Adoption
Updated May 2010 and January 2011
Adoption by same-sex couples is not yet legal in NZ, even though gay and lesbian single people are able to adopt. This was the main area left untouched by the last Government, with only the Greens pushing for reform in this area. Same-sex couples are allowed to adopt in much of the Western world, even in some rather unlikely States of the USA.
RW wrote to the Minister of Justice about adoption law reform, to receive the response that it is not on his agenda. There is a general feeling that the Adoption Act, dating as it does from the 1950s, is hopelessly out-of-date in many areas. But tackling this appears to have made governments nervous. This nervousness was underlined by the hysterical reactions of some to comments made by the acting principal Family Court judge, Paul von Dadelszen, which managed to open up the debate again in ways which we could never have done. His speech covered quite a lot of ground, but it was of course the recommendation that the ban on de facto and same-sex couples adopting be removed which got all the publicity. Unfortunately this speech is no longer on the Ministry of Justice website.
The Greens have long had on their agenda proposals to change this situation by a bill amending the Adoption Act. More recently, gay Green MP, our vice-Patron Kevin Hague, has been responsible for introducing such a bill.
The Labour Party on the other hand now seems committed to a total rewrite of the whole Adoption Act. See these press releases from their Justice spokeswoman, Lianne Dalziel: http://www.labour.org.nz/news/law-commission-should-lead-rewrite-adoption-laws http://blog.labour.org.nz/index.php/2009/08/20/dont-amend-adoption-act-1955-scrap-it-and-start-again/ .
However, as Kevin has pointed pointed out, this wider reform never happened, despite the Law Commission’s report in 2000 (not to mention Labour’s clear commitment in their 2002 manifesto). As we have reported above, there really is little likelihood at present of this desired full-scale revision of the Act, with Justice Minister Simon Power repeating only recently what he had previously told us, that it is not on his programme of reform. So that really leaves the Greens’ Bill as the only ball in play at present. After all, repeal of the provocation defence was originally going to be part of a larger reform, until wider public concern forced the Government to produce a separate bill.
On 21st October 2009 Rainbow Wellington organised a meeting with Kevin Hague to discuss the current situation with his proposed Bill. Although only about 14 people were present, they did represent a reasonable cross-section of our communities, so that a number of views were expressed.
Kevin began by describing the system for introducing Members’ Bills, which is rather complex (and really quite bizarre in a way). I shall just draw your attention to these two features on the Parliament website, which sum it all up:
http://www.parliament.nz/en-NZ/Features/d/4/a/49NZPHomeNews180620091-Members-bill-ballot.htm
http://www.parliament.nz/en-NZ/Features/d/a/c/00NZPHomeNews250320091-Members-days.htm
Kevin described how he had submitted a brief amendment bill to the ballot, which he had inherited from Metiria Turei. This simply allowed unmarried couples to adopt. However, it was clear that broader reform was needed to the 1955 Act, which now totally fails to reflect the reality on the ground. So at present he is discussing a more broadly based Bill, in the hope that if such a Bill were selected from the ballot, it could have some possibility of passing. He could not give a timetable as to when this new bill would be ready, as he was still discussing with the other parties in Parliament. There may also be a possibility of “parking” a bill that has been selected in the ballot. This involves delaying first reading if you think the time is not yet right and that further discussions might lead to success. But of course, you have to have a specific and agreed Bill in the ballot to do this. His main concern remains to introduce a bill that has some chance of passing, and in particular not to do anything now which might make future reform more difficult.
Kevin also emphasised that, whilst the human rights of gay couples are important, there is no “right to adopt”. The rights of the child are the paramount concern, and the argument has to be that this is what the current law restricts, by limiting the options available for individual children.
It was noted at the meeting that many of the issues involved in adoption had been modernised in the Care of Children Act, which deals with guardianship issues. For example, more flexible Maori versions of child care, involving whanau participation, as well as the possibility of having more than two carers or guardians, which gets round the potential problem of “step-parent adoption” having basically to exclude one of the birth parents. There had been intentions of including adoption with that Act, but they had been abandoned. Indeed, it seems as if adoption law, whilst admitted by all to be inadequate and in need of basic reform, always ends up in the “too hard basket” (as also happened at the time of the Civil Union legislation). The current government also does not wish to bring this issue further up its agenda, in contrast with its recent actions on the partial defence of provocation.
But whilst a broader reform is clearly needed, we must be aware that public attention is bound to fixate upon adoption by gay couples. That is what happened with Justice von Dadelsen’s speech, and is likely to happen with any attempt at reform, however broadly conceived.
However, that speech led to a revival of interest in the topic, and people started to contact Kevin, to give him their stories. This is what he wants, as these stories are an essential part of the progress towards reform. Opposition is bound to be more subtle than the former more blatantly discriminatory and homophobic type. So we need a more sophisticated campaign. Kevin asked that anybody wishing to help with the campaign contact him, so that a careful strategy can be involved. For example, he does not want anybody to go rushing off to individual MPs at the moment, as it is too early in the process.
So please contact: Kevin Hague, MP, Freepost Parliament, Private Bag 18 888, Parliament Buildings, Wellington 6160. Tel: (04) 817 8253. Fax: (04) 817 6003. This e-mail address is being protected from spambots. You need JavaScript enabled to view it.
Anybody wanting more information on the current situation can find quite a lot on GayNZ.com, which has produced quite a bit on the issue. The Families Commission has also produced relevant documents on the changing nature of families. And the Rainbow Families Network will also have relevant resources: http://www.rainbowfamiliesnz.org/
Kevin has more recently confirmed that this process is continuing, and that he will not attempt to introduce any bill again, until he is fairly sure that the time is right. In particular he does not want to produce any Bill which will simply fall at 1st Reading, and simply make matters worse, by delaying further any likelihood of reform. But when any Bill is ready, then, as Craig Young has reported in GayNZ.com, our communities must also be ready: http://www.gaynz.com/articles/publish/31/article_7849.php .
I wonder if we are?
Postscript:
In our July 2010 newsletter, I wrote:
And now the adoption issue has raised its head again, in a recent High court decision. An unmarried heterosexual couple were granted the right to adopt as a couple, despite the archaic language of the Adoption Act 1955, which Parliament has been so nervous about tackling in recent years:
http://www.stuff.co.nz/national/politics/3856986/Adoption-ruling-a-beacon-of-hope
The judgment is available complete online: http://www.courtsofnz.govt.nz/from/decisions/judgments (High Court judgment CIV 2010-485-328 of 24 June 2010).
Dean Knight, local law lecturer at VUW, gave a very good interview on Radio NZ, which amply demonstrated the absurd position the law is now reduced to, over who can and cannot adopt.
http://podcast.radionz.co.nz/ntn/ntn-20100630-1130-Law-048.mp3
This judgment is a cautious one, as any judgment in our NZ system of Parliamentary Supremacy has to be, but is quite radical in the circumstances. It is clear that Parliament’s constant avoidance of what is increasingly becoming an urgent issue, involving the severe dislocation between the Adoption Act and our human rights legislation, is getting under the Courts’ skin. So in a case so demonstrably unjust, they felt they had little choice. But it is a limited judgment, and its knock-on effect on adoption by same-sex couples problematic. It may be that the court is inviting a gay couple to “have a go” too, but several aspects of the judgment would tend to work against us, notably the 2005 vote in Parliament against including adoption rights in the civil union legislation. But what really comes across strongly is a plea to Parliament, that if our system does not like judges making the law, then in the current mess, for goodness sake get it sorted! Otherwise, this will be the first case of many, one hopes. It is now ten frustrating years since the Law Commission recommended liberalisation of our adoption law.
In August, Claudia Geiringer, the Barrister representing the couple in the case, came and spoke with us at a packed-out meeting. It is clear that the 1955 Act is hopelessly out of date, depending as it does on such outmoded concepts as “the stain of illegitimacy”. As a result the Courts, which have to deal with real-life cases, grow ever more frustrated, as do we all, over the Government’s continued refusal to update the law. As you see, this is one of the headline issues in our open letter to the PM in December.