Court rules on legal rights of biological parents following adoption - International Law Office

International Law Office

Litigation - Malaysia

Court rules on legal rights of biological parents following adoption

November 01 2011

Facts
Decision
Comment


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.

Facts

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:

  • as the appellant was the biological father of J, the birth register be rectified;
  • J's adoption be declared null and void, as the consent of both biological parents had not been given;
  • the conversion of J to Islam be declared null and void; and
  • the appellant be granted sole and exclusive guardianship, custody, care and control of J.

Decision

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:

  • whether consent of the appellant or of both parents (where both are living) should be obtained for the registration for adoption of a child under the act;
  • the principle applicable by the registrar when exercising its discretion to dispense with the consent of any parent; and
  • the rights of a biological father despite the registration of the adoption of the child.

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.

Comment

The case is important for three reasons:

  • it demonstrates the continued reluctance of the Federal Court to determine issues connected with the religious conversion of children;
  • great care must be taken in framing the questions for determination on appeal, even though the questions have been recognised in Terengganu Forest Products Sdn Bhd v Cosco Container Lines Co Ltd(2) to be merely procedural in nature; and
  • the Federal Court in this case remains inclined to the view that statutory interpretation is to be approached from a literal rather than purposive standpoint.

For further information on this topic please contact Nahendran Navaratnam or Wong Wye Wah at Kadir Andri & Partners by telephone (+603 2078 2888), fax (+603 2078 8431) or email (nn@kaaplaw.com or wyewah@kaaplaw.com).

Endnotes

(1) [2011] 4 MLJ 137.

(2) [2011] 1 MLJ 25.


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