Adoption in Malaysia: Can consent be dispensed by the natural (birth) parents?

Every child deserves to grow up in an environment filled with love, care, and stability.

Adoption is a profound and life-changing journey for both the child and the adoptive parents. It offers children the opportunity to be raised in a safe, nurturing home when their biological families are unable to provide the care they need. Because of the lasting impact adoption has on a child’s life, the process must be handled with the utmost care, responsibility, and ethical consideration.

One of the most crucial aspects of adoption in Malaysia is consent. As a general rule, the consent of a child’s biological (or natural) parents is required to ensure that the adoption is carried out lawfully and in the best interests of the child. This requirement reflects the seriousness of permanently transferring parental rights and responsibilities.

However, there are circumstances where obtaining such consent is not possible or would not serve the welfare of the child. In these situations, the law allows for what is known as the dispensation of consent. This occurs when the court grants permission for an adoption to proceed even without the consent of the biological parents.

In this article, we explore the circumstances under which the Malaysian courts may dispense with the consent of the natural parents, and the legal principles that guide these decisions—always with the child’s best interests at heart.

Children deserve a stable and loving environment

GROUND 1 FOR DISPENSATION OF CONSENT IN ADOPTION: Abandoned, Neglected, Persistently Ill Treated The Child

Where a child has been abandoned, neglected, or persistently ill-treated by their biological parents, the court may determine that it is in the best interests of the child for an adoption to proceed without the parents’ consent. If the biological parents have shown no genuine intention to reclaim, care for, or maintain a relationship with the child, the court may dispense with their consent.

It is important to note that the term “neglect” does not automatically equate to irresponsible parenting. Legally, neglect refers to situations where a child remains under the care and responsibility of a parent, yet the parent has failed to make adequate provisions for the child, either personally or through a caregiver such as a helper or family member. This failure results in the child being left in a state of neglect, whether physically, emotionally, or medically.

In cases where the biological parents are unknown—such as when a child is abandoned or found as a newborn without identification, the court may find that obtaining consent is impossible. In such circumstances, reasonable efforts must first be made to locate the biological parents or guardians, which may include the publication of public notices. Where these efforts are unsuccessful, the court may allow the adoption to proceed without parental consent.

GROUND 2 FOR DISPENSATION OF CONSENT IN ADOPTION: Consent Is Unreasonably Withheld

The determination of whether consent has been unreasonably withheld is assessed using an objective test i.e. the reasonableness test. What is considered reasonable or unreasonable depends on the facts of each case, and the court must examine the totality of the evidence before it.

In applying this test, the court considers the perspective of a hypothetical reasonable parent. The key question is whether a reasonable parent, in similar circumstances, would withhold consent. In doing so, the court takes into account several factors, including the welfare and best interests of the child, the child’s physical and emotional needs, and the position of other parties involved, such as members of the proposed adoptive family.

Where the evidence demonstrates serious neglect, lack of care, or failure to attend to the child’s medical or developmental needs, the court may conclude that the refusal of consent by the natural parents is unreasonable. In such cases, the court may dispense with the requirement for parental consent to allow the adoption to proceed.

GROUND 3 FOR DISPENSATION OF CONSENT IN ADOPTION: Incapable Of Giving Consent.

The court may also dispense with consent where the biological parents are incapable of providing informed consent.

If both biological parents are deceased, the requirement for consent is automatically waived, allowing the adoption process to move forward. Even then, the court will continue to assess whether the proposed adoption serves the best interests of the child.

Similarly, where one or both biological parents are mentally or physically incapacitated and unable to understand the nature and consequences of adoption, the court may grant dispensation. For instance, a parent suffering from a severe mental illness that impairs their decision-making capacity may be deemed incapable of providing meaningful consent.

Conclusion

In summary, Malaysian adoption law allows for the dispensation of parental consent in specific and carefully defined circumstances, including abandonment, neglect, unreasonable withholding of consent, incapacity, or where biological parents cannot be located. In every case, the court’s primary duty is to safeguard the best interests and welfare of the child.

Ultimately, adoption offers children the opportunity to grow up in a loving, stable, and secure environment. Through the careful application of the law, the courts ensure that children in need are given the chance to belong to families who can provide them with care, protection, and a hopeful future.

Should you have any queries regarding adoption in Malaysia, please do not hesitate to contact us via WhatsApp at +6012 5325660 or email info@piyalawchambers.com.