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In re Lorna Gleeson [2006] NRSC 8; Miscellaneous Cause No 4 of 2006 (15 December 2006)

IN THE SUPREME COURT OF NAURU

MISC. CAUSE NO.: 4/2006

In the matter of an application to state a case
under Section 52 Civil Procedure Act 1972

LORNA GLEESON
APPLICANT

Pursuant to Section 52 of the Civil Procedure Act two cases have been stated for the opinion of the Supreme Court. Received by the Court on the 31st October but undated is a case stated by Lorna Gleeson. The second case dated 9th November is stated by the Family Court. Both cases arise out of an application by Mrs. Gleeson, a Nauruan citizen, for the adoption of an infant Nauruan boy, Orata Tatum.

All necessary consents have been obtained for the adoption. Mr. Peter MacSporran in his capacity as General Counsel for the Republic has assured the Court that the authorities accept the adoption to be in Orata Tatum’s bests interests. It would also be in conformity with common Nauruan practice (Customs and Adopted Laws Act Section 3.)

Tatum’s natural father is the younger brother of the applicant’s first husband, Mungane, who died in 2003. The applicant and Mungane had no children.

The problem is that Mrs. Gleeson’s present husband, Mr. Eric Gleeson, is not a Nauruan citizen.

Section 9 (2) of the Adoption of Children Ordinance 1965:

"Where the applicant is a married Nauruan, an adoption order shall not be made unless the child in respect of whom the application is made is a Nauruan and the spouse of the applicant is a Nauruan."

If Section 9 (2) applies then an Order for adoption pursuant to Section 4 of the Ordinance cannot be made by the Family Court.

The objects of the Ordinance are not explicitly stated but its purport is that the best interests of the child are paramount. An indication of this is found in Section 6 (2):-

"The provisions of paragraph (b) of the last preceding sub-section do not prevent the Central Court making an adoption order where the Central Court is of opinion that, in the circumstances of the case, the interests of the child will best be promoted by making the adoption order."

I accept that there is no doubt that the adoption would be in a child’s best interests.

The clause in Section 9 (2) "and the spouse of the applicant is a Nauruan," if regarded, will mean that the best interest of this child cannot be served.

Mr. Nimes has appealed to the United Nations Convention on the Rights of the Child and to Article 3 of the Constitution of Nauru.

I am told that Nauru is a signatory to the Convention. Whether it has become part of the domestic law of Nauru is a moot point. Whether it is or is not part of our domestic law, I feel able to take the Convention into account in considering the cases stated.

Article 3 of the Constitution protects the right of the individual to respect for "his private and family life."

I have come to the conclusion that in this case – each case must be considered separately on its own merits – Article 3 is sufficient to override Section 9 (2) of the Adoption of Children Ordinance. Pursuant to Article 2 (2) of the Constitution the clause in Section 9 (2) of the Ordinance "and the spouse of the applicant is a Nauruan" is inconsistent with Article 3 of the Constitution and is, in this case void.

I answer first the questions in Lorna Gleeson’s case:-

1. (a) Yes

(b) Yes

2. No need to answer.

I answer the question by the Family Court:

"The interpretation by the Family Court of Section 9 of the Adoption of Children Ordinance 1965 was wrong because that section is inconsistent with Article 3 of the Constitution of Nauru and is contrary to the spirit of the United Nations Convention on the Rights of the Child."

The clause "and the spouse of the applicant is a Nauruan" in Section 9 (2) of the Ordinance should not be regarded as applying to the application by Lorna Gleeson to adopt Orata Tatum.

THE HON. ROBIN MILLHOUSE QC.,
CHIEF JUSTICE

15TH DECEMBER 2006