This article is written by Emelia Kwa & Isabel Chew Lau, associates of OTP Law Corporation
If you want a grim illustration of how cross-border child cases can devolve, you need look no further than the recent Court of Appeal case of TSF v TSE. That case concerned an epic battle between parents for the custody of their child. It was a battle that spanned four years and two jurisdictions: Singapore and England. There, the parents had brought the child from England to Singapore when he was around a year old, to be looked after by his paternal grandparents while the mother completed her studies. Half a year later, the parents returned to Singapore, supposedly to pick the child up and return to England. But this was not to be. Unbeknownst to the mother, the Singaporean father had hatched a plan to initiate divorce proceedings in Singapore and obtain sole custody, care and control of the child. He also sought to prevent the mother, who was a Mongolian national, from removing the child from Singapore. These applications were served on the mother upon her arrival in Singapore, catching her by surprise. Thus began a lengthy series of applications. Though Singapore was not yet a Hague Convention country, the mother elected to bring proceedings in England for the return of the child. The English court did indeed grant her applications and ordered the return of the child not once, but more than ten times. Yet, the multiple orders were for naught. The father first appeared and took out multiple applications to contest the English proceedings. When this failed, he deigned to follow the English orders completely, even when he was found to be in contempt of court. He and his parents simultaneously continued proceedings in Singapore in a bid to keep the child here. The mother was largely absent from these proceedings until she filed an application here for an order mirroring the terms of the English order (what is known as a “mirror order”) for return of the child to England. It was this application that eventually took centre stage in the tussle. Other than the actual dispute over relocation itself, both parents faced other legal obstacles that complicated matters. Interspersed with the main proceedings were criminal proceedings faced by the father. For one, he was tried and acquitted for his alleged marital rape of the mother. He was also jailed for his false statement to the Singapore Consulate-General in Dublin that he had lost his passport. In fact, his passport had been impounded by the English courts, and he was only able to return to Singapore after apparently travelling as a stowaway to Turkey and obtaining a travel permit back to Singapore. The mother, too, was jailed out of her desperation to retrieve the child from Singapore. She had hired an agency operated by a former mercenary to forcibly take the child and bring him back to England. They entered Singapore illegally and, after a scuffle, managed to remove the child from his grandparents. However, this attempt was ultimately thwarted by the police. Following both parents’ offences, they were unable to freely travel to the jurisdiction where the other parent was residing. As the Court of Appeal identified, this sadly meant that “the options available to this court regarding the child’s care arrangements are presented in stark terms, since the parent not granted care and control of the child is likely to have limited interaction in person with the child.Overturning the decisions of the judges in the High Court and Family Court, the Court of Appeal ultimately gave judgment in favour of the father, finding that awarding care and control of the child to the father in Singapore was in the best interests of the child.
The Court’s decision
Why was the father successful?
Primarily, when deciding appeals involving the welfare of children, the court highlighted that they must be slow to overturn a decision just because they did not agree with it. Instead, decisions should only be reversed or varied if it was exercised on the wrong principles, or was plainly wrong (for e.g., if the judge had exercised his discretion wrongly).
Since a child’s welfare was at the heart of the case, the welfare principle was of utmost importance. This meant that court should determine what is in the best interests of the child in relation to the following non-exhaustive factors:
- Relationship with parents and caregivers
This was a neutral factor since both parents had shared a strong bond with their child and both had done their best to remain involved in his life.
- The child’s needs and the capacity to prove for them
Here, the emotional, developmental and material needs of the child were considered. Despite the physical distance between the mother and child, they were able to maintain a warm relationship. However, the father seemed better equipped to handle all three needs. This was since the child had been raised in Singapore by the father and the paternal grandparents, all of whom were emotionally close with the child. The child had also been coping well with the autism intervention programmes in Singapore. The father also had a full-time job. In contrast, the child’s only emotional support in England would be the mother, the court could not assess the adequacy of the autism programmes in England and she also lacked stable employment.
- The parents’ character and conduct
The court found that the father’s behaviour was worse in comparison. This was since he had misled the mother as to his intention to return to Singapore originally, he ignored the need to preserve the bond between the mother and child and seemed unable to assess the correctness of his actions.
Nevertheless, due to the court’s intervention, he has since realised that the child should have regular contact with the mother. This resulted in daily Skype session between mother and child as well as liberal physical access to the mother when she is in Singapore. This gave the court hope that with suitable encouragement and incentives, the father would be a better role model for his son and assess what is in the child’s interests.
- Ensuring a continuing co-parental relationship
In general, it is in a child’s best interests for him to maintain a good relationship with both parents. In this regard, the court favoured the mother as she seemed to recognise that the father should have a role in the child’s life. She had undertaken to facilitate regular Skype access between the child, the father and the paternal grandparents.
In contrast, the father and the paternal grandparents had taken active steps to separate the mother from the child previously. The father also had a poor track record in facilitating the mother’s access to the child.
- Impact of change and need for stability
The courts emphasised that a child needs stability in his relationship and environment. This case was special in that the court also had to consider the child’s autism spectrum disorder and the additional adjustment difficulties his condition may cause him to have. Overall, this is an intensely fact-sensitive exercise to undertake.
This factor weighed heavily in favour of the father since moving to England with the mother would mean a different country, climate, social environment and the lack of all aspects of settled daily life created over five years. Moreover, the Court Counsellor had serious concerns about the child’s ability to adapt to a drastic change of environment and caregiver. This was especially since he had made good progress in his intervention programme, and disruption to it may result in his progress stagnating.
- Other considerations
The father and child were both Singapore citizens and thus had no threat of disruption to their lives. In contrast, the mother was neither a citizen of the United Kingdom nor Singapore, which made it uncertain if she would have a stable place to stay.
The child would also be subject to national service even if he was sent to live overseas with his mother. This would make it difficult for him to adjust to an unfamiliar environment and pose the threat of him becoming a defaulter, which attracts criminal liabilities.
Lastly, the child appeared quite content with his living and family conditions and did not feel a need or desire to visit his mother in person. The court recognised that this may change as he grows older.
In conclusion
Relocation cases can be complicated and be long fought – not just because of the difficulties each of the parents may face but also because of the many facts and relationships that the courts must consider when making their decisions. This case serves as a reminder: no matter how difficult the case may be, at the end of the day, it is the court’s priority to figure out what they deem to be in the child’s best interests even if it’s between a rock and a hard place.