Family Law
| Date | 01 December 2017 |
| Published date | 01 December 2017 |
| Citation | (2017) 18 SAL Ann Rev 477 |
| Publication year | 2017 |
| Author | CHEN Siyuan LLB (Hons) (National University of Singapore), LLM (Harvard); Assistant Professor, School of Law, Singapore Management University. |
16.1 While previous chapters of this work were divided into the four customary main parts – custody, division of matrimonial assets, divorce and validity of marriage, and maintenance – the chapter this year only comprises cases concerning custody and division of matrimonial assets.
16.2 This part is divided into two subparts. In the first Part,1 we examine two cases in which our courts had the opportunity to clarify the law regarding shared care and control. In the second Part,2 we again examine two cases, but this time concerning the issue of child abduction, with one engaging the Hague Convention on the Civil Aspects of International Child Abduction3 (“Hague Convention”), and the other not engaging the treaty. These two cases show how the welfare principle is treated differently in the treaty context from the non-treaty context.
16.3 BNS v BNT4 was yet another episode in a long-running dispute.5 The parties were married in Canada in 2002 and divorced in 2012. They had a daughter aged 10 and a son aged 9. Following the Court of Appeal's rejection of the wife's previous application to relocate the children to their home country,6 the issue before the High Court here was whether care and control should remain with the wife or be shared between the parties – after the divorce, the children had been shuttling between the parents' respective households even though the husband had fairly liberal access.
16.4 The husband cited English jurisprudence7 for the notion that both parents are equal in the eyes of the law and therefore have equal duties and responsibilities – a shared care and control order would send a strong signal to the wife on the importance of co-operation towards securing what is in the best interests of the children, and mandate that each parent would have an equal right to make decisions about the children. The wife's position was essentially that under Singapore law, shared care and control was only exceptionally granted,8 and sole care and control should be awarded in her favour. The court denied the application for shared care and control for the following reasons:9
(a) The English jurisprudence cited were pursuant to a different statutory scheme that recognised the concept of shared residence orders. Care and control concerned a broader basket of duties relating to the day-to-day decision-making of all matters related to the child.
(b) The courts here are far more concerned with issues of workability and potentiality for stress on the children when dealing with care and control than when dealing with custody, since a court order cannot, without more, create the behavioural and mindset changes in specific individual parents necessary for them to co-parent well together. However, the courts have to tread a fine line between the perverse incentive of artificial acrimony and an unworkable order.
(c) The parties had serious disagreements within the joint custodial sphere to work out between themselves and with the children, including the daughter's choice of middle school, as well as the husband's wish for the children to take up permanent residence in Singapore and for the son to do national service. These disagreements mirrored the contentions the parties had for day-to-day matters. Putting in place shared care and control would probably result in gridlocks and further conflict that would be prejudicial to the welfare of the children.
16.5 This decision provides a timely reminder that while awarding joint custody has a signalling effect, the same may not apply to care and control even though long-term decisions (which is what custody entails) obviously has trickle-down effects on short-term decisions (which is what care and control, and to a lesser extent, access, entails). Aligning custody with care and control is not an inexorable consequence once
16.6 Further, as the husband already had fairly liberal access, imposing a shared care and control order would probably only create more disruptions to the children's lives. These circumstances were similar to AUA v ATZ,10 where the Court of Appeal also declined to order shared care and control. Ultimately, a parent can still fulfil his duty and take an active interest in the child without insisting on absolute equality vis-à-vis the other parent in all matters concerning the child.
16.7 TSH v TSE11 revolved around M, a five-year-old Singaporean who was born in London. His parents brought him to Singapore in 2013 to be temporarily cared for by his paternal grandparents, but the relationship between the parents broke down in 2014 while he was still in Singapore. The husband sued the wife for divorce in Singapore, while the wife initiated her own proceedings in England.
16.8 The English court found that M remained habitually resident in England and ordered the father to return M to England. Shortly after, the Singapore court granted interim judgment in respect of the husband's application for divorce. When M was not returned to England, the wife hired a mercenary to abduct M, but this attempt was foiled by the local authorities. What followed was a long and complex series of applications and decisions in both jurisdictions, in addition to two attempts by M's grandparents to be granted guardianship and immigration offences committed by the husband, but suffice to say for current purposes that the English court held, pursuant to a welfare enquiry, that M was to return to England to live with the wife.12
16.9 The principal issue, therefore, before the Singapore High Court was whether it was in M's best interests to be returned to England. Preliminarily, this case did not fall within the Hague Convention because at the time M was wrongfully retained, Singapore had not gazetted the UK as a contracting state under s 4(2) of the International Child Abduction Act.13 However, there was still the English judgment to be grappled with, since it had already determined that it was in M's best
(a) Section 3 of the Guardianship of Infants Act15 (“GoIA”) mandates that the welfare of the child shall be the first and paramount consideration when the court is deciding, in any proceedings, any question on the custody or upbringing of an infant. This applies to applications to relocate a child as well. Where multiple jurisdictions are involved, the court receives evidence and submissions afresh, and the doctrine of issue estoppel does not apply strictly.
(b) In England, any court answering the question with respect to the upbringing of a child – including whether to order a return to a foreign country – is statutorily obligated to regard the child's welfare as its paramount consideration. This is essentially the same as what s 3 of the GoIA requires. In answering the question, the court would consider factors such as the legal system of the other country in question. The court must form an independent judgment and not blindly follow an order made by a foreign court. However, it has the power to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits.
(c) Although the wife argued that the determination of M's habitual residence at the time of his wrongful retention was dispositive, this was the wrong approach. The question before the court was not which of two courts was the more appropriate forum. Cases that have decided that staying proceedings in favour of the forum with the strongest connection is consistent with the welfare principle because that forum is generally best placed to determine a child's best interests16 do not stand for the proposition that a court, in deciding whether to make mirror orders in respect of orders made by the natural forum, abdicates consideration of the welfare principle on the assumption that orders made by the natural forum would be in the best interests of the child.
(d) The welfare enquiry was full and proper and did not involve any breach of natural justice. But as the Singapore court cannot rely on the factual findings in the welfare enquiry as proof of what they assert, it had to consider all the
circumstances of the case, including what had transpired after the enquiry.(e) Although M had settled in a stable environment in Singapore for four years, the wife...
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