It is a socio-political debate after all; the old adage of a family divided is a nation divided.

And often in any family fragments are children, caught in a web of parental conflict, whose concerns are at odds with each parent's pursuit of individual happiness or infliction of maximum pain to the other; to the nation, it is a citizenry hindered.

We all know that children thrive on consistency and routine, and we do not need empirical research to confirm that children exhibit a deep longing to remain in a family - with loving and caring parents.

For the child, a divorce or unhappiness at home, amidst bickering parents, can signal the start of negative psychological development, impacting on their cognitive and social abilities and emotional functioning, all of which impact upon his education - in more ways than one.

So very often, we see children of broken homes in court as juveniles; 30% of juvenile offenders in Singapore last year come from broken homes; in USA, it is a whopping 70%.

Inevitably, the daily routine of quarrels between parents (sooner or not least, later) results in separation or divorce, leading to: the departure of one parent, quite often followed by new partners being introduced to a household; new siblings at times, in the form of step-children; a relocation of home and school; and in re-marriage of one or, at best, both parents.

The tail-end is so often seen - children can never emerge unscathed from separation and/or divorce, and the events thereafter.

True to intent and content, there has never been - or quite often seen - an occasion when children have been less worse off socially, economically, and more importantly psychologically, than after a divorce of their parents.

Increasingly, children from 'better' homes are whisked off by a parent, to see psychologists or psychiatrists, or their parents have chats with their principals/teachers and social workers and relatives/private tutors. Such professionals recognise that divorces are bound to cause harm to children, but this in itself may not bring forth satisfactory responses from parents; it certainly does not stop the parents from divorcing; indeed, very few couples stay together for the sake of their children.

Parents, as grown-ups, caught in their conflicts, are hardly ever conscious of their children's unhappiness. Their conflicts often appear more important, but the emotional conflicts, some researchers say, can harm their children that much more in the latter's future stability.

Parenting styles and standards differ; fairly often, there is a dilemma, meeting in a conflict, one parent (not the contact parent) running away from the problem, accusing the other of manipulation of the child.

Relationships being fragile, little things like a contact parent coming late to collect a child, can take on a huge significance.

It is easy for the contact parent to blame the residential parent for poisoning the child; it is often assumed that that residential parent who will try to influence the child, though it can also be the contact parent.

Torn between parents, the child grows into a world filled with bitterness and anger, at times or at worst succumbing to a depression. Quite often he breaks into crime - unless his 'guardian ad litem', his close relatives or the School, the neighbourhood, the State, educate the child on the evils of wrong.

These problems are age-old; nothing new. But what is to be done in this New Economy for our children who so very often seek solace and hope from their wilderness of despair?

It is indeed a welfare approach to minimise harm and to sustain it. Justice must also be about care.

The chain of justice argues an action and promises dispute-resolution - family conferencing - but the ethics of care must sustain a continuous dialogue with children, long after the dispute is adjudicated upon.

Post-living parenting is not a contract - but a process, and thus feasible guidelines, which are open to interpretation and negotiation with changing conditions, must be the order of the day.

Presently, (save for high-conflict cases) the law takes little notice and seeks not to police parenting practices as the legal mechanism invariably grinds to an absolute halt when the custody battles are over. The quality of the child's relationship between his parents is left between the now ex-spouses; the law does not enter into the settlement, and the lawyer closes his files; consequently, the relationship between child and parent is left somewhat unknown - a twilight zone!

As a Family Lawyer, one can accept the fact that there is hardly any modicum or vision of the ideal post-divorce relationship in reality. Quite often, in attempting to balance the needs of the child - or what is termed as 'paramount welfare of the child' - with the demands of a parent against another, the former is paid but lip service.

The New Economy will demand the importance of the preservation of our moral and traditional values and to integrate new contemporary values to develop our society as a cohesive nation.

Family cohesiveness are the building blocks of our society. Children have to be protected and nurtured, more so in a post-divorce family structure.

To this extent, the child from a separation or a divorce, post the divorce petition and its ancillaries, has to be constantly or periodically reviewed - by the Courts and/or the Family Lawyer.

It has been held that the common law has never treated parental rights as sovereign or beyond review or control. Nor has the law ever treated the child as other than a person with capacities and rights recognised by law.

Parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and the property of the child. The child, who is capable of forming his or her own needs, has the right to express those views freely in all matters affecting him or her, such views being given due weight in accordance with his/her age and maturity.

Singapore's ratification of the United Nations Convention on the Rights of the Child ('UNCROC') in 1995 was a step in the right direction. UNCROC is the first international treaty to recognise children's rights specifically, though the concept of children's rights was not new, the first being the Declaration of Rights of the Child (which was adopted by the League of Nations in 1924), and later the Geneva Declaration (adopted in 1959 by the United Nations).

Consonant with this commitment, our Family Court has put in place the Court-Appointed-Counsel ('CAC') Scheme in 1999, comprising mainly volunteer lawyers from the Law Society; they are doing a great job, serving as amicus to represent the best interests of the child.

Added to it are the Parenting Workshops run by FAMCARE (the Court Counselling Unit of the Family Court).

The latest pilot venture by FAMCARE adds another feather in the cap in its attempts at, inter alia, reducing the divorce rate - 4,100 just last year - by addressing issues at source. Aptly called Project HEART (Healing and Reconciliation Therapeutic Programme), it has among its laudable objectives the facilitation of reconciliation, renewal and restoration of marriages at risk.

If the couple is deemed suitable and worthy, they go through a screening process, their consent being vital. The Family Lawyer becomes a catalystic agent in the success of the Project in helping to identify such couples.

'Save a child in despair in a break-up' or 'save the marriage by all means' ought to be the rallying cry of Family Lawyers, not advocate a break-up unless the marriage is absolutely hopeless and doomed.

'Custody' and 'access' may be outmoded labels and appear negative in its connotation; so, too, the concept of 'the paramount welfare of the child'.

It must always be in the best interests of children to maintain a meaningful and positive relationship with both parents; that is a given. And that, too, ought to include grandparents or uncles/aunts or third-party visitation rights, especially when they have in the past functioned as de-facto parents.

Instead of mouthing it as a platitude, the same ought to be replaced with hopefully a rebuttable presumption of equal custody/placement for children: this ought to be the basis for a court's determination of custody - a presumption of equally-shared parenting when a family breaks up.

There must be an assumption (least of all a presumption) that the parents have the best interests of the children at heart and they would not use children as weapons; but quite often this is evident. Presumed equal time with the children will go a long way to build (what I term) the building blocks for a better society.

As Family Lawyers, we can - as a social obligation - well help to catch that falling star or a child caught up in the fray as we have, in the great majority of cases, both loving and involved parents; our applied route is to advise or remind all concerned of familial obligations in the interests of the child, the parents and, of course, the Singapore heartbeat and the global village - an obligation that must never be allowed to fade away. Try help 'Catch That Falling Star' of the fragmented family, caught in a chaos of love!

Palakrishnan, SC
President
The Law Society of Singapore

Your President Listens Members of the Law Society will continue to have the opportunity to meet Mr Palakrishnan, SC, President of the Law Society, at his fortnightly Saturday sessions at the Law Society's premises between 10.30am to 12noon. As the President will be out of town for the American Bar Conference, there will only be one session next month on 18 August 2001.