• Dato Dr. Arunan Selvaraj

Adoption

Updated: Jun 26, 2018

The Essentials of Adopting A Child in Malaysia

The adoption of child is an act that transcends humanity. For some, adopting a child is a very personal matter. For the rest, adoption of a child seems to be a taboo topic, often interwoven with cultural and societal perspectives. Regardless, one must always remember that while it is a benevolent to adopt a child, there are rules that those individuals must strictly adhere in order to legalise the adoption of a child.


When a couple adopts a child, they are bringing in the child into as their family member who has rights over that couple’s property and estate and vice versa. Suffice to say that when a child is adopted into the family, that child has all the rights similar to that of a biological child.


Who is a Child?

Legally, a child is defined as an individual who is below the age of 18 years old. However, in most situations, a child is usually adopted at a very young age or at their stage of infancy so that the child would be able to adapt easily to the new environment.


Who can adopt a child?

The answer to the above, generally is that anyone can adopt a child; so long as they are able to fulfill certain requirements by law. First and foremost, the individual who seeks to adopt a child must be a Malaysian-born individual or a person who is a resident and domiciled in Malaysia. This means any individual who seeks to adopt a child must prove that they are domiciled in Malaysia.


Secondly, that individual must be someone who is aged 25 years old at the time of making the application to adopt the child. The reasoning behind this rule is that to ensure that the age gap between the child that is being adopted and the person who is making the adoption is at least 25 years which is a reasonable age for any particular individual to be a parent. This age requirement is justified by the fact that the burden of raising a child, whether a biological or an adopted, is difficult to shoulder hence it is the common presumption in law that anyone who is aged 25 years and above, should be or reasonably understood to duly discharge parental duties to the child.


However there is an exception to the above rule. The exception to this rule is that a 21 year old individual is allowed to make an application to adopt a child, provided, he or she is a relative of the child. For example, let’s say if a child loses his or her parents, then the paternal or maternal siblings may make an application to adopt that child.


The next requirement is that the individual should have already been taking care of the child for at least 3 months before they make an application to the court to adopt the child. This is to ensure that the child is already familiar with the person who wants to adopt him or her.


The adoption requirements

Once the person has fulfilled the above mentioned requirements, there are certain other requirements pertaining to the process of the adoption itself. The first step is to obtain permission from the parents of the child that they seek to adopt. In this circumstance, the permission can be obtained from both the parents or one of the parent from the child. However, if the child concerned does not have parents, then the individual must obtain permission from the guardian of the child who can be relative of the child or a welfare officer.


However, if the individual fails to obtain permission from the child’s parents or guardian, then he or she may be apply to the court to waiver that requirement provided that he or she can prove to the court that the parents or guardian of the child cannot be traced or are unreasonably holding back their permission to the applicant. Of course, the court shall thereafter decide that whether based on the circumstances of the case, to waive the requirement or otherwise.


The Court process in adoption procedure

Once the application is made, the Court before deciding as whether to grant the applicant the adoption order, will in the interim appoint a guardian who will be given the duties to investigate all possible circumstances of the child and the applicant with regards to all matters related to the proposed adoption, the applicant’s job and income, the living circumstances of the applicant, the applicant’s health, so on and so forth.


The appointed guardian shall duly discharge his or her appointed duties and responsibilities by producing a report which would help the Court to make the necessary assessment of the application before granting the order of adoption to the applicant.


The court’s powers to grant orders other than an adoption order

The court, on application for adoption before, has the power and jurisdiction to grant the order as per the application itself; but that is not in itself means that the court cannot give any other orders.


There are various order that a court can make pertaining to any application for adoption. For example, the court may order that the applicants to take care of the child on a probation period not more than 2 years to see how the applicants are caring for the child. In granting such an order, the court may consider a guardian who is in most circumstances a welfare officer to overlook the applicants in that interim period.


The reasoning behind such an order is quite simple; as it is well known, parenting is not an easy task and not every individual are capable of being responsible parents. This is a more pertinent issue when the child is an orphan or a child whose parents cannot afford to raise due to their own difficulties. In the latter situation, the parents would want nothing but the best to be given to their child because of they are incapable of doing so.


Suffice to say that when a child is put up for adoption, it is a risky territory where the future and the welfare of the child is in question. Hence, the law takes it upon itself to protect the child for the benefit of the child’s future and his or her welfare. That is the reason why the law is very stringent on the requirements of adopting a child.


The Order of Adoption

Once the Court grants the order of adoption, the Registrar will make an entry in the register of adoption and the applicant shall proceed to apply for the birth certificate of the child. It shall be noted that the status of adoption will not appear in the child’s birth certificate. Furthermore, the name of the child would also be changed to reflect the name of the parents who adopted him, and in cases where there is a family surname, the child’s name would also carry the family surname.


This where once the legalities ends, a new phase in the life of the child begins.

The child now is officially part of a family. He or she has parents, in some cases siblings, and every other relationship in a family that binds to that child as if he or she was born into that family. In law, the child is recognised to have rights upon his parent’s estate as a beneficiary as well as trusts.


Above and beyond, the future of the child is now guaranteed as much as their welfare is.

And sometimes we have to wonder, it is more than just adopting a child.


It is about giving hope and making in a difference in a life.



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