Who Can Adopt a Child in PNG?

In the first article of this set we saw that adoption in Papua New Guinea runs on two tracks — a National Court adoption order under the Adoption of Children Act (Chapter 275), and adoption by custom under Part VI of the same Act.

This article deals with the formal track, and with the first question the National Court asks about any applicant: are you even eligible?

Four gates have to be passed before the Court gets to the merits. Miss any one of them and the application fails no matter how good a parent you would be.

Gate 1: Residence or domicile — and the child must be here

Section 3(1) is the jurisdictional gate, and it bites at the moment the application is filed:

"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."

Both limbs, both at filing. Section 3(2) softens the proof a little: where the Court is satisfied that an applicant was resident or domiciled here, or that the child was present here, within 21 days before the filing date, it may presume — in the absence of contrary evidence — that the position was the same on the filing date.

This is not a technicality that judges wave through. In Application for adoption by Rosalind Dawn Glass (2016) N6358 the National Court dismissed an adoption application on exactly this ground. The applicant had already adopted the child by custom, the natural mother had filed her consent, and there was a favourable welfare report — but she was living in Australia when the application was filed and was therefore, in the Court's words, "neither resident nor domiciled within the meaning of s. 3 of the Adoption of Children Act."

The lesson is blunt: sort out your residence before you file, not after.

Section 4 adds that the Court's jurisdiction "is not dependent on any fact or circumstance not expressly specified in this Act" — in other words, once section 3 is satisfied, no imported rule of private international law can take the jurisdiction away.

Gate 2: Married couples, jointly — with a narrow exception

Section 7(1) sets the default and it is strict:

"Except as provided by Subsection (2), an adoption order shall not be made otherwise than in favour of a husband and wife jointly."

So the standard applicant is a married couple applying together.

There are three qualifications:

• Section 7(2) — exceptional circumstances. Where the Court is satisfied that "exceptional circumstances make it desirable to do so", it may make an order in favour of one person. This is the door for a single adopter, and the wording tells you it is a narrow one: the applicant must show something exceptional, not merely that they would be a good parent.
• Section 7(3) — the separated-spouse rule. The Court cannot make an order in favour of one person "if that person is married and is not living separately and apart from his or her spouse." A married person cannot adopt alone while still living with their husband or wife. Either you apply together, or you are genuinely living apart.
• Section 7(4) — step-parent adoptions. An order may be made in favour of a husband and wife jointly "notwithstanding that one of them is a natural parent of the child." This is the provision that lets a parent and their spouse adopt the parent's own child together — the ordinary step-parent adoption.

Gate 3: Age — the applicant's, and the gap

Section 8 sets two separate age requirements. The Court shall not make an adoption order in respect of a child in favour of "a person who or persons either of whom" —

• "has not attained the age of 21 years"; or
• being a male, is less than 18 years older than the child; or being a female, is less than 16 years older than the child.

So the minimum age to adopt is 21. And there must be a generation-sized gap: a man must be at least 18 years older than the child, a woman at least 16 years older.

Section 8 then supplies a release valve. Those requirements do not apply if "the applicant, or at least one of the applicants, is a natural parent of the child" or if "the Court considers that there are exceptional circumstances that justify making the adoption order."

Note the words "either of whom": on a joint application the bar bites if either applicant falls short, not only if both do.

The gap rule catches more families than you would expect. An older sister of 32 adopting a 15-year-old sibling clears it — 17 years. A sister of 30 adopting the same child does not: 15 years is less than the 16 required of a female applicant, and she would have to persuade the Court of exceptional circumstances. Do the arithmetic before you file.

Gate 4: Fit and proper, and suitable for this child

Passing the first three gates only gets you to the real question. Section 9(1) requires the Director's written report, and then requires the Court to be satisfied of three things:

(a) Good repute, fit and proper. The applicants must be "of good repute and are fit and proper persons to fulfil the responsibilities of parents of a child."

(b) Suitable for this particular child. The applicants must be "suitable persons to adopt the child", having regard to "all relevant considerations, including the age, state of health, education (if any) and religious upbringing or convictions (if any) of the child and of the applicants", and to "any wishes that have been expressed by a parent or guardian of the child, in an instrument of consent … with respect to the religious upbringing of the child."

(c) Welfare promoted. The Court must be satisfied that "the welfare and interests of the child will be promoted by the adoption."

Note how (a) and (b) differ. (a) is about you in the abstract. (b) is about the fit between you and this child. A couple can be entirely fit and proper and still not be the suitable adopters for a particular child.

Section 9(3) adds a further requirement: a report in the prescribed form on the child's physical and mental condition, signed by a medical practitioner who examined the child not more than 30 days before the application was filed. Section 9(4) excuses that report where the child has attained the age of 21, or where the applicant is a relative of the child, or where one of two applicants is a parent or relative.

Who can be adopted?

The mirror question. Section 6(1) allows the Court to make an order for the adoption of a person who —

• "had not attained the age of 21 years before the date on which the application was filed in the Court"; or
• "has been brought up, maintained and educated by the applicant or applicants, or by the applicant and a deceased spouse of the applicant, as his or their child."

That second limb is quietly important. It has no upper age limit. A person raised as your child since infancy can be adopted at 25 or 45 — which is exactly the situation of thousands of PNG adults raised by relatives who never got paperwork. Section 9(2) applies a different, lighter test in that case: for an adoptee already over 21, the Court needs only to be satisfied that the applicants are of good repute and that "exceptional circumstances make it desirable that the child should be adopted."

Two limits:

• Section 6(2): no order for the adoption of "a person who is, or has been, married."
• Section 6(3) is permissive, not a limit: an order may be made even though the child has previously been adopted, before or after 1969, in PNG or elsewhere.

A note on the word "relative"

The word does a lot of work in this Act — it relaxes the medical report requirement (section 9(4)), changes how consent operates (section 16(2)), and exempts family arrangements from the offence in section 43.

Section 1 defines it: a grandparent, brother, sister, uncle or aunt of the child, "whether the relationship is of the whole blood or half-blood or by affinity", and notwithstanding that the relationship is traced through, or to, an illegitimate person or depends on the adoption of any person.

"By affinity" means relatives by marriage count. Notice, though, who is not on the list: cousins, and the wider wantok network. In many PNG communities those are the people actually raising the child — but for the purposes of this Act they are not "relatives".

Where to next

You have cleared the gates. The next question is whose signature you need before the Court can act at all — and that is where most adoption applications in this country actually come unstuck.