Worldwide: Of Care And Control

How to minimise the impact of a relationship breakdown and separation on children is a concern of family judges the world over. Research shows that children do better if they have regular contact with both parents and if they witness as little conflicts as possible. This is of course easier said than done, and even when parents believe they are acting in the best interests of their children, conflict and arguments over how much time and the quality of time each parent then enjoys with their children, continue to be a source of contention. This has recently been highlighted by the High Court in Singapore in the case of BNS v BNT.

This case involved an expatriate couple and their children, aged 10 and 11 at the time of the hearing. In Singapore the court can make orders for custody, care and control and access in respect of children. In this case, the parties were able to agree on joint custody, which reflected the fact that both parents had and wanted to continue to have, an active role in the children's lives, and which gave effect to the principle in Singaporean legislation of joint and enduring parental responsibility. The question before the court was whether the order should be made for sole care and control and defined access as requested by the mother, or shared care and control as requested by the father. Care and control means the day-to-day care of the children and generally defines with whom they live with.

Although there are some differences with Hong Kong and England and Wales, the comments made by the High Court in this case reflect sentiments which are very familiar in all three jurisdictions and some comparison was made with English jurisprudence in support of the father's position. The court in each jurisdiction has the best interest of the children at the heart of their considerations. All three jurisdictions also grapple with the problems that arise from parents feeling as if they have 'lost' or 'won' the children. Terminology, therefore, has become an important element of the law relating to children in order to reduce this negative sentiment. Courts in all three jurisdictions often try to explain to the parties that each play an important role in raising their children, despite the fact that court orders have to be made on their behalf.

This is very evident in the judgement in BNS v BNT where the judge says 'as a practical matter, it is inevitable that each parent, loving and concerned, comes into the parenting space with different skills, thought processes, values and approaches'. 'It is thus their common responsibility to ensure that their children benefit from the full measure of their differentiated abilities.'

Therefore, the modern approach in the three jurisdictions is to recognise the benefits of both parents and thus to provide as much time with both as possible, within reason and within the practical limits of the children's schedules, but with the benefit of the child in mind at all times.

In this case, the father was successful in his application for a greater degree of access, which included more time during the week, including staying access. Thus, in real terms the week was divided between them, as were the weekends and the holidays. However, the court did not go so far in this case to make an order for shared care and control.

The father argued that shared care would send a message to the mother that his time was as important and that she should not do anything to undermine this. The mother on the other hand argued that this was a case where the parties had not been able to agree on anything in respect of the children and therefore an order for shared care was simply unworkable and impractical.

The judge agreed with the mother in this respect. Note was duly given to the fact that this mother had been the primary carer of the children under an interim order for the last six years. It was in the context of the mother's primary care that increased access was allowed by the court. The parties did not have 'de facto' shared care and control, but rather this was a case where it was more appropriate to give care and control to one parent and liberal access to the other.

Where, as here, there were significant and palpable dislike and disagreement, the court found that arguments over day-to-day issues could have potentially a significant and negative longer-term impact on the children. Shared care and control would not aid the father as he thought it may and in fact could be disruptive to the children's sense of stability.

Terminology

In Hong Kong, the terminology of custody, care and control and access is the same, but there is no concept of parental responsibility enshrined in the legislation, and disputes as to custody are regularly before the courts as well as arguments as to care and control. As in Singapore, care and control means the day-to-day care of a child and involves the mundane but important aspects of a child's life including a host of decisions that arise out of the fact that the parent has physical control of the child and the responsibility of attending to the child's immediate care. The law in relation to children in Hong Kong is under review.

In one case before the Family Court, the mother sought joint custody with joint care and control, and the father sought sole custody with defined access to the mother. During the hearing the parties agreed that 'care' of the children should vest in whichever parent was looking after the children at that time which reflected the wishes of the children that whoever had them at any given time 'had the go'. The final order was sole custody to the father (so he made final decisions for the children) with 'an order that the care of the boys be shared between the parents'. The order then set out the manner in which the care should take place. There was no separate order for access.

With joint care and control, both parents would be involved in the schooling and extracurricular activity schedule, and time would be shared, although not necessarily on a 50/50 basis. Such an order would normally denote a high level of cooperation between the parents.

Family Court judges have considerable discretion when it comes to children and a variety of orders can be made, but a judge is unlikely to give joint custody or shared care where there is significant conflict, unless giving an order which did not denote a party winning or losing is in fact in the best interests of the children. Then an order setting out the arrangements can be made without reference to care and control and access in an attempt to avoid emotive terminology.

Family law in England and Wales has taken consideration of terminology in children's matters to another level in an effort to encourage parents to adopt less rigid positions. The Children's Act in 1989 did away with the old terminology of custody, care and control and access and replaced it with parental responsibility, residence and contact.

As it was found that parents still viewed themselves as winners and losers even after the change in terminology, this was in turn amended in 2014 by the Children and Families Act (CFA) with the introduction of Care Arrangement Orders. The origin of this was from the Family Justice Review in 2011 which was commissioned to review family law as a whole in an attempt to reduce delays in court. It was recognised that one of the most contentious areas was in respect of shared parenting.

The review concluded with the warning that any future legislation should not give the impression in respect of a particular amount of time with the child – the point was quality not quantity of time. There is therefore no presumption of shared care in the CFA and the Children's Act was amended to specifically reflect that.

The new law set out that there was a presumption of parental involvement: not shared care but a message that each parent has a valuable role to play in the child's life, and the introduction of care arrangement orders which specified with whom the child was to live and when the child was to live with any other person. These orders should be made following compulsory mediation which came in at the same time.

Therefore, the judge in BNS v BNT was right to state that English cases reflect a different statutory context, but in real terms parents behave in similar ways the world over and the difficulties faced by the judiciary in Singapore, Hong Kong and England have much in common. Terminology is helpful where it reduces emotive language, but persuading parents to truly act in their children's best interests is likely to continue to be a challenge in the courts and in society as a whole.

This article was first published in the Business Times Wealth, June 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.