' ... [A] child ... should grow up in a family environment in an atmosphere of happiness, love and understanding'. But that is not always the case in many countries. Jeeva Joethy takes a look at the various laws enacted in different countries, to cope with the rising number of child abuse cases. In this article, he explains clearly the definition of abuse and emotional or psychological injury, highlights the 'qualities' an ideal adult should have and brings to our attention the fine line between intervention and privacy, 'reasonable chastisement' and abuse.
Introduction
The United Nations (UN) Convention on Rights of the Child (1989), encapsulated in timeless language, the need for protection of the family 'as the fundamental group of society and the natural environment for growth and well-being of all its members, and particularly children'. It goes on to prescribe 'that the child ... should grow up in a family environment in an atmosphere of happiness, love and understanding'.
The Convention also requires acceding States (which number about 200) to protect children from abuse and:
such protective measures should ... include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have to care for the child, as well as other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment ... and as appropriate for judicial intervention.
In particular, article 19 requires State Parties to:
... take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse ... .
Sadly, the record of some countries, seem to honour these provisions more in their breach than in their observance. The battle of wits waged by Brazilian street children to survive against Brazilian police comes to mind.
Singapore children are much more fortunate. In the recent past there have been several welcome measures in the administration of family law. A Family Court has been established with mediation and counselling 'becoming integral parts of the family justice process'.
What is Abuse?
The Oxford Concise Dictionary defines 'abuse' as 'misuse, make bad use of; maltreat, speak insultingly or unkindly of'. For the purpose of this discussion and in the context of the recent Bill to amend the Children and Young Persons Act (Cap 38), the generic expression 'abuse' will be used to encompass physical or sexual abuse, pain, suffering or emotional injury.
Repeal and Re-enactment of Sections 3 and 4
The concept of 'abuse' is thrown into sharp focus in these new sections. The existing section 4 relates to cruelty to children and young persons. The amendment amplifies on these provisions. Physical or sexual abuse or any act which endangers the safety or causes the abandonment of or any unnecessary physical pain, suffering or injury to the child are self-evident examples of abuse.
Both sections make reference to 'emotional injury' which merits some consideration. This concept is somewhat nebulous. Psychological abuse or neglect may be said to be central to all aspects of child ill-treatment.
Emotional or Psychological Injury
Garbarino, Guttman and Seely in The Psychologically Battered Child (1986 Ed) considered psychological maltreatment a 'concerted attack on the child's development of self and social competence, a pattern of psychologically destructive behaviour', consisting of:
'Emotional Injury' in the Bill
Although the draftsman has shied away from defining emotional injury, a good idea of some of its ingredients is provided in section 3(g). The causative process is described thus:
Categories of emotional injury cases do not seem to close. For instance, this causative process in section 3(g) excludes say 'sibling rivalry' between step-children living under one roof with parents of limited means. One can imagine emotional injury to many parties. Do these children need care or protection?
Ill-treatment of Child or Young Person
Section 4(1) provides that if a person who having the custody, charge or care of a child ill-treats the child, he shall be guilty of an offence. The concept of ill-treatment is also amplified in section 4(2). If a person wilfully or unreasonably endangers the safety of or abandons the child causing any unnecessary pain, suffering, emotional injury to the child's health he is guilty of ill-treatment or abuse.
The parent is deemed to have neglected his or her child causing him physical or emotional injury if the parent wilfully fails to maintain and provide for the child. It would appear that the draftsman has incorporated 'wilfulness' to avoid the difficulties faced in Quek Ah Chian [1968] 1 MLJ 255 which imported 'culpability' to neglect.
These sections also 'flesh out' on what could amount to emotional injury. These appear to be more matters of the flesh than of the mind.
A minor excursus may be apposite at this stage. In England, 'emotional abuse is not a recognisable crime'. Under section 31(2) of the Children Act (1989) a court will not make a care order unless the child is likely to suffer 'significant harm' as a result of deficient parent care. This requirement adopted in the Bill appears to be not 'significant harm' but 'any' injury.
Some Blooming Rights
Can this mean any injury (excepting say de minimis and accidents, etc), caused by a parent to his child, will expose the parent to a criminal penalty?
We can envisage situations where precocious young persons, suffering 'any' (minor) injury, asserting their rights against their parents. Andrew Bainham poses a poignant question: if the bonds between parents and children are one of the few relationships to survive the fragile relationships between couples, do we really want to reshape them in terms of rights?
Enacting laws is one thing, getting the citizens' whole-hearted co-operation may be another. For example, although the United Kingdom has ratified the UN Convention on the Rights of the Child, Michael Freeman in Children's Rights: A Comparative Perspective (1996 Ed) has stated that English law permits parents and others to use 'reasonable chastisement'. The same goes with Singapore law. In Children, Rights, and the Law (1992 Ed), Margaret M Coady and CAJ Coady point out that while:
there are convincing arguments why the State should hesitate to intervene coercively in the family, there is no doubt that appeal to the sanctity and privacy of the family has been used as an excuse for non-intervention by law enforcement officers in cases such as assaults on spouses or children where there is clear justification for intervention.
In Children in Charge: The Child's Right to a Fair Hearing (1996 Ed), Jaqui Cousins discusses the work of Goldschmeid. According to the results of the study undertaken by Goldschmeid, 'quality' adults, for children, fit into three distinct groups, or the 'Children's Alternative 3 Rs':
Adults should be:
- related to children positively, loving towards them, able to talk to children truthfully and to find time to listen to children seriously;
- respectful enough to acknowledge that babies and young children are already people, can be trusted to make their own choices and of eventually expressing their own views; and
- responsible in the way that they care and provide for children and in the example they give in their own attitudes, choices and use of power.
One must acknowledge that Singapore is still a conservative, Asian (read traditional) society. Many people will no doubt find the conclusions of Goldschmeid risible. Some of them may point out that children need a different regime of rules from those of adults. Harsher critics may point out that some children suffer from Munchausen's syndrome and hence we must not be in a rush to take their views too seriously. But the ineluctable fact is that children are powerless and disadvantaged in a world dominated by adults. It must be recognised that although it is possible to enact laws, trying to alter entrenched cultures that lend credence to the view that children are second-class citizens, is a vastly more difficult matter. Inevitably there will be conflict, and the authorities must have the patience and stamina to ensure that its citizenry are adequately educated. If we hope to have a progressive society, antediluvian values must be put paid to, but we must not delude ourselves into thinking that there is a magic wand to be waved and society will then become enlightened.
Conclusion
Singapore has in many ways anticipated some of these problems. Our judicial system introduced a panoply of innovative measures, including mediation and counselling parties involved in acrimonious familial disputes. We have also Court Appointed Counsel to assist. The rapidly developing concept of emotional abuse will have to be viewed and managed in the context of the social and economic milieu of a multi-racial and multi-religious society.
Jeeva Joethy
Choo & Joethy