UMF v UMG and another

• Jurisdiction: Singapore
• Judge: Debbie Ong J
• Judgment Date: 12 December 2018
• Neutral Citation: [2018] SGHCF 20
• Citation: [2018] SGHCF 20
• Defendant Counsel: The respondents in person.
• Published date: 19 December 2018
• Hearing Date: 11 September 2018
• Plaintiff Counsel: Mohamed Hashim bin Abdul Rasheed (A Mohamed Hashim)
• Date: 12 December 2018
• Court: High Court (Singapore)
• Docket Number: HCF/District Court Appeal No 44 of 2018
• Subject Matter: Locus standi,Non-parents,Family Law,Wardship,Guardianship,Section 5 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed)

Debbie Ong J: Introduction

The present case raised the important question of how the law of guardianship should be applied to parents and non-parents and how the appropriate balance of authority can be preserved between both groups of adults.

The appellant in this case is the grand-aunt of a four-year-old child, whom I shall refer to as “H”. As the appellant was the plaintiff in the proceedings below, I shall refer to her as “the Plaintiff”. The first and second respondents are the child’s parents, whom I shall refer to individually as “the Mother” and “the Father”, and collectively as “the Parents”. It was undisputed that the Plaintiff had been caring for H since he was seven days old.

In the court below, the Plaintiff applied for custody and care and control of H. The Parents filed a separate application for the return of H, their biological child. The District Judge (“DJ”) dismissed the Plaintiff’s application and ordered that H be returned to the Parents. To facilitate the transfer of care, the DJ further ordered that the Parents were to have access to H every weekend from Saturday 10am to Sunday 7pm until 18 June 2018, after which he was to be returned to the Parents. The Plaintiff appealed against the DJ’s orders. By the parties’ consent, the order that H was to be returned to the Parents by 18 June 2018 was stayed pending the determination of this appeal.

After considering the parties’ submissions and the evidence, I dismissed the appeal. As this case raised novel legal issues, I now provide fuller grounds of my decision.

Background facts

The Parents were married in Singapore sometime around November 2010. Prior to the marriage, the Mother had one child from another relationship. The Parents subsequently had five children together. H, who was born on 26 July 2014, is the third of their five children.

On 3 August 2014, when H was around seven days old, the Plaintiff met with the Father at the residence of his parents, ie, H’s paternal grandparents. The Plaintiff stated that the Father “was in tears and appeared lost”. At that meeting, the Father handed H over to the Plaintiff, who then brought H home. The reason behind the Father’s decision was disputed – the Father claimed that he was under “duress” and experiencing “marital problems”, while the Plaintiff claimed that the Parents had abandoned H or were unable to care for him.

The Plaintiff and the Father met again on the following day, ie, 4 August 2014. During that meeting, the Father then signed a “Letter of Guardianship” (“the Letter”), which was drafted by the Plaintiff. It stated:

Letter of Guardianship

(Personal)

BEFORE ME, the undersigned authority, personally came and appeared:

[The Father] who did say that they are the parent of [H] who is a minor. They do hereby give permission to [the Plaintiff] commencing on [3 August 2014], Sunday 11:52:08 to have full rights of guardianship, including such matters as to authorize medical treatment of any necessary nature, sign documents of any type, obtain lodging and do all things that I as a parent and/or legal guardian may do.

[Witness’s signature] [The Father’s signature]

Pertinently, while the Letter alluded to the consent of both parents, the Mother did not sign it. The Mother only found out later that the Father had signed the Letter.

On the next day, ie, 5 August 2014, the Mother appeared at the Plaintiff’s residence with police officers, demanding that the Plaintiff return H. Through the Plaintiff’s sister-in-law, the Mother was informed that the Father had consented to entrusting H to the Plaintiff, and that the Plaintiff intended to “adopt” H. The Mother eventually left without H. The following day, ie, 6 August 2014, the Father requested that the Plaintiff return H to him, but she refused.

H remained in the Plaintiff’s care until 12 August 2017, when he was handed over to the Mother. The Plaintiff had thought that H would be returned to her on the same day, but the Mother did not do so. Aggrieved, the Plaintiff filed her application for custody and care and control of H on 25 August 2017. Thereafter, the Mother returned H to the Plaintiff’s care on 6 September 2017.

Decision below

The Plaintiff applied for custody and care and control of H. The DJ dismissed her application on the sole ground that she had no locus standi to make the application under s 5 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“GIA”), which provides:

Power of court to make, discharge or amend orders for custody and maintenance of infants

5. The court may, upon the application of either parent or of any guardian appointed under this Act, make orders as it may think fit regarding the custody of such infant, the right of access thereto and the payment of any sum towards the maintenance of the infant and may alter, vary or discharge such order on the application of either parent or of any guardian appointed under this Act.

[emphasis added]

The DJ held that on a literal reading, only parents or guardians appointed under the GIA may apply under the above provision. She noted that the Plaintiff did not belong in either category of adults. The DJ also relied on the decision of the High Court in CZ v DA and another [2004] 4 SLR(R) 784 (“CZ”), where it was held that “a grandmother is, without more, not entitled to apply for an order for access to her grandchild”: at [8].

The DJ was further of the view that she was not bound by the decision of the High Court in Lim Kok Chye Ivan and another v Lim Chin Huat Francis and another [1996] 3 SLR(R) 83 (“Lim Chin Huat Francis (HC)”) and the decision of the Court of Appeal in Lim Chin Huat Francis and another v Lim Kok Chye Ivan and another [1999] 2 SLR(R) 392 (“Lim Chin Huat Francis (CA)”). Lim Chin Huat Francis (CA) defined “guardian” as “a person who has charge of or control over a child at the material time”, and held that the label “lawful” is “simply tagged onto a guardian who has been adjudged and recognised by law as entitled to care and custody of the child and who had, at some point of time in the child’s life, care and custody of the child”: at [54] and [55]. The DJ noted that that case concerned the definition of “lawful guardian” under s 14 of the GIA. While s 14 has since been amended from the time of the decision in Lim Chin Huat Francis (CA), there is no material difference in the substance of the provision. Section 14, as it stands today, provides:

Placing infant in custody of guardian

14. Where an infant leaves, or is removed from, the custody of his lawful guardian, the court may order that he be returned to such custody, and for the purposes of enforcing such order, may direct the bailiff to seize the person of the infant and deliver him into the custody of his lawful guardian.

[emphasis added]

The DJ held that Lim Chin Huat Francis (CA) was inapplicable because the relevant provision in the present case was s 5 of the GIA, which does not refer to a “lawful guardian” but instead refers specifically to “any guardian appointed under this Act [ie, the GIA]”. Therefore, since the Plaintiff was not a court-appointed guardian, she had no locus standi to make an application under s 5.

Parties’ arguments

The Plaintiff’s arguments in this appeal largely resembled those which had been rejected by the DJ. She reiterated that she was “entitled to seek relief under GIA generally and under Section 5 GIA specifically by reason of her status as a lawful guardian of [H]”. She argued, citing Lim Chin Huat Francis (HC), that “Section 5, and by extension GIA as a whole, do not inform of the nature or form of the application to be made under it” [original emphasis omitted]. She submitted that both Lim Chin Huat Francis (CA) and Lim Chin Huat Francis (HC) were authorities for the proposition that the GIA “does not impose locus standi requirements for applications under it” [original emphasis omitted].

The Plaintiff further submitted that s 17(1)(d) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) confers on the High Court “jurisdiction over the appointment of guardians and property and persons of infants”. Section 17(1)(d) provides:

Civil jurisdiction — specific

17.—(1) Without prejudice to the generality of section 16, the civil jurisdiction of the High Court shall include —

…

(d) jurisdiction to appoint and control guardians of infants and generally over the persons and property of infants;

…

She pointed out that the above provision does not set out the manner in which the court’s jurisdiction is to be invoked and exercised. She submitted that the court’s jurisdiction under this provision “can only be excluded by clear words in GIA and exclusion of jurisdiction will not be inferred when the statute is silent”. She further argued that where the welfare of a child is engaged, “the Court’s power is actuated by the primacy and paramountcy of the welfare of the child and no other, least of all the form the action takes” [original emphasis omitted]. She concluded, therefore, that the DJ was wrong to dismiss her application on the ground that she had no locus standi to make the application.

I note that the Plaintiff cited a New Zealand case on the court’s wardship jurisdiction in support of her submissions on s 17(1)(d) of the SCJA. However, no submission was made on whether the Singapore courts possess such jurisdiction or how such jurisdiction can be invoked.

The Plaintiff accepted that she was not a court-appointed guardian under the GIA. However, she highlighted that H had been in her care for almost his entire life, and was close to her. She emphasised that the Father had willingly given him up by signing the Letter, and pointed out that prior to June 2018, the Parents had only met H four times. However, the Plaintiff accepted that the Parents were not unfit parents.

The Parents, who...