Section 18 of the Adoption of Children Act (Chapter 275) sets the form a consent must take.
A consent for the purposes of the preceding provisions of this Division shall be evidenced by an instrument of consent in the prescribed form, signed by the person giving the consent and authenticated as prescribed.
The three elements
| Element | What it means |
|---|---|
| An instrument of consent | A document. Oral consent has no effect under the Act |
| In the prescribed form | The form set out in the regulations — “this Act” includes the regulations (s 1) |
| Signed and authenticated as prescribed | Signed by the person consenting, and witnessed in the prescribed manner |
A consent to adoption is among the most consequential documents a person can sign. Under section 28 an adoption order permanently ends the legal relationship between the child and the birth family.
The prescribed form ensures the consenting parent is told what they are doing. The authentication requirement ensures an independent person witnesses it — which is why section 50 makes improperly witnessing a consent an offence, and section 47 makes it an offence to personate a person whose consent is required.
A defect in form is not automatically fatal, but it engages section 20(1)(a): the Court may refuse to make an order in reliance on a consent that was not given in accordance with this Act.
What the instrument carries
Whether the consent is general or specific. Section 16(1) makes every consent a general consent — to adoption by any person or persons in accordance with the law — unless it is expressed to be a consent to adoption by a relative, or by two persons one of whom is a parent or relative (s 16(2)). That expression must appear in the instrument.
Wishes about religious upbringing. Section 9(1)(b)(ii) requires the Court to have regard to any wishes expressed by a parent or guardian in an instrument of consent with respect to the child’s religious upbringing. That is the only influence a parent giving a general consent has over the child’s future.
The date of signing. The 30-day revocation window in section 17(1)(a) runs from the date on which the instrument of consent was signed, and section 20(2) and (3) turn on whether the mother signed before the birth, or within seven days after it.
Section 19 — consents given in Australia
(1) For the purposes of an application under this Act, a consent given in accordance with the law of a State or Territory of Australia that would be an effective consent under that law if the application had been made in that State or Territory is an effective consent.
(2) A certificate by the prescribed authority of that State or Territory that the consent would be an effective consent under the law of the State or Territory is evidence of that fact.
A parent living in Australia cannot easily execute a Papua New Guinean prescribed form with local authentication. Section 19 lets them consent under the law where they are, and gives that consent full effect here.
Subsection (2) removes the need to prove Australian law as a fact: a certificate by the prescribed authority is evidence.
The provision is one of several reflecting the pre-Independence relationship. Section 1 defines “guardian” to include a person deemed a guardian under a law of Australia or of a State or Territory of Australia, and section 37 deals separately with the recognition of Australian adoptions.
Section 20(3) forbids an order in reliance on a consent signed by the mother on, or within seven days after, the birth, unless it is proved she was in a fit condition to consent.
That restriction is expressed to apply “except where the consent has been given as provided by section 19”. A consent effective under Australian law is therefore not subject to the seven-day rule — the Australian legislation supplies its own safeguards.
A consent in proper form may still be revoked within the section 17 window, refused effect as defective under section 20, or dispensed with under section 21. And presenting a forged consent is an offence under section 48 — see the adoption offences.
Sources
- Adoption of Children Act (Chapter 275) — ss 1, 9, 15–21, 28, 37, 47–50
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.