Re Piripi [2019] NZFC 9431

Published 19 June 2020

Application to adopt female child — solo male applicant — fit and proper person — welfare and interests of child — tikanga and whakapapa — freedom from discrimination — Adoption Act 1955, ss 3, 4 & 11 — New Zealand Bill of Rights Act 1990, s 19 — Adoption Action v Attorney-General [2016] NZFLR 113 — Re an application by A [2004] NZFLR 865 — Adoption Gordon v Archer [2019] NZHC 184 — Re WRE (1973) 14 MCD 90. This was an application by a young man to adopt his niece who he had been caring for since she was three months old. The applicant had previously been in a relationship in which he and his partner had fostered the girl. Their relationship had since ended, and the applicant wished to adopt the child on his own. The issue in this case revolved around s 4(2) of the Adoption Act (the Act), which stipulates that a solo male applicant will not be granted adoption of a female child unless there are special circumstances which the Court thinks justify granting an adoption order. Counsel for the applicant argued that s 4(2) is a discriminatory provision as it discriminates based on a person's gender and is therefore contrary to the New Zealand Bill of Rights Act (NZBORA). Counsel also argued that "special circumstances" should be given a wide and liberal construction. The biological parents of the child were supportive of the adoption application, especially given the iwi-affiliations on the paternal side meaning the applicant placed emphasis on the importance of tikanga and whakapapa for the child. The Court considered the NZBORA argument but, despite the provision being found by the Human Rights Review Tribunal in Adoption Action v Attorney-General to be discriminatory, it was still a hurdle that the applicant had to overcome. The Court considered the special circumstances to be the context of the applicant's and the biological father's dislocated upbringings in relation to parental and sibling relationships, and the applicant having had a stable foster environment which contributed immensely to his sense of belonging, the dysfunctional circumstances into which the girl was born and the ability of the applicant to ensure a secure and loving upbringing while maintaining a generational family bond. Given the finding of special circumstances under s 4(2), the s 11 test had to be met. This included a requirement for the applicant to be a "fit and proper person" to care for the child, that the welfare and interests of the child would be met by the adoption, and that there were no religious restrictions or conditions imposed by the parents. Given the applicant's secure and well-paid employment, his devotion to and existing relationship with the child, and his desire to ensure a settled environment for the child to grow up in, the Court held the s 11 test was met. A final hearing date was set down for the making of the adoption order. Judgment Date: 13 November 2019. * * * Note: names have been changed to comply with legal requirements. * * *