New Zealand Law Society - The Law Society's perspective

The Law Society's perspective

This article is over 3 years old. More recent information on this subject may exist.

Family law barrister, mediator and chair of the Law Society Family Law Section Dr Allan Cooke says the Adoption Act is outmoded and needs to be brought up to date. His views are also informed by the Law Society’s submission on the Government’s response to the United Nations Convention on the Rights of the Child (UNCROC), which was submitted on 15 March 2015.

The Act was passed well before New Zealand acceded to and adopted UNCROC, he says.

“In this respect it fails to reflect what are now accepted principles/precepts arising from our having adopted the convention.

“For example, it does not take into account cultural and ethnic background of a child who is being adopted, [which raises] the concern that children who are indigenous or from a minority culture may be adopted into a new culture and be denied the right to enjoy their own culture, language and trace their lineage.”

A child cannot get access to his to her birth certificate until they attain the age of 20 years – if they want to know who they are and where they have come from. They are thus deprived of knowledge of their natural family and the right to maintain personal relationships with them, he says.

There is also no provision for the voice of the child to be heard – as the Act does not allow for the appointment of lawyer for child. Rather, the Court is forced to appoint a lawyer to assist the court to ensure that this occurs, he says.

Equally the limits on who can adopt are reflective of its time. Section 3 of the Act outlines when an adoption order may be made on an application of two spouses jointly – or by the mother or father of the child either alone or jointly with his or her spouse, for example, he says.

For many years, therefore, the Act has not reflected changing societal norms. This is a major issue and in part has been addressed by the High Court in Re application by AMM and KJO to Adopt a child [2010] NZFLR 629 where it took the lead in finding that a de facto couple of the opposite sex were spouses for the purpose of the Act.

The Attorney General there intervened and accepted that the Adoption Act was discriminatory and breached the New Zealand Bill of Rights Act. At the time of deciding that case, the issue of civil unions and same-sex de facto couples was left hanging. That situation remains as the Marriage (definition of Marriage) Amendment Act 2013 has not come into force, Dr Cooke says.

“The Law Commission’s Report on Adoption made a number of pertinent observations and recommendations, which sadly have not been further taken up by successive governments. My own view is those recommendations would provide an appropriate way of addressing the concerns that exist in respect of the Adoption Act.”

Lawyer Listing for Bots