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Adoption of Children Act 1968 and an Appeal by The Secretary for Justice against an Order made in respect of N, a female child [1980] PNGLR 64 (5 May 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 64 - Re the Adoption of Children Act 1968 and an Appeal by The Secretary for Justice against an Order made in respect of N, a female child 

[1980] PNGLR 64

SC174

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF THE ADOPTION OF CHILDREN ACT 1968,

AND IN THE MATTER OF AN APPEAL BY THE SECRETARY OF JUSTICE AGAINST AN ORDER MADE IN RESPECT OF N, A FEMALE CHILD.

Waigani

Greville Smith Andrew Pratt JJ

4-5 March 1980

5 May 1980

INFANTS AND CHILDREN - Adoption - Discharge of adoption order - Application for discharge by Secretary for Justice - Alleged earlier adoption by native custom - Consent to adoption not sought from or given by alleged adoptive parent - Grounds for discharging order - “Improper means” - “Other exceptional reason” - Adoption of Children Act 1968 ss. 8, 13, 16[lxxxviii]¹, 18 - Adoption of Children (Customary Adoptions) Act 1969, ss. 3, 5[lxxxix]².

On an application by the Secretary for Justice, to discharge an adoption order pursuant to s. 16(1) of the Adoption of Children Act 1968 which provides that the court may make such an order if it is satisfied that (a) the adoption order or consent for the purposes of the adoption order was obtained by fraud, duress or other improper means, or (b) that there is some other exceptional reason why, in view of the welfare and interests of the child, the adoption order should be discharged, it was alleged that there was an earlier adoption by native custom which had not been disclosed to the court granting the adoption order and that consent to the adoption order had not been sought or given by the alleged adoptive parent by native custom. Section 16(2) of the Adoption of Children Act 1968 provides that “no order shall be made if it appears to the Court that the making of the order would be prejudicial to the welfare and interests of the child”.

Held

(1)      The words “or other improper means” in s. 16(1)(a) of the Adoption of Children Act 1968 are to be interpreted iusdem generis with the words “fraud” and “duress” therein occurring and bear accordingly the connotation of deliberate wrong doing.

Goldstein v. Foss [1828] EngR 351; (1828) 2 Y. & J. 146 at p. 155 not followed.

(2)      The words “some other exceptional reason why” in s. 16(1)(b) of the Adoption of Children Act 1968, relate back to the words “fraud”, “duress” and “improper means” in s. 16(1)(a) and are to be construed accordingly.

(3)      Under s. 16(1)(a) of the Adoption of Children Act 1968, if fear, duress or other improper means are established to the satisfaction of the court, then a discharging order may follow unless it appears to the court that the child would be worse off in an overall sense if the discharging order were made (s. 16(2)).

(4)      Under s. 16(2) of the Adoption of Children Act 1968, the test as to the welfare of the child is in-built in the sub-section, and the court may not make a discharging order unless satisfied that the making of a discharging order would benefit the child in an overall and ultimate sense.

(5)      Mere proof of an adoption by native custom or a deemed adoption under s. 5(1) of the Adoption of Children (Customary Adoptions) Act 1969, cannot of itself constitute a reason why the welfare and interests of the child would be best served by the discharge of an adoption order.

(6)      In the circumstances, the appeal against refusal of the application to discharge the order should be dismissed.

Observations on the methods of ascertaining and proving “native custom” for the purposes of the Adoption of Children Act 1968, and the Adoption of Children (Customary Adoptions) Act, 1969, by Pratt J.

Appeal

This was an appeal and an application for leave to appeal, against a refusal by the National Court of an application by the Secretary for Justice pursuant to s. 16 of the Adoption of Children Act 1968, for an order discharging an adoption order.

Counsel

G. M. Delaney, for the appellant.

D. S. Awaita, for the respondent.

Cur. adv. vult.

5 May 1980

GREVILLE SMITH J: This is an appeal on certain grounds, and an application for leave to appeal on other grounds, against a refusal by the National Court of an application by the Secretary for Justice for an order discharging an adoption order made in respect of a female child N, in favour of one JH. The application for a discharging order was made under the provisions of s. 16 of the Adoption of Children Act 1968 and was opposed by the said JH who now also opposes the allowing of this appeal and the application for leave to appeal.

Section 16 of the Adoption of Children Act 1968 provides “inter alia” as follows:

“16(1) The Director or the Secretary for Justice may apply to the Court for an order discharging an order for the adoption of a child made under this Ordinance, and the Court may make such an order if it is satisfied that:

(a)      the adoption order, or any consent for the purposes of the adoption order, was obtained by fraud, duress or other improper means; or

(b)      that there is some other exceptional reason why, in view of the welfare and interests of the child, the adoption order should be discharged.

(2)      The Court shall not make an order under this section if it appears to the Court that the making of the order would be prejudicial to the welfare and interests of the child.”

Argument before the learned trial judge and the learned trial judge’s decision involved also the interpretation and application of the provisions of s. 5 of the Adoption of Children (Customary Adoptions) Act 1969 which provides as follows:

“5(1)   Notwithstanding the provisions of any other law of the Territory but subject to the succeeding provisions of this section, where a child is or has at any time been in the custody of and is being or has been brought up, maintained and educated by any person or by two spouses jointly as his, her or their own child under any adoption in accordance with native custom, then for the purposes of any law of the Territory the child shall be deemed to have been adopted by that person or by those spouses jointly, as the case may be.

(2)      An adoption to which Subsection (1) of this section applies takes effect in accordance with the native custom that is applicable and is subject to any provisions of that custom as to limitations and conditions, including limitations and conditions as to the period of the adoption, rights of access and return and property rights or obligations.”

Section 3 of the Adoption of Children (Customary Adoptions) Act 1969 provides that such Act shall be incorporated and read as one with the Adoption of Children Act 1963.

The child N is the child of a union between her mother P and one V. When the child was about six months old the parents separated by agreement and the father, because he had paid no bride price, relinquished, as is said by the appellant to be customary, all claim to the child. The natural grandfather of the child on the mother’s side, WA claims and it is claimed on his behalf that thereupon he received and adopted the child by native custom and that the child thereby passed into his custody and control and was thereafter brought up, educated and maintained by him to such an extent that she was, at the time of the adoption order it is sought to set aside, his adopted daughter, by virtue of the operation of the deeming provision of s. 5 (1) of the Adoption of Children (Customary Adoptions) Act 1969 for the purposes of the Adoption of Children Act 1968.

Section 18 of the Adoption of Children Act 1968 enjoins a court from making an order for the adoption of a child unless consent to the adoption is given by the “appropriate” person or persons. Section 18(1) provides that in the case of a child who has previously been adopted the appropriate persons include every person who is an adoptive parent of the child. Consent to the adoption was not given by WA, nor was he given the notice of proposed adoption which, under the provisions of s. 13(1) of the Adoption of Children Act 1968 he should have been given were he an adoptive parent. Because of this, it was submitted to the learned trial judge, the adoption order had been obtained by improper means within the meaning of 16(1)(a) of the Adoption of Children Act 1968.

It was put to the learned trial judge on behalf of the applicant that in order to show that an adoption order was obtained by “improper means” within the meaning of s. 16(1)(c) of the Adoption of Children Act 1968 “it is not necessary to show any fault on the part of the respondent” or, presumably, anyone else. His Honour found on this point as follows:

“The applicant submits that the 1976 order should be discharged because it was obtained by improper means in that the court was not then informed of the custodial adoption of 1967, and no consent was obtained from WA. It is clear that the court was not so informed and no consent was obtained. I accept the submission that the test of impropriety is objective.”

His Honour made no express finding of fact, as to whether the adoption order had been obtained by improper means within the meaning of the section. His Honour did however make a finding that “it would be prejudicial to N’s welfare and interests to discharge the adoption order of 1976”, a finding which in any event by virtue of the provision of sub-s. (2) of s. 16 would have disqualified the learned trial judge from making a discharging order.

The learned trial judge, as has been seen, adopted as the meaning of the word “improper” such word’s primary meaning of “not suited to the circumstances, design or end—not appropriate fit or congruous”. (Webster’s New International Dictionary, (2nd ed.), unabridged). Such a meaning was attributed to such word in a defamation case Goldstein v. Foss[xc]³ “per curiam” where it was said that such meaning was what the word “naturally imports”. However as to the meaning of such word in the context of the Adoption of Children Act, 1968 and s. 16 thereof, I am, with respect, unable to agree with the learned trial judge for the following reasons. It is obviously in the interests of the child and of other persons closely and properly concerned, and in the public interest that once an adoption order has been made the matter should not lightly be re-opened. Accordingly it would be reasonable and desirable for the legislature to have provided that such a re-opening should not take place except for reasons of a grave and weighty nature. In my view it was the intention of the legislature to so provide and that towards that end it closely associated the term “improper means” with the terms “fraud” and “duress” so that it partook, by virtue of the “iusdem generis” rule of statutory interpretation, of the connotation of deliberate wrongdoing which those words themselves naturally bear.

The view just expressed is fortified, so it seems to me, by the use, in sub-s. 1(b), of the words “some other exceptional reason why ... the adoption order should be discharged”. The word “other” clearly relates back to the words “fraud”, “duress” and “improper means”. If its primary meaning is applied to the word “improper” then the expression “improper means”, in that wide sense, could hardly be said to denote an “exceptional” reason nor could every sort of “improper means” be sensibly said to be a reason why an adoption order should be discharged.

The learned trial judge stated that he found himself, on the view he took of the facts, unable to find that the deeming provisions of s. 5 (1) had ever been activated. It is unnecessary here to examine the validity of this finding because of the view I take of the limited meaning of the term “improper means” as mentioned hereinbefore, and because, in my view, there is no evidence that the respondent at any relevant time knew or should have known of, or should have been put on enquiry concerning, any adoption or alleged adoption by native custom or otherwise, of the child N by WA. The relevant circumstances were that in July 1967, when N was ten months’ old her mother and JH were married, that less than twelve months later they moved into their own house, and that from the time of that move onwards until the death of the mother on 26th January, 1976, N lived with her mother and JH as an integral part of their family, to which was added as time went on three daughters, born respectively on 15th July, 1968, 20th April, 1970, 24th April, 1972. After the mother’s death N continued as a member of that household until the adoption order of 26th July, 1976, and has so continued since. Even if there had been an adoption by custom, there was no evidence that it continued to exist at the date of the adoption order, and indeed I consider it most improbable that it did so.

In September 1977 JH took into the household a new wife, a Garaina woman, whom he had married.

During her lifetime N’s mother maintained contact with her father and her father’s people and visited them from time to time taking N with her.

After the mother’s death JH was apparently inclined to put obstacles in the way of access by WA to N. Whether he was justified in doing this, in the interests of N or otherwise, and what her own attitude was, has not been explored, and is an open question. In evidence JH said as follows:

“From the time in 1967 when my said late wife and I returned from Australia to the present time the said N lived with me and my family and I fully maintained her with no help from WA or any member of his family. I did not say anything to WA concerning my application to adopt N as I did not feel that he had any say in the matter and had never been involved with the child’s upbringing in the previous years ... I thought N was my step-daughter. Unfortunately we did not take the legal steps of adoption during my wife’s lifetime.”

The learned trial judge found as follows:

“From 1968, when P and JH moved to Port Moresby, I am satisfied that the child’s main home was with them, and they assumed the major responsibility for the child’s welfare.”

Mr. Delaney, counsel for the appellant, has very properly conceded that this finding was a substantially correct one.

There is no evidence that WA or anyone else ever stated or suggested to JH that WA claimed or had any basis for claiming customary or any other rights in respect of the child. I have no doubt that this was what the learned trial judge was alluding to when he said, as he did:

“It is very significant, I think, that there was no assertion in the evidence of rights of adoptive parenthood by WA, until after the death of P.”

And after the death of P, so far as the evidence indicates, all there was was an intimation or intimations by WA of a desire that N should, now that her mother was dead, live with him, or a readiness to have her to live with him, and later a desire to have access to her, all of which fall short of an intimation of a claim of right.

The applicant before the learned trial judge submitted, and as appellant submits again before this Court, that the alleged customary adoption of the child by WA constituted “an exceptional reason why in view of the welfare and interests of the child, the adoption order should be discharged”. Before this Court the appellant argued in addition that, assuming that the requirements of a deemed adoption under the provisions of s. 5(1) of the Adoption of Children (Customary Adoptions) Act 1969 had been fulfilled but that the adoption order now under attack had, notwithstanding, not been obtained by improper means, still, such a deemed adoption would constitute such an exceptional reason.

Once again, it is unnecessary for me to examine the question of whether there was an adoption by native custom, or a deemed adoption under s. 5(1) of the Adoption of Children (Customary Adoptions) Act 1969, for the following reasons.

In my opinion sub-s. 1(a) and sub-s. 1(b) differ in the following respect. As to the first, if fear, duress or other improper means is established to the satisfaction of the court then a discharging order may follow unless it appears to the court that the child would be worse off in an overall sense if the discharging order were made. As to sub-s. 1(b), the test as to the welfare of the child is in-built, so to speak, in the section. There is no room for the operation of sub-s. 2, and the court may not make a discharging order unless satisfied that the making of a discharging order would benefit the child in an overall and ultimate sense. Now I am unable to see that the mere proof of an adoption by native custom or a deemed adoption could of itself constitute a reason why the welfare and interests of the child would be best served by the discharge of an adoption order, and no attempt whatsoever has been made to adduce evidence or by argument to show how in the light of either such adoption, benefits would, in the circumstances of this case, flow to the child from the making of a discharging order. Presumably, if the order were discharged WA would move in to assert his alleged rights arising out of the customary adoption. What those are or may be the court has not been informed, nor whether they would involve any regard for the wishes of N, now almost fourteen years of age.

One of the most obviously concerning aspects of this question is the matter of bride price. The child’s mother’s union with her father broke up, so one witness deposed, because the father’s family considered the bride price required, namely K5,000 too high. In consequence of the break up, so WA says “because no bride price had been paid V’s family gave N into my custody”.

In JH’s custody there will, it would seem clear, be no complicating questions of bride price, or claims by JH to the custody and disposal of N’s children in event of non-payment, as there were, according to WA in respect of N. Upon the views and intentions of WA in respect of these matters, so far as concerns N, the appellant has remained silent. All this Court has been told of WA is that he is N’s grandfather on her mother’s side, that he has had some association with N as she has grown up, that he is a fisherman, fifty-two years of age, a Motuan, and resides at Bootless Bay, Central Province. Nothing is said, for instance, of his standing in his own community, his means, what life for N in his custody might hold for her, or of any benefits material or otherwise life in his custody might offer her.

In respect to s. 16(1) his Honour the learned trial judge said as follows:

“The applicant further submits that the customary adoption of 1967 constitutes an ‘exceptional reason’, in terms of s. 16(1)(b), of the Adoption of Children Act 1968, to discharge the 1976 order in view of the welfare and interests of the child. As I understand s. 16(1)(b), it is necessary that I be satisfied that the incidents of the customary adoption of 1967 are such that the benefits to N flowing therefrom, material and spiritual, when compared with her present position as JH’s adopted daughter, will be such that her welfare and interests will be better advanced by nullifying the 1976 adoption. I say immediately that there is a dearth of evidence as to the benefits to N which flow from the 1967 adoption, and I am not satisfied as required by s. 16(1)(b).”

“I have considered the matters urged by the applicant. It is true that if JH’s family eventually moves to the Morobe Province, as was thought possible, there would be a real risk of loss of contact with her grandfather. But I think that overriding that fact and the other matters advanced by Mr. Delaney is the fact that N has been part of a family for something like 11 years now. She is now about 13 years of age. She has lived and grown up with her half-sister O, now aged 11, P now aged 9, and J aged 7, all their lives. It would require a great deal to convince me that the welfare of N is not best served by her continuing to grow up with the sisters and immediate family with whom she has spent the greater part of her life. As to material advantages, there does not appear to be evidence either way, but there is nothing to suggest that N’s present life is not satisfactory, in material terms; her legal status and entitlements as JH’s daughter must be given due weight. There is now a mother in the house.”

I respectively agree with the learned trial judge. In my opinion there was no other reasonable conclusion.

I would add this. The situation the appellant had to cope with in his submissions under sub-s. 16(1)(b) consisted not only of the almost lifelong (for her) establishment in the bosom of the family already referred to, though this was at the heart of the matter, but the reasonably secure position of that family. At the time of the adoption JH, was thirty-seven years old and was a radio and television technician residing with his family in a dwelling at Waigani, consisting of three bedrooms, study room, lounge room, dining room with all usual modern conveniences, the premises being comfortably furnished. At that time he had bank accounts totalling K1600 and a salary of approximately K12,000 per annum. There is nothing to suggest that his material position and prospects have deteriorated since.

It is trite to say that material benefits are no guarantee of happiness, but they do have a bearing on happiness and this is an aspect in custody cases that the court invariably looks at, doing its best to give due weight to various features according to the facts of the particular case. In respect of the material aspects of the environment into which the discharging order which the appellant seeks would precipitate N, the appellant has seen fit to tell the court nothing.

The welfare and interests of the child are (s. 8 of the Adoption of Children Act 1968) the paramount consideration but (In Re Thain [xci]⁴) they are not the only considerations. However, if the court is to have regard to the natural feeling as a grandfather of WA and the greater access which a discharge of the adoption order might afford him, it must concern itself no less in my view with the natural feelings and interests of N’s three half sisters, JH’s daughters, and the preservation and nurturing of the bonds which growing up together as members of the same family bring, and it is not too much in my view to say that the court should have regard to the natural feelings and concern of JH himself who has stood and has been permitted to stand, in a father’s place to N for almost all of her life.

There is one further main submission of the appellant with which it is necessary to deal, and that is that the nonco-operative attitude of JH toward WA so far as concerns access to N which is alleged to have existed from the time of the death of N’s mother up to the time of the hearing of this appeal constitutes a reason, within the meaning of sub-s. 16(1)(b) why the adoption order should be discharged. Because of the wording of the sub-section this necessarily involves a submission that because of such non co-operation the welfare and interests of N would be best served by a discharge. Thus the court must ask whether against the background of the matters relating to the welfare and interests of the child so far discussed, and the conclusions arrived at, the introduction of a new element consisting of, to put the appellant’s case at its highest, a refusal by JH of access to WA extending from January 1976, and still being persisted in, so changes the picture that in the new and different situation so disclosed it is evident that the welfare and interests of N would be, on balance, best served by discharging the adoption order. The answer, in my view, is a clear and definite “No”.

To suggest that the importance to N, now almost fourteen, of association with a grandfather with whom she has, if the appellant’s case is to be accepted, had little or nothing to do since she was ten years’ old, is such that to achieve it warrants jeopardizing her security in the family of which she is now a member is quite untenable.

Reliance in the submission now being considered, has been placed upon certain words of the learned trial judge at the end of his judgment. These were as follows:

“To put it briefly, I think it would be prejudicial to N’s welfare and interests to discharge the adoption order of 1976. I add that I think it highly desirable that N should retain full access to her grandfather and relatives ... She should certainly be allowed to visit them at weekends, on reasonable terms. This is important to the young girl’s cultural development. I would not expect the parties to be unreasonable about this matter.”

As to what his Honour said, I do not understand this as attaching or implying any condition to the refusal of a dismissing order. In my opinion there is no power in the court to attach conditions, and the words of the learned trial judge were intended to express a view which his Honour hoped would, in what he saw as the best interests of the child, be accepted by the parties concerned. They were not intended to confer rights. However this Court is now asked to treat as a reason or as a part reason why, under the provisions of s. 16(1)(b), the adoption order should be set aside, the fact that JH took N, together with the rest of the family overseas for a holiday in October last and allowed her to overstay the family’s own return for a short period, thus over the period of her absence rendering her inaccessible to access by WA and his relatives for about four months.

“Inter alia” it is complained that JH shortly after the date of the judgment appealed against, stated that he would not accede to a request by WA that N visit him at the village, because N had just had inoculation injections preparatory to travelling with the family to Manila. The genuineness of JH’s reason, nor its good judgment in N’s interests, are not challenged.

I think, because of the foregoing events, that the legal position should be clearly stated by this Court. That position is in my view that JH is now to all intents and purposes the father and the sole parent of N. No one else has any legal standing. It is for him and him alone to decide what access shall be available, to whom, and when and where. In making decisions on these matters he will no doubt have due regard to the wishes of N herself, and the view of her interests expressed by the learned trial judge, but final decisions are and must be his. In making these decisions he will no doubt also take into account the attitudes and conduct of WA. If, for instance, access allowed were used or attempted to be used to undermine the unity of N with her present family then no doubt access would be terminated and properly so.

N and her interests and welfare are JH’s direct responsibility. Those interests and welfare will no doubt for some years to come remain closely bound up with the interests and welfare as a whole of the family of which she is part. If the interests and welfare of that family as a whole, and of these things JH again must be the judge, are best served by, for example, his moving for employment purposes, to another part of the country, where access by the grandfather would be difficult, then that might be unfortunate from the point of view of access, but a natural and inevitable and unobjectionable consequence of N being part of JH’s family. If he is able to afford for his children including N the enriching experience of excursions overseas then others have no right to hamper or harass him in respect of these matters.

I would dismiss the appeal and application for leave to appeal and the respondent should have his costs against the appellant.

ANDREW J: I have had the advantage of reading the reasons for judgment prepared by Greville Smith J. and Pratt J. I agree with those reasons and the conclusion and have nothing to add.

PRATT J: I agree and merely wish to add some observations concerning proof of custom. Considerable emphasis was made before his Honour as to the existence of a customary marriage and divorce between the mother of N and one V. In respect of this union, WA claimed that no bride price was required or given because marriage was within the family, but as no bride price was paid, N was given by the natural father into the custody of WA, following on the divorce. However, another witness stated that no bride price was paid because the amount was too high at the time. That clearly to my mind infers that bride price would be expected to be paid and that because it was not paid, it had some effect on the status of the parties.

One of the major difficulties facing judges and magistrates in this country arises from the problems inherent in the ascertainment and presentation to a court of customary law. The usual approach of counsel to this difficult area is to call some person of senior years who by living in the community to which he refers his evidence, has gained credible knowledge of the customs of his people. However, the existence of a particular custom which counsel is seeking to establish usually reduces itself to a bald statement with little or no lead-up and negligible support of surrounding detail. I consider that the trial judge in the present matter was labouring under considerable difficulty because of a lack of detailed or convincing material concerning the exact status of N within the extended family groups of V and E the natural mother. The type of unsatisfactory situation which arises, I think is best illustrated by several examples from the present case before the trial judge. At one stage a witness, KK, was asked the following question:

“When a child returns to the wife’s people, when no bride price is paid, is the child usually given to a particular person, or does it stay with the mother?”

Answer: “Their families will keep the children because the father did not pay any bride price.”

Now, of course, the answer is not in response to the question and herein lies the first difficulty—but at least the answer probably points the way to the type of area which should have been examined by counsel at this point, namely, what are the respective obligations, duties, rights and responsibilities of the various parties who would be involved in the split-up of the union. As I read it, one inference which may be drawn from this answer is an underlying assumption that there is no giving of the child at all and that the right to the child has always remained vested in the family of the mother. This however is an inference only and would be dangerous to act upon without further clarification. Another example during the evidence of SS who was called as an expert on custom, is the following:

“What is the custom where the parties divorced by custom, no bride price being paid for the wife, what happens to their children?”, to which the witness responded: “If no bride price payment, all of the children will return to the grandfather and grandmother—the mother’s (of the children) parents.”

What remains unanswered here of course is the position of the mother of the child, vis-…-vis the child itself and whether or not the term “grandfather and grandmother” are merely used because they perhaps are the head of the extended family or whether in fact they are singled out as the ones who would by custom exercise either complete or partial dominion over the child.

I do not mention these matters for the purpose of making any criticism of the particular counsel involved in the trial. What has to be clearly understood however, is that where custom is sought to be proved, then a real effort to present to the court all of the various aspects of the pertinent custom must be made. This is going to take a considerable time in preparation before the witness goes in the box and a considerable and detailed examination of that witness on oath. Unfortunately, this is too often completely neglected.

Under the Native Customs Recognition Act 1963, the courts shall not take custom into account except in specific instances, one of which is “marriage, divorce or the right to the custody or guardianship of infants, in a case arising out of or in connection with a marriage entered into in accordance with native custom,” (s. 8), and further by s. 9, the court is directed to take native custom into account “in deciding questions relating to guardianship and custody of infants and adoption”. Under s. 5, the existence and nature of custom in relation to a matter and its application to the circumstances of the case “shall be ascertained as though they were matters of fact”. However, the court is given wide latitude in endeavouring to find sources for the establishment of such custom and is certainly not quite as restricted as it would have been under the old common law principle stated by the Privy Council in Angu v. Attah[xcii]⁵. Perhaps the observations of Duffus J.A. in the East African case of Kimani v. Gikanga[xciii]⁶ are pertinent to the circumstances and requirements of Papua New Guinea. His Honour said:

“To summarize the position, this is a case between Africans and African customary law forms a part of the law of the land applicable to this case. As a matter of necessity, the customary law must be accurately and definitely established.” (Emphasis mine.) “The court has a wide discretion as how this should be done but the onus to do so must be on the party who puts forward the customary law. This might be done by reference to a book or document of reference and would include a judicial decision, but in view, especially, of the present apparent lack in Kenya of authoritative text books on the subject, or of any relevant case law, this would in practice usually mean that the party propounding the customary law would have to call evidence to prove that customary law, as he would prove the relevant facts of his case.”

The matter is more forcefully put by Ademola C.J.F. in R. v. Chief Ideliaguahan Ozogula II[xciv]⁷ in the following words:

“It was of the greatest importance that the native law and custom be strictly proved. It is correct that a custom is not proved by the number of witnesses called, but it is not enough that one who asserts the custom should be the only witness.”

In the present case, I am not absolutely convinced that this was a case of adoption at all so far as WA was concerned. Had the matter of custom been properly explored, it is possible that as a result of the non-payment of bride price, further rights that may have vested in V at the time of the birth of the child, disappeared completely when it was decided that the parties should separate. Perhaps it may be the inherent right, assuming it existed, of the family of the girl to consider the girl retained within the family unit but that this right was left in abeyance for a time and restored on the separation. If that were so, it would not then be a matter of adoption by WA’s family but a reassertion of rights which had never really been lost. In addition to this area, there was also a complete dearth of evidence concerning the rights of the mother and the man she subsequently married in relation to N. The position may in fact be that the Adoption of Children (Customary Adoption) Act 1969 is not applicable to this type of situation at all. To me, s. 5 of that Act seems more directed to a situation where somebody outside at least the nucleus family has brought up the child without any real contact with the natural parents. The section affords a statutory basis to the institution of customary adoption which has existed in Papua New Guinea for centuries.

In this instance, however, the deficiencies of proof relating to customary divorce, marriage and adoption do not prevent me from arriving at the same result as my brother, Greville Smith, and the trial judge, which is primarily based on the welfare and interests of the child herself. I do not think any other decision could be reached in the circumstances.

In conclusion, I draw attention to the words of The Honourable Charles Njonjo, Attorney-General of the Republic of Kenya at the beginning of his foreword in Vol. 1 of the Restatement of African Law on Marriage and Divorce, Kenya:

“One of the greatest problems that has faced the smooth administration of justice in Kenya, and indeed in most parts of Africa, for a very long time has been the fact that the customary laws of our various peoples have been unwritten. This was a problem not only to the judges, who faced the difficulty of ascertainment, but also to advocates in advising their clients, and most important of all, it was the biggest stumbling block to law reform since it was hardly possible to initiate sound reforms without a complete knowledge and understanding of these different customary laws.”

A much more vigorous and analytical approach is required from the members of the legal profession in Papua New Guinea.

Appeal and application for leave to appeal dismissed. Applicant to pay respondent’s costs.

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

Solicitor for the respondent: Craig Kirke & Wright.

[lxxxviii] Infra p. 65.

[lxxxix] Infra p. 66.

[xc] [1828] EngR 351; (1828) 2 Y. & J. 146 at p. 155.

[xci] [1926] 1 Ch. 676.

[xcii] [1916] P.C. 43.

[xciii] [1965] E.A. 735 at p. 739.

[xciv] [1962] W.N.L.R. 136 at p. 137.