FLP 3 - Children PDF

Takeaways The Family Court has jurisdiction and powers to make orders on custody, care and control, access, maintenance, and division of matrimonial assets in family disputes. The issue of children\'s care and living arrangements may also arise under the Guardianship of Infants Act. The welfare o...

Takeaways The Family Court has jurisdiction and powers to make orders on custody, care and control, access, maintenance, and division of matrimonial assets in family disputes. The issue of children\'s care and living arrangements may also arise under the Guardianship of Infants Act. The welfare of the child is the paramount consideration in making children-related orders. Custody refers to the decision-making power over the upbringing and education of the child. Care and control deals with day-to-day matters for the child, such as residence and daily routines. Access allows the non-custodial parent to have regular contact with the child. The court prefers joint custody or no custody orders over sole custody orders to promote cooperation between parents. The court may consider shared care and control if it is feasible and in the child\'s best interest. Access orders can be reasonable, liberal, scheduled, specific, or include overseas access and technology-based communication. Evidence in children\'s applications can be given through oral testimony, affidavits, third-party evidence, or child welfare reports. The welfare principle considers the general well-being of the child, including physical, moral, and emotional aspects. The court may make orders for financial support for the child in maintenance proceedings. Relocation of the child requires the written consent of the other parent or a court order. International child abduction cases are governed by the International Child Abduction Act and the Hague Convention. The court may appoint child representatives, utilize child welfare reports, or conduct judicial interviews to gather information in children\'s applications. Andrew Yip (00:00.758) In this lecture, we will consider issues relating to the care and living arrangements of children in family disputes. Andrew Yip (00:11.502) Now upon granting a divorce, nullity or judicial separation, under Chapter 4 of Part 10 of the Women\'s Charter, the Family Court has jurisdiction and powers to make orders on 1. Custody, care and control and access of children of the marriage. 2. Maintenance for the child. 3. Maintenance for the ex -wife or incapacitated ex -husband. And finally, division of matrimonial assets. Andrew Yip (00:50.572) Now, before I move into the children -related issues proper, I want to point out that apart from divorce proceedings, the issue of children\'s care and living arrangements may also arise under the Guardianship of Infants Act. In such event, instead of an application in the ancillary matters pursuant to divorce under the Women\'s Charter, parties will have to make an originating application under the Guardianship of Infants sections three and five. The situations in which a guardianship of Infants Act application may be suitable would be where they are involving unmarried parents, so there is no marriage for which there is no divorce. The parents are married, but there are no divorce proceedings, or they do not intend to take out divorce proceedings. The parents are married, They are not able to commence divorce proceedings because of the three -year statutory time bar under section 94 of the Women\'s Charter. And also, there may be a situation where it is case of a non -parent wishing to apply under the Guardianship of Infants Act for orders relating to the children. Well, there are limitations to the right of non -parents to apply, but this is outside the scope of this lecture at this point. Whether the application is taken out under the Guardianship of Infants Act or under Part 10 of the Women\'s Charter, the same principles apply when it comes to children -related orders. When parents break up, the whole household does break down and new care and living arrangements must be made for the children. The court normally would make orders of custody, care and control and excess. And in doing this, whether under Section 125 of the Women\'s Charter upon a divorce or under Section 3 of the Guardianship of Infants Act before a divorce or even during the marriage, Andrew Yip (02:59.97) The welfare of the child is the paramount consideration. Although under Section 125 of the Women\'s Charter, wishes of the parents and the child will be considered by the court, this is still subject to the Welfare Principle. We will examine the Welfare Principle later. Let\'s now first try and understand the terms, custody, control and access. Andrew Yip (03:30.126) What is custody? Section 126 of the Women\'s Charter provides that an order for custody may be made subject to such conditions as the court may think fit to impose, and subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the The custody order gives the parent authority and responsibility over the upbringing and education of the child. In other words, it gives the parent the decision -making power over important aspects of the child\'s life. The case of CX and CY deals with the issue of what custody precisely means. Andrew Yip (04:29.144) The law recognises parental responsibility under Section 46B of the Women\'s Charter, which provides that husband and wife are mutually bound to cooperate with each other in caring and providing for the children. While the parents\' marital relationship may have come to an end, the parent -child relationship carries on and the parents continue to owe and discharge responsibilities to their children. In line with this, the law prefers to make joint custody or no custody orders over sole custody orders, as it reminds the parents that the law expects both of them to cooperate to promote the child\'s interest. Although a joint and a no custody order is generally similar, there still are subtle differences. The Court of Appeal explained that where there is no actual dispute between the parents over any serious matter concerning the child, a no custody order would be appropriate. But where you have a situation where one parent is particularly uncooperative, and is inclined to exclude the other parent from the child\'s life, a joint custody order would be appropriate as it is a reminder from the court that he or she must consult the other parent on major decisions affecting the child\'s In CX and CY, the Court of Appeal rejected the approach that a sole custody order should be made if parties are acrimonious. Instead, the Court went on to say that a sole custody order should be made rarely and only in exceptional circumstances. For example, where a parent has been physically or sexually or emotionally abusive to the Andrew Yip (06:43.01) This decision has now been affirmed by the Court of Appeal again in the case of ZO and ZP and another appeal. Andrew Yip (06:59.15) What about care and control? What do we understand by the term care and control? Section 126, subsection 2a states that an order for care and control of a child may be made subject to conditions as the court may think fit to impose. And such an order for care and control may contain conditions as to where the child is to reside. It may also prohibit the person given care and control to take the child out of Singapore. Care and control, unlike custody, is the issue of dealing with day -to -day matters for the For example, where does the child reside? How does the child travel to school? What does the child eat for breakfast? These are day -to -day issues that the parent who has care and control has authority and responsibility. Andrew Yip (08:01.878) Again, look at the case of CX and CY, which deals with the distinction between what is custody and what is can control. Andrew Yip (08:15.439) Can control may be granted solely to one parent or shared between both parents. While the more common order is sole can control to one parent, the court may grant both parents shared can control if it is feasible and determined to best serve the child\'s welfare. The concept of shared can control is discussed in detail in TAT and TAU. Examples of cases have been set out in AQM, AHJ and AHK, AKF and AKG, and TSA and TSB. In a shared care and control arrangement, the child will effectively have two homes and two primary caregivers, though the split of time between the parents may not necessarily be equal. There is no legal presumption in favour of a shared can control order or a sole can control order. The appropriate order is dependent always on what will be in the child\'s welfare, which in turn depends on the specific facts of each case. Andrew Yip (09:43.478) A split care and control order. Now what is this? It refers to an order where the children are split between two parents. It suffices to say that such an order is extremely uncommon. And in fact, the practice is that where such an order is made, even by agreement of the parties, the parties would be required to state on the reasons as to why they have come to such an agreement. Do take a look at the case of AKF and AKM to understand this. Andrew Yip (10:22.926) Finally, there is the concept of access. Where one parent has been granted sole care and control, the parent who does not have care and control is then given access to the child. This is provided for under section 126 subsection And the right of access may be at such times and with such frequency as the court may consider reasonable. In other words, it allows the parent to have regular hours of contact with the child. For example, one day during the week, one day during the weekend, half of the school holidays, or overnight access, et Andrew Yip (11:14.678) Now, what are the type of access orders that can be made? So as I mentioned earlier, access is basically the opportunity that the non -care and control parent or the non -resident parent has to spend time with the child and the right of the child to spend time and to maintain an ongoing relationship with the parent who does not reside with them. So it can be reasonable or liberal. It can be scheduled or specific. It can be regular weekday access, weekend access, overnight access, say during school term time. It can also include overseas access if it\'s suitable. It can even rely on technology as a means of communication, like video calls, emails, telephone access, text messaging, et cetera. It can include holiday access and on special occasions like birthday and public holidays. Overseas access may also include directions for the provision of a travel itinerary, contact details and arrangements for the handing over and return of passports. Andrew Yip (12:29.996) In some cases, access may be ordered to be supervised. Look at the case of APE and APF, which discusses supervised and unsupervised access. Some of the factors that the court would take into account in deciding whether or not to order supervised access would be, for example, whether the parent having access has not been in contact with the child, whether there are concerns of adverse reactions from the child during access, or there have been previous incidents of violence and abuse. In such a case, the excess would require a third party to be present during the duration of excess. The third party could be the DSSA or Divorce Support Specialist Agency, where there can be supervised exchange or supervised excess. It can also be the parent having care and control supervising the excess. In some cases, this arrangement might be a temporary one and might change in time and be calibrated to one of unsupervised access. The court also has the ability to direct for a report to be provided and to schedule access reviews in order to review the access arrangements. Andrew Yip (13:49.73) Conditions may also be imposed on excess. In your reading of the judgments, you may find various types of conditions being imposed by the court. Here are just two examples. In the unreported decision of Ko Che Hao and Xia Po Sun, an order was made prohibiting the husband from taking any other person, other than persons closely related to him, to accompany him and a child for overseas holiday. There, the court found that the purpose of granting the husband liberal access was to enable the child to build a strong bond together with him. And the presence of a third party, namely a woman with whom he was having a relationship and was not married to, would not be beneficial to the bonding process. In another case, the case of Jia Lechmi, another unreported decision, the court made an order prohibiting the husband from visiting the children at their school or anywhere else outside access hours in order to prevent embarrassment to the children. Andrew Yip (15:02.978) The principles of access are set out in the case of BGMPF, which says that the purpose of access is to allow the parent without care and control to maintain regular contact with the children. The Court of Appeal in this case, in referring to CX and CY, noted that joint parenthood must be the starting point. so that both parents can continue to have a direct involvement in the child\'s life. And this equally applies to access orders. So as far as possible, the child should be allowed to interact with both parents so that despite the breakdown in the parent\'s relationship, the child is assured to the greatest extent possible of a normal family life with two parents. You can therefore imagine that it will require extreme circumstances before a parent is not granted any access to his or her Andrew Yip (16:08.974) Where there is an order for custody or care and control in place, it will be an offence for either parent to take the child out of Singapore for more than one month without the consent of the other parent or the court. The court also has the power under Section 131 of the Women\'s Charter to issue an injunction restraining a party from taking the child out of Singapore. So then what about parents who wish to relocate permanently out of Singapore with their child? This is especially relevant for foreign spouses who may wish to return to their home country following the breakdown of the marriage. In such instances, they will have to seek the written consent of the other parent or otherwise apply to court for an order allowing relocation of the child. We will not be examining this topic of relocation extensively for purposes of this course. You may, want to read up on the case of BNS and BNT, which involved an application for relocation. In that case, the Court of Appeal reiterated and emphasized that in relocation applications, like in all other applications involving the upbringing of children, it is the welfare principle that applies. It used to be strongly argued by parties that the caregivers\' wishes to relocate should be viewed favorably in the relocation application. The Court of Appeal in this case of BNS and BNT has rejected this argument and ruled that there is no legal presumption in favor of allowing relocation on the basis of the primary caregivers\' reasonable wishes to relocate. Rather, The caregiver\'s reasonable wishes is only one factor that may be considered in applying the welfare principle. On the other side, there is the view that the left behind parent\'s relationship must be given significant importance such that relocation should not be allowed. Again, the Court of Appeal clarified that this is also not a determinative factor. Ultimately, Andrew Yip (18:30.786) The decision involves an intensely fact -centric exercise based on what would be in the child\'s welfare. We just spoke about relocating the child from Singapore to another country. In some instances, we may encounter a foreign child being wrongfully removed to or retained in Singapore. In such a case, the relevant statute to look up would be the International Child Abduction Act. Again, we will not cover this topic in detail in this course, but it is nevertheless good to have a basic understanding of this area of law. What the International Child Abduction does is that it implements the Hague Convention on the Civil Aspects of International Child Abduction. The aims of the legislation is to secure prompt return of children who are wrongfully removed or retained in Singapore to their country of habitual residence. The Court\'s approach in such applications under the Act is therefore quite different from the other applications we have discussed so The court hearing an application under this Act is not so concerned with whether remaining in Singapore would be in the child\'s welfare. Rather, the primary issue in such applications for return of the child would be where the child\'s country of habitual residence is at the time of the wrongful removal or retention. If the answer is not Singapore, but the other country, then unless the abducting parent can rely on any of the limited defences available in the statute, the Singapore Court must make the return order. You are encouraged to read the cases of BDU and BDT and TUC and TUD to gain more understanding on this Andrew Yip (20:25.678) Now earlier I mentioned the welfare principle. Let\'s examine this a little further. The welfare principle is enshrined in section 3 of the Guardianship of Infants Act, which basically says 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 And, safe 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, nor shall the mother be deemed to have any claim superior to that of the Andrew Yip (21:18.348) In other words, the issue of the paramount welfare of the child is one that is gender neutral. This welfare principle is said to be the golden thread that runs through all proceedings directly affecting the interest of children. Andrew Yip (21:37.998) While Section 3 of the Guardianship with Divorce Act deals with general welfare of the child and applies to all proceedings relating to a child\'s upbringing, a similar provision can be found in the statutory provisions in the Women\'s Charter dealing specifically with divorce proceedings. This is Section 125 of the Women\'s Andrew Yip (22:05.208) What should we understand by the term welfare? In Tan Tzu Kyi and Chua Boy, the High Court held that the expression welfare is to be taken in its widest sense. It means the general well -being of the child, all aspects of his upbringing, religious, moral, as well as physical, and his happiness and comfort and security also go to make up his well -being. As such, the court held that a loving parent with a stable home is what is conducive to the attainment of such a well -being and is not to be measured purely in monetary terms. This interpretation has been cited by many subsequent cases, including in the court of appeal decision of Lim Chin -hwat Francis. Andrew Yip (23:01.164) What constitutes a child\'s welfare is broad, and the considerations are varied. You should read the cases in the reading list to better understand the considerations relating to a child\'s welfare. Some considerations could be the capacity of each parent to provide for the child\'s needs and to ensure the child\'s safety. For example, if one parent has had bad habits such as gambling or substance abuse that may impact his or her caregiving ability, or if a parent suffers from depression or other mental illness which prevents him or her from caring for the child, or simply the physical availability of the parent and the time that the parent spends bonding with the Some other relevant factors that you may wish to take note of and which are set out in this slide are that all things being equal, the maternal bond is given significance such that the mother is preferred if the child is young. And this is in the case of Sun Pei Hua and Wen Che Chai. The case of Wong Phila Mae also deals with the question of whether or not it would be beneficial to the children for there to be a preservation of status quo. In this regard, the court looks at what would be the continuity of living arrangements for the child. Now, this is to be contrasted with the status quo that was created by a unilateral act on the part of one party. The third point, siblings in general should not be separated. The case of Kim Choon specifically deals with this particular issue. Andrew Yip (25:05.43) Let\'s summarize the orders that can be made. Firstly, for custody, there could be a joint custody order, a sole custody order, or no order. For care and control, there could be a sole care and control order, a shared care and control order, and occasionally, the court may consider a split care and control order where the siblings reside with different parents. But as I said earlier, these orders are not common at all. In the area of access, there could be orders for supervised access, reasonable access, or liberal access, overnight access, holiday access, overseas access, as well as access on special occasions such as birthdays, Father\'s Day, Mother\'s Day, and even public holidays. Financial support is also an area in which the court will make orders with respect to children, but this will be covered under maintenance, which I will touch on after Now the judiciary has published a very helpful guide in the form of the Family Orders Guide. This is accessible on their website and you may wish to refer to this guide for some common orders used by the court. Andrew Yip (26:30.648) How is evidence to be given in cases involving children\'s applications? Generally speaking, it will be dependent on the party\'s evidence, whether by way of oral testimony or by affidavit, which is generally the case. It could be through the evidence of third parties. And there could also be evidence given by way of affidavits or testimony of the children themselves. But this is not common and will very much depend on the age of the child and how appropriate it would be for such evidence to be taken. We must also consider whether it would in fact be in the child\'s interest to involve him or her in giving direct evidence in this manner. Andrew Yip (27:20.302) It could be through expert evidence such as that of psychologists, psychiatrists, and medical professionals. However, we must take note of Rule 35 of the Family Justice Rules, which prohibits a party from causing a child to be examined or assessed by such mental health professionals for purposes of preparing expert evidence without the leave of court. So more commonly, the courts will utilise child welfare reports. There are a range of reports that the court may call for, and these are listed in the Singapore Court of Appeal case of WKM and WKN. The court may direct their counseling and psychological services, or CAPS for short, to prepare custody evaluation reports, access evaluation reports, or specific issue reports. Where the Child Protective Service, or CPS, is involved, the court may also call for child protection social reports prepared by the CPS. where there is ongoing supervised visitation or supervised exchange conducted by family service centres, the court may also obtain reports prepared by those centres. The court also has the power to appoint child representatives. They are practicing lawyers who have undergone the necessary training to become a child representative. They will interview the child and parties and make an objective assessment of what is in the child\'s best interest. The court may also refer the matter to a parenting coordination program, which is a family support program Andrew Yip (29:20.17) meant to facilitate the resolution of disagreement between parents about parenting matters. Finally, the court may also appoint court experts, usually mental health professionals, to submit a report. The court may also wish to interview the child directly. These are known as judicial interviews. The Singapore Court of Appeal case of WKM and WKN offers detailed guidance on the conduct of judicial interviews. You are encouraged to read this case for a better understanding of when judicial interviews should be conducted and This brings me to the end of this lecture on children and I will see you in the next lecture. \#separator:tab \#html:false The CX v CY case underscores the importance of {{c1::access}} by emphasizing the child\'s interaction with both parents post-separation for {{c2::stability}} and a sense of {{c3::normalcy}}. The general rule of thumb is for the court to order joint custody unless there are exceptional circumstances where: 1. One parent physicially, sexually, or emotionally {{c4::abuses the child}}; and 2. the relationship of the parties is such that cooperation is unsucessful even after the avenues of mediation and counselling have been explored, and the {{c4::lack of cooperation is harmful to the child. }} Shared control in family law involves a child living in two homes with primary caregivers, not necessarily {{c1::splitting time equally}} between parents. A {{c1::split care and control order}} may be considered in family law when dividing children between parents, but it is rarely implemented and requires {{c3::strong justification}}. When one parent is granted {{c1::sole care and control}} , the non-custodial parent is typically granted {{c2::access}} as specified in family law to ensure regular contact with the child. The {{c1::Split Care and Control Order}} in Family Law Cases involves {{c2::siblings}} residing with {{c3::different parents}}, although it is less common. What is access?\'Access\' in the context of parenting refers to the opportunity for the non-care and control/resident parent to spend time with the child and maintain a {{c1::relationship}}. Access rights in child custody cases are defined in {{c1::Section 126 WC (2B}}). In family law, {{c1::Access}} grants the parent without care and control regular contact with the child, regulated by the court in terms of {{c2::timing}} and {{c3::frequency}}. Supervised access may involve {{c1::a third-party presence}} throughout the access duration or {{c2::the parent with care and control}} overseeing the access. Examples of types of access that can be arranged for non-resident parents include {{c1::regular weekday}}, {{c2::weekend}}, {{c2::overnight}}, {{c2::overseas}}, {{c2::use of technology}}, {{c2::holiday}}, and {{c2::special occasion visits}}. Considerations involved in overseas access arrangements include providing {{c1::travel itineraries}}, contact details, arrangements for {{c2::passport handover}}, and {{c3::return}}. Supervised access Supervised access is typically implemented in {{c1::exceptional cases}} such as {{c2::serious welfare concerns}}, damaged parent-child relationships, or challenges with {{c3::unsupervised access}}. Factors that may lead to the necessity of supervised access include serious {{c1::welfare concerns}}, damaged {{c2::parent-child relationships}}, and challenges in implementing {{c3::unsupervised access effectively}}. In family law, {{c1::Joint custody}} entails shared decision-making, whereas {{c2::no custody}} indicates limited or no involvement in decision-making for one parent. s126 (2)WC - outlines conditions related to {{c1::residence and travel restrictions}} for care and control orders.an order for custody may (a) contain conditions as to the {{c2::place}} where the child is to reside, as to the manner of his or her education and as to the religion in which he or she is to be brought up; (b) provide for the child to be {{c2::temporarily}} in the care and control of some person other than the person given custody; (c) provide for the child to {{c2::visit}} a parent deprived of custody, or any member of the family of a parent who is dead or has been deprived of custody, at such times and for such periods as the court may consider reasonable; (d) give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the {{c3::right of access}} to the child at such times and with such frequency as the court may consider reasonable; or (e) prohibit the person given custody from taking the {{c3::child out of Singapore}}. In {{c1::Joint custody}}, parents have {{c1::shared responsibility}}, while in a {{c2::no custody order}} situation, there is {{c2::no serious dispute}} between parents. Juidical interviews and Expert EvidenceThe court may use {{c1::Child representatives}}, {{c1::child welfare reports}}, or {{c1::judicial interviews}} to gather information in children\'s applications. Courts may conduct {{c1::judicial interviews}} directly with the child, guided by the Singapore Court of Appeal case of WKM and WKN for {{c2::detailed procedures}}. {{c1::Psychologists}}, {{c1::psychiatrists}}, and {{c1::medical professionals}} are common sources of {{c2::Expert Evidence}} in Family Law Cases. However, the Court is not {{c3::bound to follow the advice of Expert Evidence (s130 WC)}} Access orders can vary from {{c1::reasonable}}, {{c2::liberal}}, {{c2::scheduled}}, {{c2::specific}}, to including {{c2::overseas access}} and {{c2::technology-based communication}}.