Part IV of the Adoption of Children Act (Chapter 275) deals with adoptions made outside Papua New Guinea.
“Country” includes part of a country. “Foreign country” does not include Australia or the Territories of Australia.
Section 37 — automatic recognition
For the purposes of the laws of Papua New Guinea, the adoption of a person (whether before or after the commencement date) in a State or Territory of Australia, in accordance with the law of that State or Territory, has — so long as it has not been rescinded under the law in force in that State or Territory — the same effect as an adoption order made under this Act, and has no other effect.
An Australian adoption is recognised automatically. There is no residence or domicile requirement, no discretion, and no need to apply to the Court.
The only qualification is that it must not have been rescinded under the law of that State or Territory.
The words “and has no other effect” matter: the Australian adoption is given exactly the effect of a local order under section 28 — no more and no less. The same pre-Independence relationship explains section 19, under which an Australian consent is an effective consent here.
Section 38 — the four conditions
(a) the adoption was effective according to the law of that country; and
(b) at the time the legal steps that resulted in the adoption were commenced, the adopters were resident or domiciled in that country; and
(c) in consequence of the adoption, the adopters had — or would (if the adopted person had been a young child) have had — immediately following the adoption, a right superior to that of any natural parent in respect of the custody of the adopted person; and
(d) under the law of that country the adopters were, by virtue of the adoption, placed generally in relation to the adopted person in the position of parents.
| Australia — s 37 | Foreign country — s 38 | |
|---|---|---|
| Conditions | None, beyond compliance with that law and no rescission | Four — s 38(2)(a) to (d) |
| Presumption | — | Compliance and non-rescission presumed unless the contrary appears — s 38(6) |
| Court may refuse | No | Yes — denial of natural justice, or failure of substantial justice — s 38(5) |
| Effect if recognised | Same as an order under this Act | Same as an order under this Act |
What matters is not what the foreign arrangement is called but what it does: whether it gave the adopters a right of custody superior to any natural parent, and placed them generally in the position of parents.
An arrangement that leaves the natural parents with equal or superior rights — a guardianship, a fostering arrangement, a kafala-style placement — will not satisfy paragraphs (c) and (d), however it is described.
Note the parenthesis in (c): “or would (if the adopted person had been a young child) have had”. That allows recognition of an adult adoption abroad, by asking what the effect would have been had the person been a young child.
Sections 38(3), (4) and (6)
(3) Production of a document purporting to be the original or a certified copy of an order or record of adoption made by a court or judicial or public authority in a foreign country is, in the absence of proof to the contrary, sufficient evidence that the adoption was made in and is effective according to the law of that country.
(4) The Head of State, acting on advice, may by notice in the National Gazette declare that all or any adoptions under the law of a foreign country shall be conclusively presumed to comply with paragraphs (b), (c) and (d).
(6) Where the question arises in proceedings, it shall be presumed, unless the contrary appears from the evidence, that the adoption complies with subsection (2) and has not been rescinded.
Proving foreign law is expensive and slow. Subsections (3) and (6) reverse the burden: produce the foreign adoption document, and the adoption is presumed to satisfy section 38(2) unless someone shows otherwise.
Subsection (4) goes further. Where a country’s adoption law is known to satisfy paragraphs (b), (c) and (d), the Head of State may declare compliance conclusively presumed — removing the question from litigation entirely for that country.
Section 38(5), (7) and (8)
A court may refuse to recognise an adoption if it appears that the procedure followed, or the law applied, involved a denial of natural justice or did not comply with the requirements of substantial justice.
Compare section 79(7) of the Matrimonial Causes Act (Chapter 282), which refuses recognition to a foreign divorce where a party had been denied natural justice.
Section 38(5) is wider: it covers not only denial of natural justice but a failure of substantial justice in the law applied — which would reach, for example, an adoption obtained by payment or without any parental consent at all. Compare section 42 of this Act, which prohibits payments in consideration of adoptions.
Subsection (7) closes the door on anything else: except as provided in this section, a foreign adoption does not have effect for the purposes of the laws of Papua New Guinea. Subsection (8) preserves rights acquired or vested before the commencement date.
Section 39 — obtaining a declaration
(1) A person may apply to the Court for an order declaring that an adoption was effected under the law of a foreign country and is one to which section 38 applies.
(2) The applicants may be (a) the adopted child; (b) the adoptive parents or either of them; or (c) a person tracing a relationship, by virtue of the adoption, through or to the adopted child.
(3) The Court may direct notice to such persons as it thinks fit (which may include the Director and the Attorney-General), direct that a person be made a party, or permit a person with an interest to intervene.
(4) The order may include such particulars in relation to the adoption, the adopted child and the adoptive parents as the Court finds to be established.
A declaration binds the State, whether or not notice was given to the Attorney-General (s 39(5)), but does not affect the rights of a person who was not a party or notified, nor an earlier judgment of a competent court. Against everyone else, a certified copy of the order is evidence that the adoption was effected as stated and is one to which section 38 applies (s 39(6)) — which is why a declaration is worth obtaining where inheritance, citizenship or identity documents may later turn on the adoption.
Sources
- Adoption of Children Act (Chapter 275) — ss 19, 28, 36–39, 42
- Matrimonial Causes Act (Chapter 282) — s 79
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.