The Star
by HARIATI AZIZAN
The best interest of the child must come first in custody cases.
AFTER a long battle with cancer, 18-year-old Sharon Yap or Shiro as she liked to be known, passed away in 2008.
It's a sad story not because she had a promising future or that she had such a beautiful soul, relates Human Rights Commission of Malaysia (Suhakam) commissioner James Nayagam, but because until the end, her divorced parents were still fighting over her.
He recalls how he first met Shiro when she was still a young child during her bitter custody case.
Her father finally won and was given custody of her and her younger brother.
Her mother was awarded unlimited access by the court.
But after all the squabble between them, Shiro's father did not allow her mother to visit them.
“This went on even until Shiro was diagnosed with cancer. Her mother had to go to court to ask for access to see her dying daughter,” Nayagam relates.
It was only when Shiro passed away that her mother got the chance to see her.
“Her mother went to the mortuary to prepare her daughter's body for the burial and still the father created a scene there,” he says.
This may be an extreme case, but Nayagam has chosen it to emphasise the need for parents to put their emotions aside and consider what is best for their children when their marriage breaks up.
As he points out, studies by child psychiatrists show that even in an amicable divorce, children will go through emotional issues.
So, it would be even more difficult for children in divorces that are fraught with bitterness.
In Shiro's case, he says, she was allowed to speak but she was not heard, especially by her parents.
In her journals (which will be published soon), Shiro confided many times about her torn loyalty and her fear of showing her real feelings to either parent lest she would upset them or make them angry, Nayagam reveals.
“In the end, she held back what she really felt, and lied.”
Most importantly, says Nayagam, regardless of the dispute, it is a child's right to have access to both parents and to be able to have contact and get care from them.
“Ultimately, the child's welfare is the most important and that is why in the Convention on the Rights of the Child (CRC), the main word that runs through it is ensure'.”
According to Article 3 of the CRC, which Malaysia ratified in 1995, the interests of children must be the primary concern in making decisions that affect them.
This applies especially in custody cases at the family court, he says.
“Parents may argue in court about what is the best interest OF the child but ultimately, the court needs to make its decision based on what is the best interest FOR the child.”
And to help them reach the best decision for the child, the court needs to hear what the child has to say, he stresses.
This is provided under Articles 12(1) and (2) of the CRC, which state that children should be involved in decision-making about their welfare and that those who are capable of expressing their views should be given an opportunity to be heard in legal proceedings.
“The child should be able to express his or her views and the court needs to take it into account when they make their decision, depending on the child's age and level of maturity.
“The court should especially pay attention to a child who is above six years old (under the CRC, a child is defined as below 18 years old), and maybe less to those below six.
“But, crucially, all children need to be allowed to express their views,” he notes.
Although this is taken into consideration in Malaysia's family court, the practice is erratic at best, Nayagam says.
This is why Suhakam, who is holding a watching brief in the heated custody battle of 12-year-old Low Bi-Anne, made a submission to the Court of Appeal to allow her to speak.
As Suhakam's representative in court, human rights lawyer Andrew Khoo explains: “The voice of the child is often overlooked in a custody battle as judges tend to see it as a battle between two parties, leaving the children caught in the middle.
“I'm reminded of this pepatah Melayu (Malay proverb) Gajah bergaduh, pelanduk mati di tengah-tengah' (While the elephants fight, the mousedeer in the middle dies).”
He believes that it is natural for the court to see things in terms of the rights of one party as opposed to the other, in this case the rights of one parent as opposed to the other, especially in a case of custody proceedings.
But they need to ensure that sufficient account has been taken of the rights of the child, not just the needs of the child.
The Bar Council's Family Law Committee chair Lalitha Menon concurs, and has raised the concern that when the child's voice is not allowed to be heard, you hear only from the parents.
“Even in cases where the child is allowed to say what he or she wants, at the end of the day it is the parents' wishes that are given more weight and concentration. In this case, you can say that the child's rights are violated.”
Menon also warns that determining the child's wishes remains a problem unless the family court system in Malaysia is reviewed.
“It is always a problem because she may be influenced or pressured by the parent that she is living with to say certain things or to what the parent wants.”
Bi-Anne's case received a lot of attention after she publicly and repeatedly declared that she wanted to live with her father, real estate agent Low Swee Siong, 40, even though the court awarded custody to her mother, restaurant manager Tan Siew Siew, 37, who is based in London.
Despite her tearful pleadings in open court, her opinions have not been taken into account.
The custody battle between Bi-Anne's parents started after the couple divorced in 2006.
The father was granted custody at first.
Two years later, Tan applied for and won custody while Low was given reasonable access.
However, Bi-Anne refused to go with her mother to England and insisted that she wanted to live with her father.
Suhakam commissioner Detta Samen hopes that the court will accept their submission and allow Bi-Anne to speak in court when they reconvene.
“She has a right to be heard, especially when the decision will affect her life.
“For instance, her citizenship rights also have to be taken into consideration,” he says.
Under the Federal Constitution, every person born outside Malaysia on or after Merdeka Day whose father is a citizen at the time of his birth and was born in Malaysia, is a citizen of Malaysia.
by HARIATI AZIZAN
The best interest of the child must come first in custody cases.
AFTER a long battle with cancer, 18-year-old Sharon Yap or Shiro as she liked to be known, passed away in 2008.
It's a sad story not because she had a promising future or that she had such a beautiful soul, relates Human Rights Commission of Malaysia (Suhakam) commissioner James Nayagam, but because until the end, her divorced parents were still fighting over her.
He recalls how he first met Shiro when she was still a young child during her bitter custody case.
Her father finally won and was given custody of her and her younger brother.
Her mother was awarded unlimited access by the court.
But after all the squabble between them, Shiro's father did not allow her mother to visit them.
“This went on even until Shiro was diagnosed with cancer. Her mother had to go to court to ask for access to see her dying daughter,” Nayagam relates.
It was only when Shiro passed away that her mother got the chance to see her.
“Her mother went to the mortuary to prepare her daughter's body for the burial and still the father created a scene there,” he says.
This may be an extreme case, but Nayagam has chosen it to emphasise the need for parents to put their emotions aside and consider what is best for their children when their marriage breaks up.
As he points out, studies by child psychiatrists show that even in an amicable divorce, children will go through emotional issues.
So, it would be even more difficult for children in divorces that are fraught with bitterness.
In Shiro's case, he says, she was allowed to speak but she was not heard, especially by her parents.
In her journals (which will be published soon), Shiro confided many times about her torn loyalty and her fear of showing her real feelings to either parent lest she would upset them or make them angry, Nayagam reveals.
“In the end, she held back what she really felt, and lied.”
Most importantly, says Nayagam, regardless of the dispute, it is a child's right to have access to both parents and to be able to have contact and get care from them.
“Ultimately, the child's welfare is the most important and that is why in the Convention on the Rights of the Child (CRC), the main word that runs through it is ensure'.”
According to Article 3 of the CRC, which Malaysia ratified in 1995, the interests of children must be the primary concern in making decisions that affect them.
This applies especially in custody cases at the family court, he says.
“Parents may argue in court about what is the best interest OF the child but ultimately, the court needs to make its decision based on what is the best interest FOR the child.”
And to help them reach the best decision for the child, the court needs to hear what the child has to say, he stresses.
This is provided under Articles 12(1) and (2) of the CRC, which state that children should be involved in decision-making about their welfare and that those who are capable of expressing their views should be given an opportunity to be heard in legal proceedings.
“The child should be able to express his or her views and the court needs to take it into account when they make their decision, depending on the child's age and level of maturity.
“The court should especially pay attention to a child who is above six years old (under the CRC, a child is defined as below 18 years old), and maybe less to those below six.
“But, crucially, all children need to be allowed to express their views,” he notes.
Although this is taken into consideration in Malaysia's family court, the practice is erratic at best, Nayagam says.
This is why Suhakam, who is holding a watching brief in the heated custody battle of 12-year-old Low Bi-Anne, made a submission to the Court of Appeal to allow her to speak.
As Suhakam's representative in court, human rights lawyer Andrew Khoo explains: “The voice of the child is often overlooked in a custody battle as judges tend to see it as a battle between two parties, leaving the children caught in the middle.
“I'm reminded of this pepatah Melayu (Malay proverb) Gajah bergaduh, pelanduk mati di tengah-tengah' (While the elephants fight, the mousedeer in the middle dies).”
He believes that it is natural for the court to see things in terms of the rights of one party as opposed to the other, in this case the rights of one parent as opposed to the other, especially in a case of custody proceedings.
But they need to ensure that sufficient account has been taken of the rights of the child, not just the needs of the child.
The Bar Council's Family Law Committee chair Lalitha Menon concurs, and has raised the concern that when the child's voice is not allowed to be heard, you hear only from the parents.
“Even in cases where the child is allowed to say what he or she wants, at the end of the day it is the parents' wishes that are given more weight and concentration. In this case, you can say that the child's rights are violated.”
Menon also warns that determining the child's wishes remains a problem unless the family court system in Malaysia is reviewed.
“It is always a problem because she may be influenced or pressured by the parent that she is living with to say certain things or to what the parent wants.”
Bi-Anne's case received a lot of attention after she publicly and repeatedly declared that she wanted to live with her father, real estate agent Low Swee Siong, 40, even though the court awarded custody to her mother, restaurant manager Tan Siew Siew, 37, who is based in London.
Despite her tearful pleadings in open court, her opinions have not been taken into account.
The custody battle between Bi-Anne's parents started after the couple divorced in 2006.
The father was granted custody at first.
Two years later, Tan applied for and won custody while Low was given reasonable access.
However, Bi-Anne refused to go with her mother to England and insisted that she wanted to live with her father.
Suhakam commissioner Detta Samen hopes that the court will accept their submission and allow Bi-Anne to speak in court when they reconvene.
“She has a right to be heard, especially when the decision will affect her life.
“For instance, her citizenship rights also have to be taken into consideration,” he says.
Under the Federal Constitution, every person born outside Malaysia on or after Merdeka Day whose father is a citizen at the time of his birth and was born in Malaysia, is a citizen of Malaysia.
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