ADOPTION

1. ADOPTION DEFINITION *A severance of the legal r’ship between a child and his natural parents and the establishment of a new r’ship between such child and his adoptive parents. Mimi Kamariah – Concise Oxford Dictionary “ to adopt means to take (person) into a r’ship he did not previously occupy especially as one’s child.”

2. LAWS IN MALAYSIA 1) Adoption Act 1952 2) Registration of Adoption Act 1952 Both statutes are applicable in West Malaysia only. ( Enforcement date : 25th June 1953 ) ADOPTION ACT 1952 -Adoption under this Act is normally referred as legal adoption since it is done through the court & the child acquires the status of a natural child to the adoptive parents. -S.31 - Not applicable to Muslim & Muslim child cannot be adopted by non-Muslim

3. ‘Child’ * S.2 – can be of either sex, unmarried & under 21 – includes a female child under 21 who has been divorced. * S.4(3) - must be ordinarily resident in West Malaysia ‘Applicant/s’ *S. 4(1)(a)&(b) – must be at least 25 & at least 21 years older than the child. *If a relative – must be at least 21 *Natural parent ( mother/father ) may also apply *S. 4(3) Ordinarily resident in West Malaysia *S. 4(2) sole male applicant cannot apply to adopt female child – but the court has power to waive this requirement

4. Consent of natural parents - s.5 Written consent of natural parents must be obtained. However the court may dispensed with such consent due to certain reasons.

5. Procedures 1) The child has been continuously in the care of the applicant for at least 3 consecutive months – before the date of the order – s. 4(4)(a) 2) Applicant/s must obtain the written consent of the natural parents given in prescribed form, signed before a Magistrate/ C for Oath – unless court dispensed with the consent based on several grounds – s. 5 • Must notify the Social Welfare Dept. in writing – at least 3 months before the date of the order – s. 4(4)(b)

6. - the Social Welfare Dept will take note of the notification but will act only when it’s officer has been appointed by the Court as a guardian ad litem – s. 12(1) 4) Application must be made in prescribed forms – (in 1st schedule) & submitted to the High court/Session court – s.11 & s.10 5) Court upon receiving the application & upon being satisfied with the necessary papers submitted will fix a date for appointment of a guardian ad litem. Practice of the court to appoint social welfare officer as the guardian ad litem – s.12(1). After guardian ad litem had been appointed, court will fix a time for the hearing application –s.12(3)

7. 6) Guardian ad litem is required to make a comprehensive social enquiry into every aspect of the adoption – s. 13 - with special emphasis on the following areas: i) whether statement given in the application relating to the circumstances of the adoptive parents, age of child, consent given & reasons for adoption are true ii) whether any payment /other reward has been given /received/agreed upon between the parties in consideration of the adoption – s.6(c) iii) whether the adoptive parents/parent are financially sound & capable of bringing up the child through insurance provision / contemplated pty distribution for the child

8. iv) whether the court should be advised to make an interim order to ensure than the interests of the child are protected - any information obtained in the course of the inquiry by the GAL is confidential. - The GAL reports is very important – to enable the court to make the right decision having the interest of the child as the primary consideration – s.6(b) • Adoption Order s.6

9. EFFECT OF ADOPTIONORDER S.9 • Adoptive parent/s assume the role as natural parent/parents as though the child was born in lawful wedlock • Adopted child – entitled to the pty of the adoptive parent/s in relation to other siblings • The law on marriage as regard to the prohibited degree of consanguinity shall apply to the adopted child. • See also s.11(4) LRA 1976

10. REGISTRATION OF ADOPTION ACT 1952 - Applicable to all residents in West Malaysia including Muslims - Made to the Registrar of Adoption – usually a National Registration Officer/District Officer ‘Child’ – s. 6(1) - can be of either sex - under 18 - has been in continuous custody of de facto adoptive parent’s for 2 years - s. 10(3) – ordinarily resident in West Malaysia

11. ‘Applicant’ – s. 10(2)(a)(b)(c) – must have attained the age of 25 - at least 18 years older than the child - If applicant is a relative/sibling, must be at least 21 years of age - can also be the mother /father of the child - s. 10(3) – ordinarily resident in West Malaysia

12. Procedures S.6 – The completed form – as in 1st Schedule is submitted to the Registrar of Adoption - Registrar shall register if certain conditions has been fulfilled: a) Both applicant/s & child shall appear before the Registrar & produce evidence either oral/documentary that such adoption took place b) natural parents/parent/if both are dead/if neither of them is within W Malaysia, the guardian shall appear & give consent to the adoption. Court may dispensed with the consent/appearance of the parent/s/guardian if it is just & reasonable & for the welfare of the child c) paid the prescribed fees - Entry in the register book

13. Effect of Registration of Adoption *S. 11 – Validity of an adoption not affected by registration/non registration * Does not confer legal rights of the property inheritance on the adopted child – the adoptive parent/s are advised to give property to the adopted child through a will * The law on marriage as regard to the prohibited degree of consanguinity does not apply to the adopted child & his adopted family

14. CASES Ordinarily resident in West Malaysia T.P.C V A.B.U & ANOR (1983) 2 MLJ 79 R applied for the adoption of a Chinese boy whose father had been hanged for a drug offence & his mother has absconded & untraceable. Father left the child in the custody of Ap. Her paternal aunt. Adoption order was made. Ap. appealed. Edgar Joseph Jr. J:”… that the applicant must be physically present in this country when the order is made. But he must go futher & show that he is actually living in this country & has a base here where his work is though he does not intent to live here permanently. However, he need not show that he has no immediate intention of residing anywhere else.” Held: Court satisfied that Rs were at all material time ordinarily resident in Peninsular Malaysia

15. Consent of the natural parent/s TPC V ABU & ANOR Issue - Whether consent was given / had been dispensed with? -There was insufficient evidence to support an application for dispensation of parental consent. The adoption order was quashed. RE BABY M Issue – whether consent unreasonably withheld? Initially natural parents signed a letter of consent for their child’s adoption. Later they changed their mind & seeking for the return of the child. Adoptive parents argued that it is the court’s power to dispense with the consent on the ground it was unreasonably withheld – 5(1)(c) Held:In considering the evidence, especially the serious neglect of the child by the natural parents & the child was in need of medical care, consent was being dispensed with by the natural parents

16. AL ANNAMALAI & ANOR V CHANDRASEKARAN THANGAVELU & ANOR [1999] CLJ 8 The natural parents left the 6 months old child in the care of the applicants as they were experiencing marital problem. 6 years later, the natural mother requested the child to be returned as she claimed that she is in the process of reconciliation with her husband. But the child refused to follow her. Natural parents applied for writ of habeas corpus alleging the child was detained against his will. Applicants applied for legal adoption Held: Whether consent is being unreasonably withheld /otherwise is to be judged by an objective rest ie. whether a reasonable parent acting reasonably would, in all circumstances of the case, have granted/withheld consent. The reasons for the natural parents to withhold consent was unreasonable. Application for adoption is allowed.

17. TAN KONG MENG V ZAINON BTE MD. ZAIN & ANOR (1995) 3 MLJ 408 Issue: Whether consent of natural father can be dispensed with? P is the natural father of an illegitimate child born to Mdm Chong who had gave her up to the Ds for adoption. The Ds registered the adoption under the RAA with the written consent of the mother. Registrar exercised his discretion to dispensed with the consent of the father as provided under s.6 RAA & registered the adoption. Later the child was converted to Islam P applied for a declaration : 1)As the biological father, he is entitled to the custody 2) The adoption was invalid as the requirement of custody & maintenance by the Ds under s. 6 RAA was not fulfilled & made without his consent Held:) 1)The mother had the right to give her consent to the adoption but the other requirement under s.6 which must be read conjunctively, namely the prospective parents must have continuous custody of & maintain the child for a period of 2 years before the application for adoption has not been fulfilled. - Therefore, legal custody is given to the father but care & control is given to the adopted parents and they cannot convert the child to Islam

18. Welfare & wishes of the child TPC V ABU & ANOR No payment / reward unless sanction by the court. S.6 Case : Re Sin Thong Lai [1955] MLJ 25