Henderson v Attorney-General [2015] NZHC 1971 (19 August 2015)

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NOTE: PURSUANT TO S 22A OF THE ADOPTION ACT 1955, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://JUSTICE.GOVT.NZ/COURTS/FAMILY COURT/LEGISLATION/RESTRICTIONS ON PUBLICATIONS

UNDER	the Adoption Act 1955
IN THE MATTER OF	Sections 3, 10 and 13A of the Adoption Act 1955
AND	In the matter of two applications to adopt a female child and a male child
AND	In the matter of an appeal from the decision of the Family Court
BETWEEN	HENDERSON AND HENDERSON Appellants
AND	THE ATTORNEY-GENERAL Respondent

Hearing:	19 May 2015
Appearances:	S C Abernethy for Applicants A Todd and G Gillies for Attorney-General E B Parsons Counsel to assist the Court
_Judgment:	_{19 August 2015}

HENDERSON AND HENDERSON v THE ATTORNEY-GENERAL [2015] NZHC 1971 [19 August 2015]

[1] Family Court Judge Adams rejected an application for adoption by a New Zealand national, resident in Thailand, of his two Thai step-children. The Judge resolved in short that:

(b) The applicants did not have a sufficient connection to New Zealand for the purpose of adoption under New Zealand law.

[2] It transpires that a social worker report was in fact produced for the purpose of the s 10 evaluation. It appears then that the Judge may have failed to have regard to it, though it is more likely that the Judge did not think it was adequate. In any event, I have come to the view that the Judge was wrong on both counts for the reasons to follow. As requested by the appellants, I will also address the merits of the application for adoption.

[3] The appellants are a married couple who live in Bangkok, Thailand. Mr Henderson is a New Zealand citizen and his wife Mrs Henderson is a Thai citizen. The couple was married on 15 February 2010 in Bangkok.

[4] Mrs Henderson has two biological children from previous relationships, S (known as F) and T (known as JJ). Mr Henderson adopted S and T under Thai law on 24 April 2013, and they informally took the surname Henderson. The process had apparently taken three years. He now seeks to do the same under New Zealand law.

[5] S has apparently never met her biological father. Mr Henderson is the only father she has ever known. Similarly T’s father has no recent contact with him, and Mr Henderson is the only person filling that role. In their original application for the

adoption orders, Mr and Mrs Henderson said they did not know where or how to find

[6] The family presently lives in Bangkok and has no imminent plans to move to New Zealand, though they did visit New Zealand on holiday in April 2013, and they temporarily relocated to Brisbane for a period. The children currently attend an international school in Bangkok, T boarding during weekdays and S staying with Mrs Henderson’s mother as the Hendersons live some distance from the school. They speak English. The Hendersons say they would like New Zealand adoption orders in order to travel in and out of New Zealand freely, without the need for visitors’ visas; and so that the children would have the opportunity to undertake their schooling from the age of 16, and possibly further education, in New Zealand. Essentially, it seems, they would like the children to be able to gain New Zealand citizenship in case it becomes useful in the future.

[7] Two reports have been produced in relation to the application for adoption, namely:

(a) A report by Cecil Rimon – Sta Cruz, Senior Practitioner, Child Youth and Family Services (CYFS);

[8] The CYFS report describes the background of the applicants and the two children. The report observes that Mr and Mrs Henderson as well as the children are habitually resident in Thailand and intend to remain in Thailand indefinitely. It records that the application is made as the parents wish for S and T to have New Zealand citizenship and a New Zealand passport.

23 July 2010 and that he sought certification as to his suitability as an adoptive

parent. Mr Henderson was advised that CYFS was unable to provide such certification. He was also advised that CYFS could only undertake a check of the CYFS child protection data base and a New Zealand Police vetting report at the request of the relevant overseas authorities. The report notes that Mr Henderson then applied to adopt in Thailand and that this resulted in the Malaysian Department of Social Welfare requesting the co-operation of CYFS to undertake a CYFS data base check, which was completed. Mr Henderson made a further request for certification as to suitability, but was advised again that this was not possible.

[10] The report records that Mr Henderson’s application to adopt S and T was approved by the Thailand Department of Social Development and Welfare on 24

[11] The report also refers to an offer by Mr Henderson to meet the cost of a CYFS social worker travelling to Thailand to undertake an assessment. CYFS advised that this was not possible. The report refers to the difficulties of making an appropriate assessment under s 10 of the Adoption Act given that Mr and Mrs Henderson do not live in New Zealand. The report refers to affidavits produced by Mr and Mrs Henderson, including references to the fact that they would like to be able to travel in and out of New Zealand freely as a family without the need for constant visitor visas. The report refers to affidavit statements that the family have been living together as a family unit with the children since February 2012 and together in Bangkok since November 2012. The fact that Mr Henderson was already the children’s legal father under Thai law is also noted. The report then identifies what it calls inconsistencies in the affidavit evidence, namely:

 Mr and Mrs Henderson met in Hong Kong in March 2009. They were introduced by the wife of Mr Henderson’s friend. At that time Mr Henderson was working in Kuala Lumpur and Mrs Henderson was based in Bangkok. Following their initial meeting, Mrs Henderson spent more time in Kuala Lumpur and the applicants got married in February 2010 in Bangkok. The applicants settled in Kuala Lumpur following their wedding.

 The applicants reportedly did not take their children to Malaysia with them due to the high cost of international school fees and not wanting the children to lose their Thai language. Although I agree that maintaining one’s culture and language is important I do

consider it is more important for children to grow up with their parents, particularly in their formative years. It appears that the applicants have lived together for almost three years without their children.

 The children were reportedly cared for by their maternal grandmother between 2009 and November 2010. This was the period of time that Mrs Henderson was in Kuala Lumpur with Mr Henderson. It is not stated in the affidavit who cared for the children prior to 2009.

 The affidavit states that between 2010 and 2013 the applicants relocated to Brisbane for a period of time. It does not however state when and for how long they resided in Brisbane.

 The affidavit in one paragraph states that S came to live with the applicants permanently in February 2012 whereas it later states she lived with them from November 2012.

2012 and have since lived together as a family. Further on in the affidavit however it states S lives with her grandmother who lives close to the school she is attending. She is taken to and from school by way of shuttle bus. It also states that T lives in a boarding place and comes home to the applicants on weekends. The applicant’s house is reportedly 35 kilometres away from the children’s school. This information is clearly contradictory.

 The family remain in Thailand in what could be seen as an affluent lifestyle.

[12] The report also refers to other miscellaneous information concerning the background of Mr Henderson and Mrs Henderson.

Please note that the following documentation has not been provided, although they are normally required in order for a full and comprehensive assessment to be completed;

 A Police certificate that confirms Mrs Henderson does not have a criminal record in Malaysia.

 A Police certificate that confirms Mr and Mrs Henderson do not have a criminal record in Australia where they also lived.

 The applicants remain living overseas in Thailand and therefore I am unable to undertake a home safety check.

 Neither referee commented on Mrs Henderson therefore it would be standard practice to request a further reference from somebody who knows her well.

[14] The report then addresses the children. It records that S’s father is Mr WC and that he and Mrs Henderson had a brief relationship but never lived together in that they separated when Mrs Henderson was two months’ pregnant with S. The report records that T’s father is Mr MWQ with whom Mrs Henderson had a three year relationship. It records that they lived in Thailand and Singapore together and T was one year old when they separated.

[15] The report notes that there is no independent information available about S and T’s circumstances and their views and understanding of either the Thai adoption or of the effects of an order of adoption under New Zealand law.

[16] As to the fathers’ consent, the report records that the children’s respective birth fathers’ consent was not sought in regard to the Thai adoption. Mr and Mrs Henderson’s affidavit is recorded as saying that it is not feasible to make efforts to locate Mr WC or Mr MWQ. The following summary is then provided by the report:

The applicants have stated that they wish to reside in Thailand with their children, who Mr Henderson has legally adopted in Thailand under the jurisdiction of Thai domestic adoption law. There is no evidence to suggest that Mr and Mrs Henderson as well as the children will make New Zealand as their permanent home.

I acknowledge that Mr and Mrs Henderson have stated that they both wish their children to be granted New Zealand citizenship so that they could study in New Zealand should they wish to and have the privilege of having a New Zealand passport. These are the two motivating factors to them applying for an Adoption order in New Zealand.

It is evident that S and T have established routines in Thailand; with S living with her maternal grandmother and T living in a boarding school during the week. It is unknown how frequently they see Mr and Mrs Henderson during weekend. There is also no independent reporting as to the children’s current living situation and views about the adoption application.

(a) As the applicants are not habitually residing in New Zealand, it is not possible to attest to Mr and Mrs Henderson’s suitability as is required under Article 15 of the Hague Convention.

(b) Retrospective compliance with the Convention presents difficulties in this case.

(c) The need for New Zealand Adoption Orders is to secure New Zealand citizenship for S and T and the perceived advantage of that.

(d) No comment could be made on whether it is in the children’s best interests for them to be adopted by Mr and Mrs Henderson in New Zealand, there being no child study report from Thai authorities.

(e) Without independent and up to date information about the applicants and the children in Thailand, a recommendation could not be made for the purposes of s 11(a) of the Adoption Act 1955.

[18] Dr Calvert was retained to provide an assessment report which would cover the areas usually covered in a formal inter-country adoption report and including the “home study report” which is usually undertaken by CYFS. Dr Calvert is a psychologist with expertise in the area of assessment of children, young people and families. She has some 26 years experience in the assessment of families with the framework of the Children, Young Persons and their Families Act 1989.

[19] Dr Calvert travelled to Thailand for the purposes of the report and interviewed the children in a neutral setting, namely their school. Section 2 provides detailed information as to the background to the applicants and to the children. The report also refers to the CYFS December 2013 Social Work report. It notes that the Hendersons were not interviewed and the children were not seen for that report. Dr Calvert notes that some of the information in the report was incorrect.

[20] Section 4 of the report provides a detailed narrative, based on semi-structured interviews, as to the children, referring to their physical development, emotional and social development, health, language, relationships, upbringing, schooling and education and understanding of engagement with New Zealand. Relevant observations included:

(a) Both children provided thoughtful views of their situation and both children have a genuine sense of family, something they wanted and that they both saw their mother as having gained in her relationship with Mr Henderson.

(b) T (J) had never seen his father, except in a photograph. (c) J very much wanted Mr Henderson to be part of his life. (d) J likes doings physical activities with “Dad”.

(e) J had a very clear sense that Mr Henderson is committed to him and his sister.

(f) J had a good sense that the transition to being a complete family had been most difficult for “Dad” but he didn’t think he had found it that hard.

(h) J did understand that adoption would mean he had some sort of relationship with New Zealand but he saw this as being a relationship with Mr Henderson specifically.

(k) F enjoyed the time in Brisbane and was sad about leaving because it meant a loss of the sense of the intact family.

(m) F did not get much time to talk to Mr Henderson, but he helps her with her studies.

(p) F did not understand the concept that there might be something negative about being adopted.

[21] Section 5 then provides a similarly detailed narrative in relation to the parents, including references to their education, employment, marriages and previous relationships, current relationship (including future plans), the children, recreational interests and financial circumstances. Salient observations included:

(a) Mr Henderson told me that he wants “his family” to be able to move easily between Thailand and New Zealand and to be recognised as a family. He pointed out that he returns frequently to New Zealand because of his strong family ties.

(c) Mr Henderson was able to think about each child as an individual. (d) Mr Henderson is in a comfortable financial position.

(f) K had a three year relationship with J’s father, but discovered he had a significant gambling problem and they separated. She understands that he has remarried and has another son.

(g) K described J as having a more authoritarian style of parenting. (h) K said she has a strong commitment to family.

[22] Section 6 then deals with observations of the family at home and section 7 deals with the grandmother.

[23] Section 8 of the report then provides a summary of opinions related to the matters to be considered. It observes:

8.1 In some sense this family is typical of a new form of ‘international’ family. That is Mr Henderson’s work may take him to different countries either travelling from a base (currently Thailand) or living there. Mr Henderson and K want, no matter where they live, to see the ‘family’ as intact and legally connected.

8.2 K and Mr Henderson clearly want their children to live with them as a ‘family’ but also wanted them to have the opportunity to move between Thailand and New Zealand easily, recognised as the

‘children’ of their adoptive father, Mr Henderson. They hope that the children might eventually spend more time in New Zealand,

K want their children to speak good English and also to have the experience of living in a western/European style culture.

8.3 More importantly both children want to feel ‘belonged’ to a family which involved their having a father. Both of the children have had little or no contact with their own biological fathers and have been effectively ‘abandoned’ by them. For both children the sense that Mr Henderson has made a commitment to them (and to their mother) and seems, to them, an honourable person, is very significant.

8.5 The children do have some understanding of both New Zealand and Mr Henderson’s existing family system. They are aware that they will have a connection to New Zealand if they are adopted by Mr Henderson.

8.6 The family plans to remain living (for the foreseeable future) in Thailand and for the children to continue schooling there. They will be moving into a new family home. The family have property in Thailand and K’s mother lives there. Mr Henderson’s working life will continue to be in Asia.

8.7 Mr Henderson and K hope that either F or J (or both) might attend their last year of school in New Zealand or perhaps go to tertiary study here. However they are realistic that neither child might wish to do this.

[24]	The judgment commences with the following question:¹
	Should a New Zealand adoption order be available where there is a tenuous connection with New Zealand?
[25]	The judgment then identifies the applicants and the two children.	The

[7] The Applicants would like to secure adoption under New Zealand law so that they can travel with the children to New Zealand without the need to obtain visitor’s visas and they would like the children to become familiar with New Zealand. In their affidavits sworn 19 August 2013, the Applicants stated that “our plan for their on-going education is to provide them with an opportunity to attend school in New Zealand once they reach

16 years of age with the intention that they would then continue on to University in New Zealand should they have the ambitions and results to do so.” They have given no additional evidence. At the hearing on 9 September

2014, Ms Abernethy submitted that they would like to enhance the opportunity to educate the children in New Zealand, although there is no

[10] Neither child has been used to a father figure. The male Applicant’s culture is different to their culture. The boy is a weekly boarder at his school but is home in weekends. A psychological report obtained by the Applicants suggests that both children are still developing their understanding of their new father.

[28] The judgment then describes the key advantages to the children in this way:

[14] These children will be advantaged if their familial relationship with the male Applicant is elevated by adoption in New Zealand. Succession rights would thereby be established. If they are able to travel into New Zealand as of right rather than as visitors, they will have easier passage to an additional part of the world. Adoption may lead to opportunities for state benefits, including access to education and health benefits as residents. Even if this is not necessarily the case, adoption could enhance their opportunity to later establish a stronger relationship with New Zealand should they want to do so.

[29] The judgment then addresses the statutory frame and the procedures available to the applicants. The Judge observes that s 3 is permissive but not mandatory. The Judge observes:

[17] ... In my view, there must be a sufficient connection to New Zealand before the court should exercise its Adoption Act jurisdiction. A crucial question in this case is whether there is a sufficient connection.

[30] The Judge then observes that a domestic application under the Adoption Act is the only viable route to a New Zealand adoption order for this family.

[23] In New Zealand, the adoption process usually requires a social worker’s report. This can be waived where, as here, a natural parent is one of the Applications: proviso to s 10(1). By that concession, step-parent adoptions are favoured under the 1955 Act. In these less innocent times, judges are nevertheless likely to require a report because the history of an adoptive applicant sometimes discloses features incongruent with a Court’s sanctioning that person as a parent. Paedophilia, cruelty to children, or chronic domestic violence or other criminality; are some reasons why an applicant may not reach the threshold for adoption. A social work report is a valuable screening tool. Although there is nothing in the present case to rouse judicial concern, this ordinary screening tool is unavailable.

[25] The Applicants recognised this disadvantage and took shrewd steps to supply a substitute. The instructed New Zealand psychologist Dr Sarah Calvert, to travel to Thailand and provide an assessment report. The report adds considerably to the relevant material available to me. Dr Calvert is highly qualified and her work well-regarded. Her report dated 11 February

about the tentative but positive movements in the relationships between the male Applicant and the children.

[26] In this kind of domestic application by an international family the court is severely hampered. This kind of application can only be entertained as a matter of course if the Court is prepared to forego the usual aid of an independent social worker’s report that might elicit crucial material unmentioned by an applicant. Practice has overtaken the s 10(1) proviso. If this kind of application is permitted, a significant statutory tool to assess child safety will be lost. The structural problems are practicably insurmountable. In my view, it creates an unsafe precedent, one that would diminish the statutory toolbox. It seems wrong in principle that international applications should be excused the ordinary rigour that is available for all other applications.

[34] The Judge then addresses in some detail whether there is a fundamental human right requiring an adoption order. The Judge records Ms Abernethy’s argument that rights accorded to the applicants by international treaties and domestic legislation build a complex structure that requires the Court to recognise his family arrangement by making the adoption orders. Various human rights instruments are then noted. The Judge concludes:

[36] I am not persuaded that any New Zealand law or international instrument recognised in New Zealand supports the far-reaching proposition advanced by Ms Abernethy. The application is correctly approached on the same basis as that which applies to any domestic adoption application. To decline the application is not to deny the marriage, nor to deny the emerging family. Adoption addresses a discrete aspect that is tangential to those features. In the course of this judgment I can rejoice in the marriage, in the apparent good fortune that the unit offers to the children, but none of that makes it appropriate that a New Zealand adoption order should be made.

[31] My concerns about these applications to adopt the two children are, firstly that the family has, and probably will have, insufficient connection with New Zealand to persuade me to exercise the discretion notwithstanding the broad wording of s 3; and secondly, in addition, it is unwise to do so given that the court, in this and other similar cases, is unable to obtain the usual social worker’s report which is an important part of the statutory rigour. Against that view, I consider Ms Abernethy’s case that refusal denies “fundamental human rights”.

[36] The judgment then reviews other decisions of the Family Court and concluded:

[41] It appears from these cases that modern international lifestyles offer interesting challenges for New Zealand adoption law. A degree of pragmatism can be sensed in all four cases noted. Some of them can be regarded as exceptional, or as making exceptions. In these cases and others, judges note that even where the Adoption (Inter-Country) Act is not engaged, it can still provide an appropriate context. Adoptions involving international families need to be approached carefully. In part, this is to guard against the commoditisation of children, but also to defend the processes by which our adoption applications are assessed. The routine ability to obtain an independent knowledgeable report from a social worker is something important that adds value and rigour to our process.

[37] The judgment goes on to observe that the exceptional reasons which move the Court in the various cases cited are not mirrored in the present case. The Judge observes that it would suit the convenience of the children to grant the adoption, but that:

[43] ... an order on this application would notably require a significant short-cut in the usual process (obtaining of a social worker’s report). Although a good deal of the shortfall is made up by the psychological report, it creates an exception. It would create an expectation for other applicants. I am concerned about the floodgate effect. I am also concerned about the creation of a privilege class of overseas applicant, namely those who can afford to employ a psychologist to provide a report to substitute for the social worker’s report, and thereby be excused the statutory inquiry in New Zealand which can elicit official information. True, this is not always so, particularly in respect of any applicant who has lived overseas for much of their life. But it is the usual expectation, and an important one.

[38] The Judge also states that it is not clear that New Zealand adoption would have net advantage for the children and expressed his concern as to whether it would be wise parental planning for either of the children to send them away from a recently formed family unit.

[45] Like other judges, I am unable to state a clear principle upon which to determine where the generosity of s 3 ends. In the present case, I am not persuaded that I should make an adoption order for either child. That is because I find that the children and the family unit, as currently configured and organised, have only a tenuous connection with New Zealand. In coming to that view I take no adverse view of the Applicants or the children. Part of my concern relates to the precedent that this case would set, and another part relates to the fact that applications of this kind require the Court routinely to yield up an important assessment tool. If this kind of application is to succeed, ordinary domestic applicants could rightly complaint of the double standard that would then operate. For the Applicants, this is a hard

response, but in my view it follows the manner in which I think this law should operate.

[40] Section 13A of the Adoption Act confers an unqualified right of appeal to the High Court. Ms Parsons submitted however that a decision pursuant to s 3 involves the exercise of discretion. This brings May v May³into frame, though at first blush, given the nature of power, a full right of appeal on the merits would appear to be appropriate in accordance with Austin, Nichols & Co Inc v Stichting Lodestar.⁴In any event, as foreshadowed above, I consider that the Judge erred in law. I will therefore consider the merits of the application.

(a) The applicants obtained a report of an independent expert, Dr Calvert, to supplement the social worker report for the purposes of the assessment under s 10 of the Adoption Act.

(b) Any gaps in the social worker’s report could have been avoided by the social worker contacting overseas agencies in Thailand for the purposes of assessing the suitability of the applicants.⁵

(c) The Court should have in any event assumed an inquisitorial function rather than simply defaulting in the face of the apparent absence of the social worker report (which was wrong in any event).

(d) There are numerous authorities where applicants have been allowed to present evidence in similar circumstances to the present case for the

³May v May (1982) 1 NZFLR 165 (CA) at 170; Kacem v Bashir [2010] NZSC 112; [2011] 2

⁴_{Austin, Nichols & Co Inc v Stichting Lodestar
[2007] NZSC 103, [2008] 2 NZLR 141.}

(e) The analysis under s 11 should be informed by the human right to identity and within this the right of the children in this case to have a father and to identify him as their father.

(g) Dr Calvert’s report demonstrates that the applicants satisfy the relatedness criteria of s 11 as promoted by the High Court in Barton- Prescott v Director-General of Social Welfare.⁶

(h) The Adoption Act 1955 should be interpreted in light of evolving circumstances, including the emergence of the international family.⁷

(i) As to the discretion at s 3, there is no proper basis for requiring a “sufficient connection” to New Zealand. It is sufficient that a person of New Zealand nationality has made the application to trigger a proper consideration of the merits of the application by reference to s 11.

(j) When the facts are examined carefully, this case is unexceptional in the sense that the relevant requirements of s 11 are properly met.

(k) Concerns about immigration floodgates are unproven and it is not clear that the adoptees would necessarily acquire automatic entitlement to reside in New Zealand irrespective of the adoption order.

(l) There are numerous cases where the right of international families has been acknowledged and adoption orders granted including Re Moffitt,⁸

⁶_{Barton-Prescott v Director-General of Social Welfare
[1997] 3 NZLR 179 (HC).}

(a) The Court should take a precautionary approach to the assessment of an applicant particularly in the absence of a social worker’s report pursuant to s 10.

(b) A s 10 report is a fundamental of the assessment process, providing structural independent analysis as to the suitability of an applicant.

(c) The Calvert report differed in focus from a social worker report and should not be seen or used as a substitute for such a report.

(d) There is no purpose provision, but it is evident from the scheme of the Act that the process is designed to provide surety as to the suitability of the adoptive parents.

(e) Adoption acts like a “guillotine”¹¹and so must be approached with some care.

(f) Section 11 requires that the Court must be “satisfied” and that this is a significant burden requiring sufficient and appropriate information as to suitability.

(i) An application pursuant to s 3 of the Adoption Act (as in the present case).

¹¹Citing Brookers Family Law – Child Law (looseleaf ed, Brookers) at [PA1.4.01].

(h) The exercise of discretion under s 3 is dependent on the performance of relevant obligations under s 10 and being satisfied as to the criteria at s 11.

(i) The scheme of the Act contemplates that the social worker and that the Court will be in a position to assess the suitability of the applicants both as part of the order-making process, and in the event an interim order is made, for the purposes of ongoing assessment as to suitability. This is not consistent with grants in the absence of sufficient information and is particularly difficult in contexts involving a family resident overseas.

(a) Section 3 of the Adoption Act confers a wide power and there is nothing expressly referring to a requirement for there to be sufficient connection to New Zealand.

(b) The parliamentary debates do not refer to the requirement of such a connection.

(c) The Law Commission in an interim and final report expressed concerns about the Adoption Act becoming a “clearing house” and the “unfettered jurisdiction” creating problems and practical difficulties in terms of the nature and type of applicants coming before the Courts.

(d) Early commentary (Campbell)¹²noted that citizenship should not be a sufficient basis for an application.

(e) Practical issues were identified with applications by residents overseas, including the difficulties of producing a s 10 report and the inability to provide ongoing oversight of children, for example after an interim order has been made.

(f) In this context, a test of sufficient connection provides an appropriate fetter on the jurisdiction to grant adoption orders in respect of overseas resident applicants.

(g) It is unreasonable to expect, and Parliament could not have contemplated, that social workers would be engaged in assessment of the suitability of overseas resident persons and there could be no requirement or mandatory requirement for those workers to obtain reports by overseas agencies, which are beyond their control in any event.

(h) Of the cases cited by Ms Abernethy, a common theme among them was that the family in question was going to reside in New Zealand, so that a sufficient connection was present in any event.

[44] In order to resolve this issue it is necessary to examine the statutory frame in some detail.

[45] Jurisdiction is conferred by section 3 of the Adoption Act 1955 (the Act). It states:

¹²I D Campbell The Law of Adoption in New Zealand (2nd ed, Butterworth & Co, Wellington,

(1) Subject to the provisions of this Act, a court may, upon an application made by any person whether domiciled in New Zealand or not, make an adoption order in respect of any child, whether domiciled in New Zealand or not.

(2) An adoption order may be made on the application of 2 spouses jointly in respect of a child.

(3) An adoption order may be made in respect of the adoption of a child by the mother or father of the child, either alone or jointly with his or her spouse.

[46] The Act envisages that an interim adoption order will be granted first unless special circumstances render it desirable to make a final order. The purpose of the interim order is to provide a further opportunity to undertake a ‘performance appraisal of the adoptive parents’.¹³

(b) A report by a social worker unless one of the applicants is a natural parent (section 10);

Before making any interim order or adoption order in respect of any child, the court shall be satisfied—

(i) that every person who is applying for the order is a fit and proper person to have the role of providing day-to-day care for the child and of sufficient ability to bring up, maintain, and educate the child; and

(ii) 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

(iii) 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.

[49] If an interim order is made the applicants can apply after six months for a final order. The effect of the interim order is stated at s 15(1), namely:

(a) may require that the adoption order shall not be issued without a further hearing:

(b) shall not effect any change in the child's names, but may specify how they are to be changed by the adoption order:

(c) shall remain in force for 1 year or until it is sooner revoked or an adoption order is sooner made in respect of the child: provided that a further interim order may be made by the court upon application duly made to it in that behalf:

(a) The persons in whose favour the order is made must have the role of providing day to day care of the child;

(b) Any social worker may at reasonable times visit the child; (c) The child shall not leave New Zealand;

[51] The effect of the final order is described at s 16. For present purposes it is relevant to note:

(b) The adopted child shall be deemed to cease to be the child of the existing parents;¹⁶

(d) Subject to the Citizenship Act 1977, the adoption order shall not affect the race, nationality, or citizenship of the adopted child.

[52] Section 17 of the Act then provides for recognition of legally valid overseas adoptions, provided (relevant to this case) that in consequence of the adoption the adoptive parent would have had, following the adoption, a right superior to that of the natural parent in respect of any property of the adopted person. This section does not apply to any adoption that is a person who is habitually resident in New Zealand

[53] The requirement for sufficient connection was expressed in a number of ways in the Family Court judgment:

[35] .... In any adoption, and particularly in international adoption, the law must be careful that children are not commoditised. Conversely, adoption law is wary of the device being used as a backdoor method to obtain immigration outcomes – the commoditisation of citizenship. These children are thoroughly based in Thailand and in Thai culture. The happenstance that their Thai mother’s husband has New Zealand citizenship offers opportunities equally for advantage and for dislocation. Neither their mother’s union, nor the Thai adoption, move the children towards a “fit” within a New Zealand social context. That portion of Article 21 which

¹⁸Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption, Hague Conference on Private International Law 33 (concluded on 29 May 1993, entered into force 1 May 1995) [the Hague Convention].

[45] Like other judges, I am unable to state a clear principle upon which to determine where the generosity of s 3 ends. In the present case, I am not persuaded that I should make an adoption order for either child. That is because I find that the children and the family unit, as currently configured and organised, have only a tenuous connection with New Zealand. In coming to that view I take no adverse view of the Applicants or the children. Part of my concern relates to the precedent that this case would set, and another part relates to the fact that applications of this kind require the Court routinely to yield up an important assessment tool. If this kind of application is to succeed, ordinary domestic applicants could rightly complain of the double standard that would then operate. For the Applicants, this is a hard response, but in my view it follows the manner in which I think this law should operate.

[54] With respect to the Judge’s understandable concerns, I am unable to accept that in relation to applications involving New Zealand citizens, sufficiency of connection to New Zealand is a precondition to adoption. First, s 3 expressly confers on the Court a broad jurisdiction may make an adoption order upon an application made by any person “whether domiciled in New Zealand or not”. There is no ambiguity about this.

[55] Second, for present purposes, the power of the Family Court to grant an adoption order on an application involving a natural parent is only expressly circumscribed by the processes envisaged at ss 7 and 8 dealing with consent (which has been dispensed with) and satisfaction of the criteria in s 11. Accordingly, provided the criteria are satisfied, it can be reasonably assumed that the grant of an adoption order will achieve the legislative purpose. Conversely, there is nothing in the Act to suggest that concerns about immigration are mandatory relevant considerations, let alone provide a proper basis by themselves for declining an adoption order to an otherwise satisfactory adoptive parent.

[56] Third, I acknowledge the problems raised by Ms Todd for the Attorney- General cited in the Law Commission’s interim and final reports on the Adoption Act. The Commission highlighted a number of examples of applications by foreign

nationals for adoption orders for an improper purpose, namely to secure an immigration outcome or to circumvent, for example, more restrictive adoption practices in the child’s country of origin and or the provisions of the Hague Convention and the Adoption (Intercountry) Act 1997. But, if Parliament intended to limit the general jurisdiction of the Court by reference to overseas law, the Adoption (Intercountry) Act 1997 or the Hague Convention it could have done so expressly, as it did in relation to recognition of overseas adoptions for the purpose of s 17 of the Act.

[57] Fourth, contrary to the view expressed by Campbell,¹⁹I am doubtful that a requirement for sufficient connection is concordant with Mr Henderson’s right to freedom of movement affirmed by s 18 of the New Zealand Bill of Rights Act 1990. As this point was not a matter of detailed argument I will not dwell on it. But Mr Henderson’s right to leave and enter New Zealand reflects the basic premise that connection with country is an aspect of human identity and dignity.²⁰It is not a matter for discretionary assessment unless mandated by clear statutory language. It is to be assumed. Yet, contrary to this assumption, the effect of the Judge’s approach to

Mr Henderson is to deprive him of rights afforded to other New Zealand citizens by dint of their citizenship for no other reason but that he now habitually resides overseas. For my part, the Adoption Act does not purport to confer such a power.

[58] Fifth, the rigorous application of the s 11 criteria should provide an adequate immigration filter in terms of excluding those persons who do not have a genuine interest in the upbringing of the children or where adoption is not in their best interests, including where relevant, by reference or analogue to the procedures, principles and norms underpinning overseas legislation, the Adoption (Intercountry)

[59] Sixth, I take some comfort from the fact that various decisions of the Family

[60] Having said all of that, as Judge Mill noted in Re Application by H (Adoption):

The Court must be vigilant to ensure that the adoption is not for some ulterior purpose and must be careful that adoption processes are used to confirm the existence of a genuine parent/child relationship.²³

[61] For my part, I would simply add that the Court also must be vigilant to avoid abuse of the adoption process. This vigilance should capture, for example, egregious attempts to circumvent the requirements of the Hague Convention or where the processes under that Convention are not yet complete.²⁴But a rule that purports to deprive New Zealand citizens of an adoption order based solely on discretionary

_{assessment of connectivity is discordant with the expressly
broad jurisdiction}

²²In Re DV v KJV, above n 5, the applicants sought adoption orders in relation to two children born in Thailand. The two applicants had since 1997 provided humanitarian support in urban estates in Bangkok. No mention was made of a requirement for sufficient connection, although the applicants in that case were seeking to return with the children to live in New Zealand. In GI v PAI above n 9, Ms I held dual citizenship in New Zealand and the Russian Federation. Ms I was at the time of the application resident in Russia. The Court resolved that Ms I was a fit and proper person in accordance with s 11 and (by analogy) Art 5 of the Hague Convention. The Judge approached the issue of immigration policy, with respect, in the correct way namely whether or not the adoption was being used purely for immigration purposes. The Judge found at [139] that while immigration may be one motivation for adopting a child, where it is not the primary observation or purpose, this need not be a barrier to approving the application. I agree. In An Application by SN v TTN [2012] NZFC 9705 a grand uncle and aunty sought to adopt N. The applicants were both New Zealand citizens. N was born in Tonga. The applicants were resident in New Zealand so there was a sufficient connection in that regard. The adoptee, however, resided in Tonga and had no connection whatsoever to New Zealand other than through his grand uncle and aunty. The Court found that the immigration benefits would be a bi- product of an adoption order, but that was not the primary driver of the application. The application was granted. In Ramos v Marquez [2014] NZFC 905 concerned the adoption of A who was born in the Philippines and lived there until 2008 when she was 12. The application was made when she was 20 and the Adoption (Intercountry) Act did not apply. The Judge accepted that the Hague Convention should nevertheless be relevant to the application in light of the subsidiarity principle. In granting the adoption order, the Judge resolved that the subsidiarity principles should not be applied inflexibly and at the expense of the child’s interests, at [12]. I agree. See also LMH v UH WAIHI FAM-2007-079-000118, 19 June 2009 and the discussion in Butterworths Family Law in New Zealand (16th ed, Lexis Nexis, Wellington, 2014) at 1157-

²³Re Application by H (Adoption) [2001] NZFLR 817 (FC) at [39] – [47]; see also discussion in

²⁴See by way of example An Adoption Application by SFH and MEM [2008] NZFLR 887 at [37]; see also GI v PAI above at n 9 at [57] – [66]; I also endorse the observations made by Judge Walker in GI v PAI at [88] that because the Adoption (Intercountry) Act is not strictly applicable, non-compliance with the procedures of the Adoption (Intercountry) Act or the Convention are not fatal to an application provided that their principles are not infringed.

conferred by s 3 and the clear focus of the Act on suitability of the applicants and the welfare and interests of the child.²⁵

[62] Returning to the facts of the present case, the mere fact that the application was made by a New Zealand national resident in Thailand with aspirations of sending the children to study in New Zealand was not a sufficient basis to reach an abuse of process finding or for denying the adoption order. The application should have been dealt with in the ordinary way; that is by reference to the s 11 criteria and including an assessment of whether or not the information in support of the application was sufficient to make a proper decision.

[63] Given the foregoing, I consider that the Judge erred by requiring a sufficient connection to New Zealand.

[64] It will be seen that I have found it unnecessary to rely on recourse to Mr Henderson’s right to family life affirmed by among other things by Article 17 and 23 of the ICCPR.²⁶It is orthodox to interpret legislation, if possible, so that it is read in

a manner consistent with New Zealand’s international obligations.²⁷The right to

family life, in tandem with Mr Henderson’s right to freedom of movement affirmed by s 18 of the New Zealand Bill of Rights Act, supports the proposition that this Court should be slow to read down the s 3 jurisdiction in a manner inconsistent with these rights. Nevertheless, some care is needed to avoid inadvertently grafting onto the s 3 jurisdiction the capacity to circumvent the detailed and complex legislative regime dealing immigration. In my view it is sufficient for present purposes, in light of the facts in this case, to simply observe that the requirement for sufficient connection is flawed for the reasons stated at [54]-[59].

_{[65] Section 10 contemplates a social worker’s report in the
following terms:}

²⁵In this regard I respectfully agree with the approach taken by Judge von Dadelszen in Re KJB and LRB [2010] NZFLR 97 at [35] to the effect that the welfare and best interests of the child are to be taken into account when considering whether to exercise discretion under s 3.

²⁶International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16

(1) Before the court makes any interim order, or makes any adoption order without first making an interim order,—

(a) the Registrar of the court shall require a social worker to furnish a report on the application;

(b) reasonable time shall be allowed to enable the social worker to furnish a report, and the court shall consider any report which the social worker may furnish; and

provided that this subsection shall not apply in any case where the applicant or one of the applicants is an existing parent of the child, whether his natural parent or his adoptive parent under any previous adoption.

(2) The social worker shall be entitled to appear at the hearing of the application, and to cross-examine, call evidence, and address the court.

[66] It will be immediately seen that such a report is not required where, as here, one of the applicants is a natural parent of the child. The Judge acknowledged this at [23], but nevertheless appeared to proceed on the basis that a report was required. I respectfully disagree to the extent that the requirement for a report is thereby elevated to a statutory pre-condition to the grant of adoption orders in favour of a natural parent. That would defeat the express statutory exception afforded to them.

[67] I accept however that s 10 evinces a clear statutory policy that better adoption decisions will be made with the assistance of a social worker’s report.²⁸This is reinforced by the practice of the Family Court to require such reports.²⁹And more broadly, the scheme of the Act, including the interim order process envisaged at s 5, envisages a thorough appraisal of the suitability of the applicants and the children for

_{the purpose of adoption.}³⁰_{As Ms
Parson’s submitted, given the guillotine like}

significance of adoption to the child, the information in support of the application will need to be detailed and robust. This may be difficult for overseas applicants, but

_{the statutory criteria must be satisfied. Accordingly, the absence of
such of social}

²⁹_{Family Court Caseflow Management Practice Note of Judge
Boshier, 24 March 2011 at [2.5].}

worker’s report or an incomplete report may provide a proper basis for declining the

[68] Balanced against this, I endorse the submissions made by Ms Abernethy, that the absence or the limited scope of a social worker’s report in the context of an application by a natural parent may be supplemented by a report from a suitably qualified independent expert addressing s 11 matters. As the Court of Appeal noted in B v G, the s 11 inquiry is “a broad based one.”³¹The Family Court must be “satisfied” that the s 11 criteria are met. In order to be satisfied, the Court must have sufficient, adequate information. The ability of an applicant to supplement the information supplied by the social worker is concordant with open textured nature of

the inquiry and the requirement for sufficient information. The weight to be afforded to the information, in conjunction with the social worker’s report will of course be a matter for the Judge.³²But there is nothing in the scheme of the Act that precludes the use of independent reports from suitably qualified experts.

[69] I acknowledge the concerns raised by Judge Adams about the potential for disparate treatment as between applicants who can afford independent reports and those who cannot. But the Act enables adoptions by parents who satisfy the statutory criteria. I see no statutory or policy basis for discriminating against qualifying applicants because they are better able to demonstrate their suitability.

[70] One residual issue concerns the extent to which a social worker is obliged to make inquiries of overseas agencies or investigate the suitability of an applicant resident overseas. I accept Ms Todd’s submissions that there can be no obligation to make any particular inquiries beyond what is practicable and reasonable in the circumstances. For example, a social worker might reasonably be expected to inquire with appropriate overseas agencies as to the suitability of an applicant or the children to adoption. It will be for the worker to assess the reliability of any advice received. If the overseas agency cannot assist or is not prepared to do so, then no further inquiry is necessary. But there can be no expectation that the social worker

_{will retain overseas agencies or persons to undertake an investigation.
While it may}

do so, the duty to report rests with the social worker and it is for the worker to determine what is appropriate in the circumstances.

(a) Whether there is sufficient information upon which to make a decision pursuant to s 11 to grant the adoption; and

[72] I will address the sufficiency of information first, and if I am satisfied there is sufficient information, I will assess the application in light of the criteria.

[73] For completeness I have examined the need for the fathers’ consent. I note

that the Family Court waived the requirement to obtain the consent of the fathers.³³

No reasons are given for this. In any event, it is clear from the semi structured interviews that little or no contact has been made by the fathers with the children since their respective separations from Mrs Henderson. I am therefore satisfied for the purpose of s 8(1)(a) that consent of the fathers was properly dispensed with, as they have persistently failed to maintain or exercise the normal duty and care of parenthood in respect of the children and have no interest in engaging in such care.

[74] The reports provided by CYFS and by Dr Calvert are summarised at [7]–[23]. The CYFS report presents an incomplete and understandably conditional picture of the applicants and the children. By contrast, Dr Calvert’s report provides a comprehensive insight into the background, lives and relationships of the applicants and the children subject to the application. Furthermore, the apparently contradictory information supplied by the applicants and recorded in the CYFS

³³Henderson v W FAM 2013-004-1867 Minute of McHardy DCJ, 2 September 2013; Henderson v

Dr Calvert and no challenge was made to the accuracy or integrity of Dr Calvert’s report. Overall therefore, I consider that the reports provide sufficient adequate information to make an assessment pursuant to s 11 of the Adoption Act.

[75] Section 11 identifies the criteria that must be considered for the purpose of adoption. They are recorded at [48]. In summary I must be satisfied that:

(a) The applicants are fit and proper persons to care for the child; (b) The welfare of the child will be promoted by the adoption;

[76] The nature of the inquiry was, with respect, aptly summarised by Judge P J Callinicos in DPH v Horton:³⁴

[121] In essence the approach to the determination of s 11 is one of assessing the particular circumstances of the subject child involved, assessing whether the applicants for adoption are fit and proper in terms of providing the requisite care for the subject child and considering any alternatives which might be available to the far reaching step of adoption itself.

[77] I turn then to examine these matters in light of the information available to me.

[78] The CYFS report was unable to reach any conclusion on Mr Henderson’s fitness. While Dr Calvert did not proffer an opinion on his fitness, the detailed qualitative assessment provided by her in the form of the semi structured interviews strongly suggests that Mr Henderson is both fit in the general sense of providing a

_{stable and secure environment for the children and in the more specific
sense of}

providing for their specific physical, cultural and emotional needs. Relevant observations supporting this conclusion are noted at [21] and [23] above.

[79] I am satisfied therefore that Mr Henderson is a fit and proper person for the purpose of s 11(a).

[80] I make a preliminary observation that Mr Rimon-Sta Cruz appeared to be concerned about the current living arrangements of the children, suggesting a lack of meaningful involvement of Mr Henderson in the lives of the children. This is to be contrasted from the recurrent theme of the interview responses that Mr Henderson has taken on the role as father or “dad” of the children, and is actively involved in their care. In my view the living arrangements do not reveal lack of attention or care, but rather reflect the modern realities of a family that must organise their affairs around work opportunities and the provision of suitable education for the children.

[81] Neither report provides a recommendation as whether the adoption is in the best interests of the children. Nevertheless, based on the semi-structured interviews the adoption would solidify the benefits afforded to (and perceived by) the children of a complete, emotionally secure family unit and affirm the emergent father/child relationship currently enjoyed by them. Moreover there is nothing to suggest that the formalisation of the adoption will have anything other than positive benefits for the children. Judge Adams aptly referred to the “good fortune that the unit offers to

the children” and that he took “no adverse view of the applicants or the children.”³⁵

[82] I have considered the serious implications of adoption for the children. As the Court of Appeal observed in B v G adoption is “designed to extinguish the links of the child to the birth family and transfer the child’s legal status to the adoptive

_family”.³⁶_{But the seriousness of these
implications is mitigated by several factors:}

³⁵Henderson v Henderson above n 1 at [45]; the benefits outlined in Re Moffitt, above n 7 also resonate here: concordance with the wishes of the child, the psychological and emotional benefits to the family unit, ease of travel (including to New Zealand) and administrative convenience.

³⁶B v G, above n 30 at [52], and see Family Law in New Zealand, above n 22 at [6.714].

(b) The children will remain embedded in cultural and ethnic community via their mother;

(d) There is no suggestion that the applicants intend to separate or intend to deprive the children of a connection to their fathers or heritage (though I accept that this last factor is not assured).

[83] Finally, in terms of alternatives, I am unable to identify an alternative option that would confer the legitimate benefits of adoption sought by the applicants for the children. Moreover I do not consider that the search for alternatives is necessary in this case given the absence of meaningful relationships with the fathers.

[85] I am satisfied that the criteria set out at s 11 are met. The applicants qualify for an order for adoption.

[86] I am not satisfied that the application for adoption orders was made solely or primarily for an improper immigration purpose. The applicants have been transparent in their desire to secure, among other things, the benefits that might be afforded to the family in terms of travel to and or study in New Zealand. But this falls well short of evidence of abuse of process. Furthermore, the evidence of a longstanding, genuine commitment by the applicants and the children to family life together rebuts any suggestion that the application is made solely for immigration purposes. Finally there is no suggestion that the adoption if allowed would be discordant with processes and principles of overseas adoption law, the Adoption (Intercountry) Act or the Hague Convention.

Upon any application for an adoption order, if the court considers that the application should be granted, it shall in the first instance make an interim order in favour of the applicant or applicants:

provided that the court may in any case make an adoption order without first making an interim order, if—

(a) all the conditions of this Act governing the making of an interim order have been complied with; and

(b) special circumstances render it desirable that an adoption order should be made in the first instance.

[89] I have addressed the conditions of the Act above. As to special circumstances, there is no urgency or pressing need to make a final order immediately. But, given the overseas residence of the applicant family, a conventional interim order will serve little purpose, as CYFS will not have access to them for the purposes of observation. I nevertheless consider that an alternative method of achieving the Act’s protective purpose is required in the unusual circumstances of this case. I therefore propose to request an updating report from Dr Calvert as to the s 11 matters. It has been more than 12 months since Dr Calvert completed the first report and this should provide an ample interim period after which a further meaningful assessment may be made. If I am satisfied that the applicants remain suitable parents for the children I will issue the final order.

[90] I appreciate that the applicants have waited a considerable time to obtain the adoption orders. But the scheme of the Act requires that the assessment must be a rigorous one, given the effect of adoption on the children and the wider, complex policy issues triggered by applications made by international families. The additional step of an updating report is therefore necessary given the unavailability of the usual interim appraisal.

[91] Accordingly, the appeal is allowed. I direct that a further report is to be produced by Dr Calvert (or similar suitably qualified expert). If on reviewing that report I remain satisfied that the s 11 criteria are met by the applicants, a final order will be issued.

[92] Submissions as to final wording of the order, including for the purpose of defining the scope of the further report, the method by which the report is obtained and the timing of the underlying assessment would also be of assistance.

High Court of New Zealand Decisions

Henderson v Attorney-General [2015] NZHC 1971 (19 August 2015)