PROHIBITING PARENTAL PHYSICAL DISCIPLINE OF CHILD IN SINGAPORE

• Citation: (2014) 26 SAcLJ 499
• Date: 01 December 2014
• Author: LEONG Wai Kum LLM (Harvard), LLB (Malaya); Advocate and Solicitor (Malaya); Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2014

It is challenging for the law to regulate parenting in an optimal manner. The relationships between the child and each of her parents are exceptionally delicate. The relationships last until death and are dynamic in their balance of power as the child grows while the parents age. Legal intervention should be thoughtful and judicious. This article traces the law in Singapore to reveal a remarkable comparative strength in its early embrace of the concept of parental responsibility. It proposes an incremental development in prohibiting parental physical discipline even as “correction” of a child. The discussion pits the universal tradition where moderate physical discipline is an acceptable part of parenting with the modern rejection of the infliction of violence by anyone, including a parent, upon a child even when it is moderate and whether intended as “correction”.

I. Introduction

1 This article traces the law in Singapore regulating parenting to reveal its comparative strength in having long embraced the moral principle of parental responsibility and suggests an incremental development in its detailed regulation. It discusses:

(a) how the law developed from the common law to the enactment of the core principle of parental responsibility and then to the commitment to the United Nations Convention on the Rights of the Child (“UNCRC”);1

(b) how well the law protects the child in her becoming an adult;

(c) how well the law protects the child as a person in her own right;

(d) why parental physical discipline of the child should be prohibited; and

(e) why achieving this by a softer style of legislative draftsmanship is recommended.

II. From common law to Convention on the Rights of the Child

A. Common law and principles of equity

2 Singapore received the common law regulating family relationships, including that between the parents and child, by way of the judicial interpretation of the directive in the Second Charter of Justice 1826. The Second Charter directed the Court of Judicature of Prince of Wales Island to “give and pass Judgment and Sentence according to Justice and Right”. This was judicially interpreted as “plainly a direction to decide according to the law of England”.2

3 The common law and, even, equity in its early formulation had little interest in regulating parenting.3 United Kingdom statutory enactments building upon more egalitarian equitable principles that improved protection of the child were re-enacted in the Straits Settlements.4 It was not until the Women's Charter5 was enacted as the

State of Singapore Ordinance,6 however, that a quantum leap was made.

B. Women's Charter embraces “parental responsibility”

4 The Women's Charter has, since its enactment, contained the provision that is now s 46(1):7

Upon the solemnization of marriage, the husband and the wife shall be mutually bound to co-operate with each other … in caring and providing for the children.

The author describes this provision as incorporating the principle of “parental responsibility” to the core of legal regulation of parenting.8“Parental responsibility” is a “powerful expression of moral commitment”.9 It provides a moral basis that unifies legal regulation of parenting. The principle exhorts all parents10 to view their relationship with their child from the perspective of themselves owing their child the full range of responsibilities in caring and providing for her. While the provision does not provide for direct enforcement of “parental responsibility”, this does not detract from its value. Selected facets of parental responsibility, such as providing reasonable maintenance11 and devising the living arrangements of the child,12 are directly enforceable while other facets must remain as a general principle to cajole parents towards ideal parenting.

5 The author further observes that the exhortation to parents by s 46(1) of the Women's Charter gains practical power13 by s 3 of the Guardianship of Infants Act:14

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

This direction to a court, when deciding an issue relating to the upbringing of a child within any proceedings to consider the “welfare of the infant as the first and paramount consideration” is “ubiquitous”.15

6 It is suggested that the effect of s 3 upon parenting is thus:16

This directive … has the potential of subjecting every instance of parental conduct towards the child by this standard. An exertion of authority by the parent must necessarily be consonant with the parent's pursuit of the welfare of the child.

In combination, s 46(1) of the Women's Charter on the core principle of “parental responsibility” and s 3 of the Guardianship of Infants Act directing the court to achieve the welfare of the child as the first and paramount consideration each time it resolves an issue related to the upbringing of a child set the law in Singapore regulating parenting upon a sound moral foundation that can be enforced by the court.

C. Embracing “parental responsibility” in 1961 is admirably early lead

7 The author has observed:17

From the 1960s, the law in Singapore expects married, unmarried, separated or divorced parents (a) to view their child as someone towards whom they owe responsibility, (b) the responsibility should be discharged co-operatively with the other parent and/or guardian and (c) for the purpose of achieving the welfare of the child. By an extended reading, there may be similar expectations of people hoping

to become the child's adoptive parents or people voluntarily becoming guardians of a child.

8 On a comparative basis, the law in Singapore is distinguished in having embraced “parental responsibility” before most countries, including Western countries. Regulating parenting through the concept of parental responsibility towards the child was sponsored by the UNCRC18 that was open for ratification only in 1989. It was observed that within Europe, it was the, then, West Germany that may have embraced “parental responsibility” first and this only in 1970 while, in the UK, the idea slowly crept into the law and was formally embraced only through its enactment of the English Children Act 1989.19

9 Singapore ratified the UNCRC on 4 November 1995 to commit to the slew of principles on ideal legal treatment of a child and regulation of parenting although her ratification was with some reservations. The success of the UNCRC changed the legal treatment of a child and the regulation of parenting across the globe from 1989 onwards. The rest of this article examines the extent to which the law in Singapore is consistent with the principles within the UNCRC and suggests one timely incremental change.

III. Singapore protects a child adequately in her “becoming” an adult

A. Singapore law protects a child's basic interests

10 Given Singapore's head start in embracing parental responsibility, it comes as no surprise that the current law in Singapore is fairly well developed in protecting a child's interests.

11 This is true of protecting a child's basic interests.20 Chapter XVI of the Penal Code21 protects any person, including a child, from “[o]ffences affecting life”,22 within which chapter a mature foetus capable of living on its own without elaborate machine-based life

support is protected from offences of “[c]ausing miscarriage; injuries to unborn children; exposure of infants; and concealment of birth”. Sex with a young girl is prohibited by the offence of “rape” committed “with or without her consent, when she is under 14 years of age”23 as supplemented by “[o]ffences against women and girls” within the Women's Charter.24

12 The Children and Young Persons Act25 punishes all manner of “ill-treatment” of a child or young person whether by parent or stranger. In a remarkably wide s 5, it defines “ill-treatment” as including:

… any act … which causes or is likely to cause the child or young person —

1. (i) any unnecessary physical pain, suffering or injury;

2. (ii) any emotional injury; or

3. (iii) any injury to his health or development …

13 The breadth of public care of a child that follows judicious intervention into parenting has been well noted before.26 There is a scheme of juvenile justice that places the “welfare and best interests of the child and young person” above other considerations.27

14 Despite this breadth of protection, however, a parent who inflicts moderate physical punishment upon her child as “correction” is not likely to fall foul of the law as such parental conduct is specifically excepted from the definition of “family violence”. Part VII of the Women's Charter on “Protection of family” supplements the criminal law in allowing the courts to make a “protection order” where an act of “family violence” is committed and there is need for such protection order. In providing an appropriately broad definition of “family violence” its s 64, unfortunately, excepts parental physical discipline. It provides that family violence:

means the commission of … acts [including] causing hurt to a family member … but does not include any force lawfully used … by way of correction towards a child below 21 years of age.

This shields moderate parental physical discipline of a child from being “family violence” so that no protection order can be made.

15 The rational exposition of the law will attempt to read the remarkably wide definition of “ill-treatment” of a child or young person under the Children and Young Persons Act consistently with the exception of “any force lawfully used … by way of correction towards a child below 21 years of age” from “family violence” under the Women's Charter. An attempt at consistent reading may suggest that moderate parental physical discipline intended as “correction” of the child is not “ill-treatment”...