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Abduction of One’s Own Child – Deciphering the International Child Abduction Act of Singapore

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Author: Patrick Tan

This article explains the Hague Convention on the Civil Aspects of International Child Abduction and how it has been applied in Singapore. The first ever reported Singapore Court of Appeal judgment on this Convention, BDU v BDT, was conducted by a team of family lawyers led by Mr Patrick Tan in 2014. This article will examine this leading case, as well as the reported cases on the Hague Convention that came after it.

Introduction

The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) is a multilateral treaty developed by the Hague Convention on Private International law. The Hague Convention was concluded on 25 October 1980 and entered into force between the signatories on 1 December 1983. As of September 2017, 98 states (“Contracting States”) are party to the Convention.

Singapore acceded to the Hague Convention on 28 December 2010 and implemented its obligations on 1 March 2011 with the enactment of the International Abduction Act (Cap 143C, 2011 Rev Ed) (“ICAA”).

The Convention provides for each contracting state to designate a ‘Central Authority’ to discharge certain duties which are imposed by the Convention. As such, the Singapore Central Authority (“SCA”) was set up to work with other central authorities and to facilitate applications for the return of children who have been taken to or from Singapore without permission of the parent who has custody rights.

The aims of the Hague Convention are two-fold and these are set out in Article 1. Its primary objective is to secure the prompt return children wrongfully removed to or retained in any Contracting State. Secondly, to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Put simply, the Convention provides a procedure for the swift return of a child who has been wrongfully removed to or retained in a Contracting State to the State of the child’s habitual residence for the court there to determine legal rights of custody and or access.

As put by Professor Leong Wai Kum[1], the objectives of the Hague Convention are fairly limited. It may be understood as ‘an agreement among nations on ‘jurisdiction selection’ in matters relating to custody and care of a child’. The court of the country to which the child has been brought is concerned only with the return of the child concerned to his or her country of habitual residence from which he or she was first abducted, to entrust the court of habitual residence with the task of resolving the disputes between parents, whether it be custody or care and control or other children related matters.

It is trite that where a case involves children, their interests are to be of paramount consideration. In order to ensure that this general jurisdiction selection under the Hague Convention does not override a child’s interests, limited exceptions to the general rule may be raised by the party opposing the application to give effect to the paramount interests of the children in exceptional situations by the court of the country to which the child was abducted. Such exceptions can be found in Article 13 and will be considered in more detail below.

Having only recently acceded to the Hague Convention, the first case to be heard in Singapore was that of BDU v BDT[2] in 2014. Being the first case of its kind, the Court of Appeal had to rely on cases from the other Contracting States in order to arrive at its decision. This case now provides a comprehensive guide as to what the court will look at when an application is made pursuant to the Hague Convention or ICAA in Singapore.

The Case of BDU v BDT

It would be useful to first understand the facts of BDU v BDT briefly before proceeding to examine the legal principles. This case concerned a German father applying for the return of his young son who was at the time of the application being retained in Singapore by his Singaporean wife. The family of 3 had travelled from Germany to Singapore in early 2012 in order to celebrate Lunar New Year with their Singaporean relatives. On their scheduled departure date, only the father returned to Germany, expecting his son and his pregnant wife to follow soon after.

In the weeks that followed, however, the mother and child failed to return to Germany. This sparked the applications under the Hague Convention in Singapore and Germany for the return of his child to Germany. In Singapore, the father commenced an action under section 8 of the ICAA seeking the return of his son who was then in Singapore. This case thus began its passage in the Singapore courts, beginning in the District Court[3] before being heard again in the High Court[4] and finally at the Court of Appeal[5], the highest court of the land.

Having heard all the parties’ cases and arguments, the Court of Appeal ordered the return of the child as the father was able to establish a prima facie case. The court was also satisfied that the child’s habitual residence was Germany, there was a wrongful retention of the child, and that there was no grave risk that the child’s return would expose the child to physical or psychological harm to otherwise place the child in an intolerable situation.

Key Legal Issues

In an application for a return order under section 8 of the ICAA, the court must order the return of the child if the applicant satisfies the court that the child is in the Contracting State and the following circumstances exist: (a) the child is under 16 years of age[6]; (b) the removal or retention is wrongful[7]; and (c) a period of less than 1 year has elapsed from the date of wrongful removal or retention[8]. Notwithstanding that the above can be proved, the court is not bound to order the return of the child if any of the exceptions under the Convention[9] is established by the opposing party.

Several key issues pertaining to an application under the Hague Convention were discussed in the case of BDU v BDT. Based on the facts of the case and arguments put forth by parties, the Court of Appeal only had the opportunity to consider the issue of ‘grave risk’ in detail. Other key issues were, however, discussed in the lower courts as well as the limited cases that came after 2014. These key issues are discussed below.

Wrongful Retention of the Child

In an application under section 8 ICAA, the court must be satisfied that removal or retention of the child in question is wrongful before the court will order a return. Removal or retention is wrongful if it breaches the rights of custody under the law of the Contracting State of the child’s habitual residence and that these rights were exercised at the time of the removal or retention[10].

In BDU v BDT, the child was retained in Singapore by his mother, even though they were supposed to return to Germany. The father had rights of custody over his son under German jurisdiction and was exercising them at the point of retention. The son’s retention in Singapore was in breach of his right of custody and therefore, the child was wrongfully retained in Singapore.

Child’s Habitual Residence

Under the Hague Convention, the habitual residence of the child is the sole criterion in determining which court should decide on the child’s substantive welfare. This is based on the premise that the court of habitual residence is generally best placed to decide on the welfare of the child[11]. It should be noted that the term ‘habitual residence’ is not defined anywhere in the Convention or ICAA. This is to ensure that the court can have the flexibility to determine the child’s country of habitual residence based on the evidence presented in each individual case.

The question whether a person is or is not habitually resident in a specific country is a question of fact to be decided by reference to all the circumstances of the case. In general, where the case concerns the relocation of a young child, or where the time spent in the new jurisdiction is relatively short, the joint or shared intentions of the child’s parents can be a significant factor in pointing towards whether there is a change in the habitual residence of the child[12].

In BDU v BDT, it was clear that husband and wife came to Singapore with the sole intention to celebrate Lunar New Year. They had no intention to reside in Singapore in the long run. There was no settled purpose for the child to remain in Singapore. As such, Germany remained the place of the child’s habitual residence.

Grave Risk of Harm or Otherwise

This issue was considered extensively by the Court of Appeal in BDU v BDT. As mentioned above, a court is not required to order the return of a child if certain exceptions can be established by the party opposing the application for return. One such exception is found in Article 13(b) which states that an exception applies if it can be shown that, ‘there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. It should be noted that exceptions will not be lightly invoked. In fact, the party seeking to invoke one or more of the exceptions bears the burden of proof and it is a stringent burden to discharge.

The mother in this case had argued that her own mental state and health had prevented her from returning to Germany with her son and this separation, if happened, would adversely impact her son and herself. However, the Court of Appeal was not satisfied that she has discharged her burden of proof under Article 13(b) and concluded that an abducting parent could not seek to rely on her own conduct in order to create a situation of grave risk. They also found that the allegations of physical abuse by the father had no effect on the application as no violence was ever directed at the child.

Consent

Another exception is found in Article 13(a) of the Hague Convention concerning the issue of consent. The issue of consent was not considered in the case of BDU v BDT as the father’s actions made it clear that he did not consent or even subsequently acquiesce to the retention of his son in Singapore.

As provided in Article 13(a), a court is not bound to order the return of the child if the person who opposes the return establishes that the applicant had consented to or subsequently acquiesced in the removal or retention of the child. The recent case of TUC v TUD[13] was the first occasion the exception in Article 13(a) was invoked. As such, the High Court had the opportunity to consider the legal principles surrounding consent. The court in this case clearly stated that the burden of proof is on the opposing party to show on a balance of probabilities ‘clear and compelling’ evidence of consent to his child being removed or retained in a different country. Where the court is put in a position to have to draw inferences of consent, such inferences should not be drawn lightly.

Conclusion

Despite being relatively new in Singapore, the legal principles to be applied in cases brought under the Hague Convention or the ICAA are clear. The courts in Singapore draw on the wealth of precedents and principles from the courts of other Contracting States to aid them in their decisions. The SCA too has seen success in locating and helping to facilitate the return of abducted children where applications are made under the Convention.

 

[1] Leong Wai Kum, Elements of Family Law in Singapore (LexisNexis, 2nd Ed, 2013), at 270

[2] [2014] 2 SLR 725

[3] BDT v BDU [2012] SGDC 363

[4] BDU v BDT [2013] 3 SLR 535

[5] BDU v BDT [2014] 2 SLR 725

[6] Article 4 of the Hague Convention

[7] Article 3 of the Hague Convention

[8] Article 12 of the Hague Convention

[9] Article 13 of the Hague Convention

[10] Article 3 of the Hague Convention

[11] TDX v TDY [2015] 4 SLR 982

[12] TUC v TUD [2017] SGHCF 12

[13] [2017] SGHCF 12

 

Written by: Patrick Tan

 

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