WKM v WKN

Q: Which legislation does [2024] SGCA 1 consider?

The judgment refers to Children Act, Family Justice Act, and Guardianship of Infants Act (Cap 122). The statutes cited are listed in full on this page, each linking to its primary text.

[2024] SGCA 1 Court of Appeal 7 February 2024 • CA/CA 29/2023 • 47 min read

15 cases cited (14 SG, 1 foreign) Cited by 3 cases

Catchwords

Family Law — Custody — Care and control Family Law — Custody — Care and control — Judicial interviews Family Law — Custody — Care and control — Child welfare reports

Practice Areas

Family Law

Judges (3)

Debbie Ong Siew Ling Delivered Judith Prakash Coram Sundaresh Menon Coram

Counsel (5)

Crossbows LLP Firm Winchester Law LLC Firm Anuradha d/o Krishan Chand Sharma Counsel Appellant Gulab Sobhraj Counsel Respondent Low Wan Kwong Michael Counsel Respondent

Parties (2)

WKM Appellant WKN Respondent

Case Significance

WKM v WKN [2024] SGCA 1 was decided by the Court of Appeal of Singapore on 7 February 2024, with Debbie Ong Siew Ling JAD delivering the grounds of decision of a coram that also comprised Sundaresh Menon CJ and Judith Prakash SJ. The appeal, Civil Appeal No 29 of 2023, arose from District Court Appeal No 2 of 2023 and concerned care and control of and access arrangements for a young daughter, referred to as "C", who was 11 years old at the time of the appeal. The parents married on 12 February 2012 and C was born on 12 July 2012.

The grounds of decision restated that the welfare of the child is the paramount consideration in all proceedings involving children, describing this welfare principle as the "golden thread" running through proceedings affecting children's interests, citing BNS v BNT [2015] 3 SLR 973. The court addressed the place of judicial interviews of children and child welfare reports in family proceedings. The catchwords record the issues as Family Law — Custody — Care and control, including judicial interviews and child welfare reports. The judgment referenced the Children Act, Family Justice Act and Guardianship of Infants Act.

[2024] SGCA 1 explained

WKM v WKN ([2024] SGCA 1) is a Singapore judgment decided by the Court of Appeal on 7 February 2024. It is categorised under Family Law. Within this corpus it has since been cited by 3 other reported Singapore judgments, a measure of how often later decisions have referred to it. This page summarises what the reported decision covers and links the primary sources — the full judgment, the statutes it cites, and the other cases it engages with — so the decision can be read in context. It is reference information, not legal advice, and it does not state the outcome or any holding beyond what the official judgment records.

What is [2024] SGCA 1 about?

WKM v WKN ([2024] SGCA 1) is a Court of Appeal decision from 2024. Its published catchwords are “Family Law — Custody — Care and control”, “Family Law — Custody — Care and control — Judicial interviews”, and “Family Law — Custody — Care and control — Child welfare reports”, which indicate the subject matter the judgment addresses. The full reasoning and orders are in the judgment itself, linked below.

Which legislation does [2024] SGCA 1 consider?

The judgment refers to Children Act, Family Justice Act, and Guardianship of Infants Act (Cap 122). The statutes cited are listed in full on this page, each linking to its primary text.

How influential is [2024] SGCA 1?

Within this corpus, [2024] SGCA 1 has been cited by 3 later reported Singapore judgments. That count reflects references from other decisions held in this corpus only and is a conservative lower bound on how often the case has actually been cited.

Summary

SUPREME COURT OF SINGAPORE

7 February 2024

Case summary

WKM v WKN [2024] SGCA 1

Court of Appeal / Civil Appeal No 29 of 2023

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Outcome: The Court of Appeal reversed the lower court’s decision and granted sole care and control of the only child of the marriage (“C”) to the appellant (the “Father”). The court ordered that access arrangements for the respondent (the “Mother”) should take place in phases.

Pertinent and significant points of the judgment

• Ascertaining the wishes of the child may be facilitated through the process of a judicial interview of the child. Whether or not to employ this process is a matter for the court to decide in the exercise of its discretion: at [28].

• Judicial interviews are useful and whether such interviews should be conducted, how they should be conducted and the weight to be placed on their content depend on the precise facts and circumstances of each case: at [34].

• To ensure that the children are able to freely express their honest views without worrying about hurting either parent or being torn by a conflict of loyalty, it is crucial that the court maintains the confidentiality of these judicial interview sessions. Children should not be subjected to parental pressure (whether in the form of express coaching or unspoken coercion) to say what the parents desire them to tell the judge. They should not bear the burden and responsibility for any decision that is ultimately reached: at [43].

• Judges should be circumspect and avoid quoting directly what was said by the child, and any observations or conclusions about the child’s views should be expressed sensitively: at [44].

• The assessment of whether a judicial interview should be conducted must be made with utmost sensitivity to the facts of each case. The court should be mindful of a host of factors, including: (a) the age, emotional and intellectual maturity of the child; (b) the relationship between the child’s parents and whether there are concerns about excessive gatekeeping or the conduct of one parent alienating the child from the other parent; (c) the child’s general wellbeing and the consequences for the child should such an interview be conducted; (d) the nature of the dispute and the stage of the proceedings, including the specific matters in issue; and (e) the availability of other relevant material, such as reports by social workers and mental health professionals: at [45].

• The contents of a judicial interview should be assessed together with all other relevant information available to the judge. The judicial interview should not become a step where the court takes a snapshot of an emotional position at a particular point in time and reaches a decision based on that momentary picture. Information obtained through other sources would enable the court to have a longitudinal view of the history of the case and a fuller understanding of the family’s relationships and issues: at [63]–[64].

• Considering the circumstances and interests at play, it is in the child’s best interests that child welfare reports are kept confidential and accessible only by the court: at [70].

• If the judge chooses to place reliance on child welfare reports in the court’s decision-making process, this should be included in the court’s grounds of decision. References to the content of the reports must be made in an appropriate manner that will not compromise the child’s interests, bearing in mind the confidential nature of these reports: at [75].

Background

1 The parties were married in February 2012 and an interim judgment of divorce (“IJ”) was granted in December 2016. Orders on the ancillary matters were granted by consent. At the time the orders were made, C was four years old. The parties were granted joint custody of C, with sole care and control to the Father and liberal access to the Mother: at [2]–[3].

2 On 5 November 2021, the Father handed C over to the Mother for her overnight weekend access. On the same day, he received a call from an investigation officer (the “IO”) informing him that the Mother had lodged a police report alleging that the helper of the Father’s mother had abused C: at [5].

3 The Mother filed two further police reports against the Father and the helper, alleging neglect, physical, emotional and sexual abuse of C: at [6] and [9].

4 The Father applied to compel the Mother to return C and vary the IJ orders to replace the Mother’s liberal access with supervised access at the Divorce Support Specialist Agency (“DSSA”) in the interim. The Mother applied for care and control and sole custody of C: at [10]–[11].

5 The district judge (“DJ”) declined to interview C and relied on three child welfare reports (the “Welfare Reports”). She ordered that the Father was to have care and control of C and that the Mother was to have dinner access on certain days and weekly overnight access from Friday to Saturday. She concluded that there had not been any material change that would warrant a change in the custody arrangements and a reversal of care and control: at [13]–[14].

6 On 10 April 2023, police officers attended at the Father’s residence, following the Mother’s report that raised concerns about C’s safety. C was conveyed to a hospital as she had self-harmed: at [15].

7 The Mother appealed against the DJ’s decision, seeking care and control of C. The Father requested the court to direct that further child welfare reports be submitted. Both parties urged the court to exercise its discretion to conduct a judicial interview of C to ascertain her wishes: at [16]–[17].

8 The High Court judge (the “Judge”) heard the parties’ submissions and conducted a judicial interview of C the following day. He allowed the Mother’s appeal and reversed the order on care and control from the Father to the Mother. The Father filed an application for a stay of execution of the Judge’s orders; this was heard and dismissed by the Judge: at [18]–[20].

9 The Father filed an application to the Appellate Division of the High Court (“AD”) for permission to appeal against the Judge’s decision. The AD allowed the Father’s application on the ground that the matter involved questions of public importance upon which further argument and a decision of a higher tribunal would be to the public advantage. There were two broad areas which raised questions of public interest: (a) in relation to the judicial interview process, what, if any, further guidance should be provided on the use of the judicial interview process, including its role vis-à-vis other sources of information available to the court (the “Judicial Interview Question”); (b) in relation to child welfare reports, the significance and weight to be accorded to the content of the reports prepared by child welfare professionals, which confidential nature is such that they are provided to the court but not to the parties (the “Child Welfare Reports Question”). The matter was then transferred to the Court of Appeal: at [21]–[23].

10 The Court of Appeal directed that updated child welfare reports were to be submitted to the court and that an oral hearing be convened: at [24].

Decision of the court

Judicial Interview Question

11 Ascertaining the wishes of the child may be facilitated through the process of a judicial interview of the child. Whether or not to employ this process is a matter for the court to decide in the exercise of its discretion: at [28].

12 It is clear from recent sources of law and parliamentary debates that the practice of conducting judicial interviews is now firmly established in family proceedings conducted by the Family Justice Courts (the “FJC”), and is a key aspect of the judge-led approach. However, recourse to it in a given case is to be assessed in the light of all the facts and circumstances, and by taking into account the considerations set out in these grounds: at [39].

13 The confidential character of judicial interviews may not sit comfortably in an adversarial system. In our family justice system, “Therapeutic Justice” (“TJ”) underlies the entire approach to the resolution of family disputes. The path of family justice shaped by TJ envisions that parties are not adversaries in court. To ensure that the children are able to freely express their honest views without worrying about hurting either parent or being torn by a conflict of loyalty, it is crucial that the court maintains the confidentiality of these sessions. Children should not be subjected to parental pressure (whether in the form of express coaching or unspoken coercion) to say what the parents desire them to tell the judge and should not bear the burden and responsibility for any decision that is ultimately reached: at [40] and [43].

14 Judicial interviews are part of the TJ process which assures the children that there is a neutral and authoritative person who is concerned about their welfare and who prioritises their best interests above all else: at [42].

15 Judges should be circumspect and avoid quoting directly what was said by the child, and any observations or conclusions about the child’s views should be expressed sensitively: at [44].

16 It is of utmost importance that the judge should convey with clarity to the child that it is the judge who is deciding the case, based on the judge’s assessment of what is in the child’s welfare. It should be explained to the child that while the child’s views as expressed during the interview will be considered by the judge, they are not determinative of the outcome: at [57].

17 The reliance that a judge places on the content of a judicial interview depends on the facts and circumstances of the case. Some of the factors discussed above are relevant in this exercise, such as the age, emotional and intellectual maturity of the child, the relationship of the child’s parents, whether there are concerns of alienating conduct and whether there is existing material before the court, such as child welfare reports: at [60].

18 Judges should also exercise special care when the child’s views expressed at the judicial interview contradict other evidence before the court, such as the observations of the child welfare professionals in their reports. It must be borne in mind that a judicial interview is but one of a number of options in the family justice system which the court may employ to ascertain a child’s views. The contents of a judicial interview should be assessed together with all other relevant information available to the judge. The judicial interview should not become a step where the court takes a snapshot of an emotional position at a particular point in time and reaches a decision based on that momentary picture. Information obtained through other sources would enable the court to have a longitudinal view of the history of the case and a fuller understanding of the family’s relationships and issues: at [62]–[64].

Child Welfare Reports Question

19 There is a range of investigative and therapeutic reports that a court may obtain to aid in its decision-making in relation to children’s issues. Reports by Child Representatives, court expert reports and certain CPS reports tendered in Youth Court proceedings are disclosed and available to the parties. In our current practice and system, there is no disclosure of the other categories of child welfare reports to the parties; this includes CPS reports tendered in divorce proceedings: at [67]–[68].

20 Considering the circumstances and interests at play, it is in the child’s best interests that these reports are kept confidential and accessible only by the court. Ensuring the confidentiality of such reports is required to provide a safe environment for the child to express his or her views honestly. The nature of family disputes is such that emotions often run high, and it is quite foreseeable that resentment may ensue from reading candid reports that are unfavourable to a parent. Reports may sometimes also contain sensitive information that could impact ongoing criminal investigations, eg, allegations of child abuse. Open reports that allow for the cross-examination of report writers may give the parties an opportunity to turn the child proceedings into a destructive battlefield. Should report writers practise defensive reporting as a result, their reports will become far less useful to the court: at [70]–[71].

21 The court should, nevertheless, be very mindful that the information in the reports remain untested by cross-examination. Such reports must thus be carefully considered. The court may also seek clarification from the professionals who had submitted the report or ask further questions in respect of the content in the report: at [74].

22 If the judge chooses to place reliance on child welfare reports in the court’s decision-making process, this should be included in the court’s grounds of decision. However, it is crucial that references to the content of the reports must be made in an appropriate manner that will not compromise the child’s interests, bearing in mind the confidential nature of these reports: at [75].

23 In the court below, the Judge reversed the DJ’s order, and granted care and control to the Mother. His reasoning was largely based on C’s responses during a short judicial interview, which the Judge summarised in his grounds of decision. Judges should avoid reproducing a child’s answers, especially where the answers relate to his or her preference in arrangements for care and control and access. A child should not be placed in a position where he or she feels responsible for making the choice to prefer one parent or to reject the other: at [77]–[78].

24 It appeared that the Judge placed critical weight on what C expressed in the judicial interview. It was not at all clear from the GD that the Judge had considered the various Welfare Reports which were available to him. No updated reports were directed to be submitted. C’s views in the judicial interview ought to have been considered against the contents of the Welfare Reports. This was especially important given the level of conflict and instability surrounding C in the previous two years, where the de facto care of C had been shifting between the parties. Had this been done, it would have been clear that C’s answers in the judicial interview were strongly influenced by the Mother, and that directing updated reports was the appropriate course to take: at [79].

25 The Welfare Reports and the updated reports tendered for consideration prior to the hearing of the appeal revealed a picture of instability and conflict and the negative consequences it has had on C’s life: at [80]–[81].

26 The Mother’s conduct went far beyond gatekeeping to wilfully carrying out a campaign to damage C’s relationship with the Father. The Father’s appeal was allowed; care and control of C was granted to him. No access was granted to the Mother, but she may apply for limited access at the end of four weeks; her access may be increased gradually, subject to her progress in gaining insight on how her destructive behaviour and the conflict had adversely affected C: at [82]–[83], [86].

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

What did WKM v WKN [2024] SGCA 1 decide about child welfare?

In WKM v WKN [2024] SGCA 1, the Court of Appeal restated that the child's welfare is the paramount consideration in all proceedings involving children, calling this welfare principle the "golden thread", and examined judicial interviews and child welfare reports in care and control disputes.

Who decided WKM v WKN [2024] SGCA 1?

WKM v WKN [2024] SGCA 1 was decided by the Court of Appeal of Singapore on 7 February 2024. Debbie Ong Siew Ling JAD delivered the grounds of decision, sitting with Sundaresh Menon CJ and Judith Prakash SJ in Civil Appeal No 29 of 2023.