B v G [2002] NZCA 169; [2002] 3 NZLR 233; [2002] NZFLR 961; (2002) 22 FRNZ 278 (18 July 2002)

Last Updated: 16 December 2011

ORDER SUPPRESSING PUBLICATION OF THE NAMES OF THE PARTIES AND THE CHILD INVOLVED IN THIS CASE

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 58/02

	BETWEEN	B
		Appellants

	AND	G
		Respondent

Hearing:	4 June 2002
Coram:	Keith J Blanchard J McGrath J Anderson J Glazebrook J
Appearances:	P C Maciaszek and R E Murphy for Appellants S N van Bohemen and S M McNulty for Respondent M A Malloch and S M A McCormack counsel to assist
Judgment:	18 July 2002

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

Table of Contents
	Paragraph Number
Introduction	[1]
Factual background	[8]
The High Court decision	[14]
Arguments of the parties	[18]
Ascertaining the test to be applied	[22]
The adoption process	[24]
Requirement of consent	[26]
Placement	[36]
Interim order	[38]
Final order	[46]
Appeal rights	[52]
Birth mother and guardianship	[53]
Revocation : scope of power in section 12	[59]
Summary	[66]
Result and costs	[71]

Introduction

[1] S is almost three years old. From the time she was about a month old she has lived with Mr and Mrs B. They want to adopt her. An interim adoption order was made in their favour on 4 April 2000 and on 6 October they applied for a (final) adoption order.
[2] Meanwhile, on 15 September 2000 Ms G, S’s birth mother, had filed an application for revocation of the interim order. She accepts that her consent to the adoption given a year before (on 14 September 1999) was valid. It was envisaged by the parties, however, that the adoption would be an open adoption and issues over access arose in mid 2000. This led Ms G to reassess the situation and she now wishes to care for S herself.
[3] It appears that the difficulties were in large part a result of the unstructured nature of the access arrangements, as that had been a problem for both parties. Access has now resumed on a more structured basis and, if the adoption proceeds, Mr and Mrs B say they are now committed to the new arrangements.
[4] On 19 June 2001, after a seven-day hearing, Judge Callaghan in the Family Court refused Ms G’s application for revocation – see (2001) 21 FRNZ 1. She appealed and a Full Court of the High Court heard the appeal. By judgment dated 18 December 2001, reported at [2002] NZFLR 241, William Young J held that it was unclear whether Judge Callaghan had applied the correct legal test. He ruled that the application should have been allowed if Judge Callaghan had been persuaded that the welfare and interests of S would not be promoted by the adoption. This should have entailed a broad-based inquiry as to the welfare and interests of S in all the circumstances as they are and will be, including the fact that her birth mother is now willing and able to care for her. He remitted the case back to the Family Court for reconsideration. John Hansen J concurred with the judgment in all respects.
[5] Mr and Mrs B appeal against that decision. They say that the scheme and purpose of the Adoption Act 1955 (the Act) treat the birth mother’s consent as pivotal. After consent is given the focus is on the welfare and interests of the child in the care of the adopting parents. This limits a revocation application to issues relating to the validity of the consent or to material changes in the circumstances of the adoptive parents.
[6] The principal issue for this appeal therefore is what test should be applied when considering an application for revocation of an interim order for adoption. This entails an analysis of the provisions of the Act, the purpose of which is to ascertain the extent of the power to order revocation.
There have been a number of proposals for reform of the law on adoption. Given the age of the Act and the different social circumstances in which it was passed law reform does seem appropriate. In the meantime this appeal must be dealt with in accordance with the current legislation.
[8] We are also, of course, very conscious that this case relates to a little girl loved by her birth mother, Ms G, and also by Mr and Mrs B. Whatever is ultimately decided in this case will cause anguish for someone. What must be hoped is that S will remain secure in the knowledge of the love that all of these adults feel for her.

Factual background

[9] Before moving to the test to be applied, we first provide a fuller description of the factual background, the reasoning in the High Court decision and the arguments of the parties.
[10] As indicated above, S has lived with Mr and Mrs B from the time she was about one month old. An interim adoption order having been granted on 4 April 2000, they filed an application for a (final) adoption order on 6 October 2000. Mr and Mrs B successfully resisted the suggestion that their application for a final adoption order be heard at the same time as the revocation application filed by Ms G. The revocation application was therefore heard separately and the application for a final adoption order has yet to be heard. Mr and Mrs B have one older adopted child and, at the time of the hearing of the revocation application, were expecting their own child.
[11] Ms G, who is English, and by descent European, had resided in New Zealand before going to live in Melanesia, where in 1992 she married Mr N who is of Melanesian origin. She has two older children from that marriage. The marriage ended in separation in 1998 and Ms G had a brief relationship with Mr L, who is of the same ethnicity as her husband. This relationship resulted in her becoming pregnant with S. She was, however, still married to Mr N. Ms G feared that there would be consequences arising from this for herself, Mr L, her two older children and S if she remained in Melanesia. She therefore returned to New Zealand where S was born on 13 August 1999. Similar concerns about the reaction of Mr N and the particular Melanesian community in New Zealand led to her decision to have S adopted. She chose Mr and Mrs B, also of European descent, as the adoptive parents.
[12] The adoption was to be an open adoption, and this was recorded in a document signed by the parties on 2 September 1999. It was envisaged that Ms G and her two older children were to have regular continued contact with S, although the document expressly recorded that the contact arrangement was not legally enforceable. The document expressed the hope that any difficulties encountered with access would be resolved through open and honest communication and, failing that, by mediation. Ms G provided her consent to S’s adoption by Mr and Mrs B on 14 September 1999. Before signing the consent form and the accompanying affidavit she had counselling and appropriate legal advice. She accepts that her consent was valid.
[13] At first the access arrangements worked well and access was regular and frequent, often at the instigation of Mr and Mrs B. Difficulties arose with access in late May 2000 but the parties reached transient resolution of these difficulties, as recorded in an exchange of correspondence between Ms G and Mrs B in early June, and contact continued unabated until the end of July. Difficulties then surfaced again at a contact meeting at the local Botanical Gardens on 30 July 2000. As a result, Mr and Mrs B called a meeting at their house on 1 August, attended by Ms G and the social worker who had been involved with both parties in relation to the adoption. At that meeting Mr and Mrs B suggested to Ms G that access be reduced to four times a year, and they maintained this position at a subsequent meeting on 8 August.
[14] This caused Ms G (and indeed the social worker) considerable distress and led on 15 September 2000 to Ms G filing applications for access and interim access and the application for revocation of the interim adoption order that is the subject of this appeal. At the hearing for interim access on 21 December 2000 the Family Court ordered fortnightly access and such access has continued without difficulty. Mr and Mrs B say they are now committed to continued regular access for Ms G.

The High Court’s decision

[15] The judgment of Young J, with which Hansen J concurred, identified two broad approaches that could be applied in revocation applications. Young J called the first the “irrevocability of consent” approach and the second the “welfare and interests of the child” approach. He said that the Act has to be interpreted in accordance with its scheme and purpose. The difficulty in this case was that the two scheme and purpose approaches he identified were each credible but pointed in opposite directions (see para 59 of his judgment). The dichotomy was not just a product of social changes since 1955. It had always been implicit in the legislation and, shortly after the Act’s passage, was recognised by those who studied the Act. Young J referred in particular to Professor Campbell’s remarks in The Law of Adoption in New Zealand (2nd Ed, 1957) at 41 – see paras 60 and 61 of his judgment.
[16] On balance, Young J decided that the “welfare and interests of the child” approach was the correct one. Under this approach, at all stages of the adoption process, including applications for revocation of an interim order, the welfare and interests of the child must be considered. This must necessarily involve, at each stage of the process, a fresh comparison between how the child will fare if an adoption order is made and how he or she will fare if no such order is made. He held that a blinkered or strictured approach to the fundamental question of whether a proposed adoption will promote the welfare and interests of the child cannot be justified on the plain words of the Act and in particular those of s11(b).
[17] Young J said that the concept of irrevocability of consent merely gives the Court jurisdiction to make an adoption order or to refuse to revoke an interim order if that would be in the welfare and interests of the child, even if the adoption is against the current wishes of the birth parents. The “welfare and interests” approach was said to be consistent with this Court’s decision in Director-General of Social Welfare v L [1989] 2 NZLR 314, and in particular the remarks of Casey J at 322 and Hardie Boys J at 326, with their references to the maintenance of birth family ties if that is in the child’s best interests. It is also consistent with Article 21 of the United Nations Convention on the Rights of the Child.
[18] Young J held that it was not clear whether the District Court Judge had the correct test clearly in mind when coming to his decision on the revocation application. The case was therefore remitted to the Family Court for reconsideration. Whatever may be the powers of the High Court in this regard, the approach resulted in the appeal in that Court being decided only on the legal point and not on the merits. In consequence, the appeal to this Court has also been confined to legal issues without examination of the merits in the light of the evidence that was before Judge Callaghan.

Arguments of the parties

[19] Ms G supported the decision and reasoning of Young J, arguing that the ‘welfare and interests’ approach was the correct one. She submitted that the decision as to the wide ambit of the discretion was required by the plain words of s12 and the scheme of the Act. It is also consistent with New Zealand’s international obligations, including those under the United Nations Convention on the Rights of the Child, and with adoption laws in other jurisdictions.
[20] Mr and Mrs B, on the other hand, argued that the “irrevocability of consent” approach is the correct one. They say that the overall scheme and purpose of the Act is to effect a clean break between the child and the birth parents in favour of the adoptive parents. At the time the Act was passed this was considered to be in the best interests of all parties, including the child. Once consent has been given, the birth parents have no standing to appear in respect of the application for either an interim or a final adoption order. This follows because consent, once validly given, is irrevocable; there is no express right given to a birth parent or guardian to appear at the hearing of the applications for interim or final orders; a birth parent is given no right of appeal against the making of an interim or final adoption order. After consent is given, the focus shifts to the adoptive parents and the welfare and interests of the child in their care.
[21] This suggests that, while a birth parent or guardian may have standing under s12, the available grounds can relate only to the validity of consent or to material changes in the circumstances of the adoptive parents. Mr and Mrs B submit that this approach has support in case law. For example in N v P [1979] 2 NZLR 761, 764, Quilliam J stated that no ground would exist for revocation where a consent was freely given by a person who understood what he or she was doing and who was acting rationally and exercising a freedom of choice. This was despite the fact that the statute apparently conferred an unfettered discretion. That discretion could only be exercised upon proper grounds. He did leave open the theoretical possibility that revocation could turn upon some consideration other than the reality of the consent but said that he could think of none (at 763-764).
[22] Ms Malloch, counsel to assist, submitted that everyone involved in the adoption process (and particularly the child) needs certainty at an early stage in the process. This suggests that revocation applications should be narrowly focused. In any event, in this case Judge Callaghan had not restricted the evidence upon which his findings were based. The Family Court had initially found, at interim order stage, that the adoption would promote the welfare and interests of S. The detailed evidence (over 7 days) produced no evidence that the adoption should be derailed and the Judge had the welfare and interests of S clearly in mind when coming to his decision. Ms Malloch also pointed out that the damaging effect of on-going litigation on S and all the people who love her should not be underestimated.

Ascertaining the test to be applied

Revocation of an interim adoption order is dealt with by s12 of the Act. Section 12(1) provides that, on the application of any person, the Court may in its discretion revoke an interim order on such terms as the Court thinks fit. Since 1965 there has been a two way right of appeal against any revocation or refusal to revoke – see s12(1A) and (1B).
[24] On its face the discretion to revoke is unfettered. The discretion must, however, be exercised on proper grounds derived from an examination of the scheme and purpose of the Act. To discover that scheme and purpose we first analyse the adoption process as set out in the Act. After this the interpretation of s12 will be considered against that background. We then provide a summary of the law, insofar as it is relevant to this case.

The adoption process

[25] The Act was based on the recommendations of an Inter-Departmental Committee that reported on 22 July 1952 – Report of the Committee Set Up to Consider Adoption Laws (The 1952 Committee Report). The Committee had representatives from the Department of Justice, the Department of Maori Affairs and the Education Department (Child Welfare Division) as well as three co-opted members, including Professor Campbell, the author of the text mentioned above and Professor of Law at Victoria University. The Bill as introduced was largely in accordance with the Committee’s recommendations, but two significant amendments were made on the recommendation of the Statutes Revision Committee in the course of enactment. We will come to these later. In 1965 there were also some amendments to the Act relevant to this appeal.
[26] The Act introduced an integrated process for adoptions. The process begins with the giving of consent by the birth mother and any other guardians, or the dispensing with that consent. The child may then be placed for adoption, if that occurs before an application for adoption has been granted. The first substantive stage of the adoption process itself is the making of an interim adoption order and the final stage is the making of the adoption order. Once that final adoption order has been made it may be varied or discharged but only on very limited grounds relating, for example, to mistake as to a material fact or to misrepresentation. An application for discharge can be made only with the prior approval of the Attorney-General. We now examine the process in more detail.

Requirement of consent

[27] Turning first to consent; no child can be adopted unless the consents required by s7 are first filed in the Court. Consent of the spouse of an applicant for adoption is required but the present case raises no issues in that respect. Under s7(3) the consent of the birth mother (and in some cases the birth father or other guardian of the child) is required, unless that has been dispensed with under s8, referred to below. We note that there is provision under s7(4) for the Chief Executive (defined as the chief executive for the department for the time being responsible for the administration of the Children, Young Persons and Their Families Act 1989) to be appointed as guardian by the birth parents until a child is adopted. This is to allow the Chief Executive to give consent to an adoption. Interestingly, this procedure, even though it could result in consent being given to an adoption, does not have the same explicit statutory safeguards as the giving of consent by parents or guardians directly but it is subject to the prior consent of the Chief Executive. In this case only Ms G’s consent was required and given. In the remainder of this judgment therefore we will refer only to the position of a birth mother rather than to the position of the rest of the birth family or the Chief Executive.
[28] There are safeguards in the system designed to ensure that the consent to the adoption of a child is a fully informed and true consent. These provisions have been criticised by the Law Commission as not necessarily achieving that object and the Commission has concluded that statutory reform is indicated: Law Commission, Adoption and Its Alternatives – A Different Approach and a New Framework (NZLCR 65, 2000) at 144-151.
[29] Under s7(7) a birth mother cannot sign a consent unless her child is at least 10 days old. The 1952 Committee had recommended that there be a period of at least six weeks after birth before consent could be given. The Bill as originally introduced set four weeks but this was reduced to 10 days on the recommendation of the Statutes Revision Committee. The Hon J R Marshall, Attorney-General, explained that the reduction in the period before consent reflected a concern that mothers, particularly unmarried ones, could disappear from the nursing home where the child was born and that it could be very difficult to locate them at a later stage ((1955) 307 NZPD 3349).
[30] The consent document must be formally and independently witnessed by one of a stipulated group of persons, which includes a District Court Judge, a Registrar of the High Court or District Court, or a Solicitor (see s7(8) of the Act). We note that the term “solicitor” in this context includes a barrister sole – H v C [1999] 3 NZLR 502. The consent document must contain an explanation of the effect of an adoption order and have endorsed on it a certificate by the witness that he or she has personally explained the effect of an adoption order to the person giving the consent – see s7(9). The Adoption Regulations 1959 (the Regulations) require such advice to be independent to the extent that the witness may not be the solicitor acting for the applicants – see reg 9(2). In practice, as happened here, the consenting person also provides an affidavit dealing with consent issues. In practice too, again as was the case here, counselling is available for the birth mother before signing the consent.
[31] Under s7(6) consent can be given (either unconditionally or subject to religious conditions) even if the identity of the adoptive parent or parents is unknown to the consenting party. This provision for secrecy was brought in for the first time in the 1955 Act. Before then a consenting party had to know the identity of the adoptive parent or parents. The Regulations provide two different forms for consent to adoption. One identifies the name(s) of the proposed adoptive parent or parents. The other form enables consent to be given without knowledge of the identity of the proposed adoptive parent or parents.
[32] It is often said that the social reality at the time of the passing of the Adoption Act was that closed and secret adoptions were the norm. In fact, this was only one option provided by the Act and the figures from the Law Commission show that in practice other options were followed. In 1955, 67.6% of adoptions were by strangers and 32.4% were by non-strangers. Of the non-stranger adoptions, the majority were by birth parents and step-parents: see NZLCR 65 at 40-41. The current practice for stranger adoption (now much rarer) is, as happened in this case, for the birth mother to choose the adoptive parents from information that she is given about prospective parents. Consent would now rarely, if ever, be given without knowledge of the identity of the adoptive parent or parents.
[33] Under s9(1), a consent given where a child is to be adopted by a specified person or persons cannot be withdrawn while an application for adoption is pending or without giving the proposed adoptive parent or parents an opportunity to make such application. This provision was not in the Adoption Bill as originally introduced but was added on the recommendation of the Statutes Revision Committee. The original Bill would have made consent irrevocable in all cases only from the time of the making of an interim adoption order or an adoption order. The Hon J R Marshall ((1955) 307 NZPD 3349) indicated that the change had been for the “protection of the applicants”.
[34] For all cases not covered by s9(1), s9(2) provides that consent cannot be withdrawn after an interim order or adoption order has been made. In our view therefore a consenting parent or guardian can withdraw consent given without that person knowing the identity of the adoptive parent or parents as long as an interim adoption order has not been made (for a possible contrary view, to which we do not subscribe, see Campbell, supra, at 40, footnote 13). The different provision where the mother knows the identity of the adoptive parents is explicable on the basis that she can be taken to have consented not only to adoption in the abstract but also to adoption by the particular named person or persons.
[35] We note that the Law Commission considers it important that there be immediate stability for the child in the care of the adoptive parents and recommends that the adoption process be accelerated so that adoption orders be made on a final basis in the first place. The proposal is that the interests of the birth mother be safeguarded by increasing the period before she can give consent and making counselling and independent legal advice compulsory – see NZLCR 65 at 154 (para 425 in particular).
[36] The Court also has the power to dispense with consent under s8 of the Act in the circumstances set out in s8(1) – for example, where there has been neglect or ill treatment or where a parent or guardian is unfit to care for the child. In Director-General of Social Welfare v L (supra) this Court has held that consent can be dispensed with only if the statutory criteria are met and the Court is satisfied that adoption would promote the child’s welfare and interests: see Richardson J at 318, Casey J at 322 and Hardie Boys J at 326.

Placement

[37] The next stage is the placement of the child. With certain exceptions, it is unlawful to keep any child in a home for the purposes of adoption (s6 of the Act). One such exception is where prior approval is given by a social worker for a placement. Any such approval remains in force only for a month but is extended if an adoption application is made within that time. Another exception is where an interim adoption order is in place. This provision was introduced on the recommendation of the 1952 Committee.
[38] The Committee was concerned to ensure that a child was not placed in a home without that home having been held to be suitable by a social worker or, in the case of an interim adoption order, by the Court. This was to avoid the situation of a Court effectively being forced either to allow an adoption by less than satisfactory persons or to unsettle a child who had been in a home long before an adoption application was made: see the 1952 Committee Report, p 1, para III; see also (1955) 307 NZPD 3347-3348.

Interim order

[39] This brings us to the first substantive stage in the adoption process itself, the consideration of the application for an interim adoption order. A Court has power to grant adoption orders under s3 of the Act. Under s5 a Court is usually required to make an interim adoption order first but has to be satisfied before doing so that the application for an adoption order should be granted. A Court must be satisfied with respect to the matters mentioned in s 11(a) – (c), as set out below, before it can make an interim or final adoption order:

(a) That every person who is applying for the order is a fit and proper person to have the custody of the child and of sufficient ability to bring up, maintain, and educate the child; and

(b) That the welfare and interests of the child will be promoted by the adoption, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child; and

(c) That any condition imposed by any parent or guardian of the child with respect to the religious denomination and practice of the applicants or any applicant or as to the religious denomination in which the applicants or applicant intend to bring up the child is being complied with.

[40] There are a number of other requirements that must be met before any interim adoption order can be made. Of relevance in this case is that no interim order (or final adoption order where that occurs without first making an interim order) can be made without the Court receiving a report from a social worker (unless the proposed adoptive parents include an existing natural or adoptive parent of the child) – see s10(1). A social worker will, of course, assess whether the criteria under s11 of the Act are met. The social worker must also provide a police report on the applicants (reg 7). The social worker is expressly given an entitlement to appear at the hearing of the application under s10(2) and this Court has recently emphasised that the social worker’s function is one of independent professional judgment, the purpose of which is to facilitate the Family Court’s determination of the application: see Attorney-General v Prince & Gardner [1998] 1 NZLR 262 at 271.
[41] The Family Court, when deciding whether to grant an interim order, must of course be satisfied that all the criteria set out in s 11 are met. In assessing at this stage, under s11(b), whether the welfare and interests of the child will be promoted by the adoption, in our view the Family Court must take into account that consent has been given to the adoption and that it is irrevocable under s9(1) where the identity of the adoptive parents is specified. A person consenting where s9(1) applies must be assumed to have approved the particular parents and in this case Ms G chose Mr and Mrs B as the adoptive parents. Whether s9(1) applies or not, a person consenting must in all cases be taken to have had the welfare and interests of the child in mind when consenting to the adoption of the child – as, of course, clearly Ms G did. S’s welfare and best interests were her focus at the time of giving consent.
[42] Having said this, we do not, however, consider the Act otherwise limits the matters that the Court can take into account at this first substantive stage of the adoption process. We do not accept Mr Maciaszek’s submission that the Court’s inquiry is limited at this stage to the welfare and interests of the child in the care of the adoptive parents. Such a limitation cannot be justified under the wording of s11(b), which is expressed broadly. In addition, the inquiry as to the child’s welfare in the care of the adoptive parents is to an extent covered by s11(a), although we recognise there could be fit and proper applicants who would not be the appropriate parents for a particular child.
[43] The Court’s inquiry at this stage under s11(b) will be a broad-based one, taking into account the alternatives to adoption. The Court must come to the view that adoption by those particular adoptive parents will promote the welfare and interests of the child as compared to any available alternatives. This approach is consistent with the United Nations Convention on the Rights of the Child and modern thinking. Unless the words of a statute rule out such an interpretation (and here clearly they do not), then a Court should favour an interpretation that is in line with New Zealand’s international obligations (see this Court’s decision in New Zealand Airline Pilots Association Inc v Attorney–General [1997] 3 NZLR 269, 289) and also one that is in line with current social reality – see s 6 of the Interpretation Act 1999.
[44] As a final consideration, we have noted above that Parliament provided for a stricter constraint on the withdrawal of consent if the birth mother knows the identity of the adoptive parents than if she does not. The legislative intention must have been to give reassurance to known prospective adoptive parents that their expectations would not be pre-empted by withdrawal of consent before a Court should have the opportunity of examining the child’s welfare in the light of what those adoptive parents could offer. The different provisions relating to revocability of consent do not indicate different approaches to the question of whether an interim order should be made nor as to who may intervene at the hearing of an application for an interim order.
[45] The effect of an interim adoption order is set out in s15. In relevant part this provides that, as long as the interim order remains in force, the proposed adoptive parents have custody of the child. The child cannot be taken out of New Zealand, however, without leave of the Court and notice must be given to a social worker of any change in residence. In addition, any social worker may at all reasonable times visit and enter the residence in which the child lives. These provisions suggest that the period between the interim and final adoption orders is to be used for what Richardson P in Attorney-General v Prince & Gardner (supra) at 276 in a different context called a “performance appraisal of the adoptive parents”.
[46] This was clearly the intention of the 1952 Committee in recommending the interim period. The aim was to ensure that there was a period where the child could be observed by an independent person in the adoptive parents’ home, both to see how the child was reacting to the parents and the adoption and also to see how the adoptive parents were reacting to the child: 1952 Committee Report (supra), p 2 para V. It was also clear from the Hon J R Marshall’s remarks in the Parliamentary debates at the time at (1955) 307 NZPD 3347 and where he said that adoptive parents with an interim order would “know that the child will not be taken from them unless their relationship with the child in the next few months proves that the initial assessment of their suitability was mistaken” (at 3348).

Final order

[47] The final stage in the adoption process (leaving aside for a moment s12 revocation applications) is the application for a (final) adoption order. Before making such an order under s13, the Court must be satisfied as to the matters set out in s11. In this regard it must be noted that the Court has, in order to grant an interim order, already had to satisfy itself that that a final adoption order should be made and thus that the criteria in s11 were met (see s5).
[48] This suggests that, when considering an application for a final adoption order, the inquiry should be much more limited. As indicated above, it is clear that the period between the interim and the final orders is a period where the adoptive parent or parents and the adoption can be appraised. The focus of the Court at the final order stage must therefore be on new evidence or changes that have arisen since the interim order was made.
[49] The Court is in effect assessing whether its prediction that a final order should be made has been borne out over the appraisal period. This means that almost invariably the matters that the Court will take into account relate to the care of the child by the adoptive parents. We are not prepared to hold that this is the sole avenue of inquiry ever allowed but it would be only in an exceptional case that other matters (and in particular a change of mind by the birth mother) would be able to be considered. Without a significant change of circumstances a change of mind by a birth mother would never suffice.
[50] Even with such a change of circumstance but without any failings by the adoptive parents, the matter would still have to be considered against the background of irrevocability of consent with its aim of ensuring stability for the child in relation to the proposed adoptive parents. The fact that an interim order has been made would also have to be considered, as would the statutory purpose of the interim period as an appraisal period for the adoptive parents. In reviewing the position in the context of an application for a final order we do consider, however, that a Court may wish to examine, as a matter relevant to the child’s welfare and if the circumstances are indicative, the extent to which adoptive parents may be genuinely prepared to contemplate and facilitate contact between a birth parent or parents and the child, after a final order is made.
[51] We think that the reviewing nature of the Court’s consideration of an application for a final order is consistent with the conditional power and duty of a Registrar to issue a final order pursuant to s13(3). The section provides that, in certain circumstances (and in particular where a social worker has filed a report recommending that an adoption order be issued and there is no application for revocation before the Court), the Registrar can make a final order without a hearing. Given the social worker’s role in the appraisal period between the interim and final orders, this reinforces the view that the focus of the inquiry at this stage is normally on the care of the child by the adoptive parent or parents.
[52] The effect of a final adoption order is set out in s16. In summary, the provisions are designed to extinguish the links of the child to the birth family and transfer the child’s legal status to the adoptive family. Incidentally, we note that it is only at this stage that the clean break contended for by Mr and Mrs B takes place. Up to this point the birth mother, through her guardianship status, retains links with the child. That the Act contemplated a clean break at final order stage and provided very limited grounds for discharge of a final order is not determinative of the scheme and purpose of the rest of the Act.

Appeal rights

[53] Until 1965 the legislation gave no right of appeal in respect of adoption orders but in 1965 s13A was added. This provides a right of appeal for the proposed adoptive parent or parents against a refusal of the Family Court to make either an interim and or a final adoption order. Before this the remedy for any refusal was to apply again, but this did not allow any points of law to be decided by a superior Court and concern about this position was the reason for the amendment: see (1965) 342 NZPD 1213. There is no right of appeal against the grant of an interim or final order.

Birth mother and guardianship

[54] The question remains as to the role of the birth mother in the adoption process after the giving of consent. Under s 6 of the Guardianship Act 1968 a birth mother is automatically a guardian of her child. The making of an interim order deprives the birth mother of custody of her child, but not of guardianship: see s15(2)(a) of the Adoption Act. However, neither she nor indeed any other guardian of the child is expressly given an entitlement to appear at the hearing of applications for interim or final adoption orders. The social worker on the other hand is given such an entitlement – see s10(2) and s13(4)(d). Nor is there any requirement contained in the Act or the Regulations for service of notice of hearing upon the mother or any other guardian.
[55] There are express requirements in the Regulations in relation to the applicants to adopt and the hearing of applications. Regulation 10 provides that, unless the Court directs otherwise, the applicants and the child to be adopted shall attend personally at the hearing of the application for adoption or for the issue of an adoption order. This is in contrast to the previous situation where all interested parties were given standing to appear: see r18 of the Rules made under s55 of the Infants Act 1908 in relation to Part III of the Act (1912 Gazette 828).
[56] It is likely that there was no Parliamentary expectation that birth mothers would in practice participate in the process after the giving of consent. We are not, however, prepared to infer a statutory policy of the exclusion of a birth mother (in her capacity of guardian of a child) from being present at and participating in a hearing, with such major long-term effects for a child, from the fact that the Act does not expressly contemplate her participation. Nor are we prepared to infer the exclusion of such a guardian from the fact that a social worker is expressly given an entitlement to appear (which he or she would not normally have) or from the fact that there are no provisions relating to service of the proceedings on the birth mother. We consider, rather, that clear words would be needed to exclude the guardian of a child from a hearing on such an important issue for the child. We thus respectfully differ from the decision of Casey J in L v R [1980] NZLR 765 to the extent that his decision is contrary to this.
[57] In our view, it is unsatisfactory to suggest, as did Mr Maciaszek, that the mother should be required to refer all matters to the Court through the social worker, although she would, of course, be free to do so. We note that the social worker will usually, although not in this case, be a different social worker from the one the mother dealt with. He or she may have a different perspective from the mother about what is relevant and the Court could conceivably be deprived of relevant material.
[58] We do not consider that the fact that a mother may participate in the hearing in her capacity as guardian implies any obligation, either on the Court or the applicants, to serve the birth mother with notice of the proceedings. The provisions of the Act (and the Regulations) do not contemplate such an obligation and there could be practical difficulties if a birth mother was not able to be found readily. A mother’s ability to participate in a hearing does not arise because she has rights in the adoption process but out of her duty as guardian to act in the best interests of the child. It is up to her to take the initiative and make her wish to participate known to the Court, either directly or through the social worker.
[59] The birth mother may attend the hearing merely so that she can put all matters relevant to the welfare and interests of the child before the Court. The extent to which she may participate in the hearing in her role as guardian will in any individual case be at the discretion of the Family Court and, once she has participated in a hearing, she must then abide by the decision of the Court as she has no rights of appeal against the grant of an interim or final adoption order.

Revocation: scope of power in section 12

[60] We move now to an examination of s12 itself. The discretion to revoke an interim order, accorded by s12 of the Act, is not specifically qualified, but this does not mean it is entirely unfettered. As we said above, the exercise of the discretion must be consistent with the purposes and scheme of the Act.
[1] The Act envisages a supervised but fluent adoption process. We therefore think that Parliament envisaged the discretion under s12 being exercised in respect of fundamental, and not merely comparative issues, arising after the making of an interim order. As we mention below, such fundamental considerations might be absence of jurisdiction because a necessary consent has not truly been given; or intervening circumstances where the continuation of custody by the adoptive parents in consequence of the interim order should not continue, still less should a final order be contemplated, because that prospective adoption is plainly no longer in the child’s welfare and interests. That the welfare and interests of the child, though appropriately served by the adoptive parents, would be better served by some other person or persons, including a birth parent, will rarely be fundamental because only comparative concerns are thereby raised, as such seldom, if ever, justifying interruption of the process.
A revocation application cannot be seen as an opportunity to revoke consent or to put before the Court matters that could have been raised earlier. A broad-based inquiry, including examination of alternatives to adoption, will already have taken place at the time of the granting of an interim order. Neither can it be used effectively to widen the scope of the inquiry (as set out above) that the Family Court will make at the hearing for the (final) order. Revocation of an interim order should be used by the Courts only for the narrow purpose of dealing with cases where some matter has arisen that is so serious that the adoption process should be stopped immediately: where there is a lack of jurisdiction through lack of true consent for example or where there has been a material mistake or misrepresentation in the application for an interim order such that the interim order would not have been made if the true position had been before the Court.
We note too that the narrow scope of the revocation power is supported by an examination of the appeal provisions. A birth mother applicant has the right to appeal against a refusal to revoke an interim order but no right to appeal against the making of an interim or (final) adoption order. Bringing a revocation application cannot be a method of achieving a de facto appeal right against the granting of an interim adoption order when no such right is given by the Act.
[64] In the past revocation orders, appropriately, have been made only in very limited circumstances in line with the interpretation set out above. We see advantages in following long established practice in this area. Revocation orders have been made where a birth mother’s consent has been held invalid, meaning that there was no jurisdiction to make the order in the first place: see N v P (supra) and other decisions to similar effect discussed in Keith Griffiths New Zealand Adoption – History and Practice, Social and Legal, 1840-1996 (1997, 2nd printing) at 177-180A. Of course, as there was no jurisdiction to make the order in such a case, judicial review would have been available, but an application under s12 provides a convenient method of cancelling the interim order. The procedure has also been invoked successfully where there has been such a serious change in the adoptive parents’ situation or conduct that the immediate interruption of the adoption process is justified: see, for example, Director-General of Social Welfare v W (1983) FLN 103 (2d), where there had been sexual offences committed by the adoptive father after the interim order was made against a foster child and another boy with whom he had contact.
[65] In this case Ms G is not asserting invalidity of consent. There appears to be no suggestion that, on the basis of the information before the Court at the time of making the interim order, the interim order should not have been made. Indeed, at that point Ms G was not opposing the adoption. Ms G is not asserting that there is any current deficiency in Mr and Mrs B’s care of S, apart from the issue of access and some concerns relating to cultural heritage. Access has, however, been restored through other means and Mr and Mrs B say they are now committed to ongoing access. If access causes difficulties later, although at present there is no means of accommodating access either under the Adoption Act or the Guardianship Act after a final order is made, there is the possibility of wardship raised by Blanchard J in Re T (Adoption) [1996] 1 NZLR 368 at 376. In this regard we note that a statutory provision for permitting access for birth families without having to resort to the wardship jurisdiction would do much to bring adoption law into line with contemporary social and cultural values.
[66] In addition, in a practical sense the reality is that Ms G’s consent was not one given with only the minimum of safeguards set out in the Act. There was a conscious choice of Mr and Mrs B as parents. Consent was given when S was a month old (incidentally, the period suggested by the Law Commission as appropriate for a properly considered consent to be given) and Ms G had had counselling. Her reasons for deciding to have S adopted were well thought out and the application for revocation was not filed until a year after the consent was given. This is not to downplay the difficulty of the decision that she had to make at the time of giving consent and the anguish it caused her. We also do not downplay her very real distress at Mr and Mrs B’s change of attitude to the access arrangements. Nor do we discount the effect on S (apparent from the judgment of Judge Callaghan) that would have resulted from that lessened access.

Summary

[67] The birth mother in her capacity as guardian can participate in the hearing of both the interim and final adoption applications. Participation is an incident of her status as guardian of the child involved and it also helps ensure that the Court has all relevant information before it when assessing the welfare and interests of the child. Her status as guardian does not mean that she has rights in the adoption process after she gives her consent. She does not, for example, have a right to be given notice of the hearing of the application. She must make her wish to participate in the hearing known to the Court or the social worker. In addition, the extent to which she may participate in any individual case is at the discretion of the Family Court judge hearing the application.
[68] At the hearing of an application for an interim adoption order the Court must be satisfied that the criteria in s11(a)-(c) are met. When considering at this stage whether the adoption will promote the welfare and interests of the child a broad-based enquiry is appropriate, including an assessment of all options. Regard must also, however, be had to the irrevocability of consent where that applies and the factors that led the birth parent or guardian to consent (to the extent that these related to the welfare and interests of the child). Irrevocability of consent was designed not just to give the Court jurisdiction to make adoption orders but was also to give security to proposed adoptive parents in order in turn to give stability to the child.
[69] An interim order can be made only if the Court considers that the criteria for making a final order have been met. The period after the interim order is made is a period during which the proposed adoption and the adoptive parents can be appraised. The focus in any hearing for a final order, if such a hearing is required, must therefore be on any changes since the interim order was made or any factors present but misrepresented or not considered at the time of the making of the interim order. This means that the focus of the inquiry will almost invariably be on the welfare and interests of the child in the care of the adoptive parents. All being well in that context, only in exceptional cases would alternatives to adoption be considered, and a mere change of mind on the part of the birth mother will not suffice.
[70] This means that we differ from the High Court in that we do not consider there to be a stark choice between the two approaches identified, but rather a combination of these approaches with a narrowing of focus over the stages of the adoption process. Irrevocability of consent is always a factor to be taken into account but the inquiry into the child’s welfare and interests becomes less broad-based as the process advances. A broad-based inquiry is conducted at the time of the hearing of the interim adoption application. After that point the focus is on changes to the situation and, except in exceptional cases, relates to changes to the position of the child in the care of the adoptive parent or parents.
[71] Against this background, applications for revocation of interim orders will be granted only on very limited grounds – either on the ground that the interim order should not have been made, because of lack of jurisdiction or some other error at the time it was made, or, alternatively, on the ground that new matters have arisen that are so serious that they justify the adoption process being stopped immediately.

Result and costs

[72] It is obvious from what we have said that we consider that the High Court did not identify the correct test. The High Court enunciated a much wider test for revocation applications than the one we have held appropriate. Even though it does not appear to us that the matters Ms G wished the Family Court and the High Court to consider do come within the narrow grounds we have identified above, we are conscious that we have not had argument on anything other than the legal issue of the scope of s12 and have not had the benefit of having before us the evidence considered by the Family Court.
[73] As a consequence, Mr and Mrs B’s appeal on the point of law identified is allowed but the case is remitted to the High Court for Ms G’s appeal to be determined in the light of this decision on the scope of s12.
[74] If any question of costs arises, counsel have leave to file memoranda.

Solicitors:
Geddes & Maciaszek, Christchurch for Appellants
McNulty van Bohemen, Christchurch for Respondent
McCormack Law, Christchurch, for counsel to assist