H and H v Director of Child Welfare [1980] PNGLR 89 (30 May 1980)

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INFANTS AND CHILDREN - Adoption - Evidence - Appeal against refusal of order - Fresh evidence on appeal - Strict application of rules of evidence to be waived where interests and welfare of child paramount consideration - Future legal status of child in country of adopting parents considered - Need for evidence of future legal status of child.

On an appeal against the refusal of a judge of the National Court to grant an adoption order to the appellants, both German citizens, in respect of a child who was an automatic citizen of Papua New Guinea:

(1) On appeals in adoption cases, where the paramount consideration is the interests and welfare of the child, the rules restricting the admission of fresh evidence on the hearing of appeals, need not be strictly applied.

(2) In adoption cases where the future legal status of the child is in question, the applicants for adoption should place before the court reliable evidence in a convincing form as to the future legal status of the child.

GREVILLE SMITH ANDREW MILES JJ: This is an appeal and an application for leave to appeal under the provisions of the Supreme Court Act 1975 against an order of his Honour the learned judge at first instance refusing to grant an adoption order in respect of a child, H, sought by the appellants under the provisions of the Adoption of Children Act 1968.

The respondent, the Director of Child Welfare who is guardian of the child under the provisions of s. 26 of the Adoption of Children Act opposed before his Honour the making of the adoption order sought, and continues his opposition before this Court.

The child in question who is an automatic citizen of Papua New Guinea is an illegitimate child born in September 1979 and has been in the custody of the appellants since she was two weeks’ old. The mother of H has given a general consent to her adoption.

The male appellant Mr. H is a German citizen whilst the female appellant, his wife Mrs. H, has dual citizenship being both a British citizen and a naturalized German citizen. They are resident in Papua New Guinea in consequence of the male appellant’s employment and will remain here for the next eighteen months. They will then return to Germany for a holiday, and thereafter their place of residence will depend upon where his employment with the parent company, which is a German company, takes him. Where that employment will be is at present unascertainable but he has been an employee of that company for about ten years and has served the company in several parts of the world.

Section 8 of the Adoption of Children Act requires that the welfare and interests of the child concerned shall be regarded as the paramount consideration. Of this his Honour the learned judge of first instance was fully conscious. The Director of Child Welfare did not contend before his Honour, and does not contend on this appeal that the appellants are not suitable and fit and proper persons to adopt the child, and his Honour stated in the judgment appealed against that having regard to all the circumstances of the case if the appellants intended to stay permanently in Papua New Guinea he would have no hesitation in making the adoption order. With his Honour’s assessment of the appellants the members of this Court fully agree.

However his Honour was concerned, as was the Director of Child Welfare, as to what legal status the child H would have, or could obtain, under German law, as a result of the adoption order sought if it were granted, and what her legal status would or could be in such other country as might become her place of residence in consequence of the male appellant changing his country of residence in the course of his employment. These are important matters because such matters have a bearing upon the legal rights, liabilities and protection that would be available to or imposed upon H in the country of her residence as aforesaid.

Such matters have of course concerned courts before today and in other jurisdictions than this one. In Re An Infant G and the Adoption of Children Act[cxv]¹ after finding that in the application before him the evidence showed that the applicants were worthy people, fit and proper, in the words of the statute, to assume the responsibilities of parents, Myers J. said as follows:

“The male applicant’s employment may require him to live temporarily in various parts of the world, though ultimately he will return to America permanently. Wherever the child is taken, even in the United States where she will eventually live, it is likely that she will not be recognized as the child of the applicants, itself a serious handicap, but further than that the applicants will have no legal duty to care for her and educate her and will not even have a right to her custody. She may be deprived of the right of succession and may be unable to acquire American nationality. For all I know, she may become liable to deportation.”

There was no evidence before his Honour the learned judge in first instance as to the state of the law in relation to the child obtaining citizenship of the Republic of Germany or of her chances of obtaining such citizenship and as to such other countries to which she might be taken to reside; there could be no such evidence as the identity of those countries is unknown and presently unascertainable.

His Honour was mindful of the fact that the Director of Child Welfare intended and had the right to take the child out of the custody of the appellants if their application for an adoption order failed. There was material before his Honour suggesting a deleterious psychological effect of this, if it occurred, on the child but his Honour thought that such an effect would not be a great one. His Honour was of opinion that any such effect would be outweighed by the uncertainty of the protection of the legal rights of the child if the child were allowed to be taken overseas by the appellants.

In the result his Honour held that the welfare and interests of the child would not be promoted by the adoption sought.

This appeal by virtue of the provisions of s. 7 of the Supreme Court Act 1975 is by way of rehearing upon the evidence given in the court the decision of which is appealed against, subject to the right of this Court to allow fresh evidence to be adduced where it is satisfied that the justice of the case so warrants. Ordinarily this Court will not allow fresh evidence to be adduced unless such evidence was not available or not reasonably discoverable at the time of the earlier hearing and unless it is relevant, reasonably capable of belief and of such weight that it might reasonably have an influence on the result of proceedings. (Ladd v. Marshall)[cxvi]². In custody cases where not merely the individual results of the parties are involved but also, as a paramount consideration, the interests and welfare of the child a court will not apply the foregoing rule in its full strictness (Corbett v. Corbett)[cxvii]³. This rule applies equally to adoption cases.

In pursuit of the foregoing principles a considerable amount of fresh evidence was allowed to be introduced in this appeal. Some of this was hearsay, admissible under the provisions of s. 60 of the Adoption of Children Act. None of this evidence was challenged as to its credibility, nor was cross-examination upon it sought.

In determining whether to grant or refuse an adoption order a court acts in the exercise of a discretion and an appellate court will not interfere with an order granting or refusing an adoption unless there has been a failure to exercise the discretion or a wrongful exercise, such as where the court has acted upon a wrong principle in such exercise.

An appellate court will not substitute its own conclusions formed on the same materials simply because they differ from those of the court whose decision is appealed from.

Where there is fresh evidence, as in this appeal, an appellate court is not so much examining an exercise of discretion as exercising its own discretion on the totality of the materials before it. In such a situation it may more readily as appellate court come to different conclusions to that of the learned judge of first instance, especially where, as here, the assessment of credibility of witnesses is not involved.

The fresh evidence referred to contained “inter alia”, evidence from a specialist medical officer employed at Port Moresby General Hospital, whose training included training in the psychological aspects of the development of children, that should H be removed from the custody of the appellants she would suffer trauma the intensity of which would probably depend upon where she was placed after being removed and which in any event would have long term detrimental consequences to the emotional development and welfare of the child.

The fresh evidence also contained evidence from a person who for more than a year immediately preceding 15th May, 1980, was chief medical social worker at Port Moresby Hospital, has had more than seventeen years in Papua New Guinea and holds a degree in Arts and Social Work from the University of Sydney, whose training as a medical social worker included training in developmental psychology as it relates to the development of children in particular, has been acquainted with the child and the appellants since the birth of the child, and since then has had a close association with the appellants and the child. The essence of her evidence is that in her professional opinion if the child H suffered the break in emotional security which would result from a cessation of the appellants’ custody the ultimate emotional effect on the child would be very serious.

Included in the fresh evidence incorporated in the evidence of Anthony Miles Burdett Crane, barrister and solicitor of this Court, was the opinion of one Professor Horst K. Lucke, a Professor of Law at the University of Adelaide, South Australia. Actually what was incorporated was what Professor Lucke told Mr. Crane per telephone from Australia. On the material contained in Mr. Crane’s affidavit Professor Lucke appeared to qualify as an expert in the law of the Republic of West Germany and no attempt was made by counsel for the respondent to impugn the substance of his evidence as alleged, his status as an expert nor the reliability of the expert evidence he gave.

To the essential question whether German law would recognize an adoption made in Papua New Guinea in circumstances such as those with which this Court is now concerned and the status that such an adoption would give to the child H, Professor Lucke replied, in effect, as follows.

Much would depend on residence according to the German law concept of residence which is similar to the common law concept of domicile. The appellants herein would probably not be able to show present “residence” in Papua New Guinea nor present “residence” in Germany, and would therefore be regarded as without any such residence at the present time. In these circumstances, and if certain other conditions were fulfilled, there would be a “good probability” that the adoption would be recognized in Germany. Such requirements are:

“(i) one of the adoptive parents must exceed the age of 25 and the other parent must exceed the age of 21;

(iii) the Papua New Guinea court must satisfy itself that the interests of other children in the family of the adoptive parents are not prejudiced;

(iv) the legal representative of the child should give his consent to the adoption although the court in Germany would have power to dispense with the consent of the legal representative and replace their consent with the consent of the court;”

Professor Lucke added that the adoptive parents would find great assistance in an application for recognition of the proposed adoption and the status of H resulting therefrom under Papua New Guinea law if they could show that they and the child had been present within the jurisdiction of the court that made the adoption order which the courts of Germany were being asked to recognize. They would of course be able to show this because such are the facts.

So far as concerns condition (iii), the situation of the family concerned has been fully disclosed in the evidence before us and we are satisfied that the interests of other children in the family would not be prejudiced by the proposed adoption.

As above recited the court in Germany would have power to dispense with condition (iv), and we think that as the guardian is the respondent, who is a State instrumentality whose consent is, as provided by s. 26 of the Adoption of Children Act, not required for an adoption in Papua New Guinea, and perhaps also because as the adoption sought would be a creature of the highest court in the judicial system of Papua New Guinea, it is likely that such a dispensation would be forthcoming.

In the light of the evidence of Professor Lucke we are satisfied that recognition of the proposed Papua New Guinean adoption by the appellants of the child H would be obtainable in Germany and we are satisfied that the appellants would take without delay all steps reasonably open to obtain such recognition. “Abundante cautela” we have received from the male appellant an undertaking on his part to do this. Mr. Molloy, counsel for the appellants has undertaken to explain to him the consequences that may flow from a breach of such undertaking both so far as concerns the proposed adoption and so far as concerns this appellant personally.

As to the matter of other countries to which the appellants may take the child H, together with their other children, who are also young, it must be recognized that the appellants are citizens of an advanced and civilized country which has commensurate capacity to protect its citizens abroad, and that (in our view) such citizenship would be duly obtained for the infant H.

Furthermore the appellants are sophisticated and educated persons who are reasonably, if not well, situated financially and they have now been alerted by these proceedings, and the anxieties they have endured in connection therewith, to the dangers which may arise, in connection with adoptions, of the kind that concerned the Director of Child Welfare and his Honour the learned judge at first instance, and which have concerned this Court. We think they may be relied upon to make full and competent enquiry in advance and not, so far as human foresight can reasonably guard against such things, to take H into a country where she might be exposed to dangers of such a kind, any more than they would take her to places in this country where she might be exposed to dangers of another kind. In this connection, the fresh evidence contains a statement, which we accept, by the managing director of the company by which the male appellant is employed that a finding by the learned judge at first instance, on the evidence before him, that the country to which the appellants will go after the expiration of the male appellant’s term in Papua New Guinea expires will be “a matter for his employer” is not in accordance with fact so far as it might imply that the male appellant has little real choice in the matter. This deponent states that an employee may ask to go to a particular branch or be invited by the company to go to a particular branch, that there is no compulsion upon an employee to go to a particular branch, and that the matter of postings particularly with employees of the level of the male appellant, is a matter governed strictly by consensus between the company and the employees.

It will be seen that the case for the appellants as it emerged before this Court was a substantially different one factually from that considered by his Honour the learned judge at first instance. In these circumstances we feel no diffidence in coming to a conclusion different to that of his Honour.

In our opinion the prospects that the adoption under consideration offers the child H are exceptionally good, both short-term and long-term, so far as concerns the promotion of the welfare and interests of the child, and taking all relevant matters into account we are satisfied that an adoption order should be made in favour of the appellants.

There are several general matters to which we think we should refer at this point. The first is the necessity, if the adoption application is not to fail as it did in Re An Infant G and the Adoption of Children Act[cxviii]⁴ for applicants to place before the court reliable evidence in a convincing form as to the future legal status of the child. Admittedly in this case the appellants were under some pressure as to time, and had some difficulties in obtaining such evidence. However such evidence was available and they should have sought the necessary time from the court. Unnecessary delays are undesirable in adoption applications because they may result in trauma or additional trauma to the child where the application for adoption fails. On the other hand approval for necessary delays should be sought and should be granted, otherwise the interests of the child may be jeopardized in a different and perhaps greater way. With respect we feel that in the interests of the child, and having regard to the court’s special responsibilities in respect of the welfare of children, his Honour the learned judge at first instance in this case should, as soon as he perceived the deficiency of evidence in question, have drawn it to the attention of the appellants’ counsel and ascertained whether the appellants were able to supply the deficiency, and whether they required an adjournment, and if so for how long. His Honour might also reasonably have enquired in this case whether the Director of Child Welfare could assist. We conceive the duty of the Director to be to assist the court by placing before it as far as he is reasonably able and so far as the applicants are not able or do not do so, all material that is or might be relevant, and this is so whether such material supports the personal views of the Director or his officers, or otherwise.

We would add a word about the form in which the opinion of Professor Lucke was tendered, namely by means of hearsay derived per telephone. An affidavit, or evidence taken on commission would have been a proper vehicle of proof. It will be noted that Professor Lucke was not on oath and was not, without more, liable to cross-examination. Evidence in this form though technically admissible, as we have already said, by reason of the provisions of s. 60 of the Adoption of Children Act would not, we think, ordinarily be acceptable as evidence upon which to decide matters of importance. It certainly would be a fragile reed upon which to lean if it were substantially challenged or questioned by an opposing party or the Director. In this case the court felt assisted in its acceptance of the evidence in question by the fact that the Director might, and in the fulfilment of his duty should, have challenged it if he did not consider it trustworthy.

[cxv] (1968) 87 W.N. (Pt. 1) (N.S.W.) 561 at p. 563.

[cxvi] [1954] 1 W.L.R. 1489.

[cxvii] [1953] 2 All E.R. 69.

[cxviii] (1968) 87 W.N. (Pt. 1) (N.S.W.) 561.

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Papua New Guinea Law Reports

H and H v Director of Child Welfare [1980] PNGLR 89 (30 May 1980)

Papua New Guinea Law Reports - 1980