Brief notes.

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Family Law: Adoption (Malaysia)
Introduction
 Adoption is a process where a court discharge the parental links between a child and his
natural parents, and creates analogous links between him and the adopters.
 Adoption may be customary or statutory.
Customary adoption
 Customary adoption is a practice among Malays and is regarded as their personal law
where the child is in the custody of, and is being brought up, maintained and educated
by any person or a married couple for a period of not less than two years.
 Registration of Adoptions Act 1952 provides for the registration of customary adoptions
but it only applies to Peninsular Malaysia. The provisions can apply to both Muslims and
non-Muslims.
 The following are the requirements to register an adoption under section 6(1):
 The child must be below 18 years old;
 The child must never been married;
 The child is in the custody where he is brought up, maintained and educated by
the applicant as their own child under de facto adoption; and
 De facto means ‘in fact; whether by right or not’.
 The previous requirement must be for two years or more continuously before the
date of application.
Vocabulary
1. Analogous: Capable of being compared to something else with similar
characteristics

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 The process of application for registration is as follows:
 The applicant and the child must appear before the registrar to produce evidence that
de facto adoption has taken place.
 The parents or one of them must give their consent to the adoption. The consent may
be dispensed if it is fair for the welfare of child. The appearance of the parent may be
dispensed if they have already consented through statutory declaration.
 Section 10 provides indirect requirements where the applicant must attain the age of
25 years (if joint adoption – one of the spouse) and is at least 18 years older than the
child. If the applicant is a brother, sister, uncle or aunt by consanguinity or affinity –
he must attain 21 years. If the applicant is the father or mother of the illegitimate
child, no age limits are placed.
 The applicant or the child must be ensured to be ordinarily resident in Peninsular
Malaysia.
 Jainah binti Semah v Mansor bin Iman Mat & Anor
 A married couple adopted a niece from the husband side. The husband died. The
adoptive mother wanted to take the niece with her to Terengganu with her relatives.
The grandfather from husband side objected.
 Court ruled that plaintiff has the custody of the child and can live with her family in
Terengganu. The adoption is not revoked by the death of the adoptive father.
 Tan Kong Meng v Zainon bte Md Zain & Anor
 The defendants raised the plaintiff’s daughter without his consent, but with the
mother’s consent. Plaintiff challenged the registration for adoption by defendants
including the conversion to Islamic faith.
 The court ruled that the defendants failed to satisfy the requirements of maintaining
the child continuously, because they have been receiving payments from the mother
to care for the child.
 Since the requirement is not fulfilled, the registration for adoption is held as void ab
initio.
 However, the defendants are said to only be the guardians for the child and cannot
decide her religion.
 Re TSY (An Infant)
 The foster parents have brought up the child for four years since birth. The natural
parents wished to have him back and withheld their consent to the adoption
application by the foster parents.
 The High Court judge held that the consent was unreasonably withheld and allowed
the petition for adoption by the applicants due to that the child has been receiving
both love and care for four years by the foster parents and none from the natural
parents who disregarded him due to superstitious belief.
 Re Sim Thong Lai
 The issue in this case is whether the $200 given by the natural parents to the
prospective adoptive parents as a customary gift for adoption is an unlawful
consideration under section 10 of Adoption of Children Ordinance 1939.
 The court held that since it was a Chinese customary and was not seen as a reward
in which the Ordinance wishes to make it unlawful.

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Statutory adoption
Peninsular Malaysia - Adoption Act 1952
 Application
 It does not apply to Muslims whether as an applicant or the child meant to be
adopted (Section 31).
 Jurisdiction
 To make adoption order lies in High Court unless applicant opted for Sessions Court
(Section 10 [1]).
 Appeal may be made to Federal Court (Section 10 [5]).
 Who can be adopted
 Child under the age of 21 years and includes a female under that age who has been
divorced.
 Power for court to make adoptions orders
 Section 3 and 4.
 Requirements for the applicant
 Definition of applicant
 A person who proposes to adopt.
 Joint adoption
 Can only be done by two spouses jointly (Section 3[2]). Therefore, two sisters or
brothers cannot jointly adopt a child. The rationale is to ensure that the child who
is adopted enters a family that is a normal one where there is a mother, father
and their children.
 Adopting own child
 Is allowed under section 3(3). It covers for illegitimate child whose mother or
father wishes to adopt their child either alone or jointly. It also covers for
legitimate child where a divorce took place and the father or mother wishes to
adopt with their new spouse – provided of course, the consent by the original
parent is provided.
 Age
 The applicant or one of them (if it involves joint application), must attain the age
of 25 years and is at least 21 years older than the child.
 The rationale is to provide a reasonable gap age-wise to reflect a normal family
situation where the parents are older than children.
 Exception 1: If the applicant is the relative (brother, sister, grandparent, uncle or
aunt whether by consanguinity or affinity) of the child, he can be granted adoption
order if he has attained 21 years old.
 Exception 2: If the applicant is the parent of their own illegitimate child, no age
restrictions are placed (section 4[1][c]). This serves the interest of the illegitimate
child.
 Applicant is a sole male adopting a female child
 Is not allowed.

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 Exception: Where the applicant and the female child’s father had been close
friends. Where the girl’s parents have divorced and her father had custody of her.
Where the father was ill and the applicant, for a period of time had effectively
taken care of the child.
 Must be ordinary resident in Peninsular Malaysia (no specific period of time is
stipulated).
 In TPC v ABU, Edgar Joseph Jr J explained that ordinary resident means the
applicant must be physically present in the country when the order is made and
show that he is actually living in the country and has a base here where his work
is though he does not intend to live there permanently. However, he does not
need to show that he has no immediate intention of residing anywhere else.
 The learned judge was satisfied that the respondents were ordinarily resident in
Peninsular Malaysia. The respondents were Australian nationals and lived in
Penang for three years prior to the petition for adoption.
 Requirements for the child
 Definition of a child
 Section 2: A child means someone below the age of 21 years and is unmarried
but includes a female that has been divorced. Therefore, a male who is divorced
does not come within the definition.
 Child must be ordinary resident in Peninsular Malaysia
 This is to ensure that children are not smuggled into the country to be put up for
immediate adoption.
 As a guide, section 4(4)(a) requires the child to be continuously in care and
possession of the applicant for at least three consecutive months immediately
preceding the adoption order. This will also assist the welfare officer in assessing
whether the applicant is suitable for the child, or whether the surrounding is
suitable for the child.