TKI v TKJ

• Jurisdiction: Singapore
• Judge: Jen Koh
• Judgment Date: 28 January 2016
• Neutral Citation: [2016] SGFC 13
• Court: Family Court (Singapore)
• Docket Number: FC/OSF 120/2015
• Published date: 05 February 2016
• Year: 2016
• Hearing Date: 23 December 2015,30 December 2015
• Plaintiff Counsel: Mr Yap Teong Liang (T L Yap Law Chambers LLC)
• Defendant Counsel: Mr Lee Terk Yang (Flint & Battery LLC)
• Subject Matter: Child abduction,Wrongful retention,1980 Hague Convention,International Child Abduction Act
• Citation: [2016] SGFC 13

District Judge Jen Koh: Introduction

This is an application for a return order taken out by the Plaintiff father (“the Father”) against the Defendant mother (“the Mother”) pursuant to Article 8 of the International Child Abduction Act (“the ICAA”). The Father is praying, inter alia, that their Child (“the Child”) “be returned to the Child’s place of habitual residence which is Hong Kong, China”. Hong Kong, like Singapore, is a Contracting State under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”).

At the conclusion of the hearing on 23 December 2015, I allowed the Father’s application. These are the detailed grounds of my decision.

Background Facts

Both parties are represented in these proceedings.

The parties have been litigating in the Courts in Singapore and Hong Kong since 2014. The background facts are set out in TDX v TDY [2015] 4 SLR 982 (“TDX”) (involving the same parties) and I repeat the salient facts from TDX here:

3 The appellant, referred to as the “Father” here, was born in Australia and works in Hong Kong. The respondent, referred to as the “Mother” here, was born in Singapore, and had worked and lived in Hong Kong from 2008 to 2014. The parties are not married to each other. They had a relationship while living in Hong Kong and their daughter, “B” was born on 15 May 2013 in Hong Kong. The Mother took B to Singapore on 23 June 2014.

4 The Father commenced proceedings in Hong Kong on 29 August 2014 seeking the custody, care and control of B, and also for B to be made a ward of the Hong Kong court and returned to Hong Kong. On 12 September 2014, the Hong Kong court made the interim order that the Father shall have access to B for two weeks once every four weeks provided that he bore the expenses related to collecting and sending B back to the Mother in Singapore. The Hong Kong court also made B a ward of the court. The Father’s application (which was made on an ex parte basis) and the order were served on the Mother on 22 September 2014. On 24 September 2014, the Mother’s solicitors in Hong Kong applied for a stay of execution of the order. On 25 September 2014, the Hong Kong court ordered a stay of execution of the access order until 6 October 2014, but allowed the Father to have interim access to B in Singapore between 26 and 28 September 2014.

5 On 26 September 2014, the Mother commenced proceedings in Singapore for, inter alia, sole custody, care and control of B to herself, and supervised access to the Father, as well as an order to prevent the Father from bringing B overseas without her consent. On 27 September 2014, the Mother obtained an order made on an ex parte application in Singapore that B shall not be taken out of Singapore by either party without the written consent of the other party. This order contradicted the Hong Kong order of 12 September 2014. Counsel for the Father highlighted that the Hong Kong proceedings and orders were not fully disclosed to the court at this hearing. The Father was in Singapore from 26 to 28 September 2014 to exercise his right of access to B. Notwithstanding that, the Mother only served the ex parte application made on 26 September 2014 and the order of 27 September 2014 on the Father after the access was over and B was returned to her on 28 September 2014.

6 At the hearing in Hong Kong on 6 October 2014, the Mother’s solicitors indicated that they were preparing the application for the stay of the Hong Kong proceedings pending the result of the Singapore proceedings. However, this was not properly pursued and no summons for a stay of proceedings was filed at all. On the same date, the Hong Kong court ordered that the Father shall continue to have interim access and that the matter of stay of execution be adjourned until 16 October 2014. On 15 October 2014, the Mother filed a notice to act in person in the Hong Kong proceedings. However, she did not turn up for the hearing on 16 October 2014. At that hearing, the Hong Kong court ordered that B remained a ward of the court, that the Father had all the rights and authority that the law would allow him as a father if the child was legitimate, and that access was to be carried out in accordance with the order of 12 September 2014. The Mother’s application for the stay of execution was also dismissed.

TDX concerned an application by the Father to stay the Singapore proceedings (i.e. the Mother’s application for inter alia, sole custody, care and control of the Child to herself). His application was dismissed by the District Court, but on appeal, the Family Division of the High Court held that Hong Kong was clearly the more appropriate forum to determine the dispute. Accordingly, the Singapore proceedings were stayed on 18 February 2015. The written grounds were published on 30 June 2015.

On 5 March 2015, the Court of First Instance of the High Court of Hong Kong (“the HK Court”) ordered, inter alia:

(b) The Defendant do hand over the Ward and all the Ward’s 3 passports to the Plaintiff on or before 9.00am on 7 March 2015 to enable her to travel to Hong Kong with the Plaintiff on 7 March 2015 on the CX690 flight scheduled to leave Singapore for Hong Kong at 12.55pm;

(c) The Plaintiff to hand over the Ward and all the Ward’s 3 passport (sic) to the Defendant on 21 March 2015 upon arrival in Singapore on the CX 635 flight scheduled to leave Hong Kong at 3.15pm and to arrive in Singapore at 7.10pm;

(d) The Ward shall not be removed from Singapore or Hong Kong save for the access ordered by the court on 12 September 2014

(*the Ward referred to in that judgment is the Child in this case)

The HK Court subsequently granted the Father interim care and control of the Child on 19 March 2015 and ordered the Mother to return the Child to Hong Kong for the purpose of carrying out the terms of the order of 5 March 2015.

Two months later, on 19 May 2015, the HK Court granted joint custody of the Child to the parties with care and control to the Father and access to the Mother for two weeks in every four weeks. It also ordered the Mother to return the child to Hong Kong and to hand over the child to the Father “as soon as practicable”. This was not done.

The Father filed the present application on 25 November 2015.

Introduction to The Hague Convention

This is an application under the ICAA. The ICCA implements the Hague Convention, which Singapore acceded to on 28 December 2010. The objects of the Hague Convention are set out in Article 1:

Article 1

The objects of the present Convention are — (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

The Court of Appeal made the following general comments on the Hague Convention in BDU v BDT [2014] 2 SLR 725 (“BDT”):

25 It is of the first importance to note right at the outset what the Hague Convention covers and (perhaps more importantly) what it does not. An excellent starting-point in this regard is the following summary by Prof Leong Wai Kum (see Leong Wai Kum, Elements of Family Law in Singapore (LexisNexis, 2nd Ed, 2013) at p 270): It follows from the above that these objectives [of the Hague Convention] are fairly limited. The [Hague] Convention may be understood, particularly by a conflicts lawyer, as an agreement among nations on ‘jurisdiction selection’ in matters relating to custody and care of a child. The participating nations agree to select the courts of the country of habitual residence of the child to be the courts to decide all issues of custody and care. Every other court will thus seek only to, as quickly as possible, return the child to the court of her habitual residence. In particular, every other court will not seek to investigate for itself what might be the best possible order regarding the custody and care of the child. This, as agreed, should be left to the court of her habitual residence. It is, therefore, not a valid criticism that, in ordering the return of the child to her habitual residence, the court has overlooked some argument relating to her welfare. Every court other than the court of her habitual residence has agreed to desist from investigating into the substantive issues relating to her welfare to defer to the court of her habitual residence. Put another way, the understanding of the child’s welfare under the [Hague] Convention is not the substantive understanding (as under the domestic law of guardianship and custody) but rather the more limited understanding, that where she has been unlawfully removed from her habitual residence, her welfare is best served by swiftly returning her to her habitual residence. There the courts will look into the substantive issues. [emphasis added in italics and bold italics]

26 Put simply, the court of the country to which the child has been brought (in this case, Singapore) is – pursuant to the Hague Convention – concerned only with the return of the child concerned to his or her country of habitual residence from which he or she was first abducted, subject only to the limited exceptions set out in, inter alia, Art 13 of that Convention. It is not concerned with the substantive merits relating to the relevant issues of custody and/or care and control between the parents concerned (still less is it a Convention for the reciprocal recognition and enforcement of foreign custody orders (see David McClean, The Hague Convention on the Civil Aspects of International Child Abduction – Explanatory Documentation prepared for Commonwealth Jurisdictions (Commonwealth Secretariat, London, 1997) (“McClean”) at p 6). Indeed, this point is made clear beyond peradventure by Art 19 of the Hague Convention, which reads as follows: A decision under this Convention concerning the...