Section 2 of the Adoption of Children Act (Chapter 275) confers the jurisdiction. Section 3 says when it may be used.
The Court shall not make an order for the adoption of a child unless at the time of the filing in the Court of the application for the order —
(a) the applicant, or (in the case of joint applicants) each of the applicants, was resident or domiciled in the country; and
(b) the child was present in the country.
Reading the conditions
| Who | Requirement | When |
|---|---|---|
| The applicant, or each joint applicant | Resident or domiciled in the country | At the time of filing |
| The child | Present in the country | At the time of filing |
“Resident or domiciled” is a low threshold. Either will do. Residence is a question of fact — where a person actually lives — and does not require the settled intention that domicile does. A long-term expatriate resident qualifies.
“Each of the applicants” means that on a joint application by a husband and wife under section 7(1), both must satisfy paragraph (a). One cannot carry the other.
The child need only be present. Not resident, not domiciled — simply present in the country when the application is filed. A child brought here from elsewhere may be within paragraph (b).
Both conditions are tested at the time of the filing in the Court of the application, not at the date of the hearing or of the order.
That gives certainty. Adoption proceedings take time; applicants may travel, and a child may leave the country. Once the conditions were met at filing, later changes do not deprive the Court of jurisdiction.
Section 3(2)
Where the Court is satisfied — (a) that an applicant was resident or domiciled in the country; or (b) that the child was present in the country — within 21 days before the date on which an application was filed, the Court may, in the absence of evidence to the contrary, presume that the applicant was resident or domiciled, or that the child was present, at the time of the filing.
Proving a state of affairs on a precise day is awkward. Section 3(2) allows the Court to work from evidence covering any point in the 21 days before filing and presume it continued to the filing date.
It is a rebuttable presumption — it operates “in the absence of evidence to the contrary” — and it is discretionary: the Court may presume, not must.
In practice it means an affidavit as to residence, or evidence that the child was in the country in the weeks before filing, will ordinarily be enough.
Section 4 — private international law excluded
The jurisdiction of the Court to make an adoption order is not dependent on any fact or circumstance not expressly specified in this Act.
At common law, a court asked to change a person’s status would inquire into its connection with the parties — domicile, nationality, habitual residence. Section 4 shuts that inquiry down.
If sections 3(1)(a) and (b) are satisfied, the Court has jurisdiction. Nothing else is required, and no argument based on the child’s nationality, the parents’ domicile, or the law of another country goes to jurisdiction.
Contrast the Matrimonial Causes Act (Chapter 282): section 14 requires domicile for a divorce, and section 79(5) expressly preserves the common law rules of private international law for recognising foreign decrees.
It removes extra jurisdictional requirements. It does not remove the substantive conditions in Part III, all of which still apply:
- Section 6 — who may be adopted;
- Section 7 — in whose favour an order may be made;
- Section 8 — the age of adopters;
- Section 9 — the Director’s written report and the matters the Court must be satisfied of;
- Sections 15 to 23 — consents;
- Section 5 — the welfare and interest of the child as the paramount consideration.
Recognition of an adoption made outside Papua New Guinea is a separate question, dealt with in Part IV — sections 37 to 39 — where the connecting factors do matter. And an adoption effected by custom needs no National Court proceeding at all: see Part VI.
Sources
- Adoption of Children Act (Chapter 275) — ss 1–9, 15–23, 36–39, 52–58
- Matrimonial Causes Act (Chapter 282) — ss 14, 79
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.