Francis v Shalendra [2012] FJMC 8; Adoption Case 06.2011 (2 February 2012)

IN THE MAGISTRATES COURT AT NASINU- FAMILY DIVISION

Adoption Case No. 06/2011

BETWEEN:

FRANCIS (Full name is suppressed)
Applicants

AND:

SHALENDRA (Full name is suppressed)
Respondent

AND:

DEVI (Full name is suppressed)
Infant

Mr. Ronald Singh (Patel Sharma Lawyers) for the Applicants.
The Respondent appeared in person.

Judgment on Adoption

“We are guilty, Of many errors and many faults,
But our worst crime Is abandoning the children,
Neglecting the fountain of life.
Many of the things we need can wait.
The child cannot.
Right now is the time
Bones are being formed, Blood is being made,
Senses are being developed.
To the child we cannot answer ‘Tomorrow’.
The child’s name is ‘Today’.” by
Gabriela Mistral, Chilean Nobel Laureate Poet

1] This case was emanated by filing of Adoption papers by the applicants for child namely DEVI.

2] There are two applicants and the particulars of applicants are as follows;

• Name of Applicant 1: FRANCIS(Full name is suppressed) (father’s name Prem Chand).
  

Address: Lot 1, Duvula Road, Nadera, Nasinu, Fiji.

Occupation: Contract Supervisor

Date of Birth: 02.08.1974

Relationship of Infant: Paternal Uncle

• Name of Applicant 2: NIRUPA (Full name is suppressed) also known as NIRUPA DEVI CHAND (father’s name Net Ram).
  

Address: Lot 1, Duvula Road, Nadera, Nasinu, Fiji.

Occupation: Cashier

Date of Birth: 10.7.1981

Relationship to Infant: Paternal Aunty

3] They are Fiji Citizens and resident of Fiji and New Zealand. 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 Infants particulars are as follows;

• Name in Full: DEVI(Full name is suppressed)
• The infant is of a female sex
• The infant was born on 24th July 2001 and now over ten years.
• Name of Father of the infant: SHALENDRA RAI PRASAD father’s name Shiu Prasad.
  
• Address: 8 Miles, Nasinu, Fiji.
  
• Name of Mother: DEVI (father’s name Sohan Lal) she is no more, had committed suicide.
  
• Address: 8 Miles, Nasinu, Fiji.
  

5] The current guardian of the infants is her grandmother SHAKUNTALA(Full name is suppressed).

6] Along with application, Applicants have produced their marriage certificate and infant’s birth certificate. They are legally married to each other on 15th March 2002. They further mentioned that the infant has been continuously in their own joint care and possession since the infant was 3 years old when her mother had passed away. When the infant attained the age of 7 years in 2008 they had acquired work visa for New Zealand and had travelled to and from Fiji on a regular basis and from 2010 acquired New Zealand residence. This had provided them continue to take care and responsibility for the infant. In their application they have not made a previous application Order in respect of the infant. Further, 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 had taken part in the arrangements for placing the infant in our care and possession. They prayed adoption in respect of this child.

7] Apart from those documents, the applicants tendered an affidavit of natural father consenting to the adoption order. It comprises the death certificate of the Natural mother and marriage certificate of the natural parents.

8] But No evidence was led in the trial, since there is no party to contest this matter, Court requested to file an affidavit of Applicants to support their application as there should be substantial evidence before this court, which they did on 30th January 2012.

The motive of the adoption is clear. This is an inter family adoption. According to the Applicants, since they have no child, the opportunity of raising this infant triggered them to adopt her as their own, hence the reason for adoption. They further stated that they had always wanted to have a child. The Applicants also stated that as the First Applicant and the Respondent are cousins and this is an inter-family arrangement. According to the Applicants, the infant is their center of attraction and they also want the child to own their finance, property later in lives and raise her to be a good child. They also shared that the infant would make their bond stronger and also one whom the Applicants would rely on later in lives. The child was interviewed by this court and he consented to the application and willing to reside in New Zealand with the Applicants. Hence, this Court cannot see any sinister by allowing this application.

9] Upon the application, Court appointed Social Welfare Officer of Nasinu as Guardian Ad Litem. Court Called comprehensive Report and it reveals followings.

“This is an inter-family adoption whereas the Second Applicant and the Respondent are cousins. The infant has been continuously cared for by the Applicant since she was two (2) years. The infant is a female and she is 11 years old. The Applicants have been married for past ten years and they have no issue of their own. According to them, they had always wanted to have a child of their own. When the infant was brought into their attention, it was an opportunity for them to grasp and of which they did not want to lose.

All regal requirements of the Adoption of Infant Act Cap 58 have been met with exception of Section 6 (4). The Applicants have been residing in New Zealand for the past four (4) years and become permanent residence of New Zealand.”

10] The Social Welfare officer recommends the adoption but she reserves her comment on Section 6(4) of the Adoption of Infants Act [Cap 58]. Section 6 normally deals with the restriction of the Adoption Orders. I reproduce it for clarity. It says;

“6. (1) An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants-

(a) has attained the age of twenty-five and is at least twenty-one years older than the infant in respect of whom the application is made; or

(b) has attained the age of twenty-one and is a relative of the infant, or

(c) is the mother or father of the infant.

(2) An adoption order shall not be made in any case where the sole applicant is a male and the infant in respect of whom the application is made is a female unless the court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order.

(3) An adoption order shall not be made upon the application of one of two spouses without the consent of the other of them:

Provided that the court may dispense with any consent required by this subsection if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving such consent or that the spouses have separated and are living apart and that the separation is likely to be permanent.

(4) 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” ( Emphasis Added)

11] It is seen that the Applicants have obtained their Permanent Residency in New Zealand recently after filing this application on 12th January 2012. Thus, the Applicants are not residents of Fiji and under section 6(4) of the said Act there is patent impediment to obtain an adoption order. It is to be noted this is not first time these type of application had copped up in Fiji.

12] In Re Adoption Application No. 52/1951, (1951) 2 All ER. 931, [1952] 1 Ch. 16, His Lordship, Justice Harman said, in interpreting the similar provision which applied in England;

"The court must be able to postulate at the critical date that the applicant is resident, and that is a question of fact. Residence denotes some degree of permanence. It does not necessarily mean the applicant has a home of his own, but that he has a settled headquarters in this country. It seems dangerous to try to define what is meant by residence. It is very fortunate that it is not possible to do so, but, in my judgment, the question before the court is in every such case whether the applicant is a person who resides in this country. In the present case I can only answer that question in the case of the wife by holding that she is not resident in this county; she is merely a sojourner here during a period of leave; she is resident in Nigeria, where her husband’s duties are, and whether, in pursuance of her wifely duties, she accompanies him. I do not think either of the applicants is resident in England at present."

13] In Fiji, His Lordship Justice Byrne address the similar question in Re S (an Infant) [1997] FJHC 183; [1997] 43 FLR 292 (24 November 1997) [1997] 43 FLR 292 , The High Court, held “the concept of residency involves an element of permanent settlement for a foreseeable period of time and not merely some temporary period or sojourn” and accordingly the application failed. This type of application again dismissed in Social Welfare Officer v Marshall [2008] FJHC 283; HBA11.2006 (7 March 2008).

14] It is so regretted that this provision hindrance the application of Adoption at this point. In HBJ0027 of 1995 The State v. Attorney-General of Fiji ex-parte: Joseph Nainima delivered on 21st October 1997 the court held that it is the function of the Courts only to interpret the law but not to amend it. Therefore this court cannot amend or deviate this procedure. Thus, my hands are tight in this issue.

15] In line with the current regime of Adoption, I now turn to consider right of Child, that is international perceptive on children’s welfare.

16] 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.”

17] 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.”

18] 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.”

19] The Applicants have chosen New Zealand as their residence. It is there basic Human Right and Article 23 of the said Covenant recognises the family is the natural and fundamental, basic unit of the society and it need to be protected by the State. Thus, protection of law must be there in line with the basic international norms. The Applicant must not be declined their right because they obtained a permanent residency in New Zealand.

20] It should be noted that law and society must see that children are gifts of creation, a hope for the future rest on children’s protection, safety and well being. Court current responsibility is to protect these basic norms. “The best interests standard necessarily invites the judge to rely on his or her own values and biases to decide the case in whatever way the judge thinks best. Even the most basic factors are left for the judge to figure out as upper guardian of the children.

21] In Rex v. Devall in 1763[1763] EngR 90; , (1763) 97 Eng. Rep. 913, 914 (K.B.), court ruled that any decision regarding custody was left to the discretion of the judges, “according to the circumstances that shall appear before them.

22] The central question to be determined by the legislator is that section 6(4) restriction is "reasonable”. Is it need to be amended considering the public interest or to protect the rights of others, specially children? It may well be that Section 6(4) of the Adoption of Infants Act should be amended at least to provide that any former Fijian national now a naturalised citizen of a country with whom Fiji has always had a friendly relationship should be allowed to adopt an infant if that would be in the interests of the welfare of the child.

23] The Applicant relies on the judgment of Her Worship Madam Anjala Wati (As she then was)'s Suva family Court Case Number 14 of 2009. In that event similar question arose and considering the Citizens of Fiji, the Adoption Order was granted. In the instant case also the Applicants also are citizens of Fiji. Thus, Applicants ask an adoption order, but I note in Re S (an Infant) (Supra) His Lordship Justice Byrne stressed;

" I was informed by counsel that Magistrates in the Magistrate's Court in Suva if not elsewhere are regularly making Adoption Orders in cases whose facts are for practical purposes similar to those in the instant case. If this be so then I consider they are acting wrongly and the practice should cease immediately"

24] Therefore this application cannot be sustained. But I note the New Zealand recognises Foreign Adoption[1]. In line with the above paramount interest of the children, I wish to act under Section 13(1) of the Adoption of Infants Act [Cap 58]. I make following orders;

i) Permanent Custody of the Child to be with the Applicants

ii) Applicants can take the child out of jurisdiction for adoption purpose.

iii) The Safety, Protection, well being of the child to be with the Applicants.

iv) The Applicant should file custody application in New Zealand and regularise the proceedings within next two years.

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

Orders Accordingly.

On 02nd February 2012 at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu

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^[1] http://www.icanz.gen.nz/index.html (accessed on 30-01-2012) Inter Country Adoption New Zealand (known as "I-CANZ") is a not-for-profit, charitable organisation, which specializes in inter-country adoption. They are accredited by the New Zealand Government to help orphaned or abandoned children find families in New Zealand.