Prepared by Wilson Tan Wei Sheng & Nur Aqilah binti Abdul Razak
Adoption is when a person or a family decides to become the legal parent(s) of a child who is not biologically related to them. It’s like welcoming a child into their home and treating them as if they were their own.
If you are intending to adopt a child in Malaysia, what do you need to do you may ask?
For non-muslims, it has to go via the court procedure for a speedier process. One can apply at the High court according to section 10 of the Adoption Act or Sessions Court depending on where the applicants intend to file the matter.
Section 10. (1) The Court having jurisdiction to make adoption orders under this Act shall be the High Court or at the option of the applicant any Sessions Court notwithstanding the Subordinate Courts Act 1948 (2) All proceedings of the Court shall be held in camera and all documents filed in the Court shall be confidential and shall be so kept by the Registrar.
The person who intends to adopt a child will be named as the applicant(s).
According to section 2 of the Adoption Act “applicant” refers to 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,
The application for an adoption order is usually made by two spouses jointly in one application. This is mentioned in section 3 (2) of Adoption Act.
Where an application for an adoption order is made by two spouses jointly, the Court may make the order authorizing the two spouses jointly to adopt, but except as provided, no adoption order shall be made authorizing more than one person to adopt a child.
According to section 2 of the Adoption Act adopted child means means “a child who has been authorized by the Court to be adopted or readopted;.
What are the conditions for the applicants to comply to adopt a child?
The conditions for an adoption order have been laid out under section 4 of Adoption act as follows for the applicant and/or applicants before filing their application.
The applicant has attained the age of twenty-five (25) or at least twenty-one years older than the child they intend to appoint. If the ages mentioned are below than that, it is the discretion of the court for making the adoption order under special circumstances
(b) has attained the age of twenty-one and is a relative of the child; or
is the mother or father of the child.
One has to take into account that if the applicant is a male and intends to adopt a female child the adoption order shall not be made as accordance with section 4 (2) Adoption Act
(2) An adoption order shall 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 an order.
Once the application has been filed, there will be two (2) hearings fixed for the adoption. The first hearing is to appoint guardian ad litem. Guardian ad litem will be appointed by the court from The Social Welfare Officer (Jabatan Kebajikan Masyarakat) is responsible for examining the accuracy of the information provided in the application and assessing the resources and situation of the applicants seeking to adopt. The second hearing is for the court to give the final verdict on the adoption order based on the report given by the Social Welfare Officer.
Section 12 of the Adoption Act is specified as below:-
Appointment of guardian ad litem: persons to be respondents and service
Section 12. (1) Whenever an application for an adoption order is made to the Court, the Court shall appoint a guardian ad litem of the child in respect of whom the application is made, and upon such appointment the duplicate of the form mentioned in subsection 11(1) shall be delivered to the guardian ad litem.
The appointed guardian ad-litem will be named as Respondent in the application as prescribed by section 12 (2) of the Adoption Act:
(2) The following persons or bodies shall be made respondents, namely, the child in respect of whom the application is made, the guardian ad litem of the child, every person who is a parent or guardian of the child or who is liable to contribute to the support of the child, and, where the applicant has a spouse who is not also an applicant, the spouse of the applicant: Provided that no person whose consent has been dispensed with in accordance with section 5 shall be made a respondent.
Upon the guardian ad-litem has been appointed the court will direct to serve the cause papers to the Respondents (namely, the biological parent(s), guardian ad-litem and the kids) named in the application.
Upon the service of the documents deemed successful. During the second hearing, the court will give the final verdict on the adoption order based on the report given by the Social Welfare Officer.