ST May 20, 2008
DIVORCE AND ITS IMPACT ON CHILDREN
Giving voice to the child's needs
By Chong Chee Kin, Crime Reporter
WHO speaks for the child?
Not his parents, if they are in the midst of a divorce.
Instead, 'the child is used by the parents as a bargaining chip to settle other issues', Chief Justice Chan Sek Keong noted earlier this month.
But from the end of next month, children caught between divorcing parents will get a voice. Under the Child scheme, a counsellor will represent the child, so to speak, during court proceedings.
The counsellor's reports to the court will specify the parents' plans for the child, how feasible these plans are and what the child wants. The counsellor's role is now decided on a case-by-case basis, depending on factors such as when parents file conflicting affidavits, each claiming that the child wishes to be with him or her.
Lawyers say the courts are mindful not to involve a child in legal proceedings. Children, for instance, are not asked to testify against their parents. However, if certain points raised by one parent are not challenged by the other, the true wishes of the child may not be known.
For instance, a father may claim his 10-year-old son has written about how much he wants to live with his dad. With the new system, a counsellor can ascertain the boy's real wishes by interviewing him. This step would lend substance to the Family Courts' paradigm shift - away from the current adversarial system to focus instead on the needs of children.
Getting a divorce in Singapore is a two-stage process.
The courts demand evidence that one party is responsible for the marriage breaking down - for example, due to adultery, cruelty or unreasonable behaviour - before granting a divorce. Often, warring couples point fingers at each other, worsening their mutual hostility.
Another reason for divorce can be separation. A couple can be divorced if both parties agree to live separately for three years. It would take four years if one spouse does not agree.
About three to six months after a divorce is granted, a different judge may be appointed to hear ancillary matters, such as the amount of maintenance to be paid, how to split the couple's assets and arrangements for the child.
Here, the accusations which surface at the first stage may be repeated to bolster claims that one or the other spouse is a bad parent and less deserving to gain custody
The children become 'a commodity in the barter trade that goes on in the court', said Ms Ellen Lee, Member of Parliament (Sembawang GRC) and a family lawyer.
For example, a husband might fight for custody if only to force the wife to reduce her maintenance claim or waive it. Also, the husband might threaten to fight for custody to get the wife to give up her claim on the matrimonial flat.
Some of these claims may arise in the first stage of divorce proceedings and re-surface later.
Mr Patrick Tan, managing partner of Patrick Tan & Associates, said: 'Sometimes, when the accusations are relevant, they will re-surface for custody or maintenance issues. For example, the wife may claim the husband is cruel and abuses the child. But generally, the courts try not to involve the child in such matters.'
Ms Foo Siew Fong, who heads matrimonial practice at Harry Elias Partnership and is president of the Singapore Association of Women's Lawyers, said acrimony will be present as long as couples are unreasonable.
The Family Courts have a wide range of programmes, from counselling to workshops on what is best for children. But there is only so much they can do.
'The courts can facilitate the proceedings and make the process as painless as possible for the families. But they cannot force (couples) from not having their say in court,' said Ms Foo.
While full details of how the new tack would work are not yet known, lawyers say the impact of the changes will be felt most at stage two of divorce proceedings.
A family court judge, assisted by a judicial officer and a counsellor who must be present, will preside over, say, custody battles.
The issue of who is to blame may no longer be resurrected, or at most be kept to the minimum. At this stage, the focus will be on the care and future of the child.
This would be helped by the ban on the multiple affidavits that warring couples file. Instead, the judge will direct couples to file affidavits relevant to parenting issues.
Family lawyer Yap Teong Liang, who chairs the Law Society's Family Law Practice Committee, said: 'Instead of fighting the case through affidavits, as they do now, the couple and their lawyers will need to focus on what they think is best for their children, like their emotional needs, education and development.'
Affidavits can cause intense acrimony. When one party points the finger at the other, the other is compelled to rebut and fight the claim.
The affidavits - 'womb to tomb' in their coverage, as the Chief Justice noted - at times detail minute events in the past to show how bad the other parent is. Often, the allegations are irrelevant.
Mr Yap said: 'In cases where one parent claims the other is negligent because she forgets to feed the child, the allegation is not relevant if the child is a teenager.'
Ms Lee said couples are compelled to rebut the allegations under the adversarial system: 'Sometimes, they would ask the children, 'Do you remember mummy doing this or that to you?'. Most of the time, the children do not even remember, but because the statements come from their parents, they feel that the parents must be right.'
The divorce rate is rising - from 5,733 in 2005 to 5,937 last year. So, too, the number of divorces involving children - 2,845 cases last year, up from 2,673 in 2005.
We do not know if the divorce rate will fall. But at the very least, this new move by the Family Courts may lessen the trauma for children caught in the middle.
Couples may break up. But there is no reason why their children should be broken in the process.
'Sometimes, they would ask the children, 'Do you remember mummy doing this or that to you?'. Most of the time, the children do not even remember, but because the statements come from their parents, they feel that the parents must be right.'
MS ELLEN LEE, Member of Parliament and family lawyer