Part VI of the Adoption of Children Act (Chapter 275) recognises how most adoptions in Papua New Guinea actually happen.
Notwithstanding any other law but subject to this section, where a child is or has at any time been in the custody of and is being or has been brought up, maintained and educated by any person, or by two spouses jointly, as his, her or their own child under any adoption in accordance with custom, then for the purposes of any law the child shall be deemed to have been adopted by that person or those spouses.
A customary adoption needs no court
Section 53(1) does not create a procedure. It states a legal consequence: where the facts exist, the child shall be deemed to have been adopted — for the purposes of any law.
No application, no National Court proceeding, no consents under section 15, no Director’s report under section 9, and none of the Part III gateways in sections 6 to 8.
The elements are the same three that appear in section 6(1)(b): brought up, maintained and educated — but here they must be under an adoption in accordance with custom, and the child must be or have been in the person’s custody.
Section 53(2) — custom sets the terms
An adoption to which subsection (1) applies takes effect in accordance with the custom that is applicable and is subject to any provisions of that custom as to limitations and conditions — including limitations and conditions as to —
- the period of the adoption;
- rights of access and return;
- property rights or obligations.
| Customary — Part VI | Statutory — Part III | |
|---|---|---|
| Court needed | No (a Local Court may certify) | National Court order |
| Permanent? | Not necessarily — custom may limit the period | Yes — s 28; discharge only under s 13 |
| Birth family relationship | As custom provides — rights of access and return may survive | Ends entirely — s 28(1)(b) |
| Property | As custom provides | ss 28, 29 |
| Name and domicile | Not altered by the Act | ss 30, 31 |
A statutory adoption severs the birth relationship completely and permanently. A customary adoption does whatever the applicable custom does — and custom in much of Papua New Guinea preserves the child’s ties to the birth family, including rights of access and return and continuing rights in the birth clan’s land.
Section 53(2) does not force customary adoption into the statutory mould. It gives it legal effect on its own terms.
Section 52 reinforces the point: nothing in this Part derogates from the provisions of the Customs (Recognition) Act. And Constitution Schedule 2.1 adopts custom as part of the underlying law, except where inconsistent with a statute or repugnant to the general principles of humanity — a limit given specific content for children by section 80 of the Lukautim Pikinini Act 2015.
The Customs (Recognition) Act (Chapter 19) and the Local Courts Act (Chapter 41) are not available on PacLII at the time of writing.
Sections 54 to 56
A Local Court may, on application by a party (including a natural or adoptive parent and the adopted child), and on being satisfied that the adoption has been made or has terminated in accordance with custom and as to any relevant limitations and conditions, grant a certificate to that effect.
Subject to Part VI of the Local Courts Act (Chapter 41), such a certificate is conclusive as to (a) the adoption or its termination, and (b) the relevant limitations and conditions.
The adoption is already effective without one. But a certificate is conclusive evidence, and that matters when the adoption must be proved to someone outside the community — a bank, a school, an employer, an executor distributing an estate, or a court.
Note who may apply: any party, expressly including a natural parent, an adoptive parent, and the adopted child. An adopted person may therefore obtain a certificate of their own status.
The certificate also records the limitations and conditions — the period, access, return, property. That is often the most valuable part, because it fixes what the custom actually provided.
Section 55 — a Local Court may vary a certificate on being satisfied that the circumstances of the adoption, or the custom applicable, have changed.
Section 56 — where the Local Court is not satisfied that a relationship of adoption exists but is satisfied that a relationship of fosterage or guardianship by custom exists or existed, it may so declare in a certificate, and the preceding provisions apply with the necessary modifications.
Not every arrangement in which a child is raised by relatives is an adoption. Some are fosterage; some are guardianship. Section 56 lets the Local Court certify what the relationship actually is, rather than forcing a choice between adoption and nothing.
That matters elsewhere in the Act: section 1 defines “guardian” to include a guardian by custom, whose consent is required under section 15. A section 56 certificate establishes that status conclusively.
Sections 57 and 58
A Local Court shall not grant or vary a certificate unless it is satisfied that all persons interested have had a reasonable opportunity of making any representations they wish to make on the subject of the certificate.
The grant or refusal of an application under this Part, and the terms of the grant, are deemed to be a decision of a Local Court for the purposes of Part VI of the Local Courts Act (Chapter 41) — so the ordinary Local Court appeal route applies.
Section 57 is a natural justice requirement in statutory form — consistent with Constitution section 59. It matters because a certificate is conclusive: a person whose interests it affects must be heard before it issues. Section 58 then supplies the remedy if they are not.
Sources
- Adoption of Children Act (Chapter 275) — ss 1, 6, 13, 15, 28–31, 52–58
- Constitution — ss 59, Sch 2.1
- Lukautim Pikinini Act 2015 — ss 9, 80
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.