A refused adoption application leaves a child whose future is unresolved. Section 12 of the Adoption of Children Act (Chapter 275) requires the Court to deal with that.
(1) Where the Court refuses an application for an order for the adoption of a child, the Court may make such order for the care and control of the child as it thinks proper.
(2) Without limiting subsection (1), an order may declare —
(a) the child to be a ward within the meaning of the child welfare legislation; or
(b) that the child shall remain under the guardianship of the Director for a further period of one year.
The problem section 12 solves
By the time an application is refused, a good deal has usually happened. The consents may have been given as general consents, which under section 23(1) made the Director the guardian of the child to the exclusion of all other persons. There may have been an interim order under section 33 placing the child with the applicants for up to two years.
The child cannot simply be returned to a position that no longer exists. Section 12 requires the Court to decide what happens next, in the same proceeding.
Section 9(1) — the Court is not satisfied that the applicants are of good repute and fit and proper, or suitable for this child, or that the child’s welfare and interests will be promoted by the adoption.
Section 15 — a required consent has not been given, and the Court will not dispense with it under section 21.
Section 20 — the Court refuses to rely on a defective consent.
Section 22 — a child of 12 or over has refused to consent and no special reasons justify proceeding.
Sections 6 to 8 — a gateway requirement is not met.
Section 12(2) and (3)
| Order | Effect |
|---|---|
| Wardship — s 12(2)(a) | Has effect, for all purposes, as if made under the child welfare legislation (s 12(3)) |
| Further year of the Director’s guardianship — s 12(2)(b) | Keeps the position under review; the Director may place the child under s 12(4) |
| Any other proper order — s 12(1) | Return to a parent, placement with a relative, or any other arrangement the Court thinks proper |
Section 12(2)(a) and (3) refer to wardship under the Child Welfare Act, which section 121 of the Lukautim Pikinini Act 2015 has repealed. Section 122 of that Act provides that references to the repealed Act are read as references to the Lukautim Pikinini Act 2015.
The modern equivalents are the temporary and permanent protection orders under section 99 of the 2015 Act, and the Director’s responsibilities under section 52 — including, for a child in permanent care, responsibility for the child’s care, well-being and property until the child reaches 18.
Sections 12(4) and (5)
The Director may, on such terms and conditions as he thinks proper, place a child of whom he is the guardian under subsection (2) in the care of any suitable person who has agreed to have the child in his care.
The fact that the Director is the guardian of a child under this section does not affect the liability of any other person to provide adequate means of support for the child.
Guardianship by the Director is not a substitute for parental maintenance. A birth parent’s duty under section 8 of the Lukautim Pikinini Act 2015 continues, and a maintenance order may be sought in the Family Court.
The same words appear in section 23(8), and the same placement power in section 23(7). The two sections mirror each other — section 23 covering the period before a decision, section 12 the position after a refusal.
The one-year pattern
Section 12(2)(b) — a further year of the Director’s guardianship after a refusal.
Section 23(4) — where the Director has been guardian for a year without ceasing to be, he shall make a written report to the Court, and the Court shall make such order for care and control as it thinks fit.
Section 34(2) — interim orders may not be in force for periods exceeding two years in aggregate.
Each requires the matter to come back before the Court at intervals, so that no child is left indefinitely in a provisional arrangement. That concern is stated directly in the modern legislation: section 52(3) of the 2015 Act requires regard to securing settled and permanent living arrangements, and section 5(1)(n) requires decisions to be made expeditiously, having regard to the child’s sense of time.
Whatever order the Court makes under section 12, section 5 governs: for all purposes of Part III, the welfare and interest of the child concerned shall be regarded as the paramount consideration.
Sources
- Adoption of Children Act (Chapter 275) — ss 5–9, 12, 15, 20–23, 33–35
- Lukautim Pikinini Act 2015 — ss 5, 8, 52, 99, 108, 121, 122
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.