Section 28 of the Adoption of Children Act (Chapter 275) is the provision that gives an adoption order its force.
Subject to this Act and to any law that expressly distinguishes between adopted children and other children, 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) before the order, and any such person ceases to be a parent of the child; and
(c) the relationship to one another of all persons — including the child and an adoptive parent or former parent — shall be determined on the basis of the preceding provisions; 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,
for the purpose of all laws.
What paragraph (a) and (b) do together
| Before the order | After the order |
|---|---|
| The child is a child of the birth parents | The child is a child of the adopters, as if born to them in lawful wedlock |
| The birth parents are the child’s parents | They cease to be parents of the child |
| A guardian may be appointed by will or deed | That appointment ceases to have effect |
| A previous adoption may be in force | It ceases to have effect |
These words make the substitution complete. The change is not confined to the Adoption of Children Act; it applies wherever the law asks who a person’s parents or children are.
So an adoption order ends the birth parent’s duty to maintain under section 8 of the Lukautim Pikinini Act 2015, their standing to apply for a parenting order under section 101(2)(a), and the child’s rights of inheritance from them.
Equally it creates all of those on the adoptive side. The adopters owe the section 8 duty; the child inherits from them.
The substitution is not limited to parents. Paragraph (c) determines the relationship to one another of all persons on the same basis.
So the adopters’ parents become the child’s grandparents; the adopters’ other children become the child’s siblings; and the birth family’s relationships end. That matters for the definition of “relative” in section 1 — a grandparent, brother, sister, uncle or aunt, notwithstanding that the relationship…depends on the adoption of any person.
It also matters for the prohibited degrees of relationship in the Marriage Act (Chapter 280) — see whether you can marry a relative by adoption.
“Subject to this Act and to any law that expressly distinguishes”
“Subject to this Act” — other provisions modify the effect, principally section 29 on dispositions of property, sections 30 and 31 on names and domicile, and section 13 on discharge.
“Any law that expressly distinguishes” — where another statute deliberately treats adopted children differently, that statute prevails. The distinction must be express.
Section 29(5) makes the point again for private documents: sections 28 and 29 do not affect the operation of any provision in a will or other instrument distinguishing between adopted children and children other than adopted children.
Section 28(2) — the exception
Notwithstanding subsection (1), for the purposes of any law relating to a sexual offence (being a law for which the relationship between persons is relevant) —
(a) an adoption order, or the discharge of an adoption order, does not cause the cessation of any relationship that would have existed if the order had not been made; and
(b) any such relationship shall be deemed to exist in addition to any relationship existing by virtue of the adoption or its discharge.
For the purposes of sexual offence laws — incest and related offences under the Criminal Code — the adopted child keeps their biological relationships and acquires the adoptive ones.
The reason is obvious and important. If adoption severed the biological relationship for all purposes without exception, a person could lawfully do to a biological sibling or parent what the criminal law exists to prevent. Section 28(2) closes that gap in both directions — it applies equally to the discharge of an adoption order.
The same protective logic underlies section 5 of the Marriage Act and its treatment of relationships arising from adoption within the prohibited degrees.
An adoption order is nisi in no sense — it takes effect on the making. The only way to undo it is discharge under section 13, on the application of the Director or the Attorney-General, on the ground of fraud, duress or other improper means or some other exceptional reason — and never where discharge would be prejudicial to the child’s welfare and interests.
Sources
- Adoption of Children Act (Chapter 275) — ss 1, 13, 28–32
- Marriage Act (Chapter 280) — s 5 and Schedule 2
- Criminal Code (Chapter 262)
- Lukautim Pikinini Act 2015 — ss 8, 101
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.