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 will 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 Project Relocation initiative.