Can I Adopt My Relative's Child, or a Child I Am Already Raising?

Most adoption in Papua New Guinea is not a stranger taking in an unknown baby. It is an aunty raising a brother's son. A grandmother raising a first grandchild. A man adopting the children his wife already had. A couple who took in a child fifteen years ago and now find that the child needs a passport, a school record or a place in an estate.

The Adoption of Children Act (Chapter 275) anticipated all of this. Family adoptions get a distinctly easier path — but only for a defined list of relatives, and only in specific ways.

First: what counts as a "relative"?

This is where the answer starts, because the concessions all hang off the word.

Section 1 defines "relative", in relation to a child, as a grandparent, brother, sister, uncle or aunt of the child, "whether the relationship is of the whole blood or half-blood or by affinity, and notwithstanding that the relationship is traced through, or to, an illegitimate person or depends on the adoption of any person."

Three things follow.

• "By affinity" means in-laws count. Your husband's sister is your child's aunty for this purpose.
• Half-blood counts, and illegitimacy is no obstacle. The definition goes out of its way to say so.
• Cousins are not on the list. Nor are the wider wantok relationships that in practice carry the same obligations in many PNG communities. A first cousin raising a child is doing something the law will recognise as a customary adoption under section 53 — but not as a "relative" adoption under Parts I to V.

If you are a cousin, or a family friend, you are treated as an ordinary applicant for the purposes of the concessions below.

Concession 1: no medical report needed

Section 9(3) normally requires a report in the prescribed form on the child's physical and mental condition, from a doctor who examined the child within 30 days before filing.

Section 9(4)(b) removes that requirement where the proposed adoption is "by a person who is a relative of the child, or by two persons one of whom is a parent or relative of the child."

For families in rural areas this is a real saving. You are not required to get a child to a medical practitioner and back inside a 30-day window before you can file.

Concession 2: your consent is not a blank cheque

Ordinarily, section 16(1) makes every consent a general consent — a consent to adoption "by any person or persons in accordance with the law". The birth mother is consenting to the adoption; she is not choosing the family.

Section 16(2) switches that off for family adoptions: subsection (1) "does not apply in relation to a consent expressed to be a consent to the adoption of a child by a relative of the child, or by two persons one of whom is a parent or relative of the child."

So if you are the mother and you consent to your son being adopted by his uncle, that consent is specific to that adoption. It does not become a general consent that some other family could rely on.

This has a knock-on effect. Section 23(1) makes the Director the guardian of a child where every required consent "has been given and is a general consent" or has been dispensed with. A consent given specifically in favour of a relative under section 16(2) is not a general consent — so the section 23 guardianship regime does not engage in the same way. In a family adoption the child ordinarily stays where the child already is.

Concession 3: private family arrangements are not an offence

Section 43(1) makes it an offence for anyone other than the Director, or a person acting on the Director's behalf, to conduct negotiations or make arrangements with a view to an adoption, or to transfer possession or control of a child for that purpose. Penalty: a fine up to K400.00 or three months' imprisonment.

Taken literally that would criminalise most PNG family life. Section 43(2) prevents that: subsection (1) "does not apply in relation to anything done by or on behalf of a parent, guardian or relative of a child, or by persons one of whom is a parent or relative of the child, with a view to the adoption of the child by a relative of the child."

So families may make their own arrangements among relatives. What they may not do is pay for them — section 42 has no relative exception at all, and it prohibits payment or reward in connection with an adoption, a consent, or the transfer of a child, subject only to legal expenses, approved medical and hospital costs, and payments authorised by the Director or the Court.

Customary exchange between two lines and a payment for a child are not the same thing, and the distinction is worth being careful about. If money or goods are moving, get advice before, not after.

Step-parent adoption: adopting your spouse's child

This is the situation the Act handles most cleanly.

Section 7(1) requires an adoption order to be made in favour of a husband and wife jointly. Section 7(4) then provides that such an order may be made "notwithstanding that one of them is a natural parent of the child."

So a parent and their spouse apply together and adopt the child jointly. The parent does not lose their parentage — under section 28(1)(a) the child becomes a child of "the adopters", and the applying parent is one of the adopters.

Two points to think through first.

Whose consent do you need? Under section 15(2), for a legitimate child it is the parents and guardians; for an illegitimate child it is the mother and guardians. So if you are the mother of an ex-nuptial child and your husband wishes to adopt, your consent is required and — on the face of section 15(2)(b) — the biological father's is not. Section 10 may still require 14 days' notice to a person with whom the child resides or who has care or custody, and section 11 allows a person to be joined to oppose. This is an area where getting advice is worth it.

What does it cut? Section 28(1)(b) is unforgiving: the child "ceases to be a child of any person who was a parent … before the making of the adoption order." A step-parent adoption ends the other biological parent's legal parenthood, along with the child's legal relationship to that whole side of the family — grandparents included. That may be exactly what you want. It may also be more than you want, and section 53 customary recognition or a guardianship arrangement may fit better.

Adopting the adult you brought up

This is the provision that solves a very common PNG problem, and almost nobody knows it exists.

Section 6(1)(b) allows the Court to make an adoption order for a person who "has been brought up, maintained and educated by the applicant or applicants, or by the applicant and a deceased spouse of the applicant, as his or their child."

There is no age limit in that paragraph. The person you raised can be 22, or 40. Section 1's definition of "child" expressly includes "a person who has attained that age and in respect of whom an adoption order is sought or has been made."

The test is different for an adult. Section 9(2) provides that where the person has turned 21 before the order is made, section 9(1) does not apply; instead the Court must be satisfied of only two things:

• "that the applicants are of good repute"; and
• "that exceptional circumstances make it desirable that the child should be adopted."

Section 9(4)(a) removes the medical report requirement. And section 15(4) removes the birth parents' consent from the picture: section 15 "does not apply in the case of a child who has attained the age of 21 years before the making of the adoption order." No birth parent's signature is needed.

One consent does survive. Section 22 requires the consent of a child who has attained 12 years, and section 1 defines "child" to include a person over 21 in respect of whom an adoption order is sought. So the adult you are adopting must agree — which, in the nature of these applications, is rarely a problem.

The one bar remains section 6(2): no order for a person who "is, or has been, married." If the person you raised has married, this door is closed.

What amounts to "exceptional circumstances"? The Act does not define it, and there is very little reported PNG authority. Straightforward candidates would include putting inheritance and succession beyond argument, regularising a lifelong relationship that has never been on paper, and formalising a relationship for immigration, superannuation or estate purposes. Each case will turn on its own facts, and a judge is entitled to be unpersuaded.

Should you use the court at all?

If you are a relative raising a relative's child with everyone's agreement, section 53 may already deem the child adopted by you — no court, no application. Our article on customary adoption sets that out.

The reasons families still go to the National Court are practical:

• an institution outside the community needs proof — a passport office, a bank, a school, an insurer, a superannuation fund, an estate;
• the child may live or study outside PNG;
• someone may dispute the arrangement later;
• inheritance needs to be beyond argument.

There is a middle path many families overlook: a Local Court certificate under section 54, which is conclusive as to the customary adoption and its terms, and which is then registered under section 52 of the Civil Registration Act. For a great many PNG families, that is enough — and it is far quicker and cheaper than a National Court application.