Child protection through intercountry adoption : a study on its applicability in Malaysia

Abstract

The study deals with the practice of intercountry adoption and its applicability in Malaysia. Adoption is often perceived as a child’s placement through family-based care. Nevertheless, it may not always be an available alternative within the child’s birth country. In this case, certain countries have resorted to intercountry adoption as an alternative care option for children without families. This study embarks on the premise that there is no statutory provision on intercountry adoption in Malaysia. Unlike other countries, the option for intercountry adoption is still alien in Malaysia. It is not formally practised as an alternative care option for children without families. The research explores the concept of intercountry adoption and other alternative care options such as domestic adoption, foster care, kafālah of Islamic law and residential care. It further examines the legal framework for intercountry adoption. The study analyses among others, the main international legal instrument on intercountry adoption namely, the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993. It also investigates several legal issues arising from the practice of intercountry adoption such as the loss of cultural identity and the deprivation of the birth family’s care due to involvement of illegal acts in the adoption process. The practice of intercountry adoption in other countries such as the Philippines, Australia, Singapore as well as Muslim countries such as Morocco and Jordan are also examined in their capacity either as a sending or receiving state, to serve as a model for Malaysia to further improve its law on adoption and child protection. Apart from that, the study also analyses the applicability of intercountry adoption in Malaysia based on the domestic adoption statutes. The present practices of the Social Welfare Department, OrphanCare and the National Registration Department on intercountry adoption are also included in the discussion. The research reveals that international law recognizes intercountry adoption as an alternative means of child’s care that may offer the benefit of permanent family care. The study also shows that intercountry adoption is practised in Malaysia indirectly in the absence of the statutory provisions. The study further proves that the current law lacks the capacity to address intercountry adoption in Malaysia especially as an alternative care option for children without families. Besides, there is no clear policy and procedure regarding intercountry adoption either as a sending or receiving state. There is also no bilateral arrangement between Malaysia and other countries regarding intercountry adoption. As a conclusion, the study suggests that the law in Malaysia needs to be revised by introducing legal provisions on the practice of intercountry adoption and to consider ratifying the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 in the future. It is hoped that this study provides new insights into the practice of intercountry adoption as an alternative means to offer children without families in Malaysia with permanent family care, particularly for those who are not taken into domestic adoption or foster care. This is provided that the necessary legislation, safeguards, and regulations are put in place to govern such practice.