Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Ms Somaly Mam,
Mrs Yu-Foo Yee Shoon,
Assoc Prof Ho Peng Kee,
My fellow Judges,
Attorney-General,
Distinguished speakers and participants,
Ladies and gentlemen:
Children & The Law Conference jointly organised by LAWASIA 1 and the Law
speaker, Ms Mam, and all the distinguished speakers and participants who have
discuss how we can all do our best for the children in each of the communities
we come from. The first reason is that Singapore needs more babies to replace
1
Formed in 1966, LAWASIA is an international organisation of lawyers’ associations, individual lawyers,
judges, legal academics, and others which focuses on the interests and concerns of the legal profession
in the Asia Pacific region.
1
its population, and accordingly, we value every single baby who will one day
become a child, and then an adult. The second reason is that Singapore is
generally acknowledged by all who have lived here for a reasonable period of
time to be one of the best homes for families to bring up children and to give
provide first-world facilities for the proper upbringing and education of children.
We have one of the highest broadband penetration rates in the world, and many
children are able to access and use the Internet from as young as 5 years old.
These developments bring with them a different set of problems for parents and
also for society, when parents do not know of or are unable to control their
children’s Internet visits. In turn, we have to enact more and more effective laws
to protect and shield them from harm from cyber predators. I will highlight one of
History
3. It was not so many years ago that the principle of action for many parents
was that children should be seen and not heard. But today, the principle may
have lapsed into one of inaction: let the children be seen and be heard. This is
consistent with the ideals of the United Nations Convention on the Rights of the
Child. Singapore acceded to the Convention only in October 1995, but long
before that date, there was already in place adequate legislation and a legal
2
framework that implemented substantially all the measures a state is required to
has been since 1824 when it became a British possession and English law was
received as the law of Singapore. Thus, the legal rights of children in Singapore
were from the beginning determined by the English common law, except in so far
as it was necessary to modify it to suit the customs and practices of the local
inhabitants. This meant that the personal laws of the Malays, Chinese and
not inconsistent with English law. For the Malays, their personal law was the
syariah which was, and is, very enlightened in its approach to children. Under
classical syariah law, an infant acquired legal personality at the moment of birth
and was born free of sin and pure of heart, deserving of love and protection.
Non-discerning minors could enjoy the rights and obligations coming with their
legal personality, and discerning minors were able to perform legal acts if they
were advantageous to him or her. For the Chinese, their personal law was
Chinese customary law, under which, it would appear, the child had no rights at
China before 1949 was a country in which children came last.” 2 The care of
parents was paramount as filial piety was the highest ideal in Confucian China.
2
Francis L. K. Hsu, Americans and Chinese: Passage to Differences (1981).
3
Parents were everything; children were nothing. As for the Indians, I am not able
to enlighten you today, but in the 4th century CE, a Brahmin by the name of
called The Arthashastra 3 in which he advocated the following rights for children:
making provision for her welfare during her pregnancy, and procuring the
(d) When a slave gives birth to a child of the master, both the child and
(e) The King shall maintain, at state expense, children, the old and the
destitute. The village elders shall act as trustees of temple property and
(f) Every man has an obligation to maintain his wife and children,
3
Penguin Classics 1992 (trans. by L.N. Rangarajan).
4
(h) Children shall receive half the quantities of rations (oil, rice and salt)
Except for slavery, which was then an accepted institution in the society at that
time, Kautilya’s statements show how modern his thinking was about legal and
5. What about English law? The Age of Enlightenment in Europe did not
wrote that parents owe their children three duties: maintenance, protection and
education. 4 But the common law was content to rely on the natural moral sense
of parents to fulfil these three basic duties. Even up to the mid-18th century,
children were rarely considered to be the proper subject of legal rights in and of
their fathers’ proprietary rights, and the law was only interested in children as an
aspect of property. They were agents for the devolution of property. Pollock &
Maitland wrote:
The law had not even been careful to give the father a right to the custody
of his children; on the other hand, it had given him a right of custody of his
heir apparent, whose marriage he was free to sell. It had looked upon
4
Blackstone, Commentaries on the Laws of England (1765-1769).
5
guardianship and paternal power merely as profitable rights, and had only
sanctioned them when they could be made profitable. 5
6. It was only in the late 18th and early 19th centuries that English law began
to carve out a small, but significant, separation between the rights of the father
and the rights of the child. During this period, the criminal law began to protect
children against serious physical abuse by their parents. 6 The Chancery courts
far as to declare in the case of Re McGrath that “the dominant matter for the
signalled the emergence of the child as an autonomous legal personality with his
or her own legal rights and interests, separate from the rights and interests of the
father.
Modern law
7. Today, most modern legal systems recognise that children are human
beings with rights that should be respected and protected. More than that,
children are the objects of love and affection, and for whom some parents cannot
do enough. The UN Convention is the embodiment of the new enlightened
approach towards the protection of children’s interests.
5
F. Pollock and F. W. Maitland, The History of English Law (1968 edition) vol ii, p 444.
6
Evidence of this can be seen in the newspaper reports of trials of parents held between 1785 and 1860:
see Linda Pollock, in The Subversive Family: An Alternative History of Love and Marriage, pp 92-95.
7
In re McGrath [1893] 1 Ch 143 (per Lindley LJ).
6
Singapore’s legal infrastructure to protect the welfare of children
and promoting the legal rights of children. In the design and implementation of
our laws and policies, we have always been guided by a single compass point:
the best interests of our children: what we can do for them as children, and what
we hope they can do for their families, parents and society when they become
adults. I will not mention those rights which all human beings are entitled to, such
as the right to life, liberty and property (which are constitutionally protected
rights), the right not to be physically or emotionally harmed by others (which right
is protected by criminal law statutes, such as the Penal Code), and all the other
constitutional freedoms and rights given by law which children are free to enjoy
provided they have the mental capacity to do so. But, I should also mention that
children of a tender age in Singapore have legal disabilities and immunities from
judicial punishment for acts and actions that would otherwise be criminal if
committed by older children. For example, section 82 of the Penal Code states
that nothing is an offence which is done by a child under 7 years of age (although
many children of that age today are knowing as well as knowledgeable, even if
they lack mature understanding of what they know). And for children between the
ages of 7 and 12, section 83 of the Penal Code provides that nothing done by
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understanding to judge the nature and consequence of his conduct on that
occasion”.
are normally dealt with under the Children and Young Persons Act, which is the
centrepiece of our legislative framework for the rescue, care, protection and
rehabilitation of children and young persons. This Act set up the Juvenile Court in
1949 to deal with such matters, especially juvenile crime. The Juvenile Court in
turn gives life to the ideals of Article 40 of the UN Convention, which provides
that “a child in conflict with the law has the right to treatment which promotes the
child’s sense of dignity and worth, takes the child’s age into account and aims at
his or her reintegration into society.” I will explain more about Singapore’s
approach to juvenile justice later. First, I would like to talk about the welfare
10. The welfare principle has been enacted as part of Singapore law since
1935 when the Guardianship of Infants Act was enacted. Section 3 of the Act
provides that:
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11. That standard echoes the common law’s “welfare principle” which is also a
Charter and the Adoption of Children Act. This approach echoes the “whole child”
principle which is enshrined in the UN Convention. Our courts 8 have adopted the
Matters 9 :
12. The welfare principle is easy to state, but can be very difficult to apply in
each case, as all family law lawyers and judges will tell you. Oliver Wendell
Holmes said famously that “General principles do not decide concrete cases”,
and this is one of these principles. In the Singapore courts, we have divorces
where the spouses are from different races, different religions and different
8
Soon Peck Wah v. Woon Che Chye [1998] 1 SLR 234 at [25].
9
16th Ed, at page 1004
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cultural backgrounds. Inter-racial marriages are common, and spouses from the
same ethnic groups but with different religious backgrounds are also common.
Some of these are expatriate couples, where the spouses are from different
countries. Some are expatriate-local couples. Each parent wants custody or care
and control of the child. But care and control can only be given to one of them at
any one time. In certain cases, it may mean sending the child out of Singapore
even though she may be born and educated here and is comfortable with the
culture because this is where all her friends are. These are cases where the
child’s right to proper parenting is tested to the limit, and the court may be no
wiser after the event whether it has made the right decision to grant care and
control to one or the other. The child’s right to her cultural and/or religious
13. Let me now say something about the Family Court in Singapore. Our
Family Court has broken away from the traditional adversarial trial to settle
for them. The Family Court prefers conciliation, counselling and mediation over
of children. Our Family and Juvenile Justice Centre (“FJJC”) is staffed with
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trained Family Counsellors that offer mediation and conciliation counselling to
couples to help them resolve their custody and access disputes. For especially
difficult cases, the Family Court provides for a joint conference process where
Judge and a psychologist or counsellor from the FJJC. There are also plans to
results. For mediation in non-family violence cases for example, the Family Court
mediated 1,701 cases from 2006-2008, with a success rate of 89% (1,506
cases). For family violence cases, the number mediated between 2002 and 2008
14. Children are also given a voice and a right to participate in matters
concerning their welfare. By law, children have the right to express their views in
cases concerning their custody, care and control, and education, amongst
others. For example, section 125(2) of the Women’s Charter expressly provides
that in deciding in whose custody a child should be placed, the court “shall have
independent opinion.”
10
Statistics from CJ’s Speech at the launch of the SMU-Centre for Dispute Resolution, 16 Apr 2009.
11
15. In May last year, a dedicated court process called CHILD, (CHildren’s best
Interests, Less aDversarial), was also implemented. The initiative came about
caught at the centre of their parents’ bitter disputes. In 2008, a total of 6,328
applications for divorce were filed, out of which 57% were couples with children
below the age of 18. 11 The CHILD programme was established to ensure that
“the Court’s obligation to treat the welfare of the child as the paramount
consideration should not be diminished by treating custody and care and control
16. The specialised Family CHILD Court is designed to pay particular attention
to the needs of children in divorce cases. Proceedings in the Family CHILD Court
are markedly different from normal court proceedings as the process is quasi-
inquisitorial. The Judge takes charge of proceedings and plays an active part in
reaching an outcome that gives effect to the best interests of the child. Parties
is in the best interests of the child to be made a party to the proceedings, the
Court may also appoint an amicus ad litem with the authority to take part in the
11
Figures from the Subordinate Courts as of 21 May 2009.
12
Keynote Address by CJ at the 17th Subordinate Courts Workplan 2008/2009 on 9 May 2008.
12
Child Protection Orders
17. Over the last decade, we have seen a significant increase in the number of
Child Protection Orders being issued by the courts. From just 18 in 1996, the
number reached 114 in 2007. 13 The children involved are aged below 16 and
often in need of care and protection due to neglect or abuse at home. Our pivotal
concern in such cases is to protect the child from harm. To enable the court
system to deal with such cases more effectively, a specialised Children Care
Court was established in May 2008. The Children Care Court provides dedicated
18. A set of National Standards for Protection of Children has also been
Singapore, guiding the police, the courts and other child protection professionals
protection system. In 2006, for example, the Ministry of Community, Youth and
“The Role of Child Protection Officers in the Singapore Legal System”. The
training included topics such as procedural issues in applying for care and
13
Keynote Address by CJ at the 17th Subordinate Courts Workplan 2008/2009 on 9 May 2008.
14
http://app.mcys.gov.sg/web/serv_resindv.asp.
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protection orders, the role of Child Protection Officers in supporting victims of
19. In highlighting the evils of the sexual exploitation of children, I think no one
has spoken with a more powerful voice than Ms Somaly Mam. Ms Mam will be
chairing a special plenary session on her efforts at battling child trafficking and
child prostitution in Cambodia. Her work highlights in graphic detail the horrors of
child prostitution, which remains very much a global problem. Singapore has
women and girls for prostitution, the Penal Code was amended with effect from
sexual services from a minor under 18 years of age. The offence is punishable
before the courts in August last year, when a Singaporean man who paid for sex
with a 17-year-old prostitute from China was sentenced to 12 months’ jail. The
Chinese national who brought the minor into Singapore and aided the man to
obtain sexual services from her was also sentenced to 12 months’ imprisonment.
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20. To combat child sex tourism, the new Penal Code also makes it an offence
sexual activities overseas from a minor under 18 years; and (ii) a person to make
intended to promote commercial sex with minors under 18 years old outside
21. In addition, anyone who has sex with teenagers under the age of 16 can
now be jailed up to 10 years, or fined, or both. Those who have sex with anyone
under the age of 14 face imprisonment up to 20 years and a fine or caning. Since
these tougher penalties were introduced, two men have been jailed for 15 and 16
22. We also recognise that sexual offences against minors can be committed
not just by men, but also by women as well. In February last year, the Penal
Code was amended to make sex between an adult woman and a boy below the
became the first woman to be jailed for sex with an underaged boy when she
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was sentenced to 10 months’ imprisonment for having sex with a 15-year-old
student.
23. The harsh deterrent sentences that the Singapore courts have imposed on
these sex offenders send a clear signal to the community that the sexual
24. The Internet has also proven to be a fertile ground for sexual predators
who take advantage of the natural curiosity and naivete of children to satisfy their
own needs. We have introduced a new provision in the Penal Code to criminalise
Offences Act 2003, it is now an offence for an adult to meet or travel to meet a
minor under the age of 16 in Singapore with the intention of committing a sexual
offence, if the person had met or communicated with the minor on two or more
previous occasions, either face-to-face or online. The provision tracks the modus
operandi of this new breed of sexual predator, as such offenders usually work
patiently to gain the trust and confidence of their young victims before striking.
25. We have also made further efforts to safeguard our children against
was amended. A “child” is now defined as a person who has not completed his
15th year of age (raised from the previous 14th year). A “young person” is a
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person who has completed his 15th year of age but who has not completed his
16th year of age. The minimum age of employment of children was also raised
from below the age of 12 years to 13 years. Although a child or young person
aged 13 and above is allowed to work under the law, our legislation restricts the
type of work and the maximum number of hours that they may be employed.
Work that could jeopardise their health, safety or morals is strictly prohibited. To
Singapore has also ratified the International Labour Organisation (ILO) Minimum
Juvenile Justice
charged in court, juveniles below the age of 16 who are assessed to be suitable
been extremely successful in diverting children from re-offending. For the batch
of GP youth discharged in 2003, for example, only 8.7% re-offended within three
15
Paragraph 5.12 of Singapore’s 2nd and 3rd Periodic Reports to the United Nations Committee on the
Rights of the Child (statistics from a study by MCYS).
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27. Two new offshoots of this programme have since been introduced: one is
intellectually disabled young offenders. GP-ID aims to reduce the risks of re-
28. The court system has also embraced the spirit of restorative justice and
rehabilitation for children who find themselves on the wrong side of the law. The
Juvenile Court that I mentioned earlier deals with offenders under the age of 16.
In making their decisions on the best outcome in a particular case, the Juvenile
from different disciplines with varying expertise in child welfare and development
areas.
29. In June 2006, the new Community Court was established as a specialist
deals with youth offenders between 16 and 21 years of age. The Community
approach, and have a wide array of sentencing options available to ensure that
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30. A set of National Standards for the Probation of Offenders and their
Standards set out the framework and requirements of the probation system,
providing greater certainty and clarity of roles for all stakeholders in the
Conclusion
advance the rights of children and to protect their welfare. But we are not content
to rest on our laurels. We recognise that there is still much that we can learn from
our counterparts from other jurisdictions who are equally dedicated to the cause
32. I have always stressed the importance of building strong international ties
within the legal community. It is heartening to note that the same spirit of regional
16
http://app.mcys.gov.sg/web/serv_resindv.asp.
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33. This Conference gives us all the opportunity to be a part of something
larger than ourselves, because protecting and advancing the interests of children
such gatherings and discussions among regional judges and family law
practitioners.
34. On that note, I am pleased to declare this Conference open. Thank you
very much.
…..
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