An application by Mr and Mrs W for Letters of Adoption in respect of 'A', In re [2020] TOSC 99; FA 15 of 2019 (12 October 2020)

IN THE SUPREME COURT OF TONGA

FAMILY JURISDICTION

NEIAFU REGISTRY

FA 15 of 2019

IN THE MATTER OF THE: Maintenance of Illegitimate Children Act (CAP30)

AND: An application by Mr. and Mrs. W for Letters of Adoption in respect of ‘A’, a male child born on 15 January 2015 ("the Child").

JUDGMENT

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Appearances: The Applicants in person with A

Ms B. Uta’atu for the Guardian ad Litem

Date of hearing: 12 October 2020

Date of judgment: 12 October 2020

1. Mr and Mrs W applied for letters of adoption in respect of A who is their grandson.
2. A was born, illegitimate, on 15 January 2015. The applicants have raised A since he was about 1 month old. He is reported to be healthy and certainly appeared before me as such. He knows no parents other than the applicants.
3. His natural father is one of the applicants’ sons. He now lives in Australia where he has married. He is not expected to return to Tonga in the near future. He was not been able to be contacted by the Guardian ad Litem for the purposes on reporting on this application. The applicants did not appear to know their son’s attitude to the application.
4. The child’s natural mother resides in Ha’apai where she lives with her husband to whom she has two children. The natural mother also has three other children born out of wedlock. The oldest was adopted by her parents and the second child was adopted by her older sister. A is her third child who is now the subject of this application for adoption by his paternal grandparents. The natural mother has given her consent to the application.
5. After considering the application documents, the report of the Guardian ad Litem and after having seen and heard from the applicants and A, I declined the application for letters of adoption. Instead, and with the applicant’s consent, I decided it was appropriate to grant a legal guardianship order pursuant to the Guardianship Act.
6. These are my reasons for that decision
7. The male applicant is 68 years of age and suffers from diabetes and high blood pressure. After previously serving as the town officer for 15 years, he is now retired. He and his wife live off his pension.
8. The female applicant is 59 years of age. She manages the household. She too has diabetes and high blood pressure. She also walks with a limp and often needs to use a walking stick due to a problem with her right knee.
9. The applicants were married on 26 January 1980. They have five children: three daughters and two sons, all of whom are now adults.
10. A home assessment by the Guardian ad Litem shows that the applicants live with A in their three-bedroom home. The applicant’s eldest son has a house next door to them on the same allotment.
11. The applicants reported to the Guardian ad Litem that the purpose of their application was to formalize their customary adoption of A and to facilitate their overseas travel with him. They also stated that as they are getting older and live alone in the house, A has been very helpful with doing chores around the home.
12. The applicants are members of the Free Wesleyan Church and they have been raising A in that faith.
13. When asked what they considered would happen to A if they were to pass away, the applicants stated that their eldest child, who is married with two children, is the town officer where they live and who lives next door to the applicants, or another friend of the family who is married with one daughter, would look after A.
14. In the summary to the Guardian ad Litem report, Ms Uta’atu opined that it was in the best interest of the child for letters of adoption to be granted to the applicants. She noted that it was not uncommon in Tonga for children to have parents of the applicants’ age as many parents adopt their illegitimate grandchildren to offer them a sense of stability. In the conclusion to her report, Ms Uta’atu opined that the applicants are a mature and loving couple with good intentions in wanting to adopt A. However, she recognized that the applicants’ advanced ages and health conditions had to be considered. Ultimately, the guardian ad litem deferred to the court’s discretion as to whether or not to grant the application.
15. My researches revealed two relatively recent published decisions concerning applications for adoption by grandparents.
16. In the matter of an application for letters of adoption of J [2015] TOSC 5, Chief Justice Paulsen considered an application for adoption by the grandparents of a five-year-old boy. The grandparents had emigrated to New Zealand some years earlier. Therefore, the application also the considerations relevant to inter-country adoption. In noting that the Courts have, at times, been reluctant to grant adoption orders in favour of grandparents, His Honour referred to the decision In the matter of Lolo Mana'ia Funganitao FA 152 of 2010 in which Chief Justice Scott said at (6):

“Secondly, the courts have frowned on applications for adoption by the grandparents and it has been said that such application should not be granted save in exceptional circumstances (Re AB (an infant) [1949] 1 All ER 709 and see also Parker v Pearce (1985) 4 NZFLR 150).”

17. However, and by reference to a number of New Zealand decisions involving adoptions within the Maori culture there, His Honour expressed the view that:
    • (a) there is no rule that adoption orders should only be made in favour of grandparents in exceptional circumstances;
    • (b) in adoption cases, as in other cases involving the care and protection of children, the paramount consideration is whether the proposed adoption is in the best interests of the child;
    • (c) that consideration is not to be read down or made subject to notions that certain types of applicant should generally not be granted adoption orders; and
    • (d) the task requires the Court to assess all the relevant facts insofar as they bear upon the interests of the child.
18. I wish to respectfully record my agreement with the views expressed by Paulsen LCJ in relation to applications for adoption by grandparents in Tonga.
19. In the matter of Fifita [2016] TOSC 3, the applicants were in their fifties, had been married for 33 years, had six children and were in generally good health. They had cared for their grandson, the child of the application, since his birth. He was 12 years of age at the time of the decision. Cato J noted the views expressed by Chief Justice Paulsen with apparent approval. His Honour also referred to the following passage from the text "Family Law in New Zealand":^[1]

"Adoption by relatives has been criticized, as it might be said to extinguish relationships on one side of the child's family and distort relationships on the other. In practice, the most common subcategory of applications for adoption by relatives has been application s by grandparents – a consequence of which can be that the natural mother becomes, from a purely legal point of view, the sister of her own child. Such falsification and readjustments of relationships is obviously highly questionable, an in the majority of situations guardianship would appear to be a more appropriate response"

20. However, the authors of that work also acknowledged that in Maori and Pacific Island applications, the perceived disadvantages of the legal readjustment of family relationships are not so relevant, presumably because of the extended family relationship. Cato J also cited a number of New Zealand decisions where applications for adoption by grandparents had been granted.
21. Cato J considered that on the evidence before him, it was in the best interests or welfare of the child “to have his status legitimized by adoption”.^[2] His Honour identified the following factors in favour of adoption:
    • (a) the grandparents were still young and able to effectively continue to operate as the child’s parents and caregivers in the fullest sense as they had in the past;
    • (b) there was no clear age or health impediment to their being suitable to adopt the child who had been in their care for about 12 years;
    • (c) the child regarded the applicants as his parents;
    • (d) he regarded his natural mother, with whom he had not lived, as his sister;
    • (e) in the Tongan way, the child would continue to be supported by and enjoy close association with his natural mother and her four children from a subsequent marriage;
    • (f) there would be no dislocation to any family relationship by making the order nor would there be any succession problems to land since the applicants had two older sons who would inherit any land under Tongan law.
22. A number of the factors identified by Cato J as being in favour of the application before him unfortunately weighed against the application before me.
23. Firstly, the applicants’ advanced ages, particularly that of Mr W, and their respective health problems, are matters of significant concern. Having seen and heard from both applicants, it was evident that they are both still mentally quite able. However, physically, they are understandably and clearly starting to show signs of age. In the case of Mrs W, her ability to walk was demonstrably affected with a defined limp and quite apparent discomfort from her problematic right knee. The inescapable reality is that as time goes on, their physical conditions are likely to deteriorate further and they are likely to require further and increasingly intensive support. In that regard, s.16(2) of the Maintenance of Illegitimate Children Act provides that the court may refuse to grant Letters of Adoption to any person whom it may consider not fit or proper. I have no doubt whatsoever that the applicants are proper persons for the purposes of the Act. However, and with all due respect, their age and health issues do raise serious questions about whether they are sufficiently fit for parenthood (again) or are likely to remain so for long enough to raise A over the next 10 to 15 years.
24. Secondly, one of the reasons the applicants cited to the Guardian ad Litem for their application was that A was particularly helpful with chores around the house. When I discussed that matter with the applicants further, they in fact identified that the main reasons for their application was that they wanted A to be able to help them as they get older. That gave me further cause for concern. While I do not doubt the applicant’s genuineness in their love and affection for the child, the thought of him as a five year old boy now growing up having to provide increasing support for his aging grandparents may present difficulties for his development especially if his relationship with them is formalized through adoption orders legally making him their son. The sense of obligation that could naturally flow from that close filial relationship could result in A feeling that he has been rendered in servitude to his grandparents. It may be accepted that the nature of Tongan culture and the importance of the extended family regularly sees grandchildren helping with the care of their grandparents. But that responsibility should be seen as primarily that of the children of the senior family members, not that of a very young sole grandchild living with his grandparents. Whether, and to what extent, A feels prepared and wishes to support his grandparents as he matures into his teenage years and beyond, should be a matter for him voluntarily together with the support of other members of the applicant’s immediate family. In my view, it is not in A’s best interests to have that responsibility and burden foistered on him at such an early age by formal adoption.
25. Thirdly, another reason for the application was the applicant’s desire to be able to travel overseas with A. It was not entirely clear why they considered that letters of adoption were necessary for that purpose. They confirmed that they have no intention of leaving Tonga permanently and that any travel plans would only be for the purposes of visiting relatives overseas. For that purpose, letters of adoption are not necessary. The situation would be different if the application was one for intercountry adoption where the applicants either had moved or were intending to move overseas permanently. In that case, and subsequent to the two decisions referred to above, the New Zealand government has recently made it clear that it will no longer allow entry or permanent residence to any child the subject of a guardianship order. The situation with Australia immigration authorities now appears to be similar. Otherwise, I am not aware of any reason that A would not be able to travel with the applicants for holiday or visiting purposes with him being the subject of a guardianship order in their favour. As I discussed this issue further with them, the applicants changed their position slightly to the effect that they now do not intend to take A anywhere overseas in the foreseeable future and that he would remain with one of them or other family relatives if either or both of the applicants did travel.
26. Fourthly, another reason for the application which emerged during discussions with the applicants, but which was not recorded in the Guardian ad Litem report, is that the applicants believed that if they adopted A, it would entitle him to inherit his natural father’s land in Tonga. As discussed with the applicants during the hearing, that notion is unlikely to be correct:
    • (a) pursuant to ss 41 and 82 of the Land Act, only persons born in wedlock may inherit pursuant to the succession rules;
    • (b) A’s natural father is in fact not named on his birth certificate;
    • (c) if A’s natural father were to surrender his land in Tonga, at a time after A reaches the age of majority, and no other claim by an heir were made for it, the fact that A is his blood son (assuming he will be able to prove his blood relationship to his father) may be an advantage in any general claim A might make to his natural father’s land;
    • (d) if A were legally adopted by the applicants, that may interfere with his ability to make any such claim on his natural father’s land in the future;
    • (e) further, if adoption were granted, there is little to no likelihood that A would be eligible to inherit Mr. W’s land upon his passing given A is illegitimate and the likely claims of his other sons as heirs.
27. For those reasons, and with the concurrence of the Guardian ad Litem, I considered that the application was not in A’s best interests. Further, the application is not necessary for A’s wellbeing as there was no indication that without formal adoption, the applicants would cease to care for him. There was also no suggestion that A would suffer any legal, social or cultural disadvantage being raised by his grandparents, a child-rearing relationship which is relatively common in Tonga.
28. I therefore declined to grant the application for letters of adoption.
29. However, I did consider it in A’s interest to formalize the applicants’ customary adoption of him with a Legal Guardianship Order pursuant to s.6 of the Guardianship Act. The Guardian ad Litem agreed with that course. Therefore, and with their consent, I ordered that Mr and Mrs W be appointed A’s legal guardians with parental responsibilities for him. I also ordered, pursuant to s.10A of that Act, that A’s surname be changed to that of the applicants.

NEIAFU		M. H. Whitten QC
12 October 2020		LORD CHIEF JUSTICE

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^[1] Butterworths, Vol 1, 13th edition, 2007, para 6.654.
^[2] It is unclear whether his Honour had in mind that letters of adoption would render the child legitimate having regard to the inapposite provisions of the Legitimacy Act.