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Adoption: Options for Reform

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Adoption: Options for Reform Preliminary Paper 38 A DOPTION: OPTIONS FOR REFORM A discussion paper The Law Commission welcomes comments on this paper and seeks responses to the questions raised. These should be forwarded to: Helen Colebrook, Researcher, Law Commission PO Box 2590, DX SP 23534, Wellington by 31 January 2000 October 1999 Wellington, New Zealand The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are: Hon Justice David Baragwanath – President Paul Heath QC Judge Margaret Lee DF Dugdale Denese Henare ONZM Timothy Brewer ED The office of the Law Commission is at 89 The Terrace, Wellington Postal address: PO Box 2590, Wellington 6001, New Zealand Document Exchange Number: SP23534 Telephone: (04) 473–3453, Facsimile: (04) 471–0959 Email: [email protected] Internet: www.lawcom.govt.nz Use of submissions The Law Commission’s processes are essentially public, and it is subject to the Official Information Act 1982. Thus copies of submissions made to the Commission will normally be made available on request, and the Commission may mention submissions in its reports. Any request for the withholding of information on the grounds of confidentiality or for any other reason will be determined in accordance with the Official Information Act 1982. Preliminary Paper/Law Commission Wellington 1999 ISSN 0113–2245 ISBN 1–877187–44–5 This preliminary paper may be cited as: NZLC PP38 Summary of Contents Page Preface xi 1 Introduction 1 2 History of adoption in New Zealand 12 3 The participants – competing interests 18 4 Principles of adoption 27 5 Jurisdictional and citizenship issues 32 6 Who may be adopted? 40 7 Who may adopt? 43 8 Consent 55 9 Adoption orders 66 10 Succession 72 11 Forbidden marriage and Incest 75 12 Cultural adoption practices 81 13 Surrogacy 92 14 Ancillary services 102 15 Access to adoption information 108 APPENDICES A Terms of reference 117 B A snapshot of adoption law 118 C International obligations 127 D Tables 160 E Rules relating to customary adoption and succession 163 F Recognition of indigenous adoption practices in other jurisdictions 164 Bibliography 168 Index 175 Contents Para Page Preface xi 1 INTRODUCTION 1 Concepts of adoption 5 2 The social context of adoption today 9 2 Formulations of ‘family’ 10 3 Open and closed adoption 13 3 Cultural considerations 21 5 The relevance of adoption in contemporary society 22 5 The challenges of reproductive technology 23 5 Adoption: the legal concept 24 6 International conventions 33 7 The future of adoption 36 8 Option one – retain a modified version of adoption 39 8 Option two – abolish adoption and use guardianship instead 42 9 The Law Commission’s provisional view 48 10 The structure of the paper 50 10 2 HISTORY OF ADOPTION IN NEW ZEALAND 12 The historical context of adoption 58 12 Early practices 58 12 New Zealand 60 12 Adoption in New Zealand 62 13 Early 1900s 63 13 The 1940s – a change in attitudes 65 14 The 1950s – adoption encouraged 66 14 Public perception of the availability of children: supply and demand 68 14 Open v closed adoption 71 16 Adoption as a means of regulating status 75 17 3 THE PARTICIPANTS – COMPETING INTERESTS 18 The child 77 18 The birth parents 79 18 The birth mother 79 18 Counselling 81 19 The birth father 83 19 The interests of birth parents in open adoption arrangements 85 20 Extended birth family 86 20 Adoptive parents 92 21 Counselling 93 21 Security 94 22 Genetic parents as adoptive parents 95 22 iv ADOPTION: OPTIONS FOR REFORM Para Page Adoption and the interests of the wider community 96 22 Adoption and new family relationships 97 22 The place of secrecy in adoption 103 23 Adoption: knowing the options and obtaining professional advice 106 24 Young people and education 107 24 Adoptions where no independent assessment is currently required 108 24 Private providers of adoption services 109 25 Private adoption arrangements 114 26 4 PRINCIPLES OF ADOPTION 27 The purpose of adoption 121 28 Is adoption the most appropriate option? 123 28 The paramountcy principle 124 29 Assessing welfare and interests 130 30 Recognising changing needs in adoption 131 31 5 JURISDICTIONAL AND CITIZENSHIP ISSUES 32 Jurisdiction 133 32 Prospective adoptive parents 133 32 Prospective adoptee 137 33 Recognition of an overseas adoption 138 33 Intercountry adoption 140 34 Recognition of overseas adoptions by New Zealanders in non-Hague Convention States 142 34 United Kingdom approach to recognition 144 35 Reform for New Zealand 148 36 Citizenship and the Adoption Act 152 37 Conferring citizenship 154 38 6 WHO MAY BE ADOPTED? 40 Age 158 40 Marriage 162 41 The implications of reform on succession rights 166 41 7 WHO MAY ADOPT? 43 Gender 170 43 Marital status 172 44 De facto couples 173 44 Same-sex couples 179 46 Adoption by a same-sex couple to regulate the child’s status 184 46 Applying to adopt generally 189 47 Step-parent / de facto step-parent adoption 198 50 Concerns about step-parent adoption 199 50 Succession issues and step-parent adoption 205 52 Adoption by birth parent in step-parent adoptions 208 52 Adoption or care by family members 210 53 Consultation and placement 210 53 Guardianship or adoption? 213 54 Succession issues 214 54 A parent alone 215 54 CONTENTS v Para Page 8 CONSENT 55 Consent of the birth parents 216 55 Mother’s consent 216 55 Father’s consent 223 57 Withdrawal of consent 227 59 Conditional consent 230 60 Dispensing with consent 232 61 The effect of a valid consent 233 61 Consent to adoption by husband or wife alone 238 62 Child’s consent 239 62 Defective consent 241 63 Procedural issues and consent 242 64 Information given at the time of consent 242 64 Witnessing consents 244 64 Independent witness 244 64 Barristers witnessing consent 245 65 9 ADOPTION ORDERS 66 Interim and final adoption orders 247 66 When an order can be made 247 66 Potential changes 248 66 Final orders 250 67 Attaching conditions to the order 251 67 Post-adoption maintenance and child support 260 70 Discharging an adoption order 264 70 10 SUCCESSION 72 Instruments pre-dating the adoption order 270 72 Succession from natural relatives 272 72 Succession from adoptive relatives 274 73 Succession after the adoption order 275 73 11 FORBIDDEN MARRIAGE AND INCEST 75 The Law 285 76 Forbidden marriage 285 76 Incest 289 77 The considerations 292 77 Genetic factors 294 77 Integrity of the family 297 78 Adoptive relationships? 300 78 Degrees of affinity 301 78 Forbidden marriage 303 79 Incest 304 80 12 CULTURAL ADOPTION PRACTICES 81 Mäori customary adoption 311 81 Legal constructs and customary ‘adoption’ 311 81 Whängai and atawhai – history 312 82 Legal recognition of whängai placements 317 82 Court jurisdiction 325 84 Succession 326 84 vi ADOPTION: OPTIONS FOR REFORM Para Page Mäori concerns about legal adoption 329 85 The impact of secrecy upon whakapapa 330 86 Inability to establish entitlement 332 86 Lack of whanau consultation 333 86 Reconciling values 334 87 Other jurisdictions 335 87 A more accommodating adoption regime 336 87 Redefining the “best interests” principle 337 88 Counselling and family group conferencing 338 88 Mäori social workers 339 88 Adoption plans 340 88 Iwi databases 341 88 A parallel system 342 89 The legal effect of adoption 343 89 Pacific Islands adoption 344 90 Asian cultural groups 348 91 13 SURROGACY 92 The legal state of surrogacy 353 92 The regulatory arrangements 353 92 The status of the child 355 93 Surrogacy and adoption 360 93 Similarities and differences 362 94 Arguments against using adoption to confer status 365 94 Arguments for requiring a legal process 367 95 Alternatives to adoption 368 95 Difficulties 371 96 The Law Commission’s tentative view 374 96 Using adoption to regularise the arrangement – some issues 381 98 Payments 382 98 Advertising 384 99 The role of Social Welfare 386 99 Best interests of the child 389 100 Possible relationship thresholds 390 100 Dispensing with consent 391 100 Succession rules 392 100 Attaching conditions to the adoption order 393 101 Access to information 394 101 14 ANCILLARY SERVICES 102 Adoption counselling 395 102 Continuing counselling 398 102 Cost of counselling 400 103 Which organisations should facilitate counselling? 401 103 Family group conferences 402 104 Need for greater powers of inquiry 406 105 Counsel for the child 408 105 Right of review 410 106 Current review mechanisms 411 106 Possible reform 415 107 CONTENTS vii Para Page 15 ACCESS TO ADOPTION INFORMATION 108 The detail of a birth certificate 419 108 Altering birth certificates 419 108 The purpose of a birth certificate 421 109 What is a birth certificate used for? 423 109 Accessing adoption information – are the current procedures appropriate? 426 110 Should the legislation be amalgamated? 429 111 Age restriction 430 111 Access to information by other family members 432 112 The Assisted Human Reproduction Bill 1998 434 112 Vetoes 441 113 Upon access to information 441 113 Non-contact vetoes 445 114 Purpose of vetoes 448 114 Options for reform of the veto system 450 115 Access to Social Welfare records 451 115 Access to court records 453 116 APPENDICES A TERMS OF REFERENCE 117 B A SNAPSHOT OF ADOPTION LAW 118 Adoption B1 118 Jurisdiction B3 118 Who may adopt a child B4 118 Adopting a child B5 118 Consent B6 119 Making an adoption order B10 120 Effect
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