Case:

Brief Facts:

• CAS is a pilot.
  
  
• MPPL is an air stewardess who is married to another pilot (“B”).
  
  
• CAS and MPPL had an affair before MPPL married B and continued the affair after MPPL married B.
  
  
• MPPL had a child during her marriage with B (“Child C”).
  
  
• CAS claimed that when Child C was born, he had lived periodically with MPPL and Child C as a family and had paid for the maintenance of Child C.
  
  
• MPPL had subsequently ended her relationship with CAS and prevented CAS from seeing Child C.
  
  
• CAS filed this case for an order that DNA test be done to determine who is Child C’s biological father.
  
  
• And if the DNA test proves CAS as the biological father, then he has asked to be declared the biological father amongst other orders that he has sought.
  
  
• MPPL in turn opposed the order sought by CAS on the basis that since Child C was born to MPPL and B during the subsistence of a legal marriage, Child C is thus the legitimate child of MPPL and B.
  
  
• MPPL used the provision of S112 Evidence Act 1950 to support her argument. Essentially the section says that a child born during the continuance of a marriage between a child’s mother and any man, is conclusive proof that the child is the legitimate child of that man.
  
  
• The High Court dismissed CAS’ application and held that being born into MPPL and B’s marriage was conclusive proof that Child C was their legitimate child.
  
  
• The High Court also found that it would have adverse effects on the welfare of Child C to allow the DNA tests.
  
  
• CAS appealed to the Court of Appeal.

THE DECISION OF COURT OF APPEAL (COA) / CAS 1 – Appeal allowed

• This appeal is known as CAS 1.
  
  
• The COA held that paternity and legitimacy of a child are different concepts whereby paternity is to determine the biological parent of the child whereas legitimacy is a legal issue, but it does not prevent the use of a scientifically accurate and approved test if the situation requires it.
  
  
• The COA also determined that, when deciding whether to order a paternity test, the court must consider the best interest of the child which is the child’s right to know who their biological parents are, rather than just worrying that the child may become illegitimate in the eyes of the law.
  
  
• The COA sent the case back to the High Court to determine the issue of paternity which was disputed and not addressed.
  
  
• MPPL and B attempted to appeal to the Federal Court, but it was dismissed and the case was sent back to the High Court to determine Child C’s paternity.

THE DECISION OF HIGH COURT (HC)

• The HC held that a DNA test is necessary to resolve the paternity issue and it is in Child C’s best interest to determine her paternity.
  
  
• The HC allowed CAS’s application and ordered that Child C be brought to a hospital for the DNA test to be conducted on her.
  
  
• The HC further made an order that if the DNA test showed CAS as the biological father, then a declaration of his status as Child C’s biological father shall be issued.
  
  
• MPPL and B appealed to the Court of Appeal.

THE DECISION OF COURT OF APPEAL (COA) / CAS 2 – Appeal dismissed

• The COA agreed that CAS had an intimate relationship with MPPL before and during her marriage to B, had unprotected sex during Child C’s conception period, was told by MPPL that he was Child C’s father, and was involved in Child C’s life, providing financial support until MPPL closed her Maybank account.
  
  
• For these reasons, the COA held that the High Court had the power over Child C to make an order in the best interest of Child C which was to determine her paternity.
  
  
• The COA decided that Child C has a right to know her biological parents which is internationally recognised as a basic right of critical importance to a child.
  
  
• MPPL and B appealed to the Federal Court.

THE DECISION OF FEDERAL COURT (FC) – Appeal allowed

• The FC held that mere suspicion that a child could be another man’s issue is not sufficient reason to seek assistance from the Courts to order a DNA test which may potentially fracture the integrity of the family unit.
  
  
• Although paternity and legitimacy are different concepts, the FC found them not to be entirely separate.
  
  
• The FC decided that there was already a registered legitimate father for Child C which is B. And the issue of legitimacy could only be lifted where it can be shown MPPL and B had no access to each other.
  
  
• The FC decided that CAS was unable to invoke the High Court’s “protective jurisdiction” over Child C as Child C had nothing serious to be protected from.
  
  
• The FC determined that to bring Child C to the hospital for a DNA test to be done on her would be damaging and disrupting her status quo and it would impact her legitimate relationship with MPPL and B, whom she had known for the past 15 ½ years to be her parents.
  
  
• The “right to know” must be within Child C alone and her consent was required as part of respecting her welfare.
  
  
• To have the DNA test done on Child C and afterwards finding out that her father was not B would expose her to humiliation that she was born out of her mother’s extramarital affair and that she was an illegitimate child.
  
  
• The FC held that the judiciary should not ignore pitfalls and legal implications of its decisions just because the law was unclear.
  
  
• The FC premised its decision on the facts of the case which do not warrant a DNA test to be done as the negative impact on Child C may outweigh everything else and therefore, it was not in the best interest of Child C.
  
  
• The FC set aside the orders of the High Court and the Court of Appeal.