Judges Report Essay

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ROY McKENZIE CENTRE Families in Transition Seminar 17 August 2009

A new Adoption Act for the new Millennium Acting Principal Family Court Judge Paul von Dadelszen1

1.

Introduction

Making an adoption order can be a very happy occasion for a judge. For once we are not solely focussed on dealing with the consequences of the breakdown of a relationship. In fact, we are making a family. At the same time, we recognise that adoption is one of the most significant decisions we can make. that is in the best interests and for the welfare of the child involved.2 We take these

applications very seriously to ensure that adoption is the right decision and is one

The number of applications for adoption has declined significantly since the Adoption Act 1955 was enacted. The annual number of children adopted outside their families fell from a high of 2617 in 1968 to 92 in 2001. Last year there was a total of 486 applications3, 0.5% of the total number of applications of all types filed in the Family Court. However, that includes so called step parent adoptions; the percentage of “stranger” adoptions has dropped dramatically over the years (from 69% in 1968 to 24% in 2001), reflecting society’s greater acceptance of the “solo mother”.

It may surprise you to hear that the statute that governs adoption is over fifty years old. The changes in our society over the last half-century have meant that the Essentially, we need a new

Adoption Act of 1955 would benefit from updating. Adoption Act for the new millennium.

1

I am grateful to Jennifer Wademan, Research Counsel to the Principal Family Court Judge and Joshua Lucas, the Judges’ Research Counsel at Napier, for their assistance with this paper 2 Unlike the Care of Children Act 2004 and the Children, Young Persons and Their Families Act 1989, the Adoption Act has no provision requiring the Court to consider the welfare and best interests of the child. But see Director-General of Social Welfare v L [1990] NZFLR 125 (CA) and B v G [2002] NZFLR 961 (CA) which make it clear that such have to be taken into account 3 Taken from Family Court Monthly Jurisdiction Reports

2

I pause here to note that the Families Commission takes a broad and inclusive approach to the definition of a family.4 This definition includes groups of people linked together by adoption.5 I also note that one of the Families Commission’s aims is to encourage and facilitate informed debate on matters relating to the interests of families.6 Therefore, I believe that the Families Commission is ideally placed to

participate in (and even lead) the debate on adoption law in order to promote the very necessary changes to the legislation. I will say more about the role of the Families Commission towards the end of this paper.

2.

The Adoption Act 1955

The Adoption Act was drafted according to the norms of 1950s New Zealand society. It was a time when having children out of wedlock was a social stigma. A young woman, unmarried and pregnant, would be taken out of the sight of the disapproving eyes of society until she had the baby, who was then quickly given up for adoption. Adoption was to be a “complete break” for the child. There was to be no reference to the child’s previous mother and, if known, the father. There was no such thing as “the open adoption”, a concept not provided for in the law but accepted now by many who adopt. Until 1985, there was no right for the child to obtain any information about their genetic parents.7 There was no consideration given to Mäori customs or values. Adoption was approached having regard to the values of the white AngloSaxon society of the time. The only people who were allowed to adopt were married couples and single people.8

3.

Status

I shall be blunt.

The Adoption Act is outdated and it has become unjustly

discriminatory. Since the passing of the Adoption Act, we have had the New Zealand Bill of Rights Act 1990 (NZBORA) and the Human
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