In the matter of the adoption of Ss [2002] ACTSC 24 (4 April 2002)

Last Updated: 12 April 2002

IN THE MATTER OF THE ADOPTION OF SS [2002] ACTSC 24 (4 April 2002)

CATCHWORDS

ADOPTION - welfare and interest of child paramount consideration - purpose of adoption order is to provide child with parents -Adoption Act 1993 (ACT), s 6.

ADOPTION - adoption by relatives - requirement for circumstances to justify redefinition of relationships - requirement that adoption order be preferable to guardianship or custody -Adoption Act 1993 (ACT), s 18(5)(b).

ADOPTION - overseas adoption - The Hague Convention on Protection of Children and Cooperation in respect of Inter-country Adoptions - child not brought to Australia for purposes of adoption -Adoption Act 1993 (ACT), s 20(2) .

ADOPTION - evasion of immigration law - meaning of `evasion' - evasion of immigration law not primary reason for seeking adoption order -Adoption Act 1993 (ACT), s 14.

Adoption Act 1993 (ACT), s 6, s 14, s 18, s 19, s 20, s 27, s 34, s 43

Adoption Regulations, 8, 9

The Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoptions

Children Act, 1975 (UK), s 37

Halsbury's Laws of Australia, Family Law para [205-2285]

In re S (a minor) [1987] 2 All ER 99

Helen Gamble, Law for Parents and Children, 2^nd Ed, p 160

No. AD 22 of 2001

Judge: Gray J

Supreme Court of the ACT

Date: 4 April 2002

IN THE SUPREME COURT OF THE )

) No. AD 22 of 2001

AUSTRALIAN CAPITAL TERRITORY )

In the matter of the adoption of SS

ORDER

Judge: Gray J

Date: 4 April 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The application for an adoption order in this case be refused.

The Application

1. This is an application for adoption of SS by PS and HK. PS and HK are married and are Australian citizens. They are resident in the Australian Capital Territory. In 1994 they adopted the daughter of HK's brother. She is now seven years of age. SS, the child in this application, is almost 18 years of age. He was born on 5 April 1984. He is the third son of HS and BS, who are PS's brother and sister-in-law.

2. SS came to Australia for the Olympic Games. He arrived on 19 July 2000 and stayed until 20 January 2001 when he returned home to Laos. While in Australia, he stayed with PS and HK. On 5 April 2001, he returned to Australia on a student visa which permits him to remain in Australia until the end of 2003. He has undertaken schooling at Lake Tuggeranong College and is residing with PS and HK.

Natural Parents

3. His natural parents reside in Laos. I understand that they carry on a business as a pharmacy. There is no suggestion that they are not able to care for or maintain their son. They have already put SS's older brothers through university in Laos and I understand that they would propose to do the same for SS.

General Issues

4. This application raises a number of issues, some of which go to the nature of adoption, and others which go to the proper application of the Adoption Act 1993 (ACT) (the Act).

5. There is, as I have said, no suggestion that the child's natural parents are not in a position to maintain or care for the child. Also, having regard to the age of the child, there is little requirement for parental up-bringing.

6. The matter is further complicated because the child comes from overseas but would appear to stand outside what is generally envisaged internationally as a regulated process for the adoption of children from other countries. Australia is a signatory to the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoptions (the Hague Convention); Laos is not.

The effect of an adoption order

7. The effect of an adoption order is to sever the existing legal parent/child relationship and substitute a new legal parent/child relationship. Section 43 of the Act provides for the adopted child to become, in contemplation of law, a child of the adoptive parents and the adoptive parents become, in contemplation of law, the parents of the child as if the child had been born to the adoptive parents (see s 43(1)(a) of the Act).

The purpose of an adoption order

8. The welfare and interests of the child concerned are to be regarded as the paramount consideration (s 6 of the Act). That consideration supports a conclusion that the main purpose of adoption is to provide the child with parents in circumstances where the child's natural parents are not able to carry out that role. It is also clear that the child's rights are to have preference to what might be regarded as the rights of the adults involved.

9. The main purpose that I have identified is reinforced by the provision in s 18(5) of the Act which limits the adoption of a child by his or her relative unless there are circumstances why the relationships within the family of the child should be redefined and it would not be preferable to make an order relating to guardianship or custody of the child. The Act does not lightly countenance adoptions by relatives of the child and specifically regards guardianship or custody as better options (c.f. In re S (a minor) [1987] 2 All ER 99 which considered s 37 of the Children Act, 1975 (UK), a section which, in its terms, is to the opposite effect).

Effect on immigration laws

10. It should be noted that s 14 of the Act provides:

"Frustration of immigration law

An adoption order shall not be made if the Court is of the opinion that it is being sought primarily as a means of evading the operation of a law of the Commonwealth relating to immigration."

11. There is no doubt that the effect of this application will avoid the operation of a law of the Commonwealth relating to immigration. Mr Clapham, who appeared for the applicants, conceded as much. He, however, submitted that the applicants, as far back as 1995, had "their hearts set upon the adoption of a male child". That does not seem to me to fully discharge the requirements of s 14 that the requirements of the immigration laws not be frustrated as the purpose of the applicants will not prevail if the true effect of the adoption has as its primary effect the evasion of the immigration laws. However, absent any strong argument to the contrary, I take `evasion' to mean something more than mere avoidance and to contain some element of impropriety. At all times the applicants appear to have acted properly and to have made no attempt at deception or evasion. I am not prepared to find that the adoption order is being sought primarily as a means of evading the operation of the immigration laws.

Overseas adoptions

12. Nor am I satisfied that s 20(2) of the Act applies. Subsection 20(2) provides:

"An adoption order shall not be made if the child was brought from a place outside Australia for the purpose of adoption in Australia unless the Court is satisfied that -

(a) the laws of the child's country of origin relevant to his or her emigration or adoption have been complied with;

(b) arrangements have been made between the Minister and the appropriate authority in the child's country of origin to facilitate the bringing of children from that country to the Territory for the adoption in the Territory; and

(c) any agency in the child's country of origin which made arrangements with a view to the adoption is approved for the purpose by the appropriate authority in that country."

13. It is common ground that none of the paragraphs in s 20(2) of the Act have been complied with, but I am not satisfied that in this case the child was brought from a place outside Australia for the purpose of adoption. I do not go behind the application for a student visa so that the child could study in Australia. The subsection appears to have in mind the procedure for intercountry adoptions regulated by the Hague Convention even though Australia's becoming a signatory to that Convention was only foreshadowed before the legislation came into force. That aspect and the procedure required by the section gives colour to the expression "brought from a place outside Australia for the purpose of adoption". I do not consider that, in this case, SS was so "brought". The concept of bringing a child to a country in the sense that I consider the expression should be given, seems to me to be supported by the declaration of purpose in the Hague Convention:

"Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children".

Suitability of applicants

14. I have no difficulty in regarding the applicants as persons of good repute and being fit and proper persons as s 19(1)(c)(i) of the Act requires nor of them being suitable persons to adopt SS as s 19(1)(c)(ii) of the Act requires.

Consent of the natural parents

15. Before me, Mr Erskine, counsel for the Chief Executive of the Department of Education and Community Services, claimed that there was a serious question as to whether there had been a consent of the natural parents as required by s 27(1) of the Act. The basis of the submission was the fact that the natural parents signed the adoption consent forms at the Australian Embassy in Laos and were only asked whether they understood the forms. It was said that because the primary and secondary witnesses to the forms may have failed to inform the persons signing the instrument of consent about the implications of adoption and the legal consequences of signing the forms, I should find that the natural parents did not understand the nature of the consent (see s 34(1)(c) of the Act).

16. Even if the primary and secondary witnesses (who were Embassy staff) failed to discharge their obligations under the Adoption Regulations (see regulations 8 and 9), I am not satisfied that the natural parents did not understand the nature of the consent that they were giving. In fact they had signed an earlier form which had been defectively witnessed. The matter had been discussed between the applicants and the natural parents and nothing has been put to indicate lack of comprehension on the part of the parents who, by all accounts, run a successful business. I do not regard their failure to strike out alternatives in the form as reflecting on their ability to understand the nature of the consent that they were giving.

Adoption by relatives

17. Section 18(5)(b) of the Act provides that an adoption order is not to be made in favour of a relative of the child unless the court is of the opinion that:

"(i) there are circumstances why the relationships within the family of the child should be redefined as such an order would do; and

(ii) it would not be preferable to make an order relating to guardianship or custody of the child."

18. I accept the observation made by Helen Gamble, Law for Parents and Children, 2^nd Ed, p 160. She said:

"Where the court makes an order for adoption of a child it is conscious that it is making a final decision which will sever the links between the child and one of the parties in the case. Because of this finality the court must proceed with caution."

19. In the present case, the circumstance put forward to redefine the relationships within the family of the child is SS's preparedness to live with his uncle and aunt as a family and go to university here in Australia. If he were to go to university in Laos, it would mean living in student accommodation apart from his natural parents. In this regard it must be born in mind that he turns 18 tomorrow. Then it is said that this will benefit his adoptive parents by providing them with a son to carry the adoptive father's name. I consider that neither of these considerations provide a sufficiently compelling circumstance to redefine the family relationships in this case.

20. Some reference was made by PS to a practice in Laos. He said in his evidence before me:

"[I]n Laos, my ex-home, people can adopt people without going to court like this. And I can actually get SS for example, had I lived there, I can actually write his name to become part of my family, and it can - it's really temporary until you know that person they like it or not, if that person doesn't like it he just remove it later on."

21. That option of removal is not open under the adoption laws in this country. That is a circumstance which strongly militates against the redefinition of relationships within the family of a child particularly in a case where there is no impediment to the natural parents carrying out their role and the child would be deprived of the ability to easily reacknowledge as his parents, his natural parents.

22. I further note that s 18(5)(b)(ii) in effect requires an adoption order in favour of a relative only being made where the welfare of the child is better served by an adoption order than an order for guardianship or custody (see also Halsbury's Laws of Australia, Family Law para [205-2285]). I was not addressed on this aspect as Mr Erskine took what I regard as the wrong view that the reverse was the case. However, no case was made out for SS needing a guardianship order. It is difficult to see how SS would be better served by an adoption order if there is no need for a guardianship order.

23. The application for an adoption order in this case is refused.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 4 April 2002

Counsel for the applicants: Mr R Clapham

Solicitor for the applicants: Meyer Clapham Lawyers

Counsel for the ACT Government

Solicitor: Mr C Erskine

Solicitor for the ACT Government

Solicitor: Ms P Mathie

Date of hearing: 25 March 2002

Date of judgment: 4 April 2002