Bahri v Adoption Services  NZFC 8164
Published 16 May 2018
Application for adoption — adoption from Afghanistan — not a signatory country to the Hague Convention — Adoption Act 1955, ss 3, 7, 8, 10 & 11 —Lynch v Peach (1986) 4 NZFLR 75 (HC) — Re H (a minor) 1982 3 All ER 84 — Henderson v Attorney-General  NZHC 1971.
The applicants sought to adopt two young people aged 16 and 18 from Afghanistan; the siblings of one of the applicants. Both parents of the children were deceased. At the time of the application the children were living in Afghanistan with their sister and brother in law who had limited resources and were unable to provide for them. The court noted that Afghanistan was not a signatory to the Hague Convention and that the Adoption Act provisions must apply to the case.
The court found that it had a discretion to make a final adoption order where special circumstances made it desirable to do so. The applicants sought to adopt the children as their current caregivers in Afghanistan were unable to provide for them, the applicants were fit and proper people and they had concerns about the risks for the children in Afghanistan.
The court had regard to affidavits attesting to the attachment between the applicants and the children, as well as from the brother of one of the applicants who attested to his desire and ability to assist financially in the care of the young people in New Zealand. The court also noted a social worker's report, which was obtained under s10 where the social worker was unable to make a recommendation regarding the adoption as no child study from Afghanistan could be obtained; and a report from a clinical psychologist who had obtained relevant background information and the wishes of each child.
The court, with reference to three previous decisions, found that it could make an adoption order in the absence of a child study report where sufficient information was available to mitigate the absence of the report.
Having found that sufficient information had been obtained, the court found that the applicants were fit and proper parents to care for the young persons, that the welfare of the young persons would be promoted by the adoption and that applicants would support the religious denomination of the young persons as they practiced the same religion.
The court found that although the adoption was most likely for the purposes of immigration, the applicants were also motivated by the emotional, social and legal benefits of adopting the children to create a unified family.
Final adoption orders were made in respect of each of the two young persons in favour of the applicants.
Judgment Date: 19 October 2017.
* * * Note: Names have been changed to comply with legal requirements * * *