A. Expanded Scope of “Ill-treatment” in the CYPA:
Intention of Parliament
In Singapore, the court may make care orders if it is of the view that a child is in need
of care and protection. Section 4 of the CYPA provides that a child or young person
is in need of care and protection if, inter alia,20 he or she has been, is being, or is at risk of being “ill-treated”. “Ill-treatment” is not defined in section 4 but is defined
in section 5(2). Section 5(1) provides that a person who has the custody, charge
or care of a child or young person shall be guilty of an offence if he ill-treats the
child or young person or causes, procures or knowingly permits the child or young
person to be ill-treated by any other person. Section 5(2) provides the definition of
ill-treatment for the purposes of determining the offence in section 5(1) and also 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; or
(c) wilfully or unreasonably neglects, abandons or exposes the child or young
person with full intention of abandoning the child or young person or in
circumstances that are likely to endanger the safety of the child or young
person or 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.
Thus ill-treatment of a child by a parent leads to both criminal and civil consequences
under the CYPA: it is an offence under section 5 of the CYPA and the court
can make care orders if there is ill-treatment or the risk of ill-treatment to a child.
The definition of “ill-treatment” in the current section 5 of the CYPAwas expanded
by amendments in 2001. This may have been driven by the commitment of Singapore
to protect children in the light of its accession to the UNCRC in October 1995. The
Children andYoungPersons (Amendment) Bill of 2001 introduced, inter alia, changes
driven by the concern that there was then no provision “to require suspected cases
of emotional or psychological abuse to receive…assessment to ascertain abuse.”21
The Minister first introduced the changes as amendments aimed at protecting children
against ‘emotional and psychological abuse’. Section 5(2)(b)(ii) now provides
for causing “emotional injury” and (iii) provides for “injury to…health and development”.
Thus the current subsection (iii) was the final version of what was first
discussed as “psychological abuse”:
Children who are emotionally and psychologically abused usually suffer longterm
effects, if not helped. There is currently no provision in the Act to require
suspected cases of emotional or psychological abuse to receive professional
assessment to ascertain abuse. The amendments … will empower the Protector to require a child or young person, who is suspected to be a victim of emotional
or psychological abuse, to be assessed. Should a parent or guardian ignore the
instruction, the Protector may remove the child or young person for assessment
and treatment.22
The original intent of Parliament was to protect children against psychological “abuse” and not merely any injury to development regardless of how insignificant
the injury. The latter has a wider scope than the former.
Concerns were raised by Members of Parliament that the width of the section could
potentially interfere with parenting responsibilities. “[A]ny injury” to development
could potentially suffice; there is a lack of clearer guidance on the gravity and effect
of the harm on the child.
Associate Professor Chin TetYung, then Member of Parliament, said:
Ill-treatment is widely defined to include emotional injury or injury to the child’s
health or development. Development itself is widely defined to mean physical,
intellectual, emotional, social or [behavioural] development. Sir, these new terms
vastly extend the scope of the legislation and will give rise to several problems,
quite apart from the open textured nature of the words used. For instance, reasonable
people may disagree as to when a child may be said to be in need of
protection…There must be a serious attempt to set out clear guidelines as to how
these new provisions are to be interpreted and applied. Without such guidelines,
I worry that parents and guardians may be wrongly subjected to investigations
which may, in turn, give rise to undeserved social ostracism or misunderstanding.
In our society, where family values are so enshrined, it would be particularly
reprehensible for a parent or guardian to be wrongly accused of ill-treating his
child.23
Member of Parliament Dr. Vasoo warned:
[U]nlike physical abuse, psychological abuse is an area which is very contentious
and very difficult to establish. Therefore, I think there are likely to be disputes
between the Ministry and the parents in terms of what and how one establishes
psychological abuse. This issue has to be looked into very carefully.24
Unjustified accusations of ill-treatment where there is none, and excessive interference
with the parent and child relationship, have grave consequences. Associate
Professor Chin said of the potentially pliable definition in section 5(2)(b):
[I]f I were to ask Members present in this House today to give their views as
to what is the degree of risk that would be necessary before it is legitimate to
intervene, I believe we would not find a general consensus. Some may say that
there needs to be a clear and present danger of ill-treatment, others may put it less
strongly. The point is there is likely to be as many interpretations of the degree
of risk as there are people asked to interpret it.25
The Minister assured that the aim of intervention is to rehabilitate and support the
child in being raised by her own family:
The issue of discipline and abuse is high in our minds too. Maybe, we must also
be sure that, in some cultures, what is abuse is really discipline. In other cultures,
what is discipline is really abuse. We are very well aware of that. Whenever we
do come across cases whereby there may be a very thin line between what is abuse
and what is discipline, we will bring in, as I said, all the expertise and various
views to ascertain whether whatever is reported is really abuse or discipline.26
We understand that, ultimately, the child must go back to the family or, hopefully,
the child can go back to the family. Because we too would not want to put all
abused children and all victims into institutions. We would rather that they be
rehabilitated. We would rather that they become stable and, hopefully, they could
go back to their family because that is essentially where the children ought to
belong.27
The 2001 debates demonstrate the following: First, Parliament is aware of the
dangers of inappropriate intervention. Second, there must be guidelines developed
to address the concerns raised in Parliament regarding the potential dangers of the
new scope and consequences. Third, every step taken as an intervention measure
should not jeopardise the ultimate aim of helping the child re-integrate into her own
family. Finally, intervention is a measure of last resort.
Yet more recently, when there was opportunity to give clearer guidelines on what
constitutes abuse, the Children andYoung Persons (Amendment) Bill28 was passed in
Parliament in January 2011 without any reviewof the scope of the definition of abuse.
Instead, the new amendments bring into the law greater measures for intervention.
They enable the Child Protector to obtain information if there is reasonable cause
to suspect that a child or young person is in need of care and protection and to
restrict access of parents to the child. They also expand the categories of situations
in which a child or young person is deemed to be in need of care and protection to
include cases where the parent is unable to provide the child with adequate food,
clothing, medical aid, lodging, care or other necessities of life, even though the
parent’s failure has not been wilful or unreasonable. The amendments also introduce
new penalties and increase existing ones. Also of significance is the introduction of a
licensing framework to ensure the welfare and safety of children and young persons
in residential care, seeking to provide clarity on the requirements and standards of
care in the Homes for children and young persons. The combined effect of the new
amendments is to give greater powers of intervention, with expanded powers of the
state to remove children for assessment or care. Not surprisingly, the parliamentary
debates in 2011 again highlighted concerns that inappropriate intervention by the
state may be harmful to children: |
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20. See section 4 of the CYPA, supra note 2 for other circumstances which include: where the child has
no parent or guardian or has been abandoned by his parent or guardian, where his parent or guardian isunfit or unable to exercise supervision and the child is falling into bad association, where there is such a
serious conflict between the child and his parent or guardian that harm is caused to the child, where the
child is found to be destitute, or begging or receiving alms, or engaged in illegal or undesirable activities
or using intoxicating substances.
21. Sing., Parliamentary Debates, vol. 73, col. 1609 at 1611 (20 April 2001) (Mr. Abdullah Tarmugi).
22. Ibid. at 1611-1612.
23. Sing., Parliamentary Debates, vol. 73, col. 1609 at 1619-1620 (20 April 2001) (Associate Professor
Chin TetYung).
24. Sing., Parliamentary Debates, vol. 73, col. 1609 at 1614-1615 (20 April 2001) (Dr. S. Vasoo).
25. Supra note 23 at 1620.
26. Sing., Parliamentary Debates, vol. 73, col. 1609 at 1638-1639 (20 April 2001) (Mr. Abdullah Tarmugi).
27. Ibid.
28. Supra note 4. |
