National Court of Papua New Guinea

THIS COURT HEREBY ORDERS THAT

the application be not allowed and that neither the deponent Mr. Crane, the counsel for the appellant, Mr. Molloy nor the applicants be granted access to the reports of Welfare Officers.

REASONS FOR DECISION

This is the second application by the applicants’ counsel Mr. Crane to have access to Welfare Officer’s reports prepared by Welfare Officers concerning the possible adoption of an infant named W. These reports are made pursuant to s.12 of Adoptions Act No. 8 of 1969. By that Section such reports are made to the Court for its deliberate consideration before deciding on the suitability of an applicant as a parent for the prospective adoptive child. The appellants also relied on s.6 of Supreme Court Act, No. 104 of 1975.

Reports made under Section 12, are confidential reports, that cannot generally be disclosed or made available to any person including a party to the proceedings. By Section 56, the Court has discretion to make available such reports to parties and proceedings in appropriate cases. Counsel for the appellants sought to move this court pursuant to Section 56, and s.6 of Supreme Court Act to grant him access to the reports. He argued the reports were necessary for his case. He was prepared to undertake any conditions the Court might wish to impose, as long as he saw the reports.

The appellants’ argument was simply that since His Honour Justice Kapi had based his decision on those reports, and since the essence of the appellants’ case is an appeal against the trial judge’s exercise of his discretion, it was a matter of natural justice citing s.59 of the Constitution, that counsel for the appellant have access to those reports.

In the appellants’ notice of appeal, at page 2, they assert at (iv) that “the Welfare reports were not made available to the applicants in circumstances where the welfare of the child required such disclosure” Interestingly enough, the appellants did not seek access to those reports at the time they sought to adopt the infant W.

An application of this kind was in fact made subsequent to Kapi J’s decision, to His Honour Pratt J. on May 2nd 1980. On that occasion His Honour rejected such an application. The only substantial difference between the application made before Pratt J. and the present one before this Court is that in the former the objective was to have the report incorporated in the appeal book, while in the second, as I understand it, it was merely for perusal and no doubt for preparation of arguments in the appeal before the Supreme Court.

In all cases concerning adoptions, the welfare and interests of the child shall be regarded as the paramount consideration (Section 8). Whilst in the immediate application before this Court, the only issue is that of access to Welfare reports, it is evident, that the ultimate consideration is the eventual, if not the immediate welfare and interests of the child that are at stake.

Counsel for the respondent argued that these reports are confidential and should not be made available even to the counsel for the appellants. They argued that the onus was on the appellants to show why the Court should not refrain from exercising its discretion pursuant to Section 56 in favour of the appellants. Counsel cited cases to support their arguments against disclosure.

Undoubtedly, the intent of the Constitution of the Independent State of Papua New Guinea is that there be open government. In principle, any citizen should be able to walk into any government office and have access to government reports (s.51 of the Constitution).

However, it is quite clear from the Constitution itself that this right is restricted to citizens. There are further restrictions as well to citizens (s.51(1) (b) and (h).) The appellants are not citizens of this country. They are seeking to adopt an automatic citizen of this country. This “foreign element”, Kapi J. emphasised, must not be forgotten. It is only a matter of privilege and a restricted privilege in my view and not a right that foreigners should have recourse to the benefits of adopting children of Melanesian stock. In so far as having access to confidential reports may advance the prospects of foreigners adopting Melanesian children, my view is that confidential reports should not be made available to them or their counsel, except possibly in the most exceptional cases, as in refugee cases.

A Welfare Officer makes his reports in the fullest belief that these reports are confidential. If it were otherwise, he may feel restrained from making frank comments about the prospective adopting parents. Such an approach would be detrimental to the long term interests of the child. It is important that confidential reports be kept confidential, except in exceptional circumstances.

In these cases, the Court sits informally and in a parental relationship to the child and may be assisted by the Welfare reports, or it may act on any statement, document, information or matter that, in its opinion may assist it to deal with the matter of the proceedings before it. Since the reports were considered by Kapi J., it is my view, as it was Pratt J.’s view, that they had become part of the Court records.

It is noteworthy that under Section 57 of Adoption of Children Act, “the records of any proceedings under this Act shall not be open to inspection”, except as provided by regulations. No regulations have been made pursuant to this Section. It seems high time regulations are made to guide all concerned. If indeed the reports had become part of the Court proceedings as I am clearly of that view, I cannot see how I could exercise my discretion under Section 56, to allow inspection of the reports, in the face of Section 57. His Honour Mr. Justice Kapi did not incorporate the reports in his judgment and in my view that part of the “proceedings” must be closed to inspection by the appellants and their counsel.

Non disclosure of such reports is not, in my view fatal to the welfare and interests of the child. If it felt so disposed, and I am inclined to think it will be so disposed, the Supreme Court will look at these reports as a matter of necessity before reaching its decision on the question of adoption.

By English common law, which is part of the unwritten law of Papua New Guinea by virtue of the Constitution, the Court is exercising the special jurisdiction of the Court derived from the royal prerogative as parens patriae. This is made possible by Schedule 2.2(2). However as parens patriae or as a parent of the child, it is more accurate to say that this special relationship emerges from s.158 of the Constitution which vests the judicial authority of the people in the National Judicial system of which the National Court is a part.

Dispensation of justice is the paramount consideration in this case. I ask myself whether in denying access to the appellants’ counsel I would be doing injustice. This question must be faced, bearing in mind the fact that the appellants are not citizens, that the Director of Child Welfare, though his counsel opposes access and the fact that the infant is of Melanesian race and that an alternative adopting parents of Melanesian race may well be available. In the end, the question of dispensing of justice must be looked at in the total long term welfare of the infant.

On the other hand, the applicants are not total strangers to the infant W. They have had the custody of the infant. They have shown themselves to be deeply committed to the infant and have developed emotional attachment to the infant. They too have a stake, so to speak, in the welfare of the infant. But, it must be remembered, that these are applicants who are not the natural mother or father of the infant and therefore have lesser basis than the natural parents.

The point here is that every opening granted to the appellants, is an opening which leads to finality - a finality which has as its possibility the gravity of taking a Melanesian child out of its home environment.

Unnecessary secrecy is to be avoided. And disclosure of reports dealing mainly with facts is unlikely to be harmful to the infant. It is of course not possible to state what facts could and what facts could not be disclosed. It may be assumed that facts set out in favour of the prospective parents, are there to assist the judge in deciding on adoption. In principle there is nothing to stop the prospective parents from seeing those parts of reports.

However, there may be aspects of reports that doubt the suitability of the prospective parents or that as between the present applicants and some other applicants, say Melanesians, the latter would be more suitable. Though, according to financial or material criteria, the former might offer greater security, the Welfare Officers may well form the view that as a matter of state policy or as a matter of general opinion, the infant would be better off in the long run, remaining in his or her own “home-roots”. These are matters of opinion that cannot be proved or disproved.

I have had the benefit of reading several English cases counsel for the respondent cited in argument. In particular I have read Official Solicitor to the Supreme Court and K. and AnotherN221.html#_edn186" title="">[clxxxvi]¹; In re M. (An Infant)N221.html#_edn187" title="">[clxxxvii]²; and In re P.A. (An Infant)N221.html#_edn188" title="">[clxxxviii]³.

In each of these cases, one of the parties to the proceedings was the natural mother. In each of these cases, the Court confirmed the view that whether a report or a part of a report of the guardian ad litem should be disclosed to a party to the litigation is a matter of discretion. It is naturally a matter of judicial discretion. See Denning M.R. In re P.A. (An Infant) (supra) at p. 1534.

The view I have taken is that although the appellants may well feel that they are disadvantaged by the non disclosure of the Welfare reports, they should not lose heart. Their concern for the welfare of the infant should coincide with that of the Director of Child Welfare and of course, the Supreme Court. The Supreme Court will read these reports and may seek assistance from all concerned including the appellants before reaching a decision on adoption.

I therefore reject the application and rule that the reports be not disclosed to any of the parties to the proceedings.

Solicitor for the Appellant: Francis & Francis

Counsel: A.M.B. Crane

Solicitor for the Respondent: R.K. Woods, Acting State Solicitor

Counsel: R. Gunson J.A. Kanawi

<86">N221.html#_ednref186" title="">[clxxxvi] ^{(1965) A.C. 201}

N221.html#_ednref187" title="">[clxxxvii] ^{(1972) 3 W.L.R. 531}

N221.html#_ednref188" title="">[clxxxviii] ^{(1971) 1 W.L.R. 1530}