TUC v TUD

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 09 May 2017
• Neutral Citation: [2017] SGHCF 12
• Plaintiff Counsel: Yap Teong Liang and Tan Hui Qing (T L Yap & Associates) (instructed), and Rina Kalpanath Singh (Kalco Law LLC)
• Date: 09 May 2017
• Docket Number: District Court Appeal No 158 of 2016
• Hearing Date: 16 March 2017
• Subject Matter: Conventions,Child,Articles 3 and 13(a) of the Convention on the Civil Aspects of International Child Abduction,Family Law,International Law,Abduction
• Year: 2017
• Defendant Counsel: Chan Yong Wei (Drew & Napier LLC) as amicus curiae.,Poonam Mirchandani and Ashok Chugani (Mirchandani & Partners)
• Court: High Court (Singapore)
• Citation: [2017] SGHCF 12
• Published date: 13 May 2017

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

This appeal stems from an application filed by the appellant (“the Father”) under s 8 of the International Child Abduction Act (Cap 143C, 2011 Rev Ed) (“the ICAA”) for an order that his two children be returned from Singapore to San Francisco, California, USA, which, according to the Father, is the children’s place of habitual residence. His application was based on the ground that the children had been wrongfully retained by the respondent (“the Mother”) in Singapore in breach of his rights of custody under US law.

The Mother, with whom the children presently reside, opposed the Father’s application on two grounds. First, relying on Art 3 of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), which is set out in the Schedule to the ICAA and has the force of law in Singapore, she argued that by the time of the hearing of the Father’s application, the children were no longer habitually resident in the USA, but were instead habitually resident in Singapore; the retention of the children in Singapore was therefore not a breach of the Father’s rights of custody and not wrongful. Second, and in the alternative, relying on an exception contained in Art 13(a) of the Hague Convention, she argued that the Father had consented to the retention of the children in Singapore. Specifically, she asserted that he had consented to the family’s move from the USA to Singapore for a period of at least two years to support her aspiration to pursue career opportunities here. Therefore, the court was not bound to order the return of the children to the USA.

The Father, in response, argued that the habitual residence of the children had not changed and, further, that he had not consented to the children’s retention in Singapore. He also argued, in the alternative, that any consent that he had given in this regard had been procured by the Mother’s deceit and was therefore devoid of legal force and effect.

The application was heard and dismissed by the Family Court. In her grounds of decision (published as TUC v TUD [2016] SGFC 146 (“the GD”)), the district judge (“the DJ”) found that the Father had consented to the relocation of the children to Singapore for two years to support the Mother’s career aspirations, and that there was insufficient evidence to warrant a finding that he had been deceived into consenting. The Father filed the present appeal against the DJ’s decision.

In this judgment, we set out the approach to determining “habitual residence” for the purposes of Art 3 of the Hague Convention. As this is the first occasion on which the exception founded on consent under Art 13(a) has been invoked, we think it useful also to review the legal principles on determining consent. We appointed an amicus curiae, Mr Chan Yong Wei, to assist us in resolving these legal issues. We are grateful for his clear and concise submissions, which we have taken into account in the course of our analysis.

Having considered the parties’ submissions, we find that the children were habitually resident in California, USA immediately before 2 June 2016, the date on which the Mother intimated to the Father that she wanted to end their marriage. In our judgment, the children were thereafter wrongfully retained in Singapore by the Mother. The DJ erred in finding that the Father had consented to such retention; this makes it unnecessary for us to decide whether any consent on his part had been procured by deceit. Accordingly, we allow this appeal. The detailed reasons for our decision follow.

Background

We begin with a brief recital of the material facts. We have redacted the names of the various persons and entities involved in order to protect the privacy of the children. The Father and the Mother are naturalised US citizens. The Father graduated with a degree in engineering from a university in India and has lived in the USA since 1995, save for the time he spent in Singapore from February to July 2016, a period which is pivotal to this appeal. He obtained an MBA from the University of California at Berkeley in 2009, and is the co-founder of a technology start-up. The Mother, who was born in India, pursued her pre-tertiary education in Singapore and her undergraduate education in Australia. She moved to California in 2003 to pursue a Master’s degree in statistics at California State University Hayward. Her last employment in the USA was as the chief data scientist of a company. The Father and the Mother were married in India in April 2003. They registered their marriage in California, USA in April 2004.

Their marriage was a strained one even before the children were born. According to the Mother, there were frequent spats and disagreements from around 2006. There is evidence to suggest that divorce had been contemplated from time to time. For instance, in an email from the Father to the Mother’s mother, [MIL], on 10 November 2014, in which he sought her advice on how to handle his marital problems, he wrote: “[The Mother] threatened me with a divorce today. It’s not the first time, not the tenth time, not even the 100th time even. It happens atleast [sic] once every month since our marraige [sic]”.

The two children, [FC] and [SC], were born in the USA and are US citizens. [FC] was born in Fremont, California in December 2011. He lived and attended day care schools in California from his birth until November 2015, when he came to Singapore. [SC] was born in August 2014 and lived in California until he came to Singapore in October 2015.

In April 2015, the parties bought a home in West Menlo Park, an upmarket residential district in California with good public and private schools in the vicinity. That same month, the family’s domestic helper, who had been with them since late 2011, left their employment. At the Mother’s request, [MIL], a Singapore permanent resident who has been living here since 1994, flew to the USA on 18 May 2015 to help the Mother run the household and manage the domestic chores.

We observe that the key events in this case happened between then and 2 June 2016, over the course of slightly more than a year. This is not to suggest that [MIL]’s appearance on the scene caused what eventually happened, although, as will be seen, she did play an important role in the narrative of events which follows. For ease of analysis, we group these events into five distinct phases.

May to October 2015: The Mother explores job opportunities in Singapore

The first phase revolves around the Mother’s pursuit of job opportunities in Singapore. The Mother had been doing well in her career as a data scientist in the USA, but aspired to start her own financial technology (“FinTech”) company. In late July 2015, she was introduced by a former colleague, [FCD], to the co-founders of [PEC], a private equity and advisory firm which was the main investor in [ECC], a FinTech start-up in the Philippines. From July to December 2015, the Mother discussed employment opportunities with [FCD] and the co-founders of [PEC].

It is relevant to note that in August 2015, the Father and the Mother each extended a loan to [USC], a Singapore company owned by the Mother’s uncle, [UNC]. This is pertinent to the Father’s case on deceit: his allegation is that the loans were part of a scheme by the Mother to channel the couple’s funds to Singapore. According to the Father, the Mother had represented to him that the loans were to help [UNC] with a lawsuit that [USC] was facing. Under the loan agreements, the Father and the Mother each lent US$100,000 to [USC], which was to repay the loan amounts within 36 months. We mention this for completeness, but do not place much emphasis on it since, as will become apparent, the loan made by the Father was repaid in due course.

October to early December 2015: The family visits Singapore for a holiday

The second phase revolves around the holiday that the family planned to take in Singapore at the end of 2015. The Father and the Mother had, since their marriage, taken annual vacations in Singapore and/or India, but this trip which was planned for the end of 2015 appears to be the first occasion on which they were accompanied by their children.

On 1 October 2015, [MIL] returned to Singapore with [SC]. This was about five months after [MIL] had come to stay with the family in California. The Father and the Mother signed a letter of consent for [SC] to travel without his parents. This was unremarkable because it was contemplated at that time that the rest of the family would also travel to Singapore shortly after. On 19 November 2015, the Mother and [FC] followed. Due to his work schedule, the Father only arrived in Singapore about a week later, on 27 November 2015. The plan was for the family to fly to Chennai on 12 December 2015 to visit the Father’s parents, fly back to Singapore on 1 January 2016 and then return to San Francisco on 9 January 2016. Indeed, in October 2015, they had already booked their return flights from Singapore to San Francisco. The Mother planned to be back in her office on 11 January 2016 and was expecting [FC] to continue schooling in the USA in January; she thus reminded the Father on 6 January 2016 to pay [FC]’s school fees for that month. As things turned out, the family did not go to Chennai and the Father alone returned to San Francisco on 6 December 2015. How this came to be is disputed.

According to the Father, during the family’s vacation in Singapore, the Mother said that she was keen to join a FinTech start-up in the region. He returned to the USA on his own, expecting that the Mother would follow with their children, but she did not. According to the Mother’s version of the events, on 4 December 2015, the Father had a disagreement with her parents, with whom the family was staying during their vacation here. He left her parents’...