Section 9 of the Lukautim Pikinini Act 2015 is short, but it is the provision that reconciles the statute with customary child-rearing.
(1) Subject to subsection (2), a parent shall have parental responsibility for the child.
(2) Where the natural parents of a child are deceased or physically unable to perform parental responsibilities, the parental responsibility may be exercised by relatives of either parent in accordance with —
(a) custom; or (b) by deed or will; or (c) by way of a direction of the Director; or (d) a Court Order in accordance with this Act.
Custody and parental responsibility are the same thing
“Custody” means parental responsibility.
“Care” includes parental responsibility, custody and supervision.
Under older law, “custody” and “guardianship” were distinct: custody was physical care, guardianship the authority to decide. The Act collapses the first distinction — custody is parental responsibility.
So a parenting order under section 101, which the Act headnotes as “Parenting Orders (Custody)”, allocates the whole bundle: where the child lives, who decides about schooling, medical treatment and religion, and who bears the section 8 duties.
Guardianship under section 104 remains a separate concept, used where a person other than a parent is appointed to the role.
What parental responsibility requires
| Obligation | Provision |
|---|---|
| Maintain the child — nutrition, immunisation, clothing, shelter, education and guidance, medical attention | s 8(1) |
| Protect from discrimination, violence, abuse, neglect and exploitation | s 8(2) |
| Safeguard and promote health, development and welfare | s 5(4)(a) |
| Protect from harmful social or customary practices | s 5(4)(d); s 80 |
| Protect from harmful employment | s 5(4)(e); s 54 |
| Ensure a known and trusted carer in a parent’s temporary absence | s 5(4)(f) |
| Give the child an opportunity to express views on matters concerning his welfare | s 5(1)(l) |
Subsection (2) — the customary reality
Subsection (2) is engaged only where the natural parents are deceased or physically unable to perform parental responsibilities. It is not a general power for relatives to assume responsibility over a living, capable parent’s objection.
Where it applies, the four routes are:
- (a) Custom — the ordinary arrangement in most of Papua New Guinea, where a child whose parents have died is absorbed into the extended family without any document or order. The Act recognises it directly.
- (b) Deed or will — a parent may provide in advance for who will raise the child.
- (c) A direction of the Director — the administrative route, used where an arrangement needs to be settled without litigation. On the Director’s office, see the Office for Child and Family Services.
- (d) A court order — a parenting order or an appointment of a guardian.
By recognising custom as a route to parental responsibility, section 9(2)(a) means the great majority of arrangements for orphaned children in Papua New Guinea are lawful without any court process.
It also fits section 5(1)(j), which requires that alternative care be found within the child’s own family or community, preserving name, identity, language and cultural and religious ties.
Custom is recognised generally by Constitution Schedule 2.1 as part of the underlying law — but not where it is repugnant to the general principles of humanity. Section 80 makes that limit concrete for harmful customary practices, and Part VI of the Adoption of Children Act deals separately with customary adoption.
Parental responsibility when parents separate
Separation and divorce are not “death or physical inability”. Where parents part and cannot agree, the route is a parenting order under section 101, decided on the section 102 considerations and the section 103 best interests test.
Where the parents were married under the Marriage Act (Chapter 280) and a divorce is on foot, section 74 of the Matrimonial Causes Act gives the National Court its own custody power — but only in that proceeding, and never for a customary marriage.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 7–9, 54, 80, 101–104
- Constitution — Sch 2.1
- Matrimonial Causes Act (Chapter 282) — ss 4, 74
- Adoption of Children Act (Chapter 275) — Part VI
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.