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    10:26 AM Jasper Hayden Chan (LL.M. (Nott Trent); LL.B. , Singapore Management University)

    All Of The Obligations, None Of The Rights – Who Will Step Up For The Step-parents?

        

    Introduction

    Signing off on a child’s consent form brought home from school or on a child’s grades for the academic year in a report book – a small act that natural parents may perform without much thought and may take for granted over time but for step-parents, it is a permanent reminder that he or she has no legal rights vis-à-vis the child.

    Such acts are usually reserved for “parents/legal guardians” and the existence of such legal rights (or its lack thereof) may become more prominent in situations with greater implications such as, but not limited to, deciding on the appropriate medical treatment for the child.

    Who exactly is a step-parent and what are his or her rights and obligations? In the modern-day society, divorces are becoming more commonplace and logically, re-marriages and step-parents also become more commonly found. Is it time then, for an assessment of what legal rights and legal obligations that step-parents have?

    This article aims to review the legal status of a step-parent in Singapore, to embark on a cross-jurisdictional analysis and hopes to propose some ideas for legal review on this under-discussed issue.

    State of Law

    Unfortunately, at its most basic, the legal waters are already muddied. There does not seem to be a statutory definition of a step-parent in Singapore.

    However, for the purposes of this article, and in consideration of the fact that this article discusses legal rights therefore a degree of certainty should be required as to whom these rights should accrue to, the proposed definition of a step-parent would be in line with what is currently found in the Australian Family Law Act 1975 (“Australian Act”) at section 4 where a step-parent means a person who: -

    (a) is not a parent of the child; and

    (b) is, or has been, married to or a de facto partner…of, a parent of the child; and

    (c) treats, or at any time while married to, or a de facto partner of, the parent treated, the child as a member of the family formed with the parent”.

    The above definition as found in the Australian Act is a commonsensical and logical one and is fit for purpose for the discussion in this article.

    Now that it is clearer as to who is exactly a step-parent, who is then a step-child? The definition of a step-child will need to be reverse engineered from what is clear currently, i.e., from the statutory definition of a ‘child’.

    It has been judicially pronounced that the definition of ‘child’ ought not to be expanded beyond the specific statutory definitions.  In the case of Low Guang Hong David and others v Suryono Wino Goei [2012] 3 SLR 185 (“Low”) concerning the Intestate Succession Act (Cap 146, 1985 Rev Ed) (“ISA”), where the plaintiffs in Low argued for step-children to be part of the statutory definition of ‘child’ in the ISA, ‘child’ was defined in the ISA as a “legitimate child and includes any child adopted by virtue of an order of court under any written law for the time being in force in Singapore, Malaysia or Brunei Darussalam”. This would mean that for a child to be seen as legally related to a particular adult in a parent-child relationship, the child must be either a legitimate child (with the particular adult being a natural parent) or a legally adopted child. The High Court held at [21] that, on the basis of the maxim expression unius est exclusion alterius, ‘child’ as defined in section 3 of the ISA did not include stepchildren. Although the High Court’s holding in Low was specific to the ISA, this legal position concerning the definition of ‘child’ under Singapore law seems to be consistent across the different statutes.

    This legal position concerning step-children was also expressly confirmed in the answer to a Parliamentary Question raised by Non-Constituency Member of Parliament, Associate Professor Daniel Goh. It was confirmed by the Ministry of Social and Family Development that “what rights and responsibilities there may be between a step-parent and a step-child will depend on whether there is a legal relationship between them - i.e. whether the step-parent has been conferred legal rights and responsibilities over the step-children. Such a relationship could arise through adoption or the assumption of legal guardianship”, i.e. unless the step-parent has adopted the step-child or has been granted legal guardianship, the two individuals are in effect legal strangers (Ministry of Social and Family Development website <https://www.msf.gov.sg/media-room/Pages/Clarifications-on-legal-rights-and-responsibilities-between-step-parents-and-step-children.aspx> (accessed 13 June 2021)).

    In this, we can now see that step-children are in a legally uncomfortable position. Step-children, for all intents and purposes, would have formed a new family nucleus with their step-parent as well as their natural parent. However, there is no legal relationship between the step-children and the step-parent and they remain strangers in the law. Instead, due to the operation of the law through the granting of joint custodial rights to both natural parents usually, major life decisions involving the step-children will be made by natural parents (in which one of the natural parents may or may not be a permanent fixture in the child’s life) with no inputs required (and with no objections entertained) from the step-parent who usually provides the main caregiving duties by being part of the step-children’s family nucleus.

    Such major life decisions to be made and approved by natural parents will include whether the step-children could be legally adopted by the step-parent since it will involve a waiver of parental rights by the natural parents. Objections are naturally envisioned in this process. Step-parents are now in a bind where they are strangers in the law to their step-children and are powerless to change the status quo despite the provision of day-to-day caregiving activities.

    This unsatisfactory state of events would become slightly more mind-boggling when the law mandates certain obligations between such strangers in the law.

    For example, under the Women’s Charter (Cap 353, 2009 Rev Ed) (“WC”), section 70(1) states that: -

    70. – (1) Where a person has accepted a child who is not his child as a member of his family, it shall be his duty to maintain that child while he remails a child, so far as the father or the mother of the child fails to do so, and the court may make such orders as may be necessary to ensure the welfare of the child

                                                                          (emphasis added)

    Interestingly, legal strangers in which the step-parent has accepted a child as a member of his or her family, are now suddenly legally obliged to financially maintain the child should the natural parents fail to do so – it is also reminded that this takes the form of a court order where step-parents who fail to maintain the child can be hauled before a judge and a further defiance to do so will result in a contempt of court in not abiding by a court order.

    In the case of AJE v AJF [2011] 3 SLR 1177 (“AJE”), the High Court also held that, in relation to section 70(1) of the WC, step-parents, once they have accepted a child as a member of his or her family, have no right to opt out of this duty. As the High Court pointed out at [15], “since family acceptance is the basis for the duty, it can be argued that the duty ends only when, by circumstances not of the person’s making, the quasi-familial relationship between the person and the child ends, eg, when the child renounces the relationship, or he is taken away by his parent”. The High Court made it crystal clear that step-parents have no say in this matter and such a “quasi-familial relationship” can only end on circumstances and of a timing not of the step-parents’ choosing.

    This author does not dispute that the drafters of the above provision in the WC have the child’s best interest in mind – it would be unacceptable to have a lacuna in which a child is not being financially maintained by his or her current caregivers. However, despite the drafters’ best intentions, this seems to have a disproportionate impact on step-parents who now have legal obligations without legal status and legal rights. For the avoidance of doubt, this is not an issue concerning financial responsibility – right-thinking step-parents who are responsible individuals in the ethical sense, should have no qualms about financially supporting a step-child that they love and care for like their own. However, this issue about financial responsibility is also tied to issues such as the step-parents’ status and rights under our laws.

    The question is thus: is there a fairer way to balance the child’s interest (while keeping its paramountcy which is trite law) and also, recognising the step-parents’ contributions and status in the step-child’s life at the same time? We look to some jurisdictions for inspiration.

     

    Cross-Jurisdictional Comparison

    Australia

    In Australia, the jurisdiction is similar to Singapore in not recognising any legal relationship between the step-parents and the step-child as its default legal position. However, the Australian Act restores some balance in the disparity in legal rights between step-parents and natural parents by providing for the Court to be able to grant a Parenting Order (“PO”) and to allow for some other adult(s) to exercise decision-making powers which are inherent within natural parents. The PO is a unique concept as, under section 64C of the Australian Act, it is expressly stated that “a parenting order in relation to a child may be made in favour of a parent of the child or some other person”. A step-parent is thus able to apply for a PO. This is reinforced by section 65C(c) of the Australian Act which states that a PO can be applied by “any other person concerned with the care, welfare or development of the child”.

    A PO deals with a non-exhaustive list of issues which includes, but is not limited to: -

    1. Who the child will live with; and
    2. Any aspect of the care, welfare or development of the child generally.

    It should be noted that a PO does not confer broad powers to the applicant. Rather, it confers specific powers as may be necessary to the applicant in a piecemeal fashion for the child’s care, welfare and development. This ensures that a sledgehammer is not used to crack a nut – achieving a balance between parental responsibility to be exercised by natural parents while providing flexibility to allow others who are in loco parentis to exercise some decision-making powers for the child’s interests.

    POs can be made through a consent order if the relevant parties can come to an agreement on the issues or made through a court order after a court hearing or a trial. (Family Court of Australia website <http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/how-do-i/apps-orders/parenting-orders/fcoa-apply-parenting-orders> (accessed 19 June 2021)).

    Therefore, in Australia, step-parents who are willing and able to be the step-child’s primary caregiver, have locus standi and are empowered by the Australian Act to seek a PO to be granted certain legal rights and decision-making powers over the step-child. Through the PO, there is a measure of recognition of the step-parents’ contributions and role in the step-child’s life even if they remain legal strangers.

    It must be clarified that under the Australian Act, despite step-parents being allowed to apply for a PO, the Family Court of Australia will still be slow to grant POs to step-parents as the focus (and primary parenting duties) should still remain with the natural parents as far as possible – this is enshrined in section 60B of the Australian Act, explicitly stating that “children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together”.

    United Kingdom

    In the United Kingdom, it is also similar in not recognising any legal relationship between the step-parents and the step-child as its default legal position. However, the United Kingdom provides for an interesting mechanism called the Parental Responsibility Agreement (“PRA”) which opens a pathway towards legal visibility and status for step-parents. Step-parents can acquire parental responsibility rights through the PRA if both natural parents consent to the PRA. Parental responsibility rights are granted “wholesale” rather than in a piecemeal fashion in the Australian Act. Once the PRA is signed, the step-parents will acquire and exercise rights equal to natural parents’.

    In the more common situation of step-parents being unable to acquire parental responsibility rights through the PRA (as there is a likelihood of opposition from natural parents), step-parents will have to apply to Court for parental responsibility rights to be granted to the applicant.

    There are similarities between United Kingdom and Australia where both jurisdictions seem quite accepting and open to the idea that there are other adults besides natural parents who may be important caregivers to a child. Australia has gone a step further in recognising that POs can be granted in favour of step-parents – giving step-parents that legal visibility.

    This is quite unlike the structure found in Singapore currently where there are no POs or PRAs (which would accord a measure of legal recognition to step-parents) and where application for legal guardianship will be considered only after a child has no parent, no existing guardian and that there are no other persons having parental rights with respect to the child in the context of section 6(3) of the Guardianship of Infant Act (Cap 122, 1985 Rev Ed) (“GIA”). It is also quite clear from the state of law in Singapore that step-parents are virtually invisible in terms of legal rights and only pop into the picture when somehow, an adult is needed to be legally responsible for the maintenance of the child when natural parents fail to do so.

     

    Learning Points for Singapore

    A recent heart-wrenching case was found in UMF v UMG and another [2019] 3 SLR 640 (“UMF”). Briefly, in UMF, the appellant was the grand-aunt of a 4 year old child. When the child was only 7 days old, the Father handed the child over to the appellant and had also signed a “Letter of Guardianship” purporting to grant the appellant full rights of guardianship over the child. The Mother was unaware of such a letter. For 3 years, the appellant took care of the child but when the child was handed over to the Mother briefly one day, the Mother did not return the child to the appellant, who consequently filed an application for the custody, care and control of the child.

    The Family Division of the High Court recognised at [71] that the appellant “cared for and loved H [the child] since he was seven days old and wanted to continue caring for him” but held that the appellant, as the grand-aunt, had no locus standi under the GIA to apply for custody of, access to and maintenance for the child. Further, it was also held that sections 6 and 10 of the GIA did not apply as the natural parents were still around and section 10 of the GIA did not apply for the removal of natural parents.

    In coming to its decision to allow the child to be cared for by his natural parents, the High Court did consider the child’s interest and welfare but concluded that although the child was “presently closer” to the appellant, it would still be in the child’s interest to be returned to the natural parents as the natural parents were “fit parents desiring to fully reunite [the child] together with their family with their other children”.

    Significantly, the High Court, although not going so far as to recommend for step-parents’ rights specifically to be recognised, did observe that: -

    It might also be apt for Singapore to make specific provision for non-parents with some connection to a child to make applications for custody, care and control and access in appropriate cases. To protect the parent-and-child relationship from unmeritorious interference, the law could provide that the leave of court was required for such applications, setting out clearly the classes of persons who could apply for the court’s leave

                                                                                                                                                                                      (emphasis added)

    The author agrees and supports the High Court’s observation in UMF and recommends for the Australian model to be considered going forward with the child’s interest and welfare remaining paramount.

    In the Australian model as cited above, it is a nice balance between placing paramount importance on the child’s interest while granting a measure of recognition for step-parents’ rights. Both aims can be achieved with a similar arrangement in Singapore. This author recommends for legislative reform in this area by allowing step-parents to be able to apply to Court for a PO for necessary powers to facilitate care-giving duties on a day-to-day basis with the line of enquiry emanating from whether it is in the child’s interest for such a PO to be granted. It is up to Parliamentary intention or the Court’s discretion to decide on what is necessary for day-to-day care-giving duties and the relevant factors as to whether such a PO is in the child’s interest but at the very least, step-parents (if Parliamentary intention does not go as far as to include any other adult in this legislative reform) should be given the locus standi to apply for a PO.

     

    Concluding Remarks

    It is trite that legal rights and legal frameworks do more than facilitate the orderly administration of society – to some less visible groups, it is a chance for society to recognise their presence as well as to affirm their status and place in society. It is also apt for society to recognise that in such changing times, the definition of a family is changing too – the presence of step-parents is ever more obvious and the definition of a family should also evolve to include the status of step-parents and to recognise their contributions and effects on a child’s life.

    Being able to sign off on a consent form to send a child off on a learning trip of discovery and wonders may be of little significance to natural parents but to step-parents, it may mean the world to them. Are we, as a society, ready to step up for the step-parents who are willing to consider step-children as their own?

     

    * The opinions contained in this article reflect the author’s own views and are not to be understood as reflecting the views of the author’s employers, colleagues or educational institutions.

    ** This blog entry may be cited as Jasper Hayden Chan, “All Of The Obligations, None Of The Rights – Who Will Step Up For The Step-parents?”  (30 June 2021) (http://www.singaporelawblog.sg/blog/article/270)

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