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The Adoption Act 1955 – due for reform - April 2011

The Adoption Act 1955 is a product of its time and needs to be updated to reflect a change in society. The result of such out-dated legislation remaining on the statute books means that a joint application can be made to adopt a child if the applicants are married or are a man and woman in a "stable and committed” de facto relationship.  Applicants cannot apply jointly to adopt a child if they are a man and woman or a same sex couple who have entered a Civil Union.

The issue of whether a same sex couple in a stable committed de facto relationship can adopt a child will be a future test case for the courts to consider.

The Adoption Act 1955 uses the expression "Husband and Wife” and "Spouse” which traditionally refers to a spouse within a marriage.  An Adoption Order states that a child was born in "lawful wedlock”. There has been ongoing discussion in reported case law about the extent to which unmarried couples are able to adopt children. Maori cultural factors, for example, have been used to allow an unmarried Maori couple to adopt a child from their whanau.  Because the Civil Union Act 2004 does not amend the Adoption Act 1955, the eligibility of Civil Union spouses to adopt does not equate with that of a married couple in regards to adoption.

In recent times the case of Re AMM (High Court, 24 June 2010, Justice Wild and Justice Simon France) granted an appeal by a heterosexual de facto couple who had been in a settled de facto relationship for nearly 10 years and wanted to adopt a child. The court specifically stated that the case was not about whether "spouses” can be interpreted to cover any other type of relationship such as a same sex couple.

Applications can be made by individuals but it seems that preference is given to married couples under the Act. There is a restriction on the adoption of female children from a sole male applicant unless special circumstances exist.  This restriction may have been enacted to prevent possible sexual exploitation of children and perhaps recorded the belief in society at that time that sole males could not effectively parent female children.

In 2000 the Law Commission looked at the law on adoption and questioned whether a whole class of people should be ineligible to adopt a child simply on the basis of their marital status.  The Commission has also recommended that de facto couples and same sex couples should be eligible to adopt a child jointly and criticised the restriction on adoption of female children by single males. Until the Law Commission proposals are enacted into law the outdated Adoption Act continues in force.

This means that same sex or civil unionised couples who wish to parent children that are not biologically their own must instead use day to day parenting and guardianship orders to formalise their care of the child. Please contact Allison Adams at LawWorks allison@lawworksnz.com  or George Ireland at LawWorks george@lawworksnz.com if you would like more information about the legal matters raised in this article.

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