R v Chief Executive of the Ministry of Social Development HC Auckland CIV-2011-485-000581 [2011] NZHC 1266; [2012] NZFLR 337 (3 October 2011)

Last Updated: 1 November 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2011-485-000581}

BETWEEN R Appellant

AND THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Respondent

Hearing: 31 August 2011

Appearances: S C Abernethy for Appellant

S McKechnie for Respondent

Judgment: 3 October 2011 at 2:30 PM

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 3 October 2011 at 2:30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date............................

Solicitors: Marshall Bird & Curtis, P O Box 105045, Auckland 1143

Fax: [phone]

Crown Law, P O Box 2858, Wellington 6140

_{Fax: [phone] – S McKechnie}

R V THE MINISTRY OF SOCIAL DEVELOPMENT HC AK CIV-2011-485-000581 3 October 2011

Counsel: S C Abernethy, P O Box 56-438, Auckland 1446

Fax: [phone]

Introduction

[1] Ms R has the day-to-day care of her teenage daughter, B, who was adopted out at birth but has now come to live with her. Notwithstanding her adoption B had regular contact with Ms R and some time ago decided that she wanted to live with her. In acknowledgement of those wishes, B’s adoptive parents have agreed to B living with Ms R. The issue in this case is whether Ms R can claim the unsupported child benefit in respect of B. Under the Social Security Act 1964 (SSA) this benefit cannot be paid to a principal caregiver who is also the child’s natural parent. However, Ms R maintains that the effect of the adoption order was to sever the parental relationship between her and B so that, for the purposes of the SSA, she is not B’s natural parent.

[2] It is a further prerequisite for the benefit that, because of a breakdown in the family, there is no natural parent, adoptive parent or step-parent able to care or provide for the child. The Chief Executive for the Ministry of Social Development maintains that B’s adoptive parents are able to provide for her and therefore this requirement is not satisfied.

[3] On Ms R’s appeal to the Social Security Appeal Authority the Authority found that, notwithstanding the provisions of the Adoption Act 1955, Ms R was B’s natural parent for the purposes of the unsupported child benefit provision in the SSA. It further indicated that, in any event, Ms R would not have met the criteria for the unsupported child benefit because B’s adoptive parents were able to provide fully for her. The following questions have been posed on this appeal from the Authority’s decision by way of case stated:

(a) Does the term “natural parent” in s 29 of the SSA include a birth

parent whose child has been adopted?

(b) Did the Authority err in law in determining that the appellant was the natural parent of B in terms of s 29 of the SSA?

(c) Was there any evidence upon which the Authority could determine that it was not satisfied that B’s adoptive parents were unable to care for her or support her financially?

Is the birth mother of an adopted child a “natural parent” for the purposes of s 29 SSA?

[4] The first two questions in this case require resolution of an apparent inconsistency between s 29 SSA and s 16 of the Adoption Act 1955.

[5] Section 29 relevantly provides that:

A person who is a principal caregiver in respect of a dependent child shall be

entitled to receive an unsupported child’s benefit in respect of the child if –

(a) That person is not the natural parent, adoptive parent or step-parent of the child; and

(b) Because of a breakdown in the child’s family, no natural parent, adoptive parent or step-parent of the child is able to care for the child or to provide fully for the child’s support.

[6] In the normal course, a birth mother would be regarded as a natural parent. However, s 16 of the Adoption Act deems that relationship to cease upon the making of an adoption order:

Upon an adoption order being made, the following paragraphs of this section shall have effect for all purposes, whether civil, criminal or otherwise, but subject to the provisions of any enactment which distinguishes in any way between adopted children and children other than adopted children, namely:

(a) The adopted child shall be deemed to become the child of the adoptive parent, and the adoptive parent shall be deemed to become the parent of the child, as if the child had been born to that parent in lawful wedlock

Provided that, where the adopted child is adopted by his mother either alone or jointly with her husband, the making of the adoption order shall not prevent the making of an affiliation order or maintenance order, or of an application for an affiliation order or maintenance order, in respect of the child;

(b) The adopted child shall be deemed to cease to be the child of his existing parents (whether his natural parents or his adoptive parents under any previous adoption), and the existing parents of the adopted child shall be deemed to cease to be his parents, and any

existing adoption order in respect of the child shall be deemed to be discharged under s 20 of this Act:

Provided that, where the existing parents are the natural parents, the provisions of this paragraph shall not apply for the purposes of any enactment relating to forbidden marriages [or civil unions] or to the crime of incest.

(c) The relationship to one another of all persons (whether the adopted child, the adoptive parent, the existing parents, or any other persons) shall be determined in accordance with the foregoing provisions of this subsection so far as they are applicable ...

(h) Any existing appointment as guardian of the adopted child shall cease to have effect.

(emphasis added)

[7] The Chief Executive argues that, because of its reference to both natural and adoptive parents, s 29(a) of the SSA comes within s 16(2) of the Adoption Act as an enactment that distinguishes between adopted children and children other than adopted children, thereby ousting the effect of s 16(2)(b). Ms McKechnie, for the Chief Executive, submitted that where the various categories of parenthood are separately recognised, as they are in s 29(a), only the biological parent could be considered the natural parent and conversely, to treat s 16(2)(b) as prevailing over that interpretation would mean that the deliberate listing of the different types of parenthood in s 29(a) would be redundant. Ms McKechnie considered that this interpretation of s 29(a) was consistent with the purpose of the section, which she described as being to require any available family resources to be available to the child.

[8] I do not accept that the identification of the various categories of parenthood in s 29(a) means that it is an enactment that distinguishes between adopted children and children who had not been adopted. It distinguishes between the various types of parents, not children. While superficially it might seem that any distinction between the one must carry with it the same distinction between the other, given the purpose of s 29 and the effect of the Adoption Act 1955 I do not accept that that is so.

[9] Section 29 was enacted in 1990 by way of an amendment to the SSA and is contained in that part of the SSA dealing with orphans’ benefits. It was introduced

following the withdrawal of availability of the unemployment benefit for 16 and 17 year-olds to ensure that young people who were not working and had no other means of support were provided for. Parliamentary debate at the time records Opposition concern at the potentially detrimental effect that this benefit might have on families, with the danger that it would encourage young people to leave a home and family that would, in the absence of the benefit, be able and willing to support them. Other than that concern there is no other external assistance to be gained in terms of legislative intention.

[10] It is, however, evident from the wording of s 29(a) that Parliament intended to preclude benefits being paid to those whose parental relationship with a child is such that they could be expected to care and provide for them. Significantly, it is only the parental relationship that is the subject of the exclusion; any other relative such as a grandparent who takes over the care of a dependent child because of a breakdown in the child’s family may obtain the unsupported child’s benefit. The purpose of identifying the various categories of parental relationships in s 29(a) must therefore be to capture all categories of parents who would usually be available to care for their child, thus precluding any attempt by adoptive or step-parents to avoid that responsibility by asserting that they do not occupy the parental role vis-a-vis the child. Although Ms McKechnie is, strictly, correct that simply using the word “parent” would have achieved this, it seems to me that Parliament was seeking to make it absolutely clear that it was not just natural parents who might be expected to care for children.

[11] Importantly, interpreting s 29(a) in this manner would achieve the purpose of the section without interfering with the legal effect of an adoption order. The effect of adoption under the Adoption Act 1955 is uncontentious; it creates the legal fiction that a child born to one set of parents is, for all save a very few specified purposes such as the crime of incest, the natural child of the adoptive parents. The Supreme Court, commenting on the effect of s 16 of the Adoption Act in the context of an

_{application under the Status of Children Act 1969, stated that:}[1]

[20] In short, upon the making of an adoption order, the relationship of parent and child between the child and its biological parents ceased for all legal purposes other than those expressly excepted, such as the crimes of incest and forbidden marriages or civil unions. Not only is a new legal relationship created, but that relationship is equated with the legal relationship that would have existed had the child been born to the adoptive parent(s) in lawful wedlock. The new relationship created by the adoption order therefore relates back to the moment of the child’s birth.

[12] The restoration of the legal relationship of parent and child between an adopted child and his or her birth parents following adoption is only possible by means of an order discharging the adoption order made under s 20 of the Adoption Act. The grounds on which an adoption order can be discharged are very narrowly drawn and require an application to this Court with the permission of the Attorney- General.[2] More than a decade ago the Law Commission recommended that the circumstances in which an adoption order could be discharged should be extended to include those where the adoptive relationship has undergone a significant and

irretrievable breakdown. Nothing has yet come of that recommendation.

[13] It is in that context that the Chief Executive’s argument that s 29(a) should be regarded as an “enactment which distinguishes in any way between adopted children and children other than adopted children” is to be considered. When the Adoption Act was enacted closed stranger adoptions were the norm. Now the concept of “open” adoption is widely accepted. Nevertheless, such arrangements exist only by reason of informal agreement between the birth and adoptive parents. Parliament has not sought to alter the nature or effect of orders for either adoption or discharge of adoption orders. As a result, care is needed to ensure that the interpretation of later legislation does not unwittingly or unnecessarily cut across the scheme of the Adoption Act.

[14] In Re Adoption of P A T, Blanchard J concluded that there was no jurisdiction to make access orders in favour of a birth parent following adoption: [3]

The whole thrust of the Act is in favour of complete severance of ties – in keeping with the general consensus of professional opinion at the Act’s inception. The welfare and interests of adopted children were simply

equated with the approach. While there is nothing to prevent a de facto access arrangement from being made in law the position is clearly that, on adoption, the birth parents become legal strangers to the child.

[15] Blanchard J disagreed with the suggestion of the District Court in Re Adoption of C that an order under s 20 might be made to vary an adoption order so as to enforce a de facto access arrangement with the birth parents.[4] I respectfully agree with Blanchard J that the provisions of the Adoption Act should not be interpreted so as to allow steps to be taken that would be inconsistent with the clear purpose of the Act, notwithstanding changing social attitudes. Such developments must await

action by Parliament.

[16] Interpreting the term “natural parent” in s 29(a) of the SSA as including a birth mother following adoption would be inconsistent with the scheme and purpose of the Adoption Act. It would, contrary to the fundamental purpose of adoption expressed in s16(2), have the effect of restoring, for the purposes of the SSA, the legal relationship between the birth mother and her child. However, unlike a discharge under s 20, that development would not restore the legal right of guardianship. As it happens, in this case Ms R has obtained a parenting and guardianship order in respect of B. In the absence of her taking that step, however, the Chief Executive’s interpretation of s 29 would effectively impose the financial burden of caring for B without any corresponding rights.

[17] I also take into account that the types of enactments specifically referred to in s 16 as justifying “looking through” an adoption order exist for obvious and serious public policy reasons such as the prevention of incest. Section 29(a) does not fulfil such a purpose. Section 29(a) can be interpreted so as to fulfil its purpose without going behind the adoption order. For these reasons I do not consider that s 29(a) of the SSA is an enactment that falls within the saving provision in s 16(2).

[18] I note at this point that Ms McKechnie argues that Ms R is not without support in relation to B because B is included as a dependent child on Ms R’s domestic purposes benefit, a family tax credit and other allowances. I am not, of

_{course, in a position to assess whether Ms R would be better off or not if she were}

able to claim the unsupported child benefit but, because of the wider implications of the question I am addressing, I do not consider the exact nature of the benefits to which Ms R might be entitled to be helpful in interpreting s 29.

Was there evidence to support the Authority’s conclusion that B’s adoptive

parents were able to provide for her?

[19] The second prerequisite of s 29(a) is that “because of a breakdown in the child’s family, no natural parent, adoptive parent, or step-parent of the child is able to care for the child or to provide fully for the child’s support”. The Authority referred to evidence indicating that B’s adoptive parents paid $809.60 per month in support between November 2008 and March 2009. It appears that there was no evidence of such payments being made after March 2009 but the Authority inferred from a letter written by B’s adoptive parents that they were in a position to support her financially. The letter records their desire for B to continue living with them but acknowledges B’s desire to live with Ms R. The Authority concluded that:

This letter suggests that B’s parents were able and willing to care for her but at the particular point they delivered B to the appellant’s care they believed they were acting in B’s best interest.

Had it been necessary for us to consider the provisions of s 29(b) on the evidence presented we would not have been satisfied that B’s adoptive parents were unable to care for her or support her financially.

[20] There was, however, no current evidence about the adoptive parents’ circumstances at the time of the hearing before the Authority in 2010. It was unknown whether they still wished to have B live with them or whether they are able to provide financial support for her while she is not living with them. As a result, I consider that the Authority was not in a position to reach the conclusion that it did.

Result

[21] I answer the questions stated as follows:

(a) Does the term “natural parent” in s 29 of the SSA include a birth

parent whose child has been adopted?

No.

(b) Did the Authority err in law in determining that the appellant was the natural parent of B in terms of s 29 of the SSA?

Yes.

(c) Was there any evidence upon which the Authority could determine that it was not satisfied that B’s adoptive parents were unable to care for her or support her financially?

No.

[22] The effect of my conclusion is that Ms R satisfies the requirements of s 29(a). There is, however, insufficient evidence as to whether s 29(b) is satisfied. Under r 21.14(b) I have the power to remit this matter to the Authority for reconsideration and decision in accordance with the opinion of this Court. This seems to me the appropriate course. The requirement of s 29(b) needs to be reconsidered by the Authority with the benefit of evidence regarding the adoptive parents’ current

_{circumstances.}

P Courtney J

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[1] Hemmes v Young [2005] NZSC 47.

[2] In rare cases there have been adoptions discharged by private acts of Parliament (see for example _{Papa Adoption Discharge Act 1982).}

[3] Re Adoption of P A T (1995) 13 FRNZ 631 (HC).

[4] Re Adoption of C [1995] NZFLR 795 (DC).