R E L O C AT I O N :
CHILDREN BETWEEN
PLACES AND
PA R E N T S
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PRINCIPLES
Guide: The welfare of the child is the paramount consideration.
What is the definition of welfare?
Freedom to relocate v the need to maintain a relationship with
both parents.
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R E C ( A N I N FA N T )
The Singapore Court of Appeal in Re C [2003] 1 SLR® 502 said,
inter alia:
“It is the reasonableness of the party having custody to want to take the
child out of jurisdiction which will be determinative and always keeping
in mind the paramount consideration is the welfare of the child. If the
motive of the party seeking to take the child out of jurisdiction was to
end contact between the child and the other parent, then that would be
a very strong factor to refuse the application.”
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SINCE RE C
Recent cases have allowed relocation applying Re C.
AZB v AYZ [2012] 3 SLR 627; ATC v ATD [2011] SGDC 254; AYD v
AYE [2012] SGHC 42.
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BNT V BNS
The exception in recent times? BNT v BNS [2014] 4 SLR 859 (HC).
“In my view, the only applicable principle of law in relocation cases is
that the welfare of the child is the paramount and overriding
consideration. Re C should not be understood as suggesting anything
contrary…..the reasonable wishes of the primary caregiver are
important because a child’s welfare is closely linked to the happiness
and well-being of the primary caregiver….there are cases where it
would be necessary to deny an application to relocate in order to
advance the welfare of the child.”
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BNT V BNS
There is no presumption in favour of allowing relocation by the
applicant who shows that request is not unreasonable or that the
request was not in bad faith.
The court must recognise that it is in the interests of children to
continue to have a meaningful relationship with both parents.
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BNT V BNS
IN BNT v BNS, the mother wanted to take the children to Canada.
Father works in Singapore.
Court took into account young age of children, closeness with father,
hostility of mother was such that access would not be actively
facilitated should there be a move to Canada.
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A N O T H E R R E C E N T D E PA R T U R E - TA A V TA B
Another recent decision refusing relocation: TAA v TAB
[2015]SGHCF 1
Mother (American) returned with youngest child to the US. She did
not participate in divorce proceedings in Singapore. Father obtained
custody, care and control of the children. Mother had access.
Father met a Spanish lady and had a child together. He sought to
relocate to Spain with the children.
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A N O T H E R R E C E N T D E PA R T U R E - TA A V TA B
District Court disallowed relocation.
Father appealed. Appeal disallowed. Father took 2 of the children to
Spain even before an outcome was known.
How would you decide?
What are the factors you would place on each scale?
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“If you run away from a thing just because you don’t like it you don’t
know what you find either. Now running to a thing, that’s a different
matter, but what would you want to run to?”
John Wyndham, “The Chrysalids”.
THANK YOU
10
OVERVIEW OF
I N T E R N AT I O N A L
CHILD
ABDUCTION
ACT
(CAP 143 C)
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I N T E R N AT I O N A L C H I L D A B D U C T I O N A C T
28 December 2010
Singapore acceded to the Hague Convention on the Civil Aspects
of International Child Abduction 1980 (‘the Convention’)
1 March 2011
International Child Abduction (Cap 143C) (‘Act’), enacted on 16
September 2010, was brought into operation to give effect to the
Convention.
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I N T E R N AT I O N A L C H I L D A B D U C T I O N A C T
As at beginning July 2015:
There are 93 contracting states to the Convention including
Singapore.
Majority of the contracting states are European states. USA,
Australia and NZ are also contracting states.
In South East Asia, other than Singapore, Thailand is the only other
contracting state.
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I N T E R N AT I O N A L C H I L D A B D U C T I O N A C T
As at end September 2015:
There are 93 signatory states to the Convention (including
Singapore)
38 contracting states have accepted Singapore’s accession to the
Convention.
The Convention only comes into force between Singapore and a
contracting state after the contracting state has accepted
Singapore’s accession.
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THE CONVENTION
Treaty for the protection of children from the harmful effects of
wrongful removal and retention from their state of habitual residence.
Treaty believes it is in the best interest of children to achieve this by:a.
Restoring the status quo between parties by requiring a child
who has been wrongfully removed or retained to be returned to
the child’s state of habitual residence; and
b.
Stating that the child’s state of habitual residence shall decide
on the substantive issue on custody and access.
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THE CONVENTION
The Convention aims To ensure the prompt return of children wrongfully removed to or
retained in any contracting state.
To ensure that rights of custody and of access under one contracting
state is respected in another contracting state.
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THE CONVENTION
Convention established procedures for the prompt return of children
who has been wrongfully removed to or retained in a contracting
state to the state in which the child was habitually resident
immediately before the removal or retention of the child.
17
THE ACT
Expressly incorporates certain articles of the Convention into the Act
and the articles are set out in the Schedule to the Act
Section 3 of the Act provides that “the provisions of the Convention
as set out in the Schedule shall have force of law in Singapore”
There are altogether 45 articles in the Convention. But only 26 of
these articles were incorporated into the Act and they are set out in
the Schedule to the Act.
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A P P L I C AT I O N S T O C O U R T U N D E R T H E A C T
The Act provides for applications under:
i.
Section 8 - For return of a child wrongfully removed to or
retained in Singapore.
ii.
Section 14 - For a declaration that the removal of a child
from Singapore or the retention of the child
outside Singapore was wrongful.
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A P P L I C AT I O N U N D E R S E C T I O N 8
Section 8 of the Act provides that any person who claims that, in
breach of custody rights, a child has been wrongfully removed to or
retained in Singapore may apply to the court for an order that the
child be returned.
For an application under s 8 (1), the court has to determine whether
to order the child to be returned to the state in which the child was
habitually resident prior to the wrongful removal or retention. The
court does not decide on merits of any custody issue.
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A P P L I C AT I O N U N D E R S E C T I O N 8
The court may order the child’s return if :The child is under the age of 16 years. [The Convention will not
apply once the child attains the age of 16 years (see Article 4), even
if the child turned 16 years only in the course of proceedings].
The child has been wrongfully removed to or retained in Singapore in
breach of the custody rights of the left behind parent in the
contracting state.
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A P P L I C AT I O N U N D E R S E C T I O N 8
The child was habitually resident in the contracting state before the
breach of custody rights.
A period of less than one year has elapsed from the date of the
wrongful removal or retention.
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A P P L I C AT I O N U N D E R S E C T I O N 8
Exceptions /defences against return of the child
Court may not order the return if any of the following limited
exceptions/defences against ordering the return are made out:Where application is made more than one year after wrongful
removal or retention, it shall order the return of the child unless it is
demonstrated that the child is now settled in its new environment
(Article 12 ).
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A P P L I C AT I O N U N D E R S E C T I O N 8
Person having care of the child was not actually exercising the
custody rights at the time of removal or retention, or had consented
to or subsequently acquiesced in the removal or retention. (see
Article 13(a)).
Where there is a grave risk that the return of the child would expose
the child to physical or psychological harm or otherwise place the
child in an intolerable situation. (see Article 13(b)).
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A P P L I C AT I O N U N D E R S E C T I O N 8
Where a child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of the
child’s views. (see Article 13 ).
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INTERIM ORDERS, DIRECTIONS FOR SECTION 8
A P P L I C AT I O N
Pending decisions, the court may :Make orders or give directions for the welfare of the child or of
preventing changes in the circumstances relevant to the application.
Issue an injunction restraining any person from taking the child out of
Singapore.
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A P P L I C AT I O N T O C O U R T F O R D E C L A R AT I O N
UNDER SECTION 14
Section 14 of the Act provides that a person with sufficient interest in
the matter may apply to the court for a declaration that the removal
of a child from Singapore, or the retention of the child outside
Singapore, was wrongful for the purposes of Article 15 of the
Convention.
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A P P L I C AT I O N T O C O U R T F O R D E C L A R AT I O N
UNDER SECTION 14
Under Article 15 of the Convention, the judicial or administrative
authorities of a contracting state may, prior to the making of an order
for the return of the child, request that the applicant obtain from the
authorities of the State of habitual residence of the child a decision or
other determination that the removal or retention was wrongful.
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S TAY O F P R O C E E D I N G S
When an application has been made to the Court under Section 8 of
the Act for the return of the child, no decision shall be made by any
court in respect of the custody of, care and control of or access to
the child (see Section 13 of the Act).
In this context, “court” shall include not only the High Court and
Family Court but also the Syariah Court and the Appeal Board. (see
Section 13(4) of the Act).
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FA M I LY J U S T I C E R U L E S
The Family Justice Rules (“FJR”) and Practice Direction (“PD”) sets
out the procedure under the Act (see Part 10 of FJR and PD for
requirements and format)
Application is by way of Originating Summons and hearings is before
a Judge in Chambers
Shorter timelines as compared to other Originating Summons
applications
Requirement to serve applications and orders on Central Authority of
Singapore (see Rule 168(2) and 173 of FJR)
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FA M I LY J U S T I C E R U L E S
Requirement for parties to furnish copies of their applications and
affidavits to the court where there are pending proceedings (“Court”
include Syariah Court and Appeal Board constituted under the
Administration of Muslim Law Act)( see Rule 168(3) and 170(4))
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PROCEDURE FOR APPEALS
The procedure for appeal to the High Court and thereafter to the
Court of Appeal shall be as specified in the Family Justice Rules
2014.
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CENTRAL AUTHORITY OF SINGAPORE
The Convention provides for a contracting state to designate a
Central Authority. Part II of Act provides for the designation and
functions of the Central Authority of Singapore.
The functions of the Central Authority of Singapore shall be
discharged by the Minister in charge of Ministry of Social and Family
Development.
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ROLE OF THE CENTRAL AUTHORITY
Under the Act, the role of the Central Authority is as follows :Where a child has been wrongfully removed to or retained in
Singapore, to render assistance to the parties in facilitating the
voluntary return or an amicable resolution of the dispute relating to
the removal or retention of the child. (see Section 6(1) ).
Where a child has been wrongfully removed to or retained in a
contracting state, to assist the left behind parent in Singapore to
have his claim sent to the Central Authority of the contracting state.
(see Section 6(2)).
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ROLE OF THE CENTRAL AUTHORITY
Where a child is in Singapore and an applicant allege that his/her
rights of access under the law of a Contracting State has been
breached, to render assistance in facilitating an amicable resolution
of the dispute relating to access. (see Section 7(1) ).
Where a person who claims his rights of access under the law of
Singapore to a child in a Contracting State have been breached, to
assist that person to have his/her claim sent to the Central Authority
of the Contracting State. (see Section 7(2)).
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LEGAL AID
The Legal Aid and Advice Act has also been amended to allow
applicants from Contracting States to apply to the Legal Aid Bureau
for legal aid if they satisfy the means test.
Section 17 of the Act allows the Director of Legal Aid to grant legal
aid in connection with any proceedings under Section 8 or 14 to any
person who is a citizen of, or habitual resident in Singapore or a
Contracting State.
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THANK YOU
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