- 法庭表示在决定私生子的抚养权时，将根据英国的法律原则 (common law) 来做出考量 (Yap Lee See v William Tay & Ors  1 CLJ 793)。
- 根据英国common law，如果孩子是私生子，母亲就是合适的监护人，除非她被证明是一个不称职或不道德的的妈妈，不利于孩子；而亲生父亲对其私生子女没有任何权利。孩子的福利是决定抚养权的首要因素 (T v O  3 CLJ 1756)。
- 在Tan Siew Kee v Chua Ah Boey  3 MLJ 20一案中，法庭基于孩子们的福利将两个私生子女的监护权交给亲生父亲 (Putative Father)。父亲和母亲在抚养权事项中没有优先权，首要是孩子的福利。
- 儿童的福利不能仅靠金钱来衡量。儿童的身心灵发展也必须被考量, 同时儿童本身的情感发展也不容忽视。
- 法庭通常基于以下因素判决生理父亲(Putative Father)是否有抚养权探视权:
(ii) 是否有证据证明母亲在道德上或其他方面不适合照顾该小孩, 比如会做出伤害到孩子的行为。(morally unfit and also unfit in other ways to be granted custody, care and control of the children); 以及
- This is my judgment in respect of the applications in Enc. 1, Enc. 3. Enc. 23 and Enc.31. The applications are summarised in the table below:
- Brief decision:
(i) allowed the Applicant’s application in Enc. 1 and Enc. 23;
(ii) no order in respect of the Applicant’s interim application Enc. 3 as the application is rendered academic by the Court’s decision in the main application in Enc. 1; and
(iii) dismissed the Respondent’s application in Enc. 31 to strike out the Applicant’s interim application in Enc. 3 and the application in Enc. 10. As this Court had given its decision in respect of the Applicant’s main application in Enc. 1, the Applicant’s interim application in Enc. 3 was rendered academic. Additionally, as the Respondent had returned the Children to the Applicant on 1.4.2019 (prayer 1 of Enc. 10) and the Court had given the rest of the orders prayed for in Enc. 10 on 21.6.2019, the Respondent’s application to strikeout Enc. 10 is rendered academic.
- The Applicant and the Respondent are not legally married. They commenced their relationship in early 2016 and lived together in the Applicant’s home at Taman Melawati (“Melawati House”). Their relationship resulted in two children, M and J. As born children were born out of wedlock, they are accordingly, illegitimate.
- The Applicant contends that after the first child was born the Respondent’s behaviour became strange and he was violent towards her. Their relationship continued to deteriorate and the Respondent left the Melawati House in mid-February 2018. After the Respondent left, the Applicant then moved out the Melawati House with the eldest child to live her parents, as she was pregnant with the second child. In May 2018, the Applicant and the Respondent reconciled and went to live with the Respondent’s parents at their house in Shah Alam (“Shah Alam House”). The second child was born in September 2018.
- The Applicant says that her relationship with the Respondent worsened after the second child was born and that on 12.1.2019 she was hit by the Respondent and his parents and was chased out of the house by them. She said she managed to take the eldest child with her and later returned to take the second child but found that the house was locked and there was no one in the house. She filed a police report on 12.1.2019 stating that the Respondent had hit, kicked and pushed her and had spat at her face (1st police report). She filed a second police report on the same day stating that she had left the Shah Alam House with her eldest child to go live with her parents and that her second child who was still breastfeeding was with the Respondent (2nd police report).
- The Respondent avers that on 12.1.2019, the Applicant had suddenly left his parents’ house taking the eldest child with her. However, he did not deny the Applicant’s averment that he had hit her on that day or the contents of her 1st and 2nd police reports.
- On 14.1.2019, the Applicant returned to the Shah Alam House to breast-feed the second child. She said that the Respondent and his parents acted violently towards in their attempt to snatch the second child from her and prevented her and the second child from leaving the Shah Alam House. She then called the police. The police came the house and asked both the Applicant and the Respondent to attend the police station.
- On 25.1.2019, the Applicant filed the application in Enc. 1 and the interim application in Enc. 3 for sole guardianship, custody, care and control of both children.
- The Applicant continued to allow the Respondent access to the children pending the hearing of the applications in Enc. 1 and 3. On 23.3.2019, the Respondent and his parents picked up both children from the Applicant’s home for access and was supposed to return the children to the Applicant before 5pm on the same day. The Respondent failed to return the children at the agreed time and both he and his parents were uncontactable. The Applicant filed police reports reporting the Respondent’s non-return of the children on 23.3.2019, 24.3.2019 and 25.3.2019.
- On 27.3.2019, the Applicant filed an application in Enc. 10 for the Respondent to immediately return both children to her. The Applicant also prayed for restraining order prohibiting the Respondent either by himself, through his representatives and/or agents from interfering, assaulting the Applicant and the children and from taking the children or bringing them out of Malaysia without this Court’s and the Applicant’s written consent.
- On 1.4.2019, this Court gave an interim order to the Applicant pending the disposal of Enc. 10. This Court ordered that the Respondent return the children to Applicant on the same day. Overnight access to the children was given to the Respondent from Saturday 10am to Sunday 3pm. The Court also gave directions for filing of affidavits and written submission and fixed the decision for Enc. 10 to be delivered on 21.6.2019.
- When Respondent returned the Children to the Applicant on 1.4.2019 pursuant to the interim order, the Applicant found there was redness to children’s private parts and took the Children to a clinic, Klinik Idzham. The attending doctor concluded that the Children had diaper rash and diarrhea. On 6.4.2019, the Respondent had access to the children and returned the Children to the Applicant on 7.4.2019. The Applicant when changing the Children’s diapers found there was redness at the children’s private parts and the eldest child complained of pain at her private parts. The Applicant brought to the children to Klinik Idzham again but this time the attending doctor referred the children to Hospital Kuala Lumpur. Hospital Kuala Lumpur instructed the Applicant to make a police report to enable the hospital to make a thorough examination of the children. The hospital then referred the matter to the Jabatan Kebajikan Masyarakat (“JKM”).
- On 11.4.2019, JKM issued a letter to the police informing them that JKM and the attending doctor at the Jabatan Pediatrik, Hospital Kuala Lumpur agreed to discharge the children to the Applicant and that she is to file a police report to cover herself for not complying with the interim access order giving the Respondent’s overnight access since the children’s allege abuse was still being investigated by the police and the case is in JKM’s attention.
- The Applicant filed the police report on 11.4.2019 and on 12.4.2019, filed the application in Enc 23 for the stay of the interim access order granted by this Court on 1.4.2019.
- At the hearing of Enc 23 on 24.6.2019, this Court directed that a representative from JKM attend Court on 4.7.2019 to inform this Court on the status of the investigation. An ad-interim stay of the interim order dated 1.4.2019 was granted pending the disposal of Enc. 23. At the hearing on 4.7.2019, JKM’s representative informed this Court that JKM acted as protector of the children until they reach 18 years pursuant to the Child Act 2001 and were waiting for the outcome of the police investigation.
LAW ON GUARDIANSHIP, CUSTODY, CARE AND CONTROL OF ILLEGITIMATE CHILDREN
- It is settled law that the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) does not apply to co-habiting couples who are not legally married. However, the High Court in Chan Eng Lim v. Camille Yap & Other Cases  1 LNS 861 held that the principles in 88(3) of the LRA can be used in order to determine what is the best interest of the child born out of wedlock to the co-habiting couple: “In considering who should be given the guardianship, custody, care and control of Ryan, this Court also take into consideration the principles in section 88(3) of the Law Reform Marriage and Divorce) Act 1976 (LRA). Although this Act does not apply in our case, the principle can be used in order to determine what is the best interest of Ryan.”
The Federal Court in Sean O’Casey Patterson v Chan Hoong Poh & 4 Ors  4 MLJ 137 held that the Guardianship of Infants Act 1961 (“GIA”) applies to illegitimate children: “We conclude that the wordings of s 1(3)(a) of the GIA is sufficient to imply that this Act applies to an illegitimate child.”
- The High Court in Teoh Hock Soon v Chan Peng Soon  MLJU 71 held that following the Federal Court’s decision in Sean O’Casey Patterson, the GIA is applicable to illegitimate children. S 3 of the GIA can be invoked for any application for guardianship of an illegitimate child. The High Court further held that where the relief sought is merely for custody and control of an illegitimate child, then the application may be made under s 24(d) of the CJA and s 27 of the CLA. In such a case and if the issue of guardianship is not raised, English common law would apply to determine the issue of who should be given custody and control of an illegitimate infant.
- The relevant provisions of the LRA, GIA, CJA and CLA in respect of the guardianship, custody and care and control of infants, where legitimate or not are as below:
(a) Law Reform (Marriage and Divorce) Act 1976 S.88 of LRA: Power for Court to make order for custody (1) The court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person. (2) In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard- (a) to the wishes of the parents of the child; and (b) to the wishes of the child, where he or she is of an age to express an independent opinion. (3) There shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody. (4) Where there are two or more children of a marriage, the court shall not be bound to place both or all in custody of the same person but shall consider the welfare of each independently.
(b) Guardianship of Infants Act 1961: S.3 of the GIA: Duties of guardian of person “The guardian of the person of an infant shall have the custody of the infant, and shall be responsible for his support, health and education.” S.5. of the GIA: Equality of parental rights (1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal. (2) The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father.” S.11 of the GIA: Matters to be considered “The Court or a Judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.
(c) Courts of Judicature Act 1964: S.24(d) of the CJA: Civil Jurisdiction – Specific “24. Civil jurisdiction – specific Without prejudice to the generality of section 23 the civil jurisdiction of the High Court shall include- (d) jurisdiction to appoint and control guardians of infants and generally over the person and property of infants;”
(d) Civil Law Act 1956: S.27 of the CLA – Infants “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 at the date of the coming into force of this Act, regard being had to the religion and customs of the parties concerned, unless other provision is or shall be made by any written law.”
(II) Application of English Common Law position
- In addition to s.27 of the CLA cited above, 3(1) of the CLA states that “(1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall – (a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956; ……………………………. Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.”
- Since the CLA came into force in Peninsular Malaysia on 7 April 1956, Parliament has not enacted any statute governing the custody, care and control of illegitimate children. Therefore, pursuant to s.3(1)(a) and s.27 of the CLA, until Parliament enacts such written law, the law relating to the custody, care and control of illegitimate children is the same law as the one that administered in England as at 7 April 1956.
- The applicability of English common law to the custody, care and control of illegitimate infants in Malaysia is confirmed by the High Court in the Yap Lee See v William Tay & Ors  1 CLJ 793:
“ From s. 27 of the CLA, it is very clear that in this country, the law applicable to the custody and control of infants shall be the same as the law that would have been administered in like cases at the date of coming into force of the CLA, unless there is other provision made by any written law. Since the coming into force of the CLA in Peninsular Malaysia on 7 April 1956, ………………. there is no provision made in any written law or statute, whether in England or in Malaysia, relating to the custody and control of illegitimate infants (see also Re Balasingam & Paravathy, Infants; Kannamah v. Palani  1 LNS 134). Therefore, the law relating to the custody and control of illegitimate infants that is applicable now in Peninsular Malaysia, where this case is filed, is still the same law as the one that was administered in England as at 7 April 1956, namely English common law.
 Under English common law, where a child is illegitimate, the natural mother is the guardian unless she is considered morally unfit (see Bromley’s Family Law (8th edn), para 548 of Halsbury’s Laws of England, vol. 24, The Law of Guardianships by Richard V. Mackay – Oceana Publications Inc, New York]; (see also Lim Suk Fang (F) v. Lim Kim Heng  1 LNS 35).
- The general rule under English common law is that the biological father does not have any rights over his child born out of wedlock. The child’s biological mother has full legal rights over the child. The exception to this general rule is that if it is proven that the biological mother is an unfit mother or is immoral, right over the child may be taken away from the biological mother. Paramount to the Court’s consideration is the welfare of the child.
- In T v O  3 CLJ 1756, the position of the putative father of an illegitimate child:
“Under English common law a father of an illegitimate child had no “rights” over the child merely by virtue of his paternity. He had a legal obligation to support it provided it could be legally established that he was the father. That had to be done by extrinsic evidence. Maternity is a fact. Paternity only an opinion. The very serious social consequences which would follow by equating a natural father or mother to a lawful father or mother in the English legislation under consideration has been spelt out at great length and with great clarity by Roxburgh J and need not be repeated here.”
“It is also my view that ss. 9 and 10 of the Guardianship of Infants Act does not preclude a natural father, from applying to be appointed guardian, but bearing in mind that it is the welfare of the infant which is paramount, a strong case will have to be made out. Custody applications can be made by either parent in appropriate circumstances …….”
- In the Singapore case of Tan Siew Kee v Chua Ah Boey  3 MLJ 20, which was referred to with approval by our Federal Court in Sean O’Casey Patterson (supra), made an order of custody in favour of the putative father because the Court felt in the circumstance it was in the best interest and welfare of the child: “So far as the law is concerned, s 3 of the Guardianship of Infant Act (Cap 122, 1985 Ed) provides that in proceedings for the custody of an infant, the court shall regard the welfare of the infant as the first and paramount consideration and neither the father nor the mother has a superior right to custody. This Act applies not only between spouses but to whoever are the parties before the court in any proceedings relating to the custody of an infant: J v C  AC 669 (and in particular Lord Upjohn at p 724 et seq) and Re H (1965) 109 Sol J 575 (where the Court of Appeal upheld the decision of the court granting custody of an illegitimate child to the putative father on the ground that he could provide a stable home). The expression ‘welfare’ is to be taken in its widest sense. It means the general well-being of the child and all aspects of his upbringing, religious, moral as well as physical. His happiness, comfort and security also go to make up his well-being. A loving parent with a stable home is conducive to the attainment of such well-being. It is not to be measured in monetary terms.”
- In Teoh Hock Soon v Chan Peng Soon (supra), an application for guardianship of an illegitimate child under s 3 of the GIA, the court hold that where there is an application for guardianship of an illegitimate child but the relief sought is merely for custody and control of an infant, then the application may be made under s 24(d) of the CJA and s 27 of the CLA. In such a case and if the issue of guardianship is not raised, English common law would apply to determine the issue of who should be given custody and control of an illegitimate infant. The primary regard of the Court when considering the award of custody under the GIA is the welfare of the child. But the wishes of the parent or parents has to be considered as well. All 3 children in that case were illegitimate. Her Ladyship held that: “ In considering the welfare of the three children in this case, I now focus on two main factors: (a) whether the defendant is a fit mother and (b) if not, whether the plaintiff is able to safeguard the welfare and best interests of the children. (a) Whether The Defendant Is A Fit Mother Under this factor, I considered the following: (i) the defendant’s parenting skills; and (ii) the morals of the defendant as a mother.”
- In deciding whether guardianship, custody, care and control of the children should be given to the Applicant, this Court must first and foremost consider the welfare and best interest of the Children.
- At the date of the hearing on 4.7.2019, the eldest child was under three years old and the younger child was under one year old. There is a rebuttable presumption under 88(3) of the LRA that it is good for children under the age of seven years to be with their mother.
- Pursuant to 5 of the GIA, both parents of the children have equal parental right. Under s.11 of the GIA, in deciding as to whom to grant the guardianship of the children, this Court must primarily consider the welfare of the children and the wishes of their parents.
- However, as the Children in this present case are illegitimate, this Court must also consider the wishes of the Children’s natural mother and ascertain whether she is morally unfit or unfit in other ways to be granted custody, care and control of both Children. It is settled law that pursuant to English common law administered in England as at 7 April 1956 as the father of an illegitimate child does not have any rights to the illegitimate child.
- English common law and the Malaysian and Singapore cases cited above shows that the custody, care and control of an illegitimate child will be granted to the child’s natural mother unless it can be shown that the mother is morally unfit or unfit in other ways to be granted custody, care and control of both Children (see Tan Siew Kee v Chua Ah Boey  3 MLJ 20; Karupayee Paramasua v. Ravisanthiran P Marimuthu  1 LNS 650).
- In this case, the Respondent avers that the Applicant had filed the application for the guardianship custody, care and control of the children because she is jealous of the close relationship he has with the children. He contends that the Appellant is unfit to be granted the custody, care and control of the children because she works full time and is the head of her department.
- I find that there is no evidence that the Applicant as the Children’s natural mother is morally unfit or in any way unfit to care for the Children. With respect, I am unable to agree with the Respondent’s contention that working full time renders the Applicant an unfit mother. It that was so, all working mothers would be deemed to be unfit mothers and the custody, care and control of all children will be with their fathers, irrespective of whether or not the fathers are working. As a developing nation, the economic circumstances in Malaysia is that its female population form part of the workforce and many work full time while raising a family. It cannot be that by virtue of working full time, a mother is deemed unfit to care for her children.
- The evidence shows that the Applicants cares for the Children herself when she is not at work and that she had breastfed them during their infancy. When she is at work, the Children are cared for by her mother.
- I find that the Respondent has failed to prove on a balance of probabilities that the Applicant is morally unfit or unfit in any other way to be granted sole guardianship, custody, care and control of the Children. The Respondent also did not provide any evidence to rebut the presumption in s.88(3) of the LRA that it is good for the Children, who are both under the age of 7, to be with their mother.
- For all the reasons above and taking into account the ongoing police investigation into the allegation of abuse of the Children during the overnight access by the Respondent, it is my considered opinion that it will be in the best interest and welfare of the Children for the Applicant, their mother, to be given sole guardianship, custody, care and control of the Children.
- Accordingly, this Court hereby grants in respect of Enc. 1 the following orders: (i) the Applicant is granted sole guardianship, custody, care and control of the Children; (ii) the Respondent is given access to the Children only with the Applicant’s consent;
- Enc. 23 is allowed. The Respondent’s access to the Children is stayed pending the conclusion of the police investigation into the allege abuse of the Children.
- No order is made in respect of the Applicant’s interim application in Enc. 3. The interim application had been rendered academic with the grant of the sole guardianship, custody, care and control of the Children to the Applicant pursuant to Enc. 1.
- The Respondent’s application in Enc. 31 to strike out the interim application in Enc. 3 and the application in Enc. 10 is dismissed. Enc. 3 is rendered academic by this Court’s decision in respect of the Applicant’s main application in Enc. 1. Prayer 1 of Enc. 10 had been rendered academic by the Respondent’s return of the Children on 1.4.2019 and prayers 2,3 and 4 of Enc. 10 had been granted by this Court on 21.6.2019.
- There is no order as to cost in respect of Enc. 1 and Enc. 23.
- In respect of Enc. 31, the Respondent is ordered to pay the Applicant costs in the sum of RM1,000 within 14 days from 4.7.2019.
Source:  MLJU 1686. Faizah binti Jamaludin J
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#同居 #没有结婚 #没有注册结婚 #私生子的抚养权 #私生子抚养权的法律 #私生子法律的管辖
#Guardianship of Infants Act 1961 applies to illegitimate children # GIA applies to illegitimate children #adduce evidence to rebut the presumption in s.88(3)
#小孩的福利 #小孩福利的定义 #welfare is well-being of the child # definition of welfare para 24
#抚养权的因素 #factors to be considered para 25
#上班时间妈妈照顾 #上班时间太太的妈妈照顾 #上班的时候妈妈照顾 #上班的时候太太的妈妈照顾