Consulting the recent thirteenth edition of Butterworth's Family Law in New Zealand (2007), I found the following to be the immediate context. As we know, the Adoption Act 1955 does not permit anyone but married heterosexual spouses to adopt children, although there is debate over this issue within the Family Court of New Zealand itself. Adoption has fallen into disuse as a parenting option due to the widespread availability of effective contraception and abortion access for straight women, as well as the permissibility of solo parenthood and the resurgence of whangai (whanau relative) adoption amongst Maori. Most adoptions are now partner/coparent adoptions. LGBT parents already have access to in vitro fertilisation, as well as guardianship and fostering responsibilities.
Even before the United Kingdom legislated for equal LGBT adoption
responsibilities in 2002, the English Family Division of the High Court
there was willing to recognise a lesbian coparent in her joint parental
care and responsibility for their child (In re W [1997] 3 WLR 708).
In New Zealand, there are two relevant cases that depict how unwieldy the current law is. Single people can adopt, and so Application by RH to adopt RTH
(Family Court Napier A, 31/84) was successful, but that was because the
lesbian coparent was sole carer for the child and its biological mother
had been absent for several years. In that context, it was concluded
that given her proven parental responsibility and commitment,
continuity of care entitled RH to acquire full single parental
responsibilities.
In Re an Application by T [1998} NZFLR 769-775 though,
matters were unnecessarily confusing. A lesbian coparent had applied
to adopt her partners child, and the couple had been together for the
last seven years, while their child had been born four years ago by
donor insemination and the partner was already guardian of the
biological mother's two older children. The biological lesbian mother
supported the application. The Family Court turned it down, so the
couple went to the High Court.
Justice Ellis noted that an advantage of such an order would be
enhanced family security and stability, caregiver equality and reduced
custody risk fallout should the biological mother die or become
incapacitated. He only saw one problem, which was that the child would
be unnecessarily confused by the exchange of adoptive parent legal and
biological parental identities. However, a guardianship order was
available for the two women, and if it were decided today, the Care of
Children Act 2004 provides for immediate recognition of coparent status
as jointly responsible parent in this context.
However, and tellingly, Justice Ellis also acknowledged that if
the Adoption Act's spousal definitions were broader, there would be no
problem, as if they had been a married straight couple within a blended
family situation, the court would have had that jurisdiction.
Recommended:
Phillip Webb et al (ed) Butterworths Family Law in New Zealand (13th Edition) Wellington: Lexis/Nexis: 2007.
