Abstract
Papua New Guinea is the largest of the Pacific island states considered in this collection, both in terms of land mass and population. It is also one of the most complex in terms of the diversity and number of indigenous languages and the treatment of customs and customary laws. Whilst the formal law on adoption reflects a colonial past it also acknowledges customary adoption. In recent years greater legislative attention has been focussed on children and proposed reforms to the formal law on adoption are part of this shift.
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Notes
- 1.
Detrick (1999), p. 343.
- 2.
- 3.
Albrecht (2005), p. 3.
- 4.
See generally Kwa (2001).
- 5.
National Statistical Office Papua New Guinea 2011 Census. More recent estimates indicate the current population is over 8 million. Papua New Guinea Population. Worldometers (2018). Accessed 8 May 2018.
- 6.
Trading Economics (2018) Papua New Guinea – Rural Population.
- 7.
United Nations, ‘Child Adoption: Trends and Policies’ (2009 p. 302).
- 8.
Statista (2018).
- 9.
UNICEF Data (2018).
- 10.
As one of the drafters of the Bill, the instructions from the Government were that because the child belonged to a family, the focus of the Bill should be on the family and not the child per se.
- 11.
[1979] PNGLR 520 (21 September 1979). In this case an Australian citizen and his Fijian wife who was also an Australian citizen but resident in PNG successfully adopted the 16 year-old younger sister of the wife in PNG.
- 12.
(Unreported, National Court, Papua New Guinea, Davani J, 15 July 2016) available via www.paclii.org at [2016] PGNC 167. In this case the National Court refused an application for adoption by the applicant who was an Australian anthropologist who had adopted the child under custom but made the application 4 years later while not a resident or domiciled in PNG.
- 13.
See 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 (5 May 1980) for an in-depth discussion on the role of the Local Court and customary adoptions.
- 14.
Personal conversation with Betty Billy (former child welfare officer, retired 2015) in Port Moresby on 8th August 2017.
- 15.
United Nations, ‘Child Adoption: Trends and Policies’ (2009).
- 16.
Ibid., p. 302.
- 17.
Unfortunately, the authors have been unable to obtain information from the Civil Registration Office to verify the figures. The figures here however relate to formal adoptions as there is no credible data to confirm the number of customary adoptions.
- 18.
The adoption arose from the fact that the biological parents did not object initially to the fostering of their child, the guardians took it as tacit endorsement of the adoption of their daughter by the guardians.
- 19.
The change in the surname would entail entitlements such as (1) being called a daughter or son; (2) right to assets and property; and (3) access to land and other natural resources belonging to the father.
- 20.
This uncertainty about customary adoptions was also acknowledged by the courts in PNG. For instance, in Elewai v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 34 (3 February 1992), in assessing the loss for a customarily adopted child whose father was killed in a car accident, Woods J said ‘the circumstances of the adoption are not made clear to the court. What legal obligations are put on people by these customary adoptions?’
- 21.
Trading Economics (2018), p. 30.
- 22.
In PNG, these rights are entrenched in ss 32-58 of the Constitution.
- 23.
League of Nations, Geneva Declaration on the Rights of the Child, adopted 26 Sept 1924.
- 24.
Universal Declaration of Human Rights, GA Res 217 A (III) (10 December 1948).
- 25.
Declaration of the Rights of the Child, UN Doc A/RES/1386 (20 November 1959).
- 26.
A convention creates rights and obligations and is legally binding for the ratifying state parties, whilst a declaration embrace intentions and moral codes.
- 27.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). PNG acceded to the Convention in 2008 and it came into force in PNG in October 2008.
- 28.
International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). PNG acceded to the Convention in 2008 without reservations.
- 29.
United Nations Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally, GA Res 41/85, UNGAOR, UN Doc A/41/85 (3 December 1986).
- 30.
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
- 31.
Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption, 32 ILM 1134 (29 May 1993).
- 32.
PNG ratified the CRC in 1993.
- 33.
United Nations Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally, GA Res 41/85, UNGAOR, UN Doc A/41/85 (3 December 1986).
- 34.
Constitution of Papua New Guinea 1975, s 117(7).
- 35.
For example, the issue of customary adoptions being formally registered under the Civil Registration Act and the link to the Family Court under the Lukautim Pikinini Act. The other relates to the issue of domicile and residence. This needs to be clarified under the legislation. Another issue is the meaning of the term ‘best interest of the child’ and the question whether this should be clarified by statute or whether the courts be allowed to continue to use their discretion to ascertain the meaning?
- 36.
Under section 86 of the Lukautim Pikinini Act 2015, a child under the age of 18 is prohibited from being married. It is a criminal offence to marry a child under 18 years old. Child marriage is therefore now illegal in PNG.
- 37.
Adoption of Children Act 1968, s 6(1)(b).
- 38.
[1984] PNGLR 25 (10 February 1984).
- 39.
[1979] PNGLR 520 (21 September 1979).
- 40.
(Unreported, National Court, Papua New Guinea, Davani J, 15 July 2016) available via www.paclii.org at [2016] PGNC 167.
- 41.
Under the Marriage Act, it is permissible for an 18 year old boy and a 16 year old girl to be married. The minimum age limit for customary marriages under the Marriage Act was unclear. See however note 37.
- 42.
This is an issue that will be addressed by the current review of the Adoption of Children Act given that the adopting age is 21 years and above, while marriageable age is 18 years and above.
- 43.
Adoption of Children Act 1968, s 20.
- 44.
[1980] PNGLR 64 (5 May 1980).
- 45.
Adoption of Children Act 1968, s 21(1).
- 46.
The Director of Child and Family Services must appear in all adoptions cases in the National Court. He or she is required to submit a report including home visits, etc to the National Court.
- 47.
For the use of expert witnesses see K and K v Director of Child Welfare [1981] PNGLR 333 (28 August 1981), where evidence had to be adduced from expert witnesses about the socio-cultural impacts of an adopted Papua New Guinean living and growing up in Australia.
- 48.
See the case of K, Re [1979] PNGLR 520 (21 September 1979), where the National Court was satisfied that an elder sister and her husband could adopt the younger sister. Interestingly the parties were from Fiji and Australia.
- 49.
This was clarified by the National Court in Re, the Adoption of an Infant, R [1976] PNGLR 81 (9 March 1976).
- 50.
Adoption of Children Act 1968, s 9.
- 51.
[1980] PNGLR 89 (30 May 1980).
- 52.
Lukautim Pikinini Act 2015, s 2.
- 53.
[1981] PNGLR 333 (28 August 1981).
- 54.
[1984] PNGLR 25 (10 February 1984).
- 55.
(Unreported, National Court, Papua New Guinea, Ramage AJ, 22 October 1982) available via www.paclii.org at [1982] PGNC 27.
- 56.
See Re, E and D [1984] PNGLR 278 (2 November 1984) where the National Court discussed the power of the Local Court on adoptions.
- 57.
In land disputes, it is usually the clans that make a claim and not individuals. Thus, an adopted child will always stand together with his or her kinsfolks in such disputes.
- 58.
This is provided for under Part VIII of the Civil Registration Act.
- 59.
Civil Registration Act, s 52, which is subject to s 54 of the Adoption of Children Act.
- 60.
Civil Registration Regulation 1999, s 3(d) and Form 4.
- 61.
The CLRC has worked closely with all the relevant Government agencies and stakeholders to rectify the law in this area.
- 62.
See State v Kais [1978] PNGLR 241 (6 July 1978).
- 63.
A team of experts are currently putting together a list of provisions of the Adoption of Children Act that need to be reviewed to synergize with the Lukautim Pikinini Act.
- 64.
The Government has increased the budgetary support to CLRC in 2018 to undertake several major reviews. It has also supported the CLRC’s engagement with multilateral organisations and particularly the UN agencies to provide funding and technical support for legislative reviews.
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Kwa, E., Onom, N. (2019). The Law of Adoption in Papua New Guinea. In: Corrin, J., Farran, S. (eds) The Plural Practice of Adoption in Pacific Island States. The World of Small States, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-319-95077-8_4
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