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430 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

Soon Peck Wah

v
Woon Che Chye
[1997] SGCA 49

Court of Appeal — Civil Appeal No 21 of 1997

Yong Pung How CJ, M Karthigesu JA and L P Thean JA
8 October; 4 November 1997
Evidence — Admissibility of evidence — Hearsay — Whether there was exception to
hearsay rule in proceedings relating to children — Whether hearsay evidence in social
welfare report in child proceedings admissible — Section 62 Evidence Act (Cap 97,
1990 Rev Ed)
Family Law — Custody — Variation of interim custody order — Best interest of
infant — Mother suffering from illness but since recovered — Significance of
maternal bond as factor of consideration — Whether there was presumption of
“maternal custody” — Section 3 Guardianship of Infants Act (Cap 122, 1985 Rev Ed)

Facts
The appellant, Soon, had applied for a variation of an interim child custody
order under which the care and control of their four-year-old child had been
granted to her husband, the respondent Woon, with liberal access on weekends
to her. Soon applied for an order granting her the sole custody, care and control
of the child. Her application to vary was dismissed by the trial judge on grounds
that: (a) Soon was not cured of thyrotoxicosis and based on the affidavit of the
respondent’s sister, Soon was prone to losing her temper and self-control; (b) the
infant lacked nothing in the two years under the respondent’s care; and (c) the
appellant’s home environment was not conducive to the upbringing of the
infant; essentially, that there was no change of circumstances which warranted a
variation. Soon appealed to this court. The issues in the appeal were: (a) the
admissibility of hearsay evidence in custody proceedings; (b) whether Soon had
recovered from her illnesses; and (c) considerations in determining custody of
the infant.

Held, allowing the appeal:

(1) The guiding principle in proceedings before any court with regards to the
custody or upbringing of a child was that the welfare of the child was the first
and paramount consideration: at [24].
(2) Unlike the United Kingdom, there was no equivalent legislation in
Singapore which abolished the rule against hearsay evidence with regard to
proceedings on the upbringing, maintenance or welfare of a child. However,
under s 2(2) of the Evidence Act (Cap 97, 1990 Rev Ed), the common law
exceptions to the rule on hearsay had been incorporated into our law of
evidence. Subject to these exceptions, evidence which was of a hearsay nature
was inadmissible in custody cases, notwithstanding the paramount interest of
the infant: at [29] and [34].
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 431

(3) The alleged accounts of Soon’s violent behaviour by the infant to the
respondent’s sister contained in the latter’s affidavit was hearsay and should not
have been admitted into evidence: at [35].
(4) There had been a change of circumstances from the time the interim order
was made. Soon had recovered from her post-natal depression. She was still
under medication for her thyrotoxicosis, but that was not reason to conclude
that she would prove to be a danger to her child. Her doctor was convinced that
she was able to lead a perfectly normal life and was capable of taking care of her
child while on medication: at [40] and [42].
(5) That the child had been taken good care of during the period of the
interim order was not an important consideration. In fact, Soon was in a more
appropriate position to take care of the child because she worked from home
while Woon would be away at work in the day: at [43].
(6) All things were equal between the Soon and the respondent. Both
undoubtedly loved their son dearly. Both were capable of looking after him and
had their respective families behind them to help out. All these things being
equal between the father and mother, a very important factor to bear in mind
was the fact that the child was very young. A child at a very tender young age
would be most dependent on his mother for his physical and psychological
needs. This should not be mistaken as reviving the old presumption of “maternal
custody” of all young infants. In the best interest of the child’s welfare, we should
not deprive him of his mother’s love and care: at [44] and [45].
[Observation: With respect to social welfare reports ordered by the court, such
reports should be admissible even if they contained hearsay. In child
proceedings, a welfare officer directed by the court order to investigate and
report had a duty to give to the court all the information which he considered to
be relevant and should not be constrained by the hearsay rule from including
relevant but otherwise inadmissible information: at [36].]

Case(s) referred to
Chan Kah Cheong Kenneth v Teoh Kheng Yau [1994] 2 SLR(R) 595; [1994] 2 SLR
879 (folld)
E (SA) (A Minor) (Wardship: Court’s Duty), In re [1984] 1 WLR 156 (refd)
Gilbert v Endean (1878) 9 Ch D 259 (refd)
H v H (Minors) (Child Abuse Evidence); K v K (Minors) (Child Abuse Evidence)
[1989] 3 WLR 933; [1990] Fam 86 (refd)
K, Re [1965] AC 201 (refd)
Rossage v Rossage [1960] 1 WLR 249 (folld)
Shanta Kumari K v Vijayan [1986] 2 MLJ 216 (folld)
Thompson v Thompson [1986] 1 FLR 212 (refd)

Legislation referred to
Criminal Procedure Code (Cap 68, 1985 Rev Ed)
Evidence Act (Cap 97, 1990 Rev Ed) s 62 (consd);
s 2(2), 62(1)
Guardianship of Infants Act (Cap 122, 1985 Rev Ed) s 3 (consd);
s5
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432 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

Children Act 1989 (c 41) (UK) ss 1(1), 96

Civil Evidence Act 1968 (c 64) (UK) ss 1(1), 18(1), 18(1)(b)
Guardianship of Minors Act 1971 (c 3) (UK) s 1

Jimmy Yim and Kareen Looi (Drew & Napier) for the appellant;
Tay Siok Leng (Loh Lin Kok) for the respondent.

[Editorial Note: This was an appeal from the decision of Lai Siu Chiu J in the High
Court. See 1995] SGHC 287.]

4 November 1997
Yong Pung How CJ (delivering the judgment of the court):
1 This appeal arises out of an order by Lai Siu Chiu J on 24 April 1995,
whereby interim custody, care and control of the infant boy, Woon Chen
Ee, was given to the respondent with liberal access on weekends to the
appellant pursuant to s 5 Guardianship of Infants Act (Cap 122). The
appellant filed an appeal against the order but withdrew it after the learned
judge delivered her grounds of judgment on 30 November 1995.
2 On 14 August 1996, the appellant made an application for a variation
of the earlier order and asked for the sole custody, care and control of the
infant on the ground that there had been a change of circumstances. This
was dismissed by Lai Siu Chiu J on 30 January 1997. Being dissatisfied with
Lai Siu Chiu J’s decision, the appellant appealed to this court by way of a
notice of appeal filed on 12 February 1997.
3 The appeal came up for hearing before us on 8 October. After hearing
the arguments for both sides, we allowed the appeal and varied the custody
order. The custody, care and control of the infant was granted to the
appellant, with liberal access to the respondent. We will now set out the
grounds of our decision.

The facts
4 The appellant and the respondent were married on 23 November
1992. They have a four-year-old son, Woon Chen Ee, who was born on
10 October 1993. The infant was the centre of a bitter battle for custody.
The parties have now been separated for about two years, and have yet to
begin divorce proceedings.
5 Both the appellant and the respondent hold a Bachelor of Science
degree from the National University of Singapore. Initially, the marriage
was a happy one. However, the relationship deteriorated rapidly after the
birth of the infant. From a reading of the affidavits tendered by both sides, it
was apparent that there was much bitterness between them, with frequent
quarrels and fights. The respondent deposed at one point that the appellant
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 433

would hit him and shout and scream at the top of her voice, causing the
infant to be badly startled and to cry. We were of the opinion that it would
be prudent not to impute too much weight and significance to the affidavits
in discerning the actual scenario of the circumstances of the case. There
might have been a tendency to exaggerate and be misconceived as to the
factual situation of the various events which took place up to the point of
the first application by the appellant for custody, care and control of the
infant. This was especially so since there was much antagonism between the
parties which possibly might have affected their sense of objectivity. The
pent-up emotion involved made it unsafe to determine the veracity of the
accounts by both sides solely from the affidavits filed.
6 Be that as it may, one incident merited highlight as it immediately
preceded the respondent’s leaving the matrimonial home and separation
from the appellant. The accounts given by both sides were in stark contrast
with each other. According to the appellant, on 5 July 1994, after yet
another quarrel with the respondent the night before, she woke up and, still
angry with her husband, started a fight with him. During the quarrel, she
fainted at the balcony. When she came to, there was nobody in the
apartment. The respondent had, by that time, taken the infant and left
without a word. She lodged a police report. After a long and frantic search,
she found out, on 6 July 1994, that both husband and child were at her
mother-in-law’s place. According to her first affidavit:
… I called the respondent’s brother’s wife at about 11 o’clock and told
her to deliver my ultimatum to the respondent, that is, if he did not
bring the baby home immediately, I would consult a lawyer and take
the whole matter to court. In the heat of the moment, I added that if
the respondent did not bring the infant home, I would bring a knife
over to his mother’s apartment and they had better lock the door when
I came over. I did not really intend to do that. I was just trying to scare
them into bringing the infant home. I realise now that it was a foolish
thing to say, and I believe the respondent’s family members have
lodged a police report. All I can say is that I was almost out of my mind
with worry over what the respondent had done with my baby.
The respondent, on the other hand, denied that the appellant had fainted
on that occasion. According to his police report, which he lodged on the
day of the quarrel after leaving the matrimonial home, the appellant merely
fell at the balcony in the process of the struggle between the two of them
during the fight. He had left with the infant and had gone to the police post
to request them to make a visit to the flat. After putting the baby in safety,
he called the police and was informed that everything at the apartment was
in order. He said that he was not informed of the appellant’s fainting. In his
first affidavit, the respondent said that he had taken the infant away after
the incident on the morning of 5 July 1994 because:
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434 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

I could not let the baby live in constant fear. It was not my intention to
deny the applicant access to the baby. The said incident was the last
straw as the child should have a peaceful environment to grow up in.

7 On 7 July 1994, the appellant filed an originating summons and made

an urgent ex parte application to obtain temporary custody of the child. On
8 July 1994, Judith Prakash JC (as she then was) gave the appellant
temporary custody pending an inter partes hearing of the originating
summons.
8 On 13 July 1994, after reading the affidavits and hearing the counsel
for both parties in chambers, Lai Siu Chiu J made an order that, pending
investigation by the social welfare authorities, the order of court by Judith
Prakash JC on 8 July 1994 would stand.
9 On 24 April 1995, the parties came before Lai Siu Chiu J in chambers
again. The learned judge ordered that interim custody, care and control of
the child be awarded to the respondent, with liberal access on weekends to
be given to the appellant.
10 On 26 April 1995, counsel for the appellant, upon instructions, wrote
to Lai Siu Chiu J to request for a hearing of further arguments with a view to
vary the order of 24 April 1995. One of the grounds for the request was that
the learned judge had placed too much reliance on the confidential social
welfare report (which was not disclosed to either party), which might not
have been accurate.
11 On 27 April 1995, Lai Siu Chiu J granted the request to hear further
arguments on two conditions:
(a) that the parties go for marriage counselling; and
(b) that the appellant consult a private/government psychiatrist and
a report tendered to the court on a confidential basis.
The appellant began to consult Dr Wong Yip Chong, a senior consultant
psychiatrist and medical director of Adam Road Hospital, in April 1995. A
confidential report by Dr Wong on the appellant’s medical condition was
submitted to Lai Siu Chiu J. The report was not disclosed to both parties.
12 On 18 July 1995, the appellant’s solicitor, Ms Kareen Looi, filed an
affidavit to bring to the court’s attention medical evidence on the
appellant’s thyroid condition. On the same day, the appellant filed a
summons in chambers with regard to the disclosure of the social welfare
report and the further arguments requested by the appellant’s counsel. The
learned judge dismissed both applications. The custody order of 24 April
1995 thus stood.
13 The appellant appealed against the custody order but withdrew the
appeal after Lai Siu Chiu J delivered her grounds of judgment on
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 435

30 November 1995. Essentially, Lai Siu Chiu J dismissed the appellant’s

application for interim custody on the following grounds:
(a) After the birth of the infant, the appellant was emotionally
unstable, if not highly strung, whatever the cause. She had frequent
outbursts for apparently no rhyme or reason. In most of the instances,
she initiated the fights between the parties. She was also prone to
violence, on one occasion using a knife to threaten the husband’s
family members if he failed to return the child. It turned out that she
was suffering from post-natal depression coupled with thyrotoxicosis,
commonly known as Graves disease (a thyroid condition which is
known to cause significant emotional symptoms of anxiety, irritability
and agitation).
(b) The home environment of the appellant’s family was highly
unsatisfactory. She contended that it was normal in her family to
speak to one another in a cursory manner and tone of voice. It was not
in the infant’s welfare to grow up in an environment which did not
subscribe to the traditional belief in respect for one’s elders. Lai Siu
Chiu J felt that such coarse behaviour was inexcusable as the appellant
had gone through a tertiary education.
(c) In contrast to the appellant’s family, the respondent and his
family seemed to be:
… more reasonable, they were supportive and close knit. The
sister with whom he took shelter after he left the matrimonial
flat with the infant, came across as an experienced and reliable
babysitter who would be a good surrogate mother for the infant
during the day when the husband was at work. There was no
evidence to suggest, as the wife claimed, that the sister and her
family lived in crowded conditions which would be
compounded by the husband and the infant moving in with
them; the state of living conditions is not the decisive factor so
long as it is satisfactory.

(d) Lai Siu Chiu J also stressed that she did not over-rely on the
findings in the confidential social welfare report in coming to her
decision. Her Honour commented that:
As I pointed out to her counsel, it was highly improper of the
wife in making the second application to suggest that the report
made allegations against her character which she should be
allowed an opportunity to defend. The social welfare authorities
are called upon by courts to conduct investigations precisely
because they are an independent body with no reason to favour
or disfavour either party in contentious custody proceedings;
their reports are entirely objective. If anything the second
application confirmed how irrational the wife was to think that
the welfare authorities were biased against her.
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436 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

14 On 14 August 1996, the appellant filed Summons in Chambers

No 5465 of 1996 to seek a variation of Lai Siu Chiu J’s order of 24 April
1995 and to be granted the sole custody, care and control of the infant, who
was then two years and nine months old. In support of the application, she
obtained an affidavit from the psychiatrist Dr Wong Yip Chong whom she
had been consulting since April 1995. Dr Wong deposed that he diagnosed
the appellant to be suffering from post-natal depression. This is a biological
illness caused by hormonal changes during birth. These hormonal changes
affect the emotional centre of the brain and, as a result, the patient exhibits
extreme irritability and sometimes unreasonable behaviour. On his
recommendation, the appellant underwent a three-week course of
electroconvulsive therapy in early December 1995 and made good recovery.
Dr Wong certified that the appellant had made a complete recovery from
her post-natal depression. Dr Wong felt that the appellant’s irrational
behaviour could have been contributed in part by her thyrotoxicosis, in
respect of which he added:
… I have been shown a copy of the first affidavit of Looi Lee Lian
Kareen filed on 18 July 1995, and the letters of Dr Tan Su Ming
exhibited therein, and I understand that the plaintiff’s thyroid
condition has also been successfully treated. To confirm this, I
requested and received from Dr Hafidza bte Mohd Said, a medical
officer at the Family Health Service, Tampines Polyclinic, an update (as
at 11 June 1996) of the plaintiff’s thyroid condition … The statement
made therein that the plaintiff is ‘clinically euthyroid except for mild
hand fine tremors and mild tachycardia’ means that apart from these
mild and non-significant symptoms, she is essentially well.

He was of the opinion that, with the successful treatment of both the post-
natal depression and thyroid condition, the appellant did not pose any risk
to the infant’s safety. A return of custody to the appellant would be
beneficial to the infant since it was generally recognised that there was an
attachment between a mother and child which was crucial to the healthy
development of the child. When this attachment was severed by prolonged
separation between mother and child, the child’s behaviour may display
ambivalent feelings of wanting the mother and anger at the same time at her
desertion of him. Once the child reached the detachment stage, he may
develop a personality devoid of affection, characterised by emotional
withdrawal.
15 Both parties filed various affidavits, the contents of which need not be
dealt with in detail. It would suffice to say that they were highly emotive,
with each side alleging wrongdoing by the other party. For instance, the
respondent, in his third affidavit, said that according to the access
arrangement under the order, the infant was to be returned to him at
7.00pm on Sundays. Despite the lateness of the hour, the infant was
returned unfed. He now made it a point to check with the infant if he had
had his dinner. On another occasion (30 April 1995) when the infant was
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 437

returned to him that Sunday evening, he found that the boy was suffering
from multiple insect bites for which medical attention was sought. It was
therefore untrue that no one could take better care of a child than his own
mother. The appellant, on the other hand, alleged that the respondent did
not provide a proper home environment for the infant. She backed up her
claim by providing a report of a private investigator dated 5 November
1996. According to the report, the respondent was not staying with his
sister (he claimed that he was staying with her and that she was the
surrogate mother of the child) but with his mother at Pandan Gardens. The
boy was shuttled between the sister’s flat at Choa Chu Kang and Pandan
Gardens. Occasionally, the respondent even left the infant with an
unknown woman at 10 Faber Grove, who was presumably a babysitter. The
appellant said that such conduct displayed the respondent’s selfishness – he
was more concerned about winning the custody battle than the infant’s
welfare.

The trial judge’s decision

16 On 30 January 1997, Lai Siu Chiu J dismissed the appellant’s

application for a variation of the interim custody order and awarded costs
to the respondent, which was fixed at $1,500. There were essentially four
grounds upon which the learned judge came to her decision that there was
no change of circumstances which warranted a variation of the custody
order.

17 Lai Siu Chiu J was of the opinion that, although the appellant was
cured of her post-natal depression, she was not yet cured of thyrotoxicosis
but that the condition was only under control. From the medical report
exhibited in Kareen Looi’s first affidavit on 18 July 1995, it was noted that
the appellant did show physical symptoms of thyrotoxicosis, including
protruding eyes and enlarged thryroid glands. She also displayed other
classic symptoms of the disease – she was highly strung, irritable, anxious
and insomniac. Lai Siu Chiu J opined:
It appeared from exh WYC4 in Dr Wong’s affidavit, that the wife was
not as yet cured of this condition, she was still on medication and
follow-up by her doctor — I understood that to mean she was on
medication to control the condition. If that is the case, I had no
assurance that the wife would not, in a fit of anger, harm the infant. I
only had Dr Wong’s word and that of the wife that she would not harm
her own child; in my view that is not good enough. Who knows what
stress or provocation may trigger off the wife’s loss of temper and
control?

Lai Siu Chiu J felt that the appellant’s tendency to lose her temper and self-
control was borne out by the affidavit of the respondent’s sister, Woon Sai
Cheng, in which she deposed that the infant recounted and demonstrated
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438 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

to her what he saw and heard when the appellant and her grandmother
quarreled. The learned judge concluded that:
Unless the sister’s allegation is untrue, I cannot imagine that a child of
this tender age would have such a vivid imagination that he would
report something which did not actually take place; similarly, it is
unlikely that the infant would repeat to the sister what the wife had said
when he expressed his affection for the husband, unless it was told to
him. It seems to me that a child will be even more confused if he were
to live with a mother who, depending on her mood, may profess to love
him or show her affection for him at one moment and in the next,
reject him or tell him she does not care for him because he expresses
his affection for his own father.

18 The second ground of Lai Siu Chiu J’s decision was that the infant
lacked nothing in the two years since the respondent took over his care and
control.
19 The learned judge was not convinced that the home environment of
the appellant’s family was conducive to the proper upbringing of the infant.
Lai Siu Chiu J had “no doubt” that the appellant’s family dispensed with the
basic civilities in their daily lives. This, she felt, was bad influence on the
child.
20 Finally, Lai Siu Chiu J was of the view that the application was
premature and that, in any case, it was only an interim measure pending the
outcome of any divorce proceedings instituted in future.

The appeal
21 Being dissatisfied with Lai Siu Chiu J’s refusal to grant a variation of
the custody order of 24 April 1995, the wife appealed to this court. The
appellant tendered three main submissions in support of her appeal:
(a) Lai Siu Chiu J had no basis upon which to make a finding that
the appellant had not been cured of thyrotoxicosis. From a reading of
Exh WYC4 of Dr Wong’s affidavit, there was no mention that the
appellant was still on any kind of medication for controlling her
condition. There was no basis for the assumption that the disease was
only under control. The appellant also applied, by way of Motion
No 208 of 1997, to adduce fresh evidence which would confirm that
the appellant had not required any medication since May 1996 to
control her thyroid condition, contrary to Lai Siu Chiu J’s finding. It
was further submitted that the learned judge had erred in accepting
the contents in the affidavit of the respondent’s sister as stating the
truth, without the benefit of any cross-examination. The deposition in
the affidavit was also inadmissible as hearsay since it consisted of
narration of events in the appellant’s family which were allegedly
recounted by the infant to her.
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 439

(b) The learned judge, by concluding that, in the two years since the
order, the infant had lacked nothing, failed to take into account or
sufficient account of Dr Wong’s opinion that the infant would benefit
more by being with the mother. There was no sufficient medical basis
to assume that the infant would lack nothing in future. Also,
inadequate weight was given to the private investigator’s report,
which threw light on the amount of time the respondent was
spending with the infant.

(c) It was further submitted that Lai Siu Chiu J’s finding, that the
appellant’s family dispensed with basic civilities in their lives, was an
error. In finding that the appellant’s home environment was not
conducive to the upbringing of the infant, the learned judge had
misdirected herself in law by accepting the respondent’s disputed
affidavit evidence, without the benefit of cross-examination.

22 The power of the court to make or vary an order for the custody of a
child is provided for in s 5 Guardianship of Infants Act (Cap 122), which
reads:
The court may, upon the application of either parent or of any
guardian appointed under this Act, make orders as it may think fit
regarding the custody of such infant, the right of access thereto and the
payment of any sum towards the maintenance of the infant and may
alter, vary or discharge such order on the application of either parent
or of any guardian appointed under this Act.

23 The crux of the appeal was whether there was a change of

circumstances such that it merited a variation of the custody order. We
were mindful of the delicate nature of the matter at hand, and in particular
the difficulty of having to decide, in the child’s best interests, which of the
parents would be the better provider of the infant’s welfare. In determining
this appeal, we first delved into the law with respect to proceedings relating
to children. With that background, we then turned to scrutinise in further
detail several issues which, in our opinion, were pertinent to the outcome of
this appeal:
(a) admissibility of hearsay evidence in custody proceedings;

(b) whether the appellant had recovered from her illnesses; and

(c) considerations in determining who should have custody of the

infant.

The law with respect to proceedings relating to children

24 The guiding principle in proceedings before any court with regards to

the custody or upbringing of an infant is found in s 3 Guardianship of
Infants Act, which states:
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440 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

Where in any proceedings before any court the custody or upbringing

of an infant or the administration of any property belonging to or held
in trust for an infant or the application of the income thereof is in
question, the court, in deciding that question, shall regard the welfare
of the infant as the first and paramount consideration and save in so far
as such welfare otherwise requires 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.

It is clear, from a reading of s 3, that the court shall regard the welfare of the
infant as the first and paramount consideration. The welfare principle in s 3
is similarly found in s 1(1) of the Children Act 1989 in the United
Kingdom, which provides that the welfare of the child is to be given
“paramount consideration”, and in s 1 of the Guardianship of Minors Act
1971, the predecessor to the Children Act 1989, which stated that the court
should give the welfare of the child its “first and paramount consideration”.
In the United Kingdom, with the 1989 legislative reforms, custody of
children has been subsumed under the more general principle of “parental
responsibility”.
25 The learned authors of Rayden and Jackson’s Law and Practice in
Divorce and Family Matters (Butterworths, 16th Ed, 1991) provide an
insight on the welfare principle at p 1004:
The welfare principle is universal in its application and applies to
disputes not only between parents but between parents and strangers
and between strangers and strangers. But the welfare of the child is
only to be regarded as the court’s paramount consideration where the
child’s upbringing or proprietary interests are directly in issue: the
principle does not apply to a case where such matters are not directly in
question but only arise incidentally in relation to other matters which
are directly in question. The word ‘welfare’ must be taken in its widest
sense. It has been said that the welfare of the child is not to be
measured by money only nor by physical comfort only; the moral and
religious welfare of the child must be considered as well as his physical
well-being; nor can the ties of affection be disregarded. The rights and
wishes of parents must be assessed and weighed in their bearing on the
welfare of the child in conjunction with all other factors relative to that
issue. The question for the judge is not what the essential justice of the
case requires but what the best interests of the child require.

Thus, the court should look at all the circumstances of the case and come to
a decision on the issue of custody, always bearing in mind that the welfare
of the child should be given paramount priority.

Admissibility of hearsay evidence in custody proceedings

26 The rule against the admissibility of hearsay evidence is firmly
ingrained in our law of evidence and procedure. Jeffrey Pinsler, in his book,
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 441

Evidence, Advocacy and the Litigation Process (Butterworths, 1992), gives a

succinct definition of the rule at p 64:
[T]he assertions of persons made out of court whether orally or in
documentary form or in the form of conduct tendered to prove the
facts which they refer to (ie facts in issue and relevant facts) are
inadmissible unless they fall within the scope of the established
exceptions.

Thus, assertions which are made out of court and which are tendered in
court as evidence as to the truth of the content therein will be inadmissible
as hearsay.
27 The rationale for the hearsay principle is that the witness cannot
verify the truth of the facts of which he has no personal knowledge. As the
person who does have personal knowledge of the facts is not in court, the
accuracy of his perception and his veracity cannot be assessed and tested in
cross-examination. Such evidence is unreliable and should hence be
excluded from consideration. In Singapore, the rule against hearsay is
reflected in s 62 Evidence Act (Cap 97, 1990 Ed). Section 62(1) provides:
Oral evidence must in all cases whatever be direct —
(a) if it refers to a fact which could be seen, it must be the evidence
of a witness who says he saw that fact;
(b) if it refers to a fact which could be heard, it must be the evidence
of a witness who says he heard that fact;
(c) if it refers to a fact which could be perceived by any other sense
or in any other manner, it must be the evidence of a witness who says
he perceived that fact by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion
is held, it must be the evidence of the person who holds that opinion on
those grounds.

28 The appellant submitted that Lai Siu Chiu J should not have placed
reliance on the respondent’s sister, Woon Sai Cheng’s, affidavit as it was
hearsay. The question which arose was this: does a custody proceeding, in
its very nature, give rise to an exception to the hearsay rule, such that
evidence which would normally be excluded under the hearsay principle,
nevertheless can be admissible?
29 In the United Kingdom, the rule against hearsay has been largely
relaxed in its application to civil proceedings by the Civil Evidence Act
1968, s 1(1) of which states:
In any civil proceedings a statement other than one made by a person
while giving oral evidence in those proceedings shall be admissible as
evidence of any fact stated therein to the extent that it is so admissible
by virtue of any provision of this Part of this Act or by virtue of any
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442 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

other statutory provision or by agreement of the parties, but not

otherwise.
With regard to proceedings on the upbringing, maintenance or welfare of a
child, the rule against the admission of hearsay evidence no longer applies
by virtue of s 96 Children Act 1989, which provides:
Evidence given by, or with respect to, children …
(3) The Lord Chancellor may by order make provision for the
admissibility of evidence which would otherwise be inadmissible
under any rule of law relating to hearsay.
(4) An order under subsection (3) may only be made with
respect to— …
(b) evidence in connection with the upbringing,
maintenance or welfare of a child.
30 Prior to the enactment of the Children Act 1989, there was much
confusion in the United Kingdom over whether s 1(1) Civil Evidence Act
1968 applied to child proceedings. The debate arose over the scope of the
definition of “civil proceedings”. Section 18(1) of the Act provided:
‘civil proceedings’ includes, in addition to civil proceedings in any of
the ordinary courts of law — … (b) … but does not include civil
proceedings in relation to which the strict rules of evidence do not
apply.
The question, then, was whether all child proceedings were such that strict
rules of evidence did not apply under the proviso in s 18(1)(b).
31 The case law prior to the Children Act 1989 suggested that hearsay
evidence was admissible in wardship proceedings but in no other
proceedings relating to children. These English authorities were then
reviewed.
32 In wardship proceedings, there was a duty on the judge to investigate
and, where it was in the best interests of the child, to make a decision which
was not sought by any party to the proceedings. The effect of this
investigative role in such proceedings on the hearsay rule was considered by
Lord Devlin in Re K [1965] AC 201 where his lordship remarked at 242:
Here the test of convenience is the right one. It is agreed that the
practice always has been to admit hearsay … The jurisdiction itself is
more ancient than the rule against hearsay and I see no reason why that
rule should now be introduced into it.
In In re E (SA) (A Minor) (Wardship: Court’s Duty) [1984] 1 WLR 156,
Lord Scarman similarly opined at 158:
… a court exercising jurisdiction over its ward must never lose sight of
a fundamental feature of the jurisdiction that it is exercising, namely,
that it is exercising a wardship, not an adversarial, jurisdiction.
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 443

More recently, in H v H (Minors) (Child Abuse Evidence); K v K (Minors)

(Child Abuse Evidence) [1990] Fam 86, Butler-Sloss LJ reaffirmed the
notion that the wardship jurisdiction exercised by the court was within the
exception in s 18(1)(b):
In the subsequent Civil Evidence Act 1968 I consider that wardship can
properly be considered as a jurisdiction coming within the exception in
s 18 in relation to which the strict rules of evidence do not apply.
A unique and fundamental characteristic of the wardship jurisdiction is
that, throughout the wardship, legal control over both the child’s person
and property is vested in the court. Once a party persuades the court that it
should make the child its ward, the court takes over ultimate responsibility
for the child. In effect, the court becomes the child’s parent. Taking into
consideration the fact that the court is vested with a form of parental
responsibility over the child, it becomes quite obvious why the courts in the
United Kingdom had so willingly relaxed the rules against hearsay in
wardship proceedings. The court, taking on such a jurisdiction, was no
longer sitting as a court of an adversarial nature. It had a more inquisitorial
role to play as it had to decide, as a “parent”, from all the evidence it could
garner, what was the best decision to make in the interests of the child. To
deny the court the opportunity to take into account hearsay evidence would
have impeded the court’s ability to make the most appropriate decision in
the child’s welfare. Of course, the court could discount hearsay evidence if it
was unreliable, but that went only to weight, not admissibility.
33 Outside the realm of wardship proceedings, the rule against hearsay
was firmly in place for all other child proceedings, including custody and
access applications. In Rossage v Rossage [1960] 1 WLR 249, the mother of a
child applied to strike out certain affidavits, filed on the child’s father’s
application, to suspend her access to her child, on the ground that the
affidavits were scandalous and irrelevant. Three of the affidavits contained
much hearsay evidence as well as some relevant material. The question was
whether the hearsay was admissible. In holding that the hearsay evidence
was inadmissible, Hodson LJ drew a distinction between interlocutory
proceedings generally and interlocutory proceedings in which an issue
which defined the parties’ rights had to be determined. He relied on a
passage by Cotton LJ in Gilbert v Endean (1878) 9 Ch D 259:
… for the purpose of this rule those applications only are considered
interlocutory which do not decide the rights of parties, but are made
for the purpose of keeping things in statu quo till the rights can be
decided, or for the purpose of obtaining some direction of the Court as
to how the cause is to be conducted, as to what is to be done in the
progress of the cause for the purpose of enabling the court ultimately
to decide upon the rights of the parties. Now many of the cases which
are brought before the court on motions and on petitions, and which
are therefore interlocutory in form, are not interlocutory within the
meaning of that rule as regards evidence. They are to decide the rights
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444 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

of the parties, and whatever the form may be in which such questions
are brought before the Court, in my opinion the evidence must be
regulated by the ordinary rules, and must be such as would be
admissible at the hearing of the cause.

It was clear, from the passage just cited, that the rules of evidence, in
particular the rules against hearsay, applied equally to child proceedings in
the United Kingdom prior to the legislative enactments in 1989, save in
wardship cases.

34 In Singapore, there is no equivalent of the Children Act 1989. The

Evidence Act does not explicitly state the hearsay principle, although it is
implicitly reflected in s 62. Within the scheme of the Evidence Act and the
Criminal Procedure Code (Cap 68), there are enumerated a number of
legislative exceptions to the rule against hearsay. By virtue of s 2(2) of the
Evidence Act, the common law exceptions to the rule have also been
incorporated into our law of evidence. Although the English decisions are
not binding on our courts, we found that they are very persuasive in this
area of law. The rationale behind the admission of hearsay evidence in
wardship proceedings in the United Kingdom has already been explained.
The position of such proceedings in Singapore with regard to admissibility
of hearsay evidence need not be considered as it did not arise in this appeal.
We concluded that, generally, in proceedings relating to children, in
particular, in custody cases, evidence which is of a hearsay nature is
inadmissible. There is no exception to the rule against hearsay under
common law (or statute, for that matter) for child proceedings. There have
been arguments put forth by some academic writers that, as the first and
paramount consideration of the court is the welfare of the child, the court
should be more ready to relax the procedural rule against admission of
hearsay. With great respect, we were of the view that the contrary is the
case. In such cases, the opposing parties fighting for the custody of the child
tend to, and quite understandably so in the particular circumstances where
both parents love the child equally and cannot bear to part with their
offspring, exaggerate their claims, especially of wrongdoing on the other
side, in a bid to bolster their chances for an order in their favour. It is
difficult enough for the court, even with the help of cross-examination, to
decide which party’s version of the events is of greater veracity, as the
perception by each party of the situation is so subjective and inevitably
biased. All the more so if the evidence is hearsay. The court will not be able
to have the benefit of cross-examination of the witness at the trial. It
certainly cannot be said to be in the best interest of the child to determine
his future by relying on such flimsy evidence. The paramount interest of the
infant has not altered the law of evidence in this respect.

35 Following from the principles above, we found that Lai Siu Chiu J
erred in placing reliance on the affidavit of Woon Sai Cheng in coming to
her decision. The alleged accounts by the infant to her therein of the
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 445

appellant’s violent behaviour was hearsay and should not have been
admitted into evidence. Counsel for the appellant also pointed out that the
infant should have been called to take the witness stand. That, in itself,
would have introduced problems as to the competence of a young child as a
witness. As the infant was never called as a witness, the issue did not arise.
We found it was unnecessary to deal with it.

36 We would take this opportunity to make a few comments on the rule

against hearsay with respect to social welfare reports ordered by the court.
Lai Siu Chiu J referred to the confidential social welfare report in her
decision to grant interim custody to the respondent on 24 April 1995. In the
United Kingdom, the courts have held that a court welfare officer’s report is
admissible, even though it contains hearsay – see Thompson v Thompson
[1986] 1 FLR 212, H v H (Minors) (Child Abuse Evidence); K v K (Minors)
(Child Abuse Evidence) [1990] Fam 86. We were of the view that a similar
stance should be taken in Singapore. In child proceedings, a welfare officer
directed by the court order to investigate and report has a duty to give to the
court all the information which he considers to be relevant and should not
be constrained by the hearsay rule from including relevant but otherwise
inadmissible information. He may consider it necessary to provide the
judge with a full picture of the family, and investigates many sources and
interviews many people, including grandparents and other relatives,
teachers, doctors and the children themselves. What the children have to
say may be relevant not only as to their state of mind but as to important
facts derived from the child which the court should know. Unless he is
entitled to present this information, it would be extremely difficult for him
to comply with the task he is directed by the court to perform. Equally, his
usefulness to the court would be substantially diminished. Social welfare
reports must, by their very nature, contain a certain amount of hearsay, and
the courts which rely heavily on these reports, have accepted them without
any hesitation. Thanks to the judgment and discretion of welfare officers, it
rarely leads to difficulty, because care is taken to keep it to a minimum and,
so far as possible, to confine it to non-controversial matters. The reliance
upon the report and the weight to be attached to any information contained
therein is, of course, a matter for the judge.

Whether the appellant had recovered from her illnesses

37 The primary basis upon which the appellant hinged on for a variation
order was that she had recovered from both her post-natal depression and
thyrotoxicosis. It was urged upon us that, if it was shown that the appellant
had recovered from these illnesses, that would be a change of circumstances
which would merit a variation of the custody order. The question we had to
ask ourselves was whether, on the evidence before us, it was shown that the
appellant had been cured of both illnesses.
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446 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

38 The appellant was treated for her post-natal depression by Dr Wong

Yip Chong. In early December 1995, the appellant was admitted to hospital
to undergo a three-week course of electroconvulsive therapy. According to
Dr Wong in his affidavit, this form of therapy is generally accepted as one
of the most effective forms of therapy for depression, including post-natal
depression. The prognosis for recovery is generally good. In the appellant’s
case, she lived up to this good prognosis and had made a good recovery. For
example, she no longer suffered from mental agitation and insomnia. It is
relevant to note that, even during the period that she was not being treated
for her condition, the appellant was aggressive only to her husband and his
relatives, but never to the infant. Dr Wong was of the view that the
appellant’s post-natal depression never did pose a threat to the infant’s well-
being. He certified that the appellant had made a complete recovery from
her post-natal depression. It was clear to us, therefore, that the appellant
was no longer suffering from this illness.

39 What of the appellant’s thyrotoxicosis? The learned judge below was

of the view that the condition was only under control, that is to say, it was
only contained, not cured. Lai Siu Chiu J was concerned that the appellant
might be provoked and, in a fit of anger, harm the child. With great respect
to the learned judge, we found that the evidence before us did not warrant
the conclusion so reached.

40 The appellant was treated for her thyrotoxicosis by Dr Tan Su-Ming,

the medical officer at the Public Health Division, Community Health
Service. From Dr Tan’s comments about the appellant’s progress in her
correspondence with the appellant’s solicitors, it was clear that she had by
and large recovered from the illness. Dr Tan opined that the appellant had
made consistent progress. Thyroid function tests showed that her levels of
thyroxine were normal. Other than an enlarged thyroid gland, she appeared
perfectly normal. On her last medical checkup on 11 June 1996, the
appellant was stated to be “clinically euthyroid except for mild hand fine
tremors and mild tachycardia”. This meant that, apart from these mild and
non-significant symptoms, the appellant was essentially well. She was still
on medication to control her condition. Judging from Dr Tan’s prognosis,
we found that the appellant was on the road to full recovery. At the point of
the application for a variation order, her condition was well under control.
The respondent’s counsel tendered the weak argument that the fact, that the
appellant was still on maintenance medication, indicated that she might be
susceptible to violent outbursts and harm the child. We could not accept
this contention. Although the appellant was still on medication, this was
not a basis on which to conclude that she would prove to be a danger to her
child. We are all aware of many health ailments, such as high blood
pressure, diabetes and heart problems, for which patients are on periodic
medication to contain the condition. It would be somewhat ridiculous to
suggest that these people are incapable of leading a normal life and, in
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 447

particular, of taking care of their children. Dr Wong was of a similar view

that the appellant was able to lead a perfectly normal life and was capable of
taking care of her child while on medication.

Considerations in determining who should have the custody of the infant

41 In deciding which parent should have custody of the infant, we bore
in mind the overriding principle that the welfare of the child was the first
and paramount consideration. As this was an application for a variation of a
custody order, we were also mindful of the need for a change of
circumstances before any variation order could be granted.
42 In this particular instance, there was a change of circumstances. From
the time of Lai Siu Chiu J’s order on 24 April 1995, the appellant had since
fully recovered from her post-natal depression. Her thyrotoxicosis was also
under control. Her mental and physical health had come back to normal –
as she was before the birth of her child. There was no indication that she
was not able to lead a normal life. She was perfectly capable of looking after
the infant. There was no question of her endangering the well-being of her
child in any way. Both Dr Wong and Dr Tan were of the opinion that she
would be a good mother who would be able to take care of her child well.
Dr Pushpa Bose, a psychiatrist whom the respondent consulted, had a
meeting with both parents and the infant and gave good comments about
the appellant’s demeanour:
… a tall slim Chinese woman who was fairly relaxed, cheerful and
forthcoming. Rational and relevant with good attention and
concentration. She was able to give a candid and coherent picture of
her problems. She talked about treatment of her postnatal depression
and her thyrotoxicosis. She was no longer having any symptoms of
thyrotoxicosis and was free of depression. She is on maintenance
medication and attends her follow-up with Dr Wong Yip Chong
regularly. She was very concerned about her son whom she missed and
loved. She was concerned about his intellectual stimulation and
education. She was observed to be quite sensitive to the child’s needs.
She described her childhood as happy and family as close knit.
In my opinion, Mdm Soon (the appellant) suffered from postnatal
depression, as was diagnosed and duly treated by Dr Wong Yip Chong,
complicated by her thyrotoxicosis which is also under control. Both are
treatable conditions with good prognosis. Mdm Soon is now well and
steady.

There was thus no doubt that, should custody be granted in the appellant’s
favour, her medical condition would not in any respect undermine her
ability to bring up her child. The most important factor pointing to this was
that she was psychologically stable and would not pose any physical danger
or otherwise to the infant. She was, as the appellant’s counsel submitted, a
normal person from a normal family.
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448 SINGAPORE LAW REPORTS (REISSUE) [1997] 3 SLR(R)

43 Having determined that there was a change of circumstances and that

the appellant had the capability take care of the infant, were there other
considerations which would incline the court to take the view that, in the
best interests of the child, the custody should nevertheless remain with the
respondent? The respondent’s counsel put forth the argument that the
appellant’s family environment was not conducive to the child’s
upbringing. Besides, the status quo should be maintained as the child had
been well taken care of by the respondent’s sister for the past two years and
had lacked nothing. We felt that these were not important considerations
and had little bearing on deciding the matter at hand. In our view, the
appellant came from a normal family background. The contention that the
infant should remain with the father by reason of the fact that the
respondent’s sister had been taking good care of the child was untenable. A
surrogate mother, no matter how good she claims to be, can be no perfect
substitute or replacement for the natural mother.

44 In this case, all things were equal between the appellant and the
respondent. Both undoubtedly loved their son dearly. Both were capable of
looking after him and had their respective families behind them to help out.
In fact, the appellant was in a more appropriate position to take care of their
son. She was a private tutor and gave tuition at home. This would allow her
to look after the infant while giving tuition at the same time. The
respondent, on the other hand, worked at the Inland Revenue Authority of
Singapore and would not be able to be with the child most of the day.

45 All other things being equal, a very important factor to bear in mind
was that we were dealing with an extremely young infant. We felt that the
maternal bond between the appellant and the infant was a pivotal
consideration here. The bond between the natural mother and her child is
one of the most unexplainable wonders of human nature. It should never be
taken for granted or slighted. We have all heard of the story of the mother
who fought a tiger with her bare hands to save her child from the ferocious
beast. Such is the love and sacrifice of the maternal instinct. Since the
beginning of civilisation to this age of consumer materialism, the mother’s
love for her child remains just as strong and unchanging. This court would
be doing a disservice to justice and humanity if it turned a blind eye to the
most fundamental bond of mankind – between a mother and her child, by
taking the child away from the mother. We were in full agreement with the
view taken by the Malaysian High Court in Shanta Kumari K v Vijayan
[1986] 2 MLJ 216, an application for the custody of a 20-month-old infant,
at 218:
Even going on the assumption that both parents are equally capable of
providing care, comfort and attention to the infant, the Courts have
always leaned in favour of the mother being given custody of young
infants. The reason is very obvious. An infant of tender age is by nature
more physically and spiritually dependent on its own mother than
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[1997] 3 SLR(R) Soon Peck Wah v Woon Che Chye 449

anyone else. In Kades v Kades, the High Court in a joint judgment

stated:
What is left is the strong presumption, which is not one of law
but is founded on experience and upon the nature of ordinary
human relationships, that a young girl should have the love, care
and attention of the child’s mother and that her upbringing
should be the responsibility of her mother, if it is not possible to
have the responsibility of both parents living together.
In Chan Kah Cheong Kenneth v Teoh Kheng Yau [1994] 2 SLR(R) 595,
MPH Rubin J held that, if all the factors were equal between the parties,
then probably it was right for a child of tender years to be brought up by his
natural mother. We should not be mistaken as reviving the old
presumption of “maternal custody” of all young infants. It is only a natural
conclusion that, by reason of his very tender, young age, the infant would be
most dependent on his mother for his physical and psychological needs. In
the best interest of the child’s welfare, we should not deprive him of his
mother’s love and care.

Motion No 208 of 1997

46 At the conclusion of the appeal, the appellant’s counsel applied to
withdraw Motion No 208 of 1997. We granted the application for
withdrawal with no order as to costs.
47 For the reasons above, we allowed the appeal for a variation of the
custody order of 24 April 1995 and granted interim custody, care and
control to the appellant with liberal access to the respondent.

Headnoted by Chan Xiaohui Darius.