Time to reform adoption law

For the past decade, there has been a growing push to reform New Zealand's sixty-year-old adoption laws and bring them into step with modern society. Successive governments haven't wanted to go there - Labour because it didn't want that fight at the same time as civil unions, National because it has a large conservative Christian rump blocking any progress. But now they're going to have to finally do something, with a formal legal declaration that the law is discriinatory and not fit for purpose:

New Zealand's 61-year-old adoption laws are discriminatory and outdated, according to a new ruling.

A Human Rights Review Tribunal decision, which comes after two years of legal battles, has found the Adoption Act 1955 and the Adult Adoption Information Act 1985 contradicts the Human Rights Act and the Bill of Rights Act by discriminating against people based on sex, age, marital status and disability.

The current law stops civil union partners or same-sex de facto couples from adopting. It also places restrictions on single men trying to adopt a female child and stops anyone under the age of 25 from adopting.

The net effect of those restrictions isn't to protect children. Instead, what they mostly do is stop people being legal parents to their own kids. They enforce a tired old bigotry that modern New Zealanders simply don't agree with, and which is now explicitly inconsistent with New Zealand law. National needs to make it a priority to fix this. Sadly, I expect their bigot caucus will do everything it can to prevent that.

Member's Day

Today is a Member's Day, and one which could have some fireworks. First up we have the Sullivan Birth Certificate Bill, a Private Bill aimed at correcting a historic injustice. While it will be good to see it pass, people shouldn't have to go through the expensive process of sponsoring private legislation to fix these problems, and hopefully Parliament will be able to come up with a better solution in the future.

Following that there is the third reading of Mark Mitchell's petty Prohibition of Gang Insignia in Government Premises Bill and then the committee stage of Te Ururoa Flavell's Gambling (Gambling Harm Reduction) Amendment Bill. The latter promises to be firey - the bill was gutted in select committee, with the collaboration of its useless sponsor, and turned into a vehicle for promoting pokies. But Labour and the Greens have filed over a dozen amendments to restore the bill and strengthen its provisions. The question is whether the Maori Party will vote for what their bill was originally trying to achieve, or defend the pokie barons against restrictions...

if the House moves quickly it may make some further progress on Moana Mackey's Electricity (Renewable Preference) Amendment Bill, but I doubt it.

A worthy bill

Back in 2009, Acting Principal Family Court Judge Paul von Dadelszen called for a complete overhaul of the Adoption Act, arguing that it was outdated and discriminatory. Predictably, the government did nothing. But now Green MP Kevin Hague will be fronting a bill to totally rewrite the law:

The Member’s Bill places adoption in the Care of Children Act, as originally intended by the Law Commission, and makes the best interests of the child the fundamental principle underpinning the law. The Bill also:

• Ensures that all adoptions will be “open” unless exceptional circumstances mean there is a need to extinguish links with the child’s biological parents. While this has become common practice, the current law does not provide for it at all.
  
  
• Removes unnecessary restrictions on the kinds of people who may be considered to adopt, ensuring that adoptive parents can be selected from all the options, in the best interests of the child.
  
  
• Acknowledges, but does not regulate whāngai arrangements, which are instead controlled by traditional Iwi practice.
  
  
• Provides for the adoption of children conceived and born through altruistic surrogacy arrangements.

Its worth noting that this isn't just a Green effort; there's been a cross-party working group on it for some time, and National's Nikki Kaye has also contributed strongly to it.

This is a bill whose time has come. And it speaks volumes about the government's priorities that they are leaving it as a member's bill rather than progressing it themselves. But I guess ensuring fundamental rights for kids and adoptive parents just doesn't benefit National's rich backers enough.

Kiwis support gay adoption

The Herald reports on a poll showing that over 60% of kiwis support gay adoption:

A Herald-DigiPoll showed that 61.2 per cent of the public felt adoption law should be changed to allow all couples, including same-sex couples, to adopt while 35.1 per cent felt adoption should be kept to heterosexual couples. The survey also showed more than half of New Zealanders approved of gay marriage, while 40.5 per cent opposed it.

Labour and Greens have long called for an update to the Adoption Act 1955, which governs the rules of adoption. National felt it was not a priority.

This is a seven percent increase in support in the last six months, which is probably statistically significant. And the reason is pretty clear: people have begun talking about it. And once they do, the case for reform becomes overwhelming. No sensible person opposes same-sex couples being allowed to be legal parents to their own kids, or civil unioned couples being able to adopt when de facto couples can. Meanwhile, the "case" against - essentially smearing gays as paedophiles - is exposed as nothing more than bigotry.

There's a bill in the ballot, and I have no doubt that if it is drawn, it will pass, with only arch-bigots like Bill English and Judith Collins voting against it.

Key misses the point on same-sex adoption

John Key has signalled his support for same-sex adoption, in his usual wishy-washy "support to first reading" leaving-room-to-back-out-if-the-bigots-give-him-money way. Which is good, or at least better than his previous "we're fixing the economy, we've got no time for it (and no we can't walk and chew gum at the same time)" bullshit. At the same time, he completely misses the point of a law change:

However, the problem was there were not enough babies to adopt.

"There was less than 100 or 200 non-family adoptions last year. Because we have the domestic purposes benefit and we have a policy or try to have kids looked after by family members, there is very few adoptions available. We can have a debate over whether gay people should adopt or not, but really it's a very small group."

Key said he had "great sympathy" for people who wanted to adopt but couldn't.

Same-sex adoption isn't so much about allowing gay couples to adopt random children - its about them being able to be legal parents to their own kids. This is a question of basic parenting rights, and its appalling that we leave people in this legal black hole. A decent government would commit to fixing it as quickly as possible, not leave it for a member's bill which may or may not be drawn from the ballot.

Progress on same-sex adoption

Nikki Kaye and Kevin Hague have finally gone public on their member's bill to legalise gay adoption. It's a good move - and a necessary one. Our adoption laws were written in 1955, and are geared mainly towards stranger adoption. Stranger-adoptions are now a tiny minority, and most adoptions are about getting the paperwork for blended families. What this archaic law means is gay couples not being legal parents of their own kids. And now, thanks to the High Court, we're in the absurd situation where that discriminatory restriction probably doesn't apply to same-sex de facto couples, but does to those who are civil unioned. The law desperately needs to be changed to update it for the modern world.

Ideally, the government would rise to the challenge, and do a thorough review of adoption law (that will also fix all the other problems with the Act). But National isn't interested in progressive social legislation, so its left to Kaye and Hague to do it via a member's bill - which will increase the chance of technical mistakes being made. Its not idea, but when the government abdicates its responsibility, its what we're left with.

It will apparently be a few months before the bill is ready for the ballot. If drawn, I think it will pass - the flaws in the Act are obvious, and I don't think the bigotry of a few is going to stop Parliament from fixing them. And hopefully, it'll convince them that these issues are not toxic, and that they can move ahead on removing marriage discrimination from the books as well.

Kiwis support same-sex adoption

Our adoption laws are archaic and discriminatory. They forbid same-sex couples (and straight civilised couples) from being legal parents to their own children. The law has to change. The good news is that the public now recognises this. A Herald poll released this morning shows that a clear majority backs adoption reform, with 54.3% in favour, and only 38% opposed. There's no age or gender breakdown, but I expect it will show the same sort of gender and intergenerational divisions as the recent poll showing majority support for same-sex marriage.

The good news is that some of our political parties are in step with the public on this. Labour is committed, as are the Greens. Sadly, National is not one of them; ensuring fundamental equality for all New Zealanders simply isn't a priority for them. As for ACT, they don't care either (which shows you again that the only freedom they care about is the freedom of the rich not to pay taxes).

Fortunately, we have an election in a little over three weeks. So if you want to see this law changed, then you can vote accordingly.

The March for equality

Legalise Love, an organisation promoting same-sex marriage and equal adoption rights in New Zealand, will be holding a "march for equality" in Wellington next week:

When: 12 noon, 20 October
Where: Starts Civic Square, marching to Parliament

For more details, check out their FaceSpy event.

Legalise love

Seven years ago, Parliament passed the Civil Union Act 2004, allowing same-sex couples marriage in all but name. It was a fantastic advance for gay rights in New Zealand. At the same time, its not enough. "Marriage in all but name" isn't equality - its separate but equal, which isn't. The denial of full marriage is a denial of equality, an act of stigmatisation. It says "sure, you can have the legal rights, but not the name and the status". In addition, it also means that same-sex couples can't adopt.

Now we have a public campaign to change that: Legalise Love. They'll be advocating for change, and marching on Parliament in October. Please show them your support, and help us achieve proper equality in New Zealand.

Rising to the challenge

This morning Adoption Action announced that it was challenging the Adoption Act before the Human Rights Review Tribunal. Now it looks like Labour is rising to the challenge, with a Member's Bill to force the Law Commission to review the law.

Its a good idea. Adoption is a complex issue which needs serious policy work to get right. The Law Commission is the best body to do that work. The government could of course just announce a review - but they've said clearly that its just not a priority for them. So its left to the Opposition, who can only do such things by clunky legislation.

(This does actually suggest that in an MMP environment we need a less clunky method of gaining such reviews. Something involving a motion of the House would be ideal; it still needs majority support, but doesn't have the hassle of passing a full law through all three stages just to get a government body to obey the legislature).

Obviously, the bill will not be heard, let alone passed, in this term of Parliament. But that's not really the point. Instead, its there as an invitation for the government to act - and a signal that if they won't, Labour will.

Challenging the Adoption Act

Back in 2009, Acting Principal Family Court Judge Paul von Dadelszen argued that our adoption laws were outdated and in need of major reform. The government did nothing. The criticism was echoed last year by the High Court in its ruling that a stable de facto couple could adopt. The government still did nothing. So Adoption Action has decided to step in and do something where the government won't, by challenging the Adoption Act before the Human Rights Review Tribunal.

Adoption Action has filed a claim with the Human Rights Review Tribunal complaining that the Adoption Act 1955 and other adoption laws and practice notes are inconsistent with the anti-discrimination provisions of the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 in 15 different respects AND are inconsistent with fundamental rights and freedoms of the persons affected.

Adoption Action claims that adoption laws and practice notes discriminate against certain groups within society on the grounds of: Sex Marital status Religious or ethical belief Race or ethnic origin National origin Disability Age Sexual orientation.

Adoption Action is seeking a declaration under Part 1A Human Rights Act that various provisions of the Adoption Act and other adoption laws and practice notes are inconsistent with NZ’s anti-discrimination laws.

Discrimination is one of the few areas where we can challenge a law and have it declared inconsistent by the courts. Though this will not actually overturn the law; instead, it will force the Minister to report to Parliament on the inconsistency and what they intend to do about it. The government could of course say "nothing". But they'll have to do so explicitly and publicly, and wear the political cost of refusing to enforce basic human rights. What the challenge is really intended to do is get the government to make this a priority, rather than putting it off to appease dying moral conservatives and weirdo fundamentalists. And hopefully it will be successful.

Time to reform adoption law

Last week, in a landmark ruling, the High Court ruled that the Adoption Act's limit on joint adoption to "spouses" also applied to opposite-sex de facto couples. Its good news, which unravels some of the bigotry in our 50's era adoption law, but it has led to an oddity: When Parliament passed the Civil Union Act back in 2004, it specifically did not allow partners in a civil union to jointly adopt - meaning that there is clear Parliamentary intent that civil union partners aren't "spouses". The result is that while married and de facto opposite-sex couples can be "spouses", those in a Civil Union, who have made exactly the same legal commitment to each other as those who are married, and who enjoy exactly the same legal rights in every other respect, can't be. As for same-sex couples, they may be "spouses" if they're de facto, but cannot be if they are civilised (the ruling speculates, but confines its judgement to the actual case at hand, which is what judges are supposed to do).

This is simply perverse. Not to mention discriminatory. But that's what overblown fears of a bigot backlash gets you: a law which was intended to place all relationships on an equal legal footing has had exactly the opposite effect.

The result is disastrous for families. As pointed out a while ago, the 50's model of "stranger adoption" (on which both the Act and the bigots' fear of gay adoption is predicated) is no longer the norm. Instead, most adoptions are recognising and confirming existing family relationships - step-parents adopting their partner's kids to make it legal. But thanks to an outdated law, those in civil unions and possibly those in same-sex relationships cannot do this.

This has to change. While there's obviously scope for a test-case to explore the rights of same-sex de facto couples, the exclusion of those in civil unions is discriminatory and unjustifiable, and makes those people (gay or straight) second-class citizens. And that is unacceptable. The Greens had a bill to correct the situation; its time they hauled it out again and put it up for a vote.

In the longer term, the Act, rooted in the 1950's and an outdated model of adoption and family relationships, needs a complete rewrite. National has said this is "not a priority" for them. So someone else will have to step up and do it.

[Hat-tip: Pundit, Laws179.

Uruguay allows same-sex adoption

Uruguay has become the first country in South America to allow same-sex adoptions. Meanwhile, New Zealand lags behind. Isn't it time we reclaimed the banner of "most progressive country in the world" and legislated to end this bigotry?

What the ban on gay adoption means

The Press this morning has a good piece on what the ban on gay adoption actually means: people not being legal parents of their own kids:

Canterbury University lecturer Dr Linda-Jean Kenix believes she and her long-term partner, Jennifer Kenix, have been left "in a [legal] black hole".

The couple have two children. Linda-Jean Kenix's biological son, aged 4, was born in the United States and legally adopted by Jennifer Kenix. However, the pair's daughter, aged 3, was born in New Zealand to Jennifer, meaning Linda-Jean Kenix could not adopt her.

"We can't [adopt] because we're here in New Zealand," Linda-Jean Kenix said.

This is simply insane. These people are a family, and Kenix is the child's parent in every way that matters. But thanks to a bigoted law, this cannot be legally recognised, threatening a hideous legal mess if anything bad happens. That's bad for families, its bad for children, and it simply denies the reality of gay parents. This law needs to change.

Update (2017): This post originally contained the names of the children concerned as part of the quote. It has been drawn to my attention that the Christchurch Press has removed these names out of concern for their privacy. On request from the subject of the article, I have updated the quote to the current version in the article.

Time for a new Adoption Act

The Herald highlights a speech [PDF] yesterday by Acting Principal Family Court Judge Paul von Dadelszen in which he calls for a complete review of the Adoption Act 1955. The Judge points out that the Act was drafted in a different era, where "stranger" adoptions were the norm, adoption was seen as a "clean break" with no contact with birth parents, and only straight married couples were seen as suitable parents. But society has changed significantly since then, and none of these assumptions are true any more. Today, most adoptions are legal confirmations of existing family relationships (e.g. step-parent adoptions), open adoptions are common, and other forms of relationship are generally on an equal footing. The old Act hasn't just failed to keep pace with the times - it violates fundamental legal norms against discrimination, breaching the BORA, Human Rights Act and UN Convention on the Rights of the Child in eleven different ways.

Von Dadelszen calls for the Families Commission to conduct a complete review of the Act to bring it into the new millennium, remove discrimination, and allow same-sex, de facto and wider whanau adoption. Somewhat predictably, the Herald focuses on the same-sex angle, ignoring the real issues raised in the rest of the speech (though they do also talk about Kevin Hague's Adoption (Equity) Amendment Bill which is currently in the ballot). But its a bigger issue than that, and Hague's bill, while necessary, would solve only part of the problem. Von Dadelszen is right that the law needs a complete review. But I'm not sure that the Families Commission, with its recent high-profile bigot appointments, is the best body to do it. Over on Red Alert, Lianne Dalziel argues that the job should go to the Law Commission, who have previously looked at law in this area (giving us the Care of Children Act 2004).In the long-term, I think that is the best way to go. In the short-term, however, the need to end discrimination is pressing. If Hague's bill is drawn from the ballot today, then it should be passed. The attitudes behind the Adoption Act are those of the 50's, and its time we moved into the modern era.