VYB v VYA

• Jurisdiction: Singapore
• Judge: Patrick Tay Wei Sheng
• Judgment Date: 24 November 2021
• Neutral Citation: [2021] SGFC 121
• Court: Family Court (Singapore)
• Docket Number: SS No 480 of 2021
• Published date: 27 November 2021
• Year: 2021
• Hearing Date: 10 June 2021,24 August 2021
• Plaintiff Counsel: The Complainant in Person
• Defendant Counsel: Tan Siew Kim (Sterling Law Corporation)
• Citation: [2021] SGFC 121

Magistrate Patrick Tay Wei Sheng:

The parties are the adoptive parents of a 6-year-old boy (the “child”). The father sought a Personal Protection Order (“PPO”) against the mother on behalf of the child. He alleged that the mother had on multiple occasions hit the child repeatedly with canes or clothes hangers. The mother replied that she had simply been disciplining the child to teach him to relieve himself in the toilet.

I found that the actions of the mother went beyond the reasonable correction of the child. The mother also lacked insight into her actions. I thus granted a PPO to protect the child. But I hoped that the mother could, with professional support, gain an understanding of her actions and improve her interactions with the child. I thus limited the duration of the PPO to one year and directed the parties to undergo counselling with the Ministry of Social and Family Development.

Dissatisfied with my decision, the mother has filed an appeal. I now provide the grounds of my decision.

Background

The parties were married in 2006 and remain married. They adopted the child in 2015. At the time of the adoption, the child was just under one year of age.

The child suffers from a medical condition that affects his control of his bladder and bowels. On 29 March 2021, Dr [B] at Mt Alvernia Hospital reported that the child sometimes wets and soils himself. Dr [B] added that the child should nevertheless, with treatment, continue to function well. I set out the medial report:¹

[The child] saw me today.

Mother reports that sometimes he wets himself and soils himself in school. However on some days he is able to be fully toilet-trained. He is improving.

Physical examination is normal.

I have advised treatment technique for child. He should be able to continue to function well in school.

The material events that form the subject matter of these proceedings occurred between 13 March 2020 and 16 January 2021. The parties agree that 27 audio recordings of these events that were made contemporaneously by the father (the “27 Recordings”) capture these events. At the time of these events, the child was five or six years of age.

Parties’ cases

The father claims that the mother had hit the child on multiple occasions since 13 March 2020 and had done so with increasing frequency since August 2020. According to him, these occasions were “almost daily, sometimes even a few times a day”,² and typically followed the child soiling his clothes. He adds that there were, besides the occasions captured in the 27 Recordings, other occasions that he had not recorded. He highlights the events of 16 January 2021, when the mother had allegedly hit the child on five different occasions across that day.

The mother accepts that she had hit the child on the occasions captured in the 27 Recordings even as she contends that she had hit the child on only one occasion (and not five) on 16 January 2021. But she denies committing family violence at any time. She states that she had simply administered “light caning as a form of parental guidance and correction when the child pees in his pants despite being capable of walking to the toilet to do so.”³ She adds that the child has been assessed to be normal.⁴

Correction of children and family violence

The definition of “family violence” is found in s 64 of the Women’s Charter (Cap 353, 2009 Rev Ed) (the “Charter”). It includes “wilfully or knowingly placing, or attempting to place, a family member in fear of hurt” and “causing hurt to a family member by such act which is known or ought to have been known would result in hurt” (s 64(a) and (b) of the Charter). But expressly excluded from “family violence” is force “lawfully used … by way of correction towards a child below 21 years of age” (the “Correction Exception”).

The Correction Exception as a “Thick Grey Line”

The Correction Exception has its roots in the common law, which has long supported the authority of a parent to inflict reasonable discipline to correct misbehaviour by a child. This includes some degree of physical or corporal punishment. The limit on this authority to discipline is located in the Children and Young Persons Act (Cap 38, 2001 Rev Ed) (the “CYPA”), which prohibits an adult from ill-treating a child (TCV (On behalf of Child, A) v TCU[2015] SGFC 3 (“TCV”) at [13] citing Leong Wai Kum, Elements of Family Law in Singapore (LexisNexis, 2018, 3rd Ed) (“Elements of Family Law”) at paragraph 5.029).

Despite growing suggestion internationally that physical punishment produces detrimental consequences in children, as the Family Court noted in TCV at [16], the Correction Exception remains a part of the law in Singapore. It operates as a “thick grey line” that accommodates different parenting approaches affected by culture, personality, or personal experience. Parenting behaviour that falls within this “grey” area “may not be the best parenting practices but neither does such behaviour necessarily justify state intervention”. But beyond these limits, the behaviour even if consistent with variations in culture, personality, or personal experience will be abuse or ill-treatment and attract state intervention (Debbie Ong Siew Ling, “The Quest for Optimal State Intervention in Parenting Children: Navigating within the Thick Grey Line” (2011) SJLS 61 at 80).

The boundaries of the “Thick Grey Line”

Any lawful correction of a child “must be to teach discipline with a measure of good sense and must always be exercised for the benefit of the child.” If it had been prompted by a need of the parent to impose his power over the child rather than for the benefit of the child, the Correction Exception may not hold. The conduct would then be family violence (TCV at [13] citing Elements of Family Law at paragraph 5.030). The correction must also have been performed in a “responsible and loving” manner and have not descended into abuse that caused “unnecessary pain and suffering” (TCV at [14]). It must further have been “delivered in a judicious and responsible manner for the child’s benefit” (TCV at [70]).

In R v Hopeley [1860] EW Misc J73 (“Hopeley”), Cockburn CJ examined the contents of the “moderate and reasonable” physical punishment of a child as follows:

By the law of England, a parent … may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be immoderate and excessive in its nature or degree, or if it be protracted beyond the child's powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to the law, and if death ensues it will be manslaughter.

By reference to Hopeley, Professor Chan Wing Cheong helpfully identified several related factors that shed light on the reasonableness of the physical punishment by a parent of a child (Chan Wing Cheong, “Corporal Punishment of Children by Parents: Is it Discipline or Violence and Abuse?” (2018) 30 SAcLJ 545 (“Corporal Punishment of Children”). First, the reasons for the punishment. To fall within the Correction Exception, the force must have been used for the correction of misbehaviour for the benefit of the child. Force used for the “gratification of passion or rage”, in the words of Hopeley, will not qualify. Such was the case in TCV, where the respondent-mother had, following her dispute with her own father, lashed out at the child. That force was used other than for the correction of misbehaviour. It was therefore family violence.Second, the nature of the punishment. As Professor Chan suggests, types of force like punching may be unacceptable per se, presumably because they are beyond what any reasonable person would consider to be suitable correction. Other types of force like caning fall to be assessed against the other circumstances of the case. The decision in BHR v Child Protector [2013] SGJC 2, which involved the punching and caning of a child, is instructive. The Juvenile Court distinguished the punching from the caning, and found that the punching was, without more, “beyond the act of disciplining”. But it assessed the caning based on the “number and extent” of the bruises caused. Similarly, in BJJ v Child Protector [2013] SGJC 3, the Juvenile Court held that the acts of kicking the head and body, hitting the head with a bunch of keys, and hitting the face and causing a nosebleed automatically went “beyond reasonable disciplining”.Third, the age and personal characteristics of the child. These factors take on especial significance in the case of young children, given their limited maturity and ability to endure physical punishment. As Professor Chan observes in Corporal Punishment of Children, for any correction to benefit a child, it must be “commensurate with the age and extent of understanding of the child” (citing Public Prosecutor v AFR[2011] 3 SLR 833 at [33]).A harsh regime especially inappropriate for young children, “who should be treated with more love and tender care” (citing Public Prosecutor v AQF [2011] SGDC 75 at [29]) and whose correction, in the words of Hopeley, should not be “protracted beyond the child’s power of endurance”. These statements accord with the observations in TCV at [14] that any punishment must not cause “unnecessary pain and suffering” to the child.

Nevertheless, the law does not intervene through the issuance of a PPO in every instance of parenting that exceeds the Correction Exception. Even if the parenting discloses family violence, pursuant to s 65 of the Charter, a PPO will not be granted unless it is necessary for the protection of the...