PUTRAJAYA (July 3): The country’s apex court has set aside a High Court and Court of Appeal decision which had ruled that it was in the best interest of a child to undergo a DNA test to determine his or her paternity.

This means that it is not compulsory for a child to undergo a DNA test to determine his or her paternity.

In the unanimous decision, a five-man bench comprising judges Datuk Zabariah Mohd Yusof, Datuk Seri Hasnah Mohammed Hashim, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan and Datuk Abu Bakar Jais allowed a couple’s appeal to set aside the decision of the appellate court.

The married couple had gone up to the apex court to appeal against the Court of Appeal and High Court decisions.

The case originated from a male plaintiff who sued a married couple (wife and husband) who had a child in 2008. The plaintiff claims that he and the wife of the married couple were having an extramarital affair during that period and only stopped their affair in 2014.

During the trial at the High Court, it was determined that the mother of the child admitted to having sexual relations with the plaintiff during the conception period of the child.

The plaintiff claimed that the woman had told him that the child she had was his. The plaintiff also said that he had given the woman RM1,000 a month for the child.

In the broad grounds of judgment on Wednesday, the Federal Court bench surmised that the issue of “legitimacy” of a parent and “paternity” are distinct but not entirely separate, and that it was not sufficient for the plaintiff to say he had a sexual relationship or prove that he was the biological father via DNA test, as it would fracture the already established family unit the couple has.

“It is not sufficient for the plaintiff to say that he had a sexual relationship with the mother (of the child) on the balance of probabilities, or even show that he is the biological father of the child, as this would not only open the floodgates of litigation but also cause a fracture to the integrity of the family unit,” their judgment read.

“With that in mind, it is to be noted that the true objective of this appeal is whether a DNA test to ascertain paternity is to be ordered. Mere suspicion on the balance of probability that a child could be the issue of another man should not be sufficient reason to seek assistance from the courts to order a DNA test which might potentially breach that layer of legal protection,” they said.

As for the power of the courts in ordering DNA tests, the bench concluded that there is no specific written statutory provision or common law providing for power to the courts to order any person (adult or child) to undergo DNA tests in civil proceedings.

Therefore, they said that a court cannot compel a person to undergo a DNA test.

“The very act of making the child do the DNA test is in itself damaging, disrupting [the child's] status quo, and putting into question the only reality [the child] has known [….] – that the couple are [the child's] parents,”

"[The child] may be exposed to odium and humiliation if found to be born out of the mother’s extramarital affair and hence an illegitimate child,” the judgment read.

The Federal Court bench also held that the High Court had erred when it referred to Article 7 of the United Nations Convention on the Rights of the Child (UNCRC) which states that every child “shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality, and, as far as possible, the right to know and be cared for by his or her parents.”

The bench said that Article 7 has been reserved, hence it cannot be supported by the courts.

They said that the pertinent issue was the welfare and best interest of the child and that the "right to know" cannot be the paramount consideration for assessing that.

They also said that there must be consent from the child, who in this case is a teenager.

“We also note that consent from the child is part and parcel of respecting the welfare of the child, which is especially important for children who are at the stage of adolescence, as in our case. There is none in the present appeal,” the judgment read.

The said that the “right to know” rests with the child, and the child alone.

“The only way someone else can consent for [the child] is, if [the child] is incapable of comprehending the situation and a legally recognised guardian can competently consent on [the child's] behalf,” they said.

The judges said that the courts have to err on the side of caution when dealing with fragile family structures, and that the judiciary should not ignore the implications of its decisions.

“When dealing with fragile familial structure, the judiciary should not be a forerunner that sets social trends and ignores the pitfalls and legal implications of its decision in the absence of clear legislative provisions.

"It is wise for the court of law to err on the side of caution when dealing in such matters,” the judgment read.

The bench said that the negative impact of a DNA test on the child would outweigh everything else and that was the paramount consideration of the court.

“Our decision is very much premised on the factual matrix of the present appeal which do not warrant for this Court to compel the DNA test to be done, as the negative impact on the child outweighs everything else. It is definitely not in the best interest of the child for the Court to order for a DNA test,” it concluded.

In 2021, the High Court had ruled in favour of the man and ordered a DNA test be conducted on the teenager to establish the child's paternity, ruling that the court has the power to order such a test in the best interest of the child.

The Court of Appeal, in March last year, upheld the High Court’s decision, prompting the couple to bring the matter to the Federal Court.

The appellate court had also ordered the identities, details and information that may lead to the identification of the parties in the case not to be published.

In Wednesday’s court proceedings, lawyers Foo Yet Ngo and Kiran Dhaliwal represented the couple, and lawyer Teh Kit Hoo appeared for the man.