The Honourable Chief Justice Sundaresh Menon
The Honourable Justice Debbie Ong, Presiding Judge of the Family Justice Courts
Ladies and gentlemen
1. Good morning. This is my first time attending this Forum, and I see many familiar faces from the legal fraternity.
2. The practice of family justice extends well beyond the legal sphere. It involves the community of lawyers, psychologists, and social workers altogether form a vital partnership for the family, and I am glad to see many colleagues from these various sectors here today.
Therapeutic & Restorative Justice
3. The application of "Restorative justice" may be more well known in the area of criminal law and juvenile justice. But it is also highly relevant for family justice.
4. Restorative justice emphasises the repairing of harm and the mending of relationships.
5. While the concept of therapeutic justice involves looking at how processes used by the courts, judges, lawyers and other stakeholders affect the psychological well-being of those going through the legal system. It is concerned with how legal rules and procedures can be applied to enhance well-being, without compromising due process.
6. When we apply these approaches in the realm of family justice, we seek, as far as possible, to bring healing to the "family", even in circumstances when a family is about to break up.
Evolution of the Family Justice System: achievements so far and challenges ahead
7. Why is this approach especially important for families?
- Families are the bedrock and basic unit of our society.
- Healthy family environments offer comfort and safety,
- Where children receive love and encouragement to explore and grow.
8. The Government together with the social sector have done much and have brought in many programmes over the years to help strengthen our families. But, like most other developed societies, we are confronted by two trends.
Trends on Divorce and Ageing Population
9. First, divorce rates are rising globally. In Singapore, our general divorce rates have maintained a stable 1.9 per cent over the past six years. There were around 7,600 divorcing couples in last year. Our divorce rate is lower than places such as Hong Kong , Taiwan , South Korea , the United States , Denmark and Sweden , which range from 2.1 per cent to 3.2 per cent. But we cannot take this for granted, as we have also observed that the proportion of divorces in Singapore for recent marriage cohorts has been on the rise, compared to older cohorts.
10. Another challenge we face is demographic - that of a rapidly ageing population.The number of Singaporeans 65 years old and above is projected to rise to 900,000 in 2030 - or one in four Singaporeans, up from around 400,000 to 450,000 today. As we age, we are more prone to losing mental capacity, given the prevalence of illnesses such as dementia. This becomes challenging for caregivers, and tests family bonds.
11. The family justice ecosystem plays a critical role on both fronts. Let me elaborate first on divorce, and our approach in the last few years.
Children and Divorce
12. In your line of work, you would know that divorce tends to be more complex when children are involved.
13. Children are often significantly affected by divorce, which may have lingering repercussions for the rest of their lives. Currently, one out of every two divorces in Singapore under the Women's Charter involve children younger than 21 years. And about half of these are contested at the point of filing. This means that each year, many children experience the acrimonious, ugly and often scarring process of having their parents fight with each other in court, and beyond.
2014 Committee for Family Justice
14. Hence, in the last few years, we took several measures to improve our approach to family-related cases. The 2014 Committee for Family Justice recommended setting up the Family Justice Courts, or the FJC, which is an institution today. This focussed resources on family disputes, and grew a pool of judges specialised in family law.
15. We also applied a multi-disciplinary approach to yield a richer perspective on family-related issues. The Counselling and Psychological Services arm of the FJC is a professional team of social workers, counsellors and psychologists who work closely with our family judges. They provide a social science perspective on family justice, and lend their expertise on psychological and social issues during court hearings.
16. In line with the Committee's recommendations, the Ministry for Social and Family Development also set up four Divorce Support Specialist Agencies, or DSSAs, in 2015. These counsellors and social workers are specially trained to manage family disputes, and to handle divorce matters.
- Their programmes emphasise co-parenting and the centricity of the child. For example, the "Mandatory Parenting Programme", which is a mandatory pre-filing consultation, for parents with children below 21 years old, and who disagree on divorce and ancillary matters. It helps them to make an informed decision by highlighting financial, housing and co-parenting issues before they file for divorce.
- We also introduced new programmes in the last few years to provide other forms of support.
i. For example, "Children-in-Between", where parents learn co-parenting skills, and children learn how to manage their emotions.
ii. And "Parenting PACT", a post-divorce programme, where parents learn cooperative strategies to co-parent, and where to find resources for community support.
17. These efforts have had some impact. Within and outside the courts, and across all stages - from pre-filing, to the divorce proceedings, and post-divorce - more families are better supported than before. With the new DSSA programmes, many more parents feel better equipped to co-parent after divorce. Children report lower levels of emotional stress than before. Through counselling and mediation, parents gain a clearer picture of how divorce impacts their children. As a result, more divorces have been settled amicably, with less protracted or acrimonious litigation, and more cases are settled outside the courts.
- The percentage of divorce cases filed under the simplified track with no contested issues increased from 24 per cent in 2015, to 53 per cent in the first half of this year.
- The percentage of divorce cases that require a final adjudication hearing has also decreased. In 2017, less than 5 per cent of the concluded divorce cases required a final adjudication hearing, on either the grounds of divorce, or on ancillary matters. This is down from the 7 per cent in 2016.
The Next Phase of Family Justice Work
18. These improvements have eased the journey for parents undergoing divorce and for their children, although it remains a difficult one.
19. Earlier this year, we formed the Committee to Review and Enhance Reforms in the Family Justice System, or the RERF Committee for short. This Committee comprises representatives from the Family Justice Court, Ministry of Law, and the Ministry of Social & Family Development. We have friends from academia, from social services, from the Law Society, fraternity, and many others. We are very honoured to have them here with us today. We formed this Committee because we wanted to build on the work of the 2014 Committee, and further strengthen the role of therapeutic & restorative justice in our family justice system.
20. The Committee is still hard at work, but it has already identified some areas where our family justice system can be improved. Let me outline some of their thoughts and ideas:
- First, expand our repertoire of upstream counselling and support programmes, for both divorce and applications pertaining to mental capacity.
- Second, evolve existing processes and roles within the family justice system. For example, how we train and educate, such that the wider system and legislation are in line with therapeutic & restorative outcomes.
- Finally, place individuals and families and certainly children in the centre of our services, so that services can be more easily accessed, and are more efficiently delivered.
RERF Committee Focus Areas
The Pre-Filing Space of Divorce
21. I start with ideas by the Committee about upstream intervention.
22. In the pre-filing stage of divorce, the Committee thought about how spousal acrimony can be addressed earlier, using out-of-court solutions.
23. The Mandatory Parenting Programme warns parents about the adverse effects of parental conflict and non-cooperation on their children. However, there is a potential gap: between when the parents complete the programme, and when they file the divorce writ. During this period, parents often equip themselves with "ammunition" for the court hearings. They gather information to level accusations and affidavits against each other. This often results in heightened acrimony at the point of filing, entrenched positions, and entrenched emotions.
24. After seeking views from policy-makers, family lawyers and social service practitioners, the Committee is looking at several possible initiatives to address this.
25. First, for parents to have more accurate, useful and personalised information on housing and finances, during the pre-filing space.
26. Divorce is mentally and emotionally draining. Parents may not have the bandwidth or time to fully consider their options or arrangements for their finances and housing arrangements. This is exacerbated by the fact that accessing such information may not always be straightforward. For example, divorcing couples planning to sell their HDB flat may be concerned with the final sales proceeds each of them would receive, after taking into account the outstanding housing loan, CPF refund and the sales-related expenses. Calculating these amounts is not straightforward.
27. With better information, parents will have a clearer view on practical matters such as potential maintenance obligations, settlement of their matrimonial home and what kinds of housing they may be eligible for subsequently. This should ideally be readily available on one platform as far as possible, so that they can better plan and make informed decisions for their child's needs.
28. Second, for there to be more alternative dispute resolution platforms, such as pre-divorce mediation. The benefits of mediation are well known: It generally lowers acrimony. Parents rely less on adversarial litigation to resolve their subsequent disagreements. They are more satisfied with child custody and access arrangements, because decisions are arrived at together. They also generally have stronger co-parenting relationships and better relations with their children.
29. Our experience in Singapore has also shown how effective mediation can be. 8 in 10 cases that completed court-based mediation and counselling reached either full or partial agreement on all the disputed matters.
30. Currently, mediation in FJC takes place at the post-filing stage, after divorce proceedings have commenced. The Committee is exploring whether mediation can be introduced further upstream. If pre-filing mediation sessions are successful, parents will have secured co-parenting agreements on child custody and access even earlier. Contentious issues are identified early. Parents would have more time and space to think through their options. This increases the likelihood of resolving disagreements, even before court proceedings begin. This can reduce trauma and distress for families.
31. In addition, the Committee also looked at expanding pre-filing counselling. Take-up of counselling by divorcing couples, before they file for divorce is currently not high. But as another form of alternative dispute resolution, it allows parents to address their emotional issues, care better for themselves and learn techniques to manage conflicts. They are then able to have proper marital closure, and transit into their new co-parenting roles.
32. Third, the Committee considered how we can better determine what kinds of support families may need, because these often differ on many fronts: levels of acrimony, readiness for services such as marital recovery, or some with more serious episodes of violence and child abuse.
33. One possible way is to put in place a "triaging" process, to decide upfront what kinds of social services they may require. For example, highly acrimonious couples who have physical altercations may need services at Family Violence Specialist Agencies, instead of counselling at the DSSAs. And ambivalent couples who are unsure of their decision can be directed to marital recovery services instead.
34. To illustrate the importance of moving our services and intervention upstream into the pre-filing space, let me share an example of how a family had benefitted from early intervention.
35. Susan (not her real name) was deeply hurt when she suspected her husband was having an affair. Chancing upon a trail of intimate text messages, she confronted him but was dismissed as paranoid. This led to a huge argument which escalated into physical fights in front of their children. Both parents applied for Personal Protection Orders against each other. In addition, Susan also filed for divorce, and pushed for sole custody of her children with no access for their father.
36. During divorce proceedings, Susan was required to attend the Children-in-Between Programme at the DSSAs. Speaking to her after one of the sessions, her counsellor sensed her distress and ambivalence about divorce, especially when she admitted that she could not verify whether her husband was indeed having an extra-marital affair.
37. Probing further, the counsellor discovered that Susan "wanted things to go back to normal again", before the arguments with her husband started. She started talking to Susan more about her feelings, and taught her techniques to regulate her emotions and de-escalate her anger.
38. After weeks of applying these techniques, and coming to terms with her emotions through conversations with the counsellor, Susan realised that the arguments with her husband were becoming less intense and frequent. The physical altercations stopped.
39. Things improved further - Susan and husband eventually withdrew their Personal Protection Orders as well as the divorce applications, and they both approached in earnest their counsellors for help to restore and recover their marriage.
40. There are two instructive points that we can glean from this example.
- First, couples facing marital problems should be given the opportunity and the space to pre-emptively address stressors with the help of a skilled counsellor for instance, before conflict escalates, before positions solidify.
- Second, when couples see divorce as the only plausible option, their relationship can easily spiral into distrust and hostility.
This makes relations more acrimonious and can inflict residual trauma, especially on children.
41. Hence, the importance of timely, early, and accessible social support and information cannot be further underscored.
Family Law Practitioners, Judges, and their Roles in Safeguarding the Well-being of Families
42. Besides the pre-filing space, the Committee also considered the role of family law practitioners in contributing to the overall emotional and psychological well-being of families that they serve.
43. New initiatives in the pre-filing space are important, but not in and of itself, sufficient. Any changes in "hardware" - our systems, processes and programmes - must be supplemented with "heartware", the softer things - how we think and do things. The Honourable Chief Justice Sundaresh Menon previously said that when we want to shift towards a non-adversarial and collaborative approach, we need "a different language and vocabulary". This emphasises the need for a broader cultural and philosophical shift that is informed by therapeutic & restorative justice.
44. Judges are at the forefront of this process. The Committee reviewed the role of judges, and explored ways to enhance the judge-led approach. This aims to empower judges, so that they can make decisions in the best interests of families, within existing judicial frameworks.
45. Some areas that the Committee considered were court processes and family justice rules: For example, giving the court greater powers to manage proceedings. Or refining the court process itself, such as preventing unhappy litigants from purposely dragging out court proceedings. Another area is training. Specifically, equipping judicial officers with specialised skills to effectively and confidently exercise the greater powers afforded by a judge-led approach.
46. Likewise, lawyers play an important role. You are the "first responders" to clients' queries and needs, and are a potential entry point to therapeutic and restorative pathways. Your interactions with clients take place over multiple instances, and shape a family's experience of the family justice system. Let me share an example of a lawyer that we know - let's call him Mr J. A collaborative lawyer by nature, his opening line to clients highlights the negative impact of divorce on children, instead of talking about divorce process or fees for that matter. As a practicing family lawyer, Mr J recognises that there are many ways lawyers can assist families, beyond dispensing legal advice or providing legal services. For example, by pointing ambivalent couples to marital recovery and other social services, he gives them an opportunity to seek practical help to resolve their marital issues first. Divorce becomes a last resort, rather than the default solution.
47. As seen from his approach, lawyers can indeed help divorcing families by:
- Referring them to Divorce Support Specialist Agency services and other programmes;
- Recommending clients to take up alternative dispute resolution services such as mediation and counselling; and
- Creating new ways for families to find practical and constructive solutions, and minimising adversarial and contentious behaviour.
48. So that is some of the ideas that RERF committee have thought about, areas that they would like to explore and consult upon.
Strengthening the Mental Capacity Support Ecosystem
49. I now turn to another area that the Committee is looking at: how to support families caring for loved ones who suffer from a loss of mental capacity, the other demographic trend mentioned earlier.
50. We can expect to see growing demand for Deputyship under the Mental Capacity Act in coming years. This is where the Court appoints a person to make decisions on behalf of someone, usually a family member who lacks mental capacity. The majority of court-appointed deputies are laypersons, family members, often unfamiliar with their legal obligations. Hence the Committee is looking at training and alternative dispute resolution initiatives to support deputies.
51. From MSF's experience, having structured and timely caregiver support and counselling is important. We saw a recent case where the husband was the sole deputy and caregiver for his wife. He was estranged from his children and was not receptive to help from social agencies. As a result, he was unable to cope, and resorted to extreme caregiving methods, such as placing restraints on his wife, and strapping her to a traction bed.
52. Fortunately, the husband eventually accepted therapy to cope with his caregiver-induced stress. While such extreme cases may not be common, it underscores the importance of timely interventions and for deputies to be adequately supported.
53. Deputyship appointments, especially contested ones, can bring simmering family tensions to a boil. If not addressed they can damage the relationships between appointed deputies and disputing family members. When this happens, ultimately it is their dependent loved ones who will suffer.
54. My colleagues shared with me a case where two sisters could not agree on their mother's caregiving plans, and accused each other of harbouring ulterior motives. They refused to hear each other out, and their relationship deteriorated sharply. In the end, the two sisters could not agree on what was best for the mother, on big things and on small things. Providing for their mother's caregiving needs became a protracted and onerous affair. They thought that their dispute was about their mother's interests, but in honesty it was really all about the differences between the both of them.
55. This could have turned out differently had the sisters sought counselling and therapy earlier. Hence the Committee is looking into the possibility of increasing counselling support and training workshops for deputies. They have also suggested streamlining the deputyship application process to make it simpler, faster and easier to navigate.
Call for more Stakeholder Engagements to Refine RERF Recommendations
56. In closing, I encourage all of us in the family justice ecosystem - whether you come from a social sector background, or a legal one - to work together across disciplines, as I understand many have in the past few months and years. During the Committee's discussions, lawyers and social service practitioners exchanged perspectives, uncovering each other's blind spots and sharpening our thinking, as iron sharpens iron.
57. This is the vision we share as one community: to uphold justice compassionately, and restore broken relationships where possible, positively affirming the value of family that we hold dear.
58. Earlier, when I spoke about data, trends, facts, anecdotes, it is about the policy world. As we seek to further strengthen our family justice landscape, we need to continue to complement the policy approach with one that allows policy makers, practitioners, judges, lawyers, to see things from the perspective of their clients, beneficiaries, families and children as they interface with our systems on what must be one of the most difficult journeys of their lives.
59. In this spirit, I hope that we will have candid discussions on how we can better reduce acrimony within families, safeguard the interests of children, and improve the well-being of divorced families and those with mental incapacity.
I look forward to hearing your ideas. We will also continue to engage stakeholders and members of the public in the coming months on the ideas that the Committee has come up with
60. Enjoy the learning at this Forum, enrich our perspectives, and let us strengthen our ecosystem collectively. Thank you.