Samoan children trafficked through NZ: court

CRICKET SKILLS: School children from the Leauva'a Primary School learn basic cricket skills as part of a ICC/Australia/Samoan cricket development program in Apia, Samoa.
CRICKET SKILLS: School children from the Leauva'a Primary School learn basic cricket skills as part of a ICC/Australia/Samoan cricket development program in Apia, Samoa.

Australia's Family Court has heard evidence of young Samoan children being trafficked through New Zealand in order to be adopted in Australia.

Yesterday Justice Ian Loughnan of Family Court ruled a four-year-old girl, who had been informally given to a Sydney couple under a traditional Samoan adoption arrangement, should return to her parents in Samoa.

A subterfuge had been used to get the girl a New Zealand passport and the court heard the same process had been used for other children.

The girl known as ''S'' had been promised to a childless great aunt and her husband before birth, but had lived with her parents and seven siblings in Samoa until she was nearly two years old.

Within days of delivering S to the couple in western Sydney in February 2009, the girl's mother decided she wanted to keep the child. But before she could leave Australia, the couple - known in court as Mr and Mrs Tomas - had filed proceedings which stopped S from leaving.

Two years later, the court has ruled that it would be best for S - a happy and healthy child who related to both sets of parents - to return to Samoa.

The online judgment in the case says Mr and Mrs Tomas are resident in Australia, having migrated there in 1997 from Samoa.

After the adoption order was granted in Samoa for "S", the couple obtained New Zealand citizenship for her.

"Apparently she was able to do this by using New Zealand laws of descent as Mrs Tomas had previously obtained a grant of New Zealand citizenship," the judgment says.

Having got citizenship, the couple then got a passport for her.

A witness, named as V, witnessed the passport photo and identity, saying she had personally known the child and declared the photo was a true likeness.

"By her own admission, this witness had never met or seen (the child) at all," the judgment said.

Additionally, V was a niece of Mrs Tomas.

The New Zealand passport form says the witnessing person cannot be a relative.

"It is submitted that this witness had made false statements within this passport application, thus allowing the child to be issued with a New Zealand passport and thereby gain entry into Australia pursuant to a (Trans Tasman Visa)."

The court heard that V herself had "adopted" two children from Samoa in 2004–2008 "using the same strategy of making the children New Zealand citizens then obtaining a New Zealand passport so they could gain entry easily into Australia."

Two other children were also moved into Australia in a similar fashion.

"The act of obtaining the New Zealand citizenship for the child and then obtaining the New Zealand passport was an abuse of process and one which was used for a collateral purpose: to circumvent Australian immigration requirements that would ordinarily apply to situations such as this," the judgment said.

The ruling referred the S case revealed breaches of Hague Convention on Intercountry Adoption, the Convention on the Rights of the Child and the Convention against Transnational Organised Crime, supplemented by Trafficking in Persons – especially women and children protocol.

The court questioned the validity of the New Zealand citizenship and passport but made no ruling on it.

The Sydney Morning Herald says the case raised wider issues about the entry of children into Australia and highlighted tensions between federal immigration and state-based adoption laws, said Associate Professor Jennifer Burn from the faculty of law at University of Technology, Sydney.

S had entered Australia on a New Zealand passport, entitling her to live in Australia without further checks.

The mother's lawyers had argued this path could lead to child smuggling or trafficking and said the Tomases had tried to use family law proceedings to ''rectify arrangements that are not acceptable under Australia's immigration and adoption laws''.

Burn said in overseas adoptions cases there should be ''greater scrutiny to ensure that the birth parent freely, without coercion, and in the absence of fraud or any other form of malpractice, surrenders the child for adoption''.

Lawyers for S's mother argued the Samoan ''adoption'' did not meet the requirements for recognition in NSW, but Justice Loughnan found this ''does not make it an illegal adoption''.

The court ruled that S is to be allowed to speak to the Tomases by telephone twice a week.

Justice Loughnan said all the parents would care for the child well but it was in her best interest that she live within Samoan culture.