Vet v Veu

• Jurisdiction: Singapore
• Judge: Debbie Ong J
• Judgment Date: 14 February 2020
• Court: High Court (Singapore)
• Docket Number: Originating Summons (Guardianship of Infants Act) No 1 of 2019
• Date: 14 February 2020

VET

and

VEU

[2020] SGHCF 4

Debbie Ong J

Originating Summons (Guardianship of Infants Act) No 1 of 2019

High Court (Family Division)

Family Law — Guardianship — Father applying for same-sex partner to be appointed guardian of biological children — Father applying for joint custody and shared care and control of biological children for him and same-sex partner — Whether court had general power to appoint guardians under s 5 Guardianship of Infants Act (Cap 122, 1985 Rev Ed) — Whether appointment of guardian in children's welfare — Whether orders for custody and care and control in children's welfare — Whether wardship jurisdiction should be exercised — Section 5 Guardianship of Infants Act (Cap 122, 1985 Rev Ed)

Held, dismissing the application:

(1) Parental responsibility to safeguard the welfare of children was not dependent on the married or unmarried status of her parents. Neither was it a voluntarily delegable responsibility, unless the parent gave the child up for adoption in which case that parent was no longer the parent of the child, while the new adoptive parents had parental responsibility instead. On the other hand, decisions on day-to-day matters – matters such as what the child could eat for lunch and whether she could spend time at the playground – could be delegated to persons entrusted with the physical care of the child: at [16] to [18].

(2) The orders which the plaintiff sought went much further than giving the defendant authority to make day-to-day decisions for the children. While the instrument of appointment could set out limitations on the authority of the guardian, the parties did not suggest or seek any restrictions on the defendant's authority. When the guardian's authority was not limited, the appointment of a guardian over children resulted in the guardian stepping into the shoes of a parent to exercise the authority that the parent naturally possessed over the child. To confer on another non-parent the broad authority to make decisions for one's child such as whether the child should undergo major medical treatment or consent to organ donation was a very serious matter and might not be in the welfare of the child; one obvious observation was that having more adults wield the same authority over a child would require sturdy co-operation amongst them: at [19] and [20].

(3) Section 5 of the GIA did not empower the courts to appoint guardians outside of the circumstances in ss 6 and 10. It was evident from the statutory regime that the purpose of the GIA was to enable the courts to make orders for the welfare of the children without intervening unnecessarily in a parent's parental responsibility. Further, the English equivalent of s 5 was not interpreted to encompass the appointment of guardians. Thus, s 5 ought not to be interpreted in the way suggested by the plaintiff, which was to confer on the courts a general and broad discretion to appoint guardians: at [32] and [37].

(4) This did not mean that the court could appoint guardians only in the limited circumstances set out in ss 6 and 10 of the GIA. The court could also appoint guardians when exercising its wardship jurisdiction, provided that it was necessary for the protection of the child. However, the defendant in the present case could not have been appointed guardian pursuant to the court's wardship jurisdiction because there was no evidence that the plaintiff's children were in such need of the court's protection: at [39] and [43].

(5) In any event, the appointment of the defendant as a guardian was not necessary for or in the children's welfare. Necessary, urgent, life-saving medical treatment would not be withheld and where the need was not too urgent, a parent's consent could be obtained through various means of modern communication. Further, the plaintiff already planned to apply for a long-term visa for the daughter. Thus, the “visa runs” might no longer be necessary. The defendant also confirmed that he did not face any issues when he brought the plaintiff's daughter for the first visit for vaccinations. It thus appeared that the plaintiff's application was driven by convenience, not necessity. Convenience alone was not a reason for a friend, cousin or grandmother to be appointed a guardian: at [46] and [48].

(6) The plaintiff's application for joint custody and shared care and control of the children for himself and the defendant was also dismissed. Guardianship, custody, care and control were legal constructs used only when it was necessary for the court to intervene in the balance of parental authority and responsibility arising from natural relationships between parent and child. Such orders were necessary where the relationship between parents or guardians had broken down to ensure that appropriate care arrangements were in place following the breakdown. Where orders were necessary, they should be made after full consideration was given to the impact such orders would have on the welfare of the child. The court should be slow to make orders that disturbed the balance of parental authority and responsibility. Indeed, not making a custody order could also be in the welfare of the child: at [50], [51] and [54].

(7) The parties had been caring for the children without any order for guardianship, custody or care and control. Indeed, on the plaintiff's own evidence, the children were thriving under their care, and there was no reason to doubt his assertion. Therefore, it was not necessary for the court to make the orders sought by the plaintiff: at [55].

[Observation: Resorting to the court's wardship jurisdiction could lead to uncertainty and involve a more cumbersome regime of protection, and hence it was preferable to provide a clearly-defined statutory regime through which non-parents could apply for the necessary orders for the welfare of children. Provision in the law that enabled certain adults (such as grandparents or relatives who had cared for the children) to seek specific and limited authority to make important and necessary decisions for the children – such as enrolling the children in school – would protect the children's welfare in instances where the parents failed to discharge such responsibility: at [58]].

Case(s) referred to

Aliya Aziz Tayabali, Re [1992] 3 SLR(R) 894; [2000] 1 SLR 754 (refd)

C, Re [1989] 1 All ER 395 (refd)

CX v CY [2005] 3 SLR(R) 690; [2005] 3 SLR 690 (refd)

G, Re [2004] 1 SLR(R) 229; [2004] 1 SLR 229 (refd)

L v L [1996] 2 SLR(R) 529; [1997] 1 SLR 222 (refd)

Lim Chin Huat Francis v Lim Kok Chye Ivan [1999] 2 SLR(R) 392; [1999] 3 SLR 38 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (refd)

TAU v TAT [2018] 5 SLR 1089 (refd)

TSF v TSE [2018] 2 SLR 833 (refd)

UKM v AG [2019] 3 SLR 874 (refd)

UMF v UMG [2019] 3 SLR 640 (refd)

UNB v Child Protector [2018] 5 SLR 1018 (refd)

Facts

The plaintiff and the defendant were a same-sex couple. They were married in the United States (“the US”) in 2018. Sometime during the course of their relationship, they desired to have children. A boy was conceived through in-vitro fertilisation and birthed in the US in 2013 by a surrogate mother. The plaintiff was the biological father of the boy. In a bid to obtain Singapore citizenship for the boy, the plaintiff applied to adopt the boy. His application was granted by a three-judge coram of the High Court (Family Division) in December 2018. With the adoption order, the plaintiff successfully applied for a student pass for the boy. At the same time, the parties decided that they wanted to raise another child. To this end, they entered into another surrogacy agreement. In early 2019, a girl was born through a surrogate mother, who was based in California. The plaintiff, who was the biological father of the girl, legally adopted her in the US. At the time of the application, the parties provided care for both children, with assistance from a domestic helper.

The plaintiff applied to the Family Court for the defendant to be appointed a guardian of both children under s 5 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“GIA”). He also applied for both parties to have joint custody and shared care and control of the children. The defendant, who had no biological links with the two children, consented to the application and indeed desired to be so appointed. The plaintiff submitted that the application was necessary because the defendant, who had no legal relationship with either child, was unable to undertake his role as day-to-day caregiver of the children. The plaintiff highlighted that the defendant was unable to provide consent for medical procedures on behalf of the children. As a result, the plaintiff had to be present for the children's medical procedures (such as vaccinations for the baby girl). Further, the plaintiff had to personally accompany the girl through immigration during their quarterly “visa-runs”, ie, leaving and returning to Singapore to have the girl's tourist visa renewed.

Legislation referred to

Children and Young Persons Act (Cap 38, 2001 Rev Ed)

Guardianship of Infants Act (Cap 122, 1985 Rev Ed) s 5 (consd); ss 3, 6, 6(1), 6(2), 6(3), 7, 10

Guardianship of Infants Ordinance (SS Ord No 11 of 1934)

Interpretation Act (Cap 1, 2002 Rev Ed) s 9A

Women's Charter (Cap 353, 2009 Rev Ed) s 46(1)

Children Act 1989 (c 41) (UK)

Guardianship of Infants Act 1886 (c 27) (UK)

Guardianship of Infants Act 1925 (c 45) (UK)

Guardianship of Minors Act 1971 (c 3) (UK) ss 3, 5, 6, 9

Koh Tien Hua and Shaun Ho (Eversheds Harry Elias LLP) for the plaintiff;

Defendant in person.

14 February 2020

Debbie Ong J:

Introduction and background facts

1 The key issue raised in the present case is whether and if so when, having regard to the philosophy and nature of parental responsibility, a fit parent may voluntarily delegate or share parental responsibility over her child with a non-parent through the appointment of the latter as a guardian.

2 The plaintiff and the defendant are a...