Section 20 of the Adoption of Children Act (Chapter 275) protects against consents that look valid but are not.
Section 20(1)
The Court may refuse to make an adoption order in reliance on a consent given or purporting to have been given by a person (other than the child) if it appears to the Court that —
(a) the consent was not given in accordance with this Act; or
(b) the consent was obtained by fraud, duress or other improper means; or
(c) the instrument of consent has been altered in a material particular without authority; or
(d) the person giving or purporting to give the consent was not, on the date of the instrument, in a fit condition to give the consent, or did not understand the nature of the consent.
| Ground | Typical case |
|---|---|
| (a) Not in accordance with the Act | Not in the prescribed form, not properly authenticated, or given by a person who is not an appropriate person |
| (b) Fraud, duress or improper means | Pressure from family or an intermediary; misrepresentation about what the document does; payment — see s 42 |
| (c) Altered without authority | Words added or removed after signing — for instance turning a s 16(2) consent into a general consent |
| (d) Not fit, or did not understand | Signed while heavily medicated, exhausted after childbirth, seriously ill; or without the document being explained in a language the person understands |
Section 20(1) does not invalidate the consent automatically. The Court may refuse to rely on it.
That discretion is exercised under section 5: the welfare and interest of the child as the paramount consideration. A minor formal irregularity in a consent that was plainly informed and voluntary need not defeat an adoption that is right for the child.
Ground (d) is the one most often engaged, and it has two independent limbs: not in a fit condition, and did not understand the nature of the consent. In a country of over 800 languages, the second limb is a real safeguard: a person who signed a document they could not read, without explanation in a language they understand, did not understand its nature.
Section 20(2) — an absolute bar
The Court shall not make an adoption order in reliance on an instrument of consent signed by the mother of the child before the birth of the child.
Unlike subsection (1), this is not a discretion. A pre-birth consent by the mother can never support an adoption order.
The reason is that a woman cannot make an informed decision about a child she has not met. A pre-birth arrangement — particularly one made under pressure, or for payment — is exactly what the Act refuses to give effect to. Compare section 42, which prohibits payments in consideration of adoptions, and section 43, which prohibits unauthorised arrangements for adoption.
Section 20(3) and (4) — the seven-day rule
Except where the consent has been given as provided by section 19, the Court shall not make an adoption order in reliance on an instrument of consent signed by the mother on, or within seven days after, the day on which the child was born, unless it is proved that, at the time when the instrument was signed, the mother was in a fit condition to give the consent.
A certificate purporting to be by a medical practitioner or nurse certifying that, at the time the instrument was signed, the mother was in a fit condition to give the consent, is evidence of the matter certified.
For a consent signed in the first seven days, the burden is on those relying on it: unless it is proved that the mother was in a fit condition, the order cannot be made.
Everywhere else in section 20 the Court asks whether a defect appears. Here it must be positively satisfied.
Subsection (4) provides the practical route: a certificate from a medical practitioner or nurse. Including nurses is significant — in much of Papua New Guinea births are attended by nursing staff at an aid post or health centre rather than by a doctor.
The exception for a section 19 consent — one given effectively under the law of an Australian State or Territory — exists because that law supplies its own safeguards.
Where the defect emerges after the order
Section 20 operates before an adoption order is made. Once the order exists, the remedy is discharge under section 13, on the ground 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.
Two limits apply. Only the Director or the Attorney-General may apply, and section 13(2) provides that the Court shall not make the order if it would be prejudicial to the welfare and interests of the child.
Conduct producing a defective consent may also be criminal: section 49 — undue influence; section 48 — presenting a forged consent; section 47 — personation of a person whose consent is required; section 50 — improperly witnessing a consent; and section 46 — a false statement in an application. See the adoption offences.
Where the Court refuses to rely on a consent, the application does not necessarily fail: the Court may dispense with the consent under section 21 if one of the five grounds is made out, and if it refuses the application altogether it may make orders for the child’s care and control under section 12.
Sources
- Adoption of Children Act (Chapter 275) — ss 5, 12, 13, 15–21, 42, 43, 46–50
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.