C.A.S v M.P.P.L. dan 1 Lagi (W-02(A)-1013-05/2016)

1.

H.Y.S.L … RESPONDENTS [In the High Court in Malaya at Kuala Lumpur In the Federal Territory, Malaysia Family Division Originating Summons No.: 24F-107-07/2015 In the matter of a child named C.A.H.Y.W. And In the matter of Sections 1(3), 3, 5, 9, 10, 11 and 19A, Guardianship of Infants Act 1961. And In the matter of Order 84 and Order 92 Rule 4, Rules of Court 2012. And In the matter of Section 24(d), Courts of Judicature Act 1964 2 And Articles 3, 5, 6, 7, 8, 9, 12 and 18, United Nations Convention on the Rights of the Child Between C.A.S … Plaintiff And … Defendants CORAM: ABANG ISKANDAR ABANG HASHIM, JCA UMI KALTHUM ABDUL MAJID, JCA NALLINI PATHMANATHAN, JCA 3 GROUNDS OF JUDGMENT Introduction [1] This appeal raises one question of law fundamental to the welfare of a child. It is: To what extent does section 112 of the Evidence Act 1950 (‘EA’) apply, if at all, in a suit to determine paternity. [2]

2.1 The plaintiff be declared as the biological father of the said child;

2.2 The birth certificate of the said child be rectified to name the plaintiff as the biological father;

2.3 The plaintiff be given joint guardianship;

2.4 Reasonable access rights according to the plaintiff’s work schedule;

2.5 The defendants or their representatives be prevented from bringing the said child out of the country without the written permission of the plaintiff. [8] The plaintiff filed Enclosure 5 on the grounds, inter alia, that it was necessary for Child C to know who her birth father was, in case of any medical emergencies that may arise in the future. [9] The defendants opposed the action. They argued that if the Court allowed the plaintiff’s declaration on the point of paternity, i.e. declaring the plaintiff as the Child C’s biological father, the said declaration would render Child C an illegitimate child – being born out of the wedlock between the defendants. 6 [10] The defendants accordingly retaliated with an application of their own for the determination of questions of law pursuant to Order 14A of the Rules of Court (‘ROC’) 2012 and section 15 of the CJA 1964. They prayed for the following reliefs (‘Enclosure 16’): Enclosure 5 (the amended OS) must be dismissed with costs; 7 [11] Parties subsequently agreed upon paragraphs 2 and 3 of Enclosure 16 by consent. The plaintiff also made an oral application to withdraw prayers 2.2, 2.3, 2.4 and 2.5 of Encl. 5, which the High Court allowed. In the result, the plaintiff now only substantively seeks prayers (1) and 2.1 in Enclosure 5 which is, for the Court to order a DNA test to determine Child C’s paternity and the resulting declaration that the plaintiff is her father. [12] The High Court judge allowed prayer 1 of Enclosure 16 and dismissed Enclosure 5 on the grounds that the plaintiff’s action in the said Enclosure 5 was without merit and had no legal basis (‘the impugned Order’). [13] The aggrieved plaintiff’s appeal came before us. We heard and unanimously allowed the appeal on 5 September 2017. We ordered that the impugned Order be set aside, enclosure 16 was dismissed and that the plaintiff’s amended OS be converted into a writ action so that the disputed facts could be fully ventilated vide viva voce evidence. We accordingly remitted the matter to the High Court for trial. We made no order as to costs and also ordered that the deposit be refunded to the plaintiff. The Decision of the High Court [14] The High Court, after referring to certain local and Indian authorities, made the impugned Order substantially on two fronts. 8 [15] Firstly, that the plaintiff’s action is caught by section 112 of the EA. The DNA test sought by the plaintiff concerns both the paternity and legitimacy of Child C. The said section 112 presumes the fact of marriage as conclusive proof of legitimacy. Being born into the defendants’ marriage is thus conclusive proof that Child C is their legitimate child. This presumption, it is said, may only be rebutted on the grounds of ‘non-access’ between the parties to the marriage. The law therefore does not authorise the use of DNA tests to challenge paternity and to rebut the said presumption in this way. [16] The second reason concerns public policy. The High Court opined that allowing the DNA test will have adverse effects on the welfare of Child C. A declaration that Child C is in effect an illegitimate child will bring about negative public perception over her and disrupt the stability of the defendants’ family to raise Child C in a loving environment. [17] The High Court judge was of the view that if the DNA test was allowed and Child C was discovered to be illegitimate, it would have negative consequences for Child C and disrupt her happy family life. Her Ladyship opined that it may be a different situation if the defendants admitted that the plaintiff was the father of Child C and the birth certificate did not state the name of the father. However, in this case, the defendants’ names are on the birth certificate and they have raised Child C. The plaintiff did not dispute that Child C was born during the subsistence of the defendants’ marriage. Therefore, the High Court judge held that the birth certificate is conclusive proof that the defendants were legally married when Child C was born. She 9 made her decision to allow Enclosure 16 and to dismiss Enclosure 5 supposedly premised on the best interests of the said child. Submissions of Parties on Appeal [18] At the outset, we are constrained to state that the parties’ submissions were not entirely sufficient to fully assist us. As a result, we had to undertake further research to ensure that the interests of the child were fully considered and protected. That being said, we attempt to sum up their submissions here. [19] The plaintiff argued that Enclosure 5 had nothing to do with the legitimacy of Child C. Instead, the plaintiff was only concerned with determining her paternity. Counsel referred to Article 7 of the United Nations Convention on the Rights of the Child (‘UNCRC’) to argue that the best interests of the child was for the child to know his or her biological parents. Section 112 of the EA has nothing to do with this case and hence, the learned judge erred by holding that Child C’s legitimacy precedes the child knowing the truth of her paternity. No argument was advanced to support the plaintiff’s assertion that Courts can order DNA tests to determine paternity. [20] The defendants argued that the declaration of paternity sought by the plaintiff has the ‘plain, obvious and unavoidable effect of illegitimising the Child’. Section 112 of the EA thus clearly applies and the only rebuttal evidence permissible under the law is that of ‘non-access’ between the married couple. They also relied on Indian authorities to argue that the best interest of Child C, and the policy behind section 112 of the EA, is in not illegitimising the child. Thus, 10 the learned Judge was correct in determining it to be in the best interests of Child C to continue to enjoy the stability of her relationship with the defendants and not to be stigmatised by the negative public perception of illegitimacy. [21] We were not persuaded by either the arguments advanced by the defendants or the reasoning of the learned Judge who adopted the defendants’ arguments in toto. Our reasons for so saying so are set out below. [intentionally left blank] Our decision Legitimacy, Paternity, and Section 112 of the EA [22] It was our considered view that the learned Judge fell into error when her Ladyship linked paternity with legitimacy. Section 112 of the EA only concerns the latter i.e. legitimacy. We find authority for this proposition in the decision by KC Vohrah J (as he then was) in Chua Kim Suan v Ang Mek Chong [1988] 3 MLJ 231, at page 234: “That brings me to the argument, this time, of defence counsel. He says once it is accepted by the court that the defendant gave birth to Pang Hua then the presumption in s 112 of the Evidence Act 1950 should be invoked that since the birth was 11 during the marriage of the deceased and the defendant it is conclusive that the child is the child of the deceased and that the only way of disproving that is to show that the defendant and the deceased had no access to each other. With respect, the argument of counsel is misconceived. The issue is not one of the legitimacy of the child, whether the child was born in or out of wedlock but whether the child was the issue of one set of lawfully wedded parents or another set of lawfully wedded parents and therefore the provisions of s 112 of the Evidence Act are not applicable in this case.” [Emphasis is ours] [23] In other words, section 112 of the EA does not bar enquiry into the paternity of a child. Paternity and legitimacy are two distinct, though admittedly, interrelated concepts. As has already been said, sections 112 of the Malaysian and Indian Evidence Acts are in pari materia. Indian decisions will thus shed light on this point of law. We draw support for this distinction between “paternity” and “legitimacy” from the decision of the High Court of Kerala in Babu Remyalayam Veettil v Vidya D/o Santhini Kalathinte Padeetthathil Veettil [OP (FC) No. 507 of 2014 (R) decided on 26 November 2014] where K. Harilal J held as follows: “10. The term "legitimacy" employed under Section 112 of the Evidence Act refers and determines the legal status of birth, i.e. whether 12 legitimate or illegitimate. To put it differently, legitimacy of a child is its right to be officially or legally as such. There, the question in controversy may be whether the child is born in a legally valid marriage or not. Thus, the presumption of "legitimacy" follows subsistence of a valid marriage and the same is conclusive proof of the legitimate birth of the child, unless it is rebutted by the evidence of non-access. Therefore, no evidence can be adduced for the purpose disproving it, unless and until non-access between the spouses is shown…

11.

“Article 7 The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.” [Emphasis is ours] [31] Since the UNCRC has been cited to us, we also think that Article 3 of the same would be relevant to this suit. The relevant portion of Article 3 reads:

“Article 3 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” [Emphasis is ours] [32] The prevailing rule is that international treaties and conventions are not directly applicable to domestic law until and unless they are incorporated into domestic law. See: Bato Bagi & Ors v. Kerajaan Negeri Sarawak & Another Appeal [2011] 8 CLJ 766. The plaintiff 17 has not shown us how the above-cited Articles are applicable in Malaysia. [33] That being said, where the law is ambiguous, the Courts will still be charged with the duty to interpret local statutes in a manner where their ‘language will be in conformity and not in conflict with international law’. This includes the development of common law ‘by reference to statutory policy’. See Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012] 1 MLJ 832, at paragraph 29 citing Mason CJ of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, at page 363: “But the fact that the convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party (Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1), at least in those cases in which the legislation is enacted after, or, in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligation under international law. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that 18 it is in conformity and not in conflict with the established rules of international law (Polites v The Commonwealth (1945) 70 CLR 60). Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law… But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a back door means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials (Lamb v Cotogno

The right of the child to know of her (or his) biological antecedents is now recognised internationally as being of critical importance. Major international instruments such as the UN Declaration on Human Rights have recognized the rights of a child irrespective of her (or his) legitimacy and the Convention on the Rights of Child, 1990 has expressly specified a right to knowledge of parenthood. 21

The Convention therefore, specifically requires that as far as possible, the State must enable the child to know of his true paternity…

A child’s right to know of her or his biological parentage has had a critical influence also in many developments in Europe that have led to lifting the anonymity of a donor in assisted pregnancies and in case of sperm donors. Such donors remained anonymous in Europe till the 1980s. However, later developments mark a shift from the anonymity based approach, and the Courts, tend to lean in support of the child’s right to know her or his biological antecedents. Similar laws have been passed in many countries all over the world (such as Sweden in 1985, following which almost all of Europe with the latest addition of the United Kingdom has followed suit)………These developments all over the world indicate that there is a very tenable argument in the child’s interests that support its right to know the truth of its origin.” [Emphasis is ours] [36] We do not see why the aforementioned principles are not applicable in Malaysia. As we have already held, section 112 of the EA does not bar enquiries into paternity yet, at the same time, conclusively presumes legitimacy. Enquiries per se into paternity do 22 not in this sense illegitimise a child. Thus, this emphasis on the fear of illegitimising the said child is not the determining factor when deciding to order a DNA test to determine paternity. Instead, the best interest of the child to know its biological parents is the larger concern. In this vein, the learned Judge fell into error in her Ladyship’s pre-occupation with the supposed fear of illegitimising Child C. [37] This legal issue should have been accorded full consideration after a full ventilation of the factual matrix to determine the disputed factual issues. This, her Ladyship failed to do, merely adopting the arguments of the defendants entirely, as we pointed out earlier. [38] In these circumstances, we were satisfied that the learned judge had erred in summarily determining an important point of law effectively in vacuo. We therefore dismissed the defendants’ Order 14A application in Enclosure 16, and remitted the matter to the High Court by way of a writ action. The conversion of Enclosure 5 into a Writ Action [39] In allowing the plaintiff’s appeal, we were of the view that the plaintiff’s amended OS in Enclosure 5 had to be converted into a writ action. [40] It is trite that when there is a substantial dispute as to fact in any proceedings, such proceedings shall be begun by writ. If at all authority is needed, see: Order 5 rules 2 and 4 of the ROC 2012. In our reading of the affidavits in this action, it is as plain as pikestaff that the defendants deny many of the allegations made by the plaintiff in 23 respect of his purported relationship with the 1st defendant and Child C. These are crucial matters. The plaintiff’s claim ought not to have been dismissed outright in the absence of judicial determination on these crucial issues. Such determination can only be made with full viva voce evidence. [41] In this vein, we ordered that Enclosure 5 be remitted to the High Court and be converted into a writ action. We did so in accordance with Order 1A, Order 2 rule 1, Order 28 rule 8 and Order 92 rule 4 of the ROC 2012. In this way, parties may fully ventilate all issues. If at all precedent is needed, we refer to the decision of the Court of Appeal in Lee Lai Cheng No. 2 (supra at paragraph 62) where this Court remitted the Order 14A application to the High Court for trial. This stood independently from the point as to whether our Courts are empowered to order DNA tests under their inherent jurisdiction. Conclusion [42] We began this judgment by identifying one issue of primary concern. We summarise our judgment as follows: