New Zealand Law Society - From a law professor

From a law professor

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Victoria University Faculty of Law Professor Bill Atkin is a member of Adoption Action Incorporated, a group dedicated to enhancing the rights of children and other persons affected by outdated adoption laws.

Adoption Action brought proceedings against the Attorney-General to the Human Rights Tribunal seeking declarations that the current legislation was inconsistent with human rights law. The hearing commenced on 18 November 2013 and continued until January 2014. The Human Rights Tribunal is yet to reach a decision and release its findings.

A Ministry of Justice spokesperson said the ministry could not comment on adoption until after the findings are released.

“A lot depends on the outcome of the tribunal. At this stage any comment would be speculative.”

Adoption Action claimed that New Zealand’s Adoption Act 1955 and the Adult Adoption Information Act 1985 discriminate against certain classes of people on 10 grounds, including sex, race, age, disability, sexual orientation and marital status.

With regard to sex, a man on his own cannot adopt a female child, for example. Couples in a civil union are discriminated against, where they cannot jointly adopt a child while married couples and opposite-sex couples in a de facto relationship can. Meanwhile, same-sex couples cannot jointly adopt a child unless they are married to each other.

When the Adoption Act was implemented 60 years ago, it was a very different time, Professor Atkin says.

Specifically, the legislation created a statutory guillotine, where legal adoption replaced the rights of the birth parents entirely. The birth parents had no rights in the transaction – namely because there was a pretence that the birth parents never existed, he says.

Thirty years ago there was a revolution in thinking with the introduction of the Adult Adoption Information Act 1985, insofar as there was a quest for adopted people to find their biological origins.

There was a consensus that the adoption laws in place breached people’s rights to their identity – and the rights extended to generations, he says.

To enable identification, people could be adopted but without the same pretence that it never really happened.

“It was a carefully crafted piece of legislation that was a major development and addressed a crying need, almost literally, to change the legal climate.”

The law still contains a statutory guillotine, however, where it doesn’t provide for adoption in a positive way. The legislation was created 60 years ago and desperately needs fixing, he says.

“Informal agreements work but if a birth family were to go to court with the question of contact, the ball falls entirely in the new family’s court. The birth family has no legal leg to stand on.

“While it is the adoptive parents who retain legal rights the law needs to address the place of the birth family in that child’s life,” Professor Atkin says.

From the Law Commission

The Law Commission published a report, Adoption and Its Alternatives: A Different Approach and a New Framework in 2000, Law Commission general manager Roland Daysh says.

Since then the Law Commission has not undertaken any review of the adoption laws in New Zealand, neither has it been invited to, or sought to do so, he says.

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