Peck Chun v 1. ) Alikoo (WA-34-7-06/2021)

FIRST RESPONDENT JABATAN KEBAJIKAN MASYARAKAT KUALA LUMPUR SECOND RESPONDENT 04/10/2022 10:07:31 Kand. 24 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 2 GROUNDS OF JUDGMENT Introduction [1] This was an application (“this Application”) by the Applicant to adopt the First Respondent pursuant to the Adoption Act 1952 (“the Adoption Act”). [2] In the interest of privacy and considering the sensitivity of the issues in these proceedings, the Applicant and First Respondent have been anonymised in this judgment respectively as PEN and KAL. The factual background [3] The Applicant, a 57-year old trader, is a widow who has seven children of her own. The First Respondent, who was born in December 2002, was raised by the Applicant and her late husband, ever since the First Respondent was one month old. [4] The Applicant claimed that the First Respondent was the illegitimate child of her Indonesian domestic help, who had gone missing 20 years ago, shortly after the First Respondent was born, and has never been heard of since. 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 [5] In June 2021, this Application was filed, which was dismissed for the following reasons. Contentions, evaluation, and findings Whether the Adoption Act 1952 applied [6] The Second Respondent resisted this Application on the basis that the First Respondent is a Muslim and as such, the Adoption Act had no application in the present case. [7] The starting point to this Application, therefore, was the issue of whether the Adoption Act even applied to the First Respondent, bearing in mind section 31 of the Adoption Act, which reads: Section 31 – Act not to apply to Muslims. This Act shall not apply to any person who professes the religion of Islam either so as to permit the adoption of any child by such a person or so as to permit the adoption by any person of a child who according to the law of the religion of Islam is a Muslim." [Emphasis added.] [8] Both the Applicant and Second Respondent had adduced copies of the birth certificate of the First Respondent, with the Applicant’s copy indicating that there was no religion whatsoever that was documented for the First Respondent, whilst the Second Respondent’s copy 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 indicated that the First Respondent is a Muslim. The Applicant, in tenaciously disputing the Second Respondent’s copy of the First Respondent’s birth certificate, contended that the First Respondent is and never was a Muslim, as he was raised according to Chinese culture and tradition since his birth. [9] The Applicant proceeded to submit that the Second Respondent had not responded to the affidavits in reply by the Applicant and the First Respondent, and an additional affidavit by one Mohamad Fazhly bin Johari (“Mohamad Fazhly”), who claimed to be a family friend, and as such, was deemed to have admitted to their contents. [10] The affidavits of the Applicant and Mohamad Fazhly were affirmed on 28 October 2021, whilst the First Respondent’s affidavit was dated 29 October 2021 (“the three affidavits”). In all three affidavits, it was claimed that the First Respondent was abandoned by his mother and that he was raised by the Applicant in the Chinese tradition and culture. In the affidavit affirmed by Mohamad Fazhly, he deposed that the First Respondent had never observed the Muslim religion. [11] After perusing the three affidavits, it was my view that the contents of the same were repetitious as the Applicant had already deposed these facts in her affidavit in support, affirmed on 31 May 2021. Furthermore, the fact that the Applicant had raised the First Respondent in the Chinese tradition and culture did not detract from the fact that the First Respondent is a Muslim. 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 [12] As such, the absence of any affidavit in furtherance to the three affidavits had not compromised the Second Respondent’s case as the Second Respondent, through one Ummi Nurul Farahin binti Kamaruddin, the guardian ad litem in the present case, had responded in her affidavit, affirmed on 11 October 2021, where she had denied the averments made in the Applicant’s affidavit in support, affirmed on 31 May 2021. [13] In fact, the Second Respondent had exhibited a copy of the First Respondent’s birth certificate, which indicated that the First Respondent was born and still is a Muslim. The discovery of this birth certificate was through the efforts of the guardian ad litem pursuant to her role in accordance with section 13 of the Adoption Act, to establish the identity of the First Respondent. The provision reads: Section 13 – Duties of guardian ad litem

(a) whether the statements in the form of application required by subsection 11(1) are true and complete, particularly as regards the date of birth and the identity of the child... [Emphasis added.] 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 [14] There was no reason to dispute the veracity of the birth certificate adduced by the guardian ad litem. In any event, since it was undisputed that the First Respondent’s mother is a Muslim, it could not be doubted that the religion of the First Respondent should follow suit. [15] Besides section 31 of the Adoption Act as alluded to earlier, reference was made also to the Federal Court case of Sean O' Casey Patterson v Chan Hoong Poh & Ors [2010] 3 MLJ 733, where it was stated by James Foong FCJ in the following passage: ...The reason why Muslims are excluded from the operation of the Adoption Act 1952 (Act 257) is obvious. The effect of adoption under the Act is repugnant to Islamic law. I need not elaborate on this. … [Emphasis added.] [16] On that basis alone, this Application was dismissed. However, in the interest of completeness, I proceeded to address the subsequent issues raised by the Applicant. Whether consent of the First Respondent’s mother had been obtained/ dispensed with [17] Since this Application was with regard to the adoption of the First Respondent, the issue at the forefront was whether section 12 of the Adoption Act had been fulfilled. The provision reads: 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 Section 12 – Appointment of guardian ad litem: persons to be respondents and service.

(a) in the case of a parent or guardian of the child, that he has abandoned, neglected or persistently ill-treated the child;

(b) in the case of a parent or guardian of the child, that he has abandoned, neglected or persistently ill-treated the child; in the case of a person liable to contribute to the support of the child, that he has persistently neglected or refused so to contribute;

(c) in any case, that the person whose consent is required cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld; or

(d) in any case, that in accordance with any written law relating to the adoption of children for the time being in force in any country any competent authority has given permission or granted a licence authorizing the care and possession of the child to be transferred to the applicant. 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9

(a) that every person whose consent is necessary under this Act, and whose consent is not dispensed with, has consented to and understands the nature and effect of the adoption order of which application is made, and in particular in the case of any parent understands that the effect of the 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 adoption order will be permanently to deprive him or her of his or her parental rights;

(b) that the order if made will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child, having regard to the age and understanding of the child;

(c) that neither the applicant nor the parent or guardian has received or agreed to receive, and that no person has made or given, or agreed to make or give to the applicant or the parent or the guardian any payment or other reward in consideration of the adoption except such as the Court may sanction; and

(d) that there has been a substantial change in the circumstances, if it appears that the applicant has made a previous application under this Act in respect of the same child. [Emphasis added.] [28] This is fortified by the view expressed by Edgar Joseph Jr J (as he then was) in TPC v ABU & Anor, in the following passage: In section 6 of the Act it is placed second of three matters which the Court has to be satisfied about before making an adoption order. The first being that every person whose consent is necessary and whose consent is not dispensed with has consented and the third being that neither the applicant nor the parent or guardian has received or any other person made or given or agreed to make or give the applicant any payment or reward in consideration of the adoption. [Emphasis added.] 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 [29] In the present case, the Applicant claimed that it was unreasonable to expect her to have obtained the consent of the First Respondent’s mother since she alleged that it had been 20 years since she had last heard from her. [30] In my view, the burden was upon the Applicant to convince this Court that it was justified for consent to be dispensed with, and in doing so, that she had made all reasonable efforts to locate the First Respondent’s mother. After all, the First Respondent’s mother was the domestic help of the Applicant. Furthermore, if the First Respondent had been abandoned shortly after he was born, which was about 20 years prior to the filing of this Application, then it begs the question why the Applicant had chosen to file this Application only now, and then to have conveniently claimed that she was unable to locate the First Respondent’s mother. [31] If fact, no evidence at all was adduced by the Applicant to convince this Court that she had even made any effort to locate the First Respondent’s mother, other than to merely state that she did not know where the First Respondent’s mother was. [32] In the final analysis, I was unconvinced by the Applicant’s arguments. 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 Conclusion [33] In the upshot, based on the aforesaid reasons, and after careful scrutiny of all the evidence before this Court, both oral and documentary, and submissions of both parties, this Application was dismissed for the following reasons: a) That the First Respondent is a Muslim and as such, the Adoption Act did not apply; b) Even if the Adoption Act did apply, the Applicant had not complied with the procedure in section 12 of the Adoption Act; c) That the consent of the First Respondent’s mother, being the most important factor in an application for adoption, had neither been dispensed with nor obtained. Dated: 4 October 2022 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur 4 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 17 Counsel: For the Applicant and First Respondent – Weera Premananda and Pook Fong Fee; Messrs Ahmad Deniel, Ruben & Co For the Second Respondent – Rubini Pubalan, Sharifah Nur Amirah (Federal Counsel); and Ummi Nurul Farahin binti Kamaruddin (Guardian Ad Litem - Jabatan Kebajikan Masyarakat Wilayah Persekutuan Kuala Lumpur Cases referred to: ➢ Re Baby M (An Infant) [1994] 2 MLJ 635 ➢ Sean O'Casey Patterson v Chan Hoong Poh & Ors [2010] 3 MLJ 733 ➢ TPC v ABU & Anor [1983] 2 MLJ 79 Legislation referred to: ➢ Adoption Act 1952 – sections 5, 6, 12, 13, 31 ➢ Adoption Rules 1955 – rule 7, First Schedule, Form 2