Relocation Case Analysis ULA v UKZ –Voice of The Unmarried Mother Heard
This article is written by Susan Tay of OTP Law Corporation. This article is published in conjunction with PracticeForte’s Project Relocation initiative.
I am a mother of a 9 year old son. His dad, an Irish man who was not married to me, lived with his wife and 2 kids in New Zealand. Until my son was about 3, his family did not know anything about me or our son. In fact, it was I who called his wife in 2012 and told her about us. My boy was 3 years old.
The year after our son was born was the only time the 3 of us lived together. It was short lived and lasted only a year because his wife and the 2 children were away in Ireland that year. When they went back to New Zealand, I left and returned to Singapore with our son. He remained with his family in New Zealand. Since then, I single-handedly raised our child; with the help of my mum and a helper. He flew in to see our son and me, especially when he had business meetings here. In 2011-2014, it was every 2-3 months but he came more regularly from 2014-2016, like every 4-8 weeks. He started contributing towards maintenance only in the last couple of years before we broke up. He gave us about NZ$9000/ month.
I do not doubt that he loves our son but his role in our child’s life was limited to periodic visits and holidays with him and financial contributions towards his maintenance. These contributions, while voluntary, were limited.
I count my blessings. I have a well-paid job and had no financial problems raising my son. My job however is a demanding one. Spanning 5 continents and as many time zones of 4-13 hours apart, I spent long hours at work leaving me exhausted and on the verge of being burnt out. I barely had time with son.
I only finally broke up with son’s dad in late 2016. I was angry with him for wanting to take the son for a holiday without me. He stopped seeing us. He said I blocked his access.
2017: the father took out an application in the Singapore courts asking for joint custody and access. We worked out a settlement in mediation and I agreed on the father sharing joint custody with me. We also worked out an access plan with him flying to Singapore every 6 to 8 weeks, visiting our son 6-8 times a year. He could also speak with our son at least thrice a week. We also agreed that Singapore would be our son’s habitual residence unless the Court allow or parties agree otherwise.
1 month after the consent order, I was offered a 2 year assignment in London. I thought my prayers were answered. This was not the 1st time I had planned to move to London. Shortly before we broke up, in early 2016, son’s dad and I had actually made plans for me and son to move to London. Back then, he was supportive of my intended move. He knew that if I work in London, I will have a better work-life balance. He in fact drew up a transition plan to London where he would visit us. He had business interests in London and travelled there often. There was no inconvenience.
This time around however, he was dead set against it saying the move would mean reduced access. He claimed his son would be traumatised by the move. I had to apply to court for the relocation.
————————-Imagined Voice of the Mother in the case of ULA v UKZ. Facts were extracted from the judgments written in UKZ v ULA [2018] SGFC 32 and the at the appeal hearing in ULA v UKZ [2018] SGHCF 19.
Law In Singapore for Unmarried Parents
In 2017, there were a total of 796 births registered to Singaporean mothers who were not married to the fathers of their child/children.[1] Although this is a small fraction of the total birth population, Singapore laws have, since the 1980s, accorded equal parental rights to both mothers and fathers even if they are not married to each other. In this respect, Singapore can be applauded for its enlightened approach.
Yet, in a plight akin to the unmarried mother’s in ULA v UKZ, can we said to have pushed “equality” a tad too far? Seeking to achieve equality for both parties, for example in terms of ease of access, time spent with the child, etc., may not always possible when the best interests of the child are concerned.
This case exemplifies the difficulty in obtaining what’s best for the child in circumstances that are obviously not equal for the mother and father. In such instances, it may be more appropriate to place a sole caregiver’s needs higher than the other parent. I say this with the 1st instance hearing of the mother’s application for relocation in mind. Eventually, a more balanced and nuanced view was taken by the appeal judge and thankfully for the mother, she won her appeal to relocate at the High Court.
UKZ v ULA [2018] SGFC 32
At that 1st instance hearing of the mother’s application, the judge stopped short of calling the mother selfish. Of the view that the mother had run her case “on a very individual-centric, rather than child-centric basis,” the trial judge dismissed the mother’s application to relocate, calling it “unreasonable”.[2]
In the judgment, remarks were scathing to the mother. Examples include: “…the Mother’s claims of ill health and burnout should she continue in her current position in Singapore seemed to be a stretch at best, disingenuous at worst”; “the Mother did not appear to have much inkling if at all, as to how she would spend her “quality time with ”; “The impression one gets from this insouciant response, is that if relocation were granted, the Mother would expect R to deal with his new circumstances with equanimity and accept his lot in life so to speak”.
She made the following points to support her decision that the mother did not consider the boy’s interests in her plans to relocate:
55 In my view, the above points made it readily apparent that the Mother was concerned with furthering her own ambition, desiring the relocation purely for her personal interest. While she attempted to dress up R’s best interests as being contingent upon and linked to her well-being, the paucity of evidence and the feeble argument that “things could be better”, without more, failed to persuade me that R’s interests lay at the heart of her relocation application.
56 Buttressing my view that R’s interests were of secondary importance was the fact that in her choice of school in London for R, she had relied on an article of unknown reliability which stated that it was a good school, even though the article pointed out that it was the school’s own website that claimed it was in the top 20% for IB results.
The judge of 1st instance was clearly persuaded by the Father’s argument that the 30 hour flight time from New Zealand to London would greatly reduce access. Perhaps the Judge saw it as yet a further attempt by the Mother to restrict access. We glean this from her conclusion that the Mother’s arguments were “very individual-centric, rather than child-centric”, such that the mother “conveniently and casually” dealt with the child’s issues by “subordinat[ing] R’s interests to hers”. Furthermore, the judge emphasised that there was a “blossoming relationship between Father and son” which would be lost.
ULA v UKZ [2018] SGHCF 19
In the High Court, the appeal judge took an approach that was markedly different. You sense that as early as the 1st chord struck. This was how the Judge started his judgement:
1 This case concerns a boy (“R”) born of the relationship between the appellant and the respondent (“the Mother” and “the Father” respectively), who have never been married to each other. R, who is nine years old, has lived with the Mother in Singapore for the past eight years. The Father lives in New Zealand with his wife and their two children. The Mother, who is unmarried, applied to the Family Court for permission for R to relocate to London with her. The Father opposed R’s relocation to London on various grounds, including that it would adversely affect his relationship with R by making it more difficult for him to spend time with and contact R. The District Judge refused the application and the Mother appealed.
2 The facts of this case are unlike most other relocation applications, where relocation would result in the physical separation of the child from the non-relocating parent. In this case, the Father and R have not lived in the same country for the past eight years. The parties were unable to find any authorities in which the non-relocating parent lived in a different country from the child. As will be seen, I considered this living arrangement significant in reaching my decision on the facts of this case. Having considered all the circumstances of the case, I take the view that relocation should be allowed, and therefore allow the Mother’s appeal. The reasons for my decision are set out herein.
The judgment bears repeating verbatim in the following parts as they are important to the law on relocation.
The law on relocation
24 The principles on relocation may be stated fairly succinctly and are not in dispute between the parties. It is well-established that the welfare of the child is paramount in relocation applications and ought to override every other consideration (BNS v BNT at [19]). There is no presumption in favour of allowing relocation where the primary caregiver’s desire to relocate is reasonable. Rather, the relocating parent’s reasonable wish to relocate is only relevant to the extent that there would be a transference of the relocating parent’s insecurity and negative feelings onto the child, since it is the child’s welfare that lies at the heart of the inquiry, and not the interests of the relocating parent (BNS v BNT at [20]; see also TAA v TAB [2015] 2 SLR 879 (“TAA v TAB”) at [17]). There is no pre-fixed precedence or hierarchy amongst the various factors to be weighed in the overarching inquiry into the child’s welfare. Where the factors stand in relation to one another depends, finally, on a consideration of all the facts of the case (BNS v BNT at [22]).
25 As I am dealing with this matter on appeal, I am conscious that the principles governing appellate intervention in cases involving the welfare of children are the same as those that apply to appellate intervention generally (CX v CY (minor: custody and access) [2005] 3 SLR(R) 690 at [15]). The appellate court should play a “limited role”, reversing or varying the decision of the judge below only if it was exercised on wrong principles or if the decision was plainly wrong, as would be the case if the judge had exercised his discretion wrongly (BG v BF [2007] 3 SLR(R) 233 at [12]). That said, where no trial took place below and the parties gave their evidence by affidavit and through the production of documents – as was the case here – the appellate court may be said to be in as good a position as the first-instance court to draw inferences and conclusions from the evidence (TSF v TSE [2018] 2 SLR 833 at [50]).
The following factors were considered:
(a) the significance of the Consent Order recording that Singapore should remain R’s habitual residence;
(b) the effect of relocation upon the Mother’s health, her time with R and her career;
(c) the effect of relocation upon R’s relationship with the Father;
(d) the potential disruption to R’s life;
(e) R’s education in London; and
(f) the parties’ prior discussions about relocating to London.
The Appeal Judge went through a fact-centric exercise in his analysis of the above factors, item by item, explaining very succinctly his views on these factors and how they weigh in on his decisions to allow the relocation. For some areas, like the Mother’s working hours and how moving to London will likely improve her working conditions, the Judge was painstaking in his effort to demonstrate how he was so convinced. There was a table of time zones to show the working hours if one is to handle the 5 continents.
His analysis was complete and detailed yet sparing (if none at all) in his judgment of the parent’s conduct.
The Appeal Judge noted, objectively and factually speaking, that the father had always played a distant role in the child’s life. The father’s main argument, i.e. that moving to London would increase the physical distance between him and the child, would not have made a difference to his role as a distant parental figure.
Additionally, the mother’s desire to relocate was taken seriously as the child would stand to benefit from the move. Not only would the mother improve her career and well-being, she would also be able to spend more time with the child. Since a child’s well-being and health are “inextricably intertwined” with their primary caregiver’s, these factors were objectively in her favour and not perceived as individualistic or selfish.
Although the move would result in many important changes, such as a difference in school, child care arrangements and life in a new country, the benefits of the move seemed to weigh out the effects of these changes (if any).
Most importantly, these observations were made without criticisms of either parent’s role and relationship with their child, unlike the Judge at first instance.
See the news reported at https://www.singaporelawwatch.sg/Results/court-allows-unwed-mum-s-bid-to-take-son-to-london
You can read the judgements at https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/-2018-sghcf-19-pdf.pdf and https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/-2018-sghcf-19-pdf.pdf
Author’s View
Any kind of relocation is a difficult one; be it for the parent leaving or the parent left behind. Unless there is clear evidence suggesting otherwise and sometimes under precarious circumstances like violence or abuse, few plan to relocate merely to restrict or thwart access by the other parent. As a lawyer and having handled cases representing both sides, I am often very slow to judge a parent on issues relating to the children, whether or not the parent is my client or the opposing party. As a caregiver myself, I am wholly appreciative of how caregiving includes caring for myself. And how often have we said to a mother in the plane, in case of emergency, administer the mask for yourself first before you tend to your child? Is that self-centric? Or self-care? Is self-care then inextricably tangled with child-care? In the case whereby the primary caregiver is the mummy, to be good to the child must surely mean to be good to the mother first? What use is an unhealthy, unhappy, unable mother to a child?
Another point: When judgments are written scathingly critical of a party’s conduct, are we not then endorsing and encouraging parties’ acrimony and mud-slinging of each other? Should our message not instead be a balanced and nuanced one, studying the details of the various factors that can determine whether this will be in the Child’s best interest, like the Judge in the appeal? Does that not focus the issue on what’s best for the kid than what’s wrong with the parent?
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[1] https://www.msf.gov.sg/media-room/article/data-on-single-unwed-parents-at-the-time-of-the-birth-of-their-child-for-each-year-from-2019
[2] https://www.tnp.sg/news/singapore/woman-loses-bid-take-son-overseas-stint