In the matter of BJU (infant)

• Jurisdiction: Singapore
• Judge: Shobha G. Nair
• Judgment Date: 13 March 2013
• Neutral Citation: [2013] SGDC 75
• Hearing Date: 16 November 2012,30 November 2012,11 January 2013
• Citation: [2013] SGDC 75
• Published date: 12 May 2014
• Court: District Court (Singapore)
• Docket Number: OSA No: 170/2012/W
• Plaintiff Counsel: Ms Jenny Lai (Jenny Lai & Co)
• Defendant Counsel: Mr f (father of infant) in-person
• Year: 2013

District Judge Shobha G. Nair: Introduction

The applicants were married in 2004. At the time of the marriage, the female applicant was a mother to a six year old son she had had from another relationship. The applicants sought jointly to adopt this son as they wished to embrace the child as a child of the marriage and more particularly, to have the step-father assume the rights and responsibilities of the natural father.

The natural father is serving a 6 year imprisonment term for drug consumption. He objected to the adoption. He is likely to be discharged when the child turns approximately 17 years of age.

Given the situation of the natural father and the favourable findings of a Senior Child Welfare Officer (SCWO) from the Ministry of Social and Family Development (MSF) who was tasked to investigate into the suitability of the applicants to adopt the boy, the SCWO officer recommended that the child be adopted. Having considered the evidence, I was of the view that the natural’s father’s objection was to be respected and no order for adoption was consequently made. I now give my reasons.

Factual Background

The natural parents met in 1997 when the female applicant was just 17 years of age and the natural father, 21. On discovering she was with child, the parents entered into a customary wedding. There was strong objection to the marriage by the maternal side of the family and as a result, the couple did not proceed to register their marriage. Their son, BJU, was born in May 1998 and the natural father’s name appears in the child’s birth certificate.

While they stayed together, there were frequent quarrels arising from their inability to cope as a very young couple, with the daily demands of family life. When BJU was 2 years old, the female applicant left home with BJU. The natural father stated that he tried to look for the female applicant and his son, in vain.

In 1999, the father was ordered to serve a sentence of 9 months imprisonment for being absent from National Service without official leave. From that point onward, his search for his son was as good as over.

In 2003, the female applicant filed an application for maintenance in the Family Court. It was then that the natural father came to be in contact with his son again. Through the efforts of a mediator, the female applicant agreed to allow the father to be with BJU from Saturday to Sunday, on a fortnightly basis. He was also ordered to pay maintenance for BJU albeit a small amount given that he did not have regular employment.

Between 2003 and 2008, the natural father featured more significantly in his son’s life. The female applicant disputes any positive involvement. Regardless, BJU grew more aware of his paternal family, and closer in particular, to his paternal aunt, d. She assisted in a positive way by ferrying BJU to and from access with his father and providing maintenance for BJU when his father could not. When d’s financial responsibilities to her own family became heavier, she had to cease the financial support. The father consequently started to default in some maintenance payments and this had an impact on his access to BJU. Sometime in 2008, access ceased altogether. BJU was already 11 years of age.

The applicants have another son, e, who was born in 2006. The male applicant is a hawker while the female applicant is a Senior Trust and Corporate Officer. The applicants share a warm relationship. Their financial health and their ability to provide for the children was not disputed. The male applicant’s relationship with BJU was described by the SCWO as a “comfortable one”.¹

The natural father of the child objected to the adoption as he did not want to lose his relationship with the child. He expressed his dismay and sadness at having learnt that the female applicant had changed BJU surname from “XXX” to “XXX”, the surname of the male applicant. He claimed that this was done without his consent. He shared with the SCWO that he valued the relationship with the said child as he had contact with him in the early years. In a written statement which he read during the hearing, he pleaded that the child not be adopted by the applicants as it would mean a severance of ties between him. He said, inter alia:

“I am remorseful for what I have done, ending up in prison. It’s one of my biggest regrets to have my son go through the sadness of a broken family and having to miss so much of his life, lifelong memories that we could have shared. I will try to do my best to be involved in my son’s life as the Court will allow. I would like to respectfully urge c to overlook whatever grudges there between us for the sake of our son. I have been regularly attending Christian counselling and it’s my hope to commit to a halfway house upon my release and rebuild my life”(sic)².

It was also the father’s position that the applicants have never been the principal caregivers of BJU and that since birth, it was and continues to be the maternal grandmother. This is supported in the affidavit of the SCWO.³ He stated that he would not want this arrangement disturbed. He was not seeking to have care and control of BJU upon his discharge – simply that he remains – his son.

Grounds of Decision

Section 5 of the Adoption of Children Act (Cap 4) states that a court in considering a request for adoption must be satisfied that: every person whose consent in necessary under this Act and whose consent is not dispensed with has consented to and understands the nature and effect of the adoption order…..; the order if made, will be for the welfare of the infant, due consideration being given for this purpose to the wishes of the infant, having regard to the age and understanding of the infant; and that the applicant has not received or agreed to receive…any payment or other reward in consideration of the adoption……

Ought the consent of the natural father be dispensed with?

Section 4(4) of the Act provides that an adoption order shall not be made except with the consent of every person or body who is a parent or guardian of the infant in respect of whom the application is made or who has the actual custody of the infant or who is liable to contribute to the support of the infant. The Court however may dispense with any consent required by this subsection if the it is satisfied that the person whose consent is to be dispensed with – has abandoned, neglected, persistently ill-treated the infant or cannot be found and that reasonable notice of the application for an adoption order has been given to the parent or guardian where the parent or guardian can be found; is unfit by reason of any physical or mental incapacity to have the care and control of the infant, that the unfitness is likely to continue indefinitely and that reasonable notice of the application for an adoption has been given to the parent or the guardian; or ought, in the opinion of the court and in all the circumstances of the case to be dispensed with, notwithstanding that such a person may have made suitable initial arrangements for the infant by placing the infant under the care of the authorities of a home for children and young persons, the protector under the Children and Young Persons Act (Cap 38) or some other person.

In this case, the child was born out of wedlock. Under section 2 of the Act, the natural father is not referred to as a parent. His consent however is still necessary. His name appears as the father in the birth certificate and he is legally obliged to provide maintenance for the child under section 69 of the Women’s Charter (Cap 353). In fact, a maintenance order was made on this basis in 2003.

Since the natural father had objected to the adoption, the question which arose was whether the Court ought to dispense with his consent, as prayed for by the applicants. The Court must be satisfied that one of three situations as spelt out in Section 4 (4) (a) – (c) of the Act has been satisfactorily proven.

It was the female applicant’s position⁴ that although the natural father’s name appears in the child’s birth certificate, he was constantly in trouble with the law and she chose to maintain very little contact with him after leaving the home they lived in. She rationalised that he was a bad influence and she did not want their son to associate with and consequently be influenced by such a man. She also claimed that the natural father was not involved in the son’s life and contributed little, financially. She further claimed that her son has bonded well with her husband and that these reasons collectively, provided sound ground for dispensation of consent of the natural father to the adoption.

I shall first deal with the applicability of Section 4(4) (b) to this case. I accept that given the natural father’s long incarceration, he is not physically able to provide for the child even if he wanted to. His incarceration though lengthy however, was not for an indefinite period of time. I did not accept that it warranted a severance of biological ties. The line between guardianship and adoption ought to be understood and respected. If a parent is not able to provide in practical ways due to illness, incarceration or having to work in a different country, it...