WHO HAS PARENTAL RIGHTS OVER AN ILLEGITIMATE CHILD?
Traditionally in many jurisdictions, biological mothers of the illegitimate child enjoy more privilege over the biological fathers in terms of the recognition of their parental rights. As such, it is a frequent occurrence to see the fathers seeking assistance from the Court to be granted parental rights in respect of the illegitimate child.
To put it in simple terms, a child is illegitimate if he/she is born out of wedlock i.e. conceived when the parents are not legally married and not legitimised pursuant to the provisions of the Legitimacy Act 1961. For example, under Section 3(1) of the Legitimacy Act 1961, a child born out of wedlock can be legitimised through the subsequent marriage of the parents.
In respect of parental rights over legitimate children, the Law Reform (Marriage and Divorce) Act 1976 provides for the custody, care and control of the children upon the divorce or judicial separation of their parents. The question now is – what is the law applicable on the guardianship, custody, care and control of illegitimate children in Malaysia?
Applicability of Guardianship of Infants Act (“GIA”) 1961
In Malaysia, the legal rights to guardianship and custody over children are governed generally by the GIA 1961. Section 5 of the GIA 1961 provides that in relation to the custody or upbringing of a child, both parents shall have equal rights and authority over the child.
Previously, there were conflicting decisions as to whether the GIA 1961 applied to illegitimate children. This conflict was eventually settled in the case of Sean O’Casey Patterson v Chan Hoong Poh  3 CLJ 722, where the Federal Court held that the GIA 1961 is applicable to illegitimate children. Following Section 5 of the GIA 1961, both parents would have equal parental rights over the illegitimate child and either parent would have the right to make guardianship and/or custody applications to the Court.
It may be noted that in an application under the GIA 1961, the Courts are hesitant to grant guardianship and custody solely to a parent. This was illustrated in the case of Teoh Hock Soon v. Chan Peng Yee  2 CLJ 960, where the High Court granted joint guardianship and custody of the illegitimate children because of Section 5 of the GIA 1961. Taking into account that the children are illegitimate, the Court refrained from granting the father sole custody of the children although the mother was found to be unfit to take care of the children due to her abusive nature. Notwithstanding such, the right of care and control was granted to the father as the Court was of the opinion that it would be better for the father to take care of the children on a daily basis.
Although the Court prefers to grant joint guardianship and/or custody to both parents pursuant to GIA 1961, the case of Teoh Hock Soon shows that the Court may still grant the right of care and control of an illegitimate child to a single parent where appropriate.
The common law position
Before the case of Sean O’Casey Patterson, the Courts that have decided not to apply the GIA 1961 have instead applied English common law to decide on the custody of illegitimate children. As such, an application for custody may alternatively be made by a party under: –
- Section 24(d) of the Courts of Judicature Act 1964, which confers jurisdiction to the High Court to appoint and control guardians of infants; and
- Section 27 of the Civil Law Act 1956, which provides that the law to be administered in all cases relating to the custody and control of infants shall be the same as the law administered in cases in England as at the date of coming into force of the Act (i.e. 7 April 1956 for Peninsular Malaysia and 1 April 1972 for Sabah and Sarawak)
According to English common law, it is settled law that the father of an illegitimate child does not have any rights to the illegitimate child. Custody, care and control of an illegitimate child will be granted to the child’s biological mother unless it can be shown that the mother is unfit to be granted custody, care and control of the child.
The test promulgated by the High Court in the case of Teoh Hock Soon states that in considering whether a mother is an unfit mother to be granted custody, care and control of the child, a Court must consider the mother’s parenting skills, and her morals as a mother.
It may be noted that the route for guardianship and custody of illegitimate children through an application under Section 24(d) of the Courts of Judicature Act 1964 and Section 27 of the Civil Law Act 1956 remains available, although rarely taken into consideration now due to the Court’s recognition of illegitimate children under GIA 1961.
Welfare and interest of the child
It is pertinent to note that regardless which provisions are used to apply for guardianship, custody, care and control, the Court’s prime and overriding consideration has always been the welfare and interest of the child.
This principle is also firmly entrenched in Section 11 of the GIA 1961 which provides that the Court shall have regard primarily to the welfare of the infant and shall consider the wishes of his/her parent(s).
In the case of Patricia Sue Lin Knudsen v. Joey James Ghazlan  1 LNS 2037, the High Court held that the interest and welfare of the child includes the child’s safety, security, physical, educational and emotional development, and her general well-being.
The welfare and interest of the child is an overriding consideration notwithstanding the English common law position, which has established that the mother of an illegitimate child has the sole legal right to the child or the equal parental right under the GIA 1961. As such, there remains a likelihood that the Court may grant sole guardianship and/or custody to the father if the Court finds it to be in the best interest of the child to do so.
In the next article, we will be discussing on an illegitimate child’s right to maintenance.
By: Jaclyn Chang
DISCLAIMER: This article is for general information only and should not be relied upon as legal advice and/or legal opinion. Messrs Yeoh & Joanne accepts no liability for any loss which may arise from reliance on the information contained in this article.
在此之前，关于《1961年婴儿监护法》是否适用于非婚生子女，存在着相互矛盾的决定。这一冲突最终在Sean O’Casey Patterson v Chan Hoong Poh  3 CLJ 722一案中得到解决，在该案中，联邦法院认为《1961年婴儿监护法》适用于非婚生子女。根据《1961年婴儿监护法》第5条，父母双方对非婚生子女拥有平等的亲权，父母任何一方都有权向法院提出监护和/或抚养权申请。
值得注意的是，在根据《1961年婴儿监护法》提出的申请中，法院对于只授予父母监护权和抚养权犹豫不决。Teoh Hock Soon v. Chan Peng Yee  2 CLJ 960 一案就说明了这一点，在该案中，高等法院根据《1961年婴儿监护法》第5条授予非婚生子女共同监护权和抚养权。考虑到这些孩子是私生子，法院没有授予父亲对这些孩子的单独监护权，尽管母亲拥有虐待性质，她被认为不适合照顾这些孩子。尽管如此，照顾和控制的权利被授予父亲，因为法院认为父亲是最好每天照顾孩子人选。
尽管法院倾向于根据《1961年婴儿监护法》将共同监护权和/或抚养权授予父母双方，但Teoh Hock Soon一案表明，法院仍可在适当的情况下将照顾和控制非婚生子女的权利授予父母任何一方。
在Sean O’Casey Patterson一案之前，决定不使用《1961年婴儿监护法》的法院，转而使用英国普通法来决定非婚生子女的监护权。因此，监护权申请也可以由一方根据以下条件提出
高等法院在Teoh Hock Soon一案中颁布的测试规定，在考虑母亲是否不适合获得对孩子的监护、照料和控制时，法院必须考虑母亲的养育技能和作为母亲的道德。
在Patricia Sue Lin Knudsen v. Joey James Ghazlan  1 LNS 2037一案中，高等法院认为，儿童的利益和福利包括儿童的安全、保障、身体、教育和情感发展以及她的总体福祉。
文章来自于：张美琪律师 (Jaclyn Chang Mei Qi)
文章翻译：李淑婷律师 (Lee Su Ting)
免责声明:本文仅供参考，不应作为法律建议和/或法律意见。Yeoh & Joanne律师事务所不会承担因依赖本文所含信息而产生的任何损失的责任。