XBC v XBD

• Jurisdiction: Singapore
• Judge: Soh Kian Peng
• Judgment Date: 13 August 2024
• Neutral Citation: [2024] SGFC 63
• Court: Family Court (Singapore)
• Docket Number: Summons No SS 635 of 2024
• Hearing Date: 30 July 2024
• Citation: [2024] SGFC 63
• Year: 2024
• Plaintiff Counsel: The applicant in person and unrepresented
• Defendant Counsel: The respondent in person and unrepresented
• Published date: 25 August 2024

Magistrate Soh Kian Peng:Introduction

This was the Father’s application for a personal protection order (“PPO”) for himself and his two young sons, [A] and [B] who were aged two and four respectively. The respondent to this application is the Mother.

The basis of the Father’s application was that in a heated argument on 10 December 2023, the Mother had gone to the kitchen, taken a 15 cm long vegetable knife and threatened to stab him.

As for the Father’s application for a PPO for his two young sons, his basis for doing so was that the Mother had beaten his sons and also threatened them. The Father cited several instances of the Mother hitting both the children and threatening them.

I heard the trial on 30 July 2024. Both the Father, and the Mother, were self-represented. They both gave evidence. In addition, I heard evidence from two other witnesses:A domestic helper (“Ms S”). She worked as the family’s domestic helper. The Father had called her as a witness.The Mother called her aunt (“Ms G”) as a witness.

Upon conclusion of the trial, I reserved my judgment. This is my decision.

The Law

The following two requirements must be fulfilled before a court will grant a PPO:Family violence must have been committed, or there is a likelihood that family violence will be committed.The PPO must be necessary for the protection of the family member.

As to what constitutes family violence, that is set out in s 64 of the Women’s Charter 1961:

“family violence” means the commission of any of the following acts:(a)wilfully or knowingly placing, or attempting to place, a family member in fear of hurt;(b)causing hurt to a family member by such act which is known or ought to have been known would result in hurt;(c)wrongfully confining or restraining a family member against his or her will;(d)causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member,

but does not include any force lawfully used in self-defence, or by way of correction towards a child below 21 years of age;

It is clear from the manner that family violence has been defined in the Women’s Charter 1961, that there are two exceptions: a) force used in self-defence (the “Self-Defence Exception”) and b) force used by way of correction towards a child below 21 years of age (the “Correction Exception”).

Insofar as evidential matters are concerned, an applicant seeking a PPO need only establish the two requirements set out above (at [6]) on a balance of probabilities and not the more stringent criminal standard of proof of “beyond reasonable doubt”: UNQ v UNR [2020] SGHCF 21 at [22]–[28]; VYW v VYV [2023] SLR(FC) 1 at [25] (see Alwie Handoyo v Tjong Very Sumito[2013] 4 SLR 308 at [160] citing Lord Hoffmann in Secretary of State for the Home Department v Rehman (Consolidated Appeals)[2003] 1 AC 153 where he described the civil standard of proof as meaning “more likely than not”; see also Public Prosecutor v GCK[2020] 1 SLR 486 at [134] – [135] where the Court of Appeal conceptualised the principle of proof beyond a reasonable doubt).

There are two ways in which a respondent to an application for a PPO can convince the court that a PPO should not be granted (see TEK v TEJ[2015] SGFC 89 at [13]). The first is to either show that no family violence that had been committed, or that it is not necessary for the court to grant a PPO. Alternatively, the second option available to a respondent is to invoke either the Self-Defence or the Correction Exception as set out in s 64 of the Women’s Charter 1961.

In this vein, insofar as the Self-Defence Exception is concerned, the Women’s Chater 1961 does not define what constitutes “force lawfully used in self-defence”. That being said, the court in TEK v TEJ[2015] SGFC 89 appeared to take the view (at [14] – [15]), that s 96 of the Penal Code concerning the right of private defence was instructive:14“Force lawfully used in self-defence” is not defined in the Women’s Charter, but as submitted by the Respondent Counsel[note: 3], section 96 of the Penal Code regarding the right of private defence, is instructive. In the case of Tan Chor Jin v PP[2008] 4 SLR 306, the Court of Appeal used the explanation given in Ratanlal & Dhirajlal’s Law of Crimes: A Commentary on the Indian Penal Code 1860 vol 1 (CJ Thakker & M C Thakker eds) (Bharat Law House, 26th Ed, 2007), to explain private defence:

[…] The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self-creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonable apprehended and should not exceed its legitimate purpose. […] The right of private defence is purely preventive and not punitive or retributive. The right of self-defence is not a right to take revenge nor is it a right of reprisal. It does not permit retaliation.” [note: 4]

15Whether it is “force lawfully used in self-defence” therefore depends on whether the force that was used was proportionate to the threat made and/or harm caused; and whether that force was appropriately used to meet the said threat and/or harm (ie. the force was not an act of retaliation).

I would add that in assessing whether the force used was proportionate and whether that force was appropriately used, one must also bear in mind the fact that PPO applications taken out under the Women’s Charter 1961 involve incidents arising in the domestic context (see s 64 of the Women’s Charter 1961 which sets out the persons who may apply for a PPO). The close relationship between the applicant and respondent in applications for a PPO under the Women’s Charter would accordingly colour the court’s assessment of whether the force used was proportionate, and whether that force was appropriately used.

As for the Correction Exception, its history and rationale was usefully set out in VYB v VYA[2021] SGFC 121 at [10] – [15]:

The Correction Exception as a “Thick Grey Line”

10The 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).11Despite 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”

12Any 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]).13In 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.

14By 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”).(a)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...