Article by Susan Tay
Disclaimer: This article is for parents who love their children, protect them and want what’s best for them. Not the rare few where the law has been unequivocal in saying children are not safe with.
Is It Really Between the Devil and the Deep Blue Sea?
Circuit breaker, 4 weeks, (and may be counting; for which we can only hope for the best but wisely expect the worst), the prospect of no physical contact with your child/children. That can be rather heart breaking for most parents. But ask the parents, will they rather suffer not holding their child or put their child’s safety at risk and breaking the law, I dare say an overwhelming majority will choose to suffer.
In these COVID times of lockdowns and breakers, do divorced or separated parents really have to choose between the 2 evils? Happily, the answer is an emphatic no for us, at least here in Singapore, and I will explain why.
We More Frequently Need to Be Reminded than Informed
Before I go into the amended legislations that has just been passed on 10 April 2020; allow me to gently remind:
Parents, except for the rare ones, often put their children’s interest way above their own. It is almost trite to say that they make sacrifices unimaginable otherwise but immediately understandable when it is for their kids.
I trust this of most parents and I wish more divorced parents can feel the same way about their other co-parents. Their children will be in a far better place if they do.
Law is Order. Good Law is Good Order
An apt and succinct quote that I will borrow from Aristotle.
Let there be no doubt that on 10 April 2020, the legislation made unequivocal this: that parents can share access to their child per the agreement they have reached or pursuant to a court order they must obey. Including staying over; including all that’s reasonable to effect this.
I will bold that, underscore and applaud if you can hear me. You can tell I am one of those fervently approving of this amendment. Only because I truly believe it is in the best interest of children that they have meaningful physical contact time with both parents (do see my disclaimer at the top of this article).
I extract the relevant section of the subsidiary legislation here
COVID-19 (TEMPORARY MEASURES)
(CONTROL ORDER) REGULATIONS 2020
RESTRICTIONS ON MOVEMENT OF PEOPLE
Restrictions on leaving or entering place of residence
4.(1) This regulation does not apply to an individual who is subject to a movement control measure.
(2) Subject to paragraph (3), every individual must stay at or in, and not leave, his or her ordinary place of residence in Singapore.
(3) Subject to paragraphs (3A) and (3B), an individual may leave the individual’s ordinary place of residence only to do directly with all reasonable speed, any or a combination of one or more of the following:
(e) to transfer temporary custody or care of a child pursuant to any agreement regarding the access rights of a parent of the child, or in discharge of a legal obligation;
[S 262/2020 wef 10/04/2020]
(m) to do anything reasonably connected with and for the purposes of the matters in sub-paragraphs (a) to (l).
[S 262/2020 wef 10/04/2020]
(4) An individual must not permit any other individual to enter his or her ordinary place of residence for any reason other than —
(b) for any purpose connected with paragraph (3)(e), (i) or (k);
[S 262/2020 wef 10/04/2020]
If that is still too technical, we can look to the very friendly MOH FAQ website under [Updated 15 April] Safe Distancing Measures for assistance:
Q I am divorced and my children take turns to live with me and my ex-spouse. Can this arrangement continue?
This is allowed. However, do keep changes to a minimum, where possible, to lower the risk of transmission across different households.
Q I am separated/divorced and my spouse/ex-spouse has care and control of my child(ren). I see my children as per access arrangements. Can these access arrangements continue?
Yes, access arrangements may continue, other than Court-ordered Supervised Exchange and Supervised Visits (SE/SV). However, due to the current situation, the Divorce Support Specialist Agencies have suspended the SE/SV. Parents who are affected may contact the Ministry of Social and Family Development (MSF) via email at email@example.com or via phone at 63240024.
Wisdom is the Reward of Experience
There is a silver lining that our circuit breaker started a little behind some countries. I say this because we can reap some lessons from the problems and the solutions that have arisen in the wake of long periods of lockdowns in those countries.
My various roles as a parenting coordinator, lawyer, mediator focused on Family Law made me especially keen on issues relating to children and co-parenting.
While the residents in Singapore are still enjoying the last days pre our partial lockdown, unaware although suspecting the likelihood of the impending, I was already reading about how parents are allegedly using lockdowns as reasons to deny child access to the other parent. From UK to Australia, New Zealand to South Africa. And now, even Singapore.
In all the above countries, initial lockdown laws and regulations were amended to allow physical access of divorced/separated parents to their child during lockdowns and amidst distancing regulations. Why? Because it is clear, children need to be with both parents.
Let me share 2 stories:
Story 1: In a mediation the day before the start of the circuit breaker, a settlement agreement on terms of interim access was thankfully reached between a set of parents that were having huge difficulties with access and handovers just weeks before. Interventions from police, counsellors, lawyers were needed repeatedly. It was heartening that one week into circuit breaker, handovers have been uneventful. “Uneventful” is good, very good in my line of work, especially where children are concerned.
Ironically pre circuit breaker, pre agreement, handovers were a lot more traumatic than post circuit breaker, post agreement.
Early days yet but I think this speaks volume for a mediated agreement that both parties agreed to willingly.
Story 2: 2nd day of circuit breaker, a parent refuse handover of a child to the other parent who has not seen the child for more than 1 month (for reasons beyond this parent’s control). This is despite a court order in place. The prospect of another month of no physical contact was devastating but the 1st parent was worried about breaking the law. It did not help that this set of parents were still feuding in court. The joy when the regulations was changed 2 days later to the parent who was promptly given access pursuant to the court order.
In the initial days when the laws were still unclear, it can be confusing whether an act like child access is in fact permitted or not. This is especially complicated between feuding parents with deep distrust. Each other’s action is perceived 1st negatively and then even more negatively. No quarters given.
Result? Both parents suffer. But child suffers more.
All the Advice in the World Cannot Help You Until You Help Yourself
A feuding parent can react this way:
“My child will not be going anywhere,”
“How do I know that other people living on the [other parent’s] property are Covid-19 free?”
“How do I know that they have not come in contact with someone while out shopping without using proper precautions?”
“This change is just plain dumb. It is opening us up to further disaster and spreading of the virus.”
Or you can react this way:
“It is about time my ex-husband experiences what it is like to work and look after three children,”
“Give Contact Time. Make Sensible Arrangements. Talk to Each Other.” I know, advice is easy to give and hard to take.
But these are the hard facts:
Fact 1: Parents who use COVID-19 to manipulate a situation to their advantage, depriving their children access to their other parent are selfish.
Fact 2: There is trauma and sadness to children deprived of meaningful contact with the other parent. When bonding is lost with a parent, deep psychological issues ensue that can be long lasting and for life.
Fact 3: About three out of seven children in Singapore have bi-national parents. If these children have separated/ divorced parents, they may be affected by border controls and there is not much help at hand. This is the time the parents must put aside all the bitterness from their split, take a step back and think of the children.
Fact 4: In an unprecedented situation like this COVID-19 world, sensible care arrangements can only be possible if parents can talk to each other without attacks, suspicions or motives. There is only one common aim: doing what’s best for the kids.
Fact 5: Parents cannot just do what they want to do, ignore court orders or agreements just because they now have COVID as an excuse. This is not going to be tolerated once the world resumes normalcy. By then however, damage would already have been done to the child.
Fact 6: Children are exceptionally sensitive to their parents. They know. Especially about conflicts between parents, people they love, possibly the most in the world.
So what now, you ask?
I say this: Put aside the differences. Parent with access reach out to the parent without. Offer access. Physical access and if that’s not possible, phone, email, facetime etc. And for both parents, assure the children ever so often, that they are always loved, often missed, and never ever forgotten.
About Susan Tay
Susan Tay founded OTP Law Corporation (its predecessor, Ong Tay & Partners) in 1991. She celebrated her 30th year in practice this April, 2018.
Susan’s practice primary focus is family and matrimonial law. Also a litigation lawyer with special interest in employment, shareholders’ disputes and trust law, her experience extends as well to commercial transactional work, conveyancing and real property. Calling on the amalgamation of her diverse experiences, she has served clients in complex cross border matrimonial work involving extensive and complicated portfolios of matrimonial assets.
Susan is an accredited mediator with the Singapore Mediation Centre and a certified mediator with the Singapore International Mediation Institute. She currently mediates on various panels including the Singapore Mediation Centre, Law Society Mediation Scheme, the Family Panel of the Law Society Mediation Scheme, the MiKK e.V International Mediation Centre for Family Conflict and Child Abduction and the Thailand Arbitration Centre. Susan is also a trained parenting coordinator with the Family Justice Courts, Singapore. Susan is on the Community Justice Centre’s panel of Primary Justice Lawyers. She is an accredited Collaborative Family Lawyer. 2019, Susan was selected by MiKK to participate in a special training supported by the European Commission for the inclusion of children in family mediation