NZ Adoption Laws Breach Anti-Discrimination Laws
Claim Filed With Human Rights Tribunal: NZ Adoption Laws Breach Anti-Discrimination Laws
Adoption Action has filed a claim with the Human Rights Review Tribunal complaining that the Adoption Act 1955 and other adoption laws and practice notes are inconsistent with the anti-discrimination provisions of the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 in 15 different respects AND are inconsistent with fundamental rights and freedoms of the persons affected.
Adoption Action claims that adoption laws and practice notes discriminate against certain groups within society on the grounds of: Sex Marital status Religious or ethical belief Race or ethnic origin National origin Disability Age Sexual orientation.
Adoption Action is seeking a declaration under Part 1A Human Rights Act that various provisions of the Adoption Act and other adoption laws and practice notes are inconsistent with NZ’s anti-discrimination laws.
Robert Ludbrook, spokesperson for Adoption Action Inc, explains that: “New Zealand’s adoption laws are out of touch with contemporary social attitudes as regards non-marital relationships, children’s identity, and Maori cultural values. They reflect a time in our history when the parents of a child born out of wedlock were viewed as immoral and their children deemed illegitimate. Adoption was shrouded in ‘secrets and lies’.
New Zealand adoption laws have been singled out by the United Nations Committee on the Rights of the Child and by our own Human Rights Commission as infringing the rights of children. Successive governments have given assurances over the last two decades that they are moving to implement major reform of our adoption laws but nothing has happened: see attached historical survey.”
Adoption Action is committed to enhancing the rights and wellbeing of children affected by adoption and to eliminating discriminatory provisions in current adoption laws. Its members include persons who have had personal experience of adoption and professionals with specialist knowledge and experience of adoption law and practice.
The Human Rights Review Tribunal
Human Rights Review Tribunal,
Private Bag 32-001
Panama Street, Wellington 6146
Claim under Part 1A Human Rights Act 1993
BETWEEN ADOPTION ACTION
a society incorporated in New Zealand under Incorporated Societies Act 1908
ATTORNEY GENERAL on behalf of the
legislative, executive and judicial branches of
c/o Crown Law Office
P O Box 2858
(under Part 1A Human Rights Act 1993)
Relevant provisions of the Human Rights Act 1993
This claim is brought under Part 1A and s92J Human Rights Act 1993.
Statement of Claim
1. The Plaintiff says that the New Zealand Government through its legislative and/or judicial branches has by its acts and/or omissions contravened s21 and Part 1A Human Rights Act 1993 and s19 New Zealand Bill of Rights Act 1990 in that it has failed to repeal or amend provisions of the Adoption Act 1955 and the Adult Adoption Information Act 1985 that are inconsistent with the anti-discrimination provisions in s21 Human Rights Act 1993 and s19 New Zealand Bill of Rights Act 1990 AND
2. The Plaintiff further says that the New Zealand government through its judicial and/or executive branches has by its acts or omissions contravened s21 and Part 1A Human Rights Act 1993 and s19 New Zealand Bill of Rights Act 1990 in that it has by an amendment in 2010 to the Caseflow Management Practice Note of November 2008 issued by the former Principal Family Court Judge and in a new Caseflow Management Practice Note dated 24 March 2011 and the Form Affidavit of Natural Mother referred to in both Practice Notes and posted on the Ministry of Justice website establishes a practice requirement which discriminates on the grounds of sex AND
3. The Plaintiff further says that these acts and/or omissions:
• limit the right to freedom from discrimination affirmed by s19; and
• are not, under s5 New Zealand Bill of Rights Act, a justified limitation on that right.
4. The Minister of Justice and
his predecessors in office have and have had the
responsibility for adoption legislation and amendments
thereto and, in particular, for Adoption Act 1955 and Adult
Adoption Information Act 1985. The Ministry of Justice has
executive responsibility for adoption legislation and for
keeping this legislation up to date.
5. The Minister of Social Development (through Child, Youth and Family) and her predecessors in office have and have had responsibility for the administration of these Acts.
6. The Principal Family Court Judge is responsible for:
- the 2010 amendments to Chapter 2 para 1 of the Caseflow Management Practice Note dated 1 November 1998 which required applicants for an adoption order to file an affidavit from the natural mother of the child; and
- Chapter 2 para 2.2(e) of the Caseflow Management Practice Note dated 24 March 2011 to the same effect; and
- the new non-statutory Form Affidavit of Natural Mother referred to in both Practice Notes as a document that must be filed with an adoption application..
7. The Ministry of Justice has executive responsibility for its website on which is posted the 24 March 2011 Caseflow Management Practice Note and the Form referred to in Chapter 2 para 2.2(e) of that Practice Note which is set out as the last item in the Forms section of the website under ‘6 –Forms for proceedings under Adoption Act 1955’ which can be viewed at http://www.justice.govt.nz/courts/family-court/forms/list-of-forms/forms-for-proceedings-under-adoption-act-1955
8. The Attorney General has responsibilities in relation to the administration of justice and human rights in New Zealand.
9. The aims and objects of Adoption Action Inc are to:
(a) propose and promote changes to adoption laws, policies and practices that will:
• enhance the rights and wellbeing of children affected by adoption
• eliminate the discriminatory provisions in current New Zealand adoption laws
• introduce new laws which will reflect current social attitudes and values and will accord with national and international human rights standards
• reduce the risk of sale, trafficking and inhumane treatment of children in inter-country adoption
(b) collect statistics and undertake research which will increase community knowledge and understanding of the effects of adoption on those involved and will cast light on past adoption practices
(c) disseminate information in relation to adoption laws, policies and practices to members, to the media and to the public generally
(d) organise seminars and conferences on adoption and related topics.
10. Members and office bearers of Adoption Action Inc include persons who have had personal experience of adoption whether as relinquishing parents, adoptees or as actual or potential adoptive parents. Its officers and members also include professionals who have specialist knowledge of and involvement in adoption issues as lawyers, legal academics, social workers and researchers.
11. The Plaintiff asserts that it has standing to bring the present application for a declaration of inconsistency as a claimant: see decision in Attorney General v Human Rights Review Tribunal (2006) 18 PRNZ 295 at .
12. In particular, the Plaintiff claims that certain provisions of Adoption Act 1955 (AA), Adult Adoption Information Act 1985 (AAIA) discriminate against certain persons and classes of person in respect of eight prohibited grounds of discrimination set out in s21 Human Rights Act 1993 (HRA), namely:
12.1 Discrimination on the grounds of sex - s 21(1)(a) HRA
12.1.1 Section 4(2) AA: A sole male applicant cannot adopt a female child unless there are special circumstances;
12.1.2 Section 7(5)(b) AA: The father of a child who is not married to the child’s mother and not a guardian of the child may have an adoption order made in respect of his child without his knowledge or consent. The mother’s consent is always required.
12.1.3 Family Court Practice Notes and accompanying Form Affidavit of Natural Mother: These impose an obligation on mothers placing their child for adoption (who are not parties to the adoption application) to swear an affidavit containing a large amount of personal information. Natural fathers have no equivalent obligation.
12.2 Discrimination on the grounds of marital status - s21(1)(b) HRA
12.2.1 Section 3(2) AA: Only “2 spouses” may jointly apply for an adoption order. The High Court in Re AMM and KJO  NZFLR 629 ruled that “spouse” in this context includes some opposite-sex couples who are in a committed de facto relationship. However, s 3(2) AA still excludes unmarried couples in a civil union and same-sex couples who by law are unable to marry.
12.2.2 Section 7(3) AA: An adoption order can be made without the consent of the child's father if he is not and has not been married to the mother. The consent of the mother is always required whatever her marital or relationship status.
12.2.3 Section 7(2)(b) AA: The consent of the unmarried opposite-sex or same-sex partner of a sole applicant for an adoption order is not required even when the couple are living together at the time of the adoption application. The consent of the spouse of an applicant is always required.
12.3 Discrimination on the grounds of religious or ethical belief - s21(1)(c) & (d) HRA
12.3.1 Section 7(6) & s11(c) AA: The only condition that relinquishing parents can impose in respect of the adoption of their child is a condition requiring the adoptive parents to bring up the child in a particular ‘religious denomination or practice’. Prospective adoptive parents of different (or no) religious persuasion will be denied the opportunity to adopt the child on the grounds of their religious or ethical belief. Adoptive parents who agree to the religious condition will be obliged to bring the child up until adulthood in a particular religion or denomination even though their own beliefs may change. This is despite the fact that the person imposing the condition is no longer in law a parent of the child and that under s16(1)(c) & (2)(e) Care of Children Act 2004 the adoptive parents have the right and responsibility to determine the child’s “religious denomination and practice”.
12.4 Discrimination on the grounds of race or ethnic origin - s21(1)(f) & (g) HRA
12.4.1 Section 19 AA: Maori customary adoptions have not since 1909 been recognised and are declared (with minor exceptions) not to have any force or effect..
12.4.2 Section 16(2)(a)(b)(c) AA: An adoption order deems an adopted child to be the child of the adoptive parents as if born to them. It deems that the child is no longer the child of the natural parents and also severs the child’s relationships with all relatives traced through the biological parents and confers a new set of relationships traced through the adoptive parents. These provisions expunge the adopted child’s lineage (whakapapa) and sever his or her relationship with members of the whanau, hapu, iwi, or aiga. This is alien to Maori cultural values (and to cultural values of other minority cultural groups).
12.5 Discrimination on the grounds of national origin- s21(1)(g) HRA
12.5.1 Section 17AA: Overseas adoptions are recognised provided certain criteria are met but the criteria are less restrictive if the overseas adoption was made or ordered in a Commonwealth country or the United States: see s17(2)(c)(i) (US & Commonwealth countries) and (ii) other countries.
12.6 Discrimination on the grounds of disability - s21(1)(h) HRA
12.6.1 Section 8(1)(b) AA: The consent of a parent can be dispensed with on the grounds that that parent by reason of any physical or mental incapacity is unfit to have the care and control of the child and that the unfitness is likely to continue indefinitely. Natural parents who suffer from temporary or permanent physical or mental incapacity are not precluded from parenting children notwithstanding that incapacity.
12.7 Discrimination on the grounds of age - s21(1)(i) HRA
12.7.1 Section 4(1) AA: An applicant for an adoption order must generally have attained the age of 25 years and be at least 20 years older than the child.
12.7.2 Section 4(1) AAIA and the definition of “adult” in s2 of that Act: A person under 20 years cannot obtain a copy of his or her original birth certificate and is therefore denied access to information about his or her parenthood and personal identity. In contrast, the Human Assisted Reproductive Technology Act 2004 entitles children and young adults conceived with donor gametes to access much more detailed information about their donor (genetic parent) at the age of 18 years and, with court approval, at 16 years.
12.8 Discrimination on the grounds of sexual orientation - s21(1)(m) HRA
12.8.1 Section 3(2) AA: Same-sex couples (including same-sex-partners who have formalised their relationship by civil union) cannot jointly adopt a child: see Re Applications by AMM and KJO to adopt a child  NZFLR 629(HC). Married and some de facto couples are able to make a joint application
12.8.2 s7(2)(b) & s8(4) AA: If one partner in a same-sex relationship applies to adopt a child the consent of the other partner is not required. The other partner is disadvantaged in being denied any say about an adopted child being brought into the household: The consent of a spouse is always required if the couple are living together.
12.8.3 Section 3(3) AA: While a parent and spouse are able to adopt a child jointly, the same-sex partner of a woman who has given birth to a child conceived with donated sperm (although “for all purposes a parent of the child” by virtue of s18(2) Status of Children Act 1969) is not a guardian of the child under s17 Care of Children Act 2004, and so she is a parent without the parental rights and responsibilities which flow from guardianship. She has to obtain a guardianship order to acquire and/or provide formal evidence of her parental rights and responsibilities. She is at a disadvantage in comparison with the opposite-sex partner of a woman in the same situation.
13. The Plaintiff seeks a declaration under s92J HRA that all or some of the statutory provisions detailed above and/or the Caseflow Management Practice Note and Form of Affidavit of Natural Mother are inconsistent with the right to freedom from discrimination affirmed by s19 NZBORA and are therefore are inconsistent with that section.
14. The Plaintiff does not seek the assistance of the Proceedings Commissioner in the presentation of its claim before the Tribunal.
15. Adoption Action Inc is of the view that the issues raised by the claim are matters of statutory interpretation and are not amenable to mediation and, therefore, do not wish to enter into mediation in respect of this claim.
16. Annexed to this Statement of Claim is a copy of the letter dated 15 July 2011 from the Human Rights Commission acknowledging the Adoption Action Inc complaint in relation to the matters raised in this claim.
Fiona Donoghue, Convenor
Robert Ludbrook, Treasurer
DATED this 20th day of July 2011.