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The High Court decision in Shamala's case concerning custody and related matters, as reported in the press on 21/7/04, contains a number of positive pronouncements; but effective and practical solutions or remedies remain at large.

In granting joint legal custody to both parents, and actual custody, care and control of the children to the mother; the learned Judge took cognizance of the paramount importance of the interest of the children, as well as the implication of Section 5 of the Guardianship of Infants Act 1961. The court further held that one parent could not convert a child without the consent of the other, that there was no "automatic conversion" in the circumstances, and that a conversion without the consent of a parent was not binding on that parent. The Judge has also held that both parents "have to discuss and agree on issues concerning their children's education and also on the choice of their religion"; and that neither parent should be totally excluded from such decisions.

These are positive judicial pronouncements, which can be (and should be) further developed. The same principles ought to have been applied in the earlier decision concerning the status or validity of the unilateral conversion of the children by the father.

Good pronouncements need to be translated into actual remedies if they are to afford effective protection for one's rights. Apart from the order of custody of the children and of their maintenance; the decision in Shamala's case has fallen short in this aspect. For example, while both parents' right of joint guardianship is recognized by the court, it is not given effect to. While it is held that the choice of religion for a child must be made by way of a joint decision of both parents, Shamala is nevertheless left to live with the consequences of a unilateral decision.

The quandary is caused by the court's earlier refusal to assume jurisdiction when it was asked to declare void a unilateral conversion of the children. Once that position is taken, situations will arise where a wrong is left without a remedy.

There are further practical difficulties arising out of the manner in which the custody order is given, for it is granted on condition that the mother would lose custody right "if there are reasonable grounds to believe that she would influence the children's present religious beliefs". How would this translate into practice? Would, for instance, the practice of her religion in her own house amount to an influence over the children? If her children ask her questions concerning religions, as growing children often do, is she expected to say that she cannot discuss the subject with them? Why should she be subjected to such unnatural restrictions when a unilateral conversion is not binding on her?

The court has, quite correctly, criticized the conduct of the father in trying to avoid his responsibilities. Unfortunately, he is allowed to succeed, at least partially, in thwarting the legitimate rights of the mother.

The Bar Council hopes that highly unsatisfactory situations such as this will be rectified either by further judicial interpretation or by legislative amendment. No mother whose only wish is to bring up her children should have her rights diluted, let alone be driven to despair.

Dated 22nd July 2004

Yeo Yang Poh
Vice-chairman
Bar Council