Patricia Sue Lin Knudsen v Joey James Ghazlan [2021] MLJU 836

Court of Appeal (Putrajaya)

Right of Custody of an Illegitimate Child

Facts

1.    The Appellant is a citizen of Denmark. The Respondent and the Child are both citizens of the United Kingdom. They are all currently domiciled in Malaysia. Both the Appellant and Respondent are in the entertainment industry in Malaysia.

2.    The Appellant and the Respondent are the biological parents of the Child.  They were in an intimate relationship for approximately ten (10) years. They were never legally married to each other.

3.    Their Child was born on 4.10.2016 in England, during the course of their relationship. The Child is currently about five (5) years old. Their intimate relationship ended on or around March 2018.

4.    After their separation in early 2018, the Appellant and Respondent were sharing custody of the Child without a fixed schedule.

5.    Subsequently, the Appellant filed an originating summon (“OS”) based on the following reasons:

(a)  that the Respondent had initially taken the Child to England sometime in May, 2018 with the Appellant’s consent and the agreement to return to Malaysia in early July, 2018;

(b) however, the Appellant stated that the Respondent had subsequently threatened the Appellant on 4.7.2018 that he would return to Malaysia without bringing the Child back with him;

(c) that due to the Respondent’s threat, the Appellant had lodged a police report on 7.7.2018;

(d) that on 13.7.2018, the Respondent had violently confronted the Appellant while she was with the Child at her residence parking basement. Fearing for her and her daughter’s safety, the Appellant had lodged a police report of the altercation on 14.7.2018; and

(e) that the Respondent had reneged on his agreement to return the Child to the Appellant upon his return from England after spending around five (5) weeks with her there.

6.    At that material time, the Child was in the Respondent’s custody and the Appellant could not locate their whereabout.

7.    The Appellant obtained an Interim Order for guardianship, custody, care, and control of the Child on 5.9.2018.

8.    The said Interim Order also directed the Respondent to return the Child to the Appellant immediately.

9.    Subsequently, the Appellant discovered that the Respondent had taken the Child to England sometime in September, 2018 without the Appellant’s consent when the Child’s passport was in the Appellant’s possession at all times (the second English trip).

10.  Later, on 15.10.2018, the High Court granted an Ex-Parte Interim Order for guardianship, custody, care and control over the Child to the Appellant.

11.  However, based on the application filed by the Respondent, the Ex-Parte Interim Order dated 15.10.2018 was set aside by the High Court.

12.  The learned High Court Judge had dismissed the Appellant’s OS on the ground that the Appellant has no parenting skills and that she is morally unfit to be a mother.

1.    Whether the trial court had arrived at its decision or finding correctly based on the relevant law i.e., even the Appellant as the legal mother presumed the legal right over the illegitimate child but such presumption has been rebutted in which the Appellant was an unfit Mother.

Ratios

1.    The Appellant submitted that the legal position with regards to the rights over illegitimate children in Malaysia is governed by the cases of Lai Meng v Toh Chew Lian [2012] 8 MLJ and Foo Yet Chine (P) lwn Leong Meng Kuan (L) [2018] MLJU 209.

2.    Both cases applied the Common Law position in which only the mother has the legal right over the illegitimate child, whilst the putative father is not conferred with the same right.

3.    The Appellant contended that she is prima facie entitled to full custody of the Child and that the Respondent has no legal right over her unless the Appellant can be established to be morally unfit.

4.     However, the Court found that Malaysian have already moved away from the abovementioned common law position expounded by the Appellant.

5.    In Sean O’ Casey Patterson v Chan Hoong Poh [2011] 4 MLJ 137, the Federal Court held that the Guardianship of Infants Act 1961 (Act 351) applies to illegitimate children.

6.    The Federal Court’s decision in Sean O’Casey Patterson (supra) was then applied by the High Court in Teoh Hock Soon v Chan Peng Soon [2012] 2 CLJ 960 where the High Court held that Section 3 of Act 351 may be invoked for any application for guardianship and custody of an illegitimate child.

7.    Following the decision in Sean O’Casey Patterson (supra), Act 351 is applicable in this case.  Under Section 5 of Act 351, both the mother and the father have equal rights to custody and upbringing of an infant, defined in Subsection 2(1) as a person who has not attainted his majority.

8.    Section 3 of the Act 351 provides as follows:

“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.”

9.    The Federal Court in Sean O’Casey Patterson (supra) also referred to the case of Re Baby M (An infant) [1994] 1 LNS 195, where Visu Sinnadurai J said-

“One major problem confronting the courts has been the question of the welfare of the child. As stated earlier, the adoption proceedings, unlike the position in custody cases, the law provides that the welfare of the child is only one of the factors to be considered by the court; whereas in custody cases the welfare of the child is the main consideration.”

10.   Essentially, the learned trial Judge had decided to dismiss the Appellant’s application for guardianship, custody, care and control of the Child based on two (2) issues, namely whether the Appellant has good parenting skills and whether she is morally fit to be a mother.

11.  According to the Court of Appeal, on the issue of good parenting skills, the learned Judge has failed to set out what are the required standards to qualify as good parenting skills and whether the Appellant had failed to meet such standards.

12.  The learned Judge made a sweeping statement that merely because of the Appellant’s “hectic social and work schedule as a radio and television personality” and that it is the Appellant’s mother who has been and continues to be the main caregiver of the Child, she has therefore failed in her parenting skills.

13.  The Court concurred that if that is the case, then many working mothers would also fail in the parenting skills.

14.  Added to that, the Court believe that parenting skills should not be the overarching consideration but the welfare of the Child is the paramount consideration.

15.  Therefore, the Court concluded there is no dispute that the Appellant can meet the daily needs of the Child, be it emotional, physical or financial and the Appellant has the capacity to take care of the welfare of the Child.

16.  Moving on to the issue whether the Appellant was morally fit to be a mother, the Court found that the learned trial Judge has made several erroneous findings of fact with regards to the Appellant’s moral fitness because the Respondent has failed to adduce convincing evidence that the Appellant is an unfit mother to have guardianship, custody, care and control of the Child.

17.  Thus, the Court decided that the Appellant, as the natural mother of the Child has taken care of her since birth, provided her with her daily needs, as well as her emotional, physical and financial needs as there is no evidence that the Child is deprived of a contented life under her care.

18.  As such, the Court concurred that there was no evidence to establish that the Appellant is morally unfit to be the mother of the Child and that she is legally qualified to have the guardianship, custody, care and control of the Child.

1.    The Court of Appeal allowed the appeal with no order as to costs and set aside the order of the High Court.

1.    According to the case of Yap Lee See v William Tay & Ors [2011] 1 CLJ 793, the court in Malaysia is guided by the following principles in deciding the guardianship and custody of a child:

(a) whether the mother is considered morally unfit;

(b) the welfare and best interests of the illegitimate child; and

(c)  the wishes of the natural mother.

2.    Therefore, in cases involving illegitimate children, the father must demonstrate that the mother is morally unfit to be the mother of the Child and is not legally qualified to have the guardianship, custody, care, and control of the Child in order to obtain custody.