Court/Judicial body: Supreme Court of Singapore – Court of Appeal
Date: 25 May 2011 CRC
Provisions: Article 18: Parental responsibilities
Domestic provisions: Women’s Charter (Cap 353, 1997 Rev Ed), sections 46(1) (both parents to make equal co-operative efforts to care and provide for their children) and 125(2)(b) (the court shall have regard for the wishes of the child in custody matters)
Case summary
Background: The case concerned appeals by both the mother and father against orders made by the trial judge in respect of custody, care and control of the children of the marriage (aged 16, 13 and nine), maintenance and division of matrimonial assets. The judge had ordered that the mother be granted sole custody and that the father have reasonable access to the children, subject to certain conditions.
Issue and resolution: Child custody and access. The Court of Appeal allowed the appeals and reversed the order of the court below. The Court granted the mother and father joint custody of the children, and ordered that the views of the children be taken into account if there is an application to vary the orders relating to custody and access, provided that the children are mature enough to convey their views independently.
Court reasoning: In determining the appeals from both parents on the point of custody, the Court expressly endorsed the concept of joint or no custody and departed from a well-established local precedent which previously stated that joint custody should only be made where there is a reasonable prospect that the parties will cooperate. The Court stated that this is no longer appropriate in this day and age. As a general principle, joint or no custody orders should be made, with sole custody orders being an exception to the rule. This idea of joint parental responsibility is deeply rooted in family law jurisprudence. The court referred to Section 46(1) of the Women’s Charter and Article 18 of the CRC, which both support the principle of joint parental responsibility, and expect both parents to cooperate to promote the child’s best interests. Only in exceptional circumstances would sole custody orders be appropriate. Consistent with section 125(2)(b) of the Women’s Charter, if there is an application to vary the orders relating to custody in the future, then the views of the children are to be taken into account provided that they are mature enough to convey their views independently. There is no particular age when this may be appropriate as different children may mature sufficiently at different ages. In this case, there was no issue of consultation not being appropriate as the children were sixteen, thirteen and nine years of age.
Excerpt citing CRC and other relevant human rights [11] Further, as this court pertinently observed in CX v CY : “[26] This idea of joint parental responsibility is deeply rooted in our family law jurisprudence. Section 46(1) of the Women’s Charter (Cap 353, 1997 Rev Ed) (“the Charter”) exhorts both parents to make equal co-operative efforts to care and provide for their children. Article 18 of the United Nations Convention of the Rights of the Child 1989, to which Singapore is a signatory, also endorses the view that both parents have common responsibilities for the upbringing and development of their child. Similarly, jurisdictions like England and Australia have adopted approaches that impose on both parents the concept of life-long parental responsibility. With parliamentary intervention in these jurisdictions, the very concept of custody orders was abolished as it was acknowledged that it was in the interests of the child to have both parents involved in his life. There can be no doubt that the welfare of a child is best secured by letting him enjoy the love, care and support of both parents. The needs of a child do not change simply because his parents no longer live together. Thus, in any custody proceedings, it is crucial that the courts recognise and promote joint parenting so that both parents can continue to have a direct involvement in the child’s life.”
CRIN comments: CRIN believes this decision is consistent with the CRC. According to Article 3, in all actions concerning children, the best interests of the child shall be a primary consideration. Under Article 9(3), the child has the right to maintain personal relations and direct contact with both parents on a regular basis if separated from one or both, except if it is contrary to the child’s best interests. Under Article 12, a child who is capable of forming his or her own views has the right to express those views freely in all matters affecting them, including in judicial proceedings, and their views must be given due weight in accordance with the age and maturity of the child. The Court correctly took into account these considerations, as well as Article 18, which requires States to use their best efforts to ensure recognition of the principle that parents have joint responsibility for the upbringing and development of their child.
Citation: [2011] SGCA 25
Link to full judgement: http://www.asianlii.org/sg/cases/SGCA/2011/25.html