Professional Documents
Culture Documents
(1997) 3 SLR (R) 0430
(1997) 3 SLR (R) 0430
Facts
The appellant, Soon, had applied for a variation of an interim child custody
order under which the care and control of their four-year-old child had been
granted to her husband, the respondent Woon, with liberal access on weekends
to her. Soon applied for an order granting her the sole custody, care and control
of the child. Her application to vary was dismissed by the trial judge on grounds
that: (a) Soon was not cured of thyrotoxicosis and based on the affidavit of the
respondent’s sister, Soon was prone to losing her temper and self-control; (b) the
infant lacked nothing in the two years under the respondent’s care; and (c) the
appellant’s home environment was not conducive to the upbringing of the
infant; essentially, that there was no change of circumstances which warranted a
variation. Soon appealed to this court. The issues in the appeal were: (a) the
admissibility of hearsay evidence in custody proceedings; (b) whether Soon had
recovered from her illnesses; and (c) considerations in determining custody of
the infant.
(3) The alleged accounts of Soon’s violent behaviour by the infant to the
respondent’s sister contained in the latter’s affidavit was hearsay and should not
have been admitted into evidence: at [35].
(4) There had been a change of circumstances from the time the interim order
was made. Soon had recovered from her post-natal depression. She was still
under medication for her thyrotoxicosis, but that was not reason to conclude
that she would prove to be a danger to her child. Her doctor was convinced that
she was able to lead a perfectly normal life and was capable of taking care of her
child while on medication: at [40] and [42].
(5) That the child had been taken good care of during the period of the
interim order was not an important consideration. In fact, Soon was in a more
appropriate position to take care of the child because she worked from home
while Woon would be away at work in the day: at [43].
(6) All things were equal between the Soon and the respondent. Both
undoubtedly loved their son dearly. Both were capable of looking after him and
had their respective families behind them to help out. All these things being
equal between the father and mother, a very important factor to bear in mind
was the fact that the child was very young. A child at a very tender young age
would be most dependent on his mother for his physical and psychological
needs. This should not be mistaken as reviving the old presumption of “maternal
custody” of all young infants. In the best interest of the child’s welfare, we should
not deprive him of his mother’s love and care: at [44] and [45].
[Observation: With respect to social welfare reports ordered by the court, such
reports should be admissible even if they contained hearsay. In child
proceedings, a welfare officer directed by the court order to investigate and
report had a duty to give to the court all the information which he considered to
be relevant and should not be constrained by the hearsay rule from including
relevant but otherwise inadmissible information: at [36].]
Case(s) referred to
Chan Kah Cheong Kenneth v Teoh Kheng Yau [1994] 2 SLR(R) 595; [1994] 2 SLR
879 (folld)
E (SA) (A Minor) (Wardship: Court’s Duty), In re [1984] 1 WLR 156 (refd)
Gilbert v Endean (1878) 9 Ch D 259 (refd)
H v H (Minors) (Child Abuse Evidence); K v K (Minors) (Child Abuse Evidence)
[1989] 3 WLR 933; [1990] Fam 86 (refd)
K, Re [1965] AC 201 (refd)
Rossage v Rossage [1960] 1 WLR 249 (folld)
Shanta Kumari K v Vijayan [1986] 2 MLJ 216 (folld)
Thompson v Thompson [1986] 1 FLR 212 (refd)
Legislation referred to
Criminal Procedure Code (Cap 68, 1985 Rev Ed)
Evidence Act (Cap 97, 1990 Rev Ed) s 62 (consd);
s 2(2), 62(1)
Guardianship of Infants Act (Cap 122, 1985 Rev Ed) s 3 (consd);
s5
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Jimmy Yim and Kareen Looi (Drew & Napier) for the appellant;
Tay Siok Leng (Loh Lin Kok) for the respondent.
[Editorial Note: This was an appeal from the decision of Lai Siu Chiu J in the High
Court. See 1995] SGHC 287.]
4 November 1997
Yong Pung How CJ (delivering the judgment of the court):
1 This appeal arises out of an order by Lai Siu Chiu J on 24 April 1995,
whereby interim custody, care and control of the infant boy, Woon Chen
Ee, was given to the respondent with liberal access on weekends to the
appellant pursuant to s 5 Guardianship of Infants Act (Cap 122). The
appellant filed an appeal against the order but withdrew it after the learned
judge delivered her grounds of judgment on 30 November 1995.
2 On 14 August 1996, the appellant made an application for a variation
of the earlier order and asked for the sole custody, care and control of the
infant on the ground that there had been a change of circumstances. This
was dismissed by Lai Siu Chiu J on 30 January 1997. Being dissatisfied with
Lai Siu Chiu J’s decision, the appellant appealed to this court by way of a
notice of appeal filed on 12 February 1997.
3 The appeal came up for hearing before us on 8 October. After hearing
the arguments for both sides, we allowed the appeal and varied the custody
order. The custody, care and control of the infant was granted to the
appellant, with liberal access to the respondent. We will now set out the
grounds of our decision.
The facts
4 The appellant and the respondent were married on 23 November
1992. They have a four-year-old son, Woon Chen Ee, who was born on
10 October 1993. The infant was the centre of a bitter battle for custody.
The parties have now been separated for about two years, and have yet to
begin divorce proceedings.
5 Both the appellant and the respondent hold a Bachelor of Science
degree from the National University of Singapore. Initially, the marriage
was a happy one. However, the relationship deteriorated rapidly after the
birth of the infant. From a reading of the affidavits tendered by both sides, it
was apparent that there was much bitterness between them, with frequent
quarrels and fights. The respondent deposed at one point that the appellant
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would hit him and shout and scream at the top of her voice, causing the
infant to be badly startled and to cry. We were of the opinion that it would
be prudent not to impute too much weight and significance to the affidavits
in discerning the actual scenario of the circumstances of the case. There
might have been a tendency to exaggerate and be misconceived as to the
factual situation of the various events which took place up to the point of
the first application by the appellant for custody, care and control of the
infant. This was especially so since there was much antagonism between the
parties which possibly might have affected their sense of objectivity. The
pent-up emotion involved made it unsafe to determine the veracity of the
accounts by both sides solely from the affidavits filed.
6 Be that as it may, one incident merited highlight as it immediately
preceded the respondent’s leaving the matrimonial home and separation
from the appellant. The accounts given by both sides were in stark contrast
with each other. According to the appellant, on 5 July 1994, after yet
another quarrel with the respondent the night before, she woke up and, still
angry with her husband, started a fight with him. During the quarrel, she
fainted at the balcony. When she came to, there was nobody in the
apartment. The respondent had, by that time, taken the infant and left
without a word. She lodged a police report. After a long and frantic search,
she found out, on 6 July 1994, that both husband and child were at her
mother-in-law’s place. According to her first affidavit:
… I called the respondent’s brother’s wife at about 11 o’clock and told
her to deliver my ultimatum to the respondent, that is, if he did not
bring the baby home immediately, I would consult a lawyer and take
the whole matter to court. In the heat of the moment, I added that if
the respondent did not bring the infant home, I would bring a knife
over to his mother’s apartment and they had better lock the door when
I came over. I did not really intend to do that. I was just trying to scare
them into bringing the infant home. I realise now that it was a foolish
thing to say, and I believe the respondent’s family members have
lodged a police report. All I can say is that I was almost out of my mind
with worry over what the respondent had done with my baby.
The respondent, on the other hand, denied that the appellant had fainted
on that occasion. According to his police report, which he lodged on the
day of the quarrel after leaving the matrimonial home, the appellant merely
fell at the balcony in the process of the struggle between the two of them
during the fight. He had left with the infant and had gone to the police post
to request them to make a visit to the flat. After putting the baby in safety,
he called the police and was informed that everything at the apartment was
in order. He said that he was not informed of the appellant’s fainting. In his
first affidavit, the respondent said that he had taken the infant away after
the incident on the morning of 5 July 1994 because:
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I could not let the baby live in constant fear. It was not my intention to
deny the applicant access to the baby. The said incident was the last
straw as the child should have a peaceful environment to grow up in.
(d) Lai Siu Chiu J also stressed that she did not over-rely on the
findings in the confidential social welfare report in coming to her
decision. Her Honour commented that:
As I pointed out to her counsel, it was highly improper of the
wife in making the second application to suggest that the report
made allegations against her character which she should be
allowed an opportunity to defend. The social welfare authorities
are called upon by courts to conduct investigations precisely
because they are an independent body with no reason to favour
or disfavour either party in contentious custody proceedings;
their reports are entirely objective. If anything the second
application confirmed how irrational the wife was to think that
the welfare authorities were biased against her.
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He was of the opinion that, with the successful treatment of both the post-
natal depression and thyroid condition, the appellant did not pose any risk
to the infant’s safety. A return of custody to the appellant would be
beneficial to the infant since it was generally recognised that there was an
attachment between a mother and child which was crucial to the healthy
development of the child. When this attachment was severed by prolonged
separation between mother and child, the child’s behaviour may display
ambivalent feelings of wanting the mother and anger at the same time at her
desertion of him. Once the child reached the detachment stage, he may
develop a personality devoid of affection, characterised by emotional
withdrawal.
15 Both parties filed various affidavits, the contents of which need not be
dealt with in detail. It would suffice to say that they were highly emotive,
with each side alleging wrongdoing by the other party. For instance, the
respondent, in his third affidavit, said that according to the access
arrangement under the order, the infant was to be returned to him at
7.00pm on Sundays. Despite the lateness of the hour, the infant was
returned unfed. He now made it a point to check with the infant if he had
had his dinner. On another occasion (30 April 1995) when the infant was
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returned to him that Sunday evening, he found that the boy was suffering
from multiple insect bites for which medical attention was sought. It was
therefore untrue that no one could take better care of a child than his own
mother. The appellant, on the other hand, alleged that the respondent did
not provide a proper home environment for the infant. She backed up her
claim by providing a report of a private investigator dated 5 November
1996. According to the report, the respondent was not staying with his
sister (he claimed that he was staying with her and that she was the
surrogate mother of the child) but with his mother at Pandan Gardens. The
boy was shuttled between the sister’s flat at Choa Chu Kang and Pandan
Gardens. Occasionally, the respondent even left the infant with an
unknown woman at 10 Faber Grove, who was presumably a babysitter. The
appellant said that such conduct displayed the respondent’s selfishness – he
was more concerned about winning the custody battle than the infant’s
welfare.
17 Lai Siu Chiu J was of the opinion that, although the appellant was
cured of her post-natal depression, she was not yet cured of thyrotoxicosis
but that the condition was only under control. From the medical report
exhibited in Kareen Looi’s first affidavit on 18 July 1995, it was noted that
the appellant did show physical symptoms of thyrotoxicosis, including
protruding eyes and enlarged thryroid glands. She also displayed other
classic symptoms of the disease – she was highly strung, irritable, anxious
and insomniac. Lai Siu Chiu J opined:
It appeared from exh WYC4 in Dr Wong’s affidavit, that the wife was
not as yet cured of this condition, she was still on medication and
follow-up by her doctor — I understood that to mean she was on
medication to control the condition. If that is the case, I had no
assurance that the wife would not, in a fit of anger, harm the infant. I
only had Dr Wong’s word and that of the wife that she would not harm
her own child; in my view that is not good enough. Who knows what
stress or provocation may trigger off the wife’s loss of temper and
control?
Lai Siu Chiu J felt that the appellant’s tendency to lose her temper and self-
control was borne out by the affidavit of the respondent’s sister, Woon Sai
Cheng, in which she deposed that the infant recounted and demonstrated
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to her what he saw and heard when the appellant and her grandmother
quarreled. The learned judge concluded that:
Unless the sister’s allegation is untrue, I cannot imagine that a child of
this tender age would have such a vivid imagination that he would
report something which did not actually take place; similarly, it is
unlikely that the infant would repeat to the sister what the wife had said
when he expressed his affection for the husband, unless it was told to
him. It seems to me that a child will be even more confused if he were
to live with a mother who, depending on her mood, may profess to love
him or show her affection for him at one moment and in the next,
reject him or tell him she does not care for him because he expresses
his affection for his own father.
18 The second ground of Lai Siu Chiu J’s decision was that the infant
lacked nothing in the two years since the respondent took over his care and
control.
19 The learned judge was not convinced that the home environment of
the appellant’s family was conducive to the proper upbringing of the infant.
Lai Siu Chiu J had “no doubt” that the appellant’s family dispensed with the
basic civilities in their daily lives. This, she felt, was bad influence on the
child.
20 Finally, Lai Siu Chiu J was of the view that the application was
premature and that, in any case, it was only an interim measure pending the
outcome of any divorce proceedings instituted in future.
The appeal
21 Being dissatisfied with Lai Siu Chiu J’s refusal to grant a variation of
the custody order of 24 April 1995, the wife appealed to this court. The
appellant tendered three main submissions in support of her appeal:
(a) Lai Siu Chiu J had no basis upon which to make a finding that
the appellant had not been cured of thyrotoxicosis. From a reading of
Exh WYC4 of Dr Wong’s affidavit, there was no mention that the
appellant was still on any kind of medication for controlling her
condition. There was no basis for the assumption that the disease was
only under control. The appellant also applied, by way of Motion
No 208 of 1997, to adduce fresh evidence which would confirm that
the appellant had not required any medication since May 1996 to
control her thyroid condition, contrary to Lai Siu Chiu J’s finding. It
was further submitted that the learned judge had erred in accepting
the contents in the affidavit of the respondent’s sister as stating the
truth, without the benefit of any cross-examination. The deposition in
the affidavit was also inadmissible as hearsay since it consisted of
narration of events in the appellant’s family which were allegedly
recounted by the infant to her.
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(b) The learned judge, by concluding that, in the two years since the
order, the infant had lacked nothing, failed to take into account or
sufficient account of Dr Wong’s opinion that the infant would benefit
more by being with the mother. There was no sufficient medical basis
to assume that the infant would lack nothing in future. Also,
inadequate weight was given to the private investigator’s report,
which threw light on the amount of time the respondent was
spending with the infant.
(c) It was further submitted that Lai Siu Chiu J’s finding, that the
appellant’s family dispensed with basic civilities in their lives, was an
error. In finding that the appellant’s home environment was not
conducive to the upbringing of the infant, the learned judge had
misdirected herself in law by accepting the respondent’s disputed
affidavit evidence, without the benefit of cross-examination.
22 The power of the court to make or vary an order for the custody of a
child is provided for in s 5 Guardianship of Infants Act (Cap 122), which
reads:
The court may, upon the application of either parent or of any
guardian appointed under this Act, make orders as it may think fit
regarding the custody of such infant, the right of access thereto and the
payment of any sum towards the maintenance of the infant and may
alter, vary or discharge such order on the application of either parent
or of any guardian appointed under this Act.
(b) whether the appellant had recovered from her illnesses; and
It is clear, from a reading of s 3, that the court shall regard the welfare of the
infant as the first and paramount consideration. The welfare principle in s 3
is similarly found in s 1(1) of the Children Act 1989 in the United
Kingdom, which provides that the welfare of the child is to be given
“paramount consideration”, and in s 1 of the Guardianship of Minors Act
1971, the predecessor to the Children Act 1989, which stated that the court
should give the welfare of the child its “first and paramount consideration”.
In the United Kingdom, with the 1989 legislative reforms, custody of
children has been subsumed under the more general principle of “parental
responsibility”.
25 The learned authors of Rayden and Jackson’s Law and Practice in
Divorce and Family Matters (Butterworths, 16th Ed, 1991) provide an
insight on the welfare principle at p 1004:
The welfare principle is universal in its application and applies to
disputes not only between parents but between parents and strangers
and between strangers and strangers. But the welfare of the child is
only to be regarded as the court’s paramount consideration where the
child’s upbringing or proprietary interests are directly in issue: the
principle does not apply to a case where such matters are not directly in
question but only arise incidentally in relation to other matters which
are directly in question. The word ‘welfare’ must be taken in its widest
sense. It has been said that the welfare of the child is not to be
measured by money only nor by physical comfort only; the moral and
religious welfare of the child must be considered as well as his physical
well-being; nor can the ties of affection be disregarded. The rights and
wishes of parents must be assessed and weighed in their bearing on the
welfare of the child in conjunction with all other factors relative to that
issue. The question for the judge is not what the essential justice of the
case requires but what the best interests of the child require.
Thus, the court should look at all the circumstances of the case and come to
a decision on the issue of custody, always bearing in mind that the welfare
of the child should be given paramount priority.
Thus, assertions which are made out of court and which are tendered in
court as evidence as to the truth of the content therein will be inadmissible
as hearsay.
27 The rationale for the hearsay principle is that the witness cannot
verify the truth of the facts of which he has no personal knowledge. As the
person who does have personal knowledge of the facts is not in court, the
accuracy of his perception and his veracity cannot be assessed and tested in
cross-examination. Such evidence is unreliable and should hence be
excluded from consideration. In Singapore, the rule against hearsay is
reflected in s 62 Evidence Act (Cap 97, 1990 Ed). Section 62(1) provides:
Oral evidence must in all cases whatever be direct —
(a) if it refers to a fact which could be seen, it must be the evidence
of a witness who says he saw that fact;
(b) if it refers to a fact which could be heard, it must be the evidence
of a witness who says he heard that fact;
(c) if it refers to a fact which could be perceived by any other sense
or in any other manner, it must be the evidence of a witness who says
he perceived that fact by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion
is held, it must be the evidence of the person who holds that opinion on
those grounds.
28 The appellant submitted that Lai Siu Chiu J should not have placed
reliance on the respondent’s sister, Woon Sai Cheng’s, affidavit as it was
hearsay. The question which arose was this: does a custody proceeding, in
its very nature, give rise to an exception to the hearsay rule, such that
evidence which would normally be excluded under the hearsay principle,
nevertheless can be admissible?
29 In the United Kingdom, the rule against hearsay has been largely
relaxed in its application to civil proceedings by the Civil Evidence Act
1968, s 1(1) of which states:
In any civil proceedings a statement other than one made by a person
while giving oral evidence in those proceedings shall be admissible as
evidence of any fact stated therein to the extent that it is so admissible
by virtue of any provision of this Part of this Act or by virtue of any
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of the parties, and whatever the form may be in which such questions
are brought before the Court, in my opinion the evidence must be
regulated by the ordinary rules, and must be such as would be
admissible at the hearing of the cause.
It was clear, from the passage just cited, that the rules of evidence, in
particular the rules against hearsay, applied equally to child proceedings in
the United Kingdom prior to the legislative enactments in 1989, save in
wardship cases.
35 Following from the principles above, we found that Lai Siu Chiu J
erred in placing reliance on the affidavit of Woon Sai Cheng in coming to
her decision. The alleged accounts by the infant to her therein of the
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appellant’s violent behaviour was hearsay and should not have been
admitted into evidence. Counsel for the appellant also pointed out that the
infant should have been called to take the witness stand. That, in itself,
would have introduced problems as to the competence of a young child as a
witness. As the infant was never called as a witness, the issue did not arise.
We found it was unnecessary to deal with it.
37 The primary basis upon which the appellant hinged on for a variation
order was that she had recovered from both her post-natal depression and
thyrotoxicosis. It was urged upon us that, if it was shown that the appellant
had recovered from these illnesses, that would be a change of circumstances
which would merit a variation of the custody order. The question we had to
ask ourselves was whether, on the evidence before us, it was shown that the
appellant had been cured of both illnesses.
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There was thus no doubt that, should custody be granted in the appellant’s
favour, her medical condition would not in any respect undermine her
ability to bring up her child. The most important factor pointing to this was
that she was psychologically stable and would not pose any physical danger
or otherwise to the infant. She was, as the appellant’s counsel submitted, a
normal person from a normal family.
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44 In this case, all things were equal between the appellant and the
respondent. Both undoubtedly loved their son dearly. Both were capable of
looking after him and had their respective families behind them to help out.
In fact, the appellant was in a more appropriate position to take care of their
son. She was a private tutor and gave tuition at home. This would allow her
to look after the infant while giving tuition at the same time. The
respondent, on the other hand, worked at the Inland Revenue Authority of
Singapore and would not be able to be with the child most of the day.
45 All other things being equal, a very important factor to bear in mind
was that we were dealing with an extremely young infant. We felt that the
maternal bond between the appellant and the infant was a pivotal
consideration here. The bond between the natural mother and her child is
one of the most unexplainable wonders of human nature. It should never be
taken for granted or slighted. We have all heard of the story of the mother
who fought a tiger with her bare hands to save her child from the ferocious
beast. Such is the love and sacrifice of the maternal instinct. Since the
beginning of civilisation to this age of consumer materialism, the mother’s
love for her child remains just as strong and unchanging. This court would
be doing a disservice to justice and humanity if it turned a blind eye to the
most fundamental bond of mankind – between a mother and her child, by
taking the child away from the mother. We were in full agreement with the
view taken by the Malaysian High Court in Shanta Kumari K v Vijayan
[1986] 2 MLJ 216, an application for the custody of a 20-month-old infant,
at 218:
Even going on the assumption that both parents are equally capable of
providing care, comfort and attention to the infant, the Courts have
always leaned in favour of the mother being given custody of young
infants. The reason is very obvious. An infant of tender age is by nature
more physically and spiritually dependent on its own mother than
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