Late last year, in the as yet unreported case of Re Pierney and Hsieh [2015] NZFC 9404, Judge McHardy of the Auckland Central Family Court made what some in the media have called an “historic” and “ground-breaking” judgment, by interpreting the word “spouse” in the Adoption Act 1955 to include same-sex de facto couples for joint adoption application purposes.

The judgment was made orally and, therefore, it is unlikely that the full details of the legal arguments will be made public. It is, however, my view (as one of the applicants concerned) that we as a profession benefit from the sharing of knowledge.

Broadly speaking, to be granted an adoption order, the Court must be satisfied on two main points: eligibility status to apply and thereafter whether the adoption is in the welfare and best interests of the child. Until our case was decided, same-sex de facto couples failed at the first hurdle because it was believed they were ineligible to jointly apply.

As most practitioners in this field will be aware, the Adoption Act 1955, as originally enacted, provided that joint applicants to adopt a child had to be made by a husband and wife jointly.

In 2010, the High Court in Re Application by AMM and KJO to adopt [2010] NZFLR 629 interpreted the word “spouse” in the Adoption Act to include de facto heterosexual couples. Obiter comments of the High Court in that case provided that there were at that time “formidable barriers” to interpreting the word “spouse” in the Adoption Act to include same-sex couples.

In 2013, the Adoption Act was amended to reflect the changes to the Marriage Act 1955; thereby, allowing same-sex couples to marry and married same-sex couples to jointly apply to adopt a child.

Our application for adoption as a same-sex de facto couple was made in late 2014. Almost one year later the case was finally decided.

Submissions

The basic premise of our submission was that there were no express prohibitions against same-sex de facto couples being able to jointly adopt, and that a failure to grant eligibility status to same-sex de facto couples (when it had previously been granted to heterosexual de facto couples) would amount to an unjustified breach of the right not to be discriminated against on the grounds of marital status and sexual orientation.¹ In granting the adoption order, the Court agreed.

The submissions mainly focused on two judgments of the New Zealand courts to make the argument that it was reasonably possible to interpret the word “spouse” in the Adoption Act to include same-sex de facto couples for joint adoption purposes – namely, the Supreme Court’s New Zealand Bill of Rights Act 1990 (NZBORA) interpretative framework from R v Hansen [2007] 3 NZLR 1, and the High Court decision in Re Application by AMM and KJO to adopt.

It was argued that it was Parliament’s intention for the word “spouse” in the Adoption Act to be confided to married persons. Further, that this had been reinforced by the amendment to s 2 of the Act in the wake of changes to the Marriage Act, where the words “husband and wife” were removed from the definition of “adoptive parents” and “spouse”, and replaced with “married couple” to reflect that same-sex couples could now be legally married.

That being Parliament’s intention, it was submitted there was a prima facie inconsistency with protected rights (the right not to be discriminated on the grounds of marital status and sexual orientation).

Thereafter, it was submitted there was no apparent justification for that inconsistency because there was no evidence that the welfare and best interests of the child could not be equally met by de facto same-sex couples, when compared with those persons already granted eligibility status to jointly adopt.

Rights consistent interpretation

Having reached that point, the submissions then turned to what is essentially the meat of the Supreme Court’s framework: the examination of the word “spouse” again under s 6 of NZBORA, to see if it was reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in that word.

Here, we submitted there was no express prohibition precluding such a meaning to be found as the amendments made to the Adoption Act in the wake of the redefinition of marriage legislation were merely consequential, and, therefore, not a deliberate or intentional statement precluding the courts from finding a more rights consistent meaning of “spouse”.

It was then submitted that NZBORA and the Human Rights Act required the courts to consider societal change when interpreting human rights legislation. Here, we submitted that the necessary societal changes had occurred to allow a more rights-consistent interpretation to be made to the word “spouse” so as to include de facto same-sex couples. We cited five societal changes to that end:

1. the Adoption Act was enacted before the decriminalisation of homosexuality (Homosexual Law Reform Act 1986) and before the enactment of the Human Rights Act and NZBORA, which preclude discrimination on grounds of marital status or sexual orientation;
2. marriage is no longer synonymous with opposite-sex couples, and, therefore, the dicta in Re AMM and KJO was no longer relevant because Parliament had made it clear, in allowing same-sex married couples to adopt, the welfare and best interests of a child were not disturbed by having same-sex adoptive parents;
3. the Select Committee for the redefinition of marriage legislation partly suggested approval of the related Bill and consequential amendments to the Adoption Act on the basis that it was absurd that single gay and transgendered people could adopt but same-sex couples could not;
4. the Minister of Health had recently authorised the Advisory Committee on Reproductive Technology to amend its guidance so as to allow consideration of applications by same-sex male couples to use fertility services, so as to allow them to utilise a gestational surrogate or to aid in the insemination of a traditional surrogate (whereupon, such couples would effectively need to adopt any child conceived in order to legalise their relationship with said child);
5. Parliament, in amending the Status of Children Act 1969, has provided that it did not believe the welfare and best interests of the child were compromised in allowing a female same-sex couple, regardless of marital status, to be able to jointly register the birth of a child born via assisted reproductive technology, and for the female partner of the birth mother to be considered the birth parent of the child born through such technology.

Judge McHardy accepted the submissions as provided to the Court and with it stated clearly that there was no justification for denying eligibly status for joint adoption purposes to same-sex male or female couples.

Having made that determination, Judge McHardy then referred to the Child, Youth and Family report which recommend joint adoption orders. Thus, being satisfied that the adoption was in the welfare and best interests of the children, joint adoption orders were granted in our favour for our two girls.

While it is both personally and professionally validating to be part of this “ground-breaking” judgment, it is my view that the better way would be for the Adoption Act to be thoroughly overhauled.

Ours is not the only human rights issue with the Adoption Act. Indeed, a long overdue decision from the Human Rights Review Tribunal, in Adoption Alliance Incorporated v Attorney-General [2013] NZHRRT 4, will likely raise many more that the government will need to address. With advances in technology and the rise of both domestic and international surrogacy, New Zealand needs a new Act that reflects the age we live in. The time is now ripe to make the necessary legislative steps so as all parties are protected.

Stewart Dalley is a solicitor with Ryken and Associates in Auckland. His same-sex partner and their children wish to thank all who have supported them throughout the long process.

1. Contravening s 19 of the New Zealand Bill of Rights Act 1990, and with it ss 21(b) and (m) of the Human Rights Act 1993.