Photo: 123RF
Children being adopted from overseas would be stranded there because they had not made a visa application before this week's rapid law change, according to an immigration and adoption specialist.
Temporary legislation was introduced under urgency on Tuesday, following concerns that an unchecked pathway - where adoptive parents were not being vetted - was leading to children being abused and enslaved.
The majority of New Zealand's adoptions - about 1000 a year - are of overseas children.
The law change to section 17 of the Adoption Act affects children from certain countries not compliant with international adoption protocols, by no longer recognising them under New Zealand's citizenship and immigration processes.
Families in the midst of adoption may find their child cannot now travel from their home country, or find themselves unlawfully in New Zealand once a temporary visa expires, said lawyer Stewart Dalley.
Dalley, himself a father of three adopted children, said he had clients with pending visa applications and court cases, and many others could be affected because the government had used a 'sledgehammer to crack a nut'.
"Obviously, after children have been brought here and trafficked and then abused, then yes, we have to do something about it. There's no doubt about that. My question is as to whether this bill actually delivers on its stated purpose.
"There was a simple fix to this that didn't actually require any legislation to take place, which was to put in the operational manual for both citizenship and for immigration that anybody who applies for a resident visa or citizenship on the basis of being an adopted child, that their adoptive parent needs to provide a police certificate to satisfy that they are fit and proper people. And then that way you actually get at the problem."
Family Court cases also suspended
A separate issue - that the legislation also suspended some adoptions which already go through vetting checks - was also problematic, said Dalley.
Nothing suggested that existing Family Court processes to approve international adoptions from non-Hague Convention countries were inadequate, he added.
"Oranga Tamariki would assess the adoptive parents, they would go check out their house," he said. "They go through a big process - believe me, I've adopted three children, I know it can be a very invasive process. But that would all be done if the court was allowed to actually hear these adoption applications. What we've done with this bill is prevented the court from doing that and prevented that assessment actually taking place. If your stated aim is to prevent harm from children, then why do this?"
Such adoptions would now only be allowed if exceptional circumstances gave the court jurisdiction, and the two examples in the act were the death of both parents, or the death of one and terminal illness of the other - with the only relative who can help living in New Zealand.
"Those exceptional circumstances are extreme - effectively, there is only one person in the world who could actually care for this child and that's the person who's applying to adopt them, and in that scenario they might meet exceptionality. The problem you've got is that you could have an adoption which is in the welfare and best interests of the child, but the court is going to have no power to make an assessment on that application."
The legislation exempts many countries from the announcement, mainly those signed up to certain Hague Convention protocols or which have equivalent processes, such as China, Fiji and Tonga.
But that left many countries out of reach for New Zealanders who may have understandable reasons to adopt there, said Dalley.
"So you could have a New Zealander who is from another country originally, and that is not a Hague Convention country. The adoption pool in New Zealand is very small, so there's hardly any children who are adopted in New Zealand. So their obvious next port of call is going to be to their home country. And the home country, turns out it's not a Hague Convention country. I would make an application through the New Zealand courts to adopt this child. Oranga Tamariki would assess it, the courts would assess it. I don't know why we're stopping doing that other than you don't actually want people to do inter-country adoptions."
He questioned a lack of detail for families who were in a stage of an adoption where they still needed to apply for a child's visa or citizenship.
"If you've adopted the child already, the child's in X other country, but you haven't made the application, is that child now stuck out there? If the child's here and on a temporary visa, are they now stuck? They can't get a new visa, so they're going to be rendered unlawful in the country. You know, what's happening to these kids?
"And you can't make an announcement of this huge proportion and ram it through urgency and then 'oh yeah, we'll get back to you about it'. You know, it's people's lives."
Associate Justice Minister Nicole McKee Photo: RNZ / Samuel Rillstone
In a statement, Associate Justice Minister Nicole McKee confirmed that visa applications lodged after the law came into force will be subject to the suspension, unless the country was exempt.
"I acknowledge that this change will be disappointing for some families. I encourage all those considering or engaged in international adoption to seek expert legal advice to ensure they understand the avenues available to them."
She said the second change - affecting Family Court cases - was made because the court "previously had an unusually broad jurisdiction to hear adoption applications where the parents or child are resident anywhere in the world. If its jurisdiction had not been limited, this pathway could have been used as a workaround to the suspension of section 17 of the Adoption Act."
Her office referred a question about whether the Family Court had not been carrying out its safeguarding role in those cases to the office of the Chief District Court Judge.
McKee said the bill is temporary and she intends to introduce a long-term solution through a bill next year, which would give the public the chance to make submissions to select committee.
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