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E and D, Re [1984] PNGLR 278 (2 November 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 278 - E. and D., Re

[1984] PNGLR 278

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RE: E AND D

Waigani

Woods J

19 October 1984

2 November 1984

INFANTS AND CHILDREN - Adoption - Adoption by custom - Application by foreigners - Certificate of adoption not available - Certificate of guardianship available - Adoption of Children Act (Ch. No. 275), ss 54, 56.

Held

Whilst it may not be appropriate for a foreigner to adopt a child by custom under the Adoption of Children Act (Ch. No. 275), s. 54, a certificate of guardianship may be granted under s. 56.

Appeal

This was an appeal from a refusal by a Local Court magistrate to issue a certificate of adoption under the Adoption of Children Act (Ch. No. 275), s. 54.

Counsel

S. Cory, for the appellant.

Cur. adv. vult.

2 November 1984

WOODS J:� This is an appeal from a decision of the Local Court at Port Moresby on 25 July 1984 rejecting an application by the applicants for a certificate of adoption under Pt VI of the Adoption of Children Act (Ch. No. 275). Part VI is headed �Adoption, Fosterage etc. of children by Custom� and was originally enacted as the Adoption of Children (Customary Adoptions) Act 1969.

In rejecting this application the magistrate said, �I reject this application in that this Court has no jurisdiction as the other party is a European� and in his reasons he said, �In this application I was not satisfied that D. an Australian citizen could have adopted the child E. in accordance with the Milne Bay Province custom.�

On the material before me the magistrate appears to have confined himself to s. 54 without realising or being made aware that s. 56 is available. Whilst I would agree with the magistrate that on the evidence a s. 54 certificate of adoption could not have issued it is quite obvious that the applicant was not really requiring an adoption certificate but rather was in a position to seek the alternative certificate of guardianship under s. 56.

I propose to go into the history of this legislation and for this purpose I am referring to the House of Assembly debates for 5 March 1969 at 883.

The Adoption of Children (Customary Adoption) Bill 1969 was introduced following the approval earlier that year of the Adoption Ordinance which provided for the adoption of children in accordance with legal principles accepted throughout the world. That Adoption Bill provided for a form of adoption which was a complete change of status whereby the child so adopted becomes the same as a naturally born child with the same rights. The Customary Adoption Bill was introduced to ensure that the customary practices of the peoples of Papua New Guinea could continue and receive a legal recognition when the parties wanted that done. This referred to adoption by custom which is the normal practice of assuming responsibility for other people�s children which can mean different things in different places and at different times. As the mover of the Bill in 1969 said:

�... it is common for people to care for children other than their own, sometimes forever. In some places the child returns to his or her natural parents when of marriageable age, in other places this does not happen. In most places both adopting parents and the natural parents make arrangements acceptable to both regarding land rights, marriage gifts, the length of time for the adoption, and even to the choice of a wife or husband�.

What would be obvious is that these customary arrangements and decisions could not be part of a full adoption under the internationally accepted form of adoption whereby there was a complete change of status effected. As the mover of the Bill said:

�... a customary adoption which lays down all kinds of conditions such as the length of the adoption, rights of the natural parents and any property rights, is so different from the adoption in the Western sense of the word as in a Western adoption no such conditions are possible and the child becomes a natural child of the family for all time�.

Looking at the facts in this application it is quite apparent that the applicant is not seeking a full adoption in the Western sense as referred to in the Assembly debates and it would therefore not have been appropriate for him to make an application under Pt III Adoption of Children Act (Ch. No. 275). As he said in his affidavit, �it is my intention to look after J. as her father until she is 18 years of age and to give her the opportunity of a university education�. There is nothing in his affidavit to suggest he wishes to effect a complete change in her legal status such that she would lose all connections with her real people. This is quite clearly something less than a full adoption, and if not a customary adoption would be a relationship of fosterage or guardianship referred to in s. 56 of the Adoption of Children Act.

Whilst on the evidence I feel that the magistrate came to a correct decision vis-�-vis a certificate under s. 54 I feel he was a bit too precipitate in ruling out the possibility of a certificate under s. 56. He seemed to consider as the overriding factor that because the applicant was an �Australian� or a �European� he could in no circumstances make an application under Pt VI of the Act.

However whilst it may in effect be impossible for a foreigner to adopt a child by custom unless the foreigner were himself part of a traditional community, that is, if by custom he were seen as being part of their culture group, I feel it is always possible for a relationship of fosterage or guardianship to exist where the applicant is a foreigner who may be living in the town and is seen as caring for a child for either educational purposes or because the natural kin had died or could not care for the child.

In the circumstances I feel that the magistrate erred in law in refusing the application the way he did, because he did not proceed to a proper consideration of s. 56. Whilst I say the magistrate erred this error may have been assisted by the failure of the applicant to be fully aware of the distinctions, however I am not sure what was submitted before the magistrate.

In upholding the appeal I am reluctant to have this Court make orders that should be peculiarly within the function of the Local Court, being decisions and orders dependent on findings of custom, and I therefore feel I must refer this matter back to the Local Court with the direction that the court should look closely at the various provisions of Pt VI of the Act and particularly to s. 56. I also draw attention to the fact that there is provision under this Part for any relevant limitations and conditions on such orders to be noted.

Application remitted back to Local Court at Port Moresby for rehearing.

Lawyer for appellants: Stan Cory.