What an Adoption Order Actually Changes

An adoption order is one of the few court orders in Papua New Guinea that reaches into every corner of a person's legal life at once. It changes who your parents are, what your name is, where you are domiciled, who you inherit from, and who you are related to.

This last article in the set sets out exactly what happens on the day the National Court makes the order.

The core change: new parents, for all purposes

Section 28(1) of the Adoption of Children Act (Chapter 275) does the heavy lifting. On the making of an adoption order —

• (a) "the adopted child becomes a child of the adopters, and the adopters become the parents of the child, as if the child had been born to the adopters in lawful wedlock"; and
• (b) "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"; and
• (c) "the relationship to one another of all persons … shall be determined on the basis of the preceding provisions of this subsection so far as they are relevant"; and
• (d) "any existing appointment of a person, by will or deed, as guardian of the adopted child ceases to have effect"; and
• (e) "any previous adoption of the child (whether effected under the law of Papua New Guinea or otherwise) ceases to have effect",

and all of that applies "for the purpose of all laws."

Paragraph (c) is the one people underestimate. It is not only the parents who change. The adopters' parents become the child's grandparents; their other children become the child's brothers and sisters; their siblings become the child's uncles and aunts. The child is transplanted into a whole family tree, not attached to two people.

Paragraph (b) is the mirror image, and it is why the law surrounds consent with so much protection. The natural parents do not merely lose custody. They stop being parents.

The one relationship the law refuses to cut

There is a single, deliberate exception. Section 28(2) provides that for the purposes of any law relating to a sexual offence, being a law for the purposes of which the relationship between persons is relevant —

• an adoption order, or the discharge of one, "does not cause the cessation of any relationship that would have existed if the adoption order, or the discharging order, as the case may be, had not been made"; and
• "any such relationship shall be deemed to exist in addition to" the new relationships created by the adoption.

In other words: for incest and related offences, the blood relationships survive the adoption and the new legal relationships are added on top. Adoption cannot be used to unlock a prohibited relationship, and it cannot create a loophole in the other direction either.

That provision should be read alongside Sangumu Wauta v The State [1978] PNGLR 326, where the Supreme Court held that "lineal descendant" in the Criminal Code connotes a relationship of the blood and did not cover a customarily adopted daughter. Section 28(2) is about the statutory adoption regime; the position under custom is governed by section 53 and the applicable custom.

Property and inheritance

Section 29(1) carries section 28(1) into "dispositions of property, whether by will or otherwise, and whenever made" — so an adopted child takes as a child of the adopters under wills, settlements and intestacy.

Two exceptions preserve settled arrangements. It does not affect a disposition of property "by a person who, or by persons any of whom, died before the commencement date" (23 May 1969), or one "that has taken effect in possession before the commencement date." Section 29(2) similarly excludes agreements and instruments made or executed before that date, and section 29(5) preserves the operation of any provision in a will or other instrument distinguishing between adopted children and children other than adopted children.

Section 32 protects trustees and personal representatives: they may distribute an estate to the people who appear entitled without first ascertaining whether an adoption has happened, and are not liable to a person claiming through an adoption unless they had notice of the claim before distributing. Section 32(3) preserves the beneficiary's right to follow the property into the hands of anyone other than a purchaser for value.

The practical message for adoptive families: if provision for an adopted child matters, put it in a will. The Act gives the child the status; a will removes the argument.

Name

Section 30(1) provides that on the making of an adoption order the adopted child has, as his surname, "the surname of the adoptive parent or parents", and as his given name or names "such name or names as the Court, on the application of the adoptive parents, approves in the adoption order."

Section 30(2) allows for the child who is already known by another name: where before the order the child "has been generally known by a particular surname", the Court may order in the adoption order that the child have that name as his surname. Section 30(3) confirms that none of this prevents a later change of name in accordance with law.

Domicile

Section 31(1): the adopted child acquires "the domicile of the adoptive parents at the date of the adoption order", and afterwards the child's domicile is determined "as if the child had been born in lawful wedlock to those parents."

Section 31(2) adds a twist with long consequences: that acquired domicile "shall be deemed to be also the child's domicile of origin." Domicile of origin is ordinarily fixed at birth and never entirely lost; here, the adoption rewrites it.

The paperwork: registration and the birth record

The order is not the end of the administration.

Section 59(1) requires the Registrar of the Court to forward an office copy of every adoption order — and of every order under sections 13, 33 or 35 — to the Registrar General. Section 59(2) requires the order, so far as practicable, to contain the adopted child's full names, any authorised alteration of names, sex, date and place of birth; the names of the natural parents; and the names, addresses and occupations of the adopting parents. Section 59(3) requires a separate schedule in Form 1 of the Schedule to the Act.

On the civil registration side, Part VIII of the Civil Registration Act establishes a register of adopted children (section 51), into which the Registrar binds the official or certified copy of every adoption order forwarded to him, together with a registration entry in the prescribed form. Section 54 provides for the re-registration of the birth of an adopted child, and section 55 requires notations to be made on the re-registration entry, on the original birth entry, and in the register of adopted children.

That is the mechanism behind the question every adoptive parent asks — yes, there is statutory provision for the child's birth to be re-registered after an adoption order.

Where the Registrar General has reason to believe the child's birth is registered in another country, section 60 requires a certified memorandum of the order to be sent to the corresponding registration officer of that country.

Privacy after the order

Adoption in PNG is closed by design.

Section 14(1) requires the judge, on completion of the hearing, to seal in an envelope all applications, reports and other documents containing information as to the identities of the child and of the child's parents and guardians, and to have that envelope delivered to the Director; the applicants receive only an abridged copy of the order. Under section 14(2) the Director keeps custody of the envelope and, except by leave of a Judge, no person may inspect its contents; under section 14(3), except by leave of a Judge, no person may inspect a full copy of an adoption order.

Around that sit section 62 (hearings not in open court), section 63 (offence of failing to protect identities), section 64 (the Director's report not to be made available to any person, "including a party to the proceedings", except as the Court orders) and section 65 (records not open to inspection except as the regulations provide).

The consequence is real and worth stating plainly: an adopted person in PNG has no automatic right to see their own adoption file. The route is an application to a Judge for leave.

Adoption is permanent — but not absolutely irreversible

Section 13(1) allows the Director or the Attorney-General — and only them — to apply to discharge an adoption order, where the Court is satisfied either that "the adoption order, or any consent for the purposes of the adoption order, was obtained by fraud, duress or other improper means", or that "there is some other exceptional reason why, in view of the welfare and interests of the child, the adoption order should be discharged."

Section 13(2) is the guard: the Court shall not discharge an order "if it appears to the Court that the making of the order would be prejudicial to the welfare and interests of the child." Even proven fraud does not compel a discharge if discharging would harm the child.

Where 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) then restores the pre-adoption position — rights, privileges, duties, liabilities and relationships become "the same as if the adoption order had not been made" — but without prejudice to anything lawfully done, the consequences of anything unlawfully done, and any proprietary right or interest that vested in any person while the adoption order was in force.

Note who is missing from section 13(1): the adoptive parents and the natural parents cannot apply. Adoption is not something a family can hand back.

A short interim note

One order that is often confused with adoption is the interim order under Division 5. Under section 33 the Court may postpone determining an adoption application and make an interim order for the custody of the child in favour of the applicants, on terms as to maintenance, education and welfare. It lasts up to one year at a time (section 34(1)) and cannot run for periods "exceeding in the aggregate two years" (section 34(2)), and it ceases on the making of an adoption order (section 35(2)).

An interim order gives custody. It does not change parentage. Only the adoption order does that.

That completes the set

Five articles in, the framework should be clear: two routes, one paramount consideration, a heavily protected consent regime, and an order that rewrites a person's legal identity.

The next five articles in the Frequently Asked Questions series take the same law and answer it the way people actually ask it.