ENSURING THE BEST INTEREST OF THE CHILD IN ADOPTION PROCESS: AN

OVERVIEW OF THE PRACTICE IN MALAYSIA

Roslina Che Soh, Azizah Mohd and Nora Abdul Hak

Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia
P.O. Box 10, 50728 Kuala Lumpur, Malaysia
TEL. OFFICE: 603-61964230/4317
FAX: 603-61964854
Email: roslinac@iium.edu.my
azizahmohd@iium.edu.my
ahnora@iium.edu.my

Abstract
Adoption is one of the means to protect children who have been deprived of
parental care. The United Nation Convention on Rights of Child guaranteed
such protection and as in other action concerning children, the principle of best
interest of the child must be primarily considered by the State parties when
dealing with the process of adoption. In Malaysia, adoption process is
governed under two main legislations, i.e. Adoption Act 1952 and Registration
of Adoption Act 1952. However, the principle of best interest of the child is
not clearly provided under these two legislations. In addition, inter-country
adoption is not in practice in Malaysia. This paper seeks to discuss the extent
of the current legislation and practice of the Court in Malaysia in ensuring best
interest of the child is guaranteed when dealing with adoption procedure and
process. Thus, the relevant laws and decided cases will be examined. The
paper also briefly addresses the issue of whether inter-country adoption would
be an option for Malaysia and can be a factor in upholding the best interest of
children. Finally, the paper discusses some possible recommendations that may
spur improvement to the present legislation in ensuring the best interest of the
child is duly guaranteed in the adoption process.
Keywords: child adoption, best interest of the child, Malaysian legislation,
inter-country adoption

Introduction
Adoption is a lifelong experience that affects adopted children and adults, and birth and adoptive
families. It is both a legal and a social process. The purpose of adoption is to provide every child
legally available for adoption with the stability and security of new and permanent family ties,
giving paramount consideration in every respect to the child's best interests. Adoption is also one
of the means to protect children who have been deprived of parental care. It is a common
practice in many countries in providing children in need with permanent family care.
Alternatively, it is also one of the means for childless couple to have children. The practice of
adoption allows a child to be transferred from his or her birth parent to adoptive parent legally.
The United Nation Convention on the Rights of the Child 1989 (hereinafter referred to as the
UNCRC) provides adoption as substitute or alternative care for children who have been deprived
of family environment other than foster care, kafala and residential care.1 Substitute care
basically refers to a service that is designed for substitution of natural parental care, either
partially or wholly and it is still the major child welfare service. 2 Thus, vulnerable children like
orphans as well as those who have been abused, neglected or abandoned by their birth parents
require substitute care in ensuring that their wellbeing is upheld.
The ratified countries of the UNCRC are under the duty to provide adoption processes that
uphold the best interest of the child as in other action concerning children. Malaysia as one of the
ratified countries has enacted legislations that provide comprehensive processes of adoption. The
legislations also require the courts to consider welfare of the child in making adoption order.
Nevertheless, the degree of consideration on the best interest of the child when making an
adoption order is not as required in the UNCRC that is best interest of child shall be the
overriding or paramount consideration of the courts when making adoption orders. Whether this
means that the principle of best interest of the child in adoption process under the Malaysian
legislations is less important as compared to the principle that has been applied in custody of
children? Thus, the discussion is focused on the extent of the application of this principle in the
process of adoption under the Malaysian legislations. In doing so, the relevant provisions of the
adoption legislations and some cases on adoption will be examined. Additionally, an overview
on the position of adoption in the international legal framework, Islamic point of view on
adoption and whether inter-country adoption is an option and for the best interest of the deprived
children in Malaysia.
Principle of Best Interest of the Child
The principle is enshrined in the United Nations Convention of the Rights of Children3 as a
primary consideration in all actions concerning children and as the paramount consideration in
adoption. The best interests of the child must be a top priority in all actions concerning children.
1

UNCRC, Article 20
Child Welfare. Substitute care. The Encyclopedia Americana (International Edition), Vol.6, 1982, at p 463.
3
Article 3 of the Convention on the Rights of the Child (UNCRC). UNCRC is the most authoritative international
legal instrument for the protection of children's human rights, with almost universal acceptance. The UNCRC has
highlighted the fundamental human dignity of all children, the urgency of ensuring their protection, well-being,
survival and development, and the concept of children as bearers of human rights.
2

The UNCRC does not offer a precise definition of the best interests of the child. While the term
best interests broadly describes the well-being of a child, it is not possible to give a conclusive
definition of what is in the best interests of the child, as this depends on a variety of individual
circumstances, such as the age and the level of maturity of the child, the presence or absence of
parents, the childs environment, etc. It has been argued that the term can be ascribed to two
specific meanings. Firstly, as a rule of procedure, that is, in any decision which is going to be
taken that will affect a specific child or a group of children, the decision making process must
carefully consider the possible impact of the decision on the child/children concerned, and must
give this impact primary consideration when weighing the different interests at stake. Secondly,
best interest principle is also one of the foundations for a substantive right, i.e. the guarantee that
this principle will be applied whenever a decision is to be taken concerning a child or a group of
children. State Parties have an obligation put in place mechanisms that will facilitate
consideration of the best interests of the child, and must provide legislative measures to ensure
that those with the authority to make decisions regarding children must consider the best interest
rule as a matter of procedure.4
National law and domestic jurisprudence play an important role in translating international law
into the national context, although some caution should be applied when using domestic law for
guidance on the meaning of best interests. The principle set forth in Article 3 UNCRC was
primarily meant to ensure that measures were put in place to allow for proper consideration of
the well-being of the child when making a decision that affected the child. Nevertheless, national
law may provide more specific guidance on general principles set forth in international
instruments and should analyse applicable domestic legislation.5

Application of Best Interest of the Child Principle in Adoption in the International Legal
Framework
International adoption legislation and practice has purported to take into account the principle of
best interest of the child. As discussed above, the United Nations Convention on the Rights of
the Child (UNCRC) specifies adoption as one of the avenues for deprived children of family
environment and the process for adoption must paramountly be in the best interest of the child.
Article 20 of the UNCRC states that;
any child who is temporarily or permanently deprived of his or her family
environment is entitled to special protection and assistance from the State, which
could be in the form of adoption, a foster family, kafala in Islamic States, or, if
necessary, placement in suitable institution for the care of children. When
4

Jean Zermatten, The Best Interests of the Child: Literal Analysis, Function and Implementation, Working Report
2010, International Institute of Des Deroit De Lenfant p.7, assessed on 27th April 2013, at
http://www.childsrights.org/html/documents/wr/wr_best_interest_child09.pdf
5
Ibid, at p. 7

choosing among these various solutions, one has to take into account the need for
continuity in the education of the child, as well as ethnic origin, religion, language
and culture.
While Article 21, requires;
The States Parties that recognize and/or permit the system of adoption shall ensure that
the best interests of the child shall be the paramount consideration and they shall:
(a) ensure that the adoption of a child is authorized only by competent authorities
(b) recognize that inter-country adoption may be considered as an alternative means of
the childs care, if the child cannot be placed in a foster or an adoptive family or cannot
in any suitable manner be cared for in the childs country of origin;
(c) ensure that the child concerned by inter-country adoption enjoys safeguards and
standards equivalent to those existing in the case of national adoption;
(d) take all appropriate measures to ensure that, in inter-country adoption, the placement
does not result in improper financial gain for those involved in it.
It is important to note that for certain specific actions, including adoption and separation from
parents against their will, the UNCRC requires that the best interests be the determining factor,
whereas for other actions it has to be a primary consideration, which does not exclude other
considerations to be taken into account.6
Other international legislation such as Hague Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption specifies the best interest principle as a key
operating principle7. The Hague Convention on Intercountry Adoption was created in 1993 to
deal with issues regarding the regulation of international adoption.8 The Hague Convention, like
the CRC, is a rights-based document that incorporates the best interest standard. There are
several references to the standard throughout the document, and it is the guiding standard for
determining whether to place a child for intercountry adoption. 9 The Hague Convention
recognises that intercountry adoption may offer the advantage of a permanent family where a
suitable one cannot be found in the country of origin, asserting that a child should grow up in a
family environment, in an atmosphere of happiness, love and understanding.10 It thus strongly
endorses the process of intercountry adoption as one of great positive potential.

UNHCR Guidelines on the Formal Determination of the Best Interests of the Child, p.6. assessed on 27 April 2013
at http://www.unicef.org/violencestudy/pdf/BID%20Guidelines%20%20provisional%20realease%20May%2006.pdf
7
Article 1(a) requires the establishment of safeguards to ensure that intercountry adoptions are made in the best
interests of the child
8
G Parra-Aranguren Explanatory Report on the Convention on Protection of Children and Co-operation in Respect
of Intercountry Adoption Introduction, Paragraphs 1-2.
9
G Parra-Aranguren, n. 7
10
Peter Pfund, Intercountry Adoption: The 1993 Hague Convention: Its Purpose, Implementation and Promise
(1994) 28 Family Law Quarterly 53, 74

Adoption under Islamic Law

In Islam, adoption is not recognized and does not create similar legal implication as in common
adoption. The creation of legal relationship is totally prohibited on the basis that it disrupts the
pattern of family relationships that Islamic law recognizes and invests with legal rights and
duties. Islam emphasize on lineage and filial continuity. Hence, a childs identity will not be
absorbed into the identity of an adopted family. Nevertheless, Islam highly encourages the tender
care of children who do not have natural parents or whose natural parents are otherwise unable to
meet their needs. However, certain stipulations must be met in order to ensure that the adoptive
child knows and respect his or her family heritage and genealogy.11
The Islamic jurist devised a concept of guardianship which is term as kafalah that comes from
the word that means to feed.12 Legally, kafalah is defined as the commitment to voluntarily
take care of the maintenance, of the education and of the protection of a minor, in the same way
a parent would do for a child. 13 kafalah resembles foster-parenting and is seen as primarily a
gift of care and not a substitute for lineal descent. In other words, kafalah involves the
obligations of guardianship and maintenance without the creation of legal ties, which would
produce specific personal status legal entitlements. Unlike legal adoption, kafalah retains the
biological parentage and the fostered child is not allowed to be affiliated with foster parents.
Thus, foster child under kafala system does not entitle to legal rights like natural child.
14
Nevertheless, he or she can benefit from the foster parents property through bequest or gift.
The basic purpose is to preserve the heritage and gynecology of the child and this is in line with
the UNCRC which guarantees the childs right to preserve his or her identity. 15
Adoption in Malaysia
In Malaysia, adoption is generally practised by the society either through the legislations or
according to their custom. Before the introduction of statutory adoptions in 1952, adoption that is
prevalent among the communities in Malaysia is customary adoption. In general, customary
adoption was practiced sometime ago especially before the introduction of the law regulating
adoption.16 The practice is still prevalent until today especially before a child is brought or
legalized through statutory adoption. This kind of adoption seems to work based on fostering or a

11

Christine Huda Dodge, The Practice of Adoption in Islam, http://islam.about.com/cs/parenting/a/adoption.htm

Alexander D. Gonzalez, Comment, The Hague Intercountry Adoption Act and Its Interaction with Islamic Law:
Can an Imperfect Enforcement Mechanism Create Cause for Concern?, 10 GONZ. J. INTL L. 437 (2007),
available at http://www.gonzagajil.org.
13
International Reference Centre for the Rights of Children Deprived of their Family (ISS/IRC), Specific Case:
Kafalah, Fact Sheet No51, (Geneva: ISS, 2007).
14
Muslim Womens Shura Council, Adoption and the Care of Orphan Children: Islam and the Best Interests of the
Child, (August, 2011) http://www.wisemuslimwomen.org
15
Article 8 of UNCRC states that State Parties undertake to respect the right of the child to preserve his or her
identity, including nationality, name and family relations sa recognized by law without unlawful interference.
16
For further reading, see E.N. Taylor, The customary law of Rembau, ins. MB Hooker (edit), Reading the Malay
Adat laws, Univ. Press, Singapore, 1970, pp. 134143.
12

de facto adoption.17 Basically all races including Malay, Chinese and India were practicing
customary adoption. The nature of adoption is that a child is adopted from a friend or relative
through their mutual agreement. After adoption is concluded, the status and identity of the child
to a certain extent might change and the responsibility to take care and maintain the adopted
child will shift to the adoptive parents.18
In 1952, the introduction of the Adoption Ordinance 1952,19 (at present known as Adoption Act
1952)20 and Registration of Adoptions Ordinance 1952,21 (at present known as Registration of
Adoptions Act 1952),22 have marked a proper regulation on adoption. Based on these laws,
Malaysian law recognises two ways of statutory adoption; namely adoption which is registered
under the Registration Act 195223 and adoption through Court order under the Adoption Act
1952.24
Therefore, beginning 1952, adoption in Malaysia is governed and legally recognized under the
law through registration or through an order from the Court.25 Any de facto adoption whether it
is a customary, individual or a formal adoption which is done through government agency i.e. the
Department of Social Welfare Malaysia (DOSW) has to be registered for legal recognition.26 For
an individual to legalize the adoption, there are two options either to register under the
Registration of Adoption Act 1952 (the RAA) or to apply for an adoption under court order
under the Adoption Act 1952 (the AA).

Adoption Act 1952

This Act does not apply to Muslims.27 The process of adoption under this Act is an application
for legal adoption through a Court order. The AA provides among others, the power of the
Court28 to make adoption orders upon an application being made. Such an order will authorise
the applicant to adopt children. Similarly, if the application is made by two spouses jointly, or in
the case where application is made by a father or mother of the child, either solely or jointly, the

17

See Shamsuddin Suhor, Anak Angkat dan Undang-undang, Dewan Bahasa dan Pustaka: Kuala Lumpur, 2008, p.
2-3.
18
See also Shamsuddin Suhor, p. 3.
19
F.M.Ord. 41 of 1952.
20
Act 257. For further reading on adoption law in Malaysia, see Leslie C.S. Lee, Child Adoption Law, ins.
Denison Jayasuria, Issues In Child Care Today, Shelter, Petaling Jaya, 1989, p. 47.
21
F.M. Ord.54 0f 1952.
22
Act 253.
23
Act 253.
24
Act 257. The obvious reason for having two different ways of adoption is to make it compatible and applicable to
both Muslims and non-Muslims in Malaysia as the Registration of Adoption Act 1952 is not contrary to Islamic law.
25
See Registration of Adoptions Act 1952, s. 6 and Adoption Act 1952, s. 3. See also Kamaruddin Ghafar,
Prosedur pengambilan anak angkat dan realitinya di Malaysia, in Bengkel Hak dan Kedudukan Anak Angkat
Mengikut Syariah Dan Perundangan Malaysia, Jabatan Pendaftaran Negara, p. 1.
26
See Noor Aziah Mohammad Awal, Adoption Act 1952, Annotated Statutes, p. 20.
27
Adoption Act 1952, s. 31.
28
As to the power of the High Court, see s. 10(1), and as to the power of the Sessions Court, see s. 10(3).

Court will make an order authorising both the spouses jointly or such mother or father, with or
without the spouse to adopt the child.29
The AA has defined a child as an unmarried person under the age of twenty one and includes a
female under that age who has been divorced. Meanwhile an adopted child was defined as a
child who has been authorized by the Court to be adopted or re-adopted while adopter has been
defined as a person authorized by an adoption order to adopt a child. An applicant is defined as a
person who is proposing to adopt, or who has adopted a child, whether in pursuance of an
adoption order or otherwise, and in the case of an application by two spouses, includes either of
them.30 Therefore, in the case of Ah Moy @ Chiong Lai Yung v Cheong Fook Hong @ Cheong
Fock Koon,31 an application for an adoption order made by an adopted daughter after the death
of her adoptive parents was void, as there was no more relationship between the applicant and
the deceased.
Conditions of adoption under the AA are basically the same with adoption under the RAA such
as the requirement of consent32 and being ordinarily resident in West Malaysia.33 The differences
however, lie in certain matters as the adoption under the AA is through the order of the Court
and adoption under the RAA is by way of registration by the Registrar. Nevertheless, the effect
of the adoption order is many ways different from the effect of registration of adoption under the
RAA.
The AA also requires the applicant to prove that the child has been continuously in his care and
possession. However, for an adoption order, the term of at least three consecutive months before
the date of the order is sufficient. At the same time, the applicant must also notify the DOSW in
writing of his intention to apply for an adoption order in respect of the child.34 The period of care
and possession is meant as a trial or probationary period of the growth of mutual familiarity. 35
And the three months is considered sufficient for that purpose.
The above requirement was emphasized in the case of AL Annamalai & Anor. v Chandrasekaran
Thangavelu & Anor.36 In this case, as the child had been in the care and possession of the
applicant for more than three consecutive months in compliance with the duration required under
the AA, the Court has granted the adoption order in favour of the applicant.
With regard to the condition on the requirement of ordinarily residence in West Malaysia, under
the AA, the requirement was discussed in the case of TPC v ABU.37 The fact of the case was that,
the respondents were Australians and had been living in Penang for more than three years prior
to the petition for adoption. They had the intention to return to Australia upon the completion of
29

Adoption Act 1952, s. 3.

Adoption Act 1952, s. 2. Adoption Rules 1955, published as LN 416/55 and amended by PU(A) 256/88.
31
[1995] Mallals Digest para 1031, pp. 435-436. [1996] 1 CLJ 315.
32
See Adoption Act 1952, s. 5.
33
See Adoption Act 1952, s. 4(3).
34
Adoption Act 1952, s. 4(4)(a)and(b).
35
TPC v ABU [1983] 2 MLJ 79 at p. 82.
36
[1999] 8 CLJ 1.
37
[1983] 2 MLJ 79.
30

adoption proceedings. In giving the judgement, the Court has interpreted the word ordinarily
resident to mean that the residence is not casual and uncertain but that the person held to reside,
does so in the ordinary course of his life. The stay in that country has to be of sufficient duration
and continuity to satisfy the requirement of ordinary residence.38 This is to see whether the
respondents had the legal capacity to adopt a child, as the law will only allow a person to adopt if
he fulfills the requirement for adoption.39
The above case reflects that, ordinarily residence does not require that a person must be a
Malaysian citizen in adoption cases but includes a temporary stay which fulfills the requirement
of custody and maintenance for three months preceding the date of the order.
In the case of Neil Duncan Gillies & Anor v Liew Mei Ling & Ors,40 The applicants, Australian
citizens were a husband and a wife have applied in a sessions court for an adoption order under
section 3(1) of the Adoption Act 1952. The husband was on social visit pass for two years while
the wife was on employment pass for the same term. The sessions court judge referred the
petition to the high court to determine the question of eligibility of the applicant to adopt as they
are Australian citizens and whether there are considered as ordinarily citizen in Malaysia by
virtue of section 4(3) of the Adoption Act 1952. The High Court held that as there was no
statutory definition of the word ordinarily resident, Oxford dictionary should be resorted to and
relied upon for their interpretation. According to the 9th edition of the Oxford Concise dictionary,
the combined meaning of the words ordinarily resident should be interpreted to mean
regularly, normally, customarily, usually a permanent inhabitant of a town or neighbourhood
or located therein. On that very wide meaning, an employment pass in Peninsular Malaysia
should not be used as the main criteria in determining the term ordinarily resident. As the
applicants for all intents and purposes, were residing in the country but not Australia considering
that they were regularly, normally and customarily and usually residing in or located at Malaysia,
it could be logically concluded that they were ordinarily resident within section 4(3) of the Act.
As in the RAA, the AA also requires consent from the parent or guardian of the child if it
involves a child of known parents.41 Consent is also necessary from the person who has
contributed to the support of the child before adoption. Consent of the parent however may be
dispensed with if the parents cannot be found or if the consent is unreasonably withheld.42 This is
due to the fact that, in the making of an adoption order, paramount regard is the need to
safeguard and promote the welfare of the child.43 However, under the RAA, where the consent is
unreasonably withheld, it will be dispensed with by the Registrar while under the AA, the
dispensing of parental consent is by the Court.
The law which is based on English principles allows the Court to withhold consent on reasonable
grounds. This is because a parent may be acting unreasonably even if there is the element of
culpability or of reprehensible conduct in his decision to withhold such consent.44 For example,
38

Ibid.
Ibid.
40
[2010] 8 CLJ 310.
41
Guardian includes the DOSW. Consent should be in written form. See Adoption Rules 1955, rule 7.
42
Adoption Act 1952, s. 5. See also, TPC V ABU & Anor [1983] 2 MLJ 79.
43
See AL Annamalai & Anor. V Chandrasekaran Thangavelu & Anor [1999] 8 CLJ 1, at p. 2.
44
See Re W (an infant) [1971] 2 All ER 49.
39

in the case of Re SS,45 even though the natural father of an illegitimate child refused to give his
consent, the Court dispensed with it as it was found that the consent was unreasonably withheld.
The Court found that, the natural father had shown himself to be completely unfit to continue in
the role of a father of whom his child could ever be justifiably proud.
The above reflects that, the Court has discretion to decide on the approval of adoption looking
into the facts of the case, in the best interest of the child. It also shows that the requirement of
consent in an adoption case is not mandatory when there is a conflict with the welfare of the
child.
In Re TSY (An Infant),46 consent of the natural parents was also considered as unreasonably
withheld as the child has been under the care of his foster parents for nearly four and half years.
In this case, the adopted child (a boy) had been living with the applicants on fostering basis since
after his birth. The natural parents refused to consent to the application even though there was
evidence showing that a religious ceremony was held at a temple in the day the child was given
to be under the care of the foster parents. In this case, other than looking into the welfare of the
child, the Court allowed the application for adoption looking also into the disruptive effect on the
boy of transplanting him from familiar surroundings where he has lived for nearly four and half
years with his natural parents, would be sufficiently permanent and serious to afford cogent
reasons for holding that the consent of the natural parents to his adoption was being
unreasonably withheld.
Consent to a certain extent is reflected in the letter of consent, if it appears that the natural
parents unreasonably changed their mind after having signed a letter of consent. In Re Baby M,47
the natural parents who had signed a letter of consent to give their child for adoption changed
their mind and sought the return of their child, alleging that they have not given consent for
adoption and that, the letter of consent was invalid. In determining the issue, the Court used the
objective test that is, whether it would be reasonable for the natural parents to withhold consent.
The Court after considering the totality of the evidence held that, this was a case where consent
was being unreasonably withheld by the natural parents and should therefore be dispensed with.
No such consent is also required from the spouse of the applicant in the case where the spouse
cannot be found or is incapable of giving consent or that spouses have separated and are living
apart and that separation is likely to be permanent.48 A similar principle applies in the case of an
abandoned child or where the child is neglected or persistently ill-treated by the parent or
guardian49 Although the grant of the adoption order requires those pre- requisites to be satisfied,
the Court will always decide the adoption to be in the best interest of the child. Therefore,
consent of the parents may be dispensed with if the child prefers to stay with his adoptive
parents.50
45

[1975] 1 MLJ 56.

[1988] 3 MLJ 43. See Re Thow Seng Yeap; Thow Chow Goon & Anor v Khor Kar Chooi & Anor [1989] 3 MLJ
482.
47
[1994] 2 MLJ 635.
48
Adoption Act 1952, s. 5(2).
49
Adoption Act 1952, s. 5(1(a)). See also AL Annamalai & Anor. V Chandrasekaran Thangavelu & Anor [1999] 8
CLJ 1, at 2.
50
See AL Annamalai & Anor. V Chandrasekaran Thangavelu & Anor [1999] 8 CLJ 1, at 2.
46

The requirement of consent however is not necessary in the case of a de facto adoption where the
child has been brought up, educated, maintained and is in the custody of the adopted parents for
at least two years before the commencement of the AA for an order to be made. 51 In the case of
Ah Moy @ Chiong Lai Yung v Cheong Fook Hong @ Cheong Foc Koon,52 a de facto adoption
took place in 1949 and the Adoption Act 1952 was enforced on 25th June 1953. The Court held
that, the adoption order was void as the requirement for a valid adoption under the Adoption Act
1952 was not fulfilled as the adopted mother has died at the time of application. The Judge
Haidar Mohd Noor J (as he then was) stated inter alia that, the applicant who is the adoptive
child through her adoptive mother could have invoked section 8 of the Act to prove the existence
of a de facto adoption which will become effective after the commencement of the Act.
However, he failed to take advantage of the section.53
Procedure for Adoption
For the purpose of adoption under this Act, the applicant should forward the application to the
Court.54 The applicant can be either an individual who has the custody of the child or an
individual who has applied through the DOSW.55 Although the adoption order is not meant for
more than one applicant, preference is given to an application made by two spouses jointly. The
order may be made to either father or mother of the adopted child either alone or jointly with
spouse.56
Besides the normal procedure for adoption, it is also a normal procedure for adoption under the
AA for the Court to appoint a guardian ad litem from the DOSW. Guardian ad litem refers to a
person or persons or bodies who may be appointed by the Court to be in charge of the child. In
practice, the officers in charge for that purpose are the Social Welfare officers as it seems that,
only these people are able to fulfil the requirements in terms of duties of the guardian ad litem.
Furthermore, section 26 of the AA has only allowed the Director of the Social Welfare to make
arrangements for the adoption of a child. 57 The purpose of appointment of guardian ad litem is
mainly to monitor the adoption process and to determine the suitability of the applicant to the
proposed adopted child by conducting investigation. The investigation among others would
determine that for the welfare of the child, the Court should be asked to make an interim order58
on the applicant, or in making of an adoption order,59 to impose terms or conditions requiring the
adopter to make any particular provision for the child.60 In particular, the guardian ad litem is
obliged to include few questions in his investigation. The questions include whether the
51

Adoption Act 1952, s. 8.

[1996] 1 CLJ 315.
53
Ibid.
54
Either the High Court or the Sessions Court. See Adoption Act 1952, s. 3(1).
55
See Noor Aziah Mohamad Awal, Adoption Act 1952, Annotated Statutes, , s. 11, p. 20.
56
Adoption Act 1952, s. 3(2)and(3).
57
See Noor Aziah Mohammad Awal, Adoption Act 1952, Annotated Statutes, p. 21.
58
See Adoption Act 1952, s. 17(1). The interim order shall be in accordance with Form No 6 of the fisrt schedule.
See Adoption Rules 1955, rule 17.
59
An adoption order shall be in accordance with Form no 5 in the First Schedule. See Adoption Rules 1955, rule 17.
60
Adoption Act 1952, s. 13(1e). For the condition during interim order see Re Baby M (an infant) [1994] 2 MLJ
635.
52

10

statements in the form of application required by section 11 (1) are true and complete,
particularly as regards to date of birth and the identity of the child. The investigation would also
enquire whether any payment or other reward in consideration of the adoption has been received
or agreed upon, and whether it is consistent with the welfare of the child. Furthermore, the
question is also on whether the means and status of the applicant are such as to enable him to
maintain and bring up the child suitably and what right to or interest in property the child has.
The guardian ad litem is also obliged to enquire on insurance whether it has been affected on the
life of the child.61 Upon such appointment, the duplicate of the form mentioned in section (11)
(1) shall be delivered to the guardian ad litem. 62
After the appointment, the Court will fix the time for hearing of the application. Both the
applicant and the respondent must be present during the hearing except where the respondent
could not be found as in the case of an abandoned child. The respondents include the child to be
adopted, the guardian ad litem, the parent or guardian of the child, and the spouse of the
applicant (who is not an applicant).63 The notice will be sent to the respondents based on their
addresses either by delivering the copy to them personally or with leave of the court or by
sending a copy by registered post to their last known or usual place abode whether such place is
in Malaysia or elsewhere. 64
The Court may make an interim order prior to the final order of adoption. An interim order refers
to an order to take effect provisionally, or until further directions.65 The Court may make an
interim order for a period not less than six months and not exceeding two years. The order is
conditional upon provision for maintenance and education as well as supervision or the welfare
of the child or any other condition given by the Court.66 The purpose of the interim order is to
enable the adopters to act for a probationary period, to ensure that the child is living in a healthy
and loving environment. If it is found otherwise, the guardian ad litem may apply to the Court to
remove the child from any detrimental environment. It is thus a useful compromise when the
Court is genuinely unable to make up its mind whether the applicants will make good adopters.67
The consents as are required to an adoption order are also necessary for the interim order.
Similarly, the Court may dispense with such consents for an interim order as for an adoption
order. The assessment of the probationary period for the interim order shall consider the period
where the child might have already spent in the custody of the applicants as a result of de facto
adoption or otherwise. 68 In Re Baby M (an infant),69 an interim order was made in favor of the
applicants ordering the proposed adopted child to remain with them for the purpose of medical
treatment as the natural parents withheld their consent to the adoption. During this period, the
61

See Adoption Act 1952, s. 13(1).

See Adoption Act 1952, s. 12(1). See also Adoption Rules 1955, rule 10.
63
See Adoption Act 1952, s. 12(2).
64
Adoption Act 1952, s. 12(3) and (4).
65
See Noor Aziah Mohd Awal, Adoption Act 1952, Annotated Statutes, p. 25. See also Bromley and Lowe,
Bromleys family law, 9th Edition, p. 411.
66
Adoption Act 1952, s. 17(1).
67
Adoption Act 1952, s. 14(1).
68
See Adoption Act 1952, s 17(2-4).
69
[1994] 2 MLJ 635.
62

11

applicant is responsible for the childs maintenance and education and the supervision of the
childs welfare.
However an interim order shall not be made in the case where the making of the adoption order
is unlawful under the Act,70 such as the order is granted to an applicant who does not satisfy the
requirements under the AA. In the English case of S v Huddersfield Borough Council,71 the
interim order was granted when the Court was uncertain whether the child should be adopted or
to go to live with a parent. It seems that, the making of the interim order remains to be the
Courts main consideration to promote the welfare of the child.72
At least two months before the expiration of the interim order, the applicant has to apply to the
Court to proceed with the determination of the application for the adoption order, where there
will be another hearing.73 There are cases where the Court might refuse to grant both the interim
and the adoption order on the grounds that the adoptive home is unsuitable.74 In doing so, the
power rests on the judge to decide taking into consideration the interest of the child as paramount
consideration and the wishes of the unimpeachable mother.75
Upon the fulfillment of all conditions and requirements, the High Court or Sessions Court will
grant an adoption order to the relevant people including the Chief Registrar of Births and Deaths.
Accordingly, the NRD will register the adoption and a birth certificate will be issued to the
applicant.76 It will replace the certificate of birth of the child issued under the Births and Deaths
Registration Act 1957. In the new birth certificate of the adopted child, the word adopted,
adopter or adoptive will not appear due to the demands from the public.77 The new birth
certificate used the code number to identify that the child is in fact an adopted child adopted
under the AA. However, the code is only known by certain people like the adoptive parents of
the adopted child.78
Effect of Adoption
Once registration is fully affected, the adopted parents will shoulder the responsibility as if they
are the natural parents. The duties include to consent or to give notice of dissent to marriage of
the adopted child as if the child was born to the adopter in lawful wedlock.79 The adopted child is
also entitled to inheritance testate or in testate.80

70

Adoption Act 1952, s. 17(6).

[1975] Fam 113.
72
See Adoption Act, s. 6(b). See also Noor Aziah Mohd Awal, Adoption Act 1952, Annotated Statutes, p. 26.
73
Adoption Act 1952, s. 19.
74
See Re Satpal Singh An Infant [1958] MLJ 283.
75
See Yap Chee Kong v Chan Bee Yen 1989] 1 CLJ 262.
76
Kamaruddin Abd Ghafar, Prosedur pengambilan anak angkat dan realitinya di Malaysia, pp. 16 and 17.
77
Adoption Act 1952, s. 25A(5). This is by virtue of the Adoption (Amendment) Act 2001, Act A 1098.
78
Information obtained from the Director, Child Protection Services, Department of Social Welfare Malaysia, on 14
of October 2003.
79
Adoption Act 1952, s. 9(1).
80
Adoption Act 1952, s. 9(2-5).
71

12

In the case of Re TSY (An Infant),81 the judge Edgar Joseph Jr. (as he then was) said that:
I need hardly add that I am fully aware that the general effect of an adoption
order is that it destroys the legal bond between the infant and its natural parents
and puts him in precisely the same position as a natural child of his adoptive
parents. The making of an adoption order may, therefore, be rightly described as
the using of a statutory guillotine.
The above quotation describes the effect of the adoption order so as to create new parents for the
adopted child. The same would apply if the adopters are two spouses. The Court will have
jurisdiction to make orders on custody and maintenance and right to access to children and to the
adopted child, as they are the lawful father and mother of the adopted child.82 It follows that, an
adopted childs rights are similar to the rights of a natural child. The protection of their rights
seems to be absolutely guaranteed by the AA. Therefore, all laws which protect the rights of
children will be applicable to adopted children who are adopted through the AA. This would also
mean that their rights to custody and maintenance will be totally governed by the Law Reform
(Marriage and Divorce) Act 197683 and Guardianship of Infants Act 1962.84 Moreover, as regard
to the entitlement to inheritance, the adopted child shall be subject to the Distribution Act 195885
and the Probate and Administration Act 1959,86 with regard to his qualification and percentage
of the inherited property. And as regard to a bequest, he is entitled to more than one third of the
property as provided by the Wills Act 1959.87
Similarly, upon disposition of property whether by instrument inter vivos or by will (including
codicil), any reference to a child or children or a person related to him in the instrument, shall
include the adopted child or the person who would be related to the adoptive parents unless a
contrary intention appears. For example, there is a statement in the instrument that the adoptive
parent does not intend to distribute his property to the adopted child. An example of a contrary
intention in a will can be seen in the case of Re Estate of Lam Chee Tong (Deceased). 88 In this
case, the issue was whether the word children included adopted children. The court held that,
the term children in a will prima facie means legitimate children. However, in the cases in
which the term children had been held to include adopted children, there was an intention
expressed by the testator in the will that the term children is to include adopted children.
However, in this case, there was no indication that the term children is to include adopted
children.

81

[1988] 3 MLJ 44.

Adoption Act 1952, s. 9(2).
83
Act 164. Under the LRA, a child includes an adopted child who is adopted by the spouse in pursuance of an
adoption order made under any written law anything to adoption. See Law Reform (Marriage and Divorce) Act
1976, s.2.
84
Act 351.
85
Act 300.
86
Act 97.
87
Act 346.
88
[1949] 1 MLJ 1.
82

13

In the case of the adopted childs natural parents, reference of a child in the instrument shall not
include the adopted child unless the contrary intention appears. i.e. In this case, a child in the
instrument of distribution of property of the natural parents of the adopted child shall not
include the adopted child unless there is a statement in the instrument showing that the natural
parents would like to include the adopted child.89 The order will also cause all children and
adopted children of the adopter to be within the prohibited degree of consanguinity.90
There was an issue arised as to whether an adopted child may make an inspection on the adopted
children register as to trace his natural parents. In the case of Melati bte Haji Salleh v Registrar
General of Births & Deaths & Anor,91 an adopted child applied for an order to inspect the
Adoption of Children Register and make copies of it. The issue was whether the legal effect of
adoption was relevant to the right to inspect. The Court held that, the legal effect of an adoption
order should not by itself determine whether or not the adopted child who knew he or she was
adopted should be denied the right to know his or her natural parents. In the absence of a
demonstrable public interest against disclosure, it would be morally right to grant the adopted
child the right to know who his or her natural parents were.
Registration of Adoption Act 1952
Registration of Adoptions Act 1952 (the RAA) is applicable to West Malaysia only. It is meant
for both Muslims and non Muslims as it is of general application. 92 It applies to the registration
of a de facto adoption, including customary adoptions.93 However, failure to register the adoption
shall not affect the validity of the adoption after all the necessary requirements are fulfilled.94
i. Conditions & Procedures
For an adoption under the RAA to be registered, there are several conditions to be fulfilled. The
first condition is that the child must be in the custody of the adoptive parents, being brought up,
maintained and educated by them under a de facto adoption as their own child for at least two
years continuously95
Secondly, the consent of the natural parents for the adoption must be obtained prior to the
registration. For this purpose, the adoptive parents have to produce evidence either oral or
documentary as a proof that the above consent has been obtained and adoption really took
place.96 Example of the evidence includes the letter of consent from the natural parents of the
89

Adoption Act 1952, s. 9(3)(a)(b)and (c).

Adoption Act 1952, s. 9(7).
91
[1989] 3 MLJ 6.
92
See s. 1. The law applicable in Sabah is the Adoption Ordinance 1960 (no. 23 of 1960), while in Sarawak, it is
Adoption Ordinance (Cap 910) of the Laws of Sarawak 1958.
93
See Mimi Kamariah Majid, Family law in Malaysia, Malayan Law Journal, 1999, p. 218. The whole objective of
the enactment seems to cater for de facto adoptions. See, comment by James Foong J in Tang Kong Meng v Zainon
bte Md Zain [1995] 3 MLJ 408 at p. 414.
94
Registration of Adoptions Act 1952, s. 11. See also Mimi Kamariah Majid, Family law in Malaysia, p. 222.
95
Registration of Adoptions Act 1952, s. 6(1).
96
Registration of Adoptions Act 1952, s. 6(1)(a).
90

14

child or in the case of an illegitimate child, his mother, for such adoption or a letter on the
custodial right of the child from the court or the DOSW in the case of an abandoned child. 97. The
RAA requires that the parents or one of the parents or in absence of the parents, the guardian of
the child, to appear before the Registrar and express his consent to the adoption.98 Nevertheless,
the Registrar may dispense parental consent or the adopted child custodian if it is just and
equitable to do so and for the welfare of the child, for example, in the case where the parents of
the child are not known or cannot be found or in the case of illegitimate child. 99 In the case of
Tan Kong Meng v Zainon bte Md Zain & Anor,100 it was argued that the adoption was invalid for
lack of the fathers consent. However, the court held that consent given by the mother is
sufficient, as she had continued to visit the child and paid her maintenance. In the above case,
consent of a natural parent is essential for a valid adoption and failure to comply with any
condition (including the absence of consent from the natural parents) as set out under section
6(1) of the RAA, the registration can be held invalid.101
In the case of Sean OCasey Patterson v Chan Hoon Poh & Ors,102 The plaintiff/appellant
among others had applied to the High Court that registration of adoption of his biological son by
the second and third respondent was null and void and be set aside. The adopted child (Jordan)
was adopted through the consent given by his mother. The High Court dismissed this application.
On appeal, the issues before the court include; (i) Whether the appellants consent should be
obtained for the registration of adoption of his son under Act 253; (ii) Whether s. 6 of Act 253
should be read such that where there are two parents living, both parents consent should be
sought for the registration of adoption of a child under Act 253. It was held that, since the
appellant was not known to be the father of Jordan at the time of adoption, his consent was
irrelevant. Furthermore, section 6 of the RAA plainly provides that or one of the parents. This
simply means that consent of any one parent without the need to prove that the other is dead or
cannot be found.
Further conditions to be fulfilled by both adopted children and adoptive parents are the
requirement of age. The registrar will not register an adoption unless the adopted child is under
the age of eighteen years old. Meanwhile, as regards the adoptive parents, they must be at the age
above twenty five years or at least eighteen years older than the adopted child in a case where
they are strangers to the adopted child. If one of the adoptive parents is the childs relative, such
as a brother, sister, uncle or aunt, whether by consanguinity or affinity, of the child, or if the
child is illegitimate, a person who would be so related if the child were legitimate; they must be
at least of twenty one years old. Nevertheless, if one of the adoptive parents is either the mother
or father of the adopted child, then no requirement of age is imposed.103 It seems that, this
provision on age is necessary to ensure the effectiveness of an adoption which reasonably

97

Registration of Adoptions Act 1952, s. 6 (a). See also Kamaruddin Abd Ghafar, Prosedur pengambilan anak
angkat dan realitinya di Malaysia , Bah. 3, p. 11.
98
Registration of Adoptions Act 1952, s. 6(b).
99
Registration of Adoptions Act 1952, s. 6(1)(b).
100
[1995] 3 MLJ 408.
101
See Tang Kong Meng v Zainon & Anor [1995] 3 MLJ, 408.
102
[2011] 3 CLJ 722.
103
Registration of Adoptions Act 1952, s. 10 (2)(a)(b)&(c).

15

differentiates the adopted child and the adoptive parents as compared to the real status of
children and parents in a family
In order to determine whether the adoptive parents are qualified to adopt the child, the National
Registration Department of Malaysia (NRD) will conduct an interview session. This is to
examine the suitability of the applicant with the adopted child, the interest and welfare of the
child as well as the ability of the applicant to up bring the adopted child. For this occasion both
applicant and the adopted child are required to attend the session.104 It is mandatory for the
parties and witnesses who give evidence before the Registrar to speak the truth or otherwise
would be liable under Chapter XI of the Penal Code for giving false evidence. 105 The Registrar is
also obliged to observe the reaction of the adopted child towards the applicant during the session,
as the reaction seems to be a natural one.106
the RAA also requires that the adopted child and adoptive parents must be ordinarily resident in
West Malaysia.107 This requirement practically prohibits anyone other than those who reside in
West Malaysia to adopt a child. It also prohibits West Malaysians from adopting children who
are not ordinarily resident in West Malaysia. The registrar will not also register the adoption if
the adopted child is a subject of adoption order made under the AA. It has to be noted that,
besides other requirements, the applicant has to enclose the birth certificate of the child if he is
born in Malaysia or his traveling document, if he is born outside Malaysia for the purpose of
registration.108
ii. Effect
The Registration of adoption under the RAA is a mere registration for a legal adoption so as to
prove that an adoption has taken place. Although there is no provision that states as such,
adoption under the RAA indirectly gives the right of custody to the adoptive parents over the
adopted child. There is no ascription as to the paternity of the adopted father to the adopted child.
Adoption would not render parental status over the adopted children. Nevertheless, the
registration is crucial as it will render benefits to the adopted children in education, application
for identity card and passport109 and more importantly, the nationality or citizenship. The
registration is also meant for income tax deduction of the adoptive parents.110 The adoptive
parents may make an application for the childrens citizenship although such citizenship would
be based upon their birth certificate as the nationality of a child is based on the status of his
natural parents. 111

104

See Registration of Adoptions Act 1952, s. 6(1)(a).

Registration of Adoptions Act 1952 s. 8(1)&(2). See also Penal Code, Chapter XI.
106
See Kamaruddin Abd Ghafar, Prosedur pengambilan anak angkat dan realitinya di Malaysia, Bah. 3, p. 13.
107
Registration of Adoptions Act 1952, s. 10(3).
108
See Kamaruddin Abd Ghafar, Prosedur pengambilan anak angkat dan realitinya di Malaysia, Bah. 3, p. 10.
109
See Puan Sri Nurzan Mohd Wahie, Pemeliharaan anak angkat, satu panduan, MKKM, Kuala Lumpur, 1997, p.
11.
110
See Kamaruddin Abd Ghafar, Prosedur pengambilan anak angkat dan realitinya di Malaysia, pp. 20 and 21.
111
See Kamaruddin Abd Ghafar, Prosedur pengambilan anak angkat dan realitinya di Malaysia, pp. 20 and 21.
105

16

The effect of the adoption under the RAA seems to comply with the concept of adoption
recognized under Islamic law i.e. kafalah which regards it as a means of helping a child in need
of family or protection.112 As it does not in conflict with Islamic law, is made applicable and
governs the Muslims who wish to adopt children in Malaysia. In the case of Sean OCasey
Patterson v Chan Hoon Poh & Ors,113 the court held among others that the Act 253 (RAA) was
enacted to cater for Muslims whose personal laws are repugnant to adoption yet it is a common
practice for Muslims in this country to adopt a child.
The principle equally applies to the non Muslim community as the RAA is applicable to both
Muslims and non Muslims. For instance in the case of Re Loh Toh Met, (Decd), Kong Lai Fong
& Ors v Loh Peng Heng,114 the deceased had adopted a number of children, one of whom was
under the Registration of Adoptions Ordinance 1952 (which is equivalent to the RAA) and others
in accordance with Chinese custom. Despite the registration, the child did not possess any rights
of inheritance as the registration did not make him entitled to such rights. Similarly, the
definition of child was confined only to adopted child under the Adoption Act 1952.115
In another observation, although the RAA provides facilities for registration of adoption of a
child among the Muslims, it preserves the parentage of a child and the status of adopted child as
provided by the Islamic law. However, the RAA does not limit a single parent from adopting a
child of a different sex. This practice should be discouraged as it might cause social problems
when the child grows up.116
Whether the Adoption process uphold the best interest of the child
From the above discussion, it can be seen that the detailed requirements and processes of
adoption under AA and RAA seem to reflect that the principle of best interest of the child is
highly emphasized, although the provisions did not clearly specify that the principle of best
interest must be paramountly considered by the court as what has been promulgated in the
UNCRC.
There are several processes and requirements of adoption which directly reflect the emphasis on
the safeguarding of the best interest of the child in adoption order. Firstly, the requirement of
fulfilling certain age differences between the adopter and adoptee. As being discussed, the
proposed adopter/adopters must be at least 25 years old and being 20 or 18 years older than the
adopted child under the AA and RA respectively.117 Indirectly, this requirement is to safeguard
the interest of the child in which the childs wellbeing will be looked after by adult person/s with
parental responsibilities. Additionally, the age gap requirement adequately establishes the usual
parents and child age gap in a family.
112

See Puan Sri Nurzan Mohd Wahie, Pemeliharaan anak angkat; satu panduan, Kuala Lumpur, MKKM, 1997, p.
11.
113
[2011] 3 CLJ 722.
114
[1961] MLJ 234.
115
See the case Yeap Chan Aik v Yeap Chan Hoe & Ors (2000) 1 MLJ 78.
116
See Pn. Sri Nurzan Mohd Wahie, Pemeliharaan anak angkat, satu panduan, p. 19.
117
See section 4(1)(a) of AA and 19(2)(a) of RA

17

Secondly, the general requirement that a single male adopter is not allowed to adopt a female
child in AA118 is also seen as a means to protect the interest of the female child. Such
requirement is to prevent the child from being exposed to any possible mistreatment by the
proposed male adopter, for instance being sexually abused or rape. Conversely, there is no
similar requirement in the RAA.
Consent of the natural parents to the adoption is the most fundamental requirement in adoption
process and is another important factor to safeguard the interest of the adopted child. As being
discussed, an adoption order or registration of adoption order can only be made by the court with
the consent of the natural parent/s except in some circumstances where the court is satisfied that
the consent may be dispensed with based on several valid reasons.119 For instance, in cases
where the natural parent has abandoned, neglected or persistently ill-treated the child; has
persistently neglected or refused so to contribute to the maintenance of the child and person
whose consent is required cannot be found or is incapable of giving his consent or that his
consent is unreasonably withheld. The need to obtain the consent of natural parents is to ensure
that the adoption is truly for the best interest of the child and it may be dispensed with if it is
contrary with the welfare of the child. This also indicates that the requirement of parental consent
in an adoption case is not mandatory when it is in conflict with the welfare of the child.
Another requirement that directly reflects the consideration of best interest of the child is the
need for the child to be in the continuous care of the proposed adopter before the adoption.
Under the AA, the requirement is for three months before an application for an adoption can be
made whilst RAA requires the child to be cared and in the possession of the adopter for at least
two years. Under the AA, the purpose of this requirement, among others is to ensure the childs
suitability and adaptability with the proposed adopted parents. The period of care and in
possession of the adopted parents under the RAA is much longer compared to AA, and within
this period, the child must also be maintained by the proposed adopter. This is to ensure that
childs well being is protected before the adoption can be legalized.
Appointment of Guardian ad litem before the court granted an adoption order under AA is also
seen as one of the ways of safeguarding the best interest of the child in an adoption order. As
discussed above, the purpose of appointment of guardian ad litem is mainly to monitor the
adoption process and to determine the suitability of the applicant to the proposed adopted child
by conducting investigation. The investigation among others would determine that for the
welfare of the child, the Court should be asked to make an interim order120 on the applicant, or in
making of an adoption order, to impose terms or conditions requiring the adopter to make any
particular provision for the child.121

118

See section 4(2) of AA

See section 5 of AA & 6(1)(b) of RA
120
See AA, s. 17(1). The interim order shall be in accordance with Form No 6 of the fisrt schedule. See Adoption
Rules 1955, rule 17.
121
Adoption Act 1952, s. 13(1e). For the condition during interim order see Re Baby M (an infant) [1994] 2 MLJ
635.
119

18

The effect of adoption under the AA is also for the purpose of safeguarding the best interest of
the child. After an adoption order has been granted by the court, the adopted parents will assume
the parental responsibility as if they are the natural parents and the adopted child is considered to
be the legal child as if he or she was born to the adopter in a lawful wedlock. The court will issue
a certificate of adoption which is similarly valid as the birth certificate. Conversely, the
registration of adoption under the RAA does not have similar effect. RAA only gives the right of
custody to the adoptive parents over the adopted child. There is no ascription as to the paternity
of the adopted father to the adopted child and thus, would not render parental status over the
adopted children. Nevertheless, the registration is crucial as it will render benefits to the adopted
children in education, application for identity card and passport and more importantly, the
nationality or citizenship. This is in line with the concept of kafalah or fostering in Islam in
which it would bring huge benefit to the Muslim adopted children and as such their best interest
is safeguarded.
Whether Inter-country Adoption is an Option for Malaysia
Intercountry adoption not only involves the transferral of a child to a new set of parent, but also
to another country. The child has to be removed from his or her country of origin, known as
sending state to the adoptive parents place of residence, and known as receiving state. 122 The
1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry
Adoption (hereinafter referred to as the Hague Convention of 1993) recognizes that,
intercountry adoption may offer the advantage of a permanent family to a child for whom a
suitable family cannot be found in his or her State of origin. 123 The 1993 Hague Convention on
intercountry adoption is introduced to facilitate the practice of intercountry adoption and to
prevent any involvement of criminal activities in the process. Other international instruments on
intercountry adoption are the UNCRC and the United Nation Declaration on Social and Legal
Principles Relating to the Protection and Welfare of Children, with special reference to Foster
Placement and Adoption Nationally and Internationally.
Although international law recognizes intercountry adoption as an appropriate alternative care
for children in need, it is constantly surrounded with controversy. The institution of intercountry
adoption is complicated and it raises many issues since it involves the act of moving a child from
one state to another. The debate on intercountry adoption is ongoing as to whether it is right to
send a child to another country for the purpose of child protection through adoption. Among the
arguments of the critics of intercountry adoption are the adopted child is denied from his or her
national heritage and its process involves unlawful or illicit activities like corruption, child
trafficking, abuse as well as exploitation. On the other hand, the proponents of intercountry
adoption argues that child in need should be placed in a permanent family setting whether it is
available domestically or internationally.
Intercountry adoption is regulated in several countries like the UK and Australia. The practice of
intercountry adoption in these two countries is mostly as a receiving country rather than a
122
123

Hague Convention of 1993, Article 2.

Hague Convention of 1993, The Preamble.

19

sending country. Legislative framework for intercountry adoption of sending countries can be
seen in South Korea and Philippines. South Korea has been in top 5 of sending countries with
China ranked at number one, while Australia has been in top 12 with the U.S as a top recipient of
intercountry adoptions from 2005 to 2009.124 As regard to Muslim countries like Morocco and
Jordan, intercountry adoption is established through kafala system. The system is adopted in
Muslim countries in order to allow a family to take in a child in need to be looked after in their
own home. Basically, these two countries are also considered as sending countries rather than
receiving countries as there are many orphaned or abandoned children who are in need of family
waiting to be fostered by suitable families.
There is no statutory provision with regard to intercountry adoption in Malaysia. Besides that,
Malaysia is not a party to the Hague Convention of 1993. Children in need of care and protection
can be placed in the care of a fit and proper person125 or foster parents126 or in a place of safety127
through a court order under the Child Act 2001. Place of safety or also known as Childrens
Homes is designed to provide institutional settings for the children where they live together in
one building or home under the care of staff or care givers. There is also no formal legislation for
foster care and basically it is based on the practice of the Social Welfare Department. Unlike
adoption, foster care has no legal effects. Foster parents may look after the child for a period of
two years or until the child reaches the age of eighteen years. 128 They may also adopt the child if
the court order that the child can be adopted after the period of two years has lapsed.129
According to the Social Welfare Department of Malaysia, in 2010 there were 1451 applications
for registration of adoptions. As regard to child placement under the Child Act 2001, there were
about 55 cases for foster care placement and 484 cases for residential care placement.130
UNICEF found that the primary response for orphaned, abandoned or neglected children is
residential care. The numbers of children in residential care are much greater than those in foster
homes or adopted although no data was gathered with regard to the number and categories of
children in childrens homes.131 It is also found that adoption and foster care need to be
developed further and children whose parents are no longer able to provide care for them should
have the option of adoption.132 Thus, although it is very important for vulnerable children to live
in family environment, it seems that residential care has become the major option for placement
of children in need. These children may have to stay there until they reach adulthood if there is
no suitable foster or adoptive family can be found for them.
124

Davis, M.A. (Ed.), Global Intercountry Adoptions in the Children for Families or Families for Children, The
Springer Series on Demographic Methods and Population Analysis 29, Springer Science+Business Media B.V.,
2011, doi: 10.1007/978-90-481-8972-4_8.
125
Child Act 2001, Section 30 (1)(c)
126
Child Act 2001, Section 30(1)(e)
127
Child Act 2001, Section 30(1)(d)
128
Child Act 2001, Section 30(1)(e)
129
Child Act 2001, Section 30(1)(4)
130
The Social Welfare Department of Malaysia official website at http://www.jkm.gov.my/index.php?lang=ms
viewed on February 8, 2012.
131
UNICEF EAPRO, Alternative Care for Children without Primary Caregivers in Tsunami-Affected Countries
Indonesia, Malaysia, Myanmar and Thailand at http://www.unicef.org/eapro/Alternative_care_for_children.pdf
viewed on 13 May 2010, at 57.
132
Ibid, at 58.

20

Although Malaysia is not a party to the Hague convention on intercountry adoption, there is no
restriction as to the right of a foreigner to adopt a Malaysian child. In both AA and RAA, one of
the requirements is that the proposed adopter must have ordinarily resides in Malaysia.133 This
means that an inter-country adoption is allowed if the proposed foreign adopter fulfilled this
requirement and other conditions.
Conclusion
In Malaysia, the principle that the best interest of the child must be paramountly considered by
the court in adoption is not specifically provided under the current legislations on adoption, i.e.
the Adoption Act 1952 and Registration of Adoption Act 1952. However, based on the
procedural laws and cases, the Malaysian courts highly emphasise on the application of this
principle when making adoption orders. Thus, it is proposed that amendment to these Acts is
necessary to include new provisions that specifically state that the best interest of the child must
be paramountly considered by the court whenever any application for adoption of a child is
made. It is also observed that intercountry adoption has not been adopted by Malaysian
government as one of the avenues for deprived children of family care. Therefore, it is proposed
that the Malaysian government ratify the Hague Convention on Intercountry Adoption in order to
provide alternative protection for these deprived children.

133

See section 4(3) AA & section 10(3) RAA

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