Adoption Action Seeks Ruling From Human Rights Tribunal

18 November 2013

Adoption Action has brought a claim that New Zealand’s adoption laws discriminate in ten different respects in which discrimination is unlawful under the Human Rights Act and the New Zealand Bill of Rights Act. The claim will be heard by the Human Rights Tribunal starting Monday 18 November 2013 at the Tribunal at 85 Customhouse Quay, Wellington.

The claim against the Attorney-General contends that New Zealand’s Adoption Act 1955 and the Adult Adoption Information Act 1985 discriminate against certain classes of person on the grounds of their:
• Sex: (i) a man on his own cannot adopt a female child, and (ii) the consent of some fathers to the adoption of their child is not required
• Marital Status: eg couples in a civil union and opposite-sex de facto couples cannot jointly adopt a child while married couples and opposite-sex couples in a de facto relationship can;
• Race or Ethnic Origin: Adoption is alien to deeply held Maori cultural values as it cuts off child’s relationship with members of the whanau, hapu and iwi;
• Disability: The consent of a parent to the adoption of his or her child can be dispensed with on the grounds of that parent’s physical or mental incapacity;
• Age: Anyone under 25 years is debarred from adopting a child unless the child is a relative or there are other special circumstances. Adopted persons under 18 years cannot access their original birth certificate with information about their biological parents;
• Sexual orientation. Same- sex couples cannot jointly adopt a child unless they are married to each other.

Adoption Action is seeking a declaration under Part 1A Human Rights Act that provisions in these Acts are inconsistent with fundamental rights and freedoms of the persons affected. The claim is being defended by the Crown but has received support in submissions filed by the Human Rights Commission and the Children’s Commissioner.

Robert Ludbrook, a spokesperson for Adoption Action explains that:

“The Adoption Act was passed 58 years ago and reflects the attitudes and values that prevailed at that time. Successive governments have failed to amend or replace the many archaic provisions of the 1955 Act, despite more than 100 recommendations made by the Law Commission in a wide-ranging report in 2000.

Four Ministers of Justice have accepted that there is a need for reform and various assurances have been given, but new legislation has never been drafted. The Ministry of Justice has commenced work on reform on at least five different occasions but it has never been followed through.

Our adoption laws have been criticised by the United Nations Committee on the Rights of the Child in 2003 and 2011 and by at least five different Family Court judges. The Ministry and Cabinet have at different times accepted that our adoption laws are discriminatory, but have not progressed reform. An assurance was given by NZ to the UN Committee on the Rights of the Child in 2003 that major reform of adoption law was planned but it had to admit to the Committee eight years later that reform was on hold.

The failure to reform adoption laws which are discriminatory and out of touch with current attitudes and values is not just a theoretical issue but has negatively impacted on many persons who have experienced adoption. It is the experience of members of Adoption Action that the outdated provisions of the Adoption Act affect adopted persons, biological parents and prospective adoptive parents often resulting in emotional distress and confused identity at different times throughout their lives

Adoption Action is committed to enhancing the rights of children and other persons affected by outdated adoption laws. Its members include lawyers, social workers, academics and individuals who have suffered as a result of laws that are out of touch with current realities.

Attached to this media release is a chronology detailing the failure over decades to bring our adoption laws into line with contemporary attitudes and values

Chronology of moves to reform adoption laws over the last 34 years

January 1979 Justice Department Review of the Law on Adoption (Webb Report). This report made a number of recommendations for reform of Adoption Act 1955. Patricia Webb commented that “adoption is a legal fiction and legal fictions, while they may bring about a solution of some problems, inevitably create others. No amount of legal juggling with the facts of the biological relationship can create, though it may serve to foster, the sound psychological relationship between adoptive parents and child that is the child’s basic need.”

1987 Adoption Act 1955 Review by an Inter-Departmental Working Party an inter-departmental review of the Act was conducted by the Department of Justice. It made a number of proposals for reform.

September 1988 Puao-te-ata-tu (Day Break) the Report of Ministerial Advisory Committee on a Maori Perspective, Department of Social Welfare commented that adoption, as understood by Western countries, is a totally alien concept, contrary to the laws of nature in Maori eyes, for it assumes that the reality of lineage can be expunged, and birth and parental rights irrevocably traded”.

August 1990 Report of Adoption Practices Review Committee a report commissioned by Department of Social Welfare while not asked to comment on law reform issues made 28 specific recommendations for changes to the Act and adoption practice.

1993 Review of Adoption Law – Maori Adoption This report of Social Policy Agency (a unit within Department of Social Welfare) made recommendations for change to adoption law to take into account Maori cultural values.

April 1993 The United Nations Convention on the Rights of the Child was ratified by New Zealand. Article 21 of the Convention states that countries that allow adoption of children shall ensure that the best interests of the child is the paramount consideration (art 21) and that parental consent shall be an informed consent given after counselling. It also required that, as far as possible, children shall have the right to know and be cared for by their parents (art 7.1) and, if separated from a parent, shall have the right to maintain personal relations and direct contact with that parent unless that is not in the child’s best interests (art 9(3). The Adoption Act 1955 does not comply in these and other r respects. New Zealand did not enter a reservation on these matters and so is bound to comply.

June 1997 Minister of Social Welfare Hon Roger Sowry, in opening a conference Adoption and Healing, stated that “The (National led) Coalition Government acknowledges that the Adoption Act 1955 is an old Act and in need of review. Work is progressing on this and I am personally committed to seeing it included on the legislative programme in the next 12 months.”

1998 Law Commission Review of Adoption legislation The Minister of Justice requested the Law Commission to review the Adoption Act 1955 and the Adult Adoption Information Act 1985 and to make recommendations on how the legislative framework should be modified to better address contemporary social needs. The 16 specific issues that the Law Commission was asked to consider included four in relation to access to adoption information including the issue of “At what stage should an adopted child be entitled to information about his or her identity.

October 1999 Law Commission Discussion Paper Adoption: Options for Reform This provided a comprehensive review of current adoption legislation and included information about possible areas for reform. It elicited a wide response from individuals, organizations, government departments and Family Court Judges.

June 2000 Government Administration Committee was delegated to inquire into New Zealand’s adoption laws in the light of the Law Commission’s report with particular focus on (i) changes in attitudes towards adoption with increased focus on children’s interests (ii) the unique character of New Zealand society including Maori and other cultural values and needs. It was also asked to consider whether changes were necessary arising from past adoption practices and to look at the role of accredited organizations in intercountry adoptions.

September 2000 Law Commission Report Adoption and its Alternatives This report provided an excellent blueprint for adoption reform, placing strong emphasis of the rights and interests of children and proposing additional protections for birth mothers to avoid their being pressured to consent to the adoption of their child. The report proposed that adoption law be integrated with general law as to the care of children in a Care of Children Act. The report made over 100 recommendations for reform of adoption law.

Late 2000 Ministry of Justice Response to Law Commission Report
The Ministry of Justice gave an initial response to the Law Commission report, supporting most of its recommendations including its proposals as to who may adopt and increased access to information of persons affected by adoption.

December 2000 New Zealand’s 2nd report to the UN Committee on the Rights of the Child NZ’s report Children in New Zealand annexed the Law Commission report and advised the Committee that adoption law would be reformed after a Parliamentary Select Committee had considered the options set out in the report.

31 August 2001 Parliamentary Government Administration Select Committee issued an interim report Inquiry into Adoption Laws which gave general support to the Law Commission recommendations although there was disagreement between members on some of the proposed reforms. Ministers agreed to progress adoption reform.

December 2001 Ministers of Justice and Social Development Hon Margaret Wilson (then Associate Minister of Justice) and the Minister of Social Development direct officials to report to them setting out proposals for adoption reform.

October 2003 UN Committee on the Rights of the Child in its observations and recommendations on NZ’s 2nd report welcomed the government’s intention to reform adoption laws and recommended that children of a certain age should have to give their consent to adoption and that adopted children should, as far as possible, have access to information about their biological parents.

November 2003 Cabinet paper Hon Lianne Dalziel, then Associate Minister of Justice, presented a paper to Cabinet Policy Committee containing detailed provisions for reform of adoption law but was asked to amend the proposals and provide an amended paper.

2002 Associate Minister of Justice Lianne Dalziel indicated that an Adoption Bill giving effect to the Law Commission’s recommendations would be introduced later that year. No Bill was introduced then or in the following decade

March 2004 Memorandum by Associate Minister of Justice for Cabinet Social Development Committee This Memorandum for Cabinet by Hon David Benson-Pope recommended that Adoption Act 1955 and Adoption (Intercountry) Act 1997 be repealed and replaced by a new Adoption Act. It had 97 paragraphs containing detailed proposals for reform. The matter appears not to have been considered by Cabinet.

February 2005 Human Rights Commission National Plan of Action on Human Rights. The Action Plan identified as priorities for action the need to ensure that children’s voice is given due weight in court proceedings and that the consent of children from the age of 12 onwards be required before any order is made for their adoption.

2006 Ministry of Justice Statement of Intent 2006/07 asserted that the Ministry ensures that laws remain acceptable and relevant to changing societal needs by providing research and supporting the government’s legislative reform. It further stated that the Ministry works to ensure that laws within its area of responsibility are aligned with New Zealand’s international obligations. There was no specific reference to adoption reform.

July 2006 Assurance by Minister of Justice Hon Mark Burton met with a group of professionals who had expressed their concern at the lack of action on adoption law reform. The Minister expressed support for the need for reform and said he would try to get adoption reform included in the 2006/07 Ministry of Justice Work Programme. He assured the group that as long as he was Minister, communication would improve. Adoption reform was put back on the Work Programme later that year but dropped off again soon afterwards.

June 2007 Ministry of Justice Statement of Intent 2007/08 states that one of the major initiatives to be progressed in 2007/08 was “Reforming adoption laws to create a single, coherent piece of legislation to make adoption laws more accessible, eliminate inconsistencies between current legislation and to better reflect current practice and New Zealand’s international obligations.”

16 August 2007 Shadow Attorney-General Christopher Finlayson in a letter to Robert Ludbrook, stated “I agree that the adoption laws are overdue for reform”. He indicated the need for a fundamental look at all statutes concerning family and relationships and the development of “a comprehensive code which brings together all relevant statutes.”

2007 Ministry of Justice Paper for Cabinet Policy Committee This Cabinet Paper stated that there are legal and social reasons why NZ’s adoption laws need to be changed, adding that current legislation is fragmented, perpetuates discriminatory practices. and creates a system which is open to abuse. It also referred to the need to align adoption legislation with New Zealand’s obligations under international human rights instruments. It contained detailed proposals for reform including a comment that the 1955 Act might discriminate against persons on the grounds of their disability. For reasons that have not been disclosed the Paper was never considered by Cabinet.

June 2008 Ministry of Justice Statement of Intent 2008/09 to 2010/11 Adoption reform does not appear in the list of priorities nor is there reference to adoption reform in the Ministry’s Annual Reports for 2008/09.or 2009/10

November 2007 Ministry of Justice Briefing to Incoming Ministers Under the heading Ensuring the Relevance of Laws and Regulations the first issue to be identified is listed as “Reforming adoption laws to create a single, coherent piece of legislation to make adoption laws more accessible, eliminate inconsistencies between current legislation and to better reflect current practice and New Zealand’s international obligations.”

December 2008 New Zealand’s combined 4th and 5th report to the UN Committee on the Rights of the Child This report offered no explanation for the lack of movement in relation to the recommendation of the UN Committee made five years earlier. It stated that:
“The Government has begun the process for a comprehensive reform of adoption laws with the Ministry of Justice conducting targeted consultation in 2003. A key objective in reviewing adoption legislation is to update the legal frameworks to better align with modern adoption practices, contemporary society structures, and values and obligations contained in international instruments”. Due to other work programme priorities, the review was placed on hold for a period. Work on the reform recommenced in 2006. A considered and comprehensive approach is being taken to reviewing these complex issues“.

2009 Minister of Justice Simon Power advises that adoption reform was not a priority for the National-led government in 2009.

2010 Human Rights Commission Report Human Rights in New Zealand identified as areas of priority for action the need to review adoption legislation and procedures (Right 21) and the need to take legislative steps to enable people to found and form a family regardless of their sexual orientation (Right 27).

September 2010 Adoption Action is incorporated. Its primary object is to propose and promote changes to adoption law which would eliminate discriminatory provisions in current law and reflect current social attitudes and values.

February 2011 UN Committee on the Rights of the Child report on New Zealand The combined 3rd and 4th report on New Zealand expressed regret that the review of adoption legislation foreshadowed by government in October 2005 was on hold. It again raised the need for children to give consent to their adoption and for the age at which adoptees have access to adoption information be lowered to at least 18 years..
July 2011 Adoption Action Inc. files claim with Human Rights Review Tribunal The application for a declaration under Part 1A Human Rights Act that the Adoption Act and the Adult Adoption Information Act discriminate on a number of grounds (sex, marital status, disability, race, age and sexual orientation) on which discrimination is unlawful under the Human Rights Act 1993 and the New Zealand BiIll of Rights Act 1990..The government asked for the claim to be referred to mediation but no settlement could be reached and the claim will now proceed to a hearing on 18 November 2013.
September 2011 Reviewing the Family Court This 90 page public consultation paper circulated by the Ministry of Justice contained no specific reference to adoption processes in the Family Court and the pressing need for reform despite submissions by Adoption Action Inc and others to that effect.
October 2011 Ministry of Justice Annual Report 2010/ 2011 has no reference to adoption reform. It states that one of the Ministry’s aims is to ensure that NZ meets its international justice obligations.

October 2011 Valedictory speech of Minister’ of Justice The retiring Minister of Justice, Simon Power spoke strongly of the need for Parliament to address difficult issues.

"It is our job to tackle the tough issues, the issues the public pays us to front up to and come to a view on. There are many, many debates that Parliament does not want to have, for fear of losing votes or not staying on message: abortion, adoption law, children’s rights, and sexual violence issues. I do not share this timid view. The truth is if we do not have those debates here, where will we have them?" (emphasis added).

February 2012 Briefing Paper to the Incoming Minister The Ministry of Justice 42 page Briefing Paper released on 2nd February 2012 contained no reference to adoption reform.

Mid-2012 New Justice Minister, Judith Collins indicates on several occasions, that she has no plans to give priority to adoption reform.

July 2012 Cabinet Paper released by the Minister of Justice proposes major changes to Family Court laws and procedures but there is no reference to the need to reform adoption laws and procedures, adoption being one of the matters falling within the jurisdiction of the Family Court.

15 October 2012 Care of Children (Adoption and Surrogacy) Amendment Bill was placed by Green Party MP Kevin Hague in the Parliamentary ballot as a private member’s Bill. If enacted. it would repeal the Adoption Act 1955 and the Adoption (Intercountry Act) 1997 and would move adoption laws into the Care of Children Act as recommended by the Law Commission in 2000. Many of its provisions give effect to Law Commission recommendations made in 2000 and accepted by Ministry of Justice officials in 2003 and 2007. The Bill had the support of National MP Nikki Kaye.

27 November 2012 Family Court Proceedings Reform Bill introduced by the government proposed major changes to Care of Children Act 2004 and changes to six other family law statutes but included no amendments to Adoption Act 1955.

19 April 2013 Marriage (Definition of Marriage) Amendment Act was passed on a conscience vote and will give same-sex and trans-gender married couples the right to marry and, if married, to apply to adopt a child. It was introduced as a private member’s Bill by Labour MP Louisa Wall. It came into force on 19 August 2013.

7 June 2013 The Family Court Proceedings Reform Bill was reported back from Select Committee but makes no changes to adoption law or practice.

24 September 2013 The Care of Children Amendment Act (No 2) 2013 made sweeping changes to the Care of Children Act and other family law statutes but included no amendments to the Adoption Act

18 November 2013 The hearing of the claim by Adoption Action Inc against the
Attorney-General is set down for a hearing before the Human Rights Tribunal in Wellington and is estimated to last for 10 days. The Human Rights Commission has joined in the proceedings and the Children’s Commissioner has filed a report in support of aspects of the claim affecting children.

Adoption Action Inc
17 November 2013

ends

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