Adoption 1 LAWS OF MALAYSIA REPRINT Act 257 ADOPTION ACT 1952 Incorporating all amendments up to 1 January 2006 PUBLISHED BY THE COMMISSIONER OF LAW REVISION, MALAYSIA UNDER THE AUTHORITY OF THE REVISION OF LAWS ACT 1968 IN COLLABORATION WITH PERCETAKAN NASIONAL MALAYSIA BHD 2006 2 ADOPTION ACT 1952 First enacted ... ... ... ... ... 1952 (F.M. Ordinance No. 41 of 1952) Revised ... ... ... ... ... ... 1981 (Act 257 w.e.f. 24 December 1981) PREVIOUS REPRINT First Reprint ... ... ... ... ... 2001 3 LAWS OF MALAYSIA Act 257 ADOPTION ACT 1952 ARRANGEMENT OF SECTIONS Section 1. Short title and application 2. Interpretation 3. Power to make adoption orders 4. Restrictions on making of adoption orders 5. Consents to adoptions 6. Matters with respect to which Court to be satisfied 7. Terms and conditions of order 8. Provision as to existing de facto adoptions 9. Effect of adoption order 10. Jurisdiction 11. Procedure 12. Appointment of guardian ad litem: persons to be respondents and service 13. Duties of guardian ad litem 14. Attendance before the Court of parties: power to dispense 15. Power to examine parties separately 16. Notice of adjourned hearing 17. Power to make interim orders 18. Adoption order in respect of child previously adopted 19. Procedure for determination of application 20. Power to remove child from unsatisfactory environment 21. Costs 22. Appeal 23. Preparation of interim and adoption orders 4 ACT 257 Laws of Malaysia Section 24. Transmission of order to Registrar General 25. Adopted Children Register 25A. Certificate of Birth 26. Restriction on advertisements 27. Power of Director General of Social Welfare to delegate 28. Rules 29. Meaning of "child" in any written law relating to the distribution of intestate estates 30. Repeal 31. Act not to apply to Muslims FIRST SCHEDULE SECOND SCHEDULE Adoption 5 LAWS OF MALAYSIA Act 257 ADOPTION ACT 1952 An Act to provide for the adoption of children. [25 June 1953, L.N. 319/1953] Short title and application 1. (1) This Act may be cited as the Adoption Act 1952. (2) This Act shall apply to Peninsular Malaysia only. Interpretation 2. In this Act, unless the context otherwise requires-- "adopted child" means a child who has been authorized by the Court to be adopted or readopted; "Adopted Children Register" means the Adopted Children Register established under subsection 25(1) and includes related registers kept and maintained in computer, on microfilm or in any other form of electronic and retrievable device; "adopter" means a person authorized by an adoption order to adopt a child; "applicant" means 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; "Certificate of Birth" means a Certificate of Birth issued under this Act; "child" means an unmarried person under the age of twenty-one and includes a female under that age who has been divorced; 6 ACT 257 Laws of Malaysia "Court" means any Court having jurisdiction to make adoption orders under this Act; "Director General of Social Welfare" means the Director General of Social Welfare, Malaysia; "father" in relation to an illegitimate child means the natural father; "guardian" in relation to a child, means any person or body of persons other than its natural parents, who has custody of the child; "Peninsular Malaysia" has the meaning assigned to it in section 3 of the Interpretation Acts 1948 and 1967 [Act 388], and includes the Federal Teritory; "Registrar General" means the person appointed to be Registrar General of Births and Deaths, Malaysia, in accordance with subsection 3(1) of the Births and Deaths Registration Act 1957 [Act 299]; "relative" means a brother, sister, grandparent, uncle or aunt, whether by consanguinity or affinity, and in the case of an illegitimate child, a person who would be so related if the child were legitimate and his father; "spouse" means in relation to a woman her husband, in relation to a man of Chinese race his principal wife, and in relation to any other man his wife. Power to make adoption orders 3. (1) Upon an application made in the prescribed manner by any person desirous of being authorized to adopt a child, the Court may, subject to this Act, make an adoption order, authorizing the applicant to adopt that child. (2) 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. (3) An adoption order may be made authorizing the adoption of a child by the mother or father of the child, either alone or jointly with her or his spouse. Adoption 7 Restrictions on making of adoption orders 4. (1) An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants-- (a) has attained the age of twenty-five and is at least twenty- one years older than the child in respect of whom the application is made unless the Court is satisfied that there are special circumstances for the making of an order; (b) has attained the age of twenty-one and is a relative of the child; or (c) is the mother or father of the child. (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. (3) An adoption order shall not be made in favour of any applicant who is not ordinarily resident in Peninsular Malaysia or in respect of any child who is not so resident. (4) An adoption order shall not be made in respect of any child unless-- (a) the child has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order; and (b) the applicant has at least three months before the date of the order by a written notification informed an officer of the Social Welfare Department of the State in which he is for the time being resident of his intention to apply for an adoption order in respect of the child. Consents to adoptions 5. (1) Except as provided in this section, an adoption order shall not be made except with the consent of every person or body of persons who is a parent or guardian of the child in respect of whom 8 ACT 257 Laws of Malaysia the application is made or who is liable to contribute to the support of the child and an adoption order shall not be made upon the application of one of two spouses without the consent of the other of them: Provided that the Court may dispense with any consent required by this section if satisfied-- (a) in the case of a parent or guardian of the child, that he has abandoned, neglected or persistently ill-treated the child; (b) in the case of a person liable to contribute to the support of the child, that he has persistently neglected or refused so to contribute; (c) in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld; or (d) in any case, that in accordance with any written law relating to the adoption of children for the time being in force in any country any competent authority has given permission or granted a licence authorizing the care and possession of the child to be transferred to the applicant. (2) The Court may dispense with the consent of the spouse of an applicant for an adoption order if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving such consent or that the spouses have separated and are living apart and that the separation is likely to be permanent. (3) The consent of any person to the making of an adoption order in pursuance of an application (not being the consent of the child) may be given (either unconditionally or subject to conditions with respect to the religion in which the child is to be brought up) without knowing the identity of the applicant for the order; and where consent so given by any person is subsequently withdrawn on the ground only that the identity of the applicant is unknown that consent shall be deemed for the purposes of this section to be unnecessarily withheld. (4) While an application for an adoption is pending in any Court, any parent or guardian of the child who has signified his consent to the making of an adoption order in pursuance of the application shall not except with the leave of the Court remove the Adoption 9 child from the care and possession of the applicant; and in considering whether to grant or to refuse such leave the Court shall have regard to the welfare of the child. Matters with respect to which Court to be satisfied 6. The Court before making an adoption order shall be satisfied-- (a) that every person whose consent is necessary under this Act, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order for which application is made, and in particular in the case of any parent understands that the effect of the adoption order will be permanently to deprive him or her of his or her parental rights; (b) that the order if made will be for the welfare of the child, due consideration being for this purpose given to the w i s h e s of the child, having regard to the age and understanding of the child; (c) that neither the applicant nor the parent or guardian has received or agreed to receive, and that no person has made or given, or agreed to make or give to the applicant or the parent or the guardian any payment or other reward in consideration of the adoption except such as the Court may sanction; and (d) that there has been a substantial change in the circumstances, if it appears that the applicant has made a previous application under this Act in respect of the same child. Terms and conditions of order 7.  The Court in making an adoption order may impose such terms and conditions as the Court may think fit and in particular may require the adopter by bond or otherwise to make for the adopted child such provision, if any, as in the opinion of the Court is just and expedient. Provisions as to existing de facto adoptions 8.  Where at the date of the commencement of this Act any child