On The Move

Article By: PracticeForte Advisory Affiliate Firm Rajan Chettiar LLC

I.                    Introduction

With the advent of globalization, the number of cross-border marriages is on the rise. Singapore, in particular, is a typical destination country for cross-border marriages in Asia, with the proportion of marriages between a Singapore and a non-citizen spouse rising from 32.8% to 38.7% during the 1998-2008 period.[1] Correspondingly, the modern Singaporean family is more likely to be the product of a cross-border marriage, the breakdown of which would potential raise complex cross-border issues, such as applications for relocation.

After divorce, a parent may want to bring his/her children overseas in search of a new life, or to dive back into the familiar comfort and support provided by extended family members. However, it is not that easily said and done. Section 126(3) of the Women’s Charter requires a parent who wishes to relocate to first obtain either (i) the consent of the other parent in writing; or (ii) an Order of Court. To apply for an Order of Court, the party seeking relocation can either (i) seek to vary the custody order under s 128 of the Women’s Charter, or (ii) seek for an Order of Court granting relocation during ancillary proceedings.

II.                 Applicable Legal Principles

In proceedings involving children, including relocation, the Court of Appeal has highlighted that the welfare of the child is paramount and ought to override any other consideration. The welfare principle states that “[t]he welfare of the child is paramount and this principle ought to override any other consideration”.[2] This has been enshrined in both statutorily[3] and in case law. Thus, when seeking to balance the interests of the parents and their children, the court will focus on the child and decide what is best for his or her welfare, even if this requires the parents to make personal sacrifices.[4]

In determining what is best, cases have shown that two factors are frequently considered: (i) are the primary caregiver’s wishes to relocate reasonable; and (ii) how grave would the child’s loss of relationship with the “left-behind” parent be?

To be clear, the “primary caregiver” is the parent who is relocating with the child while the “left-behind” parent is the other parent.

A.                The Wishes of the Primary Caregiver

The Court of Appeal has acknowledged that “the child’s emotional and psychological welfare is… intertwined with that of the primary caregiver”. Thus, where the primary caregiver wishes to relocate because of reasonable circumstances, such as not being emotionally and psychologically stable in their present environment, this will be taken into consideration.[5] However, their wish to relocate is only relevant to the extent that they have not impacted the child.[6]

Previously, a vast majority of the reported local cases on parental relocation focused heavily on the reasonableness of the custodial parent’s reasons for relocation and less on the loss of relationship with the other parent.[7]  This resulted in seemingly unfair odds since there was practically a presumption in favour of relocation. However, in more recent times, the courts have been careful not to do so.[8] Instead, even where the primary caregiver’s desire is not unreasonable or founded in bad faith, there will not be a legal presumption in their favour.[9]

B.                 The Child’s Loss of Relationship with the “Left-Behind” Parent

What about the “left-behind” parent then? Well, the Court of Appeal has noted that relocation would naturally decrease their presence in their child’s life.[10] When assessing this concern, the courts will look at its impact on the child’s welfare by determining the strength of the existing bond between the left-behind parent and the child.[11] In general, the stronger the bond, the larger the void in the child’s life if relocation is allowed. Hence, a stronger bond tends to mean a greater emphasis on this factor in the final analysis.[12]

The cases have exemplified this. For example, in one case, a father’s application to move to Spain was rejected since it would have sounded a “death knell” to the children’s relationship with their mother.[13]  In another case, relocation was again not granted since the left-behind parent had a “strong, vibrant relationship” with his children and had “taken steps to play an active, involved role” in the children’s lives. Since relocation would have disturbed what was, in the court’s eyes, the fullest extent of a “normal family life” involving both parents, it was not allowed.[14]

C.                Comments

Nevertheless, note that such analyses are ultimately fact-specific. Thus, the extent to which the above factors affect the success of your case really depends on the circumstances you are facing. The presence or lack of the factors are not themselves determinative of how successful you will be.

More importantly, it must be remembered that the courts expect parents to try their best to be cooperative under the circumstances.[15]  At the end of the day, despite not being able to keep the relationship together, parents should look beyond their acrimony and work together for the children. Only in this manner can the family move on with life together, albeit in different directions.

III.              Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“HCCAICA”) is an international treaty to protect children who have been removed from their country of habitual residence without the custodial parent’s permission. Taking one’s own child to another country to without the other parent’s consent could thus be viewed as “abduction” under the HCCICA.

The HCCICA, by providing a procedure for the swift return of a child to his/her permanent home, aims to secure the prompt return of children wrongfully removed or detained in any Contracting State, and to ensure that the rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.

Under the HCCICA, Article 12 directs the court to “order the return of the child forthwith”, subject to Articles 13 and 20.  Particularly, Article 13 provides specific exceptions to the obligation to return.

A.                 BDU v BDT [2014] SGCA 12

BDU v BDT [2014] SGCA 12 (“BDU”) was the first case decided in Singapore under the International Child Abduction Act and is therefore useful in helping us understand the factors considered for abduction cases. Some brief facts of the case would help in understanding these factors: The Singaporean mother had abducted her child by refusing to return to Germany to be with her German husband. The family had been living in Germany for several years prior to this incident and their child had been born in Germany. The Singaporean mother wanted to rely on Article 13(b), which involves the child being exposed to physical or psychological harm, as the reason for the child not being returned to Germany.

What can we learn from BDU then?

First, signatories to the Hague Convention agree that the court to hear international child abduction cases is the country of “habitual residence” of the child. In this case, since the child had lived in Germany since birth and the family had been settled in Germany, it was found that Germany was the “habitual residence” of the child. Therefore, any court proceedings had to be heard by the German courts.

Second, the court of the country to which the child has been brought (here, Singapore) is only concerned with returning the child to the country they had been abducted from (here, Germany), subject to limited exceptions.[16] Thus, the Singapore court would not hear arguments, for example, on the parents’ custody or care and control as this did not concern the issue of abduction.[17]

Third, there are exceptional circumstances when an abducted child will not be ordered to return to their country of “habitual residence” and these are provided for in the HCCICA. When seeking to use these exceptions, the parent cannot rely on their own conduct to create a situation that falls under the exception. Thus, since the Singaporean mother argued the exception of Article 13(b) applied, this was rejected as the circumstances of physical and/ or psychological harm to the child arose out of her own behaviour.

 

IV.              Conclusion

Globalization has definitely brought people from around the world closer, enabling marriages to transcend geographical barriers. On the flip side of the coin, when the wedlock is unbolted, complicated legal issues surrounding parental relocation and the children’s welfare arise. Thus, in spite of the acrimony between ex-spouses, it is imperative for parties to work together in furtherance of the welfare and interests of their child (or children) – the innocent victims of the failed relationship.

[1] “The globalisation of marriage markets”, The Straits Times (12 July 2017), online: <https://www.straitstimes.com/opinion/the-globalisation-of-marriage-markets>

[2] BNS v BNT [2015] 3 SLR 973 at [19]; UFZ v UFY [2018] SGHCF 8 at [7]

[3] See: s 125(3) of Women’s Charter (Cap 353, Rev Ed 2009); s 3 of Guardianship of Infants Act (Cap 122, Rev Ed 1985)

[4] UFZ at [18]; BNS v BNT [2015] 3 SLR 973 at [19]

[5] At [20]

[6] Ibid

[7] TAA v TAB [2015] 2 SLR 87 at [9]. E.g. Tran Jeannie v Chioy Kok Leong [2002] SGDC 22 at [31], where Chan Seng Onn JC (as he then was) stated: “[i]f the proposal of the custodial parent is a reasonable one the court should refuse leave only if it is clearly shown that it would be against the interest and welfare of the children: Lonslow v Hennig (1986) 2 FLR 378.”

[8] Ibid

[9] BNT v BNS [2014] 4 SLR 859 at [11].

[10] BNT v BNS [2014] 4 SLR 859 at [25]

[11] Ibid

[12] Supra n 11

[13] TAA v TAB [2015] 2 SLR 87 At [23].

[14] BNT v BNS [2014] 4 SLR 859 at [31]

[15] At [20]

[16] BDU v BDT [2014] SGCA 12 At [26]

[17] Ibid

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