…”. 22 23 [46] To this extent the opinion of the parties is secondary in relation to 24 the overriding consideration of the welfare and best interest of the child. 25 The provisions of the aforesaid section also emphasize that the Court 26 shall have regard to the undesirability of disturbing the life of a child by 27 changes in custody. 28 29 [47] On 18.7.2023 the Child was in the physical custody care and control 30 of the RW in Penang. The AH through the OS in Encl 1 applied for sole 31 custody care and control of the Child. The application in Encl 10 was filed 32 soon after. It was contended that the application was necessary in order 1 for a psychiatric report to be prepared which will efficiently assist this Court 2 to determine the outcome of its decision in Encl 1. Both the OS and Encl 3 10 had not been heard as of to date. Pending its hearing and disposal the 4 Court granted the interim physical visitation access of the Child to the AH. 5 The Court issued this ruling in order for the AH to be able to have access 6 to the Child when prior to this he had been denied access. The focus was 7 to allow the father to continue to maintain and foster a nourishing 8 relationship with the Child pending the disposal of the custody application. 9 However, by no means did it imply that custody care and control of the 10 Child be given over to the AH when granting the access rights. 11 12 [48] Encl 10 and the OS are two applications that pose bona fide serious 13 issues to be tried. It is crucial to note that when the parties separated, the 14 Child had continuously been with the RW and would have been 15 dependent on the RW for her physical and emotional love and care. 16 Hence at the material time it would not have been in the interest and 17 welfare of the Child to be removed from the RW and taken into the AH’s 18 custody. 19 20 [49] It is accepted that the application of the tender years doctrine is 21 encapsulated in s. 88(3) LRA, 1976. There are numerous case authorities 22 which have held that when dealing with a child of tender years, it would 23 be in the welfare and best interest of the Child to be with its mother. The 24 doctrine was explained in the case of K Shanta Kumari v Vijayan [1986] 25 2 MLJ 216. The facts of this case are somewhat similar to the instant case 26 where the mother had applied to regain custody of her 20 month old infant 27 from the father who had taken the child away without her consent. The 28 learned High Court Judge held that the child should continue to remain in 29 the custody of the mother. The learned Judge explained his reasoning in 1 this manner : 2 3 “Even going on the assumption that both parents are equally capable of 4 providing the care, comfort and attention to the infant, the Courts have 5 always leaned in favour of the mother being given custody of 6 young infants. The reason is obvious. An infant of tender age is by 7 nature more physically and spiritually dependent on its own 8 mother than anyone else. In Kades v Kades [1961] 35 ALJR 251 the 9 High Court in a joint judgment stated: 10 ‘What is left is the strong presumption which is not one of law but is 11 founded on experience and upon the nature of ordinary human 12 relationships, that a young girl, should have the love, care and 13 attention of the child’s mother and that her upbringing should be 14 the responsibility of her mother, if it is not possible to have the 15 responsibility of both parents living together.’ 16 In Re Orr [1973] 2 DLR 77 Mulock C.J. commented: 17 ‘In the case of a father and mother living apart and each claiming the 18 custody of a child, the general rule is that the mother, other things 19 being equal, is entitled to the custody and care of a child during 20 what is called the period of nurture, namely until it attains about 21 seven years of age, the time during which it needs the care of the 22 mother more than that of the father…’ 23 Similarly in Myriam v Mohd Ariff [1971] 1 MLJ 265 Abdul Hamid J (as he 24 then was) when considering the custody of a 3-year old infant said: 25 ‘To my mind, it would not be in the interests and welfare of this 26 infant that he should be denied of the natural mother’s love, care 27 and affection. It is proper that he should be in the custody of the 28 applicant until at least he reaches the age of 7 or 8 years at which 29 time either party may be at liberty to apply.” 30 31 [50] In the case of Teh Eng Kim v Yew Peng Siong [1977] CLJU 138 32 the court revisited the relationship between a young child and mother and 33 decided as follows :- 34 “In my opinion, his (Child) place right now is with the mother. “No 1 thing, and no person,” said Sir John Romilly MR in the case of Austin v 2 Austin [1865] 35 Beav 259 263 “and no combination of them, can, in my 3 opinion with regard to a child of tender years supply the place of a 4 mother, and the welfare of the child is so intimately connected with its 5 being under the care of the mother, that no extend of kindness on the 6 part of any other person can supply that place..” 7 8 [51] However, that is not to say that the AH had no right to rebut this 9 presumption. He would need strong grounds to do so. This sentiment is 10 found in the case of L v S [2002] 7 MLJ 584 where the learned High Court 11 Judge cited the case of W v H[1987] 2 MLJ 235 and stated that : 12 13 “…the presumption is a rebuttable one. Shanker J in W v H was of the 14 opinion that strong grounds would be needed to rebut the 15 presumption. Similar sentiments were expressed by Donovan LJ in Re 16 B (an infant) [1962] 1 All ER 872 where the child was four years old. He 17 said (at p 875): 18 Prima facie a child of this age ought to remain with his mother 19 and strong grounds are required to justify taking him away. 20 In the same case, Harman LJ said in the case of a child young enough 21 to need the day to day care of his/her mother that it is better to leave the 22 child with the mother unless the mother is an entirely unsuitable person.” 23 24 [52] Therefore it would be erroneous for the AH to argue that the tender 25 years presumption is not applicable when it is one of the factors which this 26 Court must take into consideration when deciding what is in the best 27 interest and welfare of the Child. In any event there has been failure to 28 produce any strong and valid grounds to rebut that presumption. All that 29 was brought up were allegations. Such allegations should not be launched 30 without compelling and cogent evidence to sustain them. 31 32 [53] It is incumbent upon me to assert that the Child possesses an 1 inherent right to maintain a consistent and tangible relationship with both 2 parents. At this juncture I was of the view that it is only just and fair that 3 the AH ought not to be deprived of access to the Child while awaiting the 4 outcome of the OS. 5 6 [54] The ruling given on 18.7.2023 merely granted ad interim physical 7 visitation access to the AH. It did not permit him to take the Child away 8 from the custody of the RW. To my mind the continuous refusal to return 9 the Child to the jurisdiction of the Court constitute a clear and blatant 10 disregard of the Court’s ruling. Whatever the reasons and motives for 11 taking the Child away this was a clear case of non-compliance and 12 disrespect of the said ruling. 13 14 [55] Reference is made to the case of Wee Choo Keong v MBF 15 Holdings Bhd & Anor Appeal [1993] 3 CLJ 210 where the Supreme 16 Court held : 17 18 “It is established law that a person against whom an order of Court has 19 been issued is bound to obey that order until it is set aside. It is not open 20 for him to decide for himself whether the order was wrongly issued and 21 therefore does not require obedience. His duty is one of obedience until 22 such time as the order may be set aside or varied. Any person who fails 23 to obey an order runs the risk of being held in contempt with all its 24 attendant consequences.” 25 26 [56] Notwithstanding the aforesaid I was still prepared to hear the parties 27 and interview the Child on 23.10.2023. There should be no objection in 28 principle for this Court to consider and if need be revisit its earlier ruling at 29 its next hearing date. Undoubtedly every case deserves to be determined 30 upon the particular circumstances affecting the case. 31 [57] The AH was accorded ample opportunity to return the Child. Further 1 and in the alternative if the AH genuinely thought that the Child was in 2 danger he could have made an application for interim custody of the Child. 3 4 [58] It was my considered view in applying the principles laid down in 5 Keet Gerald’s case the arguments canvassed with regard to the 6 respective submissions of opposing parties were serious questions 7 requiring full and proper deliberation and consideration at the hearing of 8 Encl 1 after all the alleged facts had been set forth and ventilated before 9 the Court which for now this Court cannot and is in no position to 10 determine the same. Quite crucially in view of the continuous refusal to 11 surrender the Child it was my respectful view that the granting of a 12 mandatory injunction was validly needed. 13 14 [59] Premised on the foregoing I was satisfied that the RW had met the 15 threshold for a mandatory injunction to be granted in her favour. 16 17 Where the balance of convenience lie 18 [60] This leads me to the issue as to where the balance of convenience 19 lies. This Court agreed with the RW that the balance of convenience lay 20 with her. It is worth noting that the RW had fully complied with the Court’s 21 ruling dated 18.7.2023 and had assisted in the access of the Child to the 22 AH. At the risk of repetition, it must be emphasized that the Child was 2 23 years and 9 months old at the material time. To my mind by reason of her 24 age, the Child ought not to be separated from her mother for any measure 25 of time. 26 27 [61] There were allegations that the RW had purportedly failed to take 28 proper care of the Child, that the Child was becoming weaker and skinnier 29 and was suffering from whopping cough. I agree with the RW’s 30 submission that these allegations are unfounded. The RW had through 1 her affidavits rebutted that assertion. There was contemporaneous 2 medical evidence that the Child was healthy and that she had a healthy 3 and normal BMI for a child of her age indicating that she was otherwise in 4 good health. It was shown that she was only suffering from mild upper 5 respiratory tract infection and not whopping cough as alleged. 6 7 [62] At the same time there is no proven violence, abuse or bully 8 committed onto the Child by the RW. With respect I find this allegation to 9 be a bare averment without support. Without proper documentary 10 evidence all that was alleged were mere speculation and conjecture 11 without any basis. There was a failure to produce any tangible evidence 12 substantiating the alleged abuse and bully of the Child. 13 14 [63] Regarding the issue of photos and videos of the Child with scars it 15 is crucial to bear in mind that the Court must exercise caution and 16 recognize that photographic evidence can be subject to editing and 17 selective presentation. More so here where the photographs do not carry 18 the date and time stamp. Apart from being self-serving, it constitutes 19 insufficient evidence to draw any inference that the scars on the Child’s 20 body were caused by the RW or her relatives. 21 22 [64] To compound matters there is a finding by the Social Welfare 23 Department Komtar attached to the RW’s Affidavit in Reply (Exh T-7, Encl 24 48) that its officer had found no purported child abuse committed on the 25 Child. 26 27 [65] It was contended that the child is more comfortable staying with the 28 AH and a psychological assessment report of the Child to support that 29 averment was exhibited. It is to be noted that there was no affidavit 30 affirmed by the purported expert who prepared the assessment report, 1 hence questions of admissibility of the report was called onto. It is 2 significant that the assessment was done unilaterally in the absence of 3 the RW without her knowledge and it is unknown what was informed to 4 the expert before conclusions were drawn in regard to the Child’s 5 purported conflicted feelings attributed to the RW. Over and above all this 6 would lurk the likelihood of bias since the expert did not have the 7 opportunity to assess the Child, the AH and the RW together. 8 9 [66] The Court is in agreement with the RW’s contention that if the AH 10 was sincerely of the view that he was acting bona fide and genuinely 11 concerned for the welfare and interest of the Child, then he should have 12 made an application for interim custody of the Child or waited until 13 29.9.2023 to personally report the status of the Child to the Court. He 14 could also have immediately reported the matter to the Welfare authorities 15 who are equipped with the power to temporarily remove the Child from 16 any suspicious situations or abusive conditions. 17 18 [67] In this matter the Court must consider where the balance of 19 convenience lies. In making that assessment the Court must weigh the 20 harm that the injunction would produce by its grant against the harm that 21 would result from its refusal. The objective of the order is aimed to produce 22 a just result pending the period between its grant and to the final decision 23 on the OS. 24 25 [68] In my view the balance of convenience overwhelmingly favours the 26 RW. The status quo ought to be preserved bearing in mind the best 27 interest and welfare of the Child. As it happens, the Child is now deprived 28 of the love care and affection of her mother, the RW. It is unjust to prevent 29 the Child from seeing and being with her mother. To conclude I find that 1 the balance of convenience has tilted on the scales in favour of the RW. 2 3 Whether damages is an adequate remedy 4 [69] To revert to the facts that were placed before this Court, it is plain 5 that damages would not be an adequate remedy. If the mandatory 6 injunction is not granted the Child might never get to see and be with the 7 RW. The Child has a right to her mother’s love and affection. To this end 8 damages could never compensate for the irreparable effect and impact it 9 will have on the interest and welfare of the Child. 10 11 Conclusion 12 [70] It has now been 5 months since the Child was in the custody of the 13 RW. The RW has missed significant milestones of the Child’s life during 14 these months apart. The AH persists in flagrantly defying the Court’s ruling 15 and if the mandatory injunction is not granted the RW would continue to 16 be deprived of providing a mother’s love care and devotion to the Child. 17 18 [71] I am in agreement with the RW’s arguments that anchored on the 19 prevailing materials presented, the mandatory injunction is crucial to 20 preserve the status quo in relation to the custody of the child pending 21 determination of the OS. 22 23 [72] For the reasons given, this Court exercised its discretion to grant the 24 injunctive relief sought in Encl 30 with no order as to costs. 25 26 Postscript 27 [73] As it turned out the AH was dissatisfied with the decision aforesaid. 28 Apart from appealing against the said decision the AH has written a 29 number of letters of complaint to the Chief Justice’s Office in regard to the 30 decision and against me personally in my conduct of the case. I have 1 nothing to add save to give the assurance that my reasoning above is in 2 no way affected by the AH’s complains against me. 3 4 Dated 12 March 2024. 5 6 7 8 (JULIE LACK) 9 Judge 10 High Court of Malaya 11 Shah Alam, Selangor Darul Ehsan 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Counsel 1 For the Petitioner : 2 - 3 4 For the Respondant : 5 James Chow with Tan Yee Hui 6 (MESSRS. CHOW KOK LEONG & CO.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30