Don’t amend Adoption Act 1955 – scrap it and start againPosted by Lianne Dalziel on August 20th, 2009 I made a contribution to Red Alert some weeks ago that people should judge the Chief Justice’s speech “Blameless Babes” after they had read it – and a couple of phone calls I received from the media yesterday, suggest to me that I should offer the same advice to those interested in the recent speech of the Acting Principal Family Court Judge [PDF link].
You could be excused for thinking it only recommended extending the existing adoption laws to same sex and de facto couples. It doesn’t – it recommends a total overhaul of the law and I agree. Apart from de facto couples and same sex couples the speech covers step parent adoptions and the severing of links with the birth parent and his or her extended family; Maori customary adoption (whangai) – banned by the current law; and inter-country adoption and surrogacy.
These are challenging issues and, as someone who has sat on select committees and been a Minister at the forefront of legislative change, I know how hard it is to construct a rational platform for constructive debate on such matters. That is why I am suggesting that we flick it back to the Law Commission. I know they reported on this in 2000, but that report was not limited to adoption – it proposed a fundamental overhaul of all guardianship laws and that is where the Care of Children Act 2004 came from. However, we omitted adoption, and that was for all the reasons spelled out in the judge’s speech. We also left it out of the Statutory References legislation, which was a Bill that removed relationship-based discrimination from countless pieces of legislation in one hit. That was for the same reason – extending a flawed piece of law doesn’t fix the underlying problem.
To summarise why we did not address adoption in the Care of Children Act there are four points to make:
The Care of Children Act 2004 says that the “welfare and best interests of the child must be the first and paramount consideration” and it applies in equal respects to all couples regardless of whether they are married, in a civil union or in a de facto relationship, same-sex or otherwise. This is the vision I have for modern adoption laws – a child-centred approach that ensures that their interests lie at the heart of any decisions that are made. The current Adoption Act says that the court has to be satisfied that the welfare and interests of the child will be promoted by the adoption, but it does not make that the paramount consideration as does the Care of Children Act.
- First there was the need to update our guardianship laws, which are the primary legal source of parental responsibilities to their children.
- Second was the reality that adoption severs legal relationships with wider family members as well as birth parents, for example grandparents (this is hugely challenging when you think of step parent adoptions and the impact on grandparents).
- Third was the absence of any legal arrangements around whangai adoption and the implications of applying the current law to whänau, hapü and iwi – the Law Commission recommended an alternative status called an “enduring guardian”.
- And finally there was the simple fact that less than a quarter of adoptions today are stranger adoptions, meaning that adoption is now much more often about providing a legal framework around an existing set of relationships.
Having seen what the Law Commission has done with other subjects that involve a legal framework alongside wider societal and cultural values, I think it would be helpful if they were to develop an issues paper on adoption, so that all of the factual information and evidence could be placed on the table, enabling a constructive debate to occur and a modern adoption framework to emerge.
It may well be that the best approach would be to amend the Care of Children Act 2004 to include adoption, as well as some of the other legal issues around parenthood, such as surrogacy, because that would build on legislation that already has the best interests of the child at its core and it is already non-discriminatory in its application.
Read the original post here