Solomon v Attorney-General
[2020] NZHC 2521
•25 September 2020
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-001349
[2020] NZHC 2521
UNDER the Adoption Act 1955 IN THE MATTER OF
a decision to refuse an application to adopt Taitu Solomon and Sisay Solomon
BETWEEN
KALEB SOLOMON
Appellant
AND
THE ATTORNEY-GENERAL
Respondent
Hearing: 9 and 18 September 2020 Counsel:
V A Crawshaw QC and S M Wilson for Appellant T M Bromwich and S Deng for Respondent
M Casey QC to Assist the Court
Judgment:
25 September 2020
JUDGMENT OF EDWARDS J
[anonymised and redacted version]
This judgment was delivered by me on 25 September 2020 at 4.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
SOLOMON v ATTORNEY-GENERAL [2020] NZHC 2521 [25 September 2020]
[1] Mr Kaleb Solomon (Kaleb) appeals from a decision of the Family Court declining his application to adopt his two half-sisters, Sisay Solomon (Sisay) and Taitu Solomon (Taitu).1 Sisay and Taitu are Ethiopian nationals who were born and reside in Sudan.
[2] The application was declined in the Family Court because the Judge could not be satisfied that the girls were under 20 years of age as required by s 3 of the Adoption Act 1955 (Act). That factual finding is challenged on appeal and leave was granted to adduce new evidence directed at establishing the age of the girls.2
[3] The appeal proceeds by way of re-hearing and the principles in Austin Nichols & Co v Stichting Lodestar apply.3 The key issue on appeal is whether there is sufficiently reliable evidence of the girls’ dates of birth for the Court to be satisfied that they are both under 20 years of age.
Family circumstances
[4] Kaleb was born in Ethiopia in 1990 but fled from the civil war to Sudan as a young child. Habtamu Solomon (Habtamu) is his father, and Habesha Mamo (Habesha) is his mother. Kaleb has an older sister, Magdala Solomon (Magdala), who now resides in Australia.4
[5] Soon after the family settled in Sudan, Kaleb’s parents separated. Habtamu remarried Falasha Gebru (Falasha), and they lived in Khartoum, Sudan. Sisay and Taitu are the daughters of Habtamu and Falasha.
[6] Magdala immigrated to New Zealand to join her husband in mid-2001 under a refugee quota programme. She subsequently sponsored Kaleb under the refugee quota family reunification category, and he joined her in New Zealand in April 2008. In
1 Re [Solomon] [2020] NZFC 5878. For ease of identification I will refer to the appellant and each family member by their first name. I mean no disrespect in doing so. The details of the individuals have been substituted or redacted to protect the anonymity of the individuals.
2 This judgment was given under some urgency as Sisay will “age out” of the Act shortly.
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 Kaleb and Magdala always believed they were full siblings, but DNA establishes that they are half-siblings.
2017, Magdala relocated from New Zealand to Australia with her husband and four children.
[7] Kaleb’s father, Habtamu, died in Khartoum from malaria on 2 April 2002. Kaleb’s mother, Habesha, died in 2006. Sisay and Taitu’s mother, Falasha, is presumed to have died in 2013 when crossing the Mediterranean Sea by boat from Libya to Italy.
[8] From 2013 to 2016, both girls were cared for by Abeho Feleke, one of Falasha’s friends. From 2016, they have been cared for by another family friend, Alam Abdella. They have no living relatives in Sudan. Both girls attend school. Sisay is a year ahead of Taitu. Sisay has an after-school job, one day per week.
[9] The girls are part of the Ethiopian Orthodox Church. They are not recognised as full citizens in Sudan. Kaleb speaks to both girls regularly and provides financial and emotional support to them from New Zealand.
[10] In 2014, when she was still in New Zealand, Magdala wrote to Immigration New Zealand making enquiries about sponsoring Sisay and Taitu to bring them to New Zealand. Immigration New Zealand wrote back saying that any application would not meet the necessary requirements. That was due, in part, to the fact that Magdala had already brought Kaleb over to New Zealand as she was entitled to do, and further family members could not be brought over at that time.
[11] Kaleb made a separate application in 2016. However, his application was declined because he could not act as a sponsor, having been brought into New Zealand by Magdala. The adoption application was made in September 2018. DNA testing and the compiling of two reports by Ms Woon, a social worker with Oranga Tamariki, have contributed to the delays in hearing and determining the application.
[12] Kaleb’s wife, Mammit, is also from Ethiopia having arrived in New Zealand with her family. They married in a traditional wedding in an Orthodox Church but did not register their marriage with Births, Deaths and Marriages. They have two little girls and live in a two-bedroom house owned by Housing New Zealand. Both Kaleb and Mammit have regular employment. If the adoption order is granted, Kaleb would enrol both girls in a local school which takes students up to 24 years of age.
Legal framework
[13] Although this is an intra-family intercountry adoption, the Adoption (Intercountry) Act 1997 does not apply. That is because Sudan is not a signatory to the Hague Convention of Protection of Children and Co-operation in respect of Intercountry Adoption (Hague Convention). The application accordingly falls to be considered under the Adoption Act 1955.
[14] The power to make adoption orders is found in s 3 of the Act. Subsection (1) provides that a court may make an adoption order in respect of any “child”, whether domiciled in New Zealand or not. Child is defined in s 2 as follows:
child means a person who is under the age of 20 years; and includes any person in respect of whom an interim order is in force, notwithstanding that the person has attained that age.
[15] Although the Hague Convention does not formally apply, it is nevertheless appropriate to take the principles of the Hague Convention into account in an intercountry adoption.5 In Norman v Attorney-General, Doogue J recorded that the objects of the Hague Convention are to establish safeguards to ensure that the intercountry adoptions take place in the best interests of the child, to prevent abduction, sale of or traffic in children and to secure the recognition of adoption made in accordance with the Convention.6
5 Norman v Attorney-General [2020] NZHC 336 at [30] citing P v Department of Child, Youth, and Family Services [2001] NZFLR 721 (HC).
6 At [31].
[16] The United Nations Convention on the Rights of the Child (UNCROC) may also provide some guidance, although that convention only applies to persons under 18 years of age. UNCROC also recognises the need to take measures to prevent the illicit transfer and non-return of children abroad.
[17] The Act does not define the date at which the child must be under the age of 20 years. Despite there being some authority for the suggestion that the date of application is the relevant date,7 the parties in this case agree that it must be at the date of the order. I agree with the parties. The date of the order accords with the underlying purpose of s 3 and the definition of “child”.
[18] The Act sets out other statutory criteria which must be met before an adoption order may be made, namely:
(a)The age and relationship between the applicant and child must meet the criteria set out in s 4. In this case, the appellant relies on s 4(1)(b), namely that he has attained the age of 20 years and is a relative of the child.
(b)The consent of the child’s parents to the adoption must be obtained under s 7, unless it is waived under s 8.
(c)A social worker must report to the Court on the application. The purpose of that 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. A social work report has been provided in this case.
[19] Section 11 imposes restrictions on the making of an adoption order. The Court must be satisfied of the following:
7 An application by P FC Feilding FP 015 1/01, 31 May 2002.
(a)that the applicant is a fit and proper person to have the role of providing day-to-day care for the child and is of sufficient ability to bring up, maintain and educate the child;
(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 of the child having regard to the age and understanding of the child; 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.
[20] An interim order will be made in the first instance, unless there are special circumstances rendering it desirable that a final adoption order should be made.8
Are Sisay and Taitu under 20 years of age?
[21] Neither Sisay nor Taitu have a birth certificate confirming their date of birth.9 The Family Court Judge had to assess their ages by reference to documentary and other evidence adduced in court.
[22] The difficulties in obtaining reliable documentary evidence from “fragile states”, such as Sudan, particularly where children are part of a displaced minority (as in this case) was the subject of evidence in the Family Court.10 Determining the respective ages of the girls therefore involved an evaluation of the accuracy and reliability of all available evidence.
[23] Sisay’s date of birth is consistently recorded in the available documentation as [redacted] October 2000, which, if accepted, would mean that she is currently 19 years
8 Adoption Act 1955, s 5.
9 This is required by the Adoption Regulations 1959, reg 8(2)
10 Notes of Evidence at 112–113 [NOE]. Sudan is ranked eighth out of 178 countries on the 2019 Fragile States Index, based on the Fund for Peace’s Conflict Assessment System Tool. A senior adviser at Oranga Tamariki gave evidence that only one in four children globally are registered at birth, and it would be unusual to see completely accurate identity documents, particularly for those from displaced populations in a country like Sudan.
of age. There is, however, an inconsistency in the recorded date of birth for Taitu. Kaleb says that Taitu was born on [redacted] November 2002 (making her 17 years of age at the date of this judgment), but other documentation records her year of birth as 1996, making her 23 years of age.
[24] The [redacted] November 2002 birth date is recorded in the English portion of Taitu’s baptismal certificate. The Family Court Judge expressed reservations about the reliability of that certificate. I consider she was right to do so. Baptismal certificates from fragile states are not generally relied on by Immigration New Zealand because they are not issued by a central authority.11 And, in this case, Kaleb said in evidence that he gave the dates of birth for both girls when he requested the certificates from the Church.12
[25] The 1996 birth date is recorded in both Magdala’s Resettlement Registration Form (Resettlement form) which is dated 15 May 2001, and her Application for Residence in New Zealand. Both forms list siblings in chronological order, with Taitu listed before Sisay. Significantly, Taitu is recorded as being alive at the date of the Resettlement form, namely 15 May 2001. That cannot be right if Taitu was born in 2002. This clearly troubled the Family Court Judge who described it as the “most challenging hurdle” for Kaleb to overcome.13
[26] Taitu’s 1996 date of birth found its way into other immigration documentation also. That includes a letter jointly authored by Kaleb and Magdala to INZ dated 9 April 2014, and Kaleb’s application to sponsor the girls dated 5 October 2016. Kaleb gave evidence at trial that he simply continued to use the dates contained in Magdala’s original application in subsequent communications with INZ, because that is the information they already had.14
[27] Leave was granted to file new evidence on appeal. The new evidence included a further affidavit by Kaleb and age testing and school records for both girls. Sisay
11 See also Norman v Attorney-General [2020] NZHC 336 at [49].
12 NOE at 84/12-22.
13 Re [Solomon], above n 1, at [59].
14 NOE at 92/10.
and Taitu were questioned by counsel for the child about these records at the appeal hearing.
[28] The age testing records confirm the 2000 and 2002 years of birth. These records follow examinations of both girls at a hospital in Khartoum. However, the girls’ carer, Alam Abdella, said in evidence that the hospital staff asked her for the girls’ birth years, and the dates she gave to them were those noted in the records. No adverse inferences should be drawn from Alam’s admission. It is evident that she was simply complying with the hospital’s request for information. If anything, her frank answers in response to these questions bolsters rather than detracts from her credibility. Nevertheless, the age testing records are unreliable sources of evidence and should be put to one side.
[29] The school records, adduced through Kaleb, certify the respective dates of birth as being [redacted] October 2000 and [redacted] November 2002. Next to each of those dates is the notation “(according to mother’s advice)”. Alam confirmed that she had contacted the principal to get these certificates. Initially, she said that she told the school principal the age of the girls. When asked again whether she had told the principal the girls’ dates of birth Alam said “… the date of birth is recorded there. When their mother enrolled them in school, it’s recorded there”. This evidence suggests that considerable caution should be exercised in placing too much reliance on the school records also.
[30] The new evidence adduced on appeal included affidavits by Abeho Feleke and Alam Abdella. Both women offered a possible explanation for the discrepancy regarding Taitu’s recorded date of birth. They explained that Falasha had an older child named Taitu who died, and the younger daughter was named after her older sibling – a practice that they both described as common in Ethiopian culture. Both women appeared at the appeal hearing by remote means and were questioned on their affidavits.
[31] The new evidence of an older Taitu who died goes some way to explaining the 1996 birth date. But it raises other questions too. When questioned in Court, Abeho recalled the older Taitu dying around the New Year, and she mentioned the
Millennium. She also said that Sisay was a baby at the time. If those dates are accepted, it would mean the older Taitu died around the end of 2000, beginning of 2001. That would mean the older Taitu would not have been alive at the time Magdala filled in her immigration form in May 2001.
[32] Further, Abeho gave evidence that Falasha was pregnant with the youngest Taitu when Habtamu died in April 2002. That would support the alleged birth date of [redacted] November 2002, but it would leave unexplained how a girl named Taitu came to be listed on Magdala’s Resettlement form as at 15 May 2001. It is also at odds with Kaleb’s evidence that he recalled both girls being alive at the time Habtamu died.
[33] The evidence of an older Taitu means that Magdala and Kaleb had a completely different Taitu in mind when they each completed their immigration documentation. Not only that, but they were each unaware of the existence of the other Taitu. That seems implausible. Overall, the evidence of an older Taitu does little to resolve the discrepancies in Magdala’s Resettlement form.
[34] But there are indications that the information in that Resettlement form is itself inaccurate. Magdala subsequently sought to correct it by removing Falasha as her mother. It also appears that her date of birth was incorrectly recorded, and had simply been assigned by an immigration officer.15 There were other errors too. Kaleb gave evidence that the form erroneously records his date of birth.16 Kaleb is recorded as being older than Rahad, Falasha’s son by another man. But that is also incorrect. Kaleb confirmed that he is younger than Rahad.17 These errors do not necessarily mean there is an intention to mislead or misrepresent. As Ms Titchener said in evidence, discrepancies can indicate different values that are put on a date in different cultures.18 Further, Magdala did not speak English at the time her form was filled out, and she completed it with the assistance of others.19 So there is a reliance on the
15 NOE at 155/1–25.
16 NOE at 53/9.
17 NOE at 98/9.
18 NOE at 114/7–17.
19 NOE at 45/14.
information being translated accurately.20 Given the errors in the form, I consider little weight can be placed on the 1996 date of birth recorded for Taitu.
[35] Ms Casey QC puts forward another explanation for the discrepancy. Her baptismal certificate contains both Ethiopian and English on the face of the document. The date of birth is recorded according to the Ethiopian calendar as [redacted] March 1994, with the Gregorian calendar equivalent being [redacted] November 2002. Ms Titchener gave evidence in the Family Court about a conversion of the dates of birth from the Ethiopian to the Gregorian calendars. The date of [redacted] March 1994 in the Ethiopian calendar equates to [redacted] November 2001 in the Gregorian calendar. If the [redacted] November 2001 date is accepted as the applicable birth date, then it makes sense of Kaleb’s recollections of both girls being alive when his father died in May 2002. Nevertheless, the inconsistencies with Magdala’s form remain, so this explanation is not a complete answer.
[36] Standing back, the question on appeal is how all this evidence should be assessed. There is no real argument that it must be weighed in its entirety, rather than each separate strand considered on its own. The evidence should also be considered in light of the purpose of s 3 of the Act, which is to only provide for adoption of those who are under 20 years of age. The broader principles of the Hague Convention and UNCROC, particularly the objectives of ensuring there is no illegal trafficking of children should also be borne in mind. However, recognition also needs to be given to the difficulties in definitively establishing a date of birth, particularly for those who come from fragile states. Requiring conclusive proof of age may result in applications being declined despite the children being under 20 years of age.
[37] Applying those principles to this case, the first point to note is that there is no issue regarding the identity of Sisay and Taitu, and no concerns about illegal trafficking or abduction. There is also no dispute that they are related to Kaleb, and the intention is for all of them to live together as a family. Further, there are features of the girls’ lives, such as the fact that they go to school and are cared for by Alam, which are consistent with their asserted ages.
20 NOE at 120/23–35.
[38] Added to that is the fact that Sisay’s date of birth is consistently recorded in the documentation as [redacted] October 2000, and there is no challenge to that date. The photographs adduced in evidence, the school records which put Sisay a year ahead of Taitu, Kaleb’s recollections of the two girls growing up, and the way they interrelate with each other, are all consistent with Taitu being the younger of the two. Importantly, there is no suggestion that Kaleb’s evidence lacked credibility and I found him to be a truthful witness on the stand.
[39] Balancing all those factors in the mix, I consider there to be sufficient evidence to be satisfied that both Sisay and Taitu are under 20 years of age. The threshold under s 3 of the Act is met in this case.
Other statutory requirements
[40] If the Court has jurisdiction, then it must be satisfied of all other requirements under the Act before an order may be made.
[41] The evidence establishes that Kaleb meets the criteria in s 4(1)(b). He is over 20 years of age and DNA evidence establishes that Sisay and Taitu are his half- siblings. The application is made on a joint basis.
[42] Although there is no certification of Falasha’s death, I am satisfied that Sisay and Taitu’s parents have died and the criteria in s 7 is met. But even if I was wrong about that, it is clear that Falasha has not been involved with the girls’ upbringing since 2013. On this basis, I agree with the Family Court Judge that the conditions for waiver of the consent requirement have been met under s 8(1)(a).
[43] There is no dispute that Kaleb and his wife are both fit and proper persons for the purposes of s 11(a). They have a stable family unit, jobs, and housing for both girls. The social workers’ reports and evidence confirm that fact, and were generally in support of the adoption.
[44] The key issue is whether the adoption is in the best interests and welfare of both girls under s 11(b) of the Act. That issue is considered next.
Best interests and welfare of the children
[45] Determining whether the adoption is in the best interests and welfare of the children involves considering the true purpose of the adoption and the motivations of the applicant. Where the adoption is intercountry, this will involve considering the interrelationship with the immigration legislation.
[46] In Norman, Doogue J reviewed relevant jurisprudence and summarised the general approach to be taken to cases with an immigration dimension. The principles relevant to this case are as follows:21
(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.
(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)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.
(e)It will always be a case specific, fact dependent, inquiry.
[47] Doogue J also made reference to the Family Court decision in Re SP-I-HT. In that case, the Court listed a number of factors to be considered when determining
21 Norman v Attorney-General, above n 5, at [76].
whether an adoption application is made solely for the purposes of securing immigration status. Those factors include: the age of the children; 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.
[48] The age of both girls is the most obvious feature of this case. It was obviously a matter that troubled the Family Court Judge who said:
[61] No other domestic statute in New Zealand, or international convention which it has ratified that affect children, defines a child as a person over the age of 18 years. The Act is an anomaly in this regard. The Court has been presented with unreliable evidence of these girls' age. They are both likely to be over the age of 18. They are not children. Even though the Act defines a child as under the age of 20 for the purpose of an adoption, that is out of step with every other (subsequent) piece of legislation and international law. It is not the Court’s role to create a birth date for these girls to ensure that they come under the jurisdiction of the Court and permit a pathway for their entry to New Zealand when all other immigration and international humanitarian avenues have failed.
[49] I agree with the Judge’s comments that it is not the Court’s role to create a birth date for the girls to ensure they come within the jurisdiction of the Court and permit a pathway for their entry into New Zealand when all other immigration and international humanitarian avenues have failed. The Act should not be used in a way that undermines the thresholds in the immigration statute book. The fact that there were previous attempts to bring in the girls through other avenues is a matter that should put the Court on alert. The age of the girls raises a further red flag. Adoption of those who are over 18 years of age, and would otherwise be regarded as an adult, should alert the Court to a potential other purpose for the adoption.
[50] Whether the Act is being used to circumvent immigration controls, or whether there is a potential other purpose for the adoption involves a case specific factual inquiry. The fact that the children to be adopted are on the cusp of the age limit provided for in the Act is relevant to the assessment of their best interests and welfare. However, the incongruence between that statute and other legislative instruments defining a child is not relevant when it comes to a scrutiny of the particular circumstances that apply in each case.
[51] On closer look at those circumstances in this case, I consider there are particular features that, despite the girls’ ages, satisfy me that this adoption is not being used as an attempt to bypass the immigration laws. Those features are as follows:
(a)Despite the girls’ chronological ages, they are still dependent on the care of older adults in Sudan. They still attend school. Sisay is a year higher than Taitu, and documentary records from the school that pre- date the adoption application, confirm their attendance.
(b)There is a blood relationship between Kaleb and the girls, and he assumed a caring role for them both when his father passed away. That relationship of dependency has continued. He supports the girls financially and is in regular contact with them. In that respect he has been fulfilling some aspects of the parenting role for the girls already.
(c)Ms Woon gave evidence that in Ethiopian culture, the older siblings will take on the parenting role if both parents pass away. Mammit, Kaleb’s wife, also confirmed that the 10-year age difference between the girls and Kaleb and her would not have any real impact as the girls would respect those who act in the carer role.
(d)Both girls expressed a clear wish to live with their brother, their only blood family, in New Zealand. They share the same language, cultural and religious beliefs.
(e)The intention is for both girls to live with Kaleb his wife, and their two girls, as part of a family unit. They will go to school in New Zealand, and enquiries have already been made about enrolling them in a school that takes children up to the age of 24 years.
(f)The prior applications to bring the girls to New Zealand were made in 2014 (when the girls were approximately 14 and 12 years old) and 2016 (when they were approximately 16 and 14 years old). It is unlikely that
the ages of the girls would have triggered the same concerns had the adoption application be made at that time.
(g)The immigration applications made by Magdala and Kaleb were attempts to reunite a family unit. They were not declined on the merits, or because there was any doubt about the good faith nature of the applications. They were declined because neither had standing to make the application. This is not a case of the Act being used to have a second bite at the cherry.
(h)The evidence before the Family Court confirmed that there were no concerns in this case about child trafficking or identity fraud.
[52] Another factor to consider is the girls’ lives if the adoption was not to be granted. Relevant here is the fact that both girls are from a displaced population living in Sudan. There was evidence that because of their gender, age, and religious persuasion, they are vulnerable to harassment and abuse. Although adjustment to life in New Zealand will be difficult, Kaleb and his wife have ties to the Oromo community here and they will be able to foster the girls’ Ethiopian cultural ties whilst living in this country. On balance, this factor favours the adoption application.
[53] Overall, I consider adoption to be in the best interests and welfare of the girls in this case and the statutory criteria is met.
Final order
[54] The Court has a discretion under s 5 of the Act to make a final adoption order instead of an interim order where special circumstances exist.
[55] Because Sisay and Taitu reside in Sudan, the adoption order will not be given effect without a final order. That is because an interim order does not result in the girls being granted New Zealand citizenship, and a passport. They will not be able to travel to New Zealand. I am satisfied that these are special circumstances warranting a final order being made.
Result
[56] The appeal is allowed. The application for a final order of adoption is granted. For the purposes of the order, Sisay’s date of birth shall be recorded as [redacted] October 2000, and Taitu’s date of birth shall be recorded as [redacted] November 2002.
Edwards J
Counsel: V A Crawshaw QC, Auckland
M Casey QC, Auckland
Solicitors: Daniel Overton Goulding, Auckland Crown Law, Wellington
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