In re Application for Adoption by Solomona [1999] WSDC 1 (1 January 1999)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

Misc. 25215

RE: APPLICATION FOR ADOPTION BY SOLOMONA

RULING OF VAAI J

The applicants who reside in Wellington New Zealand have filed an application for an order to adopt an infant born out of wedlock in the United States of America in 1994. The female applicant, a citizen of Samoa by birth is the mother of the infant. She married the male applicant (a citizen of New Zealand by birth) in 1997 and they have one issue of the marriage. Since the date of their marriage, the applicants have taken care of the infant to be adopted.

Without considering the merits of the application, I did on the 5^th October invite counsel for the applicants to file written submissions to convince me that I have jurisdiction to entertain the application. It appears to me from reading Section 7 of the Infants Ordinance 1961 that whereas the applicants do not have to be domiciled in Samoa at the time they lodge the application for adoption, there is no similar provision in respect of the child to be adopted. Section 7 reads:

"Subject to the provisions of this Part of this Ordinance, the Court may upon an application made by any person (whether domiciled in Samoa or not) make an adoption order in respect of any infant".

I have considered the written submissions filed by counsel and with due respect to counsel I am not satisfied that I have jurisdiction to entertain application by the applicants to adopt a child born in the United States of America. It is significant in my view that the words whether domiciled in Samoa or not follow the word applicant only and do not appear after the word infant. Consequently the applicants who are currently residing in New Zealand are entitled under section 7 (1) to apply to adopt. But the legislation in my view precludes any child not born in Samoa from being adopted. If Parliament had intended that infants born outside the jurisdiction can be adopted it would have said so.

I am enforced in the above view which I have taken by firstly referring to Section 3 of the New Zealand Adoption Act 1955 upon which our Section 7 Infants Ordinance 1961 was modelled and therefore very similar in wording. That section 3(1) reads:

"Subject to the provisions of this Act, a court may, upon an application made by any person whether domiciled in New Zealand or not, make an adoption order in respect of any child whether domiciled in New Zealand or not" (my emphasis).

It is my respectful view that the omission of the words whether domiciled in Samoa or not after the word infant in our legislation is a deliberate move by our legislature to depart from the position and environment then current in New Zealand and to limit the powers of the court to grant adoption order only in respect of infants born in Samoa.

Secondly to enforce the view which I have taken I refer to Section 19 of the Births and Deaths Registration Ordinance 1961 which deals with the registration of adoption orders. Section 19 (3) provides for and directs the Registrar who registered the birth of the infant to make alterations and substitutions to the original entries in the Register of Births after the infant has been adopted and in accordance with the new particulars in the adoption order. And since the only entries in the Birth Register are those born in Samoa, the only alterations and substitutions the Registrar makes to the original entries after receiving the Order of adoption are therefore for those born in Samoa. Parliament therefore intended that only the infants whose names appear on our Birth register can be adopted. In comparison, Section 21 of the New Zealand Births and Deaths Registration Act 1951 which deals with registration of adoption has provisions similar to our Section 19. But the New Zealand legislation goes on to provide for registration of adoptions where the birth of the adopted child is not registered in New Zealand and for registration of adoption where the birth of the child is registered in New Zealand but the child is adopted outside of New Zealand. No such provisions appear in our legislation so that unlike New Zealand we do not recognise overseas adoptions and we do not recognise infants born overseas eligible for adoption.

It is therefore my view that our legislature clearly departed from enacting in our relevant legislation certain provisions of the corresponding New Zealand legislations to limit the infants to be adopted to those born in Samoa. And for the reasons I have stated I therefore conclude that this court has no jurisdiction to entertain any application for the adoption of infants born outside Samoa.

JUDGE