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G, Re Application to adopt a Child [1980] PGLawRp 615; [1980] PNGLR 495 (28 November 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 495 - Re Application to adopt a Child, G 

[1980] PNGLR 495

N285(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ADOPTION OF CHILDREN ACT 1968 AND IN THE MATTER OF AN APPLICATION TO ADOPT A CHILD, G.

Lae & Waigani

Miles J.

12-13 November 1980

28 November 1980

INFANTS AND CHILDREN - Adoption - Single person seeking order - Exceptional circumstances - Applicant, father of child - Welfare and interests of child paramount - Adoption granted - Adoption of Children Act 1968, ss. 8, 10(2).

Section 10(2) of the Adoption of Children Act 1968 provides that an adoption order may be made in favour of one person when exceptional circumstances make it desirable to do so.

Held:

N1>(1)      The fact that the single person making the application is the natural father of the child in relation to whom an adoption order is sought, is in itself an exceptional circumstance.

N1>(2)      The question whether the adoption is desirable, however, has still to be considered in the light of the paramount considerations, namely the welfare and interests of the child as required by s. 8 of the Act.

Application for Adoption.

This was an application for an order for adoption of a four-year old female child by her natural father, with whom she had lived since birth.

Counsel:

A. L. Cassells, for the applicant.

Cur. adv. vult.

28 November 1980

MILES J.: This is an application for an order for the adoption of a child who was born in Papua New Guinea on 29th April, 1976 and who is therefore an automatic citizen. Her parents have never been married to each other. Her father was born in Australia and is an Australian citizen resident in Papua New Guinea. Her mother was born in East New Britain and is a Papua New Guinean citizen. The applicant claims as the father of the child and I find as a fact that he is the father. The mother has given the necessary authenticated consent to the proposed adoption. The Director of Child Welfare has furnished a report under s. 12 of the Adoption of Children Act 1968 and in a letter attached to that report has recommended the adoption. In further letters attached to the report however, welfare officers express some reservations about the adoption and also seek clarification of the legal position relating to an applicant who is unmarried and an applicant who is a natural parent of the child. The present applicant is both. Hence these published reasons.

The applicant is a university graduate who works in a senior position with a nationally-owned commercial enterprise. He has assets in Papua New Guinea and in Australia and is in a sound financial position. He has no immediate wish to leave Papua New Guinea but the fact is that as a foreigner, he has no right to remain here and his working permit will not be renewed indefinitely. He is beginning to plan for a future in Australia. Such plans include the future of the child. He has been told by an Australian consular officer that the child’s rights to accompany and live with him in Australia are not clear and that the only way in which she can be guaranteed permanent resident status in Australia is by her being adopted here in Papua New Guinea by the applicant.

The applicant and the child’s mother lived together in a de facto relationship until the child was about eighteen months old. Since then they have lived separately and apart. The applicant has had the child in his care and control ever since. There is no question that he has brought her up in an exemplary way and he loves the child deeply. Her welfare and interests have been promoted more than adequately. The child continues to see her mother occasionally and to spend periods of up to a couple of weeks with her mother. The mother has married and lives in a sizeable town with her husband. There is a child by that marriage. The mother and her family live in an urban environment and are apparently comfortably off.

The present application then is a most unusual one, an application by a single natural parent for the adoption of his own child. It arises from the anomalous position in law of a father in relation to a child who happens to be illegitimate. There is little need for a single mother to adopt her own illegitimate child as her relationship to the child is easily established as a matter of fact and is recognized by law. As far as the putative father is concerned, he labours under two difficulties—first he may find his relationship to the child hard to prove and secondly he has properly speaking no rights in relation to the child at all. Under s. 10(2) of the Adoption of Children Act an adoption order may be made in favour of one person when exceptional circumstances make it desirable to do so. In my view, the fact that the single person making the application is the natural father is in itself an exceptional circumstance, despite at least one English decision to the contrary[dccxlix]¹. The question whether the adoption is desirable has to be considered in the light of the paramount consideration, namely the welfare and interests of the child, as required by s. 8 of the Act.

In this regard it must be said that two distinct disadvantages will accrue to the child if the order for adoption is made. The first is that by virtue of s. 27(1)(b) of the Act, the adopted child ceases to be a child of any person who was a parent (whether natural or adoptive) of the child before the making of the adoption order and any such person ceases to be a parent. In other words, in the present case the child will cease to have a legal mother. When the applicant dies, she will be an orphan. Whether s. 27(1)(b) was intended to have that effect I do not know, but the result is quite clear.

The applicant gave evidence before me and frankly admitted that he had not given any thought as to who will be responsible for the child in the event of his own early death. He can hardly be blamed for that. He is thirty-two years of age and appears to be healthy. He has otherwise approached the matter most responsibly. He has considered the effect of the adoption order and has decided that as far as possible the child should continue to keep in contact with her natural mother, returning to Papua New Guinea for visits if that may be conveniently arranged. The applicant himself is unmarried, but may marry at some time in the future. If he does marry, his wife will be in the position of a step-mother to the child.

The other disadvantage which accrues to the child if the order is made relates to her citizenship. As Narokobi A.J. emphasized in In the Matter of the Adoption of Children Act No. 8 of 1969 and In the Matter of an Application for Access to Welfare Reports[dccl]², citizenship is an important consideration in the law of Papua New Guinea and particularly in adoption matters. The applicant states that he intends to apply to have the child granted Australian citizenship. The Constitution prohibits dual citizenship but under s. 64(2) this prohibition does not apply to a person who has not yet reached the age of nineteen years, provided that before he reaches that age and in other such manner as is prescribed by or under an Act of the Parliament, he renounces his other citizenship and makes the declaration of loyalty. The applicant stated in his evidence that he would be prepared to advise the child as she approached the age of nineteen years that unless she took the appropriate steps before her nineteenth birthday, she would, if then a citizen of Australia, lose her citizenship of Papua New Guinea. I accept the assurances of the applicant in this regard. He volunteered that he would be happy to “write it into the contract” which I gather is a business man’s way of expressing the seriousness of his intentions. However, formal undertakings are inappropriate where the person concerned intends to go and live in another country.

I have considered the warning issued by Narokobi A.J. in the case above referred to that foreigners having “recourse to the benefits of adopting children of Melanesian stock” do so by way of privilege and not by way of right. In strict terminology of course, no one has the right to adoption. The privilege may be granted to citizen or foreigner alike, having regard to the paramount consideration of the welfare and interests of the child. The child here is only partly of Melanesian stock. Her heritage is not entirely Melanesian. She has been reared and educated in an urban environment almost exclusively by a non Melanesian parent.

If the order sought is not made, the child’s future in either country is quite uncertain. She is not secure in the expectation that her father who has cared for her from birth may remain with her in Papua New Guinea. Quite possibly the mother would be prepared to take her in with her husband and her new child; but the husband’s attitude is quite unknown, and the mother has freely given her consent to the proposed adoption, knowing that the applicant wants to take the child to Australia in due course to live there.

A further matter needs to be considered. Under s. 18(3) of the Adoption of Children Act, an order for adoption of an illegitimate child who has not previously been adopted may not be made without the consent of the mother and any guardian of the child. “Guardian” includes “a guardian by native custom”. The report of the Director indicates that the parents and uncles of the child’s mother object to this application and apparently have had the child in their care at some time in the past. The applicant agreed that the child had on occasions gone to visit the maternal grandparents in their village in East New Britain. I am not able to conclude on the material before me that these relatives are guardians by native custom. The ties between the child and the relatives are not strong on any objective assessment. I have considered the possibility of adjourning the matter to give these relatives an opportunity of stating their case but have declined to do so in view of the report of the Director and his officers who have taken due account of the position of the relatives.

The Director’s officer has drawn attention to a view expressed by a Minister of State, namely that “foreigners may adopt Papua New Guinea children provided extreme care is taken to investigate and ascertain that not only the parents of the child but also the extended family relatives have given their approval”. Whilst it is perfectly proper for the Director and his officers to consider this view, the view itself does not reflect the requirements of the Act. Naturally it is not binding on the court which must apply the law as prescribed by the statute. The severing of links between a child and its extended blood relatives is relevant to the paramount consideration.

Whilst there are undesirable consequences which will flow from the making of the order, I am satisfied that the welfare and interests of the child will be protected and promoted by the making of the order. I recognize that the welfare and interests of the child are the paramount but not the only considerations. I have taken those other considerations into account, particularly the wishes of the mother’s relatives and the policy of the Minister, and they do not outweigh the paramount consideration.

The Supreme Court has recently drawn attention to the need for evidence of the future legal status of a child who is to be taken out of the country to live abroad after a proposed adoption, (see H and H v. The Director of Child Welfare[dccli]³). In particular the court will need to know whether an order for adoption in Papua New Guinea will be recognized in the country where the child will live and where the adopting parents are domiciled or have citizenship. The proper way to present this evidence is by way of affidavit from an expert in foreign law. In the case of Australia, this Court does not take judicial knowledge of the laws of that country or of its states. In order to overcome any difficulty in that regard, I took the somewhat artificial and otiose course of asking an Australian lawyer who is also a barrister and solicitor of this Court to step into the witness box and inform me as to the position. I am satisfied that the proposed order will be recognized in the Australian States because of the matters set out on p. 232 of Finlay and Bissett-Johnson: Family Law in Australia (Melbourne 1972).

Order that the applicant be authorized to adopt the child. I direct that all documents including a copy of these reasons be placed in an envelope to be delivered to the Director pursuant to s. 17(1)(a) of the Act.

Orders accordingly.

Solicitor for the applicant: A. L. Cassells.

[dccxlix]xlix] See P. M. Bromley, Family Law (4th ed., London 1971) p. 240.

[dccl] Unreported National Court judgment N221, 23rd May, 1930.

[dccli] [1980] P.N.G.L.R. 189.