(Delivered in Parliament on 29 February 2016)
Towards the Family Charter
Madam Speaker, this bill takes steps to adjust the 55-year old legislation to the changing social environment affecting family life. When enacted in 1961, the Women’s Charter was a momentous and courageous legislation that swam against the tide of opinions and the traditional values of society. I would like to remind the House that the traditional values of Asian society just 60 years ago was the patriarchal treatment of women and the widespread acceptance of polygamy. The preservation of the so-called traditional family was not the original intent of the Charter. On the contrary, the Women’s Charter instituted the modern moral view of the family as a cooperative partnership between husband and wife who have equal rights as independent individuals and have equal responsibilities in caring and providing for the children.
It is a waste that the present and recent amendments are cautious reactions to rising divorce rates. These were opportunities to replicate the visionary spirit of the framers of the original Charter in using the law to shape society for the empowerment of its members. The main changes proposed by the present Bill attempt to deal with two sets of problems besetting the modern family following the principles of the original Charter. The first set concerns the better protection of the wellbeing and interests of children and follows the principle of parental responsibility. The Bill gives the courts powers to order divorcing parents to attend the Mandatory Parenting Programme, the MPP, and restates who can apply for a protection order in situations of family violence. The second set follows the principle of gender equality and makes incapacitated ex-husbands eligible for receiving maintenance from their ex-wives. The proposed changes, each on its own and on the whole, do not go far enough to plug the widening cracks and empower the modern family in increasingly trying times.
Parental Responsibility: Protecting Children
On the matter of parental responsibility and better protection of children, I would like to make four points.
Treat Children as Stakeholders
My first point is on the MPP. My worry is that divorcing parents would go through the motion of attending the MPP. To be effective, the MPP should be tailored to parenting in divorced situations targeting both custodial and non-custodial parents. It should be integrated with mandatory mediation and counselling of divorcing parents at the Child Focused Resolution Centre and should stretch across the pre-divorce and post-divorce periods.
Furthermore, the MPP and the counselling should try to involve the children as much as possible. Children should not be treated simply as passive victims whose problems could be solved by positive parenting. Article 12 of the Convention of the Rights of the Child states that we should “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child” and that the views be “given due weight in accordance with the age and maturity of the child”. In divorcing situations, children could be and should be active stakeholders whose participation in the process could help to protect their interests and help them achieve some emotional closure.
Set Up the Commissioner for Maintenance of Families
The second point I would like to raise is that while parental courses, mediation and counselling are good soft solutions persuading couples to go through amicable divorce in the interest of their children, they do not solve the hard problem of ex-husbands defaulting on maintenance support. The 2011 amendments to the Charter giving the courts powers to impose financial counselling, community service, attachment of earnings and credit bureau recovery have only managed to cause a dent in the problem. It has been reported that the number of applications for enforcement orders on maintenance had only dropped from 1900 in 2009 to 1700 in 2013. This means thousands of children remain at serious financial risk.
Repeated stalling and refusal to pay maintenance could be the continuation of abusive relationships, specifically economic abuse to deprive other members of the family the sustenance to maintain a decent standard of living. The Charter continues to fail to recognise this as a form of family violence. Even if we allow that most ex-husbands who default on maintenance simply failed to put responsibility to their children as priority in their economic affairs, this goes against the Charter’s core principle of equal parental responsibility. Whatever it is, the children suffer and may grow resentful of their parents.
The principle of equal parental responsibility requires the law to make sure that the cost of recovery of maintenance does not reach unreasonable levels and is not laid on the single parent with custody of the children. There have been cases of mothers who have to drag their children to visit the courts many times to get their maintenance, as they cannot afford legal representation. Many families end up in economic hardship because social service organisations are unable to help as long as the maintenance order is there to be enforced. The problem is precisely enforcement.
This is not a new proposal, as women’s organisations have proposed it previously. The government can help vulnerable divorcee families to protect the interest of the children by setting up a central agency with strong enforcement powers to recover maintenance on behalf of families. These powers could include intensive debt collection, investigative surveillance, litigation, and overseas travel bans, as in the Australian example. A central agency, let’s call it the Commissioner for the Maintenance of Families, could also serve another purpose, which is to provide support to divorcee families dependent on maintenance so that they would not fall into the poverty trap while waiting for the recovery of owed maintenance. The Commissioner for the Maintenance of Families could provide means-tested advance support capped at a quantum to meet basic needs while the owed maintenance is being recovered.
Help Single Unwed Mothers Obtain Child Support
My third point concerns maintenance for single unwed parents. The Charter could also give the Commissioner for the Maintenance of Families powers to take a proactive approach in helping single unwed parents, especially the mothers, to claim child maintenance from the biological father. This is in line with the principle of parental responsibility, as the onus for raising children out of wedlock should not fall on the women while men easily avoid taking responsibility. It is also important for the protection of the children since they are the ones who suffer most and should not be punished for the mistakes of their parents. Many single unwed mothers, because of their socio-economic background or due to the difficult situation of stigmatisation and isolation they are caught in, are not aware that they could apply for child maintenance from the fathers.
If the worry is that helping single unwed parents will cause the moral hazard of promoting more children born out of wedlock, then the government should know that studies have shown that enforcing child support for single unwed mothers, when coupled with widespread education and publicity, can reduce the rate of non-marital pregnancies. Enforcing men’s parental responsibility has the knock on effect on making men responsible in their overall behaviour towards women.
Empowering Authorised Persons and Police to Apply for Protection Orders
My fourth point concerns the tackling of family violence. Is there any evidence that the “Many Helping Hands” approach has helped to reduce family violence? It seems that spousal violence, which makes up the majority of family violence cases, is taking place earlier in the first 5 years of marriage rather than in the seventh to tenth year of marriage. Family violence remains a pernicious problem. The government’s approach is to strengthen the touch-points that help identify family violence so that early intervention through counselling can be achieved. It is said that the legal route is not the best solution, so the courts and applications for the Personal Protection Order (PPO) should be the last resort. Notwithstanding this, access to the legal route is an important insurance to give victims a strong sense of security as well as provide an assured deterrence against repeated abuse. This bill merely restates the persons who can apply for PPOs, which remains severely limited to the very victims of violence or the persons responsible for the victims if they are below the age of 21 years. However, women and mothers responsible for children being abused are often trapped in precarious positions of recurring violence. They often experience helplessness and cannot act to protect themselves and their families.
We need to expand the range of persons empowered to apply for PPOs. Family members, relatives, and friends who are explicitly authorised by victims are in a good position to know when violence takes place and should be empowered to apply for PPOs. Doctors are also an important touch-point. Right now, the onus is on victims to tell doctors about abuse and request a report for possible PPO application. By the time the violence results in physical injury, it is at the critical stage. Doctors should be empowered to report cases to the police and draw up medical reports without request. In many jurisdictions, mandatory reporting by doctors to law enforcement has helped to mitigate family violence. Other than the victims of abuse, children witnessing family violence are the worst affected. Most of them would try to intervene and a survey shows 10% called the police. We need to protect the children and tweak the “Many Helping Hands” approach to allow children to become a trip-wire for early intervention. Last and definitely not least, like in many jurisdictions, the police, to whom social workers, doctors, victims and children of victims turn to as the trusted investigative and enforcement agency, should be empowered to apply for protection orders.
Gender Equality: Safeguarding Families
Allowing incapacitated ex-husbands to claim maintenance from their wives is a belated concession to the principle of gender equality. The call to allow ex-husbands to apply for maintenance was first raised in 1996. The government rejected it on grounds of tradition, that it is the duty of husband to maintain the wife. The same call was rejected six years ago on account that society is not ready for gender equality when it comes to maintenance. This is a double irony since the Women’s Charter was enacted regardless of whether traditional polygamous society was ready for the modern nuclear family. Gender equality was enshrined in the Charter despite tradition or the readiness of society.
Gender equality in 1961 meant giving women equal rights in marriage. Thus, the division of matrimonial assets must be made in “just and equitable” proportions giving due credit to non-financial contributions to marriage. Realising this principle of gender equality today means doing two things. Men should be given full rights to being eligible for maintenance. We should allow the courts to make gender-neutral decisions regarding asset division and maintenance based on discernments of financial and non-financial contribution to the matrimonial household and potential earning power. Second, the law should factor in opportunity cost in lost earnings due to being a homemaker in the determination of maintenance, especially given that men and women have full access to the labour market.
In the same spirit of gender equality, but also because this is the hard reality today, we need to include boys and young male persons under Part XI, which protects women and girls from prostitution, sexual exploitation and trafficking. This Part is even more out-dated than the Women’s Charter as it reflects the old colonial Women and Girls’ Protection Ordinance. The world in the 21st Century has changed, and as scandals regarding the sexual grooming and sexual trafficking of boys indicate, we need to update this Part urgently. In fact, Part XI is an anomaly and its inclusion in the Charter conflates prostitution and sexual exploitation with the family. I believe this Part is best taken out and its provisions integrated with the Prevention of Human Trafficking Act and the Penal Code.
Consolidate for the Family Charter
Once Part XI is removed, and the principles of parental responsibility and gender equality re-affirmed, future revisions of the Women’s Charter provides us with the opportunity to do something progressive and leading the times, shaping society for the better like what the Charter did in 1961. There have been calls for the Women’s Charter and all other legislations dealing with the family, including the Children and Young Persons Act, to be combined into a landmark piece called The Family Charter. I support this proposal. This is not just for the rationalisation of the law, but it will serve two important purposes.
First, this government has reiterated that its ideology and policy is to protect, preserve and promote the modern nuclear family as the bedrock of our society. We should continue to do so. Nowhere else in the law is the modern family so well and morally defined as in the Women’s Charter, as equal cooperative partnership with independent rights and parental responsibility, which has paved the way for families to thrive for 50 years now. It is time to rename the Charter to enshrine even more visibly the ideology of safeguarding families.
Second, the renaming does not just give symbolic effect to the moral view of the family, the Family Charter will form the basis with which we institutionalise the family further in the era of ageing, globalisation and consumption culture where the norm of non-marital unions and mixed family forms become increasingly prevalent. It will be the basis for positive legislation to empower children, men and women to lead healthy family lives if they so desire. It will signal to society that families are here to stay and that the government is committed to protecting the vulnerable, especially when it comes to our children, to ensure they do not suffer our failures.
Madam Speaker, we like to tell our children to emulate the bold and progressive spirit of our pioneer political leaders. The Women’s Charter is a testament to that spirit, but it is in need of a bold revision that would do justice to its core principles of gender equality and parental responsibility. The measures in this Bill try to do this, which is reason for me to support it, but they do not go far enough.
There is no reason not to be bold. Treat children as stakeholders in the divorcing process, set up a central agency to help single-parent families collect maintenance, help single unwed mothers obtain child support to reduce poverty and wedlock pregnancies, tackle family violence by empowering the police and persons who can help the victims to apply for protection orders, allow all ex-husbands to apply for maintenance and let the courts decide on gender-neutral grounds, and consolidate the legislation as the Family Charter to establish a firm foundation for families to thrive into the 21st Century.
The year 2021 will mark the 60th year of the enactment of the Charter. A bold revision will revive and honour the core principles of the Charter. This Bill paves the way for the revision. All that is needed now is the courageous spirit.