LESS PAYNE IN THE INTERNATIONAL RELOCATION OF CHILDREN?

• Citation: (2016) 28 SAcLJ 303
• Published date: 01 December 2016
• Date: 01 December 2016

Case Note

BNS v BNT

[2015] 3 SLR 973

The best interests of a child dictate the question of whether international relocation should be granted by the court. This note examines the Court of Appeal decision in BNS v BNT and suggests that the manner in which the welfare principle is applied increasingly seeks to protect parental relationships, which are viewed as something valuable and which go toward the child's welfare.

I. Introduction

1 The international relocation of children is governed by one principle above all else — that of the child's best interests.1 It is also known as the welfare principle, and has been accepted in many other jurisdictions both from the common law and civil law traditions.2 Its application, however, has been and is inconsistent, not least due to the

myriad of factual situations that can arise before the courts. Indeed, it has been commented that without more, application is difficult.3

2 What, however, are the major considerations that the Singapore courts consider in evaluating a parent's application to relocate under the umbrella of the welfare principle? This is an important question to consider, given that globalisation means more marriages straddling different jurisdictions in two ways: (a) the parties to a marriage may originate from different countries, meeting and marrying in a neutral country or in either party's home country; and (b) families may relocate from one jurisdiction to another for career opportunities or lifestyle changes.4 Singapore is especially affected by globalisation — as of 2013, marriages between citizens and non-citizens made up 39.2% of all marriages and as of 2014, Singapore's non-resident population, defined as “foreigners who are working, studying or living in Singapore but not granted permanent residence, excluding tourists and short-term visitors”5 made up about 30% of the resident population.6 This article will seek to examine the legal developments in this area of law especially with the advent of the Family Justice Courts (“FJC”).

II. The welfare principle in Singapore

3 The welfare principle is paramount in Singapore.7Re C (an infant)8 (“Re C”) held that:9

… [i]t 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 that 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. Therefore, if it is shown that the move abroad by the person or parent having custody is not unreasonable or done in bad faith, then the court should only disallow the child to be taken out of jurisdiction if it

is shown that the interest of the child is incompatible with the desire of such person or parent living abroad. [emphasis added]

4 Recent developments have seen a shift in the manner of application of the welfare principle. This is in part due to the English decisions of Poel v Poel10 (“Poel”) and Payne v Payne11 (“Payne”) which were referred to and followed by Singapore in Re C and AZB v AYZ12 (“AZB”) respectively and in which the relocating parent's wishes were strongly deferred to. That position of deferring strongly to the relocating parent's wishes is now increasingly doubtful in light of the Singapore High Court's latest two decisions in BNT v BNS13 (“BNT”) and TAA V TAB14 (“TAA”), as well as the Court of Appeal's decision of BNS v BNT15 (“BNS (CA)”), which upheld BNT.

III. The facts of BNT

5 BNT concerned an expatriate couple who left their native country, Canada, and relocated to Singapore initially so that the father could work as a lawyer. Subsequently, they moved to Thailand for four years. That was where their two children were born as well. In 2008, the family returned to Singapore, where the mother filed for divorce proceedings in 2011 on the grounds of the father's unreasonable behaviour. The interim divorce was granted on an uncontested basis, with care and control granted to the mother and fairly liberal access granted to the father. She had worked part-time as a meeting and conference planner since the return to Singapore.

6 In 2012, the mother asked for permission to permanently relocate back to Canada with her two children. The District Judge allowed the application and the father appealed the decision to the High Court. His appeal was allowed by the High Court, and the High Court's decision was affirmed by the Court of Appeal.

IV. The Court of Appeal decision

7 The Court of Appeal held that there was only one fundamental principle upon which everything else hinged — the welfare of the child is paramount and must override all other considerations.16 It held that:

(a) while the relocating parent's wish to relocate was an important factor,17 it was only relevant in so far as he or she would transfer insecurity and negative feelings to the children;18

(b) there was no fixed hierarchy among the different factors which informed the court's decision as to where the child's best interests might lie;19 and

(c) it was unfortunate that the child's loss of relationship with the left-behind parent had not received much consideration in the local case law — a strong bond between the non-custodial parent and the child would weigh in against relocation.20

8 The Court of Appeal viewed that the children's welfare in this case lay in favour with denying relocation as they enjoyed a meaningful relationship with their father, who took active steps to be involved in their lives; it was thus preferable for them to have personal contact with their father.21 Moreover, the wife could communicate with the children or receive support from her family in Canada with the help of technology.22 Finally, it was unrealistic for the father to seamlessly relocate back to Canada as he had acquired a depth of regional expertise in his job as a corporate lawyer which was not transferable back to Canada.23

V. Comments

9 BNS (CA) has affirmed the paramount position of the welfare principle in relocation cases. But what is important is the manner in which the welfare principle has been applied. Moving forward, it is suggested that the importance of preserving a child's relationship with both parents would feature in the court's consideration prominently. This is reflected in the tenor of BNS (CA)— the court acknowledged that it was unfortunate that the child's loss of relationship with the

non-custodial parent had not receive much consideration in local case law before BNT.24 This might be attributed to the court's adoption of Poel and Payne, which some commentators suggest give greater regard to the wishes of the relocating parent against the child's loss of relationship with the non-custodial parent.25

10 By affirming BNT, it is submitted that the Court of Appeal views the preservation of the parental bond between the child and both parents, as well as educational arrangements for the child, as extremely important.

A. The relevance of Payne

(1) The adoption of Payne in Singapore

11 AZB was the first local High Court decision following Payne. The father, who was the son of a Malaysian tycoon, had had an extremely acrimonious divorce with the mother, who was an American. The mother gave evidence that she had been extremely unnerved as the father had verbally abused her and put her under constant fear.26 She also said that the father had also shown a propensity to disregard the daughter's welfare just to spite the mother. Given the extreme acrimony between them, the isolated and alienated American mother sought to relocate herself and the daughter to the US where they would have the support of her extended family. Andrew Ang J followed Payne and allowed the mother's application, holding that:27

… [w]hat the cases do suggest … is that the welfare of the child is often so inextricably intertwined with the general well-being and happiness of the primary caregiver that the court is loath to interfere with important life decisions of the primary caregiver, so long as they are reasonably made and are not against the interests of the child. [emphasis added]

Importantly, Ang J also qualified his reliance on Payne by relying on a passage from a later case which held that the ratio decidendi in Payne was that the welfare principle was of paramount importance and the rest

was simply guidance from the courts. He also held that the reasonable wishes of the primary caregiver were not an insurmountable factor.28 Since the father had not managed to convince the court that the wishes of the mother should not be given effect as (a) he had not been a good role model for the daughter;29 and (b) there was nothing to show that the relocation would cut off contact with the father,30 relocation was allowed.

12 Ang J's holding must be considered together with the Court of Appeal's holding in Re C.31 Taken together, it is submitted that they led to the position where as long as the primary caregiver's request is reasonable and not made in bad faith (generally taken to mean a motive to deprive the other parent of access rights), the court would allow relocation to take place. This appears to have been the approach of the pre-BNT cases, and Debbie Ong JC also observed as much in TAA :32

… [i]n the majority of decisions, by applying Re C, the courts seemed to have focused more on the reasonableness of the custodial parent's reasons for relocation and less on the loss of the relationship with the other parent, resulting in orders allowing relocations.

(2) Criticisms of Payne

13 Payne has been criticised. First, there is a growing trend towards joint parental responsibility post-separation — the Permanent Bureau of the Hague Convention on Private International Law has observed that legislative reforms have already taken place in several states where there is now a presumption...