FEBRUARY 19 — Both the Shariah — that is, Islamic law — and the civil law recognise that the paramount consideration to decide the custody of a child is the welfare or interest of the child.
In the latter, there have been numerous judicial pronouncements — both in England and Malaysia — on the word “welfare” or “interest”.
More than a century ago, in Re McGrath (Infants) [1893] 1 Ch. 143, Lindley LJ said:
“The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense.
“The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”
It was the start of the shift in judicial attitudes from being mindful of the “natural law which points out that the father knows far better as a rule what is good for his children than a court of justice can” (see In re Curtis (1859) 28 LJ Ch 458) to recognising that “the welfare of the child is becoming as important as the rights of the parents”.
In the classical English case of J & Anor v C & Ors [1970] AC 668, the English apex court — the House of Lords — negated any claim that the rights of either parent is superior to that of the other, and asserted that the welfare of the infant shall be regarded as the first and paramount consideration. Lord Guest said:
“[W]hen all the relevant facts, relationship, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare.”
The above principle was followed in the Malaysian case of Mahabir Prasad v Mahabir Prasad [1981] 2 MLJ 236, where the Justice Ajaib Singh said:
“It is well established that in an application for the custody of a child the court will in exercising its discretion regard the welfare of the child concerned as the first and paramount consideration. It is equally established that this does not mean that the court will not take other relevant factors into consideration.
“Indeed in order to decide on the question of the welfare of an infant as of paramount importance it is necessary to take into account such matters as the conduct of the parties, their financial and social status, the sex and age of the child, his wishes as far as they can be ascertained depending on the age of the child, the confidential reports which a social welfare officer may put up and whether in the long run it would be in the greater interest, welfare and happiness of the child to be with one parent rather than with the other.
“But always it is the welfare of the child which is of paramount importance.”
The above was approved by Chief Justice (Malaya) Raja Azlan Shah (as His Royal Highness then was) in the Federal Court. A few years earlier in Teh Eng Kim v. Yew Peng Siong [1977] 1MLJ 234, His Lordship had said:
“As the welfare of the children is the paramount consideration, the welfare of these three children prevails over parental claim. Parental rights are overridden if they are in conflict with the welfare of the child.”
In that case, the mother had previously obtained a divorce on the grounds of her husband’s adultery. She made an application for custody of the children and also permission to take the children to Australia.
Taking into consideration that the welfare of the children could be best served with the mother, the Federal Court allowed the mother’s application. This despite the reluctance of the courts to allow the children to be taken out of the jurisdiction.
In the Shariah, the welfare of the child too prevails over parental claim. In Sunan Abu Dawud, the following hadith is reported:
A woman came to the Prophet (pbuh) and said, “My husband wants to take away my son, although he (the son) gives me comfort and brings me drinking water from the well of Abu Inabah.” Thereupon the husband appeared denying her claim over his son. The Prophet (pbuh) then said: “Child! Here is your father and here is your mother; make a choice between the two whomsoever you want.” The son caught hold of the hand of his mother and she went away with her son.”
The hadith signifies that a child, if capable to discern, is to be given the choice to stay with either parent and the chosen parent is assumed to be more kind and loving towards the child and that will serve his or her best interests.
So both the Shariah and the civil law are in agreement that the welfare or interests of the child are the paramount consideration in deciding disputes relating to custody. And this is embodied in the written law.
Under the Law Reform (Marriage and Divorce) Act 1976 (LRA), section 88(2) clearly provides that in deciding the child’s custody, the paramount consideration shall be the welfare of the child with due regard to the wishes of the parents of the child and the wishes of the child where the child is of an age to express an independent opinion.
A similar provision is also provided under section 86 of the Islamic Family Law (Federal Territories) Act (IFLA). Section 86(2) of the IFLA reads as follow:
In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and, subject to that consideration, the Court shall have regard to:
a) the wishes of the parents of the child; and
b) the wishes of the child, where he or she is of an age to express an independent opinion.
Both the LRA and IFLA include consideration of the wishes of the parents and wishes of the child as a statutory requirement as shown in Sections 88(2) and 86(2) respectively.
However, if the wishes of the parents are not in line with the interests of the child, such wishes will not be followed by the court.
With regard to the wishes of the child, the court will only follow a child’s opinion if the child has attained the age when he or she is able to express an independent opinion and such opinion given is consistent with the child’s best interest.
For example, in the Shariah case of Mohammed v Azizah (1979) 1 JH 79, there was an agreement that the child would be surrendered to the father upon remarriage of the mother. However, after being convinced by the principal of the school that the child was making good progress and that her progress would be affected if her home surroundings were disturbed, the judge in this case gave custody to the mother.
The court also took into consideration the wishes of the child who had expressed her preference to stay with the mother and her reluctance to stay with the father.
So again, the Shariah and the civil law are in common. The paramount consideration is the welfare of the children.
It is common justice.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
