Thailand Law Journal 2013 Spring Issue 1 Volume 16

The paramount consideration in care proceedings is the welfare of the child.⁸⁴ It is suggested that in pursuing the child’s welfare, the court applying the current CYPA provisions in care proceedings involving ill-treatment should consider the following.

1. Respect and support parents’ responsibility

The first principle to bear in mind is that the law places the primary responsibility of raising children on the parents. Article 9 of the UNCRC provides that children have a right not to be separated from their parents. Article 5 of the UNCRC provides
that the state shall respect the responsibilities, rights and duties of parents to provide appropriate direction and guidance to the child. Respecting the responsibilities of parents necessitates giving parents sufficient room to attend to their children in the way they think best. This entails resisting the urge to judge and condemn too quickly a parenting method in the ‘thick grey line’.

2. Appropriate measures

The second principle is to consider the measures that are commensurate with the alleged abusive behaviour. The definition of ill-treatment which triggers all sorts of intervention measures is currently very wide. Not every type of behaviour notionally
falling within the definition merits the same legal response. It is submitted that the measures taken to protect a child should be commensurate with the following:
1. The kind of harm alleged to have been suffered
2. The gravity of harm alleged to have been suffered
3. The degree of risk that the child will suffer the harm
4. The imminence of the danger of harm

In ABV, the measure endorsed by the lower court—the removal of the child—was harsh. It was not commensurate with the type, gravity, degree of risk and imminence of danger of harm. The facts did not involve physical abuse or sexual abuse but a
possible risk of psychological harm to the child in the future. The harm did not appear to be serious or imminent. The High Court believed that a ‘light touch’would be the more appropriate step to take, that is, to pursue counselling support for the parents and require the child’s development to be assessed and monitored in a non-intrusive manner. In this case, intervention was called for, but of a less drastic nature.

It is submitted that generally, if specific circumstances suggest a somewhat ‘extreme’ method of parenting or discipline short of physical or sexual abuse but possessing a risk of significant harm, the first order made should still not be the removal of the child but possibly an order for assessment and counselling for the parent and child. The case can be reviewed by the court and only if necessary should the next measure be taken. It is observed that in introducing the changes which widened the scope of ill-treatment under the CYPA in 2001, the Minister suggested that intervention in the form of “assessment” may be carried out as a check for abuse and it was not intended that separating the child from her parents would be the usual measure taken in cases of emotional abuse. The ultimate aim is for the child to be brought up in her own family and no unnecessary step should be taken which may jeopardise this aim.

3. Closeness of relationship

The factors above should be balanced also with the strength of emotional attachment to the parent. The court should direct its mind to the potential harm to the child from the sudden loss of this close relationship with her parent.

Where a case does not involve sexual or physical abuse of the type described earlier, a court considering drastic intervention involving the removal of the child must at the very least conscientiously balance the closeness of relationship between the parent and child against the behaviour alleged to be “ill-treatment”. Where the relationship is not a close one, or where the parent is an absent one (such as in cases where neglect constitutes the substance of the ill-treatment), there is less risk of harm to the child if the child is removed from the parent. In contrast, in cases involving sufficient evidence of sexual abuse, the need to remove the child is a strong one even if there is an attachment between the child and the parent (the allegedly abusive parent or the other parent). The immediate risk of danger may outweigh the risk of harm arising from separating the child from her parents.

It is submitted that the error of the lower court in ABV began with its failure to give due consideration to the close relationship shared between the child and her mother and how the loss of this close relationship might affect the child. The risk of harm to the child’s development must be balanced against the risk of harm to the child when she is separated from her mother. A child has, under the UNCRC, the right to live with her parents unless this is deemed to be incompatible with the child’s best interest.⁸⁵ This is the minimum the court must do in applying the welfare principle. In ABV, E had been in the care of the mother since she was a baby and her development had been normal enough that the amicus curiae found that she had become a rather mature and independent seven-year-old child. The court found that she shared a close relationship with her mother. There was no allegation of physical or sexual abuse or neglect.

However, because of the allegations of the CPS, the court should be alert in safeguarding the welfare of the child. In the circumstances, the mother inABV should undergo counselling and assessment and the child should continue to be assessed
by an independent professional. Further, an order for mandatory assessment and counselling is appropriate in this case because the mother had, by her own actions, brought her child’s issues into the public sphere by numerous confrontations with the child’s school principal and teachers. Counselling may be presented as a route to resolving these confrontations and tensions between her and the school and hence can be considered a ‘light touch’ measure. The mother may be overbearing, overly
protective, overly controlling and excessively preoccupied with every aspect of the child’s life, but she may not be ill-treating her child despite her actions. Orders for counselling and parenting programmes may be required to ensure that she does not
cross the line to seriously harming the development of the child. They are less dire orders but still effective steps that serve the child’s welfare at that stage.

4. The child’s views

The child’s right to express her opinion is not provided for in the CYPA. Further, there is no ‘child advocate’ in the family justice system through whom the child can voice her views. If appointed, the amicus curiae’s role is closest to the functions
performed by a child advocate where she is allowed to interview the child. A Court- Appointed Counsel (“CAC”) may sometimes be appointed to take on a role similar to the amicus curiae in selected high conflict custody cases in the Family Court. It is understood that very few are appointed each year. Even then, the amicus curiae and CAC are not the child’s advocate or lawyer but are neutral parties who assist the court with their legal expertise and experience in the particular area.

Article 12 of the UNCRC provides that the state should respect the child capable of forming her view and respect her right to express her views. She should be given the opportunity to be heard in any judicial or administrative proceedings affecting her; her views should be given due weight in accordance with her age and maturity. A court hearing care applications ought to respect this right of the child and incorporate it as an important factor in its search for an arrangement that serves the child’s welfare.

Without any specific laws providing for consideration of the child’s views in care proceedings, the court should not forget to direct its mind to ensuring that the child’s views have been sought and presented in ways it thinks appropriate. Section 49(5)
of the CYPA obliges the court making care orders to treat the welfare of the child or young person as the paramount consideration and…endeavour to obtain such information as to the family background, general conduct, home surroundings, school record, medical history and state of development of the child or young person as may enable the Court to deal with the case in the best interests of the child or young person.

A judge can require the child’s views to be sought to enable her to deal with the case in the child’s best interests.

VI. Conclusion

Media reports on specific cases of abuse and harm tend to have the effect of raising doubts on whether the state has done enough to protect children. In Singapore, The Straits Times recently headlined an article “Govt wants better safety net for abused kids” which reported that “a wide ranging review will assess the way the Child Protection Service (CPS) investigate[s], intervenes and finally, terminates cases of violence against children”.⁸⁶ It explained that the exercise “was meant to assess the adequacy and robustness of the system in protecting children” and noted that the manual on the Management of Child Abuse in Singapore was last reviewed recently in 2007 and 2008 and that enhancements to the child protection system were also made in the mid-1990s. The report hinted that the move came after the reports of the case of a father who abused his daughter after serving time for molest:

The CPS hit the headlines … after the so-called Monster Dad case. It involved a man who had been sent to jail for molesting his daughter and wound up being allowed to return home after serving his sentence, and began abusing her again later …When asked if the review was being carried out in response to the case, the MCYS said only that it is “part of the regular effort to take stock of the current protocols and areas for enhancement”.⁸⁷

In England, the death of Victoria Climbie caused ripples to the system of public care of children in England.⁸⁸ The changes introduced as a response to the Laming Report on the death of Victoria Climbie have been argued to introduce a “preventivesurveillance” state where the changes will reorder the relationship between children, parents, professionals and the state and affect the civil liberties and human rights of citizens, particularly children and parents, resulting from the increased power vested in professionals to intervene early in childhood.⁸⁹ This grates against the principle of non-intervention.⁹⁰ The current growing awareness to protect children should not be allowed to breed an intrusive surveillance-centred climate which may threaten the child’s right to be raised by her parents without interference and not to “be separated from his or her parents against their will”.⁹¹ A case similar to Victoria Climbie’s would have been caught within the abuse markers suggested for
Singapore, and the suggestion here is not to say that such abuse cases should be left alone. On the contrary, it is clear that such extreme physical abuse should trigger drastic intervention measures.

The move in European countries to prohibit the use of any corporal punishment on children also puts pressure on countries eager to protect children to follow suit. Sweden was the first country to outlaw corporal punishment of children in 1979;
twenty-five countries have anti-spanking statutes, with Brazilmoving to be the next.⁹² Instead of being hard-pressed to adopt the same position, Singapore can view these moves as indications that there are other effective methods of discipline than the use of corporal punishment and educate the public accordingly.

Re L (Care: Threshold Criteria)⁹³ has pointed out that there will be children flourishing in loving and stable homes, and children who will grow up with defective parenting. But the state cannot shoulder the consequences of human imperfections and fallible humanity.

The Minister for Community Development, Youth and Sports recognised the difficulties in the quest for optimal intervention:

[S]ometimes we will have to achieve a difficult balance—a balance between fairness, due process, the rights of the parents versus the real danger and risk of neglect or harm to children. We have to get the balance right. I, as the Minister for MCYS, would confess to having a bias and, if in doubt, I would rather err on the side of safety for children.⁹⁴

The Minister chose to advocate a law which intensified the state’s powers of intervention, relying on the belief that it is better to err on the side of safety. But where what is ‘safe’ is not clear, excessive intervention is a danger in itself which children must be protected against. What is optimal intervention where a blunt instrument may be used in a most delicate relationship is admittedly difficult. What we must guard against is being overzealous and excessively paternalistic in condemning parenting
behaviour and seek instead to focus on the welfare of the child, who is entitled to be raised and nurtured by her own parents, for which there is no equal substitute.

84. Children andYoung Persons (Amendment) Bill, supra note 4 amends the CYPA by inserting the following:
3A. The following principles apply for the purposes of this Act:
…
(b) in all matters relating to the administration or application of this Act, the welfare and best interests of the child or young person shall be the first and paramount consideration.

85. See Ministry of Community Development,Youth and Sports, Second and Third Periodic Report to the United Nations Committee on the Rights of the Child, supra note 75 at 50, para. 3; see also Article 9 of the UNCRC.

86. The Straits Times (16 June 2010).

87. Ibid.

88. See House of Commons Health Committee, TheVictoria Climbie Inquiry Report, Sixth Report of Session 2002-03 (London: The Stationery Office, 25 June 2003).

89. Nigel Parton, “The ‘Change for Children’Programme in England: Towards the ‘Preventive-Surveillance State’” (2008) 35:1 J.L. & Soc’y 166.

90. Masson notes that the English Children Act:
was intended to establish a balance between the family and the state which reflected community views about the need for child protection and for supported families … Courts would only allow compulsory intervention where the prospect of harm to a childwarranted action and where the child’s best interests dictated that intervention. Care proceedings would be a last resort.
Judith Masson, “The State as a Parent: The Reluctant Parent? The Problems of Parents of Last Resort” (2008) 35:1 J.L. & Soc’y 52 at 54.

91. Article 9 of the UNCRC.

92. The Straits Times (26 July 2010) B12.

93. Supra note 39.

94. Sing., Parliamentary Debates, vol. 87 (10 January 2010).