In an “ideal state”, wrote Justice Debbie Ong in 2018, a child would be “in an intact family where he or she lives with and is lovingly cared for jointly by both parents”.
However, when marriage breaks down, this is no longer fully achievable. Thus, the family justice system aspires to achieve this ideal state of affairs for the child, or “the closest to it possible”.
To do so, courts make orders to allocate responsibilities to the parents:
- “Custody”, which concerns long-term decision-making for the welfare of the child;
- “Care and control”, involving day-to-day decision-making;
- “Access”, through which a child spends regular periods of time with the other parent.
Reflecting the high ideals of the family justice system, it is remarkable how Singapore law strives to preserve the relationship of children with both father and mother, despite the breakdown of the marital relationship, and encourage them to cooperate for the welfare of the child.
Joint Parenting in Welfare of the Child
One of the most important court decisions is the 2005 case of CX v CY (names of parties in divorce cases are typically redacted to protect their privacy), handed down by Singapore’s apex court, known as the Court of Appeal.
The father was a Dutch national working in Thailand, while the mother was a Singapore national residing and working in Singapore. In June 2001, they married in Singapore, and their son was born more than three months later in Thailand. However, the couple separated after around two years, following the mother’s discovery of the father’s extramarital affair.
The mother returned to Singapore, and the child had been residing with his mother and maternal grandmother in Singapore since then.
Before the Court of Appeal, the dispute was over custody and access of the child.
In this seminal decision, the Court expressly endorsed the concept of “joint parenting” and joint parental responsibility, even if the marriage has broken down.
In a judgment delivered by Justice Lai Siu Chiu on behalf of the three-judge panel, the Court opined that:
“There can be no doubt that the welfare of a child is best secured by letting him enjoy the love, care and support of both parents. The needs of a child do not change simply because his parents no longer live together.”
In reaching this conclusion, the Court cited a provision in the Women’s Charter which exhorts both parents to make equal co-operative efforts to care and provide for their children.
It also cited Article 18 of the United Nations Convention on the Rights of the Child, which Singapore has signed, endorsing the view that “both parents have common responsibilities for the upbringing and development of the child”.
It further noted similar approaches from jurisdictions like England and Australia.
Thus, the Singapore courts incline towards making “joint custody orders” or “no custody orders”. The Court stressed that “no custody orders” simply meant “leaving the law on parenthood to govern the matter, as both parents continue to exercise joint custody over the child”, and to refrain from intervening unnecessarily in the parent-child relationship.
It explained:
“The idea behind joint or no custody orders is to ensure that neither parent has a better right over the child and that both have a responsibility to bring the child up in the best way possible. Similarly, the 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.”
However, there are exceptional circumstances where sole custody orders should be made. These could arise where one parent physically, sexually, or emotionally abuses the child, or where the relationship of the parties is such that co-operation is impossible even after the avenues of mediation and counselling have been explored, and the lack of co-operation is harmful to the child.
On the facts of the case, the Court ruled that joint custody was appropriate, to “remind the mother that the father has an equal say in more significant matters concerning the child’s upbringing”. It did not find any exceptional circumstances to justify a sole custody order, as this was a situation where “both parents clearly love the child”. Given the state of modern technology, it was possible to communicate with the Bangkok-based father on longer-term decisions concerning the child’s upbringing.
The Court further ruled that the father should be given overseas access twice a year, up to 14 days each time, since “it was in the interests of the child to maintain his bond with his paternal grandparents”. Although it acknowledged the “perennial fear” that a parent may not get the child back, the Court found that the father always complied with the court’s orders and consistently professed that he would never take the child away from the mother.
Both Parents Needed for Better Balance and Development
Since then, the Singapore legal system has stressed the importance of the involvement of both parents in the lives of their children. In a subsequent 2011 decision, Judge of Appeal Andrew Phang remarked in a judgment delivered on behalf of the apex court:
“The input by both parents furnishes a balance that enhances the development of that child (or those children, as the case may be) until adulthood is reached. In contrast, the exclusion of one of the parents in this particular regard would – absent an exceptional reason – contribute towards a less balanced as well as less rounded development of the child (or children) concerned.” (emphasis in original)
As a result, our local courts are not inclined to grant sole custody orders, in the absence of extreme situations resulting in harm to the children.
For example, in one particularly acrimonious case stretching over 8 years since 2012, a father accused the mother of hurting the children, leading to them being hospitalised. Although he made a police report against the mother and called Child Protective Services (CPS), these allegations of ill-treatment were unsubstantiated.
Owing to the father’s “excessive gatekeeping or alienating behaviour” and the mother’s insistence on contact with her children, the children became fearful of their mother. Nevertheless, the court refused to order sole custody, noting that these were “two parents who loved (and continue to love) their children, but gravely lacked insight on how best to parent them after their own marital relationship broke down”.
In another case involving a couple who had married in the United States (US), the court likewise decided in favour of joint custody of their young son, who had just turned four (referred to as “N” in the decision). The mother wanted to relocate to the US.
Rejecting the mother’s claim to sole custody Justice Debbie Ong noted that there will be many ‘forks’ in life ahead, thus “better it is that N enjoys the full support and guidance of both his parents throughout the course of his childhood”.
She exhorted both parents to “consult each other on matters of importance, including those relating to the permanent immigration status and the education of N. Each parent should consider with an open mind the inputs of the other, to reach the best decisions for N.”
“Bigger, Kinder, Wiser” Children’s Sake
The “golden thread” that runs through “all proceedings directly affecting the interests of children”, our courts have emphasised, is that “the welfare of the child is paramount and this principle ought to override any other consideration”. Yet, when the parents’ marital relationship breaks down, the child “is inevitably the unseen and unheard victim”.
Our courts have thus made considerable effort to preserve the involvement of both parents in the lives of their children notwithstanding the acrimony, animosity and outright hostility of some divorcing couples. Oftentimes, it has mandated counselling, encouraged them to set aside their differences, and called upon parents to exercise “personal responsibility” to “be the best they can be for the sake of their children – bigger, kinder, wiser”.
These are laudable efforts within the courtroom, but the ball ultimately rests in the court – metaphorically speaking – of individuals themselves, and of our wider society as a whole. Are we all prepared to be “bigger, kinder and wiser” for the sake of children?
