Adoption Process in Malaysia

In simple terms, 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.

In Malaysia, two legislative regimes govern the adoption of children.

  1. The Registration of Adoptions Act (ROAA) 1952 applies to all Peninsular Malaysia adoptions. It takes Islamic law into account and makes it possible for Muslims to adopt a child legally.
  2. The Adoptions Act 1952 applies to non-Muslim adoptions only.

The main differences between the Adoption Act and the ROAA

The Adoption Act:

  • Provides for a court order.
  • A new birth certificate is issued with the adoptive parents as the birth parents.
  • The process takes approximately six months from filing the application.
  • The entire process is secret; all documents are kept confidential.

The ROAA:

  • Provides for a “self-registration” process.
  • No new birth certificate as it is against Muslim law (adoption is only recognised as giving the right to custody of the child); it is replaced with a certificate of adoption.
  • The process takes at least two years.
  • There is no guarantee of secrecy – anyone can apply and pay the prescribed fee to search the adoption register.

The effect of an adoption order

The effect of an adoption order is defined in sec 9 of the Adoption Act. All legal rights, duties, obligations, and liabilities of the biological parents now transfer to the adoptive parents as if the child was born to the adoptive parents 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 under intestacy according to the Distributions Act 1958.

The effect of registration under the ROAA

Registration under the ROAA does not give the child the right to the 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 certificate of adoption merely safeguards the adoptive parent’s right to custody of the child. The child’s original and birth parents’ identities are kept on record.

Who can be adopted?

  • Any unmarried person under the age of 21 years old – it includes a divorced female under the age of 21 year.
  • The child must be a resident of Peninsular Malaysia.

Who may adopt a child?

  • Sec 4 of the Adoption Act stipulates that the applicant must be at least 25 years old and at least 21 years older than the child unless the court is satisfied that there are exceptional circumstances. (In a joint application, at least one applicant must fulfil this requirement).
  • If the applicant is a relative of the child, the applicant must be at least 21 years old.
  • The mother or father of the child (This could happen if the father wants to adopt his child born out of wedlock).
  • A sole male applicant cannot adopt a female child unless the court is satisfied that there are special circumstances justifying an exception.

Other requirements for adoption

  • The applicant must be ordinarily resident in Peninsular Malaysia.
  • The child must have been continuously in the care and possession of the applicant for at least three consecutive months immediately before the date of the order.
  • The applicant must inform an officer of the social welfare of the state in which they are resident in writing, at least three months before the order date, of the intention to apply for adoption of the specific child.
  • Except for certain exceptions, the consent of every person or body of persons who is a parent or guardian of the child or who is liable to contribute to the child’s support must be obtained.
  • If one of two spouses applies for the adoption, the other spouse must consent.
  • The applicants, natural parents or guardian must understand the nature and effect of an adoption order.

When can the court do away with the consent requirement?

Sec 5 of the Adoption Act provides that the court can dispense with the consent requirement if it is satisfied that:

  • The parent or guardian has abandoned, neglected, or persistently ill-treated the child.
  • A person liable to contribute to the child’s support has persistently neglected or refused to contribute.
  • The person whose consent is required cannot be found or is incapable of giving consent or is unreasonably withholding consent.
  • A competent authority in another country has given permission or granted a licence authorising the care and possession of the child to be transferred to the applicant under any written law relating to adoption in force in any country.
  • The spouse of an applicant whose consent is required cannot be found or is incapable of giving consent, or they have separated and are living apart, and the separation is likely to be permanent.

How will the court decide on adoption?

The court must be satisfied that all the relevant parties consented to the adoption and understand the nature and effect of an adoption order. In particular, the parents must understand that the adoption will permanently deprive them of their parental rights. Alternatively, the court must be satisfied that the consent can be dispensed with.

The overriding principle is always the welfare of the child. Depending on the child’s age and understanding, the court will consider the child’s wishes.

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 be satisfied that no one paid or agreed to pay anyone any reward or compensation for the adoption.

If the applicant made a previously unsuccessful application in respect of the same child, the court must be satisfied that circumstances have changed substantially.

Requirements for registration under the ROAA

Basic requirements include that:

  • The applicant and the child must be ordinarily resident in Peninsular Malaysia.
  • The child cannot be the subject of an adoption order.
  • The child must be in the applicant’s care for at least two years.

Steps involved in obtaining an adoption order

Adoption petition

The procedure starts with filing an adoption petition at the High Court. Applicants can also file an originating summons in the Sessions Court instead.

First hearing

Thereafter, 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.

Guardian ad litem

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 or not based on the means and status of the adoptive parents to ensure that they are capable of caring for the child.

Second hearing

The next hearing is usually about 3-4 months later. At this hearing, the court will consider the report and the welfare of the child. The adoptive parents and the child must be present 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.

Finalising the adoption

Once the order is made, 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 showing 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, this can be done before issuing the new birth certificate.

Steps in obtaining a registration

Under the ROAA, an application is made to the National Registration Department. The Registrar of Adoptions may summons witnesses to decide if the registration must go ahead.

Usually, the register will request the adoptive parents to obtain a report from the welfare department. The registrar will also interview the parents.

If the adoption is approved, a certificate of adoption is issued. The adoption is entered into the registration for adoptions register.

Can an adoption order be revoked or cancelled?

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 as quickly and efficiently as possible.