Whether a child who was abandoned at birth and later adopted was entitled to Malaysian citizenship by operation of law?

CCH & Anor v Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia
[CIVIL APPEAL NO. 01(f)-35-11-2020(W)]

• In 2004, the Appellants adopted an abandoned infant (“Child”) who was born at Hospital UKM Cheras. At that time, the identity of the child’s birth mother was unknown.

• During the adoption registration, the Appellants listed themselves as the Child’s biological parents and provided the relevant information to the Respondent.

• In 2016, when the Child was applying for his MyKad, the Respondents declined to issue the Child’s MyKad on the grounds that there were discrepancies in the information provided and that there were reasons to believe that the Appellants were not the biological parents of the Child.

• The Respondents had also asked the Appellants to surrender the Child’s first birth certificate and a second birth certificate was issued.

• In the second birth certificate, the Child’s parents’ information was listed as ‘not available’ and the Child’s citizenship status as ‘yet to be determined’.

• The Appellants obtained an Adoption Order from the High Court in Penang and reapplied for a new (third) birth certificate from the Respondent which was eventually issued.

• However, the Child’s citizenship status on the third birth certificate was changed to non-citizen and was issued on a pinkish-red certificate indicating coding for non-citizen.

• This in essence rendered the Child a non-citizen and since he was not a citizen of any other country, the Child was effectively stateless.

• The Appellant filed a judicial review at the High Court and subsequently an appeal at the Court of Appeal, both of which were rejected. They then appealed to the Federal Court.

• The Federal Court examined s. 1(a) of Part II and s. 19B of Part III of the Adoption Act 1952 in which the operative words in s. 19B states ‘any new born child found exposed in any place’ – the learned panel held that the broadest possible interpretation of the word ‘found exposed’ was taken, thus meant to include a child abandoned at the place of birth by the birth mother whose identity is unknown.

• The Federal Court held that any person (i.e the Respondent here) who claims that the child was not ‘found exposed’ or otherwise abandoned by the mother, bears the burden of showing the identity of the child’s biological mother and that the mother is not permanently resident at the place of the finding.

• In the current case, the Respondent has not been able to discharge that burden.

• Therefore, since the Child here was found abandoned in Malaysia, it is presumed that he was born to a mother permanently resident in Malaysia and that the Child was entitled to citizenship by operation of law.

• The Federal Court went on to state that this case is now precedent on how the Ministry of Home Affairs and the Respondent ought to deal with all such future cases within the context of abandoned new born children – the burden is on the Respondent to properly investigate to determine the status of such child’s biological parents or mother.