Title:
Saavedra v. Solicitor General
Court:
The Court of Appeal of Tongo Nuku’alofa Registry
Date:
17 April 2013
CRC Provisions:
Article 21: Adoption
Case Summary:
Background:
Prospective adoptive parents, who were United States nationals, appealed a decision denying them an adoption order of a 6 year old Tongan boy despite the fact that the natural mother had consented to the adoption.
Issue and resolution:
Adoption. Whether allowing the adoption was in the child’s best interests.
Court reasoning:
The court agreed with the reasoning of the initial decision that the proposed adoption was not in the best interests of the boy. The court admitted that the standard of living of the child would be improved if the proposed adoption were allowed but the court cited other factors which weighed in favour of not allowing the proposed adoption. These factors included: 1) the boy was attached to his mother, 2) potential adoptive parents were non-Tongans, and 3) the boy would be taken to an environment different from what he has known. The court also noted that during the time since the proposed adoption was initially denied, the boy had been living under the care of both his mother and grandmother without any problems and that the natural mother had withdrawn her initial consent to the proposed adoption.
Excerpts citing CRC and other relevant human rights instruments:
[3] In Hatch v Solicitor General [2010] Tonga LR 177 this Court said that the 6 month requirement is to allow a proper assessment of the relationship between applicants and children. But the Chief Justice observed in this case that it is not an inflexible requirement particularly in the case of very young children who might never have come to know their natural mothers. He said that the requirement that the applicants were sufficiently acquainted with the children they were proposing to adopt was only one aspect of the Court’s duty to enquire whether the proposed adoption is in the best interests of the child.
[4] We pause to emphasize that this is indeed the paramount consideration in adoption cases, including inter-country adoptions, and indeed in other cases involving children. Tonga is a party to the United Nations Convention on the Rights of the Child whose guiding principle is that paramount consideration. In particular, as the Chief Justice acknowledged, Article 21, requires State Parties to:
(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 of origin;
[5] Consequently, inter-country adoption should be approved only when all other means of caring for a child in Tonga have been exhausted. It is a measure that the Committee on the Rights of the Child has described as “a measure of last resort”: Concluding Observations: Mexico (UN Doc. CRC/C/15/Add.13,1994), para. 18 cited in Vité and Boéchat, A Commentary on the United Nations Convention on the Rights of the Child -Article 21: Adoption at p.45.
[11] The requirements of the United Nations Convention now plainly cannot be met. The further report of the guardian ad litem and affidavits from the natural mother, who now withdraws her consent to the adoption, and from the maternal grandmother, establish that the child is living with the natural mother during the week in order to attend primary school and at weekends and school holidays is sent to the grandmother’s home. The report states that the grandmother provides for his needs and wants during those times and provides most of his financial support. The child appears to be happy, healthy and cleanly kept by the maternal grandmother. She shows genuine care and love towards him. She conveys that she does not want the child to be adopted and states that she can continue to care and provide for him as she did in the past.
[12] The child has told the guardian ad litem’s representative that he does not want to go and live with the applicants and is happy with his grandmother whom he loves. The guardian ad litem now recommends that the child remain with his natural mother.
CRIN Comments:
CRIN believes this decision is consistent with the CRC. The best interests of the child must be the paramount consideration in matters concerning adoption.
Citation:
TOCA 7; AC01 of 2013
Link to Full Judgment:
http://www.paclii.org/cgi-bin/sinodisp/to/cases/TOCA/2013/7.html?stem=&s…
This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice.