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Child Custody Law Dp And Executive Summary

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1. Review of Child Custody Law Executive Summary (In 2005, the Law Reform and Revision Division of the Attorney-General’s Chambers conducted a review of child custody…
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  • 1. Review of Child Custody Law Executive Summary (In 2005, the Law Reform and Revision Division of the Attorney-General’s Chambers conducted a review of child custody law in Singapore. The enclosed discussion paper, which was prepared in October 2005, sets out the issues that were considered and the conclusions reached.) Child custody refers to the bundle of rights, duties, obligations and responsibilities or parental authority that a person may exercise over a child. In a normal, stable family, a child is cared for by the parents, and the question of custody does not arise. But when a family breaks down, for example when the parents divorce, the future custody and care of the child becomes a central issue decided by the courts in the course of the matrimonial proceedings. Under the Women’s Charter (Cap. 353), the court may make custody orders relating to the child. However, there are perceived shortcomings to the concept of custody, such as the fact that it interferes with the natural parent-child relationship. There have been calls for reform in this area of law and for greater focus on parental responsibility. These issues are discussed in Chapter One. Chapter Two discusses how the concept of “custody” has been abolished and replaced with “parental responsibility” in legislation in England (the Children Act 1989) and Australia (the Family Law Reform Act 1995). These legislation provide for matters such as the scope of parental responsibility, the persons bearing parental responsibility, the types of parenting orders that may be made by the court, the exercise of parental responsibility, and the ending of parental responsibility. The discussion underlines the importance of ensuring that the best interests of the child remains paramount, as is required under Article 3 of the UN Convention on the Rights of the Child 1989. Chapter Three discusses whether legislative changes, such as those in England and Australia, are necessary in order to promote parental responsibility. It considers the important judicial pronouncements on custody made by the Singapore Court of Appeal in the landmark case of CX v CY (minor: custody and access), decided in July 2005. The Court advocated the promotion of joint parental responsibility through the use of joint custody or no custody orders. With this decision, the conclusion of the paper is that legislative amendments are not necessary, at this juncture, for the purpose of promoting joint parental responsibility. This is a matter that can be left to judicial development by the courts under the concept of custody in existing legislation.
  • 2. REVIEW OF CHILD CUSTODY LAW Introduction....................................................................................................... 1 Chapter One: Custody...................................................................................... 3 Custody orders...........................................................................................................3 Shortcomings .............................................................................................................5 Calls for reform..........................................................................................................7 Reforms in other Commonwealth jurisdictions.........................................................8 Need for emphasis on parental responsibility............................................................9 Chapter Two: Parental responsibility........................................................... 10 Scope of parental responsibility...............................................................................10 Persons bearing parental responsibility ...................................................................11 Court orders affecting parental responsibility (parenting orders)............................12 Welfare of the child remains paramount..................................................................15 Exercise of parental responsibility...........................................................................16 Ending of parental responsibility.............................................................................18 Chapter Three: Whether legislative changes required ............................... 20 Legislation making reference to “custody” .............................................................20 Parental responsibility within the ambit of custody.................................................21 Current legislative provisions relating to parental responsibility ............................26 No pressing impetus for legislative change .............................................................28 ANNEXURES Annex A –Children Act 1989 (England), sections 1 to 16. Annex B – Family Law Reform Act 1995 (Australia), sections 60A to 65ZD. Annex C – Women’s Charter (Cap. 353), sections 122 to 132. Annex D – CX v CY (minor: custody and access) [2005] 3 SLR 690, [2005] SGCA 37. Annex E – List of legislation making reference to “custody”.
  • 3. Review of Child Custody Law (Oct 2005) 1 Introduction 1 Child “custody” refers to the “bundle of rights, duties, obligations and responsibilities”1 or parental authority that a person may exercise over a child. In a normal, stable family, a child is cared for by the parents, and the question of custody does not arise. But when a family breaks down, for example when the parents divorce, the future custody (and care) of the child becomes a central issue, which will have to be decided by the court in the course of the matrimonial proceedings. 2 The court may make custody orders relating to the child. The most common type of custody order is an order for sole custody. When sole custody of a child is given to a parent, that parent will have the legal right to decide all questions relating to the upbringing of the child. The other parent, who is not given custody, is deprived of such right. Given its legal significance, custody often becomes a very contentious issue in matrimonial proceedings. 3 England and Australia have sought to remove this source of contention by abolishing the concept of custody. They now emphasize in their family laws the importance of “parental responsibility” for children. In England this was done by way of the Children Act 1989 (relevant extracts of which are reproduced in Annex A); and in Australia by way of the Family Law Reform Act 1995 (relevant extracts of which are reproduced in Annex B). Australia is now considering the Family Law Amendment (Shared Parental Responsibility) Bill 2005 to refine their law on parental responsibility even further. 1 Professor Leong Wai Kum, Principles of Family Law in Singapore, Butterworths, 1997, pages 536 to 538. Child custody has also been described as “the right to or responsibility for a child's care and control, carrying with it the duty of providing food, shelter, medical care, education and discipline.”: www.utcourts.gov/resources/glossary.htm. “Child custody and guardianship are the legal terms used to describe the legal and practical relationship between a parent and child, including e.g. the right of the parent to make decisions for the child and the duty to care for it; it comes into question in proceedings involving dissolution of marriage, annulment and other legal proceedings where the residence and care of children are concerned.”: en.wikipedia.org/wiki/Custody.
  • 4. Review of Child Custody Law (Oct 2005) 2 4 Singapore’s law on custody is contained primarily in the Women’s Charter (Cap. 353) (relevant extracts of which are reproduced in Annex C). The Women’s Charter had its origins in English law, particularly the UK Matrimonial Causes Act 1973. With England now emphasizing parental responsibility in their family laws, the same could be considered in Singapore. In the recent landmark decision of CX v CY (minor: custody and access)2 (reproduced in Annex D), the Singapore Court of Appeal advocated the promotion of joint parental responsibility through the use of joint custody or no custody orders. 5 This paper considers child custody in Singapore, its perceived shortcomings, the reforms in England and Australia, and possible reforms to our laws. Finally, it considers whether legislative changes are necessary. The conclusion of this paper is that, with the decision of CX v CY, it would not be necessary to amend the Women’s Charter in order to promote joint parental responsibility. 2 [2005] 3 SLR 690, [2005] SGCA 37, Court of Appeal (Yong Pung How CJ, Chao Hick Tin JA, Lai Siu Chiu J), 19 July 2005.
  • 5. Review of Child Custody Law (Oct 2005) 3 Chapter One: Custody Custody orders 6 In any matrimonial proceedings relating to divorce, nullity of marriage or judicial separation, which come within the purview of our Family Courts, the court may make such orders as it thinks fit with respect to the welfare of any child.3 Among the matters considered for the welfare of the child is the issue of custody.4 7 The court may by order place the child in the sole custody of the father or the mother, and this is often the case in practice.5 Where the parents are able and willing to cooperate on the future upbringing of the child, the court may also place the child in the joint custody of both parents.6 In exceptional circumstances where it is undesirable to entrust the child to either parent, the child may be placed in the custody of any other relative of the child, any child welfare organisation or association, or any other suitable person.7 8 In deciding in whose custody a child should be placed, the court will give paramount consideration to the welfare of the child.8 The court will 3 Women’s Charter, section 124. 4 Women’s Charter, section 123(3). 5 According to the Subordinate Courts, the most common type of custody order is the sole custody order. Orders for joint custody are sometimes made, but less frequently. Another possible approach is to make no custody order. This latter approach was advocated by Justice Tan Lee Meng in the case of Re G (Guardianship of an infant) [2004] 1 SLR 229; [2003] SGHC 265 (High Court) where His Honour held that: “While it is true that a joint custody order may be unrealistic where the parents of a child have an acrimonious relationship, it does not always follow that the alternative in such a situation is to grant sole custody of the child to one parent. Where there is no immediate or pressing need for the question of custody to be settled, one should seriously consider whether an order for sole custody is in the best interest of a child, who should, without more, be entitled to the guidance of both parents.” (paragraph 8 of his judgment). But it appears that, even after Re G, sole custody orders are still being made by the courts. (“Insisting On a Custody Order? A Year After Re G”, Debbie Ong, Singapore Law Gazette, January 2005, page 14.) 6 For example, IQ v IR [2005] SGDC 46. 7 Women’s Charter, section 125(1). 8 Women’s Charter, section 125(2). This principle of regarding the welfare of the child as the paramount consideration is also applicable in guardianship proceedings: Guardianship of Infants Act (Cap. 122), section 3.
  • 6. Review of Child Custody Law (Oct 2005) 4 give regard to the wishes of the parents, and also the wishes of the child if the child is of an age to express an independent opinion. 9 An order for custody may be made on such conditions as the court may think fit to impose.9 For example, it may— a) contain conditions as to the place where the child is to reside, the manner of the child’s education and the religion in which the child is to be brought up; b) provide for the child to be temporarily in the care and control of some person other than the person given custody; c) provide for a child to visit a parent deprived of custody or give a parent deprived of custody the right of access to the child, at such times and for such period as the court may consider reasonable; and d) prohibit the person given custody from taking the child out of Singapore.10 10 There are a number of important concepts related to custody, such as residence, “care and control” and “access”. When making a custody order, the court will generally give care and control of the child to one parent. The child will reside with that parent, and that parent will be entitled to decide all questions relating to the upbringing and education of the child, subject to any conditions that the court may impose.11 The other parent, who is not given care and control, will have only rights of access to the child at specified times. In a sole custody order, care and control is generally given to the custodial parent, while the non-custodial parent is given access. In a joint custody order, care and control, similarly, is usually given to one of the parents, while the other gets access. 9 Women’s Charter, section 126(1). 10 Women’s Charter, section 126(2). 11 Women’s Charter, section 126(1).
  • 7. Review of Child Custody Law (Oct 2005) 5 Shortcomings 11 There are several perceived shortcomings with the concept of custody. Focus on parental rights rather than parental responsibilities 12 One criticism is that custody is an outmoded concept which had its origins in property and parental rights. It “does not adequately recognise that parenthood is a matter of responsibility rather than rights”12 , and that the interests of the child should be paramount. 13 Article 18(1) of the UN Convention on the Rights of the Child 1989, which Singapore signed and ratified in 1995, provides that: States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.13 14 The Court of Appeal in CX v CY emphasized that: [T]he child has a right to the guidance of both his parents. Parenthood is a lifelong responsibility and does not end at a particular age of the child, but continues until the child reaches adulthood. The question we have to answer will always be what is best for the child in the future. (paragraph 38 of the judgment) Interferes with natural parent-child relationship 15 Another criticism, which is a strong one, is that a sole custody order, which is the most common form of custody order currently made by the courts 14 , may interfere unnecessarily in the natural parent-child 12 Report of the English Law Commission (Law Com No. 172), paragraph 2.1. 13 The full text of the Convention is available at http://www.unicef.org/crc/crc.htm. 14 See footnote 5 above.
  • 8. Review of Child Custody Law (Oct 2005) 6 relationship, and that such interference is not be in the best interests of the child. 16 Under a sole custody order, the custodial parent is entitled to make all future decisions relating to the child, and the parental relationship with the child is maintained. But the matter is quite different for the non- custodial parent. At best, the non-custodial parent would have access to the child and little, if any, involvement in future decisions affecting the child. The relationship between the non-custodial parent and the child is severely curtailed, and this can be particularly difficult where the parent and child had enjoyed a close and loving relationship before the marital break-up. Could such a curtailment of the parent-child relationship really be in the best interests of the child? 17 As Professor Leong Wai Kum has commented: The authority of parents should, as far as possible, not be completely undermined by an order of custody. An order giving one parent sole custody is unattractive precisely because it undermines the authority of the other parent.15 18 The social impact of a sole custody order is tremendous. It affects not only the parents of the child, but also other close relatives and caregivers, such as grandparents. Numerous letters on the anguish caused by sole custody orders have been published from time to time in the forum pages of the Straits Times. One letter earlier this year summarises, poignantly, the social impact: When a couple divorces, the entire family suffers when custody is given to one party.… In many divorce cases, the child is at a very young age and the least prepared to handle the emotional trauma. The emotional bonding, support and caring the child enjoys after years of close family contact can be broken abruptly by awarding sole custody to one party. Such close relations form an integral part of a child's upbringing and should continue after divorce. Such ties should not be prematurely cut just because the other party does not have custody. It is the child's right to have access to both parents. The emotional 15 Principles of Family Law in Singapore, Butterworths, 1997, at page 542.
  • 9. Review of Child Custody Law (Oct 2005) 7 benefits are immeasurable, especially if the child has to deal with a traumatic experience such as a divorce. I, as a grandfather, miss my grandsons very much but I have limited access to them and vice versa.16 Divisive issue in matrimonial proceedings 19 This point is related to the previous one. The legal effect and social impact of a sole custody order is tremendous as it can fundamentally alter the parent-child relationship. The “winner” of the custody battle takes the child home, and the “loser” gets only limited access. Given such high emotional stakes, it is not surprising that custody disputes are often hotly contested. This adds heat to what may already be an emotionally charged and acrimonious matrimonial dispute. Removing the divisive element of custody out of the equation in a matrimonial dispute would enable matrimonial proceedings to be resolved more amicably, or at least less acrimoniously, in the best interests of the child. Calls for reform 20 In a law journal in January 2005, Associate Professor Debbie Ong observed that: [The] notions of ‘custody’ and ‘care and control’ … have been replaced in England. The Children Act 1989 in England abolished the concept of ‘custody’. English courts today grant limited orders to organise the child’s living arrangements such as residence orders and specific issues orders. The change in law followed the English Law Commission’s recommendations that both parents should retain parental power to act for the benefit of the child subject to any court orders on residence, contact or other specific issues.17 Australian law has also discarded the concept of custody. In 1996, the Family Law Reform Act 1995 came into force providing for ‘parenting orders’ 16 Adaikalam Keresenan, “Joint custody: Kids benefit the most”, Straits Times, 4 Jun 2005. In CX v CY, one of the matters that the Court of Appeal took into account was “the interests of the child to maintain his bond with his paternal grandparents.” (Paragraph 47 of the judgment.) 17 Law Com. No. 172, on “Family Law, Review of Child Law, Guardianship and Custody”.
  • 10. Review of Child Custody Law (Oct 2005) 8 which cover issues concerning the child’s residence, contact between the child and parents and other specific issues.18 21 More recently, in a keynote address at the LawAsia Conference on “Children & the Law”, held from 27 to 28 May 2005, the Honourable Justice Lai Siu Chiu said: [I]t may be timely for a comprehensive review of this area of law to be undertaken in Singapore. For example, I understand that the concept of custody has been abolished in England. In its place, greater emphasis is placed on shared parental responsibilities and the courts only step in to make orders on residence, contact and other specific issues. Similarly, in Australia, ‘parenting orders’ are made encompassing residence and contact orders. Hong Kong has also just released a L
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