Rights of Biological Parents Vs Adoptive Parents

A commentary on Sean O’Casey Patterson v Chan Hoong Poh by Ezane Chong

The Federal Court in Sean O’Casey Patterson v Chan Hoong Poh & Ors [2011] 3 CLJ 722 recently held that the rights of biological parents remain and are not extinguished, notwithstanding the registration of an adoption of their child under the Registration of Adoption Act 1952.


The Appellant, an American citizen, first met the 1st Respondent, a Malaysian citizen in 1998 in Malaysia. They soon began dating and in April 1999, they got “married” at the Little Church of the West in Las Vegas. Following this “marriage”, the 1st Respondent returned to Malaysia while the Appellant remained in America.

As a result of the relationship between the Appellant and the 1st Respondent, the 1st Respondent, on 21 March 2000, gave birth to a baby boy whom we shall refer to as “J” in this article. It was not in dispute that the Appellant was the biological father of J.

From the birth of J until 2004, the Appellant claimed to have travelled to Malaysia several times to visit the 1st Respondent and J and regularly sent money for their use. Sometime in September 2004, the Appellant retained the services of lawyers to set up a more structured maintenance scheme for J. Through his lawyers in Malaysia, the Appellant discovered, amongst other things, that the 2nd Respondent, who is the sister of the 1st Respondent, and her husband, the 3rd Respondent (“Adoptive Parents”), both Muslims, had adopted J under the Registration of Adoption Act 1952.


The Appellant thus applied to the High Court for various orders, including an order that the adoption of J by the Adoptive Parents and the registration of the adoption be declared null and void. The 1st Respondent, in the same suit, challenged the adoption of J and sought an order that custody of J be given to her instead of the Appellant.

The High Court dismissed the Appellant's and the 1st Respondent's applications to invalidate J’s adoption by the Adoptive Parents and its decision was upheld by the Court of Appeal.



The Appellant sought and obtained leave to appeal to the Federal Court. One of the questions for determination before the Federal Court was:

“Whether the rights of the Appellant, the biological father, remain and are not extinguished despite the registration of the adoption of the child under the Registration of Adoption Act 1952.”

Although the Federal Court dismissed the Appellant's appeal, it answered the aforesaid question in the positive.

James Foong FCJ, in delivering the decision of the Federal Court, explained that it was necessary to appreciate the difference between an adoption under the Registration of Adoption Act 1952 (“Act 253”) and an adoption under the Adoption Act 1952 (“Act 257”).

According to the Federal Court, an adoption under Act 257, generally referred to as a “court adoption”, is one that has to be made through a court process, whereas an adoption order made under Act 253, commonly known as a “registrar adoption”, is an order made by the Registrar of Adoption.

Act 253 caters for de facto (as a matter of fact) adoptions whilst adoption orders made under Act 257 includes adoptions de jure (as a matter of law).

In the opinion of the Federal Court, the most crucial difference between the two Acts lies in the effect of the adoption. Act 257 contains a provision which expressly extinguishes all rights, duties, obligations and liabilities of the parent or guardian in relation to the future custody, maintenance and education of the adopted child (including all rights to appoint a guardian or to consent or give notice of dissent to marriage) and vests all such rights, duties, obligations and liabilities in the adopter as though the adopted child was a child born to the adopter in lawful wedlock.

The Court pointed out that a provision similar to the afore-mentioned provision in Act 257 is conspicuously absent from Act 253. Accordingly, Act 253 only caters for the registration of a de facto adoption. As such it is of limited effect and parents who adopt under Act 253 only have custodial rights to the child. A child adopted under Act 253 will also not have a right to inherit any property of the adoptive parents should they die intestate.

The Federal Court concurred with the views expressed by the courts below that Act 253 was enacted to cater for Muslims (though its application is not restricted to Muslims only) whose personal laws are repugnant to adoption yet it is common practice for Muslims in this country to “adopt” children. Thus in order to legitimise such customary practices, the adoption could be registered under Act 253 so as to safeguard the right to custody of the adoptive parents.

The Federal Court then drew a distinction between the rights of the adoptive parents over a child in an adoption registered under Act 253 and the validity of the adoption itself. The Federal Court did not accept that just because the adoptive parents under Act 253 only have custodian, care, maintenance and educational rights over the child, the adoption is invalidated by the appearance of a natural parent who demands it so. The Federal Court took the view that the adoption remains valid as it was properly registered after due process in accordance with the law.

As regards the rights of the Appellant as the biological father of J, the Federal Court held that his right as a natural parent remains based on the rationale that an adoption under Act 253 only confers custodian, care, maintenance and educational rights over the child.



This decision illustrates an important difference between adoptions made under the two Acts, both of which were enacted in the same year and relate to the adoption of a child.

In brief, where a child is adopted under Act 253, the legal rights of the biological parents remain as conferred by law. Legal rights ‘conferred by law’ include the right to custody or upbringing of a child or the administration of any property belonging to or held in trust for the child. The implication of this recent ruling thus appears to be that only custodial rights pass on to the adoptive parent under Act 253, and nothing more. Act 253 also confers no rights of succession on the adopted child if the adoptive parent dies intestate.

On the other hand, a child adopted under Act 257 is deemed to be a child born to the adoptive parent in lawful wedlock and persons who adopt under Act 257 will possess all rights and obligations over the adopted child as if that child were born to them.


EZANE CHONG ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )


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