Section 22 of the Adoption of Children Act (Chapter 275) gives the child a voice of their own.
Subject to this Division, an order for the adoption of a child who has attained the age of 12 years shall not be made unless —
(a) the child has consented to the adoption; or
(b) 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.
The threshold
Section 22 is one of the older provisions in Papua New Guinean law to give a child a legally operative say in a decision about themselves.
Twelve is a judgment about capacity: old enough to understand what adoption means, and to have a settled view about the people proposing to become their parents.
Below 12, the child’s consent is not required. But the child’s interests still govern — section 5 makes the welfare and interest of the child concerned the paramount consideration for all purposes of Part III — and section 9(1)(b)(i) requires the Court to have regard to the age, state of health, education and religious upbringing of the child in assessing the applicants’ suitability.
Paragraph (b) — special reasons
The child has refused to consent — and the Court nevertheless makes the order; or
the child’s consent has not been sought — and the Court makes the order without asking.
The Court must be satisfied that there are special reasons, and those reasons must be related to the welfare and interests of the child.
That second requirement is the important one. The special reasons cannot be the applicants’ convenience, the birth family’s wishes, or the administrative tidiness of completing the adoption. They must go to what is good for this child.
Situations where the limb might apply include a child whose disability prevents them understanding the question, a child whose refusal rests on a misunderstanding that cannot be corrected in time, or a case where seeking consent would expose the child to pressure from an interested adult.
Section 21(1) allows the Court to dispense with the consent of a person “(other than the child)” on five specified grounds.
So the child’s consent cannot be dispensed with under section 21. The only route past it is section 22(b), which asks a different and narrower question.
Similarly, section 17 — the 30-day revocation window — applies to a consent given by a person other than the child, and section 20 likewise. The child’s consent stands outside the machinery that governs adult consents.
The child’s voice elsewhere in PNG law
| Provision | Effect |
|---|---|
| Adoption Act s 22 | A child of 12 or over must consent, subject to special reasons |
| LPA 2015 s 5(1)(l) | A child able to form views must be given the opportunity to express them freely, given due weight according to developmental capacity |
| LPA 2015 s 5(2) | The Office must supply information, an opportunity to express views, assistance, and an explanation of the decision |
| LPA 2015 s 103(2)(a) | The child’s views are an express consideration in a parenting order |
| LPA 2015 s 101(2)(b) | The child may apply for a parenting order |
| LPA 2015 s 49(5) | Where the child refuses to return to a parent, the Office must place the child and arrange mediation |
The Lukautim Pikinini provisions require the child’s views to be sought and given due weight. Section 22 goes further: for a child of 12 or over, consent is a precondition to the order, and the exception requires the Court to find special reasons.
That reflects what adoption does. Under section 28 it permanently ends the child’s legal relationship with their birth family and creates a new one, affecting inheritance, name and domicile. A child old enough to understand that should not have it done to them without their agreement.
Where a child of 12 or over does consent, the Act does not prescribe a separate form; section 18’s instrument of consent requirement applies to consents “for the purposes of the preceding provisions of this Division”. In practice the Court will want the child’s consent recorded in a form that shows it was informed and freely given — and the hearing is held in camera under section 62, with the child’s identity protected by sections 45 and 63.
Sources
- Adoption of Children Act (Chapter 275) — ss 5, 9, 17, 18, 20–22, 28, 45, 62, 63
- Lukautim Pikinini Act 2015 — ss 5, 49, 101, 103
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.