IN THE SUPREME COURT OF TONGA
FAMILY JURISDICTION
NUKU'ALOFA REGISTRY

FA 66 of 2014

IN THE MATTER OF
The Maintenance of Illegitimate Children Act CAP 30.

AND

IN THE MATTER OF
an application by 'ISILELI MAVAETANGI FIFITA and SEISOLOMOA FIFITA

AND

IN THE MATTER OF Andrew Konifelenisi Pi'ei, a male child born on 23 June, 2003.

BEFORE THE HON. JUSTICE CATO

Application for Letters of Adoption by Mr Isileli Mavaetangi Fifita and Mrs Seisolomoa Fifita.

[1]	I heard this application for adoption earlier today, and was concerned I had insufficient detail to make the order sought and so adjourned the application until this afternoon so that I could be provided with further information concerning authorities on grandparent applications in Tonga, and also any problems that might arise affecting the family structure including any possible inheritance issues. That information was provided, and hence I was able in the afternoon to proceed with the Application. I granted the Application and said that I would give formal reasons for doing so because applications of this kind were uncommon. 

[2]	The Applicants are in their fifties, have been married for 33 years, have six children and are in generally good health. They are the grandparents of the child of the application, a boy, whom they have been caring for since birth and who is now aged 12. They are retired and live off remittances. The application states that they want to legalise their relationship with the child so he can be recognized under law for land entitlements, and so forth. 

[3]	The natural mother supports the application. She is now married and has four other children. She has had no contact with the natural father since his birth in 2003. The child who is illegitimate and now aged 12 has never lived with her, but has been cared for by the Applicants since birth. The Applicants did this so they said the natural mother should be free to live her own life. The child knows his natural mother as his sister. The further information that I received satisfies me that there will be no dislocation of family relationships should I make this Application. There is unlikely to be any dislocation over succession problems to land either since the Applicants have two older sons who will inherit any land under Tongan law.

[4]	I note that there have been two judgments in Tonga relating to the grandparents applying to adopt grandchildren. In Lolo Funganito FA 152/2010, 27th October 2011, Scott CJ citing Re AB (an Infant)[1949] 1 All ER 709 and Parker v Pearce (1985) 4 NZFLR 150 said such applications should be made only in exceptional circumstances because of the potential to dislocate family structures. Scott CJ was concerned at the age disparity between the grandparents and the child and the fact they were living in New Zealand on welfare benefits. Further, although the applicants, the natural mother and the child were all Tongan citizens, they were all permanent residents of New Zealand and Scott CJ considered that, although he had jurisdiction to make such an order, it was more appropriate for any adoption or guardianship application to be made in that jurisdiction. More recently, Paulsen CJ in Re an application by K (FA 151/2014, 12th February 2015) considered that the overall or paramount consideration was the best interests of the child and this should not be fettered by exceptional circumstances. He cited Re T (An Adoption) [1995] 3 NZLR 373, where Samoan grandparents had successfully adopted and Re Adoption of A [1992] NZFLR 422 where Maori grandparents had been allowed to adopt a young grandchild. Although accepting that there were some advantages for the child to live with his grandparents in New Zealand principally economic and educational, he rejected the application by Tongan grandparents living in New Zealand to adopt the child because the natural mother had cared for the child for a number of years in Tonga and she, and the child's step father, not only had another child but it was considered that the child of the application must have bonded closely to his mother, stepfather and sibling. For this reason and also because following Saavedra v Solicitor - General [2013] TOCA 7 (CA) it could not be said, being an inter – country adoption that all means or caring for the child in Tonga had been exhausted, the application was dismissed. Paulsen CJ observed, however, that, but for the international consideration and Saavedra, the matter would to his mind be finely balanced. 

[5]	The issue of adoption by grandparents has been given consideration in Butterworths "Family Law in New Zealand" (Vol one, 13th edition, 2007), where it is stated at para 6.654; 

"Adoption by relatives has been criticized, as it might be said to extinguish relationships on one side of the child's family, and distort relationships on the other. In practice, the most common sub category of applications for adoption by relatives has been application s by grandparents – a consequence of which can be that the natural mother becomes, from a purely legal point of view, the sister of her own child. Such falsification and readjustments of relationships is obviously highly questionable, an in the majority of situations guardianship would appear to be a more appropriate response"

[6]	That said, the authors acknowledge that in Maori and Pacific Island applications the perceived disadvantages of the legal readjustment of family relationships are not so relevant, presumably because of the extended family relationships are not so relevant, presumably because of the extended family relationship. Applications by grandparents have been successful in appropriate circumstances, in New Zealand as is seen in Re T and Re A involving a Samoan and a Maori application. Other instances in New Zealand where grandparent applications have been successful are M v Kendall [1992] NZFLR 63 where a grandmother had cared for boys from birth, they understood her to be their mother and the boys regarded her as their mother and their mother and sisters as their own sisters; and Re Adoption of Q (1993) 10 FRNZ 340 where grandparents had provided their granddaughter with emotional and physical security, the mother having consented to the application and being unable to provide adequate care and her husband having a history of sexual crimes against children. The Judge, in Q, granted the application because of the sensitivity of the applicants and their awareness of the child's needs and after being satisfied that the boy was unlikely to be confused as to the family relationships. 

[7]	I consider that, in this case, it is plainly in the best interests or welfare of the child to have his status legitimized by adoption. First, his grandparents are still young and able to effectively continue to operate as his parents and caregivers in the fullest sense as they have been in the past. There is, in my view, no clear age or health impediment to their being suitable to adopt and the child has been with them for about 12 years. The Child regards the Applicants as his parents and not his mother whom he regards as his sister. He has not lived with his natural mother. No doubt, however, as is the Tongan way, he will continue to be supported by and in close association with the natural mother and her four children from a subsequent marriage in the future. That in my view, is a good thing for his development. There will, I am satisfied, having seen the parties and after receiving additional information from the Guardian ad Litem, be no dislocation to any family relationship by making this order. In my view, granting this application is doing no more than reflecting the practical reality of this child's life namely the Applicants have been his parents providing all his needs throughout his young life, and it is appropriate and in his best interest that they be legally recognized as such, and he as their son . 

[8]	I accordingly grant the orders sought which include a change of the surname of the child to that of the Applicants. 

[9]	As a footnote it should be noted that in the case of an application by K for adoption, consider above, involving an application by adoption of grandparents who were overseas, Paulsen J had adjourned the case to enable inquiries to be made on the issue of Tongan adoption and guardianship orders and a child being allowed by New Zealand immigration to live permanently in New Zealand. Very recently, in Pupungatoa and Fonua (FA137/2015, 4th January 2016), I had occasion to also ask for further information on the effect of making a guardianship order where it was proposed to have the the Tongan child reside in Australia with his caregivers, Tongan who were permanently resident, there. In a report which had been filed with the application from Australian social workers, some concerns had been expressed about the child's residence and Australian immigration. No satisfactory or certain answer could be provided by the Guardian ad Litem which troubled me because guardianship as with adoption applications, are concerned with the best interests of the child, and I have difficulty in seeing how it can be said to be in the best interests of a child to make order intended to enable a child to reside with an overseas caregiver where his or her immigration status is uncertain and indeed permanent residence may not be granted for the child to do so. In any event, the Application for guardianship was dismissed for Saavedra reasons, namely the child had appropriate caregivers namely his parents and siblings in Tonga. I consider, however, that in these inter-jurisdiction or country applications, either for adoption or guardianship, the Guardian ad Litem should provide the Court with accurate and most importantly up to date information on immigration issues as they will affect the intended residence of the child. These may vary considerably from jurisdiction to jurisdiction, and rules may change from time to time, also. In my view, it should not be left to chance that residence will be satisfied consequent upon an order being made by a Tongan court.

C. B. Cato
J U D G E

DATED: 20 JANUARY 2016