ANQUANDAH AND ANOR V ATTORNEY GENERAL OF NZ HC AK CIV 2004-404-7230

ANQUANDAH AND ANOR V ATTORNEY GENERAL OF NZ HC AK CIV 2004-404-7230 11 July 2007IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2004-404-7230BETWEEN GEORGE SOLLY ANQUANDAH LEVINIA KUTORKOR ANQUANDAH Applicants AND THE ATTORNEY GENERAL OF NEW ZEALAND Respondent Hearing: 8 & 9 May 2007 Appearances: J E Dorbu for the applicants M J Hodge for the respondent L J Kearns amicus curiae Judgment: 11 July 2007RESERVED JUDGMENT OF PRIESTLEY JThis judgment was delivered by me on 11 July 2007 at 4.15 pm pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar Date: Counsel/Solicitors: Mr Dorbu, Barrister , P O Box 105 345, Auckland (Fax: 309 9819) Mr M Hodge, Crown Law Office P O Box 2858, Wellington (Fax: 04 473 3482) Ms L J Kearns, Barrister, P O Box 1857, Shortland Street, Auckland (Fax: 377 0220)TABLE OF CONTENTSThe Issue [1] The People [3] The Applicants [4] Procedural History [13] Chronology Relating to Applicants and Child [14] Section 17 Adoption Act 1955 [15] Processes and Documents [26] Ghana Law [56] Discussion [61] Result [76] Additional Comment [77] Costs [78] ____________________The Issue[1] The applicants wish to adopt an eight year old boy who currently lives with an elderly woman in Accra in Ghana. [2] The means whereby the applicants wish to achieve that end is to ask this Court to make a declaration under the Declaratory Judgments Act 1908. The declaration sought would be to the effect that a customary adoption of the child in Ghana complies with s 17 of the Adoption Act 1955.The People[3] The materials before the Court refer to a number of people. In respect of some family members the inter-relationship is complex or obscure. It is thus convenient to list them, indicating the name by which they will be called in this judgment, and their role.Name Called DescriptionGeorge Anquandah "George" Male applicant married to Levinia Levinia Anquandah "Levinia" Female applicant married to George Joshua Kennedy Kwabena Ekuban "Joshua" The child Catherine Yaasewah Kotey "Mrs Kotey" Elderly widow living in Ghana. Mother of Levinia. Guardian of Joshua and party to Deed of Adoption. Cynthia Amoako "Cindy" Cousin of Levinia. Attorney of George and Levinia for application to High Court of Justice, Accra in January 2005. Catherine Kotey (Junior) "Catherine Kotey" Joshua's mother. Child of Mrs Kotey's deceased cousin. Levinia's second cousin. Member of Mrs Kotey's household for some years. Fritz Lobsinger Ekuban "Fritz" Joshua's father. Kennedy Amoako "Kennedy" On basis of July 2003 Social Welfare report, son of Cindy Amoako and John Mensah. Happens to have the same date of birth as Joshua. John Mensah "Mr Mensah" Kennedy's father.Ernestina Fati Pwamang "Ernestina" Author of Social Welfare report of 3 July 2003 relating to Kennedy Justice Anthony Abada "Justice Abada" Judge of the Superior Court of Judicature in the Court of Justice, Accra, Ghana who made court order of 2 February 2005. The names and descriptions in the above table are findings of fact based on the materials before the Court. The narrative will thus be simplified.The Applicants[4] George swore three affidavits. Levinia swore none which is surprising since Joshua currently resides with her mother Mrs Kotey. [5] Both George and Levinia gave evidence before me. I regarded them as being sincere and truthful. I am also satisfied that Levinia has been an important figure for Joshua during his early formative years. I am satisfied that she loves Joshua, that George feels affection towards the child, and that their motivation in wanting to adopt Joshua and bring him to New Zealand to live with them is genuine. [6] George is aged 42. He was born in Durban in South Africa of African ethnicity. He has lived in New Zealand for some years and has held a New Zealand passport since August 1999. [7] George lived in Ghana for a short period with his South African parents when he was a child but returned to Natal. He holds various South African and New Zealand engineering qualifications. He is in full time employment. He and Levinia own a home in Manukau. [8] Levinia is 37. She was born in Ghana. In her teens she travelled to London where she obtained A levels. She too has diplomas in engineering from English tertiary colleges. Before emigrating to New Zealand she was an information technology consultant.[9] Levinia became eligible for New Zealand citizenship last month. She is pregnant. She and George were married on 14 June 2003 in Ghana by way of a traditional marriage ceremony. On 24 August 2004 they were married in New Zealand. Prior to her current pregnancy Levinia had a miscarriage in Ghana. [10] Levinia's introduction to George was apparently effected by a friend in 2001. Their initial encounter was by telephone. They did not meet until June 2003 when George travelled to Ghana. During a period of just under four weeks in that month, the marriage took place and there was some form of family meeting relating to Joshua. George left Ghana to return to New Zealand on 29 June 2003. Levinia has been officially a resident of New Zealand since March 2005. [11] Since Levinia's arrival in New Zealand the couple have regularly sent money and gifts to Ghana for Joshua. There have been regular telephone calls between the couple and Joshua and Mrs Kotey. [12] I have described the relationship of George and Levinia, although it has no legal relevance, nor unfortunately will it determine the outcome of my decision. They are a mature, well-settled, and well-educated couple who have qualified for residence in New Zealand and seem to me to be doing well. Levinia's concern for Joshua's welfare and the joint wish of the couple to adopt him are understandable, particularly given Mrs Kotey's age. I am conscious of the fact their application has been before this Court for two and a half years. Extracting relevant information, as can be seen from the procedural history (infra), has not been easy. Even discounting the benefit of hindsight, I consider there were probably better ways to try to achieve George and Levinia's objective.Procedural History[13] A brief summary will suffice. i) 22 December 2004. Ex parte application for declaration under s 17 filed.ii) 23 December 2004. Court issues minute declining to grant application on an ex parte basis and pointing out various difficulties iii) 14 February 2005. Minute directing appointment of Ms Kearns as amicus and directing all papers to date to be served on the Solicitor-General. iv) 30 March 2005. Copy of order of Supreme Court of Judicature in Accra, Ghana, made on 2 February 2005, filed. v) 22 April 2005. Affidavit by Mr Samuel Koranteng, an English solicitor and expert on Ghanaian law, filed. vi) June – October 2005. Various conferences and minutes designed to obtain further updating advice from Mr Koranteng on Ghanaian law and inquiring whether a Ghanaian Social Welfare report was available. vii) 9 February 2006. Second affidavit from Mr Koranteng filed and further affidavits from Mr Anquandah. viii) February – June 2006. Various efforts by the High Court Registry to extract Social Welfare report from the court in Ghana. ix) 25 August 2006. Fixture vacated. x) 13 November 2006. Further fixture vacated as a result of arrival of Ghanaian Social Welfare report which raised a number of fundamental questions about identity. xi) 11 December 2006. Counsel for applicant seeks unsuccessfully to have amicus curiae removed.Chronology Relating to Applicants and Child[14] There is no dispute over various important dates and events. Rather than surround them by narrative it is convenient to list them in chronological order.• 8 June 1999. Joshua born.• May 2001. George and Levinia have preliminary telephone contact.• June 2003. George meets Levinia for the first time in Ghana• 14 June 2003. Traditional marriage of George and Levinia.• June 2003. Contact made with Social Welfare in Ghana and George and Levinia interviewed by Ernestina.• 3 July 2003. Social Welfare report for Kennedy's adoption but containing personal details of George and Levinia.• 22 June 2004. George makes inquiries with Department of Internal Affairs in Wellington about the possibility of adopting the son of his partner's cousin.• 2 July 2004. Department of Internal Affairs writes to George and encloses considerable New Zealand and Ghanaian statutory material.• 24 August 2004. George and Levinia marry in New Zealand.• 7 October 2004. Deed of Adoption executed.• 22 December 2004. George and Levinia apply ex parte to High Court for declaration relating to s 17.• 31 January 2005. Ex parte application filed in Supreme Court in Accra.• 2 February 2005. Ghana court order relating to customary adoption.Section 17 Adoption Act 1955[15] The facts of this case do not require an extensive analysis of the relevant policy and legislation relating to people officially resident in New Zealand wishing to adopt a foreign child. [16] New Zealand, unlike Ghana, has ratified the Hague Convention on Intercountry Adoption. That Convention sets out New Zealand's international law obligations and led to the passage of the Adoption (Intercountry) Act 1997. [17] Those statutory provisions, however, do not apply because Ghana has not acceded to the Convention. [18] The adoption of a foreign child, of course, has immigration ramifications. A foreign adoption order has the potential, by virtue of ss 3(2) and 7 of the Citizenship Act 1977, to give the child a claim to New Zealand citizenship. Ms R M Atkinson, an officer in the Department of Internal Affairs has deposed that between 1 April 2005 and 24 April 2007, 741 adoptions were recognised for citizenship purposes. [19] One route whereby a foreign adoption can lead to citizenship and the lawful entry of a foreign child into New Zealand is s 17 which provides:17 Effect of overseas adoption(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. (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 anynatural 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. (2A) The production of a document purporting to be the original or a certified copy of an order or record of adoption made by a Court or a judicial or public authority in any place 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. (3) Nothing in this section shall restrict or alter the effect of any other adoption made in any place outside New Zealand. (4) In this section the term New Zealand does not include any territory in which this Act is not in force. (5) This section does not apply to any adoption in another Contracting State that is an adoption— (a) By a person habitually resident in New Zealand; and (b) To which the Convention applies; and (c) Which takes place in that Contracting State on or after the date on which the Convention has entered into force as between New Zealand and that Contracting State. (6) In subsection (5), Contracting State and Convention have the same meaning as in the Adoption (Intercountry) Act 1997.[20] Because the Convention does not apply between New Zealand and Ghana, ss 5 has no application. The focus instead is on s 17(2). If the requirements of that provision are satisfied then, in terms of ss (1), the foreign adoption order has the same effect as if it were validly made under the Act. However, as is apparent from the use of the words in ss (2) "but not otherwise", the jurisdictional requirements must be met. [21] It is on ss 17(1) and (2) that George and Levinia rely. [22] Mr Dorbu sees the issue simply. He accepts that the applicants must prove three elements being: a) That the adoption is legally valid according to the law of Ghana. b) That in consequence of the adoption the applicants have a custody right to the child superior to that of his natural parents and c) That adoption is made by any court or judicial public authority of a Commonwealth country (which Ghana is). [23] There is no requirement under s 17 for any inquiry into a child's welfare. A foreign court order that meets the ss (2) requirements dictates the s 17(1) outcome. It may well be that there has been no or scant inquiry by the foreign authority into the welfare aspects of an adoption order. [24] In this case, the request to Ghanaian authorities for a copy of any social welfare report was at the instance of Ms Kearns. She considered that, in a general way, any such report might be helpful, particularly since the process on which the applicants relied was a customary adoption rather than a court order. [25] The relevant s 17(2) procedure on which the applicants factually rely divides into two stages. First it is asserted that Joshua has been lawfully adopted by George and Levinia as a result of a Ghanaian customary adoption. Secondly the validity of that customary adoption has been asserted by Justice Abada in the Superior Court of Judicature in Accra on 2 February 2005.Processes and Documents[26] The evidence of George and Levinia and the documents on which they rely state that Joshua's natural mother is Catherine Kotey and his father Fritz Ekuban. [27] Although there is no mention of this in any of George's three filed affidavits, it would seem that there was some form of family meeting when George visited Ghana in June 2003. Both George and Levinia mentioned that meeting when giving viva voce evidence. As a result of that meeting, contact was made with the Social Welfare authorities. The couple were subsequently interviewed by Ernistina. It is clear, however, from Levinia's evidence that neither Fritz nor Catherine Kotey, the child's natural parents, attended the meeting. [28] The document on which George and Levinia rely is a Deed of Adoption dated 7 October 2004. That document was annexed to George's first affidavit of 14 December 2004. He deposed:[O]n the 7th day of October 2004, by an instrument of adoption valid in accordance with the law of the Republic of Ghana my wife and I have adopted the following child, namely: i) Joshua Kennedy Kwabena Ekuban, a male child aged five.[29] Interestingly neither the affidavits nor the annexed 7 October 2004 Deed make any reference to Joshua's date of birth. [30] The parties to the Deed are Mrs Kotey, George, and Levinia. The preambles to the Deed recite that Joshua's natural mother (unnamed) "has, owing to circumstances beyond her control relinquished custody, care, control, and maintenance to the guardian". The guardian for the purposes of the Deed is Mrs Kotey. The Deed further asserts that the child's natural father, also unnamed, has similarly relinquished all custody rights to the guardian. [31] A further preamble to the Deed states:Both parties hereto are subject to the same native law and customs of the Ga- Adamgbe tribe of Ghana which encourages the adoption of children of blood relations.[32] The operative part of the Deed contains Mrs Kotey's consent as "guardian" to George and Levinia adopting the child, and asserts that their rights " with regard to the property, custody, education, and residence and location of the adopted child supersede those of the guardian and natural parents". [33] Catherine Kotey's signature was witnessed in Ghana on 7 October 2004 by a lawyer and notary public. The signatures of George and Levinia were witnessed in Auckland, (probably, given geography and the date of the deed some time earlier), by Mr Richard Connell a solicitor and notary public in Auckland. [34] Various other documents were attached to the Deed of Adoption. The first is a declaration (but in affidavit form) by a lawyer in Accra, Opoku Amponsah who says he prepared the Deed of Adoption dated 6th (sic) October 2004 " on the joint instructions of the natural parents and the adoptive parents" of Joshua. He also exhibits what he swears is a true copy of the affidavit of "Catherine Kotey, the natural mother of the child". He further swears that the Deed of Adoption was prepared after he had been satisfied "with the truth of the facts of the instructions I received from the natural parents and the adoptive parents of the young child and due interview of the said child". [35] Finally Mr Amponsah swears that to the best of his knowledge the Deed of Adoption is valid under Ghanaian laws, "both customary and common law", and that with immediate effect Joshua ceases to be the child of his natural parents. [36] The annexed declaration by Catherine Kotey, also sworn on 7 October 2004, before the same notary public, states that she is a widow, that George is Joshua's uncle, that Joshua is her grandson, (certainly not the child's natural mother as Mr Amponsah would have us believe), and she has "the authority as the only surviving parent (sic) and sole guardian of my said grandson to make this declaration". [37] Finally, as part of the set of documents, is a "Consent to Adoption" signed by Fritz in Accra on 9 October 2004, two days after the Deed of Adoption. Hissignature has been witnessed by Cindy Amoako who gives her occupation as seamstress. Confusingly, at the foot of the document is the seal and signature of one Julianna Amonoo-Nizer, a lawyer and legal practitioner who states that the person signing the document (presumably Fritz) "appeared before me on the 9 th day of October 2004 and appended his signature in my presence". [38] The problems and inconsistencies with this set of documents are self-evident. Assuming for the moment that Fritz, one of Joshua's natural parents, has consented, and his execution of the consent two days after the Deed and the preamble alleging that he has relinquished all rights to custody, care, and maintenance to Mrs Kotey, can somehow be construed as a consent to the adoption, there is clearly no consent from Joshua's natural mother. There was no statement as to how Mrs Kotey, wrongly called the child's mother, became Joshua's guardian. Nor was it clear what her guardianship rights were. [39] The next phase, probably triggered by this Court's refusal to make an ex parte declaration on 22 December 2004, was an application to the Superior Court of Judicature in the High Court of Justice in Accra on 28 January 2005. George and Levinia were the applicants. Mr Amponsah, whose affidavit is described in para [34] (supra), was appearing counsel. [40] The supporting affidavit was sworn by Cindy. She, (George and Levinia have confirmed this), was their lawful attorney for the purpose of the application. She states that George is Joshua's uncle; that Joshua is the son of Fritz and Catherine Kotey; that Catherine Kotey has abandoned Joshua and relinquished his custody, care, and control to Mrs Kotey; and that efforts to locate Catherine Kotey have been futile, it being believed she is residing in Cote d'Ivoire or Nigeria. [41] The affidavit also asserts that there was a family meeting in Accra attended by George, Levinia, Fritz, Catherine Kotey, and other family members at which George and Levinia expressed their willingness "to customarily adopt the juvenile" and that all family members consented to this. Reference is made to Fritz's consent which is annexed.[42] There is a further supporting affidavit from Mrs Kotey in which she says she is Joshua's grandmother, refers to the customary adoption, and states that she has authority as Joshua's sole guardian to make the declaration since the whereabouts of Joshua's mother is unknown. [43] On the basis of that documentation Justice Abada, having read the two supporting affidavits and having heard Mr Amponsah, issued an order in the following terms:It is hereby confirmed that Joshua Kennedy Kwabena Ekuban was customarily adopted by George Solly Anquandah and Levinia Kutorkor Anquanda under the customary legal system of Ghana and Joshua Kennedy Kwabena Ekuban is at liberty to join George Solly Anquanda and Lenivia (sic) Kutorkor Anquandah, the applicants herein, who are currently ordinarily resident at Unit 4, 5A Wade Avenue, Onehunga, Auckland New Zealand.[44] The information placed before Justice Abada (outlined above) is important. The supporting affidavits did not refer to or exhibit the 7 October 2004 Deed of Adoption which, on the basis of Mr Amponsah's declaration, was valid under customary law. Nor does there appear to have been any reference to native law and the customs of the Ga-Adamgbe tribe referred to in the preamble of the Deed. [45] The final document, on which George and Levinia do not rely, but which in the submissions of Mr Hodge and Ms Kearns is significant, is the 3 July 2003 social welfare report signed by Ernestina. The appearance of this report on the court file is noteworthy. At my direction the Civil Registrar of this Court wrote twice to the Registrar of the Superior Court of Judicature in Ghana. The Registrar's letters were dated 31 March and 17 May 2006. The letters referred specifically to Justice Abada's declaration and sought a direction from Justice Abada, on the basis of judicial comity, that a copy of any welfare report relating to Joshua be made available. [46] A reply from Ghana, dated 21 June 2006, advised that a thorough search had been made of the court's record and there was no social welfare report.[47] In the meantime, Mr Hodge wrote to the Principal Social Development Officer of Ghana's Department of Social Welfare in similar terms on 2 June 2006. Mr Hodge requested the Ghanaian authorities forward any report direct to the Auckland High Court Registry. [48] As a result of Mr Hodge's request, a letter dated 5 September 2006 from the Regional Director at Kumasi (a city in Ghana's interior approximately six hours drive from Accra), arrived for the Auckland Registry headed "Social Welfare report on Joshua Kenedy (sic) Kwabena Ekuban"; It attached a report dated 3 July 2003. [49] That report, to which reference has already been made, on its face relates to a child Kennedy Amoako. The report has a suit number on it being a reference to a court file. It is not the same court file as the 28 January 2005 application. [50] The report has full and correct personal details of both George and Levinia who are described as the applicants. Kennedy's date of birth is identical to Joshua's. Joshua is described as the son of Levinia's cousin Cindy. Cindy and Mr Mensah are recorded as the names of Kennedy's natural parents. [51] The report states that Kennedy's mother has given her consent to the adoption. The "investigation officer", Ernestina, recommends that it would be in the best interests of Kennedy to be adopted by George and Levinia and recommends the granting of an adoption order. [52] Understandably counsel cross-examined both George and Levinia about the report. They were both adamant they had never sought to adopt a child of Cindy or indeed a child called Kennedy Amoako. Nor were they able to explain why this report, clearly triggered by a request they both made in Ghana in June 2003, and containing correct information about them, gave the name of the wrong child albeit the same date of birth. [53] In the wake of the hearing, and with leave, Mr Dorbu filed a further declaration from Opoku Amponsah who acted as George and Levinia's counselbefore Justice Abada and whose evidence on another aspect I have already canvassed (supra [34] ). [54] That declaration states that he has not filed any adoption proceedings for George and Levinia in respect of Kennedy; that if any such adoption application had been granted or refused a circuit court order should be available; that "inadvertently" the social welfare report is inaccurate; and that" I personally introduced [George] and [Levinia] to the Social Welfare Department in Accra for a social welfare report in respect of the adoption application at the High Court."This last assertion is puzzling since the only introduction of the couple to the social welfare authorities would have been to Ernestina in 2003. The involvement of the High Court in Accra does not appear to have occurred until 28 January 2005. If some High Court application involving the social welfare authorities and Ernestina were afoot in June 2003, there has been absolutely no evidence about it. [55] A social welfare report, as I have stated, is not an essential prerequisite to any foreign orders to which s 17 relates or indeed to a declaration in respect of s 17. I am not, on the basis of the evidence before me, prepared to make a finding that George and Levinia took steps to adopt Kennedy. I do find that Ernestina's 3 July 2003 report was triggered by approaches made in June 2003 when George was in Ghana and Joshua's adoption was being discussed. I think it likely the report was prepared in respect of some adoption application relating to Joshua which George and Levinia brought in Ghana, which either did not proceed or for some reason failed.Ghana Law[56] Mr Dorbu arranged for evidence on Ghana law to be provided by Mr Samuel Koranteng, a graduate of the University of Ghana currently practising as a solicitor in partnership in London. He has filed two affidavits. [57] I remind myself it is not for me to interpret the law of a foreign state. Foreign law is a question of fact to be pleaded and proved by counsel, and to bedecided by a Judge: see Dicey, Morris and Collins, The Conflict of Laws, 14th ed, 2006, R 18(1) at p 255; Attorney-General for England and Wales v R [2002] 2 NZLR 91 at [31]; Glencore International AG v Metro Trading International Inc[2001] 1 Lloyd's Rep. 284. Foreign law will not usually be inferred from previous decisions, even when these concern the same subject. It must generally be proved each time: Brenan and Galen's case (1847) 10 QB 492; Mount Cook (Northland) Ltd v Swedish Motors Ltd [1986] 1 NZLR 720. Expert witnesses are not entitled to give a statement of their opinion. Their evidence should be restricted to recital of the relevant legal facts: Mount Cook (Northland) Ltd v Swedish Motors Ltd [1986] 1 NZLR 720. [58] A court cannot reject uncontested or uncontradicted evidence on the basis of its own research: Bumper Development Corp Ltd v Commissioner of Police of the Metropolis [1991] 1 WLR 1362 at 1371 (CA). Such evidence can, however, be rejected in the event that it is 'obviously false' (O'Callaghan v O'Sullivan [1925] 1 IR 90), obscure (Allen v Hay (1922) 69 DLR 193 (SCC)), or internally inconsistent (Buerger v New York Life Assurance Co (1927) 137 LT 431); and Grupo Torras SA v Sheikh Fahad Mohammed Al-Sabah [1996] 1 Lloyd's Rep 7 at 18 (CA) per Stuart- Smith LJ). [59] Evidence is only admissible where the proposed witness is properly qualified. A Judge or practitioner in the jurisdiction whose law is in question is properly qualified: Baron de Bode's case (1845) 8 QB 208. There is no challenge to Mr Koranteng's experience or expertise in Ghanaian family law. He is the only witness in this area. [60] Mr Koranteng's evidence can best be summarised as follows:• He has been shown the 7 October 2004 Deed and Justice Abada's order.• Articles IV (1) and (2) of the Constitution of Ghana include as the law of Ghana, common law and customary law, which is defined as "the rules of law which by custom are applicable to particular communities in Ghana".• He opined (this in part being an issue for me (supra [57])) that the "customary adoption" was valid in accordance with the laws of Ghana and that a child so adopted ceased for all purposes to be a child of the natural parents.• The law of Ghana recognises a customary adoption is valid in the same way as an adoption under statute law such as Ghana's Children's Act 1998. In that regard he referred to the 1974 Ghana Court of Appeal decision of Tanor v Akosua Koko [1974] 1 GLR 451.• In that decision the Court of Appeal held that the two principal requirements needed to make a customary adoption valid were first the consent of the child's parents and secondly the expression of the adopter's intention to adopt the infant before witnesses.• A customary adoption made in Ghana does not require the sanction of a court to be valid. A customary adoption is valid and complete as soon as the Tanor requirements are met.• A family that seeks to adopt a child in Ghana, regardless of whether the child was a member of an extended family or from some other family, would ordinarily do so customarily in consultation with the elders of the clan and/or the traditional chiefs rather than going through a court process.• Customary adoption exists in Ghana in tandem with statutory adoption.• Because of the strong unifying rules played by chiefs and traditional rulers in Ghanaian communities, customary usages have been preserved including the areas of marriage and adoption. For these reasons a court in Ghana would have no difficulty confirming the adoption of a child unless there was opposition or something untoward which would adversely affect the child's interests.• Ghana has not acceded to the relevant Hague Convention.• The customary adoption of Joshua is valid under Ghanaian law.• On adoption under Ghana law, the adoptive parents have a superior right to that of any of Joshua's natural parents and for all intents and purposes he ceases to be a child of the natural parents and becomes a child of the adoptive parents.Discussion[61] The central issue for this Court is whether the process relating to Joshua between 2003 and 2005 fits inside the s 17(1) requirement of the child being adopted in Ghana according to Ghana's law and in particular whether the adoption complies with s 17(2). On those aspects I must be satisfied on the balance of probabilities. [62] A related issue is whether s 17(2A) extends to the order made by Justice Abada on 2 February 2005. There is no doubt in my mind that were Justice Abada's order to be "an order or record of adoption made by a court or a judicial or public authority" in Ghana then such order would be conclusive. [63] But that is not what the 2 February 2005 order is. It is a declaration that on the basis of information placed before the Judge by Cindy Amoako and Mrs Kotey, there has been a customary adoption of Joshua by George and Levinia. The order, with respect, strays somewhat beyond the declaration in any event, by stating that the child is "at liberty" to join George and Levinia in New Zealand, which is essentially a New Zealand immigration issue. [64] There is force in Mr Hodge's submission, supported by Ms Kearns, that the 2 February 2005 order is confirmatory. It is not in itself an adoption order nor can the order have the effect of transforming what might otherwise have been an invalid adoption under Ghanaian law into a valid one.[65] Mr Hodge further submitted that were s 17(2A) to apply, there is indeed "proof to the contrary" before the Court relating to the validity of Joshua's adoption because the consent of Joshua's natural mother, Catherine Kotey, was never obtained. (There is a valid consent from Fritz, but there is no consent whatever from the natural mother). Whether or not under Ghanaian law, particularly when a customary adoption is involved, the natural mother's consent can be dispensed with, and if so in what circumstances, is not a matter on which there has been any evidence. [66] Nor, if the focus is to be on the 7 October 2004 Deed, is it clear from the evidence whether Mrs Kotey as "guardian" of Joshua is able to stand in the shoes of the natural mother for consent purposes. [67] Mr Amponsah's first declaration (supra [34]) asserts that he prepared the Deed of Adoption on the joint instructions of both natural parents and adoptive parents. But there is absolutely no evidence on how the natural mother's "instruction" came to Mr Amponsah. The evidence, and indeed the documents, suggest she cannot be located. [68] Mr Koranteng's evidence has something to say about the mechanics of a customary adoption in Ghana. This involves a consultation with elders or traditional chiefs, and, on the authority of Tanor v Akosua Koko, the consent of the child's parents and an expression of the adopter's intention to adopt before witnesses. [69] It may well be that the family meeting in June 2003 was a consultation and expression of intention of this type. But, on the authority of Tanor, the absence of both the child's natural parents from the meeting would result in the meeting not complying with what Mr Koranteng advises are the requirements of a customary adoption. [70] The 22 December ex parte application's supporting affidavit (supra [28] ) expressly states that the 7 October 2004 Deed is, in effect, the customary adoption. But that cannot be right in terms of Ghanaian law and Mr Koranteng's evidence as to what constitutes customary adoption.[71] A preamble to the Deed refers to the customs of the Ga-Adamgbe tribe yet the Deed on its face involves George, Levinia, and Mrs Kotey with the signatures of the first two parties being witnessed in Auckland before a New Zealand solicitor and notary public. Such is a far cry from the customary procedures Mr Koranteng outlines. Levinia's evidence was that the Ga-Adamgbe Tribe is matriarchal. But whether George, from a different part of Africa, became, on marriage, a member of that tribe is unclear. The assertion that the Deed is itself a customary adoption sits uneasily with the evidence of what occurred in June 2003. And in June 2003, neither of Joshua's natural parents attended the family/tribal meeting. [72] Finally, the evidence of George and Levinia, that they instructed lawyers in Ghana to proceed with the adoption and that they were interviewed by Ernestina, suggests that in June 2003 at least, some process other than a customary adoption was envisaged. [73] Were George and Levinia in a position to produce a Ghanaian adoption order covering Joshua then the declaration procedure and the requirements of s 17 would present no difficulties. There is, however, no adoption order. As is clear from the approach adopted by Harrison J in Tjoing v District Court North Shore (CIV 2003- 404-006528, 21 April 2004) the absence of an order would not be fatal provided there was evidence of a legally valid adoption and the requirements of ss 17(2)(b) and (c)(ii) being satisfied. [74] But regrettably, for the reasons I have stated, on the basis of the evidence of Ghanaian law and the various documents placed before the Court, Joshua's "adoption" in Ghana is problematic. The applicants have chosen to assert there is a valid customary adoption. However, for the reasons I have stated I am far from convinced that is the case. [75] Thus, and for the same reasons, on the balance of probabilities I do not consider the requirements of s 17(1) and 17(2)(a) are met.Result[76] Accordingly the application for a declaration is refused.Additional Comment[77] As I stated in an earlier section of this judgment I consider that there are valid and genuine reasons why George and Levinia want to adopt Joshua and bring him to be part of their family in New Zealand. The route they have chosen to that objective has been unsuccessful. There are, however, other routes which they would be well advised to try. It is not this Court's function to give the applicants legal advice. Suffice to say this Court has sympathy with their inevitable disappointment and regrets that another route was not attempted at an earlier stage.Costs[78] Mr Hodge, for the respondent, asked that costs be reserved. Some thought needs to be given, in the circumstances, as to whether costs should be pursued. The applicants are not necessarily, on the basis of my findings, personally responsible for the course this proceeding has taken since December 2004. They will doubtless have incurred considerable expense to no avail. The Crown is to some extent a legitimate gatekeeper in applications relying on s 17 where, as is apparent from Ms Atkinson's affidavit, there are many borderline and/or dubious cases. Should the respondent seek costs, a memorandum should be filed and served. [79] There is a direction that Ms Kearns's reasonable costs are to be paid by the Registrar of this Court from the appropriate fund. The Court has been assisted by Ms Kearns persistence over the past two years. I do not in the circumstances intend to order a contribution to her costs from either party. Priestley J