Consent — Who Must Agree Before a Child Can Be Adopted?

Consent is the heart of adoption law. Everything else — residence, age, home visits, reports — is machinery. Consent is where a family's rights are actually given up.

Division 2 of Part III of the Adoption of Children Act (Chapter 275) runs from section 15 to section 23, and it is the most heavily engineered part of the whole Act. This article walks through it in order.

The basic rule

Section 15(1): the Court "shall not make an order for the adoption of a child unless" either a consent has been given by "the appropriate person ascertained in accordance with this section", or "the Court is satisfied that there is no such appropriate person."

So: get the right person's consent, or satisfy the Court there is nobody who fits.

Who is the "appropriate person"?

Section 15(2) answers it in three categories:

Two points cause most of the confusion.

The father of an ex-nuptial child is not on the list. Where the child is illegitimate, section 15(2)(b) names the mother and the guardians — not the father. Section 1 does define "father", in relation to an illegitimate child, as "the putative father", and the definition matters elsewhere in the Act; but section 15(2)(b) simply does not require his consent. In practice, a father in that position who wants a say has to look outside section 15. Note, though, that he has no automatic right even to notice: section 10(1) requires notice only to a person whose consent is required, and to a person with whom the child resides or who has the care or custody of the child. His route is section 10(4), under which the Court may direct that notice be given to any person "where it appears to the Court to be necessary in the interests of justice to do so", and then section 11, under which the Court may permit him to be joined as a party to oppose.

"Guardian" is broader than you think. Section 1 defines it to include a person having custody of the child under a court order, a person who is or is deemed to be the guardian under a law of Australia or an Australian State or Territory, and — importantly for PNG — "a guardian by custom". A customary guardian is therefore an appropriate person whose consent section 15 requires.

Two mercies in the same section: under section 15(3) a person's consent is not required if that person is one of the applicants (you do not consent to yourself), and under section 15(4) the section does not apply at all where the child has turned 21 before the order is made.

General consent, and consent to a named relative

Section 16(1) makes every consent a general consent by default: a consent "shall be a consent to the adoption of the child by any person or persons in accordance with the law", and it "has effect accordingly in relation to an application for adoption made by any person or persons in accordance with this Act."

That is deliberate. Ordinarily a birth mother is not choosing the adopters — she is consenting to the adoption, and the Director and the Court decide the placement. It also explains section 10(2), which forbids a notice of application from naming or identifying the applicants, and section 14, which requires the judge to seal away the identifying documents at the end of the hearing.

Section 16(2) carves out the PNG reality: subsection (1) does not apply 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 when Grandma consents to her grandson being adopted by his aunty, that consent is tied to that adoption. It is not a blank cheque.

The 30-day window to change your mind

This is the provision every birth parent should know.

Section 17(1): 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 earlier of —

• "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."

Read the last six words again. Outside that window, a consent cannot be revoked at all. The 30 days run from signing, and they can be cut short if an order is made first.

Section 17(2) says how: deliver the notice personally to the Registrar, or send it by post to the address of the Registry of the Court. Section 17(3) then requires the Registrar, on receipt, to "immediately notify the Director of the receipt of the notice."

Note what this means practically. The notice goes to the Registrar of the National Court — not to the adopting family, not to the hospital, not to the welfare officer. A change of heart expressed to anyone else is not a revocation.

Consent has to be in the proper form

Section 18 requires a consent to be evidenced by "an instrument of consent in the prescribed form signed by the person giving the consent and authenticated as prescribed."

Section 50 then makes improper witnessing an offence. A person who witnesses a signature on an instrument of consent commits an offence unless he is satisfied that the signatory is a parent or guardian of the child, takes the prescribed steps to satisfy himself that the signatory understands the effect of the consent, and the instrument bears the date on which it was signed.

That middle limb is the important one. The witness's job is not just to watch a pen move. It is to confirm the person knows they are giving up their child.

Protection for new mothers: the seven-day rule

Section 20 deals with defective consents, and two of its subsections are absolute.

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." No exceptions. A consent signed during pregnancy is worthless.

Section 20(3): except where the consent was given under Australian State or Territory law as provided by section 19, the Court shall not make an order in reliance 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."

So a consent signed in the first week after birth is not automatically void — but it carries a burden of proof, and that burden falls on whoever wants to rely on it. Section 20(4) provides the usual way of discharging it: a certificate purporting to be from a medical practitioner or nurse certifying that the mother was in a fit condition is evidence of that fact.

Section 20(1) rounds it out, letting the Court refuse to rely on a consent where it appears that the consent was not given in accordance with the Act, was "obtained by fraud, duress or other improper means", the instrument was "altered in a material particular without authority", or the person giving it "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."

When the Court can proceed without consent

Section 21(1) lets the Court dispense with the consent of a person other than the child, on five grounds. The Court must be satisfied that —

• (a) "after reasonable inquiry, the person cannot be found or identified";
• (b) the person "is in such a physical or mental condition as not to be capable of properly considering the question whether he should give his consent";
• (c) the person "has abandoned, deserted or persistently neglected or ill-treated the child";
• (d) the person "has, for a period of not less than one year, failed, without reasonable cause, to discharge the obligations of a parent or guardian, as the case may be, of the child";
• (e) "there are any other special circumstances by reason of which the consent may properly be dispensed with."

Ground (a) is the common one in PNG, where a father may be unlocatable years later. Ground (d) has a hard edge — a full year of failure, and "without reasonable cause", which means a parent who could not support the child because of poverty, illness or distance is not automatically caught.

Two procedural points. Under section 21(2) the Director may apply for a dispensation order before any adoption application is filed, so that arrangements can be made; that order then has effect for any later adoption application. And under section 21(3) such an order may be revoked by the Court at any time before an adoption order is made, on the application of the Director or of the person whose consent was dispensed with.

Where consent is required but has not been given, section 10(1)(a) independently requires at least 14 days' notice of the application to that person — so a dispensation is not a way of keeping people in the dark, and section 11 lets the Court join them as a party to oppose.

The child's own voice

Section 22: an order for the adoption of a child "who has attained the age of 12 years shall not be made unless" the child has consented, or the Court is satisfied "that there are special reasons, related to the welfare and interests of the child, why the order should be made notwithstanding that the child has refused to consent to the adoption or his consent has not been sought."

From 12, the child has a say. Not a veto — the Court can still proceed — but it must find special reasons connected to the child's own welfare before overriding a child who has said no.

Who looks after the child in the meantime?

Once every required consent has been given as a general consent, or dispensed with under section 21, section 23(1) makes the Director the guardian of the child "for all purposes (other than the purposes of Section 15) to the exclusion of all other persons", until an adoption order is made, the consent is lawfully revoked, the Director releases the child back to a parent, guardianship is renounced under Division 3, the child becomes a ward, or the Court makes other provision.

The carve-out for section 15 matters: the Director's guardianship does not let him supply the consent that the parents alone can give. Section 23(1)(e) is also worth noticing: the Director can release the child back to its parents, and section 23(2) provides that such a release revokes any consent the parents had given. Section 23(4) sets a clock: if the Director has been guardian for a year without that ceasing, he must report to the Court, and the Court "shall make such order for the care and control of the child as it thinks fit."

A note on wardship. Sections 12 and 23 refer to a child becoming "a ward within the meaning of the Child Welfare Act". The Lukautim Pikinini Act 2015 provides for the repeal of the Child Welfare Act (Chapter 276), but it comes into operation by notice in the National Gazette and we have not been able to confirm the commencement position. If wardship matters in your case, check the current status of both Acts before relying on these cross-references.

Where to next

That is the formal consent regime. But most PNG adoptions never touch an instrument of consent at all, because they happen under custom. The next article looks at how that works — and what it does and does not give you.