Written by June Lim – PracticeForte Family Division Advisory

This article was 1st published on the website of PracticeForte Pte Ltd url: www.practiceforte.sg as part of their Project Relocation Initiative.

OTP Law Corporation is an affiliate law firm of PracticeForte Advisory and is proud to be a participating law firm of Project relocation.

 

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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.

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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]

[11] UFZ v UFY [2018] SGHCF 8 at [44]

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