Customary Adoption in Papua New Guinea

Ask around any village, settlement or workplace in this country and you will find people who were raised by someone other than the person who gave birth to them. A childless couple takes in a brother's son. A grandmother raises the first grandchild. A family without daughters is given one. The exchange is negotiated, the obligations are understood, and everyone involved knows exactly what has happened.

The question people ask us is whether the law counts it. It does. But the answer has edges, and this article traces them.

The recognising provision: section 53

Part VI of the Adoption of Children Act (Chapter 275) is headed "Adoption, Fosterage, Etc., of Children by Custom", and section 53(1) is where the recognition happens:

"Notwithstanding any other law but subject to this section, where a child is or has at any time been in the custody of and is being or has been brought up, maintained and educated by any person or by two spouses jointly as his, her or their own child under any adoption in accordance with custom, then for the purposes of any law the child shall be deemed to have been adopted by that person or by those spouses jointly, as the case may be."

Take it apart:

• "Notwithstanding any other law" — the recognition is not defeated by some other statute. Read it with the words that follow it, "but subject to this section", and with section 52, which preserves the general law on the recognition of custom.
• "is or has at any time been in the custody of" — a past customary adoption still counts. The child does not have to be living with you today.
• "brought up, maintained and educated" — three things, and the law is looking for real, sustained parenting. A short stay with relatives is not a customary adoption. Raising a child is.
• "as his, her or their own child" — the intention matters. The child must have been raised as your own, not as a visitor or a helper.
• "under any adoption in accordance with custom" — there must be an adoption according to the custom that applies to your people. Custom does the adopting; the section merely recognises it.
• "for the purposes of any law … deemed to have been adopted" — this is the operative phrase. The child is treated as adopted for legal purposes.

There is no age limit and no court involvement in section 53. It works by itself.

The catch: a customary adoption is only as wide as the custom

Section 53(2) is where most misunderstandings live:

"An adoption to which Subsection (1) applies 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."

That single sentence does something a National Court adoption order never does: it makes the content of the adoption depend on the custom.

A National Court order under section 28 severs the old parentage completely and permanently, everywhere in PNG, for all purposes. A customary adoption does whatever your custom says it does. And PNG customs vary enormously. Many:

• keep the child's membership of the birth clan alive, especially for land;
• preserve rights of access for the natural parents;
• contemplate the child returning to the birth family at a certain age or on a certain event;
• are conditional on exchange, compensation or continuing relationship between the two lines;
• limit property rights — the child may be raised fully as your own, yet inherit differently.

None of that makes a customary adoption second-class. It makes it specific. But it does mean that "I adopted him by custom" is the beginning of a legal question, not the end of one.

What the courts have done with it

Reported PNG case law on adoption is genuinely thin — a consequence, in part, of section 62, which requires adoption applications to be heard in camera, and section 63, which criminalises revealing the identities of the people involved. There are, though, two decisions worth knowing.

In Sangumu Wauta v The State [1978] PNGLR 326 the Supreme Court quashed an incest conviction, holding that "lineal descendant" in the Criminal Code "must be given their ordinary meaning which connotes a relationship 'of the blood' standing in direct line of descent from a common ancestor" — and so did not extend to a customarily adopted daughter.

In Wai Gende Elewai v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 34, a dependency claim, the National Court assessed a customarily adopted child's damages differently from a natural child's, noting that the child did not live with the plaintiff and that where the adoption was customary "the legal obligations of the adopting parents are unclear."

Both point the same way: the deeming in section 53 is real, but it does not make a customary adoption identical to a court order for every purpose. Where a statute turns on blood, or where the incidents of the custom are unproved, the difference shows.

The related lesson from the custody cases is that custom is not unlimited. In Ubuk v Darius [1994] PNGLR 279 the National Court refused to apply a custom that would have given a father automatic custody of a 20-month-old on payment of compensation, describing it as repugnant to the general principles of humanity and inapplicable in that case. Custom that harms a child is not enforced.

Putting it on paper: the Local Court certificate

Custom is proved by evidence, and evidence gets harder to find as elders pass on and families scatter. Parliament provided a way to freeze it.

Section 54(1) allows a Local Court to grant a certificate. The application may be made by "a party (including a natural or adoptive parent and the adopted child)", and the Local Court must be satisfied "that the adoption has been made or has terminated in accordance with custom, and as to any relevant limitations and conditions referred to in Section 53(2)."

So the certificate does two jobs: it records that the adoption happened (or ended), and it records what its terms are.

Section 54(2) gives it force. Subject to Part VI of the Local Courts Act (Chapter 41), the certificate is conclusive as to the adoption or its termination, and as to those limitations and conditions.

"Conclusive" is a strong word in law. It means the point is settled — a party cannot reopen it by calling different elders in a later case.

Three companion provisions complete the scheme:

• Section 55 — variation. Where "the circumstances of the adoption or the custom applicable to the adoption have or has changed", the Local Court may vary the certificate. Custom is living, and the certificate can move with it.
• Section 56 — fosterage and guardianship. Where the Local Court is not satisfied that a relationship of adoption exists, but is satisfied that a relationship of "fosterage or guardianship" exists or existed by custom, it may declare that instead. This matters: it means an applicant who cannot establish a full customary adoption is not simply turned away.
• Section 57 — procedure. A Local Court "shall not grant or vary a certificate under this Part unless it is satisfied that all persons interested have had a reasonable opportunity of making any representations that they wish to make on the subject of the certificate." Everyone with a stake — birth parents, adoptive parents, the child — gets to be heard.

Section 58 treats the grant or refusal, and the terms of any grant, as a decision of a Local Court for the purposes of Part VI of the Local Courts Act — which is how an appeal is brought.

Once granted, the certificate does not stop there. Under section 52 of the Civil Registration Act — the provision headed "Register of Customary Adoptions" — where the Registrar receives a certificate under section 54 of the Adoption of Children Act that an adoption has been made in accordance with custom, he registers the adoption by binding it into the register of adopted children. Terminations of customary adoption are recorded the same way.

The custom-recognition backdrop

Section 52 opens Part VI with a saving: "Nothing in this Part derogates the provisions of the Customs (Recognition) Act." That Act (Chapter 19) supplied the general rules on when custom is recognised and how it is proved, including in relation to the custody and guardianship of children.

Currency warning. There are reports that the Customs Recognition Act (Chapter 19) was repealed by a Customs Recognition (Repeal) Act 2025, with custom left to be applied under Schedule 2.1 of the Constitution and the Underlying Law Act 2000. We have not been able to confirm this from an official source, so treat the position of Chapter 19 as unsettled and check before relying on it. What does not change is the constitutional footing: custom is part of the underlying law, and it is applied unless inconsistent with a written law or repugnant to the general principles of humanity.

Importantly, none of this affects section 53 itself, which recognises customary adoption directly and "notwithstanding any other law".

Custom or court? A practical way to choose

Neither route is better. They answer different needs.

Custom is usually right when the arrangement is within the family and the clan, everyone agrees, the child's place is socially secure, and nothing outside the community depends on proving it.

Consider the court route, or at least a Local Court certificate, when you need to prove parentage to an outside institution — a school, a passport office, a bank, a superannuation fund, an insurer, an employer, an estate — or when the child may live outside PNG, or when there is any prospect of the arrangement being disputed later.

And note the two are not exclusive. In Application for adoption by Rosalind Dawn Glass (2016) N6358 the applicant had already adopted the child by custom and still sought a National Court order — the Court's observation being that a customary adopter must nonetheless satisfy the requirements of the Act if she wants a statutory order.

Where to next

We have now covered both routes into adoption. the last of these guides turns to the moment of arrival: what actually changes, in law, on the day an adoption order is made.