Court/Judicial body: High Court in Malaya at Kuala Lumpur (Family Court, Civil Division)
Date: 30 September 2011 CRC
Provisions: Article 3: Best interests of the child Article 9: Separation from parents
Domestic provisions: Order 84 r 1, Guardianship of Infants Act 1961 (GIA): Any pending action or other proceeding where an infant is a ward of the court must be made by originating summons Section 27 of the Civil Law Act 1956 (CLA): In all cases relating to the custody and control of infants the law to be administered shall be the same as would have been administered in like cases in England, having regard to the religion and customs of the parties concerned, unless other provision is or shall be made by written law Section 24(d) of the Courts of Judicature Act 1964 (CJA): Civil jurisdiction of the High Court to appoint and control guardians of infants and generally over the person and property of infants
Background: Following the deterioration of their extramarital relationship, the complainant and defendant signed a settlement agreement whereby the complainant agreed to pay the defendant maintenance in instalments. In April 2009, the illegitimate child of the complainant and defendant was born and the complainant voluntarily paid the defendant an additional sum of RM3,000 per month for the child’s maintenance. The complainant also made the illegitimate child a 50% beneficiary of his retirement funds while his two legitimate sons shared the remaining balance of 50%. The complainant had been seeing the child everyday, except on Sundays, until he was denied access to the child by the defendant in February 2011. The complainant then applied to the Court to be granted access to the illegitimate child.
Issue and resolution: Parental contact, putative father’s rights of access to an illegitimate child. The Court held that it had jurisdiction to decide on matters regarding access, but dismissed the complainant’s application.
Court reasoning: The Court found that the GIA, CJA and CLA do not distinguish between legitimate and illegitimate children with respect to parliamentary intent to protect all children, and ruled that it had jurisdiction to consider applications regarding access to illegitimate children. Articles 3 and 9 were deemed to be applicable but subordinate to the laws of Malaysia. Under English common law and decided cases in Malaysia, the putative father has no legal rights over an illegitimate child and has no legal obligation to support the illegitimate child. The natural mother has full legal rights to the child, and the defendant was therefore end to a clean break from the complainant to bring up the child on her own. The Court held as a matter of public policy that it would be inappropriate to introduce a blanket rule that putative fathers must be given rights of access to illegitimate children, finding instead that a putative father should only be afforded access to an illegitimate child in exceptional circumstances, and that each case should be decided on its own facts and merits. The Court set out two main considerations: (a) the wishes of the mother of the child; and (b) the welfare and best interests of the child. The defendant had strongly resisted the complainant’s application for access, citing concerns relating to drinking, smoking and promiscuity, and fears for the child’s security and welfare. The Court concluded that, given the acrimonious relationship between the complainant and the defendant, access would not be in the child’s best interests. Even though the complainant had made significant financial provision for the child on his own initiative, the Court stressed that this could never make up for the fact that it was through the complainant’s affair with the defendant that this child was now rendered illegitimate, placing blame firmly on the complainant. The strong presumption in favour of the mother will only be displaced if it could be shown that she is morally unfit, or unfit in other ways, to have sole custody, care and control of the child.
Excerpt citing CRC and other relevant human rights  Learned counsel for the plaintiff further relied on articles 3 and 9 of the United Nations Convention of the Rights of the child (‘the CRC’) which provide as follows: [quotes Articles 3 and 9 in full]  The Government of Malaysia acceded to the CRC on 17 February 1995 but in a declaration dated 19 July 2010 it expressed its reservations with respect to certain articles (which did not include articles 3 and 9) and declared that the said provisions shall be applicable only if they are in conformity with the Federal Constitution, national laws and national policies of the Government of Malaysia.  The CRC applies to both legitimate and illegitimate children.  Both articles 3 and 9 of the CRC state that the best interests of the child shall be the consideration for the matters provided therein. This is consistent with the welfare principle that I had earlier dealt with.
CRIN comments: CRIN believes that this decision is mostly consistent with the CRC. Decisions pertaining to parental involvement in the child’s upbringing should be made with a view to the child’s best interests, in accordance with Article 3, and illegitimacy should play no role in the matter. However, laws which place a strong presumption in favour of the mother may violate the child’s Article 7 and Article 9 rights if the mother’s wishes overshadow the welfare of the child. The Court in this decision placed too much emphasis on the blameworthiness of the complainant in relation to the extramarital relationship, and on the exclusive rights of the defendant, with too little emphasis placed on whether the complainant’s access would contribute to the child’s welfare.
Citation: Originating Summons No. 24-111-2011 Link to Full Judgment: http://kl.kehakiman.gov.my/sites/kl.kehakiman.gov.my/attachments/24-111-2011_laterst.pdf