What the judge considers
The judge will consider whether the adoption of te tamaiti by these specific applicants will promote the present and future welfare of te tamaiti, and meet the physical, emotional, educational and cultural needs of te tamaiti.
This assessment is based on the particular case, rather than a comparison with any other ‘unidentified persons’ who might be willing to care for te tamaiti. Judges will usually give significant weight to the emotional attachment and continuity of care for te tamaiti – compared with possible future benefits for te tamaiti. Some judgments, however, have specifically stated that it is not just the immediate welfare of te tamaiti that needs to be taken into account, but that the interests of te tamaiti in the medium and longer terms must be carefully considered.
In some situations, the court has considered alternative means of securing a permanent placement for te tamaiti. For example, appointing the carers of te tamaiti as additional guardians of te tamaiti may create a legal status sufficient to achieve security and certainty for the upbringing of te tamaiti, compared with an adoption, the legal severing from their birth whānau or family that this requires and the creation of a new birth registration.
In considering whether the welfare and interests of te tamaiti will be promoted by adoption, weight should also be given to the cultural values and experience of the people involved. We should ensure that recognising and honouring of the cultural identity of te tamaiti is considered as part of their overall wellbeing and interests.
In each case, positive and negative factors should be outlined so that the Family Court judges can make a decision based on the evidence as a whole. Social worker's reports must provide the relevant and objective evidence required by judges to make the right decisions for the current and future wellbeing of tamariki.
The social worker's report forms part of the adoption record, which can only be opened for inspection on the limited grounds stated in section 23 of the Adoption Act 1955. The judge may release the report to the applicants through their solicitor, but Oranga Tamariki cannot do this for any reason.
Experience has shown that the information in the social worker's report can be important for the parties into the future.
When to provide the report
When reporting on applicants who have been given social worker prior approval, we should not delay providing the report. As the relevant information is already contained on our record, we can have the report largely drafted soon after the placement. We should speak with applicants and birthparents after placement in order to represent the current reality for te tamaiti and how attachment is developing, as well as the nature of the relationship and contact between the parties. The midwife or Plunket or Well Child/Tamariki Ora nurse may be able to confirm the progress of te tamaiti.
If we have concerns about the development or attachment of te tamaiti, consider discussing this with Plunket or the alternative Well Child/Tamariki Ora service provider.
As a guideline, within 10 working days of receipt of the request for a social worker's report, send a letter to the court advising the likely time when a report will be available or the reason it cannot be completed immediately and if we're seeking any additional information that may be required.
Interim order report
What’s in the interim order report
Court reports are formal documents and we need to make sure spelling, grammar and layout are correct and pages are numbered. Adults should not be called by their first names alone, but either by their full names or using the title they prefer.
The interim report needs to record clearly and concisely the process that has led to te tamaiti being placed for adoption. It should include the following information.
About the adoptive applicants
- Facts about the adoptive applicants and their material circumstances including their:
- family situation
- financial situation
- cultural values
- how they will promote the present and future welfare of te tamaiti, meeting their physical, emotional, educational and cultural needs
- any convictions from their Police check
- reference to their medical reports
- reference to the information gathered in their referee checks.
- Observations drawn from assessment interviews and inquiries.
- Any opinions and how we’ve formed those opinions.
- A recommendation on the making of the order.
- A copy of the contact agreement.
When there is a joint application in the names of married or non-married applicants, explain the intentions of the birthparents and of the applicants that te tamaiti should have 2 parents of equal status, and recommend accordingly.
About te tamaiti
- The circumstances leading up to placing te tamaiti with the adoptive applicants.
- Date of issue of the social worker’s placement approval.
- Emotional and physical progress of te tamaiti with the applicants and how attachment is developing.
- The cultural issues involved and the plan to meet the cultural needs of te tamaiti.
About the birthparents
The social worker for the birthparents should prepare this part of the report as they know more about the birthparents’ situation. It is important to represent the birthparents in the report outlining their rationale for adoption in a way that provides a coherent narrative for te tamaiti concerned. Discuss this content with the reporting social worker. Wherever possible, it should include:
- the birthparents’ demographic and family background information, including whānau, hapū and iwi relationships
- the circumstances of the pregnancy and the birthparents’ relationship
- their decision-making process and who was involved
- their availability for ongoing contact – as described in the contact agreement
- reference to the information they have provided on the record for te tamaiti into the future.
We should make a definite recommendation either for or against the making of the adoption order.
When an interim adoption order is granted
After we file our interim order report, the Family Court registrar gives us notice of the application hearing. If we oppose the proposed order, we can go to the hearing and give evidence. By law, we are entitled to appear at the hearing of the application, and to cross-examine, call evidence and address the court. The adoptive applicants and te tamaiti attend the hearing unless the court directs otherwise.
Usually, an interim adoption order is granted after the court hearing. In some circumstances the court can grant a final adoption order, which completes the adoption proceedings – this may happen when te tamaiti has been settled in the adoptive applicants’ home for a period of time and there is nothing to be gained by an additional ‘interim’ period.
Once an interim order has been granted, the court registrar sends written notice of the interim order to us and the applicants.
What is an interim adoption order
An interim adoption order:
- is not an adoption order
- does not change the name of te tamaiti, but may specify how it is to be changed by adoption
- remains in force until an adoption order is made, or for up to 1 year.
While the interim order remains in force
- The adoptive applicants are entitled to the custody of te tamaiti and must comply with the terms in the order.
- We may visit te tamaiti in their home to review progress and to assess the situation for the final adoption report – we recommend visiting every 2 months.
- The adoptive applicants can ask for support from us if there are any issues.
- Te tamaiti cannot be taken out of New Zealand without the court’s permission.
- The adoptive applicants must give us at least 7 days’ notice of changing their address. If they have to move urgently, they must give notice within 48 hours after leaving the previous residence.
Revoking an interim order
The court may revoke an interim adoption order when, for example:
- the adoptive applicants do not wish to proceed with the adoption
- Oranga Tamariki has serious concerns for te tamaiti in that placement.
Applications to appeal the revocation are heard by the Supreme Court.
Final adoption order
What’s in the final adoption order report
In the final adoption order report, we should not repeat what’s in the interim order report. In this report we confirm:
- the adoptive applicants are still ‘fit and proper’
- te tamaiti has lived with the adoptive applicants and developed an attachment to them, and they to te tamaiti
- the adoption will promote the welfare and interests of te tamaiti
- any physical and emotional progress of te tamaiti including any relevant milestones, Plunket or WellChild/Tamariki Ora or medical reports
- any changes in the living situation of the applicants, their family, whānau, hapū and iwi or te tamaiti
- CYRAS has been checked just before reporting (no other checks are required unless in exceptional circumstances)
- how the relationship between the applicants and birth family, whānau, hapū and iwi has been proceeding
- if there has been any contact with the birth family, whānau, hapū and iwi
- our recommendation either for or against making the adoption order.
When the adoption order is granted
When the court has made an interim order, a final adoption order can be applied for between 6 and 12 months of the interim order being made.
The original adoptive applicants are the only ones who can apply for the final adoption order. If one applicant has died or a couple have separated, we need to:
- make sure the birthparents have the opportunity to reconsider their decision – they would need to be consulted again as to whether they agree with the remaining partner continuing with the adoption and would have to re-sign their consent
- consider whether or not the adoption will continue to promote the welfare and interests of te tamaiti.
When we recommend in favour of the making of an adoption order to the applicants, the granting of the adoption order is an administrative matter dealt with by the court registrar. If we recommend against the making of the order, the report must go before the judge for a decision.
In special circumstances the court may issue an adoption order before the end of the minimum period of the interim order.
If the Family Court judge refuses to make an adoption order, the adoptive applicants can appeal to the High Court against the decision within a month of the refusal.
Effect of an adoption order
Once the adoption order has been made te tamaiti becomes the legal tamaiti of the adoptive parents as if te tamaiti was born to them – the status of te tamaiti is identical with that of any tamariki born to the applicants.
The registrar sends notice of the adoption order to the reporting social worker and to the registrar-general who creates a new birth registration in the adoptive name.