Children – International Aspects

Children – International Aspects

Can the custodial parent move to another state/ country without the other parent’s consent?

The custodial parent cannot take and move a child who is subject to a custody order out of Singapore, except with the written consent of the other parent or the leave of court (s 126(3), Women’s Charter).

 

If the court is making a decision on relocation of a child abroad, what factors are taken into account?

In considering relocation applications, the welfare of the child is paramount and this principle overrides any other consideration. (s 3, Guardianship of Infants Act; BNS v BNT [2015] SGCA 23; TAA v TAB [2015] SGHCF 1). The court balances the following factors:

■ the effects on the child if the (reasonable) wishes of the parent with primary care wishing to take the child abroad are interfered with – in particular whether there would be transference of negativity from the parent (whether due to emotional or physical instability) onto the child; and

■ the impact on the child, on account of the child’s loss of relationship with the parent left behind.

 

In practice, how rare is it for the custodial parent to be allowed to relocate internationally/interstate?

Until recent years, such applications have generally been allowed so long as the custodial parent’s desire to relocate is not unreasonable or founded in bad faith. The Court of Appeal and High Court have since criticised this approach; the custodial parent’s reasonable wishes is no longer a determinative factor, but is only one of the factors among other composite factors, particularly, the loss of relationship with the left-behind parent depending on the strength of the existing bond between that parent and the child (BNT v BNS [2014] 4 SLR 859; BNS v BNT [2015] SGCA 23; TAA v TAB [2015] SGHCF 1).

 

How does your jurisdiction deal with abduction cases? For example, is your jurisdiction a party to the Hague Convention?

In respect of international abduction cases, the International Child Abduction Act came into force on 1 March 2011. It was enacted to fulfil Singapore’s obligations under the Hague Convention on Civil Aspects of International Child Abduction (the “Hague Convention”) which she acceded to on 28 December 2010. The Ministry of Social and Family Development is the designated Central Authority to implement Singapore’s obligations under the Convention. There are few reported decisions under the Convention. Singapore subscribes to the Convention policy of securing the prompt return of a child who had been removed in breach of custody rights effectively exercised under the law of the country of his habitual residence, subject to judicial discretion when the exceptions in Art 13 of the Hague Convention have been satisfied (BDU v BDT [2014] SGCA 12). The Singapore courts will not examine the substantive merits of custodial disputes, with the presumption that the country of habitual residence would decide such matters in the child’s paramount interests (BDU v BDT). Undertakings are required as a prerequisite for the return of the child; this acts as a protective measure to ensure that justice and fairness is achieved (BDU v BDT).

 

In determining the child’s country of habitual residence, the court will consider whether the child was habitually resident in that place immediately before the date on which the allegedly wrongful removal or retention of the child is said to have taken place (TUC v TUD [2017] SGHCF 12). The country of habitual residence of the child is determined by considering two things: the degree to which the child is settled or integrated in that country, and the joint intention of the parents as to whether the child is to reside in that country (TUC v TUD). The weight to be placed on each concern is dependent on the circumstances of each case (TUC v TUD). Regarding the exception of consent under Art 13(a) of the Hague Convention, the parent seeking to invoke the exception must show on a balance of probabilities that the left-behind parent has unequivocally consented to the removal or retention of the child. The evidence provided must be clear and compelling (TUC v TUD).