Intercountry adoption in New Zealand
Updated: 29 January 2019
Adoption of children from overseas developed in Europe largely as a result of World War II. Typical ‘sending’ countries were recovering from war or economic devastation, which made it difficult for the authorities in these countries to put in place infrastructure to prevent corruption such as the abduction or trafficking of children. Intercountry adoption grew rapidly, peaking in the 1990s with thousands of children being relocated from ‘sending’ to ‘receiving’ countries.
An adoption of children from overseas countries by New Zealand citizens and permanent residents must comply with New Zealand’s international obligations and the laws of the countries involved within the framework and principles of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (the Hague Convention).
The principle of subsidiarity
The principle of subsidiarity is one of the key principles for undertaking intercountry adoptions. This principle is clearly stipulated within the United Nations Convention on the Rights of the Child (UNCROC) and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.
According to the principle of subsidiarity, intercountry adoption is acknowledged as an option for children when a placement within their country of origin cannot be found. Recognising that children benefit from the preservation and strengthening of their identity in an environment that supports their cultural and linguistic heritage, they have the right to be raised within their family wherever possible. Where this cannot happen, the principle of subsidiarity applies as follows:
- national solutions (return to the birth family, guardianship, adoption) should be preferred to international ones (inter-country adoption).
- family solutions (return to the birth family, foster care, guardianship, adoption) should generally be preferred to institutional placement
- permanent solutions (return to the birth family, guardianship, adoption) should be preferred to provisional ones (institutional placement, foster care)
Consequently, intercountry adoption should take place after a long term family solution has been explored in the child’s country of origin.
Routes to intercountry adoption in New Zealand
There are three routes to an intercountry adoption in New Zealand:
- Intercountry adoption under the Hague Convention and Adoption (Intercountry) Act 1997.
- An intercountry adoption from a non-Hague country in the New Zealand Family Court.
- An adoption undertaken overseas in a non-Hague country and recognised in New Zealand under section 17 of the Adoption Act 1955.
1. Hague intercountry adoption
An adoption within the scope of the Hague Convention applies where people habitually resident in one Convention contracting state adopt a child habitually resident in another Convention contracting state.
The same procedural requirements and process under the Hague Convention apply in the same way to children or young persons who are related to the adoptive applicants as it does to non-related children.
The Hague Convention ceases to apply when the child attains the age of eighteen years.
New Zealand may recognise the adoption of a child in the court of a ‘Hague’ country under s11 of the Adoption (Intercountry) Act 1997 if the adoption complies with the requirements contained within articles 4 and 5 of the Hague Convention. The New Zealand Central Authority or the Central Authority of the contracting state will confirm compliance by issuing an Article 23 Hague Certificate of Conformity of Intercountry Adoption.
2. Intercountry adoption in the New Zealand Family Court
A child habitually resident in a non-Hague country may be adopted in the New Zealand Family Court by New Zealand citizen(s) or permanent resident(s).
Courts in New Zealand have established that the principles of the Convention apply to adoptions of children who are citizens of another country that are considered under the Adoption Act 1955 and confirmed that the practice of obtaining Child Study reports should be maintained where possible when the foreign country involved has not ratified the Convention.
Oranga Tamariki will seek independent information from the child’s country of origin regarding the child’s birth family and the circumstances of the proposed adoption. This information will inform the social worker’s report to the Court and help determine the best interests of the child in the proposed adoption.
3. Non Hague intercountry adoptions in an overseas Court
Some countries allow citizens of their country who reside permanently in New Zealand to adopt under their domestic legislation.
An adoption in a court of a country with legislation deemed compatible with the provisions of section 17 of the Adoption Act 1955 is also recognised as a legal adoption in New Zealand if the child’s country is not party to the Hague Convention. There is no legal requirement for these adoptions to follow Hague principles.
Confirming section 17 recognition is undertaken by the Department of Internal Affairs where:
- the adoption is legally valid in the state where it took place
- the adoptive parents acquire, under the law of the state where the adoption took place, a right of custody of the child superior to that of the natural parents; and
- either the adoption took place in a certain named state or the adoptive parents acquire specified rights in respect of property of the adopted child (i.e. the adoptive parents are legally considered to be the next of kin).
Enquiries from New Zealand citizens about overseas domestic adoption should be directed to the Department of Internal Affairs (DIA) to determine if the domestic adoption in an overseas court is recognised, and therefore entitle the child to a New Zealand citizenship.
If the adopters hold permanent resident immigration status and none of the adoptive parents is a New Zealand citizen they will need to make application to Immigration New Zealand for a permanent resident visa for the child.
A domestic adoption undertaken in the child’s country may not comply with the recognition criteria of the Hague Convention or section 17 of the Adoption Act. The children adopted will therefore not be entitled to a permanent residential status in New Zealand (i.e. New Zealand citizenship or resident visa).
Where an overseas domestic adoption has resulted in this difficulty, the adoptive parents are usually suggested to apply to re-adopt the child through the New Zealand Family Court or the Hague Convention process, depending on whether the child’s country is a contacting state to the Convention.
Social workers should consult the International Casework Team on specific cases where overseas domestic adoptions are being contemplated or have occurred.