SHAMSHUDDHUHA BIN ISHAK v Pendakwa Raya (WA-89-531-04/2025)

This case concerns an application filed by the Applicant, acting as a guardian, against a child on the grounds of being beyond parental control. The Applicant claims that the child was manipulative, had lodged false police reports against him, had a history running away from home, and associated with negative or harmful peers.

At the outset, the Applicant had filed the application on 10.4.2025, where it was brought before me and heard on the same day. Pursuant to s. 46(2) of the Child Act 2001 (hereinafter referred to as ‘the Child Act’), I was satisfied that the Applicant had understood the nature and consequences of his application and he agreed to proceed with the application. Accordingly, I directed that the child be temporarily placed in a probation hostel and that a probation report be prepared by the probation officer, pursuant to Section 46(3) of the Child Act.

The application was initially scheduled for hearing on 15.5.2025. However, following a written request from the probation officer, the matter was adjourned to 24.6.2025 to allow additional time for the completion of her investigations.

Upon in-depth consideration of the probation report prepared by the probation officer together with the recommendation of the advisers, I ordered the child to be placed in the care of a fit and proper person, Faradibah Puspawati binti Saroni, (hereinafter referred to as ‘the fit and proper person’) until the child reaches 18 years of age and additionally, for the child to be placed under the supervision of a probation officer. Dissatisfied with my decision, the Applicant filed a Notice of Appeal on 8.7.2025.

With the prior brief prelude, I now set out the salient facts of the case. The child was born on 31.1.2009 and was taken into the care 3 of the Applicant and the fit and proper person, who were legally married at the time. The Applicant and the fit and proper person were subsequently divorced in 2012. Although divorced, the fit and proper person was granted visitation rights with the child but was not permitted to have overnight stays. The child was then legally adopted on 8.4.2015 but solely under the Applicant’s name.

The child remained in the care of the Applicant until November 2024, when, following a fight, she ran away from the Applicant’s residence and began residing with the fit and proper person, which in turn prompted the Applicant to file this application. C. THE APPLICATION

The main issue for the court’s consideration is whether the child is beyond control. After all, this was the crux of the Applicant’s application and why the child was requested to be placed in a probation hostel by the Applicant.

As laid down above, the Applicant’s grounds for this application are that the child has exhibited manipulative behavior, filed false police reports against him, has a history of running away from home, and associates with negative or harmful peers.

I have carefully considered all of the Applicant’s claims, along with the probation report submitted by the probation officer. The child had lodged four (4) separate police reports, each citing different incidents. The 1st police report by the child was made on 10.2.2025 at 11.04 a.m. police report number SRI HARTAMAS/000637/25 stating that she no longer wants to live with the Applicant. The child alleged, among other reasons, that the Applicant had peeped into her room and entered it on multiple occasions while she was getting ready after showering, thereby causing her to feel uneasy. She further alleged that she had observed the Applicant viewing child pornography on multiple occasions. The 2nd police report, numbered SELAYANG/003633/25 and filed on the same day at 11:23 a.m., detailed an incident at the Applicant’s sister’s residence in which the child observed the Applicant’s sister’s son holding and massaging his own genitalia. The child reported the incident to the Applicant’s sister, but the matter was dismissed and laughed off. The 3rd police report, numbered TMN MELAWATI/001170/25 filed on the same day at 11.38 a.m., narrated an incident that occurred when the child was 12 years old. According to the report, while at the Applicant’s sister’s residence, the child was recorded while showering by the Applicant’s sister’s ex-husband. It is imperative to note that, in this particular police report, the child expressed that during her care and custody under the Applicant, she felt unsafe and uneasy. Furthermore, the child conveyed her desire to reside with the fit and proper person. The 4th police report was lodged on 27.2.2025 at 10.44 a.m., numbered CYBERJAYA/001936/25. The child complained that she 5 was sexually harassed by her stepbrother since she was 10 years old. The incidents described by the child included the following: the stepbrother had rubbed his genitals on the child’s rear while she was doing the dishes, the stepbrother had attempted to take off her pants while she was sleeping and the stepbrother had put his genitals on the child’s lips when the child was asleep. In this particular police report, the child reaffirmed her position that she no longer wishes to reside with the Applicant. In response, the Applicant filed a police report denying the allegations made by the child, as evinced in police report number DANG WANGI/011991/25. The Applicant stated that the child had run away to the fit and proper person’s residence, allegedly because she was aware that the Applicant was angry with her for engaging in sexual intercourse with her boyfriend.

Revisiting the issue at hand, is the child beyond control? According to section 46(1)(a) of the Child Act, an application may be made by a parent or guardian of the child on the ground that the parent or guardian is unable to exercise proper supervision and control over the child and the child is falling into bad association. For ease of reference the said provision is reproduced below: “46 Children beyond control

An application in writing may be made to the Court For Children to detain a child in a probation hostel or centre-

by a parent or guardian of a child, on the ground that the parent or guardian is unable to exercise proper supervision and control over the child and the child is falling into bad association; or….” The child in this present case admitted that she had sexual intercourse with her boyfriend and engaged in misconduct, including truancy, vaping in the school toilet, and engaging in sexually explicit communication with her boyfriend. She also acknowledged that she had chosen poor influences; however, she did not place full responsibility for her misconduct on them, accepting personal accountability for her actions. This indicates that the child is indeed associating with negative influences. [11] With respect to whether the Applicant is unable to exercise proper supervision and control over the child, this is supported by the Applicant’s own police report, police report number DANG WANGI/011991/25, where the Applicant expressly states that this application has been filed on the basis that he is unable to exercise control over the child, and that he seeks for the child to be placed in a probation hostel until she attains the age of 18. [12] This court also took into consideration that, during the hearing of this application, both the Applicant and the child were involved in an emotional outburst directed at one another, which is indicative of a significant breakdown in their relationship. This incident, viewed in conjunction with the child's admitted behavioural issues and her unwillingness to remain under the Applicant’s care, further substantiates the Applicant’s claim that he is no longer able to exercise proper supervision and control over the child, thereby justifying the application for her to be declared a child beyond parental control. [13] Upon determining that the child is beyond parental control, the court must then decide on the most suitable order to be made. Section 46(5) of the Child Act states as follows: “(5) The Court For Children may, after considering the probation report referred to in paragraph (3)(b) and taking into consideration that it is desirable to place a child in a family based care-

make an order placing the child in the care of a fit and proper person;

make an order placing the child in a centre;

make an order detaining the child in a probation hostel; or

make an order placing the child under the supervision of-

a probation officer; or

(ii) any person appointed for the purpose by the Court, for a period specified by the Court.” (Emphasis added) [14] Pursuant to the above provision, the court must not only consider the probation report, but must also take into account the desirability of placing the child in family-based care. In the current case, notwithstanding the fact that the fit and proper person is divorced with the Applicant, the fit and proper person had demonstrated her willingness and the capacity to assume responsibility for the care of the child. The child had already been in contact with the fit and proper person before this application, suggesting a pre-existing bond that would support the child’s well-being. [15] The Applicant submitted to the court that the child ought not to be placed with the fit and proper person, alleging that the latter had a negative influence over the child. The Applicant pointed out that the fit and proper person kept a dog as a pet and additionally, the Applicant claimed that the child’s behavior had become increasingly liberal since the child stayed with the Applicant. [16] The fit and proper person informed the court that the dog has since been put up for adoption and is no longer under her care. The probation officer also conducted a home visit to the fit and proper person’s residence and noted that she kept a cat as a pet and no evidence of a dog was observed. The probation report further indicated that the fit and proper person had provided a separate room for the child and had made appropriate plans to ensure the continuation of her studies, demonstrating a stable and supportive environment conducive to the child’s well-being and development. [17] Accordingly, I conclude that it is in the best interest of the child to be placed in the care of a fit and proper person rather than in a probation hostel, as such an arrangement would better serve the child’s welfare, stability, and prospects for rehabilitation. This decision is made having due regard to the circumstances of the case, the child’s needs, and the statutory obligations imposed upon the court. D. CONCLUSION [18] For the reasons expounded, in particular having regard to the best interests of the child and the relevant issues raised, the application is allowed and the child is to be placed under the care of a fit and proper person, namely Faradibah Puspawati binti Saroni, until the child is 18 years of age pursuant to section 46(5)(a) of the Child Act. Additionally, the child is placed under the supervision of a probation officer for a period of one (1) year as stipulated under section 46(6)(a) of the Child Act. Dated: 30th August 2025 NUR FARAHAIN BINTI ROSLAN MAGISTRATE MAGISTRATE CRIMINAL COURT 12 (COURT FOR CHILDREN) KUALA LUMPUR COURT Counsel for the Applicant : Unrepresented Social Officer : Halid bin Agil