1 May, 2016
In the recent case of AZB v AZC [2016] SGHCF 1, the Singapore High Court made a landmark pronouncement on the appropriateness of judicial interviews of children in the course of court proceedings. For many lawyers, it would seem that the courts have come full circle and are again embracing the time when it used to be common for High Court Judges to interview children in custody disputes, for example in THG v LGH [1996] 2 SLR 568.
This became less frequent when family cases were transferred from the High Court to the Family Court, although there were still rare occasions, for example in Shoba Gunasekaran v A Rajandran [2003] SGDC 54, where judges interviewed young children. Other professionals such as counsellors, psychiatrists and more recently, court appointed Child Representatives, then took on the role of interviewing children and transmitting their thoughts and views to the court. Reports such as Social Welfare Reports, Custody Evaluation Reports, Access Evaluation Reports and Assisted Access Reports were other tools used by judges instead of directly interviewing the children.
However, in AZB, Judicial Commissioner Debbie Ong did not shy away from interviewing the children in their parents’ dispute over their care and control and access notwithstanding objections from their father’s counsel. The children in question – 3 girls – were between the ages of 11 to 13.
The court made reference to Singapore’s treaty commitments under the United Nations Convention on the Rights of Child and in particular, Article 12, as well as research studies which support the view that hearing the children’s voice in divorce proceedings has proven to be beneficial both for the parties as well as the children. Her Honour also summarised the approaches in common law jurisdictions and the more recent developments favouring judicial interviews, particularly in England, Australia and New Zealand.
Reference was made to the earlier Court of Appeal decision in ZO v ZP and another appeal [2011] SGCA 25 which, whilst cautioning on concerns such as possible coaching, did not negate the helpfulness of judicial interviews where the circumstances warranted.
Her Honour also gave helpful guidelines as to conducting judicial interviews:
- Asking open-ended questions
- Avoiding leading questions which may cause the child
- to choose between parents
- Considering the age and maturity of the child
- Whether the child has asked to speak to the Judge or
- has been pressured by a parent to do so
- Being conscious of possible loyalty conflicts, guilt for the parents’ separation or alienation from the other
- parent
In the instant case, the court gave the following reasons as to why it found it useful to interview the children:
- The children indicated that they wished to speak to the judge
- They were mature enough to express their views on matters which impacted their lives
- The Judge did not think interviewing them would be dragging them into the fray, but thought it beneficial to allow them to express their views directly to her
The Judge concluded that, in this case, she found the children genuinely keen to speak to her and the interview to be helpful. It is hoped that post AZB, more resources will be channelled towards equipping judges with the necessary skills, providing a conducive environment to conduct such interviews as well eliminate any possible risks as much as possible. AZB also highlights the value of reviewing access arrangements to ensure that they continued to serve the children’s welfare. It acknowledges the fact that families in the aftermath of divorce may need some time to reach more stable and durable parent-child relationships, and reviews afford the opportunity to see what works and what poses challenges to the family which may require tweaking.
For further information, please contact:
Joyce Tan, Partner, Joyce A Tan & Partners
