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Wednesday 10 November 2010


Adoption: In whose 'best interests?'

Posted in: Comment
By Craig Young - 5th October 2009

When it comes to debates over family policy, three principles stand out- the best interests of the child, continuity of care and parenting skills. So, how has this been applied to adoption policy in New Zealand?

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The NZ Adoption Act 1955 prevents a couple of prospective eligible same-sex parents from adopting a child, even if that child is being coparented by the partner of the biological parent. In other words, even though I've been with my partner for the last five years now, I can't apply to have my coparental status recognised insofar as our daughter is concerned. However, if I were a single coparent and my partner had relinquished effective custody of our daughter to me, I could adopt her.

So, what other questions have arisen? In Re H (adoption) [1994], the Department of Social Welfare opposed an applicant from an individual straight female applicant because they asserted (without any real evidence) that she drank, smoked pot and slept with multiple men while unmarried. However, she had also exercised ample diligence for the little boy that she was parenting and his birthparents approved. The Family Court held that her application was a valid one, which may suggest that heterosexuals get the benefit of elastic interpretation of the Adoption Act. I am not casting aspersions on this woman either, as she may well have proven to be a loving and caring dedicated parent if the adoption was approved.

In Application to Adopt J [1995], it was held that potential terminal illness didn't disqualify an eligible single individual from acquiring adoptive responsibilities. Nor did mental illness in the case of Re B [2007]. Again, all well and good. I don't approve of disability discrimination when it comes to parenting, either. The earlier decision may be interesting to HIV+ and PLWA parents, for that matter.

However, concerns have arisen in other contexts. One of them was Re R and M [1993], in which an adoption was approved, but the husband of the applicant turned out to have had indecency convictions in his past and therefore was not a 'fit and proper person' to have parental responsibilities. Accordingly, the adoption was revoked and Judge Ellis noted that the Family Court expected there to be due diligence on background checks for eligible parents- Re R and M (Family Court Adopt 1/93, 10.10.93).

I do find one case particularly disturbing, though. Granted, it may not be the case that all the relevant facts are recorded, but take Re an Application by C and C (Family Court Palmerston North Adopt 26/86, 18.11.87). Judge Inglis was faced with a situation where the father of a child born from his earlier incestuous relationship with his daughter was the child in question. He had served a prison sentence for his earlier incestuous abuse of his female relative. The child had previously been solely adopted by the wife applicant and she and he had brought the child up since birth. The order was accordingly made.

Now, I concede that continuity of care and ongoing stability of parenting arrangements were involved in this context, but this man sexually abused one of his female relatives, although he later exercised parental responsibility for his offspring by that illegal relationship.

However, can a perpetrator of incest be considered a 'fit and proper person' to have custodial care of a child?! And what about the young woman whose pregnancy provided the child? How did she feel about this?

Still, at least the Adoption Act 1955 disqualifies potentially eligible same-sex parents...

Recommended:

D Webb et al: Family Law in New Zealand (13th Edition) Wellington: Lexis/Nexis: 2007.


Craig Young - 5th October 2009

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