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TUC v TUD [2017] SGHCF 12
Outcome: Appeal allowed
3 The Family Division of the High Court held that the relevant time for assessing habitual residence was the date on which the alleged wrongful removal or retention of the child had taken place: at [43].
4 Generally, where the parents have agreed that the child should move to a different country for a defined period, the child would be wrongfully retained if he or she were not returned at the end of the period. However, retention of a child contrary to an agreement could occur even before the end of the agreed period of relocation once the parent in question intimates a clear intention not to return the child at the end of that period: at [44] and [48].
5 Whether a child was being retained in a jurisdiction without the consent of both parties could be deduced from the conduct of the parties if it was clear that the conduct in question was no longer consistent with the terms of the agreement which formed the initial basis of the child’s consensual removal: at [51].
6 The question of habitual residence was a question of fact to be determined having regard to all the circumstances of the case including the joint intentions of the parents, the child’s reasons for and perceptions of being in the new jurisdiction, as well as the objective indications of integration into the social and family environment in the new jurisdiction: at [74].
7 In the case of relocation of younger children and in the case of relatively short periods of residence in the new jurisdiction, generally, the joint or shared intentions of the parents could be a significant factor in pointing towards whether there was any change in the habitual residence of the child. The longer the period of residence in the new jurisdiction and the greater the evidence of integration into the social and family environment there, the less relevant would be the parents’ original reasons, purposes and intentions for the relocation in determining whether the child’s habitual residence had changed. Further, the intention of only one parent of the child to change his or her habitual residence would seldom have weight in the analysis: at [74].
8 The party seeking to rely on the defence of consent under Art 13(a) of the Hague Convention bears the burden of proof to show that the parent alleging the wrongful removal or retention of the child had unequivocally consented to the child’s removal or retention: at [77] and [78].
9 Consent under Art 13(a) of the Hague Convention would be vitiated if it had been obtained by deceit, fraud, misrepresentation or non-disclosure. It was only where the retention was ostensibly within the scope and terms of the consent given that it would be necessary to ask whether the consent was vitiated: at [89] and [92].
The full text of the decision can be found here.
This summary is provided to assist the public to have a better understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.
Facts
1 The father appealed against the District Judge’s decision to dismiss his application under s 8 of the International Child Abduction Act (Cap 143C, 2011 Rev Ed) (ICAA) for an order that his two children be returned from Singapore to San Francisco, California, USA, which, according to the father, was the children’s place of habitual residence.Court’s Decision:
2 There is wrongful “removal” when one parent takes a child from the country of habitual residence to another country in breach of the other parent’s rights of custody. There is wrongful “retention” when the parent takes the child to another country lawfully but fails to return the child to the country of habitual residence in breach of the relevant rights of custody. This case deals with wrongful retention rather than wrongful removal: at [38] and [40].3 The Family Division of the High Court held that the relevant time for assessing habitual residence was the date on which the alleged wrongful removal or retention of the child had taken place: at [43].
4 Generally, where the parents have agreed that the child should move to a different country for a defined period, the child would be wrongfully retained if he or she were not returned at the end of the period. However, retention of a child contrary to an agreement could occur even before the end of the agreed period of relocation once the parent in question intimates a clear intention not to return the child at the end of that period: at [44] and [48].
5 Whether a child was being retained in a jurisdiction without the consent of both parties could be deduced from the conduct of the parties if it was clear that the conduct in question was no longer consistent with the terms of the agreement which formed the initial basis of the child’s consensual removal: at [51].
6 The question of habitual residence was a question of fact to be determined having regard to all the circumstances of the case including the joint intentions of the parents, the child’s reasons for and perceptions of being in the new jurisdiction, as well as the objective indications of integration into the social and family environment in the new jurisdiction: at [74].
7 In the case of relocation of younger children and in the case of relatively short periods of residence in the new jurisdiction, generally, the joint or shared intentions of the parents could be a significant factor in pointing towards whether there was any change in the habitual residence of the child. The longer the period of residence in the new jurisdiction and the greater the evidence of integration into the social and family environment there, the less relevant would be the parents’ original reasons, purposes and intentions for the relocation in determining whether the child’s habitual residence had changed. Further, the intention of only one parent of the child to change his or her habitual residence would seldom have weight in the analysis: at [74].
8 The party seeking to rely on the defence of consent under Art 13(a) of the Hague Convention bears the burden of proof to show that the parent alleging the wrongful removal or retention of the child had unequivocally consented to the child’s removal or retention: at [77] and [78].
9 Consent under Art 13(a) of the Hague Convention would be vitiated if it had been obtained by deceit, fraud, misrepresentation or non-disclosure. It was only where the retention was ostensibly within the scope and terms of the consent given that it would be necessary to ask whether the consent was vitiated: at [89] and [92].
The full text of the decision can be found here.
This summary is provided to assist the public to have a better understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.
Subject Matters:
General children issues
2022/01/10
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