Part V of the Adoption of Children Act (Chapter 275) protects the integrity of the adoption process.
This Part does not apply to acts occurring outside Papua New Guinea, but — except where a contrary intention appears — does apply to acts done in Papua New Guinea in relation to the adoption of children in, or children adopted in, another country.
| Section | Offence | Maximum penalty |
|---|---|---|
| 41 | Taking away or detaining an adopted child by a former parent or guardian; receiving or harbouring such a child | K400 or 6 months |
| 42 | Payments in consideration of adoptions | K400 or 6 months |
| 43 | Unauthorised arrangements for adoption | K400 or 3 months |
| 44 | Restriction on advertising | K400 or 6 months |
| 45 | Publishing the identity of parties | K400 or 6 months |
| 46 | False statement in an application or other matter | K400 or 6 months |
| 47 | Personating a person whose consent is required | K400 or 6 months |
| 48 | Presenting a forged consent | K400 or 6 months |
| 49 | Undue influence on a parent or guardian | K400 or 6 months |
| 50 | Improperly witnessing a consent | K400 or 6 months |
Section 42 — no payment for a child
A person who, whether before or after the birth of a child, makes, gives or receives, or agrees to make, give or receive, a payment or reward for or in consideration of —
(a) the adoption or proposed adoption of the child; or (b) the giving of consent, or the signing of an instrument of consent; or (c) the transfer of possession or control of a child with a view to adoption; or (d) the conduct of negotiations or the making of arrangements with a view to adoption — is guilty of an offence.
(a) a payment of legal expenses; (b) a payment by the adopters, with the written approval of the Director or the approval of the Court, for hospital and medical expenses reasonably incurred in connection with the birth or the ante-natal or post-natal care of mother or child; (c) any other payment or reward authorised by the Director or the Court.
It is an offence to make, give or receive — and to agree to do so. Both the person offering and the person accepting commit the offence, and no money need change hands.
It also catches payments made before the birth, which is the same concern that produces section 20(2): no adoption order may be made in reliance on a consent signed by the mother before the birth of the child.
Everything permitted in subsection (2) either has no element of reward (legal expenses; medical costs), or requires the Director’s written approval or the Court’s approval. Subsection (3) preserves payments lawful under the law of an Australian State or Territory.
Section 43 — only the Director may arrange adoptions
A person other than the Director or a person acting on behalf of the Director who —
(a) conducts negotiations or makes arrangements with another person with a view to the adoption of a child by that other person; or
(b) except in accordance with arrangements made by or on behalf of the Director, transfers, or causes to be transferred, the possession or control of a child to another person with a view to the adoption — is guilty of an offence.
Subsection (1) does not apply to anything done by or on behalf of a parent, guardian or relative of a child, or by two persons one of whom is a parent or relative, with a view to the adoption of the child by a relative of the child.
This is essential. Without it, a family arranging for a grandmother or an aunt to adopt a child would commit an offence — which would criminalise the ordinary Papua New Guinean pattern recognised in Part VI and in section 16(2).
“Relative” is defined in section 1 as a grandparent, brother, sister, uncle or aunt, of the whole or half blood or by affinity.
Sections 44 and 45
An offence to publish, in a newspaper or periodical or by broadcasting, television or public exhibition, any matter indicating — whether or not in relation to a particular child, born or unborn — that (a) a parent or guardian wishes to have a child adopted; (b) a person wishes to adopt a child; or (c) a person is willing to make arrangements with a view to adoption. Subsection (2): unless approved by the Director.
An offence to publish, in a newspaper or periodical or by broadcasting or television, in relation to an adoption application here or under the law of an Australian State or Territory — (c) the name of an applicant, the child, or the father, mother or a guardian; or (d) any matter reasonably likely to enable any of those persons to be identified. Subsection (2): unless published with the authority of the court.
Section 44 stops a market in children forming through advertising. Section 45 protects the anonymity that the whole scheme rests on — alongside section 10(2) (a notice must not identify the applicants), section 14 (documents sealed and delivered to the Director), section 62 (hearings in camera), section 63 (identities not to be revealed) and section 65 (restriction on inspection of records).
Note that section 45(d) uses the same “reasonably likely to enable identification” test as section 96 of the Lukautim Pikinini Act 2015. Omitting names is not enough.
Sections 46 to 50 — protecting the consent
46 — wilfully making a false statement, orally or in writing, for or in connection with a proposed adoption or any other matter under the Act.
47 — personating or falsely representing oneself to be a person whose consent is required, here or under Australian law.
48 — presenting a forged consent: presenting to the Court a document purporting to be an instrument of consent, where the signature was to the presenter’s knowledge forged or obtained by fraud or duress.
49 — undue influence: using or attempting to use force or restraint, doing or threatening injury, or causing or threatening detriment of any kind to a parent or guardian, with a view to (a) inducing them to offer or refrain from offering the child for adoption, or (b) influencing the wishes expressed in an instrument of consent.
50 — improperly witnessing a consent: subscribing as a witness unless (a) satisfied the signer is a parent or guardian; (b) taking the prescribed steps to be satisfied the signer understands the effect of the consent; and (c) the instrument bears the date on which it is signed.
Witnessing a consent is not a formality. The witness must be satisfied of the signer’s status and take prescribed steps to be satisfied that they understand the effect of what they are signing — and must ensure the document is dated, because the 30-day revocation period in section 17 runs from that date.
Failure engages the same matters as section 20(1)(d): a consent given by a person who did not understand its nature may be refused effect.
Section 51 is the filter: proceedings for an offence against this Act shall not be commenced except by the Public Prosecutor or with the written consent of the Public Prosecutor — the same safeguard as in section 95(5) of the Matrimonial Causes Act. Conduct of this kind may also support discharge of an adoption order under section 13, and where a child is sold, section 82 of the Lukautim Pikinini Act 2015 carries a far heavier penalty of five years.
Sources
- Adoption of Children Act (Chapter 275) — ss 1, 10, 13, 14, 17, 20, 40–51, 62, 63, 65
- Lukautim Pikinini Act 2015 — ss 82, 96
- Matrimonial Causes Act (Chapter 282) — s 95
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.