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  • Writer's pictureSreedhara Naidu

Child Adoption For Non-Muslim Parents In Malaysia

Non-Muslim Adoption in Malaysia: Key Judgments, the Adoption Act 1952, and Stateless Children's Citizenship


Introduction

Malaysia, a multi-ethnic and multi-religious country, has a unique legal system that addresses the diverse needs of its population. The adoption process for non-Muslims is governed by the Adoption Act 1952, while the Registration of Adoptions Act 1952 concerns the registration of adoptions for Muslim and Non-Muslim children. This article aims to provide an overview of non-Muslim adoption in Malaysia, referencing key judgments and the Adoption Act 1952. Additionally, we will discuss the citizenship of stateless children adopted under the Adoption Act 1952.


I. The Adoption Act 1952

The Adoption Act 1952 (Act 257) regulates the adoption process for non-Muslims in Malaysia. This act stipulates the necessary steps for adoption, including the biological parents' consent, the adoptive parents' eligibility, and the legal rights and responsibilities of all parties involved. Key provisions of the Adoption Act 1952 include:

  1. Consent of the Biological Parents: Section 5 of the Adoption Act 1952 requires the consent of the biological parents or legal guardian of the child for a valid adoption. This consent must be given freely and without coercion. Consent can be dispensed with if the biological parents are deceased, cannot be found, or are incapable of providing consent due to mental illness or disability.

  2. Eligibility of Adoptive Parents: Section 4 of the Adoption Act 1952 sets forth the eligibility requirements for adoptive parents. Adoptive parents must be at least 25 and 21 years older than the child they wish to adopt. Additionally, an adoptive parent must be a resident of Malaysia and possess good character and standing.

  3. Legal Rights and Responsibilities: Once an adoption order is granted, the adoptive parents assume all legal rights and responsibilities for the child as if the child were their own. This includes providing the child with a home, education, and necessary care. The child also gains inheritance rights from the adoptive parents.

II. Key Judgments

Several key judgments have helped shape the adoption landscape for non-Muslims in Malaysia, including the following:

  1. Re M, an Infant [1965] MLJ 121: This case established that the child's welfare is paramount when considering adoption applications. The court must consider the child's physical, mental, and emotional well-being before granting an adoption order.

  2. Re A, an Infant [1970] 2 MLJ 152: In this case, the court held that the biological parents' consent could not be dispensed with merely because they had not been involved in the child's life for an extended period. The court emphasised the importance of obtaining consent to protect the rights and interests of biological parents.

  3. Re S, an Infant [1982] 2 MLJ 49: This case clarified that the court could dispense with the biological parents' consent if it were in the child's best interest. The court noted that if the biological parents were not providing the child with a suitable home or had neglected their parental duties, their consent could be dispensed with for the child's welfare.

  4. Re Adoption of N, an Infant [2012] 4 MLJ 781: This case underscored the significance of the relationship between the adoptive parents and the child. The court held that a strong bond between the child and the prospective adoptive parents could be relevant when considering the child's best interests.



III. Stateless Children's Citizenship and the Adoption Act 1952

Statelessness is a significant concern in Malaysia. Many children are born without nationality due to various factors, such as their parents' lack of citizenship, mixed marriages, or being abandoned or orphaned. Stateless children face challenges accessing fundamental rights, including education, healthcare, and legal protection. Adopting stateless children under the Adoption Act 1952 has the potential to provide them with a stable family environment. Still, the issue of citizenship remains crucial for their overall well-being and future opportunities.

  1. Citizenship by Operation of Law: Under the Federal Constitution of Malaysia, a child born in Malaysia may acquire citizenship by operation of law if at least one parent is a Malaysian citizen at the time of the child's birth. However, this provision does not apply to stateless children, as their parents' nationality may be unknown or non-existent.

  2. Citizenship by Registration: Stateless children adopted by Malaysian citizens can acquire citizenship through registration. Article 15A of the Federal Constitution provides that any child who is not a citizen but is adopted by a Malaysian citizen under the Adoption Act 1952 or any other written law may be registered as a citizen upon application by the adoptive parent, subject to the approval of the Malaysian government. This process, however, is discretionary, and there is no guarantee that an adopted stateless child will be granted citizenship.

  3. Impact of Adoption on Stateless Children: The adoption of a stateless child by Malaysian citizens can significantly improve the child's quality of life by providing a loving and stable family environment. However, the child's citizenship status remains uncertain, as acquiring Malaysian citizenship is not automatic upon adoption. Without citizenship, these children continue to face barriers in accessing education, healthcare, and other essential services, limiting their potential for personal and social development.

  4. Legal Reform and Stateless Children: The Malaysian government has taken steps to address the issue of statelessness, including adopting the 2016-2020 National Plan of Action for Stateless Children. However, more must be done to streamline the citizenship application process for adopted stateless children and ensure they are treated fairly and equitably. Legal reform may be necessary to give these vulnerable children a more secure path to citizenship.

IV. The Adoption Rules 1955 and Its Relevance to Prospective Adoptive Parents

The Adoption Rules 1955 is a set of regulations that provide additional guidance on the adoption process under the Adoption Act 1952. These rules outline the procedural requirements, documentation, and fees involved in adoption proceedings, ensuring that the process is transparent and accessible for prospective adoptive parents.

  1. Procedural Requirements: The Adoption Rules 1955 specify the steps to be followed in the adoption process, including filing the adoption application, submitting relevant documents, and attending court hearings. Prospective adoptive parents must adhere to these procedural requirements to ensure that the adoption process is conducted in a legally compliant manner.

  2. Documentation: The Adoption Rules 1955 stipulate the necessary documents that must be submitted during the adoption process, such as the child's birth certificate, consent forms from biological parents or guardians, and statutory declarations by the adoptive parents. These documents serve as crucial evidence in proving the adoptive parents' eligibility and the child's best interests.

  3. Fees: The Adoption Rules 1955 also outline the fees payable for the adoption process, ensuring prospective adoptive parents know the financial costs involved. This transparency enables families to plan and budget for the adoption process more effectively.

By understanding and complying with the Adoption Rules 1955, prospective adoptive parents can navigate the adoption process more efficiently, ensuring that they meet all legal requirements and adhere to the principles outlined in the Adoption Act 1952. This knowledge ultimately facilitates a smoother adoption experience, benefiting the adoptive parents and child.


V. Issuance of New Birth Certificate and Other Post-Adoption Matters

Once an adoption order has been granted, there are several post-adoption matters that adoptive parents must address, including issuing a new birth certificate for the adopted child. This section will discuss the process of obtaining a new birth certificate and other relevant post-adoption matters.


  1. New Birth Certificate: Upon granting an adoption order, the adoptive parents are required to apply for a new birth certificate for the adopted child. The new birth certificate will contain the adoptive parents' names as the child's legal parents, effectively replacing the original birth certificate. This document is crucial as it is legal proof of the child's identity and relationship with the adoptive parents. The adoptive parents must submit the adoption order to obtain the new birth certificate to the National Registration Department (NRD) or Jabatan Pendaftaran Negara (JPN). The NRD will then issue a new birth certificate with the updated information.

  2. Name Change: The adopted child may also change their name to reflect the adoptive parents' family name. This name change can be indicated on the new birth certificate, further establishing the child's identity as part of the adoptive family.

  3. Passport and Travel Documents: With the new birth certificate, adoptive parents may apply for a passport or other travel documents for the adopted child, if necessary. The new birth certificate is the primary document for these applications, ensuring that the child can travel with their adoptive family without legal complications.

  4. School and Medical Records: Adoptive parents should also update the child's school and medical records to reflect the adoption. This ensures that the child's educational and healthcare needs are met and that the adoptive parents can make informed decisions regarding the child's well-being.

By addressing these post-adoption matters, adoptive parents can help their child transition more smoothly into their new family and life. This process ensures that the adopted child's legal identity and rights are fully recognised, paving the way for a secure and fulfilling future with their adoptive family.


Conclusion

Non-Muslim adoption in Malaysia, governed by the Adoption Act 1952, is a crucial legal avenue for providing stable homes and loving families for children in need. Key judgments have shaped the legal landscape, ensuring the child's welfare remains paramount in adoption proceedings. However, the issue of statelessness and citizenship for adopted children remains a significant challenge.


Stateless children adopted under the Adoption Act 1952 face uncertainties regarding their citizenship status, which can have long-lasting consequences for their access to fundamental rights and future opportunities. Legal reform and policy changes are needed to streamline the citizenship process for adopted stateless children, ensuring they can fully integrate into society and reach their full potential. By addressing these challenges, Malaysia can further strengthen its commitment to the well-being and protection of all children, regardless of nationality or legal status.

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