TOPIC 10

GUARDIANSHIP AND
CUSTODY UNDER
CIVIL LAW
GLUP2123 FAMILY LAW II
CUSTODY
 STATUTORY PROVISIONS
• Two important statutes – LRA and Guardianship of Infants Act 1961.
• LRA only focuses on the conflict of custody between the parents involved and it does
not discuss on the right of the third parties
• GIA focuses on wider scope as it can be used by any person at any times even though
without any marital proceedings.
• Amarapathi Periasamy V. Muniandy Periasamy [2006] 3 CLJ 533 - the appellant was
not the natural parent of the child – she could not take advantage of s.88(1) of the LRA.
• LRA defines ‘child’ as ‘’child of the marriage’’, under 18 years old – s.87 LRA
• S.2 LRA - “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
 The Jurisdiction and Powers of the Court in
Custody Matters
• The inherent jurisdiction of the court is referred to by the Guardianship of
Infants Act 1961.
• Section 5 GIA -Equality of parental rights
• Section 11 GIA – Matters to be considered by the Court
• Section 23(2) Court of Judicature Act 1964
• Section 24(d) Court of Judicature Act 1964
• Section 27 Civil Law Act 1956
• Section 88 LRA
• “No parent enjoys an earlier or superior right over the child" (per Wan
Yahya J )(later FCJ) in K. Shanta Kumari v. Vijayan [1986] 2 MLJ 2
Orders which the court may make -
• Custody
• Custody split with care and control
• Sole or joint order
• Care and control
• Access
 Principles to be applied when granting
custody -
LRA

Welfare Wishes Wishes

of the of the of the
child parents child
GIA
 Welfare of the child
• “paramount consideration” – s.88 LRA
• No definite definition
• In Mahabir Prasad v Puspha Mahabir Prasad [1981] CLJ 182 (Rep) –
the court agreed that in determining the question of custody, the court
… regard to the welfare of the child concerned as the first and
paramount consideration.
• The phrase 'first and paramount consideration' does not mean that
one should view the matter of the children's welfare as first on the list
of factors to be considered, but rather that it must be the overriding
consideration.
 Welfare of the child
• Include moral and physical (Re Satpal Singh, An Infant [1958] 24 MLJ
283), inability to provide an adequate home (Re F[1969] 2 Ch. 238),
moral and religious welfare (Re McGrath[1893] 1 Ch 143)
• The meaning of the word "welfare" has been comprehensively dealt
in Loh Koh Fan v. Lee Moy Lan[1976] 2 MLJ 88 - court must do what
under the circumstances a wise parent acting for the true interests of
the child would or ought to do.
 Factors to consider in determining the ‘best
interest’ of the child
In Khoo Cheng Nee v Lubin Chiew Pau Sing
[1981] 2 MLJ 326 -What the best interest of
the child are in a given situation depends
upon many factors and may include;

The parent’s The child’s

The love
ability to established
The parents’ and
The child’s Mental and The parent‘s provide the living
lifestyle and emotional
age, gender, physical ability to child with pattern
other social ties
and mental health of give the food, (school,
factors between
and physical the child’s child shelter, home,
pertaining the parent
healths; parents; guidance; clothing and community,
the parents and the
medical religious
child
care; institution)
 Wishes of the parent
• Mandatory factor to be considered in determining the issue of child custody.
However it still not absolute as the court must still decide on the best
interest of the child.
• Where the wishes of the parents as to custody are in opposition to one
another, the welfare of the child is the paramount, although not the sole,
consideration- Khoo Cheng Nee.
• Mahabir Prasad [1982] 1 MLJ 189 - "The mere desire of a parent to have his
children must be subordinate to the consideration of the welfare of the
children, and can be effective only if it coincides with their welfare."
• Refer also to -
• Chua Thye Peng & Anor v Kuan Huah Oong [1978] 2 MLJ 217
• S. Thaiyalnayagam v GM Kodaguda [1983] 1 MLJ 242
• Chua Ling Chu [P] lwn. Wong Shaw Ping [L] [2014] 1 LNS 1842
 Wishes of the child
• The minimum age where the child is presumed to have the ability of expressing their feeling and
needs completely start at the age of 8 years old. – refer s.88(3) LRA
• In determining whether or not the child is considered mature enough to express an independent
opinion, the courts did not only rely on the age factor but also gave weight to the level of
understanding - whether the opinion of the child is consonant with the child’s best interest.
• From decided cases, there were tendency of the court to have an interview session with the child.- to
determine the wishes of the infant.
• M Saraswathi Devi a/p K Govind v Keith Ian Monteiro [2006] 3 MLJ 88
• Aravindraj Chandrasekaran v. Renu Kumari Rai [2015] 1 LNS 150
• Kanagalingam v Kanagarajah [1982] 1 MLJ 264
• The court is not bound to follow the wish of infants – a ten year old girl was not considered by the
court to have prudence or maturity to realise what was best for her - Chang Ah Mey @ Chong Chow
Peng v Francis The Thian Sar [1991] 1 CLJ 309
• Khoo Cheng Nee v Lubin Chiew Pau Sing [1996] 1 AMR 450 – the judge suggested that the age of 12
or 13 is the years of having prudence to express an independent opinion regarding the child’s best
interest.
 Presumption of Custody for Child of Tender Age
• The presumption under s. 88(3) LRA that it is good for the children to be with her
mother is rebuttable.
• The court shall have regard to the undesirability of disturbing the life of a child by
changes of custody.
• Prima facie a child of this age ought to remain with his mother and strong grounds are
required to justify taking.-Kalyani Subramaniam v. Mahalingam Padavettan[1997] 3 CLJ
Supp 439)
• An infant of tender age (20-month-old infant) is by nature more physically and spiritually
dependent on its own mother than anyone else.- Kumari v. Vijayan[1986] 2 MLJ 216 .
• Custody of a newborn baby should be given to its mother- W v. H[1987] 2 MLJ 235 /
Venaja Rajoo V. R Ravindran Ramasamy III [2001] 7 CLJ 399
• However, the children of tender age should not be placed with mother on the basis of
the statutory presumption alone. - Tay Chuen Siang V. Wang, Chiao-wen [2009] 9 CLJ 84
Sivajothi a/p K Suppiah v. Kunathasan a/l Chelliah [2000] 3 CLJ 175;
[2006] 6 MLJ 48:
• "The overriding factors include the following:-
• (a) The children being three young girls of tender age required the personal and intimate
care of the mother as they grow up;
• (b) Matters relating to puberty, problems relating to menstruation, physical, physiological
and emotional changes can best be attended by the mother and not by the father;
• (c) The mother's touch and physical proximity.”
• The welfare of the child both moral and physical should be the
paramount consideration in awarding the custody of a child of tender
years. - Kok Yoong Heong v. Choong Thean Sang [1975] 1 LNS 75 /
Helen Ho Quee Neo v. Lim Pui Heng [1974] 1 LNS 48/ Yong May Inn v.
Sia Kuan Seng [1970] 1 LNS 176
 Variation of custody order
• Can the parent who has not been granted the right of custody,
applied for custody to be given to him/her?
• Yes, but need to prove that there is material change to the facts from
the previous application that would allowed the variation of the
custody order.
• the court shall have regard to the undesirability of disturbing the life
of a child by changes of custody.- s.88(3) LRA
• Refer also to s.96 & s 97 LRA - Power for court to vary orders or
agreement for custody
Material change in the circumstances?
• The court must consider negative effect of removing a child from the surroundings and from
relatives to whom he had grown accustomed.- Goh Kim Hwa v Khoo Swee Huah [1986] 2 MLJ
156
• Factor to be considered to justify the removal:
• a material change in circumstances that warrant a change of custody.
• Whether the change would affect the children
• The court must consider that with the change of the custody will not effect the welfare of the
child.-Shireen Chelliah Thiruchelvam V. Kanagasingam Kandiah [2009] 1 LNS 975
• The custody order must be consider independently-s.88(4) LRA- B Ravandran s/o Balan v
Maliga d/o Mani Pillai [1996] 2 MLJ 150.
• The BOP is on the mother to prove that she could offer such important advantages to the
welfare of the child to warrant a change of custody, and justify a fracas from change of
environment.-Thavamani Deve a/p Govindasamy v N Sugumuran a/l Neelmehan [1996] 4 MLJ
195,
• Condition to be attached with custody order- S.89(2) LRA
• (a) the place where the child is to reside,
• (b) provide for the child to be temporarily in the care and control of some
person other than the person given custody;
• (c) provide for the child to visit a parent deprived of custody
• (d) give a parent deprived of custody the right of access to the child, or
• (e) prohibit the person given custody from taking the child out of Malaysia.
(read with s101 LRA)
• Court to have regard to advice of welfare officers, etc. – s.100 LRA
 Custody of illegitimate child
• The Guardianship of Infants Act 1961 does not apply to illegitimate
children and the plaintiff could not bring an action for guardianship,
custody, care and control of the two children under the 1961 Act.
However, the court could make orders relating to guardianship,
custody, care and control of illegitimate children under s. 24(d) of the
Courts of Judicature Act 1964.
• Chelsa Cabalona Abdullah v. Siek Ming Hua[2008] 8 CLJ 285
GUARDIANSHIP
 Guardianship of Infants Act 1961
• LRA did not repeal or amend the GIA .
• The right, liabilities and duties of parents in relation to their children
are contained in GIA.
• GIA is not applicable in any State to persons professing the religion of
Islam until it has been adopted by a law enacted by the legislature of
that State.
• It applies to Muslims in any State where the law made by the
legislature of that state has adopted.- S1(3) GIA
 Interpretation of ‘infant’
• The Age of Majority 1971 does not apply in GIA.
• S.2(2) GIA explain that -
• (i) For a person professing Islam, he is deemed to have attained his majority
when he shall have completed his age of 18 years and not before; and
• (ii) For every other person, he is deemed to have attained his majority when
he shall have completed his age of 21 years and not before.
• S.2 Age of Majority Act -
• Subject to the provisions of section 4, the minority of all males and females
shall cease and determine within Malaysia at the age of eighteen years and
every such male and female attaining that age shall be of the age of majority.
 Duties of guardian
• S. 3 – guardian of person
• S. 4 – guardian of property

• If the legal guardian died

• Rights of surviving parent as guardianship – s.6(1) GIA
• Power of parent to appoint testamentary guardian – s.7 GIA(1)
 Guardian of orphan
• Where both the parents of an infants have died without appointing a testamentary
guardian, any Magistrate, penghulu, police officer or Protector may cause the
infant to be taken before the Court, and the Court shall appoint a guardian of the
infant's person and property or either of them –s.8 GIA
• Abandoned infant??? - s8A(1) GIA
• Who is the ‘Protector’ ??? – s.2 GIA
• Variation of power of guardian of property – s.9 GIA
• Removal of guardian-s.10 GIA
• In exercising the powers conferred by the Act, the court/judge is directed to have
regard ‘primarily’ to the welfare of the infant, and shall, where the infant has
parent/s, consider the wishes of the parent or both of them (as the case may be) -
S11 GIA- Chuah Thye Peng v Kuan Huah Oong [1978] 2 MLJ 217
 Application of GIA to Muslims
• Not all States in Peninsular Malaysia have applied the GIA in relation to
Muslim- refer to s.1(3) GIA

• In Myriam v Ariff [1971] 1 MLJ 265

• After studying the relevant provisions in the State Enactment (Selangor Admin. of
Muslim Law Enactment 1952), HC held that it was not prevented from hearing the
application although there was a consent order and there was no appeal.
• S.2 Selangor Admin. Enact- did clearly adopts the GIA if there were no conflicts with
Islamic law or the custom of the Malays.

• Read also : Abdul Ghani Awang v Sheriliza Yusof [1988] 3 MLJ 153
• S.27 Civil Law Act 1956 - provides that 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,
regard being had to the religion and customs of the parties concerned
unless other provisions is or shall be made by any written law.