TSF v TSE

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 16 August 2018
• Neutral Citation: [2018] SGCA 49
• Plaintiff Counsel: Adrian Tan Wen Cheng and Low Zhi Yu Janus (August Law Corporation)
• Docket Number: Civil Appeal No 167 of 2017
• Date: 16 August 2018
• Hearing Date: 30 April 2018
• Subject Matter: Fresh evidence on appeal,Custody,Family Law,Care and control
• Published date: 13 October 2018
• Defendant Counsel: Koh Tien Hua and Phoebe Sim Shi Hui (Eversheds Harry Elias LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 49
• Year: 2018

Judith Prakash JA (delivering the judgment of the court): Introduction

The present appeal concerns the appropriate orders for the care and control of a child who is situated in rather special circumstances. Since January 2014, the child’s parents have been engaged in an acrimonious battle over the child’s custody in two jurisdictions: Singapore and England. Several orders have been made by the English courts requiring the father to return the child to England, but none were complied with. The mother made allegations of criminal conduct against the father which led to his arrest and trial in England, but the father alleges that these were false and malicious allegations as shown by his subsequent acquittal by a jury. Regrettably, in the course of this custody battle, both parents have gone to the extent of committing criminal offences. As a result, neither of them is able to freely travel to the jurisdiction of the other parent’s residence. This means that the options available to this court regarding the child’s care arrangements are presented in stark terms, since the parent not granted care and control of the child is likely to have limited interaction in person with the child.

In TSH and another v TSE and another and another appeal and another matter [2017] SGHCF 21 (“the Judgment”), the learned High Court judge (“the Judge”) held, amongst other things, that it was in the best interests of the child for him to be returned to his mother’s care in England. The Judge thus granted joint custody to both parents, care and control to the mother, and reasonable access to the father.

The Judge’s decision resolved many issues. Even custody is no longer in dispute, both parties accepting the order for joint custody. The question before this court is who will have control over the child’s daily life. Civil Appeal No 167 of 2017 (“CA 167”) is the father’s appeal against the Judgment, and Summons No 27 of 2018 (“SUM 27”) was his application for leave to adduce fresh evidence on appeal in the form of three reports dated early 2018.

Facts The parties

The subject of the present proceedings is M, a Singapore citizen. He was born in London in mid-2012 and his parents brought him to Singapore in July 2013. Since then, he has been residing in Singapore. M attends a kindergarten in Singapore and is due, if he is to remain here, for enrolment in a local primary school in early 2019. M was born with a congenital lung condition. Initially treated for this condition at a hospital in London, he is currently under the care of KK Women’s and Children’s Hospital (“KKH”). In early 2017, M was diagnosed by a specialist at KKH as having Autism Spectrum Disorder (“ASD”). He has been participating in an early intervention programme run by the Autism Association (Singapore) (“AAS”) since June 2017.

The appellant, TSF (“the Father”), is M’s father. He is a 41-year-old Singaporean. During the marriage, the Father worked in the London office of an international bank. After his return to Singapore in September 2016, the circumstances of which are discussed below (at [27]), he worked as an ad hoc tuition teacher and a freelance risk management consultant. His counsel informed this court at the hearing of the appeal that he had recently found employment as an administrator in a local tertiary institution. He presently resides with M in Singapore.

The respondent, TSE (“the Mother”), is M’s mother. She is currently 35 years old and is a national of another Asian country. After the parties married in Singapore in June 2011, she moved to London to live with the Father. At present, she is still residing in the parties’ English matrimonial home. She has been granted a “Leave to Remain” permit by the UK immigration authorities. This permit, granted in August 2017, entitles her to live and work in the UK until 31 January 2020, with the possibility of further extensions. The Mother was a student during the marriage but avers that she recently found employment in London as a bookkeeper and office administrator.

M and the Father live with M’s paternal grandparents (“the Grandparents”), who are retirees. The Grandparents have been involved in caring for M for a substantial part of his life.

Proceedings in Singapore

In July 2013, when M was around a year old, his parents brought him to Singapore so that the Grandparents could look after him while the Mother prepared for an examination in England. Shortly thereafter, the couple returned to the UK, leaving M behind. The relationship between his parents broke down while M was in Singapore. Unbeknownst to the Mother, the Father had decided to end their marriage and he covertly instructed his solicitors in Singapore to prepare the necessary applications.

On 18 January 2014, the Father and the Mother arrived in Singapore again. The Mother was under the impression that they were here to pick up M and would return to the UK with him within the month. Within days of their arrival, however, the Father initiated divorce proceedings in Singapore and filed the following applications: OSF 30/2014, an ex parte application to restrain the Mother from taking M out of jurisdiction while the other applications were being heard; OSF 31/2014, an application for sole custody, care and control of M with supervised access to the Mother; and OSF 36/2014, an application for leave to file a Writ of Summons for divorce within three years of marriage.

The second and third applications were served on the Mother on 22 January 2014. She was caught by surprise. Although the applications had been assigned hearing dates in February, the Mother took no action in Singapore at that point. Instead, she instructed solicitors in England to file an emergency application in the English courts. She obtained an order from the English High Court on 24 January 2014 requiring the Father to return M to England. According to the Mother, the order was served on the Father by e-mail and so enraged him that he made threats against her life which terrified her. On 25 January 2014, the Mother flew back to the UK alone. At the Singapore airport she was served with the ex parte application to restrain her from taking M with her but there is no indication on the record that she was planning to do so at that time.

The Mother took no part in the Singapore proceedings for quite a while thereafter but pursued her English proceedings. These led to several orders being made subsequently by the English courts: (a) M was made a ward of the English courts; (b) the Father’s passport was impounded; and (c) the Father was repeatedly ordered to return or cause the return of M to the UK. For clarity of exposition, we elaborate on the English proceedings separately at [15] to [25] below. It should be noted that the Father himself returned to England shortly after the Mother, leaving M with the Grandparents, and thereafter contested the English proceedings.

On 26 February 2014, the Father was granted leave by the Singapore court to commence a divorce suit within three years of the marriage. The Father filed for divorce here on 28 February 2014. At this point, the Father carried on the proceedings from abroad. Shortly after the divorce proceedings were commenced, the Grandparents filed an application seeking to be appointed legal guardians of M and to have interim custody, care and control, pending the conclusion of the divorce proceedings.

In July 2014, interim judgment of divorce was granted to the Father. In January 2015, the court decided it should make no order as to the custody, care and control of M, without prejudice to either party’s right to apply for custody after the conclusion of the English proceedings in relation to M. In the light of this, the Grandparents withdrew their application for guardianship.

Whilst the Mother’s English solicitors wrote to the Family Court in Singapore a few times in 2015 informing them of orders made by the English courts, the Mother hardly participated in the Singapore proceedings. She did not take action here until late November 2015 when she filed an application for an order mirroring those made by the English courts for the return of M and for the recognition of M as a ward of the English courts (hereinafter, the “mirror order”). Shortly thereafter, in January 2016, she filed a Notice of Appointment of Solicitors in the divorce proceedings.

Proceedings in England

In the meantime, proceedings relating to the custody of M were apace in England. On 24 January 2014, in response to the Father’s applications in Singapore, the Mother filed an emergency ex parte application in the English courts for the return of M to England. On the same day, the English High Court made orders for the Father to return M to England no later than 29 January 2014. Further, the Father was to surrender his and M’s travel documents, in so far as they were within his possession or control, until further direction of the court. M was also made a ward of the English court until further order.

On 30 January 2014, the Father attended at the English High Court and disputed its jurisdiction over M. He took the position that M was habitually resident in Singapore and that it was the Singapore courts that had jurisdiction to make orders relating to M’s welfare. As a result, the earlier court order was suspended and the issue as to M’s place of habitual residence was fixed for hearing.

On 28 February 2014, the Father was arrested by the London police in relation to allegations of marital rape made against him by the Mother.

On 14 March 2014, after hearing arguments as to M’s habitual residence, Russell J delivered judgment holding that M was habitually resident in the UK and accordingly ordered the Father’s return of M to the UK no later than 18 March 2014: see Re M (a child) [2014] EWHC 963 (Fam). The Father’s passport was ordered to be detained until M was returned to England.

On 3 April...