An Application for Letters of Adoption by Mr and Mrs Hoeft, In re [2023] TOSC 4; FA 166 of 2022 (20 January 2023)

IN THE SUPREME COURT OF TONGA

FAMILY JURISDICTION
NUKU’ALOFA REGISTRY FA 166 of 2022

IN THE MATTER OF The Maintenance of Illegitimate Children Act (“the Act”)

AND an application by Mr Lopeti ‘Afa Hoeft and Mrs Na'a ‘O Pangai Hoeft (“the Applicants”) for Letters of Adoption in respect of Tu’italau Emil Jr. Foster, male, born 21 April 2022 (“the Child”).

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RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN KC
Appearances: The Applicants
Ms J. Sikalu for the Guardian Ad Litem
Date: 20 January 2023

1. On 2 November 2022, the applicants filed a letter entitled "application letter for customary adoption". In that letter, they sought the court’s assistance with "our application of customary adoption" but then went on to refer to the application as one for “legal adoption” of the child.
2. The applicants’ letter enclosed a number of documents including the child's birth certificate and a document entitled "Declaration Confirming Agreement for Customary Adoption”.
3. The child's birth certificate shows that he was born legitimate.
4. According to the applicants, their declaration, sworn 1 September 2022, was prepared with the benefit of legal advice. Ms Lesina Tonga is noted as the commissioner for oaths in respect of the applicants’ jurat.
5. Mr Hoeft is a New Zealand citizen by birth and Mrs Hoeft is a permanent resident of New Zealand. Their declaration sets out the circumstances in which they came to agree with the child’s natural parents in September 2020 for the applicants to adopt their next child if that child were to be a boy. They also deposed that the customary adoption of the child formally came into effect on 21 April 2022 but that the “physical handover” of the child was on 25 August 2022 upon their arrival in Tonga. The natural parents are also said you have agreed with the applicants’ intention to take the child with them back to New Zealand. They concluded by stating that they would pursue legal adoption of the child in the near future.
6. Section 15 of the Maintenance of Illegitimate Children Act (which has been in force since 1926) provides that an illegitimate child under the age of 21 years may, with the consent of the mother, be adopted by another person. On that basis, it has been widely accepted in Tonga that only illegitimate children may be the subject of letters of adoption and that legitimate children may only be the subject of a legal guardianship order under the Guardianship Act. Section 6 of that Act provides that the Court may, upon application, make a guardianship order in favour of a person who has had customary adoption of a child.
7. It is the court’s understanding, through numerous previous applications and information provided by Oranga Tamariki in New Zealand, that the current policy of the New Zealand immigration authorities requires letters of adoption in respect of a child being taken out of Tonga to be able to enter and remain as a resident in New Zealand. Guardianship Orders (i.e. in respect of legitimate children) are not accepted for that purpose.
8. After explaining the above legal practicalities and impediments to the applicants’ application for letters of adoption, the applicants were directed to information contained on the New Zealand Immigration website concerning applications for Dependent Child Resident Visas. In the section entitled "Your relationship with your children", it is stated that evidence confirming the relationship with the child may include:

"or if the adoption was customary, a written declaration stating you have adopted the child and the date and country the adoption took place... ".

9. It will be a matter for the New Zealand immigration authorities as to whether the declaration filed by the applicants in this proceeding constitutes sufficient evidence of customary adoption and whether those authorities will permit the child to enter and remain in New Zealand notwithstanding his birth status in Tonga as legitimate. To that end, the applicants were directed to contact the New Zealand High Commission here in Tonga prior to their departure.
10. For those reasons, the application for letters of adoption must be dismissed and the file will now be closed.

NUKU’ALOFA	M. H. Whitten KC
20 January 2023	LORD CHIEF JUSTICE