Between the giving of a consent and the making of an adoption order, someone must be legally responsible for the child. Section 23 of the Adoption of Children Act (Chapter 275) says who.
Where the consent of every person whose consent is required under section 15 —
(a) has been given and is a general consent; or
(b) has been dispensed with by an order made under section 21,
the Director is the guardian of the child for all purposes (other than the purposes of section 15) to the exclusion of all other persons.
The two triggers, and a further condition
Paragraph (a) requires a general consent — a consent under section 16(1) to adoption by any person or persons in accordance with the law.
A consent under section 16(2) — expressed in favour of a relative, or two persons one of whom is a parent or relative — does not trigger paragraph (a). Where a mother consents to her sister adopting her child, the child is not handed into the Director’s guardianship; the family arrangement continues.
That is right. The Director’s guardianship exists for the child whose future carers are unknown, not for the child staying within the family.
Subsection (1) does not apply to a child —
(a) who is a ward within the meaning of the child welfare legislation; or
(b) until the Director has (i) received written notice that a general consent has been given; and (ii) signified, in the prescribed manner, his acceptance of the guardianship.
Guardianship is not thrust on the Director automatically. Paragraph (b) requires written notice of the consent and a formal acceptance in the prescribed manner.
Paragraph (a) avoids a conflict: a child already a ward is in the child welfare system, and section 23 does not disturb that. The child welfare legislation referred to has since been replaced — section 121 of the Lukautim Pikinini Act 2015 repealed the Child Welfare Act (Chapter 276), and section 122 of that Act provides that references to it are read as references to the 2015 Act.
Section 23(1)(c) to (h) — the six terminating events
| Para | Event |
|---|---|
| (c) | An adoption order is made in respect of the child |
| (d) | The instrument of consent is lawfully revoked |
| (e) | The Director, by instrument under his hand, releases the child to its parents or one of its parents |
| (f) | The Director renounces guardianship under Division 3 (reciprocating states) |
| (g) | The child becomes a ward under the child welfare legislation |
| (h) | The Court, by order, makes other provision for the guardianship of the child |
A release under subsection (1)(e) revokes any consent given by the parents or one of them to the adoption of the child.
Where the Director returns the child to a parent, the consent that made the child available for adoption is automatically revoked. The parent does not have to take any step, and the consent cannot lie dormant to be relied on later.
That is a real protection. Without it, a parent who took the child back could find the old consent still supporting an adoption application months afterwards.
Sections 23(4) to (6)
Where the Director has become guardian and has not, within a period of one year, ceased to be the guardian, he shall make a written report to the Court concerning the child, and the Court shall make such order for the care and control of the child as it thinks fit.
An order under subsection (4) may declare (a) the child to be a ward; or (b) that the child shall remain under the guardianship of the Director for a further period of one year. A declaration of wardship has effect as if made under the child welfare legislation.
Subsection (4) is the safeguard against a child remaining in limbo. If no adoption has happened within a year, the matter goes back to the Court — not to the Director’s continuing discretion.
The same structure appears in section 12, which applies where an adoption application is refused: the Court may make such order for the care and control of the child as it thinks proper, including wardship or a further year of the Director’s guardianship.
Compare section 52(3) of the Lukautim Pikinini Act 2015, which requires the Director to have regard to securing settled and permanent living arrangements for a child in permanent care.
Sections 23(7) and (8)
(7) The Director may, on such terms and conditions as he thinks fit, place a child of whom he is guardian in the care of any suitable person who has agreed to have the child in his care.
(8) The fact that the Director is guardian does not affect the liability of any other person to provide adequate means of support for the child.
Subsection (8) matters: guardianship by the Director does not relieve a parent of the duty to maintain. That duty survives under section 8 of the Lukautim Pikinini Act 2015, and a maintenance order may still be sought. The guardianship ends, and the child’s legal parentage changes, only when the adoption order is made under section 28.
Sources
- Adoption of Children Act (Chapter 275) — ss 12, 15–17, 21, 23–27, 28
- Lukautim Pikinini Act 2015 — ss 8, 52, 121, 122
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.