Jemesa v Meli [2012] FJMC 34; Adoption Case 10.2012 (1 March 2012)

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1] This case was emanated by filing of Adoption papers by the applicants for child namely ORISI (Full Name is suppressed)..

Name of First Applicant:	JEMESA (Full Name is suppressed).

Address:	of Lot 3, Madhavan Street, Wainivula, Suva.

Occupation:	Soldier (British Army)

Date of Birth:	7 March 1974
Relationship of Infant:	Uncle

Name of Second Applicant:	LANIANA (Full Name is suppressed).

Address:	of Lot 3, Madhavan Street, Wainivula, Suva

Occupation:	Domestic Duties

Date of Birth:	26 November 1971

Relationship to Infant:	Aunt

3] They are Fiji Citizens and resident of Fiji and United Kingdom. They are married to each other and marriage certificate is attached to the application.

4] The Applicants filed this application to adopt the child and Infant’s particulars are as follows;

Name of Mother:	SALANIETA (Full Name is suppressed).
Address:	of Lot 3, Madhavan Street, Wainivula, Suva

Occupation:	Domestic Duties

Name of Father:	MELI (Full Name is suppressed).
Address:	of Lot 3, Madhavan Street, Wainivula, Suva

Occupation:	Soldier

5] Along with application, Applicants have produced their marriage certificate and infant’s birth certificate. They are legally married to each other on 04th October 1997. They further mentioned that the infant has been continuously in their own care and possession since 05th September 2011. Neither of them has made a previous application for an Adoption Order in respect of the infant. They have not received or given any reward or payment for, or in consideration of, the adoption of the infant or for giving any consent to the making of the Adoption Order. As far as they know, no person or body has taken part in the arrangements for placing the infant in our care and possession. They prayed adoption in respect of this child.

6] Apart from those documents, the applicants tendered affidavits verifying the adoption application.

7] Upon the application, court appointed Social welfare Officer as guardian ad litem. Court called Report from the GAL. According to the Social Welfare Officer’s Report, This adoption is inter-family whereby the First Applicant and the First Respondent are biological brothers. The First Applicant is a British Army Officer currently serving in the United Kingdom. The Second Applicant is currently in the country with the Infant. The Infant is five months old and has been in the continuous care of the Second Applicant for the past three weeks. Both the Respondent has consented for the adoption. Both Applicants are Fiji Citizen but they are residing in UK due to their work assignment. According to their interview, they have always been close and continue to maintain their close relationship. The First Applicant is the elder brother of the First Respondent. The Respondents has five children and the Infant is their youngest son. The Infant, Orisi (Full Name is suppressed) was born on 3rd of September, 2011 and the Applicants have been supporting him since his birth. The Second Applicant lives with the child in Fiji for the past three weeks while the First Applicant supporting them from abroad. The Applicants are legally married and have been together for 15 years without any children. The Applicants now wish to include the infant. Orisi as part of their family and legalize their role as parents.

8] But the Social Welfare Officer of Nasinu as Guardian Ad Litem made reservation as follows;

“Based on the above assessment and findings, it was noted that both Applicants have been desirous to adopt the Infant and are desperate for this adoption with their full expectation of caring and loving the Infant for as long as necessary. However, I have reservations on the probationary period of the Applicants as specify on Section 15 of the Adoption of Infant Act Cap. 58.”

9] The Social Welfare officer recommends the adoption but she made reservation on Section 15 of the Adoption of Infants Act [Cap 58]. Section 15 says;

“15. (1) An adoption order shall not be made m the case of any Infant unless the infant has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order.

(2) An interim order under the provisions of section 14 shall not be made in any case where the making of an adoption order would be unlawful by virtue of the provisions of subsection (1).”

10] It is seen that the Applicants for the time being resident of UK as first applicant works for the British Army. But they are Fiji citizens. The Social Welfare officer has not addressed issue with relating to Section 6(4) of the said Act. That is “An adoption order shall not be made in favour of any applicant who is not resident in Fiji or in respect of any infant who is not so resident”

11] But this issue I have addressed in my judgment Francis v Shalendra [2012] FJMC 8; Adoption Case 06.2011 (2 February 2012). I do not want to deviate that stance.
12] In line with the current regime of Adoption, I now turn to consider right of Child, that is international perceptive on children’s welfare.

13] Article 3 of the Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2 1990, are as follows;

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Emphasis added)

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.”

14] Article 12 of the International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A-(XXI)of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49, read as follows;

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”

15] Article 23 of the International Covenant on Civil and Political Rights provides;

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.”

16] Therefore by choosing to working in UK as an Army Officer does not hinder to get adoption order in line with above international perceptive.

17] The Social Welfare Officer Asked that probationary period to be imposed. But I note that the Applicants said the child is being cared by them from 05th September 2011. The child was born 03rd September 2011. The Definition of “Care” according to Macmillan Dictionary is “ to be interested in someone and want them to be well and happy"[1]. The Social Welfare Officer's reservation under section 15 is unclear but Her Report says that the child has been caring for three weeks. According to that definition, this court thinks the Care need not be physical. However, according to the application, Child is being cared over 3 months by the Applicant. Therefore I hold there is no base for reservation any probationary period. But since the Applicants are not resident of Fiji, they cannot invoke adoption jurisdiction from this court. It is prohibited by section 6(4) of the Adoption of Infants Act [Cap 58]. But under Section 14(1) gives power to make interim order. It gives court to grant custody orders.

"14. (1) Upon any application for an adoption order, the court may postpone the determination of the application and may make an interim order (which shall not be an adoption order for the purposes of this Act) giving the custody of the infant to the applicant for a period not exceeding two years by way of a probationary period upon such terms as regards provision for the maintenance and education and supervision of the welfare of the infant and otherwise as the court may think fit."

18] The Following 1945 Noble winning poem says the children cannot wait and they need right care and decision then and there.

19] Therefore immediate order is needed. It should be noted that UK recognises Foreign Adoption[3]. I cannot see any impediment for such order. In line with the above paramount interest of the children, I wish to act under Section 14(1) of the Adoption of Infants Act [Cap 58]. I therefore make following orders;

iv) The Applicant should file Adoption application in United Kingdom and regularise the proceedings within next two years.

v) Certified copy of Adoption Order of United Kingdom's Court should be filed to this case after the adoption order made.

Magistrates Court of Fiji

Jemesa v Meli [2012] FJMC 34; Adoption Case 10.2012 (1 March 2012)