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Court Adoptions in West Malaysia

Ezane Chong explains the requirements for a court adoption in West Malaysia

Earlier this year, it was reported in The Star that the Malaysian police had successfully busted a baby-trafficking syndicate under two operations code-named Ops Pintas Sayang I and Ops Pintas Sayang II, rescuing 10 and 22 children respectively from their adoptive parents.

It was also reported that these syndicates offered pregnant foreign women from Thailand, Indonesia and Bangladesh between RM2,500 and RM4,500 for their babies. These babies would then be sold to mostly childless couples for between RM18,000 and RM30,000 each, together with the original birth certificates. This type of “easy adoption” is ostensibly hassle free - the adoptive parents merely need to sign some papers, pay for the child and the child is theirs. Only that they are not. Not legally anyway.

 

IMPLICATIONS OF EASY ADOPTIONS 

The crippling of this baby-for-sale syndicate has left 32 frightened children in the care of welfare homes, separating them from their distraught adoptive parents, whilst these parents were being hauled up for questioning by the police for illegal adoption.    

Apart from the immediate and long term trauma which may be suffered by these young children as a result of being removed from their adoptive parents who are possibly the only parents they know and love, comes the devastating legal implications of adopting a child through improper channels. A child not adopted through the proper adoption process will be stateless because there is no legal documentation of where the child is from. Not considered a Malaysian, that child cannot go to school, apply for a MyKad or a passport or secure a job, own property or even get married.     

So how can a prospective parent or parents ensure that the child they adopt is legally theirs? 

 

LEGAL ADOPTIONS IN MALAYSIA

There are only two ways of legally adopting a child in Malaysia. 

The first is an adoption made under the Registration of Adoption Act 1952. Commonly known as a “registrar adoption” or “departmental adoption”, this type of adoption is done via the National Registration Department (“NRD”). The prospective parents, who can be either Muslims or non-Muslims, will need to take care of the child for at least 2 years before they may apply to register the adoption of their prospective child at the NRD. The adoptive parents of a child adopted by way of a registrar adoption only have custodial rights over the adopted child, with responsibilities to care, maintain and educate him/her. That child will not have a right to inherit any property of their adoptive parents if the latter die intestate.

The second, typically known as a “court adoption” is an adoption made through the court process, under the Adoption Act 1952.

This article discusses the legal process that governs court adoptions in West Malaysia.

 

COURT ADOPTIONS

Pre-conditions

Before a prospective parent or parents may adopt via the court process, the following pre-conditions must be satisfied:

(1) the applicant or applicants or in the case of a joint-application, one of the applicants has attained the age of 25 years and is at least 21 years older than the child whom he/she proposes to adopt;

(2) the applicant(s) must ordinarily be a resident of West Malaysia and the child must likewise, be a resident;

(3) the child must have been in the continuous care and custody of the applicant(s) for at least 3 consecutive months immediately preceding the date of the adoption order; and

(4) the applicant(s) must have given not less than 3 months written notification to the Social Welfare Department in the state where the applicant(s) resides of the intention to adopt the child.

An adoption order will not be made in any case where the sole applicant is a male and the child in respect of whom the application is made is a female unless the court is satisfied that there are special circumstances which justify, as an exceptional measure, the making of such an order.

Consent

The written consent of every person who is a parent or guardian of the child must be obtained. This is usually the biological mother and father of the child named in the child’s birth certificate. If only the mother’s name appears on the child’s birth certificate, then consent of the biological father is not required.

Consent may be dispensed with if the court is satisfied that the parent or guardian of the child has abandoned, neglected or persistently ill-treated the child.

Consent of the applicant’s spouse is also required, unless the application is made jointly.

Documentation requirements

The original birth certificate of the child to be adopted must be produced.

In the case of a joint application by a lawful husband and wife, a certified true copy of their marriage certificate must be provided.

Legal procedure

The standard procedure usually entails 2 court hearings.

At the first hearing, the court will appoint a guardian ad litem, who will usually be an officer from the Social Welfare Department of the state where the child or applicant(s) resides. The guardian ad litem will visit the applicant(s) and the child at their home and interview the applicant(s). Usually 2 visits are made. The guardian ad litem then prepares a report to court. 

The second hearing will be fixed no earlier than 3 months after the date of the first hearing.

The personal attendance of the applicants, the child, the guardian ad litem and the parent(s) or guardian of the child are required at the second hearing.

Attendance of the child can be dispensed with if the court is satisfied from the report by the guardian ad litem that special circumstances exist which render it inexpedient or unnecessary for the child to be present.  In the case of any other party, for example, the biological parents, attendance may be dispensed with if the court is satisfied that such party cannot be found or is incapable of giving consent.  

If the guardian ad litem’s report is in favour of the adoption and all other matters are in order, for example, all the necessary dispensation orders have been obtained, then an adoption order will be made on the second hearing date.

Once an adoption order under the Adoption Act 1952 has been made, a replacement birth certificate will be issued which names the adoptive parent(s) as the child’s new parent(s). A child adopted through the court process is deemed to be a child born to the adoptive parent, or parents in lawful wedlock.

 

CONCLUSION 

Parents who adopt using the proper methods need not fear that they may, someday, have their child forcibly taken away from them by the authorities, as was the case with the 32 children ‘rescued’ under Ops Pintas Sayang I and Ops Pintas Sayang II. It may be easier or faster to buy a baby illegally, but in the long run the price to pay may be extremely high, and sadly, it is often the child who has to pay this price.  


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