the Court should be concerned that the judge relied to some extent on “the Case
Summary” furnished by CPS which was not made available to the Mother. An
order for the removal of a child from her parent with whom she “shared a close
relationship” (para. 12) is a drastic order with grave effects on the Child. It must
not be made lightly. It must be resorted to only as the last option. Here, it is
crucial that there are indeed facts supporting the finding that the Child was being
or at risk of being ill-treated by the Mother. The Mother should have had the
opportunity to present her version of the ‘facts’ so that the court is equipped to
consider all the possible perspectives in order to determine whether the Child was
being or at risk of being ill-treated. This is especially important here because there
is no other evidence of ill-treatment, such as physical abuse. While the definition
of ill-treatment appears to be quite wide, it may not be intended to cover a case
such as the present one. There is a wide spectrum and range of parenting styles
and parental personalities. The Mother in this case falls on an extreme end of
one spectrum (excessively preoccupied with every minute aspect of the Child’s
life, overly protective and controlling, excessively fussing over the Child). But
parental behaviour and styles can vary very much. The question is whether the Mother’s behaviour has crossed the line to what is not acceptable, considering
that there is a wide spectrum of ‘acceptable’ behaviour in parenting matters.
It was argued that in order to determine whether the facts fell within the definition
of ill-treatment, the court must consider all relevant evidence. A more robust method
of discovering the facts on which an order was based had to be in place to serve
the welfare of the child. The mother should have had the opportunity to present
her version of the ‘facts’ so that the court was equipped to consider all the possible
perspectives in order to determine whether the child was being or at risk of being illtreated. The mother’s explanations or reasons for certain behaviour, such as having
the child wear diapers to school, were relevant in considering whether there was
ill-treatment or the risk of ill-treatment.
In the High Court, the learned Justice of Appeal V.K. Rajah rightly ordered that
the parents be furnished with a copy of “the Case Summary”. After considering the
evidence, his Honour reversed the lower court’s order, explaining that “[t]he removal
of a child from the parents is a very drastic remedy that should be resorted to only
when there is a real fear of imminent physical or psychological danger.”36
The facts of ABV appeared to fall within the expanded scope of sections 4 and
5 of the CYPA. There may be some injury to the long-term development of E if the
mother continued to be excessively controlling over E and antagonistic towards the
school teachers. But is this injury of sufficient gravity or significance to justify state
intervention? ABV is a case that demands a sound interpretation of the expanded definition.
Guidance may be sought from legislation on care orders in other jurisdictions
which require serious or significant harm to the child’s health or development.
IV. Models of Legislation for Care Orders
Section 5 of the CYPA allows intervention in instances of abuse or ill-treatment,
using criminal sanctions when there is some degree of culpability on the parent or
caregiver: section 5(2) requires wilfulness or unreasonableness in causing injury to
the child.37 However, once there is such culpability, there can be liability for “any
injury” of the forms listed in section 5(2). The threshold is high for culpability,
but low on the type and gravity of injury caused. Since the same definition of “illtreatment”
is used as a basis for care orders in section 49 read with section 4, care
orders made on the basis of ill-treatment or the risk of it are also subject to the same
thresholds. The provisions are centred on the wilfulness and unreasonableness of
the acts of the offending parents or caregiver rather than the seriousness of harm to
the child.
Legislation on care orders in some other jurisdictions differ from this model.
A. United Kingdom
In the United Kingdom, the Children Act 198938 confers on the court the power to
grant a care order or supervision order. Section 31(2) provides:
A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm;
and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were
not made, not being what it would be reasonable to expect a parent to
give to him; or
(ii) the child’s being beyond parental control. [emphasis added]
Section 31(9) defines “harm” as “ill-treatment or the impairment of health or development”, “development” as “physical, intellectual, emotional, social or behavioural
development”, “health” as “physical or mental health” and “ill-treatment” as
including “sexual abuse and forms of ill-treatment which are not physical”.
The English legislation is phrased broadly, similar to the current Singapore legislation
in terms of the breadth of harm: harm includes harm to the health or development
of a child. However, “significant harm” is required in the U.K. whereas the CYPA in
Singapore requires only “any injury”. It is submitted that the requirement of significant
harm is an important control device which can be used to ensure an acceptable
equilibrium in state intervention.
In Re L (Care: Threshold Criteria),39 “significant harm” was held to be “factspecific
and had to retain the breadth of meaning that human fallibility required of it”,
however, it contemplated “the exceptional rather than the commonplace”.40 In this
case, the mother had severe learning difficulties and the father had partial learning
difficulties. It was acknowledged that the parents had loving relationships with the
children. In fact, the court found that the two children, despite having been in foster
care, had real attachments in an emotional sense only with their parents. The court
held that:
[I]t is the tradition of the UK, recognised in law, that children are best brought
up within natural families…It follows inexorably from that, that society must
be willing to tolerate very diverse standards of parenting, including the eccentric,
the barely adequate and the inconsistent. It follows too that children will
inevitably have both very different experiences of parenting and very unequal
consequences flowing from it. It means that some children will experience disadvantage
and harm, while others flourish in atmospheres of loving security and
emotional stability. These are the consequences of our fallible humanity and it is
not the provenance of the state to spare children all the consequences of defective
parenting. In any event, it simply could not be done…Only exceptionally should
the state intervene with compulsive powers and then only when a court is satisfied
that the significant harm criteria in s 31(2) is made out.41
The court concluded that the local authority had not satisfied the court that the
children had suffered significant harm, although “[c]ertainly they have suffered harm;
certainly it is likely they will do so in the future and certainly that has been and will
be attributable to the parenting they receive.” What a difference the absence of this
requirement of “significant harm” might have made to the result.
In Humberside County Council v. B,42 the court held that “significant harm” had
to be harm that was “considerable or noteworthy or important”, or “harm which the
court should take into account in considering a child’s future”.43 As for when harm
is “likely”, the House of Lords in Re H (Sexual Abuse: Standard of Proof)44 held
that a child was likely to suffer harm if there was “a real possibility, a possibility
that cannot sensibly be ignored having regard to the nature and gravity of the feared
harm in the particular case”.45 |
|
36. Ibid.
37. It is noted that corporal punishment used reasonably is not criminal nor will it elicit intervention. Section
64 of the Women’s Charter, supra note 1, provides that “family violence” does not include any force
lawfully used by way of correction towards a child. Rule 88 of the Education (Schools) Regulations
(Cap. 87, Reg. 1) provides for the restricted use of corporal punishment on boy pupils in primary and
secondary schools (the corporal punishment of boy pupils shall be administered with a light cane on the
palms of the hands or on the buttocks over the clothing. No other form of corporal punishment shall be
administered to boy pupils). However, corporal punishment is not permitted to be used on children in
child care centres (Child Care Centres Regulations, Cap. 37A, Reg. 1, reg. 17).
38. (U.K.), 1989, c. 41 [1989 CA (UK)].
39. [2007] 1 Family Law Reports 2050 (Bristol Crown Court).
40. Ibid. at para. 51, Hedley J.
41. Ibid. at paras. 50-51.
42. [1993] 1 Family Law Reports 257.
43. Ibid. at 263, Booth J.
44. [1996] A.C. 563 [Re H].
45. See ibid. at 585, Lord Nicholls. This was adopted in Re S-B, supra note 18 at para. 8. |
