UKR v UKS

• Jurisdiction: Singapore
• Judge: Christine Lee
• Judgment Date: 15 March 2018
• Neutral Citation: [2018] SGFC 29
• Court: Family Court (Singapore)
• Hearing Date: 25 January 2018,01 December 2017,03 November 2017,21 November 2017,02 February 2018,26 January 2018,29 January 2018
• Docket Number: Originating Summons (Family) Suit No: OSF 113/2017
• Plaintiff Counsel: Ms Poonam Mirchandani with Mr Ashok Chugani and associate Ms Nurmatha Sundaramurthi and intern Ms Shalini Kumar of M/S MIRCHANDANI & PARTNERS
• Defendant Counsel: Ms June Lim Pei Ling of M/S Eden Law Corporation with Ms Susan Tay of OTP Law Corporation
• Subject Matter: Child abduction Wrongful retention 1980 Hague Convention International Child Abduction Act
• Published date: 21 March 2018

District Judge Christine Lee: Introduction

This case commenced with an application by the Plaintiff Father (“the Father”) against the Defendant Mother (“the Mother”) pursuant to Sections 8, 10 and 11 of the International Child Abduction Act (“the ICAA”) in OSF 113/2017 filed on 3 November 2017 for: the return of the child xxx (“the said child”) under section 8 of the ICAA; interim orders for care and control and access for the Father to the said child under section 10 of the ICAA; and an order to prevent the removal of the said child from Singapore under section 11 of the ICAA.

On 2 February 2018, the Court allowed the Father’s application and ordered the return of the said child to the Republic of Ireland, within 28 days of the date of the Court Order with corresponding Undertakings by both the Father and Mother (“the said Court Order”).

The Mother has appealed against the whole of the Court’s decision in the said Court Order.

On 15 February 2018, the Court granted the Mother’s application for a stay of execution of Clauses 1 and 4 and the corresponding Undertakings in Clauses 5 to 18 of the said Court Order until the outcome of her appeal. This was a Consent Order.

Both Parties are represented in these proceedings.

Brief facts

The Father is an Irish citizen whilst the Mother is a Singapore citizen. The Father and the Mother are not married and had been cohabitating on and off since they met in the United Kingdom in 2003. There is one (1) child from this relationship namely, the said child, (m) (Birth Registration No. xxx) born on 18 August 2015 in Ireland at the Tralee General Hospital.

On 8 February 2017, the Mother came to Singapore with the said child whilst the Father remained in Ireland. In late February 2017, the Mother and Father went to Thailand on holiday with the said child. On 13 March 2017, the Mother brought the said child back to Singapore whilst the Father returned to Ireland.

In July 2017, the Father came to Singapore to take the said child back to Ireland. The Mother refused to allow the Father to do so. On 1 September 2017, the Father filed an application with the Irish Central Authority under the Convention on the Civil Aspects of International Child Abduction which was signed at The Hague on 25 October 1980 (“the Convention”) whereby both Singapore and Ireland are Contracting States¹.

The said child is now 2 years old and is an Irish citizen holding an Irish passport. On 15 January 2018 the said child was granted Singapore citizenship. The Mother had applied for and obtained Singapore citizenship for the said child without the Father’s knowledge or consent.

Interim Orders by the Court

The matter first came before the Court on 3 November 2017, at the ex-parte hearing of the Father’s application in SUM 3781/2017 also filed on 3 November 2017. At the hearing of this application, the Court granted Interim Orders such that: The Mother and/or her agents be restrained from removing the said child from Singapore until such leave is granted by the Court for either the Father or the Mother to do so or with the written consent of the Father. That the Mother hand over all of the said child’s travel and personal documents to the Father or his Singapore solicitors within twenty-four (24) hours from the date of the service of the order. Pending the return of the said child to Ireland and/or to the Fathers care, the Father shall be at liberty to have free and unfettered access to the said child including physical, phone, skype or other forms of electronic access.

On 10 November 2017, the Mother’s then Counsel filed SUM 3901/2017 applying for a stay and/or to set aside the Interim Orders made on 3 November 2017.

At the hearing of this summons application on 21 November 2017, the Court ordered that: The Mother hand over the said child’s passport to the Father’s Singapore Solicitors within 24 hours of the Order on their undertaking not to release the same to either party without the parties’ mutual consent or further Order of Court. Pending final determination of the Father’s application in FC/OSF 113/2017, that the Father shall have reasonable physical access in Singapore to the said child to be worked out between the parties, as well as phone including phone messaging and Skype access to the said child every day at pre-arranged timings by the parties or other forms of electronic access.

Interlocutory applications

On 1 December 2017, the Court was informed by the Father’s Counsel that one of the five (5) Affidavits filed by the Mother, was by the Mother’s Irish Senior Legal Counsel on the question of whether the Father had legal guardianship rights over the said child under Irish law. This was the centrepiece of the Mother’s case. However, until the Mother’s Irish Senior Legal Counsel’s Affidavit had been filed, it was not known by the Father that Irish law could affect the Father’s application for the return of the said child.

The Father’s Counsel also informed that as the Mother had seen several Irish lawyers, they were conflicted when the Father had approached them. Nonetheless, the Father had finally found a lawyer to take his case. However, the earliest date that this Irish Counsel could provide her opinion was 10 January 2018. The Father had not been expecting this challenge over his legal guardianship under Irish law and he needed time to go through his documents and emails over a long period, to support his case. The Father’s Counsel requested an adjournment until 12 January 2018 for the Father to file his Reply Affidavit as well as for him to file his Irish Counsel’s Affidavit to address the issue of the applicable Irish law.

The Court noted the provisions of Article 11 of the Convention which states that:

“The Judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the Applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.”

As such, the Court cautioned Counsel that the Parties might not be able to complete the hearing of the Father’s application within 6 weeks, as the last date for the hearing would need to be by Friday 15 December 2017.

However, the Father’s Counsel submitted that as this was the Father’s request, being the Applicant in this case, there was no issue regarding Article 11 and the Mother was also not prejudiced as she would continue to have the said child over the Christmas and New Year’s period.

The Court also noted that Article 12 of the Convention provides as follows:

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The Father’s Counsel was of the view that the one-year period would only begin to run from July 2017 whilst the Mother’s Counsel was of the view that the one-year period could, at the earliest, possibly run from February 2017.

As such, the Court allowed the Father’s request for the following reasons: (i) If the Article 11 timeline is not met, in the present case the Applicant was the Father and he was the one seeking the adjournment for valid reasons (ii) There was no prejudice to the Mother for the delay as the said child continued to be with her and (iii) the Court agreed that Irish law was relevant in this case and the requested adjournment would not affect the one-year period under Article 12 of the Convention.

The hearing of the Father’s application in OSF 113/2017 was thereby postponed from 11 December 2017 to 25 January 2018.

However, on 22 January 2018, the Mother’s Counsel filed SUM 302/2018 for leave to be granted to the Mother to file a further eight (8) Affidavits²* within eight (8) weeks of the date of the Order to be made therein.

Prior to the summons hearing, the Court had checked that the drafts for five (5) of these requested 8 Affidavits had already been prepared by 24 January 2018. These are the Affidavits indicated with an * in the footnote below. The remaining three (3) requested Affidavits related to the Mother, her mother and sister, all of whom had already filed at least one Affidavit each³.

At the summons hearing on 25 January 2018, the Court noted that the Mother’s Counsel had not considered Rule 45 (4) and (5) of the Family Justice Rules, which showed that there was no provision for the Mother to file these further 8 Affidavits. Nonetheless, the Court allowed the Mother’s Counsel to submit on whether it was relevant and necessary for the Mother to file these additional 8 Affidavits.

At the conclusion of the Mother’s Counsel’s submissions, and after also hearing the Father’s Counsel, the Court assessed that in allowing the Mother’s application, the Court would be going into the merits of the case. This would be going beyond what the Court of Appeal (“the CA”) in the case of BDU vs BDT [2014] 2 SLR 725 stated that the Court should do. In paragraph 26 of that case, the CA noted that the country to which the child has been brought:

“is – pursuant to the Hague Convention – concerned only with the return of the child concerned to his or her country of habitual residence…. It is not concerned with the substantive merits relating to the relevant issues of custody and/or care and control between the parents concerned…”.

In addition, the Court was of the view that the Mother’s Counsel had failed to show that all 8...