Malaysia has a dual system of justice in relation to family and personal law. Civil law governs non-Muslims and is administered in the civil courts, whereas Sharia or Islamic law governs Muslims and is administered in the Sharia or religious courts. For the purposes of this guide, only the law governing non-Muslims will be discussed.

There are several statutes governing parental responsibility in Malaysia.

Guardianship of Infants Act 1961

Section 5 of the Guardianship of Infants Act 1961 (GIA), by way of an amendment on 1 October 1999, accords both the father and the mother equal parental rights over their infant children. Prior to the amendment, Section 5 provided that it was only the father who was to be the guardian of an infant’s person and property, though the court might exercise its power under Section 10 to remove the father’s guardianship rights and appoint the mother as guardian, subject to welfare considerations. The GIA defines an ‘infant’ as a person who has not attained his or her majority (ie, 18 years of age).

The guardian of the person of an infant shall have the custody of the infant and shall be responsible for his or her support, health and education.

In the landmark case of Sean O’Casey Patterson v Chan Hoong Poh & 4 Ors [2011] 3 CLJ 722 (“Sean O’Casey”), the Federal Court (Malaysia’s apex court) held that the GIA applies to both legitimate and illegitimate children, overturning earlier decisions which ruled that it only applied to legitimate children.

Law Reform (Marriage & Divorce) Act 1976

Under the Law Reform (Marriage & Divorce) Act 1976 (LRA), the court can make orders for custody, care and control, and access. The parent given ‘custody’ is conferred the right to make decisions relating to, for example, the child’s upbringing, education and healthcare. ‘Care and control’ denotes the day-to-day care or physical possession of the child, and ‘access’ comprises contact arrangements for the parent deprived of custody, care and control.

The LRA applies only where there is a marriage. However a ‘child of the marriage’ as defined by Section 2 of the LRA means not only a child of both parties to the marriage, but also a child of one party to the marriage accepted as one of the family by the other party, and includes an illegitimate child of, and a child adopted by, either of the parties to the marriage.

Courts of Judicature Act 1964

Under the Courts of Judicature Act 1964 (CJA), the court has jurisdiction to appoint and control guardians of infants and jurisdiction generally over the person and property of infants.

Court’s inherent power

The court also retains a supervisory and inherent power as parens patriae, ie, the ultimate parent to protect all children within Malaysia who lack legal competence.

A birth mother automatically obtains parental responsibility in that she will automatically have guardianship, custody, care and control of any child she gives birth to, whether or not the child is genetically hers. It will be her name that will be registered on the child’s birth certificate as the child’s legal mother.

If the parents are married

A man who is married to the child’s mother obtains parental responsibility without proof of paternity (please see 1.5 Relevance of Marriage at Point of Conception or Birth).

If the parents are unmarried

A man who is not married to the child’s mother obtains parental responsibility if his name is stated on the child’s birth certificate as the child’s father. He must acknowledge himself to be the father of the child and sign the Register of Births and Deaths together with the mother before the Registrar of Births and Deaths will enter his name as the father of the child (Section 13, Births and Deaths Registration Act 1957).

Prior to Sean O’Casey, the courts applied the law according to Section 24(d) of the CJA and Section 27 of the Civil Law Act 1956 (CLA) where English common law as at the coming into force of the CLA (7 April 1956 for West Malaysia and 1 April 1972 for Sabah and Sarawak) applied. The general rule under English common law at that time was that the biological father does not have any rights over a child of his who is born out of wedlock. The biological mother has full legal rights unless it is proven that she is unfit or immoral. Paramount in the court’s consideration is the welfare of the child.

Following the 1999 amendment to Section 5 of the GIA and the decision in Sean O’Casey, a father obtains equal parental responsibility over an illegitimate child of his, provided his name is on the child’s birth certificate.

If his name is not on the child’s birth certificate, then he would need to apply to correct or alter the child’s birth certificate or obtain a court order.

A non-genetic parent who wishes to obtain parental responsibility will need to either:

• adopt the child; or
• obtain a guardianship order under the GIA. The CJA and the CLA may also be invoked in this regard.

Section 112 of the Evidence Act 1950 (EA) provides that if a child was born during a valid marriage between a man and a woman, or within 280 days of its dissolution and the woman remains unmarried at the time of the child’s birth, then that child shall be presumed to be the legitimate child of that woman’s husband (or former husband as the case may be) unless there is proof that that woman and her husband had no (sexual) access to each other at the time the child was conceived. The said husband will thus obtain parental responsibility without proof of paternity by virtue of his marriage to the child’s mother and it will be his name that will ordinarily be entered in the child’s birth certificate when the birth of that child is being registered.

But whilst Section 112 of the EA presumes the legitimacy of the child, the Court of Appeal in CAS v MPPL & Anor [2019] 2 CLJ 454 was quick to point out that it does not bar enquiries into paternity, holding that the concepts of ‘paternity’ and ‘legitimacy’ are two distinct though admittedly interrelated concepts. Citing developments all over the world that indicate that there is a very tenable argument in the child’s interests that support his or her right to know the truth of his or her origins, the Court of Appeal went on to state that it is in the best interests of a child to know his or her biological parents.

In the same vein, a father whose name is not on the child’s birth certificate will not automatically acquire legal parental responsibility simply by proving paternity.

Malaysia does not recognise same-sex relationships or marriages. The Malaysian Penal Code still criminalises same-sex relations. It is thus not possible for same-sex couples to legally have children together or to obtain joint parental responsibility.

Malaysia enacted two pieces of legislation in the same year governing adoptions in Peninsular (West) Malaysia. East Malaysia, comprising the two states of Sabah and Sarawak, has its own adoption laws.

This section covers the adoption laws applicable in West Malaysia only, namely:

• The Registration of Adoptions Act 1952 (RAA); and
• The Adoption Act 1952 (AA).

As to the objective and purpose of two pieces of legislation being passed in the same year concerning the same subject matter, namely the adoption of children, the Federal Court in Sean O’Casey opined that the RAA was enacted to cater for Muslims according to whose personal laws adoption is repugnant yet it is common practice for Muslims in this country to ‘adopt’ a child. Thus in order to legitimise such customary practices, the adoption could be registered under the RAA to safeguard the adoptive parents’ rights to custody of the child.

Adoptions under the RAA

Adoptions under the RAA are carried out through the National Registration Department of Malaysia (NRD). The prospective adoptive parents, who can be either Muslims or non-Muslims, will need to have brought up, maintained and educated the child for at least two years before they may apply to register the adoption with the NRD.

The RAA does not provide any form of legal status to the adopted child. It merely provides for the registration of a de facto adoption and recognises the right of the adoptive parents to custody of the adopted child and their continuing responsibilities to care for, maintain and educate the child. The natural parents’ rights remain as conferred by law and are not severed. A child adopted under the RAA will have no rights of inheritance if his or her adoptive parents die intestate, though it could be argued that he or she would be entitled to apply for a provision as a dependant under the Inheritance (Family Provision) Act 1971.

Adoptions under the AA

Adoptions under the AA, which apply to non-Muslims only, are adoptions made through the court process and must meet the following, more stringent requirements:

Preconditions

• The applicant, or in the case of a joint application one of the applicants, has attained the age of 25 years and is at least 21 years older than the child whom he or she proposes to adopt;
• 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;
• The applicant(s) must be ordinarily resident in West Malaysia and the child must also be so resident;
• The child must have been in the continuous care and possession of the applicant(s) for at least three consecutive months immediately preceding the date of the adoption order; and
• The applicant(s) must have given written notification to the Social Welfare Department in the state he or she is for the time being resident of his or her intention to apply for an adoption order at least three months before the adoption order. The court will appoint a guardian ad litem for the child who will usually be an officer from the Social Welfare Department. The guardian ad litem is required to investigate as fully as possible all the circumstances of the child and the applicant(s), and all other matters relevant to the proposed adoption, in order to safeguard the interests of the child and provide his or her recommendation to the court as to whether an adoption order is desirable.

Consents

• The written consent of every person or body of persons who is a parent or guardian of the child or who is liable to contribute to the support of the child must be obtained. This is usually the mother and father of the child named in the child’s birth certificate. If only the mother’s name appears on the child’s birth certificate, then the consent of the biological father is not required;
• Consent may be dispensed with if the court is satisfied that the parent(s) or guardian(s) of the child has/have abandoned, neglected or persistently ill-treated the child; and
• The consent of the applicant’s spouse is also required unless the application is made jointly.

Once an adoption order is granted, a replacement birth certificate will be issued which names the adoptive parent(s) as the child’s new parent(s). A child adopted under the AA is deemed to be a child born to the adoptive parent, or parents in lawful wedlock.

Where one parent wishes to move a child of the family permanently out of the family home to a new country, the consent of the other parent needs to be obtained unless the relocating parent has been granted (by a court of law) sole guardianship, custody, care and control of the child. The parent granted sole custody, care and control is entitled to take the child to reside wherever that parent wishes. In other words, the child follows the custodial parent.

However, custodial orders almost always make provision for access to the non-custodial or non-resident parent and may, if sought by the non-custodial parent, contain a condition prohibiting the custodial parent from taking the child out of Malaysia without the non-custodial parent’s consent.

If the required consent is not obtained, the relocating parent will need to make an application to court for permission to remove the child from the jurisdiction of Malaysia to reside in another jurisdiction.

There are no reported cases drawing a distinction between nearby relocations, or relocations to a location that is some distance away within the same state, or to another location in a separate state within the same jurisdiction. Note, however, that Peninsular (West) Malaysia is separated by about 640 km (400 miles) from East Malaysia, which sits on the island of Borneo, by the South China Sea, and is realistically accessible only by air. Thus a relocation between East and West Malaysia could be considered as being akin to a relocation ‘overseas’.

The court will still apply the principles as set out in Teh Eng Kim, FC and Low Swee Siong, CA (please see 2.3.1 Factors Determining an Application for Relocation). The author’s view is that the farther away the new location, the more stringent the safeguards that may be put in place to secure the rights of access (contact rights) of the “left behind” parent.

It would be wrongful for a parent to take a child out of jurisdiction without the consent of the other parent:

• if the parent removing that child does not have sole parental responsibility over that child; and/or
• where there is in force a court order prohibiting the removal of that child from jurisdiction without the consent of the other parent or without leave of court.

If a child has been removed from jurisdiction without the relevant consent, then the “left behind” parent should, amongst other things:

• Lodge a police report immediately;
• Engage a lawyer with experience in international or cross-border family law disputes who will be able to guide and explore legal options with the “left behind” parent both locally and internationally. If the “left behind” parent knows where the child might have been taken to, then his or her local lawyer should be able to connect that parent to lawyers in the other country and co-ordinate efforts in both jurisdictions. In some cases, the “left behind” parent may need to apply to court urgently for an order seeking the child’s return. As to the court in which country the application ought to be filed, it would depend on the law and legal procedures in each of the two jurisdictions. It is therefore advisable for a “left behind” parent to consult specialist lawyers in both jurisdictions who can, collaborating together, advise as to which would provide the more effective and efficient remedy;
• Collect all documentation such as birth certificates and court orders, in particular the child custody order or child arrangements order (if any), and record and keep records of all communications with the other parent and the circumstances surrounding the removal; and
• If the child or either of his or her parents are citizens of another country (ie, non-Malaysian), the “left behind” parent should also notify his or her embassy or consulate locally, which may be able to provide assistance and guidance and liaise with authorities in his or her home country.

These steps should be taken regardless of whether the child has been removed to a country which is a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”) or to a non-Hague Convention country.

Malaysia is not a signatory to the Hague Convention.

Malaysia is not a signatory to the Hague Convention. There is therefore no mechanism in place for the immediate return of children ‘abducted’ to or from Malaysia.

The Malaysian court has jurisdiction to deal with children and accord them protection for as long as they are physically present in this country. If there is a foreign order for the return of a child who has been removed from a foreign country to Malaysia, the Malaysian court will consider that order but is not bound by it and is entitled to hear the merits afresh and make its own decision applying Malaysian law, after a consideration of welfare issues.

The parent of a child removed to Malaysia from a foreign country can apply to the Malaysian court seeking an order for guardianship, custody, care and control of the child and for the child’s return to his or her country of origin.

The procedure would be by way of the filing of an originating summons in the High Court supported by an affidavit by the applicant setting out, amongst other things, the reasons for the application. If there is a foreign court order that the applicant wishes the Malaysian court to consider, that court order should be attached to the applicant’s supporting affidavit. The Malaysian court in deciding such an application will have regard to what is in the child’s best interests and apply the principles enunciated in Teh Eng Kim, FC and Low Swee Siong, CA (please see 2.3.1 Factors Determining an Application for Relocation).

The identity of the country from where the child has been taken will not affect the principles the court applies.

As to the costs and time scale for an application for the return of the child, please see 2.3.8 Costs of an Application for Relocation and 2.3.9 Time Taken by an Application for Relocation.