The Legal and Social Issues facing the Family in Thailand. Justice Apiradee Phoprom Chief Justice - Region 1 (Thailand) “IAFL Asia Pacific Chapter Meeting Education Programme 2023” 1 June 2023 At BANYAN TREE Bangkok
IAFL ASIA PACIFIC CHAPTER MEETING EDUCATION PROGRAM Banyan Tree Hotel, Bangkok, Thailand Thursday 1 June 2023 - Protecting the money 8:45-9:15 Introduction and Welcome Geoff Wilson (Australia) President Asia Pacific Chapter and a representative from the meeting charity 'Hands Across the Water 9:15-9:45 Legal and Social Issues facing the Family in Thailand Moderator: Nigel Nicholls (Australia) Presenter:The Honourable Judge Apiradee Phoprom (Thailand) 9:45-10:30 Family Law in Thailand: An Overview Moderator: Sharon Ser (Hong Kong, China) Presenters: Sasirusm (Roll) B Chunhakasikarn (Thailand) and David Lawrence (Thailand) 10:30-11:00 Coffee break 11:00-12:30 Discovery: Comparison through Asia Pacific jurisdictions onavailable remedies Moderator: Sheridan Emerson (Australia) Presenters:Jocelyn Chi - Managing Director, Kroll (Hong Kong, China), Jacky Campbell (Australia), Foo Yet Ngo (Malaysia), Ashok Chugani (Singapore) and Cindy Diggs (Texas, USA) 12:30 End of Session
Friday 2 June 2023 - Protecting families/Protecting children 9:00-10:30 Marriage-like Relationships in the Asia Pacific Region Moderator: Corinne Remedios (Hong Kong, China) Presenters:James Stewart (England), Anita Chan KC (New Zealand), Winnie Chow (Hong Kong, China), Judge Amanda Humphreys (Australia) and Simon Bruce (England) 10:30-11:00 Coffee break 11:00-12:15 Application of Sharia law in jurisdictions with mixed jurisdictions Moderator:Foo Yet Ngo (Malaysia) Presenters: Halijah Mohamad (Singapore) and Azmi bin Mohd Rais (Malaysia) 12:15-1:15 International Commercial Surrogacy - ethical issues Moderator:Judge Alison Burt (Australia) Presenters:The Hon. John Pascoe AC CVO (Australia), Margaret Casey KC (New Zealand) and Aimpaga Techa-Apikun (Thailand) 1:15-2:15 Lunch Break 2:15-3:15 Abduction of Children to Non-Hague Convention Countries Moderator: Poonam Mirchandani (Singapore) Presenters: Jason Tian (China), Pinky Anand (India), Kiran Dhaliwal (Malaysia) and Prawidha Murti (Indonesia) 3:15-4:00 The Inaugural Lecture in honour of Anne-Marie Hutchinson OBE, QC (Hon) Introducer: Corinne Remedios (Hong Kong, China) Presenter:The Honourable, Mr Justice Russell Coleman (Hong Kong, China) 4:00-4:30 Tea break END OF EDUCATION PROGRAM 4:30-5:00 IAFL Asia Pacific Chapter Annual General Meeting 5:00-530 IAFL Asia Pacific Chapter Management Meeting
The Honorable Justice Apiradee Phoprom | Chief Justice ,Region 1 (Thailand) The Honorable Justice Apiradee Phoprom is currently the Chief Justice,Region 1 of Thailand. Phoprom has over 30 years’ experience as a member of the Thai judiciary. Prior to her appointment as Chief Justice,Region 1, Justice Phoprom served as a judge with the Songkhla Juvenile Court in Songkhla Province in southern Thailand. Subsequently, she was appointed as the chief judge of the Ubon Ratchathani Juvenile and Family Court in 1999. In 2006, she was appointed as the deputy chief justice of the Central Juvenile and Family Court in Bangkok. More recently, from 2018-2019, Justice Phoprom served as the acting research justice of the Juvenile and Family Case Division of the Supreme Court of Thailand. Justice Phoprom has maintained a particular interest in initiating collaboration between government agencies, private sector entities, and the local community in relation to juvenile rehabilitation and the provision of family counseling. In 1999, Justice Phoprom initiated the “State-Citizens’ Collaboration for Juvenile Rehabilitation Project, in Celebration of the Auspicious Occasion of His Majesty King Bhumibol Adulyadej’s 6th-Cycle Anniversary.” This project focused on building a community network to improve the protection of children’s rights and to collaborate with the courts in the rehabilitation of juveniles in an effort to minimize repeat offenses.
She has also been integral in initiating and establishing various community projects, including the Project on Enhancing Co-operation in Protecting the Rights of Children in Conflict with the Law (CPC). Justice Phoprom has taken the initiative to develop Thailand’s standard of treatment of children and juveniles involved in the judicial process, relying on the United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice. In doing so, she emphasized the importance of collaboration between justice organizations and other organizations focused on child protection, health promotion, educational organizations and social services. These programs have not only received positive feedback from the community, but have also been recognized by highly distinguished organizations such as UNICEF UNODC and the Thai Health Promotion Foundation. Justice Phoprom was also the secretary of the commission to review the Juvenile and Family Act B.E 2553 of the House of Representatives, and the deputy secretary of the commission to review the Juvenile and Family Act B.E. 2553 of the Senate. This was a crucial and ground-breaking act that adopted the standards of the Beijing Rules to improve the protection of children’s rights in the justice system. The law also encourages peaceful negotiations between family members in family legal proceedings and minimizes conflicts in relationship break-downs, prioritizing the welfare of the children. Moreover, the law imposes measures that assist separated spouses in claiming for child support and maintenance funds. It also encourages the use of scientific evidence to substantiate the facts in family disputes and increases the roles of Juvenile and Family Courts in protecting the welfare of children.
Contents The Honorable Justice Apiradee Phoprom | Chief Justice ,Region 1 (Thailand)...4 At the time Thailand was starting as a country, ..................................................1 From the revolution of the Thai society (1851) to the change of governing system in 1932. ....................................................................................................3 From the changing of the governing System in 1932 until now. .........................5 1. General Protection for children under the CRC.........................................7 2. Legal mechanism of children offender’s rehabilitation..............................9 3. The Legal Mechanism in the Protection of Children as a family member under Special Circumstances other than prescribed by Family law...........13 Legal and Social Issues facing the Family in Thailand .....................................17 1. The history and evolution of the Thai family law. .....................................18 2. There are 3 main areas that are issues of interests.................................20 2.1 surrogacy..........................................................................................20 2.2 Parental child abduction...................................................................22 2.3 Conflict of laws in international family matters. ................................25
The Legal and Social Issues facing the Family in Thailand. Apiradee Phoprom The Chief Justice, Region 1 A family institution is a small and basic unit of our society. Societal issues can reduce the strength of a family institution. At the same time, a strong family institution can reduce societal issues. As a result, if a society can build an effective legal mechanism to strengthen the family institution, the society can exist peacefully despite the changing societal issues. It is worthwhile to explore the development of the Family Law of Thailand under the changing societal circumstances of each time period. At the time Thailand was starting as a country, Thailand was formed under the monarchy system. The first family law was in 1283 as shown by the Inscription of the Great King Ram Kham haeng. The King has described the family institution by emphasizing o n t h e f a t h e r h o o d a n d m o t h e r h o o d , brotherhood and sisterhood. The father was the leader of the family institution. Females did not have a role in the family or the society. There was no mention of marriage or division of assets between husband and wife. The citizens had a close relationship with their King, under the social circumstance just like father and son, which is called “Paternalism”. The citizens had a lot of
2 freedom, however, there were societal needs to keep peace and order. Therefore, there was a division between societal classes of the ruling class, bureaucrat and commoners. In the year 1292, the Thai society has been influenced by the customs, traditions and moral values of the ancient law of India. The Family law that defined the relationship between men and women by way of marriage, focusing on the consent of the women and the women’s parents. Those who breached an engagement proposal must pay damages and return the engagement gifts. When men and women no longer wish to stay married, they could obtain a divorce without a cause for divorce. There were also clear rules on division of assets after divorce. These were all covered by the ancient law called “Mangraiyasart”. It was an inclusive law on family relationships and family dispute resolution which was effective for the social circumstances of the time period. Before Ayutthaya became the capital city of Thailand in 1350 and before the revolution of the Thai society in 1851, Thailand was under the feudalism system. Every citizen belongs to a certain class, except the King who had the power over the citizen’s lives and the land. The King had an absolute power to administer the country, make laws and act as a judge. Society believed that women were inferior to men in terms of abilities, intelligence and physical strength. The physical differences between men and women had led
3 to a society where men were naturally superior to women. This has influenced the Thai family law at the time. From 1361, Thailand’s family law allowed men to have multiple wives, use physical violence against his wife and even sell his wives and children. Even though there were many amendments, the law remained that way. From the revolution of the Thai society (1851) to the change of governing system in 1932. The Thai society has undergone a revolution in 1851. This was because Thailand traded with many Western countries. Those countries saw Thai law as outdated and forced Thailand to sign an extraterritorial contract which. foreign countries to enforce their own laws in Thailand’s territory. To end such contract, Thailand improved its criminal and civil laws to meet international standards. In terms of criminal law, Thailand had begun using The Penal Code of Siam R.S. 127 during 1908. The law’s main principle was to protect children. Children offenders were to have a different criminal penalty than adult
4 offenders. The law focused more on educating and rehabilitating children into joining the workforce rather than punishing them. There was an idea of using an education system which prevents children from committing offenses. This was called the “Elementary Education Act B.E. 2464”, which made school education compulsory for children. In terms of civil law, Western law has influenced the perspectives of Thai women. The people realized the importance of women, the family institution, the economy and the changing social circumstances. whereby women began to have more roles and responsibilities within society. This has resulted in the development of the Thai family law, called the “ Amendment on the Husband-Wife Characteristics Act B.E. 2473”. This was the first law which accepts the status a married women as a wife by way of registering a marriage. It also allowed divorce. The enactment of this law showed a change in social values, only allowing each man to have one wife rather than multiple wives like in the past.
5 From the changing of the governing System in 1932 until now. After the changing of the governing system from an absolute monarchy system to a constitutional monarchy system in 1932. The People’s Party Government has absorbed the Amendment on the Husband -Wife Characteristics into Book 5 of the Civil and Commercial Code. It became effective in 1935 and the legal principle which only allow a man to have one lawful wife remained the same until today. The change from absolute monarchy to constitutional monarchy in 1932 has greatly affected the Thai society in terms of rights and freedom of citizens. The citizens enjoyed legal protection of the law and the feudal system completely faded away. However, a huge economic gap due to the government’s economic policy created a monopoly. People with wealth and strong social influence prospered while. poor farmers and peasants had to live in poverty and were taken advantage of by middlemen. These people started to move in big cities and Bangkok to find jobs where they had to struggle to survive in the economic circumstances. The family structure began to change
6 to a smaller family unit, whereby it was more common to leave. their grandparents and children behind instead of living together as an extended family. This took away the sense of emotional connection through love and care where parents had less time to teach their children moral values and traditions. When parents put in many hours into work, the family institution began to weaken. As we enter the globalization period, children are able to access information, news and traditions from every corner of the world. The social issues faced by the Thai society is similar to those faced by other countries. These are drugs, unplanned pregnancy and controlling of usage of violence between juvenile groups. Nevertheless, at the time, Thailand had many developments in terms of civil and criminal law such that the Western countries had canceled their extraterritorial treaties and. accepted Thailand as a signatory member of the Universal Declaration of Human Rights, 1948. Thailand had adopted the principle of the UDHR since then Thailand had undergone 3 amendments to the family law in various aspects to ensure equal rights between men and women, being more in par with the international human rights standard. From this, we can observe that Thailand has evolved its perception about the family institution through legal developments to meet international standards. From the initial position where men were superior in the family and women had no roles in the family and the society, being able to sell wives and children and marriage were by consent of the women’s parents, Thailand’s family law has now adapted to the standard of international human rights. Marriage must be by consent. Men and women have equal rights in a marriage, in childcare, and in assets division during and after the end of the marriage.
7 The UDHR 1948 has certified that a family is a natural and basic unit of the society and therefore has the right to be protected by the society and the government. This has influenced the idea of protecting family members, especially children, who are deemed as social assets of the state due to their future role in expanding family institutes. Other forms legal protection for family members other than civil law protection has also increased. Ever since the Beijing Rules 1985, the Convention on the Rights of the Child (CRC) 1992 and the Hague Convention on the Civil Aspects of International Child Abduction 1980 have been implemented. Thailand, as a member of the United Nations (UN) has legislated more laws to ensure that the standard of those international agreements have been met. The structure of the Thai law that has been legislated to accommodate the international agreements is based on the Convention on the Rights of the Child (CRC), which states that the “protection for children is a part of human rights.” Their lack of physical and intellectual capacity compared to adults makes it very important that they receive special protection so that they grow up to become valuable assets to the society. Thailand has implemented this principle in 3 ways. 1. General Protection for children under the CRC First, the General protection for children under the CRC ensures 4 rights for children. These are rights to life, rights to be protected, rights to be developed and rights to participate. Thailand has implemented 4 Acts to accommodate this. The first one is the Child Protection Act 2003. The main principle is to ensure that treatments towards children, no matter the circumstances, should be done to benefit the welfare of the children and without prejudice. The Act entrusted parents with the responsibility of caring for the children and
8 educating them. Parents must meet the legal standard of care for the children. If they fall below the standard such that it might put children in danger, the state officials may step in to give protection. Those who see the children in danger has the duty to report it to the state officials without delay so that they can provide fundamental help. The second one is the Domestic Violence Victim Protection Act 2007. This law makes it a compoundable criminal offense to use domestic violence. It is the duty of the injured person or the person with the knowledge of the offense having taken place to report the violence in a family. High level state officials has the power to issue interim injunction for the injured person as necessary. For example, giving reimbursement money, prohibiting the offender from entering the household or being near the family. In deciding a case, the court takes consideration of the peace in the family. It is important to preserve the marital status of the couple. If that is not possible, a divorce should be just and the least emotionally damaging where the welfare and future of the child is paramount. During trial , the court may order a measure to alleviate the situation or change its order due to the change of circumstances. If the court sees the offender as guilty, the court may assign a method of rehabilitation such as by paying damages, doing community services and refraining from using violence or making a written or verbal promise not to do so. This law has been implemented for longer than 10 years. There were many problems so there was a proposal for an amendment, however, this has not been fully been achieved. The third one is the National Health Security Act 2002. This Act aims to ensure the rights to medical treatments and healthcare which promotes
9 health and prevention of diseases to ensure good life quality. This is to accommodate the children’s right to life principle of the CRC. The fourth one is the National Education Act 1999.This aim of this act can be seen from its name, which is to provide 12 years of free fundamental education for Thai children. This is to promote children’s literacy, knowledge and moral values so that they can grow up and contribute positively to the society. Parents have the duty to ensure that their child has received the fundamental education and further education based on the family’s financial capability. 2. Legal mechanism of children offender’s rehabilitation Secondly, ever since the Penal Code of Siam R.S. 127 was implemented in 1908, Thailand’s attitude towards young offenders has become different from adult offenders. The Penal Code prevented children younger than 7 years of age from being criminally prosecuted. For children between 7 to 14, it would depend on the capacity of the children. If the court sees that the child still lacks capacity, they will not be prosecuted. If the court sees that the child has some but limited capacity, the court may use an appropriate measure for that child. This can be anything from verbal admonition, temporary probation, behavior monitoring through parental care and sending children to reformatory schools but for a period no longer than when they reach 18 years of age. Later, Thailand has developed its first legal procedure designed for children in 1951. This is called the Juvenile and Family Court Establishment Act 1951 and the Juvenile and Family Court and Its Procedure Act 1951. The founding era The Act originated from the idea that the state, as a parent of itscitizen, has the power to interfere with families when families are facing issues or fail to fulfill their responsibilities. Emphasis was put on the state’s duty to care for, educate and
10 provide help for the children who enter a criminal proceeding and to protect the interests of children in a civil proceeding. The legal procedure is different from that of an adult. Also, there is a panel of judges comprising of a layman judge. Other than this, there are organizations of judges, attorney generals and legal counsels that play the same role as attorneys specifically to act on behalf of the children who are accused of committing criminal offenses. The juvenile detention centre and its directors have the duty to investigate for evidence to be used in the proceedings and make a report on the interests of the child. The development era This began with the enactment of the Juvenile and Family Court Establishment Act 1951. The main idea was to adjust the role of judges in juvenile cases towards being a juveniles and family court judges. The main purpose was to come up with special measures to assist and protect marital status to prevent a breakdown of family units and issues faced by children in a broken family. It also includes improvement of legal proceedings against children to protect and support children who are valuable human resources that will grow up to be good adults. The New Innovation era This began with the enactment of the Juvenile and Family Court and Its Procedure Act, B.E. 2553, which is the law that is still used today. This was an overhaul of legal procedures in cases involving children. The main principle is “Children is the center.” It builds and improves treatments towards children before, throughout and after they enter the legal proceedings. This corresponds to section 40.1 of the Convention on the Rights of the Child 1989 which postulates that every child accused to of a criminal violation must treated in a way are suitable for their dignity, which support respect to human rights
11 and fundamental freedom of others. The age of the child and their wishes to return to society must be considered. The Act has changed the outlook of the child protection measures previous method of treating children putting children under the control of the state. Now, judges can put children under the care of their parents or other persons or organizations as the court sees fit. If the child comes from a broken family, without father or mother, or parents who lack the quality to take care of the children, the court may assign measures for them to enter rehabilitation and counselling to avoid repetition of offenses. The spirit of the Beijing Rules, section 19.1, was employed to limit the use of detention centers to the least possible. It should be the last resort and the length of stay should be as short as possible. This is so that juveniles leave the prosecution system and return to the society as soon as possible. Three filter mechanism should filter out juveniles from entering the legal procedure, one before, one during and one after the proceedings. Under Article 40.3 of the CRC, when it is appropriate and desired, measures other than judicial proceedings can be used for children who had committed criminal offenses under the condition that human rights and legal rights of the children are fully respected. The filter mechanism during and after the proceeding is called “Restorative Justice” which has been used to rehabilitate children offenders by the collaboration of multiple parties. This includes the plaintiffs, the defendants, psychologists, social workers, the community and other state organizations. This way, everyone is involved in collaborating to solve the issue. Offending children would understand the nature of their actions and the damages that have occurred while injured parties would be assisted. The parties would get to understand the
12 issue of the child offender, sympathize and give the child asecond chance to return to the society. This has shown to have positive effects to the child as their willingness to change increased significantly. Restorative justice has been used in parallel with the regular prosecution procedure. In other words, if the children are successfully rehabilitated, they can be let out of the prosecution procedure. If it was not successful, they must remain in the procedure. The filter mechanism before the hearing of judgement includes working with various organizations to help rehabilitate the young offenders. They will help correct, rehabilitate and restore juvenile offenders under the prosecution system by working with the court. This is due to the idea that rehabilitation cannot be done by the judiciary alone but by every organizations in the community such as the family institution, the educational institution, healthcare institutions, child protection organizations, social services and the community. Regarding the driving of this law enforcement, I have a chance to be a project leader on Enhancing Co-operation in Protecting the Rights of Children in conflict with the Law (CPC) for the development of an integrated system of collaboration between organization such as the Ministry of Justice, the Child Protection Department, the Public Health Department, the Education Department and Social Welfare Department to improve behaviors of child and youth offenders. There are 47 agencies participating in this project with pilot project 12 provinces and 51 children accused in conflict with the law in accordance with UN Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice) . Strategy 11, article 31 (b) appears that 51 cases under 1- year supervision can change up to 94%.
13 There are amendments to the Act by bringing in the mediation technique in deciding a family dispute. The parties in a family dispute are encouraged to come to a compromise from the starting point of the case. There are also amendments related to child support claims and the use of scientific evidence to substantiate the facts of the case. Other than this there is a new stream of idea to allow a direct claim or petition to the Family and Juvenile court about the protection for the child’s safety under the Domestic Violence Victim Protection Act 2007 and other laws. The court has the power to specify measures to protect the safety of the accused and the petitioner in such case. 3. The Legal Mechanism in the Protection of Children as a family member under Special Circumstances other than prescribed by Family law. Thirdly, in relation to this, the Thai Supreme Court’s President as a member of the Council of ASEAN Chief Justices has sent judges to participate in the Working Group on Cross-Border Disputes Involving Children (CBDIC WG). The 6th CBDIC WG meeting was held in Singapore on 26 September 2019. At present, this concerns 2 Acts. The first one is the Hague Convention on the Civil Aspects of International Child 1980. This concerns an international abduction of children. As a signatory member, Thailand must have a Government Central Authority who has the duty to investigate the location of the child being abducted and ensure a safe return of the child to his or her original country. The Act also states about the visitation rights. The state officials has the power to a temporary monitoring of the child during court proceedings. They also have the power to define the scope of power and legal procedure of the court.
14 The Second one is the Protection of a Child Born By Medically Assisted Reproductive Technology Act, 2015. Due to the advancement of medical technology, assisted medical technology can act as treatment for infertility. Therefore, there is a need for the law which protects the rights of children who were born from medically assisted procedures that are not corresponding to their parent’s genetic relations. The Act also monitors scientific medical research about embryos and correct usage of Medically Assisted Reproductive Technology. Other than this, Thailand has pushed for the legislation for samesex marriage registration by drafting the Bill of Life Partnership Registration, which is currently waiting to be proposed to the council. For further understanding, it should be explained that Thai land used to have a Single Court System whereby very type of case enters the proceedings of the Court of Justice. In 1997, Thailand has changed to use a Dual Court System. It separated between Administrative Case falls under the jurisdiction of the Administrative Court. Family case falls under the jurisdiction of the Juvenile and Family Court. Now, there are the Central Juvenile and Family Court in Bangkok and other Provincial Juvenile and Family Court in every provinces in Thailand. These cases must be appealed to the specialized court (Juvenile and Family Division). Further appeal of a civil case must be approved by the Supreme Court. For a criminal case involving a child offender, it can be appealed to the Supreme Court as allowed by the law. To conclude, it could be observed that Thailand had undergone an evolution of ideas related to family law and laws which strengthens the family institution to meet international standard and respects international human rights. It ensures gender equality and has legal mechanism in proving general protection for children
15 under the 4 Acts that I have mentioned. Firstly, the Children Protection Act 2003 is an important tool in relation tothe family’s treatment towards children by ensuring them appropriate level of development through the right education and care. As family is a basis of our society, if a family institution is weak and cannot protect children, the legal mechanism would ensure that the child is assisted, protected and monitored to receive education. The government would arrange for social services and activities for positive development according to the National Education Act 1999 and the National Health Security Act 2002. This is so that the children are prevented from entering the prosecution system unless it is necessary. The Domestic Violence Victim Protection Act 2007 prevents domestic violence that affect the development of children and prevent children from copying theviolent behavior. If the social mechanism fails to protect children under the general circumstances, the child would enter the prosecution proceedings system. The legal mechanism on juvenile rehabilitation would be initiated under the Juvenile and Family Court and Its Procedure Act 2010 in order to return those juveniles as an asset to the society once again. Lastly, we have a legal mechanism to protect children as a member of family under the special circumstances. These are the Hague Convention on the Civil Aspects of International Child and the Protection of a Child Born by Medically Assisted Reproductive Technology Act, 2015. They help protect children in a disputed family and protect the status of children who were born from medically assisted reproductive technology. Some may think that Thailand has a family law and legal mechanism which promotes the family institution in accordance with the international law standards, so it must be able to withstand social issues in the globalizing world. It is within my opinion that we must accept the fact that in practice, Thailand still face
16 problems concerning the efficiency of the enforcement of those laws. The main factor of this issue the structuring of social services and the budget system. Each organization are separated from each other by their different legal responsibilities and the budget system. In order to strengthen the family institution, it is necessary that these social organizations collaborate with each other efficiently and compatibly. We need a central organization which coordinate each social organizations in order to achieve strategic and social development of the law, rules and regulations that pose issues to law enforcement. There had been attempts in improving the budget system through the development of the strategic integration system. From such attempt, I strongly hope that it would lead to a better strategic social management between different social organizations and higher efficiency in enforcing Family law and other laws which preserve the family institution and reduce problems in the globalizing Thai society.
17 Legal and Social Issues facing the Family in Thailand Greetings to all distinguished guests of the IAFL Asia Pacific Chapter Education Program. My name is Apiradee Phoprom, Chief Justice Region 1 in Thailand. I feel deeply honored to be a guest speaker for today’s program and I truly hope that all of you will gain insights and new perspectives about family law from today’s presentation. Before I discuss the social and legal issues facing the family in Thailand, I want to spend a brief moment talking about the history and evolution of the Thai family law.
18 1. The history and evolution of the Thai family law. The first of Thai family law dates back to the era of the Great King Ram Khamhaeng as evidenced by his stone inscription in 1283. Men were leaders of the family institution and there was no mention of marriage or division of assets. Similarly, in the Ayutthaya period in 1361, the society under absolute monarchy still believed that men were superior to women in terms of strengths, abilities and intelligence, which influenced the Thai family law at the time. For example, men could have multiple wives, use physical violence against his wives and even sell their wives and children. It was in the 1851 that the revolution of the Thai society happened. At the time, Thailand signed an extraterritorial contract which unfairly allowed foreigners to enforce their laws in Thailand’s territory. To end such contract, Thailand had to quickly improve its criminal and civil law to match international standards. Women began to have more roles and responsibilitiesin society. Then, there was the Amendment on the Husband-Wife Characteristics Act BE. 2473 (1930), which was the first law to mention marriage registration and divorce due to the changing social values. In 1932, Thailand changed
19 its governing system from absolute monarchy to constitutional monarchy. The Amendment aforementioned was absorbed into Book 5 of the Civil and Commercial Code which is still used today. Nowadays, Thailand has adopted international rights standard where men and women have equal rights in a marriage, child care and asset division during and after the end of marriage. In addition, there was an increase in other forms legal protection for family members other than civil law protection. Ever since the Beijing rules 1985 the Convention on the Rights of the Child (CRC) 1992 and the Hague Convention on the Civil Aspects of International Child Abduction 1980 have been implemented. Thailand, as a member of the United Nations (UN) had legislated more laws to ensure that the standard of those international agreements have been met. This is done through 4 Acts. 1. Child Protection Act 2003 which focuses on the child welfare without prejudice 2. Victims of Domestic Violence Victim Protection Act 2007. It is focuses on family matters when considering criminal cases, changing the violent behavior to promote family peace. 3. National Health Security Act 2002 to ensure right to life of children according to CRC. And National Education Act 1999 to ensure right to development according to CRC. There is a mechanism for children offender rehabilitation. Nowadays, Thailand is using the Juvenile and Family Court Procedure Act 2010. It puts the child as the center. It builds and develops a system for children treatment from the entrance to the exit of the legal proceeding. The aim is to return children and juveniles to be good assets of society. There are laws to protects children rights under special circumstances. This is firstly, the Hague Convention on the Civil Aspects of International Child Abduction 1980. As a signatory member, Thailand is required to have
20 a Government Central Authority who has the duty to investigate the location of the child being abducted and ensure a safe return of the child to his or her original country. The Act also states about the visitation rights. Secondly, Thailand has passed Protection of a Child Born by Medically Assisted Reproductive Technology Act, 2015. Due to the advancement of medical technology, assisted medical technology can act as treatment for infertility. Therefore, there is a need for the law which protects the rights of children who were born from medically assisted procedures that are not corresponding to their parent’s genetic relations. The Act also monitors scientific medical research about embryos and correct usage of Medically Assisted Reproductive Technology. 2. There are 3 main areas that are issues of interests. The Thai Juvenile and Family Court is a specialist court separated from other courts of justice and oversees all matters related to family and children. Based on the evolutionof laws, the Thai family law has witnessed much progress from its early days but there are still some issues facing the family in Thailand today, concerning the enforcement of laws which is still limited in effectiveness. There are 3 main areas that are issues of interests. These are 1) surrogacy, 2) parental child abduction and 3) conflict of laws in international family matters. I will address each of these in turn. 2.1 surrogacy The main social and legal issue on surrogacy concerns children born of unlawful surrogacy. According to Thai law, all single people and same-sex couples are banned from completing surrogacy in Thailand. They must be married opposite sex couples with at least one of them holding Thai nationality. The person to be a surrogate mother must be a relative of one of the married
21 couples too. The Act of Assisted Reproductive Technology Born Children B.E. 2558 allows 2 ways to achieve this. First, by using an embryo formed of the husband’s sperm and the wife’s egg for surrogacy. Second, by using an embryo formed of either the husband’s sperm or the wife’s egg and another person’s sperm or egg. The surrogate mother’s egg cannot be used for this. But due to the lack of legal and practical enforcement, there are children born of assisted reproductive technology that was not according to the process prescribed by the Act. For instance, there are gay couples who are using one of their sperm cells and a donated egg. There are single people who hire surrogate mothers in underground clinics. There are married couples who arrange for surrogacy but the surrogate mother is not a relative. This created a problem of legal enforcement to penalize those involved in unlawful surrogacy, like those who arrange it, the surrogate mother and doctors. Even if section 45 of the Act states the result of breaching the Act, doctors who arrange for unlawful surrogacy is only deemed to be acting in contrary to medical professionalism, but do not get criminally prosecuted. The penalty for those who breach section 22 of the Act is not strong enough to deter unlawful surrogacy. Also, if the matter is not known by the court, it is problematic of how to prosecute these people. Surrogate mothers who do commercial surrogacy are afraid of prosecution and are always seeking to avoid cooperation in the legal system. But since children born of unlawful surrogacy are innocent, another important point is how should the law award parenthood to couples who arrange for such surrogacy. There is not yet any Supreme Court precedence made by the Juvenile and Family division. However, in practice, the Civil and Commercial Code is applied to such situation as prescribed by section 34 of the Act. Child custody is evaluated based on surrounding circumstances and factors whether those who arrange
22 for surrogacy has the capacity to take care of the child or not. If they raise the child since young, sign the birth certificate and present photo evidence, they have a chance to be awarded parenthood. However, it could lead to problems as some lawyers in courts outside of Bangkok may not present the whole story to the court. They may file a request as child legitimation and the court may be totally unaware that the child was born of unlawful surrogacy. According to statistics from 15 Family Courts in 2021, there were 28 child legitimation cases filed by foreigners but only 1 surrogacy case. It is possible that foreigners avoid being denied custody by framing surrogacy as legitimation. Moreover, other problems are whether the custody of the surrogate mothers could be revoked in the case that surrogacy is not done according to the Act. This is judged on a case by case basis. If the surrogate mother was awarded such status, this affects probate matter. For example, if the child dies, does the child’s asset belong to the surrogate mother or if the surrogate mother dies, to whom does her asset belong to? Therefore, it is clear that there must be a better balance to protect children born of assisted reproductive technology. The Act should be amended to be clearer about the result of non-compliance and how to subject doctors and those who arrange for unlawful surrogacy to punishment. If the law remains the same, then the welfare of the child should be paramount according to the Convention on the Rights of the Child (CRC). 2.2 Parental child abduction Now, moving on to the second aspect of the social and legal issues in Thailand. Nowadays, marriage and divorce between Thai people and foreigners have become more common. Statistics from 15 Thai family courts shows that the most common family cases filed by foreigners in 2022 are divorce at 125 cases,
23 followed by child custody at 34 cases and child legitimation at 28 cases. In 2022, the top 5 nationalities that file with Thai family courts in Region 1 and popular retirement regions are British, American, Chinese, German and Frenchrespectively. The problem arises when divorced couples cannot agree on child custody or habitual residence of the child. One party may escape with the child to another country without consent. Or they may fail to return the child within the time limit. This is a problem of international child abduction. Even when the person who abducts or withholds the child from their habitual residence without consent is a parent, it is still considered as child abduction. It is an abuse of custody against the left behind parent. The Hague Convention on Civil Aspects of Child Abduction was established according to private international law to solve international child abduction by ensuring quick return of the child to the habitual residence. Thailand became a signatory to the Hague Convention in 2002 and passed an Act on International Civil Cooperation for this. However, there has been many issues on enforcing the Act, which does not fully answer the intention of the Hague Convention. There is not enough emphasis on the principle of best interest of the child. Practical problems cannot be solved to prevent child abduction. This may affect the child’s emotion, growth and learning from being abducted for a long time. Based on statistics by Attorney Generals, in 2020, Thailand received 15 requests for help from abroad, while Thailand sent out 5 requests for help. In 2021, Thailand received 16 requests for help from abroad, while Thailand sent out 6 requests for help to foreign countries. In 2022, Thailand received 12 requests for help from abroad, while Thailand sent out 2 requests for help to foreign countries. However, there are practical issues. Very often, there is not
24 enough systematic collaboration between state officials in returning the child. So, some children were removed from their left behind parent for so long that they have gained a new habitual residence or reach the age of majority. This may affect the child emotional development. Take a look at this case study. Mrs. Peach is married to Mr. Jack and have a child together. They later divorced and are supposed to take physical custody of the child for one month each. When comes the time that the child is to stay with Ms. Peach, Mr. Jack. took the child to his native country and filed a court case to fight for child custody in that country. The judge granted him sole legal custody. Meanwhile, Mrs. Peach faces difficulties to have the government of that country bring back her child because there is no practical collaboration regarding the Hague Convention between Jack’s country and her country. She said to the Thai court that Jack now has sole custody according to his country judgment and the Thai court judgment cannot be enforced there. She is afraid that Jack will keep taking the child to other countries and she will not be able to know their location until the child reaches majority age. It would be practically very difficult to exercise the rights according to the Hague Convention. If she files to court in a foreign country, she would also have to pay a lot of legal fees and court fees. She is afraid of cultural bias and language barrier to enter legal proceedings there, which favors the father more than a foreign mother. There was a lack of cooperation between state officials in that country, especially if she is proceeding privately and not through the central authority. In most cases, Thai women filed a request to the court they divorced to issue an arrest warrant against the person who breached the child return agreement and proceed from there instead. In practice, when some court hears the child’s
25 testimony, it also may affect the child emotions and best interest. The child is being used as a tool to gain better advantage against the other party in breaching the agreement. 2.3 Conflict of laws in international family matters. Lastly, the issues about conflict of laws concerning family cases nowadays are divorce, same sex marriage and surrogacy done in a foreign country. First, for divorce in Thailand between Thai and foreigner, section 27 of the Conflict of Laws Act states that the “Thai court will not allow a divorce except when the laws of the nationality of the wife and the husband allow for a divorce. The Grounds for divorce shall be according to the local laws where the divorce is filed.” Therefore, foreigners seeking a divorce in Thailand must prove to the court that the law of their nationality allows divorce. The Court has the power to raise section 27 on their own even if no party has challenged this. In one Supreme Court precedence, the Plaintiff failed to prove that English law which is the law of their nationality allows divorce. Therefore, the case was dismissed but they can re-file the case. According to Thai law, same sex marriage which lawfully took place in a foreign country like Canada or civil partnership in a foreign country are not recognized by Thai law as it is deemed contrary to the public good and good morals of Thailand. Thai law only allows heterosexual marriage so same sex marriage and civil partnership done abroad cannot be registered or revoked in Thailand. Section 5 of the Conflict of Laws Act states that enforcement of foreign laws in Thailand could only be done to the extent that it is not contrary to the public morals. However, there was a supreme court precedence in 2018. The court allowed civil partners who registered their partnership in the UK to administer
26 the assets of their dead civil partner. The Thai court did not deem this to be contrary to the public morals. The court did not directly say that Civil Partnership Act 2004 is not contrary to public morals. However, it confirms that Administration of Estate Act 1925 which allows assets administration after death of civil partner is not contrary to public morals. This is a good sign for LGBT+ couples, however it must be kept in mind that this case only concerns asset administration but may not extend to other cases. Lastly surrogacy could also be viewed through the lens of conflicts of law. For example, in the case that same sex Thai couples do lawful surrogacy abroad, when they return to Thailand, to whom does the surrogate child belong to? or both? This is divided in two parts. Firstly, Thai law only recognize child adoption but not surrogacy by same sex couples. Adoption of a child from abroad which follows CRC is lawful in Thailand. However, surrogacy laws in Thailand does not allow this to combat human trafficking. Secondly, what if one of the female same sex couple act as a surrogate mother herself, began pregnancy abroad but gave birth in Thailand? We must consider conflict of law. For example, does the country which the surrogacy began allow her to be a lawful mother of the child. If yes, the child belongs to the her and not the other female partner. But if no, the child does not belong to the surrogate mother. In the case that foreign laws allow the surrogate mom to be a lawful mother of the child, it might be asked: Can the other female partner gain parenthood status by adopting the child? The answer is yes but once the child is adopted, the custody of the true mother (the surrogate mother) will be stopped and get transferred over. This is a matter of conflict of law.
27 To conclude, Thailand’s family law has come very far in responding to the different social and legal issues that exist in Thailand in different years. These are problems relating to surrogacy, the Hague Convention and conflicts of law. We must do our best to acknowledge these problems in order to come up with legal and practical solution to improve the family institution and to improve Thai law to match international standard in the future.
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