Adoption – Doing It Right

under the Act, the only person or body that can make any arrangements for adoption of a child is the Department of Social Welfare. The other non-governmental agency that has made arrangements for adoption is the Assunta Hospital’s Sister’s Project that has been active since 1966. This organisaton is affiliated to the Social Welfare Department. In practice, however, the Department of Social Welfare does not prevent any organisation or individuals from making arrangements for adoption of a child.Who can adopt? The Applicant:

1. has attained the age of 25 and is at least 21 years older than the child;
2. has attained the age of 21 and is a relative of the child; or
3. is the mother or father of the child.
   The Applicant (potential adoptive parents) and the child must be ordinary residents in West Malaysia.
   The Act prohibits West Malaysians from adopting children who are not ordinarily residents in West Malaysia. “Ordinary resident” means that the residence is not casual and uncertain and of a sufficient duration and continuity to satisfy the requirement of ordinary residence.

Consent

Before an adoption order is made the courts must be satisfied that the consent of every person who is the parent or guardian or a person liable to contribute to the support of the child is obtained.
Consent may be dispensed with under certain conditions – the usual ones being, when the parent or guardian of the child has abandoned, neglected or persistently ill- treated the child; or where the person whose consent is required cannot be found or is incapable of giving his consent; or where his consent is unreasonably withheld.
In the case of children born out of wedlock, a letter of consent by the natural mother of the child is often deemed sufficient by the courts where the father of the child cannot be traced.
It is expedient that once the child is a candidate for adoption, consent should be obtained immediately from the natural parent/s and the child handed over to the Applicants for continuous care and possession.
Because of the strong emotional bonds between the natural mother and the child, it is also advisable that the whereabouts of the child be hidden from the natural mother and no further contacts be forged thereafter.
Before an adoption order is made the court must primarily be satisfied that:

1. consent has been obtained from every person whose consent is necessary (except where consent has been dispensed with) and that the person understands the nature and effect of the adoption order which will permanently deprive him or her of his/her parental rights; and
2. it will be for the welfare of the child.

Adoption Procedure

1. The Applicants file an Adoption Petition either in the High Court or Sessions Court of Malaya. The Petition is supported by an affidavit sworn by the Applicants to affirm the truthfulness of the statements made in the Petition to adopt. The Letter of Consent from the natural parent/s or guardian is also filed in court. In practice, an Application to dispense with the attendance in court by the naturalparents/ guardian is filed simultaneously so that they are spared the trauma of coming to court.
2. The Petition has to be served on all relevant parties including the Social Welfare Department.
3. The court fixes a hearing date where the Applicants, the child and the Social Welfare officer have to be present.
4. At the first court attendance, if the court is satisfied that an Adoption Order be made in favour of the Applicants, the court shall initially make an Interim Order and appoint the Social Welfare officer as the guardian ad litem of the child.It is the duty of the guardian ad litem to investigate as fully as possible all the circumstances of the child and the Applicants and all other matters relevant to the proposed adoption in order to safeguard the interests of the child before the court. The guardian ad litem will visit the Applicants to interview them and see the child in his home environment. In particular, the guardian ad litem has to investigate whether the means and status of the Applicants are sufficient to maintain and bring up the child suitably and that the adoption is desirable for the welfare of the child. The report of the guardian ad litem is confidential and crucial to the court to assist the court to arrive at its decision. When a guardian ad litem is appointed by the court, the court will then fix a hearing date for the Petition. This is normally three months from the date of the first court attendance by all parties so as to allow the guardian ad litem time to complete his investigations.
5. At the second court attendance, which is the hearing date of the Petition, in the presence of all parties concerned, the court would consider the report of the guardian ad litem – who would have interviewed the Applicants directly (if necessary) and seen the child – and based on all these factors, make a decision for a Final Order for adoption.
6. After the Final Order is granted, the court will then write to the National Registration Department authorising them to issue the birth certificate for the child pursuant to the order by the court. It must be stressed that our Adoption Act has been amended so that the birth certificate of the child does not carry the word “adopted” like in the past. Instead, the duly issued birth certificate is similar to that of a natural born child. The adoptive father and mother of the child appear on the birth certificate as the child’s natural parents and the child’s name is as given by the adoptive parents. Therefore Applicants should not worry that the grown-up child may discover the adoption from the birth certificate.
7. An Adoption Order once made operates to transfer all rights, duties, obligations and liabilities of the natural parent/guardian to the adopter as if the child was born to the adopter in lawful wedlock. This further means that the adopted child has the right to inheritance of properties as that of the natural-born child of the adopter.The whole process of adoption until getting the birth certificate takes about five to six months, provided all the above -mentioned conditions are satisfied.