NEWS

Keynote Address by The Honourable The Chief Justice Chan Sek Keong

It gives me great pleasure to deliver the opening speech at this year's Children and the Law Conference jointly organised by LAWASIA¹ and the Law Society of Singapore. I am also pleased to welcome to Singapore our special speaker, Ms Mam, and all the distinguished speakers and participants who have come from abroad.

I would like to begin by stating why Singapore is an appropriate venue to discuss how we can all do our best for the children in each of the communities we come from. The first reason is that Singapore needs more babies to replace its population, and accordingly, we value every single baby who will one day become a child, and then an adult. The second reason is that Singapore is generally acknowledged by all who have lived here for a reasonable period of time to be one of the best homes for families to bring up children and to give them a good education. Singapore is in the fortunate position of being able to provide first-world facilities for the proper upbringing and education of children. We have one of the highest broadband penetration rates in the world, and many children are able to access and use the Internet from as young as five years old. These developments bring with them a different set of problems for parents and also for society, when parents do not know of, or are unable to control their children's Internet visits. In turn, we have to enact more and more effective laws to protect and shield them from harm from cyber predators. I will highlight one of these recent laws later.

History

It was not so many years ago that the principle of action for many parents was that children should be seen and
not heard. But today, the principle may have lapsed into one of inaction: let the children be seen and be heard. This is consistent with the ideals of the United Nations Convention on the Rights of the Child. Singapore acceded to the Convention only in October 1995, but long before that date, there was already in place adequate legislation and a legal framework that implemented substantially, all the measures a state is required to have under the Convention.

Singapore is a multi-racial, multi-religious and multi-cultural society, and has been since 1824 when it became a British possession and English law was received as the law of Singapore. Thus, the legal rights of children in Singapore were from the beginning determined by the English common law, except in so far as it was necessary to modify it to suit the customs and practices of the local inhabitants. This meant that the personal laws of the Malays, Chinese and Indians remained applicable to these communities except in so far as they were not inconsistent with English law. For the Malays, their personal law was the Syariah which was, and is, very enlightened in its approach to children. Under classical Syariah law, an infant acquired legal personality at the moment of birth and was born free of sin and pure of heart, deserving of love and protection. Non-discerning minors could enjoy the rights and obligations coming with their legal personality, and discerning minors were able to perform legal acts if they were advantageous to him or her. For the Chinese, their personal law was Chinese customary law, under which it would appear; the child had no rights at all. A Chinese anthropologist wrote:

…it may be said without exaggeration that China before 1949 was a country in which children came last.²

The care of parents was paramount as filial piety was the highest ideal in Confucian China. Parents were everything; children were nothing. As for the Indians, I am not able to enlighten you today, but in the 4th century CE, a Brahmin by the name of Kautilya (who was a contemporary of Aristotle) wrote a book on government called The Arthashastra³ in which he advocated the following rights for children:
1. Minors should not be tortured to elicit confessions from them.

2. The children of an Aryan (a freeman) who has mortgaged himself shall not be considered bonded.

3. A pregnant female slave shall not be sold or mortgaged without making provision for her welfare during her pregnancy, and procuring the abortion of a pregnant slave is a punishable offence.

4. When a slave gives birth to a child of the master, both the child and the mother shall be recognised as free.

5. The King shall maintain, at state expense, children, the old and the destitute. The village elders shall act as trustees of temple property and the inheritance of minors (till they come of age).

6. Every man has an obligation to maintain his wife and children, parents, minor brothers and dependants (married and unmarried sisters).

7. Women and children shall be employed in searching for special ingredients (such as herbs and spices) used in the industry.

8. Children shall receive half the quantities of rations (oil, rice and salt) of what an adult male gets.

Except for slavery, which was then an accepted institution in the society at that time, Kautilya's statements show how modern his thinking was about legal and social rights that should be accorded to children.

What about English law? The Age of Enlightenment in Europe did not appear to have brought much enlightenment to children. In 1765, Blackstone wrote that parents owe their children three duties: 'maintenance, protection and education⁴ But the common law was content to rely on the natural moral sense of parents to fulfil these three basic duties. Even up to the mid-18th century, children were rarely considered to be the proper subject of legal rights in and of themselves. Early English common law looked upon children as an extension of their fathers' proprietary rights, and the law was only interested in children as an aspect of property. They were agents for the evolution of property. Pollock & Maitland wrote:

The law had not even been careful to give the father a right to the custody of his children; on the other hand, it had given him a right of custody of his heir apparent, whose marriage he was free to sell. It had looked upon guardianship and paternal power merely as profitable rights, and had only sanctioned them when they could be made profitable.⁵

It was only in the late 18th and early 19th centuries that English law began to carve out a small, but significant, separation between the rights of the father and the rights of the child. During this period, the criminal law began to protect children against serious physical abuse by their parents.⁶ The Chancery courts also began to articulate the welfare principle' in guardianship matters, going so far as to declare in the case of Re McGrath that 'the dominant matter for the consideration of the Court is the welfare of the child.'⁷ These developments signalled the emergence of the child as an autonomous legal personality with his or her own legal rights and interests, separate from the rights and interests of the father.

Modern Law

Today, most modern legal systems recognise that children are human beings with rights that should be respected and protected. More than that, children are the objects of love and affection, and for whom some parents cannot do enough. The UN Convention is the embodiment of the new enlightened approach towards the protection of children's interests.

Singapore's Legal Infrastructure to Protect the Welfare of Children

Let me say a few words on Singapore's legal infrastructure in protecting and promoting the legal rights of children.
In the design and implementation of our laws and policies, we have always been guided by a single compass point: the best interests of our children - what we can do for them as children, and what we hope they can do for their families, parents and society when they become adults. I will not mention those rights which all human beings are entitled to, such as the right to life, liberty and property (which are constitutionally protected rights), the right not to be physically or emotionally harmed by others (which right is protected by criminal law statutes, such as the Penal Code), and all the other constitutional freedoms and rights given by law which children are free to enjoy provided they have the mental capacity to do so. But, I should also mention that children of a tender age in Singapore have legal disabilities and immunities from judicial punishment for acts and actions that would otherwise be criminal if committed by older children. For example, s 82 of the Penal Code states that nothing is an offence which is done by a child under seven years of age (although many children of that age today are knowing as well as knowledgeable, even if they lack mature understanding of what they know). And for children between the ages of seven and 12, s 83 of the Penal Code provides that nothing done by them is an offence if the child 'has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct on that occasion.'

In Singapore, children between the ages of seven and 12 who commit offences are normally dealt with under the Children and Young Persons Act, which is the centrepiece of our legislative framework for the rescue, care, protection and rehabilitation of children and young persons. This Act set up the Juvenile Court in 1949 to deal with such matters, especially juvenile crime. The Juvenile Court in turn gives life to the ideals of art 40 of the UN Convention, which provides that:

A child in conflict with the law has the right to treatment which promotes the child's sense of dignity and worth, takes the child's age into account and aims at his or her reintegration into society.

I will explain more about Singapore's approach to juvenile justice later. First, I would like to talk about the welfare Principle and the Family Court.

The Welfare Principle and the Family Court

The welfare principle has been enacted as part of Singapore law since 1935 when the Guardianship of Infants Act was enacted (the 'Act'). Section 3 of the Act provides that:

Where in any proceedings before any court the custody or upbringing of an infant … is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.

That standard echoes the common law's 'welfare principle', which is also a principle in Muslim law as applied
in the Syariah Court in Singapore. The principle is also enacted in other Singapore statutes, such as the Women's
Charter and the Adoption of Children Act. This approach echoes the 'whole child' principle which is enshrined in
the UN Convention. Our courts⁸ have adopted the welfare principle as stated in Rayden and Jackson on Divorce and Family Matters^:9

The welfare principle is universal in its application and applies to disputes not only between parents but between parents and strangers and between strangers and strangers … The word 'welfare' must be taken in its widest sense … [T]he welfare of the child is not to be measured by money only, nor by physical comfort only; the moral and religious welfare of the child must be considered as well as his physical well-being; nor can the ties of affection be disregarded …The question for the judge is not what the essential justice of the case requires but what the best interests of the child require.

The welfare principle is easy to state, but can be very difficult to apply in each case, as all family law lawyers and judges will tell you. Oliver Wendell Holmes said famously that 'General principles do not decide concrete cases,' and this is one of these principles. In the Singapore courts, we have divorces where the spouses are from different races, different religions and different cultural backgrounds. Inter-racial marriages are common, and spouses from the same ethnic groups but with different religious backgrounds are also common. Some of these are expatriate couples, where the spouses are from different countries. Some are expatriate-local couples. Each parent wants custody or care and control of the child. But care and control can only be given to one of them at any one time. In certain cases, it may mean sending the child out of Singapore even though she comfortable with the culture because this is where all her friends are. These are cases where the child's right to proper parenting is tested to the limit, and the court may be no wiser after the event whether it has made the right decision to grant care and control to one or the other. The child's right to her cultural and/or religious upbringing must be important to her. But, which parent's? This is a topic deserving of consideration and discussion in this Conference.

Let me now say something about the Family Court in Singapore. Our Family Court has broken away from the traditional adversarial trial to settle disputes concerning children as it is not conducive to achieving the best outcome for them. The Family Court prefers conciliation, counselling and mediation over adversarial litigation. We adopted this procedure from the Australian family courts, which are at the vanguard of producing innovative ideas in resolving family law disputes, especially in relation to the custody or post-divorce parenting of children. Our Family and Juvenile Justice Centre ('FJJC') is staffed with trained Family Counsellors that offer mediation and conciliation counselling to couples to help them resolve their custody and access disputes. For especially difficult cases, the Family Court provides for a joint conference process where the case is mediated before a multidisciplinary team comprising a Resolution Judge and a psychologist or counsellor from the FJJC. There are also plans to enrol Resolution Judges in advanced mediation courses in Australia to enable them to develop a unique expertise in Family Mediation modalities. The Family Court's alternative dispute resolution services have already achieved admirable results. For mediation in non-family violence cases for example, the Family Court mediated 1,701 cases from 2006-2008, with a success rate of 89 per cent (1,506 cases). For family violence cases, the number mediated between 2002 and 2008 was 1,126, with a success rate of 79 per cent (891 cases).¹⁰

Children are also given a voice and a right to participate in matters concerning their welfare. By law, children have the right to express their views in cases concerning their custody, care and control, and education, amongst others. For example, s 125(2) of the Women's Charter expressly provides that in deciding in whose custody a child should be placed, the court 'shall have regard … to the wishes of the child, where he or she is of an age to express an independent opinion.'

In May last year, a dedicated court process called CHILD, (CHildren's best Interests, Less aDversarial), was also implemented. The initiative came about because we noticed a growing number of children under the age of 18 being caught at the centre of their parents' bitter disputes. In 2008, a total of 6,328 applications for divorce were filed, out of which 57 per cent were couples with children below the age of 18.¹¹ The CHILD programme was established to ensure that 'the Court's obligation to treat the welfare of the child as the paramount consideration should not be diminished by treating custody and care and control issues as if they were no more than a contest between the parents.'¹²

The specialised Family CHILD Court is designed to pay particular attention to the needs of children in divorce cases. Proceedings in the Family CHILD Court are markedly different from normal court proceedings as the process is quasi-inquisitorial. The Judge takes charge of proceedings and plays an active part in reaching an outcome that gives effect to the best interests of the child. Parties are encouraged to focus on arriving at workable parenting arrangements, facilitated by a qualified Family Counsellor. Where it appears to the Judge that it is in the best interests of the child to be made a party to the proceedings, the Court may also appoint an amicus ad litem with the authority to take part in the proceedings on the child's behalf.

Child Protection Orders

Over the last decade, we have seen a significant increase in the number of Child Protection Orders being issued by the courts. From just 18 in 1996, the number reached 114 in 2007. ¹³ The children involved are aged below 16 and often in need of care and protection due to neglect or abuse at home. Our pivotal concern in such cases is to protect the child from harm. To enable the court system to deal with such cases more effectively, a specialised Children Care Court was established in May 2008. The Children Care Court provides dedicated processes to consider the needs of these vulnerable children, including placements and assessments by in-house counsellors and psychologists.

A set of National Standards for Protection of Children has also been developed to set the framework for the management of child protection in Singapore, guiding the police, the courts and other child protection professionals on their respective responsibilities.¹⁴ The National Standards have been supplemented by regular training programmes for stakeholders in the child protection system. In 2006, for example, the Ministry of Community, Youth and Sports collaborated with the Attorney-General's Chambers to conduct training on 'The Role of Child Protection Officers in the Singapore Legal System.' The training included topics such as procedural issues in applying for care and protection orders, the role of Child Protection Officers in supporting victims of sexual offences and legal aspects of sexual offences against children.

Protecting Children from Exploitation

In highlighting the evils of the sexual exploitation of children, I think no one has spoken with a more powerful voice than Ms Somaly Mam. Ms Mam will be chairing a special plenary session on her efforts at battling child trafficking and child prostitution in Cambodia. Her work highlights in graphic detail the horrors of child prostitution, which remains very much a global problem. Singapore has recognised the urgent need for a strong legislative response to safeguard innocent children from sexual exploitation both in Singapore and abroad. In addition to existing legislation punishing sexual abuse and the trafficking of women and girls for prostitution, the Penal Code was amended with effect from 1 February 2008 to make it an offence for a person to obtain for consideration sexual services from a minor under 18 years of age. The offence is punishable by a term of imprisonment of up to seven years and/or a fine. The first case came before the courts in August last year, when a Singaporean man who paid for sex with a 17-year-old prostitute from China was sentenced to 12 months' jail. The Chinese national who brought the minor into Singapore and aided the man to obtain sexual services from her was also sentenced to 12 months' imprisonment.

To combat child sex tourism, the new Penal Code also makes it an offence for:
1. A Singapore Citizen or Permanent Resident to obtain for consideration sexual activities overseas from a minor under 18 years; and

2. A person to make or organise child sex tours or print, publish or distribute information that is intended to promote commercial sex with minors under 18 years old outside Singapore.

The first offence is punishable by a fine or a term of imprisonment of up to seven years or both, while the second is punishable by a fine or a term of imprisonment of up to 10 years or both. We hope that these new provisions, coupled with active cross-border cooperation and enforcement action, will be effective in helping to eradicate child prostitution in the region.

In addition, anyone who has sex with teenagers under the age of 16 can now be jailed up to 10 years, or fined, or both. Those who have sex with anyone under the age of 14 face imprisonment up to 20 years and a fine or caning. Since these tougher penalties were introduced, two men have been jailed for ¹⁵ and 16 months respectively in separate cases involving sex with underaged girls.

We also recognise that sexual offences against minors can be committed not just by men, but also by women as well. In February last year, the Penal Code was amended to make sex between an adult woman and a boy below the age of 16 an offence as well. This year, a 32-yearold former school teacher became the first woman to be jailed for sex with an underaged boy when she was sentenced to 10 months' imprisonment for having sex with a 15-year-old student.

The harsh deterrent sentences that the Singapore courts have imposed on these sex offenders send a clear signal to the community that the sexual exploitation of minors - by men or women - will be severely dealt with. The Internet has also proven to be a fertile ground for sexual predators who take advantage of the natural curiosity and naivete of children to satisfy their own needs. We have introduced a new provision in the Penal Code to criminalise what we call 'sexual grooming.' Modelled on a similar provision in the UK Sexual Offences Act 2003, it is now an offence for an adult to meet or travel to meet a minor under the age of 16 in Singapore with the intention of committing a sexual offence, if the person had met or communicated with the minor on two or more previous occasions, either face-to- face or online. The provision tracks the modus operandi of this new breed of sexual predator, as such offenders usually work patiently to gain the trust and confidence of their young victims before striking.

We have also made further efforts to safeguard our children against economic exploitation. In 2004, the definition of a 'child' in the Employment Act was amended. A 'child' is now defined as a person who has not completed his 15th year of age (raised from the previous 14th year). A 'young person' is a person who has completed his 15th year of age but who has not completed his 16th year of age. The minimum age of employment of children was also raised from below the age of 12 years to 13 years. Although a child or young person aged 13 and above is allowed to work under the law, our legislation restricts the type of work and the maximum number of hours that they may be employed. Work that could jeopardise their health, safety or morals is strictly prohibited. To underscore our commitment to the eradication of exploitative child labour, Singapore has also ratified the International Labour
Organisation ('ILO') Minimum Age Convention 1973 and this was done on 7 November 2005.

Juvenile Justice

The Singapore authorities place a strong emphasis on restorative justice and rehabilitation in cases involving juvenile offenders. Instead of being formally charged in court, juveniles below the age of 16 who are assessed to be suitable for rehabilitation are placed on an intensive six-month counselling and rehabilitation programme called the Guidance Programme ('GP'). The GP has been extremely successful in diverting children from re-offending. For the batch of GP youth discharged in 2003, for example, only 8.7 per cent re-offended within three years upon successful completion of the programme.15

Two new offshoots of this programme have since been introduced: one is called GP-Plus which extends the programme to offenders between 16 and 19 years of age, while GP-ID is a pilot programme specially designed for intellectually disabled young offenders. GP-ID aims to reduce the risks of re-offending within this particularly vulnerable group of offenders by equipping them with positive life skills.

The court system has also embraced the spirit of restorative justice and rehabilitation for children who find themselves on the wrong side of the law. The Juvenile Court that I mentioned earlier deals with offenders under the age of 16. In making their decisions on the best outcome in a particular case, the Juvenile Court Magistrates are assisted by a Panel of Advisors comprising individuals from different disciplines with varying expertise in child welfare and development areas.

In June 2006, the new Community Court was established as a specialist court combining criminal justice and community resources for a comprehensive rehabilitative response in selected cases. Among others, the Community Court deals with youth offenders between 16 and 21 years of age. The Community Court judges are trained to adopt a problem-solving rather than a punitive approach, and have a wide array of sentencing options available to ensure that youthful offenders are rehabilitated in the community whenever possible. A set of National Standards for the Probation of Offenders and their Rehabilitation in the Community has also been published.¹⁶ The National Standards set out the framework and requirements of the probation system, providing greater certainty and clarity of roles for all stakeholders in the rehabilitation process, including judges, probation officers, the probationers themselves and their families.

Conclusion

Singapore has built a comprehensive and robust legal framework to advance the rights of children and to protect their welfare. But we are not content to rest on our laurels. We recognise that there is still much that we can learn from our counterparts from other jurisdictions who are equally dedicated to the cause of justice for children.

I have always stressed the importance of building strong international ties within the legal community. It is heartening to note that the same spirit of regional and international collaboration has informed the organisation of this year's Conference as well, with distinguished family court judges, lawyers and academics from so many countries in attendance.

This Conference gives us all the opportunity to be a part of something larger than ourselves, because protecting and advancing the interests of children is not just a national project - it is a global imperative. So, I would like to conclude by wishing this Conference a success so that it can inspire more of such gatherings and discussions among regional judges and family law practitioners.

Notes

1 Formed in 1966, LAWASIA is an international organisation of lawyers' associations, individual lawyers, judges, legal academics, and others, which focuses on the interests and concerns of the legal profession in the Asia Pacific region.

2 Francis L. K. Hsu, Americans and Chinese: Passage to Differences (1981).

3 Penguin Classics 1992 (trans. By L.N. Rangarajan).

4 Blackstone, Commentaries on the Laws of England (1765-1769).

5 F. Pollock and F. W. Maitland, The History of English Law (1968 edition) vol ii, p 444.

6 Evidence of this can be seen in the newspaper reports of trials of parents held between 1785 and 1860: see Linda Pollock, The Subversive Family: An Alternative History of Love and Marriage, pp 92-95.

7 In Re McGrath [1893] 1 Ch 143 (per Lindley LJ).

8 Soon Peck Wah v. Woon Che Chye [1998] 1 SLR 234 at [25].

9 16th Ed, at page 1004.

10 Statistics from CJ's Speech at the launch of the SMU-Centre for Dispute Resolution, 16 Apr 2009.

11 Figures from the Subordinate Courts as of 21 May 2009.

12 Keynote Address by CJ at the 17th Subordinate Courts Workplan 2008/2009 on 9 May 2008.

13 Ibid.

14 http://app.mcys.gov.sg/web/serv_resindv.asp.

15 Paragraph 5.12 of Singapore's 2nd and 3rd Periodic Reports to the United Nations Committee on the Rights of the Child (statistics from a study by MCYS).

16 http://app.mcys.gov.sg/web/serv_resindv.asp.