Protection of Rights of Adopted Children in Relation to Duties of Adoptive Parents Under the Law in Malaysia

Abstract

The relationship between parents and children can be established either through “blood,” marriage, or adoption. This relationship gives rise to certain rights and obligations. This article seeks to examine the protection of those rights of adopted children under the law in Malaysia and to evaluate the extent to which the law protects the rights of adopted children. This article will also examine whether the law in Malaysia imposes certain duties on the adoptive parents in fulfilling such rights.

KEYWORDS:

• adopted child
• adoptive parents
• child protection
• Islamic law
• rights

Acknowledgments

This article is a modified version of a paper presented at the Conference on Gender, Family Responsibility and Legal Change, Sussex Law School, University of Sussex, Brighton, United Kingdom, July 10–12, 2008. This research is funded by Research Management Centre (RMC), International Islamic University Malaysia (IIUM).

Notes

1. See United Nations, “Treaty Series,” Vol. 1577, p. 3, Depository Notifications C.N. 147.1993. TREATIES-5 of 15 May 1993 [amendments To Article 43(2)]; and C.N. 322. 1995. TREATIES of 7 November 1995 [amendment to article 43(2)] Convention on the Rights of the Child, http://www.un.org/Depts/Treaty/finals/ts2/newfiles/part_boo/iv_boo/iv_11.html, retrieved May 14, 2003. See also Ratification Report on the UN Convention on the Rights of the Child and Its Two Optional Protocols, updated November 20, 2000, available online at http://www.globalmarch.org/worstformsreport/ratification/uncrc.html, retrieved May 15, 2003.

2. See s. 1. The law applicable in Sabah is the Adoption Ordinance of 1960 (no. 23 of 1960), while in Sarawak, it is Adoption Ordinance (Cap 91) of the Laws of Sarawak of 1958.

3. The whole objective of the enactment seems to cater for de facto adoptions. See comment by James Foong J in Tang Kong Meng v. Zainon bte Md Zain [1995] 3 MLJ 408 at p. 414.

4. See Buang, 1995.

5. TPC v. ABU [1983] 2 MLJ 79.

6. The age of majority for Malaysian children is 18 years old. See Age of Majority Act of 1971 (Act 21) s. 2.

7. See Vide the Modification of Laws (Distribution Act of 1958) (Extension to The State of Sarawak) Order 1986, PU (A) 446/86, with effect from 12 December 1986.

8. Civil Law Act 1956, Act 67, s. 3. The significance of the date for the application of the law of England is that it is the date where the Malaysian Civil Law Act of 1956 came into force, that is, on April 7, 1956.

9. See, for example, Islamic Family Law (Selangor) Enactment, No. 2, 2003, Islamic Family Law Kelantan Enactment, No. 6, 2002, Islamic Family Law (Malacca) Enactment, No. 12, 2002.

10. See, for example, Syariah Civil Procedure Code Enactment (Selangor), 1991, s. 253(2).

11. See Masyarakat, n.d.

12. A will is the transfer of ownership of property that will take effect after death (al-Zuhaily, 1998).

13. A gift (hibah) is the transfer of ownership to the donee immediately without consideration during the lifetime of the giver (Hamdi, 1987). According to Fyzee, it is the immediate and unqualified transfer of the corpus of the property without any return (Fyzee, 1974; see also, Mohd @ Abu Hassan, 2003).

14. Awrah basically refers to certain part of the body that should be covered. Women have to cover the whole body except hands and face; for the men the basic awrah is for them to cover at least from the navel to the knee.

15. Suckling is a situation where a woman breastfeeds a child for period of time, and by virtue of this suckling, the foster mother and foster child will be related to one another by blood and are thus deemed legal to socialize with one another.

16. It has been suggested that there should be a single Act to govern adoption for Muslims. This proposal is made after realizing several difficulties faced by Muslims pertaining to adoption. The proposed Act should comprise the rights and responsibilities of the adopted parents in terms of maintenance, custody, inheritance rights, education, and upbringing of the adopted children and rules of interaction between the adopted children and the adoptive family (Daud, 2002). See also Bengkel Hak Dan Kedudukan Anak Angkat Mengikut Syariah Dan Perundangan Malaysia, 2002, organized by Hawa Negeri Selangor, Nazri, and Nazri Associates Sdn. Bhd., Massa magazine and YADIM.

17. See Law of Personal Status (Egypt) 1929, no. 25, as amended by law 100, 1985. See also Mahmood, 1987. See also Child Law of Egypt 1996 (Qanun al-tifl), no. 12, 1996 (Egypt). See also Murad, n.d.

18. See Law of Personal Status (Syria) 1953, Act No. 59, as amended in 1975.

19. See Law of Personal Status (Jordan) 1977, Act No. 25.

20. See Law of Personal Status (Kuwait) 1984, Act No. 51.

21. See the Code of Personal Status (Morocco) 1957–1958.

22. See Law on Family Rights, 1917–1962 (Lebanon).

23. See The Family Code 1984 (Algeria), no. 11, of 1984.

24. Law 67 of 1958 as amended by Law 69 01959. See also Mahmood (1987), p. 163.

25. See Law of Guardianship and Adoption 1958 (Tunisia), ss. 8–15. However, the author reserves further explanation on its application, as the sources might not be up to date or that the application is not a general application.

26. Al-Istilhaq means annexation or avowal of paternity (Wehr, 1980).

27. The Quran states to the effect “… Nor has He made your adopted sons your sons, surah al-Ahzab …” and “Call them by (the names of) their fathers: that is more just in the sight of Allah. But if ye know not their father's (names, call them) your brothers in faith or your Mawlas …” (Surah al-Ahzab, 4 and 5).

28. In Islamic law, a fatwa denotes a text given by a Mutti in answering a certain question or any legal ruling (hukm al-shar’i), which is clarified by a Mufti (Zaydan, 1981, p. 157). In Malaysia, it refers to “a ruling on any unsettled or controversial question of or relating to Islamic law.” The statement given by a Mufti in Malaysia will only become a fatwa when it is published in the Gazette (Shuaib, Ahmad Bustami, & Mohd Kamal, 2001, pp. 264–282). See also Administration of Islamic Law (Federal Territories) Enactment 1993, s. 34(1 and 2).