Adoption, formally or informally (fostering), is a common practice in many communities worldwide. It isn’t just a lifeline for children without families or those exposed to abuse, but adoption also fulfils the desires of couples yearning to have a child and expand their families but cannot do so on their own. At the same time, adoption might assist the family unable to raise and bring their children due to disabilities or poverty.
In Malaysia, adoption is governed by legal procedures designed to protect all parties involved. This includes the children, the adoptive parents, and the birth parents. This piece aims to shed light on this process and, hopefully, aid your understanding of adoption under Malaysian law.
Adoption can be defined as the legal act of taking another person’s child to raise as your own or a legal process by which the child enters a new parent-child relationship. Legally, adoption denotes a process of transferring the entire legal parentage of a child from their natural parents to their adoptive parents. It is irrevocable and the only means by which all parental rights and duties can be transferred during the parent’s lifetime.
In Malaysia, two legislative regimes govern the adoption of children based on two big sections, i.e., the Muslims and the non-Muslims.
Once registration is fully affected, the adopted parents will shoulder the responsibility as natural parents. The duties include consenting or giving notice of dissent to the marriage of the adopted child as if the child was born to the adopter in lawful wedlock.
The child is now eligible to inherit any movable or immovable property of the adoptive parents by will under the Wills Act 1959 or intestacy according to the Distributions Act 1958.
Registration under the ROAA does not give the child the right to inheritance since it is against the rules of Islamic inheritance law. The adopted child can inherit from the birth parents, not the adoptive parents. However, adoptive parents can gift the adopted child 1/3 of their estate.
The adoption registration under the ROAA is a mere registration for legal adoption to prove that an adoption has occurred. Although no provision states as such, an adoption under ROAA indirectly gives the right of custody to the adoptive parents over the adopted child. Adoption would not render parental status over the adopted children. Still, registration is crucial as it will benefit the adopted children in education, application for identity cards and passport and citizenship. The registration is also meant for income tax deductions of the adoptive parents.
Sec 5 of the Adoption Act provides that the court can bypass the need for consent under the following circumstances:
The court must be satisfied that all parties consented to the adoption and understand its implications, including the permanent loss of parental rights. Alternatively, the court must be satisfied that the consent can be dispensed. The main factor is always the child’s welfare. The court will consider the child’s wishes depending on age and understanding.
The court must be satisfied that neither the applicant nor the parents or guardian has received (or has agreed to receive) any payment or reward for the adoption. Similarly, the court must verify that no one has received or agreed to any compensation for the adoption. If the applicant made a previously unsuccessful application for the same child, the court must be satisfied that circumstances have significantly changed.
Basic requirements include that:
The procedure starts with filing an adoption petition at the High Court. Applicants can also file an originating summons in the Sessions Court instead.
After that, the court will fix a date for the first hearing. At the first hearing, the court appoints a guardian ad litem for the child and orders the guardian to compile a report.
The guardian must investigate the welfare of the child. The guardian will interview the adoptive parents and the child, check on the home environment and prepare a report for the court. The guardian will express an opinion on whether the adoption should be approved based on the means and status of the adoptive parents to ensure that they can care for the child.
The next hearing is usually about 3-4 months later. The court will consider the report and the child’s welfare at this hearing. The adoptive parents and the child must be in court at the hearings. The court may interview the adoptive parents and the child.
If the guardian ad litem approves, all the required documents are in place, and there are no objections, the court may grant an adoption order. The court will only grant the order if it is satisfied that it is in the child’s best interest.
Once the order is granted, a sealed copy is sent to the National Registration Department. The child’s original birth certificate will be cancelled. A new birth certificate is issued bearing the names of the adoptive parents and the child as if the child was born to the parents in wedlock. If the adoptive parents wish to change the child’s name, it is possible and best done before the issuance of the new birth certificate.
Navigating the adoption process under the ROAA begins with an application to the National Registration Department. In certain instances, the Registrar of Adoptions may even call in witnesses to determine if the registration should proceed.
Typically, the registrar will ask the prospective parents to secure a report from the welfare department. This is followed by an interview with the adoptive parents, an essential part of the process.
Once the adoption gets the green light, a certificate of adoption is issued. This important milestone is then recorded in the registration for adoption register, making the adoption official.
There are no procedures for revoking an adoption order. However, nothing prevents another person to re-adopt the child.
If you are considering adoption, speak to a lawyer early in the process. Adoption can be an emotional and stressful process. An experienced lawyer can guide you through the process to ensure that all the legal requirements are met and that the process proceeds quickly and efficiently.
