Adoption in Malaysia: Frequently Asked Questions
Adoption in Malaysia: Frequently Asked Questions

Adoption in Malaysia: Frequently Asked Questions

In this article, we list down the frequently asked questions that we often encounter in practice and provide the answers to the same.

We hope this information will reach out to more people who have concerns in this area of the law.

  1. What are the governing laws for adoption in Malaysia?

There are two (2) legal regimes to provide for the adoption of children in the Peninsular of Malaysia.

  • First is the Adoption Act 1952 (“Adoption Act”) which is applicable only to non-Muslims.
  • Second, being the Registration of Adoption Act 1952 (“ROAA”) which is applicable to both Muslims and non-Muslims.
  1. What are the main differences between the said legal regimes?

The main differences between the above two (2) legal regimes are as follows:-

(a) Adoption Act

–  provides for adoption process through an order of the Court

ROAA

– provides for adoption process through “self-registration”.

Both processes are to be initiated by the applicants intended to be the adoptive parents;

(b) Adoption Act

 – applicable only to non-Muslims 

ROAA

– applicable to both Muslims and non-Muslims, 

(c) Adoption Act

– culminated in the issuance of a birth certificate of the adoptive child as if the adoptive parents are the birth parents 

ROAA

– will not have such effect 

Note: Such effect of adoption under the Adoption Act is against the Muslim law which merely recognize adoption as giving rise to a right of custody of the adopted child, which speaks of why the Adoption Act does not apply to Muslim.;

(d) Adoption Act

– the adoption order could be obtained fastest in 3-4 months’ time after the filing of the application

ROAA

– takes at least 2 years to register adoption.

(e) Adoption Act

– the applicant may apply to the Sessions Court or High Court (collectively, ‘the court‘) by filing an originating summons supported by affidavit, 

ROAA

– the application can be made at the counter of any National Registration Department (‘NRD‘) office (Peninsular Malaysia only) which is in proximity to the residence of adoptive parent and adopted child.

(g) Adoption Act

– the entire proceeding  proceeds with utmost secrecy.

– For instance, under Section 23(2) of the Adoption Act, only the applicant, the Director General of Social Welfare (‘Director General‘) and the Registrar General of Births and Deaths (‘Registrar General‘) shall be served with the orders related to the application.

– Also, under Rule 12 of the Adoption Rules 1955 (“Adoption Rules”) which is the procedural rules applicable for adoption under the Adoption Act, all documents filed to the Court shall be confidential and kept secret and every summons and application shall be heard in chambers unless the Judge otherwise orders.

ROAA

– Such assurances are absent.

– In fact, Section 12 of the ROAA allows for the application of any person to search for the adoption register and index upon payment of the prescribed fee.

  1. What are the basic requirements to apply for adoption under the Adoption Act?

(a) Natural Parents’ consent

– The natural parents or guardian of the child must have consented to and understands that the order has the effect of vesting in the adopter all rights, duties, obligations, and liabilities of the adopted child as though the adopted child was a child born to the adopter in lawful wedlock.

(b) The applicant understands the nature of adoption

– The applicant or his or her spouse in the case of the joint application must understand the nature and effect of the adoption order.

(c) The applicant must be a resident of Peninsular Malaysia

– The applicant can be either a Malaysian citizen or foreigner/expatriates.

– In the latter category, the applicant must actually be living in Malaysia and has a base here where he/she work or reside in Malaysia for a sufficient duration and continuity even though he/she does not intend to live here permanently

(Note: refer to answer 10A for further explanation).

(d) The child in the care of applicant for at least three (3) consecutive months

– Also, the child must have been continuously in the care and possession of the applicant for at least three (3) consecutive months immediately preceding the date of the order.

(e) The welfare of the child must be considered 

– One must also not to lose sight to the welfare and wishes of the child, having regard to their age and understanding ability.

– The welfare of the child is certainly the consideration that outweighs any other, as mentioned in the case of TPC v ABU & Anor [1983] 2 MLJ 79. 

  1. What are the common reasons for denial of an adoption order?

Basically, the court will deny the application if those basic requirements set out in paragraph 3 were not met.

The court will also deny granting an adoption order if it involves a sole male applicant applied to adopt a female child or it was found out that there is pecuniary interest involved in consideration of the adoption, except such as the court may sanction.

  1. Can the basic requirement of Natural Parents’ consent be exempted?

Yes, but only in the following circumstances:-

(a) the child has been abandoned, neglected or persistently ill-treated by the parents or guardian; or

(b) the person whose consent is required cannot be found, incapable of giving consent or unreasonably withheld; or

(c) any competent authority has authorized the care and possession of the child to be transferred to the applicant.

  1. What are the basic requirements to apply for adoption under ROAA?

(a) The child in the care of adopter for at least two (2) years

– Under ROAA, there must be a de facto adoption of a child in which a child is in custody, being raised, borne and educated by a spouse or spouses jointly as a child or their own child for a period of not less than two (2) years before the adoption registration is made.

(b) The applicant and the child must be ordinarily resident in Peninsular Malaysia.

(c) The child cannot be subjected to any adoption order under the Adoption Act.

  1. Can the child’s biological father or mother apply to adopt their own child?

Yes, this is guaranteed under Sections 3(3) and 4(1)(c) of Adoption Act and it could happen if the child was born out of wedlock when only the biological mother can register as the parent, thus father may apply for adoption in this instance if the mother consented to it.

Both father and mother then share the responsibility to bring up the child despite they are not married.  

Another rare situation could be the child’s birth was not registered earlier.

  1. What is the effect of adoption order for adoption under the Adoption Act?

Upon an adoption order being made, all rights, duties, obligations, and liabilities of the adopted child shall vest in the adopter as though the adopted child was a child born to the adopter in lawful wedlock, according to Section 9 of the Adoption Act.

Following thereof, the adopted child shall also take any interest in any movable or immovable property whether by will or under any intestacy of the adoptive parents pursuant to Section 9 Adoption Act, thus eligible to the distribution under the Distribution Act 1958 and Small Estates (Distribution) Act 1955.

Further, according to Section 25A, the applicant may surrender to the Registrar General of Births and Deaths, Malaysia the original Birth Certificate of the adopted child for cancellation and re-issue a Certificate of Birth with the adopter’s name as parents without and the word “adopted”, “adopter” or “adoptive” or any word to like effect shall not appear in the Certificate at all.

Adoption order also has the effect of legitimizing an illegitimate child borne out of wedlock if the adoption was upon the joint application by two spouses according to Section 25A (5) & (6).

  1. What is the effect of the registration of adoption under ROAA?

Upon the registration of adoption under ROAA, the Registrar of Adoption under the NRD will issue a certificate of adoption and the fact that the child is adopted is not hidden.

As compared to the Adoption Act, it will culminate in the issuance of a birth certificate of the adopted child with the adoptive parents as birth parents.

Also, an adoption under the ROAA confers no succession rights on the adopted child, as seen Re Loh Toh Met, desd, Kong Lai Fong & Ors v Loh Peng Heng [1961] MLJ 234 at p 235.

Essentially, the registration under the ROAA is merely to safeguard the right of custody to the adoptive parents.

  1. Who can be the applicant for adoption order?

Other than the person must be a non-Muslim and a resident in Peninsular Malaysia, as long as the person understands the nature of adoption may apply for an adoption order.

In the event of a pair of spouse intends to apply for an adoption order, they may file an application jointly.

Further, the applicant, or in the case of a joint application by a pair of spouse, one of the applicants, must have attained the age of 25 and is at least 21 years older than the child in respect of whom the application is made unless the court is satisfied that there are special circumstances for the making of an order.

As mentioned above, the mother or the father of the child can also be the applicant.

10A. Can a foreign citizen residing in Peninsular Malaysia apply to adopt children here?

Yes, provided that the foreign citizen or expatriate applicant must be ordinarily resident in Peninsular Malaysia.

This is affirmed by the court in Neil Duncan Gillies & Anor v Liew Mei Ling & Ors [2010] 4 MLJ 179 citing the case of TPC v ABU & Anor [1983] 2 MLJ 79 which define the term ‘ordinarily resident’ as follows:- 

“There is no doubt that the applicant must be physically present in this country when the order is made. But he must go further and show that he is actually living in this country and has a base here where his work is though he does not intend to live here permanently. However, he need not show that he has no immediate intention of residing anywhere else. …. I confess however that I have arrived at this conclusion after some hesitation as in my view this is a borderline case.”

  1. Can 2 person apply to adopt a child together?

No, unless both of them are married spouses.

  1. Must all the applicants and respondents (being the child, natural parents and Director General of Social Welfare) in an application for adoption order be present in the court’s hearing?

Yes, this is in accordance with Section 14 of the Adoption Act.

However, in the case of the respondents, the court may dispense with such attendance if:-

(a) in respect of the child, it is satisfied from the report of the guardian ad litem that special circumstances exist which render the attendance of the child inexpedient and unnecessary; or

(b) in respect of natural parent or guardian, a written consent in the form of statutory declaration was signed.  

  1. How many court’s hearings are there to attend in an application for adoption order?

Basically, there will be 2 court’s hearings fixed throughout the adoption process.

The first hearing is to appoint a guardian ad litem of the child whom will usually be the Director General of Social Welfare of the Ministry of Woman, Family and Community Development to investigate the truth of the statement in the application as well as the means and status of the adoptive parents (this is to ensure they are capable to bring up the child).

The second hearing is for the Court to consider the Director General’s report before granting the adoption order. 

  1. What is the interview of guardian ad litem about?

Basically, the appointed guardian ad litem will fix a date to interview the applicant with the child in order to prepare a report taking into account relevant matters to propose adoption as appropriate in the interest of the child.

All in all, the welfare of the child is of utmost consideration in the case of adoption.

  1. What would be the orders normally contains in an adoption order?

An adoption order contains an order by the Court to cause the Register General of Births and Deaths to make an entry to the Adopted Children Register specifying the particulars, including details of the child such as:-

(a) Date and country of birth of the child

(b) Name and surname of the child

(c) Sex of child

(d) Name and surname, address and occupation of adopter or adopters

(e) Date of the adoption order and description of the court and case number

(f) Date of entry

It also contains an order to the Register General to issue a new Certificate of Birth of the child with the adopter’s name as parents upon the original Birth Certificate of the adopted child surrendered for cancellation.

  1. Can there be a change of name of the child via adoption order?

Yes. According to section 25(3)(b), there could be a change of name upon adoption by specifying the intended name in the order, where once the adoption order was granted, the court will direct the Registrar General to make an entry to the Adopted Children Register before issuance of a new Certificate of Birth of the child under the intended name.

  1. Can there be a change of the child’s citizenship via adoption order?

No. According to section 25(3)(c) of the Adoption Act, there could be a change of country of birth upon adoption if it was proven to the satisfaction of the Court.

However, the change in the country of birth does not equivalent to a change in citizenship.

  1. Can adoption order legitimize an illegitimate child?

Yes. ‘Illegitimate’ child refers to a child who was born out of wedlock of the parents in Malaysia, i.e. the parents were not married to each other at the time of the child’s birth.

Referring to Section 17 of Part III of the Second Schedule of the Federal Constitution, the child follows the citizenship of his or her natural mother.

In the event of joint adoption by the adoptive parents who must be legally married spouses, pursuant to sections 25A (5) & (6) of the Adoption Act, the post-adoption birth certificate which names the adoptive parents as the child’s parents will now to be used to determine who the parents are.

  1. Other than adoption order, how can an illegitimate child be legitimized?

It can be done through subsequent marriage of the child’s biological parent, which itself legitimize the child, as seen in the case of Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin a/l Lourdsamy & Ors [2018] 1 MLJ 307.

A child who was borne out of wedlock can be legitimated by virtue of the subsequent marriage of her parents. Where that happened, s4 of the Legitimacy Act 1961 applied to render the child legitimate. And as a legitimate person, the appellant was entitled to rely on her father’s citizenship as was held in Madhuvita’s case.

  1. What will be the citizenship of an illegitimate child?

Pursuant to section 17 of Part III of Second Schedule of the Federal Constitution, an illegitimate child must take on the citizenship of his or her natural mother. If the mother is a Malaysian, the child will be a Malaysian.

But, if the mother is a foreign citizen, the child’s citizenship will be stated as ‘bukan warganegara’ or ‘non-citizen’ in his or her birth certificate, thus also known as ‘stateless’ child.

  1. How can an ‘stateless’ child gain citizenship in Malaysia?

Basically, there are 2 avenues.

Either by

  • adoption and then, apply for citizenship under Article 15A of Federal Constitution, the ground of special circumstances, as seen in recent cases where NRD seems to allow such application;
  • or through subsequent marriage of the child’s biological parent, as seen in the case of Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin a/l Lourdsamy & Ors [2018] 1 MLJ 307
  1. Can a ‘stateless’ child automatically gain citizenship upon obtaining an adoption order?

No. However, but the adoptive parents may apply for citizenship under Article 15A of Federal Constitution, the ground of special circumstances, as seen in recent cases where NRD seems to allow such application.

  1. Whether a person can apply for himself to be adopted via adoption order?

No. According to section 3(1) of the Adoption Act, the Court may grant an adoption order to an application of any person desirous of being authorized to adopt a child.

Therefore, it is impossible for a person to apply for himself to be adopted.

  1. Is there any legal procedure to cancel or to revoke an adoption order?

No. However, a child can be re-adoption by another person with the same procedures for adoption.

 

 

About the Author: 

This article was written by Chia Swee Yik, Partner of this Firm (+6016 2148 218, chia@chialee.com.my)(assisted by paralegal, Ooi Zhuang Hong) who has provided practical advice on family law.

Feel free to contact him if you have any queries.

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