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ZH v VD [2013] FJMC 121; Adoption Case 60.2012 (14 March 2013)

IN THE MAGISTRATES COURT AT NASINU

Adoption Case No. 60/2012

BETWEEN:

Z. H. & M. K.
[Applicants]

AND:

V. D.
[Respondent]

AND:

S. H.
[Infant]

RULING ON ADOPTION

1] The Applicants filed papers to Adopt infant namely S. H. Having considered the court appointed Social Welfare Officer of Nasinu as Guardian Ad litem (GAL).

2] As gathered from GAL Report, this is an interfamily adoption arrangement. The First Applicant and the biological father of the infant are cousins. Both Applicants have dual citizenship. The First Applicant has an Australian and American national while the Second Applicant has Australia and Fiji citizenship. They permanently reside in Australia. Currently, the Applicants and the child are temporarily staying at Lot 6, Barratt Street, Flagstaff for 8 months.

3] The Applicants came to Fiji in December 2011 on a visitor's visa and when the infant came into their care, they started applying for dual citizenship at the Fiji Immigration Department which was only granted to the Second Applicant on 26th September 2012. The Applicants had been granted legal guardianship of the Infant on the 26th July 2012 at Nasinu Family Court and they have continuously cared for her till to date.

4] The Infants is a 9 month old female child and has been with the Applicants since she was seven days old. The Respondents are not legally married but they are living together. They have verbally agreed to this arrangement and the written consent of the biological mother is verified by GAL.

5] Particulars of Applicants and Parties are as follows;

The First Applicant

Name: Z. H.
Date of Birth: 4/4/1984
Address: 2 Tasman Street, Hinchinbrook, Liverpool, Australia
Occupation: School teacher
Relationship to the Infant: Nephew

The Second Applicant

Name: M. K.
Date of Birth: 15/10/84
Address: 6 Baratt Street, Flagstaff
Occupation: Domestic duties
Relationship to the Infant: Nephew (through marriage)

The Respondents

The Respondent, V. D., is the biological mother of the infant. The biological father of the infant is A. N., who is related to the First Applicant. Mr. A. and V. are not legally married but they are living in a de facto relationship. V's written consent has been obtained however, both have been interviewed by our colleagues from Labasa Social Welfare Office and they have verbally agreed to this legalization process.

The Infant

Name: S. H.
Date of birth: 2/1/12
Address: Lot 6, Barratt Street, Flagstaff

S. H. is a female infant. She is nine months old and she has been in the continuous care and possession of the Applicants since one week old.

6] Motives to Adopt are mentioned in GAL reports;

The Applicant that;

• They would like the infant to grow up in better environment and have a better future
• They have been raising the infant since she was seven days old and would not want to lose the opportunity of having her as their own child
• They have continuously cared and supported the infant since she came into their care.
• They are related to the infant and they have established a strong bond and attachment with her
• They have no child in their marriage for the past seven years
• Both the Respondents have consented for this adoption and have placed their trust to the Applicants to take full and responsibility care of the infant to the best of their ability
• They want a bright future for the infant and willing to support her as long as necessary
• They are socially, financially and economically stable to provide for the infant
  

7] Welfare Officer's Assessment is as follows;

• The Applicants have been granted legal guardianship of the infant in this matter on the 26th of July 2012 at the Nasinu Magistrates Court.
• This adoption is interfamily whereby the First Applicant and the biological father of the infant are related.
• The Applicants are permanent residence of Australia. The Second Applicant and the Infant have been residing in Fiji for the past three months.
• The Applicants are mature individuals who are capable of taking care of the infant and have shown interest in the welfare of the infant – S. H.
• The Applicants are financially secured and have the means to raise the infant in a comfortable environment.
• The Applicants have the parental skills and knowledge of child care and their child rearing experience was imitated through their close bond and attachment with the infant.
• The infant is enjoying the comfort of being part of a family and a living in a conducive environment. When visited, she looks happy and healthy and has no signs of neglect.
• The Applicants have provided all necessary requirements since they received the infant and hop to continue to love and support her.
• The biological parents have agreed to this adoption arrangement and the consent of the Respondent is verified.
• There is no reward of payment for or in consideration of the adoption of the infant.
• If an adoption order is made in pursuance of this applications, the infant is to be known by the following names:
  

Surname: H.

Other Names: S

8] Recommendations of the welfare officer say;

"Based on the above assessment, the Applicants have genuine motives of adopting the infant and it is in the best interest of the child that an Adoption Order be granted in their favor. However, reservation is made with reference to Section 6 (4) of the Adoption of Infants Act (Caps 58) as quoted:

"An adoption order shall not be made in favor of any Applicant who is not resident in Fiji or in respect of any infant who is not so resident"" [ Emphasis is mine]

9] The recommendation of the welfare officer is clear that if the adoption is grated that would be the best interest of the Child, but he raises the question of residency. Mr. Kumar, the counsel for the Applicant has filed written submission in this regard and I am mindful of that.
10] The Case Authority to this question is Social Welfare Officer v Marshall [2008] FJHC 283; HBA11.2006 (7 March 2008). In that her ladyship Justice Gwen Phillips held that legislative provision cannot be by passed and if the applicants do not pass the residency test they cannot succeed the application. This means Fiji does not allow foreign/ inter-country adoption.
11] But this Social Welfare Officer v Marshall [2008] FJHC 283; HBA11.2006 (7 March 2008) case, was reviewed and revised by High Court of Fiji (Family Division) at Lautoka Appeal No; 19 of 2008L. Unfortunately, this case was not reported and this is the current authority for inter-country adoption. I am thankful to Mr. Kumar for submitting a copy of this judgment. In this appeal her ladyship Justice Jocelynne A. Scutt has dealt with the issue of residency in depth. She has considered national and international conventions such as Hague Convention on Intercountry adoption. In that she stressed (Para 4.3);

"It must be declared emphatically by this Court that an intercountry adoption regime consistent with Hague Convention on Intercountry Adoption is essential and should be in place in Fiji. That the Department of Social Welfare and its officers endeavour to be scrupulous in seeking to apply the Hague Convention and its principles (consistent with section 3 of the Constitution albeit not yet ratified nor implemented through domestic legislation implement it) is to be commended. The care and well being of children is a priority. It cannot and must not take second place to the desire, however heartfelt, genuine and child focused, of persons from elsewhere seeking to adopt Fiji children. The United Nations Convention on the Rights of the Child is a part of Fiji's law; though section 26 of the Family Law 2003. Courts effecting the law under that Act are mandated to take into account, amongst other matters: [Emphasis is mine]

(a) ...,
(b) ...,
(c) The need to protect the right of children and to promote their welfare
(d) ...,
(e) The Convention of the Rights of the Child (1989) and Convention on the
(f) Elimination of all Forms of Discrimination against Women (1979).

This Convention, too, must govern the way governmental authorities promote the wellbeing, care, security and short and long-term prospect of the country's children. The Magistrates Court, too, in seeking to ensure these principles are met is acting properly (Para 4.4) [Emphasis is mine]

However, ' best interest of the child' or children, as sought to be promoted both by the Hague Convention on Intercountry Adoption and UN Convention on the Rights of the Child, is not a mantra to be applied on the basis that because it is said, then whatever is effected under it must necessarily be 'in the best interests'. Meaning is to be given to the expression, and the particular circumstances are to be assessed against the principle not as a matter of rote or as if 'saying makes it so', but with due attention (Para 4.5)" [Emphasis is mine]

12] Thus, this is the case law on residency and I am bound to follow those principles. The best interest of the child is the paramount consideration of an adoption application. No one adopts a child as a toy or a fashion and they know the mammoth responsibility lie on them after adoption. Judicial officers cannot be too technical as they are dealing with flesh, blood and the properties of others. The applicants do not have children and this child would be a jewel of their family. As normal parents their world and dreams encompasses with the child. They have been in Fiji for considerable period and they care the child from 7 days of her age. The Welfare Officer is opinion of that the Applicants have genuine motives of adopting the infant and it is in the best interest of the child that an Adoption Order be granted in their favor. I therefore hold there would be no sinister done by allowing this application.

13] Adoption is granted as the Applicant prayed in their application.

On 14th March 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu