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Adoption of Infants Act

LAWS OF FIJI

CHAPTER 58

ADOPTION OF INFANTS

Arrangement of Sections

SECTION

1. Short title.
2. Interpretation.
3. Power to make adoption orders.
4. Legitimation: Revocation of adoption orders and cancellation in Register.
5. Legitimation: Marking of entries on re-registration of births.
6. Restrictions on making adoption orders.
7. Consent to adoption.
8. Matters with respect to which court to be satisfied.
9. Terms and conditions of order.
10. Effect of adoption orders.
11. Treatment of adopted persons as children of adopters for purposes of intestacy, wills and settlements.
12. Provisions supplementary to section 11.
13. Other effects of adoption order.
14. Power to make interim orders.
15. Probationary period.
16. Power to make subsequent order in respect of infant already subject to an order.
17. Jurisdiction and procedure.
18. Restriction on payments.
19. Adopted Children Register.
20. Registration of adoption orders.
21. Scope of power to make adoption orders.

ADOPTION OF INFANTS

Ordinances Nos. 25 of 1944. 14 of 1950. 10 of 1951. 9 of 1955. 23 of 1961. 37 of 1966
.
AN ACT TO MAKE PROVISION FOR THE ADOPTION OF INFANTS AND FOR MATTERS CONNECTED THEREWITH

[1st May, 1945.]

Short title
1. This Act may be cited as the Adoption of Infants Act.

Interpretation
2. In this Act, unless the context otherwise requires-

"court" means the court having jurisdiction to make adoption orders under this Act.

"father" in relation to an illegitimate child means the natural father;

"relative" in relation to an infant means a grand-parent, brother, sister, uncle or aunt, whether of the full blood, of the half blood or by affinity, and includes-

(a) where an adoption order has been made in respect of the infant or any other person, any person who would be a relative of the infant within the meaning of this definition if the adopted person were the child of the adopter born in lawful wedlock;

(b) where the infant is illegitimate, the father of the infant and any other person who would be a relative of the infant within the meaning of this definition if the infant were the legitimate child of its mother and father.

(Section substituted by 14 of 1950, s. 3.)

Power To make adoption orders
3. (1) Upon an application in the prescribed manner by any person desirous of being authorised to adopt an infant who has never been married, the court may, subject to the provisions of this Act, make an order (in this Act referred to as “an adoption order") authorising the applicant to adopt that infant.

(2) A person so authorised to adopt the infant and an infant authorised to be adopted are in this Act referred to as an "adopter" and an "adopted child" respectively, and "infant" means a person under the age of twenty-one.

(3) Where an application for an adoption order is made by two spouses jointly, the court may make the order authorising the two spouses jointly to adopt, but save as aforesaid no adoption order shall be made authorising more than one person to adopt an infant.

Legitimation: Revocation of adoption orders and cancellations in Register
4. (1) Where-

(a) any person adopted by his father or mother alone has subsequently become a legitimated person on the marriage of his father and mother; or

(b) any person legitimated by virtue of the provisions of section 3 of the Legitimacy (Amendment) Ordinance, 1960, had been adopted by his father and mother before the 16th day of December, 1960,

No. 43 of 1960

the court by which the adoption order was made may, on the application of any of the parties concerned, revoke that order.

(2) Where an adoption order is revoked under this section the court shall give directions to the Registrar-General to cancel-

(a) the entry in the Adopted Children Register relating to the adopted person; and

(b) the marking with the word "adopted" of any entry relating to him in the Register of Births;

and a copy or extract of an entry in any register, being an entry the marking of which is cancelled under this section, shall be deemed to be an accurate copy if and only if both the marking and the cancellation are omitted therefrom.

(3) The revocation of an adoption order under this section shall not affect the operation of sections 11 and 12 in relation to an intestacy which occurred, or a disposition which was made, before the revocation.

(Inserted by 23 of 1961. s. 2.)

Legitimation: Marking of entries on re-registration of births
5. Without prejudice to the provisions of section 4, where, after an entry in the Register of Births has been marked with the word “adopted" the birth is reregistered under the Schedule to the Legitimacy Act (which provides for the re-registration of the birth of legitimated persons), the entry made on the re-registration shall be marked in the like manner.(Cap. 50)

(Inserted by 23 of 1961. s. 2)

Restrictions on making adoption orders
6. (1) An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants-

(a) has attained the age of twenty-five and is at least twenty-one years older than the infant in respect of whom the application is made; or

(b) has attained the age of twenty-one and is a relative of the infant, or

(c) is the mother or father of the infant.

(2) An adoption order shall not be made in any case where the sole applicant is a male and the infant in respect of whom the application is made is a female unless the court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order.

(3) An adoption order shall not be made upon the application of one of two spouses without the consent of the other of them:

Provided that the court may dispense with any consent required by this subsection if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving such consent or that the spouses have separated and are living apart and that the separation is likely to be permanent.

(4) An adoption order shall not be made in favour of any applicant who is not resident in Fiji or in respect of any infant who is not so resident.

(Section amended by 14 of 1950. s. 4)

Consent to adoption
7. (1) An adoption order shall not be made except with the consent of every person or body who is a parent or guardian of the infant, or who is liable by virtue of any order or agreement to contribute to the maintenance of the infant:

Provided that the court may dispense with any consent required by this subsection if it is satisfied-

(a) in the case of a parent or guardian of the infant, that he has abandoned, neglected or persistently ill-treated the infant, or has made no contribution to its maintenance for a period in excess of five years;

(b) in the case of a person liable as aforesaid to contribute to the maintenance of the infant, that he has persistently neglected or refused so to contribute;

(c) in any case, that the person whose consent is required cannot be found, or is incapable of giving his consent or that his consent is unreasonably withheld.

(2) The consent of any person to the making of an adoption order in pursuance of an application may be given (either unconditionally or subject to conditions with respect to the religious persuasion in which the infant is to be brought up) without knowing the identity of the applicant for the order; and where consent so given by any person is subsequently withdrawn on the ground only that he does not know the identity of the applicant, his consent shall be deemed for the purposes of this section to be unreasonably withheld.

(3) Where any person whose consent to the making of an adoption order is required by this section does not attend in the proceedings for the purpose of giving it, a document signifying his consent to the making of such an order shall, if the person in whose favour the order is to be made is named or otherwise described in the document, be admissible as evidence of that consent, whether the document is executed before or after the commencement of the proceedings; and where any such document is attested by a justice of the peace (or, if executed outside Fiji, by a person of any such class as may be prescribed by rules made under this Act), the document shall be admissible as aforesaid without further proof of the signature of the person by whom it is executed:

Provided that a document signifying the consent of the mother of an infant shall not be admissible as aforesaid unless-

(a) the infant is at least six weeks old on the date of the execution of the document; and

(b) the document is attested on that date by a justice of the peace or, as the case may be, by a person of a class prescribed as aforesaid.

(4) While an application for an adoption order in respect of an infant is pending in any court, any parent or guardian of the infant who has signified his consent to the making of an adoption order in pursuance of the application shall not be entitled, except with the leave of the court, to remove the infant from the care and possession of the applicant; and in considering whether to grant or refuse such leave the court shall have regard to the welfare of the infant.

(5) For the purposes of subsection (3), a document purporting to be attested as mentioned in that subsection shall be deemed to be so attested, and to be executed and attested on the date and at the place specified therein, unless the contrary is proved.

(Section inserted by 14 of 1950. s. 5.)

Matters with respect to which court to be satisfied
8. The court before making an adoption order shall be satisfied-

(a) that every person whose consent is necessary under this Act and whose consent is not dispensed with has consented to and understands the nature and effect of the adoption order for which application is made, and in particular, in the case of any parent, understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights; and

(b) that the order if made will be for the welfare of the infant, due consideration being for this purpose given to the wishes of the infant, having regard to the age and understanding of the infant; and

(c) that the applicant has not received or agreed to receive, and that no person has made or given, agreed to make or give to the applicant, any payment or other reward in consideration of the adoption except such as the court may sanction.

Terms and conditions of order
9. The court in an adoption order may impose such terms and conditions as the court may think fit and in particular may require the adopter by bond or otherwise to make for the adopted child such provision (if any) as in the opinion of the court is just and expedient.

Effect of adoption orders
10. Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage, shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercised by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock, and in respect of the same matters and in respect of the liability of a child to maintain its parents the adopted child shall stand to the adopter exclusively in the position of a child born to the adopter in lawful wedlock:

Provided that, in any case where two spouses are the adopters, such spouses shall, in respect of the matters aforesaid and for the purpose of the jurisdiction of any court to make orders as to the custody and maintenance of and right of access to children, stand to each other and to the adopted child in the same relation as they would have stood if they had been the lawful father and mother of the adopted child, and the adopted child shall stand to them respectively in the same relation as a child would have stood to a lawful father and mother respectively.

(Section amended by 14 of 1950, s. 6, and 37 of 1966. s. 16 )

Treatment of adopted persons as children of adopters for purposes of intestacy, wills and settlements
11. (1) The provisions of this and section 12 shall have effect for securing that adopted persons are treated as children of the adopters for the purposes of the devolution or disposal of real and personal property.

(2) Where, at any time after the making of an adoption order, the adopter or the adopted person or any other person dies intestate in respect of any real or personal property that property shall devolve in all respects as if the adopted person were the child of the adopter born in lawful wedlock and were not the child of any other person.

(Amended by 37 of 1966, s. 16.)

(3) If any disposition of real or personal property made, whether by instrument inter vivos or by will, after the date of an adoption order-

(a) any reference (whether express or implied) to the child or children of the adopter shall be construed as, or as including, a reference to the adopted person;

(b) any reference (whether express or implied) to the child or children of the adopted person's natural parents or either of them shall be construed as not being, or as not including, a reference to the adopted person; and

(c) any reference (whether express or implied) to a person related to the adopted person in any degree shall be construed as a reference to the person who would be related to him in that degree if he were the child of the adopter born in lawful wedlock and were not the child of any other person,

unless the contrary intention appears.

(4) Where under any disposition any real or personal property or any interest in such property is limited (whether subject to any preceding limitation or charge or not) in such a way that it would, apart from this section, devolve (as nearly as the law permits) along with a dignity or title of honour, then, whether or not the disposition contains an express reference to the dignity or title of honour, and whether or not the property or some interest in the property may in some event become severed therefrom, nothing in this section shall operate to sever the property or any interest therein from the dignity, but the property or interest shall devolve in all respects as if this section had not been enacted.

(5) This section shall be construed as referring to an adoption order whether made before or after the first day of November, 1950, but nothing in this section shall affect the devolution of any property on the intestacy of a person who died before such day aforesaid or any disposition made before such day.

(Section inserted by 14 of 1950, s. 7, and amended by 10 of 1951. s. 2.)

Provisions supplementary to section 11.
12. (1) For the purposes of the construction of any such disposition as is mentioned in subsection (3) of section 11 an adopted person shall, unless the contrary intention appears, be deemed to be related to any other person, being the child or adopted child of the adopter or (in the case of a joint adoption) of either of the adopters, as brother or sister.

(2) Notwithstanding any rule of law, a disposition made by will executed before the date of an adoption order shall not be treated for the purposes of section 11 as made after that date by reason only that the will is confirmed by a codicil executed after that date.

(3) Notwithstanding anything in section 11, trustees or personal representatives may convey or distribute any real or personal property to or among the persons entitled thereto, without having ascertained that no adoption order has been made by virtue of which any person is or may be entitled to any interest therein, and shall not be liable to any such person of whose claim they have not had notice at the time of the conveyance or distribution; but nothing in this subsection shall prejudice the right of any such person to follow the property, or any property representing it, into the hands of any person, other than a purchaser, who may have received it.

(4) Where an adoption order is made in respect of a person who has been previously adopted, the previous adoption shall be disregarded for the purposes of section 11 in relation to the devolution of any property on the death of a person dying intestate after the date of the subsequent adoption order and in relation to any disposition of property made after that date.

(Section inserted by 14 of 1950, s. 7. and amended by 10 of 1951. s. 3.)

Other effects of adoption order
13. (1) For the purpose of the law relating to marriage, an adopter and the person whom he has been authorised to adopt under an adoption order, whether made before or after the first day of November, 1950, shall be deemed to be within the prohibited degrees of consanguinity; and the provisions of this subsection shall continue to have effect notwithstanding that some person other than the adopter is authorised by a subsequent order to adopt the same infant:

Provided that nothing in this subsection shall invalidate any marriage which has been solemnized before the first day of November, 1950.

(2) Where an adoption order is made on or after the first day of November. 1950, in respect of an infant who is illegitimate any affiliation order in force with respect to the infant, and any agreement whereby the father of the infant has undertaken to make payments specifically for the benefit of the infant, shall cease to have effect, but without prejudice to the recovery of any arrears which are due under the affiliation order or the agreement at the date of the adoption order:

Provided that where the infant is adopted by his mother, and the mother is a single woman, the order or agreement shall not cease to have effect by virtue of this subsection upon the making of the adoption order, but shall cease to have effect if she subsequently marries.

(3) Where an adoption order is made on or after the first day of November 1950, in respect of an infant committed to the care of a relative, fit person or institution by an order in force under the Juvenile Act, the last mentioned order shall cease to have effect.(Cap. 56)

(Section inserted by 14 of 1950, s. 7.)

Power to make interim orders
14. (1) Upon any application for an adoption order, the court may postpone the determination of the application and may make an interim order (which shall not be an adoption order for the purposes of this Act) giving the custody of the infant to the applicant for a period not exceeding two years by way of a probationary period upon such terms as regards provision for the maintenance and education and supervision of the welfare of the infant and otherwise as the court may think fit.

(2) All such consents as are required to an adoption order shall be necessary to an interim order but subject to a like power on the part of the court to dispense with any such consent.

Probationary period
15. (1) An adoption order shall not be made m the case of any Infant unless the infant has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order.

(2) An interim order under the provisions of section 14 shall not be made in any case where the making of an adoption order would be unlawful by virtue of the provisions of subsection (1).

(Section inserted by 14 of 1950. s. 8.)

Power to make subsequent order in respect of infant already subject to an order
16. An adoption order or an interim order may be made in respect of an infant who has already been the subject of an adoption order, and, upon any application for such further adoption order, the adopter or adopters, under the adoption order last previously made shall, if living, be deemed to be the parent or parents of the infant for all the purposes of this Act.

Jurisdiction and procedure
17. (1) The court having jurisdiction to make adoption orders under this Act shall be the Supreme Court or, at the option of the applicant, but subject to any rules made under this section, any court of a resident or second class magistrate within the jurisdiction of which either the applicant or the infant resides at the date of the application for the adoption order.

(2) An appeal to the Supreme Court from any order or refusal to make an order by a magistrates' court under this Act shall lie within such time and in such manner as may be prescribed by rules made under this section.

(3) The Chief Justice may make rules in regard to any matter to be prescribed under this Act and directing the manner in which applications to the Court are to be made and dealing generally with all matters of procedure and incidental matters arising out of this Act and for carrying this Act into effect.

Such rules may provide for applications for adoption orders being heard and determined otherwise than in open court and, where application is made to a magistrate for the hearing and determination thereof in a juvenile court as defined by the Juveniles Act.(Cap. 56)

(4) For the purpose of any application under this Act and subject to any rules made under this section, the court shall appoint some person to act as guardian ad litem of the infant upon the hearing of the application with the duty of safeguarding the interests of the infant before the court.

Restriction on payments
18. It shall not be lawful for any adopter or for any parent or guardian except with the sanction of the court to receive any payment or other reward in consideration of the adoption of any infant under this Act or for any person to make or give or agree to make or give to any adopter or to any parent or guardian any such payment or reward.

Adopted Children Register
19. (1) The Registrar-General (in this Act referred to as the “Registrar") shall establish and maintain a register to be called the Adopted Children Register, in which shall be made such entries as may be directed to be made therein by adoption orders, but no other entries.

(2) The court shall cause every adoption order to be communicated in the prescribed manner to the Registrar, and upon receipt of such communication the Registrar shall cause compliance to be made with the directions contained in such order in regard both to marking any entry in the register of births kept in accordance with the provisions of the Births, Deaths and Marriages Registration Act (in this Act referred to as the Register of Births), with the word “Adopted" and in regard to making the appropriate entry in the Adopted Children Register. (Cap. 49)

(Amended by 9 of 1955. s. 4.)

(3) A certified copy of any entry in the Adopted Children Register if purporting to be given under the hand of the Registrar shall, without any further or other proof of such entry-

(a) where the entry does not contain any record of the date of the birth of the adopted child, be received as evidence of the adoption to which the same relates; and

(b) where the entry contains a record of the date of the birth or the country of birth of the adopted child, be received not only as evidence of the adoption to which the same relates but also as evidence of the date of the birth or the country of birth of the adopted child to which the same relates in all respects as though the same were a certified copy of an entry in the Register of Births.

(Amended by 14 of 1950, s. 9.)

(4) The Registrar shall cause an index of the Adopted Children Register to be made and kept in the office of the Registrar and every person shall be entitled to search such index and to have a certified copy of any entry in the Adopted Children Register upon payment of such fee as the Minister may, by order published in the Gazette, prescribe.

(5) The Registrar shall, in addition to the Adopted Children Register and the index thereof, keep such other registers and books, and make such entries therein as may be necessary to record and make traceable the connexion between any entry in the Register of Births which has been marked "Adopted'' pursuant to this Act and any corresponding entry in the Adopted Children Register, but such last-mentioned registers and books shall not be nor shall any index thereof be open to public inspection or search, nor, except under an order of the court, shall the Registrar furnish any person with any information contained in or with any copy or extract from any such registers or books.

Registration of adoption orders
20. (1) Every adoption order shall contain a direction to the Registrar to make in the Adopted Children Register an entry in the form set out in the Schedule and (subject to the provisions of subsection (2)) shall specify the particulars to be entered under the headings in columns 2 to 6 of that Schedule.

(2) For the purposes of compliance with the requirements of subsection (1)-

(a) where the precise date of the infant's birth is not proved to the satisfaction of the court, the court shall determine the probable date of his birth and the date so determined shall be specified in the order as the date of his birth;

(b) where the name or surname which the infant is to bear after the adoption differs from his original name or surname, the new name or surname shall be specified in the order instead of the original;

and where the country of birth of the infant is not proved to the satisfaction of the court, the particulars of that country may, notwithstanding anything in that subsection, be omitted from the order and from the entry in the Adopted Children Register.

(3) Where upon any application for an adoption order in respect of an infant (not being an infant who has previously been the subject of an adoption order) there is proved to the satisfaction of the court the identity of the infant with a child to which an entry in the Register of Births relates, any adoption order made in pursuance of the application shall contain a direction to the Registrar to cause the entry in the Register of Births to be marked with the word "Adopted".

(4) Where an adoption order is made in respect of an infant who has previously been the subject of an adoption order, the order shall contain a direction to the Registrar to cause the previous entry in the Adopted Children Register to be marked with the word "Readopted".

(5) Where an adoption order is quashed, or an appeal against an adoption order allowed, the court which made the order shall give directions to the Registrar to cancel any marking of an entry in the Register of Births and any entry in the Adopted Children Register which was effected in pursuance of the order.

(6) A copy of any entry in the Register of Births or the Adopted Children Register the marking of which is cancelled under this section shall be deemed to be an accurate copy if and only if both the marking and the cancellation are omitted therefrom.

(7) The court by which an adoption order has been made may, on the application of the adopter or of the adopted person, amend the order by the correction of any error in the particulars contained therein and where an adoption order is so amended the prescribed officer of the court shall cause the amendment to be communicated in the prescribed manner to the Registrar and any necessary correction of or addition to the Adopted Children Register shall be made accordingly.

(8) In the case of an adoption order made before the first day of November, 1950, the power of the court under subsection (7) shall include power to amend the order-

(a) by the insertion of the country of the adopted person's birth;

(b) (where the order does not specify a precise date as the date of the adopted person's birth) by the insertion of the date which appears to the court to be the date or probable date of his birth;

and the provisions of that subsection shall have effect accordingly. (Section inserted by 14 of 1950, s. 10)

Scope of power to make adoption orders
21. It is hereby declared that the power to make adoption orders conferred by this Act includes and has always included power to make an adoption order authorising the adoption of an infant by the mother or father of the infant either alone or jointly with her or his spouse.