What Is Adoption in Papua New Guinea?

Welcome back to the series where PNG Law Explained takes one legal idea at a time and sets it out in language you can actually use. This time we start a new set on a subject that touches almost every family in this country: adoption.

Almost every Papua New Guinean knows a child who is being raised by an aunty, a grandmother, a wantok or a childless couple in the village. In everyday speech we call all of it "adoption". The law is more particular. It recognises two different routes, they work in completely different ways, and knowing which one you are on decides what you can prove when it matters.

Adoption is a change of legal parentage, not just a change of address

Start with what adoption is for.

Plenty of arrangements put a child in someone else's house — fostering, guardianship, a long stay with relatives, a wardship order. In every one of those, the child's legal parents stay the same. The carer is looking after somebody else's child.

Adoption is different. A completed adoption replaces the parent. Section 28 of the Adoption of Children Act (Chapter 275) says that on the making of an adoption order 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 the child "ceases to be a child of any person who was a parent … before the making of the adoption order".

That is the whole point, and it is why the law is careful about it. Adoption is not a favour or a loan. It is a permanent transfer of parenthood.

Route one: an adoption order from the National Court

The formal route runs through the Adoption of Children Act (Chapter 275), an Act that commenced on 23 May 1969 and has stood largely unchanged ever since.

Three things define it:

• Only the National Court can make an adoption order. Section 2 confers the jurisdiction, and section 1 defines "the Court" as the National Court. A District Court cannot do it. A Village Court cannot do it. A church cannot do it. A signed agreement between two families cannot do it.
• The Director must be involved. Section 9 says the Court "shall not make an order for the adoption of a child unless the Director has made a written report to the Court concerning the proposed adoption". The Act calls this officer the Director of Child Welfare; in practice today the function sits with the Director of the Office of Child and Family Services, in the Department for Community Development and Religion. Section 66 also lets the Director appear at the hearing, address the Court, and call and cross-examine witnesses.
• The welfare of the child is paramount. Section 5 is one sentence long and it governs everything else in Part III: "For all purposes of this Part, the welfare and interest of the child concerned shall be regarded as the paramount consideration."

What you get at the end is an adoption order — a court order that changes the child's parentage, surname (section 30) and domicile (section 31) for all purposes of PNG law.

Route two: adoption by custom

The second route is the one most PNG families actually use, and Parliament expressly recognised it.

Section 53 of the same Act provides that where a child is, or has at any time been, in the custody of a person or of two spouses jointly, and is being or has been "brought up, maintained and educated" by them "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.

Read that carefully, because two things follow.

First, customary adoption is real law. You do not need a National Court order for a customary adoption to exist. It exists because the custom was followed and the child was raised as your own.

Second, it is not identical to a court order. Section 53(2) says a customary adoption "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 and property rights or obligations."

That is the crucial difference. A National Court adoption order is permanent, total and the same everywhere in the country. A customary adoption is whatever the applicable custom says it is — and many PNG customs deliberately keep the birth line alive, preserve access for the natural parents, provide for the child to return, or limit what the child inherits.

Courts have felt that difference. In Wai Gende Elewai v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 34 the National Court, assessing damages, treated a customarily adopted child's position differently from a natural child's, noting that where the adoption was a customary one the legal obligations of the adopting parents are not settled. And in Sangumu Wauta v The State [1978] PNGLR 326 the Supreme Court held that "lineal descendant" in the Criminal Code connotes a relationship "of the blood", and so did not extend to a customarily adopted daughter.

The bridge between the two: a Local Court certificate

Parliament did leave a way to put a customary adoption on paper. Section 54 allows a Local Court, on the application of a party — and the Act expressly includes a natural parent, an adoptive parent and the adopted child — to grant a certificate that the adoption "has been so made or has so terminated", together with the relevant limitations and conditions.

Section 54(2) then gives that certificate real weight: subject to Part VI of the Local Courts Act (Chapter 41), it is conclusive as to the adoption or its termination and as to those limitations and conditions.

So the two routes are not sealed off from each other. Custom does the adopting; the Local Court can certify it; and section 52 of the Civil Registration Act then provides for that certificate to be registered.

Who counts as a "child"?

One surprise for most readers: under this Act a "child" is not someone under 18.

Section 1 defines "child" as a person who has not attained the age of 21 years, or a person who has attained that age and in respect of whom an adoption order is sought or has been made. Section 6 backs this up — the Court may make an order for a person who had not turned 21 before the application was filed, or a person who "has been brought up, maintained and educated by the applicant … as his or their child", whatever their age.

The one hard bar is marriage. Section 6(2): the Court "shall not make an order for the adoption of a person who is, or has been, married."

What adoption in PNG is not

• Not a private agreement. Section 43 makes it an offence for anyone other than the Director, or someone acting for the Director, to conduct negotiations or arrange the transfer of a child with a view to adoption — with a carve-out for a parent, guardian or relative arranging an adoption by a relative.
• Not something you can pay for. Section 42 makes it an offence to make, give or receive a payment or reward for an adoption, for a consent, or for the transfer of a child. Only legal expenses, approved medical and hospital expenses, and payments authorised by the Director or the Court are allowed.
• Not public. Section 62 requires that an application under the Act "shall not be heard in open court". Section 63 makes it an offence to fail to protect the identities of the child, parents and adopters. Section 64 keeps the Director's report confidential, and section 65 restricts inspection of the records.
• Not always final. Under section 13 the Director or the Attorney-General may apply to discharge an adoption order where the order or a consent "was obtained by fraud, duress or other improper means", or for some other exceptional reason connected with the welfare of the child.

Where to next in the series

Over the next four articles we build out the foundations: who the law allows to adopt; whose consent is required and how it can be dispensed with; how customary adoption works in more detail; and exactly what changes on the day an adoption order is made.

Then five Frequently Asked Questions articles take on what people actually ring lawyers about — how to apply, adopting a relative's child, getting a customary adoption certified, whether birth parents can change their mind, and whether a foreigner can adopt a PNG child.