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Monday 08 November 2010

Proclamations of the Red Queen

26th July 2010

Fording A Bridge: De Facto Straight Couples and the Adoption Act 1955

Posted by: Craig Young

Thanks to Rainbow Wellington, I’ve been able to scrutinise the recent High Court decision which may have opened up the Adoption Act 1955 to include straight de facto couples.

This decision, CIV 2010-485-328, runs as follows. The transcript runs for twenty four pages or so and asks whether in the opinion of the presiding High Court judges, the de facto straight male partner of the biological mother of a ten year old child could legally adopt the child, given that he was not the child’s biological dad but had been his custodial father for the duration of his life. Under a ’strict’ reading of the Adoption Act 1955 and its social context at the time, ‘only’ straight married couples are permitted to adopt children as espoused couples. In the past, the Family Court has upheld this. However, what about heterosexual relationships akin to marriage? It is important to note that the decision is explicitly restricted to this criteria, although there may be ways around that if a same-sex parental couple wants to try it. In this context, the Attorney-General’s counsel concedes that the law is unjust.

So, is the Adoption Act 1955’s spousal eligibility bar at odds with the Bill of Rights Act 1990? Unlike the Canadaian Charter of Rights and Freedoms, which is a written constitution proper, the Bill of Rights Act 1990 is substantive but not compelling in terms of its provisions. There is a tension between Section 4 (”justifiable limits) and Section 6 (”liberal interpretation”). There are limits to the liberal elasticity of interpretation, given New Zealand parliamentary sovereignty in our national context. However, it is equally valid that BORA is intended to be taken seriously as a substantive constitutional document, what limits are evolved through case law, precedent and reference to overseas and higher jurisdictions. Can straight couples be read into the legislation? Given that the parties were in a long-term, durable relationship and the nonbiological parent had exercised paternal responsibilities for the last decade, yes.

This decision doesn’t apply to civil unions, given that the Care of Children Act 2004 rejected an attempt to amend the Adoption Act at the same time. However, the best interests of the child provisions focused on relationship duration, which may offer some way forward. As Rainbow Wellington commented in its latest newsletter, it seems that the New Zealand judicial hierarchy is annoyed at the situation that continual parliamentary neglect has wrought in this context.


Rainbow Wellington:

High Court: CIV 2010-485-328 (24.06.2010):

Tags: Politics

3 responses so far ↓

  • 1 dave // Jul 27, 2010 at 10:56 pm

    So, according to this ruling, if straight couples can be read into the legislation does this mean that those in civil unions will have to either marry or dissolve their civil union to jointly adopt,as those in a civil union are re specifically not spouses?

  • 2 Craig // Jul 28, 2010 at 12:16 pm

    I know, this decision opens a can of worms which will no doubt be resolved through other judicial decisions that refer to same-sex parents in analogous circumstances. There will be a Crown Law Office opinion along to clarify this shortly.

  • 3 dave // Jul 28, 2010 at 12:22 pm

    Wonder if it will be in line with the Law Commission’s report

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