Access: Rights and Duties

Upon solemnisation of a marriage the husband and wife are mutually bound to co-operate with each other in caring and providing for the children. The question is whether children who invariably suffer when a marriage breaks down should be heard before a marriage is dissolved and whether children’s rights should be given weight when the State punishes parents by imprisoning them or sentencing them to death.

In this paper the rights and duties of parents, in particular to give and have access is discussed by reference to the rights of a child which is spelt out in the Women’s Charter (Cap 353) (‘Charter’) to the effect that the welfare of the children shall be paramount. The Charter does not make any reference to the rights of children in the United Nations Convention on the Rights of the Child 1990 (‘CRC’) which has been adopted by Singapore. The CRC is the main international document which defines children’s rights.

Rights and Duties

In B v B [1971] 3 AEC 682 Edmond Davies J said:

It is in the duty of parents, whatever their personal differences may be, to seek to inculcate in the child a proper attitude of respect to the other parent.

In M v M (child access) [1973] 2 AER 81 the parents adopted a boy. Mother could not give him full maternal care. She left the father and boy. Custody was given to the father with reasonable access to mother. However, the access did not run smoothly. The parents were hostile to one another and both were living in adultery. When the mother became pregnant the father refused to allow her to see the boy. Mother then applied for access to be defined while the father applied for it to be revoked. As there was some evidence that access had a distressing effect on the boy, access to the mother was revoked and the mother promptly appealed. Wrangham J said:

The companionship of a parent is of immerse value to the child. There is a basic right in him to such companionship. I for my part would prefer to call it a basic right in the child rather than a basic right in the parent.

He added that no court should deprive a child of access to either parent unless it is wholly satisfied that it is in the interests of the child that access should cease and that is a conclusion which a court should be extremely slow to arrive at.

Latey J in the same appeal said that reference to the basic right of a parent to access to a child does not mean that a parent should have access when it is contrary to the child’s interests.

The Women’s Charter

Upon the solemnisation of marriage under the Charter the husband and wife are mutually bound to co-operate with each other in caring and providing for the children. Both of them have equal rights in the running of the matrimonial household (s 46).

The duty of a court when deciding in whose custody a child should be placed is the welfare of the child as the paramount consideration. ‘Child’ is defined in the Charter to mean ‘any child of the husband and wife and includes any adopted child and any other child (whether or not a child of the husband or of the wife) who was a member of the family of the husband and wife at the time when they ceased to live together or at the time immediately preceding the institution of the proceedings.’ The definition is broad and parties to a purported marriage that is void are deemed to be husband and wife for purposes of ensuring that children of a void marriage are not left without parents (s 92).

Access

The court is empowered to make orders for access in s 126 of the Charter. The court may in the order granting custody:

•    provide for the child to be temporarily be in the care and control of some person other than the persons given custody, s 126(2)(b);

•   provide for the child to visit a parent deprived of custody, or any member of the family of a parent who is dead or has been deprived of custody, at such time and for such periods as the court considers reasonable, s 126(2)(c);

•   give a parent deprived of custody or any member of the family of a parent who is dead the right of access to the child at such times and with such frequency as the court may consider reasonable.

Access can therefore be generous where the court decides that it is in the best interests of a child. It gives generous access to the mother where custody of the child was given to the father. This does not mean that access will be granted in a case where there are circumstances making it undesirable that the child be entrusted to either parent or any other relative of the child (s 125)

The Welfare Principle

In deciding whether custody and access should be given or denied, the paramount consideration is the welfare of the child, and subject to the welfare of the child, the court has regard to the wishes of the parents. Where the parents disagree, parents’ rights are made subject to what the court decides is best in the interests of the welfare of the child.

The wishes of the child are subject to the decision of the court. The court decides on what is in the child’s best interest. The Charter, however, is not very helpful with what amounts to welfare. Section 123(3) simply states ‘welfare’ includes the custody and education of the child and financial provision for him and to have regard to advice of child welfare officers (s 130).

A distinction should be made between ascertaining the views of the child in cases that are contested and other cases.

Where there are divorce proceedings and custody and access are contested, the wishes of the child should be given due consideration against a checklist such as that in the English Children Act 1989 which requires the court in the exercise of its discretion to have regard to:

•   the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

•   his physical, emotional and educational needs;

•   the likely effect on him of any change in his circumstances;

•   his age, sex, background and any characteristics of his which the court considers relevant;

•   any harm which he has suffered or is at risk of suffering;

•   how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs;

•   the range of powers available to the court under this Act in the proceedings in question.

A court exercising its discretion would be obliged to consider the checklist seriatim and give reasons for its decision. Failure to do so would amount to an improper exercise of discretion. The interim access order that was made a final order and left untouched by the Court of Appeal is a good example of the care and thought that must go into disputed questions of custody and access.

Participation by the Child

Participation is one of the rights described in the CRC. Until very lately the wishes and voices of children were rarely heard. Parents, grandparents and relatives decided what was in their best interests, including the future spouses of their children.

The right to participate is a basic human right and children are entitled to it. The issues seen from their perspective are likely to be different from that expressed by their parents.

Participation by the children will enable them to better cope with adults and their peers in school, when they suddenly become the subject of whispered conversation over their parents’ matrimonial proceedings and the separated status of parents and children.

The levels of participation required under the Charter and the CRC are different. The levels of participation required under the CRC are greater and include cases where:

•    Children are given information. Adults make the decisions.

•    Children are asked their opinion; adults take this into account when making decisions.

•    Adults start projects and share decisions with children as distinct from child initiated projects to ascertain the wishes of the child.

•   Children are supported by adults to come up with ideas and set up projects so that their views and wishes could be ascertained on matters affecting them and their relationship with their parents.

The children’s age, sex, ethnicity, religion and family background must be considered. The ascertaining of the wishes of the children must not be limited to a short conversation between the judge and child. The writing of stories, drawing pictures, playing games and taking part in discussions are all different ways that can be used to ensure that there is participation. This is sometimes done by Child Welfare Officers but there is no reason why judges should not seek a broader participation when ascertaining the wishes of a child. If that is done parents are more likely to stop using access as a weapon eg:

•    withhold visits or threaten to make it difficult;

•    persuade the children to dislike or be suspicious of the other parent;

•    argue that the visits cause stress;

•    threaten abandonment of visits;

•    link payment of maintenance to access;

•    tell the child that if the other spouse can leave one parent for another, that he or she is likely to do the same to the child;

•    limit visits to walks in the park and dinner;

•    keeping visits as special occasions so that visits take on the complexion of being gifts and treats; and

•    access and payment of maintenance have no connection in principle and should not be used at the expense of the child as a condition for one or the other.

Where a petition for a decree of divorce is filed, the petitioner is required to file an agreed parenting plan or a proposed parenting plan under r 8 of the Matrimonial Proceedings Rules. The parties are only required to have regard to the welfare of the child.

The right of a child to live with parents and maintain contact with both parents should result in the wishes of the children being ascertained not only on the parenting plan but also when the court considers how the interests of any child or children of the marriage may be affected if the marriage is dissolved to satisfy itself it would not be wrong to dissolve the marriage under s 94(4).

This is an important consideration when the reports are to the effect that divorces are going up and marriage figures keep going down.

 
Rights of the Child

The constitutions of some countries include provisions for the rights of the child. The Constitution of Singapore in Art 16(3), however, provides that the religion of a person under the age of 18 years shall be decided by his parent or guardian. The Constitution does not spell out any rights of the child but has entrenched and enhanced the rights of citizens as fundamental rights.

There are, however, a number of international conventions which refer to the human rights of children. The most important is the CRC which defines children’s rights which has been adopted by Singapore.

The principles in the CRC that are usually stressed are the four main principles:

•    a child’s right to life, survival and development;

•    a child’s right to be treated equally ie no child should be discriminated against;

•    a child’s right to participate in activities and decisions which affect them;

•    all action should be based on the best interests of the child.

Parental Care and Non-Separation

Article 9 of the CRC spells out the right of a child to live with parents unless this is deemed incompatible with the child’s best interests. The state is further required to give information when separation results from state action. This must mean that where the state’s actions result in the children being separated from their parents, the children’s distress should not be aggravated by the children not being informed by the state as to what has happened to their parent or parents. This is an additional reason for the police to inform the family where arrests take place and to permit children to keep in contact with their parents, where it is reasonable to do so, by recognising children’s rights so that ‘access’ is given the broader meaning that goes with the word ‘contact’ as distinct from ‘access’ during custody. It is also an additional reason to have second thoughts on long prison sentences and emphasise and exercise the discretion given to judges when sentencing persons who have children. For a judge to say that the accused should have considered the effect of his crime on his children is to ignore the rights of a child when it should be considered. The wrong of the father should not result in punishing the child. It should be a mitigating factor so that separation is minimised where it can be done.

Article 18 on parental responsibilities requires the state to recognise the principle that both parents are responsible for the upbringing of their children and that parents or guardians have the primary responsibility. The state is further required to assist parents and guardians with this responsibility and ensure the provision of child care for eligible working parents, so that it is not argued that because a mother or father is working the access granted should 
be limited.

Every person under 18, unless national law grants majority at an earlier age, is defined as a child for purposes of the CRC. This is in sharp contrast to the definition of a child of the marriage in the Charter defined in sections 92 and 122 of the Charter to take in children below 21 years.

America and the CRC

Except for the US and Somalia, every country in the world has adopted the United Nations Convention on the Rights of a Child. The US and Somalia make strange bed-fellows but I suspect the reason for US not having adopted the CRC lies in Art 37.

Article 37 requires the state to protect children from torture or other cruel inhuman or degrading treatment, capital punishment or life imprisonment for offences committed by persons below the age of 18, and unlawful or arbitrary deprivation of liberty. Are our children protected from the punishment described in Art 37 when their fathers are sentenced to death, say for trafficking in drugs? What is our understanding of torture or other cruel inhuman or degrading treatment in Art 37, which has been adopted by Singapore and reflects Art 5 of the Universal Declaration of Human Rights which provides:

No one should be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

The US Supreme Court

In 1988 the US Supreme Court ruled that capital punishment for offenders under the age of 16 was unconstitutional. It has now abolished the death penalty for all offenders whose crimes were committed when they were older juveniles. The Supreme Court in 2002 prohibited the execution of mentally retarded offences as ‘cruel and unusual punishment’ banned under the 8th Amendment of the American Constitution which provides that excessive bail should not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Where there is excessive bail and excessive fines, separation will follow where the accused is unable to raise the money. When crime control becomes an obsession, rights of children also suffer.

The US Supreme Court referred to ‘evolving standards of decency’ as justification and said society today regards all juveniles under the age of 18 as ‘categorically less culpable than the average criminal.’ Singapore in this respect was well ahead of the US. We do not impose the capital punishment on juveniles under the age of 18 (s 213 Cap 68).

The US Court admitted that its reinterpretation of the Constitution was influenced at least in part by foreign laws and attitudes. [Justice A Kennedy wrote, ‘The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation [of the Court’s ruling]’ (Economist Vol 374 No 8416 page 35)].Notwithstanding America not having adopted the CRC, the Supreme Court it would appear had regard to international opinion expressed in Art 37 and acted on it for the benefit of children under 18 in capital cases.

The CRC provides for access and contact with parents. Article 9 of the CRC requires the state to provide information when parental separation takes place as a result of state action. The Supreme Court of India now requires the police to inform the family when persons are arrested. The orders made by the Indian Court are now popularly referred to as the 11 Commandments and are orders made by the court, not the legislature under powers vested in it by the Indian Constitution. It is one thing to interrogate the father and another to cause distress to children of the family by not providing information as to his whereabouts and not allowing the father to have contact with his children.

An international convention can have an effect on the operation of domestic law in various ways. It may affect the interpretation given to a national statute, such as the Women’s Charter, or other legislation affecting children like the Guardianship of Infants Act (Cap 122). It may affect the interpretation given to a statute or the Constitution as in America or it may affect the factors material to the exercise of statutory discretion. It calls for judicial creativity and reaction to the pain caused to children by parents caught up in their own affairs and not being mindful of their children’s interests.

Common Law of Singapore

Where the state has ratified a CRC which in Art 4 sets out the duty for the implementation of the rights in it by requiring the state to translate the rights of the CRC into actuality, the courts should endeavour to give effect to the rights of children when they construe provisions in the domestic law which echo the rights in the CRC if only to develop the common law of Singapore for the common good of our children.

In Nguyen Tuong Van v PP [2004] SGCA 47 a criminal case before the Court of Appeal Lai Kew Chai J said:

The common law of Singapore has to be developed by our judiciary for the common good … Any customary international law rules must be clearly and firmly established before its adoption by the courts. The judiciary has the responsibility and duty to consider and give effect to any rule necessarily concomitant with the civil and civilised society which every citizen of Singapore must endeavour to preserve and protect.

Singapore has ratified the CRC. It is customary international law because there is state practice and judicial opinion to back its use. When rules qualify as customary international law must be left to another day, but it is useful to note judicial opinion on the subject by an eminent judge.

International Human Rights Standards

In the ‘Centenary Essays for the High Court of Australia’ which is the highest Court of Appeal in Australia (page 368) Sir Gerard Brennan, a former Justice and Chief Justice of the High Court of Australia, in his essay on The High Court and Human Rights, asked the question:

Why should the High Court pay more attention to international human rights standards?

He then proceeded to answer it by saying:

The problems of international treaty norms have been well-documented: these are highly negotiated texts that often provide a minimalist account of a human right. However, they can be understood as a type of safety net for national legal systems and should not preclude the development of higher national standards. International human rights standards are imperfect in many ways, but they offer an account of the conditions necessary for a life of dignity and value that has broad global acceptance. They create ‘a protective sphere for vital interests, which people need to persuade them that they may accept vulnerability, run risks, undertake adventures in the world, and operate as citizens and as people.’

In an interdependent world, human rights law provides an almost universally recognised baseline. It connects Australia, at least in theory, with the rest of the world. Taking international human rights law seriously is consistent with a broader, global, understanding of democracy. The British political scientist, David Held, has written about the impact of globalisation on democracy and argued that in this new century, ‘democracy can only be fully sustained by ensuring the accountability of all related and interconnected power systems’ from the local to the national to the regional and global. In any event, international human rights norms are considerably more concrete a set of standards than concepts such as ‘Australian values’ or ‘community concerns’ that are regularly invoked by the High Court. Kristen Walker has indeed argued that it is easier to justify recourse to international customary law rather than international treaty obligations as being closer to an international common law of humanity.

While arguing for a more rigorous and less anxious approach to international human rights law by the High Court, I do not think that we should aspire to some sort of homogenous world-wide interpretation of international legal standards. I think it is important to bear in mind the Canadian academic Karen Knop’s argument that the domestic interpretation of international law is a process of translation. She writes ‘Just as we know that translation from one language to another requires more than literalness, we must recognise the creativity, and therefore the uncertainty, involved in domestic interpretation.’ In other words, the outcome of the translation of international law may not always be the same in different legal cultures: ‘translation owes fidelity to the other language and text but requires the assertion of ones own as well.’ I think that this is a useful text to guide the High Court in its work on human rights over its next century.

I am therefore of the view that our courts should approach questions over custody and access having regard to the rights of children not only spelt out in the Charter but also in the CRC that was developed in 1990.

KS Rajah, SC

Harry Elias Partnership