TBC v TBD

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu SJ
• Judgment Date: 13 May 2015
• Neutral Citation: [2015] SGHC 130
• Plaintiff Counsel: Koh Tien Hua (Harry Elias Partnership LLP)
• Docket Number: District Court Appeal No 48 of 2013
• Date: 13 May 2015
• Hearing Date: 10 February 2015
• Subject Matter: Legitimacy,Family Law,Effects of illegitimacy,Maintenance of child,Child
• Published date: 22 May 2015
• Citation: [2015] SGHC 130
• Defendant Counsel: Ang Sin Teck and Ms Leong Pek Gan (Ching Ching, Pek Gan & Partners)
• Court: High Court (Singapore)
• Year: 2015

Kan Ting Chiu SJ: Background

This is an appeal from the decision of a District Judge on an application by the Complainant that the Respondent pays maintenance for the maintenance of their son (“the child”) who was born out of wedlock. The District Judge allowed the application, and the Respondent appealed against her ruling that he was liable to maintain the child, as well as the amount of maintenance he was ordered to pay. (To avoid confusion, the parties will be referred to in their capacities before the District Judge). I upheld the District Judge’s decision that the Respondent is under a duty to support the child, but reduced the amount of maintenance that he is to pay, and hereby explain my decision.

The two issues, namely liability to maintain and the amount of maintenance the Respondent should pay, will be dealt with separately.

Liability to maintain

This is a question of law. The issue is whether the father of an illegitimate child has a duty under s 68 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Women’s Charter”) to maintain the child. Section 68 reads:

Duty of parents to maintain children 68. Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody of the custody of any other person, and whether they are legitimate or illegitimate, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.

The District Judge found that:

The words are clear and unambiguous. There was no need for the Respondent to resort to other statutes of common law to purposively interpret Section 68 of the Women’s Charter, when the literal meaning of its words clearly informs us of Parliament’s intention.¹

The Respondent did not share that view, and put up the case that he is not the child’s parent because “the parent of an illegitimate child is the mother and not the putative father”² and “the position in common law is that a parent of an illegitimate child is the mother as the putative father has no rights or say over the child”³ he is therefore free of any duty to maintain him (but he contradicted that during the appeal when he submitted that the District Judge’s decision should be overturned and a nominal maintenance be awarded instead⁴). Judicial support was produced in the form of Denning J’s pronouncement in Re M, An Infant [1955] 2 QB 479 that “in my opinion the word ‘parent’ in an Act of Parliament does not include the father of an illegitimate child unless the context otherwise requires”.

Reference was also made to the following statutory provisions: part 11 of the Second Schedule of the Women’s Charter which provides that where consents are required to the marriage of an illegitimate minor, the consent is required from the mother, if she is alive, or from the guardian if she is dead; paragraph 15 of the 3rd Schedule of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) which relates to citizenship which states that references to an illegitimate person’s parent shall be construed to refer to his mother; section 3 of the Adoption of Children Act (Cap 4, 2012 Rev Ed) states that a parent of an illegitimate infant does not include the natural father; and section 10 of the Legitimacy Act (Cap 162, 1985 Rev Ed) which provides for an illegitimate child and the mother of an illegitimate child to succeed on the intestacy of the other.

The process by which the submission was developed was flawed. The starting point for deciding whether s 68 imposes a duty on a father to support his illegitimate child must be the provision itself. To paraphrase the provision, a parent has a duty to maintain his or her children, whether they are legitimate or illegitimate. On a clear and fair reading of the provision, that duty is imposed on male and female parents of legitimate and illegitimate children. The provision clearly contemplates a man being regarded as a parent of an illegitimate child. When the Respondent draws support from Denning J for the proposition that a “parent” in a statute does not include the father of an illegitimate child, he should also take heed of the caveat that the proposition stands unless the context otherwise requires.

We can obtain confirmation that illegitimate children are intended under our laws to be entitled to maintenance from their fathers by looking into the statutory history of our law relating to the maintenance of illegitimate children. The duty was first embodied in s 45(II) of the Straits Settlements Summary Jurisdiction Ordinance (SS Ord No XIII of 1872) which provides:

If any person neglects or refuses to maintain his illegitimate child unable to maintain itself, it shall be lawful for the Court of Quarter Sessions, or for a Magistrate, on due proof thereof, to order such person to make such monthly allowance not exceeding ten dollars, as to the Court or Magistrate may seem reasonable.

When the Women’s Charter was enacted in 1961 that duty was preserved in s 62(2):

If any person neglects or refuses to maintain his legitimate or illegitimate child unable to maintain itself, a District Court or Magistrate’s Court on due proof thereof may order such person to make a monthly allowance for the maintenance of such child in proportion to his means as to the court seems reasonable.

It is clear from a reading of these two provisions that a person who is the father of an illegitimate child has a duty to maintain it. That duty is now laid down in s 68. While “person” has been changed to “parent”, the duty remains; the parent of an illegitimate child has the duty to maintain it. The Court of Appeal has affirmed in AAG v Estate of AAH, deceased [2010] 1 SLR 769 at [28] that a legal duty to maintain an illegitimate child is imposed on the natural parents by s 68.

The Respondent is correct in his submission that the legitimacy or illegitimacy of a child can lead to different legal consequences, as the law takes legitimacy/illegitimacy into account when it deals with the consent for a minor to marry, acquisition of citizenship and intestate inheritance. That is reasonable and unexceptional because these are quite different matters in which different policy considerations come into play. Section 68 must be read in its context and construed on its own, and the Respondent has failed to do that.

The amount of maintenance the Respondent should pay

As we have established, section 68 imposes a duty on a man to maintain his illegitimate children. The quantification of the maintenance to be paid is dealt with by s 69(4) which reads:

The court, when ordering maintenance for a wife or child under this section, shall have regard to all the circumstances of the case including the following matters: (a) the financial needs of the wife or child; (b) the income, earning capacity (if any), property and other financial resources of the wife or child; (c) any physical or mental disability of the wife or child; (d) the age of each party to the marriage and the duration of the marriage; (e) the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family;...