SK v Attorney General [2023] WSSC 42 (30 June 2023)

IN THE SUPREME COURT OF SAMOA
SK & Anor v Attorney General [2023] WSSC 42 (30 June 2023)

Case name:	SK & Anor v Attorney General
Citation:	[2023] WSSC 42
Decision date:	30 June 2023
Parties:	SK and FK v ATTORNEY GENERAL, on behalf of the FAMILY COURT OF SAMOA.
Hearing date(s):
File number(s):
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE LEIATAUALESA DARYL MICHAEL CLARKE
On appeal from:	Family Court of Samoa
Order:	- For the reasons I have set out: - the Appeal is dismissed; and - the Applications for Orders of Adoption by the Applicants to adopt MLU and RST are also dismissed. - Order suppressing publication of the names of the parties and the infants involved in this case.
Representation:	A. Su’a for the Appellants V. Leilua and C. Tone for the Respondent
Catchwords:
Words and phrases:	“adoption” – “application denied” - “decision appealed”
Legislation cited:	Adoption Act 1955 (NZ), s. 4; Births Deaths and Marriages Registration Act 2002, s. 2; Constitution of the Independent State of Samoa, Articles 4; 15; District Courts Act 2013, Part 4 Division 4; ss. 57; 57(1); Family Court Act 2014, ss. 13; 15; Infants Ordinance 1961, ss.2; 7; 8; 8(a); 8(b); 10.
Cases cited:	B v G [2002] NZCA 169; [2002] 3 NZLR 233; Dradler v Ministry of Social Development [2015] NZFC 1477; Gordin v Campbell [2015] NZHC 1264; Norman v Attorney General [2021] NZCA 78; Re APPLN BY LPM, New Zealand Family Court, BC201065283.
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

SK and FK

Appellants

ATTORNEY GENERAL on behalf of the FAMILY COURT OF SAMOA

Respondent

Counsel: A Su’a for the Appellants

V Leilua and C Tone for the Respondent

Hearing Dates: 26 April and 23 May 2023
Judgment Date: 30 June 2023

JUDGMENT

The Appeal:

1. This is an appeal purportedly brought pursuant to section 13 of the Family Court Act 2014 and articles 4 and 15 of the Constitution of the Independent State of Samoa (“the Constitution”).
2. The Appellants appeal a decision of the Family Court Judge of 22 July 2022 denying applications for adoption by the Appellants of two infants.[1] The grounds of appeal are that the Family Court Judge erred in law:
   • (a) when he failed to decide on the Appellants application pursuant to section 8 of the Infants Ordinance 1961.
   • (b) when his decision dated 22 July 2022 to decline the Appellants application (“the decision”) is ultra vires section 8, which are the only factors he shall be satisfied of before an order of adoption is granted.
   • (c) the decision is also ultra vires of any and all of the practice directions issued by the Family Court in relation to adoption applications.
   • (d) the decision is discriminatory pursuant to article 15 of the Constitution.
3. The Appellants further appeal the decision on the grounds that the Family Court judge erred in fact:
   • (a) instead of seeking clarifications in the form of a query from the Appellants according to his comments, he declined their adoption application; and
   • (b) instead of seeking further submissions from moving counsel as to the issue to which his decision to decline the application was made on, he declined the Appellants adoption application.

Background:

4. The male Appellant SK was born in India on the 2nd November 1994. The female Appellant FK was born in the Independent State of Samoa (Samoa) on the 18th April 1997. The Appellants were married in New Zealand on the 9th August 2019.
5. By applications for an Order of Adoption dated 2nd March 2022, the Appellants applied to adopt two infants, a female MLU born on 9 April 2001 and a male RST born on 3 August 2001. The female infant is FK’s younger sister. The male infant R is FK’s first cousin.
6. On the 22nd July 2022, the Family Court Judge denied the applications for adoption. The decisions are noted on each respective Court file. In terms of the female infant, the decision states:
   • “Application denied as infant only 4 years younger than the female Applicant.”
7. The decision for the adoption of the male infant states in similar terms:
   • “Application denied. Female Applicant only 4 years older than the infant and makes a mockery of the institution of the family.”

The Law:

8. Although the Notice of Motion seeking leave to Appeal purportedly brings the appeal (in part) pursuant to section 13 of the Family Court Act 2013, section 13 does not apply. Section 13 deals with the Family Court, either on application or on its own initiative, stating a case for the opinion of the Supreme Court on any question of law arising in a matter before the Family Court. The Family Court has not by case stated sought the opinion of this Court on a question of law. This is an appeal by the Appellants of decisions of a Family Court judge to deny adoption applications.
9. The appeal is misconceived, it seems, as a result of the Family Court Act 2013 making no express provision for appeal. This however is not a lacuna. The Family Court Act 2013 was not intended to be read is isolation of the District Courts Act 2016. Section 15 of the Family Court Act 2013 provides:
   • “15. Application of District Courts Act 2016 - (1) Except for the matters provided in this Act, the District Courts Act 2016 applies to this Act, with any necessary modifications and adaptations, as if references to the District Court and the District Court Judges were references to the Family Court and the Family Court Judge.
   • (2) This Act prevails if there is a conflict between this Act and the District Courts Act 2016.” (emphasis added)
10. The relevant appeal provision is to be found in Part 4 Division 4 of the District Courts Act 2016. I treat this appeal as having been brought under the District Courts Act 2016. In hearing the appeal, I proceed by way of rehearing is accordance with section 57(1) of the District Courts Act 2016.

Discussion:

11. There are two primary issues arising from this appeal. The first issue is that raised by the Family Court Judge, namely, the age difference between the female Appellant and the infants. The Appellants contend that the refusal to grant adoption orders is ultra vires section 8 of the Infants Ordinance 1961. The second is that an “infant” is defined as “a person under the age of 21 years” pursuant to section 2 of the Infants Ordinance 1961. When the Family Court Judge declined the adoption applications on the 22nd July 2022, the female infant had already turned 21 years of age. By the date of the appeal to this Court, the male infant had also turned 21 years of age, having turned 21 on the 3rd August 2022.
12. Section 8 of the Infants Ordinance 1961 dealing with matters the Court is to be satisfied with prior to the making of an adoption order provides:
    • “8. Conditions on which orders may be made – Before making such order of adoption the Court shall be satisfied:
    • (a) that the person proposing to adopt the infant is of good repute and a fit and proper person to have the care and custody thereof and sufficient ability to bring up, maintain, and educate the infant;
    • (b) that the welfare and interests of the infant will be promoted by the adoption;
    • (c) that the infant if over the age of 12 years consents to the adoption; and
    • (d) that the parents or such 1 of them as is living at the date of the hearing of the application or if both are dead then the legal guardian of the infant (if any) consent to the order of adoption:
    • PROVIDED THAT the Court may in its discretion dispense with the consent of a person who is permanently absent from Samoa or is incapable of giving consent, or is for any reason unfit to have the custody or control of the infant or being a parent has deserted the infant.”
13. Before making an adoption order, the Court must be satisfied that the requirements laid out in section 8 of the Infants Ordinance 1961 have been satisfied. Before the District Court, the only concern expressed to the application for adoption was the 4 year age difference between F and the infants. As such, it seems, the Appellants were not “fit and proper persons to have care and custody” of the infants.
14. Section 8 calls on the presiding judge to make an evaluative determination of whether, amongst other criteria, the Appellants are “fit and proper persons to have the care and custody” of infants. The age of the Appellants is a relevant factor to the determination of this question. The New Zealand Family Court when addressing the grant of interim adoption orders under a similar provision in New Zealand’s Adoption Act 1955 involving an adoption by elderly Applicants aged 80 and 56 stated:
    • “[33] The age of an applicant is not, of itself likely to be a disentitling factor. The Act sets no upper age limit of an applicant for adoption and indeed an adoption order was granted to applicants aged 80 and 56.
    • [34] Age is simply one of the factors that will be weighed in assessing whether an applicant is a fit and proper person to bring up the child.”^[2]
15. In B v G [2002] NZCA 169; [2002] 3 NZLR 233 in the context of fit and proper persons for adoptions, the New Zealand Court of Appeal at [42] also recognized that “there could be fit and proper applicants who would not be appropriate parents of a particular child.”
16. The age of the Applicants and their age difference with the infants is a relevant factor that a judge may take into account in determining whether or not an order for adoption should be made. It is, as I have said, an evaluative determination. In New Zealand, section 4 of the Adoption Act 1955 enshrines in statute the requirement that the Applicant or Applicants for adoption:
    • “(a) has attained the age of 25 years and is at least 20 years older than the child; or
    • (b) has attained the age of 20 years and is a relative of the child; or...”
17. While an equivalent provision is not contained in the Infants Ordinance 1961, that does not preclude the Court when addressing an adoption application against section 8(a) of the Infants Ordinance 1961 whether, given the age difference between prospective adopting parents and the infants, they are fit and proper persons to be granted an adoption order. While 27 and 24 year old applicants may be “proper” and in that sense suitable adoptive persons to be given the care and custody for example of young infants say 6 years old who may look upon them as parents, the same may not be true of older infants. It is for the presiding judge’s evaluative determination on the facts of each case.
18. The appeal before me proceeds by way of rehearing in accordance with section 57 of the District Courts Act 2016. On the material before me, I am satisfied that when the Appellants lodged the two applications for adoption in March 2022, S was 27 years 4 months of age and F 24 years 10 months of age. At the same time, M was 20 years 10 months old and R was 20 years 7 months old.
19. The effect of an adoption order by virtue of section 10 of the Infants Ordinance 1961 is to sever legally the legal connection between the adoptive child and natural parents and creates the legal fiction (as it has been described) that treats the adopting parents as the child’s birth parents.[3] Given the age differences between the Appellants and the then infants, I do not view nor conclude that the Appellants are proper suitable persons to adopt M or R. This is because by granting an adoption order, the “care and custody” of M or R would be granted to S and F, treating S and F as their birth parents. S and F are young adults almost contemporaries in age to M and R. As such, they are not proper or suitable persons in my view to have the “care and custody” of M and R or to take on the role and responsibility as parents to them.
20. I am also not satisfied on the material before me that M and R’s welfare and best interests would be promoted by the adoption. Paragraph 10 of the Applicants’ two applications for adoption are very brief and identical. They focus principally on the insufficiency of “income to support and provide for the infant” and express only in broad terms the natural parents desire for the Applicants “to raise the infant in a better environment, send [them] to school complete [their] education so that the infant has a good and better future in New Zealand.”
21. Although family adoption arrangements is consistent within Samoan cultural norms and families as is the experience of the Family Court of Samoa and recognized also by New Zealand courts,[4] the adoption must nevertheless satisfy me that the welfare and interests of the infant is promoted by the adoption. Simply stating in blanket terms that the birth parents have insufficient “income to support and provide for the infant” is unhelpful to properly understand the infant’s circumstances in Samoa. Further, a blanket statement of “raising the infant in a better environment” and the speculative desire for a “better future in New Zealand” to complete school without any information of what that might involve does not enable the Court to determine whether the proposed adoption promotes the welfare and interests of the infant. Such statements also simply perpetuate a baseless assumption that life in New Zealand is by itself necessarily “better” than life in Samoa. That often may not be the case. This must be established on evidence that satisfies section 8(b) of the Infants Ordinance 1961.
22. The second issue is whether this Court (and equally applicable to the Family Court) can backdate adoption orders. This issue arises because the two infants are now 21 years of age.
23. Section 7 of the Infants Ordinance 1961 provides that “the Court may upon application made by a person...make an adoption order in respect of any infant.” Section 2 defines an “infant” as “a person under the age of 21 years”. Both M and R are now 21 years of age. Even if section 8 of the Infants Ordinance 1961 was satisfied, I do not consider it possible for an adoption order to now be made. As the New Zealand Court of Appeal found in Norman v Attorney General [2021] NZCA 78 in terms of the Adoption Act 1955 (New Zealand) at 116, the Infants Ordinance 1961 draws a clear line at the age of 20 for the grant of an order for adoption.
24. The adoption provisions in the Infants Ordinance 1961 also support this interpretation. As the New Zealand Court of Appeal noted in the New Zealand adoptions context:
    • “...the Act is intended to ensure that children under 20 are able to receive parental care from adoptive parents, in circumstances where they are not otherwise receiving such care and the proposed adoption is in their best interests ...But the primary focus of the Act is on ensuring appropriate parental care for persons under 20. That purpose can no longer be served in respect of a person who has turned 20.”^[5]
25. This applies equally to adoptions in Samoa of infants under 21 years of age. The provisions of the Infants Ordinance 1961 provide for the care and custody of infants through adoptions, not for the care and custody of adults. Once a person reaches 21 years of age and is no longer an infant, the purpose of adoptions to provide care and custody of an infant under the Infants Ordinance 1961 can no longer be achieved. To grant the orders retrospectively to persons now over 20 years of age would be a perverse application of adoption provisions of the Infants Ordinance 1961 and the rationale underpinning adoptions.
26. If Applicants wish to apply for the adoption of infants, they should do so in a timely manner understanding that the intention of the adoption provisions is to provide for the care and custody of infants to adoptive parents that promote an infant’s welfare and interests, and not for adults.
27. The Appellants have raised in their appeal an alleged breach of article 15 of the Constitution. Given my earlier conclusions, it is not necessary to address this in any detail except to say that article 15 has no bearing on this appeal or the consideration of the application for adoption. Age is not dealt with by article 15 and this is not a case involving discrimination on the grounds of family status.

Result:

28. For the reasons I have set out:
    • (a) the Appeal is dismissed; and
    • (b) the Applications for Orders of Adoption by the Applicants to adopt MLU and RST are also dismissed.

JUSTICE CLARKE

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^[1] Although both M and R are no longer “infants” as defined in the Infants Ordinance 1961, I will nevertheless for simplicity use the term as they were “infants” at the time their adoption applications were lodged.

^[2] Dradler v Ministry of Social Development [2015] NZFC 1477.
^[3] See also: Definition of “adoption”, section 2, Births Deaths and Marriages Registratoin Act 2002; Gordin v Campbell [2015] NZHC 1264 at para [67].
^[4] Re APPLN BY LPM, New Zealand Family Court, BC201065283
^[5] Norman v Attorney General [2021] NZCA 78 at [118].