Guidance

Malaysia: child abduction

Updated 20 August 2021

Disclaimer

Any information contained in these pages relating to the legal system in Malaysia is provided for general information only. Independent legal advice should be sought in Malaysia for specific information relating to individual cases.

Parental Child Abduction

Malaysia has not signed the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention seeks to return children abducted or retained overseas by a parent to their country of habitual residence, for the courts of that country to decide on matters of residence and contact.

There is no agreed international system in place to return children from Malaysia to the UK. Therefore, parental child abduction cases from the UK to Malaysia can be difficult to resolve. Neither the British government nor the British High Commission can force the abducting parent or the Malaysian government to return a child to the UK.

There is an extradition treaty in force between the UK and Malaysia.

Custody Issues

Religious law (Sharia) will apply if one or both spouses are Muslim, and custody disputes will be decided in the Sharia Courts. Under Sharia law, providing she is a Muslim, the mother is usually entitled to custody of her children up until the age of seven for boys and nine for girls. The mother will retain the right of custody up until these ages unless the court rules the mother is not of sound mind or has a promiscuous lifestyle or has the intention to move to another country or has remarried. If the mother made an application, the courts could consider extending to nine years for a boy and eleven for a girl. After this, custody is usually given to the father unless it can be shown that he is not of sound mind.

Islamic law in Malaysia does not recognise inter-religious marriage. The legitimacy of a child is significant under Malaysian civil law. In civil law, only the mother or her relatives can have custody of an illegitimate child.

Any marriage not registered with the National Registration Department in Malaysia is not seen as valid, so in a custody case the father may have to prove that he is the paternal parent.

If both parties involved in a custody dispute are foreign and not citizens of Malaysia, they cannot register their marriage in Malaysia. However, if one party is Malaysian, or if one or both are residents of Malaysia, then the marriage can be registered. In this case the parties must prove to the court their physical residence in Malaysia.
Should two foreign citizens be involved in a custody dispute in Malaysia, foreign court orders would be taken into consideration. But if neither party had any and could not come to an informal agreement, then recourse to Malaysian law would be necessary.

The welfare of the child is taken into consideration by the courts in both the civil and Sharia systems, but how this affects the final decision will vary. It is possible to register cases where there are welfare concerns with the Welfare Department in Malaysia for their attention.

Foreign mothers whose residency in Malaysia is based on marriage to a Malaysian can be vulnerable if the relationship breaks down. A Malaysian father’s consent is usually required for the mother’s visa to be extended and if he refuses to give this the mother may have to leave the country and therefore find it difficult to contest.
If an agreement between the parties involved can be reached in the interim stage of the case (i.e. before it gets to court), then a decision can be reached in weeks and the costs can be low. If the case goes to court then the length and cost of the case can be considerably more, with a full trial lasting at least 1-2 years. Although there is legal aid available for foreign nationals, it is extremely difficult to obtain.

Travel

Malaysia does not recognise dual nationality, so technically you can be refused entry if you are found to be holding two passports of different nationality. If you are a dual national it is advisable to enter Malaysia on the passport on which you exited your last country of departure.

You must hold a valid passport to enter Malaysia. Your passport must be valid for a minimum period of six months from the date of entry into Malaysia.

British nationals do not need a visa to enter Malaysia as a visitor. You will normally be given permission to stay for three months on arrival. Visas for longer stays or for non-tourist purposes must be obtained from the nearest Malaysian diplomatic mission before travel.

The Malaysian Immigration Department has introduced a biometric registration system. Under the new system all foreigners entering Malaysia by land, air and sea will have biometric fingerprints taken at the immigration entry point. Implementation of the system began on 1 June 2011. Children below 12 years of age will be exempted.

Single parents or other adults travelling alone with children should be aware that some countries require documentary evidence of parental responsibility before allowing lone parents to enter the country or, in some cases, before permitting the children to leave the country. They may want to see birth certificates, a letter of consent from the other parent or some evidence as to your responsibility for the child. While Malaysian authorities do not normally require such evidence, if you have any concerns please check with Malaysian Embassy in the UK.

Mediation

Mediation is an option when parents are not able to reach an amicable agreement between themselves about their children’s futures, but do not wish to take court action. A neutral party, or mediator, can assist in enabling parents to form a mutually acceptable decision on custody and contact with their children.

The National Family and Population Development Board is a counselling service in Malaysia focussing on issues relating to family break-ups. Anyone can ask for counselling irrespective of race or religion for a small fee. The headquarters in Kuala Lumpur has three dedicated counsellors.

Their contact details are:

Family Counselling Unit 14th Floor, LPPKN Building, 12B Jalan Raja Laut,
50712 Kuala Lumpur Tel: 00 60 3 2693 7555

For mothers in Malaysia who are experiencing domestic abuse, the charity All Women’s Action Society (AWAM) can offer some valuable assistance.

Their contact details are:

All Womens Action Society 85, Jalan 21/1, SEA Park 46300 Petaling Jaya,
Selangor, Tel 03-7877 4211, available 09.30am to 5.30pm
E-mail: awam@awam.org.my
Website: https://www.awam.org.my

Telenita Helpline, 016 237 4221, available 7am to 7pm
E-mail: telenita@awam.gov.my

Reunite is the leading UK charity specialising in international parental child abduction. Their services range from offering practical impartial advice and mediation to providing a helpful support network aimed at those who have had their child abducted. For more information about Reunite and their services, visit Reunite’s website or call : +44 (0)0116 2556 234.