Adoption Amendment Bill

Members, the House is in committee on the Adoption Amendment Bill. We come first to Part 1, the debate on clauses 3 to 14—“Amendments to Adoption Act 1955”—and Schedule 1. The question is that Part 1 stand part.

Thank you, Mr Chair. Thank you to the members of the committee who are joining me for the committee of the whole House stage of the Adoption Amendment Bill. Members, it is unacceptable that there are children and young people who have been adopted overseas, brought into New Zealand, and then found to be subjected to physical, sexual, and psychological abuse; there is neglect and exploitation. It is enabled by our current international adoption settings. We will reform these settings and immediately protect more kids through two phases of work.

Today, we begin phase one, a time-limited temporary suspension, followed by phase two, a permanent solution that ensures the protection, safety, and wellbeing of those adopted children. Today, in phase one, we will temporarily suspend recognition of unsafe overseas adoptions where section 17 of the Adoption Act has been used, which, in turn, provides access to immigration and citizenship pathways for the child.

An exemption list of countries who have sufficient safeguards in their adoption system has been established. Those countries demonstrate their ability to protect children and young people from harm without reports of concerns from others. What is also essential is that we temporarily limit the power of the Family Court to make adoption orders where adoptive parents or children do not live in New Zealand. The reason why we need to make this change is because the Family Court has an extraordinary broad power to grant adoption orders for prospective adoptive parents or children anywhere in the world. It could be used to circumvent the temporary suspension of section 17 that we are making. It’s a potential back door, and I want to make sure that it’s shut—at least until a permanent fix is established.

It is important that the Family Court retains the ability to grant some adoptions where at least one party does not ordinarily live in New Zealand. A scenario here would be international surrogacy, where the formalisation of parent-child relationships is needed or where there are exceptional circumstances which justify an adoption order being made.

I’m confident that today’s amendments will prevent harm coming to children and young people adopted overseas into New Zealand, and I look forward to hearing the views and answering the questions of my colleagues across the Chamber as we move through this stage.

Kia ora, Mr Chair, and kia ora to the Minister, the Hon Nicole McKee. Thanks for expressing willingness to engage in some exchange on this. It is an apparently simple bill but it’s actually quite tricky to read, so my first question is around the statement in the explanatory note: “The Bill does not apply to overseas adoptions within the scope of the Hague Convention”. That’s what the explanatory note says, but then, if you go to clause 4, “Section 2 amended (Interpretation)”, it defines a Hague convention adoption as “an adoption to which the Hague convention applies … that took place in a contracting State … in respect of which the adopted child was habitually resident overseas; and in respect of which the adopted parent is, or both adopted parents are, habitually resident in New Zealand”.

In terms of the recognition of overseas adoption, I’m just a little confused. Basically, does it mean that we do or don’t recognise adoptions where all of the parties at the time of the adoption were resident overseas? I mean, I’m sure I could work through it eventually, but I haven’t had that opportunity, right? That really is my question: whether, when we’re talking about overseas adoptions, what we really mean—or another way to express it—is “New Zealanders going overseas to adopt”. If that’s what we mean, it’s a different thing to what most people, in ordinary language, would say an overseas adoption is, where it’s an adoption that happens overseas where all the parties are overseas parties. That kind of changes it if New Zealand citizens are overseas and enter into an adoption. Here’s a case: if two New Zealand citizens are overseas and adopt a child but they are habitually resident overseas, is that child, then, a citizen or not? It’s simply not clear to me at the moment whether that would be the case or not. We’ve got the Hague convention, and we could have used that, but we haven’t used it; we’ve actually used this Schedule 1AAB as the critical tool here.

I guess I’ll just leave that there, and the Minister might want to respond, or another member might want to take a call.

Thank you, Mr Chair. Again, I’m just going to focus on Part 1. I’m looking at clause 4(1), “Section 2 amended”, and some of the definitions. I want to focus on a couple of things around the exempt countries. I know that others may have more questions around this, but just checking that while we are talking about exempt countries—and the Minister mentioned numerous times the Hague convention, and the Hague convention adoption is a core feature of determining what countries are exempt and what countries are not exempt—I’m also interested to know for some of the countries that I keep seeing here, that there are some countries that are part of the Hague convention but are not listed in the list over here. I just wanted to check whether a specific process was used to determine some of these countries and whether there is a rationale of why some of the countries that are part of the Hague convention were missed or even why some of the countries who are part of the UN Convention on the Rights of the Child were also missed out of the new Schedule 1AAB as a result.

Now, I guess, on a similar line to what the previous speaker, Hon Dr Duncan Webb, was saying, my second question is around the idea of habitually resident—so when an adopted child was habitually residing overseas. Now, it’s a very specific distinction because what we are looking at is residing-based as opposed to nationality-based. So the reading of that line which is on the Hague convention adoption (b) with how we’re looking in terms of overseas adoption (a) “was in accordance with the law of that place and is legally valid;”. I guess the question is: let’s say we have a child whose nationality is from Angola, but the child habitually resides in Portugal. Does the Minister have any information, or through the officials, on what, then, happens in terms of adoption process of that place? Because, technically, under this legislation, the child residing in Portugal would meet the requirement, but if the child’s nationality is Angolan or is not Portuguese, then would that, then, matter to the law of that particular place when you are looking at adoption? Would the law of that country—i.e., in this example, Portugal—allow for the adoption by an overseas parent of a child in Portugal but who is not Portuguese? Would that be something that is allowed?

I guess some of the examples that I will be using as part of the committee stage are just to mainly understand some of the processes around the decisions that have been made and making sure that we have, in Hansard, some of the Minister’s intentions. I know that the Minister in the chair is one of the most thorough Ministers when it comes to responding to questions, so I would really appreciate the Minister’s response to that.

Thank you, Mr Chair. Thank you to the members for your questions. I’m going to try and attempt to answer your questions and maybe give a bit more, because some other members had asked questions through the second reading, and the first reading as well.

When I was asked about overseas adoptions and the process undertaken for the exemption list and queries, I’ll answer now about how we got to that list, and why some are off and some are on. The officials had gone through the list of those that had signed up to the Hague convention, and so they automatically go on. But then, we have to have a look at whether or not certain countries had had concerns raised about their adoption processes; and there are a number of them—not a lot, but there are a number of them—where other countries have said, “We have concerns about how they are doing their adoptions.”, so we’ve left them off the list.

There are also a number of countries signed up to the Hague convention who have a self-imposed moratorium on adoptions, and that could be for reasons such as war or some other reason where they don’t want to see their children adopted overseas. So they too have been left off the list of exemptions.

A comment was made that there were countries who had not signed up to the Hague convention who were on the list. There is one country on the exemption list that is not signed up to the Hague convention, and that is Tonga. The reason why we have signed them up is because they have a Supreme Court process in place and information-sharing agreements with Oranga Tamariki and New Zealand Police to make sure or ensure that the potential adoptive parents are fit to adopt these children and don’t have some of the heinous crimes behind them that we have been made aware of. So that’s how we got to that list that you currently have of 86 countries.

I will also note—in case you ask—why, when you look at India, it refers to a certain piece of legislation that we would exempt. That is because India has two pathways for adoption. One is recognised as being robust, and that’s the one that we will exempt adoptions from. But the other one has had concerns raised about it. So instead of saying we don’t want to exempt India, we are saying that we will exempt them if the pathway used is one that we can verify; but we cannot accept the pathway where it’s not. I can answer more questions, if I have not fully addressed that for you.

The member Duncan Webb also asked about the new definitions, and it is confusing—it is confusing. I’ve spent a little bit of time myself trying to get it into my head about how this will operate, but, effectively, the suspension is going to apply to New Zealand citizens living and habitually resident overseas. Now, there’s a thing here about the wording. I originally had wanted to use those that were “ordinarily resident” but actually got told I can’t use that word—or I shouldn’t use that word—because “habitually resident” works better and there is a definition for that in other legislation, so we have used habitually resident.

We’ve also looked to put in a definition of what overseas adoption means, to clarify this for those that will get confused, so the overseas adoption means an adoption, in any place outside of New Zealand, that—(a) [is made] in accordance with the law of that place”—so not here in New Zealand but in that country, overseas. It gives the adoptive parents a greater right than the birth parents to day-to-day care of the child, or would have if the adopted person was a child; and is made either by the order of a court or judicial or public authority in a country specified in the bill or prescribed in regulations or gives the adoptive parents rights to the adopted person’s property equal to or greater than the rights of the birth parents, if the adopted person dies without a will. So we’re trying to make a definition on what overseas adoption means, in an effort to make it clearer. I think I’ve answered it.

My questions follow on from the first and second reading, and some of them, I think, I traversed in some way. I’m specifically wanting to know from the Associate Minister of Justice—because this is a serious decision to preclude countries from adoption, even if it is just for an interim period of time—whether or not the New Zealand Government has had discussions particularly with the Pacific countries that are impacted by this legislation and what the nature of those conversations were.

I also want to return to the question that I asked in the second reading, which was around exceptions. For those families that clearly have had adoptions under way in advance to this bill coming to the House—will they be considered for exception, despite the fact that they are not coming from the exempted list of countries?

Alongside that, I’m wanting to know whether or not the Minister will be including in her exception list those that may have siblings where the intention was clear that they would also be adopted by a family member here in New Zealand.

My third question is just around the precedent. Because this has come to the House so quickly, and we haven’t had a chance to do our own research on this, I’m wanting to know what the precedent is in comparable countries. For the countries that we have specifically excluded in this operation—whether or not there are strict measures in place where they can’t actually adopt in between countries, so I’m talking about the US, Canada, and Australia; or whether or not this will be much more stringent than what we see in other places. I’m wanting to understand what the international landscape here is for adoption in light of the legislation that we have had brought to us in urgency.

I thank the member for her questions. In answer to the first one, about discussions with Pacific countries, there has been ongoing discussions with Samoa. We have ensured that we have been able to work with them to try and find a solution. It has not been fast, and the reason why is we’ve had Samoa have a change of Government and try and get their feet under the table. We have been there, trying to support them and offer them assistance so that we can help them get on to the exempt list.

I had mentioned Tonga had a Supreme Court ability and information sharing that is really robust. Officials are trying to work with Samoa to work through the issues that they have so that we can open up a pathway, again, for Samoa to come through. We have not gone out and done extensive consultation with all Pacific countries for a couple of reasons. One is that there are over 1,000 children that are adopted into New Zealand using the international adoptions pathway every year. We had concerns that those with heinous thoughts or intent would then find out what we’re doing and start applications for adoption.

In answer to the member’s second question, about those that are already under way and in process that are not from exempted countries, they will not be affected. If they have already started their process, their process will continue. There is no intent for this to be retrospective. It’s about moving forward. I understand concerns about the other countries, but this is our country and our problem with section 17. We’re actually enabling New Zealanders, with residency or citizenship, with criminal intent and criminal backgrounds to adopt these children. I’m stopping and fixing, hopefully, section 17 to immediately address that and stop that from occurring.

Part of the reason why we wanted to ensure that we make some of these subtle changes to the Family Court process, which is section 3, is so that the Family Court also did not get flooded with applications. Once those applications are under way, they will continue, which is part of the reason for going under urgency.

When looking for precedents in comparable countries, I was actually more focused on what we as a country were enabling and how we fix that. When it comes to a long-term solution and what we land on there, I don’t know what that long-term solution is yet, but my expectation is that we will go through a select committee process; we will have those robust discussions; and we should make sure that we have clarity, because, with our Pacific brethren, we share our whānau backwards and forwards. We want to make sure that we can continue to do that but that the children are safe.

Thank you, Mr Chair, and thank you to the Associate Minister of Justice for your answers thus far. I am looking at clause 4, so I’m still on the definitions, just trying to understand the scope of “overseas adoption”, for a start. Under the definition of “overseas adoption”, we have, in (b), in the last sentence, I’m just trying to understand the intent behind why the use of words “or would have afforded such a right if the adopted person were a young child;”, and whether that is to include 16- to 18-year-olds who might have different rights in respect of their natural parent in a home country, and attached to that, just a question about what impact the Minister understands that a pause for a year might have on that older cohort of potential adoptees on the basis of data that we have for previous years—so whether that’s likely to impact a particularly sizable group or not. I must admit I don’t know the rules around cut-offs here, so I haven’t checked against the primary legislation to see if there are already restrictions in terms of who counts.

The second question was in regards to the whole part of (c)(ii), under the definition of “overseas adoption”. I’m just trying to understand in which scenario you wouldn’t have an order of the court judicial authority in one of those countries, including a prescribed overseas country, and you would need to rely on that second option, which is whether the adoptive parent immediately gets this “legal right over the adopted person’s property equal to or greater than the right to the property of [the] natural parent or the person,” in certain circumstances. I would have thought that (c)(i) would cover precisely what we needed to cover.

The last question is not the same question as Lawrence Xu-Nan asked, but it’s attached, and it’s about the understanding of what we mean by “ordinarily resident”, which is used in different places in the bill—so just whether the intention is that there will be one common understanding of what that means for children overseas but also what that means for New Zealand residents. One example of that is in clause 6, but if the Minister could speak to that as well.

Thank you, Mr Chair. To the member: I’ll get some advice on the later part of those questions that you asked. But for the first one, I’m advised it is because they might be an adult at the time that they seek to have the adoption recognised in New Zealand. I’ve also just been made aware, to member Carmel Sepuloni, of other countries—the comparative. I’ve just been told that Australia do not automatically allow children adopted overseas by Australians to enter into Australia. Also, in relation to habitually resident, I’ve been told I need to correct myself. We are using “habitually resident” only in relation to Hague convention adoptions, and those Hague convention adoptions that Oranga Tamariki supports will continue. “Ordinarily resident” is used in the context of the jurisdiction of the Family Court.

Thank you, Mr Chair. A couple of things: in the Attorney-General’s report—I know Lawrence Xu-Nan mentioned this—there are a number of redactions, and one of their redactions is the evidence underpinning the bill. It’s redacted under section 6(a) of the Official Information Act, which is defence and security, which seems a little odd because child adoptions—there are other redactions which I can understand, which are to protect confidentiality with foreign States. I’m just wondering, in terms of the evidence—and presumably, it’s evidence about overseas countries—whether the Minister can give further information. I also see the Cabinet papers referred to in that document, and, of course, we haven’t seen the Cabinet paper—another document we haven’t seen—and it would have been good to see that.

The other point I’d like—actually, I’ll go straight to the transitional provisions, which are new section 2A, which then refer to page 12—in my notes—which is going to be in the Schedule. You know, another great Parliamentary Counsel Office innovation: to have to run between different parts of the legislation! You’ve referred to situations where people in New Zealand have an application and said, “That’s OK. They’ve got their foot in the door; they can proceed with that.” But my note here is: what about where an application for adoption overseas has been made? Will we be treating overseas adoptions—because, as I read the transitional provisions, if you’ve made an application for adoption in New Zealand, you can see it through and get the rights of citizenship as if the law hadn’t been changed, but if you have made an application for adoption overseas, that’s only going to be effective if the order is made before this Act comes into force. So you’ve got a mismatch between an adoption within this jurisdiction and an adoption in another jurisdiction. I guess I just want to ask: is that what you’re doing, and, if so, is that justifiable? That’s my first question, and I will go to my next one.

You might have seen that there’re a couple of Amendment Papers on the table, and I guess I’m concerned that—and I say this with respect—you have taken an offender-focused approach here and said, “Let’s crack down on these bad people who are exploiting children”—and I understand that—rather than taking a child-centric approach. That’s why, in terms of in clause 6—the extraordinary circumstances test—I put in an Amendment Paper that says, “Let’s not say there are exceptional circumstances that justify the make of the order; let’s just say it’s clearly in the interests of the child to make the order.”

Now, had this been in select committee, you know, we would have nutted this out around the table, and we would have talked about the words and whether “clearly” is the right word or just “in the interests of the child”, or whether that just doesn’t work at all and some other formulation is needed or, in fact, whether “exceptional circumstances” is best. But the problem with “exceptional circumstances” is that it doesn’t recognise the centrality of the child. I do think that if there’s an adoption order being made, the real question should be: is this child safe here? Is this situation appropriate and legitimate and, in fact, better than the situation they’re currently in? If we can meet that test and say it’s clearly in the interests of the child, then we’ve kind of met the kaupapa of the Convention on the Rights of the Child. So that’s my suggestion.

It may be that the Minister, or her officials, accept the principle that the child’s interests should be paramount, which is straight out of the Care of Children Act, but they think they should be expressed differently. It may be that you want to cross reference other legislation, but I do think that the threshold of “exceptional circumstances” is both unclear and kind of expressly putting the bar not just high, but very high. That’s the whole thing about exceptional; it’s very high. I’m not sure that that’s what we want to do. Now, this will create work for judges, and I know the Minister for Courts wouldn’t want that to happen, but it’s an important point, and I would invite the Minister to consider that.

I’d like to thank the member for his thoughts on this and, also, for presenting Amendment Papers for what he feels will be in the best interest of the child, and doing it under urgency. I do appreciate that, and I thank you for that. However, we won’t be supporting it, and I’ll outline the reasons why.

When we’re looking at exceptional circumstances, it’s really important that they are able to be determined on a case by case basis and by the judiciary. If we start putting too much around what is exceptional, we then take away the ability for the judiciary to be able to make those decisions themselves. An exceptional circumstance has to be determined on that case by case basis. The bill itself provides examples of what would indicate exceptional circumstances in this situation—for example, where both parents of a child have passed away and the only family member that’s alive is here.

So we’re wanting to make sure that it’s a deliberately high threshold so that the Family Court can make the adoption orders when the parents are anywhere in the world or the child is anywhere in the world for those legitimate types of adoptions. It’d be unusual for the court to make orders that apply to children who don’t live in New Zealand. As New Zealanders, we wouldn’t take it quite lightly if overseas jurisdictions were trying to tell us what to do, either. I consider it’s entirely appropriate to limit the Family Court’s jurisdiction but also give them the ability to be able to see or determine themselves what those exceptional circumstances might be. So that’s why we are going to not—well, I don’t intend to support what you have in there, and that is the reason why.

Also, you asked about the New Zealand Bill of Rights Act content being redacted. The changes that we’re making do have an impact on foreign affairs, and we’ve been very mindful of these impacts—how they are and who they affect—as we start to develop the bill. So it’s really important that I don’t comment on what’s been redacted; it’s been redacted for a reason, and, therefore, I’m just unable to speak to what it is that you can’t see.

I asked earlier whether or not children who were on the verge of being adopted, if that was on track, would be considered in exceptional circumstances. I’m wanting clarity from the Minister. There will be some families who are, perhaps, going through the process of it being considered by the Family Court but for whom it hasn’t yet crossed the line. As soon as this passes, if it hasn’t crossed the line, does that mean that their case is shut and that they will not have an opportunity to relitigate their adoption case until new legislation is put in place? That’s my first question.

My second one is in relation to something that the Minister for Children said earlier which is quite concerning. Again, it would have been something that we could have fleshed out in more detail in the select committee process, but we haven’t had an opportunity to do this. She mentioned that even when Oranga Tamariki were aware that the adoptive parents were a risk—perhaps they had a criminal record or a record of child abuse, in some instances—they could not influence the adoption. I want to know if that was indeed the case, because that’s something for us to all be concerned about. But I also want to know from that Minister: did that also mean that if the adoption went ahead, Oranga Tamariki were not able to provide some oversight or protection or care for those children?

Thank you, Mr Chair, and thank you to the member Carmel Sepuloni for her questions. In answer to your first question, if there is a process already under way and if the adoption process has been filed in the court, it will not stop. It’s going to continue. All of those that are under way or are in process will continue, and none of those will be stopped. This is about new applications for the immigration and residency pathway using international overseas adoptions.

The member also asked about Oranga Tamariki (OT) and their inability to influence. The reality is that when the adoptions are taking place in these overseas countries that are not signed up to Hague convention or information-sharing arrangements, OT have no idea that it’s even happened. If these children are being adopted in the overseas countries, OT are not aware of it until the children are applying for citizenship through Immigration New Zealand, and that’s the first time they’re being told that this individual has adopted these children. So the adoption has already taken place.

That’s why we have these exempted countries—the 86 on the list—because they do have approved pathways to ensure that the children are safe when they are adopted. But also some of them will have those information-sharing agreements, like with Tonga and New Zealand, where we can ensure that the right people are adopting these kids.

I’m just going to note before I start that you gave a good explanation of Tonga. But I do note that both Japan and Singapore are not exempt, and it might be useful—both of which are highly developed nations with a good rule-of-law framework, and I’d be interested in an explanation as to why those countries are not exempt.

The other thing I’ll say here is that since you’re not going to support the amendment and you’re going to stick with the exceptional circumstances test, I think it’s really important that Parliament makes clear what is meant by that. I mean, I would have thought that a court approaching that question would absolutely say that, well, we should be addressing that in a way that’s consistent with the New Zealand Bill of Rights Act and also consistent with the international human rights of the child. It’s all very nice to have a couple of—and the Parliamentary Counsel Office always do this—blindingly obvious examples, right? What we need are hard cases, where it’s a tricky decision.

I mean, I can imagine a situation where a child is orphaned in an overseas country—perhaps a Pacific nation—and they’ve got a good number of family members in the UK and some family members in California, but also a knot of them here in New Zealand, perhaps in Auckland, where there’s a strong Pacific community. You might say that it’s not exceptional, but it’s pretty clear that the options before this child are best served by that child being in a place where that child can grow up closest to the community into which it was born. Now, is that exceptional? I think that’s a genuinely good question, because it’s not that there are no other family members, but it is clearly the best option.

What if there are family members in the home country, but there is evidence that there is abuse going on in that setting? Are those exceptional circumstances? Because if it’s not, we’re doing a bizarre thing in, essentially, not rescuing a child from an abusive setting when we could. Or what about a child that is, sadly, orphaned in a dangerous country, a country where there’s conflict—and we know of far too many of those. Now, there may be other family members even in that country who could look after the child, but you’re leaving them in a terrible and tenuous situation.

These are hard cases, and all of those, I think, are cases that could be framed as exceptional. So I would really invite the Minister to address those particular examples I’ve given you, but to also be quite expansive on what is intended in this bill by exceptional circumstances.

Thank you, Mr Chair. I would like to address the member’s first question, which is specifically about Japan and Singapore. What we have done is made sure that those that have signed up to the Hague convention that don’t have issues are on the exempt list; neither Japan nor Singapore are signed up to the Hague convention, so that is why they’re not on the list, but I think I’ve traversed that. I’ll make it really clear: we can pick countries left, right, and centre but the exempt list is a list of 86 countries who have shown that they put the wellbeing of their children first.

When it comes to—and I understand, as well, the member’s frustration about me not standing up here and giving you examples of exceptional circumstance. It is not for me to pre-empt what a judge may hear and then determine. If I start making comments on what I think exceptional circumstance could be, I may end up leading a judge to make a decision, and that’s not for me. I want them to be able to have the freeway to be able to determine, themselves, what will be exceptional.

I’m just going invite the Associate Minister of Justice then, if she won’t respond to “What about these examples?”—and I get it—will she give a non-exhaustive list of considerations that she thinks might be relevant to be weighed in the balance, either pro or con in terms of exceptional circumstances? I do think that we’re doing a disservice if we don’t give all of the guidance we can to the courts, who will be tasked with this job.

Thank you, Mr Chair. I’ve just been reminded about thoughts we need to have about countries in conflict. Often, countries where there is conflict, they don’t want their children to be adopted, and they may be on the Hague convention list. During conflict, there can also be additional risks, that adoptions are unsafe. There could also be the ability where something or someone needs to be moved quickly. So it’s really imperative that we allow our justice system and our judiciary to make the ascertainments and decisions of what will ultimately be in the best interests of the child, because that’s really what we all want to see.

Thank you, Mr Chair. I’m at around about the same place as my colleague—so on paragraph (1A). But my first question was about clause 6, section 3 amended, paragraph (1A)(a), which references international surrogacy arrangements as one of the carve-outs. The question is really in the context of something I mentioned earlier, which was the broader adoption review—so the bill that’s currently with the Health Committee. I had a very quick flick through the Law Society’s submission, which was looking at the definition of surrogacy and whether agreements needed to be signed off in terms of new artificial technology that’s been used before a surrogacy agreement was entered into. So my question is really around whether the Minister is satisfied that the current definitions are suitable or whether we’re taking this interim step and we’re really having to manage with the existing definitions that we have until those changes are made in the more substantive, longer-term adoption bill.

The second one—just touching on something that Dr Duncan Webb raised in terms of exceptional circumstances—I wonder whether the Minister considers that regardless of not specifying particular things to take into account, the principles of the Hague convention none the less apply. The reason I ask is because the legislation seems to be using the Hague convention as a benchmark of accountability. One of the principles within the convention is that principle of subsidiarity, which I mentioned earlier. That is the idea that, of course, a child’s country of origin must be given due consideration. So whether there would be an expectation that judges and Family Court Associates were turning their minds to that set of principles that the Hague convention is built on.

The final question is around the decision maker themselves. So it’s clear it’s a drafting decision and its principal decision in terms of including Family Court Associates as those decision makers or not. I wonder whether the Minister had considered the current powers of the Family Court Associates and whether, as an extraordinary power, this, kind of, sits outside the scope of what we would be asking them to do ordinarily, and, given the temporary nature of these changes, whether that should have been restricted to a judge’s power or whether there are time demands, or capacity demands, that would make sense to include Family Court Associates as well. Thank you.

Mr Chair, thank you. Thank you to the member Vanushi Walters for her questions. I’ll reiterate that surrogacy will not be affected through this temporary change that we’re making. This bill refers to the existing definition of surrogacy that we have. It’s used to exclude the international surrogacy from this suspension. So by using what we currently have, it means that we can exclude those overseas ones so that they can continue on their pathway without being affected. I’m satisfied that we do that there.

The member mentioned the Hague convention and the principles of the Hague convention, because we refer to the Hague convention. We’re referring to the Hague convention to enable us to get a list of exempted countries; otherwise, it would have been a blanket “no” to the world. We recognise that most adoptions that occur in New Zealand are adoptions where children are going to safe and loving homes, so we don’t want to put a big stop on everybody when we can use the convention to tell us and show us that countries are already abiding by what will be in the best interests of a child. So the Hague convention is being used for that aspect while we do work on that longer term. I hope my answer satisfies the surrogacy question.

I have just had a look at the disclosure statement, and I just had a query around Part 1, clause 4, amending section 2. I know that we have been talking about the Hague convention, but I just have a short call just asking the Associate Minister of Justice to clarify. We know that the reason that this bill is coming in, which, as the Minister has said, is to close the dangerous loophole that allows adoption by New Zealanders who may have criminal convictions, particularly around sexual abuse and child endangerment. In the departmental disclosure statement on page 3, under “Part One: General Policy Statement”, in paragraph two, it says, “In practice, adoptive parents with criminal convictions and histories of abusing and exploiting children and young people have been able to adopt children and young people overseas and bring them to live in New Zealand.” So does that mean that Hague countries don’t do that? Because, obviously, if this is happening in New Zealand, then, potentially, it is happening in Hague countries as well. So I’m really interested to understand that so that we are making sure that we’re using a benchmark that actually is fit for purpose when we’re looking at these Hague countries.

So, yeah, if the Minister could just explain: do Hague countries already do this? Because, looking at the reasoning, it seems that New Zealand has not been able to do this. So, yeah, that would be great. Thank you.

I thank the member for her question, because it is quite a confusing topic. The Hague convention is probably what I would call our protector, and so it’s not that countries with the Hague convention are doing this. If we’re signed up to the Hague convention and the UK are signed up to the Hague convention, and if we were to do adoptions between our two countries, we have all these checks and balances in place because we’ve both signed up. But there are some countries that are not signed up, and because they’re not signed up and we can’t tell them how to do their adoptions, that’s where we have the issue. So the Hague convention has been used for the benefit of these 86 countries because that tells us that they are working appropriately and they do have the best interests of the child at heart when they consider the adoptions and then grant them.

I mentioned earlier that there are a couple of countries who are signed up to the Hague convention, but other countries have suggested that there might be an issue with their adoption process, and so we’ve left them off the list because other countries have identified that there could be potential issues. It’s part of the reason why we want that ability, and, actually, this was mentioned by, I think, Carmel Sepuloni earlier, about taking countries on and taking countries off and should we be doing that—what message does that send to those countries?

The intent is not to play whack-a-mole with any country; the intent is if another Hague convention country raises issues about someone else, we’d want to be able to take them off the list. If there is something that occurs that needs an immediate fix, or perhaps we get to a position relatively quickly with Samoa, we’d want to be able to put them on to the list so that we can reinitiate the adoption pathway for some of these children. The Hague convention is helping us to understand who’s got it right so that we can focus on those that we think we need to.

Kia ora. A very quick question: I’m noting that in the bill, the Minister has set out that there are around a thousand overseas adoptions that are recognised in New Zealand each year under section 17 of the Adoption Act. I’m wanting to still understand who’s mostly affected here. Of those thousand in most recent years, or even the most recent years, where did they come from? I’m wanting to understand the proportion of those adoptions that came from Pacific countries—Samoa—as granularly as the Minister can get so that we can understand the relationship and where these children have been coming from.

Thank you. I’ll answer that one—just because I was meant to answer the member Vanushi Walters’ question—about the subsidiary. When considering adoption applications, the Family Court will consider it in accordance with the law in our Adoption Act. The judiciary, in practice, often considers Hague principles when the cases do have an international element.

To the member Carmel Sepuloni, yes, there are over a thousand international adoptions that come through New Zealand every year. The majority of them come from our Pacific nations, and just over 700 of them come from Samoa. The rest are scattered around the Pacific, and that’s not the only area, though. They are from other countries around the world. I don’t want to spend time focusing on those countries. I think it’s more important that we fix the legislative enabler that we currently have so that we don’t allow those that are not signed up to the Hague convention to continue until we find, at least, that permanent fix so that we can still continue to adopt our extended whānau from the Pacific into New Zealand.

Thank you, Mr Chair. I have a very specific question for the Minister, and that is in regard to one of the countries listed in Schedule 1AAB, and that’s India. The Minister confirmed—as I’m aware as well—that India is a signatory to the Hague convention, but that the specified piece of legislation under the exemptions list is the Hindu Adoptions and Maintenance Act 1956. I just wanted to clarify: this says that “India, if the adoption is not made under the Hindu Adoptions and Maintenance Act”.

So the exemption is relating to that piece of legislation or is it to the other one, which is the Juvenile Justice (Care and Protection of Children) Act, 2015, which is India’s other piece of legislation that governs adoptions, which is, I understand, a secular piece of legislation compared to the Hindu Adoption Act, which only relates to the adoptive parent being Hindu and the adopted child being Hindu? So can the Minister clarify whether this exemption is only for adoptions under the Juvenile Justice (Care and Protection of Children) Act, 2015 and the rationale or the difference between the two? I think the Minister mentioned that one is more robust than the other.

I thank the member for seeking clarification on those two pieces of legislation for India and which one’s exempt and which is not. You quite rightly mentioned that India has two adoption systems, and I’m satisfied that the Juvenile Justice (Care and Protection of Children) Act, which is India’s Hague convention implementation framework, provides the adequate safeguards that we’re looking for, for the care and protection of children.

Unfortunately, I don’t feel that the other system, the Hindu Adoptions and Maintenance Act, has the same safeguards to adequately protect the children and young people from harm. So that’s why, instead of just saying no to India, we’re going, “Actually, this pathway looks pretty good. We can see that care and protection there, so we’ll accept those.” But I cannot, hand on heart, accept the other without knowing that the care and protection is in place.

Kia ora and ngā mihi Te Wiki o te Reo Māori—happy Māori Language Week, everyone. Thank you so much, Mr Chair, for the call on this, which is a really important bill. Can I first begin by thanking the Minister for all the work that she has put into this issue, because it is actually a big issue that should be addressed: the fact that the Adoption Amendment Bill is being used by too many people to traffic children. In some cases, as has been described in the media, children are treated like slaves in some of these homes and that is not a good thing for Aotearoa New Zealand.

My question, Minister, is with regards to clause 8, new section 27E(3), where it states that “Before making a recommendation under subsection (1), the Minister of Justice must—(a) consult” with a number of Ministers: the Minister of Foreign Affairs, the Minister for Children, the Minister of Internal Affairs, and the Minister of Immigration. Then, it goes on under paragraph (b) to say that you also have to have regard to the following matters: to a country’s regulatory regime to ensure that safeguards to prevent harm to adopted persons, and then, it lists various other points. My question, though, Minister, is: would this new system that’s being proposed under this new bill provide multiple loopholes or multiple categories that may create more confusion in the future? That’s my first question.

My second question—and you have traversed this and answered this for many other members of Parliament, but I’d like to ask, because there are not that many times that you hear your country of birth, Tonga, being talked about in an overseas Parliament in such positive terms. So if I can just go back to clause 4(1), which actually lists Tonga as one of the exempt countries in new Schedule 1AAB. You’ve explained that it is because of their Supreme Court system actually has a good way of ensuring that you feel that they actually have the safeguards that are appropriate for New Zealand adoptions. You also gave the numbers—that of the thousand or so adoptions per year, about 700 of those adoptees are from Samoa.

But if I can refer back to something that our deputy leader covered when she, I think, gave either her first speech or her second reading speech, where she discussed the fact that a few months ago, our Pacific caucus—actually, we have a few MPs, and I chair it for Labour, and one of these cases came through. I wrote to the Minister of Foreign Affairs and, basically, asked, “What is it that we can do as a country to ensure that we address issues?” I thank you, because you actually came in and had a couple of conversations with me to assure me that this work is actually happening behind the scenes. You, of course, didn’t tell me what the actual work was, but you just said that it is, in part, to address one of the questions that we asked, which was, if I can just reiterate: does the New Zealand Government have any plans to review our systems to ensure compliance with our own obligations under the Hague convention on adoption?

Because here’s the thing: the bill that we’re discussing right now is under urgency. We actually haven’t had the time to really get through and read the details and see exactly how it affects not just now but in the future. I can see that you’re wanting to ensure that you’re futureproofing, that adoptions in the future place our children in a much safer environment, but my question is: of the thousand or so children that have already been adopted, that have already come into Aotearoa New Zealand—I don’t know how many thousands that is over the many, many years—what about them? How are we as a country going to ensure that we don’t see these cases coming through the media? Because these children are already here. So I really commend you for the work you’re doing to futureproof the future, but my question is more about: how do we ensure that the children that are already here, that we don’t see so many more of them come through the system?

Thank you, Mr Chair, and I thank the Hon Jenny Salesa for her constant work and for bringing this to the attention of Government as well. I know that it was brought to the attention of that member’s Government and successive Governments before. It’s a privilege to be able to stand here and say we’re finally going to be doing something. It’s overdue, and we’re determined to try and make sure that the care and protection of those kids is ultimate. It’s fantastic what Tonga have done with New Zealand to enable these international adoptions to occur between Tonga and New Zealand, and I commend both the New Zealand and Tongan Governments for getting to a situation where, under urgency, when we have a bill like this going through, we can exempt Tonga because of the exceptional work that’s been done there. I commend them for that.

The member asked me about clause 8. When the Governor-General is given advice to either put a country on or amend the exemption list, there are a lot of different Ministers that will be spoken to when deciding whether or not that country should be exempted or taken off the exemption list. I don’t believe that that’s going to create any loopholes at all. What’s become quite apparent to me is that different agencies over many years have heard different scenarios or different understandings about what’s happening, and it’s been very hard to pull everybody together to get a whole, holistic view of what is occurring. This has occurred now. It’s occurred, and so in order to make sure we don’t exempt someone or take somebody off when another agency may have information that we’re not aware of, that’s why we’re going to make sure that they are all involved when we make decisions on who is on the exempt list. So I don’t think it will create loopholes. I think it’s a really good safety measure.

I think that I have answered everything that the member asked. Please ask me again if I have not.

Thank you, Mr Chair. The heavy lifting here is done by new Schedule 1AAB, with the list of countries, and whilst this bill, it appears, will be in force only for, really, a couple of years, I think it’s good that we can have a much better approach to it. It’s still going to be possible to add to that list or, presumably, to remove, and that’s one question: can we remove countries from that list? If Parliament has put it there, can the Governor-General, by Order in Council, remove it from the list?

I see in new section 27E, in clause 8, that you’ve got the basis upon which the considerations are made, including an open-ended “any other matter the Minister considers relevant.”, and then there’s a list of people with whom the Minister must consult. I’ve got an amendment on this because I think we should add, there, the Children’s Commissioner, and I say that because Ministers are wise and all that sort of thing, but they’re not independent. Sometimes, they need to be told things they don’t want to hear, and Ministers tend to agree with each other a little bit too much, sometimes.

I would be interested as well to know whether the Children’s Commissioner was consulted about this bill, because she and her predecessors have been great advocates and great voices for children. I would have hoped that the Children’s Commissioner would have been consulted as to this proposed solution, and I certainly hope as we go forward that her office is closely involved.

But in terms of adding another country to the list, I would have thought that including the Children’s Commissioner, with her knowledge of the rights of children and the international framework, would have been a good addition to that list. The idea of having someone outside the executive, or a watchdog, if you will, being at least consulted—it doesn’t have any decision-making rights—would be a very useful addition. I’d be interested to hear if the Minister would consider that amendment.

Thank you, Mr Chair. In answer to the member’s question about the Governor-General being able to remove a country from the list or put a country on to the list: yes, the Governor-General will be able to do that by way of Order in Council upon receiving a recommendation from the Minister of Justice. This is why we have all of those other agencies or the Ministers involved, to make sure that if we do add or subtract from that list that we’re doing so with the fullest information that we have and not just one agency’s information.

The member has placed a tabled amendment on the Table about the Children’s Commissioner. I’m not supportive of having the Children’s Commissioner on that list. In some of these situations, the decisions may need to be made very quickly. If there is time, we expect to consult with others, if it’s appropriate, but where there may be a need for speed, we are not involving the Children’s Commissioner. I can also confirm that the Children’s Commissioner was not consulted on what we’re doing here; however, this has been happening for, actually, quite a number of years, and there has been extensive consultation papers that were developed in 2021 and 2022 that didn’t go anywhere. So there is consultation that has been developed in the past.

We are moving at speed here to stop any more children from being exploited, abused, or trafficked. We’re doing it as a temporary solution, not as a permanent one, but we have to say: this has got to stop now.

Thank you, Mr Chair. I just want to say thank you to the Minister for your engagement, and I really appreciate your explanations around this. It has reassured, I think, a lot of us in terms of, particularly, the Hague convention. It’s been a great learning experience for me, from the Minister—thank you—as well as the Chair!

I have just two questions around overseas adoption. One of them is around the drafting and the other one is around a particular wording, before I move on to clause 7. So this is still clause 4, “Section 2 amended (Interpretation)”. I guess the drafting thing is around: under (1)(c)(i) there is a list of countries or public authorities, including “(A) a Commonwealth country;”, “(B) Austria;”, “(C) Denmark;”, etc. Noting that they are not the entirety of the countries, there is (I), which is “a prescribed overseas country;”. Can I check with the Minister on why those particular countries were explicitly named, as opposed to just having a blanket “please refer to Schedule 1AAB”, because all of the countries are there? It’s more of a drafting question. Or are there any specific reasons why it’s listed in that particular way?

The second question is around clause 4(1)(ii)(B), which is in terms of adoptive parents and also in terms of the adopted person’s property, “or greater than the right to the property of any natural parent of the person—”. In (B), it didn’t use the term that we have been referring to in terms of “habitually resident” or “of a particular country”, but is specified as “a national of the country”. I want to check with the Minister on whether the choice of “national” in that case—and, again, I might be answering my own question, so please just tell me if I’m answering my own question—is to do with the property right, and hence that’s why “national” is used as opposed to “habitually resident”. So those are my two questions. Thank you.

Thank you, Mr Chair. In answer to the question “Why do we have different rules for Commonwealth countries and some European countries?” The Adoption Act provides a similar process for recognising adoptions for some specified countries, such as Commonwealth countries and the United States of America. So it carries over existing law, but it has not been modernised. Due to the urgent nature of this work, these are continued within the bill. When we look to do that long-term solution or further work, we may look at whether or not these distinctions are still going to be needed. But at this stage, that is why we are distinguishing. I will sit down and find the answer to the second question.

Thank you, Mr Chair. My question is really on new section 27E. It’s a different suggestion than my colleague Dr Duncan Webb had, which in my view was actually a good suggestion, given the knowledge of the Children’s Commissioner.

I had wondered, firstly, whether the Minister had considered including a required consultation of the Attorney-General, just in light of the section 7 report that we’ve seen and the issues that do touch on discrimination or non-discrimination, that that is a useful check to have before there are changes that are made to the list.

The second question is in regards to new section 27E(3)(b), inserted by clause 8, where there are a number of considerations that are to be taken into account before there are any changes to the list. Under (b)(ii), it specifies “international adoption agreements, and the country’s record of compliance with those agreements”. In my view, given the subject matter that we’re looking at, it would be prudent to specifically include a reference to the UN Convention on the Rights of the Child, and it would just include a separate sentence at the end of that section on that.

I’m hoping to get you some amendments on both of those two proposals, Minister, if you would consider them. I think it will make what is quite an extraordinary power just one that is subject to reasonable yet robust checks in terms of the decision maker, in that case, turning their minds to the relevant things, but also the relevant risks in terms of the Attorney-General checks.

The final question I had was whether the Minister had considered limiting the powers. So regulatory-making powers are, of course, not unusual—they’re extremely common; fairly common in terms of adding new criteria, new things to be considered; and fairly unusual in terms of repealing or replacing things that were agreed through primary legislation. So I ask whether, at any stage, there was consideration of the Governor-General being able to do this by Order in Council, but only in terms of additions and not removals or any variation of that, or any further checks in terms of agreeing those Orders in Council.

Thank you, Mr Chair. I’ve been given a flurry of notes, so, hopefully, I will be answering all of these questions that have been placed to me. I’ve just been advised that the Children’s Commissioner has issued a press release, where she welcomes the changes and said that it is crucial that further work takes a child’s rights approach. Of course, that’s why we’re doing this in the first place: because of the children’s rights.

Again, we are using “habitually resident” only in relation to Hague convention adoptions, and those Hague convention adoptions that Oranga Tamariki supports will continue. “Ordinarily resident” is used in the context of the jurisdiction of the Family Court, so that’s why we’ve gone to “habitually resident”; there is actually a definition of habitually resident, which is also a reason why we’re using it.

The Attorney-General has considered justified limitations and does not consider it necessary to specifically consult. I do note, though, that the Attorney-General does put an eye over all legislation. Although the question was about the Attorney-General being part of the group of Ministers, I don’t feel that that’s necessary at that stage, because that’s actually bringing together all the agencies to determine whether or not a country is up to standard or not up to standard.

The Attorney-General will look at any proposals that we make in law and legislation; hence, the BORA vet that came out. My apologies for that being late, but the Attorney-General was overseas and was not able to look at it, so that’s why it’s come up on to the website at late notice.

Thank you, Mr Chair. Thank you for that, Minister. I also just want to acknowledge the fact that I really appreciate the Minister for your statement before, about the New Zealand Bill of Rights (BORA) report and the BORA report being late. Even though it was late, I still very much appreciate the fact that we got it right after first reading. Again, I was referring to a previous bill, where we didn’t get it until after the third reading, despite having gone through committee stage. So it’s incredibly welcome, and I think it really helped us to have that kind of clarity and transparency, so I want to thank the Minister for that.

I also want to pick up on one thing. I understand the Minister in terms of the definition between “habitually resident” and “ordinarily resident”. I guess my question was, then, in clause 4, “Section 2 amended (Interpretation)”, in the definition of “overseas adoption”, the term was neither; it was “a national of the country”. So I was more wondering why “national” was used in that particular instance.

Moving on to clause 7, so “Section 17 replaced (Effect of overseas adoption)”, which is something I have signalled in my second reading that I want to ask the Minister around in terms of the changes to both the citizenship by descent but also in terms of some of the visas. I guess the first question around that is: this, I guess, applies where it is not a Hague convention adoption—I’m assuming this applies to a list of countries that are not in Schedule 1AAB. So, in those cases, then, someone from Aotearoa New Zealand can still adopt, but they just can’t come in or receive a visa to come in. I guess I just want to get that really basic clarification from the Minister that it doesn’t prevent adoption, just prevents arrival?

In those sorts of situations, what is the Minister’s intention around still allowing for that adoption but not for arrival? Is it still looking at it in terms of the protection of the child? I guess, by not physically being here, it makes sense, because then they’re not being subject to potential exploitation and etc., but where does that leave their adoption process and where does that leave that child in the country that they are habitually residing in? I just want to kind of get an idea from the Minister in terms of that thinking.

My next question, and it’s still around this—I want to refer to Schedule 1: that’s the transitional, savings, and related provisions. When we are looking at clause 4, subclauses (2) to (4) of that—and that’s to do with when we are in this in-between stage—subclauses (2) to (4) make a lot of sense. But there’s one part I want to check with the Minister. When we are looking at subclause (3) of that, which is when you have an application for a visa that’s been made before the first commencement date—so the child, then, for example, in that transitional phase, will receive a visa to come here, which means that the new section 17(3)(b) doesn’t apply, but because of what we see in subclause 1AA(4)(2) of Schedule 1AA, they are not eligible for citizenship by descent.

So I just want to check with the Minister: in those situations, you have a child being able to come in on a visa, but they have no citizenship pathway, or—potentially—the only limitation to that child is citizenship by descent, but that child may still have access to, for example, citizenship by grant. Would that be a correct assumption? Those are my three questions.

Thank you, Mr Chair. I’ll take this opportunity to say that what also should be up on the Ministry of Justice website now are a couple of flowcharts [holds up flowcharts], because it is quite complicated, and I found that these really help to understand where you may be within the adoption process and what it means for you. I encourage the members to download these from the Ministry of Justice website, because it may just help to understand some of the complication. Because we have several different avenues for recognising the adoption: it can be done through citizenship, it can be done through immigration, and it can be done through the adoption process itself. We have so many sections within the adoption law that it makes it quite difficult to be able to answer to specific scenarios when they could incorporate different avenues.

People will still be able to go overseas and adopt children overseas in those overseas countries, but if they are not on the exempt list, they will not be able to bring those children back here to New Zealand with them. It’s the other countries’ courts that make the decisions on the adoption, and we often have no idea that it’s even occurring, so that’s why we’re temporarily stopping section 17 of the Adoption Act, which would allow these children to be brought into New Zealand. It would be worse to bring a child to New Zealand and into an unsafe family than to leave them where they are, in our humble opinion. Also, when it comes to the amended section 2 definition of the “overseas adoption”, the Adoption Act 1955 has that wording and we carried that over. We’re not going in to make changes in the Adoption Act; we’re just trying to do this very quick, urgent, temporary fix and utilise what’s already there in the legislation.

Thank you for those clarifications, Minister. Thank you for that—I’ll go and have a look at the Ministry of Justice website, and maybe, once I’ve checked the flow chart, I may have a question coming back, in terms of the question I have around section 7. But just checking—sorry, I stand corrected; I think the Minister actually answered all of my questions. Thank you.

I’ve just been advised that those flowcharts are not going to be up on the Ministry of Justice website until tomorrow. I’ve just asked officials if they could get some copies down and hand some to yourself and also to the Labour Party.

Just a short question. There’s been a lot of discussion about “habitual residents”, and then, in clause 11 of the bill, section 3 of the Act is amended, and it gives us the word “domiciled”, which is kind of an old-fashioned way of being habitually resident. I’m just wondering whether that’s intentional because it’s part of another framework or whether, in fact, it would be better to say, in that setting, “the child is habitually resident”, for consistency across the legislation. “Domiciled” is sort of a 1950s terms and has a fair bit of law around it, including being a little bit more than just resident; it’s about, kind of, your centre of gravity. It’s actually quite a hard question to answer. It’s where your family are, where your property interests are, where you pay tax, as well as where you live. It’s actually, I think, quite important in matters of things like cross-border taxation. So I’d be interested for the Minister to explain why we’ve got “habitually resident” in some parts of the bill and “domiciled” in other parts of the bill.

Thank you, Mr Chair, and thank you to the member for his question. This is reverting to the original 1955 wording. So we’re using “habitually resident” in the areas we are utilising or changing tonight, but then, when the suspension ends, it will go back to the original wording, which is “domiciled”.

I move, That debate on this question now close.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 6(1), new subsection (1A)(b), to replace subparagraph (ii) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8, new section 27E(3)(a), to insert subparagraph (v) be agreed to.

The time has come for me to leave the Chair for the dinner break. The House will resume at 7.30.

Sitting suspended from 6 p.m. to 7.30 p.m.

Part 2 Consequential amendments and revocation