November 01 2011
In O'Casey Patterson v Chan(1) the Federal Court held that an adoption granted with the consent of one biological parent without the consent of the other, although the second parent was living, was nonetheless valid.
The appellant married the first respondent in Las Vegas in 1998. Shortly thereafter, the first respondent gave birth to the appellant's son (J) in Kuala Lumpur. Unbeknown to the appellant, when the first respondent met him she was already married to a Malaysian known as JK. The appellant later came to know that J's birth certificate stated the father as BVK (with whom the first respondent had had a previous relationship). The DNA profiling test confirmed that the appellant was the biological father of J.
The appellant applied to the National Registration Department to rectify the father's name on J's birth certificate. The appellant thereby discovered that his wife's sister had adopted J under the Registration of Adoption Act 1952. His wife's sister was a Muslim and had converted J to Islam. The appellant therefore sought declaration that:
The High Court allowed the declaration that the appellant is the natural father of J and that the birth certificate of J be rectified to reflect this. The other requests were dismissed. Upon appeal to the Court of Appeal, the High Court's order in allowing the birth certificate of J to be rectified was reversed. The appellant appealed to the Federal Court.
The questions posed for the determination of the Federal Court were:
The Federal Court held that the consent of the appellant father was not relevant for the purposes of registration for adoption, as at the time the application was made the appellant was not known or confirmed to be the father of J.
The court further found that the wording 'the parents or one of the parents' that appears in Section 6(1) of the act is clear, indicating that any one parent, without the need to prove that the other is either dead or cannot be found, may give unilateral consent to the adoption.
The court held that the legal rights of the biological father remain notwithstanding the adoption of the child, since adoption conferred only the right of custody, care, maintenance and education on the adoptive parents. However, the question of what rights are left to the biological parent was never answered. When confronted with the argument that this must mean that the right to determine the religion of the child rests with the biological father, the court sidestepped the issue by saying that it was not reflected in the questions posed to the court, under which leave to appeal was granted.
The appeal was dismissed with costs with the consolation that the biological father was restored to the birth register as the lawful father.
The case is important for three reasons:
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Wye Wah Wong