In re Tiokobule Bero (an infant) [2007] SBHC 94; HCSI-CC 40 of 2007 (27 July 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 40 of 2007

The Application of :

WILLIE ETUPIO and MAVIS ETUPIO
AND TIOKOBULE BERO (An Infant)

THE ADOPTION ACT 1958 (UK)

Date of Hearing: 27 July 2007
Date of Ruling: 27 July 2007

Wilson Rano for the Plaintiff/Applicant

RULING

REASONS for refusal to make orders under the Adoption Act 1958 (UK).

Brown, J: This application has been instituted under the Adoption Act 1958 (UK). The adopting parents and the child are Solomon Islanders. The statement in support of application for adoption recites that both applicants were married on the 14 November 1992 at Kokeqolo Church "in accordance with the Native Marriage Ordinance". The infant the subject of the application was born on the 18 November 1995 and is the child of Barbara Bero (deceased) and Joel Nanato Moses (currently serving a sentence of life imprisonment). It would appear the child is the niece of the female applicant. Mavis Etupio, although that is not stated. How the child came into the care of this couple is also not stated.

I have had no material filed to show the relevance of the Adoption Act 1958 (UK) to the circumstances of the Solomon Islands in 2007. There is no jurisdictional nexus. The United Kingdom legislation requires consents and reports by local (United Kingdom) authorities none of whom have been identified or approached in this case. I am frankly sure that the Act is wholly irrelevant and should be left to those resident in the United Kingdom, and to those conversant with the law appertaining to adoptions in that foreign jurisdiction with all its peculiar incidents. There is no evidence of any proclamation, for instance that an adoption order made in this country will conclusively be presumed to comply with that law.

I accordingly am not satisfied that the United Kingdom legislation has such extra territorial effect as to require Solomon Islanders domicile and resident in this country to seek to fit within its culture, administration and regime. By virtue of clause 1 to this Schedule 3 to the Constitution, I find that the Adoption Act 1958 (UK) is not of general application so as to have effect as part of the laws of Solomon Islands. For the Adoption Act 1958 (UK) recognises that the law applicable is the lex fori of the United Kingdom and I would venture to suggest that a court vested with jurisdiction in the United Kingdom would shy away from granting and adoption order in favour of two Solomon Islands applicants domicile in the Solomon Islands affecting a Solomon Island child where no official required to consent, under the United Kingdom Legislation, has fore knowledge of the fact of the application nor given his consent and least of all, cannot be presumed to have an idea of customary rights or expectations affecting there child in the circumstances I have outlined. This court should apply the lex fori and that is clearly a matter of custom of the place of these Solomon Islanders.

There is no suggestion that the father of the child is aware of the proposed application and while the child has been with the proposed adopting parents, since birth one presumes, some evidence of the fathers consent if relevant in custom, I would think, should be forth coming. For again, by custom the rights of that child to inherit, whether through the adopting parents or the Natural father will be affected by such order for adoption and this court is wholly ignorant of the rights, if any, that the adopted child will have, whether equal to those natural born children of the adopting parents or whether the adopting parents have a right superior to that of the natural father of the child in respect of the child were the father to be released from goal.

The underlying principle, I would suggest, of the Adoption Act 1958 (UK) is the welfare of the child and a court applying those principles would not be in a position to make a final determination on the sparse material before me, although custom may have altogether different considerations.

The status of the child after recognition of a customary adoption is relevant since the court should not, I suggest grant a certificate of recognition of customary adoption which will be used to facilitate passport application in a particular name for instance, or on a visa application to a foreign country. The birth certificate of the child has the name Moses Tiokobule and without more, the child may upon application, seek a passport in that name although the applicants seek to name the child Tiokobule Bero in this adoption application.

The child is now aged 7 and is not of an age where he would be able to choose his own name. The issue of a passport or visa are peripheral however, although if the child was to seek to travel overseas at a later time under the assumed name of Tiokobule Bero, he may find it difficult to obtain a visa to travel. There is an increasing tendency to screen persons flying about the world while terrorists are abusing the privilege of visiting foreign countries. So to change his name from that on his birth certificate is a matter for mature consideration, perhaps left to the boy himself when he comes of age. It may cause difficulties were he to seek to travel out of the Solomon Islands.

Nevertheless, I propose to list matters which this court, I suggest should be satisfied about before it considers a Certificate of Recognition of Customary Adoption, for these are matters which may be relevant, overseas, if overseas countries in future are asked to recognise the validity of a customary adoption in the Solomon Islands. There is no legislation dealing with recognition of customary adoption for domestically, such adoption is valid in accordance with the custom of Islanders. I use that latter phrase, since by s. 4 of the Islanders Divorce Act (Cap. 170), recognition of a divorce where a customary marriage has not been registered in accordance with s. 18 of that Act is "only (to) be dissolved, annulled or separation ordered in accordance with the custom of Islanders".

The preconditions before a Certificate of Recognition of Customary Adoption will be issued by the court are:

1. the adoption has been shown to be in accordance with custom of the child and parties seeking to adopt.

2. At the time of the application is instituted the adopter, or each of the adopters, is resident and domiciled in the Solomon Islands.

3. In consequence of the customary adoption, the adopters have (where the adopted person is a child) following the adoption, according t the custom of their place, a right superior to the natural parent of parents of the child, in respect of the custody care and control of that adopted child;

4. Under the custom of the place of the adopters and child the adopters are by virtue of the adoption and the child is, placed generally in relation to each other, in the position of parent and child both as regards property rights and status.

By virtue of O.2 of the HC Rules a Writ of Summons may be issued, seeking an order in terms of the Certificate (above). The summons should be made returnable on a particular day, supported by an affidavits or affidavits by the applicant and some one conversant with the custom, able to authoritatively address the matters raised in the summons. The affidavits in support should also give detail of the age sex and circumstance of the applicants, their proposals for the welfare of the child the subject of the application and detail concerning the circumstances under which the application has arisen or the child come into their custody as well as the date; place of birth of the child; the name (if known) of the natural parents and the reasons why the natural parents are giving up the child for adoption, evidence of their consent and any other matter which the applicants deem relevant for the courts assistance. The summons need not name a respondent and need not be served.

It follows that I am not satisfied this application is proper for it cannot claim to be under the United Kingdom Act.

It may be varied by my leave to plead the matters relevant for such Certificate and such affidavits as are necessary may be filed in support.

The marriage certificate of the applicant and the birth certificate of the child may be read on the hearing in due course.

Order:

1. Application Refused.
2. Writ of Summons in manner set out above may be substituted.
3. Writ returnable on a date to be fixed by the Registrar.
4. Affidavits on which the applicants seek to rely to be filed before the return day.
5. No service required

THE COURT