KUALA LUMPUR – The Federal Court’s recent landmark decision to dismiss a man’s application to compel a 16-year-old girl to undergo a DNA test to prove her paternity upholds the protection of a child’s rights and welfare, said lawyers.
Lawyer Mohamed Haniff Khatri Abdulla told Scoop that the decision underscores the court’s duty to safeguard children, particularly when legal applications have a direct impact on them.
“A child is always afforded greater protection by the court, especially if they are underage.
“The court’s role is not just to adjudicate one person’s request against another, but also to consider the broader implications, particularly on the welfare of a child.”
He said this case is exceptionally rare and will serve as a binding precedent for lower courts, unless Parliament decides otherwise.
“However, this ruling might not apply if the situation were reversed, with a child requesting an adult to take a DNA test. The court’s priority remains the protection of the child’s rights, favouring the child’s interests.”
He added that this case demonstrates the court’s responsibility to balance the interests of all parties when making legally justifiable decisions, in the absence of specific legislation.
“This decision will be binding in cases involving extramarital affairs, but only in the context of the parties involved, such as individuals admitting to such affairs in court. In other situations, it may serve as persuasive dicta but may not be binding, especially if a child is the applicant.”
Non-governmental organisation Voice of the Children chairperson Sharmila Sekaran, also a lawyer, told Scoop that the Federal Court’s precedent reflects Article 12 of the Convention on the Rights of the Child.
Article 12 ensures that children capable of forming their own views have the right to express those views freely in matters affecting them, with their views being given due weight according to their age and maturity.
“The moment a child can form an opinion, they have the right to express it, especially on matters directly affecting them. Adults must then consider these views and decide on their validity. This precedent is crucial as it upholds the child’s right to have an opinion on matters affecting their interests.”
Sharmila said the court’s decision made it so that no child’s interests should be compromised or exposed to risky situations.
“This ruling prevents any further cases that might disrupt a child’s wellbeing if they are unaware of such matters.”
On June 3, the Federal Court ruled that it cannot compel a child or an adult to consent to a DNA test to determine paternity.
The child in question was unaware of the application made by a man claiming to be her biological father. The court found it unreasonable to grant the right to know one’s biological parents without also granting the right to object to such a request. – July 8, 2024