In re Noeleen Aba Miria (an infant) [2007] SBHC 138; HCSI-CC 482 of 2006 (1 November 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Number 482 of 2006

In the Matter of: Noeleen Aiba Miria (An Infant)

And

In the Matter of: The Adoption Act, 1958 (UK)

(Palmer CJ.)

Date of Hearing: 12th September 2007
Date of Judgement: 1st November 2007

Palmer CJ.:

The infant Noeleen Aiba Miria had been under the care and responsibility of Robert Bokelema and Laura Bokelema, ("the Applicants") since her birth on 6th September 2001 in Honiara. At the time of her birth, the mother, Laura Miria was residing with the Applicants. Laura Bokelema is Laura Miria’s aunty from her father’s side. She resided with the Applicants in Honiara in July 2001 and continued to stay with them in Papua New Guinea from 2002 to 2004 when they moved to Papua New Guinea for employment. When the Applicants returned to Honiara in 2005 she remained behind as she had secured employment with Airways Motel, Port Moresby. The infant returned to Honiara with the Applicants in 2005 and have been with them since.

I have read and take note of the affidavit in support of the Applicants filed 29th November 2006 and all related attachments and submissions of learned Counsel John Keniapisia. I am more than satisfied the Applicants are suitable persons to adopt the infant.

They are domiciled in Solomon Islands and have a fixed abode here. Robert Bokelema ("Robert") is from Solomon Islands. His wife Laura Bokelema ("Laura") is originally from Papua New Guinea but on marriage takes on the domicile of her husband.

Robert is employed as the Director of Communication with the Department of Communication, Aviation and Meteorology whilst Laura is Manager Finance with the Solomon Islands Electricity Authority.

Both are mentally sound, fit and healthy to look after the infant.

The Social Enquiry Report prepared by the Guardian Ad Litem, Mrs. Joanna Ahikau dated 2nd August 2007 confirm their suitability to adopt the infant. They reside in a private residence and provide a very comfortable setting and environment for the infant to live. At the time of the preparation of the report the infant was 7 years old. She has a her own bedroom. The Report further noted that the infant appeared to be very happy and relaxed where she was. She had been with the Applicants from birth and for all purposes regard Robert and Laura as her parents. I find nothing to suggest otherwise that the welfare of the child will not be well catered for by the Applicants.

I am satisfied the consent of the mother had been given freely and willingly.

The only real issue for determination before me relates to the applicability of the Adoption Act, 1958 (UK) in the light of a recent decision of his Lordship Brown J. in the Application of Willie Etupio and Mavis Etupio and Tiokobule Bero (an Infant), Civil Case Number 93 of 2007 in which his Lordship found that the Adoption Act, 1958 (UK) was not of general application so as to have effect as part of the laws of Solomon Islands. His Lordship regrettably did not have access to other previous decisions on the subject in particular in relation to the words "Acts of general application".

In the case of Mahlon v. Mahlon; Reid v. Reid[1] Commissioner Freeman considered the question whether the Marriage Act 1949 was an Act of general application. He found that because the Act laid down a complicated statutory framework which only applied to England (not even Wales, for the most part) this was enough to prevent the Marriage Act 1949 from being an Act of the Parliament of the United Kingdom of general application within schedule 3 paragraph 1 of the Solomon Islands Constitution.

In R. v. Ngena[2], Daly CJ was required to consider the question whether section 4 of the Homicide Act 1957 of the Parliament of the United Kingdom ("the 1957 Act") was applicable in a trial for murder before the High Court of Solomon Islands. On the subject of statutes of general application his Lordship referred to a passage in Roberts-Wray "Commonwealth and Colonial Law" at page 556 paragraph (7) which stated as follows:

"The expression "statutes of general application" is usually regarded as descriptive of Acts of Parliament which are of general relevance to the conditions of other countries and, in particular, not based upon politics or circumstances peculiar to England. The suggestion (not confirmed on appeal) that an Act might be excluded if not applied by all Courts or to all classes of the community in England seems to be ill founded. The view, adopted by Courts in Nigeria, that a statute is not one of general application if it does not extend to Scotland and Ireland is even more out of line, for it is only the law of England that is imported."

His Lordship continued as follows:

"Whilst expressing gratitude to the learned author I would prefer to frame the test in this way, that is, having regard to the statute under consideration as a whole, is it one that regulates conduct or conditions which exist amongst humanity generally and in a way applicable to humanity generally or is it restricted to regulating conduct or conditions peculiar to persons, activities or institutions in the United Kingdom or in a way applicable only to persons, activities or institutions in the United Kingdom? If the former the statute is of general application. I should add that I use the words "United Kingdom" advisedly (pace Sir Kenneth Roberts-Wray) as para 1 of Schedule 3 does not restrict our received law to be law of England.

I now turn to the Homicide Act, 1957. The long title read as follows:-

"An Act to make for England and Wales (and for courts-martial wherever sitting) amendments of the law relating to homicide and trial and punishment of murder, and for Scotland amendments of the law relating to the trial and punishment of murder and attempts to murder."

The reference to geographical locations does not, of course, prevent this being an act of general application within the test I have set out. Part I as we have seen deals with constructive malice, diminished responsibility, provocation and suicide pacts. Part II deals with liability to death penalty and Part III deals with the form and execution of the death sentence. Homicide is all too regrettably conduct which exists amongst humanity generally and Part I deals with questions commonly arising in homicide cases throughout the world. Parts II and III, dealing with the death penalty, also attempt to regulate that conduct in a way applicable to humanity generally. I therefore find that the Homicide Act 1957 is an act of general application.

For the following reasons I find that the Adoption Act, 1958 (UK) is an Act of the Parliament of the United Kingdom of general application and in force on 1st January 1961 and therefore has effect as part of the law of Solomon Islands with such changes as may be necessary to facilitate its application to the circumstances in Solomon Islands.

(i) The Adoption Act, 1958 is not solely confined to England. By virtue of section 1 it also applies to a person domiciled in Scotland.

(ii) Further, section 12 of the Adoption Act, 1958 provides that an adoption order may also be made by a person who is not ordinarily resident in Great Britain. This is consistent with an Act with general application than one solely confined geographically to England.

(iii) I find no local circumstances that made it inappropriate to apply the provisions of the Adoption Act, 1958 in Solomon Islands.

(iv) The Act deals with a subject matter which has general relevance not merely to the situation/conditions in Solomon Islands but anywhere in the world. The issue of adoption is universal.

I find therefore that the Adoption Act, 1958 to use the words of Daly CJ. is one that "regulates conduct or conditions which exist amongst humanity generally and in a way applicable to humanity generally".

I am satisfied accordingly that an Adoption Order be granted in favour of the Applicants in this case in respect of the infant Noeleen Aiba Miria.

The Applicants have asked for a change of name on granting of the Adoption Order, which I also grant. The name of the infant is to be changed from Noeleen Aiba Miria to Noeleen Aiba Miria Bokelema.

Order of the Court:

1. Grant Adoption Order in favour of Robert Bokelema and Laura Bokelema to adopt the infant Noeleen Aiba Miria.
   
2. Grant name change of infant from Noeleen Aiba Miria to Noeleen Aiba Miria Bokelema.
   

The Court.

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^[1] [1984] SBHC 1; [1984] SILR 86 (13 June 1984)

^[2] [1983] SBHC 1; [1983] SILR 1 (20 January 1983)