A CHILD under the Child Act 2001 means a person below the age of 18. This definition is in line with the United Nations Convention on the Right of the Child.
The Children and Young Persons (Employment) Act 1947 describes a child as one who is below the age of 14 years. These special provisions have been drawn up for children as they are very susceptible to, and can be affected emotionally by, their surroundings.
Stability in their upbringing during their tender years is vital for their wellbeing as well as the nation’s.
It is often seen that children from unstable homes end up becoming a menace to society. However, due to the fact that they are children, law-making bodies around the world have tried to cover every angle when it comes to protecting them while safeguarding the interest of society.
Generally, a child will be criminally accountable for the wrong he or she commits when he or she has attained the age of 12. Further, a child who is alleged to have committed an offence shall not be arrested, detained or tried except in accordance with the Child Act 2001. This includes trying the child in the Court For Children.
The Child Act 2001 deals with the care, protection and rehabilitation of children.
When it comes to determining the religion of a child, the parent or guardian determines the religion until the child attains the age of 18. In the event of a divorce, the principle of child welfare is the overriding consideration in determining who gets custody of the child. Welfare of the child is not limited to the material aspects only but includes also the moral wellbeing. It is the child’s general wellbeing that must be considered and not merely whether he or she would be happier in one place compared to another.
However, custody of a child of tender age is usually granted to the mother mainly because of her natural motherly instinct and capability of providing the child with love and affection. However, there are exceptions provided in the Guardianship of Infants Act 1961.
Where one spouse has embraced Islam, the issue as to who decides on the religion of the child has seen numerous court battles. It is inaccurate to dictate that when one of the parents embraces Islam, the religious status of the child must automatically be Islam. Common sense would dictate that the child’s religion would follow that of the custodian with whom he or she is living. This would have followed a decision of the court based on the best interest of the child.
If there is joint custody, the child should remain in the religion of both parents until he or she is 18 years of age, when he or she may then choose his/her own religion.
This means that both parents would have access to the child. As such, the child would be exposed to both religions and would then be given a right to choose his/her own religion when he/she turns 18.
Acceptance of religion must be made voluntarily without inducement, threat or promise – a right guaranteed in the Federal Consti-tution.
It is common that children will only have the ability to decide for themselves once they have reached a certain age that would allow them to appreciate religion.
ASHGAR ALI ALI MOHAMED
Ahmad Ibrahim Kulliyyah of Laws
International Islamic University Malaysia
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