By MP for Aljunied GRC, Sylvia Lim
[Delivered in Parliament on 4 August 2014]
This Bill builds upon the specialization of the existing Family Courts set up in 1995, to pull together more family-related matters, such as youth at risk and probate cases, to be handled by the new Family Justice Courts.
An important aspect of the new Family Justice Courts is that their approach should be different from other courts, less adversarial, enabling the judge to probe beyond the symptoms to find the root cause of problems. The Family Justice Courts should thus be judicial bodies with therapeutic and diagnostic orientation. To this end, I am glad to see some indication of this in the Bill. Clause 17 provides that the Family Justice Courts will have attached to them officers including counselors, social workers and psychologists to support its work. Under Clause 26(9), the Family Court can also order any person to undergo mediation or counseling, or to attend family support programmes or activities.
I am in general support of the Bill but I have 2 concerns. The first relates to Clause 10 on hearings in camera, and the second touches on the Court’s use of assessors under Clause 27.
Hearings in camera and Open justice
Clause 10(1) provides that sittings of the Family Justice Courts shall be heard in camera unless the court orders otherwise. This will be a significant departure from the open justice concept applicable to the other courts, maintaining the courts as open and public and to which the public shall generally have access (Section 8, Supreme Court of Judicature Act). Having a closed court is also a change from the current situation pertaining to family cases, where many family-related proceedings are heard in open court, such as divorces, contested maintenance applications and protection orders, and contested inheritance cases. Even in the current Juvenile Court that handles cases of youths in trouble, the Children and Young Person’s Act (Section 34) permits the presence of bona fide representatives of news agencies.
What is the rationale for this change? There is one paragraph (para 34) in the report on the Recommendations of the Committee for Family Justice, stating that family cases were private matters which should not be covered by the media, hence the provision for in camera hearings. Personally, I used to support such a starting point, and I still see the need for in camera hearings for some types of family cases, particularly those involving children and other vulnerable persons. However, the issue is not straightforward, and there is a significant down side, as seen from the experience of Family Courts elsewhere.
First, is it clear that the media should not report family cases at all? It should be remembered that there is a wide spectrum of media. While we may justifiably dislike media angles that are intrusive, sensationalist and inaccurate, there is clearly a place for accurate, fact-based reporting of family related court disputes, which serves an important public education purpose. An accurate media report can increase public awareness of family law, rights and obligations; there will be greater understanding of the family law principles e.g. what constitutes a valid will, the laws of inheritance and so on. It is in the public interest that the layman has some understanding of family law principles and how the Family Court works, since it is an area of law touching all our lives directly. While some family law judgments may continue to appear in the law reports such as the Singapore Law Reports, such reports are not usually accessible to the man in the street, who would still rely on the mass media for information.
Secondly, one of the hallmarks of an open justice system is that the general public is able to observe and scrutinise how the courts function. Clause 10 takes this away. There is a risk that the secrecy surrounding the Family Justice Courts may undermine public confidence in it. In the UK for instance, the secrecy of family court hearings attracted controversy and suspicion about whether judges had been fair to parents or had simply accepted reports of social workers and hearsay evidence (Booker. C. (2013). A victory for common sense. The Telegraph, Mar 2, 2013. Available online at http://www.telegraph.co.uk/
Notwithstanding the good intention behind Clause 10, I am concerned that having private hearings as a default position for family cases will lead to less public understanding of family law and potentially a mistrust of the courts.
I believe Clause 10(1) is too wide in scope. The government should monitor its effects very closely and review it for greater transparency.
Even if Clause 10 remains as it is, I call upon the Family Justice Courts to make additional efforts to release its papers and decisions in the public domain, to promote greater public understanding of family law and instill confidence in the Family Justice Courts. To this end, the Courts could consider working with journalists who understand family law issues to put out accurate media reports on a regular basis.
Use of assessors by the Family Court
My second clarification concerns Clause 27, which allows for judges to summon assessors of special skill and experience to assist them in decision-making. This is a useful provision, which recognizes that even experienced family law judges will benefit from social work or healthcare professionals to make good decisions.
My clarification concerns Clause 27(2), which states that if assessors are appointed, their remuneration will be “costs in the proceedings”. I assume that this means that the remuneration of these experts will have to be paid by the losing party. If so, this will increase the costs of family litigation, a highly undesirable outcome. In addition, this does not seem fair, as the expert was summoned by the court itself after deeming it fit to do so. Should the government not be paying for these assessors instead of passing the costs to the parties?