UNB v Child Protector

• Jurisdiction: Singapore
• Judge: Debbie Ong J
• Judgment Date: 26 July 2018
• Neutral Citation: [2018] SGHCF 10
• Plaintiff Counsel: The appellant in person
• Docket Number: HCF/Youth Court Appeal No 2 of 2017
• Date: 26 July 2018
• Hearing Date: 06 March 2018
• Subject Matter: Care and protection orders,Family Justice Courts,Family law,Threshold for state intervention,Relationship between Youth Court and Family Court
• Year: 2018
• Defendant Counsel: Faith Boey (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Citation: [2018] SGHCF 10
• Published date: 03 August 2018

Debbie Ong J: Introduction

The parenting of children is one of the most central family obligations regulated by family law in Singapore. Joint parental responsibility is placed on both parents during their marriage and persists even after the parents’ married relationship has ended in a divorce: see s 46, Women’s Charter (Cap 353, 2009 Rev Ed) (“the Charter”). In general, in matters relating to the parent and child relationship, family life is kept within the private sphere unless there are legitimate reasons for the state to intervene, such as where parents have plainly failed in their fundamental responsibilities to the child. The Charter regulates the private care of children while another statute, the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (“CYPA”) regulates the public care of children. In both spheres, the welfare of the child is the paramount consideration. The present case raises the important question of how to achieve the optimal balance between these two spheres of legal regulation. In particular, when should the state intervene under ss 4(d)(i) and 4(g) of the CYPA, where there are allegations of “emotional injury”? How should the role of the state be understood in the light of the Family Court’s powers to manage parent-child relationships in private family proceedings?

In these written grounds, I shall refer to the appellant as the “Mother”, her former husband as the “Father”, and to both collectively as the “Parents”. The Parents have two children (“the Children”), who were 14 and 10 at the time of this appeal.

In the proceedings below, the Child Protective Service (“CPS”) of the Ministry of Social and Family Development applied for care and protection orders for the Children under s 49 of the CYPA. The Mother resisted the application. The Father did not contest the application, but took the view that state intervention was appropriate.

The District Judge (“DJ”) agreed with CPS, holding that the Children were suffering “emotional injury” under ss 4(d)(i) and 4(g) of the CYPA. As a result, the DJ made several orders (“the Orders”). The court ordered that the Children were to be placed under the supervision of an approved welfare officer, which in this case is CPS. Furthermore, the Children were to reside with the Father, while their access with the Mother would be subject to the approval and review of CPS. The Parents were also placed under a bond to exercise proper care and guardianship. Dissatisfied with these Orders, the Mother filed the present appeal.

After considering the parties’ submissions and evidence, I allowed the appeal and set aside the Orders. I also informed the parties that I would issue fuller grounds of my decision in due course.

Procedural history

The Parents married on 8 April 2000. The Mother commenced divorce proceedings against the Father on 24 December 2012, and the Interim Judgment of Divorce was granted on 8 July 2013. The Parents then filed various applications involving the Children’s custody, care and control and access.

On 28 October 2013, District Judge Lim Choi Ming granted the Parents joint custody of the Children, with care and control to the Mother, and access (including overnight and public holiday access) to the Father. Notably, this order was a “consent order”, granted on the basis of both Parents’ consent to the terms.

The Children were first referred to CPS in August 2014, after allegations that the Mother had ill-treated them. However, CPS was not able to substantiate those allegations, and no further action was taken in respect of them. Around the same time, the Children began to live with the Father, and the Children’s regular contact with the Mother ceased.

Thereafter, on 21 April 2015, District Judge Sowaran Singh (“DJ Singh”), in making orders for the ancillary matters of the divorce, granted joint custody of the Children to the Parents, with no orders on care and control, access and maintenance until the Parents and the Children have undergone counselling at TRANS SAFE Centre (“TRANS”). Meanwhile, the Father’s applications for personal protection orders brought on behalf of the Children against the Mother (SS 1992/2014) and their maternal uncle (SS 1993/2014) were dismissed.

The Mother subsequently applied for sole custody, care and control of the Children with supervised access to the Father. On 2 February 2016, DJ Singh granted the Parents joint custody of the Children, with interim care and control to the Father, and access to the Mother by way of phone calls and Skype calls for half an hour, two days a week, for six months. This was subject to a review by the court on 2 August 2016.

At the review on 2 August, DJ Singh maintained the order for joint custody. He further granted the Father care and control, and granted the Mother Skype access for half an hour, two days a week. These orders would persist until the last day of October 2016. With effect from 4 November 2016, however, the Parents were to have joint care and control of the Children, with the Mother having overnight access, school holiday access and public holiday access to the Children.

On 4 November 2016, when the Children were scheduled to have their overnight access with their Mother, they refused to leave the Father’s car. As a result, the Father admitted them to KK Women’s and Children’s Hospital. The Children were noted to be displaying post-traumatic stress symptoms. On 6 December 2016, they were referred to CPS.

On 27 December 2016, CPS applied to the Youth Court for care and protection orders. Interim orders for the Children were made by the Youth Court to place them under the supervision of an approved welfare officer, whilst they would reside with the Father. However, the Children’s access with the Mother and/or significant others were to be subjected to the approval and review of the approved welfare officer. Subsequently, the DJ heard CPS’ application for care and protection orders for the Children on 11 September 2017. Having found that the threshold of state intervention set out in s 4 of the CYPA was met, the DJ made the Orders summarised at [4] above. As stated above, the Mother appealed against these Orders.

Decision below

The DJ considered that there were two broad issues for determination. The first was whether the Children were in need of care and protection under ss 4(d)(i) and 4(g), read with s 5(2)(b)(ii) of the CYPA, which are as follows:

When child or young person in need of care or protection

4. For the purposes of this Act, a child or young person is in need of care or protection if —

…

(d) the child or young person has been, is being or is at risk of being ill-treated — (i) by his parent or guardian; …

…

(g) there is such a serious and persistent conflict between the child or young person and his parent or guardian, or between his parents or guardians, that family relationships are seriously disrupted, thereby causing the child or young person emotional injury;

…

Ill-treatment of child or young person

5.—…

(2) For the purposes of this Act, a person ill-treats a child or young person if that person, being a person who has the custody, charge or care of the child or young person — (a) subjects the child or young person to physical or sexual abuse; (b) wilfully or unreasonably does, or causes the child or young person to do, any act which endangers or is likely to endanger the safety of the child or young person or which causes or is likely to cause the child or young person — (i) any unnecessary physical pain, suffering or injury; (ii) any emotional injury; or (iii) any injury to his health or development; …

[emphasis added in italics]

In relation to s 4(g), the DJ found that there was serious and persistent conflict between the Children and the Mother, and that their relationship was seriously disrupted, thereby causing the Children emotional injury. The DJ premised this finding on the reports prepared by various professionals which were tendered by CPS, and the Mother’s implicit acknowledgment in her affidavit that there were serious issues between her and the Children. As for s 4(d)(i) of the CYPA, the DJ found that the children were at risk of being ill-treated by the Mother. The DJ was of the view that there was a real risk that the Mother may, in her desire to see the Children, attempt to enforce access with them without adequately prioritising their emotional well-being, and thereby cause further emotional injury to them. The DJ took into account expert reports which state that the Children were fearful of the Mother and refused to see her, and that further access with the Mother could deepen the trauma experienced by the Children.

The second issue which the DJ had to determine was what care and protection orders would be in the best interests and welfare of the Children. In this regard, he found that a neutral placement for the Children would be less helpful in supporting them in their “recovery process” as compared to “a familiar and safe environment”. The DJ noted that the Children were not entirely free from the influence of the Father in terms of how they viewed and responded to the Mother. However, the DJ accepted that CPS was guarding against any such potential negative influence from the Father by monitoring him and devising a safety plan with him. The DJ thus held that at the time of his decision, it was in the Children’s best interests to reside with the Father, instead of with the Mother or at a neutral location. The DJ also held that it was necessary to order, at least temporarily, that access between the Mother and the Children be subject to the approval and review of the approved welfare officer.

Finally, the DJ held that it would be in the Children’s best interests for all parties to take active steps to facilitate and restore their contact and...