In the matter of CD (an infant) [2024] TOCA 13 (28 May 2024)

IN THE COURT OF APPEAL OF TONGA
FAMILY JURISDICTION
NUKU’ALOFA REGISTRY

[Court numbers redacted]

ANONYMISED VERSION – PUBLICATION PERMITTED IN THIS FORM

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF ADOPTING PARENTS AND CHILD CONTINUES IN FORCE

IN THE MATTER OF
The Maintenance of Illegitimate Children Act (Cap. 30)

AND
IN THE MATTER OF
A reservation of a question of law made by the Supreme Court on 3 May 2024

AND
IN THE MATTER
of CD (an infant)

JUDGMENT OF THE COURT

Court: Randerson J
Harrison J
Heath J

Counsel: S F Sisifa, Solicitor-General, as Guardian ad Litem
Mrs AB, in person

Hearing: 24 May 2024
Judgment: 28 May 2024

A question of law

[1] On 3 May 2024, on an application for Letters of Adoption, the Supreme Court reserved a question of law for the opinion of this Court, under s 3 of the Court of Appeal Act.
[2] The question arises on an application for an inter-country adoption. In Leger v Solicitor-General,^[1] this Court considered an appeal from the (then) Lord Chief Justice, in which he had held that “an inter-country adoption should be approved only when all other means of caring for a child in Tonga have been exhausted”.^[2] In the course of that judgment, this Court clarified that the touchstone for making an inter-country adoption order was “the best interests of the child”.^[3] Nevertheless, it went on to speak of the “importance to a child of retaining and fostering ties with his or her culture, heritage and language”; adding that that factor “cannot be overstated”.^[4]
[3] In the present case, Cooper J, sitting in the Supreme Court, was concerned that the decision in Leger might be a binding precedent on that issue, which would foreclose an inter-country adoption order in circumstances where relevant cultural heritage and language ties might be lost.

• [4] The question posed by Cooper J was in the following terms:^[5]

61. In applying the test in Leger ..., and assessing the need for the child to retain and foster ties with her culture, heritage and language, if this court concludes that [CD] would not grow up, when living with [Mr and Mrs AB], able to speak and, or understand more than some rudimentary words and phrases in Tongan, must the application be refused?

Background

[5] Mr and Mrs AB are United States citizens of Tongan origin. Each was born [in a State of the United States of America]. They currently live in [a city], in that State. Mr AB is 35 years old. His wife is aged 33 years. Mr AB does speak Tongan and (in the words of the Judge) has “a clear understanding of the language”.^[6] Mrs AB does not speak Tongan fluently. The Judge considered that she had “a mild understanding of Tongan language”.^[7]
[6] The child whom they wish to adopt is CD. She was born on [date redacted], and is currently aged about 16 months. Presently, CD lives in Tonga. She lives with a guardian, Ms EF, who is a blood relation of Mrs AB and a first cousin of the biological father. The biological mother also lives in Tonga. She supports the proposed adoption. The Judge was satisfied that the biological mother “understands and accepts the effects of the Letter of Adoption”, if granted.^[8] Mr and Mrs AB have already adopted one Tongan child, a boy now aged five years, [name redacted]. He was adopted in [date redacted], from Tonga.

Procedural history

[7] Mr and Mrs AB’s application was filed in December 2023. On 25 January 2024, the Acting Lord Chief Justice appointed the Solicitor-General (or “any able officer of his office whom he may designate”) as guardian ad litem, to act in CD’s best interest. The guardian ad litem was directed to make inquiries relevant to the question whether Letters of Adoption would be in CD’s best interests, and to report to the Court.
[8] The guardian ad litem’s report was provided to the Court and the parties on 6 March 2024. The issue of a Letter of Adoption was recommended on the grounds that “such an order, would be in the best interest of [CD] as it will legally formalize the bond between [Mr and Mrs AB] and [CD]”. In addition, the Supreme Court had the benefit of an “Adoption Home Study”, prepared by a licensed clinical social worker [in the United States]. That report concluded that Mr and Mrs AB were “eligible and suitable and have the ability to undertake an inter-country adoption”. Further, the social worker stated that Mr and Mrs AB met “the requirements of Tonga with regard to age, marital status, and legal qualifications”. The social worker added that Mr and Mrs AB were “physically, mentally, and emotionally capable of properly parenting an orphan(s)”.

The application for Letters of Adoption

[9] Mr and Mrs AB’s application was heard on 18 April 2024. Both Mr and Mrs AB were present but unrepresented. At the conclusion of the hearing, Cooper J said that he would hand down a ruling on 3 May 2024. Although detailed reasons were given on that day, no decision was made. Instead, the Judge reserved the question of law for this Court (the Case Stated).^[9] The Judge informed Mrs AB of that outcome when she attended at the Supreme Court on 3 May 2024.^[10]
[10] In the Case Stated, Cooper J explained that the hearing on 18 April 2024 had focussed on two aspects of the application:^[11]

• (a) Cultural ties that CD could expect to keep up if she were adopted to live in the United States of America;
• (b) CD’s prospects of growing up with appropriate abilities in learning, understanding and speaking Tongan.

[11] The Case Stated, makes it clear^[12] that, but for those two issues, the evidence and the support of the biological mother all pointed towards grant of the application.

• [12] The evidence demonstrates that Mr and Mrs AB:
  • (a) have appropriate ties to the child;
  • (b) are in a stable relationship;
  • (c) live in good accommodation in [the United States], where there is an active Tongan community; and
  • (d) are active members of [a church]; and
  • (e) will provide a loving and caring environment for CD.
• [13] Cooper J expressed his reservations on the language issue as follows:^[13]

55. I have come to the view the evidence demonstrates that CD will grow up not speaking Tongan but only with a rudimentary level of understanding of the Tongan language.

56. I conclude that for these reasons

• The applicants’ adopted son from Tonga, [name redacted], who has lived with them since [date redacted] speaks very little Tongan, just basic greetings and knows only a few some proper nouns. He does not speak Tongan and there was no evidence he can speak any sentences in Tongan.
• [Name redacted] is spoken to in English by his adopted parents.
• No Tongan teacher has been identified to teach [name redacted] the language.
• [Mrs AB] herself does not speak Tongan.
• I have taken into account that [Mr AB’s father] was born in Tonga and is said to speak Tongan half the time and that [Mr AB] speaks Tongan fluently. But since [Mrs AB] does not, it plainly is not the language spoken at home.

57. In considering the application before me I conclude:

1. Prima facie, CD would have a better life growing up in America with the applicants.
2. Any possible argument that care arrangements for CD in Tonga may be adequate, are outweighed by the welfare considerations in this case so as to persuade me it is appropriate to consider it in her best interests to live and grow up with the applicants.
3. The cultural ties CD would have on granting this application would be significant and enrich her Tonga inheritance.
4. Against that, the evidence demonstrates that CD would grow up with only a faint understanding of the Tongan language and not able to converse in Tongan at all.

...

[14] In submissions on the Case Stated, the Solicitor-General, as guardian ad litem, supported the proposed adoption on the grounds that he was satisfied, from the information provided by Mr and Mrs AB, that the child would not “lose her Tongan culture and language” because there is a significant “Tongan community in [State redacted], the fact that [Mr and Mrs AB] are Tongan” and their family (by whom would the child be surrounded) her Tongan heritage. The Solicitor was satisfied that the child would be exposed to her culture and language. He added that the fact that Mr and Mrs AB’s “five-year old son can understand and speak [Tongan] on some basis demonstrates that there is an ongoing effort on [Mr and Mrs AB’s] part in teaching the Tongan language to their children”.

The authorities

[15] Although the question for the opinion of this Court refers only to Leger v Solicitor-General, there is an earlier decision of this Court of relevance to Mr and Mrs AB’s application: Saavedra v Solicitor-General.^[14]
[16] The Supreme Court’s jurisdiction to grant Letters of Adoption in an inter-country case, springs from s 15 of the Maintenance of Illegitimate Children Act. Section 15 provides:

15. (1) An illegitimate child under the age of 21 years may, with the consent of the mother, be adopted by another person.

(2) The Supreme Court may, in the interest of the child, dispense with the consent of the mother where the mother-

(a) has abandoned, neglected or persistently ill-treated the child;

(b) cannot be found;

(c) is incapable of giving her consent; or

(d) unreasonably withholds her consent.

[17] The present case falls under s 15(1) as the biological mother consents to Letters of Adoption being issued in favour of Mr and Mrs AB. The sole issue is whether adoption by Mr and Mrs AB is in CD’s best interests.^[15]
[18] In both Saaverdra and Leger, this Court identified the relevance of the United Nations Convention on the Rights of the Child (the Convention), to the questions that arise. The Convention has been adopted in Tonga. Reference was made, in each case, to the “paramount consideration in adoption cases, including inter-country adoptions” of the best interests of the child.^[16] That principle is grounded in the chapeau to article 21 of the Convention. In Leger, the Court set out article 21 in full:^[17]

Article 21

States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

(b) Recognize that inter-country adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;

(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement does not result in improper financial gain for those involved in it;

(e) Promote, where appropriate, the objectives of the present article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.

(Emphasis added)

[19] By reference to art 21 of the Convention, this Court, in Leger, said:^[18]

[13] Reading Article 21 as a whole, it is clear that each of the specific measures agreed has the objective of advancing the paramount goal of serving the interests of children who are being considered for adoption. This is underlined in Concluding Observations of the Committee on the Rights of the Child, Mexico (UN Doc. CRC/C/15Add. 13,1994), at para 16:

“The Committee emphasizes that the best interests of the child must be a guiding principle in the application of the Convention and that the authorities should undertake all appropriate measures to the maximum extent of their available resources to ensure that sufficient resources are allocated to children, particularly children living and/or working in the streets, children belonging to minority groups or indigenous communities and other vulnerable children”.

(Original emphasis)

[20] Saavedra had referred to another passage from the Committee report which arguably supported the proposition that an inter-country adoption “should be considered in the light of art 21, namely, as a measure of last resort”.^[19] The Court in Leger rejected an unqualified application of that suggested approach, saying:^[20]

[15] It is distinctly arguable that in characterising inter-country adoption as a measure of last resort, the Committee sacrificed accuracy for brevity. It may have been more accurate to say (as it had earlier acknowledged) that an inter-country adoption should take place only if it would be in the best interests of the child.

[16] The specific provisions of Article 21 cannot have been intended to displace the paramount requirement to have regard for the child’s best interests. That is also the way Saavedra should be read. In the circumstances of that case the interests of the child were plainly best served by his remaining in Tonga. ...

[21] Having explained the need to retain focus on a “best interests” inquiry, Leger then addressed the cultural, heritage and linguistic issues that have troubled Cooper J. The Court said:^[21]

[16] ... in cases such as the present, where an inter-country adoption carries distinct benefits for the child and none of the disadvantages normally associated with a move to another country, in particular the loss of family ties and the child’s inheritance of Tongan culture and language, the interests of the child are likely to favour approval of the application. The fact that satisfactory care arrangements are available in Tonga will always be a factor to be considered, and will often be decisive. The importance to a child of retaining and fostering ties with his or her culture, heritage and language cannot be overstated. Ultimately, however, a judgment must be made which is informed by all of the factors which bear on the best interests of the child. And in a proper case that judgment may require approval of an inter-country adoption notwithstanding the availability of satisfactory care arrangements in Tonga. This is undoubtedly such a case.

[22] In our view, Leger does not create any rule of law preventing Letters of Adoption being issued if the need to protect cultural heritage and language is not ideal. Rather, they should be regarded as factors that are taken into account as part of the “best interests” inquiry. This approach accords with that taken by Lord Chief Justice Whitten in Re Sam (a pseudonym) in which he emphasised the need for the Court to balance relevant factors “without any rigid, or preconceived, notions going to what weight any factor should have”.^[22] While Tongan culture, heritage and language are important factors (indeed, we agree with Leger that they “cannot be overstated”), they are not decisive.
[23] In our view, a Supreme Court Judge, considering an inter-country adoption application, is required to determine whether the issue of Letters of Adoption is in the best interests of the child, notwithstanding any reservations about cultural, heritage and language considerations. There is no presumption that those factors will override all others. It remains for the Judge to balance all relevant considerations, recognising the importance afforded to Tongan culture, heritage and language in making that order.

Result

[24] We answer the question posed by the Supreme Court as follows:

The Supreme Court is entitled to issue Letters of Adoption provided it is satisfied, having weighed all relevant factors, that (notwithstanding any reservations of the potential loss of links to the child’s Tongan cultural heritage and language), the proposed adoption is in the best interests of the child.

[25] We remit the adoption application to the Supreme Court for final determination. In case it may be helpful to the Supreme Court Judge, we consider that a weighing of the factors which he identified would strongly favour granting the application. We direct the Registrar to bring this judgment to the attention of Cooper J as soon as reasonably practicable, to facilitate prompt disposition of the application.

• [26] No order as to costs.
• [27] We thank the Solicitor-General for his helpful submissions.
  

_______________________
Randerson J

________________________
Harrison J

________________________
Heath J

---

^[1] Leger v Solicitor-General [2016] TOCA 11.
^[2] Ibid, at para 2. The words quoted were taken from an earlier decision of this Court, in Saavedra v Solicitor-General [2013] TOCA 7 at para 5.
^[3] Ibid, at para 15.
^[4] Ibid, at para 16.
^[5] [Footnote redacted].
^[6] Ibid, at para 3.
^[7] Ibid, at para 5.
^[8] Ibid, at para 24.
^[9] See para [4] above.
^[10] The application will be resolved once this Court’s judgment has been given.
^[11] [Footnote redacted].
^[12] Ibid, at paras 56 and 57, set out at para [13] below.
^[13] Ibid, at paras 55–57.
^[14] Saavedra v Solicitor-General [2013] TOCA 7.
^[15] See para [18] below.
^[16] Saavedra v Solicitor-General [2013] TOCA 7, at paras 3 and 4 and Leger v Solicitor-General [2016] TOCA 11 at paras 12–16.
^[17] Leger v Solicitor-General [2016] TOCA 11 at para 12.
^[18] Ibid, at para 13.
^[19] Saavedra v Solicitor-General [2013] TOCA 7 at para 5.
^[20] Leger v Solicitor-General [2016] TOCA 11 at paras 15 and 16.
^[21] Ibid, at para 16.
^[22] Re Sam (a pseudonym) [2021] TOSC 73 at para 86.