Sean O’ Casey Patterson v Chan Hoong Poh & Ors [2011] 4 MLJ 137

Court: Federal Court (Putrajaya)

Topic: Consent of Biological Parent for The Adoption of The Child

1.     The Appellant, an American citizen met the First Respondent, a Chinese Malaysian on December 1998 in which they started dating thereafter.

2.     In April 1999, the First Respondent travelled to United States of America to visit the Appellant and got married to him in Las Vegas.

3.     The First Respondent returned to Malaysia while the Appellant remained in America.

4.     The First Respondent later gave birth to the Appellant’s son in 21 March 2000 in Kuala Lumpur.  She gave the child an English name followed by the Chinese name (hereinafter referred as “J”).

5.     The Appellant claimed that he made numerous trips to Malaysia to visit the First Respondent and J and gave them money.

6.     The Appellant later came to know that J’s birth certificate stated the name of one Bart Van Hoek (“Bart”) as the father.   For record, the First Respondent had a previous relationship with Bart.

7.     However, the DNA profiling test revealed that the Appellant was the biological father of J.

8.     In the circumstances, the Appellant went to the Jabatan Pendaftaran Negara to rectify the father’s name in J’s birth certificate.

9.     From there, the Appellant discovered that the Second Respondent (sister of the First Respondent) and the Third Respondent (the Second Respondent’s husband) had on 18 February 2004 adopted J under the Registration of Adoption Act 1952 (“Act 253”).

10.  The Second and Third Respondents being Muslims had also converted J.

11.  The Appellant therefore filed an originating summons in the High Court praying, inter alia, for the following orders:

(a)  a declaration that the Appellant was the biological father of J;

(b)  that the register be rectified to name the Appellant as J’s father in the birth certificate;

(c)  that J’s name be changed to his original name;

(d) a declaration that J’s adoption by the Second and Third Respondents was null and void and as such be set aside;

(e)  that the Appellant be granted sole and exclusive guardianship, custody, care and control of J;

(f)    a declaration that the conversion of J into the Islam religion was null and void; and

(g)  that J be delivered to the Appellant immediately.

12.  The Appellant further claimed that J’s adoption was invalid on the grounds that Act 253 is not applicable to Muslims and the lack of consent by the biological parents and conditions under Section 6 of Act 253 had not been fulfilled.

13.  The High Court granted a declaration that the Appellant was the biological father of J and ordered the register be rectified to name the Appellant as J’s father in the birth certificate.  The other prayers were dismissed.

14.  The Appellant’s appeal to the Court of Appeal was dismissed. The Court of Appeal further reversed the High Court order to rectify the birth certificate.  Hence the Appellant filed this appeal to the Federal Court.

1.     In deciding the issue, the Federal Court has put forward the argument from the Appellant’s counsel wherein the Appellant’s consent should have been sought before the Fifth Respondent approves the registration of J’s adoption in which the argument was based on Section 5(1) of the Guardianship of Infants Act 1961 (“Act 351”).

“In relation to the custody or upbringing of an infant…, a mother shall have the same rights and authority as the law ‘as the law allows to a father, and the rights and authority of mother and father shall be equal.”   [Emphasis Added]

2.     For the purpose of natural justice, the Federal Court also considered the argument from the Respondent’s counsel where it was counter argued by him that Act 351 does not apply to an illegitimate child and this can be found in Section 1(3) of the same Act 351 which provides-

“Nothing in this Act shall apply in any State to persons professing the religion of Islam until this Act has been adopted by a law made by the Legislature of that State; and any such law may provide that:

(a)  Nothing in this Act which is contrary to the religion of Islam or the custom of the Malays shall apply to any person under the age of eighteen years who professes the religion of Islam and whose father professes or professed at the date of his death that religion or, in the case of an illegitimate child, whose mother so professes or professed that religion.”  [Emphasis Added]

3.     The main issue at hand was not religion, as both the Appellant and the First Respondent are non-Muslims. The focus instead is on the legitimacy of J.   The question is whether the Appellant would have parental rights over J if J is considered illegitimate under the Act 351.  If so, the further inquiry is whether the Appellant’s consent is necessary for J’s adoption.

4.     To dissect the issue, the Federal Court was not in dispute that J is illegitimate because both the Appellant and First Respondent was not legally married at the time J was born.   The Federal Court referred to the decision of Re Balasingam & Paravathy infants Kannamah v Palani [1970] 2 MLJ 74, whereby it was held that the Court has no jurisdiction to entertain an application by the natural mother for the custody of her illegitimate child under the Act 351.

5.     The reason was there being no provision under this Act to provide for an illegitimate child.  By adopting the approach taken by Viscount Simonds in Galloway v Galloway [1956] AC 299, it is safer to say that ‘infant’ means legitimate infant unless there is some repugnancy or inconsistency and not merely some violation of a moral obligation or of a probable intention resulting from so interpreting the word.

6.     Accordingly, the Federal Court in Re Balasingam found that since none of the words ‘father’ or ‘mother’ or ‘infant’ can be construed to mean illegitimate infant or the de facto parents of illegitimate children, it must be concluded that the Act 351 does not apply to ‘illegitimate children’.

7.     In Re Balasingam’s case, the reason for excluding an illegitimate child, despite the presence of the word “illegitimate” in Section 1(2)(a) (now Section 1(3)(a)) of the Act 351, was based on the English courts’ interpretation of the Guardianship Acts.  According to the English interpretation, a “father” and “mother” referred only to those who were lawfully married, making their child legitimate. This interpretation was used to argue that the same applies in Malaysia.

8.     However, this approach disregards the fact that Malaysia has its own Guardianship Infants Act, which includes Section 1(3)(a) explicitly provides “in the case of an illegitimate child.”

9.     It has been alluded with much clarity by the Federal Court that there is no need to look beyond this provision, especially to Section 5 of the Act 351 to determine whether the Act 351 includes or excludes an illegitimate child.   Therefore, it was decided that the wording of Section 1(3)(a) of the Act 351 is sufficient to indicate that this Act also applies to an illegitimate child as well.

10.  Having correctly referred to the authorities and carefully interpreted the law, the Federal Court decided that when the Second and Third Respondents applied to register the adoption of J, the Appellant was not recognized as J’s biological father as J’s birth certificate listed Bart as the father.  It was only after the adoption and subsequent DNA testing that the Appellant’s biological paternity was confirmed.

11.  The Federal Court held that since the Appellant’s fatherhood was unknown and unconfirmed during the adoption registration application, his consent was not relevant.

1.     The Appellant’s consent is not relevant for the registration of adoption of J under the Act 253.

2.     The appeal was dismissed with costs.

1.     According to Section 5(1) of the Act 351, the mother and the father of the child shall have the same rights and authority over the care, custody and maintenance of the child.

2.     However, it is not acceptable to declare an adoption invalid simply because a natural parent demands the same right and authority, solely based on the fact that adoptive parents under this Act have limited rights over the child (such as custodian, care, maintenance, and educational rights).   Through this case, the adoption is still be considered valid.

3.     In the circumstance where the child is illegitimate and that the natural parent was unknown and unconfirmed during the adoption registration application was made, the natural parent’s consent will be not relevant to be obtained for such process.