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Adoption Act 1955

Making of adoption orders

8: Cases where consent may be dispensed with

You could also call this:

"When parents don't need to agree to an adoption"

Illustration for Adoption Act 1955

The court can decide that a parent or guardian does not need to agree to an adoption in some situations. You might not need their consent if they have abandoned, neglected, or ill-treated the child. The court must be satisfied that the parent or guardian cannot be found or is unfit to care for the child.

If a parent or guardian is mentally unwell, the court can serve notice to the person taking care of them. You can appeal to the High Court if the District Court or Family Court refuses to make an order dispensing with consent. The High Court can then decide whether to dispense with consent.

In some cases, the court can make an order for someone to refund money spent on the child's benefit. This order is enforceable like a court judgment. You can find more information about this in section 20 of the Adoption Act.

The court's decision can be reviewed and changed if needed. If you are a parent or guardian whose consent is dispensed with, you can apply to the High Court to revoke the order. The High Court can revoke the order if it thinks it is fair to do so.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM293149.

Topics:
Family and relationships > Adoption and guardianshipFamily and relationships > Children and parentingCrime and justice > Courts and legal help
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7: Consents to adoptions, or

"Who must agree to an adoption"

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9: Withdrawal of consents, or

"Changing your mind about adoption: when you can withdraw your consent"

8Cases where consent may be dispensed with

  1. The court may dispense with the consent of any parent or guardian to the adoption of a child in any of the following circumstances:

  2. if the court is satisfied that the parent or guardian has abandoned, neglected, persistently failed to maintain, or persistently ill-treated the child, or failed to exercise the normal duty and care of parenthood in respect of the child; and that reasonable notice of the application for an adoption order has been given to the parent or guardian where the parent or guardian can be found:
    1. if the court is satisfied that the parent or guardian is unfit, by reason of any physical or mental incapacity, to have the care and control of the child; that the unfitness is likely to continue indefinitely; and that reasonable notice of the application for an adoption order has been given to the parent or guardian:
      1. if a licence has been granted in respect of the child under section 40 of the Adoption Act 1950 of the Parliament of the United Kingdom, or under the corresponding provisions of any former or subsequent Act of that Parliament, or under the corresponding provisions of any Act of the Parliament of any Commonwealth country.

        1. The court may dispense with the consent of any parent or guardian as aforesaid notwithstanding that the parent or guardian may have made suitable initial arrangements for the child by placing the child under the care of the authorities of a children's home, the chief executive, or some other person.

        2. On application by any person having the care of a child, the court may dispense with the consent of a parent or guardian of a child under this section before any application is made for an adoption order in respect of the child; and any order so made shall lapse after the expiration of 6 months from the date on which it is made for all purposes except an application made to the court within that period for an adoption order in respect of the child.

        3. The court may dispense with the consent of the spouse of an applicant for an adoption order if it is satisfied that the spouses are living apart and that their separation is likely to be permanent.

        4. In any case where a mentally disordered person is a parent or guardian of a child in respect of whom an application for an adoption order has been made, service of notice of the application on the manager or administrator of the estate of the parent or guardian, or on the person with whom the parent or guardian resides or under whose care he is, shall (unless the court otherwise orders) be sufficient service thereof for the purposes of this section.

        5. In any case where the District Court or Family Court has refused to make an order dispensing with the consent of any parent or guardian or spouse, the person or persons who sought the dispensation may, within 1 month after the date of the refusal, appeal to the High Court against the refusal; and the High Court may dispense with the consent if it thinks fit.

        6. Any person whose consent is dispensed with under this section may, on notice to every applicant for an adoption order in respect of the child and within 1 month after the making of the order dispensing with consent, make application for the revocation of that order and of any consequential interim order to the High Court; and the court to which the application is so made may in its discretion revoke any such order.

        7. In any case where the court has made an adoption order within 1 month after making the order dispensing with consent, any person whose consent is dispensed with under this section may, on notice to every adoptive parent and within 1 month after the making of the order dispensing with consent, make application for the revocation of that order and the discharge of the adoption order to the High Court; and the court to which the application is so made may in its discretion discharge any such order. All the provisions of section 20, so far as they are applicable and with the necessary modifications, shall apply in connection with any such discharge of an adoption order.

        8. In any case where the High Court revokes any interim order or discharges any adoption order in accordance with this section, that court may include in its order an order for the refund by some person specified in the order of money spent by any adopter or proposed adopter for the child's benefit. Any such order for the refund of money shall be enforceable as a judgment of the court which made the order in favour of the person to whom the money has to be repaid.

        9. In subsections (1) to (5), the jurisdiction of the Family Court may be exercised by a Family Court Judge or Family Court Associate.

        Compare
        • 1908 No 86 s 23
        • 1941 No 26 s 36
        • 1951 No 81 s 15
        • Adoption Act 1950 s 3 (UK)
        Notes
        • Section 8(2): amended, on , by section 13 of the Department of Child, Youth and Family Services Act 1999 (1999 No 82).
        • Section 8(5): amended, on , pursuant to section 129(4) of the Mental Health Act 1969 (1969 No 16).
        • Section 8(5): amended, on , pursuant to section 129(7) of the Mental Health Act 1969 (1969 No 16).
        • Section 8(5A): inserted, on , by section 3 of the Adoption Amendment Act 1965 (1965 No 32).
        • Section 8(5A): amended, on , by section 10(1) of the Family Court (Family Court Associates) Legislation Act 2023 (2023 No 25).
        • Section 8(5A): amended, on , by section 261 of the District Court Act 2016 (2016 No 49).
        • Section 8(5A): amended, on , pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).
        • Section 8(6): amended, on , pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).
        • Section 8(6): amended, on , by section 4(1) of the Adoption Amendment Act 1962 (1962 No 134).
        • Section 8(7): amended, on , pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).
        • Section 8(7): amended, on , by section 4(2) of the Adoption Amendment Act 1962 (1962 No 134).
        • Section 8(8): amended, on , pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).
        • Section 8(8): amended, on , by section 4(3) of the Adoption Amendment Act 1962 (1962 No 134).
        • Section 8(9): inserted, on , by section 10(2) of the Family Court (Family Court Associates) Legislation Act 2023 (2023 No 25).