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Monday 09 April 2012

Adoption: Edging Glacially Toward Reform?

Posted in: Comment
By Craig Young - 5th January 2012

In the November 2011 New Zealand Law Journal, Peter Turner presents the case for judicial intervention in securing just and inclusive adoption reform for eligible same-sex prospective parents.

Turner acknowledges that the Adoption Act 1955 does not properly encompass contemporary family diversity (or cultural pluralism, for that matter). However, when it comes to straight de facto couples and lesbian and gay individuals, the Family Court is divided. Some have upheld the inclusion of straight de facto couples, while others have not.

He argues that Section 3 (2) of the Adoption Act 1955 is now incompatible with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993, particularly its sections about family status and sexual orientation. In dealing with a recent landmark High Court case that upheld the right of  a long-duration straight de facto couple to adopt a child, Attorney-General Chris Finlayson acknowledged that when it came to straight de facto couples, the exclusion was without 'logic or justification.'  As Turner further notes, the exclusion of de facto straight and same-sex parents may contradict the provisions of the UN Convention on the Rights of the Child, Children Youth and Their Families Act 1989 and the Care of Children Act 2004, all of which make specific reference to the 'best interests of the child.'  Furthermore, Turner argues, if long duration straight de facto relationships are stable enough to adopt children into, what about civil unions, which require even greater recognition of spousal commitment?

He concludes that there are ample signs that the courts are starting to tire of continued parliamentary inertia over failure to amend the Adoption Act while counterpart legislation overseas has subsequently undergone inclusive revision. Would Attorney-General Chris Finlayson go as far as acknowledging that the exclusion of potentially eligible lesbian and gay prospective parents was similarly without logic or justification- and will the courts act in Parliament's stead on this issue? And with the inexplicable apppointment of Judith Collins as Simon Power's replacement as Minister of Justice within the second Key administration, will there be any forward development at all on the legislative front, given her notorious populist social conservatism?

David Turner: "Righting Wrongs or Writing Wrong?" New Zealand Law Journal: November 2011: 364-368

Craig Young - 5th January 2012

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