ACT Supreme Court Considers Right to Family Life under ACT Human Rights Act

In the Matter of an Adoption of D [2008] ACTSC 44 (15 May 2008) A decision of the ACT Supreme Court has considered the scope of the right to family life and protection in the context of adoption proceedings.

Facts

This matter concerned an application under s 35 of the Adoption Act 1993 (ACT) to dispense with the consent of the birth father to the adoption of his young child by the new partner of the child’s birth mother.  The birth father was a citizen of Papua New Guinea who was residing in Australia when the child was born.  He had occasional contact with the birth mother and child in the early months following the birth (he was said to be often intoxicated and sometimes violent during these visits, although not towards the mother or child), but had not maintained any contact since that time and had never provided any financial or other support for the child.  Some attempts had been made to locate the birth father without success, and it was not clear whether he had returned to Papua New Guinea.

Decision

Justice Refshauge granted the application to dispense with the consent of the birth father to the adoption.

Justice Refshauge acknowledged the serious nature of the adoption process and the severing of ties between a parent and child.  He noted that the gravity of the process was reinforced in the ACT by s 11 of the Human Rights Act 2004 (ACT) which provides that ‘The family is the natural and basic group unit of society and is entitled to be protected by society,’ which his Honour considered ‘amounts to a right to family life.’  Justice Refshauge went on to note the international jurisprudence on this issue (at paras7 to 8):

As was said by the European Court of Human Rights in considering art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (slightly differently worded but to the same effect) in Scozzari and Gunta v Italy (13 July 2000, Applications Nos 39221/98 and 41963/98) at [148]:

… it is an interference of a very serious order to split up a family.  Such a step must be supported by sufficiently sound and weighty considerations in the interests of the child.

The seriousness is underlined by the consequences of an adoption order which has the effect of severing the existing legal parent/child relationship and substituting a new legal parent/child relationship: Re Adoption of SS (2002) 167 FLR 238 at [7].

Such an approach does not, of course, mean that adoption is inconsistent with the rights of children to have respected the right to protection including the protection of the family.  Indeed, as the UN Human Rights Committee stated in its General Comment No 17 made in its Thirty-fifth session (1989) on art 24 of the International Covenant on Civil and Political Rights (which is the source of s 11(2) of the Human Rights Act 2004: see schedule 1 of that Act):

… in cases where the parents and the family seriously fail in their duties, ill-treat or neglect the child, the State should intervene to restrict parental authority and the child may be separated from his (sic) family when circumstances so require.

In this context, art 21 of the Convention on the Rights of the Child 1989 recognises that adoption is a means for appropriate protection of children in proper circumstances.  It also sets standards against which adoption practice is appropriately assessed: B v G [2002] 3 NZLR 233 at [43].

His Honour went on to consider the Australian authorities on the issue of dispensing with the consent of a birth parent, and the criteria under s 35 of the Adoption Act, without further reference to the Human Rights Act.

Comment

This decision is an interesting one as the first decision of Justice Refshauge (former DPP of the ACT and a recent appointment the Supreme Court) to touch upon the Human Rights Act.  His Honour’s detailed references to international human rights jurisprudence show a refreshing depth of research which has not often been found in the passing references to the Human Rights Act which characterise many of the ACT cases.

Nevertheless, while acknowledging the international authorities relating to the interaction between the right to family and adoption in general, his Honour did not go on to consider whether these might affect the interpretation of s 35 of the Adoption Act, or the extent to which the Australian jurisprudence on dispensing with consent was consistent with this right.  While there seems a strong case that the adoption would be in the best interests of this child, and consistent with his right to protection under s 11 of the Human Rights Act, it seems arguable that the right to a fair trial in s 21 of the Human Rights Act might also have some relevance to the ex-parte nature of these proceedings, where evidence about the birth father’s conduct was being presented in a context where it had not been established that ‘reasonable inquiry’ had been made to establish his whereabouts, and he had not been given the opportunity to respond to the allegations or to argue that he had a ‘reasonable excuse’ for the failing to discharge his parental obligations.

The decision is available at http://www.courts.act.gov.au/supreme/judgments/adoption%20of%20d.htm.

Gabrielle McKinnon is Director of the ACT Human Rights Act Research Project (http://acthra.anu.edu.au/index.html)