Case Summaries

TUC v TUD [2017] SGHCF 12

 

SUPREME COURT OF SINGAPORE

9 May 2017 

Media Summary

TUC v TUD

District Court Appeal No 158 of 2016

 

 

Background to the appeal

1                    This appeal arose from an application by the appellant, the father, under s 8 of the International Child Abduction Act (Cap 143C) (“the ICAA”) for an order that his two children be returned from Singapore to San Francisco, California, USA. The respondent in this appeal was the children’s mother, with whom the children presently reside.

2                    The father, the mother, and their two children are US citizens. The father and the mother were married in India in 2003 and registered their marriage in California in 2004. Their marriage was a strained one even before their two children were born in 2011 and 2014 respectively.

3                    In July 2015, the mother started exploring career opportunities in Singapore, which is where her parents and extended family live. In late 2015, the father, the mother, and the children came to Singapore for a holiday (they arrived on different dates in October and November). The plan at that time was to return to San Francisco, California on 9 January 2016. However, the father had a disagreement with the mother’s parents and returned to San Francisco alone on 6 December 2015.

4                    While on vacation in Singapore, the mother pursued and secured a one-year consultancy contract with a private equity firm which was the main investor in a financial technology start-up in the region. The arrangement was for her to be employed by a company of which her uncle was a director; that company would in turn contract with the private equity firm for her to provide it with consultancy services. Between 12 and 25 December 2015, the father and the mother exchanged a number of emails in which the possibility of a long-term move to Singapore was discussed.

5                    After the private equity firm sent the mother the consultancy contract on 7 January 2016, the father and the mother made plans to relocate to Singapore. The mother went back to California to serve out her two-week notice period with her US employer and returned to Singapore on 2 February 2016. The father obtained permission from his US company to work remotely and came to Singapore on 20 February 2016. The mother’s consultancy contract commenced on 15 February 2016, but the private equity firm terminated it on 14 April 2016. The mother nonetheless continued to work in Singapore for her uncle’s company.

6                    There was no easing of the marital tensions between the father and the mother during their stay in Singapore. On 2 June 2016, the mother told the father that they should file for divorce, and on 8 July 2016, she filed for divorce in California. In the meantime, the father sought legal advice on how to ensure the return of the children to the USA. He returned to the USA on 3 July 2016, and on 20 July 2016, he filed an application in the Family Justice Courts for the return of the children.

The legal issues

7                    According to s 8 of the ICAA, a person who claims that a child has been wrongfully retained in Singapore in breach of that person’s rights of custody under the law of a Contracting State to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) may apply for an order that the child be returned. The USA, like Singapore, is a Contracting State to the Hague Convention. The provisions of the Hague Convention, as set out in the Schedule to the ICAA, have the force of law in Singapore.

8                    According to Article 3 of the Hague Convention, the retention of a child is wrongful if it is in breach of the rights of custody attributed to a person under the law of the country in which the child was habitually resident immediately before the retention. It was not disputed that the father had rights of custody under US law and that the retention of the children in Singapore would be in breach of those rights, and therefore wrongful, if they were indeed habitually resident in the USA. On the other hand, if the children were habitually resident in Singapore, their retention here would not be in breach of any rights of custody under Singapore law.

9                    The father’s application was brought on the basis that the children had been wrongfully retained in Singapore by the mother in breach of his rights of custody under US law. The mother opposed the application on two grounds. First, she argued that her retention of the children in Singapore was not wrongful because the children were no longer habitually resident in the USA at the date of their retention here in the face of the father’s request for them to be returned to the USA; instead, they were habitually resident in Singapore. Second, she relied on an exception in Article 13 of the Hague Convention, which provides that even if a child has been wrongfully retained, a court is not bound to order the return of the child if, among other things, the parent making the application had consented to the child’s retention. The father denied that he had consented to the children’s retention in Singapore. He also argued in the alternative that the mother had deceived him into consenting.

10                In the court below, the District Judge found that the father had consented to the family relocating to Singapore for a period of two years, and that the father had failed to prove that he had been deceived into consenting. The District Judge therefore dismissed the father’s application. The father then filed the present appeal against the District Judge’s decision.

11                The two issues on appeal were whether the habitual residence of the children immediately before their retention in Singapore was the USA or Singapore; and second, if the answer was that their habitual residence remained the USA, whether the father consented to their retention in Singapore.

The court’s decision

12                On the first issue, the court found that the habitual residence of the children remained the USA.

13                The court took the date of wrongful retention to be 2 June 2016, when the mother told the father that she would be filing for divorce. The court noted that where the parents agreed that a child could be brought to another country for an agreed period of time, the child would, in the usual case, be wrongfully retained if he or she were not returned at the end of the period. However, there might also be wrongful retention even before the expiry of the period if the parent who brought the child away intimated to the other parent that the child would not be returned at the end of that period. This could be deduced from the conduct of the parties if it was clear that the conduct was no longer consistent with the terms of the agreement which formed the basis of the child’s consensual removal in the first place.

14                In the court’s view, that was the position in this case. In agreeing to relocate to Singapore, the father’s intention had been to salvage the marriage and keep his family together. He envisioned a stay of at least six months. The family’s stay commenced in February 2016, and the earliest time the agreed period of stay would have expired would have been in August 2016. Nonetheless, even before that, the Mother indicated her intention to file for divorce on 2 June 2016. Her conduct showed that she wanted the children to continue living in Singapore and did not contemplate their returning to the USA. This meant that the basis on which the Father had agreed to the children’s consensual removal to Singapore – to salvage the marriage and to keep the family together – no longer existed. Hence, the wrongful retention of the children in Singapore occurred on 2 June 2016. The question then was whether the habitual residence of the children immediately before that date was the USA or Singapore.

15                The court found that the habitual residence of the children was the USA. The test for habitual residence was a question of fact requiring a court to consider a range of factors which clustered around two main concerns: the degree to which the child was settled or integrated into a country, and the intention of the parents as to whether the child was to reside in that country. In the case of very young children, it would be the intentions of their parents in relocating them and the objective factors of the case which would be significant in determining whether their habitual residence had changed.

16                With regard to the parents’ intentions in this case, the court found that there was no shared intention on the part of the father and the mother to relocate to Singapore. They each viewed the move to Singapore differently. The only reason the father agreed to move was to attempt to rehabilitate the marriage and to be with the children while doing so. He saw the move as a temporary arrangement and contemplated that the family would return to the USA eventually. The mother moved here to pursue her career opportunities and to be close to her family. She was seemingly determined to remain in Singapore for the foreseeable future.

17                Furthermore, the objective circumstances did not support a finding that the habitual residence of the children had changed. The court noted in particular that the length of the children’s stay here was not significant. The effective period of the children’s relocation, for the purposes of assessing habitual residence, was four months – from February 2016, when what was originally envisaged to be a family holiday became a relocation, to 2 June 2016. The court was referred to cases where the habitual residence of children was found to have changed in periods of similar duration, but held that those cases could be distinguished because there, there was a joint intention on the part of the parents to relocate. In this case, the absence of such a joint intention to relocate, coupled with the brief duration of the children’s stay in Singapore, led the court to conclude that the habitual residence of the children remained the USA immediately before 2 June 2016, the date of their wrongful retention.

18                On the second issue, the court found that the father did not consent to the retention of the children in Singapore after 2 June 2016. The court noted that in finding that the father had consented to the children’s relocation to Singapore, the District Judge had relied on a number of statements by the father to the effect that the family was moving to Singapore for two years, along with conduct consistent with those statements. However, in the court’s view, what was important was not the length of the move which the father consented to, but why he did so. Since the father agreed to the move as part of an attempted reconciliation with the mother and to keep his family together, the crucial question was whether he consented to the children remaining in Singapore even if he and the mother were to be divorced. The court found that he did not. The father’s consent to relocate here was not unconditional, and the basis of his consent no longer existed on 2 June 2016 once the mother indicated her wish to file for divorce. In view of this finding, the court considered it unnecessary to determine whether the father had been deceived into consenting.

19                In the circumstances, the court allowed the appeal and ordered that the children be returned to San Francisco, California, USA within 30 days of the date of the judgment.

 

This summary is provided to assist in the understanding of the court’s judgment. It is not intended to be a substitute for the reasons of the court.

 

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