Last week, a full court of the High Court (this means 2 judges – commonly the way that test cases are heard and decided) significantly widened the pool of adults who can legally volunteer to adopt children in New Zealand.
The last time Parliament considered the issue was back in 1955 when it passed the current Adoption Act. Not surprisingly, given the values of the time, Parliament restricted eligibility to adopt to married couples by the use of the word “spouse” in the Act. When the civil unions and relationship property acts were passed, the definitions in the Adoption Act were left unchanged.
The test case came before Justices John Wild and Simon France, both highly regarded members of the Court. What they had to decide was whether the term ‘spouse’ as used in the Adoption Act 1955 should be interpreted today as including unmarried people living together. It was argued that it should, largely because the New Zealand Bill of Rights Act, as enacted in 1990, contains a prohibition of discrimination on the ground of martial status. The Bill requires an outcome consistent with its provisions wherever possible.
The Court found that, to give effect to the ban on marital status discrimination, it had to interpret the word “spouse” as including people in de-facto relationships. The parties to the case had agreed that the interpretation they were seeking extended only to test whether heterosexual relationships were included in the ruling, and the Court records this limitation in its reasons for judgment.
However, logically, the ruling extends eligibility to be considered for adoption to anyone in a marriage, civil union or (straight or gay) de-facto relationship. This is so for two reasons – the definition of “marital status” and the fact that “sexual orientation” is also a ground of prohibited discrimination in the New Zealand Bill of Rights Act.
The number of adoptions that actually occur each year in New Zealand is small -guardianship and other legal forms allowing for the care of children without legally extinguishing the birth relationship are more usual these days. But the decision is important. Children who are in need of adoptive parents should have the right to have those parents selected from the widest pool of appropriately-qualified people possible. Unless amended, the current Act, as now interpreted by the High Court, restricts them to people in a relationship. At some point soon Parliament should widen the pool further. Who can seriously argue today that single, or divorced, or widowed people can’t make great parents? And as you would imagine, there are other anomalies in legislation that is now 65 years old that need fixing up.
Right now, though, it’s good to read a sensible decision from our Hight Court that shows the Bill of Rights to be a valuable tool in keeping the law up to date.