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The Adoption Act 1955 – The Statutory Guillotine from Tikanga and Whakaapa

The enactment of the Adoption Act 1955 (AA) has led to the severance from whakapapa for many tamariki in Aotearoa New Zealand. The effect of this severance on Māori tuakiri (identity) and hauroa (wellbeing) is evident in the below experiences:

- “[I] felt invisible as Māori”.[1]

- “It was like a physical pain”.[2]

- “I do not have a tūrangawaewae (a place to belong)”.[3]

When the AA was enacted, Aotearoa essentially viewed itself as a monocultural country, evident through the multitude of anachronisms spread throughout the Act. Consequently, the Act completely disregards the Crown’s obligation to Māori as tangata whenua and as partners under the Te Tiriti o Waitangi.[4]

With Aotearoa finally realising its bicultural heritage, it is clear that the Act needs urgent reform.


Background Behind the Adoption Act

The 1955 Act reflects the ‘complete (clean) break’ theory. This theory states that all children are born a ‘blank slate’ and any ‘shameful’ genetic traits of the child could be defeated by a ‘nurturing’ upbringing.[5]In effect, the Act provided that on adoption, all contact and knowledge of the child’s biological parents was to be severed.[6]Effectively, a child was treated as property – where all the legal rights over the child were conceded by the biological parents and transferred to the adopting parents. Family arrangements that did not conform to the above narrative were excluded from recognition at law by the Adoption Act 1955.[7]

The stance of Māori Tikanga Within the Current Adoption Regime

The way some Māori view parenting is strikingly different from that provided for in the current adoption scheme. They do not view tamariki as property, but as taonga, a treasure which is to be treated with aroha (love) and whakaute (respect).[8]Raising tamariki is viewed as a collective responsibility by whānau, hapū, and iwi, rather than the sole responsibility of the biological parents:[9]

“Māori view many homes but still one whānau”.[10]

Consequently, the physical, social, and spiritual wellbeing of a child is attributed to this wider whānau.[11]

This view of parenting is reflected in Māori customary adoption arrangements, ‘whāngai’. The taitamaiti is raised by mātua whāngai, whānau other than their biological parents. The matua whāngai and biological parents maintain an ongoing relationship with the taitamaiti to ensure that they “[do] not lose their culture, links with their birth parents or their rights of succession”.[12]The retention of this connection allows the tamaiti whāngai to develop a sense of identity, belonging, and connection with their birth heritage.

The development of our identity begins from a young age. Having a strong sense of identity is something that brings tamariki comfort and security. If a taitamaiti has a clear sense of ‘who they are’, it makes it easier for them to make friendships and connect with others. The ‘narrative identity theory’ explains that humans construct identity off their coherent life story.[13]For Māori, a large contributor to identity is their connection to their whakapapa and to the land. This emphasised in the use of the pepeha at the beginning of a hui. Where tamariki are deprived of knowledge about their roots or excluded from lived cultural experiences there is a clear obstruction on the development of identity.


What are the specific issues with the Act?

“At the heart of the issue is a profound misunderstanding or ignorance of the place of the child in Māori society and its relationship with whānau, hapū, iwi structures”.[14]


Adoption law is out of step with the current scheme of family legislation.

Since the enactment of the Adoption Act in 1955, Aotearoa has come some way to embrace tikanga within family law. The Adoption Act is outdated and incompatible with this other legislation concerning the care of children.

At the root of this issue is the absence of the ‘paramountcy principle’ in the Adoption Act- the cornerstone consideration of all family law decisions. The ‘best interests’ of the child should be paramount. The lack of this principle is attributed to drastic circumstances as evident in our history. In essence, wealth was valued over culture as the primary factor in the raising of a child.[15]Furthermore, the limited recognition of Māori values of whānau at law weakened their standing in the adoption process. This led to a large amount of cross-cultural adoption for Māori tamariki, removing taitamaiti from Māori culture.

The impact on Māori who experienced closed adoption illustrates that facets of formal adoption are unsuitable for Māori and do not uphold the best interests of the child. Tikanga and whakapapa need to be at the forefront of adoption law. The ‘best interests’ principle currently lacks strength. The definition of this principle needs to locate tikanga within the ‘best interests’ of Māori children.

Secrecy

The current legislation instils inherent secrecy into the adoption process. Despite an understanding that openness is essential to protect whakapapa, our current adoption legislation does not promote this belief. When an adoption order is made, a new certificate is issued placing the complete legal rights of the child in the adoptive parent’s name. The first birth certificate is sealed until the age of 20 when access is authorised under the Adult (Adoption) Information Act 1985.[16]This needs to be remedied to promote and protect tamariki’s sense of identity which stems from this knowledge.[17]


Inconsistent with the view of Māori parenting

The current legislation is monocultural and does not reflect our understanding that there are “real and fundamental differences between Māori ideals and practices regarding family”.[18]The Act does not recognise or preserve tikanga in the quantity that is required to respect the Crown’s obligations under Te Tiriti o Waitangi. This was emphasised in the claims bought to the Waitangi Tribunal which argued that the Adoption Act 1955 was in breach of the Crown’s obligations under Article 2 of the Treaty.[19]This article confers that Māori retains tino rangatiratanga (chiefmanship) over taonga. The dismissal of whāngai practice and whānau consultation under the Act is clearly in breach of this article.[20]The Adoption regime needs to work alongside tikanga to respect fundamental differences in the Māori whānau.


Conclusion

Aotearoa has a responsibility to protect its tamariki. We need to protect the whakapapa and principles of tikanga in the journey through the adoption regime. Everyone has the right to an identity. Our adoption law needs to safeguard that right. It is concerning that we have been so slow to react to the recurrent issues emerging from our adoption regime. Despite the Law Commission recommendations in 2000, there has been little movement towards reform. This is troubling as the adoption regime directly impacts children - arguably the most in need of protection.

“He aha te mea nui o te ao. He tāngata, he tāngata, he tāngata

What is the most important thing in the world? It is people, it is people, it is people.”[21]


Jessica Macdonald and Maddie Story

[1]Te Aniwa Hurihanganui “How closed adoption robbed Māori children of their identity” (14 July 2019) www.rnz.co.nz. [2]Te Aniwa Hurihanganui, above n 4. [3]Allan Cooke, above n 3 NZFL at 121. [4]Mark Henaghan & Bill Atkin Family Law Policy in New Zealand(5th ed, LexisNexis, Wellington, 2020) at 67. [5]At 64-65. [6]See the Adoption Act 1955, s 16 (2)(a). [7]NZ Law Commission Adoption: Options For Reform(Preliminary Paper 38, October 1999) at 82-84. [8]Metge “Ko Te Wero Māori — the Māori Challenge” in Family Court, Ten YearsOn (New Zealand Law Society, 1991) at 24-25. [9]Cooke, above n 3, at 122. [10]Mark Henaghan Adoption – time for changes(2006) 5 NZFLJ 131 at 131. [11]Cooke, above n 3, at 122. [12]Haenga-Collins, above n 8, at 65. [13]Ruth Ballantyne “Becoming a Parent” (Child and Family Law Lecture, University of Canterbury, New Zealand, April 2020). [14]Rangihau, above n 23, at 7. [15]Te Aniwa Hurihanganui, above n 4. [16]Adult (Adoption) Information Act 1985, s 4. [17]Catherine Moody “Adoption Law in New Zealand: The Rights and Well-being of the Child” (2008) 1 NZLSJ, at 496. [18]Cooke, above n 3 at 121. [19]NZ Law Commission, above n 14, at 87. [20]Claudia Orange “Treaty of Waitangi - Interpretations of the Treaty of Waitangi” (20 Jun 2012) Te Ara – The Encyclopedia of New Zealand < www.TeAra.govt >. [21]Matua Raki “He aha te mea nui o te ao. He tāngata, he tāngata, he tāngata” (December 2015) Te Poute Whakaaro Nui <https://www.tepou.co.nz>.

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