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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL APPEAL NO. HBA 11 OF 2006
BETWEEN
SOCIAL WELFARE OFFICER, Lautoka
Appellant/Guardian Ad Litem
AND
RUSSEL PETER MARSHALL and
ASHINA BEGUM MARSHALL
1st Respondents
AND
SATRUPA DEVI
2nd Respondent
AND
ROSANA STASIA and
TARA JANE
Infants
Appearances:
Preetika Prasad for the appellant
Kamal Kumar for the respondents
JUDGMENT
[1] Before me is an appeal filed by the Solicitor General’s Office on behalf of the appellant, the Senior Welfare Officer (SWO), who is also the Guardian Ad Litem for the infants at the centre of these adoption proceedings. On 16 August 2006 the Lautoka Magistrates Court made an adoption order in favour of the 1st respondents (Mr. and Mrs. Marshall) who were not resident in Fiji when the adoption order was granted.
The grounds of appeal
[2] It is contended by the appellant that the Learned Magistrate erred in law in the following manner:
into account the best interest of the children as required under the Adoption Act (Cap 58) and under Fijis obligations under the Convention on the Rights of the Child 1993 in the following:
from the Guardian Ad Litem
followed in this adoption application
the child that they comply with South Australian Law.
Under Section 6(4) of the Adoption Act (Cap 58) an Adoption Order shall not be made in favour of any applicant who is not resident in Fiji or in respect of any infant who is not so resident.
[3] The grounds may be summarized as follows:
Ground 1
The Learned Magistrate erred in law and in fact in failing to take into account relevant matters relating to the consideration of ‘the best interests of the infants’.
Ground 2
The Learned Magistrate erred in law and in fact in failing to give due weight to section 6(4) of the Adoption of Infants Act (the Act) and made the adoption orders in contravention of section 6(4) of the Act.
The adoption application
[4] In the heading of the adoption application (the application), Mr. and Mrs. Marshall described themselves as, "both of 11 Lakeview Drive, Parafield Gardens SA 5107, Australia currently residing at 57 Sandalwood Street, Drasa, Vitogo, Lautoka, Mechanic and Domestic duties respectively". The particulars of their address in the body of the application was "11 Lakeview Drive, Parafield Gardens SA 5107, Australia". The application also states that when the application was made they were residing at 57 Sandalwood Street, Drasa, Vitogo. The Guardian Ad Litem’s report is contained at page 73 of the Record. The SWO noted the following issues in her report dated 31 May 2006:
a) This is an inter-country adoption
b) A home study report is not available
[5] In view of the concerns noted in (a) – (g) above, the SWO did not recommend that the adoption orders sought by Mr. and Mrs. Marshall be made. Of significant concern to her was the response she received from the Department for Families and Communities, Government of South Australia, to her enquiry regarding Mr. and Mrs. Marshall. The letter dated 12 July 2006 from Mr. Michael Mcguire, informed her that the South Australian government was not able to undertake the Home Study report requested as part of an inter-country adoption application, due to the fact that Mr. and Mrs. Marshall had not conducted their application under the South Australian Adoption Act 1988. He informed the relevant authority in Fiji that in privately negotiating arrangements for adoption, Mr. and Mrs. Marshall’s actions were in contravention of section 29 of the South Australian Adoption Act. Mr. Mcguire also stated that Mr. and Mrs. Marshall were not registered as prospective adoptive parents in South Australia. Mr. Mcguire advised Mrs. Delana, an Assistant Director in the Department of Social Welfare that had the Marshalls applied to be approved as prospective adoptive parents and subsequent approval had been granted, the normal process would have been to forward their details to Mrs. Delana in Fiji to consider recommending a placement of a child or children into their care. Such a recommended placement could not be with children already known to them or regarding children currently in their care as private arrangements for adoption are unlawful in Australia. (emphasis added). In this case, Mr. and Mrs. Marshall entered into private arrangements to adopt the infants herein. Mr. Mcguire confirmed to the Fiji authorities that Mr. and Mrs. Marshall were not approved prospective adoptive parents in South Australia. He concluded that it was "therefore clear that this arrangement has been entered into outside of the proper lawful processes of adoption". In no uncertain terms he reiterated that it was an offence under the South Australian Adoption Act 1988 to make private arrangements for the adoption of children. His letter states that all adoptions whether domestic or inter-country adoptions, must be properly arranged through the Central Authority, which is the Adoption and Family Information Service in South Australia which he stated was in place to protect children, and their families from unscrupulous people who may seek to unlawfully obtain children for adoption, and to prevent the trafficking in and abduction of children.
[6] Notwithstanding the SWO’s report, the Learned Magistrate granted the orders sought by Mr. and Mrs. Marshall. His reasons which are contained at page 88 of the Record follow:
"On the material placed before me and having made an interim order on 09/06/06 for a period of 2 months and having observed the bondage between the applicants and the twins, I am of the view that it is in the best interest of the twins that I shall make the order for adoption which I hereby do."
Ground 2: The Learned Magistrate erred in law and in fact in failing to give due weight to section 6(4) of the Adoption of Infants Act (the Act) and in granting the adoption orders contravened section 6(4) of the Act.
[7] Both parties have dealt with this issue first. The appellant contends that the adoption order was made in contravention of section 6(4) of the Act which is expressed in mandatory terms. Section 6(4) provides that:
"An adoption order shall not be made in favour of any applicant who is not resident in Fiji or in respect of any infant who is not so resident." (emphasis added)
[8] Mr. Kumar submitted that the state was estopped from raising the residency requirement on appeal. At paragraph 2.4 of his written submissions, he stated that "On 9 June 2006 the Counsel for the Appellant sought an adjournment to enable them to obtain Home Study Report and gave an undertaking to the Court and Applicants that the appellant is not and will not contest the issue of Applicants residency". That statement is not supported by the Record. The Magistrates Court record of 9 June 2006 at page 87 of the Record states Mr. Kumar as having submitted that the parties had agreed that an interim order was to be made for a period of two months under section 14 of the Act awaiting a response from the Department of Social Welfare in Australia and if the report is favourable as to the background both personal and financial. Mr. Tuilevuka who appeared for the Director of Social Welfare confirmed that agreement but asked that the infants not to be taken out of Fiji. The Magistrate entered a consent interim order under section 14 of the Act granting the custody of the two infants to Mr. and Mrs. Marshall and ‘awaiting a report from the Department of Social Welfare in South Australia’ and also ordered that in the meantime the applicants were not to take the children out of Fiji.
[9] Mr. Kumar’s submission that it was unethical for the SWO to raise the issue of residency on appeal is both misconceived and lacking any credible evidentiary basis. The provision relating to residency clearly circumscribes the discretion of the Court in making adoption orders in favour of applicants who are not resident in Fiji. It matters not, the applicant’s perception, for that is all it can be described as, that the SWO did not take a strong objection on this issue earlier in the proceedings. The parties including the SWO cannot contract out of mandatory statutory requirements. Even if the Record supported Mr. Kumar’s submission of a waiver of the residency requirement by the SWO, my views would remain unchanged. The parties are obligated to have regard to section 6(4) of the Act. It is a mandatory provision which the Magistrates Court was required to have regard to. It is not apparent from the brief reasons given for the decision approving the application that any weight or consideration was given to section 6(4) of the Act.
[10] The alternative argument put forward by Mr. Kumar was that section 6(4) of the Act is inconsistent with the provisions of the Constitution and is therefore invalid. Reliance for the proposition was placed on section 38 of the Constitution which prohibits interalia discrimination directly or indirectly on the grounds of a person’s actual or supposed personal characteristics or circumstances including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth primary language, economic status, age or disability..... He submitted that section 6(4) of the Act as far as it relates to the residence of the applicants is inconsistent and not in conformity with sections 38(1), (2), (3) and (7) of the Constitution, in that:
i) it infringes on the applicants’ right to equality before law
[11] These proceedings are not the appropriate forum for consideration of the constitutional issue raised. The evidentiary basis upon which I have been asked to determine this issue is inadequate. Surely Mr. Kumar does not expect me to uphold his contention that the mere reference in his submissions on page 17, to an earlier case dealt with by the Magistrates Court involving applicants who he says were former Fiji citizens and who were registered in the Vola ni Kawa Bula and whose adoption application was purportedly approved, provides a sufficient evidentiary foundation to allow for consideration of what is potentially a complex issue which has far reaching social and legal reprecussions. The constitutional issue raised in this appeal should be brought by way of a separate application where the State has an opportunity to put before the court the necessary evidentiary foundation which it will be required to do to discharge the onus of justifying any alleged restriction of human rights provisions in the Constitution, if section 6(4) of the Act, is to be properly challenged as being an infringement of a fundamental right.
[12] In any event, aside the lack of any credible evidence of discrimination by the state, Mr. Kumar’s argument was not clearly made. What he said in paragraph 2.24 of his submissions that "in today’s society where inter-country and inter-cultural marriage has become prevalent, the inability of persons who are not residents to adopt under privileged children for their welfare and development will make mockery of the democratic society we live in", is misguided. The central question to be determined if indeed there was the restriction of the nature suggested by Mr. Kumar, and I do not believe that section 6(4) is such a restriction, is "is the restriction "reasonable" i.e., required in the public interest or to protect the rights of others?" Even if a restriction is "prescribed by law" and does not negate the essential content of the right in question, it would still have to pass the test of "reasonableness". In R v. Oakes[1], which has been applied by the courts in Fiji[2], the approach which should be adopted in determining whether an interference with the fundamental right is justified is set out in the following statement of Dickson C.J.:
"First, the objective, which the measure responsible for a limit on a charter right or freedom are designed to serve, must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’: R v. Big M Drug Mart Ltd, Judgment of the Supreme Court of Canada, (1985) 18 DLR (4th) 321 ... The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain section 1 protection. It, is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Secondly, once a sufficiently significant objective is recognized, then the party invoking section 1 [the limitation clause] must show that the means chosen are reasonable and demonstrably justified. This involves ‘a form of proportionality test’: R v Big M Drug Mart Limited (supra). Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with hosts of individual and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means even if rationally connected to the objective in the first sense, should impair ‘as little as possible’ the right or freedom in question: R v Big M Drug Mart Limited (supra). Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the charter right of freedom, and the objective which has been identified as of ‘sufficient importance’."
[13] The criteria set out in the Oakes test was summarized in the case Nyambirai v National Social Security Authority & Anor[3]as follows:
Whether:
(i) the legislative objective is sufficiently important to justify
limiting a fundamental right;
(ii) the measures designed to meet the legislative objective are
rationally connected to it; and
(iii) the means used to impair the right or freedom are no
more than is necessary to accomplish the objective.
[14] It is a fundamental principle of constitutional rights interpretation that the court considers both the purpose and effect of an impugned statute to determine its constitutionality. I am satisfied that the respondents have not established the fundamental pre-requisites to support the proposition that section 6(4) of the Adoption Act infringes constitutional rights to equality. There is no credible evidence before me supporting the submission made that Mr. and Mrs. Marshall were the subject of discriminatory treatment by the State on the grounds of their ethnicity, colour or place of origin, as suggested. They have failed to establish that the restriction which section 6(4) of the Act imposes by way of a residential pre-condition contravenes any constitutional fundamental rights provisions. The evidentiary basis upon which a consideration of the Oakes case elements can be properly considered has not been canvassed. The legal foundation for this argument has also not been established by the respondents and I have declined to uphold learned counsel for the respondent’s submissions in this regard.
Were the Respondents "residents" under section 6(4) of the Act
[15] I have upheld the appellant’s submissions in this regard. The concept of residency attributable to section 6(4) involves an element of permanent settlement for a foreseeable period of time and not some temporary period or sojourn,[4] applying the principles set out by Mr. Justice Harman in Re Adoption Application No. 52/1951.[5] I have not been convinced that the restricted meaning given to this provision should not apply in this case. To do otherwise would be to avoid the clear meaning of section 6(4) of the Act. His Lordship, Justice Harman said, in interpreting the same provision which applied in England at the time of his judgment and which is still part of the law in Fiji as follows:
"The court must be able to postulate at the critical date that the applicant is resident, and that is a question of fact. Residence denotes some degree of permanence. It does not necessarily mean the applicant has a home of his own, but that he has a settled headquarters in this country. It seems dangerous to try to define what is meant by residence. It is very fortunate that it is not possible to do so, but, in my judgment, the question before the court is in every such case whether the applicant is a person who resides in this country. In the present case I can only answer that question in the case of the wife by holding that she is not resident in this county; she is merely a sojourner here during a period of leave; she is resident in Nigeria, where her husband’s duties are, and whether, in pursuance of her wifely duties, she accompanies him. I do not think either of the applicants is resident in England at present."
[16] This passage is applicable to the facts of the instant case. On the evidence before me it is clear that when the application for adoption was filed and when the orders were made, both the applicants were not "resident" in Fiji for the purposes of section 6(4). They were resident in Australia. Australia was their settled or usual place of abode and has been for a considerable period of time, at least for nineteen years. They traveled to Fiji in May 2005 and enquired about adopting a child here. Prior to coming to Fiji in 2006 Mrs. Marshall was employed at the All Seasons Meridian in South Australia for 19 years. She resigned from her employment to fulfill the three month requirement prescribed by section 15(1) of the Act which required that the infant(s) be in the continued care and possession of the applicants for at least three consecutive months immediately preceding the date of an adoption order. The three month period does not suffice the residency requirement stipulated by section 6(4). It is clear that both the applicants were not resident in Fiji in terms of section 6(4) of the Act and as such the adoption order should not have been made in their favour.
Ground 1: The Learned Magistrate erred in law and in fact in failing to take into account relevant matters relating to the consideration of ‘the best interest of the infants’.
[17] The duty of the Guardian Ad Litem appointed by the Court is contained in Rule 8 of the Adoption of Infants (Magistrates’ Courts) Rules. Rule 8 required the Guardian Ad Litem, the SWO, "to investigate as fully as possible all the circumstances of the infant(s) and applicant(s) with the view to safeguarding the interests of the infants and in particular to include in the investigation questions relating to the means and status of the applicants to enable them to maintain and bring up the infants suitably". There can be no doubt whatsoever that the purpose of this requirement is to safeguard the interests of the infant(s). The Guardian’s report, at pages 73-75 of the Record, sets out the reasons why such a report could not be undertaken. I decline outright the respondent’s submissions contained between paragraphs 3.6 and 3.9, and in 6.4 of the submissions made in respect of this issue. The submissions that the applicants own assertions of suitability suffices, is misconceived in law. An independent investigation was required of their situation in Australia where they intended to take the infants and where they were resident. The information provided by the applicants could not be authenticated by the authorities in Fiji and if upheld as being an adequate assessment of their suitability, would wholly defeat the safeguards contained in both the Act and regulations made thereunder and the Convention of the Rights of the Child (CRC). Suffice it to say that these safeguards are in place to protect children, contain measures to safeguard their interests and to preserve the paramountcy of their interests in adoption applications.
[18] In Lakhan v Lata[6], Justice Fatiaki, as he then was, said in relation to ‘inter-country adoptions’:
"In this case I accept that there are no specific statutory provisions, rules or even departmental guidelines relating to ‘inter-country adoptions’ and the plaintiffs argue that in the absence of such legislative constraints the Director of Social Welfare ought not to impose any limitations as to the countries to and from which applications for ‘inter-country adoptions’ ought to be considered or accepted.
In this latter regard the evidence of the Director of Social Welfare was to the effect the Fiji maintains ‘inter-country adoption’ arrangements with New Zealand and Australia and to a lesser extent with other Pacific Island countries.
These arrangements worked out over several years and already in place, exists on a ‘government-to-government’ level between the Fiji Department of Social Welfare and its official governmental counter-part in New Zealand and each State Government in Australia. Under the arrangements all applications and requests are submitted through the respective governmental authorities and includes such matters as: official vetting and approval of applicants; preparation and approval of home study reports; post-adoption monitoring and reporting and facilitation of immigration requirements and the eventual adoption of the infant in the host country.
It is clear that all matters pertaining to ‘inter-country adoptions’ such as the ‘eligible’ countries and procedures have been left entirely for the Director of Social Welfare to work out as he sees fit. In those circumstances and in the light of the Director’s explanations it would not be proper or indeed desirable for this Court to seek to interfere with the Director’s discretion and effectively impose additional administrative duties on an already overly taxed situation."
[19] Since Chief Justice Fatiaki’s decision, there have been some attempts to formalize the bilateral arrangements on inter-country adoptions between Fiji and Australia. Mrs. Delana’s affidavit makes reference to these arrangements and I note in particular annexure AD2 which is the second draft Agreement on Working Arrangements between the Department of Social Welfare in Fiji and the Australian State and Territory Community Services Ministers and annexure AD4 which contains the Department of Social Welfare’s Adoption Manual 2007. In regard to the latter document I note that this manual was compiled after commencement of the adoption proceedings herein. Nevertheless the mechanisms contained in the section of working arrangements between Australia and Fiji were obviously in train when the Fiji authorities wrote to the Government of South Australia in regard to the application by Mr. and Mrs. Marshall which prompted the reply by Mr. Michael Mcguire. Under the working arrangement between Australia and Fiji, the official vetting and approval of applicants, the preparation and approval of home study reports and post adoption monitoring was already in place when Mr. and Mrs. Marshall made their application. The Magistrates Court ought to have taken cognizance of the fact that a Home-study report, could not be facilitated because Mr. and Mrs. Marshall were Australian residents and were restricted under Australian law from entering into private arrangements concerning adoption. Mr. Mcguire made it clear that in the circumstances the Australian authorities could not assist the Fiji authorities in an assessment as to the suitability of the Marshalls as proposed parents. In the absence of such a report, there was no credible information before the Magistrate to have arrived at his finding that it was in the best interest of the infants that the order for adoption be made. The Learned Magistrate erred in law in failing to give any weight to the Guardian’s report that the adoption was not been recommended given the complete absence of any independent assessment of the suitability of Mr. and Mrs. Marshall.
[20] I also note with concern that whilst Article 3 of the CRC which codifies ‘the best interest of the child as the primary consideration’, is often relied on to circumvent the restrictions of section 6(4) of the Act, there is often no regard paid to Article 21 (c) which stipulates that every child concerned by inter-country adoption should enjoy the safeguards and standards equivalent to those existing in the case of national adoption. In Fiji, with domestic adoptions, a home study report is invariably compiled and the recommendations contained in the report usually forms the basis of the court’s decision. The infants in this case have been deprived of the safeguards that Article 21(c) was designed to facilitate. The Magistrate’s conclusion that ‘it was in the best interest of the twins to make the order for adoption,’ in the absence of a Home-study report was speculative at best. The factual foundation necessary to arrive at a determination of what was in the best interests of the infants simply did not exist.
[21] Mr. Kumar submitted at 6.4 of his submissions that the resident and Home-study requirement are subservient to the requirements of the best interest of the child. Whilst I accept that the best interest of the child is always the paramount consideration, the Home-study report forms the basis of a determination of what is in the best interest of the child. Without that report the court is unable to make this assessment.
Convention on Protection of Children and Co-operation in respect of Intercountry Adoption
[22] Fiji has not ratified this Convention. Nevertheless by virtue of section 43(2) of the Constitution, the courts in Fiji must, if relevant, have regard to public international law applicable to the protection of rights set out in the Bill of Rights. The Convention falls within the ambit of public international law and is relevant. The preamble reflects the philosophy underpinning the Convention and states interalia "... the necessity to take measures to ensure that intercountry adoptions are made in the best interest of the child and with respect for his or her fundamental rights, .... and ... to establish common provisions to this effect..." The main objective of the Convention is to establish international procedures, standards and co-operative mechanisms between government authorities involved in safeguarding the interests of children subject to intercountry adoption. Neither counsel made any reference to the Convention in the respective comprehensive submissions filed. Australia has ratified the Convention. Residents of Australia who make private arrangements for adoption in Fiji are likely to face potential insurmountable difficulties if adoption orders continue to be made in Fiji without reference to the Convention or in contravention of section 6(4) of the Act. Some of these difficulties are highlighted in Mr. Mcguire’s letter and in Mrs. Delana’s affidavit.
[23] Article 17 of the Convention provides:
"Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if –
adoptive parents agree;
decision,
where such approval is required by the law of that State or by the Central Authority of the State of origin;
adoption may proceed; and
prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorized to enter and reside permanently in the receiving State." [emphasis added]
[24] In this case the relevant authority in Australia has not approved the application and approval was required. Neither the authorities in Fiji or in Australia agreed that the adoption proceed. Further there has been no determination in accordance with Article 5 of the Convention, that the prospective adoptive parents are eligible and suited to adopt and that the infants are or will be authorized to enter and reside permanently in Australia. The conditions precedent under Article 17 have not been satisfied. It is very unlikely, as Mr. Mcguire’s letter shows, that the infants will be authorized to enter and reside permanently in Australia unless the principles of the Convention are adhered to by Mr. and Mrs. Marshall and appropriate steps are taken through the Central Authority, which is the Adoption and Family Information Service in South Australia.
Conclusion
[25] Whilst I have much sympathy for the position that Mr. and Mrs. Marshall now find themselves and for the infants, it is the function of the courts only to interpret the law and not to amend it. Justice Byrne in In re S remarked that it may well be that section 6(4) of the Act should be amended at least to provide that any former Fijian National now a naturalized citizen of a country with whom Fiji has always had a friendly relationship should be allowed to adopt an infant if that would be in the interest and welfare of the child. I echo the same sentiments however the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption imposes additional obligations on State Authorities which may not be overcome by an amendment to section 6(4) of the Adoption of Infants Act. I have upheld both grounds of appeal. The orders made by the Magistrates Court are hereby quashed and set aside.
Gwen Phillips
Judge
At Lautoka
7 March 2008
[1] Judgment of the Supreme Court of Canada, (1986) 26 DLR (4th) 200 at 227 (Dickson, C.J.)
[2] Reginald Alan Lyndon v Legal Aid Commission & the State Misc. Case No. HAM 38/02 per Justice Singh
[3] Judgment of the Supreme Court of Zimbabwe, 1995 (9) BCLR 1221 (ZS) at 1231 per Gubbay C.J
[4] In re S (an infant) [1997] FJHC 182; Hbk0059j.1997s (24 November 1997) per Byrne J
[5] (1951) 2 All ER. 931
[6] [1994] FJHC 26; HBC 0585 of 1993
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