Section 6 of the Adoption of Children Act (Chapter 275) defines who may be the subject of an adoption order.
Subject to this Act, the Court may, on application, make an order for the adoption of a person who —
(a) had not attained the age of 21 years before the date on which the application was filed in the Court; or
(b) 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.
Paragraph (a) — under 21 at filing
This Act uses 21, consistent with its own definition in section 1: “child” means 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.
That differs from the Lukautim Pikinini Act 2015, whose section 2 defines a child as a person under 18, and from section 7 of the Marriage Act, which sets marriageable age at 18 for a man and 16 for a woman.
The test is the age before the date the application was filed — so a person who turns 21 during the proceedings remains adoptable, and the second limb of the section 1 definition keeps them a “child” for the Act’s purposes.
Paragraph (b) — no age limit at all
A person who 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.
Paragraph (b) has no age limit. A person of 30 or 50 who was raised by the applicants as their child may be adopted.
It exists to allow the law to catch up with fact. A child taken in under custom, raised, fed and schooled by a family for decades, may need formal recognition — typically for inheritance, or for a document that requires proof of parentage.
All three elements must be present: brought up, maintained and educated, as his or their child. Occasional care is not enough; the relationship must have been that of parent and child in substance.
The reference to a deceased spouse allows a surviving widow or widower to adopt a person the couple raised together.
Where the person has attained 21 before the order is made, section 9(2) replaces the ordinary requirements with two: the Court must be satisfied that the applicants are of good repute, and that exceptional circumstances make it desirable that the child should be adopted.
Section 9(4)(a) also removes the requirement of a medical report where the person has attained 21, and section 15(4) removes the requirement of parental consent in the same case.
Section 6(2) — the absolute bar
The Court shall not make an order for the adoption of a person who is, or has been, married.
The bar is absolute and permanent. A person who has married — even if the marriage has since ended by death, divorce or nullity — can never be adopted.
The reason is that marriage marks the point at which a person establishes their own family. Adoption creates the relationship of parent and child, and section 6(2) treats that as inconsistent with a person who has already formed a marital family of their own.
Note that this includes a customary marriage, which section 3 of the Marriage Act recognises as fully valid.
Section 6(3) — a child already adopted
An order may be made notwithstanding that the child has previously been adopted — whether before or after the commencement date, and whether in the country or elsewhere.
| Person | Adoptable? |
|---|---|
| Under 21 at the date of filing | Yes — s 6(1)(a) |
| Any age, if brought up, maintained and educated by the applicants as their child | Yes — s 6(1)(b) |
| Already adopted, here or elsewhere | Yes — s 6(3) |
| Is, or has ever been, married | No — s 6(2) |
Where a child has previously been adopted, section 15(2)(c) makes the adoptive parents and the guardians the appropriate persons whose consent is required — not the natural parents, whose legal relationship with the child ended on the first adoption under section 28.
Everything in section 6 is subject to section 5: for all purposes of Part III, the welfare and interest of the child concerned shall be regarded as the paramount consideration. Section 6 sets the outer limits; section 5 governs whether an order should be made within them.
Sources
- Adoption of Children Act (Chapter 275) — ss 1, 5–9, 15, 28
- Marriage Act (Chapter 280) — ss 3, 7
- Lukautim Pikinini Act 2015 — s 2
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.