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FEATURE |
Child’s Voice in Court
Proceedings: An Effective Voice or a Silent Voice?
It’s quite clear in a divorce proceeding what the parties involved want, but what of the child’s/children’s wishes what do they want and who will take heed? This article explains how the children’s wishes may be considered and whether welfare reports should be disclosed to the parties and their counsel.
Divorce proceedings can, by its very nature, be potentially long drawn, emotionally charged, traumatic and acrimonious. The parties have their voice in court proceedings, either through legal representation or self representation. Their allegations and counter allegations are put forward in affidavits and submissions through their counsel. However, in cases where children are involved in the dispute between the parents, do they have a voice in the court proceedings and if they do, can their voices be heard?
This article examines the various ways in which the voice of the child or wishes of the child can be taken into account in the court’s determination of issues relating to the custody, care and control and access of children. In particular, I wish to focus on the current practice of dealing with welfare reports and why, in my personal view, the current practice is unsatisfactory. I will venture to suggest how the current practice can be improved in the interest of the welfare of the child and in the interest of justice.
The Legal Position
In s 125(2) of the Women’s Charter (Cap 353), it is expressly provided that:
In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and subject to this, the court shall have regard – (a) to the wishes of the parents of the child; and (b) to the wishes of the child, where he or she is of an age to express an independent opinion. (Emphasis added)..
Section 3 of the Guardianship of Infants Act (Cap 122) states:
Section 11 of the Guardianship of Infants Act (Cap 122) provides that:Where in any proceedings before any court the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and save in so far as such welfare otherwise requires the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father. (Emphasis added).
The court or a judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant, and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.
In the case of Tan Siew Kee v Chua Ah Boey [1987] SLR 549, Chan Sek Keong J (as he then was) defined the welfare principle as follows:
The expression ‘welfare’ is to be taken in its widest sense. It means the general well being of the child and all aspects of his upbringing, religious, moral as well as physical. His happiness, comfort and security also go to make up his well-being. A loving parent with a stable home is conducive to the attainment of such well-being. It is not to be measured in monetary terms.
Rayden and Jackson on Divorce and Family Matters (16th Ed) also provides an insight on the welfare principle:
The word ‘welfare’ must be taken in its widest sense. It has been said that the 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 rights and wishes of parents must be assessed and weighed in their bearing on the welfare of the child in conjunction with all other factors relative to that issue. The question for the judge is not what the essential justice of the case requires but what the best interests of the child require.
Section 130 of the Women’s Charter expressly provides that:
When considering any question relating to the custody of any child, the court shall, whenever it is practicable, take the advice of some person, whether or not a public officer, who is trained or experienced in child welfare but shall not be bound to follow such advice. (Emphasis added).
The Court has the power, when considering what is the welfare and interest of the child, to rely on welfare reports. Such reports will assist in setting out the wishes of the child (after the child has been interviewed by the welfare officer). The Court can, in exercising its powers to have regard to the wishes of the child, interview the child as an alternative to, or in addition to obtaining a welfare report. (Ng Wai Leng (mw) v Lee Yew Khiang (“L (mw) v J”) [1998] SGHC 404).
The parties can themselves obtain a report, usually by a private child psychiatrist/psychologist or a child psychiatrist/psychologist working with the Child Guidance Clinic of the Institute of Mental Health. However, the court in the case of L (mw) v J [1999] SGHC 258 expressed its disapproval of the use of psychiatric assessment of children involved in custody disputes unless directed by the Court. This was a case in which the wife had produced reports from two psychiatrists to support her application to deny the husband access to the two children. The husband contended that the reports were biased and suggested that the children be examined further by another psychiatrist of his choice.
On 30 April 2005, a new r 41 of the Women’s Charter (Matrimonial Proceedings) Rules 2005 was introduced to require parties to apply for the leave of Court if they wish to have the child examined by an expert. Rule 41 provides:
Examination of Children
| 41 | (1) After proceedings have been commenced under Part X of the Act, a party shall not, without the leave of the court, cause a child to be examined or assessed by any psychologist, psychiatrist, counsellor or other social work professional or mental health professional for the purpose of the preparation of expert evidence for use in the proceedings for ancillary relief involving the custody and welfare of the child. (2) An application for leave under paragraph (1) shall be by way of summons, which shall be in such form as the Registrar may direct. (3)At the hearing of an application for leave under paragraph (1), the court may give such directions and make such orders as it thinks fit, including directions relating to the appointment of an independent expert and the payment of his remuneration and limiting the number of experts who may be called in the proceedings. (4) Where a party fails to obtain the leave of the court as required under paragraph (1), no evidence arising out of an examination or assessment to which paragraph (1) applies may be adduced without the leave of the court. (Emphasis added). |
The manner of the application for leave is prescribed in para 94 of the Subordinate Courts Practice Directions. Essentially, the following documents must be specifically prepared:
1. The Letter of Instruction to the Expert Witness –
This letter sets out the issues before the Court, the orders currently in force (if any), the issues to be addressed by the expert in the report, the time frame for the report to be concluded, the contact details of the parties involved, how the costs of the expert will be paid; and
2. The nature and contents of the application for leave to be made by Summons
The report obtained under r 41 of the Matrimonial Proceedings Rules 2005 is made available to both the Court and to the parties and this is specifically set out in the Letter of Instruction to the Expert Witness. This differs from the practice of the Courts when it comes to disclosing welfare reports prepared pursuant to the directions of the Court.
Where the children are of an age where they are capable of expressing their own wishes, the Judge can interview the children in chambers.
Types of Reports Which the Court Can Rely On
The Court in its discretion can order any of the following reports (which are different from reports prepared by private child psychiatrists engaged by the parties) to be prepared:
1. Social Welfare Report by the Ministry of Community Development Youth and Sports (MCDYS);
2. Custody Evaluation Report by the Family Court;
3. Access Evaluation Report by the Family Court;
4. Assisted Transfer Report by the Family Service Centre (where there is an order for assisted transfer to take place at a Family Service Centre); and
5. Assisted Access Report by the Family Service Centre (where there is an order for supervised access to take place at a Family Service Centre).
These reports are collectively referred to as “welfare reports” in this article.
Social Welfare Reports (“SWR”)
When the dispute between the parties involves custody, care and control of the child or whether there should be overnight access to the non-custodial parent, the Court can, in its discretion, order a Social Welfare Report to be prepared by the Ministry of Community Development Youth and Sports. SWRs are normally ordered when the child is young (usually below seven years old) or when there are serious allegations of physical or sexual abuse of the child, alcoholism or use of drugs.
Both the parties and the child will be interviewed by the Social Welfare Officer. The Social Welfare Officer will also make a surprise home visit to both parent’s home (if they are living separately) or to the matrimonial home (if parties are still residing at the matrimonial home). If necessary, home visits may be made to the child’s caregivers such as relatives or grandparents. The SWR makes observations from the interviews of the parties, caregivers, other relevant parties (if necessary) and the child but willnot make specific recommendations on what arrangements should be in place for the child.
The reports will normally be completed within three to six months from the time it is ordered by the Court and neither party has to pay for the costs of the report. The SWR is confidential and submitted by the Ministry of Community Development Youth and Sports directly to the Court and not to the parties or their solicitors. As a general rule, a copy of the SWR is not given nor is it shown to the parties or their solicitors. There is also no cross-examination of the maker of the report. At best, the Court gives an indication of the main parts of the report to the solicitors at the Pre-Trial Conference or at the hearing.
Custody Evaluation Reports (“CER”)
The Custody Evaluation Report is prepared by the counsellors of the Family Court where the dispute involves custody, care and control of the child. The parties and the child will be interviewed as well as the caregivers, if necessary. Such reports are normally ordered by the Court when the child is above seven years of age.
The counsellors preparing the Custody Evaluation Report do not conduct home visits and the interviews are carried out at the Family Court. It usually takes about two to three months to complete the report and parties do not have to pay for the report. The Custody Evaluation Report sets out the observations of the counsellors from the interviews and makes recommendations in respect of which parent should have custody, care and control of the child.
The CER is confidential and submitted directly to the Court and the parties or their solicitors are not extended a copy. There is also no cross examination of the maker of the report. The Court gives an indication of the main parts of the report to the solicitors at the Pre-Trial Conference or at the hearing.
Access Evaluation Reports (“AER”)
These reports are also prepared by the counsellors of the Family Court and address the specific issue of an access dispute between the parties and involve children not below the seven years of age. Like the CER, the counsellors conduct interviews with the parties and the child and do not make home visits. The report is normally submitted directly to the Court in about two months and the parties do not have to pay for the reports.
The AER is confidential and submitted directly to the Court and the parties or their solicitors are not extended a copy. There is also no cross-examination of the maker of the report.
The Court gives an indication of the recommendations set out in the report to the solicitors at the Pre-Trial Conference or at the hearing.
Assisted Transfer Report
Where the dispute between the parties are so acrimonious that the handover of the child for access needs to be assisted, the Court can make an order that the handover and return of the child for access at the start of the access and at the end of the access takes place at a Family Service Centre for a specific period of time (usually three to six months) and thereafter, the Court will review the order to determine whether the Assisted Transfer Order should continue or whether the handover of the child can take place at the child’s residence.
The Family Service Centre will submit a report to the Family Court at the end of the Assisted Access period and prior to the date of the review by the Court. The counsellor from the Family Service Centre preparing the report will submit the report based primarily on the observations of the parties conduct and the interaction of the child and the non-custodial parent.
The Assisted Transfer Report is confidential and submitted directly to the Court and the parties or their solicitors are not extended a copy. There is also no cross-examination of the maker of the report.
The Court at the review will usually highlight the observations of the Family Service Centre’s counsellor.
The parties have to pay for the charges imposed by the Family Service Centre to provide the Assisted Transfer. The Court will usually make a specific order as to which party is to bear the costs or whether the costs are to be shared equally. There is no additional cost for the Assisted Transfer Report.
Assisted Access Report
Where there are allegations of family violence, physical or sexual abuse, the Court may make an order for supervised access to the non-custodial parent at the Family Service Centre. Such supervised access is ordered for a specified period of time (usually three to six months) and the Court will review the order thereafter. The supervision of the access will be conducted by a counsellor at the Family Service Centre who will submit a report at the end of the period of the supervised access and before the date set for the review by the Court.
The counsellor from the Family Service Centre preparing the report will submit the report based primarily on the observations of the interaction between the child and the non-custodial parent during the access period.
The Assisted Access Report is confidential and is submitted to the Family Court directly and the parties and their solicitors are not given a copy. There is also no cross-examination of the maker of the report.
The parties have to pay for the charges imposed by the Family Service Centre to provide the Assisted Access. The Court will usually make a specific order as to which party is to bear the costs or whether the costs are to be shared equally. There is no additional cost for the Assisted Access Report.
The child has the opportunity to articulate his wishes through the interview process by the social welfare officer or the counsellor of the Family Court in the preparation of the Social Welfare Report, the Custody Evaluation Report or the Access Evaluation Report. To a lesser extent, although there is no formal requirement of interviewing the child, the child’s voice and his wishes may be articulated through the Family Service Centre’s counsellors’ Assisted Access Report or Assisted Transfer Report since observations are made based on the child’s interaction with the non-custodial parent.
The Court’s Position on Disclosure of the Reports to Parties and Their Solicitors
In a paper entitled “The Role of Judicial Process in Child Protection: A Singapore Perspective” prepared by the Subordinate Courts of Singapore for the International Society for Prevention of Child Abuse and Neglect conference, I quote the relevant extract of the Court’s perspective from the paper in relation to custody and access evaluation reports and social welfare reports:
The report is confidential and for the use of the Judge only. As a general rule, it will also not be shown to the parties, thereby protecting the child whose information and personal views may be expressly stated in the report … As with CERs and AERs, SWRs are confidential and for the use of the Judge hearing the custody and access issues only. It is not shown to the parties and therefore any views the child may have made in the preparation of the report will not be revealed to his parents.
In the case of B & Another v D [2002] SGHC 210, the Honourable Justice Lai Siu Chiu had directed the social welfare authorities to investigate into the background of both parties in the light of the allegations and cross allegations raised in the affidavits of both parties. At para 19 of the judgment, Her Honour said:
19.Social welfare reports made at the Court’s behest are confidential and the findings are never revealed to parties so as to maintain the impartiality and independence of the investigators/department. Consequently, I cannot/will not reveal the findings of the report made for this case. However, what I can say and which is in any event known to the parties is, that both Plaintiffs as well as the Defendant’s mother were interviewed for the report and visits were made by welfare officers to No.10B Jubilee Road and the St George’s Lane flat of J.
In Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234, the Court of Appeal held that generally, in proceedings relating to children, in particular, in custody cases, evidence which was of a hearsay nature was inadmissible. There was no exception to the rule against hearsay under common law or statute for child proceedings.
However, in the same case, the Court of Appeal held, following the approach in the United Kingdom, that a court welfare officer’s report was admissible, even though it contained hearsay. In child proceedings, a welfare officer directed by the court order to investigate and report had a duty to give to the court all the information which he considered to be relevant and should not be constrained by the hearsay rule from including relevant but otherwise inadmissible information.
At para 36 of the judgment, Yong Pung How CJ (as he then was) said:
In child proceedings, a welfare officer directed by the court order to investigate and report has a duty to give to the court all the information which he considers to be relevant and should not be constrained by the hearsay rule from including relevant but otherwise inadmissible information. He may consider it necessary to provide the judge with a full picture of the family, and investigates many sources and interviews many people, includinggrandparents and other relatives, teachers, doctors and the children themselves. What the children have to say may be relevant not only as to their state of mind but as to important facts derived from the child which the court should know. Unless he is entitled to present this information, it would be extremely difficult for him to comply with the task he is directed by the court to perform. Equally, his usefulness to the court would be substantially diminished. Social welfare reports must, by its very nature, contain a certain amount of hearsay and the court which rely heavily on these reports, have accepted them without any hesitation. Thanks to the judgment and discretion of welfare officers, it rarely leads to difficulty, because care is taken to keep it to a minimum and, so far as possible, to confine it to non-controversial matters. The reliance upon the report and the weight to be attached to any information contained therein is, of course, a matter for the judge.
In the case of Kannan Menon @ M Kannan v Preetha Vadakkoott @ Mrs Kannan Preetha [2002] SGDC 281, the Court had to deal with inter alia, the husband’s application for the Custody Evaluation Report and Social Welfare Report to be shown to counsel. The Court declined to make any orders on these applications. The husband had alleged that the children’s testimonies were tainted as the wife had coached the children for the interviews. The Honourable District Judge Mrs Emily Wilfred found that both the reports did not support the husband’s contention that the children were “very traumatised” and found the interviews “an ordeal”.
At para 7 of the judgment, the learned District Judge said:
| 7. | (As I saw no evidence of the children’s evidence being tainted in the reports, I declined to make such an order. However, I did read several portions of both reports (highlighted in yellow) to counsel. They were directed to keep the information confidential. It is the practice of these courts not to reveal the contents to counsel or the parties concerned as it may jeopardise the children’s interests because of the views they may have expressed to the counsellors. Such reports are tendered to court on a confidential basis, to assist the court. (Eemphasis added). |
In the case of RN v RO [2007] SGDC 48, the Court, in making its decision to grant care and control to the father and a carefully calibrated access to the mother, based its decision on the confidential Custody Evaluation Report of the Family Court counsellor. The Court had no hesitation in finding that the recommendations as stated in the confidential report were clearly in the interests of the children and would advance their welfare.
However, the Court did not disclose the report to the parties or their solicitors but did share with the solicitors the main findings of the counsellor and that the Court’s decision was based on the confidential report. The mother appealed against the Court’s decision.
In ZB V ZC [2008] SGDC 186, the Honourable District Judge Khoo Oon Soo at para 36 of the judgment said:
Although the Social Welfare Report is a confidential report prepared for the Court pursuant to its direction, in practice, the Family Court can and has in appropriate cases disclosed relevant portions to the parties.
In the High Court case of Shoba d/o Gunasekaran v A Rajandran v Ramanathan Theyvendran [2001] SGHC 138, one of the grounds of the wife’s appeal against the lower court’s decision was that the Judge below had placed too much reliance on the welfare report without giving the parties an opportunity to address the Judge on it. The Honourable Judicial Commissioner Lee Seiu Kin (as he then was), hearing the appeal, directed the parties to be furnished with the welfare report on condition of confidence. The wife’s solicitors made submissions in respect of the welfare report and listed a detailed set of complaints about it. The Honourable Judicial Commissioner Lee Seiu Kin (as he then was) said at para 11 of his judgment:
| 11. | On my part, while I had the welfare report in mind, it did not constitute a substantial factor in the decision I arrived at. Also, I had borne in mind the submissions of counsel for the Petitioner in relation to the report. My decision was based mainly on the affidavits of the parties and the facts of the matter as can be ascertained from the court documents. |
The cases cited above show that the Courts do not, as a matter of practice as opposed to a matter of law, disclose the welfare reports (be it the Social Welfare Report or Custody/Access Evaluation Report) to the parties or the solicitors. In some cases, certain portions of the reports were disclosed to the parties’ solicitors on the basis that the information is kept confidential and in others, certain portions of the reports were disclosed to the parties through their solicitors. Yet in the High Court case of Shoba d/o Gunasekaran v A Rajandran v Ramanathan Theyvendran, the Court furnished parties with the welfare report on condition of confidence.
In my respectful view, there seems to be some inconsistency in addressing the question of whether welfare reports should be disclosed to the parties or their solicitors. In the cases where the Courts rely on the reports in arriving at its decision, it poses a great challenge to counsel in an appeal to make submissions on the findings of the report (based only on what is referred to in the grounds of decision) when the report was not made available or only when portions of the report were made known to the parties.
I raise the following points for consideration:
1. Since the child has been interviewed and his voice and wishes were made known to the welfare officer or counsellor, why should the report not be disclosed to the parties?
2. If the Court directed a welfare report to be prepared to assist it in its deliberations, and the parties participate in the process of attending the interviews and the child is interviewed, why are the parties
excluded from the findings of the welfare report at the final stage of the process?
3. The parents ought to have the right to know the contents of the report since it relates to their child and it sets out the wishes and views of the child. It is the voice of the child spoken through the welfare officers. By disclosing the report to the parents, it may actually help them understand the situation and perhaps even come to the realisation that what they think is very different from what the child thinks or wants.
4. Is there transparency in the judicial process if the reports are not disclosed to the parties and the Court relies on the reports to make a decision, even though the report may not be the only factor the court relies on?
5. Why is the treatment of welfare reports different from reports which are ordered by the Court upon an application by one or both of the parties under r 41 of the Matrimonial Proceedings Rules 2005?
6. If the welfare reports are not disclosed to the parties, the parties are unable to challenge the reports. The parties are only limited to stating in affidavits what transpired during the interview process.
7. If there is no disclosure of the reports (and no cross examination of the maker of the report), where is the accountability of the contents of the report? Should this be left entirely to the Judge presiding over the case
who is not involved in the interview process at all to the exclusion of the parties?
The Case for Disclosure
It is my respectful view that the current state of affairs in respect of welfare reports is not satisfactory. The excuse of confidentiality for the non-disclosure of the reports to the parties is a poor excuse. It envisages a situation where the Court, in arriving at its decision, relies on a confidential report as part of the evidence in the proceedings, the full contents of which are unknown to the parties and their solicitors. Partial disclosure of the findings of the reports is insufficient. The jurisprudence requires that parties are given the opportunity to challenge evidence presented to the Court by an expert, whose opinion was called for by the Court.
I highlight the following reasons why there ought to be disclosure of the welfare reports.
Order 40 of the Rules of Court allows, in civil proceedings, for the appointment of an independent Court Expert by the Court on its own motion or on an application by the parties. Order 40 r 2(1) and r 4 provide as follows:
| Report of court expert (O 40 r 2) | ||
| 2. | (1) | The court expert must send his report to the Court, together with such number of copies thereof as the Court may direct, and the Registrar must send copies of the report to the parties or their |
| Cross-examination of court expert (O 40 r 4) | ||
| 4. | Any party may, within 14 days after receiving a copy of the court expert’s report, apply to the Court for leave to cross-examine the expert on his report, and on that application the Court shall make an order for the cross-examination of the expert by all the parties either— | |
| (a) (b) |
at the trial; or before an examiner at such time and place as may be specified in the order.” |
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A Court’s direction for the preparation of a welfare report is akin to the Court appointing a Court Expert, yet there seems to be two different approaches in the treatment of the expert’s reports as a matter of disclosure and evidence.
The new CHILD (Children’s Best Interest, Less Adversarial) Programme was introduced in the Family Court in May 2008 and is designed to reduce litigation between the parties over children’s issues and to move towards a less adversarial approach to resolve disputes in the interest of the children. One of the important features of this programme is the role and involvement of the Family Counsellor who is present during the hearings as are the parties. The report of the Family Counsellor is made available to the parties and the Family Counsellor is available to answer questions from the parties and/or their solicitors. There is no confidentiality attached to the Family Counsellor’s report.
The case in point is YX v YY [2008] SGDC 334. The Family Counsellor, in preparing the report, plays a similar role as the counsellor preparing the Custody Evaluation Report or Access Evaluation Report. Interviews with the parties and the children are conducted. The CHILD Programme recognises that disclosure of the Family Counsellor’s report and the availability of the Family Counsellor to answer questions from the parties and their counsel on the report are an essential and integral part of the process in resolving disputes over children.
The prescribed form of the Letter of Instruction to the Expert Witness in the Practice Direction in an application under r 41 of the Matrimonial Proceedings Rules requires that the report of the expert is made available to the Court and both parties/their solicitors. It is not optional and there is no confidentiality.
In a recent development concerning an appeal from an order made in the Juvenile Court in early October 2009, The Honourable Justice V K Rajah JA expressed concern about the court procedures regarding Child Protection Orders, noting that parents were not given a copy of the Case Summary. The Case Summary, which includes the background of the case, an assessment of the risk to the child and recommendations on the appropriate care arrangements, is prepared by the Child Protection Services of the Ministry of community Development Youth and Sports. It is only submitted to the Court and not to the parent. The parents will only get to know of the recommendations or concerns raised in the Case Summary when they were in court for the hearing.
On 13 October 2009, it was reported in the press that the Ministry of Community Development Youth and Sports had reviewed its procedures and will now make available the Case Summary to the parents prior to the Court hearing.
Although it is recognised that the Case Summary is different from the welfare reports, the fundamental principle remains the same, that is, that parties must have knowledge of the evidence being presented to Court and evidence the Court relies on in arriving at its decision. The evidence relied upon cannot be made known to the parties only partially and under the cover of confidentiality.
The disclosure of the welfare reports will ensure a fair trial of all issues and all matters which the Court takes into consideration when making its decision. It also gives transparency and accountability in the Court process for the parties involved in the dispute over their child.
It is sometimes suggested that the reason why welfare reports are not disclosed to parties is because in the course of the interviews and preparation of the reports, children may reveal information to the counsellors or welfare officers which they (the children) wish to be kept confidential from their parents. Such confidential information may be material to the Court and may prejudice the interests of the children if revealed to their parents.
However, if the confidential information is included in the report and is of such importance as to have a bearing on the outcome of the case, both parties must be permitted to see the report and have an opportunity to answer it. Some guidance can be obtained from the case of Official Solicitor v K & Anor (1965) AC 201, Lord Devlin at p 242 stated:
It must be remembered that the object of disclosure is not merely to remove a sense of injury that might otherwise result from secrecy but because secrecy may itself prevent the point from being fully canvassed and so possibly prevent that course being taken which, if the full facts were known would truly be in the interests of the child.
In the case of case of McKee and McKee (1977) FLC 90-58, the contents of the report were disclosed to the father who had the opportunity to explain the comments made by the welfare officer in the report.
A Brief Comparison with Other Jurisdictions
New Zealand
A welfare report may be obtained from the Department of Child Youth and Family pursuant to s 132 of the Care of Children Act (prepared by social workers) or from an independent psychologist, psychiatrist or medical practitioner commissioned by the Court pursuant to s 133 of the Care of Children Act. In either of these reports, it is submitted to the Court and the Court has the discretion to release the report on certain conditions to the solicitors and the parties. It is normal convention and practice that such reports are released to solicitors who are permitted to show the reports to their clients who may read them but may not make a copy of the report or take it away. The maker of the report can be cross-examined and is the “Court’s witness”.
The parties may apply to Court for the report to be released so that it can be read by other persons such as care givers if they have an involvement in the case or to other counsellors or registered medical practitioners who may have an interest in assisting one of the parties. The Court in the exercise of its inherent jurisdiction will determine the conditions to be imposed in the release of such reports.
Hong Kong
Pursuant to r 95 of the Matrimonial Causes Rules, social welfare reports prepared by the Social Welfare Department are made available to parties and their solicitors through the Court. Similarly, where parties engage a private child psychologist or psychiatrist, the report is submitted to the Court and is also made available to the parties and their solicitors. The maker of the report is subject to cross-examination.
Australia
Section 62G(8) of the Family Law Act provides that a Family Report provided to the Court may be received into evidence. The disclosure of Family Reports is governed by r 15.04 of the Family Law Rules. Under this rule, the Court may:
1. give copies of the report to each party, or the party’s lawyer, and to an Independent Children’s Lawyer;
2. receive the report into evidence;
3. permit oral examination of the person making the report; and
4. order that the report not be released to a person or that access to the report be restricted.
The widely held view is that once a report is admitted into evidence, the parties are entitled to know the contents of the report. In the case of Reeves v Reeves (No 2) (1961) 2 FLR 280, Barry J said:
I think it is clear that if the report is received into evidence, the parties are entitled to see it.
Rule 15.03(5)(c) provides that the Court may permit cross-examination of the maker of the Family Report. The prevailing view is that a party seeking the right to cross-examine the maker of a report should be permitted to do so and this will include court counsellors who prepared the report. (See Harris v Harris (1977) FLC 90- 276, M v M (1978) FLC 90-429, Hall v Hall (1979) FLC 90-713).
England
A welfare report may be obtained under the direction of the Court pursuant to ss 7 or 37 of the Children’s Act 1989. Such welfare reports are prepared by the Children and Family Court Advisory and Support Services (CAFCASS) or by the local authority. Rule 4.13 of the Family Proceedings Rules 1991 provides as follows:
| Welfare officer |
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| 4.13 — | (1) | The welfare officer shall, unless excused by the court, attend a hearing if the proper officer gives him notice that his report will be given or considered at that hearing; and any party may question the welfare officer about his report at such a hearing. |
| (2) | A welfare officer shall file a copy of any written report at or by such time as the court directs or, in the absence of a direction, at least 5 days before a hearing of which he is given notice under paragraph (1); and the proper officer shall, as soon as practicable, serve a copy of the report on the parties and the guardian ad litem. | |
The position in England is that welfare reports are disclosed to the parties and their solicitors. Private child experts may also be appointed jointly by the parties or by an application to Court similar to r 41 of the Matrimonial Proceedings Rules. The reports of the experts are disclosed to the parties.
The maker of the welfare reports under s 7 or s 37 of the Children’s Act 1989 may be subject to cross-examination. Similarly, reports from private child experts may also be cross-examined.
Conclusion
In 2002, I wrote an article “To See or Not to See” in the Law Gazette and suggested that social welfare reports prepared by the Ministry of Community Development and Sports (as it was then known) should be disclosed to the parties or to solicitors.
In my humble view, the paramount welfare and interest of the child is best served if welfare reports are disclosed to the parties and their counsel. In this way, not only will the child’s voice in Court proceedings be heard, it will be heard effectively. The parents have a right to know the views of the child as recorded in the reports.
The CHILD programme already provides for the full disclosure of the Family Counsellor’s report to the parties and for cross examination. There ought not to be a distinction between welfare reports prepared for cases which do not fall within the CHILD programme and those which fall within the programme. There also should not be a distinction between the treatment of reports obtained under r 41 of the Matrimonial Proceedings Rules and those reports obtained pursuant to the direction of the Court, such as the CER and AER. The other jurisdictions take the approach of disclosure of welfare reports and cross-examination of the maker of such reports.
However, if full disclosure of the report and the ability of parties to question the expert are not possible, then at the very least, a calibrated process of disclosure may be adopted in cases which do not fall within the CHILD Programme. One possible approach is for the welfare reports to be disclosed to the parties and no cross-examination of the maker of the report is allowed without the leave of Court. As an alternative to cross- examination, there can be a process by which parties may seek to clarify the welfare report through a series of questions posed to the maker of the report (through the court if necessary) and answers provided.
The approach of the Family Court in resolving disputes over children should lean towards the disclosure of welfare reports. There should not be two inconsistent approaches or practices and there is no better time to make the change in favour of full disclosure of the welfare reports in the interest of the child and in the interest of justice.
As a matter of public policy, if the welfare report is relied upon by the Court in arriving at its decision, the opportunity must be given to the parties to test the evidence. By not disclosing the report or allowing cross-examination, some parents may feel that justice has not been done or worse still, that justice may have been denied.
Yap Teong Liang
T L Yap & Associates
E-mail: ytl@tlyap.com.sg