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FEATURE |
This
article examines the extent to which a grandparent is accorded an interest to
seek guardianship, custody and access to his or her grandchild. If kinship and
bonding within the extended the family can be good for the child, how should the
law balance this interest against the interest of parents to be given privacy
from interference in bringing up their child? A recent local case raises these
issues.
CZ v DA: Guardianship
In
CZ v DA,1 the grandmother of the child alleged that the
parents had neglected, ill-treated and mentally abused the child. She applied in
the district court under the Guardianship of Infants Act (‘GIA’)2
(‘Act’) to be appointed the guardian of the child. Her application was
dismissed by the district judge who held that:
The
approach laid down by … the English cases … in a custodial fight between
natural parents and a third party or non-immediate family member, is this. The
court starts from the position that the natural parents have the primary right
to have custody of their child and it is the basic right of the child to be
brought up by the persons who gave him life. It then considers whether the
parents are suitable care-givers of the child. The court is not permitted to
conduct a comparison or balancing exercise between both households. The question
is not which is the better home for the child or whether the child has a
brighter future with one or the other party.
Thus
unless there are compelling reasons which positively demand displacement of the
natural parents’ authority over the child, the welfare of the child3
includes the right to have his or her natural ties to his or her parents
preserved. It is right that the law should not intervene unnecessarily in
familial relationships.
Apart
from this principle, there is a related point which may have prevented the
grandmother from obtaining guardianship. An issue which was not raised in the case is whether the grandmother
had the locus standi to make the application for guardianship in the first
place. It has been argued elsewhere by academics that only parents, testamentary
guardians and court-appointed guardians should have the locus standi to make
applications under the GIA.4 This view preserves the balance of
authority between parents (and legal guardians) and other adults by suggesting
that s 5 is the only enabling provision for applications under the GIA.
Applications
under the Guardianship of Infants Act (‘GIA’)
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’.
Can a grandparent who is not a ‘parent’ nor a ‘guardian appointed under
(the) Act’ make an application under the GIA? If s 5 is the only enabling
provision for applications under the GIA, grandparents will have no locus standi
to bring any application under the Act. Is the law clear on whether s 5 is the
only enabling provision? Academic and judicial views differ on this issue.
Academics have argued that s 5 should be the only enabling provision and that
other interested adults should only be able to ask the court to invoke its
wardship jurisdiction over a child in whom they are interested. However, the
High Court and Court of Appeal in Lim Chin Huat Francis & Anor v Lim Kok
Chye Ivan & Anor5 held a different view.
In Lim Chin Huat Francis, two couples wanted to adopt a little girl
named Esther. The mother of Esther had given her up for adoption shortly after
her birth. Thus in this case, there were no parents interested in the child’s
guardianship. The only adults interested in obtaining guardianship rights over
her were the two couples who had spent some time caring for her. Both couples
desired to adopt her. One couple sought the physical return of Esther from the
other, using an originating summons under s 14 of the GIA which enabled an
application when ‘an infant leaves or is removed from, the custody of his
lawful guardian’. The district court held that s 5 of the GIA was the only
enabling provision in the Act. The appellants were not the parents nor the
guardians appointed under the Act and had no locus standi to bring an
application under the Act. The High Court, however, held that s 14 also enabled
a person to seek the return of a child removed from the custody of his lawful
guardian. The High Court defined lawful guardian to be any person who has the
charge of or control over the child. The Court of Appeal added a time factor
into the definition of ‘guardian’ and held that a lawful guardian is a
person who has charge of or control over a child at the material time. Thus
non-parents like the couple in the case were ‘guardians’ with the locus
standi to make an application under the GIA.
The definition of ‘guardian’ given by the Court of Appeal has been
suggested to be too broad.6 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. It has
been argued that the definition gives more authority to the casual minder than
is desirable and that ‘family law’s settled meaning of “guardian” seeks
out the adult who stands in the position of parent in relation to a child’ so
that ‘the adult in this position is rightly in a status more exalted and
responsible than other adults who may also temporarily have care and control of
the child.’7 Thus interested persons such as the couples in Lim
Chin Huat Francis should not be considered ‘guardians’ but may instead
seek the court’s wardship jurisdiction to settle matters for the child.8
Wardship
jurisdiction in
The wardship jurisdiction has been argued to exist in our courts and that
it could be invoked by virtue of O 84 r 1 of the Rules of Court, read with s 5
and 10 of the GIA and s 17 of the Supreme Court of Judicature Act (‘SCJA’).9
The Court of Appeal in Re C (an infant)10 noted
that the parties had sought an order in the High Court for the child to be made
a ward of the court and observed that:
…
in the court below, counsel for the maternal grandparents had asked the court to
exercise its jurisdiction to make the child a ward of court. The judge below did
not refer to this jurisdiction in her grounds of decision, presumably because
she did not think it was necessary.
Unfortunately, the court did not have the opportunity to fully explore
this issue:
As
the appellant’s counsel had not really canvassed the issue relating to the
wardship jurisdiction of the court, this would not be an appropriate occasion
for us to explore that question.
Nevertheless, the tenor of the judgment suggests that had the parties
pursued the issue, the wardship jurisdiction of the court could possibly have
been invoked. In this case, the child’s father was imprisoned for ten years
for the culpable homicide of his wife, the child’s mother. As his mother had
died and his father was imprisoned, the young child did not have any parent who
could suitably have custody of him. His maternal grandparents applied for and
successfully obtained custody of him. It is unclear from the judgments how the
grandparents were entitled to start the application for custody. Since the
wardship jurisdiction of the court was not exercised, the grandparents must have
been permitted to apply for custody under the GIA read with the SCJA.11
The case supports the view that s 5 is not the only enabling provision under the
GIA. The decision would have been better rationalised had the court adopted the
academic view and assumed its wardship jurisdiction to hear the case.
CZ v DA: Wardship or GIA
application?
In CZ v DA, the grandmother was not the child’s caregiver. Thus,
she is not even a ‘guardian’ within the broad definition given by the Court
of Appeal in Lim Chin Huat Francis. The grandmother relied on s 10 of the
GIA read with s 17 of the SCJA as the basis of her application to be appointed
guardian of the child. Section 10 of the GIA provides that the ‘court or judge
may remove from his guardianship any guardian, and may appoint another guardian
in his place’.
The district court in CZ v DA appeared to have proceeded to hear
the grandmother’s application without invoking the wardship jurisdiction. The
facts of CZ v DA may not have presented a suitable case for the
invocation of the court’s wardship jurisdiction in any case. The child had
always been in the custody, care and control of his parents. There was no
evidence of abuse to the child. The court should find no reason to intervene
under these circumstances. In contrast, an appropriate case for the exercise of
wardship jurisdiction may be that of Lim Chin Huat Francis where the
child’s parents had no interest in her any longer, leaving only non-parents
fighting for guardianship, custody and care and control of her.12
The district court heard the application made under s 10 of the GIA and
decided that the child should remain with his parents. It is possible to have
reached the same result using the academic view and dismissing the application
since the grandmother lacked the locus standi to make an application under the
GIA. By retaining a distinction in the procedure for applications made by
parents under the GIA and those made by non-parents, the law can reinforce the
need to balance properly the power between parents and non-parents over the
child.
The law ought not to intervene at every instance of disagreement over the
upbringing of children. Unless there is evidence of parental neglect or abuse
such as that envisaged by the Children and Young Persons Act,13
parents must be accorded freedom from intrusion and be given the privacy
conducive to bringing up their children in the way they consider best. In
contrast, where the child’s parents are no longer interested in obtaining
custody or guardianship of him or her, the court may consider exercising its
wardship jurisdiction and making orders in favour of non-parents where they
serve the child’s welfare.
CZ v DA: Access
Under the GIA
In CZ v DA, the grandmother also sought access to
the child which had been denied to her by the parents after she had embarked on
an intensive series of complaints against them. The district judge held that
‘the law does not confer on the grandmother any right to access to the child,
unlike that of a non-custodial parent’. The grandmother appealed against the
decision on access. The High Court affirmed the decision of the court below and
distinguished Re C (an infant) which had awarded access to a grandmother:
… a grandmother is, without more, not entitled to apply
for an order for access to her grandchild. Admittedly, in Re C (an infant)
[2003] 1 SLR 502, the paternal grandmother was granted limited access to her
grandson but this was due to the very special circumstances in that case,
namely, that the child’s mother had been killed by his father, who was
imprisoned for the crime.
This decision clarifies that a grandmother, without more,
does not have rights of access. It accords with the academic view that
non-parents and non-guardians do not have the locus standi to bring an
application under the GIA for custody, access and
maintenance.
Under Part X, Women’s Charter14
The position described above is rightly applicable where the child’s
parents remain in a subsisting marriage. It may be distinguished from cases in
which the child’s parents are undergoing a divorce. When parents seek
termination of their marriage under Part X of the Women’s Charter, the court
is empowered to make orders as it thinks fit with respect to the welfare of any
child of the marriage. Section 125, under Part X of the Women’s Charter,
provides that the court may place the child in the custody of the parents or a
relative of the child or any other person. Since the welfare of the child is the
paramount consideration, the court is not restricted to awarding custody to only
the parents. It is possible that a grandparent could seek custody. In a sense, a
parent’s petition for divorce has the effect of inviting the court to assume
jurisdiction over the child to make any order for his or her welfare. Under
these circumstances, the parents are separating and new arrangements must be
made for the child who is directly affected by the breakdown of that household.
Rule 40 of the Women’s Charter (Matrimonial Proceedings) Rules provides
that the ‘petitioner or the respondent spouse or guardian or any person who
has obtained leave to intervene in the suit for the purpose of applying for
custody or who has the custody or control of any child of the marriage under an
order of the court, may after entering an appearance to the petition for this
purpose, apply at any time either before or after final decree to a judge for an
order relating to the custody or education of the child’. If it is possible
for a grandparent to intervene during the parents’ divorce proceedings to seek
an order of custody of the child, it is likely that access, being a ‘lesser
right’ than custody, may also be sought. A grandparent under these limited
circumstances is not starting a new application to bring the child before the
court for resolution of matters. The court is already possessed of jurisdiction
and power to make orders for the child’s welfare.
Distinction between GIA and
Women’s Charter applications
Hence, a grandparent seeking access under such circumstances of parental
divorce need not invoke the court’s wardship jurisdiction nor apply for an
order under the GIA since the court already has jurisdiction over and is
empowered to make orders for the child by virtue of Part X of the Women’s
Charter. However, where no such proceedings are taking place, a grandparent
requires the locus standi to bring the application before the court. CZ v DA involved
parents who were in a subsisting marriage and who were carrying out their
parental responsibilities to the child. These parents should in ordinary
circumstances be given the privacy to carry out their parenting duties without
interference from third parties. The court rightly denied the grandmother the
procedure to interfere.
Access should be ordered to promote the welfare of the child. Short of
exceptional circumstances such as abuse, it is accepted that it is in the
child’s best interest to have access with the parent who does not have care
and control. Viewed in this context, parents are treated as if they have
‘rights of access’ to his or her child. It is preferable, however, to avoid
emphasis on such ‘rights’ of a parent to access and focus instead on the
‘responsibility’ of a parent to bond with and nurture the child. While the
law expects parents to carry out this parental responsibility to the child, it
does not expect the same responsibility from a grandparent. Although spending
time with grandparents can also promote a child’s welfare, the law does not
interfere in every aspect of a child’s arrangements.
In CZ v DA, the grandfather ‘was able to see his grandson without
difficulty’ but the intense interference of the grandmother did not promote
the welfare of the child and she was denied access. The district judge in the
case expressed hopes ‘that parties could through time resolve their
differences and the parents can on their own accord start giving the grandmother
access to their child’. It is not for the law to try to resolve every private
family dispute. There is a place for family members to resolve matters privately
amongst themselves.
After studying the role of grandparents in divorced families in England,
the authors of the study concluded that ‘(a)s long as it remains the general
view of the legal system that courts are not the best places in which to resolve
family disputes, it would seem unwise to single out grandparents as a group
deserving extra help in invoking the legal process.’15
Conclusion
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 s 5 of the GIA, the court will hear the
applications of these adults and make orders in accordance with the welfare
principle.16 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.
Assoc Professor Debbie Ong
E-mail: [email protected]
Endnotes:
1
High court decision reported in [2004] 4 SLR 784; subordinate court
decision reported at [2004] SGDC 192.
2
Cap 122, 1985 ed.
3
The welfare of the child prevails over all other considerations. This
principle is expressed in the Guardianship of Infants Act, ibid, 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 …
4
See Leong Wai Kum, Restatement of the Law on Guardianship and Custody
in
5
[1999] 3 SLR 38.
6
Supra, note 4.
7
Ibid, at p 462.
8
See article in note 4, supra, and Chan Wing Cheong, Application under
the Guardianship of Infants Act [1998] SJLS 182–194.
9
Cap 322, 1999 ed; and see Leong Wai Kum, ‘Principles of Family Law in
10
[2003] 1 SLR 503.
11
The district court in Re E (Guardianship of an infant) [2003] SGDC
which applied Re C (an infant), ibid, also entertained a similar
application by relatives of a child whose mother had passed away; it probably
assumed that the parties were entitled to seek guardianship of the child under s
10 of the GIA.
12
This is suggested by the articles in note 8, supra. The cases of Re C
(an infant), supra, note 10 and Re E (Guardianship of an infant),
ibid, where one parent has passed away and the other parent is not presently
having care and control of the child, may also be appropriate cases.
13
Cap 38, 2001 ed. See s 5 on ill treatment of a child.
14
Cap 353, 1997 ed.
15
Douglas and
16
See supra, note 3.