Madam, I would like to speak on 4 issues for this Women’s Charter Amendment Bill and how we can make improvements.
1. PARENTING PROGRAMME ON DIVORCE – DOMESTIC VIOLENCE SITUATIONS
The new Section 94A implements MSF’s proposal that parties with children must complete a mandatory parenting programme before they can file for divorce, if they have not agreed on divorce and all ancillary matters.
In particular, I believe that special consideration should be given to cases of domestic violence.
I understand from AWARE that their experience is that the abused spouse is usually the one who wants the divorce whereas the abusive spouse may resist. In this situation, since the couple would not have agreed on divorce and all ancillary matters, according to the proposed amendment, they would have to go through mandatory parenting programme unless this is dispensed with by the Court.
I am concerned that the abused spouse could end up being trapped in a legally perpetuated situation of domestic violence. This will not be in the interest of the child as, in addition to spousal abuse, there may also be child abuse in such a situation.
Although the proposed section 94A(4) allows courts discretion in waiving the requirement of the mandatory parenting programme, in my view, the law should explicitly and clearly state that no parenting programme need to be attended in cases of domestic violence, rather than leaving the question up to the discretion of the judge.
2. SPOUSAL MAINTENANCE FOR MEN
The Bill amends the Charter so that spousal maintenance is available to men, but only where they have been incapacitated and are unable to support themselves. I believe that spousal maintenance should be based on a principle of fairness, not gender. Maintenance should also be available to men in other appropriate cases, e.g. where men make economic sacrifices to take a primary role in household labour and caregiving, even if such cases are rarely encountered.
3. VIOLENCE AGAINST WOMEN
At the moment, section 160 allows the Director of Social Welfare to detain girls aged 16-21 on the following grounds:
· If her lawful guardian requests the Director to detain her
· If the Director considers her to be in need of protection and whose lawful guardian cannot be found
· If the Director believes her to have been ill-treated, and
· If the Director considers her to be in moral danger.
Is there any investigation of the “lawful guardian” who makes such a request? Is the girl in question consulted about her own needs or wishes?
The underlying assumption is that the “lawful guardian” always has the girl’s best interest at heart: this would not be true in situations of family violence.
Even if lawful guardians have their charges’ best interests in mind, after the girl has been brought into detention, the Director can detain her until the age of 21, according to the amendment, and the guardian would have no control.
It is problematic that girls can be detained against their will when they have not committed any criminal offences, and in fact are in vulnerable situations.
The provisions of Sections 160, 161 and 163, even after amendment, are still overly vague, broad, and open-ended.
There is no clear information about the Director of Social Welfare’s decision-making process concerning whether or not to bring a girl into detention, how long to detain her and what the conditions of her detention should be. What are the factors and criteria used for decision-making?
I hope that we can have more explicit definitions of the conditions under which minors may be placed in protective shelters, including domestic violence as one of these conditions.
I also hope that there will be submission of the decisions of the Director of Social Welfare, with justifications, to the Family Court with a court review and a court order required for continuation of protective shelter to the woman or girl at risk, with the duration of the stay stipulated. At the end of the period of stay, the case should be reviewed by the Court.
On the PPO regime. I note the amendment to Section 65 to allow married or previously married persons below the age of 21 years to apply for a protection order and expedited order for themselves and specific dependents.
This is commendable, but it does not follow that a wife under 21 with her dependents can easily find shelter in a place of safety.
Will shelters for victims of domestic violence now accept married girls and women under 21? If not, what provisions are there for a wife who is under 21 and a victim of domestic violence to be housed in a place of safety?
In addition, I suggest that other than those who are married, all individuals under 21 be allowed to apply for Personal Protection Orders (PPO) and Domestic Exclusion Orders (DEO) so that they can be protected from all forms of domestic violence, that the need for parental consent be removed in such cases, and that the application for protection can be against anyone in their household.
4. MARRIAGES OF CONVENIENCE
I seek more clarity as to the process by which a marriage would be found void under the proposed new section 11A. The new section 11A(3) makes clear that marriages will be deemed void if certain immigration offences are committed, but are there other circumstances where section 11A would be invoked? If so, is there a court process involved or is it an administrative determination? In my view, a decision of such gravity should be subject to judicial process.
In conclusion, I am recommending the following:
1. Amend the new section 94A to explicitly state that in situations of domestic violence, judges should not require divorcing parties to attend a mandatory parenting programme.
2. Make spousal maintenance available regardless of gender, on the basis of fairness and need.
3. Section 160 allows the Director of Social Welfare to detain girls aged 16-21 on extremely vague, broad and open-ended grounds. I seek more clarifications on this and also for the submission of the decisions of the Director of Social Welfare under this section to be reviewed by the Family Court.
4. I note the extension of the PPO regime to married under-21s and would like to raise the question of whether these young people will now be able to access shelters and “place of safety” if they become victims of domestic violence.
5. I recommend that all individuals under 21, not just those who have been married, can apply for PPOs on their own behalf.
6. I seek more clarity as to the process by which a marriage would be found void and whether a decision of such gravity should be subject to judicial process.
Madam, I do feel that the proposed amendments are appropriate and timely. However, we cannot legislate everything. Lesgislation is only one piece of the puzzle. There are also policies, support programmes and services and public education that are part of the overall effort. Family and community also have a role to play in strenthening and supporting the family.
Madam, my request for the government to review the above points I have raised notwithstanding, I support the Bill.