This case is regarding an application for a Writ of Habeas Corpus to issue to order that the applicant’s (Loh Siew Hong’s) three children be released from the personal custody of the First Respondent and/or the Second Respondent and be returned to the custody of the Applicant.
Facts of the case:
The Applicant was married to Nagahswaran a/l Muniandy (Nagahswaran) who is the biological father of the said children. The Family Division of the Kuala Lumpur High Court (KLHC) ordered that the sole custody, care and control of the said children be given to the Applicant but the First Respondent had allegedly prevented her from meeting and taking her children into her care and custody. On 11/02/2022, the Applicant said she went to the Asrama Lelaki Tahfiz al-Hambra (in Penang) after having been informed that her children were there only to be told that her children were re-located elsewhere. Due to this, the Applicant on 12/02/2022 lodged a police report. Subsequently, the First Respondent contacted the Applicant and informed her that her children were now in Perlis.
The Applicant maintained that her children in Perlis were placed under the custody and care of the First Respondent and/or the Second Respondent who at the material time of the hearing of this application, was the Jabatan Kebajikan Masyarakat Perlis. However, the First Respondent contends that handed over to the Jabatan Kebajikan Masyarakat Perlis with the agreement of the Applicant. Since then, the said children were no longer in her care and custody. She also claimed that she had never been made aware of any order issued by the KLHC regarding custody, care and control of the children.
First Issue:
Whether the continued detention of the children by all or any of the parties concerned, is lawful or not.
- Did the First Respondent have knowledge of the Court orders granting sole custody, car and control of the children to the Applicant?
2. Is the application academic as far as the First Respondent is concerned?
Second Issue:
Whether the unilateral conversion of the children by Nagashwaran is lawful.
Ratio decidendi:
Regarding the first issue
- The Applicant had forwarded a copy of the Court order (which granted sole custody, care and control of the children to the Applicant) via WhatsApp to the First Respondent, followed by a plea from the Applicant asking why the First Respondent is refusing to hand over the children to her. As such, the First Respondent had notice of the Court order granting sole custody, care and control of the three children to the Applicant.
- The present application was filed by the Applicant on 13/02/2022 which means that at the time of filing, the children were still in the custody, care and control of the First Respondent. Applying the latest decision in Lei Meng v. Inspektor Wayandiana Abdullah & Ors and other Appeals, the present application is not therefore rendered academic as far as the First Respondent is concerned. As far as the Second Respondent is concerned, learned counsel for the Applicant confirmed that the children were presently in the care and custody of the Jabatan Kebajikan or Welfare Department.
Regarding the second issue
The court referred to Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appealswhereby it was held that by applying Art 160(1) of the Federal Constitution (“FC”) to Art 12(4) FC, the position is fairly clear: the singular word ‘parent’ includes the plural ‘parents.’ The religion of the minor child is to be decided by his ‘parent’ or ‘parents’ as the case may be. Besides, where a decision of such significance as the conversion of a child is made, it is undoubtedly in the best interests of the child that the consent of both parents must be sought. The contrary approach of allowing the child to be converted on the consent of only one parent would give rise to practical conundrums.
As such, a purposive reading of Article 12(4) that promotes the welfare of the child and is consistent with good sense would require the consent of both parents (if both are living) for the conversion of a minor child.
Decision:
Regarding the first issue
The continued separation of the children from their mother, the Applicant, by the actions of persons and/or entities responsible is unlawful.
Regarding the second issue
Since there is no evidence that the Applicant had so consented in this case, the unilateral conversion of the children by Nagashwaran is, therefore, unlawful.
Conclusion:
Application for the Writ of Habeas Corpus was allowed.
