Re Application for the Adoption of a Child, AX [1986] PGNC 4; N276 (30 May 1986)

Unreported National Court Decisions

N276

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MP NO. 105 OF 1980
IN THE MATTER OF AN APPLICATION UNDER THE PROVISIONS OF THE ADOPTION OF CHILDREN ACT 1968 FOR THE ADOPTION OF A CHILD AX

Waigani

Miles J
10 December 1980
12 December 1980

REASONS FOR DECISION

MILES, J: This is a difficult case and one in which the decision must be unsatisfactory in some respects because it has to be delivered hastily. Adoption cases should not have to be considered in haste. In this matter there is no alternative. The male applicant is an officer in the Australian Regular Army who has been serving in the Papua New Guinea Defence Force. He has been posted back to Australia and is due to leave Papua New Guinea permanently on 19th December 1980. Already he and his wife, the female applicant, and their children have been moved out of their former home and are staying in a hotel. They have with them the child the subject of the application, a six month old baby boy from Milne Bay Province who, apart from a period in hospital in its first few weeks, has never lived with anybody else. The child has no relations except brothers and sisters who do not know him and a father who has purported to consent to the adoption by the applicants. There are some relatives on the deceased mother's side but the evidence is that they want nothing to do with the child. There is no alternative between allowing the child to accompany the applicants to Australia as their adopted son or committing him to the care of the Director who will make some temporary fostering arrangements here in Papua New Guinea. The applicants are Australian citizens.

The haste with which the case has to be decided is not the fault of the applicants. The applicants did not realise their own interest in adopting the child until some time in September. They cannot be blamed for that. The application is dated 3rd November 1980, but unfortunately the affidavit evidence to support the application was not obtained until 27th and 28th November. The Director has not had time to properly prepare his case in opposition to the application, or indeed to properly investigate the matter.

The circumstances in which the child comes to be in the care and control of the applicants are extraordinary and should be set out in some detail as they do not fully appear in the affidavit evidence.

The male applicant was the leader of a Defence Force Civil Action team engaged in a project on an island in the Milne Bay Province. A woman in a local village gave birth to twin boys on 9th June 1980 and was dangerously ill as a result. Appraised of this the applicant sought to have her sent to a local hospital but she died an hour before the plane arrived to take her there. The father of the children and the relatives of the mother (it seems that the father has no close relatives) refused to have anything to do with the babies who were then in their second day. The applicant tried unsuccessfully to find a nursing mother in the father's village to feed the babies. We found a woman in another village who began to suckle them but was stopped by an elder who feared that the woman would suffer the same fate as the mother. By this time the babies were beginning to dehydrate. The applicant and defence force nurses kept them alive with boiled water and powdered milk. The applicant then, although reluctant to further involve the Defence Force, arranged for the babies to be taken to Port Moresby General Hospital by special flight. The babies were there admitted to intensive care.

There can be little doubt that the children would have died but for the efforts of the applicant who did not act out of choice so much as from his own view of necessity. He remained on the island to attend to his work but concerned that there was no one in Port Moresby to attend to the children apart from overworked hospital staff, he asked his wife to keep a check on them. This she did for a week or so when again the people involved were overtaken by events. A strike by hospital staff seemed imminent. Either the female applicant suggested or it was suggested to her that she should take the twin who was less seriously ill for the weekend over which the strike was to take place. This she did. When she went to return the child, she was asked by the doctor whether she could continue to look after it at home. Indeed she was asked if she could look after both of the children. This she said was beyond her capacity as they were on three-hourly bottle feeds. She offered, or she was asked, to try to find a friend who could look after the other child. She did this too and the other child was taken into care of another couple at the Defence Force station. At that stage it seems that the children had not been given names.

By this time the male applicant had returned from Milne Bay. He had in the meantime been told that he was being posted to Australia at the end of the year. He made several attempts to speak to the relatives of the children, particularly the father with whom he was unable to make any direct contact apparently because the father was still in mourning. He suggested to the village people that the children return to the village upon their discharge from hospital but the people indicated that they did not want them. The village people referred to the subject child by the name (the name of the mother's brother) and the twin brother was referred to by the name Y (the name of the father).

The female applicant said that when the doctor asked her if she could continue to look after the child at home, she was told something about the child being subject to the Provincial Social Worker. She said that she expected a visit but none came. With the wisdom of hindsight it is clear that at that stage the applicants should have contacted the Department of Child Welfare or otherwise sought advice as to their position. Instead of that, they continued to look after the child, whom they called by a Christian name A and he soon became a member of the family cared for by the applicants as their own child and regarded by their children (aged between nine and three years) as a baby brother. The child required special attention (which the applicants as experienced health officer and nursing sister are well qualified to give) because of a digestive condition by which he cannot tolerate milk and requires expensive substitutes. As at 24th September according to medical evidence, he was still in receipt of regular pediatric care and assessment.

In October, realising how close the family and the child were becoming, the male applicant returned to the village of the child's father. The father who speaks some English was by this time friendly towards the applicant. He has seven other children and lives in poor circumstances by the standards of the area. He indicated his interest in seeing the children before he decided what to do about them. The applicant arranged for the father to come to Port Moresby where he saw both children at their then homes. The applicants say that he showed more interest in the twin brother who was living with their neighbours and whom the father identified as the child with the same name as himself. The subject child was identified as the child with the name X (the name of the deceased mother's brother). Since then the applicants have called the child by the Christian name A and the “family” name X. During the time the father was in Port Moresby, the applicants say that they discussed the future of the subject X child with him and that he indicated his willingness for the child not only to stay with them but to be adopted by them. On 5th November 1980 the father signed a form of consent, to which I will make reference later, and has subsequently returned to his village.

There is no doubt that the applicants are fit and proper persons and otherwise suitable to adopt the child, and will give the child every material and emotional comfort. I do not intend to spend time on reviewing the evidence on this aspect. The male applicant is in regular and secure employment and the family unit is a happy and stable one. If I do not spend any further time on this aspect it is not because I have overlooked it, but because I think it is obvious. The home report prepared by the Director’s welfare officer is an unusually favourable one. The last paragraph thereof which stops short at recommending the adoption is something of a non sequitur.

The real problems in the case are raised in the report signed by the Director and relate to consent, the paramount consideration of the child’s welfare and interests, and the scheme of adoptions established by the Act. By s.18 of the Act an order for adoption may not be made unless the necessary consent has been given, in the case of a legitimate child, by every person who is a parent or guardian of the child. The child's father is the only parent of the child in this case. By s.19 every consent shall be a general consent unless expressed to be in favour of a relative. Mr Thompson who appeared for the applicants submitted that the consent given by the father in this case was not expressed to be in favour of a relative within s.19(2) and that as a matter of law therefore it was a general consent within s.19(1). I reject this submission. The general purport of s.19 is to invalidate any purported consent unless it is a general consent under s.19(1) or the particular type of specific consent authorised by s.19(2). There remains a category of specific consent which falls outside the authorisation of both subsection (1) and subsection (2). It is clear from the oral evidence of a witness who acted as interpreter at the time of obtaining the consent of the father (they both come from the same village) that the father said that what he was consenting to was the adoption by the applicants and nobody else. It follows then that the consent required by s.19(1) has not been obtained. This finding is at variance with the form of authentication of consent furnished by Mr Thompson upon which I will make no comment except to say that it is quite undersirable in normal circumstances for consent to be obtained and authenticated by counsel appearing in an adoption application.

That however is not the end of the matter. The Court has the power, and possibly by inference the duty, under s.24 to dispense with consent in certain circumstances. These include circumstances under paragraph (c) where the parent or guardian has neglected or abandoned the child. I have considered this provision and conclude that whilst it may be true that the father abandoned the child upon the death of its mother, his subsequent behaviour is inconsistent with abandonment and the child may no longer be considered abandoned by father. I do not consider that the father has neglected the child in the sense envisaged by the section. Under paragraph (e) the court may dispense with consent where there are special circumstances by reason of which consent may properly be dispensed with, and I now proceed to consider this aspect.

The question arises whether s.24 is subject to s.8 or whether s.8 is subject to s.24. In other words, in deciding special circumstances, does one look first at the welfare and interests of the child to see whether they justify an order and then look at the issue of whether consent should be dispensed with or does one first decide whether there are special circumstances to warrant dispensing with consent regardless of the paramount consideration and if there are, then go on to consider whether an adoption order should be made in the light of the paramount consideration? It seems to me that it is impossible to isolate the question of special circumstances from matters relating to the child's welfare and interests, particularly as the power to dispense with consent in special circumstances only arises when it may "properly" do so, that is to say properly in the light of the paramount consideration. Mr Thompson put as special circumstances the medical condition of the child and the rejection of the child by the father at an earlier time together with the continuing rejection of the child by other relatives in the village. I am prepared to hold that these are special circumstances which make it proper to dispense with consent but the ultimate question whether the welfare or interests of the child will be promoted by the order sought, still fails to be decided.

I interpolate at this stage that I am satisfied as to formal aspects. The applicants although not domiciled in Papua New Guinea were resident in this country and the child was present in this country at the time of filing the application. This finding is based not on the presumption raised by s.6(2) of the Act but on the clear evidence that the applicants have lived in this country continuously for a substantial time. It cannot be seriously suggested that they have resorted to this country in order to take advantage of its adoption laws. I am further satisfied, in accordance with the decision in H and H v Director of Child Welfare ⁽N276.html#_edn437" title="">[cdxxxvii]¹¹⁾ that if an order were made, then it would be recognised in Australia, the country where the child is to be taken to live. I make this finding not on any general acceptance that the adoption orders of this Court are “automatically” recognised in Australia but on the sworn evidence of a legal practitioner qualified to practice not only in this Court but in Australian State and Federal Courts. Upon the evidence I find further that there would be no impediment to the child’s obtaining Australian citizenship and that the applicants would be willing to make application on the child’s behalf for Australian citizenship.

The Director’s report furnished under s.12 and which must be considered firmly recommends against the proposed adoption. The report does not reflect against the fitness of the applicants. The principal ground as I see it raised by the Director in relation to the child's welfare and interests is that if the adoption order is made, the child will go to live in Australia and will face problems in attempting to identify, grow and develop in a society in which it is foreign, problems so extreme that it is likely that the child would not achieve normal mature adulthood. The Director attended and gave evidence to support his decision to oppose the order. Where I found the Director’s oral evidence most relevant was on the question of what proposals could be made in the event of the adoption being refused. The Director said and I accept that the child would not be placed in an institution but would immediately be placed in a “fostering situation”, that is with foster parents. In the long term the Director saw the future of the child as best served by being placed with an approved family in Papua New Guinea in an urban situation. There is apparently no shortage of suitable families. What I foresaw as a difficulty to which the Director had no ready answer, was that the father who has given a specific consent to adoption by the present applicant, may be quite unwilling to give a general consent and may frustrate any future adoption application by Papua New Guinea citizens. The possibility that the child may return to live in the village of his father cannot be excluded in the event of the present application being refused. One advantage in staying in Papua New Guinea, so it seemed to me, would be that the child would have a chance of maintaining a relationship with his twin brother.

The Director saw no difficulty in coping with the child’s dietary problems in the fostering or adoption situation. Apparently there are public funds available to meet the cost of such exigencies.

I interpolate here that in his written report the Director raised as another objection the fact that if adopted by the applicants, the child would lose his Melanesian culture and heritage. This aspect was not strongly pressed and I do not think that it is a very important aspect in this case, although it is one to be considered. I think that the difficulty with such an argument in this case is that it is somewhat unreal to talk of a child of six months of age who has lived nearly all of his short life as part of an Australian family as belonging to a Melanesian culture or having a Melanesian heritage, except in a potential sense. It would be quite different in the case of a child who has lived for some significant time in a Melanesian environment.

In answer to questions from myself, the Director said that he was aware that there was a likelihood that some trauma would be caused to the child by removing it from the care of the applicants. There was in this case no evidence on this aspect as there had been in the case of H and H v. Director of Child Welfare (Supra). The Director was aware of the evidence in that earlier case. He expressed the view that any detrimental consequences to the emotional development and welfare of the child caused by its removal from the applicants would be outweighed by inability to identify with them and with society at large if the child went to live with them in Australia under an adoption order.

This view was expressed even more firmly by Ms Barbara Binns, a Canadian well qualified in psychology, social work and social education, who trains community development officers in Papua New Guinea. Ms Binns has had long experience in working with minority groups in Canada and Britain. She has not been to Australia nor has she worked, as I recall, in other third world countries, but that does not really affect the value of her evidence. She was firmly of the view that for a child such as a Papua New Guinean to be taken to a country like Australia and brought up there by an Australian family was very likely to lead a crisis of identity. The child would inevitably become aware that he was different from those in the dominant society, was unlikely to believe that he could ever become part of that dominant society and would end up either hating his adoptive parents or hating himself. He would at the same time because of being brought up in an Australian environment be unable to identify with or relate satisfactorily to Papua New Guineans. For him to be brought to Papua New Guinea from time to time and reminded of his family and his origins would only aggravate the situation. It would be better for him, if adopted, to be told nothing of his twin brother.

The future depicted in these terms was gloomy indeed. According to Ms Binns, on the one hand “kids at school are nasty”, and on the other hand, friends are likely to be oversympathetic to the applicants. The applicants are intelligent and sensitive people and aware of these problems. It would be their intention to encourage the child to be aware of his Papua New Guinean background, to return from time to time as he grew older and finally to make his own decision as to whether he wanted to elect for Papua New Guinean citizenship and return to the land of his birth to live permanently. The reply to this on behalf of the Director is that by then it would be too late, the child would be in the words of Fanon, “black skin, white mask”, belonging nowhere on earth.

It is unfortunate that this extremely important and sensitive issue has to be decided in the present case. Ms Binns’ evidence was not placed on affidavit which would have enabled the court and the applicant’s counsel to have given more measured consideration to her views before she entered the witness box. There may be experts in the field who have contrary views to those of Ms Binns and whose evidence has not been available. The applicants did not put on evidence as in H and H v. Director of Child Welfare (supra) as to the likely effect on the child of being removed from the applicants’ care at this vulnerable stage of its life. Indeed it is strange that the issue of crisis of identity was not raised by the Director in that case where the facts were similar to the present. Because of the incompleteness of the evidence, the present matter cannot be regarded as in any sense a test case.

The welfare and interests of the child are the paramount consideration. The use of the word “paramount” indicates that other considerations may be taken into account. It was put on behalf of the Director that the scheme of adoptions in Papua New Guinea established by the Act is that all adoptions, apart from those where an order is sought in favour of a natural parent, are to be made after a general consent is given by the natural parent or parents. Upon the making of a general consent the Director becomes the guardian of the child until the disposal of an application for adoption. The Director in practice has considerable power to decide who is to be favoured with nomination as the applicants. The Director’s list of approved couples so I am told does not include non Papua New Guineans. An application made and granted other than by way of general consent frustrates this general scheme of adoptions.

I think that there is merit in this submission. On my assessment of the paramount consideration however, it is not decisive. I hold out more hope for children like this child in countries like Australia than does the Director. I do not think that the dire consequences are as inevitable as has been maintained. But I recognise the hopelessness of the child’s future should the problem of crisis of identity assert itself. On the other hand, the child’s future in Papua New Guinea is not bright having regard to his medical problem, the trauma of being removed from the care of the applicants, the vaguesness of the immediate proposals of the Director, the possibility of being shunted from foster home to foster home, the possibility of dispute between his father and the Director. As the Director has said, a decision has to be made choosing what is for the child the least detrimental alternative. After anxious consideration I have decided that the dangers adverted to by the Director are greater than the dangers involved in remaining in Papua New Guinea. The long term interest of the child lies in making a life in the country of his birth. The application for adoption is refused.

Subject to what counsel have to say, I propose to make an order committing the care and custody of the child to the Director, such order to be suspended until the expiration of time for appeal from this decision or if an appeal be instituted within that time until further order of the Supreme Court. Whilst the order committing the child to the care and control of the Director remains suspended, it is to be understood that the child may remain with the applicants. The applicants are at liberty to place the child with the Director in the meantime, should they so wish.

Solicitor for the Applicants: M.P. Thompson

Counsel: M.P. Thompson

Solicitor for the Director of Child Welfare: R.K. Woods, A/State Solicitor

Counsel: M. Fitzsimmons

N276.html#_ednref437" title="">[cdxxxvii]^{(1) (Unreported) Supreme Court judgement SC176 dated 30th May 1986.}