Access to children in Hong Kong and Singapore - A gender bias?

It used to be the case, many years ago, that the custody, care and control of children would be given to the father.

Back then, women did not have a voice, or any real status and it was considered that the father should have guardian rights over his legitimate children. Since the 1970s it has been the law in Hong Kong that both parents have the same 'rights and authority in law' as each other. In Singapore, the position is similar to Hong Kong and set out in the Guardianship of Infants Act 1934 which provides that "the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father". Gender equality in terms of the parents' rights to care for the children is thus enshrined in the law. 

Nowadays, many may assume the bias had always been towards the mother in her traditional role of homemaker with the father fulfilling the role of breadwinner. So where are we now on the gender divide? Do the family courts prefer mothers to fathers when it comes to the children's daily care? Has the pendulum swung too much the other way? And should parents who have achieved parity in the workplace, not also be recognised as having parity at home? 

The sad reality for separated families is that the children cannot have constant contact with both parents.  Family court judges often have the difficult task of assessing what is best for the children in the immediate aftermath of parental separation and into the future. The court will need to create a structure which supports the children's transition and adjustment to living with the separated parents.

Very often parents will attempt to settle children's issues through negotiation and mediation, failing which, the courts are left to decide. The courts must make an order which is in the best interests of the children. Orders which the court can make will be for custody, which is the responsibility to make decisions on behalf of the children relating to important aspects of their development such as health, education and religion, and care and control, which is the daily care of the children. The parent who does not have care and control will be given access and this normally means an order for reasonable access, which is worked out between the parents or by the court. Sometimes the division of time is equal but very often the actual timing comes down to the children's schedule and as their schedule increases over time and schoolwork gains in importance. Judges will normally allow 'fun' time and 'homework' time to be divided so one parent doesn’t always have the children at the weekend when they can have fun, and the other struggling to get them to do their homework during the weekdays. Weekends are generally alternated and school holidays can be, and normally are, shared more or less equally.

So how does the court  decide? The family court will often refer to a checklist which includes, amongst other things, consideration of the status quo: it may be that it is in the children's best interests to remain with the parent who has been the primary carer during the marriage. Change is generally considered not to be in the children's best interests if it can be avoided. But determining who is the primary carer may involve a factual exercise which is not always straight forward, where both parties are working, and the day-to-day care is undertaken by domestic helpers. In addition, the post covid norm of working from home may mean that one parent is in fact the 'stay at home parent' and this may well not fall into traditional gender roles. Where both parents have been equally responsible for the children, a shared care or joint care and control order can be made but it still comes down to actual time provided with each parent which can be controversial.

Other important factors a judge will have in mind are the age, maturity and sex of the child. For babies and very young children, the courts will err towards the mother. Research shows that babies benefit from not moving back and forth from one parent to the other, but by the same token, they do benefit from regular contact with both parents. 

For toddlers, the family courts will often provide care to one parent and access to the other, but with access, including staying access,  increasing in time as the children grow older. Generally, the views of children over ten years will be taken into account, depending on their maturity. This will be assessed by the social welfare officer and possibly a child psychologist. There is ultimately no exhaustive list of factors that the Courts are required to follow in deciding on custody and care and control orders, the only paramount consideration is what is in the children's best interests.

It cannot be assumed that children's physical and emotional needs will 'naturally' be better met by a parent of the same sex. There is no scientific proof that the needs of young girls may be more suitably met by a mother, or the needs of boys would be better met by a father. It has been said that a mother may be in a better position to explain the change in a daughter's physiology as they mature and that it may also be easier for them to share their feelings and emotions with their mother, but where the father been involved with the physical caring of the children from their babyhood, there is no reason why he would not be able to be sensitive to their needs as they grow. In Singapore, while the court has recognised that there exists a presumption of a close maternal bond between a mother and her young children, this does not automatically translate into a presumption that the mother should be the caregiver for the children.

It is important to guard against an inherent bias against fathers of small children, particularly girls. By the same token, there should be no bias for fathers to be caring for sons. As seen by the research in respect of a toddler, time spent with each parent is good for their development, and such concepts of homework time, should not trump a parent who is willing and able to care for them. So too should the assistance of domestic helpers not trump the care from a willing parent. It is hard to imagine how the children can establish a care routine with both parents when time is limited with one of them. For the family in which both parents are found to be loving, are able to communicate for the benefit of their children and with whom the children have a good stable relationship, the courts must guard against a traditional bias in favour of the mother, leading to disparity between otherwise equal parents.