Australian Journal of Basic and Applied Sciences, 6(11): 113-118, 2012

ISSN 1991-8178

Protection of Children in Malaysia through Foster Care Legislation and Policy

1
Azizah Mohd, 2Nadhilah A. Kadir
1
Associate Professor, Ahmad Idrahim Kulliyyah of Laws, International Islamic University Malaysia,
Malaysia
2
Ph.D Student, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia,
Malaysia

Abstract: Children are immature, naive and unable to care for themselves. Due to this very nature of
children, they are in need of among others, care, attention and supervision from adults. Care, attention
and supervision are among the means of care and protection of children, which can only be acquired in
a family environment. One of the ways to achieve family environment is through Foster Care where a
child who is in need of care and protection will be placed with a family permanently or temporarily or
until they are able to care for themselves. Foster care will at least provide for a family life experience
especially for children without family or who have problems in their family life. Foster Care also
serves the means of child protection as an alternative to adoption. This paper is to examine the Concept
of Foster care in Malaysia and the law relating to it as to provide protection to children in need of care
and protection. Examination will focus on relevant legislations and policy relating to Foster Care.
Discussion will extend to analysis on whether the available laws and policies are adequate to sustain
children protection in Malaysia through Foster Care. Finally, the paper will provide suggestions where
necessary in order to improve the law relating to Foster Care in Malaysia.

Key words: Child Protection, Foster Care, Malaysian legislation

INTRODUCTION

Foster care generally means “the formal and informal custodial care of children outside their own biological
family home when their parents are unable, unwilling, or prohibited from caring for them”.(Mcmillan, n.d.). In
all foster care cases, the child's biological or adoptive parents, or other legal guardians, temporarily give up legal
custody of the child. (Franz, Janie; Woodward, A, 2006). Under Malaysian law, there is no definition of foster
care, however, the Child Act 2001 (CA 2001) defines ‘foster parent’ as a person who is taking care of the child,
but is not a parent or relative of the child. (Child Act 2001; s.2). On the other hand, based on the practice of the
Social Welfare Department (the SWD) in Malaysia, foster care has been defined as placement of a child in the
care, custody and control of foster parents under section 30(1)(e) of the CA 2001.(Kassim, N.; 2011)

Foster Care Legislations and Policies in Malaysia:

Legislation that Governs Both Muslim and Non Muslims:
Malaysia is a party to the CRC since 17th February 1995 (United Nations ; 1995) and ratified among others
the provision of foster care where it provides that a child who is temporarily or permanently deprived of family
environment is entitled to special protection and assistance provided by the State. Children who are unable to
live with or who have to be separated from the parents due to certain reasons such as death of the parents,
abandonment, neglect or abuse have the rights to protection and assistance from the government. Alternatively,
the government has the obligation to provide alternative care for these children, for instance through foster
placement, kafalah, adoption or if necessary institutional care (Convention on the Rights of Child, article 20(1 &
2).

Child Act 2001:

In compliance with its obligation under the CRC, Malaysia has enacted the Child Act 2001 (the CA 2001)
(Act 611) to ensure that the children will be provided with necessary care and protection, especially to those
children deprived of family environment for example, the CA 2001 provides that when a child has no parent or
guardian or has been abandoned, he can be ordered to be placed in the care, custody and control of a suitable
foster parent appointed by the Director General for a period of two years or until he attains the age of eighteen
years, whichever is the shorter, pending foster placement the child will be placed in a place of safety (Child Act
2001; s. 30(1)(e)). Generally, the children who have been admitted into the place of safety or Children’s Homes
are orphans as well as children who have been abused, neglected or abandoned by their parent or guardian. All
Children’s Homes have been gazetted as a place of safety under the CA 2001. Besides that, the admission of
children into the Children’s Homes is for a specified period as determined by the court until their biological

Corresponding Author: Assoc. Prof. Dr Azizah binti Mohd, Associate Professor, Ahmad Idrahim Kulliyyah of Laws,
International Islamic University Malaysia, Malaysia
E-mail: [email protected]
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families are ready to accept them or until the Social Welfare Officers manage to find suitable foster families for
them (Government of Malaysia, 2007; n. 23; 94). If there is no possibility of reunification with the biological
parents or the parents cannot be traced, the children are placed in the Children’s Homes or foster care until they
reach eighteen years old (Child Act 2001; s. 30(1) (d)&(e)). If the order has been made by the Court For
Children under section 30(1)(e) of the CA 2001 for foster care placement, the Director General shall
immediately make an effort to place the child in the care, custody and control of a foster parent so as to give
effect to the order (Child Act 2001; s. 30(2)). Accordingly, the SWD will find a suitable foster parent through
their ‘Foster Home’ programme. The applications are made by interested individuals to foster a child through
the SWD in the local area. Since the CA 2001 is silent on the procedures of foster care, it will be based on the
practice of the SWD. If a suitable foster parent is successfully found, the child will be placed in their care,
custody and control for at least two years. Within this period, the child will be brought up and maintained by the
foster parent in a family environment (Jabatan Kebajikan Masyarakat, n.d.). In placing children in need of care
and protection in foster care, the CA 2001 provides that the court should take best interests of the child as the
paramount consideration (Child Act 2001; s. 30(5)). The best interests of the child shall include consideration
as to the family background, general conduct, home surrounding, school record and medical history of the child
(Child Act 2001; s. 30(6)(a)).
The SWD will also further monitor the well being of the child until the process of adoption under the
Registration of Adoption Act 1952 (the RAA) and the Adoption Act 1952 (the AA) (Government of Malaysia,
2007; n.23 (57), 96).

Registration of Adoptions Act 1952 (the RAA):

The RAA is applicable to both Muslims and non-Muslims in Peninsular Malaysia. (For Sabah and Sarawak,
the law that is applicable is Adoption Ordinance Sabah 1960, Adoption Ordinance Sarawak 1958). The RAA
provides for registration of de facto adoption of a child under the age of eighteen years, has never been married,
is in the custody of, and has been brought up, maintained and educated for a period not less than two years
continuously by any person or spouses (Registration of Adoptions Act 1952; s. (6(1)). Therefore, this Act is
most applicable to registration of children in foster care especially those who are fostered permanently. The
adoption will be registered by the Registrar after he has been satisfied with evidence either oral or documentary
that such adoption took place (Registration of Adoptions Act 1952; s. (6(1) (a)). In Tang Kong Meng v Zainon
bte Md Zain & Anor [1995] 3MLJ 408, in deciding whether the requirements for de facto adoption were fulfilled
or not, the court also emphasized that the welfare of the child is of paramount importance in deciding the issue
of custody.
Adoption under the RAA will not affect the foster child’s biological parentage. It is a mere registration in
acknowledging that the foster child has now been legally adopted and that the adoptive parents will have
custody over the child. There will be no transfer of parentage and the adopted child will not stand in equal
footing with the adoptive family. (Mohd, A, 1998). Regardless of the registration, the adopted child bloodline
with the natural parents is preserved. The adopted child cannot inherit property from his adoptive parent and
vice versa. The registration of adoption will provide a family environment to the adopted child, secure the
adopted child’s welfare, exempting from income tax, assisting the process to include the adoptee in his or her
adopter’s passport or travel document, the adoptee’s identification card and administration for educational
purposes (Engku Ali, M.T., 1998).
Moreover, adoption allows an adopted child to live with adoptive family permanently like a permanent
foster care without worrying that he may be transferred to live with another family. Unlike temporary foster
care, foster child may be transferred to other place or family after the period lapsed. Consequently, adoption
secures the position of the child in the family and provides him with stability in his life by offering permanent
care. Nevertheless, if foster parents do not decide to legally adopt the foster child after two years has lapsed, the
child stays in foster care based on a long term basis and the foster parents may continue to look after him until
he reaches adulthood without adopting him (Kassim, N. 2011).

Care Centres Act 1993 (the CCA):

The Care Centres Act 1993 (the CCA) governs the welfare institutions particularly when they are managed
by individuals or NGOs. The CCA provides for the registration, control and inspection of care centres and for
other related matters. It governs a residential care centre and a day care centre since both types have been
included in the definition of “care centre” (Care Centres Act 1993, s.2). The amendments to the CCA will assist
the registration of the NGO’s institutions and strengthen the enforcement of the Act in ensuring quality care is
provided to the target groups (Government of Malaysia, 2006). Foster placement that takes place in welfare
institutions are basically managed either by the SWD, NGOs or individuals so as to ensure that the children will
not be left alone when they are in need of care and protection as well as rehabilitation. In general, staff in the
institutions work on a twenty-four hour basis through rotating shifts. Some of these institutions may also provide
family foster care services where the children will be placed with foster parents to be brought up in a family

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environment. The SWD maintains a register of the NGOs that provide services for children in need and provides
them with a yearly grant to facilitate in programme sustenance (Government of Malaysia, 2007).
The government of Malaysia through the SWD runs Children’s Homes and Family System Children’s
Homes (RTH) for orphans, needy as well as abandoned, abused and neglected children (Government of
Malaysia, 2007). During the Ninth Plan, three new Children’s Homes and seven RTH were established in
providing care and protection for children in need (Government of Malaysia, 2006). In addition, the SWD
observes cases regarding fostering applications before the child are placed with suitable applicants (Government
of Malaysia, 2007). Besides that, the CCA is enacted to govern residential care centres, especially those
provided by individuals or NGOs in providing alternative care for children in need of care and protection either
with or without fee (Government of Malaysia, 2007; 96). The registration of these foster care institutions
enables the SWD to monitor their operation as well as to ensure the quality of child care provided for the
residents.

Child Care Centre Act 1984 (the CCCA):

Another foster care law is Child Care Centre Act 1984 (the CCCA). This statute governs the establishment
of childcare centres in Malaysia. It was reviewed in 2005 to ensure that the minimal standard of care is provided
for children in the centres, to institute greater enforcement measures and to enhance quality child care
(Government of Malaysia, 2006). The CCCA provides for the registration, control and inspection of child care
centres and for purposes related to it. The “child care centre” has been defined under the CCCA to refer to any
places that receive four or more children under the age of four years from more than one family to be looked
after by paying a fee (Child Care Centre Act 1984, s. 2). Foster care may be in a form of daytime or part-time
when it is restricted to a few hours a day or for brief periods (Ai.Bi. A. D. B.). It seems that this kind of foster
care is delivered by childcare centre in providing temporary care for children, whose parents are unable to do so
due to certain reasons like working.
The amendment of the CCCA in 2006 provides four categories of childcare centre, which are home based
childcare centre, work place based childcare centre, community based childcare centre and institution based
childcare centre (Child Care Centre Act 1984, s. 2). Home based child care centre refers to a home of the person
registered under the CCCA where it receives not more than ten children, while the other child care centres
receive ten or more children. In the Ninth Malaysia Plan, child care centres were encouraged to be established in
work place by public and private sectors for example through grants and tax rebates (Government of Malaysia,
2006). It is known as a work place based childcare centre where the parents can leave their children at the same
or nearest place where they are working. Community based child care centre is established in a particular area
and receives aid from the Federal government or State government in order to provide affordable and accessible
quality child care facilities especially for those who has lower income in the urban area and cannot afford to
send their children to private child care centres (Government of Malaysia, 2006).
The CCCA provides that all childcare centres in Malaysia are required to register with the SWD (Child
Care Centre Act 1984, s. 4). An application to register can be made to the Director General in the prescribed
form (Child Care Centre Act 1984, s. 7). Besides that, upon a successful registration, a certificate of registration
will be issued and it has to be renewed annually (Child Care Centre Act 1984, s. 11). The CCCA provides
several conditions that have to be met by the childcare centres. These include to limit number of children to be
received at any one time, to ensure the employee is a fit and proper person, to ensure adequate number of
qualified staff, to ensure the place is adequately and suitably equipped and maintained, to provide proper
feeding, resting and recreation for children who remain there for a continuous period exceeding four hours in
any one day and to ensure the structure, fire precautions, health, sanitation and safety requirements are being
complied with (Child Care Centre Act 1984, s. 8). These conditions are more or less similar with conditions
under the CCA.
Besides that, every institutional child care centres must also comply with the rules and regulations in the
Child Care Centres (Institution-based) Regulations 1993 so that minimum standards of services for children
attending the centres nationwide can be guaranteed (Government of Malaysia, 2007). The regulations also
requires all child care providers to attend the training package known as the Basic Child Care Course, a 103-
hour course with thirty one modules accredited by the SWD. Other than this mandatory training, a child care
provider should also have a minimum qualification of Sijil Pelajaran Malaysia (SPM), an additional accredited
training in Early Childhood Care and Development (ECCD), a degree or diploma in early childhood education
or its related fields (Chiam, H.K., 2010). Furthermore, the operation of the childcare centres will be observed by
the SWD in order to ensure that they are in compliance with the CCCA (Goverment of Malaysia, 2007).
Therefore, children at childcare centres will be looked thereafter by a person other than their parentsfor a short
period only, for instance half day. This is because parents, in general, have to go to work and are unable to take
care of their children during that period.

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Legislation that Governs Non-Muslim:

The reception of English common law has been authorized by the enactment of Civil Law Act 1956 (Act
67). This statute allows the application of English common law in the absence of local law regarding the same
matter and it shall be applied so far only as the circumstances of the States of Malaysia, and their respective
inhabitants permit and subject to such qualification as local circumstances render necessary (Civil Law Act
1956, s. 5). (This section only allows the application of English commercial/merchantile law)

Adoption Act 1952 (the AA):

Adoption Act 1952 (the AA) is the statute governing adoption of non Muslims in Peninsular Malaysia. The
AA is applicable when a child is to be adopted by an adoptive parent as well as by a foster parent. Nevertheless,
it is more relevant to adoption than foster care. On the other hand, if the foster parent wishes to adopt his foster
child, then the AA will become relevant. Foster care is known as one of the methods to adopt a child since it
fulfils the requirement of an adoption, i.e. the child has to be in the care and possession of the prospective
adoptive parent for a period at least three consecutive months (Adoption Act 1952, s. 4(4a)) that is meant as a
trial period or probationary period of the growth of mutual familiarity (T.P.C v A.B.U & Anor ([1983] 2 MLJ;
82), The effect of an adoption order under the AA is that an adopted child will be treated as a birth child.
Accordingly, he will be entitled to every birth child’s rights such as custody, maintenance and education as well
as to inherit the adoptive parent’s property (Adoption Act 1952, s. 9). The adoptive parents can also change the
child’s name following their family’s name. In this circumstance, the bloodline of the adopted child with his
natural parent seems to be totally cut off (Re TSY (An Infant) ([1988] 3 MLJ; 44). In the case of Hitchcock v W.B
and F.E.B ([1952] 2 QB; 568-569), Lord Goddard C.J emphasized that an adoption order removes the child
once and for all from his natural parents and gives him to the adopted parents as though they were, and always
had been, his natural parents.

Legislation that Governs Muslims:

In Malaysia, the law that generally governs the Muslims is Islamic law (the Shari‘ah) in it’s ordinary form
based on the Qur’an and Sunnah of the Prophet Muhammad (s.a.w.) and juristic discourse especially the
Hanafis, the Malikis, the Shafi’is and the Hanbalis. The regulation of this Islamic law was partly codified in
several statutes based on each State in Malaysia, the pioneer of which is the Islamic law (Federal Territories)
Act 1984.
List II of Ninth Schedule of the Federal Constitution provides for matters that will be governed by the State
Legislatures Federal Constitution, art. 74(2)). The matters are Muslim personal and family law including the
Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance,
adoption, legitimacy and guardianships. Therefore, each State has separate legislation to govern the Islamic
Family Law. Besides, each State has its own Shari‘ah court. The court’s limited jurisdiction is only applicable
to Muslims and in relation to matters in the List II of Ninth Schedule of the Federal Constitution (Mohamed
Ibrahim, A.,6).
There is no specific provision in IFLA(?) regarding foster care. However, the IFLA provides that a man
who has accepted a child who is not his child as a member of the family shall be imposed with a duty to
maintain the child (Islamic Family Law (Federal Territories) Act 1984, s. 78(1)). In lieu to this provision, the
Malaysian Initial Report on the CRC is of the view that it has adopted the concept of kafalah in providing care
and protection for a child in need, whereby the child may be entrusted either by a decision of the Shair‘ah Judge
or by the administrative act of the SWD (Goverment of Malaysia, 2007; 96-97). Islamic law allows an
individual to take a child for the purpose of upbringing, education and to treat as his own child. In this case, he
protects, feeds, teaches and loves the child as his own. The child is not attributed to him and he does not give the
child any rights, which the Shari‘ah reserves for a birth child (Biswas, Z. I.). Thus, if a child is placed in the
care of foster parents, his biological parentage is preserved and he is not considered as a birth child.
Nevertheless, he is still able to benefit from foster parent’s property through gift or bequest. Accordingly, the
Shari‘ah judge may entrust the child to public or social institution or to a Muslim family (Islamic Family Law
(Federal Territories) Act 1984. s. 86) in providing care for the child’s person such as maintenance, shelter,
education and if necessary for his property as well as in receiving delegation of guardianship over him
(Government of Malaysia, 2007; 97).

National Child Protection Policy and Child Protection Policy 2009:

To provide protection to children in Malaysia to the fullest, government of Malaysia has approved two
policies in 2009 i.e., the National Child Policy and National Child Protection Policy (the NCPP) (Abdul Jalil, S,
2009). National Child Policy (the NCP) is a policy on rights of the children to survival, protection, development
and participation in order for them to enjoy opportunities for holistic development in a favourable environment.
Meanwhile, National Children Protection Policy is to ensure that every child is protected from neglect, abuse,

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violence, and exploitation. It promotes child protection in line with the CRC and the CA 2001(Dasar Kanak-
kanak Negara, n.d.).
Under the NCPP, awareness will be increased in every level of the society about the importance of child
protection, including developing smart partnership with the media and NGOs as well as the private sector and
social organization. Thus in its Action Plan, a community awareness programme will concentrate in rising the
public’s consciousness about child protection (Pelan Tindakan Perlindungan Kanak-kanak Negara, n.d.).
The NCPP also requires that all the institutions run by the SWD and NGOs that receive grants from the
government create their own child protection policy by following its template. Among others, the template
underlines the staff’s behaviour protocol, employee recruitment and screening as well as procedures on
managing abuse claims (Kerangka (Tempelate) Bagi Dasar Perlindungan Kanak – Kanak). Basically, the
Children’s Homes operated by the SWD have their own child protection policy. Shelter Homes for Children run
by an NGO also has its own child protection policy that meets ISO standards. In ensuring that the policy is being
implemented, it has been monitored by the board of directors (Jo An, D; 2010).
The NCPP further requires that every child care provider, or those who are working directly with the
children by providing them care and protection, be screened and trained in order to avoid hiring someone with a
criminal background and further preventing the staff in foster homes or institutions from abusing, exploiting and
raping the children (Wajib Saring Kakitangan Pusat Jagaan Kanak – Kanak, 2009). Thus in its Action Plan,
child protection module or courses will be focused so as to ensure that the staff is properly and adequately
trained before they can look after the children (Pelan Tindakan Perlindungan Kanak-kanak Negara, n.d.).

Foster Care And Child Protection Policy:

As has been mentioned, under the NCPP, the MWFCD will take action to oblige institutions, either under
the SWD or the NGOs that receives grant from the government, to provide child protection policy. By requiring
this policy to be drafted in every foster care institution, it will help to provide the children with a safe and
protective environment, especially from incidents of abuse, neglect, violence and exploitation. Basically, most
of the children who are placed in foster care institutions have experiences of being abused and neglected by their
parents. Thus, the staffs in the institutions are expected to give them care, protection and love so that they can
feel secure. The staffs are not supposed to be the ones who cause them to suffer more by abusing, neglecting,
violating or exploiting them. In drafting the child protection policy in foster care institutions, the template
provided by NCPP can be referred to as a statement of vision and mission, statement of commitment,
behavioural protocol, recruitment and screening, procedures in allegations, communication about and to children
and training, evaluation and monitoring (Kerangka Template bagi Perlindungan Kanak-kanak, n.d.). The
caregivers or staffs have to know and read the policy as well as co operate with each other in implementing it
effectively (Dasar Perlindungan Kanak-kanak bagi Rumah Kebajikan Masyarakat, 2003). Training will also be
implemented in ensuring that all the staff has better understanding about the child protection policy so as to
implement it effectively. The implementation of the policy will also be evaluated and monitored by the
authority. (Dasar Perlindungan Kanak-kanak bagi Rumah Kebajikan Masyarakat, 2003).

Conclusion:
In Malaysia, the provision of foster care placement is expressly provided for under the CA 2001.
Nevertheless, there are no other provisions in any statute, which provide for the procedure or regulations
pertaining to foster care system in Malaysia. The limited provision under the CA 2001 only provides for the
placement of a child in need of care and protection in foster care and it does not mention in detail regarding the
approval process of foster parents or procedures of fostering. As for other statutes, they provide provisions on
foster care institutions, such as Children’s Homes or foster homes by the NGOs. There are some rules and
policy to be followed by the institutions in providing care and protection for children who are in need of care
and protection so as to ensure that their safety and wellbeing are safeguarded. As regards fostering and adoption,
the law basically provides for adoption. In many occasions, legislation is silent on fostering and substantive law
of foster care, therefore many matters relating to foster care is based on the practice of the SWD itself. Hence,
the SWD plays an important role in the foster care system in Malaysia. Due to the significant of fostering and
foster care in children protection in Malaysia, perhaps it is timely for the government to revise the law on
adoption and comes out with rules regulating fostering and Foster Care. These rules will provide detailed
provisions on fostering and foster care in the spirit of providing better protection for children in Malaysia.

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