Louisa Wall: The facts on my marriage bill

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Present law allows only 'spouses' to make a joint application to adopt but hopefully this anomaly will soon go

At the moment, the second partner is normally made an additional guardian. Photo / Getty Images
At the moment, the second partner is normally made an additional guardian. Photo / Getty Images

Following the second reading of my marriage bill last week, there has been a concentrated move from those opposed to my bill to argue that it will "enable" gay adoption. Such assertions expose a complete, and perhaps deliberate, lack of understanding of the adoption system we have in New Zealand. Here are the facts:

Gay couples adopt children now and have done so for at least the past 10 years. Unfortunately the law as worded only allows one person to be legally named as the child's parent.

The Adoption Act 1955 does not have as its purpose the best interests of the child, unlike the Care of Children Act 2004, which makes the welfare and best interests of the child paramount. This is in conflict with New Zealand's obligations under the United Nations Convention on the Rights of the Child.

Under the Adoption Act 1955 a single person can adopt a child, but only "spouses" can make a joint application to adopt.

The Law Commission has acknowledged that in 1955 it was unlikely that Parliament would have contemplated permitting adoption by unmarried couples. However, the Law Commission recognises that in the past 57 years social mores have changed dramatically with the number of de facto relationships (which includes same-sex couples), the number of children brought up in de facto relationships, the number of civil unions and the rising number of separations and dissolutions of marriage.

The term "spouse" is generally applied to each partner of a legally registered marriage under the Marriage Act 1955

A gay couple or a couple living in a de facto relationship do co-parent children but because of the wording of the 1955 Adoption Act only one of the couple has been able to legally adopt and therefore be named on the child's birth certificate. The Family Court has referred to the Adoption Act as "antiquated".

The second partner is normally made an additional guardian under the Care of Children Act 2004 to recognise their parenting role. This is a lesser status than the permanence of the status as a legally recognised parent. Such status is not recorded on the birth certificate.

All adoptions are administered through the Adoption Services Unit at Child Youth and Family (CYF). The focus by CYF, as stated on its website, is keeping what is best for children at the centre of any decision. Birth parents are involved in the decision about who they want to adopt their child and a social worker is involved in the assessment process.

In its 2000 report, "Adoption and Its Alternatives", the Law Commission dealt in detail with historical and current adoption practices and the need to amend the law to reflect those practices and make the interests of the child paramount. The Law Commission recommended that there should be no prohibition on de facto or same sex couples adopting jointly as the emphasis in the process should be on suitability not eligibility.

The Care of Children Act 2004 was an outcome of the report but it did not address adoption.

Addressing adoption law reform is much wider than the eligibility criteria for joint applications and is currently the subject of two members bills.

The only change that will occur if my bill passes is that if a couple marry, they will be deemed "spouses" and they qualify as joint applicants for an adoption order. That means both parents will have the same status under the law and both names will be on the child's birth certificate.

Globally, a number of countries and states that do not yet have marriage equality permit joint adoption by same-sex couples, including most of the UK, Western Australia, NSW and ACT and 11 US states.

What my bill will do is allow a couple who marry and have been assessed and approved as adoptive parents to make a joint application that properly recognises the reality of their relationship with the child they jointly parent. It will also mean that non-birth parents who have raised children jointly with the birth parent can be recognised legally for that role on the child's birth certificate. The ability to marry and be a "spouse" will mean a long-standing anomaly in the wording of the antiquated Adoption Act will be overcome. The result will be stronger and more stable families.

Louisa Wall is MP for Manurewa and sponsor of the Marriage (Definition of Marriage) Amendment Bill.

Dialogue: Contributions are welcome and should be 600-800 words. Send your submission to dialogue@nzherald.co.nz. Text may be edited and used in digital formats as well as on paper.

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- NZ Herald

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