NORMAN v ATTORNEY-GENERAL [2021] NZCA 78

NORMAN v ATTORNEY-GENERAL [2021] NZCA 78 [19 March 2021]NOTE: PURSUANT TO S 22A OF THE ADOPTION ACT 1955, ANY REPORTOF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OFTHE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA409/2020CA410/2020[2021] NZCA 78BETWEEN NORMANAppellantAND ATTORNEY-GENERALRespondentHearing: 26 November 2020Court: Cooper, Brown and Goddard JJCounsel: B J R Keith and R L Fletcher for AppellantK F M Wevers and S Deng for RespondentJudgment: 19 March 2021 at 10.00 amJUDGMENT OF THE COURTA The application for leave to adduce updating evidence is granted.B The appeal is allowed in relation to Tessa, Sam and Ana.C The appeal is dismissed in relation to Wendy.D The parties are directed to confer in relation to the preparation andsealing of final adoption orders under the Adoption Act 1955 in respect ofTessa, Sam and Ana. Leave is reserved to apply to the Court for approvalof the orders for sealing.E There is no order as to costs.____________________________________________________________________Table of contentsPara NoIntroduction and summary [1]The children whom Ms Norman wishes to adopt [1]The adoption application in the Courts below [5]The appeal: a summary [7]Background [12]Ms Norman [12]The children and Ms May's role in their care [17]Updating evidence [31]Legal framework for adoption application [35]The Act [35]Immigration consequences of adoption [54]Relevant international instruments [56]The United Nations Convention on the Rights of the Child [56]Hague Intercountry Adoption Convention [72]United Nations General Assembly Declaration on Social and Legal Principlesrelating to the Protection and Welfare of Children [75]Family Court judgment [76]High Court judgment [83]Leave to appeal to this Court [102]Submissions on appeal [107]Can the Court make an adoption order in respect of Wendy? [112]The issue [112]Discussion [116]When should an adoption order be made under the Act? [128]The issue [128]Discussion [130]Should an adoption order be made in this case? [140]Is an adoption order consistent with the purposes of the Act? [141]Applying the criteria set out in the Act: Tessa, Sam and Ana [144]The best interests of Wendy [159]Relief [161]Result [165]REASONS OF THE COURT(Given by Goddard J)Introduction and summaryThe children whom Ms Norman wishes to adopt[1] The appellant, Ms Norman, is a New Zealand citizen.1 She is the aunt of fouryoung people who live in Ethiopia: Wendy (aged 20), Tessa (aged 19), Sam (aged 17)and Ana (aged 15) (the children). In 2011–2012, the children's parents went to Eritrea.The parents have not been heard from since 2013: it is likely they are no longer alive.Ms Norman wishes to adopt the four children and provide a home for them inNew Zealand.[2] In Ethiopia, the children live with another aunt — Ms Norman's sister,Ms May. The children are cared for by Ms May and financially supported byremittances from Ms Norman. Ms May currently has no other source of income. Thechildren live in circumstances of significant material deprivation. They share a smallroom with Ms May and her daughter (aged 10) in a house owned by another familymember. After paying rent for that room Ms May can afford only the most basic foodfor the family. They have no money for other necessities such as clothing.[3] The children also live in circumstances of significant insecurity. Ethiopia isa fragile State. There is significant civil unrest and fighting in the region in which thechildren live. One of the children — Sam — was recently kidnapped and only returnedsome days later after a ransom was paid (funded by Ms Norman). It appears thatincidents of this kind are far from unusual where they live.[4] The children have no birth certificates or other legal identity documents.Despite the absence of the children's parents, Ms May has not been appointed as thechildren's legal guardian. The children's lack of a legal guardian restricts their accessto such public education and health services as are available where they live.The children have had little access to education over their lifetimes, and currently —1 This is an anonymised version of the judgment: see [52] below. Fictitious names have been usedfor the appellant and other family members.as a result of the unrest in the region and COVID-19 — have no opportunities at allfor education or work. They are largely confined to the compound in which they live,as a result of the prevailing levels of insecurity.The adoption application in the Courts below[5] Ms Norman's application to adopt the children was unsuccessful in theFamily Court.2 The Judge was not satisfied that the claimed family relationshipbetween Ms Norman and the children had been established, and was not satisfied thatadoption was in the children's best interests.[6] Before the High Court, DNA evidence confirmed that Ms Norman is the auntof the four children. But the appeal was unsuccessful, as Doogue J was not satisfiedthat adoption was in the children's best interests.3The appeal: a summary[7] Ms Norman applied to the High Court for leave to appeal to this Court. Leavewas granted by Doogue J on 29 June 2020.4[8] Ms Norman says that all the criteria for making an adoption order under theAdoption Act 1955 (the Act) are satisfied. In particular, she says adoption is in thebest interests of the children. She emphasises the clearly expressed desire of thechildren to be adopted by her, and to come to live with her in New Zealand.[9] In the three years since the adoption application was first filed, the oldest ofthe children, Wendy, has turned 20. We consider that it is no longer possible for anadoption order to be made in respect of Wendy. Were it not for her age, we wouldhave been prepared to make such an order.[10] We consider that an adoption order should be made in respect of the threeyounger children: Tessa, Sam and Ana. These children are not being, and will not be,cared for by their own parents. We are satisfied that adoption by Ms Norman would2 Re [Norman] [2019] NZFC 7023 [Family Court judgment].3 [Norman] v Attorney-General [2020] NZHC 336 [High Court judgment].4 Norman v Attorney-General [2020] NZHC 1483 [Leave judgment] at [42].provide the children with a permanent family life with Ms Norman. And we aresatisfied that the adoption is in the best interests of these children. The Courts belowwere right to emphasise that the children have a family life with their aunt in Ethiopia.But they do not have parents or any other legal guardian, and we consider that in theircurrent environment, characterised as it is by a high level of insecurity and deprivation,the children are not able to receive the parental care and support that they require inorder to flourish and develop "to their fullest potential".5[11] The issue that has given us the greatest pause in reaching this decision is ourinability to make an adoption order in relation to Wendy because of her age. It is inthe interests of the three children who are to be adopted — and who are, by virtue ofthe adoption, New Zealand citizens — that they not be separated from their older sister.They have already suffered significant loss and disruption of their family life. It wouldbe far preferable for all four children to be adopted by Ms Norman and come toNew Zealand together. The only reason that is not possible is the significant amountof time — more than three years — it has taken for this matter to be finally determinedby the New Zealand courts. In those circumstances, the Attorney-General may wishto invite the Minister of Immigration to consider whether the interests of the threechildren, who are now New Zealand citizens, and the fact that Wendy would bea New Zealand citizen but for the time taken to resolve these proceedings, providea basis for the exercise of the Minister's discretion to grant a visa that would enableWendy to come to New Zealand with her fellow siblings.BackgroundMs Norman[12] Ms Norman is a New Zealand citizen. She lives in Wellington. She isoriginally from Ethiopia. Her former husband arrived in New Zealand as a refugee in2000. At that time Ms Norman was living in Khartoum, Sudan. She was eventuallygranted a New Zealand visa based on her relationship with her former husband andcame to New Zealand in 2009. She became a New Zealand citizen in 2015.5 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature20 November 1989, entered into force 2 September 1990) [UNCRC], art 29(1). See also arts 6(2)and 27–28.[13] In 2011, Ms Norman and her former husband applied to the Family Court toadopt five children aged 14 to 19 from her former husband's extended family inEthiopia. This application was successful, and the children became New Zealandcitizens by virtue of the adoption. They arrived in New Zealand on 6 July 2013.Ms Norman and her former husband separated later that same year. Ms Norman'sformer husband and the five children now reside in Australia.[14] Ms Norman met her current husband on a trip to Ethiopia in 2015. He travelledto New Zealand in June 2015 on a visitor's visa. He was granted residence based onhis relationship with Ms Norman in July 2018. The couple now have two youngdaughters. Ms Norman's husband is employed full-time as a cleaner. Ms Norman isworking part-time as a cleaner. She was working full-time until the birth of herdaughters. In her evidence before the Family Court she explained that if the currentadoption application is successful, she intends to return to work full-time as a cleanerat night to help support the enlarged family. She anticipated that this would befacilitated by Wendy assisting with childcare after school. Although we have notreceived updating evidence on this issue, it seems likely that, some years on, that rolecould also be filled by the other children.[15] Ms Norman and her family live in a two-bedroom property rented fromKāinga Ora.6 Ms Norman acknowledges that this would not be appropriateaccommodation for the family if an adoption order is made: they would need to finda larger home in which to live. When Ms Norman and her former husband adoptedhis five relatives, it appears they were provided with an adjacent unit, enabling allmembers of the extended family to have sufficient room in which to live. Ms Normanhas made inquiries and understands that a similar arrangement might be possible inthis case.[16] It was common ground before the Courts below, and before us, that Ms Normanis a fit and proper person to take on the role of caring for the children if the adoptionis approved. Likewise, Ms Norman's husband, who was interviewed as part of theassessment process, is a fit and proper person to adopt the children.6 Kāinga Ora — Homes and Communities is the Crown agency which (among other functions) isresponsible for the rental properties previously administered by Housing New Zealand.The children and Ms May's role in their care[17] Much of the information set out below is based on a very thorough and helpfulChild Study Report (Report) prepared in December 2018 at the request ofOranga Tamariki by Ms Atnafu Wube, a qualified lawyer and accredited member ofthe International Social Service network in Ethiopia. Ms Atnafu Wube travelled to theregional town in which the children live with Ms May and conducted interviews withthem there. She also located, and met with, a priest who baptised the children andsigned the baptismal certificates that are their only identity documents.[18] Ms Norman and Ms May are, as noted above, sisters. Ms May is the youngestof four children. She was born while her parents were living in Sudan. The eldestdaughter was the children's mother. Ms Norman was the third child. Their parentsdied in Sudan in 1995 and 1997. Ms May went to live with her eldest sister and herhusband — the children's parents — who were also living in Sudan at that time. Thechildren that Ms Norman is now seeking to adopt were born in Sudan while theirparents were living there. Wendy was born in 2000; Tessa was born in 2001; Sam wasborn in 2003; and Ana was born in 2005. From the time of their birth Ms May playeda significant role in caring for the children.[19] In September 2008 the children's parents, Ms May and the children moved toEthiopia. It appears that the children's father left the family and travelled to Eritrea in2010–2011. After an extended period without hearing from him, he made telephonecontact in 2012. The children's mother decided to travel to meet her husband inEritrea. She left the children in the care of Ms May. It appears that the children'smother met with her husband in Eritrea. They spoke with Ms May and the childrenby telephone from Eritrea on a couple of occasions. But from 2013 onwards the familyhas not heard from, or received any news about, the children's parents. Responsibilityfor the day-to-day care of the children fell on Ms May from 2012 onwards.[20] As noted above, Ms May also has one child of her own, a daughter born in2010. She is a solo mother. Ms May and the children have lived in several places inEthiopia since 2012. After the children's parents left Ethiopia, Ms May facedsignificant difficulties in caring for the children and her daughter. As a result, shedecided to move to another town where she could live with relatives: her maternal auntand her aunt's son. Ms May and the children now live in a house with Ms May's auntand a number of other family members. Ms May, her daughter and the children shareone small room in the house. It appears the house has amenities such as electricityand running water.[21] Ms Atnafu Wube observed that the house is too small and poorly furnished toaccommodate four girls and one boy together with Ms May. She was advised byMs May that the care that has been provided to the children for some years could notgo beyond fulfilling some of their basic needs like food and shelter to survive.Ms May said that they had been living for years "without the privilege to even getdecent and nutritious meal[s] and a housing environment with basic facilities".[22] Ms May has in the past attempted to support herself and the family by sellingtea and bread to labourers in nearby plantations. But the income she earned was barelyenough to cover the cost for food, rent for the room and clothing. It was only withadditional support from Ms Norman that the family was able to survive.[23] The frequent moves the family has made, the remoteness of the region inEthiopia in which they live, the economic challenges they have faced, and the absenceof their parents or any other legal guardian, have all combined to limit the children'sopportunity for schooling. Wendy and Tessa attended school in Sudan for a year. Theyhave not been enrolled in school since they came to Ethiopia. The younger childrenhave had no formal schooling. It appears that the children received some informallanguage education in Amharic and English during a summer school break in 2018.They also received some private language education paid for by Ms Norman in recentyears, although this was interrupted when the private school they were attending wasclosed due to COVID-19.[24] The Report records Ms May's advice that the health of the children has beengood. They have not suffered any serious illnesses.[25] Ms Atnafu Wube observed that the children and Ms May have "a very strongand tight relationship amongst each other". Wendy told her that they love each otheras a family and treat Ms May more as a mother than as an aunt. Ms Atnafu Wubenoted that "[a]ll the children express their deepest love to each other and to their aunt[Ms May]".[26] The Report notes the presence of a "smooth relationship" between the childrenand their maternal great aunt, from whom they rent their current accommodation.Ms Atnafu Wube had the opportunity to interview the children's great aunt, who saidshe "usually feels sorry for the children and it makes her sick seeing them sitting intheir room for the entire day instead of going to school".[27] The Report also addresses the relationship between the children andMs Norman:In the words of [Wendy], their relationship with [Ms Norman] is gettingstronger and stronger every time. The children stated that [Ms Norman] is likeour life savior. They said she think and worry about them a lot and that givesthem a hope. The son said 'we couldn't think what our options would be if itwas not for [Ms May] and [Ms Norman]'. They said they gave a visit to[Ms Norman] whenever she came to Ethiopia and they have a very goodrelationship with her husband and their kids as well. They said they usuallycall and talk to them once in a week and this gives them too much hope.[28] The children have repeatedly expressed, to Ms Atnafu Wube and the socialworkers who interviewed them by telephone, their desire to come to live withMs Norman in New Zealand. As Ms Atnafu Wube recorded:[Wendy], the eldest daughter stated that they have lived for long puzzling whattheir future would be as their parents were not there with them and as theydidn't get a proper educational opportunity. She said after this process startedwe gave all our hope and wish on it. In her words she said 'we started to dreamabout getting a proper education and helping the people who has been therefor us such as [Ms May]. In the discussion with [Tessa], [Sam] and [Ana], theysaid they all felt very much distressed and useless when they spent the wholeday [idle]. Accordingly, they said it worries them a lot especially as they feelthat they are becoming too much burden on their aunt [Ms May] who issuffering a lot to feed them. According to them their hope to get out of thiscircle lies on the process their other aunt [Ms Norman] has started years back.In the words of [Sam], 'we feel so much pain for not getting the chance toeducation and we look [at this] process as our only hope to get the chance foreducation and in return to open the door for others who couldn't get the chanceas a paying back strategy'.[29] The Report addresses alternative forms of protection available for the childrenin Ethiopia. According to Ethiopian law any person under the age of 18 should havea guardian, either by operation of law or through the court. Parents are automaticallyassigned as guardians of their children by law. In the absence of one or both of theparents, the other parent, or anyone who shows interest in the protection and care ofthe child, can be assigned as a guardian of the child by court order. Ms Atnafu Wubenoted that in this case, both the biological parents are absent and have ceasedperforming their responsibilities as lawful guardians of the children. The care andprotection of the children is vested in the aunt and other relatives. However, as theReport goes on to note: the Aunt [Ms May] has been exercising such responsibility without theproper court's approval as it is mandatory by law. As it is normally assumed,it is very difficult to execute the responsibility as a guardian of a child fornon-biological parents without being assigned as such by the court. Schoolregistration, seeking medical attentions, or other basic necessities on behalf ofthe children would be very difficult for someone like [Ms May] withoutgetting the proper guardianship status from the court. As a matter ofcoincidence, [Ms May] has never been obliged to seek those public serviceson behalf of the children.[30] Ms Atnafu Wube identified the various options for children in need that areavailable under Ethiopian law. She did not consider that any of these options waslikely to be both available and satisfactory. She observed that: the support system currently available for the children is barely enough togo beyond fulfilling survival needs. All these [make] the adoption applicationvery much relevant.Updating evidence[31] Because some two years had passed since the hearing in the Family Court, thisCourt granted leave to Ms Norman to provide updating evidence by affidavit.7 At thehearing of this appeal we also granted leave to the parties to provide further updatingevidence in the form of affidavits prepared by social workers instructed by Ms Normanand by Oranga Tamariki. Key points that emerged from the updating evidence were:(a) The family's material conditions have not improved and have, in somerespects, deteriorated as a result of civil war and COVID-19. It appearsMs May is no longer able to sell bread and tea to labourers in nearby7 [Norman] v Attorney-General CA409/2020, 2 November 2020 (Minute of Cooper J).plantations. The children have even fewer opportunities than before toundertake activities outside their home.(b) All four children have been attending a language school to learn to readand write in Amharic, and to have lessons in English. Ms Norman hadbeen paying for these lessons for all four of them until the school wasclosed due to COVID-19. The children had attended the school foralmost two years prior to its closure and had learnt a small amount ofEnglish.(c) The four children do most things together and rely primarily on eachother for support. Their aunt, Ms May, is their primary caregiver, andthere is undoubtedly a close relationship between the children and theiraunt. However, the children appear to view each other as their keysupport network.(d) In July 2020, there was a major incident when Sam was kidnappedwhile outside playing. He was held by the kidnappers for some daysand was only released when a ransom was paid. The money for theransom was provided by Ms Norman.(e) The kidnapping of Sam has significantly increased the concern felt byMs May and the children in relation to the risks of venturing outsidethe compound in which they live, and has further limited the activitiesthey feel they are able to safely undertake.(f) All the children confirmed that it is hard for them living with Ms Mayin current conditions, because she does not have enough money to helpthem, and because their opportunities are very limited.(g) It appears that their diet consists largely of "shiro", a kind of soup madefrom chickpea flour. They do not normally eat meat and vegetables, oranything other than shiro.(h) The children have had regular contact with Ms Norman inNew Zealand, through weekly or bi-weekly "WhatsApp" calls.(i) The children remain anxious to come to live with Ms Norman inNew Zealand. They see this as their only chance for education andemployment.(j) The children see coming to New Zealand as also providing benefits forMs May. They would be able to provide a better life for her by reducingthe burden on her and providing her with some support. They alsoexpressed gratitude to Ms Norman, and thought that if they came toNew Zealand, they would be able to work and repay some of thesupport they had received.[32] As one of the reports prepared by Oranga Tamariki notes, if the children cometo live in New Zealand, they will remain within their birth family and their culture.They will be raised in their native culture (albeit within a different society) with theirlanguage and traditions, and will maintain connections with their extended family inNew Zealand. They will also be able to maintain some contact with Ms May and otherrelatives in Ethiopia, as they have done in recent years with Ms Norman. But theywill lose day-to-day contact with Ms May, who has cared for them since their birthand with whom they are very close. They will also have little or no contact with othermembers of their extended family living in Ethiopia, including the great aunt in whosehouse they currently live.[33] In interviews with the social workers, the children referred to their careeraspirations if they were to come to New Zealand, with Wendy hoping to becomea social worker, Tessa wanting to become a social worker and children's rightsadvocate, Ana wanting to be a doctor and Sam saying he would like to follow a careerin art and design. Ms Bernadette Kee-Sue, a social worker employed byOranga Tamariki who conducted the updating interview, expressed concern that thefour children did not appear to have much information or understanding about theopportunities available to them in practice in New Zealand. She also expressedconcern about difficulties for the children in transitioning into the New Zealandeducation system given their ages, compounded by their inability to read, write orspeak English.[34] There will certainly be significant challenges for the children if they come tolive in New Zealand, as they learn English and learn to navigate a new and unfamiliarsociety. With the exception of Ana, they are probably too old to attend mainstreamNew Zealand schools. But we were advised from the bar that they will receive supportfrom the Ethiopian community to integrate into New Zealand society, and would beable to attend classes targeted at adult immigrants. They will also of course have thesupport of Ms Norman, who (as the Oranga Tamariki reports record) has experienceand a good track record of caring for teenagers adopted into New Zealand. And ofcourse, Ms Norman herself has lived through the experience of coming toNew Zealand from Ethiopia, so she is well placed to understand the challengesinvolved and support the children in adjusting to a new way of life.Legal framework for adoption applicationThe Act[35] Ethiopia is not a party to the Hague Convention on the Protection of Childrenand Co-operation in respect of Intercountry Adoption (Hague Intercountry AdoptionConvention).8 So the Adoption (Intercountry) Act 1997 does not apply toMs Norman's application to adopt the children. Ms Norman's application was madeunder the Adoption Act 1955 (the Act).[36] The Act does not contain a purpose provision. Rather, it focuses on themachinery for adoption, and on the criteria that must be met if an adoption order is tobe made. The social context in which adoptions take place, and the purpose ofadoption, have evolved significantly over the 65 years since the legislation wasenacted. In its report on adoption law delivered in 2000, the Law Commissionrecommended enacting new legislation to replace the Act.9 The Law Commission8 Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption1870 UNTS 167 (opened for signature 29 May 1993, entered into force 1 May 1995)[Hague Intercountry Adoption Convention].9 Law Commission Adoption and Its Alternatives: A Different Approach and a New Framework(NZLC R65, 2000).report proceeds on the basis that the fundamental purpose of adoption in contemporaryNew Zealand circumstances should be to provide a child who cannot, or will not, becared for by his or her own parents, with a permanent family life.10[37] It is elementary that enactments apply to circumstances as they arise.11We consider that the Act can, and should, be read in the context of currentcircumstances. In particular, we consider that the Act can, and should, be treated ashaving the purpose identified by the Law Commission as the fundamentalcontemporary purpose of adoption. We return to this below.[38] An adoption order may only be made under the Act in respect of a child.The Act does not provide for adult adoptions. The term "child" is defined in s 2 as: a person who is under the age of 20 years; and includes any person inrespect of whom an interim order is in force, notwithstanding that the personhas attained that age[39] Section 3 of the Act provides that a court may make an adoption order upon anapplication made by any person whether domiciled in New Zealand or not, and inrespect of any child, whether domiciled in New Zealand or not.[40] Section 4 sets out certain restrictions on making adoption orders. As relevant,it provides:4 Restrictions on making adoption orders(1) Except in special circumstances, an adoption order shall not be madein respect of a child unless the applicant or, in the case of a jointapplication, one of the applicants—(a) has attained the age of 25 years and is at least 20 years olderthan the child; or(b) has attained the age of 20 years and is a relative of the child;or(c) is the mother or father of the child.10 At [168].11 Interpretation Act 1999, s 6.[41] It is now common ground that the criteria in s 4 are met in this case, asMs Norman has attained the age of 20 years and is a relative of the children.[42] Section 5 creates a presumption in favour of making an interim adoption orderbefore making a final adoption order:5 Interim orders to be made in first instanceUpon any application for an adoption order, if the court considers thatthe application should be granted, it shall in the first instance make aninterim order in favour of the applicant or applicants:provided that the court may in any case make an adoption orderwithout first making an interim order, if—(a) all the conditions of this Act governing the making of aninterim order have been complied with; and(b) special circumstances render it desirable that an adoptionorder should be made in the first instance.[43] Again, it is common ground that in this case the children could only be issuedwith the documents that would enable them to travel to New Zealand if a final adoptionorder is made, and they become New Zealand citizens. Ms Norman seeks a finaladoption order. The Attorney-General accepts that this is not a case where an interimorder would be appropriate. The parties submit, and we agree, that specialcircumstances make it desirable that a final adoption order should be made if this Courtconcludes that the application should be granted.[44] Section 7 of the Act sets out the persons whose consent is required before anyadoption order is made, including the parents and guardians of the child. However,s 8 provides that the consent of the parents and guardians of the child may be dispensedwith by the court where, among other circumstances, the court is satisfied that theparents have failed to exercise the normal duty and care of parenthood in respect ofthe child. In this case, the children's parents have not been in contact with the childrenand have not been heard from for some seven years. Their location is unknown.There is, as noted above, a likelihood that they are no longer living. In thosecircumstances, both the Family Court and the High Court considered that this wasa case in which the consent of the parents should be dispensed with under s 8.12We agree.[45] Section 10 provides that a report must be obtained from a social worker beforeany adoption order is made. The court must consider any report which the socialworker provides.[46] Section 11 is at the heart of this appeal. It sets out the criteria that the courtmust apply in deciding whether to make an adoption order:11 Restrictions on making of orders in respect of adoptionBefore making any interim order or adoption order in respect of anychild, the court shall be satisfied—(a) that every person who is applying for the order is a fit andproper person to have the role of providing day-to-day carefor the child and of sufficient ability to bring up, maintain, andeducate the child; and(b) that the welfare and interests of the child will be promoted bythe adoption, due consideration being for this purpose givento the wishes of the child, having regard to the age andunderstanding of the child; and(c) that any condition imposed by any parent or guardian of thechild with respect to the religious denomination and practiceof the applicants or any applicant or as to the religiousdenomination in which the applicants or applicant intend tobring up the child is being complied with.[47] In this case, it is common ground that s 11(a) is satisfied: Ms Norman is a fitand proper person to have the role of providing day-to-day care for the children, andis of sufficient ability to bring up, maintain and educate them. Section 11(c) is notrelevant. The focus is thus on s 11(b): whether the adoption will promote the welfareand interests of each of the children, having regard to the wishes of the children.[48] Section 13A provides a right of appeal from the Family Court to the High Courtwhere the Family Court refuses to make an interim order or an adoption order in12 Family Court judgment, above n 1, at [71]; and High Court judgment, above n 2, at [37].respect of any child. A further appeal may be brought to this Court with the leave ofthe High Court, or of this Court.13[49] Section 14 provides for the date on which an adoption order becomes effective:14 Date on which adoption order becomes effective(1) An adoption order made after the commencement of this Act shall bedeemed to be made,—(a) in any case where it is issued after an interim order has beenmade and without further hearing, on the date on which it isso issued:(b) in any other case, on the date of the actual granting of theorder by the court, whether or not a formal order is eversigned.[50] Section 16 sets out the effect of the making of an adoption order:16 Effect of adoption order(1) Every adoption order shall confer on the adopted child a surname, and1 or more given names.(1A) The names conferred on an adopted child by an adoption order shallbe those specified by the applicant for the order, unless the court issatisfied it is not in the public interest for the child to bear thosenames.(1B) Notwithstanding subsection (1), if the court is satisfied that it iscontrary to the religious beliefs or cultural traditions of the applicantfor an adoption order for the adopted child to bear a given name, theorder may confer on the child a surname only.(2) Upon an adoption order being made, the following paragraphs of thissubsection shall have effect for all purposes, whether civil, criminal,or otherwise, but subject to the provisions of any enactment whichdistinguishes in any way between adopted children and children otherthan adopted children, namely:(a) the adopted child shall be deemed to become the child of theadoptive parent, and the adoptive parent shall be deemed tobecome the parent of the child, as if the child had been bornto that parent in lawful wedlock:provided that, where the adopted child is adopted by hismother either alone or jointly with her spouse, the making ofthe adoption order shall not prevent the making of an13 Senior Courts Act 2016, s 60.affiliation order or maintenance order, or of an application foran affiliation order or maintenance order, in respect of thechild:(b) the adopted child shall be deemed to cease to be the child ofhis existing parents (whether his natural parents or hisadoptive parents under any previous adoption), and theexisting parents of the adopted child shall be deemed to ceaseto be his parents, and any existing adoption order in respectof the child shall be deemed to be discharged undersection 20:provided that, where the existing parents are the naturalparents, the provisions of this paragraph shall not apply forthe purposes of any enactment relating to forbidden marriagesor civil unions or to the crime of incest:(c) the relationship to one another of all persons (whether theadopted child, the adoptive parent, the existing parents, or anyother persons) shall be determined in accordance with theforegoing provisions of this subsection so far as they areapplicable:(d) the foregoing provisions of this subsection shall not apply forthe purposes of any deed, instrument, will, or intestacy, oraffect any vested or contingent right of the adopted child orany other person under any deed, instrument, will, orintestacy, where the adoption order is made after the date ofthe deed or instrument or after the date of the death of thetestator or intestate, as the case may be, unless in the case ofa deed, instrument, or will, express provision is made to thateffect:(e) subject to the Citizenship Act 1977, the adoption order shallnot affect the race, nationality, or citizenship of the adoptedchild:(f) the adopted child shall acquire the domicile of his adoptiveparent or adoptive parents, and the child's domicile shallthereafter be determined as if the child had been born inlawful wedlock to the said parent or parents:[51] In certain very limited circumstances, an adoption order may be varied ordischarged under s 20 of the Act.[52] Section 22A provides that ss 11B to 11D of the Family Court Act 1980 applyto the publication of a report of any proceedings under the Act. Any report ofproceedings under the Act in the Family Court or other courts must not includeidentifying information in relation to persons under the age of 18, or vulnerablepersons who are the subject of the proceedings. This anonymised version of thejudgment has been prepared to ensure compliance with these provisions.[53] Section 28A provides for rules to be made regulating the practice andprocedure of courts in proceedings under the Act. The Adoption Regulations 1959make detailed provision in relation to applications for adoption. Regulation 10provides that unless the court directs otherwise, the applicants and the child proposedto be adopted must attend personally before the court at any hearing of the applicationfor adoption. Ms Norman attended the hearings before the courts below, and waspresent at the hearing before this Court. For obvious reasons the children were notable to be present at the hearings, and we direct that their attendance was not required.Immigration consequences of adoption[54] If a child who is not a New Zealand citizen is adopted by a New Zealandcitizen, the child automatically becomes a New Zealand citizen. Section 3(2)(a) of theCitizenship Act 1977 provides that a person is deemed to be the child of a New Zealandcitizen if the child has been adopted by that citizen, in New Zealand, by an adoptionorder made under the Act. The child is deemed to have been born when and where theadoption order is made, for the purposes of the Citizenship Act. So the child willqualify as a New Zealand citizen by birth under s 6(1)(b) of that Act.[55] It is common ground that if the adoption order sought by Ms Norman is made,the children to whom the order relates would automatically become New Zealandcitizens by virtue of that order.Relevant international instrumentsThe United Nations Convention on the Rights of the Child[56] The United Nations Convention on the Rights of the Child (UNCRC)14 was atthe forefront of Mr Keith's argument on behalf of Ms Norman. Both New Zealandand Ethiopia are parties to the UNCRC. We agree that the UNCRC provides animportant backdrop to the interpretation and application of the Act.14 UNCRC, above n 5.[57] The preamble to the UNCRC notes that in the Universal Declaration of HumanRights,15 the United Nations proclaimed that childhood is entitled to special care andassistance. The preamble refers to the family as the fundamental group of society andthe natural environment for the growth and wellbeing of all its members, particularlychildren. It goes on to recognise that: the child, for the full and harmonious development of his or her personality,should grow up in a family environment, in an atmosphere of happiness, loveand understanding,[58] The preamble also refers to a number of other international instruments thatidentify the need to extend particular care to the children, including theInternational Covenant on Civil And Political Rights (in particular in arts 23 and 24)and the International Covenant on Economic, Social And Cultural Rights (in particularin art 10).16[59] Article 1 provides that for the purpose of the UNCRC, a child means "everyhuman being below the age of eighteen years unless, under the law applicable to thechild, majority is attained earlier". The UNCRC rights are engaged directly in relationto the children under 18. Ms Wevers, counsel for the Attorney-General, submitted thatthe UNCRC rights are also relevant by analogy when considering the application ofthe Act to young people aged 18 or over, who are in need of the same special care andassistance. We agree. And it would make no sense to read the Act differently inrelation to children aged 18 or 19.[60] Article 3 identifies the best interests of the child as a primary consideration inall actions concerning children, whether undertaken by public or private social welfareinstitutions, courts of law, administrative authorities or legislative bodies.[61] Article 7 provides that a child must be registered immediately after birth.A child has the right from birth to a name, the right to acquire a nationality and, as faras possible, the right to know and be cared for by his or her parents.15 Universal Declaration of Human Rights GA Res 217A (1948).16 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976); and International Covenant on Economic,Social and Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered intoforce 3 January 1976).[62] Article 12 provides for the views of the child to be taken into account whendecisions are made concerning the child:ARTICLE 121. States Parties shall assure to the child who is capable of forming his or herown views the right to express those views freely in all matters affecting thechild, the views of the child being given due weight in accordance with theage and maturity of the child.2. For this purpose, the child shall in particular be provided the opportunityto be heard in any judicial and administrative proceedings affecting the child,either directly, or through a representative or an appropriate body, in a mannerconsistent with the procedural rules of national law.[63] Articles 20 and 21 are of particular relevance to the interpretation of the Act:ARTICLE 201. A child temporarily or permanently deprived of his or her familyenvironment, or in whose own best interests cannot be allowed to remain inthat environment, shall be entitled to special protection and assistanceprovided by the State.2. States Parties shall in accordance with their national laws ensure alternativecare for such a child.3. Such care could include, inter alia, foster placement, kafalah of Islamiclaw, adoption or if necessary placement in suitable institutions for the care ofchildren. When considering solutions, due regard shall be paid to thedesirability of continuity in a child's upbringing and to the child's ethnic,religious, cultural and linguistic background.ARTICLE 21States Parties that recognise and/or permit the system of adoption shall ensurethat the best interests of the child shall be the paramount consideration andthey shall:(a) Ensure that the adoption of a child is authorised only by competentauthorities who determine, in accordance with applicable law andprocedures and on the basis of all pertinent and reliable information,that the adoption is permissible in view of the child's statusconcerning parents, relatives and legal guardians and that, if required,the persons concerned have given their informed consent to theadoption on the basis of such counselling as may be necessary;(b) Recognise that inter-country adoption may be considered asan alternative means of child's care, if the child cannot be placed ina foster or an adoptive family or cannot in any suitable manner becared for in the child's country of origin;(c) Ensure that the child concerned by inter-country adoption enjoyssafeguards and standards equivalent to those existing in the case ofnational adoption;(d) Take all appropriate measures to ensure that, in inter-countryadoption, the placement does not result in improper financial gain forthose involved in it;(e) Promote, where appropriate, the objectives of the present article byconcluding bilateral or multilateral arrangements or agreements, andendeavour, within this framework, to ensure that the placement of thechild in another country is carried out by competent authorities ororgans.[64] Article 21 requires States such as New Zealand that have a system of adoptionto ensure that the best interests of the child are the paramount consideration whenmaking decisions in relation to adoption. As Mr Keith emphasised, this goes beyondthe general art 3 requirement that the best interests of the child must be a primaryconsideration: in the adoption context, the child's best interests are the paramountconsideration.[65] Article 21(b) expressly recognises that intercountry adoption may bean appropriate means of providing care for a child. The United Nations Committeeon the Rights of the Child (CRC Committee) has referred to intercountry adoption as"a measure of last resort".17 But we agree with Doogue J that this statement goes toofar.18 Treating intercountry adoption as a last resort, to be used only if there is nosuitable manner in which a child can be cared for in that child's country of origin,would be inconsistent with the requirement that the best interests of the child be theparamount consideration in each case. Intercountry adoption, in particular bya member of the child's extended family, may well be preferable to institutional careor a series of short-term care arrangements in foster homes. It may even be preferableto a permanent home with an unrelated family in the State of origin. The importanceof focusing on the child's best interests in each case, rather than adopting a bright-linerule that relegates intercountry adoption to a last resort, is recognised by the17 John Tobin (ed) The UN Convention on the Rights of the Child: A Commentary (Oxford UniversityPress, Oxford, 2019) at 796, citing Concluding Observations of the Committee on the Rights ofthe Child: Mexico UN Doc CRC/C/15/Add.13 (1994) at [18]; and Concluding Observations of theCommittee on the Rights of the Child: Brazil UN Doc CRC/C/15/Add.241 (2004) at [47(b)].See also UNICEF Implementation Handbook for the Convention on the Rights of the Child(3rd ed, UNICEF, 2007) at 298.18 High Court judgment, above n 2, at [64].Guide to Good Practice issued by the Hague Conference on Private International Law(HCCH) (HCCH Good Practice Guide) in relation to the Hague Intercountry AdoptionConvention:19The question may arise as to where the child's best interests lie when thechoice is between a permanent home in the State of origin and a permanenthome abroad with a family member. Assuming that the two families inquestion are equally suitable to adopt the child, in most cases the child'sinterests may be best served by growing up with the biologically-relatedfamily abroad. This example illustrates that it is not subsidiarity itself whichis the overriding principle of this Convention, but the child's best interests. It is sometimes said that the correct interpretation of "subsidiarity" is thatintercountry adoption should be seen as "a last resort". This is not the aim ofthe Convention. [66] As Mr Keith submits, intrafamily adoption addresses many of the concerns thatattach to intercountry adoption more generally. In particular, it maintains family andwider cultural connections and lessens many of the risks that are present in theintercountry adoption context.[67] Thus, as one recent commentary put it:20In abstracto, it can be argued that inter-country adoption is only subsidiary tonational suitable solutions, and that institutional care is less and lessconsidered suitable. In concreto, every case requires a case-by-case approachin which the different care options are considered in light of the best interestsof the child.(Footnote omitted.)[68] It is of course the case that domestic solutions are generally preferable to thoseinvolving another country.21 But general principles of that kind are no substitute for19 Hague Conference on Private International Law The Implementation and Operation of the 1993Hague Intercountry Adoption Convention: Guide to Good Practice (Guide No. 1) (The Hague,2008) [HCCH Good Practice Guide] at [52]–[53]. See also, in respect of the UNCRC: WouterVandenhole, Gamze Erdem Türkelli and Sarah Lembrechts Children's Rights: A Commentary onthe Convention on the Rights of the Child and Its Protocols (Edward Elgar Publishing,Cheltenham, 2019) at [21.05]–[21.09]; and Tobin, above n 17, at 800.20 Vandenhole, Türkelli and Lembrechts, above n 19, at [21.09]. See also Tobin, above n 17, at 800;and Daniel O'Donnell Child Protection: A Handbook for Parliamentarians No 7 (UNICEF, 2004)at 115, which sets out three interrelated principles that:• Family-based solutions are generally preferable to institutional placements• Permanent solutions are generally preferable to temporary ones• National (domestic) solutions are generally preferable to those involving another country21 O'Donnell, above n 20, at 115.a case-specific consideration of the best interests of the child as the paramountconsideration.[69] The inquiry into the best interests of the child is broad and comprehensive.As the CRC Committee said in its 2013 general comment:22The concept of the child's best interests is aimed at ensuring both the full andeffective enjoyment of all the rights recognized in the Convention and theholistic development of the child.[70] And as the CRC Committee has also observed:23Children's well-being, in a broad sense includes their basic material, physical,educational, and emotional needs, as well as needs for affection and safety.[71] UNCRC rights that are relevant when assessing the best interests of a childinclude:(a) The child's right to survival and development, to the "maximum extentpossible": art 6(2).(b) The child's right to a standard of living "adequate for the child'sphysical, mental, spiritual, moral and social development": art 27(1).(c) The child's right to education, directed to the "development of thechild's personality, talents and mental and physical abilities to theirfullest potential": arts 28(1) and 29(1)(a).Hague Intercountry Adoption Convention[72] Reference has already been made to the Hague Intercountry AdoptionConvention, a widely ratified multilateral instrument designed to give effect to art 21of the UNCRC, as contemplated by art 21(e). The Hague Intercountry AdoptionConvention recognises that "intercountry adoption may offer the advantage ofa permanent family to a child for whom a suitable family cannot be found in his or her22 General Comment No 14 (2013) on the right of the child to have his or her best interests taken asa primary consideration (art. 3, para 1) UN Doc CRC/C/GC/14 (29 May 2013) at [4].23 At [71].State of origin".24 Although the Hague Intercountry Adoption Convention does notapply in the present case, we agree with the Courts below that the principlesunderpinning that Convention are relevant when considering intercountry adoptionapplications under the Act.25[73] Under the Hague Intercountry Adoption Convention, an intercountry adoptioncan proceed only after the State of origin has given due consideration to possibilitiesfor placement of the child within the State of origin and has concluded that anintercountry adoption is in the child's best interests.26[74] The HCCH Good Practice Guide notes that a child should be raised by his orher birth family or extended family whenever possible. But in the majority of casesan intercountry adoption would be preferred ahead of institutionalisation or multipletemporary foster homes. And (as noted above) in some cases, adoption by a familymember abroad may be preferable to a national adoption by a non-relative.27United Nations General Assembly Declaration on Social and Legal Principles relatingto the Protection and Welfare of Children[75] We also note, for the sake of completeness, the United Nations GeneralAssembly Declaration on Social and Legal Principles relating to the Protection andWelfare of Children, with Special Reference to Foster Placement and AdoptionNationally and Internationally.28 That Declaration preceded the UNCRC and theHague Intercountry Adoption Convention. It describes the purpose of adoption inlanguage that is closely reflected in the New Zealand Law Commission report referredto above:29The primary aim of adoption is to provide the child who cannot be cared forby his or her own parents with a permanent family.24 See the preamble to the Hague Intercountry Adoption Convention.25 High Court judgment, above n 3, at [30], citing P v Department of Child, Youth and FamilyServices [2001] NZFLR 721 (HC); and Family Court judgment, above n 2, at [64].26 Hague Intercountry Adoption Convention, art 4(b).27 HCCH Good Practice Guide, above n 19, at [52]–[53] and [511]–[518].28 United Nations General Assembly Declaration on Social and Legal Principles relating to theProtection and Welfare of Children, with Special Reference to Foster Placement and AdoptionNationally and Internationally UN Doc A/RES/41/85 (3 December 1986).29 Article 13.Family Court judgment[76] The application for adoption was filed in September 2017. It appears that ittook some time to obtain the information needed to enable the Court to consider theapplication. In particular, the Child Study Report prepared by Ms Atnafu Wube wasultimately obtained in December 2018. It appears that (for reasons which are notapparent from the material before us) nine months then passed before the applicationwas heard in the Family Court on 4 and 5 September 2019. Judge Grace's decisionwas delivered on 6 September 2019.[77] The Judge declined to make an adoption order for two reasons:30(a) The identity of the children, and their relationship with Ms Norman,had not been satisfactorily established.(b) The Judge considered that it would not be in the best interests of thechildren or in the best interests of their welfare to approve theapplication.[78] The issue of identity has been superseded by the DNA evidence that wasprovided in the High Court, which confirmed that Ms Norman is the children's aunt.31We need therefore do no more than note that the evidence before the Family Court didnot satisfy the Judge about that relationship. The children do not have birthcertificates. Copies of baptismal certificates for the children were in evidence. But theJudge identified a number of difficulties in relation to the accuracy and adequacy ofthose documents as evidence of the identity of the children. The Judge considered thatbecause there were so many unexplained matters in relation to the identity of thechildren, he could not conclude on the balance of probabilities that the children'sidentity, and therefore the blood link, had been established to the degree where itwould be safe to proceed with the application. However in the event that he wasincorrect on that, he went on to deal with the substantive application.3230 Family Court judgment, above n 2, at [85] and [115].31 High Court judgment, above n 3, at [44]–[53].32 Family Court judgment, above n 2, at [85]–[86].[79] The Judge considered that in circumstances where the parents had notexercised the duties and obligations of parenthood in respect of these children for atleast seven years, and had in effect abandoned the children, this was an appropriatecase for the Court to exercise its discretion to dispense with the consent of theparents.33[80] The Judge considered that on the balance of probabilities, the parents of thechildren are not still alive. But the possibility that they are still alive could not bediscounted.34[81] The Judge then went on to consider whether there is a suitable carer for thechildren in their home country. He emphasised the strong connection between thechildren and Ms May, whom they treat like their mother. Removing them from thatrelationship would be a significant factor to be borne in mind in coming to the ultimatedecision.35[82] The Judge summarised his conclusions as follows:[112] The fundamental purpose behind an adoption is to providea child/young person with a new family, to assimilate them into a new familyunit because they do not have a family or a family unit. That carer is a familyrelative, not a stranger. While the parents have disappeared and are no longerplaying their parental roles for these young people, the fact remains that thereis a family unit in existence. There is a person providing a care role, and shehas been doing that role for some years. There may be poverty within thefamily but that is not the basis for removing the young people and allowingthem to be adopted.[113] There is a loving and supportive relationship between the currentcaregiver and the young people, and that relationship goes both ways.[114] It cannot be said that this is not a family living in Ethiopia.[115] Taking all these factors into account and endeavouring to weigh themas best I can, I have come to the view that it would not [be] in the best interestsof these children or in the best interests of their welfare to approve thisapplication. Even if the question of identity was resolved in favour of theapplicant and the young people proving the family link, it would not alter thereality of the relationship which already exists between the young people andtheir existing carer and the extended family in Ethiopia.33 At [70]–[71].34 At [90].35 At [91].High Court judgment[83] As noted above, DNA evidence before the High Court confirmed the familyrelationship between Ms Norman and the children.36 That effectively resolved theissue of identity.[84] The High Court Judge recorded that Ms Norman meets the criteria in s 4(1)(b)of the Act: she is over the age of 20 and is a relative of each of the children.37The social worker had assessed Ms Norman and her partner as fit and proper peopleto adopt, notwithstanding some concerns regarding their financial resources, housingsituation and ability to support the children's transition to New Zealand. So thecriterion in s 11(1)(a) was satisfied.38[85] The Judge then moved on to the question of whether the proposed adoptionwould promote the welfare and best interests of the children. The Judge emphasisedthe significance of the step of adoption, involving as it does the total substitution ofnew parents for the existing parents of a child.39 The Judge identified some additionalreasons for caution in the present case:[57] In this case there are additional reasons for the court to exercisecaution. First, Ethiopia is not a signatory to the Hague [Intercountry Adoption]Convention. Accordingly, the safeguards in the Hague [IntercountryAdoption] Convention, including steps by the state of origin to ensure theadoption is in the children's best interests, are not in place here. Second, theCourt is unlikely to have the option, in practical terms, of first granting aninterim adoption order. Under the Act, the Court is required to first make aninterim adoption order unless special circumstances exist. One of the reasonsfor this is to provide Oranga Tamariki with an opportunity to monitor theplacement to ensure that adoption will promote the children's welfare andinterests. However, the children would not be able to travel to New Zealandwithout first obtaining New Zealand passports, which will only be possiblewith a final adoption order. Third, the children have not been able to appearpersonally before the court, as is generally required.(Footnotes omitted.)36 High Court judgment, above n 3, at [44]–[53].37 At [36].38 At [39].39 At [56].[86] Against that backdrop, the Judge proceeded to make an overall assessment ofwhether the welfare and interests of the children would be promoted by the adoption.As she noted, that assessment is fact dependent and case specific.40[87] As the Judge identified, the "welfare and interests" of the child referred to ins 11(b) of the Act should be interpreted in a manner that is consistent with internationallaw and New Zealand's international obligations. The UNCRC contains a number ofrelevant provisions. The principles underpinning the Hague Intercountry AdoptionConvention are also relevant, even where the Convention does not apply directly.41[88] The Judge proceeded on the basis that an intercountry adoption "may only beconsidered if a child cannot be cared for 'in a suitable manner' within the child'scountry of origin".42[89] The Judge considered that intercountry adoption should not be seen asa measure of last resort. There are circumstances in which intercountry adoption ispreferable to alternatives. For example, adoption by a family member abroad may bepreferable to a national adoption by a non-relative, or institutionalisation or multipletemporary foster homes.43 As the Judge noted, both the Hague Intercountry AdoptionConvention and UNCRC recognise that intercountry adoption can be in the bestinterests of a child in an appropriate case.[90] The Judge noted that a number of cases identify the purposes of adoption inthe modern day as "to create a permanent family life for a child that otherwise doesnot have one".44[91] As the Judge noted, there is some variation in the case law on the relevance ofimmigration factors.45 She considered that the general approach to adoption cases40 At [58].41 At [59]–[65].42 At [60] (footnote omitted).43 At [64]–[65].44 At [67], citing Re Application by Nana [1992] NZFLR 37 (FC) at 42; and K v Attorney-General(2006) 25 FRNZ 413 (FC) at [31].45 At [69].with an immigration dimension should include consideration of the followingprinciples and factors:46(a) there is some tension between the effect of the Act on citizenship andthe Immigration Act 2009, and the Act should be applied in a way thatis mindful of the statute book as a whole;(b) the jurisdiction of the Family Court should not be misused tocircumvent the Immigration Act 2009;(c) the motivation behind an adoption application is relevant to theassessment of whether the applicants are fit and proper persons toadopt, and to the assessment of the welfare and interest of the child;(d) the statutory criteria in s 11 should be interpreted in light of themodern purpose of adoption to create a permanent family life fora child who otherwise does not have a suitable permanent family life;(e) the welfare and interests of the child should be interpreted consistentlywith New Zealand's international obligations, which demonstratea strong preference for children remaining in their country of origin;(f) it is unlikely to be in the best interests of a child to be adopted bya person who is primarily motivated to confer citizenship or residency,rather than to welcome that child as a permanent member of theirfamily and commit to their upbringing. For example, a child who isadopted to achieve an immigration outcome may not feel they havebeen really accepted by their new family.(g) The Family Court in Re SP-I-HT listed a number of factors that canbe considered when determining whether an adoption application ismade solely for the purposes of securing immigration status or not.These factors include the ages of the children; whether the childrenhave carers who can adequately provide for their care; whether thereis a blood relationship between the applicants and the children;whether the applicant has previously provided care for the children;and the situation in the children's home country.(h) It will always be a case specific, fact dependent inquiry.[92] The Judge proceeded to consider those principles and factors. The Judge didnot consider that the application was a calculated or cynical attempt to use adoption tocircumvent the immigration legislation.47 Turning to factor (c) the Judge found thatMs Norman is a fit and proper person to adopt the children. Her motivation is genuine.That meant factor (f) need not be considered. However, in the Judge's view,Ms Norman was "misguided as to what is in the children's best interests".4846 At [76] (footnotes omitted).47 At [80].48 At [81]–[82].[93] The Judge saw the first and critical question in relation to principle (d) aswhether the children can be cared for in a suitable manner in Ethiopia: "[i]f so, it wouldbe inconsistent with New Zealand's international obligations to permit an intercountryadoption".49 She noted that the children have lived with Ms May since they were born,and she has been their sole caregiver for the past seven or so years. There was nodoubt that she is suitable from the perspective of providing the children with a lovingand stable family life. The children live with family and appear to have wider familysupport to some extent.50[94] The Judge noted that Ms May is dependent on funds remitted from Ms Normanin order to provide food and shelter for the children. She described their materialcircumstances, and the fact that they are not receiving any formal education.She recorded that Ms May has been acting as guardian of the children without courtapproval, which could give rise to various difficulties.51[95] Under cross-examination in the Family Court, Ms Norman had agreed that thechildren have a family in Ethiopia, but said that it was hard for them financially.She had described the reasons for the adoption in terms of providing the children withbetter opportunities, rather than creating a family for them. The Judge considered itwas realistic of Ms Norman to identify those outcomes, and not the creation andpreservation of a new family unit, as key reasons for the adoption, given the relativelymature ages of all four children.52[96] The Judge also questioned whether Ms Norman truly apprehended the burdenshe and her partner would be assuming in attempting to assist four teenagers to makesuch a significant move at such a vulnerable age in their development.53 Turning tothe views of the children, the Judge noted that there did not appear to be any suggestionfrom the children that they wanted to come to New Zealand in order to be raised andcared for by Ms Norman. "It seems clear that the purpose of this adoption is to enable49 At [84].50 At [85]–[86].51 At [87].52 At [91].53 At [92].the children to live in New Zealand, rather than to create a permanent family life with[Ms Norman]."54[97] The Judge considered that in circumstances where the proposed adoptions weresocioeconomically and educationally driven, rather than driven by the need for thechildren to have a new family, factor (d) pointed against the adoption being appropriatein this case.55[98] The Judge then turned to consider factors (e) and (g) and concluded that thefollowing factors pointed against adoption being in the children's best interests:56(a) Given the ages of the children, they are not going to recreate a parentchild relationship with [Ms Norman] and her partner.(b) It is not appropriate to sever their obvious, loving and interdependentrelationship with one another and [Ms May] and their great-aunt andextended family in Ethiopia.(c) The psychological distress of leaving their primary attachment figurein the face of the already significant loss of their biological parentswould be injurious to their psychological health.(d) In addition, given their ages in terms of cognitive and psychologicaldevelopment, there would be a risk that they would be vulnerable andnot settle easily in New Zealand, in other words, it is not in theirbenefit to do so psychologically.(e) Poverty and lack of educational opportunities are not enough toconstitute a valid reason for an adoption, particularly whereas hereEthiopia does have free education, even though these children are notaccessing it.(f) Education and economic advantage, alone, are insufficient to amountto best interests of the children and such advantages can be completelyundermined by unhappiness and distress, caused by separation fromknown, loving attachment figures and language and custom.[99] The children have, as noted above, expressed a strong desire to come toNew Zealand. But the Judge considered that caution is required in relation to theweight to be given to the wishes of the children, "because it is not clear that the54 At [93].55 At [94].56 At [95].children have a well-informed or good understanding of what moving to New Zealandwould actually entail".57[100] The Judge also noted the understandable reluctance of the children to leavetheir aunt, Ms May. She considered that it was not entirely clear that the childrenunderstood that Ms May would not be able to come with them.58 In thesecircumstances, the Judge considered the children's wishes are not well-informedenough for reliance to be placed on the fact that they consent to the adoption.59[101] For the reasons summarised above, the Judge declined to make a final adoptionorder in relation to the children.60Leave to appeal to this Court[102] Ms Norman then applied to the High Court for leave to appeal to this Court,under s 60 of the Senior Courts Act. The application identified a number of issues thatwere said to justify a second appeal.[103] The Judge considered that one of the issues identified was of sufficientimportance to justify a second appeal, and was capable of bona fide and seriousargument.61 That question was whether the High Court erred "in finding the creationof a new family should be considered the purpose of an intrafamily intercountryadoption, or inappropriately precondition[ed] its assessment of the best interests of thechildren on this purpose".62 She did not consider that the other issues identified in theapplication met the relevant threshold for a second appeal.[104] Counsel for the appellant sought leave from this Court to argue a number ofthe issues in respect of which the High Court had declined to grant leave. However, weconsider that application was unnecessary, and need not be addressed by this Court.If leave to appeal is granted under s 60 of the Senior Courts Act, the appeal is not57 At [96].58 At [98].59 At [99].60 At [100].61 Leave judgment, above n 4, at [41].62 At [42].confined to questions of law. Rather, it is an appeal by way of re-hearing that is notrestricted to the question(s) identified as justifying the grant of leave.63[105] That approach makes good sense in the present case: it would be artificial toconsider aspects of the question of whether or not an adoption order should be grantedin isolation from other factors bearing on that decision.[106] We have therefore received and considered submissions from the partiesaddressing all matters relevant to the question whether an adoption order should bemade in respect of the children in this case.Submissions on appeal[107] Mr Keith challenged a number of aspects of the reasoning of the High Court.The fundamental premise of his argument was that the court should have focussed onwhether adoption was in the best interests of the children having regard to all relevantfactors, including the benefits of acquiring New Zealand citizenship, socioeconomicadvantages and other advantages. He submitted the Judge had erred in:(a) proceeding on the basis that an adoption order should be made only ifthe children were in need of a new family, in particular in theintrafamily adoption context;(b) treating the benefits of acquiring New Zealand citizenship and othersocioeconomic advantages as either an irrelevant or contrary factor;(c) focussing on the suitability of their current carer, Ms May, rather thanon the children's wider circumstances, safety and prospects, whenassessing whether the children can be cared for in a suitable manner inEthiopia; and(d) failing to give proper weight to the views of the children, and acting onthe basis of concerns and assumptions in relation to the understanding63 Horsfall v Potter [2017] NZSC 196, [2018] 1 NZLR 638 at [70]–[72].on the part of Ms Norman and the children of what the proposedadoption would entail, and whether it would be in their best interests.[108] Mr Keith placed particular emphasis on the need to interpret and apply the Actconsistently with arts 12 and 21 of the UNCRC, which are set out at [62]–[63] above.He argued that these provisions underscore the centrality of the best interests of thechildren, including all aspects of their wellbeing.[109] Ms Wevers recorded that the Attorney-General's principal concern in theproceedings was to assist the Court, and to ensure that the matters of fact and lawraised by the proposed adoption are properly tested before the Court. She submittedthat:(a) The High Court correctly summarised the applicable legal principlesand did not make any error in its approach to the proposed adoption.(b) Both the Family Court and the High Court had concluded on theevidence before them that the proposed adoption was not in the bestinterests of the children.[110] Ms Wevers accepted that the question of whether, as a matter of fact, theproposed adoption is in the best interests of the children needs to be reconsidered inlight of recent new evidence. She sought to draw all relevant factors to the Court'sattention, and test the propositions advanced by Ms Norman, in order to support theCourt's assessment of the children's best interests. She acknowledged that a proposedintrafamily adoption may, as a matter of fact, raise different considerations froma "stranger" adoption.64 We were greatly assisted by the thoughtful and balancedsubmissions presented by Ms Wevers.[111] Both parties identified a preliminary issue in relation to the jurisdiction ofthis Court to make an adoption order in respect of Wendy, in circumstances where shehas turned 20 since the date of the High Court judgment. We begin by addressing thatissue.64 See for example, K v Attorney-General, above n 44, at [52]–[53].Can the Court make an adoption order in respect of Wendy?The issue[112] An adoption order can only be made in respect of a "child". As noted above,for the purposes of the Act, a child is defined as a person who is under the age of20 years.65 That definition is expressly extended to include any person in respect ofwhom an interim adoption order is in force, notwithstanding that the person hasattained the age of 20 years.[113] Wendy is no longer a child within the (extended) definition in the Act: she is20 years old, and no interim adoption order is in force in respect of her. Thus, on theface of the Act, no adoption order can be made in respect of Wendy.[114] Mr Keith submits that such an order can be made by this Court because:(a) Such an order could have been made by the Family Court at firstinstance, as Wendy was under the age of 20 when the matter becamebefore the Family Court in 2019.(b) This Court's remedial powers extend to the making of orders as if madeby the Court at first instance, as at the time of the first instance decision.Under r 48(4) of the Court of Appeal (Civil) Rules 2005 (Rules),this Court may give any judgment and make any order which ought tohave been given or made.(c) The Act does not preclude the exercise of that remedial power. If it isambiguous on the point, it ought to be interpreted to enable an effectiveremedy to be granted that is consistent with the UNCRC.[115] Ms Wevers submits that any power this Court may have under r 48(4) of theRules to make back-dated orders, or orders "nunc pro tunc" ("now for then"), mustdepend on the terms of the legislation under which the relevant order is to be made.The Act identifies the limited circumstances in which an order can be made in respect65 Adoption Act 1955, s 2.of a person who is not under 20 years at the time the order is made. Neither the textnor the purpose of the Act support any broader exception.Discussion[116] We agree with Ms Wevers' submission that the starting point must be thestatute. In this case, the Act draws a clear line at the age of 20. No adoption ordermay be made in respect of a person above that age, unless an interim order was madein respect of that person prior to their turning 20. The Act expressly addresses thequestion of when an order can be made in respect of a person aged 20 or older andcreates a single clearly defined exception. The text of the Act strongly points againstany broader power to make orders in respect of a person aged 20 or older.[117] Mr Keith's suggestion that an order can be back-dated is also difficult toreconcile with s 14 of the Act, which expressly provides that an order is effective onthe date it is made.[118] We also accept Ms Wevers' submission that these textual indications areconsistent with the purpose of the Act. As discussed in more detail below, we considerthat the Act is intended to ensure that children under 20 are able to receive parentalcare from adoptive parents, in circumstances where they are not otherwise receivingsuch care and the proposed adoption is in their best interests. Mr Keith is right to pointout that the effects of an adoption last beyond the age of 20: the change in status andrelationships is an enduring one. But the primary focus of the Act is on ensuringappropriate parental care for persons under 20. That purpose can no longer be servedin respect of a person who has turned 20.[119] That reading of the Act is consistent with the approach adopted by theHague Intercountry Adoption Convention, which ceases to apply if all the agreementsnecessary for an adoption to proceed, including the agreement of theCentral Authorities of the State of origin and the receiving State, have not been givenbefore the child attains the age of 18 years. It is irrelevant that the process beganbefore the child turns 18, if it is not substantially completed by that date. Because thecore purpose of the Hague Intercountry Adoption Convention can no longer be servedafter the child turns 18, it ceases to apply to that child even if the adoption process wasunder way at that time.[120] Rule 48(4) of the Rules does not confer on the court a power to make ordersthat are not permitted by the relevant legislation. There are circumstances in whichthe courts can made an order nunc pro tunc. Such an order retroactively validatesa course of action as if the order had been made at the proper time. But as this Courtobserved in Upper Hutt City v Burns:66 of course, whether such an order can be made in any particular casedepends upon the authority of the Court in that instance. That usually turnson the statute the Court is concerned with. The Minister's powers andobligations must depend on the words of the statute conferring thedeclaration making powers. It is simply a matter of construction.[121] The Supreme Court of Canada has held that courts in Canada have inherentjurisdiction to make orders nunc pro tunc. However, the Supreme Court emphasisedthat nunc pro tunc orders will not be available if they are precluded by either thelanguage or the purpose of a relevant statute.67[122] We need not determine the circumstances in which r 48(4) of the Rules permitsthis Court to make an order back-dated to the date of a first instance hearing.For present purposes, the key point is that any such power is limited by the statute thatmakes provision for the kind of order that the Court is asked to make. It is in our viewvery clear from both the text and the purpose of the Act that no adoption order can bemade in respect of a person aged 20 or older.68[123] We have not overlooked Mr Keith's submission that legislation should, so faras possible, be interpreted in a manner that is consistent with New Zealand'sinternational obligations, and that provides an effective remedy to give effect toa person's rights under international instruments to which New Zealand is a party.But this submission faces several difficulties.66 Upper Hutt City v Burns [1970] NZLR 578 (CA) at 600.67 Canadian Imperial Bank of Commerce v Green 2015 SCC 60, [2015] 3 SCR 801 at [85]–[87] and[94].68 The same view was recently expressed by the High Court in Solomon v Attorney-General [2020]NZHC 2521 at [17], differing on this point from the Family Court in An application by PFC Feilding FP 015 1/01, 31 May 2002.[124] First, we accept unhesitatingly that there is a presumption in favour ofinterpreting legislation in a manner that is consistent with New Zealand's obligationsunder international instruments such as the UNCRC. But the words of the domesticlegislation must be capable of being interpreted in the manner contended for.69 In thiscase, we do not consider that the Act can reasonably be read in the manner proposedby Mr Keith.[125] Second, the UNCRC defines a child as a person below the age of 18.The UNCRC is not directly relevant to adoption applications in respect of 18 and19 year olds, and provides no guidance on the boundary issue that we are addressing.It is difficult to see how the UNCRC can be read as providing support for the makingof adoption orders in relation to a person aged 20.[126] Third, we do not consider that the UNCRC provides any helpful guidance onwhether the power to make an adoption order should extend to a person who no longerqualifies as a child at the time the order is made, if an application for such an orderwas made at a time when they did qualify as a child. The UNCRC sheds no light onthis boundary issue.70 We do not consider that the effective remedy principle providesany real assistance here. It is of course the case that the courts should seek to provideeffective remedies to give effect to the rights of individuals under internationalconventions to which New Zealand is a party. That is one aspect of the interpretativeprinciple referred to earlier. But that principle provides no support for the provisionof a remedy where the rationale for such a remedy is spent as a result of the passageof time. In this case, the primary purpose of an adoption order can no longer be servedin respect of Wendy. So making such an order is no longer an effective and appropriateremedy.[127] In these circumstances, we consider that no adoption order can be made inrespect of Wendy. However, in case we are wrong, we will consider below whether,if she had not yet turned 20, it would have been appropriate to make such an order.69 New Zealand Air Line Pilots' Association Inc v Attorney-General [1997] 3 NZLR 269 (CA) at289; and Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597 at [34].70 As noted above, the Hague Intercountry Adoption Convention does not provide for an intercountryadoption process to continue if the child turns 18 before that process is substantially completed.So the wider international law framework for intercountry adoptions does not support the approachcontended for by Mr Keith.When should an adoption order be made under the Act?The issue[128] The issue on which the High Court granted leave to appeal was whether theHigh Court erred in finding the creation of a new family should be considered thepurpose of an intrafamily intercountry adoption, or inappropriately preconditioned itsassessment of the best interests of the children on this purpose. Mr Keith says that theCourts below erred in treating as a precondition, or significant factor, whether thechildren were in need of a new family. Rather, he emphasises the need to ask whethermaking an adoption order serves the best interests of the children.[129] This issue is closely linked to the question of whether immigration law isrelevant to determination of an application for adoption. The High Court proceededon the basis that the Act should be applied in a way that is mindful of the statute bookas a whole, and the jurisdiction of the Family Court should not be misused tocircumvent the Immigration Act. Mr Keith says that the immigration consequences ofmaking an adoption order are relevant only to the extent that they inform the inquiryinto the best interests of the relevant child.Discussion[130] At the risk of stating the obvious, an adoption order should be made under theAct if, and only if, making the order would give effect to the purpose of the Act.As explained above, we consider that in contemporary circumstances the purpose ofthe Act is best expressed in the terms recommended by the Law Commission: thefundamental purpose of adoption is to provide a child who cannot, or will not, be caredfor by his or her own parents, with a permanent family life. The Act is relevant where(and only where) each limb of that purpose is engaged:(a) the child cannot, or will not, be cared for by his or her own parents; and(b) the proposed adoption will provide the child with a permanent familylife.[131] If both of these limbs of the Act's purpose are engaged, then adoption is, inprinciple, capable of achieving the objectives of the Act. It is then necessary to applythe specific criteria in the Act to determine whether adoption is the appropriateresponse in the case before the court. In particular, it is then necessary to ask whetherthe proposed adoption is in the best interests of the child.[132] The Courts below were right to ask whether making an adoption order wouldbe consistent with the purpose of the Act. It seems to us, however, that when askingthis question, it is important to consider each limb of the purpose separately. If theyare run together, the question of whether the concern at which the Act is aimed(absence of parental care) is present may be overshadowed by an evaluation of theadequacy of current care arrangements, and whether they amount to a "permanentfamily life" for the child, albeit without parents. It seems to us that this is whathappened in the present case. The High Court Judge approached the case on the basisthat the "first and critical question is whether the children can be cared for in a suitablemanner in Ethiopia".71 However, we consider that the first question should be whetherthe concern at which the Act is aimed is present: is the child in respect of whom anorder is sought a child who cannot, or will not, be cared for by his or her own parents?If so, then the next question is whether the proposed adoption is capable of providingthe child with a permanent family life. If so, then the purpose of the Act is engagedand the court can, and should, go on to apply the specific criteria in the Act.[133] In particular, the court must then consider whether making the proposedadoption order would serve the best interests and welfare of the child. It is at this stageof the inquiry that alternative methods of providing a permanent family life for thechild should be considered, including any form of family life that is currently availableto the child, albeit in the absence of parental care. If the existence of some other formof permanent family life is treated as a decisive (and disqualifying) factor at an earlierstage, with the result that the best interests inquiry is not reached, there is a risk thatdecisions about proposed adoption will be made in a way that does not serve theparamount consideration: the best interests of the child.71 High Court judgment, above n 3, at [84].[134] Put another way, it seems to us that the approach adopted in the Courts belowcould preclude making an adoption order in circumstances where:(a) a child has been deprived of the care and support of their parents; and(b) adoption under the Act is the most appropriate way in which alternativecare for the child can be provided, in the best interests of the child, asrequired by the UNCRC; but(c) if an adoption order is not made, some level of care in a permanenthome could be provided for the child in their home country.[135] On the approach adopted in the courts below, it would follow from sub-para (c)above that an adoption order should not be made. That was essentially the approachsuggested by the Attorney-General, who submitted that intercountry adoption isavailable only if there is no suitable carer for the child in their country of origin. We donot think that approach is consistent with the purpose of the Act, or with the approachcontemplated by the UNCRC.[136] Our preferred approach also ensures an appropriate interplay between adoptionlegislation and immigration legislation. Immigration legislation gives way where anadoption order is made precisely because our statute book proceeds on the basis thatif the purposes of the Act are engaged, they prevail over the purposes of theImmigration Act. The private and public interests in protection of the family life ofthe New Zealand resident who adopts the child, and protection of the family life of thechild who is adopted, override the immigration restrictions that would otherwise applyto a person who is not a New Zealand citizen and who wishes to come to New Zealandon a permanent basis. To the extent that some Family Court and High Court decisionsmight be read as treating immigration legislation as a relevant consideration in theadoption context, we respectfully disagree. The focus of the inquiry should be on thequestions identified at [132]–[133] above. If those questions are answered in theaffirmative, it necessarily follows that the adoption is not a device that is being abusedto circumvent the Immigration Act.[137] The approach outlined above also ensures that adoption under the Act is notmisused in a manner that prejudices the relationship between children and parents whoare caring for those children despite difficult material circumstances. As theCRC Committee noted in its General Comment 14, "financial and material poverty, orconditions directly and uniquely imputable to such poverty, should never be the onlyjustification for the removal of a child from parental care but should be seen asa signal for the need to provide appropriate support to the family".72 On our approach,a child in these circumstances can be and (with support) will be cared for by their ownparents, so making an adoption order would not be consistent with the purpose ofthe Act.[138] The inquiry into the welfare and best interests of the child contemplated by theAct (and by the UNCRC) is intensely fact-specific. A broad and comprehensiveassessment is required. Every dimension of the child's wellbeing is relevant, includingthe child's material, physical, educational and emotional needs. We accept Mr Keith'ssubmission that the socioeconomic advantages of adoption may be taken into accountas relevant benefits. We also accept his submission that other benefits of becominga New Zealand citizen, and associated rights and protections (such as obtaining formalidentity documents), may also be relevant advantages, as the English Courts haverecognised.73 Indeed, none of this was in dispute: the Attorney-General accepted thatsocioeconomic and educational advantages, and other advantages from living inNew Zealand, are relevant to the best interests assessment. But of course those factorsare not decisive: they go in the mix along with all other aspects of wellbeing, not leastthe child's physical and psychological wellbeing and emotional needs.[139] We do not consider that the principles that govern the making of an adoptionorder are different in the intrafamily context. But the intrafamily context will often behighly relevant to an assessment of the effects of an adoption order on the interests ofthe child.72 General Comment No 14, above n 22, at [62]. See also Nigel Cantwell The Best Interests of theChild in Intercountry Adoption (UNICEF Office of Research, Florence, 2014) at 73.73 FAS v Home Secretary [2015] EWCA Civ 951, [2016] 1 WLR 407 at [42]–[43]; and In re B(A Minor) (Adoption Order: Nationality) [1999] 2 AC 136 (HL) at 141.Should an adoption order be made in this case?[140] We turn to apply the approach outlined above to the circumstances of thechildren.Is an adoption order consistent with the purposes of the Act?[141] The children are not being cared for by their own parents. They have in effectbeen abandoned by their parents, who may well no longer be alive.[142] Although the children are receiving day-to-day care from Ms May, andmaterial support from Ms Norman, there is no-one exercising legal guardianship inrespect of the children. The difficulties this has contributed to in terms of educationalopportunities, and the potential future difficulties in terms of education and healthcare,were identified in the Child Study Report: see [23] and [29] above. Despite the carethat they are receiving, the short point remains that these are children without parentsor other legal guardians. So the first criterion identified above is met.[143] We consider the second criterion is also satisfied: adoption by Ms Normanwould provide the children with a permanent family life. As Doogue J found, this isa genuine adoption application. It is not simply an immigration stratagem.74Ms Norman intends the children to live with her as part of her family. She is theiraunt. She has been supporting them for many years, and intends to continue to supportthem regardless of the outcome of the application. She is in regular contact with them.She plainly cares for them, and is prepared to go to considerable lengths to translatethat concern into practical steps for their benefit.Applying the criteria set out in the Act: Tessa, Sam and Ana[144] All of the criteria for the making of an adoption order set out in ss 4 to 10 and11(a) of the Act are satisfied in relation to Tessa, Sam and Ana. That brings us to anassessment of the welfare and best interests of those three children, as required bys 11(b). Is it in their best interests to remain in the care of Ms May in Ethiopia, or tobe adopted by Ms Norman and come to live with her in New Zealand?74 High Court judgment, above n 2, at [80]–[81].[145] As Judge Grace and Doogue J held, the children currently have the benefit ofa close and loving relationship with their aunt, Ms May, and a relationship with othermembers of their extended family in Ethiopia. On the other hand, Ms Norman ishardly a stranger to the children. She has met them in person on a number of occasionswhen visiting Ethiopia. She is in regular contact with them using the mobile phoneapp WhatsApp. She supports them materially and contributes to their emotionalsupport. We share the concern of the Courts below about the emotional impact on thechildren of separation from Ms May, who has cared for them since they were born.But they will be living with another family member to whom they are also attached.They are not young children: they are capable of taking active steps to maintaina long-distance relationship with Ms May and other family members in Ethiopia. Inthe future they may well be able to travel to visit their family there.[146] It seems to us that the approach adopted in the Courts below may have led toinsufficient weight being given to the stark difference in living conditions andopportunities for the future that would be provided for the children if they are adoptedby Ms Norman. The difference is not merely one of degree, with life in New Zealandoffering somewhat better living conditions and economic opportunities. The childrencurrently live in very crowded conditions. They have a limited and inadequate diet.There is no money for other necessities such as clothing. There is a real and continuingthreat to their security. They are deprived of education. They have limited access tohealthcare. Aspects of this deprivation are directly linked to the absence of theirparents, and the lack of any other legal guardian. The Child Study Report paints a grimpicture of a life involving significant hardship that is led largely inside thehouse/compound: a situation exacerbated by the increased insecurity in the area andthe recent kidnapping of Sam. The children are deprived of many of the rights relatingto family life and development identified at [57] and [71] above. They are not able toflourish and develop to their fullest potential — their opportunities to flourish anddevelop are extremely curtailed. The frustration of the children's potential willinevitably have a significant adverse impact on their psychological and emotionalwellbeing, in addition to the obvious material consequences.[147] If the children are adopted by Ms Norman, they will have a loving, safe,supportive home with her and her husband here in New Zealand. They will be clothedand fed and cared for. They will become New Zealand citizens. They will have formalidentity papers. They will be able to travel. They will have a right of abode inNew Zealand. They will have access to all the social, educational, healthcare andwelfare opportunities that New Zealand citizens enjoy. They will have a real prospectof leading fulfilling lives as contributing members of a community. All of these are,as we explained above, relevant factors in assessing where their best interests lie.[148] The intrafamily nature of the proposed adoption is also very relevant to thisassessment. The children will be able to maintain their family links and culturalidentity through Ms Norman and her family, and through their connections with thewider Ethiopian community in New Zealand.[149] We were advised from the bar that there are educational facilities known as"M classes" in New Zealand that can be accessed by Ethiopian children, whichprovide a form of transitional education to enable them to participate in mainstreameducation and training opportunities.[150] As against that, we agree with the Courts below that the transition toNew Zealand will undoubtedly be difficult. Each of the children will face significantchallenges in adapting to New Zealand, learning English, and pursuing theiraspirations for the future. But this is an experience Ms Norman has already beenthrough, and is well placed to assist with. We think that considerable weight shouldbe given to Ms Norman's assessment of where the interests of the children lie. Shehas experienced life in Ethiopia. She is familiar with the conditions in which thechildren are currently living. She understands the relationship they have withMs May. And she has experienced the transition to New Zealand as an adult. Herassessment is that it is in the best interests of the children to come here and live withher: that is why she is seeking to adopt them.[151] Significant weight should also be given to Ms May's assessment of the interestsof the children. It seems to us that although she has limited information about life inNew Zealand, she has a realistic appreciation of the limited opportunities andsignificant difficulties facing the children in Ethiopia.[152] Finally, but very importantly, we turn to the views of the children.Section 11(b) of the Act requires us to take their views into account, consistent withart 12 of the UNCRC. Their views should be given careful consideration havingregard to their ages (currently 19, 17 and 15). The Courts below were right to observethat the information the children have about life in New Zealand is limited, and theyare unlikely to fully appreciate the scale of the challenges they will face in adapting tolife here. But the children have a good understanding of the conditions in which theycurrently live. As matters currently stand, they perceive essentially no hope forthemselves in terms of education, employment or any significant existence outside thehome. We consider that substantial weight needs to be given to their view that despiteall the risks and uncertainties involved, they would be better off coming to live withtheir aunt Ms Norman in New Zealand.[153] The factor that weighs most heavily against making an adoption order inrelation to the three younger children is that this seems likely to result in theirseparation from their sister Wendy. As noted at [31] above, the children provide eachother's primary support. They are close-knit. They do most things together. It willbe emotionally challenging for the three younger children to be separated from theiroldest sister. Following the hearing, we formed the view that we did not havesufficient information about the views of the younger children, Wendy and Ms Mayon the proposed adoption in the event that Wendy could not accompany her sisters andbrother. We asked the parties to take steps to obtain further information about thatspecific issue.[154] The parties agreed that further interviews should be conducted with thefour children and Ms May by Ms Kee-Sue, the social worker employed byOranga Tamariki who had previously interviewed the children. Ms Kee-Sueconducted those interviews by WhatsApp on 21 January 2021, with the assistance ofan interpreter. She spoke to Ms May and each of the children separately. We wereprovided with transcripts of the call. They expressed a clear preference for Wendy tocome to New Zealand as well. But if that is not possible, then each of Ana, Sam andTessa confirmed that they would still want to be adopted by their aunt Ms Norman andmove to New Zealand.[155] Wendy was asked if she thought that it would be in the best interests of herthree younger siblings to go to New Zealand without her, if she could not go, and saidit would be "better for them to come, not stay here." She explained that:As you know, here life is very hard. There is no peace. It's very difficult.There is no work, there is no schooling, as I told you the other day. There isfear of security that will happen again like what happened in the past, so it'ssafe and better for the children to come over there.[156] Wendy said she would maintain her relationship with the other three childrenby phone, and it would be easy for them to speak every week or every fortnight.Staying in contact would not be hard. And she would hope that in the future whenthings get better, they would come to see her.[157] Ms May expressed similar views. Asked if it would be in the best interests ofthe three younger children to go to New Zealand without Wendy, her answer was "Yes,I seriously believe so." The reasons she gave included the absence of peace wherethey currently live, with killings and kidnappings "every day". She confirmed that shewould maintain contact with the children by voice and video call, with the assistanceof Ms Norman, and would hope that in the future they would be able to come to visither in Ethiopia.[158] Our overall assessment is that the welfare and interests of the three youngerchildren, assessed comprehensively and in light of all relevant facets of theirwellbeing, will best be promoted by making an adoption order under the Act. In theabsence of their parents, that is the best available option for providing the threechildren with a permanent family life that will enable them to develop and flourish.The best interests of Wendy[159] We would have reached the same conclusion in respect of Wendy, if she wereunder 20. It would be in her best interests — and in the best interests of her threeyounger siblings — if she also could be adopted by Ms Norman and come toNew Zealand. Although she is older, and more capable of leading an independentexistence, she is equally in need of a family environment that fosters her ability todevelop and flourish. A 20-year-old can still benefit significantly from parental care,support and affection, and we believe that Ms Norman would be well placed to meetthat need for Wendy.[160] However, we have concluded that we cannot make an adoption order in respectof Wendy, because of her age. She (and her fellow siblings) are thus in the unfortunateposition that, because it has taken so long (more than three years) for this matter to befinally decided by the New Zealand courts, the outcome that we consider would havebeen appropriate when the application was first made can no longer be achieved.As noted at [11] above, the Attorney-General may wish to draw this unfortunate resultto the attention of the Minister of Immigration, to consider whether the interests of thethree children, who are now New Zealand citizens, and the fact that Wendy would bea New Zealand citizen but for the time taken to resolve these proceedings, providea basis for the exercise of the Minister's discretion to grant a visa that would enableWendy to come to New Zealand with her fellow siblings.Relief[161] For the reasons set out above, we allow the appeal by Ms Norman in relationto Tessa, Sam and Ana. We consider that we have sufficient information to be satisfiedthat the requirements of the Act are met, and that final adoption orders should be made.Neither party suggested that this matter should be referred back to the Family Court.Further delay is undesirable. We will therefore make final adoption orders in thisCourt in respect of the three younger children.[162] We would be grateful if counsel could prepare a draft of the formal orders tobe made under the Act. Those orders should set out the full names of the children.We suggest that the orders also set out their birth dates using the Gregorian calendar,to facilitate the preparation of formal identity documents.[163] Ms Norman seeks an order for costs. We understand that her counsel in thisCourt are acting on the basis that they will be paid out of any costs awarded, but willnot otherwise seek payment from Ms Norman. In particular, legal aid was not soughtbecause counsel did not want Ms Norman to be burdened with further debts to theLegal Services Agency.[164] This was not a truly adversarial proceeding. As we mentioned earlier, counselfor the Attorney-General appeared in order to assist the Court and to ensure theevidence and submissions were properly tested, rather than to oppose the making ofadoption orders. We do not consider that it would be fair to make an order for costsagainst the Attorney-General in those circumstances. Our sympathy and respect forthe generous approach to payment adopted by counsel for Ms Norman, and ourgratitude for the assistance they provided to the Court, do not justify making a costsorder that would not otherwise be appropriate.Result[165] The application for leave to adduce updating evidence on appeal is granted.[166] The appeal is allowed in relation to Tessa, Sam and Ana.[167] The appeal is dismissed in relation to Wendy.[168] The parties are directed to confer in relation to the preparation and sealing offinal adoption orders under the Act in respect of Tessa, Sam and Ana. Leave isreserved to apply to the Court for approval of the orders for sealing.[169] There is no order as to costs.Solicitors:Woods Fletcher, Wellington for AppellantCrown Law Office, Wellington for Respondent