I made a contribution to Red Alert some weeks ago that people should judge the Chief Justice’s speech “Blameless Babes” after they had read it – and a couple of phone calls I received from the media yesterday, suggest to me that I should offer the same advice to those interested in the recent speech of the Acting Principal Family Court Judge [PDF link].
You could be excused for thinking it only recommended extending the existing adoption laws to same sex and de facto couples. It doesn’t – it recommends a total overhaul of the law and I agree. Apart from de facto couples and same sex couples the speech covers step parent adoptions and the severing of links with the birth parent and his or her extended family; Maori customary adoption (whangai) – banned by the current law; and inter-country adoption and surrogacy.
These are challenging issues and, as someone who has sat on select committees and been a Minister at the forefront of legislative change, I know how hard it is to construct a rational platform for constructive debate on such matters. That is why I am suggesting that we flick it back to the Law Commission. I know they reported on this in 2000, but that report was not limited to adoption – it proposed a fundamental overhaul of all guardianship laws and that is where the Care of Children Act 2004 came from. However, we omitted adoption, and that was for all the reasons spelled out in the judge’s speech. We also left it out of the Statutory References legislation, which was a Bill that removed relationship-based discrimination from countless pieces of legislation in one hit. That was for the same reason – extending a flawed piece of law doesn’t fix the underlying problem.
To summarise why we did not address adoption in the Care of Children Act there are four points to make:
- First there was the need to update our guardianship laws, which are the primary legal source of parental responsibilities to their children.
- Second was the reality that adoption severs legal relationships with wider family members as well as birth parents, for example grandparents (this is hugely challenging when you think of step parent adoptions and the impact on grandparents).
- Third was the absence of any legal arrangements around whangai adoption and the implications of applying the current law to whänau, hapü and iwi – the Law Commission recommended an alternative status called an “enduring guardian”.
- And finally there was the simple fact that less than a quarter of adoptions today are stranger adoptions, meaning that adoption is now much more often about providing a legal framework around an existing set of relationships.
The Care of Children Act 2004 says that the “welfare and best interests of the child must be the first and paramount consideration” and it applies in equal respects to all couples regardless of whether they are married, in a civil union or in a de facto relationship, same-sex or otherwise. This is the vision I have for modern adoption laws – a child-centred approach that ensures that their interests lie at the heart of any decisions that are made. The current Adoption Act says that the court has to be satisfied that the welfare and interests of the child will be promoted by the adoption, but it does not make that the paramount consideration as does the Care of Children Act.
Having seen what the Law Commission has done with other subjects that involve a legal framework alongside wider societal and cultural values, I think it would be helpful if they were to develop an issues paper on adoption, so that all of the factual information and evidence could be placed on the table, enabling a constructive debate to occur and a modern adoption framework to emerge.
It may well be that the best approach would be to amend the Care of Children Act 2004 to include adoption, as well as some of the other legal issues around parenthood, such as surrogacy, because that would build on legislation that already has the best interests of the child at its core and it is already non-discriminatory in its application.
Good post Lianne, to the point and without hype and humbug.
I’d agree that CoCA is probably the best way to go on this issue in principle, but have some misgivings about its (CoCA’s that is) tendency to include procedural matters, and the effect that may have. This would need to be looked at, also in a broader perspective. Don’t know whether a full LawComm report would be necessary, the issues are pretty sharp and von Dadelszen already gave some solid pointers. Most of it will turn on political decisions, there’s not much objective law to it. As von Dadelszen points out there are associated issues that must also be brought into the 21st century, and current technology is probably the easiest way to fix the difficulties caused by that technology.
I don’t know about too strong connexions between ethnicity and culture, and note that research indicates that the primary parent bond is the most important one for the small child, i.e. we shouldn’t fall in the trap of dual parent roles as they tend to be too forcefully promulgated (and which on this issue may turn into triple or quadruple parent roles, which should be avoided). In other words, it may pay to have another look at the ‘best interest’ principle while we’re at it. Also this cannot be seen separate from the ’solo parent’ debate and the false incentives resulting from the DPB. In other words, there may be more to this than meets the eye, but nothing insurmountable.
I agree with you Lianne that the 1955 Adoption Act should be scrapped. I would go further though and say that adoption as a way of caring and parenting for children should also be scrapped. Adoption is not in the interests of the child, it confers ownership of the child on the parent(s), and it steals the child’s heritage and name and turns the child into a desirable/tradable commodity. The Guardianship Law may need to be adjusted to ensure continuous and permanent care of the child by the people/persons who are planning or nominated to raise it. The child would be in a better situation with its birth family as it would ensure their ongoing contact and interest in the child. A lot of people nowadays think that adoptions are ‘open’ but they don’t realise that this is not a legislated right and adoptive parents can and do legally close out the birth family and have the right to take the child overseas to enable them to live the lie that the child is ‘theirs’, when in fact they are just parenting like every other person with children. We can’t own our natural children, and the law shouldn’t give that right to adopters. Having guardianship only could be harder for all parties, but then they all may appreciate the undertaking they are embarking on. I always wonder about people who say they want a baby, when what they are really going to have to do is raise a child.
I would go further though and say that adoption as a way of caring and parenting for children should also be scrapped.
Now thats an idea with a lot of merit. One certainly worth exploring further.
Adoption after confers, or did confer legal parenthood exactly equivalent to that of biological parents but it is years since we have viewed it this way and many adoptees seek out their birth parents as we know.
A very good post on the problems and possible fixes for adoption Lainne
I have to say that Janice also makes a very good point regarding open adoption. I for one thought that was the present model, certainly it should be the one we aim at
Is it true, as has been pointed out elsewhere, that there are under 100 adoptions a year in NZ?
That is not to say that could be a reason to do nothing quite the contary, with legal open adoptions maybe it might become more common if that gives better outcomes for everybody involved
Thanks for the constructive input. I hope the government progresses this further.
@dimmocrazy: I thought getting the Law Commission to provide a short report setting out the best way to deal with adoption now that the Care of Children Act has been in place for 5 years would be useful. We know that the ‘moral majority’ (who are neither) will run an anti-gay campaign around this and I would like the security of a rational report to back up what is a sensible tidy up of the law.
@Janice: I have enormous sympathy with your comments. People forget that adoption doesn’t just end the legal relationship with a parent or both parents, it also ends the legal relationship with grandparents, aunts, uncles and cousins. When a step parent is adopting their partner’s child, this can have enormous consequences for these other familial connections, which literally disappear with the granting of the order, and yet the human side of those connections are not severed in that way. I have had grandparents crying in my office, saying they have been excluded from their precious grandchilden’s lives, because of the new relationship their former daughter-/son-in-law has entered into and the adoption of the children. I do think we need to work these issues through from the children’s perspective and what secures their best interests. I am very attracted to the concept of the ‘enduring guardian’ which would not sever those other relationships; I think this would work for Maori and step parent relationships very well.
@Andrei: I agree
@Raymon: the figures in the speech state under 100 adoptions (91) that are outside the family – so that’s the traditional adoption, neither parent being birth parents. Most adoptions are step parents adopting the birth mother or birth father’s children; this raises all the issues Janice raises.
There’s a lot to said for Labour separating the issues of stranger adoption policy (the Adoption Act) from guardianship issues (CoCA) when in govt 1999-2008. Those of us having a foot in both issues – being adopted and denied legal guardianship rights – would be inclined to support Lianne on flicking this to the Law Commission in terms of a policy strategy. The 1955 Act is hideous; made only better by an MSD operational policy that reflects the intense debates from the 1980s and forever changed by the Labour led amendments in 1987 (Jonathan Hunt: my hero). Further, engaging in a public debate on the ‘pratical care of children’ issue is more likely to reach across Maori, Pacific and gay communities. I would caution that the same machine that fired up the referendum (Family First et al) is fully committed by opposing the DPB to having an increased pool of children to adopt. This is line in the sand stuff for the Christian Right.
I don’t follow the reasoning in your post, Lianne. The points you make were all extremely good reasons to introduce new legislation to replace the appallingly outdated 1955 Act. I found it very strange, too, that you have called for a Law Commission issues paper on adoption! Since 1979 there have been no less than six reports; the most recent and comprehensive was the Law Commission’s own report in 2000, yet again urging legislative change – as the previous five reports had done! It provided an excellent basis for reform. The Associate Minister of Justice announced in November 2003 that a Bill to amend the Adoption Act would be introduced later in the year, but nothing happened. Instead adoption reform was quietly taken off the Ministry’s Work Programme in 2004 and was only restored in 2006/07 after a deputation of professionals, including myself, with a special interest in adoption met with Hon Mark Burton. The Ministry’s Statement of Intent for 2007/08 stated that one of the major initiatives to be progressed in 2007/08 was:
“Reform of adoption laws to create a single, coherent piece of legislation to make adoption laws more accessible, eliminate inconsistencies between current legislation and to better reflect current practice and New Zealand’s international obligations.” But this seems to have been quietly dropped too, and nothing at all has happened since. New Zealand’s report to the UN Committee on the Rights of the Child in December 2008 conveys a false impression that progress is being made with adoption reform, when it is not. This matters, since NZ adoption laws are seriously inconsistent with the Convention of the Rights of the Child, among other things.
“Don’t amend Adoption Act 1955 – scrap it and start again” Finally, someone thinking properly! I don’t see why we can’t scrap it and bring the care of children under a different act and do away with adoption all together. When you weigh up all the cons and very few pros of adoption and take into the account the very huge amount of damage that adoption has caused across the globe let alone just in New Zealand thne you have to question why it still exists.
One does not have to OWN a child to love and care for them.
The Adoption Act 1955 stole my baby, and not 50 years ago, only 11 years ago and I don’t want any other mother or child to suffer what we have. I was lied to, duped and tricked into signing a consent and when, within 3 days I tried to dispose of the “consent”, I was informed there was no way to get my child back… What followed was a year of hell as I fought, won my child back and then lost her again in what has become a very strange case. I was never proven unfit and indeed that never came into question given I was an early childhood carer.
Our Act is barbaric and archaic. It breaches both the United Nations charter of Human Rights and the Convention of the Rights of the Child. New Zealand needs to issue a National Inquiry into the practises and past dealings of the Adoption Act and take responsibility for the countless lives it has damaged. Once they have faced this, we can then move on and scrap the Act and provide care for those children who sadly need it in another way.
I want to point out that all 3 times I have written to the Minister for Justice, each time I have received a letter to say that Adoption is back on the agenda to be overhauled and so far in the past 10 years diddly squat has been done about it. Maybe if an Inquiry was held into the pain it has caused the government would be able to see more clearly how much it needs to be changed… one can only hold their breath. Again.