XXXX v RASIDAH BINTI RATAG

Case Significance

Illustrates the application of natural justice to the setting aside of a child protection order and the requirement that the order's beneficiary and the welfare authorities be heard before it is disturbed.

This High Court decision at Kuala Lumpur concerns a criminal appeal in a domestic-violence matter, and it turns on a breach of the rule requiring both sides to be heard before an interim protection order affecting a child is set aside. An interim protection order had been issued under section 4 of the Domestic Violence Act 1994 in circumstances where, following incidents of abuse, one parent had been prevented from having access to the child, and the order was granted in favour of the other parent. The parent against whom the order had been made then applied to set it aside. The magistrate allowed that setting-aside application on an ex parte basis, because only the applying parent was before the court: neither the parent who was the beneficiary of the original order and had a direct interest in its continuance, nor the Social Welfare Department, which has a statutory duty to protect children, had been cited as parties or given an opportunity to be heard. The appeal, brought in the High Court's appellate jurisdiction under section 307 of the Criminal Procedure Code read with section 26 of the Courts of Judicature Act 1964, raised the procedural propriety of that ex parte order. The court held that setting aside the interim protection order without hearing the beneficiary parent and the Welfare Department breached the fundamental rule of audi alteram partem, the right of an affected party to be heard. It allowed the appeal, reinstated the interim protection order, and directed that a different magistrate rehear the application to set aside the order afresh, so that all interested parties could be heard. The court also noted a jurisdictional point on the further appealability of its own order, given the requirement of leave where a matter originates in the Magistrates' Court. The judgment is a useful illustration of the application of natural justice to the setting aside of a child protection order and of the requirement that the beneficiary of the order and the welfare authorities be heard before it is disturbed.