Can the Birth Parents Change Their Mind and Take the Child Back?

This question comes to us from both directions. Sometimes it is a birth mother who signed a form in a difficult week and has thought about nothing else since. Sometimes it is an adoptive family who has raised a child for years and has just been told the birth family wants the child returned.

The law's answer depends almost entirely on where in the process you are and on which route the adoption took. There are four distinct stages, and they get progressively harder to reverse.

Stage 1: Before an order — the 30-day window

If a consent has been signed but the National Court has not yet made an adoption order, there is a clear statutory right to change your mind.

Section 17(1) of the Adoption of Children Act (Chapter 275) provides that a consent given by a person other than the child "may be revoked by written notice served on the Registrar of the Court" before —

• "the expiration of 30 days from the date on which the instrument of consent was signed"; or
• "the day on which an order for the adoption of the child is made",

"whichever is the earlier, but may not otherwise be revoked."

Four things to take from that.

The clock starts at signing, not at the birth and not at placement.

It can be cut short. If the Court makes an adoption order on day 12, the right to revoke ends on day 12.

The notice must be in writing and must go to the Registrar of the National Court. Section 17(2): deliver it to him personally, or send it by post to the address of the Registry. Telling the adoptive family, the welfare officer, the hospital or the pastor is not a revocation. If you are within the window, put it in writing and get it to the Registry today — and keep proof that you sent it.

Section 17(3) then requires the Registrar, on receipt, to "immediately notify the Director of the receipt of the notice."

There is a second route back in the same period. Under section 23(1)(e), where the Director has become the child's guardian, the Director's guardianship ends where he "by instrument under his hand, releases the child to its parents or one of its parents" — and section 23(2) provides that such a release revokes any consent given by the parents or one of them to the adoption.

Stage 2: Before an order — attacking the consent itself

Missing the 30 days is not necessarily the end, but the ground shifts. You are no longer exercising a right; you are asking the Court not to rely on a defective consent.

Section 20(1) allows the Court to refuse to make an adoption order in reliance on a consent where it appears that —

• "the consent was not given in accordance with this Act"; or
• "the consent was obtained by fraud, duress or other improper means"; or
• "the instrument of consent has been altered in a material particular without authority"; or
• "the person giving … the consent was not, on the date of the instrument of consent, in a fit condition to give the consent or did not understand the nature of the consent."

Two subsections are stronger still, and they protect mothers specifically.

Section 20(2): the Court "shall not make an adoption order in reliance on an instrument of consent signed by the mother of the child before the birth of the child." That is absolute. A consent signed during pregnancy has no effect at all.

Section 20(3): except where section 19 applies, the Court shall not rely on an instrument signed by the mother "on, or within seven days after, the day on which the child was born unless it is proved that, at the time when the instrument was signed, the mother was in a fit condition to give the consent." The burden is on the person relying on the consent, not on the mother. Section 20(4) allows a medical practitioner's or nurse's certificate as evidence of fitness.

Supporting this, section 50 makes it an offence to witness a consent unless the witness is satisfied that the signatory is a parent or guardian, has taken the prescribed steps to satisfy himself that the person understands the effect of the consent, and the instrument is dated. Section 49 makes it an offence to use force, restraint, injury or the threat of any detriment to induce a parent or guardian to offer a child for adoption or to influence the wishes expressed in an instrument of consent.

If you were pressured, misled, or not in a fit state, say so — and say it before the order is made.

Stage 3: After an adoption order — a very high bar

Once the National Court has made the order, the position changes completely.

Section 28(1)(b) provides that the adopted child "ceases to be a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order, and any such person ceases to be a parent of the child" — for the purpose of all laws. There is no longer a parent to hand the child back to.

The only avenue is section 13, and it is narrow in three ways.

Only two people can apply. Section 13(1): "The Director or the Attorney-General may apply to the Court for an order discharging an order made under this Act for the adoption of a child, and the Court may make such an order if it is satisfied that—". Not the birth parents. Not the adoptive parents. A birth parent who believes an adoption was obtained improperly must persuade the Director or the Attorney-General to take it up.

Only two grounds. The Court may discharge if satisfied that —

• "(a) the adoption order, or any consent for the purposes of the adoption order, was obtained by fraud, duress or other improper means"; or
• "(b) there is some other exceptional reason why, in view of the welfare and interests of the child, the adoption order should be discharged."

And the child's welfare overrides even proven fraud. Section 13(2): "The Court shall not make an order under this section if it appears to the Court that the making of the order would be prejudicial to the welfare and interests of the child." This is the point families most often misunderstand. Proving that a consent was obtained by fraud does not entitle anyone to have the child returned. If the child's welfare would suffer, the order stands. That is section 5 doing its work: the welfare and interest of the child is paramount, in this as in everything else.

If an order is discharged, section 13(4) lets the Court make consequential orders about the child's name, ownership of property, custody or guardianship, and domicile. Section 13(5) restores the pre-adoption legal position, but without prejudice to anything lawfully done, the consequences of anything unlawfully done, and any proprietary right or interest that became vested in any person while the order was in force. And under section 13(3), where the order was made in reliance on a general consent, that general consent remains in operation for any further adoption application unless the Court orders otherwise.

Stage 4: Taking the child anyway is a crime

Some birth parents, having lost the legal argument, simply collect the child.

Section 41(1) makes that an offence. A person who was the father, mother or guardian of a child but has, by reason of an adoption, ceased to be so, "and who takes, leads, entices or decoys the child away, or detains the child, with intent to deprive the adopters of the child of possession of the child, is guilty of an offence."

Section 41(2) extends it to anyone who "receives or harbours a child" on behalf of such a person, knowing of the taking or detention.

The penalty is a fine not exceeding K400.00 or imprisonment for up to six months — a maximum that has stood unchanged in the consolidated text for decades, and plainly not a measure of how seriously a court would view the conduct today. Note also section 51: proceedings for an offence against the Act may only be commenced by the Public Prosecutor or with his written consent.

The practical point is more important than the penalty. Removing an adopted child from the adopters is not a self-help remedy; it is an offence, and it will not help anyone's position in any subsequent court proceeding.

What about a customary adoption?

Everything above is about the statutory route. Customary adoptions work differently — and, on this question, they often work in the opposite direction.

Section 53(2) provides that a customary adoption "takes effect in accordance with the custom that is applicable and is subject to any provisions of that custom as to limitations and conditions, including limitations and conditions as to the period of the adoption, rights of access and return and property rights or obligations."

Rights of return are written into the section. Many PNG customs expressly contemplate that a child may go back to the birth line — at a certain age, on a certain event, on the death of an adoptive parent, or if the exchange between the lines is not maintained. Where that is the custom, the child returning is not a breach of anything. It is the adoption working as it was always designed to.

So the questions in a customary case are different:

• What does the applicable custom actually provide about return?
• Was there a Local Court certificate under section 54? If so, it is conclusive as to the adoption and its limitations and conditions — including any right of return — and settles the argument. If not, the custom has to be proved by evidence.
• Have circumstances or the custom changed? Section 55 allows the Local Court to vary a certificate on that basis.
• If no adoption is established but fosterage or guardianship by custom is, section 56 allows the Local Court to declare that instead.

There is one limit that runs through all of it. Custom that harms a child is not applied: in Ubuk v Darius [1994] PNGLR 279 the National Court declined to apply a custom that would have given a father automatic custody of a 20-month-old on payment of compensation, treating it as repugnant to the general principles of humanity in that case.

If you are in this situation

If you are a birth parent within 30 days of signing: write to the Registrar of the National Court today. Do not rely on telling anyone else.

If you are a birth parent past 30 days but before an order: get to a lawyer or the Office of the Public Solicitor immediately, and be specific about how the consent came to be signed — who was present, what you were told, and what state you were in.

If an order has already been made: the only route is to persuade the Director or the Attorney-General to apply under section 13, and the child's welfare will decide it.

If this is a customary adoption: the argument is about what your custom provides, and a Local Court is the forum. Bring the people who can speak to the custom.

If you are an adoptive family being threatened with the removal of a child: get legal advice rather than confronting the family. Section 41 exists, but the answer to a dispute is a court, not a standoff.