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Fiji Legislation |
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.
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