Lim Kok Chye Ivan and Another v Lim Chin Huat Francis and Another

• Jurisdiction: Singapore
• Judgment Date: 17 May 1999
• Date: 17 May 1999
• Docket Number: Civil Appeal No 283 of 1998
• Court: Court of Appeal (Singapore)

Lim Chin Huat Francis and another

Plaintiff

and

Lim Kok Chye Ivan and another

Defendant

[1999] SGCA 35

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 283 of 1998

Court of Appeal

Civil Procedure–Appeals–Raising of new issue, without cross-petition or application under Rules of Court to vary judge's decision–Whether appellate court has power to grant leave to place issue before court–O 57 rr 9A (5) and 9A (6) (c) Rules of Court (Cap 322, R 5, 1997 Rev Ed)–Family Law–Child–Welfare of child–Court's discretion whether infant to be returned to applicant–Welfare of infant the paramount consideration–Sections 3, 11 and 14 Guardianship of Infants Act (Cap 122, 1985 Rev Ed)–Family Law–Guardianship–Application for infant to be returned to lawful guardians–Infant in care of another couple after applicants' first petition to adopt unsuccessful–Whether applicants constitute lawful guardians–Section 14 Guardianship of Infants Act (Cap 122, 1985 Rev Ed)–Words and Phrases–“Lawful guardian”–Section 14 Guardianship of Infants Act (Cap 122, 1985 Rev Ed)

The infant, Esther, three days after she was born was given to the respondents for their adoption. From 3 January 1993 till mid-February 1994, Esther was in Helen's continuous care and custody. Helen was the first respondent's mother. The respondents visited Esther four times a week at Helen's place but never brought Esther home with them. In 1993, they filed their adoption petition and in August 1993 they withdrew it because the Ministry of Community Development (“MCD”) noted their failure to bond with Esther and refused to support their petition. In October 1995, the respondents brought Esther home and in January 1996, Esther fell ill and stayed with Helen. The respondents filed their second adoption petition in January 1996. Helen, believing that the respondents would not be able to adopt Esther, found the appellants (“the Christian couple”) suitable to be Esther's alternative adoptive parents and allowed them to look after Esther since February 1996. In October 1996, the Christian couple filed their adoption petition.

The respondents applied under s 14 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“the Act”) for orders that: (a) Esther be returned to them as she was removed without their authorisation; (b) they be appointed Esther's guardians until an order of court was made; and (c) alternatively, Esther be returned to her natural mother. The district judge applied the welfare principle to hold that the status quo should be maintained to minimise trauma to Esther who should continue to reside with the Christian couple while the respondents be given access to Esther each week. The High Court judge however ruled that Esther be returned to the respondents' lawful custody. Pending the Christian couple's appeal, the High Court judge's order was stayed and the respondents were allowed increased access. For the appeal, the respondents raised an additional issue: whether the MCD had power to sanction the Christian couple removing Esther without the respondents' consent.

Held, allowing the appeal:

(1)“Guardian” was defined as a person who had charge of or control over a child or young person at the material time. Such a guardian was only the “lawful guardian” when the court had adjudged him to be the caregiver and custodian of the child at the material time: at [46] and [55].

(2) What mattered under s 14 of the Act was whether the infant had been removed from her lawful guardians. On the facts, between 3 January 1993 to October 1995, it was Helen who had the care of and control over Esther and who was her guardian. But from October 1995 to mid-January 1996, the respondents were her lawful guardians and at the material time when Esther was handed over to the Christian couple by Helen, the respondents remained Esther's lawful guardians. Therefore the respondents were entitled at the first stage of s 14 to seek her return to their custody. The second stage of s 14 required the court to exercise its judicial discretion in determining whether Esther should be returned to the respondents. In exercising such powers, the court ought to have a paramount regard for the infant's welfare and this was consonant with the welfare principle stated in s 3 of the Act: at [85].

(3) Esther was well-cared for by the Christian couple when she lived with them and should continue living with them until final disposal of the adoption issue: at [80], [87] and [89].

(4) Although the court had power to grant leave to the respondents to raise a new issue despite their not having filed a cross-petition or applied to vary the judge's decision under O 57 r 9A (5) of the Rules of Court (Cap 322, R 5, 1997 Rev Ed), the respondents' omission should not be encouraged unless there were valid reasons for their omission. However, the court was not the proper forum to initiate a complaint against a public service officer in the discharge of his official duties. The court's role was to provide judicial review concerning any decision proceeding from a public office: at [95].

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (refd)

Soon Peck Wah v Woon Che Chye [1997] 3 SLR (R) 430; [1998] 1 SLR 234 (refd)

Tan Siew Kee v Chua Ah Boey [1987] SLR (R) 725; [1987] SLR 549 (folld)

Children and Young Persons Act (Cap 38, 1994 Rev Ed) ss 2, 3, 16

Guardianship of Infants Act (Cap 122, 1985 Rev Ed) ss 3, 11, 14 (consd);ss 6, 7, 10

Legal Aid and Advice Act (Cap 160, 1996 Rev Ed) s 2

Penal Code (Cap 224, 1985 Rev Ed) s 361

Post Office Savings Bank Act (Cap 237, 1985 Rev Ed) s 2

Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 57 rr 9A (5), 9A (6) (c) (consd)

Women's Charter (Cap 353, 1997 Rev Ed) ss 145 (4), 160, 164, 165

Children Act 1989 (c 41) (UK) s 2 (9)

Tan Cheng Han (Tan Cheng Han), Edwin Chan and Charan Singh (Edwin Chan & Co) for the appellants

Tan Bar Tien and Andy Chiok (B T Tan & Co) for the respondents

NNavarani (Attorney-General's Chambers) on watching brief.

Yong Pung How CJ

(delivering the grounds of judgment):

1 This was an appeal against a High Court judge's decision in DCA 5028/1998. The judge overturned the decision of a district judge and ordered the return of the infant Esther to the respondents but made no order on costs. The order for Esther's return to the respondents was stayed pending the hearing of this appeal. The judge has, in the interim, ordered that the respondents be given greater, including overnight, access. We allowed the appeal, restoring the decision of the district judge, and made no order on costs. Our reasons are set out below.

Background

2 The respondents who were two of the plaintiffs in OS 5001/1996 as amended, sought orders as follows:

(a) declaring that Esther had been removed by the appellants without authorisation from the custody, management, care and control of the respondents;

(b) for the appellants to produce Esther in court and Esther to be returned to the custody of the respondents or for the Sheriff to seize Esther and deliver her into the custody of the respondents - in the alternative, for Esther to be returned to the third plaintiff who is the natural mother of Esther;

(c) for Esther to remain under the custody, management, care and control of the respondents until an order of court is made; and

(d) appointing the respondents as guardians of Esther.

3 Essentially, the respondents' application was made pursuant to s 14 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“the Act”). The hearing before the district judge proceeded by way of affidavits only without cross-examination of their deponents, parties having agreed to this mode of hearing. The hearing, however, should not be taken to be an easy one, there being in all, 23 affidavits filed by 17 different persons who have been somehow involved in this tale of young Esther.

The facts

4 Esther was the fourth child of one Mdm Tay, a divorcee who was also the third plaintiff in the originating summons. Mdm Tay has since dropped out of the entire matter, as she chose not to appeal against the Subordinate Courts' decision to strike out the entire originating summons. This decision was overturned on the respondents' appeal to the High Court, when Kan Ting Chiu J restored the originating summons sans Mdm Tay as the third plaintiff.

5 The respondents were a childless married couple known to Mdm Tay. Before Esther was born, Mdm Tay agreed with them that she would give them Esther for their eventual adoption. Three days after Esther's birth on 31 December 1992, Esther was handed over to the respondents. Almost immediately, she was placed in the care of the first respondent's mother, one Helen Tan (Helen).

6 Helen had brought up 11 children. She lived with her husband (who, during the course of the legal proceedings, passed away on 1 April 1997) and three unmarried daughters, Adeline, Lucinda and Kwee Lee (collectively, the daughters) in the Ang Mo Kio housing estate. It was not disputed that Helen was the main caregiver of Esther up to the time she was taken away by the appellants. Helen was occasionally assisted by her husband and the daughters.

7 The respondents filed their first petition to adopt Esther on 18 February 1993. This was withdrawn on 4 August 1995 after the Child Welfare Service of the Ministry of Community Development (MCD) filed a report refusing to support the petition (the report). The reasons given in the report related mainly to the respondents' failure to establish a bond with Esther despite having been given a generous time-frame of two years, and the uncertainty of the respondents subsequently putting in effort to do so. The main obstacle in their continued inability to form close bonds to Esther was attributed to the lack of time spent with her. This conclusion was arrived at after various interviews were conducted and observations...