Division 5 of Part XII of the Lukautim Pikinini Act 2015 deals with guardianship in a single section.
Section 104(1) — the effect of appointment
A person who is appointed under this section as a child’s guardian has parental responsibility for the child.
Because section 2 defines “custody” as parental responsibility, a guardian holds what a parent holds: where the child lives, decisions about schooling, medical treatment and religion, and the section 8 duty to maintain the child, together with the section 5(4) obligations.
Section 8(2) applies directly: it is the duty of any person having custody of a child to protect the child from discrimination, violence, abuse, neglect and exploitation.
Section 104(2) — the two grounds
(a) if no person has parental responsibility for the child; or
(b) if a parenting order that deals with whom a child is to live with has been made in favour of a person who has subsequently died, or who cannot be found, or refuses to act.
| Ground | Typical situation |
|---|---|
| (a) No person has parental responsibility | Both parents dead, and no relative has taken responsibility under section 9(2); a child abandoned with no parent traceable |
| (b) The person named in a parenting order has died | The order can no longer operate |
| (b) That person cannot be found | They have left the area or the country |
| (b) That person refuses to act | They will not take up the responsibility ordered |
“No person has parental responsibility” is not easily satisfied in Papua New Guinea, because section 9(2) allows relatives of either parent to exercise parental responsibility in accordance with custom where the natural parents are dead or physically unable to act — without any court order or document.
So the orphan absorbed into the extended family under custom already has someone with parental responsibility, and needs no guardian. Section 104(2)(a) reaches the child for whom nobody has stepped forward.
Section 104(3) — appointing a guardian in advance
A person who has parental responsibility for a child may, by deed or will, appoint any person or two or more persons jointly to be the guardian or guardians of the child after the person’s death, and an appointment so made has effect after the person’s death in accordance with the appointment.
No court is needed. The appointment takes effect on death, in accordance with its terms. It is a private act of a person with parental responsibility.
Joint guardians are permitted. Two or more persons may be appointed jointly — commonly a couple.
It fits section 9(2)(b). That paragraph already recognises deed or will as a route by which relatives may exercise parental responsibility where the natural parents are dead or unable to act. Section 104(3) is the fuller machinery.
A testamentary guardian is worth making where a parent is seriously ill, or where the obvious customary carer is not the person the parent would choose. It also gives certainty in advance, rather than leaving the question to be resolved after a death.
Section 104(4) — removing a guardian
A court may, on being satisfied that it is in the best interests of a child, remove from office any guardian — whether appointed under the provisions of this Act or by will or otherwise — and may also, if it considers it to be in the best interests of the child, appoint another guardian in place of the guardian so removed.
The words “whether appointed under the provisions of this Act or by will or otherwise” mean no guardian is beyond removal. A parent’s testamentary choice binds until a court decides otherwise; it does not bind the court.
The test is the best interests of the child — the same standard that governs everything else under the Act, made paramount by section 5(1)(a).
A guardian who neglects or ill-treats the child may also face criminal liability, and the child may be a child in need of protection under paragraph (d) of the section 2 definition — which expressly covers harm by a parent or guardian.
Guardianship among the other orders
Section 101 — a parenting order. A guardian is among those who may apply for one, under section 101(2)(e).
Section 99 — a temporary or permanent protection order; a permanent order makes the Director responsible for the child’s care, well-being and property until 18.
Adoption under the Adoption of Children Act (Chapter 275) — permanent, and it changes the child’s legal parentage. Guardianship does not.
Section 74 of the Matrimonial Causes Act — the National Court’s power over custody, guardianship, welfare, advancement or education of children of a marriage, exercisable only in a matrimonial cause.
Guardianship is one of the six heads of Family Court jurisdiction under section 88(e), so an application is made by complaint, and an appeal lies to the National Court within 40 days.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 8, 9, 88, 99, 101–104, 115
- Adoption of Children Act (Chapter 275)
- Matrimonial Causes Act (Chapter 282) — s 74
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.