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Re Bayissa Afewerek [2020] NZFC 5878

Published 16 September 2021

Application for adoption — half-siblings — intercountry adoption — fragile state — evidence of age — baptismal certificate — Citizenship Act 1977, s 3(2) — Adoption Act 1955, ss 2, 4, 8 & 11 — Immigration Act 2009, s 151 — Evidence Act 2006, s 126(3) — Adoption Regulations 1959, reg 8(2) — Family Court Rules 2002, r 249 — United Nations Conventions on the Rights of the Child, arts 1, 11 & 21 — Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (Hague Adoption Convention) — Re Application by AMM and KJO to adopt a child [2010] NZFLR 629 (HC) — Norman v Attorney-General [2020] NZHC 336 — Grant v McDermott [2014] 2 NZLR 696 — Re Norman [2019] NZFC 7023. This was an application for an adoption order in favour of the applicant for his two younger half-sisters. The applicant, who had been born in Ethiopia and grew up in Sudan, had come to New Zealand under his older sister's refugee family quota and was now a New Zealand citizen. His younger half-sisters were born in Sudan and were living there with a family friend. The main issue for determination was the ages of the two half-sisters. If they were over the age of 20, the Adoption Act did not apply and the applications could not be considered by the Court. Although this was an international adoption application, the Adoption (Intercountry) Act did not apply as Sudan is not a signatory to the Hague Adoption Convention. Usually in adoption applications, a birth certificate is required to be produced, and the child to be present, to ensure the correct child is being adopted. Sudan, where the children were living, is ranked high in the Fragile States Index and no birth certificates had been issued for either child. The documentation adduced to show their ages were baptismal certificates, which are considered by Immigration New Zealand to be poor evidence as they are not issued from a Central Authority. Evidence was heard from a member of the international casework team at Oranga Tamariki that only one in four births worldwide are registered, particularly in displaced populations, and in Sudan it is almost impossible to obtain accurate identity documents. This was a global issue, especially for the United Nations High Commissioner for Refugees in relation to asylum seekers. The Judge was not satisfied that the evidence presented was reliable enough to establish that the children were under the age of 20, and thus the Court did not have the jurisdiction to consider the adoption applications. The applications were therefore declined. Judgment Date: 24 July 2020. * * * Note: names have been changed to comply with legal requirements. * * *