Thailand Law Journal 2013 Spring Issue 1 Volume 16

The Quest For Optimal State Intervention in Parenting Children: Navigating Within The Thick Grey Line

By Debbie Ong Siew Ling*

1. Introduction

A. Parents Have the Primary Responsibility to Care for their Child One of the central family obligations regulated by theWomen’s Charter¹ [the Charter] is the parenting of children. Section 46 of theWomen’s Charter encapsulates the
most fundamental obligations of a married couple entering into an institution where children are likely to be raised:
Upon the solemnization of marriage, the husband and the wife shall be mutually bound to co-operate with each other in safeguarding the interests of the union and in caring and providing for the children.

The Women’s Charter governs incidents of the parent and child relationship, within and outside marriage. Section 68 of the Charter imposes on both parents the legal obligation to maintain their legitimate and illegitimate children. The Charter
also brings within the divorce court’s jurisdiction all children who are members of the family of the married parties undergoing divorce or nullity proceedings, and imposes a secondary obligation on such parties to maintain the children so far as the
father or mother of the child fails to do so.²

TheWomen’s Charter regulates the private care of children while another statute, the Children and Young Persons Act [CYPA]³ regulates the public care of children. The principles in both spheres should ideally be the same. The law should navigate cautiously along the line between private and public care. Where it is unclear whether parents have failed to protect their children or ill-treated them, there is an area of uncertainty, a ‘thick grey line’ within which the state should be very circumspect in the measures used to protect the children. The law on the public care of children should be consistent with the ideals on parenting contained in theWomen’s Charter.

Consistent with principles on the private care of children in theWomen’s Charter, the most recent amendments to the CYPA articulate the primary responsibility of parents with the insertion of the guiding principle that: the parents or guardian of a child or young person are primarily responsible for the care and welfare of the child or young person and they should discharge their
responsibilities to promote the welfare of the child or young person.⁴

In family law, parents occupy the most important position with respect to the raising of children. The law imposes on them the responsibility to care for, nurture, provide for and protect them.⁵ This duty arises upon the fact of parenthood: the birth
of a child affixes these obligations to her mother and father.⁶ The law supports this parental responsibility by giving only parents and specially appointed guardians the authority to make decisions for their child.

Where a parent brings to the court an issue regarding her child, the court must regard the child’s welfare to be the overriding consideration and may make orders that affect the family relationship to protect the welfare of the child.⁷ But where neither parent invites the court to intervene in matters relating to the child, family life is kept within the private sphere unless there are legitimate reasons for the state to intervene, such as where parents have plainly failed in their fundamental responsibilities to the
child.

Generally, only parents and guardians appointed under the Guardianship of Infants Act [GIA]⁸ have the right to make applications to the court for orders affecting their child. Section 5 of the GIA provides that the court may make orders concerning custody, access and maintenance “upon the application of either parent or of any guardian appointed under this Act”. It has been said that Retaining a distinction between the authority of parents (and guardians) and the authority of non-parents over the child gives recognition that parents have the primary responsibility and authority over the child. It is in the child’s welfare that parents be enabled to carry out their parental responsibilities without unnecessary interference from third parties and the law. Upon an application under section 5 of the GIA, the court will hear the applications of these adults and make orders in accordance with the welfare principle. On the other hand, non-parents and non-guardians should not be accorded the same locus standi to seek orders regarding the child. They may, however, seek the court’s wardship jurisdiction
to make orders required for the child’s welfare. The wardship jurisdiction will only be exercised in appropriate cases. The distinction in the processes used by the two groups of adults preserves the balance of power between parents and non-parents.⁹

Byentrusting parenting entirely to the child’s parents, the state does not proactively keepwatch over howparenting is carried out. Instead, it supports parenting by putting in place community resources that parents can utilise for the benefit of their child. It is when parents plainly fail in their responsibilities that the state activates its system of intervention for the protection of children.

* Associate Professor, Faculty of Law, National University of Singapore. I am grateful for the comments of the anonymous reviewer. Errors remain solely mine.

1. Cap. 353, 2009 Rev. Ed. Sing. [the Charter]; theWomen’s Charter is the main statute governing family
law in Singapore.

2. Ibid., ss. 70, 92. Reference may also be made to how the law supports these expectations with the principle that the paramount consideration in proceedings involving a child is the welfare of the child. In the Singapore legislation, this principle is articulated in the Guardianship of Infants Act (Cap. 122, 1985 Rev. Ed. Sing.) [GIA], the Women’s Charter and the Children and Young Persons Act (Cap. 38, 2001 Rev. Ed. Sing.) [CYPA]. This principle of law governing children is common across many other legal systems.

3. CYPA, ibid.

4. New s. 3A to be inserted into the CYPA: Children andYoung Persons (Amendment) Bill (No. 35 of 2010, Sing.).

5. In Lim Chin Huat Francis v. Lim Kok Chye Ivan [1999] 2 S.L.R.(R.) 392 at para. 91, the then Chief JusticeYong Pung How held:
A child is a living being, dependent on adults from birth and must be cherished with genuine love from the outset…the very least the court must do is to advocate the underlying premise that parents, natural or potential, must care for their children.

6. In the United Kingdom, unmarried fathers do not have parental responsibility unless certain specified steps are taken to accede to that responsibility. In Singapore, the courts have taken the position that both married and unmarried fathers have parental responsibility: see AAV v. AAW [2009] 4 S.L.R.(R.) 488; VT v. VU [2008] SGDC 1; XG v. XH [2008] SGDC 88.

7. The ‘welfare principle’ is expressed in s. 3 of the GIA, supra note 2 as follows:
Where in any proceedings before the court the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration…

8. Ibid.

9. Debbie Ong Siew Ling, “A Grandparent’s ‘Right’ to Guardianship, Custody and Access?” (2005) June Singapore Law Gazette 16 at 19. The academics’ view differs from the Court of Appeal’s position in the last aspect. The Court of Appeal in Lim Chin Huat Francis v. Lim Kok Chye Ivan, supra note 5 has held that in exceptional situations, a non-parent who has charge of or control over a child at the material time may seek an application under section 14 of the GIA when a child is removed from that person’s guardianship. It has been argued that a narrower reading of ‘guardian’ should be adopted. A ‘guardian’ is authorised to make major decisions for the child, such as authorise the removal of the child’s kidney, consent to the child entering into insurance contracts and be the personal representative of the child in the administration of estates. The casual child-minder or kindergarten school teacher would be the guardians of the child within the definition given in Lim Chin Huat Francis during the times when they have physical possession of the child and would consequently be authorised to make decisions with drastic consequences for the child; the definition gives more authority to the casual minder than is desirable: see LeongWai Kum, “Restatement of the Law on Guardianship and Custody in Singapore” [1999] Sing. J.L.S. 432.