In an unusual fight for child custody, the High Court has made it clear that a mother does not have an inherent and inalienable right to her children.
Calling the tussle "rather exceptional and unfortunate", Judicial Commissioner Valerie Thean refused a mother's plea to have her two children live with her instead of continuing to live with their grandmother, uncle and aunt.
The judge said in judgment grounds issued on Tuesday: "The law mandates that a parent's - indeed, also a guardian's - responsibility is to look to the best interests of the children at the heart of the dispute."
She ruled that the specific facts of the case should determine who would have the best care and control of the children.
The girl and boy, who were born in 2007 and 2009 respectively, lived in their grandmother's house together with their parents.
Their parents, wedded in 2004, had a difficult marriage made worse when the father was stricken with cancer in June 2012. He died some five months later. His wife was also suffering from acute stress.
The couple's differences escalated into a household incident in October 2012 involving the children and grandmother.
The police were called - the mother was arrested and referred to the Institute of Mental Health for acute stress treatment but was not allowed to return to the family home by her brother-in-law. By then, her husband was dying.
She was discharged four days later to the care of her brother and a friend, and subsequently given a stern warning by the police. Her husband left a will appointing his brother and sister-in-law as the children's guardians.
A State Courts judge last year ordered the woman and guardians to share custody of the children but specified care and control to the guardians. The children had supervised access to their mother at the Centre for Family Harmony, among other things.
Her appeal to the High Court before the judge was dismissed in February and she applied again last month for permission to appeal to the apex court. This was dismissed on Tuesday.
Her lawyers P. Suppiah and K. Elangovan argued that she now worked as a schoolteacher of young children and could not be construed as unfit to take care of her own children.
But lawyers Kee Lay Lian and M. Vidhya for the respondents noted that professional assessments said the October 2012 incident had left "a permanent psychological scar" from which the children had yet to recover.
The judge found the grandmother and guardians had a loving relationship with the children. A switch of care and control at this stage would be traumatic as they needed a stable platform from which to start to repair their relationship with their mother.
The judge ordered that the mother be allowed assisted access to the children with a psychiatrist as facilitator. She also ordered the mother and the guardians to undergo counselling to rebuild their relationship.
This article was first published on May 07, 2015.
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