The Supreme Court has dismissed an appeal by a set of parents who tried to adopt two “infants” who were both 21 years of age at the time of the lodgement of their adoption applications. 

The appellants appealed the decision of a Family Court Judge who ruled on 22 July 2022 that the court will deny their application for the adoption of the two infants. 

The names of the appellants have been suppressed by the court and were referred to as the male appellant SK born in India in 1994 and the female appellant FK born in Samoa in April 1997. The appellants got married in New Zealand on 9 August 2019. 

According to the case's background information, through an application for an "order of adoption" dated 2 March 2022, the appellants applied to adopt two infants, a female MLU born on 9 April 2001 and a male RST born on 3 August 2001. 

The female infant is FK’s younger sister, and the male infant R is FK’s first cousin. Both infants referred to are only four years younger than the female applicant. 

On 22 July 2022, the Family Court Judge denied their application for adoption. The decision of the court noted that in relation to the female infant, the application is denied “as the infant is only 4 years younger than the female applicant.”

The decision for the adoption of the male infant stated the above in similar terms denying the application.

“Female applicant only 4 years older than the infant and makes a mockery of the institution of the family,” the Family Court Judge ruled. 

The applicants appealed the matter in the Supreme Court on the grounds that the Family Court Judge erred in law when he declined an order of adoption. 

They also argued an infant is defined as a person under the age of 21 years under the Infants Ordinance Act 1961 and claimed the decision is discriminatory. 

But when determining the appeal, Supreme Court Justice, Leiataualesa Daryl Clarke referred to the age differences between the appellants and the then infants. 

“I do not view nor conclude that the appellants are proper suitable persons to adopt M or R,” he said. “This is because by granting an adoption order, the 'care and custody' of M or R would be granted to S and F, treating S and F as their birth parents. 

“S and F are young adults almost contemporaries in age to M and R. As such, they are not proper or suitable persons in my view to have the 'care and custody' of M and R or to take on the role and responsibility as parents to them.”

The Supreme Court said it was not satisfied with the material before it that M and R’s welfare and best interests would be promoted by the adoption. 

He referred to the part of the application that focused principally on the insufficiency of “income to support and provide for the infant” and expressed that only in broad terms the natural parents' desire for applicants to raise the infant in a better environment, and better future in New Zealand. 

Justice Clarke said although family adoption arrangements are consistent with the Samoan cultural norms and families, the adoption must nevertheless satisfy him that the welfare and interests of the infants are promoted by the adoption. 

“Simply stating in blanket terms that the birth parents have insufficient income to support and provide for the infant is unhelpful to properly understand the infant’s circumstances in Samoa,” he said. “Further, a blanket statement of 'raising the infant in a better environment' and the speculative desire for a 'better future in New Zealand' to complete school without any information of what that might involve does not enable the Court to determine whether the proposed adoption promotes the welfare and interests of the infant.”

The court noted such a statement also simply perpetuates a baseless assumption that life in New Zealand is by itself necessarily better than life in Samoa which often may not be the case. 

Justice Clarke also made reference to provisions of the Infants Ordinance 1961 which provided for the care and custody of infants through adoptions and not for the care and custody of adults. 

He said once a person reaches 21 years of age and is no longer an infant the purpose of adoption to provide care and custody of an infant under the Infants Ordinance 1961 can no longer be achieved. 

“If applicants wish to apply for the adoption of infants, they should do so in a timely manner understanding that the intention of the adoption provisions is to provide for the care and custody of infants to adoptive parents that promote an infant’s welfare and interests, and not for adults.”

The Supreme Court dismissed the appeal and orders of adoption by the applicants. 

Lawyer Alex Sua acted for the appellants while Violina Leilua and Charlina Tone of the Attorney General's Office represented the Family Court.