Sam (a pseudonym) and an application for revocation of letters of adoption, Re [2021] TOSC 73; FA 89 of 2012 (13 May 2021)

IN THE SUPREME COURT OF TONGA

FAMILY JURISDICTION
NUKU’ALOFA REGISTRY

FA 89 of 2012

IN THE MATTER OF:

THE MAINTENANCE OF ILLEGITIMATE CHILDREN ACT

AND:

In Re Sam (a pseudonym) and an application for revocation of letters of adoption

JUDGMENT

BEFORE: LORD CHIEF JUSTICE WHITTEN QC

Parties: [1] The child’s natural mother

[2] The child’s adoptive parents

[3] The child's guardians

[4] Ms Tupou, representing the Solicitor General as Guardian ad Litem

Date of hearing: 16 April 2021
Date of decision: 16 April 2021
Date of reasons: 13 May 2021

Non-publication

This proceeding was conducted in camera. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and addresses of the parties and the child must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the child will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.

The application

1. This is an application by a natural mother for orders revoking Letters of Adoption granted in respect of her son in 2013.
2. For the purposes of protecting the identity of the child in this case, he is referred to herein by the pseudonym "Sam". The other parties, relevant to the application, will be referred to simply by the roles they have played and currently play in Sam's life.
3. At the conclusion of the hearing in this matter, I delivered judgment ex tempore with a summary of reasons. The following are my full reasons for decision.

Background

4. Sam was born in 2011. His birthparents were then in a de facto relationship and, as such, he was born illegitimate.
5. Two days after he was born, the sister of Sam’s biological father and her husband (i.e. Sam’s paternal aunt and uncle) approached his mother and asked if they could adopt Sam. The mother agreed.
6. On 30 August 2012, Sam's aunt, on behalf of her and her husband, filed an application for Letters of Adoption. In their affidavits in support, they deposed, inter alia, that:
   • (a) they were married in December 1997 in Hawaii;
   • (b) they were then currently residing in Hawaii;
   • (c) they had five legitimate children of their own;
   • (d) Sam's biological father was the female applicant's brother; and
   • (e) they had taken Sam into their sole care upon he and his mother being discharged from hospital following his birth.
7. In her affidavit, Sam’s natural mother confirmed the circumstances of his birth and her consent to the applicants adopting Sam as "they loved him as their own son". She also deposed that she understood that the effect of an adoption order was to deprive her permanently of all her rights over Sam.^[1]
8. The applicants’ certificate of marriage showed that whilst they were both born in Kolofo’ou, Tonga, their 'usual residence' was in Honolulu. One of the (undated) letters of support for the application was from Bishop Lolua Moungaloa. He confirmed that the applicants were "faithful and responsible members" of his ward of the Church of Jesus Christ of Latter Day Saints in Salt Lake City, Utah. He highly recommended the applicants as loving parents and stated that:

“the child will be received into a home where there is financial and spiritual stability. This baby they receive will be one of the luckiest babies.... As they wait for the adoption to come through, I will be praying for their dreams to come true....".

9. Another letter of support was from Peauafi Tu'itavake, Bishop of the Havelu Ward of the Church of Jesus Christ of Latter Day Saints in Nuku'alofa, Tonga. He referred to the applicants as "fostering" Sam and that:

"They have loved and brought him into church on occasion and primary prayer hours. They have taught him well so that he could have a better future in this town for the whole nation."

10. It is evident from the application documents referred to that they did not contain any express indication that, upon Letters of Adoption being granted, the then applicants intended to take Sam from Tonga and raise him in the United States. So much may have been implicit from the fact that were “currently residing” in Hawaii and that they did not state otherwise.
11. Similarly, the application documents did not include any evidence that, upon letters of adoption being granted by the Court, the United States immigration authorities would permit the applicants to bring Sam into that country and for him to remain there.
12. On 19 December 2012, the Guardian ad Litem filed a report in relation to the application. The representative of the Guardian ad Litem recorded that, in preparing the report, she interviewed the applicants by telephone in Salt Lake City.
13. Attached to the report was a home visit assessment conducted by Homes for Children Services Proctor Parent(s) Home Study (LCSW) in relation to the applicants’ home in Salt Lake City. The report was positive. Relevantly, it recorded that:
    • (a) Sam was 1 year of age and in good health;
    • (b) the applicants lived in Salt Lake City, Utah;
    • (c) they wanted to give Sam a better life;
    • (d) they also wanted him because most of his natural father's family were based in the United States so it would be good for Sam to be closer to his father's family;
    • (e) the female applicant came to Tonga just before Sam was born and stayed until his birth. She named him and remained in Tonga to finalise the application and support Sam financially;
    • (f) as at the date of the report, the applicants had continued to support Sam financially from Utah and would do so until their application had been finalised;
    • (g) for the prior two years, the female applicant had conducted a foster agency known as ‘Homes for Children Services’, where she worked as a ‘tracker’ looking after children who had no homes and ensuring they were placed in appropriate homes;
    • (h) his natural mother was continuing to look after Sam pending the outcome of the application;
    • (i) the applicants had continued to keep close contact with Sam's birth family, that they had developed a great relationship with the birth mother and that they planned to always stay in contact;
    • (j) Sam had "met the applicants and knows them well";
    • (k) the applicants planned to take Sam with them to the United States where they had “big plans” for him, including family vacations and his education;
    • (l) the applicants planned to let Sam know that he is adopted when they think he is ready to handle such information.
14. There was no indication in the report as to whether, and if so, how long, the applicants had actually spent with Sam. Instead, the Guardian ad Litem stated that:^[2]

“The applicants are unable to fulfil the 6 months requirements with the child, because of their work commitments in the United States. But they have made commitments into [sic] coming into the country every other month to spend time with the child, so the child knows the applicants. The longest period the applicants would stay here in Tonga would be 3 weeks."

15. The Guardian ad Litem opined that the adoption was in Sam’s best interest and recommended that the application be granted.
16. On 26 February 2013, Chief Justice Scott granted letters of adoption. Sam's name was also changed to include the applicants’ surname as his.
17. Apart from a single page of handwritten notes which, with all due respect to His Honour, as he then was, are difficult to decipher, but which appear to be of a hearing conducted on 25 February 2013, there is no other formal record on the court file of any reasons for the decision to grant the application.

Grounds for the application

18. By letter dated 4 March 2020 (although stamped as having been received on 11 January 2021), Sam’s natural mother applied to the Court to revoke the letters of adoption. The reason for her application was stated as:

"... the applicants have been trying to take the child with them to Hawaii since then (letters of adoption were granted) but have not succeeded up to date. They then left the child under the care of (the guardians named herein) and he has been growing up with them knowing them as his parents. ... The child will be 9 years old this year ... I think it is [in]the best interests of the child for the order in 2013 to be revoked so that (the guardians) could apply for the Letters of Adoption themselves."

19. The natural mother also filed an affidavit sworn 4 December 2019. In it, she confirmed the essential elements of her application.
20. The application is also supported by an affidavit by the adoptive mother sworn 15 October 2020 and co-signed by her husband. She deposed, relevantly, that:
    • (a) while she flew back and forth between Tonga and the U.S. trying to find a way to get Sam to the U.S., he was left in the care of her first cousin in their childhood home in Kolofo’ou, Tongatapu;
    • (b) she has tried everything, including with the help of an immigration attorney, to get Sam to the U.S., but has been unsuccessful;
    • (c) the only requirement (of the U.S. Immigration authorities) they have not able to fulfil or prove is that they have lived in Tonga with Sam for at least two years. Only then will he be eligible for them to file for his papers to enter the U.S.. Unfortunately, with their work and five children to care for, they have not able to do that;
    • (d) for the past six years, (the guardians) have raised Sam as their own and have loved him with all their heart;
    • (e) Sam only knows his guardians as his parents and calls them 'Dad' and 'Mom';
    • (f) she and her husband give their full consent to Sam’s guardians adopting him;
    • (g) they understood that the effect of any further adoption order would be to deprive them permanently of all their rights over Sam; and
    • (h) they confirmed that the purpose of their affidavit was to support an application by the guardians to adopt Sam.

Procedural history

21. According to the records of the Guardian ad Litem, this Court has granted similar applications in three previous cases.^[3] However, none of those orders were accompanied by reasons, including any consideration as to whether the Court has jurisdiction or power to entertain such applications.
22. Therefore, on 14 January 2021, I directed the reappointment of the Solicitor General as the child's Guardian ad Litem and for all parties to file submissions on the preliminary jurisdictional issue.
23. On 12 February 2021, the Guardian ad Litem filed very helpful written submissions in relation to the jurisdictional issue and the application of relevant principles to the instant case. I will turn to those submissions in detail further below. The other parties did not file any submissions on the issue.
24. Before considering the Guardian ad Litem’s submissions, there was one factual matter about which the Court required further clarification.
25. The stated basis for the application is the inability of the adoptive parents to have successfully been able to bring the child to the United States where they live. The reason for that is said to be a requirement of United States immigration authorities that the adoptive parents live with the child in Tonga for a period of two years before they will be permitted to bring the child into the United States to live with them.
26. The U.S. Citizenship and Immigration Services website contains the following:^[4]

Bringing Your Internationally Adopted Child to the United States

There are three similar but distinct paths to bringing your adopted child to the United States. Which path your adopted child follows will depend on his or her individual circumstances.

Hague Process

If you filed Forms I-800A and I-800 in order to adopt, then your child is from a country that has implemented the Hague Adoption Convention (Hague). This means your child will enter the United States either with an IH-3 immigrant visa (if you adopted your child in a Hague country) or IH-4 immigrant visa (if you finalize the adoption in the United States).

Non-Hague Process

If you filed Forms I-600A and/or I-600 in order to adopt, then your child is from a country that has not implemented the Hague Adoption Convention. This means your child will enter the United States either with an IR-3 immigrant visa (adoption finalized in a non-Hague country and you [or your spouse, if married] saw your child prior to or during the adoption process) or an IR 4 immigrant visa (if you finalize the adoption in the United States).

Immediate Relative Process

If your child does not meet the requirements for the Hague or the non- Hague adoption processes, you may still be able to file Form I-130, Petition for Alien Relative, on his or her behalf as the adopted child of a United States Citizen. Parents must accrue two years of legal and physical custody and obtain a full, final adoption of the child to be eligible to file an I-130. Legal and physical custody can be accrued at one stretch of time or cumulatively over several periods. They can also be accrued before, during and after the adoption. The two years must be accrued BEFORE you file Form I-130. Also, the adoption must be finalized before your child’s 16th birthday (or 18th birthday if they are a biological sibling of a child you have already adopted or will adopt). Your child will receive an IR-2 immigrant visa if he or she is found eligible.

[emphasis added]

27. On the assumption that the above underscored requirements were those which the adoptive parents had deposed they had been unable to fulfil, on 9 March 2021, I directed, among other things, that the adoptive parents file a further affidavit providing details of their efforts to comply with the stated requirement. For reasons which were never satisfactorily explained, they did not do so.
28. I also directed that if the guardians in fact wished to apply to adopt Sam, if and when he might become eligible for adoption, they were to file an affidavit confirming their intention. On 30 March 2021, they did so.
29. On 16 April 2021, a hearing in camera was conducted. All parties in Tonga appeared. The adoptive father appeared by audio-visual link. His wife was not available. In relation to the Court’s enquiry about the U.S. immigration requirement, and having regard to the impression conveyed in the adoptive parents’ original application and affidavit as to the amount of time they had spent with Sam, all relevant parties agreed that the adoptive parents had in fact only spent about two weeks before the Order was made and about the same thereafter.

Guardian ad Litem submissions

30. The Guardian ad Litem’s submissions may be summarised as follows:
    • (a) on the jurisdictional issue, and by reference to a number of English authorities (discussed below), the court has inherent jurisdiction to revoke an adoption order;
    • (b) however, a lawfully and properly made adoption order can only be set aside in “highly exceptional circumstances”;
    • (c) during an interview with her on 5 February 2021, the natural mother explained that the purpose of her application for revocation of the letters of adoption was not to return Sam to her care but to enable the guardians an opportunity to adopt him;
    • (d) the adoptive parents’ inability to comply with U.S. immigration requirements do not constitute highly exceptional circumstances to warrant the court revoking the adoption order, and that to do so, would be "a threat to the finality of adoption orders and the adoption processes of this Court";
    • (e) however, in an endeavour to protect Sam’s best interests and welfare, and to resolve the application, the Guardian ad Litem proposed the following rather innovative approach:
      • (i) the natural mother should withdraw her application as the 2013 order extinguished her legal rights in respect of the child;
      • (ii) the guardians be advised to apply to adopt Sam; and
      • (iii) as the 2013 adoption order had the effect of making the adoptive parents, Sam’s legal parents, and in particular, the adoptive mother, Sam’s ‘mother’ for the purposes of s.15 of the Maintenance of Illegitimate Children Act (“the Act”) (referred to below), her consent would be sufficient to allow the Court to effectively order the re-adoption of Sam in favour of his present guardians.

Approach

31. Given the apparent dearth of analysis in the small number of previous applications of this kind, and the relative novelty of the issue, I will consider first, whether the Court has jurisdiction to entertain the application; and, if it does, how any discretion flowing from that jurisdiction should be exercised in this application.

Jurisdiction

32. Part III of the Act provides, relevantly:

PART III - ADOPTION OF ILLEGITIMATE CHILDREN

15 Illegitimate person may be adopted

(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.

16 Application to be made to Supreme Court; Discretion of Court

(1) Any person desiring to adopt an illegitimate person shall apply to the Supreme Court for Letters of Adoption.

(2) The Court may refuse to grant Letters of Adoption to any person whom it may consider not fit or proper.

17 Person adopting illegitimate person shall be guardian

The person to whom Letters of Adoption have been granted by the Court in respect of an illegitimate person shall be the legal guardian of that person and shall be responsible for the maintenance and education of such illegitimate person.

18 Adopted person to bear name of guardian

The adopted person shall bear the name of and be deemed to be of the same nationality as the person to whom Letters of Adoption have been granted by the Court.

...

No statutory power

33. The Act does not contain any provision empowering the Court to revoke or discharge Letters of Adoption. Read as a whole, there is nothing within the Act to explain that omission.
34. I say ‘omission’ because, by contrast, the Guardianship Act provides:

7 General Powers of the Court

(1) The Court shall have power to make or revoke a guardianship order.

...

13 Variation or discharge of orders

(1) The Court may vary or discharge any order with respect to the custody, guardianship or access to a child.

...

35. By comparison, other Commonwealth jurisdictions have, in their relevant legislation, conferred express power on their Courts to discharge adoption orders in specified circumstances. For instance:
    • (a) In the United Kingdom, s.55 of the Adoption and Children Act 2002 provides a very limited statutory basis for revocation. Where any child adopted by one natural parent as sole adoptive parent subsequently becomes a legitimated person on the marriage of, or formation of a civil partnership by, the natural parents, the court by which the adoption order was made may, on the application of any of the parties concerned, revoke the order.
    • (b) In Australia, s.93 of the New South Wales Adoption Act 2000 permits discharge where the order, or any consent to adoption, was obtained by fraud, duress or other improper means, or there is some other exceptional reason why the adoption order should be discharged. Conversely, the Court must not make a discharge order if it appears that the making of the order would be prejudicial to the best interests of the child, or if the application for the order is made by the child, the application is motivated by emotional or other considerations that do not affect the welfare of the child arising out of a relationship formed because of the child's access to information about his or her adoption.^[5]
    • (c) In New Zealand, s.20 of the Adoption Act 1955 confers on the Family, District and High Courts power to vary or discharge any adoption order subject to such terms and conditions as the Court thinks fit. Applications for discharge require the prior approval of the Attorney-General and no adoption order or adoption shall be discharged unless the order was made by mistake as to a material fact or in consequence of a material misrepresentation to the court or to any person concerned;^[6] or the discharge is expressly authorized by any other section of the Act.^[7]
36. The legislative lacuna in Tonga may be explicable by the finality intended, at common law, of all adoption orders, and their effects on all parties concerned. However, in the absence of any express indication of Parliament’s intention and the lack of any published decisions in Tonga on the issue, I turn, as I must, to consider and apply the common law and the rules of equity in force in England, so far as the circumstances of the Kingdom and its inhabitants permit and subject to such qualifications as local circumstances render necessary: Civil Law Act, ss 3 and 4. In conjunction, s.5 of the Supreme Court Act confers on the Tongan Supreme Court, mutatis mutandis, all the powers for the time being vested in or capable of being exercised by the High Court of Justice in England and Wales.

United Kingdom

37. From a number of UK decisions referred to by the Guardian ad Litem, and others to which I shall refer, the following English common law principles may be distilled:
    • (a) In Re B (Adoption: Jurisdiction to Set Aside) [1995] EWCA Civ 48; [1995] Fam 239, the Court of Appeal noted that the act of adoption is final, effecting a permanent change in the status of the child and the parties. Swinton Thomas LJ noted:^[8]

“An adoption order has a quite different standing to almost every other order made by a court. It provides the status of the adopted child and of the adoptive parents. The effect of an adoption order is to extinguish any parental responsibility of the natural parents. Once an adoption order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an adoption order has been made the adopted child ceases to be the child of his previous parent and becomes the child for all purposes of the adopters as though he were their legitimate child.”

And, as Lord Bingham MR (as he then was) observed:^[9]

“The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents. [As such] the courts have ... been very strict in their refusal to allow adoption orders to be challenged.”

(b) There are strong public policy reasons for not permitting the revocation of adoption orders once made, grounded in the nature and intended effect of an adoption order, but also in the grave damage that would be done to the lifelong commitment of adopters to their adoptive children if there was a possibility of the child, or indeed the parents, subsequently challenging the validity of the order and in the dramatic adverse effect on the number of prospective adopters available if prospective adopters thought that the natural parents could, even in limited circumstances, secure the return of the child after the adoption order was made: HX v A Local Authority (Application to Revoke Adoption Approved Judgment Order) [2020] EWHC 1287 (Fam) at [38].
(c) The Court does not make an adoption order unless it is satisfied both that nothing else will do and, for the particular child, nothing else is better. It follows, that the Court will be similarly cautious when contemplating revocation of an adoption order which is intended to be final and lifelong: In J (A Minor - Revocation of Adoption Order) [2017] EWHC 2704 (Fam) at [10] per Hayden J.
(d) Subject to the very narrow circumstances provided for by the UK Act, the only ways of challenging adoption orders are by certiorari or appeal (and, if necessary, by leave to appeal out of time)^[10] or by invoking the inherent jurisdiction of the High Court, but only in highly exceptional and very particular circumstances: Re Webster & Anor v Norfolk County Council [2009] EWCA Civ 59 at [149] per Wall LJ.^[11] Those highly exceptional circumstances must comprise more than mistake or misrepresentation or serious injustice and amount to a fundamental breach of natural justice: HX v A Local Authority, supra.
(e) In the absence of procedural irregularity such as - failure to effect proper service of the adoption proceedings on a natural parent or ignorance of the parent of the existence of the adoption proceedings,^[12] breach of natural justice^[13] or fraud - an adoption order, regularly made, cannot be set aside either on the ground of mere mistake or even if there has been a miscarriage of justice: Re O (A Child) (Human Fertilisation and Embryology Act: Adoption Revocation) [2016] EWHC 2273.^[14] To allow such considerations to invalidate an otherwise properly made adoption order would undermine the whole basis on which adoption orders were made, namely, that they are final and for life as regards the adopters, the natural parents and the child. As such, they can be set aside only in cases where natural justice had been denied; where, for example, the natural parent who might have wished to challenge the adoption had never been told it was going to happen, or where the order had been obtained by fraud: Re B, supra.

‘Highly exceptional and particular circumstances’

38. Examples of cases in which the UK Courts have found ‘highly exceptional and particular circumstances’ to justify exercising their inherent jurisdiction to revoke adoption orders include:
    • (a) In J (A Minor - Revocation of Adoption Order) [2017] EWHC 2704 (Fam), a judge who was confused as to what application she was hearing and what procedure she was following, adjourned to consider her decision. She handed down a written judgment in which she refused the natural mother leave to oppose adoption of her child and granted an adoption order to the applicants, at what was effectively, a first directions hearing. On appeal, Hayden J held, in summary, that:
      • (i) the judge “manifestly had insufficient material before her to make the Order” and that the making of it was a “complete aberration and plainly flawed”;
      • (ii) the “complete absence of due process and a wholesale abandonment of correct procedure and guidance” was “a clear basis upon which to consider whether the Order should be revoked”;^[15]
      • (iii) where an adoption procedure is fatally flawed, an application to revoke should be made;
      • (iv) that the circumstances in which the adoption order was made were 'highly exceptional and very particular' such that it was a proper exercise of the Court's inherent jurisdiction to revoke the adoption order; and
      • (v) although conscious of the impact of the decision on both the birth parents and the prospective adopters both of whom would be distressed and unsettled by the uncertainty, His Honour emphasized the important and inalienable right of the child to know in the future that “the process by which he may have been permanently separated from his family was characterized by fairness, detailed scrutiny and integrity.”
    • (b) In ZH v HS & Ors (Application to Revoke Adoption Order) [2019] EWHC 2190 (Fam), a similar case of serious procedural irregularity, a Somali national sought asylum in the UK. She had 8 children. In 2014, she had to flee due to political unrest. At that time, she was pregnant. The father of her children remained in Somalia. After the subject child was born, the mother travelled with him and sought to enter the UK. They became separated and the child was eventually delivered to his paternal aunt and uncle who notified the local authority. The Home Office was also notified, and asylum was claimed for the child. The aunt and uncle submitted an application for adoption of the child. At the hearing, they appeared. No other parties were present or represented. The court order that day recorded that the child’s mother was said to be missing and her father was said to be supportive of the application to adopt. The applicants attended a second hearing in person without an interpreter. No other parties were present or represented. The court file recorded the hearing as being relatively short and an adoption order was made. In July 2018, the mother filed an application to revoke the order. All parties supported the application. Theis J identified a number of substantive and procedural flaws (according to the relevant Act) including the failure to meet the required length of time the child had lived with the prospective adopters (at least 3 years), the requirement of notice to be given to the local authority of intention to adopt, neither parent was given notice of the adoption application, there was not consent of the father or the mother and the Court did not join the child and appoint a Children’s Guardian. His Honour considered that those errors went “to the very root of the adoption process” and “tainted the entire process”. The adoption order was not lawfully or properly made. His Honour was therefore satisfied that highly exceptional and very particular circumstances existed calling for the inherent jurisdiction of the court to revoke the adoption order.
    • (c) In PK v Mr & Mrs K [2015] EWHC 2316 (Fam), the child was aged 4 when adopted. Two years later, she was sent to live in Ghana with members of the adoptive parents’ extended family. There, the child was subjected to significant abuse by those who had responsibility for looking after her. In 2014, the child returned to England and was reunited with her biological mother and maternal grandmother. Upon her own application, she became a ward of the court. Orders were made granting her mother interim and then full care and control. The adoptive parents attended court early on in the wardship proceedings but raised no objection to the child living with her natural mother. Thereafter, they played no part in the proceedings. The child was intimidated by them. Pauffley J found that the adoptive parents had relinquished responsibility for the child nine years earlier and inferred that they had no intention to oppose the applications which “would have the effect of breaking the legal links between them and (the child)”. In granting the application, His Honour held:

“Whilst I altogether accept that public policy considerations ordinarily militate against revoking properly made adoption orders, and rightly so, instances can and do arise where it is appropriate so to do. This case, it seems to me, falls well within the range of highly exceptional and very particular circumstances.”

39. Cases in which such circumstances were not found include:
    • (a) In Re B, ibid, material mistakes on the part of the adoptive parents as to the race, ethnic origin or religion of the natural parents or the child were held to be insufficient to invoke the Court’s inherent jurisdiction to revoke the adoption order there.
    • (b) In HX v A Local Authority & Ors, ibid, the child, who was born in Uganda, was removed by her birth mother with the knowledge of the birth father and with ties severed. An adoption order was granted in respect of the child. Subsequently, the birth father applied to revoke the adoption order on grounds that he was not aware of the adoption proceedings and that the local authority failed to take adequate steps to locate and notify him of the proceedings. MacDonald J accepted that there was some evidence of procedural deficiencies. Notwithstanding, and while acknowledging the gravity of his decision, His Honour dismissed the application because he was not satisfied that the birth father had demonstrated highly exceptional circumstances grounded in a fundamental breach of natural justice required to justify the Court revoking an adoption order pursuant to its inherent jurisdiction.

(c) MacDonald J also referred to the decision in Re Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59. Mr and Mrs Webster were married with four children. In 2003, child B was admitted to hospital, where he was found to have a number of fractures. He had also been suffering from a feeding problem for at least a year prior to his admission to hospital. The local authority’s view (based on medical opinions) was that B’s injuries were non-accidental, and that they had been caused by one or both of his parents. The authority took care proceedings in relation to all three children, who by then, had been placed with specialist foster parents. During a hearing in 2004, Barham J found that B’s injuries were non-accidental and had been caused by one or both of his parents. Care orders were made in relation to all three children and they were legally freed for adoption, thereby effectively dispensing with the consent of their parents. In 2005, three of children were adopted in two separate placements.

In 2006, the Websters had a fourth child, in the Republic of Ireland, to avoid his immediate removal from their care by the local authority. Despite that, the local authority took care proceedings, relying on the evidence relating to child B. At the local authority’s request, the Websters successfully completed a residential assessment with their child, who at that stage had lived with them all his life. They were also given permission to obtain fresh expert evidence relating to B. That resulted in a powerful medical opinion that B’s injuries were more likely due to iron deficiency or scurvy rather than abuse.

The Websters submitted that the making of the previous care orders, and adoptions which followed, represented a serious miscarriage of justice, which in the interests of all their children, must be corrected. Wall LJ noted that those previous proceedings were ‘completely over and in the past’, that the three older children had been adopted, and that, in law, they were the children of their respective adoptive parents. The Websters did not seek to upset those adoption orders, nor interfere in the new lives of those three children. His Honour acknowledged their heartbreak but opined that, in any event:

“... it would be both unthinkable and, in law, impossible for them to do so, the adoption orders having been validly made a considerable time ago” and “in good faith on the evidence then available”.

His Honour repeated the message of the court in W v Oldham Metropolitan Borough Council [2005] EWCA Civ 1247, where a well-known consultant paediatric neuro-radiologist advised the judge that brain injuries suffered by the child were non-accidental. Other medical witnesses deferred to the specialist but had not themselves reviewed the relevant scans. Only after a care order had been made on the basis of non-accidental injury did the parents of the child concerned obtain a second opinion on the injuries. The court, by consent, ordered the case to be re-heard, and on the re-hearing, the parents were vindicated. Accordingly, the order was held to be vitiated by a “true miscarriage of justice”.

However, in the Webster’s case, the Judge was satisfied that everybody acted in good faith, and that the doctors who advised the Court gave their honest, professional opinions. Accordingly, he found that, in those circumstances, there was no inherent power in the court to set aside an adoption order and the appeal was dismissed.

(d) In Re W (Inherent Jurisdiction Permission Application Revocation and Adoption Order) [2013] 2 FLR 1609, a year after an order for adoption was granted, the adoptive parents separated. They were unable to meet the child’s particular needs and she was reported to display various negative behaviours.^[16] Seven years on, the child was placed into foster care. Her adoptive family abandoned her to the care of the local authority and wanted nothing more to do with her. Even though the child settled well into her foster placement and did not display the same troubling behaviours, she still showed signs of attachment to her adoptive family and wanted to return to live with them. The local authority consulted a child psychiatrist who informally opined that it was in the child’s best interests to sever all ties with her adoptive parents. On that basis, and that the adoptive parents’ rejection of the child had caused her emotional and psychological harm, the local authority applied for revocation of the adoption order.

The judge rejected the application. He considered the reasons advanced “wholly insufficient even to create a prima facie case for revocation”. He turned instead to consider the matter as a question of the child’s welfare. His Honour considered a variety of issues including whether the child should have her own representation given that her wishes and feelings did not correspond with the Children's Guardian's views as to her best interests (to create a 'fresh start') and the “thorny question” of serving the natural parents with the application. His Honour formed the view that the application for permission to invoke the inherent jurisdiction could only be allowed if it were in the best interests of the child. He noted that even though there was a possibility that revocation would help the child come to terms with what had happened in her life, by giving her a completely 'fresh start', there was an equal risk of the child becoming the subject of ongoing litigation (for example, by the birth family, if they sought contact) which would itself be detrimental to her ability to settle down with her foster carers. Also against revocation was the fact that adoption is final and the damage which would be done by seeming to undermine that principle. A further, albeit secondary, consideration was the considerable public expense the overall process would entail.

On balance, His Honour came to the view that he should refuse leave to invoke the inherent jurisdiction as it was likely that ‘the process would stir up all sorts of potential problems at the human level’ and would be ‘a Pandora's box’. He concluded that the court should only revoke, if that course, and its likely consequences, seem ‘proportionate, necessary and reasonably likely to be ultimately successful’.

Australia

40. In Re B, ibid, it was observed that the position under Australian and New Zealand law stands in contrast to that of the UK and that “by clear design: wisely or otherwise, they have always preferred a less final adoption regime”.
41. In certain Australian States, as noted above, the statutory bases for discharge of an adoption order include “some other exceptional reason”. The term “exceptional reason” is not defined. It has been described as a term of “uncertain, nebulous and elastic contours given the vicissitudes of human experience” and “inherently incapable of exhaustive statement”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at 229 [30]. Like the words “special reasons” or “special circumstances”, words such as “exceptional reasons” are used where “it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition”: Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 523 [13].
42. At a more granular level, the word “exceptional” is an ordinary, familiar, english adjective, and denotes that the thing to which it is applied (in the Adoption Act, the reason) is unusual, or out of the ordinary, in some way special, or an exception to the general run of things. But, to be “exceptional”, a reason need not be unique, or unprecedented, or even very rare: R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208. It can include a single exceptional reason, a combination of exceptional reasons, or a combination of ordinary reasons, which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26] (Rares J).
43. In Re S [1969] VicRp 59; [1969] VR 490 at 495, McInerney J opined that in considering whether there is some exceptional reason why an adoption order should be discharged, the Court must have regard to:

“... whether the order, if allowed to continue, would fulfil or defeat the essential objects of an adoption order...”

44. Whether there is an exceptional reason giving rise to a discretion to grant a discharge order will be question of fact and degree in each case. It is open to the Court to take into account a broad array of circumstances. The “exceptional reason” does not have to relate to the circumstances in which the adoption order or consent were obtained; rather, the reason can relate to other matters, including matters arising after the adoption order was made: Adoption of LVH [2014] NSWSC 1902 at [6] (Brereton J). For example, the aim of adoption - to ensure the best interests of the child - may not be met where a child is mistreated by the adoptive parent, which may therefore enliven the discretion to discharge the adoption order: MJD v Chief Executive, Department of Communities, Child Safety, and Disability Services, Adoption Services [2015] QSC 139 at [16]–[17].^[17]

New Zealand

45. In New Zealand, as noted above, jurisdiction is conferred by s 20(3) of the Adoption Act 1955. Because discharging an adoption order is such a drastic step, the Act limits the Court’s power to do so. However, where a mistake or misrepresentation gives rise to a public policy issue, such as preservation of the integrity of the judicial system, then the Court might be more willing to regard a misrepresentation as resulting in a discharge: GM v T [1996] NZFLR 817 at 827. For example, in:
    • (a) Application by C & K (Adoption) (1984) 3 NZFLR 321, adoption orders that had been made 20 years previously were discharged on the ground of mistake and misrepresentation in that the adoptive father of the children was actually their natural father.
    • (b) Re E [1992] NZFLR 216, an adoption order made some 16 years previously was discharged because the original Court had not been informed that the seventeen-and-a-half-year-old young person, whom it was proposed to adopt, was married and living with her spouse elsewhere.
    • (c) Edwards v Houghtonhttps://advance.lexis.com/document/?pdmfid=1230042&crid=1d8fc492-c519-4911-b294-2d3e43122613&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-nz%2Furn%3AcontentItem%3A5D12-0SS1-F5T5-M1YJ-00000-00&pdscrollreferenceid=PARA-FLS-6-717&pdtocnodeidentifier=AAEAARAED&ecomp=-b2fk&prid=d85f3a84-bbf8-4c0c-9553-33b0a515c068 [2018] NZFC 2716, the applicants had been abused by their adoptive father and sought to discharge the adoption order made some 47 years earlier. They argued that there had been a material misrepresentation that their adoptive father was a fit and proper person to be in a parental role to them. Judge Black noted at [9] that had the Court known about the man’s propensity for violence and sexual abuse, no adoption order would have been made. In granting the discharge of the adoption order, His Honour noted that the legal relationships reverted to what they were immediately prior to the making of the adoption order and that the Registrar of Births, Deaths and Marriages would be provided with a copy of the order and would issue on request fresh birth certificates showing the original particulars rather than the adoptive particulars.
    • (d) GM v T, ibid, a three year old order was discharged where a social worker’s report, which the original judge assumed had been commissioned pursuant to s 10 of the Act, was later discovered to have contained a number of misrepresentations and false assumptions. Judge Boshier said that even in a case of non-compliance with the mandatory provisions of s 10, it might nevertheless be appropriate to decline to exercise the discretion and that “overpowering welfare considerations” would need to be established before a court would consider setting aside the adoption order. His Honour also noted that silence in a report could amount to misleading conduct where the circumstances are such as to give rise to the reasonable expectation that, if some relevant fact exists, it would be disclosed.
    • (e) Larson v Larson [2018] NZFC 2195 at [39], the Court^[18] stressed the need for caution when considering events which occur after the adoption order as a basis for discharging it. For instance, it was considered that a separation which occurs after an adoption order is made, cannot form the basis for a successful application to discharge that order. By contrast, in SFD v JEL and LML [2005] NZFLR 1057, Judge Moss held that there had been a material misrepresentation to the Court as to the adoptive father’s fitness and ability to care for a child, by reason of the father’s later actions in sexually and emotionally abusing the child.

Conclusion on jurisdiction

46. From the above survey of the English common law principles and approaches taken by the courts in Australia and New Zealand, albeit in the context of their respective statutory regimes, and to the extent that those decisions may be considered persuasive,^[19] I consider the following ought be the position in Tonga.
47. An adoption order, when made, is meant to be final^[20] and establishes legal rights which have significance beyond just those of the adopted person. Sound public policy considerations ordinarily militate against revoking an adoption order that has been properly made. This is not to say, however, that instances can and will arise where it is appropriate so to do.^[21]
48. In appropriate circumstances, the Supreme Court of Tonga has inherent jurisdiction to revoke or discharge Letters of Adoption.
49. The circumstances required for the Court to invoke jurisdiction and exercise its discretionary power should not be as stringent or as limited as the “highly exceptional and particular circumstances” test applied in the UK. The extent of adoption of the English common law mandated by s 3 of the Civil Law Act is also conditioned by s 4(b) to only so far as the circumstances of the Kingdom and of its inhabitants permit and subject to such qualifications as local circumstances render necessary. The circumstances, attitudes and customs surrounding adoption in Tonga are markedly different to those in the UK. For instance:
    • (a) the Act only refers to illegitimate children being able to be adopted;
    • (b) it is not uncommon for a woman to give her sibling or other family member a child if that other does not or cannot have a child of her own;
    • (c) it is equally not uncommon for children to be placed with other members of an extended family where the parent/s of the child is/are unable, financially or otherwise, to care for the child or where the mother of the child marries or remarries, and her new husband does not want the child;
    • (d) the living conditions, over time, for the average Tongan can vary dramatically and abruptly. Whether it be economic fluctuations leading to recurring unemployment, irregularity in frequency or quantum of overseas remittances from relatives or environmental disasters such as cyclones, the vicissitudes of life in Tonga play a major part in many Tongan’s ability to care and provide for themselves and their children;
    • (e) Tonga’s social and filial fabric includes ‘customary adoptions’. By s 6 of the Guardianship Act, the Court may grant a guardianship order in favour of a person who has customary adoption of a child. Customary adoption may be inferred from discussions or conduct and notwithstanding that a parent of the child may have a continuing relationship with the child. As noted above, s 17 of the Act provides that a person to whom Letters of Adoption (or a legal adoption order) have been granted shall also be the legal guardian of the child and shall be responsible for the maintenance and education of the child;
    • (f) Tonga’s relatively small population and interwoven family connections have the practical effect that even where a child is adopted, the natural mother may still have contact with the child on a regular basis and play a continuing part in the child’s life;
    • (g) the socio-economic plight of many Tongans leads to emigration to other countries in the Pacific region, mainly, New Zealand, Australia and the USA, where a substantial Tongan diaspora has developed, in order to seek perceived better education, an enhanced material life and other opportunities for themselves and their children. Many who leave and successfully obtain residency status in that other country subsequently seek to adopt a child from within their extended family or of a friend in Tonga in order to give that child those seeming advantages. The success or otherwise of those intercountry adoptions will often depend, in large part, on the immigration policies of the other country which can change from time to time. Such is the instant case;
    • (h) many applicants for adoption, including the necessary consenting natural mothers, are unable to afford legal advice or representation. As a result, the Court is heavily dependent on the Guardian ad Litem to investigate and report on applications. Notwithstanding very commendable efforts, for the Court is continually grateful, there are still cases in which shortcomings in the completeness and/or accuracy of the evidence placed before the Court may or may not be identified before an application is decided;
    • (i) the only measures referred to in Part III of the Act, by which the Court is to determine whether to grant Letters of Adoption, are the interests of the child and whether the applicant/s is/are fit and proper person/s; and
    • (j) save for the operation of the Legitimacy Act, and in respect of hereditary titles and estates, the rights of an illegitimate child, or lack thereof, in respect of land and the laws of succession to land are unaffected by any adoption.
50. For those reasons, I consider that the test in Tonga for invoking the Court’s inherent jurisdiction to revoke an adoption order should simply be one of exceptional circumstances. Informed by the Australian jurisprudence referred to above, and without attempting to impose any rigid or fixed definition, circumstances will be exceptional where they are unusual, or out of the ordinary, in some way special, or an exception to the general run of things.
51. Ordinarily, exceptional circumstances will encompass those discussed in the authorities referred to above (notwithstanding they have been codified in specific statutory regimes), such as fraud, duress or other improper means, as well as fundamental breaches of natural justice.
52. Further, and unlike the UK, I consider that the Courts in Tonga should take a more flexible and concessional approach to cases involving material mistake, misrepresentation or serious injustice. For example, there may be cases, as in New Zealand, where a mistake or misrepresentation gives rise to a public policy issue, such as preservation of the integrity of the judicial system and is of such seriousness as to warrant a Tongan Court discharging the order.
53. Whether exceptional circumstances exist must be considered and determined in the context of all the relevant facts in each particular case. Where they do exist, the Court still retains a discretion, which is to be exercised in a principled manner.
54. In every case:
    • (a) the objects of adoption, including ‘the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences’,^[22] and ‘new family ties which approximate blood ties’^[23] as well as the ‘destruction of the status as between others’;^[24]
    • (b) the importance of the finality of adoption orders and their effects, legal and otherwise, on all parties concerned; and
    • (c) the effects on any one or more of those parties if the order should be revoked,

are all highly relevant considerations.

55. Ultimately, however, the overarching, paramount consideration must remain the best interests of the child.
56. As such, the question may be framed as whether the order, if allowed to continue, would fulfil or defeat the essential objects of an adoption order.^[25]
57. The consequence of setting aside an adoption order is a reversion in law to the status quo ante.^[26]

Application to the instant case

58. For the reasons which follow, I consider that the circumstances of this case are sufficiently exceptional as to invoke the Court’s inherent jurisdiction and to warrant exercising the Court’s discretion to revoke the Letters of Adoption in respect of Sam.
59. All relevant adult parties agree to the revocation. Due to his young age, I did not hear from Sam directly. However, he was present during the hearing, sitting between his guardians. From their evident affection and protection towards him, and from the material before the Court, it was abundantly clear that they are the only parental care-givers he has ever known.
60. Revocation of the Order will not have any adverse effect on any of the parties. Sam has never been able to develop any real relationship with his adoptive parents. The history of the matter, the affidavits by the adoptive parents on this application, and my observations of the adoptive father while giving his evidence, clearly indicated to me that they have relinquished responsibility for Sam, and probably did so some years ago, when they gave up trying to fulfil the US immigration requirements. Their support for the application, which "would have the effect of breaking the legal links between them” and Sam, is a powerful factor in favour of granting the application.^[27] There will obviously be no adverse effect on the natural mother, who is the applicant here, because she does not seek a return to the status quo ante, whereby she would regain legal custody and control of Sam. Rather, she wishes for his guardians to be able to apply to adopt Sam should this application be granted. In turn, and perhaps most importantly in terms of Sam's best interests, allowing the application would enable his guardians to make that application, which they have deposed they intend to do.
61. The Letters of Adoption have never practically been effected. Sam has never been able to join or become part of the adoptive parents’ family. Therefore, the essential objects of the order have never been fulfilled.
62. Further, there are a number of reasons why, in my respectful opinion, the original Order should never have been made.
63. Firstly, there is no record of the Court ever being apprised of the US immigration requirement of two years’ residency with the child in Tonga. Even though the adoptive father said in evidence that he and his wife did not know of the requirements before the Order was made, as a critical matter which has ultimately frustrated the Order, any such requirements should have been investigated to ensure that, if the Order was made, Sam would be allowed to enter and remain in the United States with his adopted family. Similar precautions were formalised in Practice Direction No. 1 of 2019 in respect of applications for Legal Guardianship Orders. It has become apparent over recent years that different countries in the region alter their immigration policies from time to time in respect of intercountry adoptions and/or attempts to use Guardianship Orders by this Court to permit a Tongan child being brought into that other country for the purpose of adoption there. As such, the Court ‘manifestly had insufficient material’ before it upon which to make the Order and the making of it was therefore ‘plainly flawed’.^[28]
64. Secondly, paragraph 4 of the adoptive parents’ respective affidavits in 2012, to effect that they had taken Sam into their “sole care” since he and his mother were discharged from the hospital, misrepresented or had the potential to misrepresent a material fact relevant to an important consideration. As noted above, the evidence at the hearing on the instant application was that prior to the Order being made, the adoptive parents only spent about two weeks with Sam. It was reasonable to infer from the adoptive parents’ statement that Sam had remained with them since shortly after his birth. That was not the case.
65. The circumstances in which a judge may recall a perfected order, regularly made, are extremely limited. However, in Australia, it has been held that a judge has power to set aside his/her order upon being satisfied either that the order has been made improvidently, or that facts have been withheld from him which should have been disclosed to him, but which were not disclosed either through negligence or some other cause, or where the order was made under circumstances which operated to deprive his/her mind of the power of exercising a fair judgment at the time. The jurisdiction is, however, to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. However, that public interest will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law: Kaukauloka v Luna'eva & Sons Co Ltd [2021] TOLC 4.^[29] In my view, those principles should be adopted in Tonga and are apposite to the instant case.
66. Thirdly, and further to the last, the statements in the Guardian ad Litem report at:
    • (i) paragraph 5(6), that the applicants were unable to fulfil the six months requirement with the child because of their work commitments in the United States; that they had made commitments to come to Tonga every other month to spend time with the child, so that he would know the applicants; but that the longest period the applicants would stay in Tonga would be three weeks;
    • (ii) paragraph 6(7), that the female applicant remained in Tonga to finalise the adoption application; and
    • (iii) at paragraph 8(3), that the child (who was then only one year old) had met the applicants and knew them well,

were all presumably derived from information provided by the adoptive parents. Based on the evidence now to hand, they were also either false or at least misleading and thereby resulted in the Court proceeding on a further misapprehension of relevant facts.

67. The statement of the applicants being unable to fulfil the six-month requirement did not accurately reveal the extent to which they were unable to do so in that they had only spent about two weeks with the child. The reference to the adoptive parents making commitments to come into the country every other month is belied by the evidence on this application that they only visited Sam for approximately two weeks all up after the Order was made. The statement that the female applicant remained in Tonga to finalise the application gave the further misleading impression that she stayed with Sam during whatever period that might have been, which is at odds with the admitted evidence that the applicants only spent two weeks with him prior to the order being made. The reference to Sam having met the applicants and knowing them well, given he was a one year old toddler at the time, also conveyed a false impression of the extent to which he had spent time and become familiar with the applicants, when in fact, he was being cared for by his guardians.
68. Fourthly, that the applicants had nowhere near fulfilled the six-month care requirement or the importance of that requirement appears to have been overlooked by the judge. Since at least Practice Direction No. 3 of 1992, applicants for Letters of Adoption have been required to specify the date on which they first took the child into their care and the dates of any period or periods in which the child has been in their sole care. That direction was repeated in Practice Direction No. 1 of 2019, although Paulsen LCJ went further by specifying^[30] that applications will only be accepted for filing when all the requirements are provided unless the applicants have been granted a waiver.
69. In the present case, the stated requirement of the 1992 Practice Direction was not addressed, or accurately addressed, in the material before the Court.
70. In relation to the care period, in Re Whyte and Whyte [1993] TOSC 5, Dalgety J (as His Lordship then was) opined that:

“5. ... Normally such a period of care (of the child by the applicants for adoption) is necessary before the Court is in a position to make a proper judgment as to whether or not an adoption order is in the best interests of the children. Although no period is specified in the Maintenance of Illegitimate Children Act (Cap. 30) or Practice Note 03/92 on Adoption Applications, it is unlikely that the Court will be able to make a decision until both prospective adoptive parents have cared for the child or children to be adopted for a continuous period of several months: mandatory periods of between six and twelve months are not uncommon in other Commonwealth jurisdictions. In Tonga the Supreme Court has a welcome discretion. [Six] months is probably an adequate period given the closeness of Tongan society although shorter periods may be appropriate if justification exists for curtailing the period to less than six months. ...”

71. Further, in Hatch v Solicitor General [2010] TOCA 22, the Court of Appeal observed^[31] that any decision about the requisite period of care before any adoption order is made was ‘plainly a discretionary one’. The requirement was explained thus:

“[5] The need for an applicant for adoption to have cared for the child for six months is intended to allow a proper assessment of the relationship between them. So much is apparent from the statement dated 8 May 2000 issued by the Chief Justice entitled "Re: Adoption Cases". The Chief Justice noted that:
‘The court will only grant letters of adoption after the applicants have had the care of the infant for a period that is sufficient to allow a proper assessment of the relationship between them. In most cases that would be at least six months and this requirement will only be waived in exceptional cases and for good reason.’
[6] We understand that this statement of the Chief Justice was based on his Honour's careful consideration of practices in England which, while then influenced by specific and complex statutory provisions, provided guidance for the Courts in the Kingdom of Tonga.
[7] The position in England on the question of whether it was necessary for the child to have lived with the adopters can be illustrated, for example, in the discussion par. 658 of Vol.24 of Halsbury's Laws of England, 4th edition and, as to the adoption of children from abroad, the discussion in par 655 of that volume and footnote 6 in particular. Generally there was a need for the child and adopters to have lived together though the period depended on the age of the child.
[8] The purpose of such provisions was described by Buckley J in Re M (an infant) [1964] 2 All ER 1017 at 1023 as being ‘to give the court an opportunity of satisfying itself that the infant has settled down happily with both the applicants and that both the applicants are likely to prove suitable persons to be in a parental relationship to the infant’. In England, laws in the past have prohibited the removal of infants. They have prevented parties living overseas removing an infant in order to have continuous care and control of the infant for a specified period to satisfy then prevailing English adoption laws: see Re M (an infant) [1973] 1 All ER 852. That continuous care and control had to be in England: see Re W (an infant) [1962] 2 All ER 875.”

72. Their Honours concluded^[32] by leaving open to the then Chief Justice to consider whether there should be a review of the practices in the Supreme Court about the adoption of Tongan children born in the Kingdom and whose adoption is sought by persons living permanently outside the Kingdom.
73. In the Matter of Maintenance of Illegitimate Children Act and Application by Saavedra [2012] TOSC 64^[33] (“Saavedra”), Scott CJ referred to Hatch and described the ‘six month rule’ as:^[34]

“... not an inflexible requirement, particularly in the case of very young children who might never have come to know their natural mothers. The requirement that the Applicants were sufficiently acquainted with the children they were proposing to adopt is only one aspect of the Court's duty to enquire whether the proposed adoption is in the best interests of the child.”

74. In this case, there was no evidence of any significant period of continuous care and control by the applicants over Sam, in Tonga, or at all. Nor was there any evidence to support a finding that they were, or could have been, “sufficiently acquainted” with him.
75. In my view, the lack of any evident consideration of an appropriate period of care in this case, whether that be six months or some other, and the very real likelihood that two weeks, had it been disclosed, would never have been a sufficient period upon which to make the Order, constituted a ‘substantive and procedural flaw’^[35] sufficient to now set it aside.
76. Fifthly, there was no evidence of any consideration of the established principles in Tonga concerning intercountry adoptions. In the Matter of Maintenance of Illegitimate Children Act and Application by Matheny [2012] TOSC 48,^[36] a case involving facts similar to the present, Scott CJ referred^[37] to Article 21(b) of the United Nations Convention on the Rights of the Child, to which Tonga is a party, which provides that:

"inter-country adoption may be considered as an alternative means of children's care, if the child cannot be placed in a foster or adoptive family or cannot in any suitable manner be cared for in the child's country of origin".

77. In Saavedra, which also predated the making of the Order here, Scott CJ referred to the view he expressed in Matheny that:^[38]

“... inter-country adoption, at any rate to applicants who were not related in any way to the children, should only:
‘be considered as an alternative...if [the]child cannot be placed in a foster or adoptive family or cannot in any suitable manner be cared for in the child's country of origin" (see United Nations. Convention on the Rights of the Child — Article 21 (b)).’”

78. The decision in Saavedra was appealed. In Saavedra v Solicitor General [2013] TOCA 7,^[39] the Court of Appeal emphasised His Honour’s earlier reference below to the best interests of the child as being:^[40]

“... the paramount consideration in adoption cases, including inter-country adoptions, and indeed in other cases involving children. ...”

79. Consequently, the Court held that:^[41]

“... inter-country adoption should be approved only when all other means of caring for a child in Tonga have been exhausted. It is a measure that the Committee on the Rights of the Child has described as ‘a measure of last resort’.”

80. More recently, in Leger v Solicitor General [2016] TOCA 11, the Court of Appeal clarified the ‘measure of last resort’ test in Saavedra, describing it as a term adopted by the Committee which arguably “sacrificed accuracy for brevity”. The Court explained:

“[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. But 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. ...”

81. In the instant case, there was no indication in the Guardian ad Litem report nor any evidence in support of the application, including from the natural mother, that Sam could not be cared for in a suitable manner, whether by his natural mother or a foster or adoptive family in Tonga.
82. Apart from references to the female applicant being the sister of Sam's natural father, who was also based in the United States, in other words, the applicants were related to Sam, and that they aspired to provide him with a ‘better future’ and ‘better opportunities’ in the United States, there is no indication of any analysis as to whether Sam’s intercountry adoption was in his best interests having regard to the considerations and requirements explained in Saavedra.
83. Further, and harking back to the first reason discussed above, in determining whether the adoption would have been in Sam's best interests, there was no apparent consideration of how any perceived "distinct benefits" of growing up in the United States could be materialised if the applicants had not, and could not, fulfil the US immigration requirements for Sam's entry into and residency in that country.
84. Notwithstanding the Guardian ad Litem’s written submission that the circumstances of the case were not sufficient (by the UK standard) to invoke the Court’s inherent jurisdiction, during the course of oral submissions, Ms Tupou conceded, quite correctly with respect, that if Scott CJ had been informed of the issues canvassed above, it is highly unlikely the original Order would ever have been made.
85. I return then, finally, to the paramount consideration in all applications involving adoption, including the instant. That is, whether revoking the Order is in Sam's best interests.
86. The test to determine the best interests of the child cannot be implemented by the devising of a code of rules (substantive, procedural or evidentiary) embodying presumptions and onuses. There must be a judicial evaluation and balancing of many factors from which an overall conclusion is reached on a concept whose application in any given case is inherently imprecise: Re B (A Minor) [2001] UKHL 70; [2002] 1 WLR 258 at 264 [16].^[42] The approach to be adopted is for the Court to weigh, and balance, those factors, in the particular circumstances of the case, without any rigid, or pre-conceived, notions going to what weight any factor should have: Director General Department of Human Services; Re M [2011] NSWSC 369 at [89]–[90].^[43]
87. In this case, all the relevant factors point one way. Revocation will enable Sam’s guardians to apply to adopt him. All present indications, including the fact that they have effectively been his parents since he was one year old, suggest that any such application is likely to be successful. In that event, Sam's place in that family will be formally and legally recognised and secured. As such, granting the application, and its likely consequences, seems ‘proportionate, necessary and reasonably likely to be ultimately successful’ for all concerned, most importantly, for Sam.^[44]
88. Conversely, if the application is not granted, and Sam remains legally the son of the adoptive parents, he will remain in a sort of filial limbo: not actually part of his adoptive family and not actually the son of his guardians. In that sense, to permit the Order to continue would, in my opinion, “defeat the essential objects of an adoption order” and will not serve Sam’s best interests.^[45]
89. Accordingly, it is unnecessary to consider further the Guardian ad Litem’s suggested alternative course as described in paragraph 30(e) above. Further, and in any event, the natural mother did not withdraw her application and Sam's guardians are yet to file any application to adopt him once they are able to do so. In other words, the Court was required to deal with the application before it, which, by reason of the foregoing, it has endeavoured to do.

Result

90. For those reasons, I am satisfied that the circumstances of this case are sufficiently exceptional to invoke the Court's inherent jurisdiction and to exercise its discretion in favour of the application.
91. Accordingly, the following orders were made:
    • (a) The Order of the Court made on 26 February 2013 granting Letters of Adoption in respect of the child to [the adoptive parents] is hereby revoked.
    • (b) Pursuant to section 7 of the Guardianship Act, Sam’s guardians are formally appointed as his guardians.
    • (c) Subject to any further Order, changes to Sam’s birth certificate will await the filing, hearing and determination of the proposed application for his adoption by his guardians.
92. In that latter regard, the file will be reviewed in three months’ time.
    

NUKU’ALOFA	M. H. Whitten QC
13 May 2021	LORD CHIEF JUSTICE

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^[1] [8]

^[2] Paragraph 5(6).

^[3] Keilini Hurrell (FA 1042 of 1997); ‘Amelia Siumalu Angilau (RG 819 of 2011) and, more recently, Tu'ilotolava Loupua Vatuvei (FA 227 of 2018).

^[4] https://www.uscis.gov/adoption/bringing-your-internationally-adopted-child-to-the-united-states

^[5] Section 19 of the Victorian Adoption Act 1984 is in similar terms.

^[6] For example, see Larson v Larson [2018] NZFC 2195.

^[7] Such as ss 4 (age and relation requirements of applicant/s); s.8(7) (orders made within one month of waiving the requirement of the natural parent/s or guardian/s’ consent); and 16(2)(b) (effect of prior adoption order upon new order).

^[8] p. 245

^[9] p. 251

^[10] Re B, supra, at 342.

^[11] Applied in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609 at [6]; PK v Mr & Mrs K [2015] EWHC 2316 (Fam) at [3] & [4] and ZH v HS & Ors (Application to Revoke Adoption Order) [2019] EWHC 2190 (Fam) at [38].

^[12] E.g. In re F.(R.) (An Infant) [1970] 1 Q.B. 385, In re R.A. (Minors) (1974) 4 Fam. Law 182 and In re F. (Infants)(Adoption Order: Validity) [1977] Fam. 165 as referred to by Swinton Thomas LJ in Re B, ibid, at pp 245-246 and cited in HX v A Local Authority & Ors, ibid, at [32].

^[13] Re K (adoption: foreign child) [1997] 2 FLR 221 at p. 228 Butler-Sloss LJ (as she then was).

^[14] Citing, Re B, ibid and Re Webster v Norfolk County Council and the Children (by their Children’s Guardian) [2009] EWCA Civ 59.

^[15] Citing the Court of Appeal in Re K (Adoption & Wardship) [1997] 2 FLR 221.

^[16] "soiling", "lying", "hoarding food", "showing sexualised and risky behaviour", "having poor hygiene", "having inability to make suitable friends", and "being malicious and vindictive"

^[17] A case involving “horrific mental and physical abuse that [the applicant] suffered at the hands of his adoptive father and the terrible impact upon him of that abuse”.

^[18] in D v P.

^[19] Evidence Act, s 166.

^[20] In re B (Adoption: Jurisdiction to Set Aside) [1995] EWCA Civ 48; [1995] Fam 239 at 251–252 (Sir Thomas Bingham MR).

^[21] Re Gordon (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673 citing Secretary, NSW Department of Communities and Justice v Gabrielle; Re Olivia and Ava [2020] NSWSC 281 at [55].

^[22] Oxfordshire County Council v X [2010] EWCA Civ 581 at [4] citing in Re J (Adoption: Non-patrial) [1998] INLR 424 at p 429.

^[23] Re Gordon (a pseudonym) (No 2); Application to discharge adoption order [2020] NSWSC 673.

^[24] Re DG and the Adoption Act 2000 [2007] NSWCA 241; (2007) 244 ALR 195 at 196 [4].

^[25] Re S [1969] VicRp 59; [1969] VR 490 at 495, per McInerney J.

^[26] ‘the previously existing state of affairs’: Re W (A Child) [2010] EWCA Civ 1535 at [12].

^[27] As per PK v Mr & Mrs K [2015] EWHC 2316 (Fam).

^[28] As referred to In J (A Minor - Revocation of Adoption Order) [2017] EWHC 2704 (Fam).

^[29] Citing Re Bruce [1886] VicLawRp 107; (1886) 12 VLR 696; Autodesk Inc. v. Dyason [No. 2] [1993] HCA 6; (1993) 176 CLR 300 per Mason CJ (dissenting) at [4], approved by the majority in Aktas v Westpac Banking Corporation Limited [2010] HCA 47 at [6].

^[30] [11]

^[31] [4]

^[32] [9]

^[33] FA 71 & 72 of 2012 (14 December 2012)

^[34] [9]

^[35] As per ZH v HS & Ors (Application to Revoke Adoption Order) [2019] EWHC 2190 (Fam).

^[36] FA 121 of 2011 (22 February 2012).

^[37] [11]

^[38] [12]

^[39] AC 1 of 2013 (17 April 2013)

^[40] [4]

^[41] [5]

^[42] Lord Nicholls, Lord Mackay, Lord Hoffmann, Lord Millett and Lord Rodger agreeing.

^[43] Cited with approval by Bergin CJ in Eq in Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926 at [93], and by Black J in In the matter of S [2018] NSWSC 367 at [14].

^[44] Per In Re W (Inherent Jurisdiction Permission Application Revocation and Adoption Order) [2013] 2 FLR 1609.

^[45] Per Re S [1969] VicRp 59; [1969] VR 490 at 495.