Can a Foreigner Adopt a Child from Papua New Guinea?

Yes — but not from overseas, and not quickly.

The Adoption of Children Act (Chapter 275) does not ask about your citizenship anywhere. What it asks about is where you were living when you filed, and that single requirement is what makes adopting a PNG child from abroad effectively impossible without first coming to live here.

The provision that decides it: section 3

Section 3(1) provides that the Court "shall not make an order for the adoption of a child unless at the time of the filing in the Court of the application for the order —

• (a) the applicant, or (in the case of joint applicants) each of the applicants, was resident or domiciled in the country; and
• (b) the child was present in the country."

Note what is and is not there. Citizenship is irrelevant. A foreign national who is resident in PNG satisfies section 3(1)(a). A PNG citizen living permanently in Brisbane does not.

"Resident or domiciled" is an alternative — either will do. Residence is about where you actually live; domicile is a narrower legal concept about your permanent home. Section 3(2) then supplies a limited evidentiary presumption: where the Court is satisfied that an applicant was resident or domiciled in the country, or that the child was present in the country, within 21 days before the filing date, it may presume, in the absence of evidence to the contrary, that the position was the same at filing.

Section 4 closes off any argument that some other body of law could widen or narrow this: "The jurisdiction of the Court to make an adoption order is not dependent on any fact or circumstance not expressly specified in this Act."

What happens when you get it wrong

This is not a theoretical risk. It is the one recent reported PNG adoption decision.

In Application for adoption by Rosalind Dawn Glass (2016) N6358 (Davani J, National Court, 15 July 2016; proceeding OS No. 298 of 2015) the applicant sought an adoption order for a child she had already adopted by custom. The natural mother had filed the necessary consent. There was a welfare report favourable to the applicant. On the merits it looked strong.

It failed anyway. The applicant was living in Cairns, Australia, when the application was filed on 20 May 2015. The Court held she was "neither resident nor domiciled within the meaning of s. 3 of the Adoption of Children Act", and that a person who had adopted a child by custom must still "satisfy the requirements under the Adoption of Children Act, Chapter 275."

Two lessons. First, a customary adoption does not substitute for the statutory requirements when a statutory order is what you are asking for. Second, and more bluntly: residence is jurisdictional, and jurisdiction is not something a judge can waive because a case is sympathetic.

For contrast, in the pre-Independence decision Re TK (an Infant) [1965–66] PNGLR 189 the Supreme Court of Papua and New Guinea granted an adoption order in favour of a New Zealand couple over a Bougainvillean boy, on the basis that the child was ordinarily resident in the Territory even though the adopters were domiciled outside it. That case was decided under earlier Territory adoption law, before the Act commenced in 1969, and section 3 as enacted asks a different question — so it should not be read as authority on the current test.

What foreign adopters actually have to do

The practical position, as described by the United States Department of State on its country information page for intercountry adoption from PNG, is that intercountry adoption is possible but PNG prioritises domestic placement, and prospective adopters must satisfy conditions including:

• a period of residency in PNG before eligibility — the State Department gives six months. Note that the Act itself imposes no minimum period: section 3(1) requires only that you were resident or domiciled in the country at the time of filing. The six months is a description of how the process is administered, not a statutory rule;
• being at least 21, legally married, healthy and financially stable;
• an assessment and a favourable opinion of the National Office of Child and Family Services before the National Court will hear the case;
• filing in the National Court through a lawyer in PNG;
• legal fees in the order of K10,000 to K12,000 and a timeline of nine months or longer, excluding the residency period.

Treat all of that as guidance rather than law: it is a foreign government's summary written for its own citizens, not a PNG source, and only the statutory requirements — sections 3, 7, 8, 9, 10, 15 and the rest — bind the Court. But it is consistent with the Act, and it reflects how the process is run in practice.

The statutory requirements every foreign applicant still has to clear are the ordinary ones: married and applying jointly under section 7(1) unless exceptional circumstances justify a single applicant under section 7(2); at least 21 and old enough relative to the child under section 8; the Director's written report and the Court's satisfaction as to good repute, suitability and the child's welfare under section 9; the medical report under section 9(3); consents under Division 2; and 14 days' notice under section 10.

One requirement in section 9(1)(b) deserves special attention in an intercountry case: the Court must consider whether the applicants are suitable "having regard to … all relevant considerations, including the age, state of health, education (if any) and religious upbringing or convictions (if any) of the child and of the applicants". The cultural dimension is real. In the reported PNG adoption case law, expert evidence has been received on the socio-cultural impact on a Papua New Guinean child of being raised outside the country.

PNG is not a party to the Hague Convention

Papua New Guinea does not appear among the contracting parties to the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, and is not a member of the Hague Conference on Private International Law.

Why that matters:

• there is no Central Authority framework, no accredited-body system and no Hague-standard safeguards operating between PNG and receiving countries;
• receiving countries impose their own rules, and several will not process an adoption from a non-Convention country in the same way, or at all. An adoption order validly made by the PNG National Court does not automatically give the child a visa or citizenship anywhere;
• the burden of getting the child lawfully into the receiving country sits squarely on the adopters, under that country's immigration and adoption law.

Deal with the receiving country's requirements before you start, not after you have an order. A PNG adoption order that the destination country will not act on helps nobody, least of all the child.

Adoptions made elsewhere: does PNG recognise them?

The Act is generous in the other direction — recognising adoptions made abroad.

Australia — section 37. The adoption of a person in an Australian State or Territory, in accordance with the law of that State or Territory, has "the same effect as an adoption order made under this Act, and has no other effect" for the purposes of PNG law, so long as it has not been rescinded there. Automatic, no application needed.

Other countries — section 38. A foreign adoption has the same effect as a PNG adoption order if four conditions in section 38(2) are met: it was effective under that country's law; the adopters were resident or domiciled in that country when the legal steps commenced; the adopters acquired a right to custody superior to that of any natural parent; and under that country's law the adopters were placed generally in the position of parents.

Section 38(3) makes a certified copy of the foreign order or record sufficient evidence, absent contrary proof; section 38(6) presumes compliance unless the contrary appears; and section 38(4) allows the Head of State, acting on advice, to declare by National Gazette notice that adoptions under a particular country's law shall be conclusively presumed to comply with subsection (2)(b), (c) and (d) — note that limb (2)(a), that the adoption was effective under that country's law, is not covered by such a declaration and must still be established.

But section 38(5) preserves a veto. A court "may refuse to recognize an adoption … if it appears to the court that the procedure followed, or the law applied, in connexion with the adoption involved a denial of natural justice or did not comply with the requirements of substantial justice."

Getting it declared — section 39. If you need certainty, the adopted child, either adoptive parent, or a person tracing a relationship through the adoption may apply to the National Court for a declaration that an adoption was effected under the law of a foreign country and that section 38 applies. The Court may direct notice to the Director and the Attorney-General, join parties, and include in the order the particulars of the adoption it finds established. Under section 39(5) the order binds the State.

Note the definitional quirk in section 36: for Part IV, "foreign country" does not include Australia or the Territories of Australia — Australia is dealt with separately under section 37.

Sending a child to Australia: the reciprocating states scheme

Division 3 of Part III sets up a machinery few people know about. Under section 25 the Head of State, acting on advice, may declare an Australian State or Territory to be a reciprocating state where its law contains provisions equivalent to sections 26 and 27.

Where that has been done, section 26 allows the Director — on notice from the corresponding officer in that state that an adoption application will be made there for a child of whom the Director is guardian under section 23(1), together with a request that he renounce guardianship — to renounce guardianship by instrument, if the consent has become irrevocable under section 17 or has been dispensed with under section 21, and if he thinks it in the best interests of the child.

There is a safety net. Under section 26(4), if within six months of the Director sending the instrument the child is neither adopted under that state's law nor removed from the country, the instrument ceases to have effect and the Director is again the guardian. Section 26(5) allows one extension of up to a further six months. Section 27 operates in reverse, for a child coming from a reciprocating state to be adopted here.

Money, advertising and privacy — the lines you must not cross

These matter most in an intercountry context, because that is where money most often appears.

• Section 42 — payments. An offence to make, give or receive a payment or reward for an adoption or proposed adoption, for the giving or signing of a consent, for the transfer of possession or control of a child with a view to adoption, or for conducting negotiations or making arrangements. Permitted: legal expenses; hospital and medical expenses reasonably incurred in connection with the birth or the ante-natal or post-natal care of the mother or child, made by the adopters with the written approval of the Director or with the approval of the Court; and any other payment or reward authorised by the Director or by the Court. Penalty: fine up to K400.00 or six months' imprisonment.
• Section 43 — arrangements. An offence for anyone other than the Director, or a person acting on his behalf, to conduct negotiations or transfer possession or control of a child with a view to adoption — fine up to K400.00 or three months'. Exempt: arrangements by a parent, guardian or relative for adoption by a relative.
• Section 44 — advertising. An offence to publish an advertisement or news item indicating that a parent wishes a child adopted, that a person wishes to adopt, or that someone will make arrangements — fine up to K400.00 or six months' — unless approved by the Director.
• Section 45 — identity. An offence to publish the name of an applicant, the child, or a parent or guardian, or anything reasonably likely to identify them, in relation to an adoption application — fine up to K400.00 or six months' — except with the authority of the court.
• Sections 46 to 50 cover false statements, personating a person whose consent is required, presenting a forged consent, undue influence, and improperly witnessing a consent — each carrying a fine up to K400.00 or six months'.

Under section 51 these can only be prosecuted by the Public Prosecutor or with his written consent.

The K400.00 maximum has stood unchanged in the consolidated text for decades. Do not mistake that for a signal about seriousness. These are the provisions that separate adoption from the sale of children, and they are the ones a foreign applicant is most likely to trip over by treating a "gift" to a birth family as ordinary courtesy.

The short version

• Citizenship does not matter; residence does. You must be resident or domiciled in PNG when you file, and the child must be present here.
• Filing from overseas fails. Glass (2016) N6358 is the illustration.
• PNG is not a Hague Convention country. Sort out the receiving country's rules first.
• Australian and qualifying foreign adoptions are recognised here under sections 37 to 39, subject to the natural justice veto in section 38(5).
• Do not pay for an adoption, advertise for one, or arrange one privately unless you fall within a statutory exception.

Back to the start of the series: What Is Adoption in Papua New Guinea?