Ukm v Ag

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Judith Prakash JA,Debbie Ong J
• Judgment Date: 17 December 2018
• Court: High Court (Singapore)
• Docket Number: District Court Appeal No 2 of 2018
• Date: 17 December 2018

UKM

and

Attorney-General

[2018] SGHCF 18

Sundaresh Menon CJ, Judith Prakash JA and Debbie Ong J

District Court Appeal No 2 of 2018

High Court

Family Law — Adoption — Gay man applying to adopt child born overseas through gestational surrogacy — Adoption increasing child's chances of obtaining Singapore citizenship and remaining in Singapore permanently — Whether adoption for welfare of child — Meaning of welfare of child — Whether welfare “first and paramount consideration” in adoption proceedings — Meaning of “first and paramount” — Section 5(b) Adoption of Children Act (Cap 4, 2012 Rev Ed) — Section 3 Guardianship of Infants Act (Cap 122, 1985 Rev Ed)

Family Law — Adoption — Guardian-in-Adoption opposing gay man's application to adopt child on grounds of public policy relating to parenthood and family units — Lower court dismissing application on grounds of public policy against surrogacy — Gay man contending that welfare of child overriding any relevant public policy consideration — Whether court had basis for taking public policy considerations into account — How court should take such considerations into account — Meaning of public policy — Section 3(1) Adoption of Children Act (Cap 4, 2012 Rev Ed)

Family Law — Adoption — Surrogate mother being paid to hand baby over upon delivery and to relinquish parental rights — Whether payment was in consideration of adoption made to parent of child to be adopted — Whether court should sanction payment — Effect of unlawful payment and sanctioning of such payment — Section 11 Adoption of Children Act (Cap 4, 2012 Rev Ed)

Statutory Interpretation — Construction of statute — Statutory provision stating that court “may” make order — Whether provision conferred discretion on court to make order — Whether court had to make order if all statutory conditions were satisfied — Whether court might take public policy considerations into account in exercising discretion — Section 3(1) Adoption of Children Act (Cap 4, 2012 Rev Ed)

Held, allowing the appeal:

(1) The welfare of a child for the purposes of s 5(b) of the Act referred to his “well-being” in every aspect and in the most exhaustive sense of the word, including his physical, intellectual, psychological, emotional, moral and religious well-being, in the short and long term. Besides the satisfactoriness of the child's parenting arrangement, it was equally critical to account for the intangible components of his well-being in a broader sense, meaning not only his psychological and emotional development, but also the environment within which his sense of identity, purpose and morality would be cultivated: at [45] to [47].

(2) Section 3 of the GIA applied to adoption proceedings and this required the court to have regard to the child's welfare as the first and paramount consideration. This meant that the court had to assess the impact of the order sought in the light of all the relevant indicia of the child's welfare, and when a certain outcome was shown to be for the welfare of the child, the court should make an order which would achieve that outcome unless there were compelling reasons to do otherwise. However, as the child's welfare was neither absolute nor exclusive, exceptional circumstances, such as where there was a countervailing policy consideration, might justify an outcome which served the child's welfare less than optimally: at [50], [56] and [57].

(3) Making the adoption order would be for the welfare of the Child as it would increase his prospects of securing Singapore citizenship and long-term residence here, where his family was located. This was a weighty consideration because the Child's being able to remain here in the long term would enhance his sense of security, his emotional well-being, and the long-term stability of his care arrangements, which the MSF had assessed as materially and financially adequate. His legitimation by adoption would also give him the social acceptance attached to that status. On the other hand, as he was the appellant's biological son, adoption was not needed to establish his parentage, and so would not be transformative in that sense. Nor would conclusively removing M's parental rights or giving him the right to intestate succession be a meaningful practical benefit: at [65] to [67], [74], [75], [79], [80] and [84].

(4) Section 3(1) of the Act gave the court a general discretion to determine whether to make an adoption order once the relevant statutory conditions had been satisfied. This discretion enabled the court, firstly, to make an adoption order only after having regard to all the relevant circumstances of the case, and secondly, to consider any public policy relevant to any aspect of the institution of adoption, because adoption was the very institution the Act established and sought to regulate. Therefore, the Guardian was entitled to rely on s 3(1) to introduce public policy considerations relating to the family, parenthood and the well-being of children: at [89], [96] and [97].

(5) Public policy involved arguments about the common good. This made its proper role in judicial decisions difficult to define because the essential task of judges was to decide individual cases, and because what was for the common good was often shifting and disputed. Therefore, the proper approach to taking public policy into account had to provide good reasons for having regard to the common good in deciding an individual case, and for why the formulation of the common good being relied upon was authoritative: at [107] to [110].

(6) The role of public policy in a given case depended on the legal context of the case, which might be analysed along two axes: first, as to the type of law involved, by distinguishing between judge-made law and statutory law; and second, as to the type of policy relied upon, by distinguishing between socio-economic policy and legal policy. The interaction between the axes might be represented using the following matrix of legal contexts: at [110] and [111].

Matrix of legal contexts	Type of public policy
Socio-economic	Legal
Type of law	Judge-made law	Category lA	Category lB
Statutory law	Category 2A	Category 2B

(7) Where the legal context fell under Categories 1A or 1B, the court should generally be able to rest its decision on public policy, subject to the constraints of precedent, established principles, and the analogical reasoning of the common law. Where the legal context fell under Categories 2A or 2B, the court should generally be cautious about doing the same. Where the legal context fell under Categories 1A and 2A, the court should be more cautious, relative to Categories 1B and 2B respectively, about doing so: at [112] and [115].

(8) The way in which public policy was being relied upon to justify a position also had an impact on the proper approach to taking public policy considerations into account. Where public policy was used to justify the existence and scope of a claimed right, the analysis proceeded, in theory, on a blank canvas, and the goal was to find the solution best supported by the relevant public policy considerations. Where public policy was used to justify the curtailment of a claimed right, the analysis tended to take the form of an attempt to balance the need to give effect to the default regime and the need to protect the common good from injury if that default regime were to apply, and such a balancing exercise would be involved whether the right sought to be curtailed arose from common law or statute: at [116], [117], [120] and [121].

(9) These principles on the proper approach to taking public policy into account in judicial decisions were predicated on two fundamental principles: first, the protection of the democratic process and respect for the democratic legitimacy of the elected institutions; and second, institutional competence, which concerned questions of which branch of government was best placed to make the decisions in issue due to its expertise and its constitutional role and function: at [124] to [126].

(10) This case fell under Category 2A of the matrix of legal contexts because the governing law, namely, the Act, was statutory in nature, and because the policy considerations relied upon by the Guardian were socio-economic in nature. Also, if any particular policy considerations were relevant, they had to be balanced against any applicable countervailing factor, because they were being relied upon to justify the curtailment of a claimed statutory right. Here, the appellant's interest in adopting the Child could be analysed as such a right because he had satisfied the statutory requirements for obtaining an adoption order: at [128] and [129].

(11) The analytical framework for taking public policy into account in a case such as the present involved two steps. The first, which was a forensic exercise, was to determine whether the alleged public policy existed and, if it did, whether the policy would be violated if the claimed right were given effect. The second step, which was a balancing exercise, was to determine the weight to be given to the value underlying the claimed right and the countervailing public policy consideration, and then to reason towards an outcome which struck the proper balance between the competing considerations: at [136], [147], [148] and [162].

(12) As to the first step, the three main criteria for assessing whether the material relied upon bore out the alleged public policy were authority, clarity and relevance. Authority meant that the alleged policy had to be attributable to a constitutionally authoritative source, such as primary legislation, subsidiary legislation, statements made by Ministers in their official capacity and judicial decisions which expressed long-held values which concerned a fundamental purpose for which the law existed and on which reasonable persons might be presumed to agree. Clarity meant that the policy had to be...