Division 2 of Part III of the Adoption of Children Act (Chapter 275) deals with consents. Section 15 identifies whose consent is needed.
Subject to this Division, the Court shall not make an order for the adoption of a child unless —
(a) a consent (not being a consent that has been revoked) has been given by the appropriate person; or
(b) the Court is satisfied that there is no such appropriate person.
Section 15(2) — three cases
| The child | Appropriate persons |
|---|---|
| (a) Legitimate, not previously adopted | The persons who are parents and the guardians of the child |
| (b) Illegitimate, not previously adopted | The mother and the guardians of the child |
| (c) Previously adopted | The adoptive parents and the guardians of the child |
Paragraph (b) names only the mother and the guardians. The putative father’s consent is not required — even though section 1 defines “father”, in relation to an illegitimate child, as the putative father.
He is not without recourse. Under section 10(4) the Court may direct that notice be given to any person where it is necessary in the interests of justice, and under section 11 he may then apply to be joined to oppose the application. If he has custody under a court order, he is a guardian within section 1 and his consent is required.
Includes (a) a person having custody of the child under a court order; (b) a person who is or is deemed to be the guardian under a law of Australia or a State or Territory of Australia; and (c) a guardian by custom.
A guardian by custom is an appropriate person under all three limbs of section 15(2). Where a child is being raised by relatives under customary arrangements — as most children in Papua New Guinea in that position are — those relatives’ consent is required.
That single phrase brings the customary reality into the statutory scheme. See also section 9(2)(a) of the Lukautim Pikinini Act 2015, which recognises custom as a route to parental responsibility.
Sections 15(3) and (4)
(3) The consent of a person is not required if that person is the applicant, or one of the applicants.
(4) This section does not apply in the case of a child who has attained the age of 21 years before the making of the adoption order.
Where section 7(4) is used — a husband and wife adopting jointly where one is a natural parent — that parent does not consent to their own application.
But the other natural parent’s consent is still required, unless dispensed with under section 21.
Subsection (4) fits the pattern for adult adoptions: section 9(2) replaces the welfare inquiry, and section 9(4)(a) removes the medical report. A person over 21 does not need a parent’s permission to be adopted.
The Court may proceed where it is satisfied that there is no such appropriate person — both parents dead, and no guardian, whether by court order or by custom.
This is different from section 21, which dispenses with the consent of a person who exists but whose consent cannot properly be required. Section 15(1)(b) applies where no such person exists at all.
Section 16 — general consent is the rule
(1) Every consent to the adoption of a child (a) shall be a consent to the adoption of the child by any person or persons in accordance with the law; and (b) has effect accordingly in relation to an application by any person under this Act.
(2) Subsection (1) does not apply in relation to a consent expressed to be a consent to the adoption of a child by a relative of the child, or by two persons one of whom is a parent or relative of the child.
| General consent — s 16(1) | Consent under s 16(2) | |
|---|---|---|
| Consents to adoption by | Any person or persons in accordance with the law | A named relative, or two persons one of whom is a parent or relative |
| Consenting parent knows the adopters? | No | Yes |
| Effect on guardianship | Triggers section 23 — the Director becomes guardian | Section 23 not triggered by s 23(1)(a) |
A general consent is what makes anonymous adoption possible. The parent consents to adoption by anyone lawfully approved, never learning who the adopters are — which is why section 10(2) forbids a notice to identify them, and why the Court’s only avenue for the parent’s wishes is section 9(1)(b)(ii) — wishes about religious upbringing expressed in the instrument of consent.
Section 16(2) recognises that within a family, anonymity is neither possible nor desirable. A mother consenting to her sister adopting her child is consenting to that adoption, not to any adoption.
Section 1 defines “general consent” as a consent other than one referred to in section 16(2), and “relative” as a grandparent, brother, sister, uncle or aunt, of the whole or half blood or by affinity.
A consent must be in the prescribed form under section 18, may be revoked under section 17, and may be refused effect if defective under section 20. Where the child is 12 or over, the child’s own consent is required under section 22.
Sources
- Adoption of Children Act (Chapter 275) — ss 1, 7, 9–11, 15–23
- Lukautim Pikinini Act 2015 — s 9
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.