Kamala A/P Subramaniam v 1. ) R. Bannir Selvam (WA-89-943-07/2025)

R. BANNIR SIVAM A/L C. RATNAM … RESPONDENTS [I/C NUMBER: 660813-10-6827]

KALAVATHI A/P MARIMUTHU [I/C NUMBER: 661230-10-5958] GROUNDS OF JUDGMENT A. INTRODUCTION [1] This case is an unpleasant tug of war between the birth mother (hereinafter referred to as ‘the Applicant’) and the guardians of the child (hereinafter referred to as ‘the Respondents’). The Applicant intends to set aside the order dated 30.1.2023 granted in favor of the Respondents S/N uzyE3w7JEmbDl3nKNmuqg vide case number WA-89-1454-11/2022, on the grounds that the application was heard in the absence of the Applicant, as no notice was served on her and she was not given an opportunity to be heard. [2] At the outset, the Applicant had placed the child under the Respondents’ care when the child was about one year old, sometime in

Subsequently, the Protector filed an application on 14.11.2022

12.12.2022, seeking any information pertaining to the whereabouts of the biological mother. Secondly, on 19.8.2022, the Respondents had taken the initiative to place a notice in the Tamil daily, Makkal Osai, in an effort to locate her. Notwithstanding these efforts, both attempts proved futile, and the biological mother could not be traced. Having kept the best interests of the child at the forefront of my consideration, and in order to avoid any further delay in the proceedings, I proceeded with the hearing of the application and dispensed with the attendance of the biological mother pursuant to section 30(11) of the Child Act 2001. [13] According to the Protector’s report, the biological mother had placed the child in the Respondents’ care since the child was one year of age. The 2nd Respondent lodged a police report on 25.1.2016, bearing report number SENTUL/001438/16, stating that the child had been entrusted to her by the Applicant on 23.1.2016. However, the Applicant failed to return thereafter. The 2nd Respondent made several attempts to contact the Applicant via her mobile phone, but these efforts were unsuccessful. In the said police report, the 2nd Respondent further expressed her suspicion that the Applicant was involved in drug-related activities. [14] The Protector’s report further stated that the Respondents had been providing for the child’s education since she was five years of age. The child had continued her studies without interruption and was, at that material time, attending primary school. The Respondents had also arranged for the child to attend tuition classes and ensured that she remained up to date with her immunisations. In essence, the Respondents had not only provided the child with a safe and stable home environment but had also ensured her health and intellectual growth. The child had also expressed her wish to remain in the care of the Respondents. S/N uzyE3w7JEmbDl3nKNmuqg [15] In view of these circumstances, the Court was satisfied that it was in the best interests of the child to continue residing with the Respondents at that point in time. Accordingly, the Court allowed the Respondents’ application and ordered that the child remain under their care and custody until she attains the age of 18 years, subject to the conditions imposed as set out in the order. [16] In the present application before this Court, the Applicant asserted that there had been a change in circumstances and that she was now ready and fit to resume the care of the child. Consequently, the Court directed the Protector to prepare an updated report to inquire into and assess the Applicant’s current circumstances and suitability to resume care of the child. The application was accordingly fixed for hearing on 27.8.2025. [17] Unfortunately, on the scheduled date, the Protector informed the Court that his investigations had been impeded, as he was unable to locate the Applicant’s residence and conduct the necessary inspection. The Protector had relied on the Applicant’s address as provided in her police report dated 2.5.2025, as well as in paragraph 10 of her Affidavit in Support (Enclosure 2). However, as the address provided in both the police report and the Affidavit in Support was incorrect, the Court had no alternative but to adjourn the hearing to a later date to allow the Protector to prepare a proper report. [18] On 24.9.2025, all parties appeared before the Court, and the updated Protector’s Report and a Social Report was duly submitted. S/N uzyE3w7JEmbDl3nKNmuqg C. ISSUE WHETHER THE ORDER DATED 30.1.2023 OUGHT TO BE AMENDED, VARIED OR REVOKED [19] Pursuant to section 30(13) of the Child Act 2001, a Court for Children is empowered to amend, vary, or revoke any order if it is satisfied that doing so would be in the best interests of the child, or upon proof that the circumstances prevailing at the time the order was made have since changed. For ease of reference, the relevant provision is set out below: “30 Powers of Court For Children

A Court For Children may, on the application of-

a Protector;

the person in charge of a place of safety or centre; or

the parent or guardian of a child, amend, vary or revoke any order made under this section- (aa) if the Court For Children is satisfied that it is in the best interests of the child to do so; or (bb) upon proof that the circumstances under which the order was made have changed after the making of the order.” [20] In the present application before this Court, the Applicant contends that it is in the child’s best interests to reside with her. She submits that the child has expressed a wish to return to her care and that there has been a material change in circumstances, particularly in relation to her S/N uzyE3w7JEmbDl3nKNmuqg financial situation, as she is now gainfully employed and has secured permanent accommodation suitable for the child’s upbringing. [21] The concept of the ‘best interests of the child’ is not rigidly defined, and its determination depends on a broad range of factors. It is a flexible standard that requires the Court to consider all relevant circumstances affecting the child’s welfare and overall well-being. According to the High Court case of Mogan a/l Ganeson v Jabatan Kebajikan Masyarakat & Anor [2020] 12 MLJ 835, the concept of the best interest of the child encompasses emotional, intellectual, physical, financial or any legitimate consideration that would bring the best in the child’s upbringing. [22] Given that both the Applicant and the Respondents are seeking care of the child, it falls to the Court to determine the matter with the child’s welfare as the paramount consideration. The Court is guided by the case of Khoo Cheng Nee v Lubin Chiew Pau Sing [1996] 4 MLJ 171 where the High Court stated as follows: “The wishes of the parents as to custody are in opposition to one another, therefore the court is left with the welfare of the children as the paramount or first and foremost, although not the sole, consideration.” The High Court further clarified the ambit of the term ‘best interests of the child’ in the following manner: “A court gives the ‘best interests of the welfare’ of the child the highest priority. What the best interests of the child are in a given situation depends upon many factors, including:

the child's age, gender, mental and physical health; S/N uzyE3w7JEmbDl3nKNmuqg

mental and physical health of parents;

lifestyle and other social factors of the parents, including whether the child is exposed, for example, to second-hand smoke and whether there is any history of child abuse;

the love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance;

the parent's ability to provide the child with food, shelter, clothing and medical care;

the child's established living pattern (school, home, community, religious institution);

the quality of school – particularly important when one parent wishes to move; and

the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.” [23] Returning to the facts of the present case, the Court has drawn guidance from both the Social Report and the Protector’s Report in evaluating the personal and familial backgrounds of the parties. Turning first to the background and circumstances of the Applicant, the child is the youngest of three siblings born to the Applicant and the biological father. Additionally, the Applicant had several other children with different partners. At the time of this application, the Applicant was a single mother employed as a cleaner in Singapore. Despite her employment abroad, she retained a residence in Taman Pulai Utama, Pulai, Johor, which the Social Officer visited and inspected. The household income was derived from the S/N uzyE3w7JEmbDl3nKNmuqg Applicant and her other children who were employed and the Applicant asserts that she was financially stable. [24] The Respondents, on the other hand, asserts that they are better suited to meet the child’s needs on the basis that they have provided care for the child since she was about one year of age. The Respondents stated that they have been blessed with two children and that currently only the 1st Respondent is employed, with their son also contributing to the family’s income. The Respondents further ensured that the child was properly enrolled in school and arranged for private Tamil tuition twice weekly to support her linguistic and educational development. The child was sent to school daily by the Respondents, and whenever the child wished to go out, the Respondents would accompany her. From the Protector’s Report, it is evident that the Respondents demonstrated a higher level of care for the child compared to the Applicant. [25] As laid down under section 89 of the Child Act 2001, the Court may require a child’s parents or guardian, as the case may be, to withdraw from the Court if it is necessary in the best interests of the child. As both parties asserted that they were better suited than the other to care for the child, the Court then decided to interview the child privately. In my view, the child’s perspective should also be taken into consideration, as she is sufficiently mature to understand her biological mother’s application and the implications arising from it. [26] The child expressed her desire to remain in the care of the Respondents and openly acknowledged that she felt uncomfortable around the Applicant. She also informed the Court that she would be unhappy if the Court decided to return her to the Applicant. However, S/N uzyE3w7JEmbDl3nKNmuqg when further questioned, she expressed willingness to allow the Applicant to meet her once a month, provided the meetings took place in a public setting. [27] I refer to the case of Nur Hidayah Salahuddin v Department of Social Welfare & Anor [2019] 5 CLJ 244, in which the High Court, on an appeal, held that an order under the Court for Children would not be in the mother’s interests. Nevertheless, in the prevailing circumstances, the Court emphasised that the child’s interests must take priority above all else. [28] In the case cited above, the facts bear striking similarity to the present matter. In that case, the mother had entrusted her daughter to the guardian when she went to Kuala Lumpur in search of employment. Subsequently, the guardian filed an application seeking custody of the child, which the mother opposed. The Court for Children ultimately granted custody to the guardian, primarily on the basis that the child’s conduct indicated a clear inclination to remain in the care of the guardian, while the mother was granted unrestricted access to the child. [29] The High Court held that the Court for Children’s order preserved the mother’s interests, noting that granting her unlimited access would allow the mother to spend meaningful time with the child. This opportunity for interaction would enable the mother to rebuild their relationship after the prolonged separation, prior to any eventual assumption of custody. [30] Turning to the present case, the child has expressed a clear preference to continue living with the Respondents and candidly stated that she feels uncomfortable with the Applicant. I noted that the child S/N uzyE3w7JEmbDl3nKNmuqg appeared afraid to express her decision in the presence of both the Applicant and the Respondents. This situation was concerning, particularly as I observed the Applicant directing hostile glances toward the child, which may have contributed to her hesitation in expressing her decision openly. [31] The Court’s advisers also indicated that maintaining custody with the Respondents would serve to preserve the child’s emotional well-being. As the child has lived with the Respondents for several years, altering her living environment would be expected to adversely affect her emotional state. Moreover, returning the child to the Applicant would result in not only a change of residence but also a change of school and the loss of established friendships, further impacting her emotional well-being. [32] This position is further supported by established judicial guidance, which emphasises that the court will ordinarily favour the parent or guardian who is best able to maintain stability in the child’s surroundings. As summarised in Khoo Cheng Nee (supra): “To summarize, for guidance in similar applications, the court will normally favour the parent who will best maintain stability in the child's surroundings. There is no set standard as to what constitutes ‘stability’, but a judge looks for continuity in a child's life. To the degree possible, a judge will try to maintain continuity in, for example, a child's school, community and religious ties.” [33] However, the Court also recognises the Applicant’s rights as the biological mother. Biological parenthood remains a significant factor, and the Applicant’s legal and natural relationship with the child cannot be S/N uzyE3w7JEmbDl3nKNmuqg totally disregarded. Nevertheless, such rights must be balanced against the paramount consideration of the child’s welfare, particularly where stability, continuity, and emotional well-being are at stake. [34] On this point, the Court took into account that the child had previously indicated her willingness to meet the Applicant once a month. Accordingly, the Court grants such access, ensuring that the child may maintain contact with the Applicant in a manner consistent with her comfort and emotional well-being. D. FINAL ANALYSIS [35] Upon in-depth consideration of the Protector’s Report and Social Report and the parties’ oral and written submissions, I am satisfied that the order dated 30.1.2023 ought to be varied, as there is evidence that the circumstances prevailing at the time the order was made have since changed. The Applicant has now returned and has demonstrated financial stability sufficient to provide for the child. [36] In the light of the facts and circumstances of this case, and after taking into account the best interest of the child as the paramount consideration, in line with a construction which is consistent with section 30(5) of the Child Act 2001, particularly the child’s own views, as the child has demonstrated both the maturity and ability to articulate an independent position, I am of the view that the order dated 30.1.2023 should be varied to incorporate an additional condition, namely that the Applicant be permitted to visit the child once a month in a public setting, in a manner that respects the child’s comfort and emotional well-being. S/N uzyE3w7JEmbDl3nKNmuqg E. CONCLUSION [37] For the reasons set out above, having regard in particular to the best interests of the child and the issues raised, the Applicant’s application to set aside the order dated 30.1.2023 is dismissed. However, the said order is amended to grant the Applicant visitation rights, subject to the time, date, and venue being mutually agreed upon by the child and the Respondents. Dated: 17th of November 2025 NUR FARAHAIN BINTI ROSLAN MAJISTRET MAHKAMAH MAJISTRET JENAYAH 12 MAHKAMAH KUALA LUMPUR For the Applicant: Devinder Kaur A/P Harnam Singh For the Respondents: Rathimalar A/P Gnanasundram Protector: Shukor Salleh bin Laslile S/N uzyE3w7JEmbDl3nKNmuqg