[GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Guardian One who has power over a child’s upbringing, care, discipline and religion
Custody - State of having certain rights over a child, which rights may include care
and control of the child.
- A parent may be granted custody of a child whilst the other parent may be
granted its care and control
- Parents may be granted joint custody, in which case both parents have a
say in the child’s upbringing but one of them physically has the child living
with him or her

Access - Right of a parent to visit and see his or her child who is in the care and -
control of the other parent.
- It is a means whereby a child remains in communication with his parent
whom he is not living with
- Access may be liberal or at any reasonable time, or it may be specified.
- When a parent has physical custody of a child, the other parent may be
granted the right to access

Wakeham v - The wife breached her promise to her husband that she wouldn’t take
Wakeham children out of the jurisdiction of the English courts without informing him &
English court had granted the husband a divorce based on his wife’s
discretion, the court granted custody of both the children to the
A court may
husband.
grant custody - The wife applied to have the order varied. The court varied the order by
to one parent granting custody of young son to the mother. Husband appealed.
and care & - COA: the usual order in cases such as the instant one is that the father, the
control to innocent party, is given the custody of the child but the care and control is
another left to the mother.
- Appealed was allowed and the custody of the young son was granted to the
husband, w/o prejudice to any questions
- Custody need not include care and control. A court may grant custody to
one parent and care & control to another

Dipper v - Ormrod LJ: it was a misunderstanding that a parent having custody had the
Dipper right to control the children’s education. Neither parent had any-emptive
right over the other.
Joint custody - If there was a disagreement as to the education of the children, or their
religious upbringing, or any other major matter in their lives, it will be
settled by the court
- In this case, joint custody seems right because this is a case where the
father has an intent to play an active part in his children’s lives

THE GIA 1961

S. 1(1) 1.(2) This Act shall apply to the States of Peninsular Malaysia
Peninsular only

S. 1(3) (3) Nothing in this Act shall apply in any State to persons professing the
Not applicable religion of Islam until this Act has been adopted by a law made by the
to Muslims Legislature of that State – All Peninsular States didn’t adopt this Act
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Faridah bt High Court don’t have any jurisdiction to entertain any matter that is related to
Dato Talib v Islamic Family Law – Muslims matter is under Syariah Courts jurisdiction
Mohamad
Habibullah

Shamala - The case decided on April 2004 concerns the conversion of two Hindu
Sathiyaseelan infants, Saktiswaran and Theiviswaran, aged 4 and 2 years respectively, to
v Islam
Dr - In essence what this decision means is that the civil courts do not have the
Jeyaganesh power to hear any application on conversion to Islam as that is a matter for
Mogarajah the state Syariah court under the Constitution

Subashini - The wife complained that the husband had no right to convert either child
Rajasingam v of the marriage to Islam without the consent of the wife. She said the
Saravanan choice of religion is a right vested in both parents by virtues of arts 12(4)
Thangathoray
and 8 of the FC and s 5 of the Guardianship of Infants Act 1961.

- Nik Hashim FCJ: Either husband or wife has the right to convert a child of
the marriage to Islam. The word 'parent' in art 12(4) of the FC, which
states that the religion of a person under the age of 18 years shall be
decided by his parent or guardian, means a single parent

- Therefore, art 12(4) must not be read as entrenching the right to choice of
religion in both parents. That being so, Art 8 is not violated

- Hence the conversion of the elder son to Islam by the husband albeit under
the Selangor Enactment did not violate the FC. Also reliance cannot be
placed on s 5 of the Guardianship of Infants Act 1961 which provides for
equality of parental rights since s 1(3) of the same Act has prohibited the
application of the Act to such person like the husband who is now a Muslim

S. 2
Infant A person who has not attained his majority

S. 2(2)(a) (i) every person professing the religion of Islam shall be deemed to have attained his
majority when he shall have completed his age of eighteen years and not before;
Muslim = 18 and
Non- Muslim = (ii) every other person shall be deemed to have attained his majority when he shall
21 have completed his age of twenty-one years and not before

S. 3 The guardian of the person of an infant shall have the custody of the infant, and shall
Duties of be responsible for his support, health and education.
guardian

S.4 Subject to the rights and powers of any trustee or personal representative in whom an
Duties of infant’s property is vested, a guardian of the property of an infant shall have
guardian to the control and management of the infant’s property, and shall deal therewith as
take care of carefully as a man of ordinary prudence would deal with his own property, and
the infant’s may, subject to this Act, do all acts which are reasonable and proper for the realization
property or protection of the infant’s property.
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

(1) In relation to the custody or upbringing of an infant or the administration of any

S.5 property belonging to or held in trust for an infant or the application of the income of
Equality of any such property, a mother shall have the same rights and authority as the law
parental allows to a father, and the rights and authority of mother and father shall be
rights 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.6
Rights of On the death of a parent of an infant, the surviving parent, if any, shall,
surviving parent
subject to this Act, be guardian to the infant either alone or jointly with any
– court can
appoint the 3rd guardian appointed by the deceased parent, and—
party to act as a (a) if no guardian has been appointed by the deceased parent; or
joint guardian (b) in the event of the death or refusal to act of the guardian or guardians
appointed by the deceased parent, the Court may, if it thinks fit, appoint a
guardian to act jointly with the surviving parent.

S.10 The Court or a Judge may at any time remove from his guardianship
Removal of any guardian, whether a parent or otherwise and whether of the person or
guardian the property of the infant, and may appoint from time to time another person
to be guardian in his place.

*S.7 (1) A parent of an infant may by deed or will appoint any person to be
Power of guardian of the infant after that parent’s death.
parent to (2) Any guardian appointed under subsection (1) shall act jointly with the surviving
appoint parent, if any, but if—
testamentary (a) the surviving parent objects to the guardian so acting; or
guardian (b) the guardian considers that the surviving parent is unfit to have the custody of the
infant, the guardian may apply to the Court and the Court may—

(aa) refuse to make any order (in which case the surviving parent shall remain the
sole guardian of the infant);
(bb) make an order that the guardian shall act jointly with the surviving parent; or
(cc) make an order that the guardian shall be the sole guardian of the infant.

(3) If the Court makes an order under paragraph (2)(cc), the Court may make—

(a) such order regarding the custody of the infant and the right of access of the
surviving parent to the infant as, having regard to the welfare of the infant, the Court
thinks fit; and

(b) an order requiring the surviving parent to pay to the guardian such periodical sums
towards the maintenance or education of the infant as the Court may consider
reasonable having regard to the means of that surviving parent.

(4) If guardians are appointed by deed or will by both parents of an infant, the
guardians so appointed shall, after the death of the surviving parent, act jointly.

(5) A guardian appointed by the Court under section 6 to act jointly with the surviving
parent shall continue to act as guardian after the death of the surviving parent, but if
the surviving parent has appointed a guardian, the guardian appointed by the Court
shall act jointly with the guardian appointed by the surviving parent.
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

(1) If an infant—
S. 8A (a) has been abandoned by his parent or guardian; or
Protector to be (b) has no parent or guardian,
temporary
guardian of and no other suitable person is willing and able to care for him,
abandoned
the Court—
infant

(aa) shall appoint a Protector to be a temporary guardian of the infant’s person and
property or either of them until such time as a guardian of the infant’s person and
property can be appointed;

(bb) shall determine the extent of the powers and duties of the Protector as a
temporary guardian in relation to the infant’s person and property; and

(cc) may impose such other terms and conditions as, having regard to the welfare of
the infant, the Court thinks fit.

(2) Subsection (1) shall apply whether or not an infant is placed—

(a) in a place of safety; or
(b) in the care, custody and control of a foster parent, pursuant to any law relating to
the care and protection of an infant.

(3) Section 4 shall not apply to a temporary guardian appointed under this section.

S.11 The Court or a Judge, in exercising the powers conferred by this Act, shall have regard
Matters to be primarily to the welfare of the infant and shall, where the infant has a parent or
considered parents, consider the wishes of such parent or both of them, as the case may be.

APPLICATION TO ILLEGITIMATE CHILDREN

Common Law - The Respondent was the mother of an illegitimate boy by a man named James
Barnado v with whom she lived for about 20 years
McHugh - Subsequently, the respondent married a man name McHugh
- The boy was admitted into Homes of Destitute Children, of which the appellant
the mother is was the founder and director under a committee
entitled for - The mother signing an agreement to leave the boy under the care of the
the custody managers of the Homes to be maintained and educated for 12 years and not to
of illegitimate remove him during that period without their consent
child
- 18 months later, the respondent wanted the child to deliver back to her but the
appellant (Dr Barnado), refused to do so.
- The mother was granted with harbeas corpus from the court and the court was in
favour of the mother
- In deciding the welfare of the child, court will take the mother’s wishes into
consideration

Re Miskin - The plaintiff applied under the Guardianship of Infants Act 1961 (‘the Act’) for the
Rowter custody of her two illegitimate infant children. The application was uncontested as
the defendant failed to enter appearance.
The guardianship
- The court, however, had to decide whether it has jurisdiction to hear such an
of an illegitimate
child was given application.
to the natural - Held, allowing the application
mother
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

- The Act does refer to illegitimate children and such reference can be found in s 1(3)
which contemplates that the state legislature may provide for the Act to be
applicable to Muslim children regardless of whether a child is legitimate or
illegitimate to the extent that such an application is not contrary to Islamic law.
- If s 1(3) contemplates such an application as regards Muslim children, the Act must
apply to children generally, legitimate or illegitimate. The court thus has jurisdiction
to hear the application and granted custody of the two children to the plaintiff.

Whether GIA is applicable to the illegitimate child

Re - The applicant applied under the Guardianship of Infants Act, 1961 for custody of
Balasingam v her two infant children.
Parvathy –
- There was a dispute as to whether she was legally married to the respondent but
GIA isn’t
applicable for the purpose of this case; it was assumed that there was no valid marriage. The
question before the court was whether the High Court has jurisdiction to entertain
an application by the de facto mother for a custody order under the Guardianship of
Infants Act, 1961.
Held, dismissing the application

1. "Infant" means legitimate infant unless there is some repugnancy or inconsistency

and not merely some violation of a moral obligation or of a probable intention resuiting
from so interpreting the word.

Accordingly, since none of the words "father", "mother" or "infant" appearing in

sections 5 and 6 of the Act can be construed to mean illegitimate infant or the de facto
parents of illegitimate children, it must be concluded that the Act does not apply
to illegitimate children and therefore this court has no jurisdiction to make the
order sought. However the applicant has a remedy, as she can still institute ward
ship proceedings;

2. English law is applicable to cases relating to custody and control of children but
regard is to be had to the religion and customs of the parties.
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Tam Ley - The plaintiff and defendant were married under Chinese custom but their marriage
Chian v Seah was not solemnized in accordance with the Law Reform (Marriage and Divorce) Act
Heng Lye 1976 ('the Act').

father has no - A child was born to the couple but due to some misunderstanding, the plaintiff was
right upon the evicted from the matrimonial home and the child forcibly removed from her care
illegitimate and custody.
child
- The plaintiff has applied for an order that she be appointed guardian of the child,
averring that she is the natural mother of the child and that because the marriage
was not solemnized in accordance with the Act, the child was therefore born out of
wedlock and was illegitimate under the law.

Held, allowing the plaintiff's application:

(1) The parties agreed in their respective affidavits that their marriage was void.
Therefore, the child was illegitimate. Where a child is illegitimate, the putative father
has no rights over him under the common law

(2) Section 24 of the Courts of Judicature Act 1964 confers the High Court with the
jurisdiction to appoint and control guardians of infants, which must also include
illegitimate infants.

- The applicant (the mother of an illegitimate child) applied for guardianship of

Low Pek Nai v the child. The father contested the application. The merits of the father or
Koh Chye
mother as a guardian was not at issue
Guan

GIA is - The court was to ascertain whether:

applicable to
illegitimate (i) s 5 of the Guardianship of Infants Act 1961 ('the Act') is applicable to the
child father of an illegitimate child in order to allow him to claim guardianship of that
child; and
(ii) the Act as a whole is applicable to illegitimate children so as to enable the
mother to rely on it to claim guardianship of the child.

Held, allowing the application:

- Section 5 of the Act is intended to apply to a lawful father and accordingly the
father of an illegitimate child cannot claim guardianship under it.
- The wider question was whether the Act as a whole applies only to legitimate
children and does not apply to illegitimate children.
- However, in this case, if s 6 of the Act does not apply to illegitimate children, so
that the mother in this case cannot rely on it to claim guardianship of the child,
then the question must be decided according to the common law of England,
under which the mother, to the exclusion of the father, has rights over and
obligations towards her illegitimate child. For that reason, mother was ordered
to be the guardian of the child
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Khow Liang  The plaintiff (the real mother) has applied for custody and guardianship to the care
Keow v Tee and control of both her infant child and an injunction preventing the defendant
Ming Kook (actual father) from attacking or threatening her.
 The plaintiff's affidavit, he was married to the defendant in accordance with the
customs of the Chinese who were invalid for ab initio as opposed to s. 5 (4) of the
Disagree with
Low Pek Nai v Law Reform (Marriage and Divorce) Act 1976 (Act 164).
Koh Chye Guan  Therefore, both of his children are considered as illegitimate children. Subsequently,
case. Agree before the plaintiff split up with the defendant at the end of 1991, she had lived with
with Re the defendants and cared for and nurtured their children and since the birth of the
Balasingham two children never parted with the plaintiff.
and Parvathy
 However the Court is of the opinion that both parties believe their marriage is legal,
Page 265
backed by the fact that they have lived together as a spouse and their two children
have been born and raised in their genitalia before they are separated.
 s. 75 (2) of Act 164 considers that a child born from this marriage shall be deemed a
legitimate child and according to s. 91 of the 164 act children deemed legitimate
under s. 75 should be under the care of the real mother.
 The court found that the two children were below the age of 7 years and since birth
they are always in addition to the plaintiff as their real mother who has given full
love.
 The welfare of the children should be the first and foremost consideration and other
considerations should be the only side.
 If the right of care is given to the defendant it may result in the children
experiencing an emotional stress because the children had previously been guarded
and raised by the plaintiff and lived with the mother and brother of the plaintiff.
 The court allowed the appeal from plaintiff

Yong May Imm The term "welfare" means that every circumstance must be taken into consideration
v Sia Kuan and the court must do what under the circumstances a wise parent acting for the true
Seng interests of the child would or ought to do

 Facts: The applicant is the mother of an illegitimate child. She applied for
Low Pak Houng guardianship of the child. The father contested the application.
v Tan Kok
Keong  ISSUES: Whether S.5 of GIA applied to the father of an illegitimate child and
thus allowing him to claim guardianship of the child and whether or not the Act as a
whole applied to illegitimate children to enable the mother to rely on it to claim
guardianship of the child.
 S. 5 – the father of an infant shall ordinarily be the guardian of the infant’s person
and property’
 S.6- where an infant has no lawful father living, the mother of the infant shall
ordinarily be the guardian of his person and property’.
 The judge concluded that s.5 of the 1961 Act is intended to apply to a lawful
father and that accordingly the father of an illegitimate child cannot claim
guardianship under it.
 In this case the court granted the mother to be the guardian of the child.
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

1. CHILDREN’S WELFARE

S.11 of GIA 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.
a) Welfare of the children
b) Wishes of the parents
Kanagalingam v  The child concerned was 18 y/o and had undergone a marriage ceremony at a
Kanagarajah Hindu temple with the appellant.
 The marriage however, was held against the wishes of the girl’s parents.
The court should  Her father applied for the writ of habeas corpus but the high court ordered that she
consider the will be sent to her aunt’s house to stay pending open application.
of the child,  The appellant husband applied for the girl to be released because she was his wife
especially when  Abdul Hamid FJ- the judgement of the federal court, not consider the wishes of the
the child girl.
understands or  It is necessary to consider the wishes of the infants to determine what serves
knows his own the best interest and welfare of the infants.
will  The girl been freed from all restrain and that she be at liberty to choose where she
wishes to go.
2. THE MEANING OF WELFARE

JvC  At the time of the application the child was 10 y/o

 Since the age of 4 days he was taken care of by English foster parents because of his
A child's welfare mother’s ill-health. When his parents returned to Spain, eh followed them or 17
can be months. Due to his own ill-health he returned to England and stayed with his foster
exercised by a parents ever since. At the time of the application his parents were living in Spain and
foreigner
his mother’s health had been restored. They were unfit to care and control of their
child.
Special weigh
must be given  The foster parents had 6 children, but the child had face no difficulties on adjusting
to the welfare of and integrating with the family
the child  There was medical evidence prove that if the child followed his parents to Spain, his
emotional stability and happiness may grave.
Moral characters  The trail judge granted the care and control to the foster family. And the CoA affirmed
of the parties and
the decision
the state of two
household should
be consider

Re Satpal  The mother of the child left her matrimonial home to return to her parents’ home forty
Singh days after the birth of the child, and did not return ever since.
 She underwent a ‘marriage’ ceremony with the second respondent although it was
uncertain whether the marriage was valid. The child’s father applied for the custody.
 He learned judge referred to Allen v Allen where it was held that the word ‘welfare’
means physical as well as moral welfare, and merely because of the mother had
once committed adultery, it cannot be said she is not a fit person. The women adultery
should be no reason for depriving her of the care and control of her son.
 The father was in the position to give his son the benefit of a comfortable and
substantial home in surrounding, with the security, education and healthy family.
Thus, the custody of the child was granted to the father
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Mahabir  The applicant father was a Malaysian citizens and the mother was an Indian citizen.
Prasad v  They have 2 daughters aged 7 and a half and 8 and a half.
Mahabir  The father had returned to Malaysia in 1874 whilst the mother remained in indian until
Prasad 1978. In January 1980, the marriage broke down and the respondent returned to India
and obtained a divorce.
The wishes of  She applied for custody of the children at the court in KL. The court ruled that it would
the parents to be the best if the children be with their mother.
care for his or  The points considered by the court was- in relation to the ebst interest of the children
her children
were the behaviour of the father and mother and the extent to which they were
must
indicative of their future behaviour; the age of the children, the condition of the house
necessarily take
low priority both in Bombay and Malaysia, the ability of the mother to be with the children for the
compared to the long term, current situation were the children were living and the wishes of the
best interest or children to live with their mother.
welfare of the  The mother had a son aged 13 y\o from the first marriage and he has a close
children relationship with his 2 younger sisters. There were no younger relatives of the age
group of the children in the father’s household
 The children may suffered from emotional development if they are suddenly removed
from a known, secure and supporting environment
 The court granted he custody to the respondent mother

3) Other factors considered by the court

a) Age and the gender of the child

s. 88 (3) of There shall be a rebuttable presumption that it is for the good of a child below the age of
LRA 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.

(Note: This assumption can be detected if it can be shown, for example, the mother
behaves immoral)

b) Wishes of the children

S.88(2)(b) of (2) In deciding in whose custody a child should be placed the paramount consideration
LRA 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.
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Manickam v  There were 2 children, boys aged 4 years old and 9 years. The mother apply for the
Intheranee custody of her children. At the time of the application the younger child was living with
the mother and the eldest with the father. The father had married a second wife and
this wife had delivered a child on her own. The father was dependant on his mother to
take care of his 8 years old son, indeed the son was close to his grandmother.
 The court referred to the section 88(2)(b) of the LRA- wishes of the child when they at
the age that can give independent opinion
 HC decision to grant custody to the mother was defective because they have not
interviewed the child. –
 FC- the child aged about 8 y/o and in the custody of the appellant and his family could
not reasonably be expected to express any independent opinion on his preferences.
 Held- the care and attention for natural mother could be reasonably expected to be
superior to that of a stepmother, particularly one with her own child.
 The appeal by the father was dismiss
c) Wishes of the parents
S.88(2)(b) of (2) In deciding in whose custody, a child should be placed the paramount consideration
LRA 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

Chua Thye  Parents of the child died

Peng v Kuan  Both grandparents requested for custody of the child
Huah Oong-  The court look into consideration of the deceased (wishes of the parents) to decide the
welfare of the children in their custody

d) Religion and custom

Re Balasingam Religious education and the wishes of the parents are the main factors that will be
and Parvathy- considered by the court to decide on the best interest of the children.

Article 12(4) Federal Constitution

(3) No person shall be required to receive instruction in or to
take part in any ceremony or act of worship of a religion other
than his own.

12(4) For the purposes of Clause (3) the religion of a person

under the age of eighteen years shall be decided by his parent
or guardian.

=The parents will decide on the religious beliefs until they reach 18 years of age.
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

e) Custom and ethnicity background

Teh Eng Kim v Malaysian Federal Court adopted the English principles from the case of Poel v Poel
Yew Peng (1970) and held that the following principles apply in a relocation dispute:
Siong  The welfare of the child must be the paramount consideration.
 Refusing the primary carer's reasonable proposals for relocation of his/her family
life is likely to impact detrimentally on the welfare of the dependent child.

The application to relocate will be granted, unless the court concludes that the decision
is incompatible with the welfare of the child.

Masam v - The court had to consider the situation where the natural mother was asking for
Salina Saropa
custody of her son from the foster parents who had been taking care of him since he
& Anor
was nine days old.
- In this case the court held that since the infant had been living with the foster
parents for a period of approximately two years and since they had cared for it with
love and affection, custody should remain with them.
- The court further said that if the infant were taken away from the foster parents after
such a length of time the result might be that he would develop a permanent
emotional scar
f) The attitude of parties involved.

Shanta The court also said that in considering the paramount consideration, the care, comfort,
Kumari v
attention, the well-being and happiness of the child are matters that should be taken
Vijayan
into account.
Masam v The parties that requested for custody must act morally and appropriately.
Salina Saropa
If either party left the child without reasonable excuses, it will be one of the reason for
& Anor
the court to deny the custodial rights
Rani v “In deciding the question of custody under section 11 of the Guardianship of Infants Act,
Arumugam 1961, it is imperative for this Court to note that no parent enjoys an earlier or superior
Krishnasamy right over the child and that the welfare of the infant should be the paramount
[2014] consideration.

The care, comfort and attention as well as the wellbeing and happiness of the child are
relevant matters to be considered.

The Court may also look into the conduct of the parties and decide which of the
two houses can offer the child better security and stability.”

g) The possible conciliation between both parties.

Loh Kon Fah v If the marriage between both the parties still exist, despite separation occur, and that no
Lee Moy Lan sign that either party did not want to visit the child at any time, the mother should be
given the custody.

By doing so will allow the parties to meet up frequently and allow conciliation.

Shanta Welfare of the children as the paramount consideration, having regard to the care,
Kumari v comfort, attention, well-being and happiness of the child and held in favor of the mother
Vijayan being given custody of younger infants.
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

(h) Maintenance in the form of education and material

Re Satpal Singh, The welfare of the children is not supposed to be compared with the ability for
an infant someone to provide only materially. It does not mean that a party who is financially
at an advantage will be given the custody compared to the less advantage party.
However, if one of the mother or father can provide a good and healthy environment
to stay better than another, the court will not hesitate to grant custody to the party

(i) Health and Treatment

Lee Soh Choo v The court is not in favor to transfer a child from a place that he/she is used to and
Tan Ket Huat place the child in a place that he/she is not used to because the transfer will cause a
psychological effect towards the growth of the child

(j) Other Factors

S. - There were 3 children, two girls and a boy.

Thaiyalnayagam - Their parents have passed away and they were in care of maternal grandmother,
v GM Kodaguda the respondent
- However the paternal grandmother applied for an order of adoption of the three
children to be committed to her, that she be the legal guardian and that the
respondent should deliver the children to her
- The judge noted that he had to consider the welfare of the children as the first
paramount consideration
- The issue of religion arose, the applicant claim that the parents of the children
used to practice Hindu religion and the children had been through the Hindu
ceremony
- However, the parents actually have agreed that the children should be raised in
Roman Catholic faith
- Respondent was granted custody

- The child was nine when he lived with his mother in his maternal’s grandmother
house when his mother left the matrimonial house
WinnieYoung v
- He later went to live with his father and his paternal grandparents
William Lee Say
- The father had a mistress, a widow, living with him two of her sons from the
Bend
previous marriage. They had a baby together.
- The plaintiff (mother) applied for custody alleging that the chance in
circumstances, namely the child is not well taken care off at his paternal
grandparent’s home as the grandfather had to take care of the sick grandmother
(stroke), the father who had to take care of the two allegedly insane sisters, and
the presence of the father’s mistress and her two children who allegedly fought
with the child.
- The parties were not divorce yet during this application
- The HC refused the plaintiff’s application, on the immoral issue, court said that
there isn’t really a stringent rule in considering the issue of custody
- The father would have been married with the mistress if it weren’t for the obstacle
posed by plaintiff to dissolute the marriage
- On the stepmother issue, the court was on the opinion that she could be a good
mother to the child as she had treated him well
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Manickam v - Wan Sulaimna FJ’s view regarding stepmothers is that the court nevertheless ruled
Intehranee that it depends on the facts and the evidence in each case whether or not a
stepmother is capable of giving care and attention as opposed to a natural mother

Re KO (An - The court view that adultery on the part of the mother rebutted the presumption
Infant) that the child should be with her

- The HC was in the view that the applicant’s behaviour was inappropriate in a
multi-racial society such as in Malaysia where living in adultery is frowned upon
the community

ACCESS
TvT - The parents of a girl were divorced and custody was granted to the petitioner
mother

- The respondent father was given access to the child on the afternoon of
Wednesday in each week between 5pm-7pm and on morning of Sunday between
9am-1pm

- The mother applied for an order that the father be denied access to the child
until further order of the court

- According to the mother, the father had abused the privilege of being allowed to
see his child twice a week

- Affidavits of a pediatrician attested to the negative effect the father brings to the
child

- Order of access was varied to once a month

 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

PART VIII – PROTECTION OF CHILDREN

LRA

S.87 “child” has the meaning of “child of the marriage” as defined in section 2 who is
under the age of eighteen years.

S.2(1) “child of the marriage” means a child of both parties to the marriage in question
or a child of one party to the marriage accepted as one of the family by the other
party; and “child” in this context includes an illegitimate child of, and a child
adopted by, either of the parties to the marriage in pursuance of an adoption order
made under any written law relating to adoption;

S.88(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 any association the objects of which include child welfare or to any other
suitable person.

Saraswathy v - In this the court held that the phrase ‘at any time’ means that the applicant may
Palakrishnan apply for and the court may order custody of a child without needing to wait for a
divorce action being commenced.
- In this case, the application was made under section 88(3) of the LRA by the
mother of the child concerned.
- The learned high court judge ruled that because there was no divorce proceeding,
the court had no jurisdiction to entertain the application for custody under the
LRA.
- The learned judge suggested that the application ought to have been made under
the Guardianship of Infants Act, in which event she would have declined to
exercise her discretion in favour of the applicant mother.
- The Supreme Court viewed this as a judgement in the alternative and wrong in the
current context. Having held that she had no jurisdiction, she should have
dismissed the originating summons. The court was at the view that:

‘the three Acts : Law Reform (Marriage and Divorce) Act1976, the Guardianship of
Infants Act 1961 and the Married Woman and Children (Maintenance) Act 1950 are all
applicable depending on the circumstances of a particular case and that in the state
of affairs surrounding this appeal the application under section 88(3) was properly
made. There would be no need for the parties to wait, until perhaps the unlikely
event of their commencing a divorce action before making such application.’

Section 88(2) Provides for the matters to be considered by the court when deciding in whose
custody a child should be placed.

 The paramount consideration should be the welfare of the child, and

 The court should have regard to the wishes of the parents of the child, and

 The wishes of the child, where he or she is of an age to express an independent

opinion.

Section 88(3) Provides that there shall be a rebuttable presumption that it is for good of a child
below the age of 7 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 distributing the life of a child by changes of custody
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Chan Bee Yen v - In this case, the court found the complaint of the failure to provide a separate
Yap Chee Kong home for the wife had tipped the balance in favour of the wife when the court
considered the question whether the wife was an unimpeachable parent.

- The court also found that the views of the child concerned, obtained through an
interview by the court in the chambers, were unreliable and not independent as
there could have been a certain amount of inevitable coaching or ‘brain- washing’
by the father.

- The court granted custody to the mother with daily access to the father for
certain hours.

Amar Kaur a/p - There were six children in this case aged 12,10,9,7,6 and 5 at the time of the
Ram Singh v application.
Najar Singh a/l
Sagar Singh - At the time the court made the eventual order, there was only oe child below the
age of 7. the children had been staying with their father, their parental
grandmother and an aunt, together with their mother until the mother left the
matrimonial home to live with her mother.
an example of a
rebuttable of - At the date of the custody order, she had been living away from the matrimonial
the for a total of 2 years.
presumption
provided in - The plaintiff mother applied for the custody of her children and attributed her
Section 88(3) departure from the matrimonial home to interference, instigation and assaults
of the LRA from her in-laws.

- The respondent husband attributed his wife’s frequent outbursts of temper and
violence to her mental state. She also had suicidal tendencies.

- His Lordship interviewed the children, found them intelligent and eloquent , and
they ‘did not mince their words to state that they prefer to stay with their father’.

- On the presumption, his Lordship noted that it is rebuttable presumption and on

the facts of the case concluded that the presumption had been rebutted.

- The plaintiff’s application was dismissed. Reasonable access was granted on

terms to be agreed between the parties.

Tan Sew Yok v - The child concerned was a 10 year old boy
Ng Keng Huat
- He had lived with his mother, the applicant, until 2 years prior to the application,
when his father took him away by force from her.

- The High Court granted the application after considering the totality of the
evidence, inter alia, that the child was with his mother for 9 years before he was
taken away.

- She had taken the trouble to look for him outside his school at the time when his
father had taken away from her,shows that his mother was earning more than his
father.

- And that working at home, the mother would be able to take care of him better
than his father who had to rely on a friend to care for him while his father was at
work.

- The father was given reasonable access tom his child

 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Laura Dorris a/p - The child was a girl aged less than 7 years.
Laurence v
Thuraisingam a/l - At all times since the child’s birth, she had been in the care of her maternal
James grandmother, including when the applicant was living with the respondent in the
matrimonial home.

- This was because the grandmother’s house is just next door.

- The applicant admitted that she was committing adultery with a married doctor.

- Counsel for the applicant had forwarded to the court the presumption under
section 88(3) of the LRA, that a child below 7 years should be with his mother.

- The case authority of Re Ko, where it was the view of the court that adultery on
the part of the mother rebutted the presumption that the child should be with
her.

- The high court, was of the view that the applicant’s behaviour was inappropriate
in a multi- racial society such as in Malaysia where living in adultery is frowned
upon by the community.

- Having considered the other aspects of the case, including the welfare of the
child, his age, religion, and background, and his parent’s behaviour, the High
Court dismissed the application by the mother.

- Access to the child would continue.

Thavamani Devi - The application was for the custody of a 2 year old child by his mother.
v N.Sugumaran
- The second def was the paternal grandmother of the child.

- When the child was about 2 months old, the applicant left the child in the care
and custody of the defendants until the day of the hearing.

- The High Court considered the presumption that a young child is better off with
his mother than father.

- It also considered the situation of the child with his current custodians, namely,
his father and his grandmother and found that there was nothing to show that the
welfare of the child was better attended to with the mother.

- Indeed, the onus was on the applicant to show that she offered such significant
improvements or advantages to the welfare of the child to warrant a change of
custody, and justify a disturbance from change of environment.

- Having failed to do so, custody was ordered to remain with the father and
grandmother.

Section 88(4) Caters for the situation where there are 2 or more children of a marriage. In such a
case, the court shall not be bound to place both or all of them in the custody of the
same person but shall consider the welfare of each child independently.
 [GUARDIANSHIP AND CUSTODY] NASRIN, IZHANI, OLEE, MIRA, NAUFAL

Khoo Cheng Nee - The 2 children were aged 10 and 7 years and because these ages were above 7
v Lubin Chiew years, the presumption under section 88(3) of the LRA was irrelevant.
Pau Sing
- The court decided that the interest of the children in this case were best served if
they were not separated.

- This was because they were of the same sex, there was a difference of three
years in their ages, and their closeness to each other. A separation would only
add to their trauma of having feuding parents.

- The court considered the mother’s closeness to her children and the fact that they
were living with her at the time of the proceedings.

Section 89 Generally an order for custody entitles that the person given custody to decide all
questions relating to the upbringing and education of the child. The custody order,
however, may be made subject to conditions the court thinks fit to impose, if any,
from time to time. The conditions are listed in Section 89(2).

Please refer to the LRA for all these sections. No cases for these sections.

Section 89(2)

Section 90(1)

Section 90(2)

Section 91 + section 75

Section 100

Section 101