What happens to the children of divorced or separated parents who reside in different countries? Which parent gets custody of the children? Under which jurisdiction is the case heard? Are the court decisions of one country acknowledged by another? Is the welfare of the children seriously considered? Yap Teong Liang takes us through these issues with the aid of case law, and comments on the need for greater judicial co-operation between countries.
Phrases such as 'the paramount interest of the children', 'welfare of the children' and 'best interest of the children' are often heard and cited by practitioners and judges in courts when issues of custody, care and control of the children are being determined. Have you ever paused to wonder what these terms actually mean? Or how far-reaching a submission on behalf of one of the spouses in divorce proceedings or a decision can impact on the children and their parents?
This writer foresees that one of the developing areas in matrimonial law is one dealing with custody, care and control issues where the parents are non-Singaporeans, for example, expatriate husbands or wives who have come to Singapore to work, the family follows them and divorce proceedings take place. What happens to the children and how does one determine what are the best interests of the children? Some of the relevant factors will be:
Another example may be children who are born to parents who originate from different countries, that is, the wife may be Singaporean and the husband a foreigner or the husband a Singaporean and the wife a foreigner. There are other different permutations but essentially, the point is that in the near future, there may be an increase in the number of cases that come to court where the issue of the children following one parent to reside out of the jurisdiction may be a common feature. There may also be cases where the parties have a choice of commencing divorce proceedings in Singapore or in a foreign jurisdiction.
How do the courts determine what are the best interests of the children in such cases in terms of sole custody, care and control of and access to the children? What then is the concept of joint custody and how would it operate in reality, or is it a case of simply paying lip service to these terms?
In our changing society where the traditional norms are slowly being departed from and cross-cultural marriages increase, cross-border or cross-jurisdictional legal issues will arise with greater frequency in divorce proceedings, particularly where children are involved. Such issues may encompass recognition of a decree of divorce granted in a foreign jurisdiction, custody applications filed in different jurisdictions, recognition of custody orders granted in a foreign jurisdiction, stay of proceedings, enforcement of maintenance and the possibility of one of the parties taking the children out of the jurisdiction without the knowledge of the other. The words 'foreign jurisdiction' referred to here would include both Commonwealth and non-Commonwealth jurisdictions.
In the case of Igra v Igra [1951] P 404, Pearce J said:
it has long been accepted that the court of domicile is the proper tribunal to dissolve a marriage. Its decisions should, as far as reasonably possible, be acknowledged by other countries in the interests of comity. Different countries have different personal laws, different standards of justice and different practice. The interests of comity are not served if one country is too eager to criticise the standards of another country or too reluctant to recognise decrees that are valid by the law of the domicile.
In Singapore, section 93 of the Woman's Charter provides that the court shall have jurisdiction to entertain proceedings for, inter alia, divorce if either of the parties to the marriage is domiciled in Singapore at the commencement of the proceedings or is habitually resident in Singapore for a period of three years immediately preceding the commencement of proceedings. The test is not limited to one of domicile.
In the case of Ng Sui Wah Novina v Michael Setiawan Chandra [1992] 2 SLR 839, the learned Judicial Commissioner Lai Siu Chiu (as she then was) recognised a decree of divorce granted by the Indonesian courts and declined to hear the application for what was effectively an application for enforcement of arrears of maintenance for the child which should have been taken out in the Indonesian courts as the Indonesian courts had previously made the order for maintenance.
In Ho Ah Chye v Hsinchieh Hsu Irene [1994] 2 SLR 316, KS Rajah JC held
that there was no justification in that case for the Singapore courts to deny
recognition of a decree of divorce granted in the United States of America
notwithstanding that the ground for divorce, ie irreconcilable differences, is
not one of the facts that will establish an irretrievable breakdown of marriage
under the Woman's Charter.
In the case of Low Wing Hong Alvin v Kelso Sharon Leigh [2001] 1 SLR 173, the facts were that the husband, a Singaporean, married an Australian in Hong Kong. Both were working and living in Hong Kong for a period of time and had a son. The family eventually moved to Singapore. The cause of the breakdown in the marriage culminated during a trip to Brisbane, Australia, when the wife took out an application for and obtained a protection order against the husband. The husband eventually returned to Singapore but the wife remained in Brisbane together with the child. The wife commenced proceedings in Brisbane for custody, care and control of the child, and the husband started proceedings in Singapore for divorce and at the same time, applied for interim custody and for an order that the wife return the child to Singapore. In the meantime, the Brisbane court granted the wife an interim order that the child resides in Australia with access to the husband. There were also applications for a stay of proceedings.
The issue at the appeal was whether Singapore or Australia was the more suitable forum and whether the divorce proceedings in Singapore should be stayed in favour of the Australian proceedings. The learned Judicial Commissioner Lee Seiu Kin held that the divorce proceedings in Singapore ought to be stayed, as the Australian court was the more appropriate forum. The court gave considerable weight to the fact that the child was physically in Australia with the consent of both parents and had remained there as a result of physical violence exerted by the husband on the wife. Consideration was also given to the fact that when the husband left Australia to return to Singapore, he did not make a determined effort to bring the child back with him. The child was also entitled to both Singapore and Australian citizenship, and he was well settled in Brisbane. The court also took into account the order made by the Brisbane court. The Court of Appeal upheld the learned Judicial Commissioner's decision.
In another case of Sim Hong Boon v Sim Lois Joan [1973] 1 MLJ 1, the Court of Appeal exercised its jurisdiction to make an order for the return of the child to Singapore and found that the absence of the child did not prevent the court from making that order in special or exceptional circumstances. In this case, the husband was a Singaporean and the wife an Australian. The wife committed adultery, which caused the breakdown of the marriage. The husband permitted the wife to take their son to Australia for a holiday to facilitate a reconciliation. The wife and child did not return to Singapore and the wife took out an application in Australia for custody. The Australian court adjourned the case sine die to enable the husband to commence proceedings for the dissolution of the marriage in Singapore. The Court of Appeal considered the fact that the Australian court had declined to adjudicate on the issue of custody to be an important factor in exercising its jurisdiction notwithstanding that the child was not in Singapore.
There will always be difficult questions relating to: (a) the possibility of uprooting children from one jurisdiction to another; (b) matters relating to forum conveniens; and (c) enforcement of access rights or maintenance, in these types of cases. The common denominator across various jurisdictions will be the interests of the children and their rights have to be protected.
Singapore is not a signatory to the Hague Convention at this point in time and in view of what this writer feels will be the changing landscape in matrimonial law in Singapore, perhaps the time is right to explore greater co-operation between the Bar and judiciary across jurisdictions and whether Singapore should be a signatory to the Hague Convention.
Yap Teong Liang
Salem Ibrahim & Partners
' ... [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