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