Court/Judicial body: Family Court, Christchurch, New Zealand
Date: 21 December 1999 CRC
Provisions: Article 20: Protection of a child without family
Domestic provisions: Section 23, Guardianship Act: Welfare of the child as the first and paramount consideration
Case summary
Background: E and S, a European New Zealander and a European Australian, both resident in Sydney (the applicants), had sought to adopt a child, T, aged 3 months old. T’s mother and father R and N (the respondents) were of Maori descent in New Zealand. Both parents wanted the applicants to bring up T. R did not want any of her extended Maori family to adopt T and claimed her right of choice for T’s care and upbringing. As it would take some time for an adoption application to be processed by the Australian authority, E and S applied for leave to apply for custody and guardianship of T. The Department of Child, Youth and Family Services opposed the making of a custody or guardianship order. Given the issues of culture and residence involved, the Department considered that the matter should be treated in a similar manner to an intercountry adoption and be properly assessed before any order is made. In particular, the department submitted that the risk created by adopting a child from New Zealand to Australia carries with it ethnic, family and cultural difficulties. The Department preferred to place the child with his natural mother or extended family rather than with a non-Maori couple in Australia.
Issue and resolution: Intercountry adoption. The Court held that wider consultation and evaluation was required in the child’s best interest before making a decision. T was made a ward of the Court and the judge asked for an interim social worker’s report under section 29 of the Guardianship Act 1968 to consider cultural implications of the placement and to seek wide consultation with the respondents’ whanau (extended family), hapu (clan), and rwi (tribe).
Court reasoning: As the proposed placement involved intercountry issues, the provisions in both the Adoption (Intercountry) Act and the UN Convention on the Rights of the Child are relevant. The applicants, particularly E, appeared to be sensitive to T’s needs and willing to learn about and be involved in Maori culture. However, wider consultation was required for the placement of a Maori child. The major consideration for the Court was the evaluation of risk to the child by the overseas placement, which would necessarily mean a growing away from the child’s ethnic and cultural heritage, and from the child’s country of origin. As a ward of the Court, T was clearly a child in need of care and protection under section 14(1)(f) of the Children, Young Persons, and Their Families Act 1989. The Court had a primary obligation to the child to look at options for placement in New Zealand. A reference was made under section 19 of the Act for a care and protection coordinator to inquire into the matter, with a recommendation for a family group conference with the child’s whanau, hapu, and iwi and a report back to the Court. A report concerning the child’s attachment to the applicants under section 29A Guardianship Act was also required. The guardianship order would remain in force.
Excerpt citing CRC and other relevant human rights Clearly, the United Nations Convention on the Rights of the Child applies. As this proposed placement involves an intercountry placement and to that extent, the warnings and caveats set out both in the Adoption (Intercountry) Act, and indeed the United Nations Convention on the Rights of the Child are relevant considerations. The United Nations Convention on the Rights of the Child of course applies in any event. By art 20 of the United Nations Convention on the Rights of the Child, when considering solutions for children not to be placed in their family environment: “Due regard should be paid to the desirability of continuing continuity in the child’s upbringing and to the child’s ethnic, religious and cultural and linguistic background.”
Follow up: Following the Court’s evaluation of the various reports, the interim wardship order made by the Court was discharged. The Court found that the applicants have formed special relationships with both R and N. The certainty and immediacy of a settled, stable, loving environment with the applicants outweigh the option of placing the child back with R or her extended family, an option which was not the wish of either R, N or the whanau. A custody order and guardianship order were made in favour of the applicants in respect of the child. The whanau considered the applicants to be part of the whanau and are satisfied that T would be embraced by and involved with the Maori community in Sydney. The applicants were described as culturally sensitive people who are respectful of Maori people and who would be guided by whanau on matters concerning continued connection of the child with his culture and whanau in New Zealand and overseas. It was therefore in the child’s best interests under section 23 of the Guardianship Act to be placed with the applicants as the child had bonded with the applicants. The requirements of the Adoption (Intercountry) Act were met by consideration of all the relevant issues.
CRIN comments: CRIN believes this decision is consistent with the CRC. Article 3 provides that in all actions concerning children, the best interests of the child shall be a primary consideration. Furthermore, Article 21 provides that the best interests of the child shall be the primary consideration in adoption matters. It also recognises intercountry adoption 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 of origin.
Citation: (1999) 19 FRNZ 11
Link to Full Judgment: Available on request.