Re MM, Adoption Application by SAT
Supreme Court of Vanuatu
3 July 2014
Article 21: Adoption
Article 95(2), Vanuatu Constitution: Applicability of pre-independence laws
Articles 343–359, French Civil Code: Provisions for adoption
Section 2(3), British Adoption Act 1958: An adoption order shall not be made in respect of an infant who is a female in favour of a sole applicant who is a male, unless the Court is satisfied that there are special circumstances
1993 Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoption
SAT, who was an unmarried man in a same-sex relationship, applied to adopt a 3-year-old Vanuatu girl, MM. According to Article 95(2) of the Vanuatu Constitution, unless otherwise provided by Parliament, British and French Laws in force in Vanuatu pre-independence shall continue to apply, where possible, taking into account the customs of Vanuatu. While section 2(3) of the British Adoption Act 1985 stated that a sole male applicant shall not be allowed to adopt a female infant unless there are special or exceptional circumstances, the French Civil Code on the other hand did not have any similar prohibitions.
SAT had initially made the adoption application by general reference to the adoption laws of Vanuatu but subsequently amended his application to cite only the French law, arguing that legal provisions relating to adoption are intended to be remedial and beneficial and there is therefore no real conflict, merely difference. Meeting the criteria of one suffices and any person wishing to apply for adoption in Vanuatu should therefore be able to apply under either law.
As there was no opposing party in the application, the Attorney General was invited by the court to assist with analysing the legal framework. He submitted that, unlike a contract, an applicant for adoption has no right to choose the applicable law that was more favourable. In the present case, in his view, because the British law directly addresses the relationship involved in SAT’s application, it ought to, as a specific provision dealing directly with the relationship between applicant and child, prevail in the event of conflict with the French Civil Code which is less specific.
Issue and resolution:
Adoption. The Court had to determine what was the applicable law that governed adoption and the applicant’s eligibility to adopt. It was held that SAT’s adoption application must fail under both law and custom.
The Court said that there are no longer French or English laws in Vanuatu but only the law of Vanuatu. Some of the law of Vanuatu undoubtedly derives from French and English laws that were in force prior to independence. In this case, as Vanuatu had not enacted any adoption legislation, Article 95(2) of the Constitution means (subject to custom being taken into account wherever possible) that the previously-applied British and French adoption laws together form part of what may now be called “the adoption law of Vanuatu”. Neither has precedence over the other and they both apply to everyone. The application is therefore subject to both laws concurrently and it would be artificial to compartmentalise any adoption application within the framework of one and not the other. SAT’s application cannot therefore succeed on the basis of just the French Civil Code.
However, Article 95(2) of the Constitution also states that the continuing application of pre-independence laws must apply, taking due account of custom wherever possible. Evidence was sought from Vanuatu’s National Council of Chiefs, who under the constitution has general competence to discuss all matters relating to Vanuatu custom. The chief submitted that Vanuatu Christian principles did not agree with same-sex marriage and that marriage is between a man and woman only. “Therefore the adoption of a ni-Vanuatu child by a gay person is not tolerable because it could cause moral impacts on the child concerned because of the situation of same sex household or marriage does not suit the context of social living in Vanuatu.” There was therefore uncontradicted and unequivocal evidence from the body which the Vanuatu Constitution recognises as the authority on Vanuatu customs stating that the application could not be tolerated by Vanuatu custom.
The Court concluded that SAT’s application must therefore be dismissed under both law and custom.
Given that this is not the first time the courts had to consider an adoption application of a Vanuatu child by foreign nationals, post-independence, the court also invited and considered submissions on the wider policy of inter-country adoptions. In the absence of any substantive policy by the Vanuatu government or any specific Vanuatu law on adoption, the court urged the Government to take steps to formulate Vanuatu’s own Adoption Act and to accede to the 1993 Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption (the Hague Convention), which it said was designed to give effect to Article 21 of the UN Convention on the Rights of the Child, to which Vanuatu is a party.
Excerpts citing CRC and other relevant human rights instruments:
75. One of the questions on which I asked Mrs Trief to make submissions was the wider question of how the interests of the Republic of Vanuatu would be affected, if at all, by this inter-country adoption, were the Court to sanction it. I further asked whether the Republic had a view generally on its young children being adopted by applicants from another country and, if so, what was that view?
76. Mrs Trief’s response was that the Government does not have a formal policy on inter-country adoptions although it is acknowledged that the matter is not new to Vanuatu. She suggested the Government might proceed immediately to assist in securing the rights of MM by requesting a bilateral agreement with France through the French Embassy. That would provide a basis for understanding between the two countries in this case and in any subsequent cases. She also noted that this proceeding may well provide impetus to the Government to take steps to accede to the 1993 Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption as well as establishing bilateral agreements with other countries.
77. It is of course a matter for the Parliament of this Republic, not the Court, to decide whether to enact any particular legislation and to decide whether it ought to become a signatory to the Hague Convention. I note though, as pointed out by Justice Spear in a preliminary ruling in Adoption Case 23 of 2010 on 25 February 2011 (Re: the child “M”), that the Hague Convention is designed to give effect to Article 21 of the UN Convention on the Rights of the Child. This provides:
States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country or origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.
78. The Republic of Vanuatu ratified the UN Convention on the Rights of the Child in 1993. France did so in 1990. However, as Justice Spear noted, when France ratified the Hague Convention in 1998 it declared that this specifically excluded its overseas territories, obviously including New Caledonia.
79. Given that the current application is certainly not the first by residents of New Caledonia to adopt a Ni-Vanuatu child and will surely not be the last, I respectfully urge the Government to consider working with the Government of France on this issue in an effort to reach an agreement about how applications for such adoptions may be dealt with in future. I also respectfully urge the Government to give consideration to ratification of the Hague Convention and to the enactment of Vanuatu’s own Adoption Act. I request that Mrs Trief supply a copy of this judgment to the appropriate officials and Minister(s).
CRIN believes this decision is inconsistent with the CRC. Article 2 of the Convention prohibits any kind discrimination against a child or his or her parent(s). Furthermore, Article 21 requires that the best interests of the child be the paramount consideration in all adoption cases. Therefore, an adoption should not be refused on the basis of discriminatory treatment towards the prospective adopter, where the adoption would otherwise be in the best interests of the child.
 VUSC 78, Adoption Case 3 of 2014
Link to Full Judgment:
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