Child Adoption In Malaysia

Introduction:

What are the Law governing Adoption in Malaysia?

• Adoption Act (in Peninsular of Malaysia)
• Registration of Adoption Act (in Peninsular Malaysia)
• Adoption Ordinances (East of Malaysia)

Adoption Act 1952 (applicable to non-Muslims only)

• A child adopted under the Adoption Act is legally considered a child born to the adoptive parents in lawful wedlock.
• According to section 9 of the Adoption Act, upon an adoption order being made, all rights, duties, obligations and liabilities of the birth parents, in relation to the future custody, maintenance and education of the adopted child, shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adoptive parents as though the adopted child was a child born to the adoptive parents in lawful wedlock.
• The right to inheritance under the Wills Act 1959 and the Distribution Act 1958 is also transferred from the birth parents to the adoptive parents.
• The Adoption Act requires a formal application to court and concludes with a court order allowing the adoption.
• The application is commenced by filing an adoption petition at the High Court of Malaya (or the Sessions Court). Supported by an affidavit affirmed by the adoptive parents.

Procedure

• Adoption hearings are conducted confidentially in the judge’s chambers.
• At the first hearing, the court will grant an interim order for the appointment of a social welfare officer as the guardian ad litem (court appointed guardian) to investigate the welfare of the child.
• The guardian ad litem will monitor the home environment and will interview the adoptive parents and the child.
• The welfare officer will then prepare a welfare report for the court either to support or oppose the adoption application.
• The court will usually fix the subsequent hearing about 3 months from the date of the first hearing to enable the welfare officer sufficient time to complete his investigations.
  At the second hearing the court will consider the welfare report and decide the application in the best interests of the child. The court is also entitled to and may interview the adoptive parents to confirm their intentions and the child to ascertain his or her wishes.
  If the adoption application is allowed, the order for adoption will be sealed.
  The Adoptive parents are required to send the order for adoption to the National Registration Department for registration in the Adopted Children Register. The National Registration Department will then cancel the original birth certificate and re-issue birth certificate for the adopted child.
• The new birth certificate will carry the name of the adoptive parents and the child as if the child was born to the adoptive parents.
• Significantly, the new birth certificate will not have any reference to the adoption or to the child’s birth parents.

Registration of Adoptions Act 1952 (caters for adoption for Muslim & Non-Muslim)

• Commonly referred to as “departmental adoption” as the application is made to and processed by the National Registration Department.
• Section 6 of the Registration of Adoptions Act, the child must be in the custody of the adoptive parents for at least two years and express consent from the birth parents is required (although the Registrar of Adoptions has the discretion to dispense with consent in the best interests of the child).
• De Facto Adoption: De facto means that the child is in the custody of, and is being brought up, maintained and educated by any person or a married couple for a period of not less than two (2) years.
• The Registrar of Adoptions has the power to summon and examine witnesses for the purpose of deciding whether to register an adoption.
• Registrar will interview the adoptive parents and require the parents to obtain a report from the welfare department on the adoption.
• In the event the application is allowed, an entry will be made in the Registration of Adoptions Register and a certificate of adoption will be issued.

Q: Does the adoptive parents need to obtain the child’s birth parents ‘consent?

• The adoptive parents are ordinarily required to obtain express consent from the child’s birth parents to the adoption.
• However, the court has the discretion, pursuant to Section 5(1) of the Adoption Act, to dispense with the birth parents’ consent if, for example, the child has been abandoned, ill-treated, or if consent is being unreasonably withheld.

Q: How long does it take to obtain order from court?

A: The whole process takes approximately 6 to 9 months.

Q: Why do we need to apply for adoption?

A: Why must I apply for adoption when I am already staying with the child?

• Adoption refers to the act of legally taking another person’s child into your family to raise as your own.
• A child adopted under the Adoption Act is legally considered a child born to the adoptive parents in lawful wedlock
• This is to protect the best interests of the adopted child.
• Once a Child is legally adopted, the rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adoptive parents as though the adopted child was a child born to the adoptive parents in lawful wedlock.
• The right to inheritance under the Wills Act 1959 and the Distribution Act 1958 is also transferred from the birth parents to the adoptive parents.

Q: What are the complications for adoption?

A: Complications arise only if it’s unknown where the desired child came from,

• if the necessary paperwork is not available,
• if the child was not born in Malaysia,
• if government officials ask for bribes

Q: What are the documents needed for adoption application?

• The child’s birth certificate
• The biological parent’s consent
• The adoptive parent’s IC
• Statutory declaration from the birth parents
• Statutory declaration from the de facto guardian

Q: What are the aspects that the Welfare Department/Court will consider?

• Financial stability of the couple
• Family history
• House Environment
• Capability to raise a child

Q: What are the aspects that the Welfare Department/Court will consider?

“The Welfare Department will conduct interviews with the Applicant, looked into the applicant’s financial records and ability, family history. Besides that, they do quite a thorough background check and they do a home visit. There’s also a couple of guarantees you need to be able to give them, like financial stability.

This article is written by 

Toh Lee Khim
Partners, Low & Partners

Choy Qian Min
Senior Associate, Low & Partners