Adopting a Child in Peninsular Malaysia: The Requirements and the Court Procedure
Adopting a Child in Peninsular Malaysia: The Requirements and the Court Procedure
Many Malaysian families raise a child who was not born to them. A grandparent takes in a grandchild. A couple brings up the child of a relative who cannot cope. The arrangement can run for years and feel settled, yet in law it is not adoption. Adoption happens only when a court makes an adoption order, and that order permanently transfers a parent’s rights and duties to the adopter. The law sets out both the requirements and the procedure in detail.
Which law applies, and to whom
Two limits matter at the outset. The Adoption Act 1952 applies to Peninsular Malaysia only (section 1(2)), and it does not apply to a person who professes the religion of Islam (section 31). Sabah and Sarawak each have their own adoption ordinances.
Because the Act does not apply to Muslims, the adoption of a Muslim child takes the form of a customary or de facto adoption, which can be registered under the Registration of Adoptions Act 1952. That is the registration of an existing arrangement, applied for through the National Registration Department, and not an adoption order made by a court under the Adoption Act 1952.
Two definitions matter (section 2). A child is an unmarried person under 21. A relative is a brother, sister, grandparent, uncle or aunt.
How an adoption may be arranged
It is an offence to publish an advertisement indicating that a parent wants a child adopted, that a person wants to adopt, or that anyone other than the Director General of Social Welfare will arrange an adoption (section 26). Arrangements go through the Social Welfare Department rather than privately.
Who may apply
The court may make an adoption order on the application of a person who wants to adopt a child (section 3(1)). Two spouses may apply jointly, but apart from spouses the court cannot authorise more than one person to adopt the same child (section 3(2)). A parent may also apply, alone or with a spouse (section 3(3)).
The applicant, or one of two joint applicants, must fall into one of three categories (section 4(1)). First, a person who has reached 25 and is at least 21 years older than the child, unless the court is satisfied that special circumstances justify an order anyway. Second, a person who has reached 21 and is a relative of the child. Third, the child’s own mother or father.
Where the sole applicant is male and the child is female, the court will not make an order unless satisfied that special circumstances justify it as an exceptional measure (section 4(2)).
Residence and the two waiting requirements
The applicant must be ordinarily resident in Peninsular Malaysia, and so must the child (section 4(3)).
Two further requirements are about timing (section 4(4)). The child must have been continuously in the applicant’s care and possession for at least three consecutive months immediately before the date of the order. Separately, at least three months before that date, the applicant must have notified an officer of the Social Welfare Department of the state where the applicant lives, in writing, of the intention to apply. Both periods run to the date of the order, so a family that has not given the notification must wait.
Consent
An adoption order cannot be made without the consent of every parent or guardian of the child, and of anyone liable to contribute to the child’s support. Where one of two spouses applies alone, the other spouse must consent as well (section 5(1)).
The court can dispense with a consent in defined situations. These include a parent or guardian who has abandoned, neglected or persistently ill treated the child, a person liable to support the child who has persistently refused to contribute, and any case where the person whose consent is required cannot be found, cannot give it, or is withholding it unreasonably (section 5(1)). A spouse’s consent may be dispensed with where the spouse cannot be found or cannot consent, or where the couple have separated permanently (section 5(2)).
Once a parent or guardian has signified consent, that person cannot remove the child from the applicant’s care while the application is pending, except with the court’s leave, which turns on the child’s welfare (section 5(4)).
Which court, and how the application starts
The application may be made to the High Court, or at the applicant’s option to any Sessions Court (section 10(1)). Proceedings are heard in private and the documents filed are confidential (section 10(2)).
The application is presented in duplicate on the prescribed form, with the documents the form requires and any written consents (section 11). The applicant need not attend in person merely to lodge it, unless there has been a previous application or the court requires attendance.
The guardian ad litem
Whenever an application is made, the court appoints a guardian ad litem for the child, an independent person whose role is to protect the child’s interests in the proceedings (section 12(1)). The respondents are the child, the guardian ad litem, every parent or guardian of the child or person liable to support the child, and the applicant’s spouse if not also an applicant (section 12(2)). The court then fixes a hearing date and has notice served on each of them (section 12(3)).
The guardian ad litem must investigate the circumstances of the child and the applicant as fully as possible (section 13(1)). That includes whether the application form is true and complete, particularly the child’s date of birth and identity, whether any payment or reward for the adoption has been received or agreed, whether the applicant’s means and status allow the child to be raised suitably, and whether an interim order or particular conditions would be desirable. What is learned stays confidential (section 13(2)).
Attending court
As a rule, no adoption order or interim order is made unless the applicant and all the respondents attend court in person, even where written consent has already been obtained (section 14(1)). The court can dispense with attendance where the guardian ad litem reports special circumstances making the child’s attendance unnecessary, where a respondent cannot be found or cannot consent, or for other sufficient reason (section 14(2)). Written consent verified before a Magistrate or Commissioner for Oaths then stands as evidence of it (section 14(3)).
Interim orders
The court need not decide the application immediately. It may postpone the decision and make an interim order giving custody to the applicant for a probationary period of not less than six months and not more than two years, on terms about maintenance, education and supervision of the child’s welfare (section 17(1)). An interim order is not an adoption order. The same consents are required for it (section 17(3)), and in setting the period the court considers time the child has already spent with the applicant (section 17(4)). During probation the guardian ad litem may apply to remove the child from a detrimental environment (section 17(5)).
Where an interim order is made, the applicant must apply at least two months before it expires for the court to determine the application, and the respondents are given notice of the further hearing (section 19).
If the court refuses an order because the adoptive home is unsuitable, it may commit the child to the care of the Director General of Social Welfare (section 20).
What the court must be satisfied about
Before making an adoption order the court must be satisfied of four things (section 6). First, that everyone whose consent is needed and not dispensed with has consented and understands the nature and effect of the order, and that a parent understands it will permanently deprive them of their parental rights. Second, that the order will be for the child’s welfare, with due consideration to the child’s wishes according to age and understanding. Third, that no payment or reward has been received, given or agreed for the adoption, apart from anything the court sanctions. Fourth, where the applicant has previously applied for the same child and failed, that circumstances have substantially changed.
The court may impose terms and conditions, and may require the adopter to make provision for the child (section 7).
Costs, appeals and the record
The court may order costs, including the expenses of the guardian ad litem or of other respondents attending court (section 21). An appeal lies from a refusal to make an interim order or an adoption order (section 22).
Once the order is made, the court sends a certified copy to the Registrar General within seven days (section 24). The adoption is entered in the Adopted Children Register, the original birth entry is marked, and a Certificate of Birth is issued for the child (section 25). The effect is that parental rights and duties over custody, maintenance and education pass to the adopter as though the child had been born to the adopter in lawful wedlock (section 9).
Practical lessons
Adoption turns on the child’s welfare, and the court tests that through an independent investigation rather than taking the family’s word for it. Timing carries weight, because the three month care period and the notification to the Social Welfare Department are conditions of the order, not formalities. Money is treated seriously, since payment or reward for an adoption is something both the guardian ad litem and the court must examine. A long standing informal arrangement, however loving, does not by itself do what an adoption order does.
This article is for general information only and does not constitute legal advice. Anyone facing a specific situation should seek advice from a qualified legal practitioner.
This article is written by
Seen Rui Yong
Senior Associate, Low & Partners