Article By: PracticeForte Advisory Affiliate Ms. Amy Lim

Cross-border marriages are becoming increasingly common in a globalised world.  Unfortunately, when some of these marriages break down, an application may have to be made in Court if one parent wishes to relocate with the children.

This gives rise to the proverbial “between a rock and a hard place” decision which the Court must make. Do they decide in favour of the parent seeking to (typically) return to a home country, thus leaving one parent behind? Or do they decide against the relocation, thus forcing a party who wishes to leave to stay behind in a place they may have no family support or slim chances of employment?

In the High Court decision of UFZ v UFY, the Court considered various factors before upholding the lower court’s decision to allow the mother’s application to relocate back to her home town in the United Kingdom (UK) with 3 young children aged 9, 11 and 14.

Briefly, the case involved a couple who moved from the UK to Singapore in 2008 due to the father’s employment, with their 2 older children.  A third child was born in 2009.  Taking quickly to Singapore, they applied for permanent residency in 2009.  In 2013, the father and 3 children obtained Singapore citizenship.  In order for the father to obtain his citizenship, he had to renounce his UK citizenship whilst the children were allowed to retain dual citizenship.

Relationship between parties soured and the mother filed for divorce in 2014.  Orders were made on the ancillary matters giving the mother care and control of the children and allowing her to relocate back to her hometown in the UK in January 2017.  The father was given liberal access to the children.  The father appealed against the decision.

The Judge took pains to stress that in any decision relating to the children, the welfare of the child is paramount.  Further, it was also underscored that any application would be decided on its own facts.

From a reading of the case, it appears that the Court were influenced by the fact that the father travelled extensively for work thus leaving the mother to essentially be the primary caregiver of the children if they remained in Singapore.  This would prevent her from obtaining employment.  However, if she were to return to the UK, she would have strong family support which would enable her to return to the workforce.

Whilst the children had spent most or all their lives in Singapore, the Judge noted that they had expressed a “strong desire” to move to the UK.  This was especially so after a 2-week visit to the UK where they met with their mother’s extended family and also visited a school there.   The children also expressed a liking for the different learning environment.  It is pertinent to note that the children were in local schools in Singapore and were not doing well.

The mother had applied for an exit permit for the eldest son in order to comply with his National Service requirements and the son himself was aware that he would be required to return to Singapore in a few years.

In addition to the above, the Judge also took into account the fact that the mother had previously applied to relocate in 2014 but this was not granted then.  As such, it was felt that the mother and children had already been prepared for some years to make the move.

As for the father, the Judge noted that the father had rented an apartment in the same condominium in order to stay close to the children and was making efforts to build a relationship with them.   Without placing too much emphasis on it, it was also observed that the father had since repartnered and the children had apparently refused to see the father due to the presence of the new girlfriend.

If the relocation was allowed, it was noted that the father’s work often took him to Europe and it was possible that he could travel to see the children in the UK.  He had also been granted 13 weeks of school holiday access with the children.  Additionally, whilst the Judge noted that it would be ‘agonising’ for the father to be parted for extended periods from his children, they could still keep in frequent contact through the Internet.

Our views

The 2 main factors the Court consider in general are whether the wishes of the leaving parent are reasonable and the child’s loss of relationship with the parent that is left behind.  In this case, the Court found that the mother’s wishes were reasonable and that the loss of relationship with the father was alleviated by the fact that he had liberal access, could still see them when he travelled to Europe for work and could also keep in constant contact through the Internet.

Some of the factors appeared to have weighed against the application, particularly, the fact that the 2 older children had spent most of their lives in Singapore. Moreover, the youngest child had been born in Singapore.  The children’s desire to move to the UK – undoubtedly coloured by their mother’s wishes – was based on a brief 2-week trip there.  During that trip, they had spent a few hours in a school in the UK, which would surely be insufficient to form an opinion as to whether they would like it there.  It is interesting to note that the Court did not raise the possibility of the mother obtaining the help of a domestic helper, which is a common enough occurrence in Singapore.  This would have enabled her to return to work.  This was not a case where the mother claimed she had made efforts to look for work and was unsuccessful.  Further, there was also no confirmation that the mother could in fact find work in the UK.  Also, the fact concerning the children’s poor performance in school is a little puzzling as this was not a case where the children had special needs.  If the curriculum or teaching style in local schools was not suitable, could not the children have attended international schools in Singapore instead of having to move all the way to the UK?

The High Court itself noted that relocation decisions are not based on “ticking off boxes on a checklist”. It follows that the many factors and concerns involved in such decisions can make a relocation application unpredictable and rife with uncertainty.

What then should be done? We often find mediation to be very useful and highly effective in negotiating an agreement in relocation cases. Mediation gives both parties  an avenue to discuss their case without the stress and expenses arising from a court case. Since mediation is focused on finding a solution that meets both parties’ concerns, the outcome tends to be a win-win for both sides.  Further, parties are generally more inclined to comply with an agreement which they have negotiated on their own terms as opposed to a decision made by a third party (the Court).

ABOUT PRACTICEFORTE’S PROJECT RELOCATION

Started in July 2017 by the Family Division of PracticeForte Advisory, this project is an initiative to make legal help more accessible to spouses in overcoming the legal challenges to obtain court consent to return to their countries of origin with their children for the welfare of the children.

Project Relocation is part of PracticeForte Advisory’s ongoing efforts to further our twin pillar focus of “Building Peace, Building Expertise”

ABOUT PRACTICEFORTE ADVISORY

PracticeForte Advisory is a network of independent professional advisory firms comprising, amongst others, lawyers, mediators, accountants, forensic experts and others. This niche group of professional advisory firms are banded together under the brand name:  PracticeForte Advisory.

PracticeForte Advisory is not an entity and all the affiliate firms are independent of the others.

ABOUT PRACTICEFORTE FAMILY DIVISION

PracticeForte Family Division comprises of specialist practitioners of Family Law including lawyers focused on matrimonial issues, mediators trained in resolving all family concerns; parenting coordinators to assist parents in their co-parenting journeys, counsellors and therapists.

AMY LIM LAW PRACTICE is part of PracticeForte Advisory and a boutique Family Law practice which combines expertise with personalised service. Its founding partner, Ms Amy Lim is a member of the PracticeForte Family Division. Amy has as a special interest in Family Law, particularly in helping women in disadvantaged or abusive relationships obtain a fair outcome in their divorce proceedings. She is also a mediator and is accredited on the Singapore Mediation Centre Family Panel as a family mediator. In particular, she is specially trained in cross border mediation for family conflict and child abduction with MiKK e.V International Mediation Centre for Family Conflict and Child Abduction.

Article By: PracticeForte Advisory Affiliate Ms. June Lim

You may be familiar with the story of Singapore’s only Caucasian UBER driver: https://www.straitstimes.com/singapore/uber-mum-driven-to-make-kids-lives-easier

Anna moved to Singapore from the UK with her family in 2010, becoming a Permanent Resident in 2013. Her marriage ended in 2015 due to her husband’s infidelity. Following a Hague Convention application in the UK in 2015, Anna was compelled to return to Singapore with her children.

While Anna was fortunate to be able to secure a job with UBER due to her Permanent Residency status, she still struggled financially post-divorce. Although her husband paid maintenance that covered rent for her family’s apartment, her children’s local school fees, her medical insurance and other living expenses in Singapore, Anna still lived from month-to-month. She had no savings and no money to spare for extra treats for the children, activities during the school holidays or medical or dental treatments for both herself and the children that were not covered under their existing health insurance. It was virtually impossible to negotiate with her ex-husband for additional funds, as he was heavily in debt and had re-married 6 weeks after the divorce had been finalized with a new family to take care of.

Anna was also unable to secure a better-paying job in Singapore due to her lack of educational qualifications and poor health. She had already suffered from Crohn’s Disease for 20 years before moving to Singapore. The stressful post-divorce situation caused Anna’s health to deteriorate, to the point where she was unable to drive to earn an income for the family or take care of her children on her own. The medical insurance that her ex-husband paid for was inadequate to cover the cost of the treatment and medication required for her medical condition in Singapore.

To make matters worse, the children struggled with adjusting to life after divorce. The children’s relationship with their father had become increasingly strained because of their poor relationship with their father’s new wife, to the point where the children absolutely refused to see their father. This led to numerous police reports filed by their father against their mother, alleging parental alienation and attempts to restrict access. The children also struggled academically in the Singapore school system and were bullied at school.

Relocation to the UK

Eventually, Anna felt that it would be in her children’s interest to relocate back to the UK. There, the whole family would at least receive emotional support from her extended family and be able to seek appropriate medical treatment through the NHS public health system.

Initially, her ex-husband heavily resisted her relocation application. Through mediation, he eventually consented to the relocation application – but on condition that he would only have to pay half of the maintenance that he was paying in Singapore.

Worn out after 3 long years of litigation that had only been possible through lawyers who acted pro bono, Anna had no choice but to agree to her ex-husband’s terms in order for the family to return to the UK.

Unfortunately, upon her return to the UK, Anna’s ex-husband further reduced his maintenance payments to Anna every month. In order to enforce such maintenance payments against her ex-husband, Anna would have to return to Singapore to file the application. The thought of having to return to Singapore is exhausting and thus far, Anna’s medical condition has prevented her from returning to Singapore. She has been borrowing money off her family members to make ends meet in the meantime.

“I would have had something in writing that protects the children and I so that if the marriage breaks down, I would be able to return to the UK. If not, I would not have moved to Singapore at all,” said Anna, when asked if she had any advice for expatriate couples to consider before moving to Singapore. 

Expatriate families, the Hague Convention and Divorce in Singapore

The Hague Convention on International Child Abduction is an international treaty that protects children who have been removed from their country of habitual residence without the permission of the parent who has custodial rights. Habitual residence here refers to the country the child has been living in, settled in and integrated in (amongst other things).[1] The factors and determination of a habitual residence is fact specific.

The Convention provides an avenue for the child to be returned to their countries of habitual residence in cases of parental abduction, the result of which may be “serious, long-term and irreversible”,[2] especially for young children. Justice Valerie Thean also highlighted the mental health consequences faced by children after being abducted by a parent such as “depression, post-traumatic stress and psychotic episodes”[3], some of which may even follow them into adulthood.

While the Convention has its benefits, it fails to consider the realities of cross-border marriages and expatriate families. This is all the more important since such marriages and families are becoming increasingly common all around the world.

First, families may lack support due to where they are located. Such families have settled down in countries, whether for the short or long term, that may be deemed by courts to be the child’s habitual residences. However when marriages have broken down, these countries of habitual residence are ultimately not the family’s home country where parties may seek emotional support from their extended family and friends, financial support and legal support through systems that are familiar to them.

Second, the Convention also forces estranged spouses and ex-spouses who are their children’s primary caregivers to return to the children’s countries of habitual residence. This is done for the sake of maintaining the children’s relationship with the left-behind parent but without consideration for the environment and circumstances that may have caused the children’s primary caregiver to leave with the children in the first place.

It is an unfortunate reality that there are many problems faced by estranged spouses and ex-spouses. These can include:

• Being forced to return to situations of family violence
• Harassment by their ex-spouses through legal or illegal means
• Uncertain immigration statuses in their children’s country of habitual residence
• Having uncertain or unstable accommodation
• Lack of a viable income by the primary caregivers, thereby preventing financial security for the children in the event of maintenance default
• Lack of access to legal support due to inability to apply for legal aid or afford legal services

In short, the Convention places too much power in the hands of the left-behind parent and it assumes that the power relationship between parties in the children’s country of habitual residence is equal.

As can be seen from Anna’s case, it may be extremely difficult for an estranged spouse or ex-spouse to apply to relocate legally – hence their decision to ‘run’ back to their home country with their children without an order for relocation in the first place. If their spouse is unwilling to consent to the relocation in the best interests of the children, litigation over relocation issues may take years to resolve and can be emotionally and financially taxing on parties and their children.

Recent relocation cases in Singapore

As with all other cases involving children’s issues, the overarching principle in a relocation application is the welfare of the child.[4] Two of the most important factors in relocation cases are (i) the reasonable wishes of the primary caregiver and (ii) the child’s loss of relationship with the ‘left-behind’ parent.[5] While case law has recognised that the reasonable wishes of the primary caregiver are important because the child’s welfare is inextricably linked to the happiness and well-being of the primary caregiver, it must not be against the interests of the child.[6]

There have been successful cases of relocation in the recent years: In TCI v TCJ,[7] the children were allowed to relocate, largely due to their various medical/health issues.[8] Further, in the recent case of UFZ v UFY,[9] the children were facing difficulties[10] in school and the eldest child, in particular, expressed longing for family support.[11]

Nevertheless, a successful relocation application is still ultimately a fact-centric exercise.

What can we learn from the reported cases and Anna’s case then? It appears that the situation faced by the estranged spouse or ex-spouse and their children in the country of habitual residence must have deteriorated to such an extreme, untenable situation in order to justify a relocation.

We respectfully submit that such a rationale is not consistent with the overarching principle of the welfare of the child. It simply cannot be in the children’s best interests for the family’s situation to deteriorate dramatically, only to satisfy the Convention’s need to protect the child’s relationship with the left-behind parent. An estranged family going through a matrimonial dispute has many competing needs and concerns, and the children’s relationship with the left-behind parent is only one of them.

[1] TDX v TDY [2015] 4 SLR 982 at [43] and TUC v TUD [2017] SGHCF 12 at [54] – [55].

[2]  T. Tan, ‘New Rules to Prevent Divorcing Parents from Fleeing Singapore with Kids in the Pipeline’ (The Straits Times, 2018) <https://www.straitstimes.com/singapore/courts-crime/spirited-away-by-a-parent> accessed 17 September 2018

[3]  T. Tan, ‘New Rules to Prevent Divorcing Parents from Fleeing Singapore with Kids in the Pipeline’ (The Straits Times, 2018) <https://www.straitstimes.com/singapore/courts-crime/spirited-away-by-a-parent> accessed 17 September 2018

[4]  s 3 Guardianship of Infants Act (Chapter 122) Rev Ed 1985

[5]  BNS v BNT [2014] SGCA 23, at [28]

[6]  AZB v AYZ [2012] 3 SLR 627 at [14]

[7] TCI v TCJ [2015] SGFC 58

[8] TCI v TCJ [2015] SGFC 58 at [27]

[9] UFZ v UFY [2018] SGHCF 8

[10] UFZ v UFY [2018] SGHCF 8 at [41]

ABOUT PRACTICEFORTE’S PROJECT RELOCATION

Started in July 2017 by the Family Division of PracticeForte Advisory, this project is an initiative to make legal help more accessible to spouses in overcoming the legal challenges to obtain court consent to return to their countries of origin with their children for the welfare of the children.

Project Relocation is part of PracticeForte Advisory’s ongoing efforts to further our twin pillar focus of “Building Peace, Building Expertise”

ABOUT PRACTICEFORTE ADVISORY

PracticeForte Advisory is a network of independent professional advisory firms comprising, amongst others, lawyers, mediators, accountants, forensic experts and others. This niche group of professional advisory firms are banded together under the brand name:  PracticeForte Advisory.

PracticeForte Advisory is not an entity and all the affiliate firms are independent of the others.

ABOUT PRACTICEFORTE FAMILY DIVISION

PracticeForte Family Division comprises of specialist practitioners of Family Law including lawyers focused on matrimonial issues, mediators trained in resolving all family concerns; parenting coordinators to assist parents in their co-parenting journeys, counsellors and therapists.

Article By: PracticeForte Advisory Affiliate Ms. Susan Tay of OTP Law Corporation

Singapore has picked up a reputation as a metropolitan, expat-friendly city. In fact, 1 in 3 marriages in Singapore now involve at least one foreigner.

No doubt this is a boon for multiculturalism. But when it comes to family disputes that involve children, a cross-border marriage could complicate matters. A breakdown of a cross-border marriage makes it much more likely that one parent wants to leave the country with the children. After all, foreign parents usually maintain a connection with their home countries which they gravitate when things take a turn for the worse.

If the child has already been moved, the left-behind parent may be tempted to immediately bring Hague proceedings. Similarly, a parent faced with a relocation request or proceeding may initially refuse to consent.

Often, this impulse arises because the parent feels alienated from the decision-making process. Huge concerns like being unable to see or contact the child or being unsure about how the child is doing or will do in another country are also commonplace.

But from our experience, going straight to litigation often results in a “win-lose” situation that does not address the root of the problem. As such, we want to present an alternative solution: mediation 

Why mediate for Hague and relocation cases?

While the lower cost is often the first thing that comes to mind, certain facets of Hague and relocation cases make them particularly suited to mediation.

Mediation asks both parents to reflect on what is best for the child

The mediation process first pushes parents to think about and talk about what is best for the child. The reflection is important because personal reasons sometimes drive the desire to relocate, instead of the child’s interests. Sadly, it is a step that parents often overlook when litigation is the first stop.

Further, when a relationship breaks down, the lines of communication often do as well. Take a relocating parent that has family who can help with childcare, or who is better able to financially support the child overseas. Though it may seem clear to that parent that relocating is best for the child, the other parent cannot be expected to agree if he is completely in the dark about these reasons.

Mediation can happen at any time

Litigation can be time-sensitive: Hague proceedings are often very time sensitive (recommended to be completed within 6 weeks, which often is the reason for the high legal costs involved as well) and rushed. If mediation is initiated shortly before Hague proceedings, both parties can be motivated to resolve their differences expeditiously before the court takes over. Not much paper work is needed at mediation.  All it takes is parties’ willingness to listen earnestly and speak candidly.

In cases where the child has already been relocated but there is a delay in filing Hague proceedings, it may no longer be a viable route. Mediation does not face the same constraints. It fact, in such situations, it may be the only way to bring the other party back to the table.

Mediation can also happen during court proceedings.

Mediation is confidential

Everything that is said in mediation is confidential and is therefore a safe place for parties to speak freely. With the help of a mediator, parties will be navigated towards a conversation that will reveal their concerns and interests.

Mediation can be a trust building exercise

A parent facing the relocation of his or her child will inevitably be anxious. A lot of the time, they fear that the relocation will hurt their relationship with the child, or that the child will be worse off. Many of these fears are deep-rooted because of their distrust of the other parent.

While mediation does not restore trust overnight, it is a step in the trust-building exercise. It gives one parent the opportunity to air their concerns, and the other, the opportunity to listen and take steps to address them.

Mediation means that you can control the outcome

Mediation encourages parents to come up with creative solutions tailored to the Child’s and their own needs.

In contrast, the litigation route takes the agency from the parents and puts it into the judge’s hands. This can be a daunting thought, particularly for Hague cases, where the complex and multi-jurisdictional legal issues involved means that the outcome is never certain.

Mediation means it is more likely that both parents will comply with the agreement

When it comes to children, we often see situations where parents do not comply with the court order when the judge does not rule their way. This is especially where it concerns access of the children.

Forcing the other parent to comply with the order involves a lot of expense and stress – even more so when the other parent is overseas. it would be infinitely preferable if parents are themselves incentivised to follow the order.

Mediation makes compliance more likely, since a settlement reached at mediation is based on both parties’ consent. Ideally, it is a settlement reached with an understanding of what the order would entail and why they agreed to it.

Mediation preserves the co-parenting relationship

Most importantly, compared to litigation, mediation is more conducive to preserving the co-parenting relationship between parents. In contrast to litigation, where parents often pit themselves against each other to prove their point on where the child should live, mediation encourages parents to work together to address any problems that may arise in the relocation or return.

It is our hope that by going through the mediation process, you will have a better chance of long-term parental cooperation with your co-parent for your child’s sake – even across borders.

This is part 1 of our series on mediation for Hague and relocation cases. Watch this space for part 2, which will address the drawbacks of litigation for Hague and relocation cases, and cases where mediation may be challenging.

*Hague cases are cases involving Hague Convention on the Civil Aspects of International Child Abduction and Relocation cases are cases involving one parent intending to relocate with his/her child/children.

Written by Isabel Chew-Lau under supervision of Susan Tay

This article is published in conjunction with PracticeForte’s Project Relocation initiative.

ABOUT PRACTICEFORTE’S PROJECT RELOCATION

Started in July 2017 by the Family Division of PracticeForte Advisory, this project is an initiative to make legal help more accessible to spouses in overcoming the legal challenges to obtain court consent to return to their countries of origin with their children for the welfare of the children.

Project Relocation is part of PracticeForte Advisory’s ongoing efforts ot further our twin pillar focus of “Building Peace, Building Expertise”.

ABOUT PRACTICEFORTE ADVISORY

PracticeForte Advisory is a network of independent professional advisory firms comprising, amongst others, lawyers, mediators, accountants, forensic experts and others.  This niche group of professional advisory firms are banded together under the brand name: PracticeForte Advisory.

ABOUT PRACTICEFORTE FAMILY DIVISION

PracticeForte Family Division comprises of specialist practitioners of Family Law including lawyers focused on matrimonial issue, mediators trained in resolving all family concerns: parenting coordinators to assist parents in their co-parenting journeys, counsellors and therapists.

OTP LAW CORPORATION is part of PracticeForte Advisory and its director, Ms Susan Tay is a member of the PracticeForte Family Division. Susan has had experience in representing parties as their lawyer in applications relating to the Hague Convention on the Civil Aspects of International Child Abduction as well as relocation applications with the Family Justice Courts, Singapore. Susan is a trained parenting coordinator. She is also a mediator and is accredited on various panels as a family mediator. In particular, she is specially trained in cross border mediation for family conflict and child abduction and is accredited as one of the mediators with MiKK e.V International Mediation Centre for Family Conflict and Child Abduction.

For any enquiries, please email us at enquiries@practiceforte.websterizor.com or call us at 62213009.

On The Move

Article By: PracticeForte Advisory Affiliate Firm Rajan Chettiar LLC

I. Introduction

With the advent of globalization, the number of cross-border marriages is on the rise. Singapore, in particular, is a typical destination country for cross-border marriages in Asia, with the proportion of marriages between a Singapore and a non-citizen spouse rising from 32.8% to 38.7% during the 1998-2008 period.[1] Correspondingly, the modern Singaporean family is more likely to be the product of a cross-border marriage, the breakdown of which would potential raise complex cross-border issues, such as applications for relocation.

After divorce, a parent may want to bring his/her children overseas in search of a new life, or to dive back into the familiar comfort and support provided by extended family members. However, it is not that easily said and done. Section 126(3) of the Women’s Charter requires a parent who wishes to relocate to first obtain either (i) the consent of the other parent in writing; or (ii) an Order of Court. To apply for an Order of Court, the party seeking relocation can either (i) seek to vary the custody order under s 128 of the Women’s Charter, or (ii) seek for an Order of Court granting relocation during ancillary proceedings.

II. Applicable Legal Principles

In proceedings involving children, including relocation, the Court of Appeal has highlighted that the welfare of the child is paramount and ought to override any other consideration. The welfare principle states that “[t]he welfare of the child is paramount and this principle ought to override any other consideration”.[2] This has been enshrined in both statutorily[3] and in case law. Thus, when seeking to balance the interests of the parents and their children, the court will focus on the child and decide what is best for his or her welfare, even if this requires the parents to make personal sacrifices.[4]

In determining what is best, cases have shown that two factors are frequently considered: (i) are the primary caregiver’s wishes to relocate reasonable; and (ii) how grave would the child’s loss of relationship with the “left-behind” parent be?

To be clear, the “primary caregiver” is the parent who is relocating with the child while the “left-behind” parent is the other parent.

A. The Wishes of the Primary Caregiver

The Court of Appeal has acknowledged that “the child’s emotional and psychological welfare is… intertwined with that of the primary caregiver”. Thus, where the primary caregiver wishes to relocate because of reasonable circumstances, such as not being emotionally and psychologically stable in their present environment, this will be taken into consideration.[5] However, their wish to relocate is only relevant to the extent that they have not impacted the child.[6]

Previously, a vast majority of the reported local cases on parental relocation focused heavily on the reasonableness of the custodial parent’s reasons for relocation and less on the loss of relationship with the other parent.[7]  This resulted in seemingly unfair odds since there was practically a presumption in favour of relocation. However, in more recent times, the courts have been careful not to do so.[8] Instead, even where the primary caregiver’s desire is not unreasonable or founded in bad faith, there will not be a legal presumption in their favour.[9]

B. The Child’s Loss of Relationship with the “Left-Behind” Parent

What about the “left-behind” parent then? Well, the Court of Appeal has noted that relocation would naturally decrease their presence in their child’s life.[10] When assessing this concern, the courts will look at its impact on the child’s welfare by determining the strength of the existing bond between the left-behind parent and the child.[11] In general, the stronger the bond, the larger the void in the child’s life if relocation is allowed. Hence, a stronger bond tends to mean a greater emphasis on this factor in the final analysis.[12]

The cases have exemplified this. For example, in one case, a father’s application to move to Spain was rejected since it would have sounded a “death knell” to the children’s relationship with their mother.[13]  In another case, relocation was again not granted since the left-behind parent had a “strong, vibrant relationship” with his children and had “taken steps to play an active, involved role” in the children’s lives. Since relocation would have disturbed what was, in the court’s eyes, the fullest extent of a “normal family life” involving both parents, it was not allowed.[14]

C. Comments

Nevertheless, note that such analyses are ultimately fact-specific. Thus, the extent to which the above factors affect the success of your case really depends on the circumstances you are facing. The presence or lack of the factors are not themselves determinative of how successful you will be.

More importantly, it must be remembered that the courts expect parents to try their best to be cooperative under the circumstances.[15]  At the end of the day, despite not being able to keep the relationship together, parents should look beyond their acrimony and work together for the children. Only in this manner can the family move on with life together, albeit in different directions.

III. Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“HCCAICA”) is an international treaty to protect children who have been removed from their country of habitual residence without the custodial parent’s permission. Taking one’s own child to another country to without the other parent’s consent could thus be viewed as “abduction” under the HCCICA.

The HCCICA, by providing a procedure for the swift return of a child to his/her permanent home, aims to secure the prompt return of children wrongfully removed or detained in any Contracting State, and to ensure that the rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.

Under the HCCICA, Article 12 directs the court to “order the return of the child forthwith”, subject to Articles 13 and 20.  Particularly, Article 13 provides specific exceptions to the obligation to return.

A. BDU v BDT [2014] SGCA 12

BDU v BDT [2014] SGCA 12 (“BDU”) was the first case decided in Singapore under the International Child Abduction Act and is therefore useful in helping us understand the factors considered for abduction cases. Some brief facts of the case would help in understanding these factors: The Singaporean mother had abducted her child by refusing to return to Germany to be with her German husband. The family had been living in Germany for several years prior to this incident and their child had been born in Germany. The Singaporean mother wanted to rely on Article 13(b), which involves the child being exposed to physical or psychological harm, as the reason for the child not being returned to Germany.

What can we learn from BDU then?

First, signatories to the Hague Convention agree that the court to hear international child abduction cases is the country of “habitual residence” of the child. In this case, since the child had lived in Germany since birth and the family had been settled in Germany, it was found that Germany was the “habitual residence” of the child. Therefore, any court proceedings had to be heard by the German courts.

Second, the court of the country to which the child has been brought (here, Singapore) is only concerned with returning the child to the country they had been abducted from (here, Germany), subject to limited exceptions.[16] Thus, the Singapore court would not hear arguments, for example, on the parents’ custody or care and control as this did not concern the issue of abduction.[17]

Third, there are exceptional circumstances when an abducted child will not be ordered to return to their country of “habitual residence” and these are provided for in the HCCICA. When seeking to use these exceptions, the parent cannot rely on their own conduct to create a situation that falls under the exception. Thus, since the Singaporean mother argued the exception of Article 13(b) applied, this was rejected as the circumstances of physical and/ or psychological harm to the child arose out of her own behaviour.

IV. Conclusion

Globalization has definitely brought people from around the world closer, enabling marriages to transcend geographical barriers. On the flip side of the coin, when the wedlock is unbolted, complicated legal issues surrounding parental relocation and the children’s welfare arise. Thus, in spite of the acrimony between ex-spouses, it is imperative for parties to work together in furtherance of the welfare and interests of their child (or children) – the innocent victims of the failed relationship.

[1] “The globalisation of marriage markets”, The Straits Times (12 July 2017), online: <https://www.straitstimes.com/opinion/the-globalisation-of-marriage-markets>

[2] BNS v BNT [2015] 3 SLR 973 at [19]; UFZ v UFY [2018] SGHCF 8 at [7]

[3] See: s 125(3) of Women’s Charter (Cap 353, Rev Ed 2009); s 3 of Guardianship of Infants Act (Cap 122, Rev Ed 1985)

[4] UFZ at [18]; BNS v BNT [2015] 3 SLR 973 at [19]

[5] At [20]

[6] Ibid

[7] TAA v TAB [2015] 2 SLR 87 at [9]. E.g. Tran Jeannie v Chioy Kok Leong [2002] SGDC 22 at [31], where Chan Seng Onn JC (as he then was) stated: “[i]f the proposal of the custodial parent is a reasonable one the court should refuse leave only if it is clearly shown that it would be against the interest and welfare of the children: Lonslow v Hennig (1986) 2 FLR 378.”

[8] Ibid

[9] BNT v BNS [2014] 4 SLR 859 at [11].

[10] BNT v BNS [2014] 4 SLR 859 at [25]

[11] Ibid

[12] Supra n 11

[13] TAA v TAB [2015] 2 SLR 87 At [23].

[14] BNT v BNS [2014] 4 SLR 859 at [31]

[15] At [20]

[16] BDU v BDT [2014] SGCA 12 At [26]

[17] Ibid

ABOUT PRACTICEFORTE’S PROJECT RELOCATION

Started in July 2017 by the Family Division of PracticeForte Advisory, this project is an initiative to make legal help more accessible to spouses in overcoming the legal challenges to obtain court consent to return to their countries of origin with their children for the welfare of the children.

Project Relocation is part of PracticeForte Advisory’s ongoing efforts ot further our twin pillar focus of “Building Peace, Building Expertise”.

ABOUT PRACTICEFORTE ADVISORY

PracticeForte Advisory is a network of independent professional advisory firms comprising, amongst others, lawyers, mediators, accountants, forensic experts and others.  This niche group of professional advisory firms are banded together under the brand name: PracticeForte Advisory.

ABOUT PRACTICEFORTE FAMILY DIVISION

PracticeForte Family Division comprises of specialist practitioners of Family Law including lawyers focused on matrimonial issue, mediators trained in resolving all family concerns: parenting coordinators to assist parents in their co-parenting journeys, counsellors and therapists.

This article is written Emelia Kwa, an associate of OTP Law Corporation

What is mediation?

Mediation is focused on finding a solution that is agreed upon by all parties involved and which best addresses their concerns. This involves a neutral mediator who helps guide the parties towards reaching such a resolution.

What is the process like?

For mediation to work, both parties must be willing to attend the mediation session. The mediator will then give a brief introduction on the mediation process before deciding whether to continue the session with both parties present, or to hear each party individually.

Joint Session with Both Parties

Where both parties are present, the mediator will have each party explain what their concerns are and what outcome they are hoping to achieve. Parties should not interrupt each other while speaking. The discussion will continue until the mediator is able to help parties find their own appropriate solutions to the parties’ case. Parties will be allowed to discuss their perspectives as well as suggest any changes to be made to the solutions.

Individual Session or Private Caucus

The mediator may speak with only one of the parties in individual session. The mediator’s choice to speak to this party first does not reflect a bias or preference, but is often the party who initiated the proceeding. Once the first party has finished explaining their side of the story, they are requested to leave the room and the second party will then be invited to speak with the mediator.

These individual sessions are strictly confidential and the mediator is not allowed to reveal to the other party what was exchanged unless the mediator was given permission to do so. This is so that parties are comfortable to tell the mediator their underlying concerns. Often, it is in these individual or private sessions that the mediator can help parties find solutions.

Agreement

If proposals are made by either parties, both parties will then be invited back to a joint session and the mediator will then encourage the parties to share their proposals. Parties will be allowed to discuss their perspectives as well as suggest any changes to be made to the proposals.

Once both parties have come to an agreement, the terms of that agreement are usually recorded in writing and signed by or on behalf of the parties.

Why should I choose mediation?

Litigation may be seen as a good resort because you are leaving the decision to the court which will hand you their judgment. If both parties are prepared to accept the decision, they can confidently say that this issue has been resolved. If not, proceedings can be protracted as parties appeal. This option often involves great costs in the form of time, money and emotional baggage. This is especially so for cases where emotions run high, such as in family disputes.

Mediation provides an avenue for parties to discuss their problems whilst reducing the amount of hostility involved. This is because mediation is not an adversarial process; instead, it involves the mediator helping parties discuss their problems, wants and needs directly with each other. Parties in mediation can also restrict the costs of mediation and avoid overly long suits, as mediation processes are typically concluded more quickly than court cases. Mediation is also a confidential affair, which means that all discussions during the sessions cannot be used against you in court or in arbitration. As a result, parties are likely more willing to explain their positions and perspectives in a mediation setting.

Most importantly, mediation empowers the parties to decide what their ideal solution may be. Thus, it potentially allows finding a solution that is agreeable to all. This is unlike lawsuits, whose solutions are restricted to what the law provides and what the judge decides. Judicial decisions are also final, unless either party has the financial means to appeal.

How popular is mediation? Is it really something I should do?

In the last few years, the Family Justice Courts, Singapore have begun adopting mediation and counselling to assist parties in resolving matrimonial disputes. This is done in recognition of the emotional nature of the disputes as well as how litigation may not be suited to resolve relational aspects of the dispute. Thus, divorcing couples with children below the age of 21 are mandated to first undergo mediation. The Court may also refer parties for mediation (with their consent) if they believe that there is a chance for a more peaceful resolution to the case.

This means that even if you do not choose to go for mediation as a first resort, the Family Court is likely to direct you to attend mediation regardless. Why then would you not want to opt to attempt mediation on your own first?

Why mediate with PracticeForte Mediators?

PracticeForte Advisory consists of a number of affiliate mediators who are well-versed in matrimonial issues. Many of our lawyers have established their careers in the field of family law, making them knowledgeable of how the courts are likely to respond to your case. Moreover, these lawyers are also certified mediators with the Singapore Mediation Centre and other panels. There are at least 5 lawyers cum mediators in the Advisory who are especially trained in cross border family disputes including child abduction issues and matters relating to custody, care and control. With their experiences as lawyers and mediators, they would be better placed to understand and resolve your case.

This article is written by PracticeForte Advisory Affiliate Ms. Susan Tay of OTP Law Corporation with kind contributions and assistance from PracticeForte Advisory Affiliates Ms. Shirley Tay and Ms. Isabel Chew-Lau.

Can the Family Justice Courts (FJC) divide a property in another’s name as if it is a matrimonial asset in a divorce?

On 24 April 2018, 5 of our Apex Court’s judges sat in the case of UDA v UDB and another to make the ruling that is to determine proceedings relating to ownership disputes over third parties’ interests in alleged matrimonial assets and/or properties.

There are two situations in particular:

1. Where a spouse holds an asset in his name, but claims to be holding it on trust for a third party, whilst the other spouse disputes this (“Situation 1”); and
2. Where the asset is in the name of a third party, but one or both spouses claim that it is a matrimonial asset because the third party is holding the whole or part of the property on trust for one or both spouses (“Situation 2”).

UDA v UDB and another, illustrates Situation 2. A 10-year legal battle between the divorcing parties culminated in the hotly contested dispute relating to a property held in the name of the wife and her mother. The husband claimed that the mother was holding it on trust for him and his wife as he had paid a very substantial portion of the purchase price. The mother denied these assertions.

The main issue was therefore whether the FJC can decide claims by a third party on the ownership of a disputed asset and make orders that would directly affect the third party’s interest in the disputed asset. A related issue was whether the FJC could then take spouses’ beneficial interests in disputed assets into account in ordering the division of matrimonial assets.

Our Court of Appeal says “no” to the 1st question and a limited “yes” to the 2nd.

In the past, when faced with Situations 1 and 2, the FJC has made its own determinations on whether to treat the contested asset as part of the matrimonial pool.

Since the landmark ruling in UDA v UDB, it is now clear that the FJC, whether operating in the Family Division or as a Family Court, has no powers to hear claims by third parties.

With only one exception, it is now required that a civil suit be started to determine the issue of ownership of the asset, with the third party as a party to the suit. Only if the court in the civil suit declares the property to be beneficially owned by one of the spouses in the divorce suit can the asset be included as part of the matrimonial pool.

The exception is if the divorcing spouses agree that the court is to determine whether the asset is a matrimonial asset without involving the third party’s participation at all or making an order directly affecting the property.

Determining the issue of ownership

The following flowchart illustrates the effect of the ruling.

In coming to the decision, the court began with an analysis of s 112 of the Women’s Charter. They concluded that an item of property that is legally and beneficially owned by a third party is not covered by s 112(1) and the court’s power under that section does not extend to it.

Following that, they reasoned that if the FJC treats the disputed asset as a matrimonial asset and makes adjustments in the division of other assets to account for its value, the spouse who has had to account to the other for the value of the asset might ultimately be prejudiced.

This is because the determination of the ownership of the disputed property in the FJC proceedings will not bind the third party; it may be determined later on that the third party was both the legal and beneficial owner of the asset. In such a situation, the spouse that has already accounted to the other for the asset will find himself having to account to the third party for the asset.

The court therefore agreed with the lower court that the ancillary matters should be stayed to allow the husband to pursue a civil action to determine the disputed property interests.

Writer’s Note

This CA case is especially timely now as we increasingly see cases where title and legal ownership seem hopelessly entangled, involving multiple business interests, joint investments and complex portfolios of shares and stocks.

However, this ruling also means the expenditure of substantial resources and prolonged divorce proceedings for parties to pursue a separate civil suit.

It is of course in the best interests of all that they adopt the collaborative approaches encouraged by the FJC or engage in conciliatory dispute resolution methods like mediation to see if agreements can be sought.

Yet, increasingly spouses are tempted to engage in more manipulation of the matrimonial pool by cleverly maneuvering assets under the names of third parties out of reach of the other spouse.

What, then, can be done to limit the success of such dishonest tactics?

Forensic Accounting and Investigations

A practical starting point from a cost-benefit angle will be to engage forensic accountants and investigators to perform a preliminary assessment to determine firstly if we have enough evidence to support proof of ownership and secondly, on the value of the asset that can be potentially added into the matrimonial pool. Such evidence includes tracing the monies to procure the asset; the benefits enjoyed by the party or his behaviour supporting claims of existence and ownership.

The costs of a preliminary assessment will be a fraction of the costs of a separate suit, and the result of that assessment helps to determine whether the civil suit is worth pursuing. It will also assist in mediation or a neutral evaluation of the party’s case.

If indeed a civil suit is inevitable, the forensic accountant can also provide an independent opinion on whether the asset should be included in the pool.

As a family lawyer, I often work closely with accountants especially where businesses are involved. I believe that this multidisciplinary approach allows my clients to properly assess their options, make informed decisions and ultimately achieve a fair division of their matrimonial assets.

This article is originally published on OTP Law Corporation’s website

Written by Susan Tay assisted by Isabel Chew-Lau.

This article is published in conjunction with PracticeForte’s PF Relocation initiative.

If your relationship has broken down, you may be thinking of moving away from Singapore to another country. There could be a myriad of reasons for your desire to immigrate overseas: perhaps you have better career prospects or family in the other country. It could even be the case that you simply no longer want to live in the same country as your ex-partner. No problem ..if you are thinking of moving overseas by yourself.

However, the situation may be more complicated if:

1. You have a child with your ex, who has custody rights over your child;
2. The child is under 16 years old;
3. You want your child to move overseas with you;
4. Your child has a close connection to Singapore, having lived here for some time and having been integrated into the Singapore community i.e. he or she is habitually resident in Singapore; and
5. Your ex has not consented to the child moving overseas.

In that case, you may not be able to unilaterally move overseas with your child. This is because Singapore is a party to the Hague Convention on International Child Abduction (“the Hague Convention”). As of 2011, Singapore incorporated the Hague Convention into our domestic law under the International Child Abduction Act (Cap 143C).

Practically, this means that if you move overseas with your child, your ex-partner may be able to compel your child to return to Singapore. He or she can apply to the Singapore authorities to ask the  other country’s authorities to issue an order that the child be returned here. The other country would have to comply if they make a preliminary finding that:

1. The other country (“the Requested State”) is a party to the Hague Convention (the list of contracting states can be found at https://www.hcch.net/en/states/hcch-members :
2. The Hague Convention applies to the child i.e. the child is habitually resident in Singapore and is under 16 years old;
3. The removal of the child from Singapore was wrongful in that it breached the custody rights your ex-partner had under Singapore law;
4. Your ex was exercising those custody rights;
5. Your ex did not consent to your moving the child overseas;
6. There is no grave risk that the child will be exposed to physical or psychological harm or be placed in an intolerable situation in Singapore; and
7. There is no other reason for the Requested State’s authorities to refuse to order the return of the child.

Defending Hague proceedings in the country that you move to will likely be expensive and stressful for both your ex and you. Moreover, if you are not successful in defending the Hague proceedings overseas, the return order will mean having your child brought back here. Assuming you still want to move overseas with the child after you bring your child back to Singapore, you will have to make the applications in the Family Justice Courts here to determine issues like:

1. Who has custody over the child?
2. Will it be in the best interests of the child to stay here in Singapore or move with you?
3. Will access by the left behind parent be severely impaired because of the move? How will that affect the Child?

MEDIATION

What then will be the good way to do this?

The obvious answer will of course be to see if you can negotiate a consent from your ex. A highly recommended way to do this will be through mediation. Having a trained mediator who is familiar with custody and relocation issues will often pave the way for conversations between you and your ex to begin and the chances of an amicable resolution can be fairly high. Mediations have proven very successful even for parties who started poles apart or who found it impossible to converse with each other.

RELOCATION APPLICATION

Even if no agreement can be reached, there is still a right way.

You could take out a relocation application in the Singapore courts. If granted, the court will allow you to move overseas with your child, even without your ex-partner’s consent.

In determining whether to grant such applications, the court’s paramount consideration is the welfare of the child. This is tied to the reasonableness of your request, and the following non-exhaustive list of factors may be relevant:

1. Whether your desire to relocate is founded in bad faith;
2. Whether you have familial support in the overseas country;
3. Whether you have remarried to a new spouse from a different country;
4. The earning capacity of both parties in Singapore and overseas;
5. The impact of uprooting the child from Singapore; and
6. The child’s interest in having a meaningful relationship with both parents.

If you think that your child’s interests will be better served by moving overseas with you, consider talking to your ex. If you find that difficult, do seriously consider mediation. Your next course, if even that does not work is then to take out a relocation application. This may save you a huge deal of time and costs – and greater peace of mind – in moving overseas with your child.

The last thing you should do is to just leave. Credible studies have shown that an “abducted” child deprived of one parent’s contact for a long time can leave the child with irreparable psychological harm.

Written by Susan Tay & Isabel Chew-Lau.
This article is published in conjunction with PracticeForte’s PF Relocation initiative.

ABOUT PRACTICEFORTE’S PROJECT RELOCATION

Started in July 2017 by the Family Division of PracticeForte Advisory, this project is an initiative to make legal help more accessible to spouses in overcoming the legal challenges to obtain court consent to return to their countries of origin with their children for the welfare of the children.

Project Relocation is part of PracticeForte Advisory’s ongoing efforts ot further our twin pillar focus of “Building Peace, Building Expertise”.

ABOUT PRACTICEFORTE ADVISORY

PracticeForte Advisory is a network of independent professional advisory firms comprising, amongst others, lawyers, mediators, accountants, forensic experts and others.  This niche group of professional advisory firms are banded together under the brand name: PracticeForte Advisory.

ABOUT PRACTICEFORTE FAMILY DIVISION

PracticeForte Family Division comprises of specialist practitioners of Family Law including lawyers focused on matrimonial issue, mediators trained in resolving all family concerns: parenting coordinators to assist parents in their co-parenting journeys, counsellors and therapists.

OTP LAW CORPORATION is part of PracticeForte Advisory and its director, Ms Susan Tay is a member of the PracticeForte Family Division. Susan has had experience in representing parties as their lawyer in applications relating to the Hague Convention on the Civil Aspects of International Child Abduction as well as relocation applications with the Family Justice Courts, Singapore. Susan is a trained parenting coordinator. She is also a mediator and is accredited on various panels as a family mediator. In particular, she is specially trained in cross border mediation for family conflict and child abduction and is accredited as one of the mediators with MiKK e.V International Mediation Centre for Family Conflict and Child Abduction.

For any enquiries, please email us at enquiries@practiceforte.websterizor.com or call us at +65 62213009.