GM, Re To adopt a child [2018] NZFC 3915

Published 11 December 2019

PPublication of adoption order — suppression of whakapapa— tikanga Māori— Family Court Act 1980, s 11— Adoption Act 1955, s 22— Family Court Rules 2002, rr 3 & 16— Treaty of Waitangi 1840— Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 — Takamore v Clarke [2012] NZSC 116 — Planned Parenthood of Southeastern PA v Casey 505 U.S. 833 (1992). At issue in this decision was whether the Court could restrict publication by a professional or technical publisher, in order to protect the integrity of a child's whakapapa (genealogy or lineage). The child's whakapapa was detailed in the report of Adoption Act proceedings with the result that this information was available for publication. The Family Court Act (the Act) sets out the law relating to publication of a report of proceedings under the Act. In accordance with the interests of open justice, the basic principle is that a report may be published. However, if that report includes identifying information (names and particulars likely to identify) and relates or refers to a person under 18 or a vulnerable person then the person wishing to publish the report must be granted leave to do so by the Court. The Court may then attach conditions as it sees fit, including the requirement to suppress names or other information. If a report is to be published by a genuinely professional or technical body then leave is not required, with the proviso, under s (4), that the report must not include the names of people under 18, vulnerable people and schools. As the child's whakapapa could be published with leave or without by professional or technical publishers, the Judge considered whether the Court had any further obligation to protect the child, his whānau and their whakapapa. The Judge sought out the opinion of an expert in Māori and indigenous Studies. The expert began by stating that whakapapa is a taonga (precious treasure) and as such its preservation and protection is recognised in the Treaty of Waitangi. His opinion was that whakapapa should only be published with the explicit permission of the whānau to whom it belongs. The whānau should be made aware of the consequences of publication, including how and by who it may be accessed. If permission is given and a report published, whakapapa should not be changed or edited as its power depends on accuracy. The child's whakapapa emanated from his birth father. Neither the birth father nor his family had given permission for publication, meaning it was not appropriate under tikanga Māori to publish a report of the decision granting the child's adoption. Even if whānau permission was given, it would not be right to anonymise the identity of the child and his family members named in the decision. Despite these values, there was no legal block to the decision being published, so long as the publisher follows the requirements set out in the Act. The Judge noted that there is clear tension between the Act and Māori custom. To rectify this tension the Judge considered case law. Decisions from the Supreme Court and Court of Appeal have stated that the law cannot give effect to customs which are contrary to statute. As Parliament is supreme, to restrict professional or technical publication containing the child's whakapapa, anonymised or otherwise, when such report is permitted by statute would be for the Court to act contrary to New Zealand's constitution. The Judge reluctantly came to the conclusion that the Court had no obligation to the child or his whakapapa. Publication of this adoption order, or any other decision, could not be restricted to protect whakapapa. The Court could provide no protection to the taonga of whakapapa despite protection being guaranteed by the Treaty. Judgment Date: 28 May 2018. * * * Note: Names have been changed to comply with legal requirements * * *