Key Updates In Citizenship & Family Law

• Published date: 15 December 2022
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation, General Immigration
• Law Firm: MahWengKwai & Associates
• Author: MahWengKwai & Associates

Cases concerning children born in Malaysia to a mother whose identity is unknown

Our team ended the year 2021 by successfully setting a landmark precedent in the Federal Court in the case of CCH & Anor v Pendaftar Besar Bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 ('CCH'). The Federal Court held in favour of the adoptive parents who were represented by our Mr Raymond Mah, Ms Jasmine Wong and Mr Eric Toh together with Dato' Cyrus Das as lead counsel.

In CCH, the Federal Court held that the child, who was born and abandoned in a hospital in Cheras, is a citizen of Malaysia by virtue of his abandonment. As a result of the abandonment, the child is also presumed to be born to a mother who was a permanent resident of Malaysia pursuant to Article 14(1)(b) read with Part III, Section 19B, Second Schedule of the Federal Constitution.

Following the precedent set by the Federal Court in CCH, the Ipoh High Court on 28.10.2022 granted an order in favour of the plaintiff in the case of MYY v Pendaftar Besar Bagi Kelahiran dan Kematian, Malaysia (2022), represented by our Ms Jasmine Wong and Ms Rachel Ng. In this case, the child, who was born in a medical centre in Kuala Lumpur, was handed over to the plaintiff by an acquaintance. The plaintiff subsequently adopted the child under the Adoption Act 1952. The plaintiff does not have knowledge of the child's biological mother. During the course of proceedings, the defendant government disputed the child's place of birth in Kuala Lumpur.

Even though the child's place of birth was disputed by the defendant, the High Court acknowledged the existence of the child and accepted that the identity of the child's biological mother is not known. The High Court further found that the government was unable to discharge the burden of proving that the child was not abandoned. Accordingly, the High Court held that it is bound by the decision in CCH and declared the child a Malaysian citizen.

Cases concerning children born overseas to Malaysian mothers

On 5.8.2022, the Court of Appeal in the 2 appeals which were heard together (reported as MSAM v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194) decided that children born overseas to Malaysian mothers (and fathers who are non-citizens) are not entitled to citizenship by operation of law.

The first appeal ('MSAM'), represented by our Mr Raymond Mah, Ms Jasmine Wong and Mr Eric Toh with Dato' Cyrus Das as lead counsel, concerns the appellant who was born in...