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Monday, January 31, 2022

After Federal Court win, ‘overjoyed’ non-Muslim Selangor mother now hopes for reunion with four children absconded by Muslim convert father

 The Federal Court decision in the mother’s favour marked the end of her long legal journey since September 2019 to protect her five children’s rights to be able to choose their own religion when they become adults. — Picture by Miera Zulyana

The Federal Court decision in the mother’s favour marked the end of her long legal journey since September 2019 to protect her five children’s rights to be able to choose their own religion when they become adults. — Picture by Miera Zulyana



KUALA LUMPUR, Jan 31 — A non-Muslim mother in Selangor now hopes to be reunited with four of her children, after the Federal Court rejected the Selangor Islamic Religious Council’s (Mais) final bid to restore her ex-husband’s 2018 unilateral conversion to Islam of all her five children — while they were aged around nine to three.

The non-Muslim mother won again and again in the courts which quashed the ex-husband’s religious conversion of the five children without her consent and knowledge, but she has been separated from four of them as the ex-husband had absconded with them since at least June 2019.

In the interests of the children, Malay Mail is withholding the family’s names, with the mother identified only as W and the father identified only as L.

When contacted by Malay Mail, the mother’s lawyer Toh Lee Khim said her client was “overjoyed” with the Federal Court’s January 26 unanimous decision — which reaffirmed that both parents’ consent was needed for the five children’s conversion to Islam.

“She is overjoyed. One is the victory and second is that finally there is a closure for her,” the lawyer told Malay Mail.

The Federal Court decision in the mother’s favour marked the end of her long legal journey since September 2019 — through the High Court, Court of Appeal and the Federal Court — to protect her five children’s rights to be able to choose their own religion when they become adults, instead of having their religious status changed by just one parent without getting the other parent’s agreement.

The mother, W, had started the legal battle in September 2019 by suing five respondents — Mais, the Selangor registrar of Muslim converts, the Education Ministry director-general, the government of Malaysia and the father L — in her bid to quash the unilateral conversion of her five children to Islam and to cancel their registration as Muslim converts.

The High Court had in July 2020 quashed the five children’s conversion to Islam as it was done unilaterally by the father, while the Court of Appeal had in August 2021 unanimously agreed with the quashing of their conversion. The Federal Court on January 26 also refused to grant leave to appeal as applied for by Mais and the Selangor registrar of Muslim converts, which means Mais and the Selangor registrar of Muslim converts would now have to cancel the registration of the children as Muslim converts.

Toh said the father L never appeared or put in a reply for the unilateral conversion case at the courts. 

The father L was also not the one who had appealed against the court rulings in favour of the mother, and it was instead Mais and the Selangor registrar of Muslim converts which had appealed.

Following the decision by the Federal Court which is the highest court in Malaysia, Toh confirmed that the mother would next be writing to Mais and the Selangor registrar of Muslim converts to ensure that the previous registration of the five children as Muslim converts are removed from their records.

Was the journey worth it?

Asked what the Federal Court’s decision would mean for the five children, Toh said: “Honestly it probably has impact on the youngest as the four were absconded by the father.”

Toh said children such as the youngest child may not fully appreciate the importance of being able to choose their own religion when they turn 18, but noted the mother W had pursued the court case with the best interests of her children in mind.

“Maybe when they (are) very young, probably they don’t really feel it. But eventually when they grow up they will know one should enjoy the freedom of religion, instead of being unilaterally converted when the child was young and not being aware of what actually happened and transpired.

“So I think it’s something the youngest child would appreciate eventually when the child grows up,” she said of W’s youngest child.

“So sometimes people ask, is what my client doing worth it? Because she had to go through this whole course for two-and-a-half-years and expended legal fees and time on it. Is it all worthwhile? Does it really make a difference?”

“I think she would want to fight for what is best for her children so that in the future, the children won’t feel like they are stuck in a conundrum or mistake that was caused by the adults,” she said.

"And most importantly is because before this, they were non-Muslims," she added.

Lawyer Toh Lee Khim said the mother has lost contact with the four children since June 2019, adding that the father’s phone number is also unreachable. — AFP file pic
Lawyer Toh Lee Khim said the mother has lost contact with the four children since June 2019, adding that the father’s phone number is also unreachable. — AFP file pic

Where are the four other children?

Currently, only the youngest child is with the mother W, even though the courts had previously ordered for all five children to be under her custody and care.

Toh confirmed the mother was concerned about the four children’s wellbeing. 

“The concern is generally because she is pretty much kept in the dark and she doesn’t know where they are, how they are living, whether they are in good hands or not. No clue at all, that’s why she is worried,” Toh said.

Toh said the mother was already having difficulties accessing all five children in 2018.

Ever since the father disappeared with four of the children around June 2019, the mother has not seen, spoken or had any contact with the four children, Toh said. 

The father's phone number has also been unreachable since the disappearance or absconding, she said.

“She still endeavours to look for the other four but so far to no avail. She believes he has gone out of Malaysia with the four kids. However she is not giving up,” Toh said of her client.

W and L had as non-Muslims married in a civil marriage in 2009 and together, they had five children.  The marriage had later broken down and on May 16, 2018, the father L filed for divorce without the mother’s knowledge. —  Unsplash pic
W and L had as non-Muslims married in a civil marriage in 2009 and together, they had five children. The marriage had later broken down and on May 16, 2018, the father L filed for divorce without the mother’s knowledge. — Unsplash pic

How did it end up like this?

W and L had as non-Muslims married in a civil marriage in 2009 and together, they had five children.

The marriage had later broken down and on May 16, 2018, the father L filed for divorce without the mother’s knowledge.

On October 17, 2018, the father L obtained a decree nisi — through judgment in default due to the mother W not appearing — which meant the divorce would be made final three months later.

On November 1, 2018, the father himself converted to Islam, and had also had all five children — then aged in the range of nine to three years old on the day of conversion — converted to Islam on the same day without getting the mother’s knowledge and consent. 

Just before the divorce could formally happen, the mother found out about the divorce proceedings and on January 11, 2019 applied to set aside the October 2018 decree nisi from the divorce process initiated by the husband. 

Based on court documents, the mother on January 15, 2019 discovered that the father had on January 12, 2019 applied to the five children’s schools to stop their schooling from January 12 itself.

The mother had in court documents also claimed that the father was likely planning to bring the children to Indonesia with him, and that he had obtained visas to Indonesia for the children without the mother’s knowledge and consent. The father was also alleged to have applied for passports for all five children also without the mother’s knowledge and consent. 

“She was worried and concerned that there were signs of him leaving so that was when she asked us to get the injunction to prohibit him from leaving the country with five children,” Toh explained.

On January 29, 2019, the mother W succeeded in obtaining an injunction order from the High Court in Kuala Lumpur, which prohibited the father L from bringing all five children out of the country and prohibited him from bringing them out of school or their residing city or country without the mother’s knowledge and consent.

In that same January 2019 court order which had required the father to inform the mother about changes to the children’s whereabouts, the Immigration Department was also directed to enforce the order, while the father was also ordered to hand over the five children’s passports to the mother.

On February 6, 2020, the High Court in Kuala Lumpur found the father to be in contempt of court due to him not complying with the January 2019 court order and issued a warrant of committal — or an arrest warrant over the contempt — against the father.

The divorce process had meanwhile continued after the High Court on March 12, 2019 set aside the decree nisi obtained by the father, as the mother had on April 2, 2019 also filed a cross petition — or a counter claim — to seek for divorce.

On September 22, 2020, the High Court in Kuala Lumpur — as part of the divorce — granted sole custody, guardianship, care and control of the five children to the mother. The couple became formally divorced three months later in December 2020 when a second decree nisi was made final and absolute.

Toh confirmed that this High Court order giving sole custody of all five children to the mother remains valid, as the father had not appealed against the custody order.

Separately, Mais had in an August 13, 2019 letter written to the mother to confirm that it had checked and found that the five children had been registered as converted to Islam on November 1, 2018, and the mother had in a court affidavit said she did not know of the children’s conversion until she received the Mais letter.

The mother in September 2019 then launched her lawsuit at the High Court in Shah Alam to quash the unilateral conversion, which then led to the Federal Court’s decision earlier last week.

Lawyer Toh said divorced parents should avoid pitting their child against one another or changing the child’s religious status without asking the other parent for consent.  — File picture courtesy of Giulio_Fornasar / Shutterstock via AFP-Relaxnew
Lawyer Toh said divorced parents should avoid pitting their child against one another or changing the child’s religious status without asking the other parent for consent. — File picture courtesy of Giulio_Fornasar / Shutterstock via AFP-Relaxnew

Think of what’s best for children when a marriage breaks down

Asked about how parents should behave when their marriage has broken down, Toh said they should avoid pitting one parent against the other or changing the child’s religious status without seeking the other parent’s consent. 

Toh said decisions regarding the children should be made in their best interests and welfare, not as tactical moves or based on selfish reasons of the adults.

“So, things like unilateral conversion all this clearly is against the best interest of the children,” Toh said.

“I think legal separation or divorce itself shouldn’t necessarily mean the end of the family,” the family law practitioner said. 

“So, if parties are able to be rational and not be eaten up by emotions, there should really be discussions on how they should bring up the children together after the separation and to reduce whatever adverse impact (the divorce has on the children) as much as possible.”

“By them doing things like unilateral conversion or the most common thing we see is parental alienation, all these things won't do any good for the children and it would just further break the entire family,” she said. 

She explained parental alienation can occur when one parent restricts or blocks the access of the other parent to a child without any good reason once the marriage starts to break down, which then results in the child being alienated from the parent who has suddenly lost access despite not being a threat to the child previously. Parental alienation also occurs when a parent absconds with the children such as in W’s and L’s case.

Toh said in contrast, if the parents can discuss bringing up their children while focusing on the children’s best interests, the family unit may still survive despite the legal separation.

As for ways on how adults can reduce the impact of their separation or divorce on their children, Toh said the parents should not “brainwash” the children into thinking that the other parent is “bad” but should instead try to allow “quality time” for the other parent and the children if possible.

“They have to keep this separation as an issue between the adults, but as far as the children are concerned, they shouldn’t involve the children too much, like trying to get them to take sides,” she said. - malaymail

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