S & M v District Court, Apia [2000] WSSC 42 (16 June 2000)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER: of the Infants Ordinance 1961 (Part II)

AND

IN THE MATTER: of an application for adoption by S and M
of 96 Kamahi St., Stokes Valley, Wellington, New Zealand.
Applicants

AND

DISTRICT COURT, Apia
Respondent

Counsel: R. Drake for applicants
Attorney-General, B. P. Heather, for respondent

Hearing: 23 May 2000
Judgment: 16 June 2000

JUDGMENT OF SAPOLU CJ

In these proceedings the Court is concerned with a motion for a declaratory order whether the District Court has jurisdiction under section 7(1) of the Infants Ordinance 1961 to make adoption orders in respect of infants born outside of Samoa.

These proceedings came about in this way. The female applicant who is a Samoan citizen became pregnant in Samoa while not married. She then went to the United States where she gave bi th out of wedlock to a baby daughter in 1994. It was said that the natural father of this inf t died in 1997. In the same year the female applicant married in Samoa ............... the male applicant who is a New Zealand citizen. The applicants, since their marriage, have been living in New Zealand with the said infant who has been under their care.

In 1999 while the applicants and the said infant were in Samoa, the applicants made a joint application to the District Court for an order to adopt the said infant. The learned Judge who dealt with the application denied it. His Honour, without having to consider the merits of the application, took the view that the District Court did not have jurisdiction under section 7(1) of the Infants Ordinance 1961 to make an adoption order in respect of an infant born outside of Samoa. Because the said infant was born in the United State, the application for adoption was therefore denied. Consequently counsel for the applicants has brought the present proceedings seeking a declaratory order whether the District Court has jurisdiction under section 7(1) of the Infants Ordinance 1961 to make adoption orders in respect of infants born outside of Samoa.

Section 7(1) of the Ordinance provides:-

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

The term "infant" is defined in section 2 of the Ordinance to mean any person who is under the age of 12 years and the term "Court" is defined in the same provision as amended by the District Courts Act 1969 to mean the District Court.

With respect to the learned District Court Judge, I am of the view that the words of section 7(1) when read in their ordinary and natural sense do not provide any restriction that an infant to be adopted has to be born in Samoa. Certainly the purported requirement be born in Samoa is not expressed in section 7(1). In my respectful view if the legislature had intended to impose such a restriction it could have easily done so by inserting the words "born in Samoa" immediately after the word infant". The fact that the legislature did not do so suggests to my mind that the legislature did not intend to restrict infants who may be adopted only to those born in Samoa.

If one were also to turn to that statutory definition of infant, one finds no express words that an infant means a person born in Samoa. The statutory definition only says that an infant means every person under the age of 12 years. So the defining criterion for any person to qualify as an infant under the Ordinance is that he must be under the age of 12 years. If the legislature, in my view, had intended to restrict the meaning of the term infant" to those who are not only under the age of 12 years but also born in Samoa, it could have easily done so by inserting the words "and born in Samoa" immediately after the word years" in the statutory definition. The fact that the legislature did not do so suggests to my mind that it did not intend to restrict the meaning of infant only to those born in Samoa.

It would, therefore, appear that there are two places in the Ordinance where the legislature could have expressly restricted the infants who may be adopted under the Ordinance to those born in Samoa if it had wanted to do so. The first instance would have been in the definition of "infant" in section 2 by inserting the words "and born in Samoa" after the word "years". The second instance would have been to add the words "born in Samoa" immediately after the word "infant" in section 7(1). However in both instances the legislature chose not to do so. I am therefore not able, with due respect, to read into the Ordinance a requirement that only infants born in Samoa can be adopted when the legislature had not seen fit to make express provision to that effect in the Ordinance.

The term "infant" is also repeatedly used in section 7(2), (3), (4) and sections 8, 9, 10 and 11 which are all contained in Part 2 of the 1961 Ordinance without any indication that it was the legislature's intention that only infants born in Samoa may be adopted under Part V of the Ordinance which deals with contracts and claims by infants repeatedly uses the term infant without any expressed provision that infants are to be restricted to those born in Samoa. So the absence of a requirement that an infant has to be born in Samoa is noticeable throughout the provisions of the Ordinance where the term infant is used.

The history of a legislation can also be a useful aid to the construction of a legislation. If one is to turn to the General laws Ordinance 1931 which is the predecessor of Part 2 of the Infants Ordinance 1961 which contains section 7(1), one finds the expression "child instead of "infant" is used. And "child" is defined in section 2 of the 1931 Ordinance to mean a person under the age of 16 years. There is no express requirement that he or she should be born in Samoa. Section 25 of the 1931 Ordinance which deals with the adoption of children then provides that on an application to the then High Court by any person of good repute an order of adoption of a child may be made in his favour. Again there is no express requirement that the child has to be born in Samoa. It would therefore appear that the legislature has over the years, in both the 1931 Ordinance and the 1961 Ordinance, consistently chosen not to impose an expressed restriction on children or infants who may be adopted to those born in Samoa.

As both counsel did not confine their submissions to the strict words of the Infants Ordinance 1961 but also ventured into public policy considerations, I put to them two situations where an infant who is a Samoan citizen may be born outside of Samoa and asked them whether as a matter of public policy such an infant should qualify for adoption under the Ordinance. The first situation is where a woman, a Samoan citizen, is posted to one of our foreign missions and gives birth out of wedlock to an infant in the foreign country where the mission is located. The infant is of course a Samoan citizen by descent by virtue of the provisions of the Citizenship Act 1972. Later the mother and the infant return to Samoa and the mother marries a local who is not the infant's natural father. They want to adopt the infant as their child. Should they be able to do so in the Samoan Courts as a matter of public policy or should they file their adoption application with the Courts of the foreign country where the infant was born. The second situation is where a female scholarship student who is a Samoan citizen is sent to study in a foreign country. She gives birth out of wedlock in that foreign country to an infant who of course must be a Samoan citizen by descent. The mother completes her studies and returns with the infant to Samoa where she marries a local who is not the infant's natural father. They want to adopt the infant as their child. Should they be able to do so in the Samoan Courts as a matter of public policy or should they file their adoption application with the Courts of the foreign country where the infant was born. Both counsel were in agreement that the infant should qualify for adoption in the Samoan Courts. It would be too much expense and inconvenience if it were otherwise, particularly if the infant was born in Brussels, New York or Canberra where we have foreign missions or some country like Papua New Guinea, Australia or even New Zealand where we send our scholarship students. No doubt there are other situations where a Samoan mother gives birth to a child in a foreign country but later wants to have her child adopted in Samoa.

Counsel for the applicants also submitted that to construe section 7(1) to mean that only infants born in Samoa can be adopted under the Ordinance would lead to discrimination amongst Samoan citizens on the ground of place of birth thus running the risk of contravening the provisions of Article 15 of the Constitution. Referring to the particular facts of this case, counsel for the applicants argued that the female applicant being a Samoan citizen her infant daughter who is the subject of the present adoption application must necessarily be a Samoan citizen by descent by virtue of section 5 of the Citizenship Act 1972 even though the child was born in the United States. Section 5 of that Act provides:

"A person born after the commencement of this Act outside Samoa shall be a citizen of Samoa by descent if at the time of his birth his father or his mother, or in the case of a person born out of wedlock his mother or his father, was a citizen of Samoa by virtue of this Act, other than the provisions of this section.

It was not disputed that the infant in this case is a Samoan citizen by descent. Counsel for the applicants then referred to Article 15(2) of the Constitution which as far as relevant provides:

"Except as expressly authorised under the provisions of this Constitution, no law.... shall, either expressly or in its practical application, subject any person or persons to any disability or restriction ..... on the grounds only of descent, sex, language, religion, political or other opinion, social origin, place of birth, family status or any of them."

Counsel then argued that even though Article 15(2) of the Constitution does not appear to be restricted in scope to Samoan citizens, the effect of construing section 7(1) of the Infants Ordinance 1961 to mean that only infants born in Samoa can be adopted under that Ordinance is to impose a restriction on infants who are Samoan citizens but born outside of Samoa on the ground of place of birth. Such a restriction would be discriminatory in terms of Article 15(2) and therefore contravenes the Constitution.

I can see the force and persuasiveness of this argument by counsel for the applicants which was not raised in the Court below. It lends cogent support to the construction that the legislature did not intend in section 7(1) of the Infants Ordinance 1961 to restrict infants who can be adopted to those born in Samoa. I am of the view that if a statutory provision is open to more than one interpretation, one which contravenes the Constitution and one which does not, the Court should lean towards adopting that interpretation which does not contravene the Constitution.

One of the reasons for the learned District Court Judge in this case taking the view that only infants born in Samoa can be the subject of an application for adoption in Samoa is that under the Births and Deaths Registration Ordinance 1961 there is no provision for the registration of birth of a child born outside of Samoa if an adoption order is granted in respect of such a child. Here it is to be noted in passing that while the term "infant" is used in the Infants Ordinance 1961, the term "child" is used in the Births and Deaths Registration Ordinance 1961. I have found this to be the most difficult part of this case. However after much consideration I have come to the following view.

Section 7(1) of the Infants Ordinance 1961 deals with the Court's jurisdiction to make adoption orders. The Births and Deaths Registration Ordinance 1961 deals with the registration of births and deaths which is a different matter. Therefore the interpretation of section 7(1) which deals with the question of jurisdiction should not be unduly influenced by the mechanical provisions of the Births and Deaths Registration Ordinance 1961 which deals with the question of registration. While this view may lead to some unsatisfactory result which the learned District Court Judge appears to have recognised, I am of the respectful view that the intention of the legislature in section 7(1) should be given effect. Jurisdiction of the Court is a more substantive matter than registration provisions even though both are important. There are also many Samoan children born overseas and some of them are then sought to be adopted in Samoa at a later stage of their lives because of changes in circumstances. It would be much inconvenience and expense, in some if not most cases, if the adoption has to be processed through the Courts of the foreign country where the child was born. The inconvenience and expense involved may just be too much for some would be adoptive parents that no adoption will ever be possible. That may not be a desirable situation. For instance, if a pregnant Samoan girl goes to the United States to give birth out of wedlock to a child for personal reasons. She returns to Samoa and later in life marries a local in Samoa. They want to adopt the child. Should they have to apply to the United States Courts for the adoption. That may be too much of an inconvenience and expense for them so that the child may never be adopted and have a proper father. The person who would really suffer could be the innocent child.

This does not mean the adoption application in this case should automatically be granted. The merits of the application, of course, have to be considered and the Court has a discretion to exercise. Counsel for the applicants, when asked by this Court, was not in a position to advise as to why the present adoption application was not made in New Zealand where the applicants and the child presently reside on a permanent basis and where there appears to be legislative provisions for the registration of adoptions in cases where the birth of the child is not registered in New Zealand. The difficulties that have arisen in this case would have been avoided if the adoption application had been made in New Zealand, provided it is possible to make the application in New Zealand. Whether the lower Court would like to pursue that matter when exercising its discretion is for that Court to decide.

Now on behalf of the respondent it was submitted that on the ground of public policy, section 7(1) of the Infants Ordinance 1961 should be restricted to infants domiciled in Samoa. With due respect, I find this submission to be running against the same difficulties as the view taken in the lower Court that section 7(1) is restricted to infants born in Samoa. In my respectful view, if the legislature had intended to limit section 7(1) only to infants domiciled in Samoa it could have easily inserted immediately after the term "infant" in section 7(1) the words "domiciled in Samoa". The fact that the legislature did not do so suggests that it did not intend to restrict the scope of section 7(1) to infants domiciled in Samoa. So in two instances, one in section 2 and another in section 7(1), the legislature had the opportunity to expressly provide that only infants domiciled in Samoa can be adopted but it chose not to do so. This suggests to my mind that the legislature did not intend to restrict the infants who can be adopted under the Ordinance to those domiciled in Samoa.

If one were also to turn to the General Laws Ordinance 1931 which is the predecessor of Part 2 of the Infants Ordinance 1961, which contains section 7(1), one would not find any express restriction that only children domiciled in Samoa can be adopted. That shows that over the years, from the 1931 Ordinance to the 1961 Ordinance, the legislature has chosen not to impose such a restriction. If it had been the legislature's intention to restrict children or infants who can be adopted to those domiciled in Samoa, I do not see any difficulty in the legislature having made express provision in the Ordinance to that effect.

I am also of the view that to incorporate into section 7(1) a requirement that only infants domiciled in Samoa may be adopted would necessarily bring into the operation of section 7(1) the complexities and difficulties associated with the concept of domicile which has acquired quite a technical meaning in law. It is not necessary here to go into these complexities and difficulties. But anyone who is interested in the subject is referred to the leading English texts of Dicey and Morris on The Conflict of Laws (1993) 12th edition at chapter 7 and Cheshire and North's Private International Law (1992) 12th edition at chapter 9.

New Zealand has avoided the complexities associated with the concept of domicile by providing in section 3 of its Adoption Act 1953 that the New Zealand Courts may make an adoption order in respect of any child whether domiciled in New Zealand or not. Thus domicile in New Zealand is not a jurisdictional criterion for the New Zealand Courts in making an adoption order in respect of a child. It would also appear that under English law the jurisdiction of the English Courts to make adoption orders is not dependent upon the domicile of the child to be adopted: see Dicey and Morris on The Conflict of Laws (1993) 12th edition p.886 and Cheshire and North's Private International Law (1992) 12th edition p. 760. These two developed jurisdictions must have had sound reasons for not making the domicile of a child a jurisdictional criterion for adoption. In fact in Dicey and Morris on The Conflict of Laws (1993) 12th edition at p 886 the learned authors state:

"There is not and never has been a jurisdictional requirement that the child must be domiciled in England. There are sound practical reasons for this. It would render adoptions unduly difficult and expensive if proof of domicile were required in the case of children who are waifs or strays or whose natural parents cannot be traced. Many adopted children are illegitimate and the domicile of the mother (and hence of the child) may be quite uncertain or ascertainable only after a detailed examination of the mother's history, an examination which could add greatly to the emotional pressures facing the mother at a critical stage in the adoption process."

I would therefore be reluctant to construe section 7(1) of the Infants Ordinance 1961 to mean that an infant to be adopted has to be domiciled in Samoa on the ground of public policy even if that were a legitimate method of statutory interpretation. One has to bear in mind the complexities involved in the concept of domicile as used in private international law.

The alternative submission for the respondent that the jurisdiction of our Courts to make adoption orders should as a matter of public policy be dependent on the infant to be adopted being resident in Samoa also has its problems. The concept of residence has acquired quite a technical meaning with its own complexities in the area of conflict of laws or private international law: see Dicer and Morris on The Conflict of Laws (1993) 12^th edition at chapter 7 and Cheshire and North's Private International Law (1992) 12th edition at pp 167-171. To make an infant's place of residence a jurisdictional requirement for the purpose of making adoption orders under section 7(1) of our Infants Ordinance 1961 would necessarily bring into the operation of section 7(1) the complexities associated with the concept of residence as it is used in private international law. It is not necessary to refer here to those complexities. They are explained in detail in the English texts already referred to. It should also be noted that English law and New Zealand law do not make residence a requirement for adoption. It should also be pointed out that since our General Laws Ordinance 1931 and the Infants Ordinance 1961 were enacted, residence in Samoa has never been an expressed requirement for the adoption of an infant.

I am therefore of the view that as a matter of construction and quite apart from any public policy considerations, the wording of section 7(1) of the Infants Ordinance 1961 does not require that an infant to be adopted has to be domiciled or resident in Samoa. There are sound policy reasons for this.

Concerns were expressed that unless domicile or residence is made a requirement for a child to be adopted, section 7(1) of the Infants Ordinance 1961 and our adoption laws may lend themselves to abuse. However, there is no evidence that since our General Laws Ordinance 1931 and Infants Ordinance 1961 were enacted there has been any general abuse by foreigners or non-citizens. If we are to seek guidance from the English and New Zealand adoption laws we will find that those jurisdictions do not require in their adoption laws that a child to be adopted has to be born, domiciled or resident in England or New Zealand. Other mechanisms have been worked out in those jurisdictions to guard against possible abuse. For the position in England I refer again to the English texts already cited. For the position in New Zealand I refer to Butterworths Family Law in New Zealand (1993) 6th edition pp 721 - 730. Perhaps we should look elsewhere for safeguards against possible abuse of our adoption laws instead of trying to incorporate a requirement into section 7(1) of the Infants Ordinance 1961 that a child or infant to be adopted has to be born, domiciled or resident in Samoa. One possible way of safeguarding against abuse lies in the exercises of the Court's jurisdiction when considering an application for adoption. This seems to be one of the ways England and New Zealand have taken.

All in all then, the conclusion I have reached on the particular question raised in the motion for a declaratory order is that the District Court has jurisdiction under section 7(1) of the Infants Ordinance 1961 to make adoption orders in respect of infants born outside of Samoa.

Whether the application for an adoption order in this case should be granted depends, of course, on its merits and how the District Court would exercise its discretion. And that is not an issue with which I am concerned in these proceedings.

CHIEF JUSTICE

Solicitors: Drake & Co. for the appellants
Attorney Genera 's Office for the respondent