Family Conference 2021: Big Questions in a Small World
International Issues in Singapore Family Practice
With COVID-19 still in our midst, the Family Conference 2021 provided a virtual platform for esteemed panellists and participants from around the globe to come together to explore “big” questions of international dimensions in an ever increasingly “small” interconnected world. The eight sessions spanning 28 and 29 September 2021 moderated by members of the judiciary and senior practitioners of the Singapore family bar, covered topics from substantive international issues such as relocation and child abduction, mental capacity, recognition of Muslim divorces, and nuptial agreements to mediation and advocacy skills, and alternative dispute resolutions.
Day 1: Keynote Address by Minister Edwin Tong – Reflecting on Our Past to Look to Our Future
Minister for Culture, Community and Youth and Second Minister for Law, Mr Edwin Tong SC, kicked off the conference this year by marking the significance of the Year of Celebrating Singapore Women in conjunction with the 60th anniversary of the Women’s Charter. “Anniversaries emphasise remembering”, he said, as he shared his reflections on our past in preparation for the future.
Telling the story of our family law from Singapore’s modern beginnings in 1819, Minister Tong noted how as a freeport and multicultural immigrant society, we were never strangers to international issues. The fundamentally unequal conception of the relationship between husband and wife imported from the English common law, however, had to evolve over time and was transformed with the enactment of the Women’s Charter in 1961 which was moved by a “deep and profound conviction as to how a good society should be regulated”.
Although we have come a long way, “the work is not done”. Minister Tong proffered that family law by its nature will continue to grapple with how far the law should encroach into the private family space and the multitude of pluralistic voices on social and ethical matters. On issues such as family violence and maintenance of parents, for example, non-intervention may not be an option, but over-intervention may render healing within the family more difficult, or erode family values. Where intervention was required, Minister Tong suggested, lawyers represent “the bridge that connects the law to justice”.
(Click here to read Minister Tong’s Keynote Address).
CJ Koh Family Law Lecture – Family Law in Singapore and the International Family
In her lecture, Justice of the Court of Appeal Judith Prakash shared her thoughts on how the principles of local family law apply to the international family. With the number of marriages involving one non-Singaporean spouse increasing, this was a subject of especial significance. International dimensions of such families cut across all issues in family law, with the potential to make them both “easier” and more complicated.
Taking TSF v TSE  2 SLR 233 as an example, shared care and control was not realistic in such a case because the parents would be in different jurisdictions. This meant that the Court had to make a stark choice between parents and where the child would live. The determination of the child’s best interests would also take on international elements such as the immigration status of the child in a foreign jurisdiction. Separately, TOF v TOE  SGCA 80 showed how division of matrimonial assets can be complicated with the presence of multiple assets spanning multiple asset classes and spread across multiple jurisdictions.
Despite the challenges unique to the international family, Justice Prakash stressed the universality of the fundamental principles of family law, observing that the Courts are adept in using existing frameworks to accommodate international differences. The focus should be on finding commonality and striving for similarities so that the international family will be treated the same way as any other family. She shared how even in BDU v BDT  2 SLR 725, the Court of Appeal employed domestic techniques and principles to resolve the issue of child abduction despite Singapore not being a party to the Hague Convention on the Civil Aspects of International Child Abduction at that time.
Fight or Flight: Is Abduction a Hindrance to Return?
The panel worked through a hypothetical scenario to understand the various positions in three contracting members of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) – Australia, the United States, and Singapore – and one non-contracting member, Malaysia. Ms Keturah Sageman and Mr Yap Teong Liang discussed how Australia and Singapore nonetheless appear to treat the issue of ‘habitual residence’ and ‘grave risk’ defence under Article 13 of the Convention similarly.
The American approach, as Mr Jeremy Morley explained, recently shifted in 2020 from the last shared intention of the parents to looking at the ‘totality of the circumstances’ particularly as viewed through the eyes of the child, more similar to the Australian and Singaporean approaches. In all three jurisdictions the parents’ agreement to return to another jurisdiction is now but one of the many factors they courts will take into consideration in determining the child’s habitual residence. With respect to the ‘grave risk’ defence, the American approach considers whether there is a risk of harm in the immediate period prior to the court of habitual residence making a custody determination.
Although Malaysia is a non-contracting member of the Convention, it was interesting to note that the considerations are substantively similar. Ms Kiranjit Kaur Dhaliwal shared that the Malaysian Courts will first consider whether the child is a transient visitor before determining the remedies to be ordered. Like the other three jurisdictions, the Malaysian Courts will only intervene if there was a real and immediate danger to the child if ordered to be returned to their habitual residence. The only difference was the increased costs of proceedings arising from the lack of expedited protocols under the Convention.
Mental Capacity: A “Patient’s” Past and Present Wishes, and the Lawyer’s Role
The issues surrounding mental capacity, though not of an international character per se, is of shared international concern particularly in many developed countries with aging populations and the rising incidence of dementia. As participants heard, the statutory framework in Singapore covered by District Judge Toh Wee San and that in England are, as Senior Judge Carolyn Hilder noted, very much aligned, and whilst Australia had a somewhat different system, Ms Christine Smyth shared that the underlying principles remained the same.
In making decisions on behalf of the patient, the Courts in Singapore and England and Wales considered his welfare in the widest sense, including his/her wishes and attitudes. This raised the question of how disparate past and present wishes should be weighed. Senior Judge Hilder’s suggestion was that if we were looking at a decision that would have immediate impact on the “patient” (such as where the “patient” is going to live), present wishes might carry more weight; whereas with the subsequent disposition of property (as in a statutory will), for example, it may be more important to reflect the “patient’s” wishes over a long lifetime. On a related but different point, the recent divisive and controversial English case of Re PW1University Hospitals Birmingham NHS Foundation Trust v PW (By her Litigation Friend, the Official Solicitor) (2021) EWCOP 52. found that although the “patient” presently lacked capacity, she had nevertheless “invalidated” her earlier advanced decision not to receive blood transfusion by “inconsistent conduct”, thus leaving the decision in the jurisdiction of the Court.
Whilst the Court’s view in Singapore as introduced by moderator Ms Sim Bok Eng was that lawyers were not trained to assess mental capacity and could play only a limited role,2BUV v BUU (2019) SGHCF 15. Ms Smyth and Mr Alexander Ruck Keene expressed the view that in their jurisdictions “mental capacity” was ultimately a socio-legal construct within the scope of a lawyer’s professional training to assess (although it remained consistent practice to consult medical professionals to safeguard against future challenges). The different tests under the Mental Capacity Acts (MCA) and Banks v Goodfellow, in DJ Toh’s view, also in line with BUV v BUU,3BUV v BUU (2019) SGHCF 15. overlap insofar as a testator without mental capacity under the Mental Capacity Act is unlikely to have testamentary capacity; whereas in the English Court’s view in Clitheroe v Bond4(2020) EWHC 1185 (Ch). the MCA’s purposes simply did not extend to a determination of testamentary capacity.
Recognising Muslim Marriages and Divorces Worldwide: Needs and Considerations
Whilst Minister Tong in his Keynote Address traced our legal history to Singapore’s modern beginnings, Mr Ahmad Nizam Abbas quipped that even before Sir Stamford Raffles stepped foot in Singapore 1819, Muslim Law was already practised on our shores. Mr Nizam shared how Muslim Marriages have come to be recognised in Singapore since, from the time when divorcing parties would have no recourse but to the local Kadi, through Ordinance V of 1880 allowing for formal registration, the Muslim Ordinance of 1957 creating the Syariah Court, and the Administration of Muslim Law Act of 1966, which remains the main statutory basis by which Muslim spouses can avail themselves of the law to date.
The position in Singapore was, however, contrasted to that in England where, as Ms Aina Khan shared, there was no formal legal structure, and many Muslim marriages (some 80 per cent or so) went unrecognised. This led to unforeseen hardship on parties unable to seek relief from the Court upon breakdown of marriage, and allowed polygamy to go unchecked. Whilst it was open for Muslim couples to register their marriage at the civil registry, this was in practice relatively uncommon given the lack of awareness, and also instances of power imbalances with the stronger party or his family refusing registration to deny the weaker party any rights under the law.
As Ms Khan noted, however, foreign Muslim marriages and divorces if recognised in the foreign country (with due process being followed) would be recognised in the English courts under private international law for the purposes of divorce/granting ancillary relief. Whilst foreign Muslim marriages may be recognised in Singapore with the relevant certificate and formalities, for parties with a foreign Muslim divorce seeking ancillary relief in Singapore, Mr Nizam shared that neither the Syariah Court nor Family Justice Court has jurisdiction, and the legal vacuum is avoided only by invoking the residual jurisdiction of the High Court.5TMO v TMP (2017) 1 SLR 585.
Shared Challenges, Principle and Philosophy of the Syariah Court and Family Justice Court
The first female Senior President of the Syariah Court, Ms Guy Ghazali, delivering the closing address for Day 1 shared how all three issues discussed in sessions, could intersect and overlap, presenting lawyers and judges with factual matrixes. Relocation matters, for example, are heard in the Syariah court as in the Family Justice Courts, presenting much the same challenges in each case; and even Muslim divorce on grounds of “talak” (a form of “no-fault divorce” that can be relied upon by both the wife and husband) could raise issues as to whether the husband had “mental capacity” to make the pronouncement.
Whilst sharing perspectives from the Syariah Court, Ms Ghazali shed light also on the fundamental principles common to the civil and Muslim law, such as the paramount consideration of the welfare of the child, are also very much ingrained under Muslim law. One topical area of convergence is in the pursuit of therapeutic justice (TJ) which, Ms Ghazali shared, is itself aligned with the Syariah Court’s own philosophy to facilitate divorce (where reconciliation was not possible) “premised on peace and compassion” through various avenues from counselling, mediation and appointment of Hakam. Looking to the road ahead, Ms Ghazali urged that bigger than the “big” questions in a “small” world, must be our collective commitment to do the utmost we can for affected families as they walk through the path in family justice system.
Day 2: Keynote Address by Justice Debbie Ong – Practising Therapeutic Justice
This year’s speech by Justice Debbie Ong, Presiding Judge of the Family Justice Courts, focused on putting the “head-knowledge” of TJ into practice. Justice Ong shared that the Family Justice Courts were rolling out a slew of initiatives aimed at reducing conflict and acrimony including the establishment of POTS – the Panel of Therapeutic Specialists; POFE – the Panel of Financial Experts; MDT – the Multi-Disciplinary Teams consisting of hearing judges, a judge-mediator, court family specialists, and a case manager; voluntary TJ certification; Divorces eService; and Family Orders Guide.
Three, in particular, are worth highlighting. First, the Divorces eService aims to reduce the painful process of filling up forms by parties and their lawyers. Second, complementing the Divorces eService, the Family Orders Guide is a catalogue of court orders for parties and their lawyers to refer to and reduce disputes over the language used. Third, the pilot MDTs are currently assigned to cases involving high acrimony and conflict in the marital relationship, disagreement over parenting plans, family violence, and multiple applications in ongoing proceedings. These teams seek to build a conducive environment for healing and restoration for parties through encouraging responsible parenting and connection of parents and children to suitable supportive therapeutic services. The goal is to triage early and support the family early in the proceedings to prevent the escalation and subsequent reduction of acrimony.
Conflict Resolution through Mediation and Advocacy: Managing Thorny Issues and Words
The two sessions brought a refreshing change in pace in the programme and elicited lively discussions. Panellists from different backgrounds provided live commentary of their views on the conduct and words of lawyers and judges in pre-recorded enactments of client meetings, mediation, and hearing, all role-played by members of our local judiciary, District Judges Wong Sheng Kwai and Suzanne Chin, and members of the family bar, Ms Hoon Shu Mei, Mr Ivan Cheong, Mr Wang Liansheng, Ms Kanyakumari d/o Veerasamy, Ms Carrie Gill, and Ms Poonam Mirchandani. In the panel discussions moderated by Registrar Kenneth Yap and District Judge Kevin Ng, role players were joined by Professors Tania Sourdin and Vicki Lens; and MSF psychologists Ms Jennifer Teoh and Ms Sophia Ang.
Ms Teoh highlighted the importance of reframing the underlying concerns and the usefulness of tapping on parties’ mutual interests using TJ in mediation whilst Professor Lens shared that even in court proceedings, the TJ approach made judges and lawyers more effective and efficient. Conversely, she found in the course of her research that courts that did not employ TJ resulted in unnecessarily protracted proceedings.
Participants saw and learned that TJ does not transform the lawyer into a social worker; lawyers remain advocates who continue to represent the best interests of their clients whilst maintaining due process and procedural fairness. As DJ Wong shared, TJ is not some lofty concept but is a practice which needs time to be cultivated. All that can be done is to “lay a brick here and there” to build the foundations for TJ, much like how lawyers counsel clients to take “baby steps” through the process towards a resolution.
Nuptial Agreements: Penny-wise, but Pound-foolish?
Looking at the issue of nuptial agreements on a spectrum, moderator for the session, Mr Randolph Khoo, shared that Singapore took the position on one end where such agreements are always subject to the scrutiny of the Singapore Courts, whether pre- or post-nuptial. France’s position as shared by Ms Isabelle Rein-Lescastereyres lies at the other end, where nuptial agreements done before a notaire are almost always binding (in only two cases were these agreements ever voided), although they would be limited to property divisions.
The English and Hong Kong positions lie somewhere in between in that both adopt the same principles from Radmacher v Granatino (Radmacher): the courts “accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated”.6(2010) UKSC 42 at (78). Ms Sharon Ser shared that the largely matriarchal Hong Kong society has resulted in the increase in nuptial agreements in 2010, the same year when Radmacher was adopted. The Hong Kong Court of Final Appeal has since affirmed Radmacher and clarified that nuptial agreements should be upheld “unless there were vitiating factors or a compelling case of unforeseeable circumstances”.7SPH v SA (2014) HKCFA 56 at (29).
Mr Tom Amlot questioned whether the latest English (and Hong Kong or France) positions are necessarily preferable to Singapore’s, and suggested that the Courts may be in a better position to know what is best or most just for them at the time of divorce than the parties by nuptial agreements made some time before. There was also the concern raised that it would typically be the decision of the financially stronger party, with the financially weaker party just “going along with it so as to not rock the boat”.
The Shift in Family Law Dispute Resolution: Are Alternative Dispute Resolution Options Really “Alternative”?
With approximately 90 per cent of family cases resolved partially or fully without court adjudication in Singapore in 2020, it is a fair question whether “alternative dispute resolution” (ADR) at least in the family context is now or should be the mainstay. As participants heard from panellists with Ms Wong Kai Yun as moderator, there has been a collective shift to take family dispute resolution out of the courts internationally, with each jurisdiction having its own unique cocktail of options.
Professor David Michael Hodson, certainly made a convincing case for arbitration given the advantages of speed and flexibility and taking the case load off the courts’ backlog. Parties can tailor or modify processes such as discovery and mode of hearing to suit their case, and “mix and merge” mediation and arbitration, going to arbitration for a determination if they got stuck at mediation on a contentious issue. As a non-binding “alternative”, Ms Gretchen Beall Schumann shared that as part of the Matrimonial Neutral Evaluation Programme (MNEP) in the Courts of Manhattan, New York, neutral evaluators could caucus with parties, share on potential outcomes, and perform “shuttle diplomacy”. Of note, the MNEP does not stay ongoing litigation and it was Ms Schumann’s observation that the pressure of Court processes combined with concurrent neutral evaluation process, proves a powerful mechanism for parties to reach a resolution.
Mr Nigel Nicholls shared that parties in Australia are required to attend a Child Dispute conference with a Family Consultant (a social worker or psychologist employed by the Court) which can include a child inclusive process, and a Conciliation Conference (for financial matters), not unlike our own compulsory Child Focused Resolution Centre (CFRC) mediation; and that, separately, collaborative practice in Australia had developed an interdisciplinary practice with a neutral coach, financial neutral and child consultant as needed. Ms Engelin Teh SC pointed out, however, that compulsory mediation process within the Family Courts was nevertheless unique in that the mediators comprised of experienced family judges themselves whilst Collaborative Family Practice in Singapore been less widespread due to the restriction that CFP lawyers will not be able to act for their clients in Court proceedings.
In closing, Deputy Presiding Judge Chia opined that as we continue to adopt various forms and elements of ADR in family disputes in Singapore, whether or not arbitration can or should be added to our ADR arsenal was an open question. In any case, Judge Chia commended the Singapore family bar for their role and efforts in co-developing ADR in family disputes.
“Live So That When Your Children Think of Fairness, Caring and Integrity, They Think of You”
Bringing this year’s conference to a close, Mr Gregory Vijayendran SC shared that the family lawyer, as with other care professionals, heals families. Mr Vijayendran suggested family lawyers take an empathetic and holistic view in seeking healthier solutions for their clients which begins with first asking the right questions, not only in the courtroom as lawyers are trained to do but from the outset. The right questions, he says, have the capacity to remove false narratives, and can bring reflection for the client. Assured that participants have received not just information but insights through the conference, Mr Vijayendran expressed the hope that all would come closer to the classic aspirational words of H. Jackson Brown, Jr to, “Live so that when your children think of fairness, caring, and integrity, they think of you.”
|University Hospitals Birmingham NHS Foundation Trust v PW (By her Litigation Friend, the Official Solicitor) (2021) EWCOP 52.
|BUV v BUU (2019) SGHCF 15.
|BUV v BUU (2019) SGHCF 15.
|(2020) EWHC 1185 (Ch).
|TMO v TMP (2017) 1 SLR 585.
|(2010) UKSC 42 at (78).
|SPH v SA (2014) HKCFA 56 at (29).