Norman Elliott: Consider children's rights too

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Family lawyer Norman Elliott argues that changes to adoption ought not be made in a bill about marriage.

Same-sex adoption changes should come after full debate rather than follow marriage changes. Photo / Getty Images
Same-sex adoption changes should come after full debate rather than follow marriage changes. Photo / Getty Images

The government administration select committee report to Parliament recommends the passing of the Marriage (Definition of Marriage) Amendment Bill with certain amendments.

It also recommends consequential amendments to 14 other statutes, including the Adoption Act 1955 "to ensure that there will be no legal differences between different kinds of marriages". If the recommendations are approved by Parliament, same-sex adoption will become law without further inquiry.

The committee notes that a homosexual or transgender person may legally adopt a child, but same-sex couples may not. It comments that such a position seems absurd. The amendments it recommends "will ensure that married couples are eligible to adopt, regardless of the gender of the adoptive parents". There is emphasis on the rights of adults but no mention of the interests of children.

We have the extraordinary situation of a significant change to a long-standing law affecting children being brought about by a bill concerned with the perceived need for same-sex partners to have equality with married couples. I believe New Zealanders expect the interests of children to be considered at the forefront of any legislation that directly affects them. This example suggests that in reality it is the interests of adults rather than children which come first.

The Adoption Act was passed in 1955 and is well overdue for review. One of its deficiencies is that it does not require the interests of children to be paramount in the application of the act. More recent family law statutes such as the Care of Children Act 2004 do. This lack is in conflict with the United Nations Convention on the Rights of the Child to which New Zealand is a party.

Article 21 begins "States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration ..." The current act merely requires the court to be satisfied that the adoption will promote the interests of the child.

In its 2000 Report No 65 entitled "Adoption and its Alternatives" the Law Commission stated it was in their view desirable that Parliament make plain that applications for adoption orders by same-sex couples should be judged by the essential question as to what is in the child's best interests as a matter of fact, rather than by making assumptions as to eligibility of the applicants as a matter of law. It also stated there is no "right" of a same-sex couple to secure an adoption order - the relevant right is that of the child to the best arrangement that can be secured.

As well as allowing adoption by married couples the present act allows an individual person to adopt a child, although there are restrictions on a male adopting a female child. There are children living in families where the parent figures are same-sex couples, one of whom is the legal adoptive parent.

Because this situation is allowed under the law it might be suggested it is only a small step to allow both adults to become adoptive parents. A mother or a father bringing up a child on their own is common in our society. That is very different however from a child having two legal fathers or two legal mothers, the consequence of same-sex adoption.

Overall the Law Commission's view was that there was not sufficient evidence to establish that adoption by same-sex adopters cannot be in the best interests of the child so as to justify disqualifying same-sex couples from being eligible to apply. There were some reservations expressed by the commission. While stating that research evidence suggested that on the whole children do not experience any negative consequences of being raised by lesbian mothers, there were not sufficient studies to effectively evaluate the impact of male homosexual parenting on adopted children.

There is no suggestion in the select committee's report that the recommended changes to the Adoption Act are as a result of consideration of the Law Commission's report. Even if there was, I suggest it would be irresponsible of Parliament to proceed with the changes on the basis of recommendations in a report which is now 12 years old without public debate and full consideration of up to date research.

An amended Adoption Act that gives first consideration to a child's best interests might also contain some guiding principles to help the Family Court in its decision-making. One might be that there should be some involvement of opposite gender role models in the life of the child.

There has not been any real public debate about whether the Adoption Act should be changed to allow same-sex adoption. The debate so far has been around same-sex couples being able to marry. That has been an adult-focused debate. It is not the same issue as whether two persons of the same-sex should be authorised by law to adopt a child.

It would be irresponsible of Parliament and an injustice to children to approve a change to long-established adoption law on the coat tails of a change to marriage law. Such a change should only come about after due parliamentary process and full public debate.

Norman Elliott is an Auckland lawyer who has represented children in parenting and adoption cases in the Family Court. He is also deputy chair of the Auckland Catholic diocese Justice and Peace Commission.

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- NZ Herald

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