The family who had just appeared in Court were all in tears as we walked out. There were hugs and expressions of gratitude all round and a huge sense of relief. A monumental event had just occurred for this family. My clients had successfully adopted a child born to other family members. The reasons why this arose are long and unnecessary to dwell on here. Suffice to say, the child’s parents were fully supportive of the adoption and a long family tradition and culture of informal and formal adoptions within the family preceded this particular adoption.
When I am approached to assist with an adoption of a child by members of its family, I begin by cautioning them that the Family Court may not grant an adoption. This is due to a concern that an adoption will legally distort the child’s relationships. For example, take an adoption by a grandmother of her daughter’s daughter (her granddaughter). After the adoption, in the eyes of the law, the grandmother is now the child’s mother, the child’s mother is now her sister, the child’s Uncles and Aunts are now her siblings, the child’s siblings are now her nieces and nephews… and so it goes on.
To avoid this distortion, parenting and guardianship orders are often used instead of an adoption. Such orders don’t legally change the family relationships but give the family members who are caring for the child the rights of a guardian to make decisions about the child’s welfare and rights to the child’s day to day care. The child’s biological parents retain their guardianship and legal rights to seek contact with the child.
But what, as for my clients, the security and certainty of adoption is really what the family all seek? There is no absolute rule against family members adopting a child of their family. The concern about the distortion of family relationships is just one factor to be considered by the Court. The Court must decide if the adoption will promote the child’s welfare and in doing so, must balance a range of factors.
Increasingly, one of the factors that may be relevant is the culture of the child and parties. This was a particularly important consideration in the adoption I began this blog referring to. What role, culturally, do wider family members have in the raising of a child? What is the relevant cultural perspective of adoption?
Over 20 years ago, the High Court indicated that it could not see why full regard shouldn’t be had to the cultural attitude to adoption of the family concerned. Time has marched on since then and with it, our society is increasingly multicultural. In step with this, the Court has recognised in several cases (including the case of my clients above) that adoption cannot be viewed through a European or Pakeha lens alone. An adoption that may be considered inappropriate in a European setting may well promote the welfare of a child in a Maori, Pasifika or Asian family.
The Adoption Act is widely regarded as outmoded and overtaken by changes in society’s values and make-up. This recognition of other cultural perspectives is an example of how the Courts will attempt to make the Act work as best as possible in response to those changes.
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