Even in the most contentious of custody battles, a child’s best interests must be protected.
Deepa Subramaniam, 30, has not seen or spoken to her six-year-old son Mithran since April 9, the day her ex-husband took him from her house, two days after the High Court had awarded her custody of their two children.
She has done everything she could – going to the police, courts, non-government organisations, Welfare Department and the media – to get her son back or at least have contact with him, but to no avail.
Deepa’s case is a high-profile one – though by no means an isolated one – that has again raised questions over the controversial unilateral conversion of minors.
Deepa’s then-estranged husband of 10 years, N. Viran @ Izwan Abdullah, converted to Islam in 2012 and subsequently converted their two children Mithran and Sharmila, nine, without her consent or knowledge.
“After I learnt about his conversion, I decided to file for a divorce. I went to the Pusat Dakwah Paroi (where he did his conversion) to apply for the dissolution of our marriage. Coincidentally, as I was walking into the premises, I caught sight of my two children sitting in a room. They were in the process of being converted. I stormed in and protested but within minutes, it was done. They had already been converted,” recalls Deepa in a recent interview.
Deepa protested but says that Izwan only taunted her by telling her that as a non-Muslim, she could not bring up their now-Muslim children.
She turned to the legal system for recourse. Deepa filed for custody at the courts backed by an Interim Protection Order she already had against Izwan who had been abusive throughout their marriage. She has made 29 police reports against him and there are four investigation papers open on his alleged abuse.
On April 7 this year, Seremban High Court judge Datuk Zabariah Mohd Yusof granted Deepa custody of Sharmila and Mithran. The judge, after speaking privately to both children, acknowledged that the civil court had jurisdiction over the matter. He granted custody of the two children to Deepa and the dissolution of the couple’s marriage.
Deepa’s joy was short-lived.
Izwan, who had earlier obtained a Syariah Court order awarding him custody of his two children, chose to ignore the high court’s decision. He showed up at Deepa’s home in Seremban two days later and bundled his son off in a car that was driven by an accomplice, dragging Deepa (who wouldn’t let go of her son) down the gravel road outside her home.
She lodged a police report that was corroborated by eye witnesses and images of the incident taken by a neighbour. She later obtained a recovery order from the High Court on May 21 to compel the police to search for Izwan and Mithran.
However, because of the conflicting rulings of the civil and syariah courts, the police have chosen to stand down and not act until a legal resolution has been reached.
Lives on hold
It could take years for Deepa’s case to be resolved, judging by past practices.
The case of Indira Ghandi, another mother fighting for her children (who were also unilaterally converted to Islam by her ex-spouse) has dragged on for five years with no end in sight.
Despite a 2010 Ipoh High Court order awarding Indira custody of their three children, her ex-husband Ridzwan Abdullah has yet to hand over their youngest daughter, Prasana Diksa and is contesting the high-court’s decision.
Earlier cases – Shamala Sathiayaseelan’s case against the unilateral conversion of her two sons by her husband, Dr Jeyaganesh Mogarajah @ Dr Muhammad Ridwan Mogarajah in 2003 and Subashini Rajasingham’s case in 2007 – have yet to be settled.
In the meantime, the lives of Deepa’s two children remain in limbo – Mithran is with his father and Sharmila with Deepa.
Deepa has had to uproot her daughter from their home in Seremban to a “safe house” in an undisclosed location for fear that her ex-husband will come for Sharmila too.
She has had to quit her clerical job and borrow money from relatives and friends. Sharmila has had to pull out of school and leave her grandmother (who used to babysit her after school) and friends behind.
She misses her brother too.
“She asks me every day if her brother is OK. She wants to know when she can see him again. She is old enough to know that her father has taken her brother away, but she has no real idea why,” shares Deepa.
Deepa has tried to get Sharmila enrolled in new schools where they now reside but has only met with dead ends.
“No school wants to take her in as they are unsure which parent has custody. They don’t want to be responsible. They don’t know what to do if the father comes to take her away with his Syariah Court order,” says Deepa.
As a temporary solution, Deepa has hired a tutor to coach her daughter at home.
“I don’t want her to fall behind in her studies while all this is going on. I haven’t had peace of mind since Izwan took my son. I just want him back. The court has given me custody and I still don’t have my son. Where is justice in Malaysia?” she asks.
Deepa feels that her children should have the freedom to choose their own religion once they turn 18, but the unilateral conversion of her children is not her main concern. Her priority now is getting her son back.
“I don’t know how he is doing and I want him back. At such a young age ... they should be with their mother,” she says, fighting back tears.
Human rights activists argue that while the two conflicting rulings need to be sorted out, authorities should first ensure the well-being of Deepa’s children.
“What happens to their rights? How can an alleged batterer be given custody of his children? Deepa has made 29 police reports against him and there are four investigation papers open on him.
"She has an Interim Protection Order against him which he violated when he abducted Mithran. Why can’t the authorities charge him with this? How does this make him a suitable parent?” argues Ivy Josiah of the Woman’s Aid Organisation (WAO).
Deepa’s WAO case worker Sally Wangsa-wijaya adds that although a meeting between the AG’s chambers, welfare department and both Deepa and Izwan’s lawyers two months ago allowed for Deepa to have visitations with Mithran under the supervision of a welfare officer, this has yet to happen.
“Who is looking into the rights of the children? Their right to education? Their right to choose their own religion? Who looks into this while the authorities decide the legal complexities of the case?” questions Sally.
The toll on children
Custody battles are rarely simple and can be nasty. While mothers and fathers fight over custody issues, it is often the children who bear the brunt of the tumultuous situation.
Malaysian Association of Social Workers treasurer Amy Bala stresses that the welfare of children in custody battles are paramount.
“These are what we (social workers) consider critical cases. Most children who are involved in custody tussles will experience some kind of dilemma. They become so vulnerable ... whether they are young or teenagers, there will be some psycho-social impact on these children,” says Amy, who has more than 40 years’ experience as a social worker.
When custody cases go through litigation, younger children usually stay with the primary parent (in most cases, the mother) as they need stability and nurturing.
“Under our laws, there is a presumption that children aged seven and below are better off with their mothers. This shifts with the burden of proof. Usually, the party that makes a claim will have to prove that claim. With this presumption, fathers will have to prove that they can be better parents (to get custody),” says family law practitioner Honey Tan.
The aim is to put the young child’s development needs above the right of access of parents.
“The main principle to consider is the welfare of the child. That is paramount. Courts will always consider the best interest of the child or, when the child is older, the wishes of the child,” she says.
Sisters in Islam programme manager Suri Kempe feels that unilateral conversions automatically put children involved in a tight spot as they are made to feel like they have to choose one parent over the other.
“Obviously it is traumatic for children. Most parents don’t want their children to be affected by divorce. They’d try and protect them as much as possible. But with unilateral conversions, it immediately pits parents against each other and not in private, but in a public arena.
“Children are made to feel like they are the cause of this dispute ... the object of a tug of war and that’s just terrible.
“And, when the father starts spouting righteous religious rhetoric – that he is saving his children and doing this in the name of religion – it makes things worse.
“Imagine, the children will have to testify and decide who they want to live with. To begin with, what do they know of conversion at such a young age? It just puts children through so much trauma,” says Kempe.
In such cases, social workers have the authority to step in and check on the welfare of the child.
“If there is evidence – a phone call, a report and e-mail from someone alleging that a child’s welfare is not being looked after properly – any gazetted social worker has the authority to step in and check on the child, even without the permission of the parents. One problem is that social workers are not aware of cases where a child’s welfare is being compromised as many do not report such cases.
“In high profile cases like these, social workers ideally should just run a check on both children to see how they are coping, and if their emotional, mental, physical and spiritual needs are being fulfilled,” says Amy.
However, the situation on the ground is that the social welfare department is overburdened.
“This is the unfortunate truth. There are not enough social workers for the department to just check on children caught in a custody battle unless there is a report. It isn’t ideal, but it’s the real situation.
“In Australia, the accepted standard ratio of social worker to client is 1:35. In Malaysia, it’s at least 1:100 and can go up to 1:300. So sometimes, it is not that they don’t want to do anything ... they just can’t cope,” shares Amy.
Suri says the child’s welfare should be a priority right from the start.
“To prevent such trauma on children, religious authorities who carry out conversions must get the consent of both parents. In the first place, they should not be allowed to convert the children unilaterally. It is a gross miscarriage of justice.
“Call in the spouse, explain the implications of the conversion and get the consent of the non-converting spouse first. How difficult is that? I mean the buck really has to stop at this juncture,” she says.