4th Asian Family Conference
Special Address
“Transformation of the Family Justice System in Singapore”
Thursday, 7 November 2024
The Honourable the Chief Justice Sundaresh Menon
Supreme Court of Singapore
I. Introduction
1. Good morning. Let me first extend a very warm welcome to those of you who have travelled from across the globe to join us today. I would also like to express my heartfelt thanks to the organisers – the Ministry of Social and Family Development and the Singapore University of Social Sciences – for the tremendous work that has gone into planning and organising this very important conference, and for inviting me to deliver this address.
2. Just two weeks ago, we celebrated the 10th anniversary of our Family Justice Courts (or “FJC”), and we were honoured that some of you here today were able to join us at that event, including, in particular, Minister Masagos(1). The FJC’s establishment marked a significant milestone in our legal and judicial history because it centralised the entire spectrum of family-related judicial work under a single court structure with a distinct culture, ethos and approach towards family justice. This came about from the recognition that family justice is a unique area of the law – both in terms of the stakeholders and their specific needs, as well as the nature of the issues that they bring before the courts.
3. And that is how I propose to develop my address today, which is divided into three parts:
(a) I will first elaborate on the unique character of family justice and suggest that it requires family practitioners and judges to adopt a fundamentally different perspective towards their daily work, that is shaped and informed by principles of therapeutic justice (or “TJ”).
(b) Following this, I will discuss the transformation of Singapore’s family justice system, focusing in particular on developments over the past decade.
(c) And finally, looking ahead, I will briefly explore the need for a renewed vision of family justice across all our societies that is both collaborative and accessible.
II. The unique features of family justice
4. Let me begin by suggesting three reasons why family justice ought to be seen as a unique field in the administration of justice, and not as just another aspect of civil justice.
5. The first stems from the enduring nature of the human relationships that are inherent in most family matters. Unlike typical civil cases where the parties can “walk away” from one another after their dispute has been resolved, family matters involve permanent bonds: thus, divorced parties remain fathers and mothers, and siblings who have contested the assets of their parents continue to be members of the same family. Our family justice systems should therefore be designed to protect and preserve these familial ties to the extent possible, because – drawing on the theme of this conference – strong and resilient families form the bedrock of our societies. As Prime Minister Lawrence Wong has observed, families transmit values, anchor our sense of belonging and identity, and serve as our primary support system.(2)
6. Second, unlike commercial cases that generally affect only the immediate parties’ rights and obligations, family matters often engage the interests and well-being of non-parties to the dispute, most importantly the children in divorce cases. In 2020, our Ministry of Social and Family Development published a study on the economic and marriage outcomes of over 100,000 children born between 1979 and 1981. Compared to children of parents who remained married, those whose parents had divorced before they turned 21 were less likely to obtain a university degree and earned less than their peers. They were also slightly less likely to marry, and were themselves more likely to undergo a divorce.(3) These insights inform us that parental conflict arising from divorce proceedings may result in real and long-term consequences for the children, extending even into adulthood. Our family justice systems should therefore shift towards a more child-centric approach that focuses on their distinct needs and interests and that also strives to minimise the adverse consequences of marital breakdown upon them.
7. My third point relates to the unique character of the issues that present themselves in family matters.
(a) To begin with, these are deeply personal issues that lie at the heart of what we value and hold most dear,(4) and which generate powerful emotions that may overwhelm rational thinking and behaviour.
(b) In addition, these issues often cannot be remedied by a one-off remedy like monetary damages in civil matters. Instead, they require sustainable solutions. For example, family scholars have observed that the issue that gives rise to the “greatest parental conflicts” relates to access rights, which require implementation over the long term.(5)
(c) And finally, social science research informs us that family disputes often result from and give rise to a complex web of interrelated family issues, such as financial or relationship problems.(6)
8. Given these characteristics, our family justice systems should strive to encourage families to resolve the issues themselves, if necessary, with the support of multi-disciplinary teams consisting of professionals such as mediators, counsellors, social workers and psychologists. We should therefore design our processes to encourage and to maximise the potential for parties to resolve their issues amicably, a point that I will return to later when discussing the procedural reforms that have taken place in Singapore. Formal adjudication should generally be the last resort in family matters because the parties are much more likely to abide by outcomes and orders that they have had a hand in crafting. And this is indeed supported by the objective data from our courts, which reveal that the durability of divorce orders arrived at through mediation – which is mandatory in Singapore for couples with children under the age of 21 – is significantly higher than those arrived at through litigation or private negotiations.(7)
9. It therefore stands to reason that unlike the traditional adversarial approach adopted in civil justice generally, which focuses on the adjudication of “rights” and “wrongs”, family justice cannot be seen as a battle between adversaries where litigation outcomes are to be “won” or “lost”. Instead, I suggest that our family justice systems should strive towards three key objectives:(8)
(a) First, it should be restorative, in the sense that we should support the parties in their journey to heal their relationship and to repair it at least to a minimally functioning state.
(b) Second, it should be holistic, in the sense that we should seek to address not only the visible legal issues, but also, to the extent possible, their underlying non-legal causes, with the support of multi-disciplinary teams.
(c) And third, it should be interest-based and forward-looking, in the sense that we should help the parties create sustainable and mutually acceptable solutions, by encouraging them to focus on their shared interests going forward.
10. The sum total of this is a fundamentally unique model of dispensing justice in the familial context, which requires all stakeholders to adopt a refreshed approach that prioritises the co-creation of permanent and enduring solutions. And for this vision of family justice to translate into reality, it requires a common framework to unite all stakeholders; to guide their behaviour; and to shape norms. That explains why we in Singapore have embraced the concept of TJ in the dispensation of family justice, and formally adopted it as an overarching philosophy in 2020.(9) TJ is a framework that was created by Professor David Wexler and the late Professor Bruce Winick in the late 1980s, and its core idea is that the law is a social force that may – whether intended or not – produce therapeutic or anti-therapeutic consequences. As far as possible, we should strive to enhance the therapeutic potential of the law not only in our substantive laws, rules, and procedures, but also through the behaviour of the participants themselves, including judges, lawyers and the parties.(10)
11. The adoption of TJ is perhaps the most significant and consequential change in our family justice system, and we have, over a number of years, undertaken much work to integrate and operationalise its implementation. Indeed, just two weeks ago at the FJC’s 10th anniversary, we launched the new “TJ Model” to provide concrete expression as to how TJ is to be applied in our system.(11) This Model was developed in close collaboration with our stakeholders, and it is intended to be a living document that will evolve and be refined over time. It contains a basic definition of TJ;(12) the objectives that the parties should strive towards;(13) the role of each participant in the administration of family justice;(14) the competencies and skillsets required of family justice professionals;(15) and the prospect of adverse costs orders being made to sanction a breach of the TJ principles.(16)
III. The transformation of the family justice system in Singapore
12. While the TJ Model undoubtedly represents a pivotal step in the transformation of our family justice system, we have long recognised the need to search for a better approach to family justice. This brings me to the second part of my address where I will trace the changes that have taken place over the last decade, and I have grouped these into three categories: institutional reform; procedural reform; and developments in our substantive laws.
A. Institutional reform
13. I start with institutional reform. When I took office as Chief Justice in 2012, the reform of the family justice system was among my priorities. After initially discussing this with the Minister of Law, we decided to set up an inter-agency committee to study possible reforms to better serve the needs of distressed families. This Committee – the Committee for Family Justice – presented its wide-ranging recommendations in 2014,(17) at the core of which was the proposed formation of a specialist court structure to hear the entire spectrum of family-related cases. The Committee’s recommendations were accepted by the Government, and this resulted in the passage of the Family Justice Act and the establishment of the FJC later that year.
14. Looking back, the move to establish a specialist court was a game-changer in our pursuit of sound family justice. At a micro level, it has allowed us to deal with individual cases more effectively, by assigning specialist judges who are attuned to the needs of family litigants; who can contextualise the issues within each family’s broader narrative and history; and who can develop sound and consistent jurisprudence. And at a more macro level, we have assembled a dedicated team of family judges, court administrators and court specialists to drive further reforms like the TJ Model that I mentioned earlier.(18)
15. But even as we have taken steps to develop a corps of specialist judicial officers in the field of family justice, we have also sought to incorporate greater multi-disciplinary expertise in the resolution of family cases, both within the FJC and through our external partnerships. For example, the FJC has an in-house team of mental health and social service professionals known as Court Family Specialists who, among other responsibilities, provide counselling to the parties and produce court-directed forensic assessment reports of the children.(19) The FJC has also collaborated with the Institute of Singapore Chartered Accountants to form a Panel of Financial Experts.(20) Family judges may draw upon these experts to obtain a neutral opinion on the valuation of contested matrimonial assets, thus reducing the need for parties to engage their own valuers, which can not only lead to more conflict but also cause them to unnecessarily incur further expenditure.
B. Procedural reform
16. I turn next to procedural reform, and I return here to the point I made earlier – that we have designed our processes to encourage and to maximise the potential for the parties to resolve their issues amicably.
17. The most notable change has been the introduction of the Simplified Track for divorce proceedings, where parties are able to agree on all issues relating to the divorce and the ancillary matters. The Simplified Track is designed to be a far quicker and less costly process compared to the Non-Simplified Track, dispensing with the need for parties to attend any court hearings. And it has been a resounding success. While only 24% of cases were filed on the Simplified Track when it was first launched in 2015, that figure rose to 66% last year. And even for cases that do not proceed on the Simplified Track, because of the processes we have built into our system, only about 8% of the total number of divorce applications eventually proceed to a contested hearing.(21) This informs us that mediation and counselling have been extremely effective in family cases and that we should, as I mentioned earlier, generally resort to formal adjudication only as a last resort.
18. Apart from the introduction of the Simplified Track, there have been two other significant procedural reforms in the last decade.
(a) The first is the introduction of a standalone and bespoke set of procedural rules known as the Family Justice Rules, which came into operation in 2015. And following the recommendations of an inter-agency committee that was set up to build on the work of the Committee of Family Justice,(22) these rules have been significantly overhauled. The new rules – which came into effect just last month – have been simplified to enhance accessibility for lay persons, and they also seek to enhance the judge-led approach that we take to family proceedings in Singapore.(23)
(b) The second major reform is the introduction of a set of processes that focuses on early court intervention and triaging, in order to better contextualise the management of the particular case. Since December 2023, parties have been required to submit a Joint Triage Checklist to provide the court with a preliminary understanding of the particular needs of the case. The parties are also required to attend, with their lawyers, the first court event known as the “TJ Cooperative Conference”. At this conference, the judge will establish from the outset the need for cooperation; explain the conduct expected of the parties according to the TJ Model; and distil the key issues that require resolution.(24) Together, the checklist and the conference provide the court with a sound understanding of the matter at an early stage, and it may then allocate suitable cases to what is known as the “Teams Track”. Under this track, a multi-disciplinary team consisting of a mediation judge, hearing judge and Court Family Specialist is assigned to the case. This allows for more targeted and customised case management from the outset, such as the more flexible use of mediation and counselling, and the potential for earlier and more intensive interventions by external parties to provide suitable support services and programmes.(25)
C. Developments in substantive laws
19. I turn next to the developments in our substantive laws. Where appropriate, our courts have incorporated the concept of TJ in our decisions, such as by using it to endorse the practice of “Judge and Child” sessions,(26) which are confidential interviews between the judge and the child that are conducted in the absence of the parties.
20. But beyond court decisions, the legislative and executive branches of our Government have also been extremely proactive in driving the transformation of our family justice system. This is wholly in line with what Minister Masagos said yesterday about Singapore taking a whole of society approach that is family-centred, proactive and strengths-based.(27) A notable recent example of this is the legislative change that introduced mutual agreement as a new fact which the parties may cite to prove that the marriage has broken down irretrievably.(28) Prior to this, parties had to cite one of the following five facts: adultery, unreasonable behaviour, desertion, separation of three years with consent, or four years without consent. With this new amendment, the parties will no longer need to assign fault when seeking a divorce without a waiting period of separation and this has great potential for reducing conflict and acrimony while allowing the parties to move forward with their lives, all of which are key tenets of TJ.
IV. A renewed vision of family justice
21. Of course, the transformation of Singapore’s family justice system remains a constant work in progress. But as we look towards the future, I wish to briefly turn to two areas which might be of interest to all of us who have an interest in family justice. The first is the need for greater collaboration between family courts around the world and the second is the need to enhance the accessibility of family justice.
A. Family justice as collaborative justice
22. I begin with the need for collaboration. The advent of globalisation and the ease in which people can move themselves and their assets across borders has brought about the rise of what has been described as the “international family”,(29) and this in turn has led to the increasing prevalence of family issues that have a cross-border element, such as those relating to international child abduction and relocation, and intercountry adoption.
23. Two years ago, I suggested at the 18th Conference of the Chief Justices of Asia and the Pacific that cross-border judicial cooperation in the field of family justice is now a necessity, for the simple reason that no single court or jurisdiction is capable of dealing with all issues relating to the international family.(30) I therefore proposed a vision of family justice as collaborative justice, comprising three aspects.
24. The first is to articulate common aspirations and values that will shape the development of international family justice. These may include the following principles which are already well recognised: that strong and stable families are the bedrocks and cornerstones of our societies, and that the welfare of the child is the paramount consideration in family matters. Indeed, platforms like this conference provide an excellent opportunity for us to make substantial progress on this first aspect.
25. The second aspect of this vision is the need for family courts and their stakeholders to cooperate and communicate with one another, so as to translate these common aspirations and values into reality. In particular, we have seen from cases concerning the 1980 Hague Convention on the Civil Aspects of International Child Abduction (or “Child Abduction Convention”) that direct court-to-court communications can be tremendously beneficial, by allowing judges to better understand foreign law, seek clarification and assuage possible concerns. It was in this spirit that in 2021, a working group of the Council of ASEAN Chief Justices adopted a non-binding protocol that provides for communication between designated points of liaison among the courts of ASEAN member states where cross-border disputes involving children arise within the ASEAN region, and these points of contact can then facilitate arrangements for mediation.(31) And more recently in March this year, we concluded a Memorandum of Understanding (“MOU”) with the Hong Kong Judiciary to enhance mutual co-operation and to promote the efficient administration of family justice.(32) The MOU facilitates the exchange of experiences and discussions on matters of common interest including the training of family judges and officers, and the use of mediation in family cases. Such bilateral cooperation paves the way for the development of specific initiatives to deepen mutual learning and to enhance access to justice for families in both jurisdictions.
26. The third and final aspect to this vision of collaborative justice is convergence in the substantive norms and practices of international family law. While it would of course be unrealistic to expect complete convergence in this space, we should at least strive towards convergence in those issues with a strong transnational element. An example of this is in the recognition and enforcement of judgments of foreign family courts, particularly maintenance orders, which sometimes cannot easily be enforced because they are structured as periodical payments.(33) I suggest that we should be bold in pursuing convergence in areas such as this, and we can draw inspiration from successful international legal frameworks like the Child Abduction Convention that I just mentioned, which has been described as the “jewel in the crown of the Hague Conference”.(34)
B. Family justice as accessible justice
27. Before I conclude, let me address my final point which relates to access to justice. This is a topic that I have spoken about on previous occasions, and time does not permit me to discuss this at length today.(35) But I suggest that the need to enhance access to justice applies with particular force to family matters because of two broad factors: first, the growing number of litigants who choose to represent themselves in family disputes;(36) and second, the reality that family disputes are among the most common types of legal problems faced by our citizens.(37) I emphasise that most of these matters are unlikely to involve complex or fine legal points. They are therefore plainly capable of being resolved through quick, simple and affordable processes. That is why we in Singapore have embarked on initiatives like the Simplified Track for divorces and the enhancement of the judge-led approach in the new Family Justice Rules to ensure that proceedings are conducted effectively, efficiently and proportionately.
28. But beyond this, we should explore the vast potential of technology to enhance access to justice. In line with this, we have introduced an online platform for lay persons to generate and to file the documents needed for divorce cases where the parties have agreed on all issues on the divorce and the ancillary matters, and we have replicated this for simple probate matters.(38) Let me also give an example of an initiative that does not relate to family justice but which illustrates the tremendous potential of technology. That is our ongoing collaboration with Harvey, the start-up behind the eponymous artificial intelligence (“AI”) tool, to develop a platform that can help users in our Small Claims Tribunal, where legal representation is not permitted. It is intended that this generative AI tool will help lay users to frame their cases; to understand the evidence that they will need to adduce to substantiate their claims and defences; to improve their understanding of the other side’s position; and to assist our tribunal magistrates in digesting the evidence and the submissions.(39) The initial trials of this tool have been very encouraging and we expect to launch it next year. I invite all of you to come and have a look to see how it works because perhaps in time, it might inspire changes in family law processes to further enhance access to justice.
V. Conclusion
29. Allow me to conclude. The transformation of our family justice system has stemmed from the recognition that this is a unique area of practice which can and should be shaped by principles of TJ. None of this transformation would have been possible without the strong collaborative support that we have received from the Government, the Family Bar and the many external agencies that our family courts regularly engage with, all of whom have fully embraced the shift in culture and mindset that is necessary for us to dispense sound family justice. As Minister Masagos has rightly emphasised, we must adopt a whole-of-society approach to strengthen and to uplift all our families,(40) and this includes distressed families who are facing challenges. Indeed, it is this broader national effort that has been the critical ingredient in our journey to reimagine and reshape our family justice system. And looking ahead, we will need to promote greater international collaboration to enable us to deliver family justice more effectively in a very interconnected world.
30. Thank you very much, and I wish you all a very successful and fruitful conference.