Bdu v Bdt

• Jurisdiction: Singapore
• Judgment Date: 17 February 2014
• Date: 17 February 2014
• Docket Number: Civil Appeal No 65 of 2013
• Court: Court of Appeal (Singapore)

BDU

Plaintiff

and

BDT

Defendant

[2014] SGCA 12

Sundaresh Menon CJ

,

Chao Hick Tin JA

and

Andrew Phang Boon Leong JA

Civil Appeal No 65 of 2013

Court of Appeal

Family Law—Child—Whether order for return of child to country of habitual residence should be refused under Art 13 (b) Hague Convention on the Civil Aspects of International Child Abduction as child would be at grave risk of psychological harm or would otherwise be placed in an intolerable situation due to separation of child from mother—Whether mother unable for medical (specifically, psychological) reasons to return to country of habitual residence with child should return order be made—Article 13 (b) Hague Convention on the Civil Aspects of International Child Abduction

International Law—Conventions—Application of Art 13 (b) Hague Convention on the Civil Aspects of International Child Abduction—Article 13 (b) Hague Convention on the Civil Aspects of International Child Abduction

The proceedings involved a three-year-old child, [B], his Singaporean mother and his German father. This appeal was brought by the mother against the High Court's affirmation of the District Court's decision allowing the application of the father under s 8 (1) of the International Child Abduction Act (Cap 143 C, 2011 Rev Ed) (‘the Act’) for the return of [B] to Germany on the basis that [B] had been wrongfully retained in Singapore by the mother. The mother resisted the application under, inter alia, Art 13 (b) of the Hague Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention), which gave the court the discretion not to order the return of the child if there was a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

In the present appeal, the mother contended that an order for [B] 's return to Germany should be refused under Art 13 (b) of the Hague Convention as [B] would be at grave risk of psychological harm or would otherwise be placed in an intolerable situation due to the separation of [B] from his mother. This impending separation was purportedly due to the mother's inability, on medical (specifically, psychological) reasons, to return to Germany with [B] should a return order be made.

Given that a central question in the proceedings was the mother's alleged inability for medical reasons to return to Germany with [B], an independent court expert, Dr Rathi Mahendran (‘Dr Mahendran’), was appointed to assess the risk of physical and psychological harm to the mother (including any risk of suicide and/or self-harm) should an order be made returning [B] to Germany in the company of the mother pending the determination of custody issues by the German courts. Dr Mahendran diagnosed the mother with ‘Delusional Disorder’, opining that the ‘prognosis [was] poor’. She recommended that the mother start treatment in Singapore in order to achieve some symptom control, after which her care could be transferred to Germany.

Held, dismissing the appeal and making a return order subject to both parties providing specific undertakings:

(1) The court of the country to which the child had been brought (‘the requested State’) was - pursuant to the Hague Convention - concerned only with the return of the child concerned to his or her country of habitual residence from which he or she was first abducted (‘the requesting State’), subject only to the limited exceptions set out in, inter alia, Art 13 of that Convention. It was not concerned with the substantive merits relating to the relevant issues of custody and/or care and control between the parents concerned: at [26] .

(2) The concept of jurisdiction selection embodied in Art 13 of the Hague Convention represented a compromise between the need to have regard on an individual level to the paramount interests of the child concerned and the need on a more general policy level to ensure that abducted children were returned swiftly to their respective countries of habitual residence. Whilst the Hague Convention focused on the general concept of jurisdiction selection, there was a need to ensure that the more general policy underlying the Convention did not wholly override the paramount interests of the children. It was in this context that the resulting compromise arose, in the form of limited exceptions to the general policy (embodied, inter alia,within Art 13). The paramount interests of the individual child would be considered and given effect to in exceptional situations by the court in the country to which the child was abducted. This was essentially an issue of application dependent on the precise fact situation concerned: at [28] , [29] , [31] and [33] .

(3) In relation to Art 13 proper, the onus of proof was on ‘the person, institution or other body which opposes [the child's] return’. Further, it has been observed that ‘it is a stringent burden to discharge’. Moreover, even if one or more of the conditions set out in the Art 13 was satisfied, ‘the requested State is not bound to order the return of the child’. Put simply, the court of the requested State had a discretion in the matter: at [43] and [46] .

(4) The overriding theme was that a close and granular analysis of the precise facts was imperative. It should also be noted that an appellate court would not overturn the judgment of the court below unless, whether by reference to the law or to the evidence, it had not been open to the judge in the court below to make that judgment: at [47] and [48] .

(5) An abducting parent could not seek to rely upon his or her own conduct in order to create a situation of grave risk of physical and/or psychological harm to the child concerned in order thereby to rely upon that alleged risk to argue against the return of that child pursuant to Art 13 (b). This was based on the broader rationale to the effect that a person could not take advantage of his or her own wrong: at [49] .

(6) The role of undertakings was crucial. Not only were undertakings by the parent seeking the return of the child a sign of good faith on his or her part, they were also important in ensuring that the return of the child would not (as far as possible) adversely impact the child and/or the abducting parent. The potential difficulty in ensuring that the undertakings were complied with as well as enforceable in the requesting State was not an insuperable one: at [52] , [53] , [55] and [56] .

(7) Where the abducting parent had medical (especially psychological) problems which were alleged to prevent him or her from returning to the requesting State with the child concerned, it was often the case that the abducting parent's (usually, the mother's) medical situation was involuntary in nature and beyond her control. However, if the abducting parent could in fact be treated for his or her medical condition but refused to be so treated, then it could be persuasively argued that the abducting parent was attempting to take advantage of his or her own wrong: at [58] to [60] .

(8) In the present case, the mother's significant psychological problems weighed heavily in the decision. This was due to the precise facts of the case, in particular, the very young age of [B] and the fact that the mother was his primary caregiver. Any physical separation of [B] from his mother would not have been in the best interests of [B]. It was to be noted that whilst the court was dealing with the mother's psychological state, the focus had to be on its effect or impact on the child.That having been said, a closely related issue, viz,whether the mother's psychological state might possibly have been self-induced, required the court to focus on the mother. Given the importance of this particular factor, the court ordered an independent assessment by a court-appointed psychiatrist, Dr Mahendran, who not only proposed an appropriate course of treatment but also recommended continued treatment in Germany. The mother ultimately adopted a sensible and appropriate approach in undertaking to undergo the appropriate treatment not only in Singapore but also in Germany: at [73] to [75] and [77] .

(9) The issue of undertakings was a very important one in the context of the present case. Whilst the issue of treatment of the mother's psychological condition represented the mother's perspective and responsibility, the issue of undertakings by the father represented the father's perspective and corresponding responsibility. The mother was also required to enter into additional undertakings to ensure that the performance of the father's undertakings were not undermined: at [78] .

(10) The father undertook that, prior to the mother returning to Germany with the children, he would apply to the German court seized of the matter to incorporate all his undertakings as an order of that court. For good order, his undertakings were to subsist until the final disposal of the proceedings before the German court seized of the matter with regard to the custody and/or care and control of [B]. Likewise, the mother agreed that she would consent to the father applying (on her behalf) to the German court seized of the matter to incorporate all her undertakings as an order of that court. In addition to ensuring that this court did not usurp (or be perceived to be usurping) the function of the German court, these undertakings ensured that any problems of enforcement would in all likelihood be taken care of: at [81] and [82] .

(11) All this had to also be viewed in light of this court ensuring (by way of the relevant undertakings by the father) that the mother would be provided the appropriate legal representation in Germany before the German court: at [83] .

(12) On the facts, whilst a sufficient period of time would need to be furnished to the mother to embark upon treatment, there had to nevertheless be a timely return of [B] to Germany together with the...