Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 MarsdenLR 65

FEDERAL COURT PUTRAJAYA
MPPL & ANOR – Appellant
Versus
CAS – Respondent
[Civil Appeal No: 02(f)-49-08-2023(W)]

Petitioner Advocates:Foo Yet Ngo,Kiran Dhaliwal,Yu Yi Lin ,Respondent Advocate: Tay Kit Hoo

The presumption of legitimacy under Section 112 of the Evidence Act does not preclude inquiries into paternity, but such inquiries must respect the child's welfare and the legal framework governing legitimacy.

Headnote:(A) Evidence Act 1950 - Section 112 - The court addressed the distinction between legitimacy and paternity, affirming that paternity inquiries are permissible despite the presumption of legitimacy under Section 112. The right of a child to know biological parents is significant but not paramount. (Paras 40, 41, 86)

(B) Parens Patriae - The court's role as parens patriae must prioritize the child's welfare, which includes considerations of the potential negative impact of forced DNA testing on the child. (Paras 105, 138)

Facts of the case:
The plaintiff claimed to be the biological father of a child born during the marriage of the defendants and sought a DNA test to establish paternity. The High Court dismissed the application based on the presumption of legitimacy under Section 112. (Paras 5, 10, 12)

Findings of Court:
The Federal Court upheld the Court of Appeal's decision to remand the matter for a full trial, stating that paternity inquiries should not undermine the presumption of legitimacy without clear evidence of 'no access.' (Paras 18, 30)

Issues: The main issues included the distinction between legitimacy and paternity, the applicability of Section 112 of the Evidence Act to DNA testing, and the child's right to know their biological parents. (Paras 2, 4, 7)

Ratio Decidendi: The court concluded that while legitimacy and paternity are distinct, they are interconnected, and the presumption of legitimacy under Section 112 must be dislodged by evidence of 'no access' before a DNA test can be ordered. (Paras 60, 86)

Result: Appeal allowed, High Court and Court of Appeal orders set aside. (Para 147)

Judgement Key Points

Key Points: - The judgment holds that legitimacy and paternity are distinct but interconnected concepts, and s 112 EA does not bar paternity inquiries but requires consideration of "no access" before ordering a DNA test. (!) (!) (!) - The court concludes that the right to know a child’s biological parents is not the paramount consideration; best interests/welfare of the child remains central in deciding whether to order DNA testing. (!) (!) (!) - There is no statutory power in Malaysia to compel DNA testing in civil proceedings; parens patriae powers are circumscribed and must be grounded in written law, with the welfare of the child as the primary consideration. (!) (!) (!)

Question 1?

Question 2?

Question 3?

JUDGMENT

Zabariah Mohd Yusof FCJ:

Introduction

[1] This is an appeal by the defendants against the decision of the Court of Appeal which affirmed the decision of the High Court. The High Court allowed the application by the plaintiff (who claims to be the biological father of a child), for an order, inter alia, to compel a DNA test to be done on a child to determine the paternity of the same.

[2] On 8 August 2023, the Federal Court granted leave to the defendants to appeal premised upon the following seven questions of law:

(1) Whether legitimacy and paternity are two (2) distinct concepts, taking into consideration the recent Federal Court decision in Leow Fook Keong (L) v. Pendaftar Besar Bagi Kelahiran Dan Kematian Malaysia, Jabatan Pendaftaran Negara, Malaysia & Anor, [2022] 1 CLJ 23 which compels information in birth certificates to be corrected or amended to reflect available evidence and facts.
(2) Whether s 112 of the Evidence Act 1950 , being an evidential construct, would apply to confer legitimacy on a child born during the subsistence of a lawful marriage even where there is scientific evidence available that the said child is the biological child of another male.
(3) What constitutes "no access" between parties to the marriage in s 112 of the Evidence Act 1950 ?
(4) Whether s 4(3) of the Evidence Act 1950 bars the Court from making an order for DNA testing for the purposes of rebutting the conclusive proof where s 112 of the applies and provides for the legitimacy of a child born during the subsistence of a valid marriage between the mother and her husband.
(5) Whether the Civil Court can compel a child to undergo DNA testing to determine paternity when the Court is without power to compel an adult to undergo DNA testing.
(6) What is the extent of the Court's role as parens patriae and whether the Court's power is circumscribed by:
6.1 statutory provisions; and/or
6.2 section 3(1) of the Civil Law Act 1956 and the proviso which states "Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary"?
(7) Whether the right of a child to know his/her biological parents shall be the paramount consideration and shall prevail over other welfare considerations in relation to the child, taking into account Malaysia's express reservations to art 7 of the United Nations Convention on the Rights of the Child (UNCRC) which states that every child "shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

The Salient Facts

[3] In this Judgment, parties will be referred to, as in the High Court. The subject matter of the appeal, ie the child would be anonymized as "C".

[4] The defendants are husband (D2) and wife (D1) and they were married on 3 March 2007. In the course of the marriage, D1 gave birth to C on 23 June 2008. D2 is registered as the father of C the birth certificate of C.

[5] Despite C being born during the subsistence of D2's marriage to D1, the plaintiff claims C to be his biological daughter conceived by D1 due to his sexual relationship with D1.

[6] Vide an Originating Summons (OS) filed at the High Court on 20 July 2015, the plaintiff sought an order for a deoxyribonucleic acid (DNA) test to be conducted on C to ascertain and prove his paternity. In the event he is the biological father, he seeks for a declaration of his status and that he be granted access and to maintain C. At the time when the OS was filed, C was 7 years old. At the time of this appeal, C is already 15½ years old.

[7] The plaintiff claims the following:

(i) He and his mother were informed of his paternity of C by D1 herself;
(ii) He had sexual relationships with D1 before and during

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