Court/Judicial body: High Court in Malaya at Kuala Lumpur (Family Court, Civil Division)
Date: 12 July 2011 CRC
Provisions: Article 9: Separation from Parents
Domestic provisions: Section 5 of the Guardianship of Infants Act 1961 (the “GIA”): Equality of parental rights of both parents of a child. Section 88 of the Law Reform (Marriage and Divorce) Act 1976 (the “LRA”): Custody; welfare of child as paramount consideration.
Background: The complainant mother applied for custody, care and control of her two children, aged eight and nine years old. The lower court had awarded custody of the older child to the complainant, but had decided that custody of the younger child should be awarded to the defendant father, subject to the wishes of the child. The complainant appealed against part of the decision, alleging that the court had failed to take into account the defendant’s promiscuity, immorality and drunkenness in its initial award of custody. These allegations were disputed by the defendant, who alleged that the complainant suffered from depression and had attempted to abduct the children to India.
Issue and resolution: Parental separation and custody of children. The Court decided that the defendant father should retain custody of the eight year old, subject to joint guardianship by both parents and to the wishes of the child.
Court reasoning: The Court discounted the disputed allegations due to the absence of evidence. The Court noted that, according to the LRA, the welfare of the child must be the paramount consideration, with a rebuttable presumption that care by the mother is in the best interests of a child below the age of seven. The Court considered the undesirability of disturbing the life of a child by changes of custody, and found that where there are two or more children, the welfare of each child must be considered independently. A judge is not bound to place the children in the custody of the same person, though the court shall endeavour, as far as possible, not to separate any siblings. Nevertheless, if the siblings do not mind, then in consideration of what is best for the welfare of the child, the child should be under the custody of the parent with whom he is happier to live. Under the GIA, equal rights of guardianship by both parents should be adhered to unless there are special circumstances in which there is concrete evidence to prove that a parent is totally unfit to continue to be the guardian of the child. The Court interviewed both children and found that the elder child was absolutely sure that he wished to continue living with his mother, while the younger child, deemed to be intelligent and capable of expressing his own independent opinion, clearly preferred his father. The Court noted that as both the complainant and the defendant were working parents, the child would be under the care of the maid when either parent was at work, regardless of custody. A significant difference was found to lie in the fact that the complainant’s parents, who lived in India, would not be able to provide alternative care for the child, whereas the defendant’s parents lived nearby and would be able to help with care. The child had been cared for by his father during the mother’s 8 ½ month absence, until she returned from India to take over custody – the Court observed that the child was not adjusting well to the new circumstances and wanted to go back to his previous familiar environment in his father’s house. Finally, no evidence was found to indicate that the father was unfit for custody. The Court therefore awarded custody of the younger child to his father, with joint guardianship to both parents, subject to the wishes of the child, who will be able to decide at any time whether he wants to live with his mother or father. The Court held that its decision was in accordance with spirit and intent of the CRC.
Excerpt citing CRC and other relevant human rights At this juncture, it is good to consider the provisions of Article 9 of the Convention on the Rights of the Child, which Malaysia acceded to on 17.2.1995. It states, inter alia, as follows: “ Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedure, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests…” In this case, there is no evidence of abuse or neglect of Tanishq by the DH. I believe the decision that I made regarding the custody of Tanishq is in accordance with spirit and intent of the above provision of an International Convention on a child, that it is for the welfare and best interests of this child that he be placed under the custody of the DH, with reasonable access to the PW.
CRIN comments: CRIN believes this decision is consistent with the CRC. Article 3 requires that the child’s best interests are a primary consideration in all decisions concerning them, while Article 12 calls for the views of the child to be given due weight. The judge in this case conducted a thorough welfare appraisal and reached an optimal solution, by subjecting the order of custody to the wishes of the child and by granting the complainant mother reasonable access to and joint guardianship of the child.
Citation: Originating Summons No. F-24-58-2011 Link to Full Judgment: http://kl.kehakiman.gov.my/sites/kl.kehakiman.gov.my/attachments/J%2024-58-2011%20%28Aparna%20Sehgal%20v%20Jasmeet%20Singh%29.pdf