeal was a nuisance and a likely waste of time. Notwithstanding that viewpoint, the respondent took a constructive position in relation to the application being made at the time by the Registrar-General for leave to file his appeal out of time. The respondents did not file any opposition to the application.
9 High Court Rules 2016, r 1.9.
10 Declaratory Judgments Act 1908, s 3.
11 Lord Woolf and Jeremy Woolf in Zamir and Woolf: The Declaratory Judgment (4th ed, Sweet & Maxwell, London, 2011) at [3-26]–[3-27] argue that “within the limits of their general jurisdiction and subject to any express statutory provision to the contrary the courts have a discretion to grant declarations upon any matter whatsoever.” In his separate judgment in Telecom New Zealand Limited v Commerce Commission [2012] NZCA 278 at [281]–[337] (with which the majority agreed) Chambers J drew extensively from this “classic text” when analysing the principles and cases relevant to the declaratory jurisdiction and the discretionary features of the remedy.
the parents seek. It would then be left to the parents to challenge that decision in the High Court, or to take the initiative for (and incur the expense of) seeking a declaratory judgment.
[27] The respondents have attempted to enforce the Family Court order but, of course, the Registrar-General cannot be compelled to do that which is contrary to the powers conferred upon him by statute. It is for the High Court therefore to break the impasse by determining whether the Registrar-General’s view of the scope of the powers he holds is correct.
[28] I turn now to consider the legal issue that arises concerning the name by which the Registrar-General must register the birth of a child who has been adopted pursuant to the Convention. Specifically, where the parents have changed the child’s name from that recorded in the art 23 certificate, must the Registrar-General nevertheless register the child under the name recorded in the art 23 certificate?
Births, Deaths, Marriages and Relationships Registration Act 1995
[29] Although three statutes engage the Registrar-General in the circumstances giving rise to this appeal, I begin with the BDMRR Act as it is under this Act that the Registrar-General is appointed and that Registrars hold office for the purpose of recording information under the Act.
[30]The purposes of the BDMRR Act are set out in s 1A of the Act:
1A Purpose
The purposes of this Act are–
(a)to require the recording and verification of information relating to births, deaths, marriages, civil unions, name changes, adoptions, and sexual assignments and reassignments, so as to provide—
(i)a source of demographic information, and information about health, mortality, and other matters important for government; and
(ii)an official record of births, deaths, marriages, civil unions, and name changes that can be used as evidence of those events and of age, identity, descent, whakapapa, and New Zealand citizenship; and
(b)to regulate access to, and disclosure of, information recorded in respect of these matters; and
(c)to regulate the provision and effect of certificates relating to information recorded in respect of births, deaths, marriages, civil unions, and name changes.
[31] The legislative purposes reflect the national imperative in having a verifiable record of demographic information and an official record of names and name changes evidencing births, deaths, marriages and civil unions, and age, identity and citizenry. Consistent with those purposes, s 4 prohibits the recording of any information under the Act except in accordance with the Act.
Overview of relevant powers of Registrar-General
[32] The Registrar-General is charged with the general administration of the BDMRR Act.12 Registrars, who may be appointed from time to time for the purposes of the Act or other Acts under which Registrars exercise functions, are to perform their powers and duties in accordance with the directions of the Registrar-General.13
[33] The Registrar-General is given broad powers of inquiry in relation to registrable events. A registrable event is an adoption, birth, death, marriage, civil union, name change, or sexual assignment or reassignment.14 If it is considered reasonably necessary to do so for the purposes of the Act, the Registrar-General may make inquiries:15
(a)to determine whether a registrable event has occurred; or
(b)to collect details of a registrable event; or
(c)to ensure there is a correct record of a registrable event.
[34] Section 83 confers on the Registrar-General an overriding power to decline to record certain information. If, after making any inquiries under s 82 that seem
12 Births, Deaths, Marriages and Relationships Act [BDMRR Act], s 79.
13 Sections 79 and 81.
14 Section 82(4).
15 Section 82(1).
appropriate, the Registrar-General is satisfied that information in respect of a birth, death, marriage, civil union, or name change is or is likely to be incorrect, the Registrar-General must decline to record the information.16 Section 83 overrides anything in the Act to the contrary and is in addition to the powers of the Registrar- General under ss 24(2), 24(3)(b), 25(b) (all of which concern registration of adoptions) and 31 (conferring a power to delete birth information).17
Part 2 – Births
[35] Part 2 of the Act deals with the registration of births and the recording of citizenship status as part of the child’s birth information.18 Every birth in New Zealand is to be notified and registered in accordance with Part 2.19 The parents or guardians are primarily responsible for notifying a birth to a Registrar.20
[36] A notification of birth for registration under s 11 must contain the information required by s 3A of the Births, Deaths, Marriages, and Relationships Registration (Prescribed Information) Regulations 1995 (the Regulations). Regulation 3A provides:
3A Notification of birth for registration
A notification of birth for registration under section 11 of the Act must contain—
(a)the information required for a birth certificate under regulation 6 (as applicable); and
(b)in relation to the child,—
(i)whether the child was stillborn:
(ii)whether the child is a descendant of a New Zealand Maori (if known):
(iii)the ethnic group or groups to which the child belongs; and
(c)in relation to the parents (subject to section 9(2) of the Act),—
(i)the usual occupation, profession, or job:
(ii)the home address and contact details:
(iii)whether a descendant of a New Zealand Maori (if known):
(iv)the ethnic group or groups to which the parents belong:
16 Section 83.
17 Section 83(2).
18 Sections 12 and 12A.
19 Section 5.
20 Sections 9 and 10.
(v)information to determine the parents’ citizenship or
residency status:
(vi)information about the type of relationship (if any) between the parents at the time of the child’s birth, and the date and place that the relationship was solemnised (if relevant):
(vii)the number of children (if any) born to the same parents:
(viii)their signatures.
[37] Regulation 6, which prescribes the information required for a birth certificate, makes it clear that in all cases the birth certificate is to contain the person’s full name, as registered on the initial registration of the birth, and details of all changes of the person’s name registered after the initial registration of birth. Regulation 6 provides:
6 Birth certificates
There is hereby prescribed to be contained in a birth certificate relating to any person's birth,—
(a)In all cases,—
(i)the person's full name as registered on the initial registration of the birth:
(ii)details of all changes of the person's name registered after the initial registration of the birth:
(iii)the person's sex:
(iv)the date of the birth:
(v)the place of the birth:
(vi)where the birth was a multiple birth, the fact that it was such a birth and the person's birth order:
(vii)in relation to the person's parents, full name; … date of birth; age at the time of the child's birth; and place of birth; and full name at birth (if not the full name on initial registration of the birth); as registered on the initial registration of the birth:
(viii)the person’s citizenship by birth status, if the person was born on or after 1 January 2006:
(b)In the case of birth in respect of which the information was expressly recorded,—
(i)the kainga (residence), iwi (tribe), and ahuatanga (description) of the person’s mother:
(ii)the kainga, iwi, and ahuatanga of the person’s father.
[38] No birth outside New Zealand is to be registered except as provided in s 7 (concerning foundlings), s 8 (concerning births on New Zealand aircraft or ships) and Part 4 (concerning adoptions). Part 4 is discussed at the end of this overview.
Part 3 – Names
[39] Part 3 of the Act provides for the registration of names. The person who notifies the birth of a child must also specify the child’s name.21 Unless the name is undesirable in the public interest, a Registrar is required to include in the birth information recorded under the Act, any name or combination of names.22
[40] Eligible persons may apply for registration of a name change under s 21A of the Act. Section 21A is highly prescriptive as to who is an eligible person, the process to be followed by an applicant for registration of a name change, and the content of the verified statement which the eligible person must complete. The Registrar-General may require verification of the identity of the eligible person. Section 21B requires the Registrar-General to register a name change as soon as practicable subject to satisfaction of the requirements in s 21A and the conditions in s 18 for acceptance of names. If the documents and fee (if any) required by s 21A are provided to the Registrar-General, he or she must register a name change as soon as practicable in accordance with s 21B(2).
Part 4 – Adoptions
[41] Part 4 sets out the functions of the Court and Registrar-General when adoption orders are made under the Adoption Act 1955. Simply put, s 23 requires the Registrar- General to be notified of all New Zealand adoptions and, on receiving notice, the adoption is registered under s 24.
[42] In most cases the child’s birth will have been registered prior to the adoption. Registration of the adoption therefore is sometimes colloquially referred to as a “re-
21 Section 19.
22 Section 18(2).
registration” of the child’s birth because the child’s name as recorded on the adoption order replaces the name recorded in the registration of birth. The notice to the Registrar-General under s 23 is to be given by the relevant Court “forthwith” after the making of an adoption order under the Adoption Act. So far as they are known to the Court, the following matters are to be notified in the s 23 notice:
(a)the names of the adopted person immediately before the making of the order;
(b)the names conferred on the person by the order;
(c)whether or not the adoptive parent or parents want the words “adoptive parent” or “adoptive parents” to appear on the adopted person’s birth certificate;
(d)the date of the order;
(e)the name of the Court;
(f)matters required by the standard form for notification of births under s 11 of the Act (relating to the notification of births) if those matters would have been appropriate if the adopted person had been born to the adoptive parents;
(g) any other prescribed matters. (Section 23 notice)
[43] The registration process under s 24 varies slightly depending on whether the birth of the adopted person has been registered or not.
(a)Where the birth has been registered, s 24(1) requires the information contained in the s 23 notice to be included in the registration.
(b)Where the birth has not been registered s 24 (2) requires the Registrar- General, if satisfied of the correctness or likely correctness of the information relating to the date and place of birth, to record the information contained in the s 23 notice as if the birth were registered and the information were included in the registration.
[44] The words “adoptive parent” or “adoptive parents” may be included on the birth certificates of adopted persons if an application is made to the Registrar-General to include this “additional information”.23 An application to include the additional information may be made by an adopted person who is 18 years of age or older or, if younger, has earlier married or been in a civil union or de facto relationship. Where the birth information relates to an adopted person younger than 18 (who has not earlier married or similar) then the application to include the additional information may be made by the adoptive parents.
[45]Section 25 provides for the registration of overseas adoptions.
25 Registration of overseas adoptions
If the Registrar-General—
(a)Is satisfied that section 17(1) of the Adoption Act 1955 [or section 11 of the Adoption (Intercountry) Act 1997] applies to the adoption outside New Zealand of a person whose birth is registered; and
(b)Has received any particulars the Registrar-General requires for the purpose, and is satisfied that they are or are likely to be correct,—
the Registrar-General may direct that section 24 of this Act should apply to the adoption; and in that case that section and section 27 of this Act, with any necessary modifications, shall apply as if the adoption had been effected by an adoption order under the Adoption Act 1955.
[46] Section 17(1) of the Adoption Act (to which s 25 of the BDMRR Act refers) provides that where adoptions outside New Zealand take place in accordance with the law of the place where the adoption occurred, and if the adoption meets the other requirements of s 17(2), the adoption has the same effect as an adoption order validly
23 Section 24(3)–(5).
made under the Adoption Act. And s 11 of the Intercountry Adoption Act requires an adoption made in accordance with the Convention to be recognised in accordance with the Convention and all such adoptions have the same effect as an adoption order validly made under the Adoption Act.
[47] In summary, s 25 of the BDMRR Act empowers the Registrar-General to direct that the s 24 process for registering New Zealand adoptions, is applicable to the registration of overseas adoptions coming within the scope of s 17(1) of the Adoption Act or s 11 of the Intercountry Adoption Act. It can be seen from s 24(1) and s 25(a) that registration of the person’s birth is a precondition to registration of both New Zealand and overseas adoptions. In the case of an adoption in New Zealand of a person whose birth has not been registered, the Registrar-General is to record the information contained in the s 23 notice of adoption as if the birth were registered with that information.24
Analysis
[48] Section 24 of the BDMRR Act governs registration of adoptions in New Zealand. Under s 25, however, the Registrar-General may direct that s 24 should apply to an overseas adoption.
[49] The practical effect of s 24 is that, on receiving a s 23 notice relating to the adoption of a person whose birth has not been registered, the Registrar-General is to “forthwith” cause the information contained in the notice to be included in the registration of adoption. Where the birth has not been registered, the Registrar- General must still “forthwith” record the information contained in the s 23 notice “as if the person’s birth is registered and the information is included in the registration.” But before doing so, the Registrar-General must be “satisfied of the correctness or likely correctness of the information relation to the date and place of the person’s birth”.25
24 Section 24(2).
25 Section 24(2).
[50] The information with which s 24 is concerned is information that is contained in the s 23 notice. Where the adoption has taken place overseas, however, there will be no s 23 notice. How then is s 24 to apply to registration of an overseas adoption?
[51] It is clear to me that, for the purpose of registering an overseas adoption to which s 25 of the BDMRR Act applies, the art 23 certificate may be relied upon and the information it contains is the information to be included in the registration of adoption.
[52] The respondents strongly disagree that an art 23 certificate may be regarded as the equivalent of an adoption order. I accept the respondent’s argument that an art 23 certificate serves to certify that the adoption has been made in accordance with the Convention but it is also evidence of the fact that an adoption took place.26 To this extent, there can be no realistic doubt that an art 23 certificate may be regarded for the purposes of s 24 as serving the function of the “notice of the adoption” about which s 24 speaks. The “necessary modifications” to be applied to s 24 would involve all references in s 24 to a notice of adoption, whether under s 23 of the BDMRR Act or under a former Adoption Act, as including a notice of adoption under art 23 of the Convention. 27
[53]Approaching s 24 in this way means that:
(a)on receiving the art 23 notice of overseas adoption;
(b)the Registrar-General is to include in the registration the information contained in the art 23 certificate;28 and
(c)any birth certificate subsequently issued must be “[b]y reference to the names most recently included in the registration of the person’s birth
26 Adoption (Intercountry Act) s 11(2): “A certificate signed b y the competent authority in the State where the adoption took place and stating that the adoption was made in accordance with the Convention is for all purposes prima facie evidence of that fact.
27 Section 25 directs that if the Registrar-General directs s 24 is to apply, then s 24 and s 27 shall apply “with any necessary modifications”.
28 Although where, as in this case, the birth has not been registered in New Zealand, the Registrar- General include the information in the registration after first being satisfied of the correctness of the information relation to the date and place of the person’s birth: s 24(2).
under section 24 or section 25 of [the BDMRR Act]” or by reference to a registered name change.29
[54] As set out above at [4], the art 23 certificate contained the child’s birth name. Section 24 required the Registrar-General to register the child’s adoption by reference to the information in the art 23 certificate (containing the birth name). Correspondingly, reg 6 requires the birth certificate to contain the child’s “full name as registered on the initial registration of birth”. In a case such as this where the birth has not been registered in New Zealand, the information contained in the art 23 certificate is included in the registration “as if the person’s birth is registered and the information is included in the registration”.30
[55] Accordingly, unless the art 23 certificate is varied31 or the child’s new name is registered pursuant to s 21B of the BDMRR Act, the birth certificate is required to contain the child’s birth name, that being the name deemed by s 24(2) to be registered on the registration of birth.
Does the Family Court’s September order alter the position?
[56] The respondents seek enforcement of the Family Court’s September order, which is set out above at [8]. Specifically, the respondents wish to enforce the Judge’s direction that “re-issued birth registration papers” should be in the child’s new name rather than his birth name.
[57] There are two reasons why the orders cannot be enforced. First, the Registrar- General is under a duty to exercise the powers and functions conferred on him by statute and to act consistently with the prescribed statutory processes. To the extent the Family Court orders purport to direct the Registrar-General to do otherwise, the Registrar-General is not bound to comply with the orders. Specifically, the Registrar- General may only issue a birth certificate in the names most recently included in the registration of the child’s birth under s 24 or s 25 of the BDMRR Act. The name
29 Section 63(1).
30 Section 24(2).
31 I observe only that variation has been suggested. I offer no comment as to the potential for doing so.
included in the registration of the birth is the child’s birth name, not the child’s new name. If and when the change of name is registered, a birth certificate containing the child’s new name can be issued.
[58] Secondly, for reasons which I now explain, the Family Court orders are of no effect.
[59] The respondents submit that the March order was an “adoption order” and was therefore able to be varied because s 20 of the Adoption Act empowers the Court to vary or discharge any adoption order. An “adoption order” means an order made under the Adoption Act.32 While that definition is not especially illuminating, it is apparent from other provisions in the Adoption Act that an adoption order effects an adoption. I do not propose to engage in a detailed analysis of the Adoption Act. Three (of many) provisions in the Adoption Act demonstrate my point:
(a)If the Court considers any application for adoption should be granted, the Court shall in the first instance make an interim order in favour of the applicant: s 5.
(b)Before any adoption order is made, any person whose consents to an adoption are required is to file consents in Court in accordance with s 7.
(c)Section 16 has real significance as it states the effect of an adoption order. Upon an adoption order being made, subparagraphs (a) – (i) of subs (2) are to have effect for all purposes (subject to the exception expressed in subs (2)). The first effect is that the adopted child is deemed to become the child of the adoptive parents and the adoptive parent is deemed to become the parent of the child as though the child had been born to that parent.
[60] When, by its March order, the Family Court purported to “convert” the adoption it did so on the application of the respondents under s 12 of the Intercountry Adoption Act. Section 12 provides:
32 Adoption Act, s 2.
12 Termination of pre-existing legal parent-child relationships
(1)An adoption in accordance with the Convention does not have the effect of terminating a pre-existing legal parent-child relationship unless—
(a)the adoption has that effect in the State where it was made; or
(b)the Family Court makes an order converting the adoption into one having that effect.
(2)The court may, on application, make such an order if satisfied that—
(a)the adoptive parent is habitually resident in New Zealand; and
(b)the adoptive parent has, in accordance with the Convention, adopted, in another Contracting State, a child who is habitually resident in that Contracting State; and
(c)the consents to the adoption required by paragraphs (c) and (d) of Article 4 of the Convention have been given for the purpose of an adoption that terminates the pre-existing legal parent-child relationship.
[61] Section 12 does not confer power on the Court to make an “adoption order” and an order made under s 12 of the Intercountry Adoption Act is not an “adoption order”. Rather s 12 recognises an adoption has taken place in accordance with the Convention but the adoption does not have the effect of terminating the pre-existing legal parent-child relationship. In those circumstances, and if the Court is satisfied of the matters in s 12(2), the Court may make an order converting the adoption into one having that effect.
[62] In this case, the overseas adoption had the effect of terminating the pre-existing parent-child relationship. Indeed, the adoption was certified as having that effect.33 Thus, this adoption came within s 12(1)(a) as it had the effect of terminating the pre- existing legal parent-child relationship and did not require a Family Court order “converting the adoption into one having that effect”.
[63] The s 12 application was misplaced and the March order was of no effect. Consequently, the September order purporting to vary the March order was of no effect.
33 See above at [4](d).
[64] The Registrar-General advances this aspect of the appeal as a question of jurisdiction. “Jurisdiction” is understood to mean the authority a court has to decide matters that are litigated before it or to take cognisance of matters.34 The Family Court has jurisdiction to entertain applications for orders pursuant to s 12 but in this case I consider the Family Court erred in its approach first, by making an order that did not need to be made and could not have the effect it purported to have and then, by varying that order. Consequently, the March and September orders are invalid and have no legal effect.
Result
[65]The appeal is allowed.
[66]The following declarations are made:
(a)When registering the birth of a person who is adopted the Registrar- General is bound to record the name specified in the adoption order. In relation to adoptions to which s 11 of the Intercountry Adoption Act applies, the name to be recorded will be the name recorded in the certificate signed by the competent authority in the State where the adoption took place. In this case that is the art 23 certificate.
(b)The orders of the Family Court made on 21 March 2017 and 20 September 2017 were invalidly made and are set aside.35
Karen Clark J
Solicitors:
Crown Law Office, Wellington for Appellant
34 Sir Michael Hardie Boys Laws of New Zealand Jurisdiction of Courts at [7].
35 Described above at [5] and [8].
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