Lawyer Yue-En Chong from Dorothy Chai and Mary Ong Law Practice shares his personal views on the case of TSH v TSE.
*Nothing in this article should be considered or be constituted as legal advice.
TSH v TSE
- M is a 5-year old boy born in London who was brought to Singapore to be cared for by his grandparents in an intended short-term arrangement
- The relationship between his parents (mother is a 34-year old Mongolian and father is a 40-year old Singaporean citizen) broke down in this time and proceedings relating to M’s custody have been ongoing since January 2014 while M remains in Singapore
- English courts issued many orders requiring father to return M to England to be recognised as a ward in English Courts; this includes an order by the Family Courts in Singapore that mirrors the English orders
- The father and grandparents appealed this decision
- Singapore Courts overruled this appeal citing that it is in the interests of the child to be reunited with his mother
Four years after the case of ABW v ABV and the war against warring parents – Are we winning the Battle in persuading/cajoling/warning/forcing parents to be kinder, gentler, more forgiving, putting to death malice, hatred, vengeance and anger – all in the welfare and best interest of their child?
Personally, I am praying really hard that the mother in TSH v TSE will be an honourable mother – one that would respect her child’s father and her child’s paternal grandparents want to maintain a relationship with the child. I really do hope that after the child returns back to London, the father will get his daily Skype access with the child and should there be holiday access granted, that he would get the full holiday access to enjoy time with his son together with his parents.
At the same time, I do hope that the father will be a honourable father. That, when the son comes to visit him for holiday access, he will ensure that the son returns back home to the mother at the end of the holiday. That he will be reassured that his relationship with his son would not be weakened, but rather, that both his son and him would look longingly to the time when they can spend time together.
Above all things, I hope that both parents will have had an opportunity to sit down and talk about the elephant in the room. When the father’s solicitors brought up that “She was awarded a lump sum of $2,400 in maintenance by the district judge in January 2015, but she now seeks under a “top-up” of financial provision from the husband by way of an “anomalous remedy” in English law”, I wondered whether part of this whole fight over the child was because it would mean that the mother would be able to claim ‘greater maintenance’. There is irony in this situation. Which is more important — the relationship with the son or the financial support that has to be given?
Conversely, if the above does not happen in the way I hope, it would mean that a bullet would be shot at the principle that we fought so hard to introduce in ABW v ABV – that a weighty factor in considering the ‘best interest of the child’ and the ‘child’s welfare’ would be which parent would genuinely work to ensure that the bonds between the access parent and the child would not be weakened. [Para 115]
The mother in TSH was found by the Judge to have recognised that the father ought to play a role in the child’s life. She had undertaken to provide the father with information on M’s welfare, including his health, education and religion. She said she would facilitate regular Skype access between the child and his father and grandparents. While the Judge accepts that there is no evidence that the mother will honour her undertakings, this is only because the child was removed from her care very early on and she has had no opportunity to prove her word.
I really and earnestly wish that if I have an opportunity to personally reach out to the mother, I would implore her to make good her word. I would like to tell her that should she not honour her word, it would make a fool of us all. It would mean that this whole principle of ‘the parent that would ensure bonds between the child and both parents’ is but an idealistic pipe dream. It would mean that parents who are ‘malicious’ would simply make ‘lip service’ to the promise of respecting the other parent’s access rights while continuing to destroy the impression that the child has of the access parent. It would also mean that if the de facto ‘care and control parent’ defends his claim for ‘care and control’ at the end of the case is only lip service if that he or she respects the ‘access parent’s rights’, this would just mean that more parents would just put up an act just so as to ‘win’ care and control.
However, there is some hope because while the father made a similar undertaking, the Judge found this not credible because of his and his parents’ poor track record in facilitating the mother’s access to M. This would mean that any action towards preventing access or omission in facilitating access between the child and the parent could be held adversely against that parent. In fact, I would submit that saying that your child refuses to go for access should put a positive duty on you to resolve that problem with the engagement of professionals to help your child to bond with the other parent.
However, there is a word of caution – where the parent without access is shown on the facts to be an abusive and manipulative parent that would damage the child, forcing the child to go with this parent could end up with the child being abused during access. In the heat of conflict, there may be allegations and counter-allegations of the other parent abusing the child and there is great need for clarity in the finding of fact. Yet, often, such allegations are also founded on a deep well of mistrust of the other parent and sometimes the latter would persist with the allegations even if police investigation and the judge has found otherwise.
I would hope that in time to come that for cases with extreme hostile care and control (intractable) that BOTH parents would have to have mandatory psychological testing to show their fitness as a care and control parent or the access parent. Whether this is possible (and whether the psychologist is skilled enough to see through the deceptions put up by parents with Personality Disorders etc,) is another question.
The problem of lip service – so what to do?
In all honesty, it is rather hard to have a full proof plan against lip service. I have the following thoughts:
- Even if a parent pays lip service in court, the maxim ‘fake it till you make it’ stands – by promising access, the parents hopefully start building trust in the care and control parents and after a while, when they find that access works and it lacks drama, the care and control parent will genuinely let the access parent have access.
- That the court has a review of this case until 2 to 3 years have passed. The judge does not need to do this, in fact, it could be assigned out to officers (or Parenting Coordinators) empowered by statute to carry out this function of ‘case management and follow-up’ and telling the parent that the judge would be appraised of each case. Hopefully, this allows for 2 to 3 years where after the dust (and emotions) settles, both parents would have gone into a new swing of things.
- What happens if the parent is a sociopath, narcissistic or has borderline personality disorders etc? Well, in this case, then a longer supervision is needed to ensure that the parent does not turn around to start denying the access parent access once the case is off supervision.
- There is probably a need of setting up something similar to the England’s Children and Family Court Advisory and Support Service (CAFCASS) in Singapore – the reason being that CAFCASS would have the authority to do house visits and spot checks to ensure that the child’s welfare is ensured.
- At the end of the day, it’s a good thing that the law on children’s care and control and access are always fact-sensitive, which means that a change in circumstances could lead to a change in care and control.
What I like about this case
The Judge reminds us all that at the end of the day, it’s the Judge that makes the decision in the best interest of the child. While professional experts, with their opinions and reports, are helpful, it is the Judge that makes the final call. In particular, I noted that even though the Court Counsellor, [at 120] gave a note of caution that ‘a change in environment might be traumatic for the child’, the Judge only took that into consideration and found that there would be enough support on the UK side to help the child adjust into his new environment.
For a long time, we have had psychiatrists, psychologists, counsellors, social workers and other members of the social care industry emphasising on the fear that any removal of a child from his familiar environment would ‘traumatise’ the child so much that the child would be damaged. As a result, it would seem that having the child stable but losing the relationship with the other parent would be preferred over transferring the child over.
The Judge was very clear in this case that this ‘switching of care and control for the purpose of reversing the effects of marginalisation is a feasible solution only when the parent being marginalised has a sufficiently close bond with the child. In this case, the solution is eminently feasible because mother and son have a warm and loving relationship. [para 114]
As the assisting counsel of ABW v ABV, these facts are similar to the facts of ABW v ABV. The mother in ABW v ABV also had a warm relationship with her daughters despite not being allowed to see them for 1.5 years. However, this makes me somewhat uncomfortable. It would seem that only if alienation is a low-level alienation where the child does not reject the parent would the court then consider transferring the child over.It is unsure whether the court would still allow the switching of care and control if the child is very alienated from the parent or if the child is moderately alienated from the parent. What this means is that if I’m a vengeful and malicious parent, my main job from the start would be to destroy the relationship between the child and the access parent, whether subconsciously or intentionally. I’ll get my siblings, the child’s aunts and uncles, and his grandparents to all come in and paint the access parent as a devil who would steal the child away and never return him if he gets into his/her hands. The whole point here is that I’m glad that for children cases, the Family Judge Court has the fast track for children’s cases. I would say that if there is evidence that the child is being alienated or that there are movements towards it, the case must be placed on the child-focused track to have the needed interventions to prevent alienation from happening.
I would imagine, just to have a stern, discipline master like Judge telling the misbehaving parent that
‘if you continue to misbehave and destroy the relationship between your spouse and the child, I will hold this against you. If your relatives misbehave and you cannot control them, this will also be held against you. If you find that you can’t help or stop yourself from misbehaving because of your anger, then I suggest that you see a counsellor and get your emotions in check. Conversely, if you help yourself and your child to rise above this all and to be dignified and honourable, this would be held in your favour.’
But I could also imagine the excuses,
‘But your honour, I can’t do anything about my child not wanting to see the access parent, during the marriage the access parent hurt me and the child is just taking my side as he wants to protect me. The child is a little person who has his own opinion on what his father/mother is like and he developed this because of the what happened between me and my spouse. I can’t force him to change his opinion.’
This, above, is unfortunately an often-used reason. The question here is that children from a very young age can see and understand conflict and be placed in triangulated positions.
But I would humbly submit that there is a need for qualified second chances. Say, a previously negligent or abusive father/mother wishes to make amends and now establish a relationship with the child, should he/she be given this second chance? I would say, ‘why not’? But it must be a qualified second chance. One that is supervised and shows the child that his mother/father is worthy to be trusted again. If there is intervention, it would sometimes help if the offending mother/father is humble enough to say ‘sorry’ to his ex-spouse and his child for the hurt that he/she caused them and ask to start all over. To offer a ‘genuine’ ‘Sorry’ is probably the hardest thing to do but it is also the FIRST step towards healing. We want to be a healing profession, don’t we? Wouldn’t we want to also be a healing court? There is a lot that I want to comment but finally, this is what I like about the Judge in this case.
[para 123] “I will be making provisions for M and his mother to undergo reunification therapy conducted by a professional psychologist to prepare both of them for M’s return to England and his separation from his paternal family in Singapore. May I raise my hand up and ask Judge if she needs a volunteer Personal Assistant for the follow-up of this case? This is really exciting to me and I would want to journey alongside with the process of post-judgment services that would help to ensure that the decisions made in the family court would stick and remain. At the same time, I would say that this is a perfect time to have a ‘Parental Coordinator’ involved unless of course the CFRC and the professional psychologist are sufficient to ensure that M is reunited with his mom.
My final thoughts
In conclusion, I would love to see the facts of ABW v ABV repeating themselves, and we will see M joyfully running into the arms of his mother AND father for years to come. Being able to love them with all his little might and with the secured knowledge that he is ‘securely shared’.
To quote the incoming Presiding Judge of the Family Justice Court, Debbie Ong J as she beautifully quotes a particularly poignant passage from Children’s views of shared time, parenting and security post-separation at pp 15–16 at Paragraph 42 of AZB v AZC,
“When I feel securely shared, I know I don’t have to constantly keep watch over how you will act when you are together (at places like handovers, or my school or sporting events). Knowing that you won’t fight is really important. But that’s not enough. I want to see you act in ways that show me that you can sometimes still laugh and have fun with each other, and share your pride and joy in me. When I see this, I relax and feel good, instead of being worried and watchful whenever you are together. Sometimes when I am at your house, I might be feeling sad, or scared, or upset, and I might start to miss my ‘other’ parent. You and my other parent aren’t the same, and you do things differently. There are times when I just need to reach out to the parent I’m not with, to help me feel okay again. When I feel like this, I want to know that it is alright for me to call, or even see them – even though it is ‘your turn’ with me. It makes it really hard for me when I have to worry about hurting your feelings because I miss the other person, and just need them. I’m still a kid with two parents, and I can’t always get all my needs met by the parent I am with at the time. I will learn to cope with my grief, and I will adjust to you being separate, but there are some needs I can’t just switch off, without creating big problems for myself. When I feel securely shared, I feel like I live in one world, not two. I feel like both my parents are in touch with, and responsive to most things I feel and need. You both make sure that my arrangements and the way you put them into place don’t bury me under emotional burdens. You’re not expecting me to live between two completely unconnected households. You make sure I’m not too weighed down with the practical problems of living in between two houses. You can come together and make sure that my arrangements are predictable, but flexible – both on a day-to-day basis, and as I grow and my needs change over time. Sometimes, my needs might be different from yours. When this happens, I’d be really grateful if you might put aside your own needs, and think honestly about mine, and what could help. There was this guy called Bowlby, who said the job of parents is to be bigger, stronger, wiser and kind. That about sums up what I’m asking for. These are things that you can do to help me to thrive in shared time. [emphasis added]”
I fully agree with Ong J that “Parents, in discharging their parental responsibility, should endeavour to help the other parent to be the best parent possible under the circumstances, for this is in the children’s welfare.”
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