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Social Welfare Officer v. Marshall

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Court/Judicial body:  The High Court of Fiji at Lautoka
Date: 7 March 2008 CRC
Provisions:  Article 3: Best interests of the child Article 21(c): Adoption
Other international provisions: Convention on Protection of Children and Co-operation in respect of Intercountry Adoption: Article 5 (determination by competent authorities on eligibility and suitability of parents and authorisation that infant will be allowed to enter and reside permanently in adopted country); Article 17 (need for approval by the central adoption authorities of both states before approval of adoption)
Domestic provisions: Adoption of Infants Act, Section 6(4) (an adoption order shall not be made in favour of any applicant who is not a resident in Fiji or in respect of any infant who is not so resident)

Case summary

Background: A couple, neither of whom were citizens of Fiji, wished to adopt children. The Adoption of Infants Act contained a residency requirement for those wishing to adopt, and the couple had not satisfied it. The couple argued that the best interests of the children were best served by adoption, which was accepted by the Magistrates Court. The Social Welfare Officer, who was also the guardian ad litem for the children at the centre of the adoption proceedings, appealed this decision to the High Court.

Issue and resolution: Adoption. The High Court found that the Magistrate erred in granting the adoption order, and allowed the appeal, quashing and setting aside the Magistrate’s orders.

Court reasoning: The Court reasoned that although it should consider the best interests of the child under the CRC, its job was to interpret the law and not to amend it. It was clear that both the applicants were not resident in Fiji in terms of section 6(4) of the Adoption of Infants Act and as such the adoption order should not have been made in their favour. Moreover, there was no independent assessment (i.e. home study report) as to the suitability of the couple as proposed parents. In the absence of such a report, there was no credible information before the Magistrate to enable a finding that an adoption order was in the best interests of the children.
Excerpt citing CRC and other relevant human rights [17] The duty of the Guardian Ad Litem appointed by the Court is contained in Rule 8 of the Adoption of Infants (Magistrates’ Courts) Rules. Rule 8 required the Guardian Ad Litem, the SWO, “to investigate as fully as possible all the circumstances of the infant(s) and applicant(s) with the view to safeguarding the interests of the infants and in particular to include in the investigation questions relating to the means and status of the applicants to enable them to maintain and bring up the infants suitably”. … An independent investigation was required of their situation in Australia where they intended to take the infants and where they were resident. The information provided by the applicants could not be authenticated by the authorities in Fiji and if upheld as being an adequate assessment of their suitability, would wholly defeat the safeguards contained in both the Act and regulations made thereunder and the Convention of the Rights of the Child (CRC). Suffice it to say that these safeguards are in place to protect children, contain measures to safeguard their interests and to preserve the paramountcy of their interests in adoption applications. … [20] I also note with concern that whilst Article 3 of the CRC which codifies ‘the best interest of the child as the primary consideration’, is often relied on to circumvent the restrictions of section 6(4) of the Act, there is often no regard paid to Article 21 (c) which stipulates that every child concerned by inter-country adoption should enjoy the safeguards and standards equivalent to those existing in the case of national adoption. In Fiji, with domestic adoptions, a home study report is invariably compiled and the recommendations contained in the report usually forms the basis of the court’s decision. The infants in this case have been deprived of the safeguards that Article 21(c) was designed to facilitate. The Magistrate’s conclusion that ‘it was in the best interest of the twins to make the order for adoption,’ in the absence of a Home-study report was speculative at best. The factual foundation necessary to arrive at a determination of what was in the best interests of the infants simply did not exist. [21] Mr. Kumar submitted at 6.4 of his submissions that the resident and Home-study requirement are subservient to the requirements of the best interest of the child. Whilst I accept that the best interest of the child is always the paramount consideration, the Home-study report forms the basis of a determination of what is in the best interest of the child. Without that report the court is unable to make this assessment.

CRIN comments:  CRIN believes this decision is partially consistent with the CRC. The Court correctly recognised that the focus of adoptive proceedings should be the best interests of the child in line with Article 3 of the CRC. However, while there is no right to adoption or to be adopted, States that provide for these arrangements should not be permitted to discriminate against applicants on the basis of their status, including their status as non-residents.

Citation:  [2008] FJHC 283; HBA11.2006 (7 March 2008)

Link to full judgement: