Children caught in the conflict: Unilateral conversions and custody conundrum in Malaysia

Abstract

This article examines the complex legal and social implications surrounding the unilateral conversion of minors to Islam in Malaysia, a multi-ethnic and multi-religious nation. It highlights the significant controversy arising from such conversions without the consent of one parent, which often leads to parental child abduction and deepens existing tensions within families and communities. Amidst the jurisdictional conflicts between Civil and Syariah Courts, particularly in light of the Federal Court's ruling in Indira Gandhi v Pengarah Jabatan Agama Islam Perak & Or, the article evaluates the potential for the best interest of the child principle, as articulated in Article 3 of the Convention on the Rights of the Child, to bridge legal discrepancies and protect children's welfare. Through a detailed analysis of domestic legislation and relevant case law, the article underscores the necessity for legal reforms, including aligning State Islamic laws with constitutional mandates and enhancing the enforcement of custody orders across jurisdictions. It also calls for increased collaboration amongst judicial, academic and civil stakeholders to ensure the protection of children caught in these disputes, advocating for a holistic approach that prioritizes their best interests in a pluralistic society.