There are two different governing legislations in Malaysia for the adoption of children, which are Adoption Act 1952 (“Adoption Act”) and Registration of Adoptions Act 1952 (“Registration of Adoptions Act”).
The Adoption Act is applicable to non-Muslims only, whilst the Registration of Adoptions Act is applicable to both Muslims and non-Muslims.
However, for the purpose of this article, we will only deal with the Adoption Act.
Effect of an adoption order
Under Section 9 of the Adoption Act, following the issuance of an adoption order, all rights, duties, obligations, and liabilities of the parents or guardians of the adopted child, with regard to the adopted child's future custody, maintenance, and education—including the right to appoint a guardian or to consent to or give notice of dissent to marriage—will be extinguished.
Instead, the adopter will acquire all such rights, duties, obligations, and liabilities, and they will be enforceable against the adopter as though the adopted child had been born to the adopter in lawful wedlock.
Overriding matters
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 of which application is made;
(b) that the order if made will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child;
(c) that neither the applicant nor the parent or guardian has received or agreed to receive, and that no person has made or given, or agreed to make or give to the applicant or the parent or the guardian any payment or other reward in consideration of the adoption except such as the Court may sanction; and
(d) that there has been a substantial change in the circumstances, if it appears that the applicant has made a previous application under this Act in respect of the same child.[1]
Consent to adoption
An adoption order shall only be made with:-
the consent of every person who is a parent or guardian of the child; and
if the application to adopt is made by one of two spouses, the consent of the other of them.
However, there are certain situations where the Court may dispense with such consent if satisfied: -
(a) parent or guardian has abandoned, neglected or persistently ill-treated the child;
(b) person liable to contribute to the support of the child has persistently neglected or refused so to contribute the child;
(c) the person whose consent if required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld; or
(d) any competent authority has given permission or granted a licence authorizing the care and possession of the child to be transferred to the applicant.[2]
As to whether the consent is unreasonably withheld, reference can be made to the case of Re TSY (an infant),[3] where it was held:-
In deciding whether or not to dispense with parental consent the court must take into account events and conduct right up to the time when the case comes to be considered, whether on the original application for an order or on review by an appellate court: see Re L (An Infant) (1962) 106 Sol J 611; [1962] 3 All ER 1. Moreover, in considering whether or not to dispense with parental consent on the ground that it is being unreasonably withheld, the court will apply an objective test. In this context, the welfare of the child, as Lord Denning observed in Re L (An Infant) is not the sole consideration to be taken into account though it is a consideration of great importance and has increased in importance over the years: per Ormrod LJ in Re H (Infants)[1977] 1 WLR 471.
It would appear that the material circumstances of the foster parents are superior to those of the natural parents but I have completely disregarded this factor in considering this application. The judgment of Diplock LJ in Re C (L) (An Infant) [1965] 2 QB 449 may be referred to on that point. However, the remarks of Seller LJ in Re B (S) (1966) 110 Sol J 671 show that if a mother has no facilities for bringing up the child, it would be unreasonable for her to withhold her agreement. In the present case, for example, the fact that neither of the natural parents would be able to spend much time with the boy because of their long and demanding working hours was obviously a factor which undermined their case. (emphasis added)
Procedure
The application is commenced by filing an adoption petition or originating summons, supported by an affidavit affirmed by the adoptive parents.
At the first hearing, if the papers filed are in order, the court will grant an interim order for the appointment of a social welfare officer as the guardian ad litem to investigate the welfare of the child.[4]
It shall be the duty of the guardian ad litem to investigate as fully as possible all the circumstances of the child and the applicant, in order to safeguard the interests of the child before the Court.[5] All information obtained by him in the course of his investigation shall be confidential.
At the second hearing the court will consider the welfare report prepared by the guardian ad litem and decide the application in the best interests of the child.
If the Court allows the adoption application, the adoption order shall be sent to National Registration Department for registration in the Adopted Children Register. After that, the original birth certificate will be cancelled by the National Registration Department, and a new birth certificate will be issued for the adopted child. The adoptive parents' and the child's names will appear on the new birth certificate as though they were the child's biological parents. Notably, neither the adoption nor the child's biological parents will be mentioned on the updated birth certificate.[6]
As Edgar Joseph Jr states in Re TSY (supra)[7], decision on adoption and whether or not to dispense with parental consent poses a problem more human than legal which must thus be fraught with difficulty, given that ‘the general effect of an adoption order is that it destroys the legal bond between the infant and its natural parents and puts him in precisely the same position as a natural child of his adoptive parents. The making of an adoption order may, therefore, be rightly described as the using of a ‘statutory guillotine’.’
[1] Section 6 of Adoption Act 1952 [2] Section 5 of Adoption Act 1952 [3] [1988] 1 LNS 52 [4] Section 12(1) of Adoption Act 1952 [5] Section 13(1) of Adoption Act 1952 [6] Section 25A(1) of Adoption Act 1952 [7] ibid
Authored by Tan Zu Hao
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