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Abstract
Since Samoa's independence in 1962, customary law has been formally recognised by the State legal system. However, there are tensions between customary law and State law, which are particularly evident in family matters, where the influence of custom and culture is strong. One area where tensions are increasingly acute is adoption. In Samoa, most adoptions, or ‘vae tama’ as the closest customary equivalent is called, take place within the extended family according to customary law and practice. Overseas adoptions, which, unlike the customary process, take children away from their cultural roots, are a particular cause for concern. In 2005, the death of a child awaiting adoption by overseas adopters focused attention on the formal adoption regime in Samoa and provided an impetus for amendment of adoption law. However, whilst this introduced some level of protection for children, it did not result in reconciliation of the underlying tensions between customary and State laws. This article considers the tensions between the different legal systems in the context of vae tama and adoption, and puts forward some suggestions for reform. It considers the extent to which each system protects the rights of the child and the child's best interests.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. Constitution of the Independent State of Western Samoa 1960 (‘Constitution of Samoa 1960’), Arts 111 and 114. The Constitution came into force on 1st January 1962.
2. Convention on the Rights of the Child; opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
3. Statistics provided by the Ministry of Justice and Courts Administration, Samoa, 01/2014.
4. Infants (Adoption) Amendment Act 2005 and the Infants (Adoption) Regulations 2006 (Samoa).
5. Samoa (Constitution Amendment) Act (No 2) 1997.
6. It consists of two main islands, Savai'i and Upolu, as well as seven small islets. It has a land area of 2934 km2 and a population of approximately 214,000.
7. In 1881, Chief Malietoa proclaimed himself paramount chief and king: Sia'aga v OF Nelson Properties Ltd (Unreported, Court of Appeal, Samoa, Baragwanath, Slicer, Fisher JJA, 19 September 2008), accessible via www.paclii.org at [2008] WSCA 14.
8. Since independence, Samoa has been divided into 41 territorial constituencies for election purposes: Constitution of Samoa, Art 44. The boundaries are set out in the Territorial Constituencies Act 1963.
9. About 47% of the population belongs to the Congregational Christian Church of Samoa, while the Roman Catholic and Methodist Churches each account for 20% of the population (Atlapedia Online n.d.).
10. About 80% of the land is customary (Taule'alo, Fong So'oialo, and Setefano Citation2002).
11. Literally, ‘you and your family’.
12. The Internal Affairs Amendment Act 2010 amended the term ‘Pulenuu’ to Sui o le Nuu. The definition and duties remain the same.
13. Internal Affairs Act (Samoa) 1995, Section 14.
14. Internal Affairs Act (Samoa) 1995, Section 15.
15. Signed 20 November 1989.
16. 16 December 1966, 999 U.N.T.S. 171; S. Exec.Doc. E, 95-2 (1978); S. Treaty Doc. 95-20, 6 I.L.M. 368 (1967), accession 16 December 1966.
17. 18 December 1979, 1249 U.N.T.S. 13; 19 I.L.M. 33 (1980), signed 18 December 1979.
18. 28 July 1951, 189 U.N.T.S. 150, accession 28/07/1951.
19. Signed 13 December 2006.
20. Wagner v Radke (Unreported, Supreme Court, Samoa, Sapolu CJ, 19 February 1997), accessible via www.paclii.org at [1997] WSSC 6.
21. Art 15.
22. In law, being under the age of majority is regarded as a legal disability with a number of consequences, for example, a limited ability to enter into a binding contract: see e.g. Infants Ordinance 1961, Part V. The age of majority in Samoa is 21: Infants Ordinance 1961, Section 2.
23. Attorney-General v Olomalu [1980–93] WSLR 41; Lafaialii v Attorney-General (Unreported, Supreme Court of Samoa, Sapolu CJ, 8 May 2003), accessible via www.paclii.org at [2003] WSSC 8.
24. Constitution of Samoa 1960, Art 15.
25. The Court of Appeal went on to say that Samoa might see it fit to adopt universal suffrage like other commonwealth countries in the future and four years later, in 1990, Samoa amended the Electoral Act to embrace universal suffrage.
26. (Unreported, Court of Appeal of Samoa, Cooke, P, Casey and Bisson JJA, 18 August 1995), accessible via www.paclii.org: [1995] WSCA 12; digested in [1996] 2 CHRLD 257.
27. Lafaialii v Attorney-General (Unreported, Supreme Court of Samoa, Sapolu CJ, 8 May 2003), accessible via www.paclii.org at [2003] WSSC 8.
28. Marriage Act 1961 (Samoa); Marriage Ordinance 1961 (Samoa), Maintenance and Affiliation Act 1967 (Samoa); Divorce and Matrimonial Causes Ordinance 1961 (Samoa).
29. Constitution of Samoa 1960, Arts 111 and 114.
30. Marriage Act 1961 (Samoa); Marriage Ordinance 1961 (Samoa), Maintenance and Affiliation Act 1967 (Samoa); Divorce and Matrimonial Causes Ordinance 1961 (Samoa).
31. Infants Ordinance 1961, Section 3. See Elisara v Elisara (Unreported, Supreme Court, Sapolu CJ, 22 November 1994), accessible via www.paclii.org at [1994] WSSC 14.
32. The concluding declaration to the Constitution of Samoa 1960 declares Samoa to ‘be an Independent State based on Christian principles and Samoan custom and tradition’.
33. Child Care and Protection Bill 2014 (Samoa), clause 4(3) on the Guiding Principles of the Bill.
34. Child Care and Protection Bill 2014 (Samoa).
35. Art 111(1). Customary law was part of the law prior to independence: Samoan Public Trustee v Collins [1030-49] WSLR 70.
36. Mose v Mosame [1930–49] WSLR 140. See also Corrin and Paterson (Citation2011, Chapter 3).
37. See e.g. Mauga v Leituala (Unreported, Court of Appeal, Samoa, Cooke, P, Casey and Bisson JJA, March 2005).
38. Infants Ordinance 1961 (Part II) v Chong (Unreported, Supreme Court, Samoa, Sapolu CJ, 14 May 1998), accessible via www.paclii.org at [1998] WSSC 9.
39. 1961, Sch.
40. Re Application for Adoption by Solomona (unreported, District Court, Samoa, Vaai J, 1 January 1999), accessible via www.paclii.org at [1999] WSDC 1.
41. See Jackson (Citation1979, para 1138); Brooks v Blunt [1923] 1 KB 257. However, it is relevant to the interpretation of adoption legislation and in so far as it sheds any light on the court's approach to the exercise of any discretion under the legislation. The limited case law on point is referred to in the relevant parts of this article.
42. See Wagner v Radke (Unreported, Supreme Court, Samoa, Sapolu CJ, 19 February 1997), accessible via www.paclii.org at [1997] WSSC 6.
43. The American adoption agency, Focus on Children, was one of the two established without approval in Apia and was the only one operated by an expatriate. This agency Focus on Children negotiated with a relatively small number of Samoan parents for their children to be adopted by overseas adopters. The agency carried out the process of adoption under the Act and made the handover arrangements. See further TVNZ (Citation2005).
44. Infants (Adoption) Amendment Act 2005.
45. Infants Ordinance 1961, Section 2, as amended by the District Courts Amendment Act 1992/3.
46. Infants Ordinance 1961, Section 2.
47. Infants Ordinance 1961, Section 7.
48. ‘Overseas adoption’ is defined by the amended Section 2. A further amendment to the law, the Infants Amendment Bill 2015, which is currently before Parliament, requires at least one of the applicants for an adoption order to be a Samoan citizen in order to avoid the stringent procedures required for ‘overseas adoptions’.
49. Infants (Adoption) Regulations 2006, Regs 5 and 6.
50. Appointed under the Internal Affairs Act 1995, Section 14.
51. Section 7A(4). There is a penalty of 10 penalty units for failing to comply.
52. Infants Ordinance 1961, Section 7(4).
53. Infants Ordinance 1961, Section 7(2).
54. Infants Ordinance 1961, Section 7(3).
55. Infants Ordinance 1961, Section 3. See Elisara v Elisara (Unreported, Supreme Court, Sapolu CJ, 22 November 1994) [1994] WSSC 14.
56. Infants Ordinance 1961, Section 7(3).
57. Infants Ordinance 1961, Section 8(a).
58. Infants Ordinance 1961, Section 8(c).
59. Infants Ordinance 1961, Section 8(d).
60. Infants Ordinance 1961, Section 8, Proviso.
61. (Unreported, District Court, Apia, Vaai, J, 1 January 1999), accessible via www.paclii.org at [1999] WSDC 1.
62. Re S and M (Unreported, Supreme Court, Samoa, Sapolu CJ, 16 June 2000), accessible via www.paclii.org at [2000] WSSC 42.
63. Infants Ordinance 1961, Section 9.
64. Infants Ordinance 1961, Section 9.
65. Infants Ordinance 1961, Section 10(2).
66. Infants Ordinance 1961, Section 10(2).
67. Stowers v Stowers (Unreported, Supreme Court, Samoa, Sapolu CJ, 14 June 2010) accessible via www.paclii.org at [2010] WSSC 30. The decision is not contestable on the grounds of discrimination as it was based on a statutory provision in force at independence (Administration Act 1952 (NZ), Section 56 (1) (a)) and the Constitution of Samoa 1960 shields pre-existing law from the anti-discrimination provision: Art 15(4).
68. Infants Ordinance 1961, Section 10(1).
69. Infants Ordinance 1961, Section 11(1).
70. Infants Ordinance 1961, Section 11(2).
71. Re Utumapu (Unreported, District Court, Apia, Nelson, DCJ, 30 November 2004), accessible via www.paclii.org at [2004] WSDC 6.
72. Section 9A(1).
73. A code has been drafted, but is yet to be finalised. The two unauthorised adoption agencies, whose activities led to the 2005 Amendments, have ceased to operate.
74. Section 9A(4).
75. Section 9A(5). The penalty is a fine of up to 1000 penalty units or imprisonment of up to two years, or both. The specification of penalties in Sections 7A and 9A is in contrast to Section 9, which prohibits payment in consideration of adoption but, as mentioned above, fails to state a penalty for this.
76. Infants (Adoption) Regulations 2006, Regulations 5 and 6.
77. Infants (Adoption) Regulations 2006, Regulations 5 and 6.
78. Infants (Adoption) Regulations 2006, Parts 2 and 3.
79. Infants (Adoption) Regulations 2006, Regulation 6 and note to Regulations.
80. Infants Ordinance 1961, Section 7(3).
81. Wagner v Radke (Unreported, Supreme Court, Sapolu CJ, 19 February 1997), accessible via www.paclii.org at [1997] WSSC 6.
82. (Unreported, Court of Appeal, Samoa, Lord Cooke, Casey and Bisson JJA, 27 August 1999), accessible via www.paclii.org at [1999] WSCA 1.
83. Attorney General v Maumasi (Unreported, Court of Appeal, Samoa, Lord Cooke, Casey and Bisson JJA, 27 August 1999), accessible via www.paclii.org at [1999] WSCA 1. See also Police v Kum (Unreported Court of Appeal, Samoa, Lord Cooke, Casey and Bisson JJA, 18 August 2000), accessible via www.paclii.org at [2000] WSCA 6.
84. (Unreported, Supreme Court, Nelson J, 19 November 2008), accessible via www.paclii.org at [2008] WSSC 96.
85. (Unreported, Supreme Court, Nelson J, 2 July 2009), accessible via www.paclii.org at [2009] WSSC 69.
86. Leituala v Mauga ( Unreported,Supreme Court, Vaai J, 13 August 2004), accessible via www.paclii.org at [2004] WSSC 9 where Art 16 of the Convention (no arbitrary or unlawful interference with a child's privacy, family, home, honour and reputation) was relied on to uphold a substantial award of damages against a Village Council which banished the plaintiff and his family without due cause. In the course of a judgment affirmed on appeal.
87. See also the UN Guidelines on Alternative Care: GA Res 64/142, UN GAOR, 64th session, 65th plenary meeting. Agenda item 64, Supp no. 49, UN Doc A/RES/64/142 (24 February 2010).
88. See Pound Pup Legacy (Citation2005).
89. (Unreported, Supreme Court, Samoa, Sapolu CJ, 14 May 1998), accessible via www.paclii.org at [1998] WSSC 9.
90. (Unreported, District Court, Samoa, Nelson DCJ, 30 November 2004), accessible via www.paclii.org at [2004] WSDC 6.
91. (Unreported, Supreme Court, Samoa, Vaai J, 2 March 2007), accessible via www.paclii.org at [2007] WSSC 13.
92. (Unreported, Court of Appeal, Samoa, Baragwanath, Salmon, and Paterson, JJ, 14 September 2007), accessible via www.paclii.org at [2007] WSCA 5).
93. Email from Deputy Public Trustee to Lalotoa Mulitalo, 25 November 2014.
94. Recommendation 15: The government to assist with the costs of necessary improvements to a relative's home where a child is placed with a relative. (SLRC 2013, 16).
95. Ombudsman (Komesina o Sulufaiga) Act 2013, Section 33.