Tuc v Tud

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 22 June 2017
• Court: High Court (Singapore)
• Docket Number: District Court Appeal No 158 of 2016 (Summons No 171 of 2017)
• Date: 22 June 2017

TUC

and

TUD

[2017] SGHCF 15

Judith Prakash JA

District Court Appeal No 158 of 2016 (Summons No 171 of 2017)

High Court Family

Civil Procedure — Appeals — Leave to appeal — Respondent applying under s 8 International Child Abduction Act (Cap 143C, 2011 Rev Ed) for order that two children be returned from Singapore to USA on basis that they had been wrongfully retained by Respondent in Singapore — District judge dismissing application — High Court bench comprising Chief Justice and two Judges of Appeal allowing appeal — Applicant applying for leave to appeal against High Court's decision — Whether leave to appeal should be granted — Section 34(5) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

This was an application for leave to appeal against the decision of the High Court in TUC v TUD [2017] 4 SLR 877. The original application in the Family Court was made under s 8 of the International Child Abduction Act (Cap 143C, 2011 Rev Ed) (“the ICAA”). The applicant in that application, who subsequently became the appellant in the appeal before the High Court (“the Father”), was the father of two young boys. His application was for an order that his two children be returned from Singapore to San Francisco, California, USA. He alleged that the children had been wrongfully retained in Singapore by their mother, his wife, in breach of his rights of custody under US law. The district judge who heard the matter dismissed his application. The Father then appealed to the High Court. The respondent to the application and to the appeal was the wife (“the Mother”).

Section 23(3)(a) of the Family Justice Act 2014 (Act 27 of 2014) provides that an appeal to the High Court from a decision of a Family Court may be heard before one judge or three judges. The Father's appeal required the High Court to consider, for the first time, the approach to determining “habitual residence” under Art 3 of the Hague Convention on the Civil Aspects of International Child Abduction (the provisions of which are set out in the Schedule to the ICAA and have the force of law in Singapore), and also the approach to construing the exception of “consent” under Art 13(a). The Chief Justice appointed a bench of three to sit in the High Court to hear the appeal from the district judge's decision. The members of the bench were the Chief Justice and two Judges of Appeal.

The High Court unanimously allowed the appeal, finding that the children were habitually resident in California, USA immediately before the date on which they had been wrongfully retained, and that the Father did not consent to such retention. The Mother filed an application for leave to appeal as was required under s 34(5) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed). The grounds for her application were the second and third grounds for granting leave to appeal as set out in Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 862 – that is, that there were questions of general principle decided for the first time and questions of importance upon which further argument and a decision of a higher tribunal would be to the public advantage.

Held, dismissing the application:

(1) The Mother's reliance on the second and third grounds seemed misplaced in view of how the appeal had been managed. Those grounds were designed for the usual situation in which a single High Court judge sat in an appellate capacity in respect of a decision given by the District Court. In that situation, it might be that further consideration by a bench of three or more judges at a senior level might be necessary or helpful or advantageous. The position here was different not only because of the number of judges but also because the constitution of the bench made it plain that in effect the Court of Appeal was sitting albeit as a bench of the High Court. It was precisely because there were questions of general principle to be decided for the first time, on which a decision by a higher tribunal would be to the public advantage, that three members of the Court of Appeal sat in the High Court to hear this appeal: at [9] and [10].

(2) If an appeal was heard by a High Court bench comprising three judges, leave to appeal against that decision should not be granted on the second and third grounds save in exceptional circumstances. One possible exception was where the bench of three was split on the result. Even then, however, the divergence of opinion had to be on a point of law rather than a finding of fact. Otherwise, there would be no question of general principle or question of importance on which the Court of Appeal's authoritative guidance was needed. All that it would be asked to do would be to sift through the facts again in order to determine whether the lower court's findings were correct. That was not a permissible reason for granting leave to appeal: at [13].

(3) Another possible exception was this: the decision of the High Court was unanimous, but it had expressed disagreement with legal principles set out in a decision of the Court of Appeal though it was bound by law to apply them, or had departed from an established line of High Court authority. In such a situation, the question of law might not have been decided for the first time, but there might be cause for revisiting it, for example, because of developments in other jurisdictions. If so, it might be considered necessary to grant leave to appeal on the third ground in order for the Court of Appeal to have an opportunity to provide guidance on the issue: at [14].

(4) The application for leave to appeal was dismissed primarily for the reason that this was a unanimous decision of a High Court bench comprising three judges and in such circumstances the default rule was that leave to appeal would be refused. There had to be exceptional circumstances...