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NAURU
Title:
In Re Adoption of BR
Court:
Supreme Court of Nauru
Date:
9 August 2013 (revised 28 August 2013)
CRC Provisions:
Article 2: Non-discrimination
Article 3: Best interests of the child
Article 20: Protection of a child without family
Article 21: Adoption
Domestic Provisions:
Constitution of Nauru, Article 3: respect for private and family life
Adoption of Children Act 1965, section 9(1): a Nauruan may not adopt a non-Nauruan child
Other International Provisions:
International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”)
Case Summary:
Background:
A Nauruan couple filed an application to adopt a six-month old baby born to citizens of the People’s Republic of China. The Family Court sought guidance from the Supreme Court of Nauru as to whether the Nauruan Constitution, the CRC or other international conventions would override section 9(1) of the Adoption of Children Act (“Act”), which prohibits Nauruans from adopting non-Nauruan children.
Issue and resolution:
Adoption; discrimination; applicability of international conventions. Nauruans may not adopt non-Nauruan children even if the adoption would be in the best interests of the child. The Nauruan Constitution, the CRC and CERD do not override section 9(1) of the Act.
Court Reasoning:
The Nauruan Constitution does not provide a right for children to be adopted irrespective of race, nationality or ethnic origin. The CRC does not require States to disregard the fact that the adoptive parents are of a different race or ethnicity to the child. Even if it did, Nauru has not incorporated such provisions in its domestic law.
Even if section 9(1) of the Act prima facie constitutes discrimination based on race or ethnic origin contrary to CERD, the court does not have the power to interpret a statutory provision so as to have it comply with international conventions when the provision is clear and unambiguous. Furthermore, even if section 9(1) is contrary to the best interests of the child, nothing in the Constitution or the conventions denies Nauru the right to impose that restriction, notwithstanding that the Act adopts as its touchstone the welfare and interests of the child.
Excerpts Citing CRC and other relevant human rights instruments:
22. … I have concluded that s.9(1) is not rendered invalid or ineffective by virtue of either the Constitution or the CRC, nor, in my opinion, is the provision rendered invalid by virtue of the Convention on the
23. Elimination of All Forms of Racial Discrimination (“CERD”). …
…
36. Nauru ratified the Convention on the Rights of the Child (“CRC”) on 27 July 1994 and signed the Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) on 12 November 2001. Thus, the Adoption of Children Act predated Nauru’s agreement to both conventions.
37. Article 2(1) of the CRC provides that the adopting States must respect and ensure that the rights set forth in it shall be granted to each child “without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”.
38. Article 3(1) of CRC provides, inter alia, that in all actions concerning children, whether undertaken by courts of law, legislative bodies or other institutions, the best interests of the child shall be the primary consideration. Article 3(2) provides that the State parties undertake to ensure to the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of parents, legal guardians and others with responsibilities, and shall take “all appropriate legislative and administrative measures”.
39. Article 20(1) provides that for a child deprived of his or her family environment, or in any case where it would be in the best interests of the child that it not remain in that environment, the child shall be entitled to special protection and assistance provided by the State. Article 20(2) provides that States shall “in accordance with their national laws” ensure alternative care for such a child. Article 20(3) recognises that such care might include foster placement and that “when considering solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background”.
40. The only Article specifically addressing the question of adoption, in the CRC, is Article 21. Article 21(a) requires the States to ensure that the best interests of the child be the paramount consideration. The Article addresses issues such as informed consent by parents and the particular issues surrounding inter-country adoption, but does not address the specific issues that arise in the present case. In particular, there is no express provision concerning the desirability or undesirability of the State imposing a policy prohibiting adoptions by persons of different race or ethnicity to that of the child.
41. In my opinion, s.9(1) is neither inconsistent with the letter nor the spirit of the CRC. The issue is simply not addressed in the CRC. Whilst the overriding principle that States must act in the child’s best interest has been endorsed by ratification, nothing in the CRC dictated that the fact that the adopting parents were of a different race or ethnicity to the child must be regarded as irrelevant. But even if it should be taken that the spirit of the CRC dictated that that was the appropriate approach to adopt, a State might choose not to adopt that approach in its domestic legislation. In this case, the Adoption of Children Act pre-dated the CRC, and its ratification by Nauru, but the legislature has chosen to retain it.
…
47. Applying the approach of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh, conventions do not form part of domestic law unless incorporated into local law by statute.
…
51. … where there is ambiguity a statutory provision will be interpreted by reference to the Conventions, so as to adopt an interpretation in conformity with the Convention, but where there is no ambiguity then even if the statute was inconsistent with the ratified Conventions the plain words of the statute would have to be given effect. There is no overriding basis for the Court to apply an interpretation to the legislation so as to have it comply with the principles stated in the international covenants when the legislation is clear and unambiguous.
…
69. It cannot be presumed that the restriction imposed by the legislature in s.9(1) was inimical to the best interests of this child, or all children in a similar situation, but even if it was so, nothing in the Constitution or the Conventions denies the Republic the right to impose that restriction, notwithstanding that the Act adopts as its touchstone the welfare and interests of the child.
Notes:
The Supreme Court declined to follow its earlier decision in In re Lorna Gleeson, which held that the Nauruan Constitution and the CRC invalidated a different statutory provision prohibiting non-Nauruans from adopting Nauruan children.
CRIN Comments:
CRIN believes that the best interests of the child must be a primary consideration in any adoption proceeding. While there is no parental right to inter-country adoption, Article 21 recognises that inter-country adoption may be considered as an alternative means of care if the child cannot be suitably cared for in their country of origin. In this case, the Court’s reasoning is not consistent with the CRC as it fails to consider whether adoption of the non-Nauruan child by the Nauruan couple would be in the child’s best interests.
Citation:
[2013] NRSC 11
Link to Full Judgment:
http://www.paclii.org/nr/cases/NRSC/2013/11.html
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.