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E, an Infant, Re [1984] PNGLR 19 (1 February 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 19 - Re E, an Infant�

[1984] PNGLR 19

N452(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RE E (AN INFANT)

Rabaul

McDermott J

1 February 1984

INFANTS AND CHILDREN - Adoption - Principles - Welfare and interests of child - Cross cultural adoption - Identity crisis - Need for expert evidence of - Adoption of Children Act (Ch. No. 275).

On an application for adoption of a Papua New Guinean baby girl by non-national persons, (expatriate Australians), with a long and continuing association with Papua New Guinea the Director of Child Welfare objected to the adoption on the ground of the possible psychological and sociological aspects of such adoption.

Held

The effect of any future identity crisis should be the subject of appropriate expert evidence; in the absence of appropriate evidence the court should treat the objection generally as going to the welfare and interests of the child.

Cases Cited

K. and K. v. Director of Child Welfare [1981] P.N.G.L.R. 333.

Application for Adoption

This was an application for adoption of a Papua New Guinean child by expatriate Australians.

Counsel

D. Lightfoot, for the applicant.

1 February 1984

MCDERMOTT J: This is an application for the adoption by an expatriate married couple of a Papua New Guinean baby girl who was placed in their care by a welfare officer employed by the Office of the Director of Child Welfare.

The child is illegitimate and was born at St Marys Hospital, Vunapope, on 2 December 1982 and was given to the applicants on 27 January 1983 pending this application.

Both parents are known that is, their identities are known, to the welfare officers. It was the father of the child who first contacted welfare officer, Clare Konjib, after he had seen the applicants following the birth and requested assistance. He informed her the child�s mother had died of cerebral malaria. In March 1983, he changed his story and then he went to live in Lae.

Inquiries by the welfare Office to confirm the death of the mother and later to find her were unsuccessful. Inquiries were made in both Rabaul and Lae. The mother�s parents were contacted but they do not know of her where-abouts and have renounced all claims and responsibility for the infant.

It is thus clear to me that after all this time the child has been abandoned by the mother and as all reasonable efforts have been made to find her, it is right that I exercise my discretion pursuant to s. 21(1) of the Adoption of Children Act (Ch. No. 275) by relying on subss (a), (c) and (d) to dispense with her consent and notification of this application.

There is evidence, though the actual documents are not before me, that the father in the presence of the welfare officer signed a consent which does not comply with the requirements of s. 16 of the Act in that it is specific and not general. I cannot understand how this could have occurred when an officer with fifteen years experience was involved.

When a child is illegitimate, the appropriate persons to give an adoption consent are the mother and guardian of the child: s. 15(2)(b). The definition of �guardian� is not exclusive, and the father does not fit any of the categories mentioned in s. 1. However, by his actions following the birth (he stepped in and assumed some sort of responsibility) he became a guardian, using that term in a wide sense. The consent he gave is clearly defective and reliance cannot be placed on it.

From the surrounding facts, I infer that he wished to have the child adopted, knew it was to be by expatriates, in fact the applicants, and after so �consenting�, took no further interest in the child. As I have put him in the guardian category, I will also dispense with his consent: s. 21(1)(e).

At law, this child now appears to be in limbo as the Director does not become the guardian except through compliance with s. 23 and this is clearly not the case. Likewise, I have not been informed of any order made pursuant to the Child Welfare Act (Ch. No. 276). This unfortunate situation has arisen by the actions of the Director�s own staff. Notwithstanding, the child has had the applicant�s as de facto foster parents for twelve months.

The applicants fulfil all requirements as to financial security, parental capability and health. In this case, I am dealing with a husband and wife who have lived in this country for seventeen years and eighteen years respectively. They have their own home here and have no plans to leave. Both have been married before with children from those marriages. In the husband�s case, his three children have reached adulthood, are working and not dependant. In the wife�s case, there are two children now twelve and fifteen years old. They are in the care and custody of their father but visit their mother here regularly. The applicants have no children of this marriage, he is fifty-four years-of-age, she thirty-nine years-of-age. They have been married since 1977.

The applicants have had a long association with this country, the husband�s own family was raised here during their primary school years and they later had their home here whilst attending secondary schools in Australia. One son now works in this country. The wife�s children were born here and whilst they live in Australia, now spend each of the three school holidays with their mother. This has been a practice of many years standing.

The families of each applicant are happy with the proposed adoption and in case of necessity supportive assistance is available. I feel it necessary to state these matters because they show a commitment and a sense of responsibility which may otherwise not be apparent.

The Director objects to the adoption. He has not been represented before me. Whilst he says the applicants are fit, �... they are not suitable�. His objection is in the following terms:

�... the child who is the subject of the application comes from a completely different social and cultural background. I would understand that suitable parents would be those who are capable of providing an environment in which the child will grow and develop according to the culture and society of his birth.

There is no question that the material aspects of the child�s life will be promoted if adopted by this family however, I believe that we must look very closely at a much deeper and far more complex issue and that is the psychological and sociological aspects of such an adoption, thus may not be as relevant to the child at this time when it is of such a young age but, what will happen to its development at a later stage in life when it comes to recognise that it is so very different from its parents and brothers�.

The Director is concerned with the psychological problems of identity which the child will face;

�... in the case of this child from the very start, it will perceive that it is different, that it is not really a natural member of the family and additional problems immediately hinders its natural development�.

He says further:

�The child learns through identification, a child from a culture and society so intricate, as that of Papua New Guinea will surely face extreme problems in attempting to identify grow and develop in a society, in which it is foreign, I go further and suggest that such a child will experience difficulties which may prevent it from achieving normal, mature adulthood.� (Emphasis added.)

In the absence of evidence, I treat the Director�s remarks as general. What he fears is a possibility, but, then so is premature death. I have compared his remarks with the general remarks of the expert witnesses in K and K v. Director of Child Welfare [1981] P.N.G.L.R. 333. Indeed, it appears to me the chances of overcoming �growing up problems� are far better in this instance than in the purely foreign lifestyle the adopters there proposed. This child will have a choice of citizenship on reaching maturity and will have a choice then to decide where she wishes to live. She will be reared for as long as is possible in the country of her birth of which she is an automatic citizen.

I am not persuaded that the welfare and interests of this child will not be promoted by the adoption. I make the order as asked.

Applicants authorised to adopt E.

Lawyers for the applicants: Warner Shand Wilson & Associates.