INTRODUCTION

- overcome inadequacies of the laws protecting children

- meet legal obligations under CRC
- Suharman b Mohamad Noor v PP [2020]

Definition ★ Section 2(a) - a child is defined as a person below 18

★ In line with Article 1 of CRC

PP v William Ayau
Muhammad Adib Sufyan v PP

Amendments ★ Strengthen the existing legal framework governing the protection,

care and treatment for children & improve the services delivery to
children
★ New concepts: family-based care, community services order for
adult & children
★ Improvements: higher penalties for offender, abolition of whipping,
establishment of Majlis Kebangsaan Bagi Kanak-Kanak (MKBKK),
appointment of Assistant Protectors, better protection for children in
conflict with laws

CRC 1989 ★ Article 4: outlines the members’ obligations in ensuring the

implementation of the rights for children in their countries
★ Implementations are being monitored by the Committee
★ Article 43: enumerates the composition of Committee
★ Article 44(1): outlines members’ obligations in sending reports to
Committee
★ Article 45: outlines the Committee’s roles - (d): make suggestions &
recommendations
★ Upholds these general principles:
- Article 2 (principles of non-discrimination)
- Article 3 (best interest of the child)
- Article 6 (right to life, survival, development)
- Article 12 (right to participate)

Judicial recognition in Msia

- Lai Meng v Toh Chew Lian
- Lee Lai Cheng v Lim Hooi Teik

Asean Legal ★ Highlights the protection of human rights, enshrined in other human
Framework rights treaties such as United Nations Charter (UNC), Universal
Declaration of Human Rights (UDHR)
★ Supports the general principles of CRC
★ Vision: affords human rights protection for the community
CHILD PROTECTION LAW IN MSIA

★ A child needs special assistance due to his physical, mental &

emotional immaturity - assistance must be given without
discrimination (Preamble of 2001 Act)
★ To ensure that every child is protected & is given the chance to
develop and survive (in line with Article 6)
★ Preamble above in line with Article 19: a child need to be
protected from becoming victims of violence, injury/abuse,
neglect/negligent, maltreatment, exploitation
★ See: General Comment No. 13

Categories ★ Section 17(a) to (k)

★ To protect children from becoming victims of violence, crucial to
provide a child with a conducive environment (Article 27 &
Article 34)

PP v Siti Bainun
- Definition: physically injured S17(2)(a), emotionally injured
S17(2)(b), sexually injured S17(2)(c)
- Article 19 explained in GC No. 13

Mandatory ★ Ensure that a child has access to protection & relevant

Reporting authorities, mandatory reporting is imposed on:
- S27(1) - medical officer
- S28 - family members
- S29 - child care provider
- S29A - social welfare officer, in line with PP v Siti Bainun

Roles & Section 2: definition of PR

Functions of Section 8A: definition of AP
Protector (PR) &
Assistant ★ Taking the child into temporary custody
Protector (AP) - S18(1): takes the child into temporary custody
- S18(2): notify the parent of the removal of the child
- S18(3): AP/police who takes the child into temporary
custody must (a) notify the PR & (b) bring the child to
the PR within 12 hours

★ Producing the child before CFC

- S19(1): PR brings the child before CFC within 24 hours
- S19(2): if it’s not possible to bring the child before CFC,
the child shall be brought before a Magistrate who may
direct that a child is placed in (a) a place of safety & (b)
care of fit person
 - PR may bring the child to see MO immediately

★ Present the child before MO

- S20(1): PR brings child before MO instead of CF if PR
thinks that the child is in need of immediate medical help
- S20(1A): AP/police can also bring the child before MO
(instead of PR) if they think the child need immediate
medical help
- S20(2A): AP/police shall notify PR when doing so

Roles & ★ S21: MO has the obligation to examine a child

Functions of a ★ S22: MO may authorize the child to be hospitalized if medical
Medical Officer treatment is needed
(MO) ★ S24(1): PR/police may authorize MO to treat the child if the child
is suffering minor injury
★ S24(2): PR/police need to (a) notify & (b) obtain consent from
parents if the child suffers from serious injury
★ S24(3): PR/police may authorize the child to get treatment if
parents (a) refused, (b) missing, (c) treated the child badly
★ S25(1): child shall be brought before CFC within 24 hours, when
(a) medical treatment completed & (b) discharged

Criminal Liability ★ S31(1)(a)(b): penalty for subjecting children to ill treatment,

for Causing neglect, abandonment & exposure of children
Injuries to
Children PR v Asmarahani bt Ghazali
F: the respondent being charged under Section 302 of the Penal Code
and an alternative charge under the Child Act 2001 for causing the
death of a child by inserting a green chilli into the child's mouth
H: COA substituted the original sentence with a 10-year imprisonment
term - found that the original sentence was insufficient given the
seriousness of the offence and the lack of appropriate consideration of
relevant factors by the HC judge

PP v Siti Bainun
F: the respondent was found guilty and sentenced for the offence under
Section 31(1) of the Child Act 2001, which addresses abuse, neglect,
or exposure likely to cause physical or emotional harm to a child
H: the judge highlighted the importance of imposing an appropriate
sentence to serve justice, considering the impact on the deceased
child's mother

★ S32(1)(a)(b)(c): penalty for subjecting children to illegal activities

in streets, places & premises
 ★ S33(1): penalty for leaving children without reasonable
supervision

CHILDREN AND THE JUVENILE JUSTICE SYSTEM IN MALAYSIA

Age of Criminal ★ S2: below 18 years old BUT can be criminally responsible if 10
Responsibility years above, refer to S82 PC
★ In line with Article 1 of CRC

PP v William Ayau
F: the accused was charged with raping his 13-year-old niece in a
particularly violent manner, causing serious injuries under Section 376
of Penal Code. He was only charged on 31 December 2001 after being
released from detention for other offences.
H: despite pleading guilty in the sessions court, he was sentenced to five
years' imprisonment, taking into account his clean record upon release
from detention.

PP v Pesalah Kanak-Kanak
F: two children were bullying a six years old child almost everyday which
led to the child’s death. The two children were charged under Section
304 of the Penal Code as the two offenders did not have any intention
to kill him but their bullying caused the death
H: they were sent to the Henry Gurney school for three years

Laws Governing ★ S3 CPC: CPC will govern all matters in relation to criminal
Criminal proceedings under PC & other laws in Msia subject to any other
Proceedings for specific laws for the time being in force
Juveniles ★ Ex: S15 CPC: outlines manner of arrest, CA make specific
reference to laws governing the arrest of child offender

PP v Ayar & Others [2010] 9 CLJ 1006

F: the investigating officer has failed to state in his application what he
has been doing in investigation of the alleged offence during three days
of remand earlier granted by ADO
H: dismissed the application

PP v N (a child) [2004] 2 MLJ 301

F: whether the detention of a child for the purpose of investigation is
under CA2001 or S117 CPC
H: ruled that S83(1); arrest & detention of a child must be under CA and
not CPC
Pre-Trial ★ S15 CPC: manner of how arrest should take place
★ S83: child offender can’t be arrested/detained/tried except in
accordance with provisions in CA
★ S83(A): how a child must be treated during arrest
- a child can’t be handcuffed (unless there is a reason to),
police officers shall inform the parents & probation officer
when arrested

CA seeks to protect children during pre-trial & all stages in criminal

proceedings
★ S85(a): ensuring that child offender are separated from adult
offender anywhere
★ S85(b): ensuring that female children are handled by female
officers
★ S85(c): protects the children’s privacy, taking pictures of children
are prohibited - S15: right of privacy

Roles & ★ S11(1)(a)(b): functions of CFC

Functions of CFC ★ S88: parents are obligated to attend all court proceedings unless
- Trials they are required not to
★ S90: how the proceedings are being conducted in CFC
★ S90(1): the court shall explain to the child with simple language
so the child would understand
★ S90(2): rights of the child offender to be represented by legal
representative
★ S90(12): CFC can request for probation report (prepared by PO)
before making any decision at the end of the trial

Roles & ★ S10: appointment of PO

Functions of ★ PO takes care of child offender’s welfare at every stage of
Probation Officer criminal proceedings
(PO) ★ S90(13): PO is obligated to prepare the probation report, 30 days
from the date CFC requested
★ S90(13)(a)(b): the particulars needed in the report for CFC’s
consideration

Roles & ★ S91: vested the powers in CFC to impose sentences on child
Functions of CFC offender if an offence is proven
- Post-Trials ★ S91(da): community service order for child offender
★ S91(g): canning of child offender repealed, in line with Article 37
CRC
★ S91(f): gives CFC the power to send child offender to Henry
Gurney depends on the seriousness of the offence
★ See: PP v Pesalah Kanak-Kanak [2023]
Roles & ★ S11(2): appointments of CA
Functions of ★ S11(4): functions of CA
Court Advisers ★ S90(17): CFC will seek opinion from CA before making decisions
(CA) ★ S90(18): CA’s opinions aren’t binding with CFC

Protection of ★ Article 37: no child is subjected to torture, cruel, inhuman or

Child Offenders degrading treatment
in CRC ★ Article 40: basic guarantees that must be afforded to a child at
every stage of criminal proceedings

CHILDREN AND THE CIVIL JUSTICE SYSTEM IN MALAYSIA

Children & ★ Section 2 of the LRA1976:

Family Laws - “child of the marriage” - child of both parties to marriage in
question or a child of one party to marriage accepted as one of
the family by other party; child - illegitimate/adopted by either
parties to the marriage in pursuance of an adoption order
made under any law related to adoption
- “minor” - under 21 years old, not a widow/widower

Age of Marriage
★ S10: 18 years old above - female: 16 years old is allowed when
approved by CM
Consent of Parents
★ S12: below 21 years old, not married must get written consent -
illegitimate, consent from mother

Maintenance ★ S92: duty of a parent to maintain children whether they’re in his/her

custody or another person
★ S93: power of court to order maintenance for children:
- if he refused to provide for child
- if he deserted his wife, child is in her hand
- during pendency of matrimonial proceeding (divorce)
- placing the child in other person’s custody
★ S93(2): court have the power to order a woman to pay for
maintenance of her child where it is satisfied that having regard to her
means it’s reasonable to order

Leow Kooi Wah v Ng Kok Seng Philip & Anor [1995] 1 MLJ 582
F: Both parents are earning, have liability to maintain their children each
according to his/her means

Wong Kim Fong v Teau Ah Kau [1998] 1 MLJ 359

 F: P & D married - birthed a boy, divorced few years later - requested custody
of their child, rights of access to D + maintenance of RM1200 to the child
H: court considered the parents contribution & circumstances - D agreed to
pay RM800 for maintenance, remaining from mother

★ S95: duration of maintenance until the child reaches 18 years old, has
physical/mental disability, pursue higher education until they’re not
able to do so (ceasing such disability)
★ Pre-amendment… there is no legal basis that interprets the word
“disability” = financial disability (Karunairajah a/l Rasiah v
Pnithambigai a/p Ponniah) + distinguish with Ching Seng Woah
★ Recent amendment have extended the duration when a child is
pursuing education (Shasikala a/p Rajandra v Yogeswaran a/l Bala
Krishnan)

Shasikala a/p Rajandra v Yogeswaran a/l Bala Krishnan [2021] MLJU 384
H: court take into account the standard of living in pursuant to S92, the
increased cost of living & until child completed education

Custodial & ★ Law related to child custody after divorce stated in GIA1961 & Part VII
Visitation LRA
★ Prioritises both child & parents rights, interest, welfare
★ If there is conflict between child & parents, courts focus more on the
child

Guardianship of Infants Act 1961 (GIA) & LRA

★ Guardian: one who has powers over child’s upbringing, care, discipline
& religion
★ Custody: state of having certain rights over a child, including care &
control
- A parent may be granted custody while the other parent may
be granted care & control
- Parents may be granted joint custody where both parents have
a say in child’s upbringing BUT the child will live with either
★ Access: right of a parent to visit their child who is in control of the other
parent - the child is still communication with the parent they’re not
living together with
- When one parent has physical custody, the other has the right
of access
★ S3GIA: shall have custody, be responsible to provide support &
safeguard health & education of child
★ S4GIA: shall have control & management of child’s property, do all
acts which are reasonable & proper for the protection of child’s
 property
★ S5GIA: both parents shall have equal parental rights in upbringing &
control & management of child’s property
★ S88(1)LRA: court is vested with powers to place the child in custody
of parents/relatives

Issue: factors that court consider in making custodial & visitation order
★ S88(2)LRA: the consideration (a) parents wishes & (b) children wishes
(age that can make independent opinion)
★ S11GIA: in deciding custody, court have regard primarily to the welfare
of infant & shall consider the parents wishes
★ S88(3)LRA: court apply rebuttable presumption that child below 7 will
be under mother’s custody (Thanaletchimy a/p Batamallai v Vijaya
Kumar a/l Kassinathan & CCKY v CCT)
★ S96 & S97: in determining the issue of variation of court’s order in
child custody after divorce encourages the court to award them if there
is material alterations in circumstances & reasonable & for welfare
(Yeoh Ken Lee v Liew Chooi Hong)

CHILDREN IN CONTRACTS - CONTRACTS ACT 1950

Child’s rights to ★ Section 10: parties competent to contract

enter into a ★ Section 11: attained age of majority, sound mind, not
contract disqualified by law from contracting

Nature of minor’s ★ Minor: 18 y/o & below - Section 2 of Age of Majority Act 1971
contract ★ Effect of a minor's contract: void ab initio
★ Case: Mohori Bibee & Tan Hee Juan

Tan Hee Juan v Teh Boon Keat [1934] MLJ 96

F: P (minor) executed a transfer of land in favor of D - witnessed &
registered - later, P’s representatives applied to the court for an order
setting aside the transfer
H: transactions were void & ordered to restoration of the land to minor &
have the advantage of not returning the money received

Exceptions 1. Contract for necessaries

★ Section 69
★ Necessaries: basic necessities suited to minors condition
in life (food, clothing, lodging, education)

Nash v Inman [1908] 2 KB 1

Government of Msia v Gurcharan Singh & Others [1971]
F: govt sued first D as promisor & second, third D as sureties for breach
of agreement in writing entered into by them w P for providing a course
of training at an institution - claim was $11,500 alleged to be actually
spent by the govt for educating the first D - during the time contract was
entered, D was an infant & defence was essentially that the contract
entered into by the first D was void & consequently second, third D not
liable
H: pleaded that first D had served the govt for three years out of
contractual period of five years - claim for money was excessive &
unreasonable compensation - statement of claim amended to include an
alternative claim for repayment of sum as having been expended on
infant for necessaries

2. Scholarship Agreements
★ Section 4(a)
★ Section 2: scholarship agreement & persons in authority

3. Contract of Service/Employment or Apprenticeship

★ Refer Children & Young Persons (Employment) Act
1966

4. Contract of Marriage - LRA1976

★ Section 10: must be 18 to get married
★ Section 21(2): exception - below 18, reached 16
(female) must get license from CM
★ Section 21 -