Back
2025 MarsdenLR 3128
HIGH COURT MALAYA JOHOR BAHRU
TAN LAY KHIM & ANOR – Appellant
Versus
KEANG NGO CHOR & ANOR – Respondent
[Originating Summons No: JA-24F-187-06/2023]
The paramount principle in guardianship cases is the child's welfare, requiring the court to favor those who have consistently provided care and support.
Headnote:(A) Guardianship of Infants Act 1961 - Sections 8 and 11 - Guardianship determination following parental demise - Both parties submitted for guardianship of LKJ after the death of the parents in a road accident. The applicants, being the maternal grandmother and a close relative, demonstrated the stable environment and consistent care provided to the child. The respondents, competing with an adoption application, could not show superior care or involvement prior to the tragedy. The paramount consideration was the child's welfare, which favored the applicants. (Paras 10, 11, 20, 21, 26, 44)
(B) Child Welfare - The court emphasized the best interests of the child, underscoring that the child's established living pattern and relationships weigh heavily in guardianship decisions. (Paras 15, 24)
(C) Procedural Validity - The court found that the application for guardianship was filed appropriately, considering the lack of proper notification from respondents regarding their adoption application. (Paras 31, 42)
Findings of Court:
The court ruled that the applicants offered a more suitable environment for the child, primarily based on established caregiving and the demonstrated capacity to provide emotional and material support. The respondents' failure to have previously engaged in the child's life was significant.
Result: The applicants were granted legal guardianship and custody of the child, with visitation rights for the respondents.
| Table of Content |
|---|
| 1. determination of guardianship and custody (Para 1 , 2) |
| 2. background facts on child’s situation (Para 5 , 6) |
| 3. parties' arguments regarding custody (Para 7 , 8) |
| 4. legal framework for guardianship (Para 10 , 11 , 12 , 18) |
| 5. welfare of the child as paramount consideration (Para 15 , 16 , 23) |
| 6. court's findings supporting the applicants (Para 20 , 21 , 26) |
| 7. lack of merit in respondents' assertions (Para 44 , 45 , 47) |
| 8. final ruling and order (Para 54 , 55 , 57) |
Introduction
[1] This is an application by the applicants via Originating Summons (encl 1) ("OS") mainly for the determination of guardianship, custody, care and control of the child namely LKJ, (MyKid No.: 201027-XX-XXXX) (Birth Cert No.: DAC 45XXX) and who shall be responsible for the child's welfare in terms of care, support, health, education and growth.
[2] The Applicants also applied to be appointed as legal guardians of the child who shall have the right and management of the child's all official affairs and the child's life.
[3] After having read the Affidavits, written submissions by both the applicants and the respondents and after having heard the oral submissions of the parties, I allowed paras 1 and 2 of the applicant's application and other reliefs with costs to be borne by both parties equally.
[4] Below are my grounds of the decision.
Background
[5] The background facts in this application are gathered from the cause papers and submissions filed by the parties in chronological order.
[6] The brief facts which are relevant to the present application are as follows:
(a) on 16 March 2023, both the parents of the child died in a tragic road accident;
(b) even before the accident, the child had been raised by the 2nd Applicant ("A2") who is the maternal grandmother of the child as the parents of the child worked in Singapore; and
(c) however, after the funeral of the parents of the child, the Respondents demanded for the child to live with them at the 1st Respondent's ("R1") house.
[7] In brief, the Applicants submitted the followings:
(a) the child has been raised by A2 (feeding, bathing and taking care) all the way from his birth on 27 October 2020 with assistance from the 1st Applicant ("A1") (buying groceries, baby milk and other necessities, immunizations and clinic/hospital visits);
(b) it was the wishes of the parents of the child that the child be raised close to the A2's home in Johor Bahru; and
(c) the Respondents' house is not conducive for the child to be raised in.
[8] On the contrary, the Respondents contended that:
(a) the child is currently comfortable and happy living with the Respondents and their family members;
(b) they had made an adoption application in the Sessions Court of Segamat to ensure the wellbeing of the child; and
(c) a police report had been lodged by the Respondents to assert that the child is currently in the care of the Respondents.
Court Analysis And Findings
[9] I have identified two (2) issues below for the determination of this Court:
(a) what are the factors to be considered by the Court in deciding encl 1; and
(b) whether an order for guardianship, custody, care and control towards the child can be granted in lieu of the adoption proceedings towards the child in the Sessions Court of Segamat.
Principles Of Law Applicable To Guardianship Proceedings
[10] The relevant provisions governing and concerning guardianship proceedings are the ones as set out in the Guardianship of Infants Act 1961 [Act 351].
[11] The Respondents contended that an adoption application has been filed by the respondents in the Sessions Court of Segamat whereby the Adoption Act 1952 [Act 257] would be applicable.
[12] In this regard, reference is made to the case of Amarapathi Periasamy v. Muniandy Periasamy ; [2006] 2 MLJ 32 ; where the Court of Appeal held that:
"The word "guardian " is not defined under the Act. According to Osborn's Concise Law Dictionary (7th ed) the word "guardian " means "a person having the right and duty of protec
