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CX v. CY (minor: custody and access)

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Court/Judicial body: Supreme Court of Singapore – Court of Appeal
Date: 19 July 2005 CRC
Provisions: Article 18: Parental responsibilities
Domestic provisions: Section 46(1) of the Women’s Charter (Cap 353, 1997 Rev Ed): Both parents to make equal co-operative efforts to care and provide for their children.

Case summary

Background: This was an appeal arising out of various orders of a judge in the High Court awarding joint custody of a four-year-old child to his parents, with care and control of the child granted to the mother, and limited overseas access granted to the father. The appeal was brought by the mother, who sought sole custody of the child.

Issue and resolution: Child custody and access. The Court of Appeal dismissed the mother’s appeal.

Court reasoning: In dismissing the mother’s appeal, the Court of Appeal agreed with the recognition by the judge below that joint custody can still be ordered even if there is an apprehension that the parties may be unable to agree. This is a move in the right direction in support of joint parenting. Recent cases have revealed an emerging trend where the courts are no longer inclined to assume that sole custody orders should be made simply because parents display animosity towards each other during litigation. In this day and age, the preferable position in the law of custody is to preserve the concept of joint parental responsibility in order to further the child’s welfare. Only in exceptional circumstances would sole custody be appropriate.

Excerpt citing CRC and other relevant human rights [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.

Notes: See CRIN’s summary of ZO v ZP and another appeal [2011] SGCA 25, a further judgment reinforcing the presumption for joint custody on the same principles (including Artice 18 of CRC).

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. 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: [2005] SGCA 37

Link to full judgement: