Findings made in “The Parenting Project: Disciplinary Practices, Child Care
Arrangements and Parenting Practices” in 2006 are interesting, particularly the
responses of 533 children in Singapore between 10 and 12 years old to various
disciplinary practices.77 Seven examples of disciplinary options were included in
the survey for parents and children. They were as follows:
1) use physical punishment on the child
2) show anger towards the child (e.g., scolding, shouting, etc.)
3) take away some of the child’s privileges (e.g., no TV, games, etc.)
4) explain to the child what he/she has done wrong
5) isolate the child
6) tell the child that he/she is not loved
7) do nothing[.]78
…
[The study] found reasoning to be the most frequently used practice among local
parents. On the other hand, parents reported that they did not frequently use physical
punishment. This finding is consistent with results obtained in past research
on Asian and local populations…This is contrary to the popular belief that Asian
parents tend to use punitive disciplinary methods like physical punishment, given
that Asian parenting is often described as authoritarian in Western-based literature… Not only was physical punishment infrequently used, it was also deemed
to be an ineffective discipline method by parents. Children, however, were neutral
about the effectiveness of physical punishment.79
It was noted that the study showed that children rated telling a child that he or
she is not loved to be an unfair disciplinary practice, while physical punishment was
deemed to be neither fair nor unfair. In terms of effectiveness of this practice, both
parents and children considered telling a child that he or she is not loved to be less
effective than the use of physical punishment. Not surprisingly, it also found that the
more frequently a child misbehaved, the more likely it was for parents to use more
power-assertive methods of discipline, including physical punishment.
B. Suggested Reform to the CYPA Provisions on Ill-Treatment
While the next section below suggests how the court should be guided in the interpretation
of the current provisions, the best approach is reform to the law. The latest
review of the CYPA should have considered including the requirement of significant
or serious harm for the wide range of injury types. The scope of injury to a child’s
development without the condition of significant detriment is so wide that it could
cover a case of a child witnessing his parents’ frequent quarrels, or being exposed to
second-hand smoke emitted by smoker parents; or of a child whose parent suffered
from some symptoms of depression. The need to restrict the scope is made even
greater when the provisions are viewed in the light of Parliament’s intention to provide
intervention for emotional and psychological abuse, where “abuse” connotes
more serious and derogatory behaviour.80
Reform should also have considered delinking the culpability requirements for
criminal ill-treatment from ill-treatment that justifies care orders. Presently, the
width of the current provisions necessitates a more circumspect interpretation of the
current provisions. They should be read in a more child-oriented way when the court
considers whether a child is in need of care and protection; it should look at the
impact of the caregiver or parent’s acts on the child rather than the intention of the
caregiver, but ensure that the orders made are commensurate with the kind, gravity,
degree and imminence of the danger of harm. As argued above, the harm must be
at least significant before any intervention can be considered. However, under the
current provisions, the intention of the parent remains relevant to whether acts cause
harm to the child.
It is easy to fall into the fallacy that it is better to intervene as it is ‘better safe
than sorry’.81 This view fails to take into account the harm that could ensue from
separating a child from her parents to whom she is attached. It is not necessarily ‘safer’ to intervene than not intervene. This adage is inapplicable in this context.
The U.K. Supreme Court has warned:
As to the test, it is not enough that the social workers, the experts or the court
think that a child would be better off living with another family. That would be
social engineering of a kind which is not permitted in a democratic society. The
jurisprudence of the European Court of Human Rights requires that there be a “pressing social need” for intervention and that the intervention be proportionate
to that need. Before the court can consider what would be best for the child,
therefore, section 31(2) of the 1989 [Children] Act requires that it be satisfied
of the so-called “threshold conditions”…Social workers are the detectives. They
amass a great deal of information about a child and his family. They assess risk
factors. They devise plans. They put the evidence which they have assembled
before a court and ask for an order…The court subjects the evidence of the local
authority to critical scrutiny, finds what the facts are, makes predictions based
upon the facts, and balances a range of considerations in deciding what will be best for the child. We should no more expect every case which a local authority
brings to court to result in an order than we should expect every prosecution
brought by the CPS to result in a conviction. The standard of proof may be
different, but the roles of the social workers and the prosecutors are similar. They
bring to court those cases where there is a good case to answer. It is for the court
to decide whether the case is made out.82
C. Suggested Approach to Interpretation of the Current
CYPA Provisions
The 2011 amendments have moved towards greater empowerment of the state to
intervene by assessment and removal. Yet no change has been made to qualify the
broad definitions and range of harm which activate intervention. In fact, the Minister
for Community Development, Youth and Sports affirmed that almost anything that
affects a child could be emotional and psychological abuse:
There have also been questions of what constitutes emotional and psychological
abuse. I know that is difficult to define easily but, again, I would go on a practical
basis and I think that anything that causes damage to the behavioural, social, cognitive,
affective or physical functioning of a child, including things like terrorising
a child, rejecting or degrading a child, isolating, exploiting or corrupting a child
would constitute emotional or physical abuse.83
With respect, this response does not address the concerns raised by Members
of Parliament, which are that the potential breadth and pliability of the definition
of emotional and psychological abuse will include too many cases, including those
which are inappropriate for state intervention.
Until the current provisions are reviewed, as argued above, it is submitted that
the court should be guided by clearer principles suggested below. The framework
suggested takes on this structure: a ‘blunt instrument’ of intervention is appropriate
in cases of physical and sexual abuse but the ‘light touch’ should be used in cases of
emotional injury. Full measures of state intervention are more appropriate in cases
involving more extreme acts causing serious harm that requires medical treatment
and cases involving sexual abuse. In such cases where there is sufficient evidence
of physical or sexual abuse, an investigation should be conducted and the removal
of the child for assessment is justifiable. But cases falling short of such abuse fall
within the ‘thick grey line’, where there should not be any harsh intervention, such as
removing the child from her parents, even if for a temporary period of time. Instead,
because these cases usually involve emotional injury and a risk of significant harm
only in the long term, there is less urgency to remove the child immediately. The ‘lightest touch’ such as a conversation between child protection officers and parents
may sometimes be appropriate and sufficient. Public education should be the main
means to manage issues in the grey. Cases where parents themselves seek state
intervention and assistance are excluded from this reasoning. |
|
77. Shum-Cheung, Hawkins & Lim, supra note 13.
78. Ibid. at 11
79. Ibid. at 23-24.
80. See discussion on public perceptions of this term in the first paragraph of Part V section A above.
81. Social scientists have taken this view: see Chan et al., supra note 76 at 364: “While some have argued
that it is better to err on the side of protection, we argue that this in itself is a violation not only of the
parents’ rights but also of the child’s right.”
82. Re S-B, supra note 18 at paras. 7, 18-19.
83. Sing., Parliamentary Debates, vol. 87 (10 January 2010). |
