CHEON V THE ATTORNEY-GENERAL HC AK CIV 2007-404-7669

CHEON V THE ATTORNEY-GENERAL HC AK CIV 2007-404-7669 8 July 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-7669UNDER THE DECLARATORY JUDGMENTS ACT 1908 IN THE MATTER OF AN APPLICATION UNDER SECTION 17 OF THE ADOPTION ACT 1955 BETWEEN GEE JOUNG CHEON Plaintiff AND THE ATTORNEY-GENERAL Defendant Hearing: 23 June 2008 Counsel: G M Illingworth QC and S Abernathy for Plaintiff I C Carter for Defendant Judgment: 8 July 2008JUDGMENT OF HEATH JThis judgment was delivered by me on 8 July 2008 at 4.00pm pursuant to Rule 540(4) of the High Court RulesRegistrar/Deputy RegistrarSolicitors: Wayne Thompson, PO Box 10322, Auckland Crown Law Office, PO Box 2858, Wellington Counsel: G M Illingworth QC, PO Box 7205, AucklandContents Introduction [1] Background facts [11] Evidence on Korean Law [16] Admission of evidence of foreign law [32] Analysis(a) Is the adoption valid? [37](b) The day-to-day care issue [39](c) The inheritance issue [44] Procedural issues [52] Result [62] Introduction[1] Gee Joung Cheon seeks a declaration that adoption orders made in Korea on 22 September and 8 December 2005, have effect as if made in New Zealand. Section 17(1) of the Adoption Act 1955 (the Act) sets out the circumstances in which an adoption order made outside New Zealand will be treated as the equivalent of an order made in this country. A qualifying order has "the same effect as an adoption order validly made under" the Act: s 17(1). [2] Section 17 operates as a conflict of laws provision. Its original purpose was to recognise adoptions made in an immigrant's state of origin: for background, see the Law Commission's report, Adoption and Its Alternatives: A Different Approach and a New Framework (NZLC, R 65, 2000) at para 303. [3] Section s 17(1) of the Act does not require a Court order as a pre-requisite to equal treatment. However, it is not uncommon for a recent immigrant to seek a declaration that s 17(1) applies, generally to guard against any unexpected immigration or citizenship issues that might arise. If a declaration were obtained from this Court, it is unlikely that a relevant government agency would inquire further into the validity of the foreign adoption order. For that reason, any declaration is likely to be determinative of status.[4] Section 17(1) of the Act provides:(1) Where a person has been adopted (whether before or after the commencement of this section) in any place outside New Zealand according to the law of that place, and the adoption is one to which this section applies, then, for the purposes of this Act and all other New Zealand enactments and laws, the adoption shall have the same effect as an adoption order validly made under this Act, and shall have no other effect.[5] Section 16 sets out the effect of an order made in this country. It provides, so far as it is relevant for present purposes:16 Effect of adoption order (2) Upon an adoption order being made, the following paragraphs of this subsection shall have effect for all purposes, whether civil, criminal, or otherwise, but subject to the provisions of any enactment which distinguishes in any way between adopted children and children other than adopted children, namely: (a) The adopted child shall be deemed to become the child of the adoptive parent, and the adoptive parent shall be deemed to become the parent of the child, as if the child had been born to that parent in lawful wedlock: [proviso inapplicable] (b) The adopted child shall be deemed to cease to be the child of his existing parents (whether his natural parents or his adoptive parents under any previous adoption), and the existing parents of the adopted child shall be deemed to cease to be his parents, and any existing adoption order in respect of the child shall be deemed to be discharged under section 20 of this Act: [proviso inapplicable] (c) The relationship to one another of all persons (whether the adopted child, the adoptive parent, the existing parents, or any other persons) shall be determined in accordance with the foregoing provisions of this subsection so far as they are applicable: (d) The foregoing provisions of this subsection shall not apply for the purposes of any deed, instrument, will, or intestacy, or affect any vested or contingent right of the adopted child or any other person under any deed, instrument, will, or intestacy, where the adoption order is made after the date of the deed or instrument or after thedate of the death of the testator or intestate, as the case may be, unless in the case of a deed, instrument, or will, express provision is made to that effect: (e) Subject to the Citizenship Act 1977, the adoption order shall not affect the race, nationality, or citizenship of the adopted child: (f) The adopted child shall acquire the domicile of his adoptive parent or adoptive parents, and the child's domicile shall thereafter be determined as if the child had been born in lawful wedlock to the said parent or parents: [Proviso repealed.] .[6] Section 17(2) sets out the criteria for equal treatment:(2) Subsection (1) of this section shall apply to an adoption in any place outside New Zealand, if— (a) The adoption is legally valid according to the law of that place; and (b) In consequence of the adoption, the adoptive parents or any adoptive parent had, or would (if the adopted person had been a young child) have had, immediately following the adoption, according to the law of that place, a right superior to that of any natural parent of the adopted person in respect of the role of providing day-to-day care for the person; and (c) Either— (i) The adoption order was made by any Court or judicial or public authority whatsoever of a Commonwealth country, or of the United States of America, or of any State or territory of the United States of America, or of any other country which the Governor-General, by an Order in Council that is for the time being in force, has directed to be deemed to be referred to in this subparagraph; or (ii) In consequence of the adoption, the adoptive parents or any adoptive parent had, immediately, following the adoption, according to the law of that place, a right superior to or equal with that of any natural parent in respect of any property of the adopted person which was capable of passing to the parents or any parent of the person in the event of the person dying intestate without other next of kin and domiciled in the place where the adoption was made and a national of the State which had jurisdiction in respect of that place— but not otherwise.Section 17(3)-(6) of the Act have no application in this case. [7] Production of a document purporting to be the original or a certified copy of an order or record of an adoption made by a Court, judicial or public authority outside New Zealand shall, "in the absence of proof to the contrary, be sufficient evidence that the adoption was made and that it is legally valid according to the law of that place": s 17(2A) of the Act. That presumption goes to the "validity" criterion set out in s 17(2)(a). [8] Korea is not a country to which s 17(2)(c)(i) applies. Accordingly, to establish that s 17(1) applies, Ms Cheon must demonstrate that the criteria set out in s 17(2)(a), (b) and (c)(ii) are met. [9] In the absence of anyone who could put a contrary argument or consider those advanced on behalf of Ms Cheon, the Attorney-General was joined as a party. Mr Carter, for the Attorney-General, accepted that Ms Cheon's application is genuine. No immigration, citizenship or similar issues arise. Mr Carter did not offer any significant opposition to the contention that the Korean orders were validly made: s 17(2)(a). [10] That left two substantive issues for resolution: a) Whether the adoptive parents, under Korean law, assumed "a right superior to that of any natural parent of the adopted person" in respect of his or her day-to-day care: s 17(2)(b). I refer to this as the "day-to- day care issue". b) Whether, as a matter of Korean law, the adoptive parents assumed "a right superior to or equal with" that of a natural parent, in respect of property of the adopted person which could pass to his or her natural parents on an intestacy: s 17(2)(c)(ii). I refer to this as "the inheritance issue".Background facts[11] Ms Cheon is a successful businesswoman who has held the status of a permanent resident of New Zealand since 1992. She is divorced from her former husband and intends to stay in New Zealand indefinitely. [12] In 2005, Ms Cheon adopted two Korean children. Minjong Chang, a girl, was born on 22 July 1989. She is now 18 years old. Her brother, Seung Jae Chang, was born on 22 January 1994. He is now 14 years old. Each holds a Korean passport. The adoptions were consensual in nature and were given effect by orders of the Family Court of Daegu District Court. [13] The children's parents were separated when Ms Cheon first met them, in Korea, in 2004. They were in the custody of their father. Their mother had abandoned them. Their father was unable to care for the children. [14] When Minjong was 15 years old and Seung Jae 10, they were sent to school in Australia. Ms Cheon kept in touch with the children and describes them as being "very unhappy" during this period. Ms Cheon continued to see the children and, she says, "acted as a mother to them" when they returned from school holidays in Australia. [15] Ms Cheon described the processes followed, in Korea, to obtain the adoption orders:8. In Korea, if the adoption is consented to by the parents and the children, then there is no need for a contested Court hearing. The parents of Seung Jae and myself went to the Daegu Metropolitan City Office and declared our consent and our identities and consent were duly verified. Social Welfare exists only for orphan children in Korea and so there was no social welfare involvement. 9. After following the procedure for verifying consent of everyone in the Civil Code, on the 22nd September 2005, the Family Court of the Daegu District Court, Daegu City, Republic of Korea issued the official record of the adoption of Seung Jae CHANG in my favour and the original is attached hereto together with a notarised English translation, as Annexure marked 'D'.10. Two months later, we followed the same legal procedure, for Minjong at the Jung Gu Special City in Seoul. Minjong came too and signed her consent. On the 8 December 2005, the Family Court of Daegu District Court, Daegu City, Republic of Korea issued the official record of the adoption of Minjong Chang in my favour and the original is attached hereto together with a notarised English translation as Annexure marked 'E'. 11. In February 15, 2007, the Municipal Authority at my home region of Yeonsu-gu in Incheon Metropolitan City issued the Family Census Register. This shows me as Head of the Family and that I have adopted Seung Jae and Minjong as my adopted son and daughter with the consent of their biological parents and this original Family Census Register together with a notarised translation is attached hereto and marked 'F'. This constitutes a further record, to the best of my knowledge and belief of the adoptions of Seung Jae and Minjong.Evidence on Korean Law[16] In order to determine the "day-to-day care" and "inheritance" issues it is necessary for me to consider Korean law on those two points. Questions of foreign law are questions to be determined by a Judge, on the basis of evidence adduced. In this case Mr Carter has raised the question whether, having regard to s 144 of the Evidence Act 2006 the evidence is sufficiently reliable to make a determination on those two issues. [17] There are three sources of evidence available to me. The first consists of exhibits, in the form of copies of orders and public documents that were brought into existence in Korea. The second is from Ms Suji Kim, a solicitor practising in Auckland. The third is from a qualified translator and interpreter, Ms Shin, who has translated extracts from the Korean Civil Code into the English language. [18] Ms Kim is of Korean ethnicity and practises, presently, as a solicitor in Auckland. She holds a current New Zealand practising certificate. While she did not practise law in Korea, she is fluent in the language and has provided evidence about Korean law, so far as it relates to domestic adoptions. Ms Kim retains professional connections with Korea. She is employed by a firm in Auckland which specialises in providing legal services to members of the Korean community.[19] Ms Kim deposes that consensual adoption is governed by ss 866, 869, 870, 878 and 881 of the Civil Code of the Republic of Korea and ss 66 and 68 of the Family Registry Law. Additional provisions, dealing with adoptions generally, are located later in the Code. Ms Kim obtained copies of relevant Korean enactments from an official website operated by the Korean Ministry of Justice: www.klaw.go.kr [20] Ms Kim has translated provisions of the Civil Code that relate to the two issues for my determination. Section 909(1) of the Code addresses the "day-to-day care" issue. Section 1000(1) is relevant to the inheritance point. [21] Sections 909(1) and 1000(1), as translated by Ms Kim, provide:909(1) – Custody right – natural parent shall have custody right of the to the child. However in case of an adoption being made, the adoptive parent shall have a custody right to the adopted child superior to the natural parent. 1000(1) – Inheritance – the following priority is applied to determine the right of inheritance: (1) lineal descendant of the ancestor (2) ascendant of the ancestor (3) siblings of the ancestor (4) relative of the ancestor within two generations.[22] Ms Kim has concluded:8. To the best of my knowledge and belief, in looking at the documents supplied, in comparison to s 17(1) and (2) of the Adoption Act 1955 the effect of adoption in the Civil Code of the Republic of Korea, in relation to rights of custody of the child and in relation to property rights, it would appear; (a) that an adoptive parents is given a right of custody superior to that of any biological parents (b) an adoptive parent has superior rights to property of the estate of the child being the ascendant of the ancestor; the child, on death being the ancestor and the parent being the ascendant.[23] Articles 909 and 1000 have also been considered by Ms Shin. She used, as her base information, the same on-line version of the Civil Code.[24] Ms Shin has identified two provisions of the Code that are relevant to the day-to-day care issue. They are ss 772 and 909. Ms Shin translates those two provisions as follows:Section 772 (Relationship and Kinship with an Adopted Child) (1) the relationship and kinship between an adopted child and his/her adoptive parents and/or the blood-relations and/or relatives by marriage is deemed to be the equivalent to that of a child born of wedlock. Section 909 (Holder of Custody Rights) (1) The natural parent(s) are the holder(s) of custody rights for their underage child. In the case of an adopted child, his/her adoptive parent(s) shall become the holder(s) of custody rights.[25] Ms Shin's translation of s 1000 differs from that of Ms Kim. Ms Shin's translation of s 1000 is as follows:Section 1000 (the Order of Inheritance) (1) With regards to inheritance, an individual will become an heir/heiress in the following order. (a) The predecessor's lineal descendent (b) The predecessor's lineal ancestor (2) With regards to the orders described in subsection 1 above, when there are multiple heir(s)/heiress(es) of the same ranking, the individual who is the closest relative to the predecessor will gain priority. If there are more than one relatives of the same ranking who are equally close relatives to the predecessor, the inheritance will be equally shared between these relatives.[26] Ms Shin has provided reasons to support her translations of ss 909(1) and 1000. Her reasons explain some of the linguistic nuances that have resulted in the different translations provided by Ms Kim and Ms Shin. I recognise that more assistance is gained from a translation that amounts to a "linguistic echo" than a literal translation, which may not capture the essence that the words used would convey to someone fluent in the original language. [27] In relation to s 909(1), Ms Shin says:The term "custody rights" is a translation of the Korean word "chin-kwon". This is a term which educated people in South Korea would understand. It is a very strong term which would be understood as meaning the right tocontrol every aspect of the life of a child. "Chin-kwon" is the right normally enjoyed by the natural parent of a child to exercise absolute control over all matters affecting the life of a child, including the day to day care of the child.[28] Greater difficulty has been experienced in finding adequate words in English to convey the concepts expressed in s 1000(1) of the Code. Ms Shin deposed:5. The word "predecessor" is a translation of the Korean word "pee- sang-sok-een". This word is defined in the Korean-English legal dictionary which I consulted to mean "predecessor". 6. This is an appropriate meaning in relation to the lineal descendant of a deceased person but it does not seem to be an appropriate meaning in relation to the ancestor of a deceased person. 7. In the context of section 1000 (and taking into account the derivation of the term in the Korean language) the word "pee-sang-sok-een" is obviously intended to refer to a person who gives or transfers property to another person. This meaning is consistent with definitions contained in two other dictionaries which I have also consulted. 8. The term "lineal ancestor" in my translation of section 1000(1) is an interpretation of the Korean term "jik-gye-jon-sok". This term refers to a senior family member in a direct line of ascent. It normally refers to a person in a preceding generation. In Korean culture, because an adoptive parent takes the place of a natural parent, the adoptive parent would be regarded as the "jik-gye-jon- sok" of the adopted child. 9. In fact there are two more sub-paragraphs in section 1000. The third sub-paragraph refers to the brothers and sisters of the "pee-sang-sok- een". The fourth paragraph refers to other relatives of the "pee- sang-sok-een". I did not include those sub-paragraphs in my original translation as I was instructed that they were not relevant to the present proceedings.[29] Ms Kim also provided evidence on the Family Census Register maintained and issued by a public authority in each municipality. It is regarded as an official State record of each household head, together with other persons in the household. Ms Kim deposed that "adopted or natural children are entered on this Register with their relationship". [30] Ms Kim refers to an exhibit produced by Ms Cheon, a notarised certificate of an entry in the Family Census Register compiled on 11 December 2007. That Register shows Ms Cheon as family head, with Minjong Chang and Seung JaeChang as daughter and son respectively. The English translation of that entry follows:FAMILY HEAD: CHEON, GEE JOUNG Birth: September 23, 1962 Sex: Female Father: CHEON, JONG YOUNG Mother: KIM, YEON OK Birth: (Place of birth) 60, Yongyu-ni, Hwabuk- myon, Sangju-si, Gyungbuk-do. Date of report) Jan. 25, 1963. Adoption: (Date of report) Sep. 22, 2005 (Adopted son) CHANG, SEUNG JAE (Consenter) Parents Adoption: (Date of report) Dec. 8, 2005 (Adopted daughter) CHANG, MINJONG (Consenter) Parents (date of forwarded) Dec. 16, 2005(Forwarded by) Head of Jung-gu, Special City of Seoul [31] Ms Kim also produced an authentic record of adoption dated 12 October 2007, issued by the Family Court at Daegu, showing the two children as having been adopted by Ms Cheon.Admission of evidence of foreign law[32] The admissibility of evidence of foreign law is governed by s 144 of the Evidence Act 2006. It provides:144 Evidence of foreign law(1) A party may offer as evidence of a statute or other written law, proclamation, treaty, or act of State, of a foreign country— (a) evidence given by an expert; or (b) a copy of the statute or other written law, proclamation, treaty, or act of State that is certified as a true copy by a person who might reasonably be supposed to have the custody of the statute or other written law, proclamation, treaty, or act of State; or (c) any document containing the statute or other written law, proclamation, treaty, or act of State that purports to have been issued by the government or official printer of the country or by authority of the government or administration of the country; or (d) any document containing the statute or other written law, proclamation, treaty, or act of State that appears to the Judge to be a reliable source of information. (2) In addition, or as an alternative, to the evidence of an expert, a party may offer as evidence of the unwritten or common law of a foreign country, or as evidence of the interpretation of a statute or other written law or a proclamation of a foreign country, a document— (a) containing reports of judgments of the courts of the country; and (b) that appears to the Judge to be a reliable source of information about the law of that country. (3) A party may offer as evidence of a statute or other written law of a foreign country, or of the unwritten or common law of a foreign country, any publication— (a) that describes or explains the law of that country; and (b) that appears to the Judge to be a reliable source of information about the law of that country. (4) A Judge is not bound to accept or act on a statement in any document as evidence of the law of a foreign country. (5) A reference in this section to a statute of a foreign country includes a reference to a regulation, rule, bylaw, or other instrument of subordinate legislation of the country. (6) Subpart 1 of Part 2 (which relates to hearsay evidence) does not apply to evidence offered under this section.[33] Section 144(1)(a) permits a Court to act on expert evidence in determining foreign law. However, the disjunctive way in which means of proof are set out ins 144(1) demonstrates that expert evidence is not always required. Indeed, s 144(1)(b), (c) and (d) each enable a Judge to rely on documents (whether primary or not) that evidence foreign law. The term "document" is defined by s 4(1) of the Evidence Act as including information electronically stored. As s 144(1)(d), (2) and (3) suggest, the touchstone is the need for "reliable" information to determine what the relevant foreign law is. [34] In Mahoney, McDonald, Optican and Tinsley, The Evidence Act 2006: Act and Analysis (Thomson Brookers, 2007), the learned authors opine that it is not always necessary to offer expert evidence to prove foreign law. They rely (see para EV 144.03, at 442) on Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2004] 1 NZLR 289 (PC). At the time Dymocks was decided, the governing law was ss 39 and 40 of the Evidence Act 1908, which provided:39 Statutes of any country published by authorityBooks purporting to have been printed or published under the authority of the Government of any country, or by the printer to such Government and purporting to contain statutes, Ordinances, or other written laws in force in such country, shall on production be admitted and received by all Courts and persons acting judicially as prima facie evidence of such laws.40. Certain law books may be referred to as evidence of laws –Printed books purporting to contain statutes, Ordinances, or other written laws in force in any country although not purporting to have been printed or published by authority as aforesaid, books purporting to contain reports of decisions of courts or judges in such country, and textbooks treating of the laws of such country, may be referred to by all courts and persons acting judicially for the purpose of ascertaining the laws in force in such country; but such courts or persons shall not be bound to accept or act on the statements in any such books as evidence of such laws.[35] In Dymocks, the Privy Council considered the circumstances in which expert evidence on foreign law was required. The Privy Council accepted that, in some cases, evidence of foreign law may be unnecessary. On the other hand, they considered it was inappropriate for a Judge to ascertain foreign law without the assistance of expert testimony in a case where there might be controversy over the current state of applicable law. Delivering the advice of the Privy Council, Lord Browne-Wilkinson said:[53] It is not clear to Their Lordships whether the Court of Appeal was saying that s 40 did not give the Judge jurisdiction to decide questions of foreign law in the absence of evidence from witnesses who were experts in that law or that, although the Judge would have such jurisdiction, it was in the circumstances of the present case a wrong procedure to adopt. Their Lordships wish to make it clear that, in their view, the main purpose of s 40 is to give the Judge power to decide questions of foreign law in the absence of other expert evidence. Section 39 of the Evidence Act 1908 is directed to obviating the need for formal proof of written laws etc. Section 40, on the other hand, states that such materials may (not must) be looked at for the purpose of ascertaining the laws in force in such country. If that is the purpose of looking at the foreign sources it must be the necessary conclusion that the Judge can ascertain and find the law. Their Lordships were told that, since the matter arose in the course of argument, the relevant authorities were not drawn to the attention of the Court of Appeal. That position has been remedied before Their Lordships. Cross On Evidence, NZ ed, 1999, supports the view expressed above as does the New Zealand decision SHC v O'Brien (1991) 3 PRNZ 1 and the New South Wales decision Temilkovski v Australian Iron & Steel Pty Ltd [1996] 1 NSWR 279. [54] On the other hand Their Lordships are in complete agreement with the Court of Appeal that this was an unsuitable case for a Judge to seek to ascertain foreign law without the assistance of expert testimony. First, throughout the common law world it is a matter of controversy to what extent obligations of good faith are to be found in contractual relationships. Secondly, as has been demonstrated, the pleading position in the present case was obscure, Dymocks pleading that there was an obligation of good faith implied into the contract in relation to the Blue Star affair but no such obligation on Dymocks in exercising its contractual right of termination. Thirdly, the expert evidence before the Judge had been directed to the only issue before the Court at the time it was given, that is, good faith in exercising a power of termination. It emerged from the experts' evidence that such a limited obligation of good faith is much more clearly established in the law of New South Wales than any wider general good faith obligation. Fourthly, the expert evidence shows that the legal analysis of an implied obligation of good faith in New South Wales is far from clear. Is it based on an implication of fact on the principles variously known as the principles inBP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1977) 180 CLR 266 or The Moorcock (1889) 14 PD 64? If so, it has to be shown that such implication is necessary for the performance of the contract and, like any other contractual implication, cannot be inconsistent with the express provisions of the contract. Although the Judge was fully entitled to make the implication of the need for good faith in the exercise of powers of termination (there being no inconsistent express terms) an implication of such a term generally on the Moorcockbasis would have been at best extremely difficult since the contracts contain many express terms dealing with such matters. If, on the other hand, the alleged duty of good faith was based on an implication in law arising from the nature of the agreement, at the time the case was before the Judge the law of Australia (like the law of many other common law jurisdictions) was in an uncertain and contentious state. If the Judge was to choose between the two views, he undoubtedly needed to hear the evidence of the experts directed specifically to the point.[36] Mr Illingworth QC, for Ms Cheon, submitted that the evidence on Korean law was sufficiently reliable for me to make appropriate findings on the day-to-day care and inheritance issues. Mr Illingworth bolstered that submission by reference to background historical and cultural information contained in a book by Mark A Peterson, Korean Adoption and Inheritance: Case Studies in the Creation of a Classic Confucian Society (Cornell University, New York 1996) and an article by Bong Joo Lee, Adoption in Korea: Current Status and Future Prospects (2006) 16 Int J Soc Welfare 75. Those written materials, which provide helpful historical and cultural information, were located through the industry of junior counsel for Ms Cheon, Ms Abernethy. I am grateful for the assistance Ms Abernethy has provided to the Court in that regard.Analysis(a) Is the adoption valid?[37] Section 17(2)(a) of the Act provides:17 Effect of overseas adoption (2) Subsection (1) of this section shall apply to an adoption in any place outside New Zealand, if— (a) The adoption is legally valid according to the law of that place; and .[38] I am satisfied that the exhibits produced by Ms Cheon (see the extract from her affidavit set out at para [15] above) are authentic: s 17(2A) applies. I am satisfied that they, taken in conjunction with Ms Kim's affidavit evidence, prove adequately that the adoption orders were validly made, by a Court of competent jurisdiction applying applicable Korean law.(b) The day-to-day care issue[39] Section 17(2)(b) of the Act provides:(2) Subsection (1) of this section shall apply to an adoption in any place outside New Zealand, if— (b) In consequence of the adoption, the adoptive parents or any adoptive parent had, or would (if the adopted person had been a young child) have had, immediately following the adoption, according to the law of that place, a right superior to that of any natural parent of the adopted person in respect of the role of providing day-to-day care for the person; and .[40] The comparison required is between the legal rights of natural and adoptive parents to provide day-to-day care for the adopted child. [41] I am satisfied, from Ms Kim's translation of s 909 of the Code and Ms Shin's translation of ss 772 and 909, that Korean law gives priority, so far as day-to-day care of an adopted child is concerned, to the adoptive parents. No material issues of interpretation arise. The translations of the words of the ss 772 and 909 speak for themselves. [42] Although Ms Kim and Ms Shin translated the operative word as "custody", there is no material difference between that concept and day-to-day care. The words "the role of providing day-to-day care for" the adopted child replaced the words "the custody of" the child, as a result of a consequential amendment made to s 17(2)(b) by s 151 of the Care of Children Act 2004. Use of the word "custody" does not alter the underlying concept: compare the use of the term "custody" in Part 2 sub-part 4 of the Care of Children Act (dealing with adoption of the Hague Convention of the Civil Aspects of Child Abduction) with the phrase "day-to-day care", discussed inButler v Craig [2008] NZCA 198 at [5].[43] The evidence before me is sufficiently reliable for me to find that the two adoptions meet the criterion set out in s 17(2)(b) of the Act.(c) The inheritance issue[44] Section 17(2)(c)(ii) of the Act provides:(2) Subsection (1) of this section shall apply to an adoption in any place outside New Zealand, if— (c) Either— (ii) In consequence of the adoption, the adoptive parents or any adoptive parent had, immediately, following the adoption, according to the law of that place, a right superior to or equal with that of any natural parent in respect of any property of the adopted person which was capable of passing to the parents or any parent of the person in the event of the person dying intestate without other next of kin and domiciled in the place where the adoption was made and a national of the State which had jurisdiction in respect of that place— but not otherwise. .[45] Section 17(2)(c)(ii) of the Act does not require such an exacting standard as the day-to-day care criterion. What is required is an analysis of whether adoptive parents have a "superior or equal" right to inherit the property of an adopted child, in the event that the child were to die intestate. [46] On this point, the evidence of Ms Kim and Ms Shin moves beyond translation, into the realms of interpretation. Ms Shin does not profess legal expertise. I do not regard Ms Kim's legal experience as sufficient to qualify her as an expert entitled to express opinions on the interpretation of a Korean statute. The observations of Master Williams QC, in SHC v O'Brien (1991) 3 PRNZ 1 at 11-15 are relevant, on this point. [47] I am troubled by the different translations of s 1000 of the Code provided by Ms Kim and Ms Shin. Ms Shin's more nuanced translation suggests that the individual who is regarded, in law, as the closest relative will gain priority and, ifmore than one relative is in that category, they will share equally in any inheritance. However, that does not answer the question whether the "closest relative" is the blood parent or the adoptive parent. Nor does it deal with the possibility that the blood and adoptive parents would have equal rights to share in property devolving through an intestacy. [48] There are two extracts from Associate Professor Peterson's text which provide some cultural context in which the terms "heir" and "inheritance" might be interpreted. The Associate Professor offers the following definitions: a) The term "heir":(A) The sons and daughter, or adopted son or daughter, who divided property and shared rights to perform ceremonies, or (B) the chogja lineage heir, eldest son or adopted son, who succeeds to property, and status (headship of a lineage or lineage segment) and holds the rights to perform the ancestor ritual. The former situation (A) prevailed prior to the seventeenth century, the latter (B), after. (at 217)b) The term "inheritance":Usually refers to succession of property. In the early Chosŏn period, property was divided equally between male and female offspring; in the later period, the eldest son received the largest share, with other sons receiving smaller shares and with daughters excluded from inheritances, although they may have received gifts and dowries. At times the term inheritance can refer to status, ie, inheritance of rights to carry out ceremonies (headship of a lineague or lineage segment), and occasionally refers to office (commonly in Koryŏ period) or title (officially recognised in Koryŏ, but only occasionally and unofficially used in Chosŏn) (at 217-218)[49] The problem with which I am faced stems from the need to interpret s 1000 of the Code in order to determine whether an adoptive parent has a prior or equal right to participate in the distribution of an adopted child who dies intestate. Section 144(2) of the Evidence Act 2006 contemplates only two types of evidence that may be considered on an issue of interpretation of a statute: either evidence from an expert or a document that contains reports of judgments of the Courts of the relevant country, which appears to the Judge to be a reliable source of information about the law of that country. Without such evidence, I cannot, legitimately, embark upon an interpretation exercise. Translation of the statute's text from Korean into English does not, of itself, solve this particular interpretation point.[50] I have some sympathy for Ms Cheon, in the situation in which she finds herself. Having regard to the evidence of Ms Shin (set out in para [28] above) I am satisfied that the word "predecessor" is used to mean the deceased. However, I cannot be sure that the term "lineal ancestor" is intended to capture an adoptive parent within its scope. [51] In those circumstances, I cannot be satisfied on existing evidence that the inheritance criterion has been met. For that reason, the proceeding will need to be adjourned for further evidence to be obtained.Procedural issues[52] The application for declaratory relief was sought, originally, on an ex partebasis. The Court declined to deal with it ex parte. On 13 December 2007, Harrison J required service on the legal advisor to the Citizenship Office. Subsequently, Mr Carter entered an appearance and sought an order joining the Attorney-General as a party. [53] The nature of the proceeding raises an important procedural question about service. A declaration that the foreign order has the same effect as an adoption order made in New Zealand determines a question of status. Courts are, generally, loathe to deal with a status issue of that type without an opportunity being afforded to the Crown to consider whether it wishes to be heard. [54] In Tjiong v District Court at North Shore (2004) 23 FRNZ 634 (HC), an application for a declaration in respect of s 17 was made on behalf of adoptive parents of an Indonesian child. The adoption order had been made by the West Jakarta District Court. The application for a declaration was made because the Immigration Service had declined to grant permanent residence to the adopted child without an order from a New Zealand Court confirming equivalence of status. In that case, an earlier direction had been made for service on the Attorney-General. Because the Attorney elected to take no steps, this Court decided to appoint amicus curiae to assist it.[55] In Re Tupe (High Court Timaru, CIV 2004-476-513, 8 October 2004), Mr and Mrs Tupe applied ex parte for a declaration of equivalent effect under s 17. They did so because the Immigration Service was not prepared to process an application for permanent residence of the adopted child without a ruling from a New Zealand Court that an adoption order made by the Supreme Court of Tonga complied with s 17(2). After referring to Harrison J's judgment in Tjiong, I directed service on the Solicitor-General, saying:[9] In my view an order of this type, going as it does to status, ought not to be made on an ex parte application. It is necessary for some scrutiny to be given to the application by someone who can consider public policy issues as well as the legal issues that arise. In those circumstances, I direct service of the substantive proceeding and all papers filed to date, including a copy of this judgment, on the Solicitor-General. [10] The Solicitor-General shall consider the application and provide a report to the Court. That report shall state whether the Solicitor-General has any objection to the making of an order or whether he considers it is necessary for amicus curiae to be appointed to investigate the issue further, to make submissions to the Court on the ultimate issue and to provide evidence on matters of Tongan law. [11] If the Solicitor-General opposes the application or considers that the Court ought to hear argument I would expect evidence to be put before the Court from a suitably qualified legal practitioner of the Kingdom of Tonga setting out his or her opinion as to the effect of the adoption made under the Maintenance of Illegitimate Children Act (Tonga).[56] The need to serve the Solicitor-General was questioned, in a case note on Re Tupe, by Professor Angelo: [2005] NZLJ 82. After referring to my earlier comment that the Kingdom of Tonga was not a party to the Inter-Country Adoption Convention, Professor Angelo continued:In the result the Court felt uncomfortable about making an order on a status issue without an opposing party and directed that the papers be served on the Solicitor-General to report on the matter. Prima facie the matter is a judicial one. The requirements of s 17 are clear and it is for the applicant to satisfy the Court as to the outstanding matter of evidence (ie the custodial rights). In the circumstances this should have been easily done under s 39 of the Evidence Act [1908] by production of the relevant Tongan legislation. Resort to the Solicitor-General to fulfil a ministerial function is unexpected.[57] Mr Carter's position, for the Attorney, was that proceedings of this type ought always to be served on the Crown and orders ought never to be made on an ex parte basis. He raised concerns about immigration and citizenship issues that theCrown may need to explore, particularly when an order is often sought either to pre- empt any challenge to an immigration application or to meet a specific requirement of the Immigration Service. [58] I agree with observations made by Harrison J in Tjiong on the desirability of a curial inquiry into whether the criteria to meet s 17(1) have been established. At [22], His Honour said:[22] By way of postscript, I wish to record that I do not mean any criticism of the Immigration Service's previous refusal to grant Jovita a residence or visitors permit without the sanction of a Court order. The Service, which performs a critical administrative and enforcement function, has neither the status nor the resources to undertake the determinative exercise required by s 17 Adoption Act. That is a purely judicial function, which requires an independent assessment of the statute when applied to settled facts.[59] Mr Carter submitted that, on an application for a declaration of equivalence, an appropriate procedure would be for all proceedings of this type to be served automatically on the Solicitor-General, who could then make inquiries of relevant agencies before indicating a position to the Court on whether any of the criteria were not satisfied. If the Solicitor wished to be heard further, an order could be made joining the Attorney-General at the first case management conference. If there were no objection, it might even be possible for a substantive order to be made at that conference. [60] Mr Carter also suggested that it might be appropriate for the Attorney- General to be heard on whether any public policy issues arose independent of the s 17(2) criteria. While I suggested that might be appropriate in Tupe (para [9]), on reflection I see that point as more problematic. The statute has expressly identified its criteria and it may be difficult to argue that the Court should inquire beyond them. [61] As the point does not arise in this case, I leave it open. If the Crown wished to raise a policy point in any future case, counsel's memorandum would need to make clear the nature of the objection and the rationale for allowing inquiry into it.Result[62] The application for declaratory relief is adjourned for mention in the Duty Judge list, before me, at 10am on Thursday 21 August 2008. [63] I direct that Ms Cheon file and serve evidence which meets the requirements of s 144(2) of the Evidence Act 2006, to establish that s 1000 of the Code provides an adoptive parent with a prior or equal right to the blood parents in the distribution of property of an adopted child who dies intestate. On receipt of sufficiently reliable evidence to establish that criterion, I will be prepared to make the declaration sought. If that evidence were provided by 21 August, I would be prepared to hear from counsel on that day and, if possible, determine the application then. [64] While I do not intend to be prescriptive on procedural issues, a common approach to procedure is desirable. If any plaintiff were not to serve the proceedings on the Solicitor-General, an application for directions as to service should be filed contemporaneously with the originating proceeding to draw this judgment to the attention of the Judge to whom it is referred and to explain why good reasons exist not to follow the practice I have indicated. ___________________________ P R Heath J Delivered at 4.00pm on 8 July 2008