Re C (an infant)

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 14 November 2002
• Neutral Citation: [2002] SGCA 50
• Date: 14 November 2002
• Subject Matter: Removal of child out of jurisdiction by party having custody,Welfare of child,Relevant factors,Whether financial standing and occupation of party seeking to be guardian of child relevant,Access,Guardianship,Meaning,Care and control,Whether surviving parent has prima facie right to custody of child,Granting access to maintain relationship with surviving parent,Family Law,Custody,s 6 Guardianship of Infants Act (Cap 122, 1985 Rev Ed)
• Docket Number: Civil Appeal No 79 of 2002
• Published date: 11 November 2003
• Defendant Counsel: Kesavan Nair (Harry Elias & Partners)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Mr Charles Ezekiel, Anna Oei Ai Hoea, and Valerie Yang (Lim Ang & Partners)

1 The present appeal concerned a custody battle for a two-year-old boy between the child’s father and paternal grandmother on the one hand, and his maternal grandparents on the other. In the court below, the judge made the maternal grandparents, the plaintiffs in those proceedings, the guardians of the child and awarded custody to them. The father, who was the defendant, and the paternal grandmother were dissatisfied with the decision below and appealed to us. It should be mentioned that the father is now in prison and will only be released in the year 2008 at the earliest. At the conclusion of the hearing we dismissed the appeal, but granted limited access rights to the paternal grandmother.

The background

2 The family history of the child is rather sad as his father, the appellant, is currently serving a ten-year prison sentence for causing the death of his wife, the child’s mother.

3 The maternal grandparents, A and B, are both Australian citizens and they ordinarily reside in Australia. However, they come to Singapore once a year to visit A’s mother (maternal great grandmother of the child) who lives at Jubilee Road. A is a classical musician by profession and B runs a dance school in Perth, teaching Indian classical dance. Even while the child’s mother was alive, they have effectively been taking care of the child since birth, either in Perth or in Singapore. After the mother’s death, they became the sole caregivers. The child is very attached to them.

4 The appellant is an Indian national. So is his mother, whose occupation is to tell fortunes and perform religious rituals. She resides in Tamil Nadu, India but often comes to Singapore. The appellant met his wife in India through his mother and fell in love with her. He is younger than her by two years. In February 2000 he came over to Singapore and on March 2000, they registered their marriage. The couple stayed with the wife’s extended family at Jubilee Road. In the second half of 2001, they moved to live in a flat at Pine Close, their matrimonial home. The child was born to them on 2 December 2000 and is a Singapore citizen by birth.

5 Troubles began to appear between the couple, which the appellant alleged was due to interference by his wife’s family. The fact was that he could not find employment here despite considerable effort. He claimed to be a graduate of the University of Madras when he is not such a graduate. It was also alleged that the appellant is violent by nature.

6 On 29 September 2001, the couple had a serious quarrel at their Pine Close home which led to the appellant stabbing his wife in the abdomen, from which injury she died. The appellant pleaded guilty to a charge of culpable homicide not amounting to murder, and on 13 March 2002 he was sentenced to a ten-year imprisonment term which was backdated to 29 September 2001. He was also ordered to be given 15 strokes of the cane. Subject to good conduct which would earn him one-third remission, he should be released in June 2008.

7 As the mother had passed away and the father, the appellant, was in prison, the wife’s parents thus applied for custody of the child. The appellant opposed the application in part because the respondents intended to take the child out of Singapore to reside in Perth, Australia. We would observe straight away that this was hardly a valid point as the appellant’s mother, if custody of the child was granted to her, would also be taking the child to live with her in India. He also said the maternal grandparents were not suitable because of their age (A was then 62 and B, 56). The appellant’s mother is a single mother herself. While she is not rich, she has sufficient means to maintain the child. The appellant also said that his two married sisters, who lived in Tamil Nadu, would help him care for the child. He also averred that since his arrest, the relatives of his wife had never brought the child to see him. He emphasised that the child, being a Hindu, should be brought up immersed in the values of Indian cultures and traditions and not be exposed to the ills of a Westernised permissive society.

8 The respondents also have two other daughters who would help in looking after the child. According to the respondents, the appellant is short-tempered and quarrelsome and has a propensity to violence. They also declared that they had better home support in bringing up the child than the appellant’s mother.

Decision below

9 In view of the conflicting assertions, the judge below directed the children welfare authorities to investigate the background of both parties. Taking into account the welfare report, and the first and paramount consideration laid down in s 3 of the Guardianship of Infants Act (Cap 122), (“the Act”), ie, the welfare of the child, the court granted custody to the maternal grandparents.

10 In coming to her decision, the judge noted that although the marriage was not really approved by the maternal grandparents, the latter were nevertheless “totally devoted to the infant”. She was convinced that they would be able to give the child a better life, in every sense of the word, than the appellant’s mother could. She also took into consideration the following circumstances:

(a) The respondents’ extended family is a closely knit one, both here and in Perth, and the members thereof would be able to help, and extend to each other physical and emotional support, in bringing up the child;

(b) The appellant has a propensity towards violence and giving custody to him and/or his mother would expose the child to some risk. He also did not show true remorse for having killed his wife.

Issues

11 The main issues which the appellant and his mother sought to canvass before us were the following:

(a) The judge failed to have regard to the fact that the appellant, being the surviving parent, should have a better right to custody of the child;

(b) The judge below was unduly influenced by the fact that the appellant’s mother had an unconventional occupation and her erroneous perception that Australia was a better place to bring up the child;

(c) The judge failed to give sufficient consideration to the fact that the child, being so young, it was important that the person to whom custody was given should be a younger person and here, the respondents were considerably older than the appellant’s mother who was then only aged 46.

12 In the alternative, the appellant asked if the court was not inclined to grant him custody of his son, that either he or his mother, or both of them, be given access in order that ties between him and his son are not severed.

13 We should also add that the appellant had also raised a number of procedural issues, none of which were of any great moment or likely to have any significant effect on the substantive issues relating to the welfare of the child. So we do not propose to go into them.

A parent’s rights

14 The appellant’s point here was that being a natural parent, and the other parent having passed away, he should automatically be entitled to the custody, care and control of the child. In this regard, he relied upon the English case of Re D [1999] 2 FCR 118 which concerned a custody tussle between the father and the maternal grandmother. The English Court of Appeal said that the question for the court in a case such as this was whether there were any compelling factors which override the prima facie right of a child to an upbringing by its surviving natural parent. It held that the judge below had adopted the wrong test in reaching his decision by performing a balancing exercise as though the question was which of the households would provide the better home. The correct approach was first to consider whether the father was a potential carer for his son.

15 We accept the principle advanced that, prima facie, a surviving parent should have the right to custody of his child. This follows naturally from the settled rule that both parents of a child have equal rights over the child and if one parent should die, then the surviving parent would ordinarily have the sole right over the child. This is substantially provided in s 6 of the Act. However, this right is subject to the overriding power of the court, in exercise of the jurisdiction conferred under the Act, of either removing that parent as a guardian over the child, if it is established to the satisfaction of the court that it is not in the welfare of the child to be in the custody, care and control of that parent; or appointing another person as an additional guardian to act jointly with the surviving...