Amarapathi a/p Periasamy v Muniandy a/l Periasamy [2006] 5 MLJ 126

Court: Federal Court (Putrajaya)

Topic: Custody of Children Sought by Foster Parent (Civil)

2.     The Appellant is a younger sister of the Respondent and as such the Child by right is her niece.

3.     The Appellant has been married for over 15 years with no child of her own while the Respondent had fathered four (4) children, of whom the Child is one.

4.     The Child was born on 21 January 1994 and was the third child amongst her siblings of two brothers and a sister.

5.     When the Child was only 3 ½ months old, the Respondent had surrendered the care and custody of the Child to the Appellant in hope that the by taking care of the Child, the Appellant would be able to conceive a Child of her own.

6.     Over eleven (11) years, the Child was showered with love and affection which the Appellant fed and clothed her, provided for her health care, good education and treated her as if the Child was her own.

7.     During the Deepavali in 2004, the Appellant and her husband took the child to Jitra, Kedah to meet the Child’s natural parents and siblings to celebrate together.

8.     At the end of the visit, the Child was persuaded to stay back with her family with a promise that the Child would be returned to the Appellant.

9.     However, the Child was never returned and to enforce the parental rights, the Appellant turned to the courts to seek a number of reliefs of which is to restore the custody of the Child to her.

10.  At first instance, the High Court dismissed her application.   On appeal, the Court of Appeal agreed with the High Court’s findings.

11.  Thus, the Appellant brought the appeal to the Federal Court to retrieve the custody order.

“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.” [Emphasis Added]

2.     It had been emphasised by the Federal Court that the introductory words of ‘The Court may at any time by order’ in the subsection is a giveaway whereby the Court is asked to determine which parent has the better right to custody at the expense of the other.

3.     Moreover, the subject matter of the dispute is the Child of the marriage which under Section 2 of Act 164 is defined to include a child legally adopted by either of the warring parties before the Court.

4.     However, the Federal Court found that in cases where exceptional circumstances exist, and neither parent can be given custody, the Federal Court then relies on a relative to take on the responsibility of custody.

5.     Taking into consideration of the factual matrix of this instant appeal, the Federal Court was of the view that the custody battle is not between the natural parents of the Child but between her aunt and her father.

6.     Owing to the Section 88 of Act 164, the Federal Court held that the Appellant cannot assert the role of a parent since the Act does not include any provisions regarding the custodial rights of a foster parent, which the Appellant claims to be.

7.     Correspondingly, the Appellant was also unable to rely on Section 2, 3, and 11 of the Guardianship of Infants Act 1961 (“Act 351”) to support her custody claim as a foster parent because the Federal Court found that these sections specifically address the rights and authority of a child’s biological parents, not a third party like the Appellant.

8.     The Court in making the decision had also considered the preference of the Child who had voiced her preference to stay and spend her future life with her parents and siblings.

1.     The word ‘relative’ in Section 88(1) of the Law Reform (Marriage and Divorce) Act 1976 (“Act 164”) does not empower the Court to grant a custody order to the Appellant in her capacity as a foster parent.

2.     The appeal was dismissed with costs.

1.     A foster parent cannot establish parental rights under Section 88 of Act 164, as the Act doesn’t address custodial rights of foster parent.

2.     Furthermore, the reliance on Section 2, 3, and 11 of Act 351, which address the rights and authority of biological parent is not applicable to a foster parent or any other third party.

3.     In a nutshell, it can be said that a foster parent has no legal right to demand the return of the child from the natural parent in particular when there is no proper adoption process is in place.