(Delivered in Parliament on 3 September 2019)
In the Ministry’s Press Release of 5 August, it is stated that the purpose of the Bill is to “strengthen Government and community support for abused and neglected children, and improve the rehabilitation and re-integration of children with offending behaviour”. This enhanced support is much needed. All children have great potential. Unfortunately, some are beset with difficult circumstances which plague their early lives. I am in support of this Bill.
Specifically, I would like to re-state my support for the amendment which will raise the maximum age for protection under the Children and Young Persons Act to 18 years, up from the current cut-off age of 16. I have been tracking this issue for some time. I am glad to note that when the Bill comes into force, youths aged between 16 to 18 who face criminal charges will in general be tried in the Youth Court, which sits in private and in an atmosphere of greater understanding compared to the open adult courts. Such youths will also be entitled to have their identities protected from publication throughout the proceedings and their lifetimes, to reduce the harm of stigmatisation and labelling which would jeopardise their futures. These changes bring our laws in line with the UN Convention on the Rights of the Child, which the Singapore government ratified more than 20 years ago in 1995.
That said, I have some specific observations and questions on the Bill. These are mainly about the Fostering Scheme, Youth Offenders, the new Family Guidance Orders, and the Right to be Heard.
Where a child’s parents are deemed incapable of caring for the child, the child may be placed in the care of a foster parent. This may be done with the consent of the parents under a voluntary care arrangement, or by an order of court applied for by the Child Protective Service. Volunteering to be a foster parent is an onerous responsibility, involving providing a home and caring for children whose backgrounds are difficult and who may exhibit challenging behaviours. Sometimes, foster parents also face pressure from the child’s natural parents. We must indeed thank the five hundred plus foster parents who have signed up under the scheme.
This Bill strengthens the framework for fostering in a few ways. First, voluntary care arrangements are given statutory recognition in the proposed Section 11A, which clarifies how these voluntary arrangements will be managed. Secondly, the Bill introduces a new Part IIA on Fostering. Under the proposed Section 27B, a Committee on Fostering will be set up to periodically review cases of children fostered out, to ascertain if the foster parent is implementing a proper care plan for the child. At the same time, the Bill also gives more recognition to foster parents e.g. Clause 63 will amend the Employment Act to enable the foster parent to take childcare leave.
I note that under Clause 69, an amendment is being made to the Passports Act to enable the Director-General, a protector or a foster parent to give consent for a child to be issued with a passport for international travel. In my opinion, this is a useful amendment. I am aware of a case where the child’s parent refused to give permission for the child to go to Malaysia with his foster family, as the parent was highly critical of the care given by the foster parent; this was despite evidence that the child was happy and doing well in his foster home. Once this amendment is made and under the ECPO (Enhanced Care and Protection Order) that Minister just described, the child will no longer have to be left behind while his foster family went on holidays.
I now come to a few issues concerning young persons who get into trouble with the criminal law.
First, I am quite concerned about Clause 25 of the Bill which will amend Section 30 of the Act. Section 30 currently provides that youths who are arrested and not released should be brought before the Youth Court or, if not possible, before a Magistrate without unnecessary delay. This is an important safeguard to ensure that any further detention of young persons should be approved by a court, and that the youth or his parents will have the opportunity to be heard before a Court before further detention is permitted. Clause 25 proposes to amend Section 30(2) to add that the youth should be produced before the Magistrate “within 48 hours”. I do not know why there is a need to add in the words “within 48 hours”, as this time limit is already provided under Article 9 of the Constitution and applies to all arrested persons, adult and young alike. What concerns me is not the redundancy of the addition, but that law enforcement officers may take the addition of the 48 hour limit in the CYPA to wrongly assume that there is no additional urgency when dealing with young suspects. A child or young person in a police lock-up, away from familiar surroundings, is vulnerable and needs to be processed fast. To this end, I would like to ask whether our law enforcement officers have protocols that require them to process cases involving youth offenders at a faster pace, what shorter time limits are set out in their protocols, and how these protocols are enforced. On a related note, I would like to know if there is any special training being given to law enforcement officers in handling suspects who are children or young persons.
Secondly, the Bill enlarges the jurisdiction of the Youth Court to deal with cases of youths between 16 to 18. This is a welcome move, but at the same time, significant limits have been placed. Under Clause 27, such youths can be tried in an adult court if the offence involved is listed in the new Second Schedule, or if the accused has been found guilty of a similar offence previously. At first glance, I do appreciate that the offences listed at the new Second Schedule appear to be more serious, such as drug trafficking, robbery and certain moneylending-related offences. It would appear, however, that a youth who has a prior conviction of any offence, however minor, may also be tried in an adult court. How will this work in practice? Clause 27 provides that in such situations, the Youth Court or the Public Prosecutor can initiate the transfer of the case from the Youth Court to the adult court. Earlier the Minister touched on this point. Can the Ministry re-confirm that the power in the Youth Court and the Public Prosecutor is discretionary i.e. such a case may still remain in the Youth Court? Further, if the case gets transferred to an adult court, which sits in public, how will the protection from publicising the youth’s identity be enforced?
Thirdly, I would like to ask about Clause 32 which touches on Reformative Training (RT). RT is a tough regime that emphasises military-style discipline and involves participants who are older. With these amendments, RT will usually be ordered for offenders between 18 to 21 years of age. Under the existing Act, Section 44 provides that RT can only be imposed upon a young person below the usual age for RT under two situations: the first is if he had been sent to a juvenile rehabilitation centre for an earlier offence, and is now before the Court again, indicating that he might need a tougher court order; the second situation is that while the youth is serving detention in a juvenile rehabilitation centre, the person in charge of the centre finds him so unruly that continued detention there is not feasible and RT may be needed. Under this Bill, Clause 32 introduces a new category where a Youth Court could order RT for a youth who is being sentenced for the first time. The wording of the proposed Section 44(1)(k)(iii) is that an offender aged between 14 and 18 years of age could be sent to RT if the Youth Court “is of the opinion that the the offender is of so unruly a character that the offender cannot be safely detained in a juvenile rehabilitation centre (JRC) or a place of detention”. The Minister earlier clarified that this will enable a Youth Court to send a youth to RT at the first instance, even if he has never stayed at a JRC. On what basis, then, will the Youth Court conclude that he will be a failure at a JRC, if he has never stayed in one? Is there a danger of over-reach?
Finally on the issue of juvenile justice, I would like to share an observation. One of the advantages of the Youth Court is its focus on formulating orders that are appropriate to each youth, depending on the Court’s assessment of what is required in individual circumstances. This advantage can also become a bone of contention, as several youths involved in the same incident may end up being treated differently by the Youth Court. For instance, a group of secondary school students who decide to steal motorcycles for a joy ride could end up getting different sentences. One could be ordered to undergo probation, where he continues his normal schooling and resides at home, but subject to curfew hours; his accomplice, on the other hand, could be ordered to be detained in a juvenile rehabilitation centre like the Singapore Boys Home, separated from his home environment, with normal schooling disrupted. Such disparate treatment needs to be rigorously justified. I remember years ago when I was representing a youth before the former Juvenile Courts; his mother asked me point blank whether her son was ordered to be incarcerated because she was a divorcee, while his accomplice got probation because he came from a two-parent household. While certainly the Youth Court has to assess risk factors, I would caution that the system must never become so rigid as to underestimate the efforts and resilience of those facing personal challenges.
Family Guidance Orders
Under the existing Act, parents who believe they are not able to manage their children can apply to court to place them in the care of an institution or other person, under what is now known as the BPC or Beyond Parental Control regime. Children under BPC are effectively labelled as “bad” children and will undergo psychological damage. I thus welcome Clause 43 of the Bill, which replaces the existing BPC orders with Family Guidance Orders, a more nurturing term that does not blame the child.
I note that under Clause 43, a Court making a Family Guidance Order may attach further orders for parents or the child or young person to comply with. Such orders include attending mediation, counselling, psychotherapy, assessments or other programmes or treatment. As such programmes involve interfacing with professionals, could the Minister clarify who will pay the costs of complying with these requirements? Will parents be penalised if they are unable to pay the fees required to comply, or will financial support be provided?
Right to be Heard
Finally, I wish to raise a concern regarding the right to be heard before the Youth Court. There are various provisions in this Bill and in the Act itself, that provide that before the Court makes an order, the child, young person or parent has the right to be heard e.g. there is a right to be heard before care arrangements for a child are changed. There is also a right to be heard when young offenders are about to be sentenced. In theory these persons have a right to engage a lawyer, but only a minority can afford one. To represent oneself before a court is unfamiliar to most people, and I have observed that unrepresented persons tend to either not speak up or do the opposite by being argumentative and casting aspersions on government officials, which will be most unhelpful to their causes. Another typical problem is what is said is not logically arranged, and is difficult to follow.
I recently encountered a family who expressed frustration at their perception that the court was not listening to them on the care arrangements for their son. Upon probing further, I realised that the court was not to be blamed, but it was simply a matter of the parents organising their thoughts on paper and being respectful to the court. How can we facilitate the right to be heard, especially by the lower income? Can there be more pro bono services available for family and youth matters? As a second alternative, can there be a simple process of say, a form being given out to these persons ahead of their hearing, so that they have time to formulate their thoughts and write them out for the court to follow more easily?
The changes in this Bill are overall steps in the right direction and bring our law in line with international norms. I support the Bill and look forward to the Ministry’s responses to my queries.