BDU v BDT [2014] SGCA 12

Outcome: Appeal dismissed, return order made subject to both parties providing specific undertakings.   

Facts

1  The mother appealed against the High Court’s affirmation of the District Court’s decision to allow the application of the father under s 8(1) of the International Child Abduction Act (Cap 143C, 2011 Rev Ed) (“the Act”) for the return of the child to Germany on the basis that the child had been wrongfully retained in Singapore by the mother. The mother contended that an order for the child’s return to Germany should be refused under Art 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) because the child will be at grave risk of psychological harm or would otherwise be placed in an intolerable situation due to his separation from the mother. 

Court’s decision

2  Pursuant to the Hague Convention, the court of the country to which the child has been brought is (in this case, Singapore) concerned only with the return of the child to his or her country of habitual residence from which he or she was first abducted, subject only to the limited exceptions set out in, inter alia, Art 13 of the Hague Convention. It is not concerned with the substantive merits relating to the relevant issues of custody and/or care and control between the parents concerned: at [26]. 

3  The paramount interests of the individual child will be considered and given effect to in exceptional situations by the court in the country to which the child was abducted. Such situations will depend on the precise fact situation concerned: at [33]. 

4  The parent seeking to invoke one or more of the exceptions under Art 13 of the Hague convention bears the burden of proof (the standard of which, is a high one). Further, even if one or more of the conditions set out in Art 13(b) of the Hague Convention was satisfied, the court of the requested state is not duty-bound to order the return of the child. It has a discretion in the matter. A close and granular analysis of the precise facts was imperative: at [38], [46] and [47].  

5  The abducting parent cannot seek to rely upon his or her own conduct to create a situation of grave risk of physical and/or psychological harm to the child concerned in order thereby to rely upon that alleged risk to argue against the return of that child pursuant to Art 13(b) of the Hague Convention: at [49]. 

6  Undertakings by the parent seeking the return of the child are a sign of good faith on his or her part, and are also important in ensuring that the return of the child will not adversely impact the child and/or the abducting parent. Undertakings must be carefully tailored in order to ensure that the appropriate safeguards are in place so that they are not only enforceable by the court of habitual residence but also that they furnish the abducting parent and child with adequate protection so that the intent and spirit of the Hague Convention are achieved in their fullest measure: at [53], and [82]. 

The full text of the decision can be found here. 


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