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Petitioner: TSF VS Respondent: TSE
Court Name: Court of Appeal of the Republic of Singapore Judge(s): Steven Chong, Judith Prakash, Tay Yong Kwang Title: TSF vs TSE Case No.: Civil Appeal No, 167 of 2017 Date of Judgment:2018-08-16 Reported As: 2018 P.S.C. 1601 Result: Appeal allowed
JUDGMENT
JUDGMENT JUDITH PRAKASH, JA --- Introduction The present appeal concerns the appropriate orders for the care and control of a child who is situated in rather special circumstances. Since January, 2014, the child's parents have been engaged in an acrimonious battle over the child's custody in two jurisdictions: Singapore and England. Several orders have been made by the English Courts requiring the father to return the child to England, but none were complied with. The mother made allegations of criminal conduct against the father which led to his arrest and trial in England, but the father alleges that these were false and malicious allegations as shown by his subsequent acquittal by a jury. Regrettably, in the course of this custody baffle, both parents have gone to the extent of committing criminal offences. As a result, neither of them is able to freely travel to the jurisdiction of the other parent's residence. This means that the options available to this Court regarding the child's care arrangements are presented in stark terms, since the parent not granted care and control of the child is likely to have limited interaction in person with the child. 2. In TSH and another v. TSE and another and another appeal and another matter [2017] SGHCF 21 ("the Judgment"), the learned High Court Judge ("the Judge") held, amongst other things, that it was in the best interests of the child for him to be returned to his mother's care in England. The Judge thus granted joint custody to both parents, care and control to the mother, and reasonable access to the father. 3. The Judge's decision resolved many issues. Even custody is no longer in dispute, both parties accepting the order for joint custody. The question before this Court is who will have control over the child's daily life. Civil Appeal No, 167 of 2017 ("CA 167") is the father's appeal against the
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Judgment, and Summons No, 27 of 2018 ("SUM 27") was his application for leave to adduce fresh evidence on appeal in the form of three reports dated early 2018. Facts The parties 4. The subject of the present proceedings is M, a Singapore citizen. He was born in London in mid- 2012 and his parents brought him to Singapore in July, 2013. Since then, he has been residing in Singapore. M attends a kindergarten in Singapore and is due, if he is to remain here, for enrolment in a local primary school in early 2019--M was born with a congenital lung condition. Initially treated for this condition at a hospital in London, he is currently under the care of KK Women's and Children's Hospital ("KKH"). In early 2017, M was diagnosed by a specialist at KKH as having Autism Spectrum Disorder ("ASD"). He has been participating in an early intervention programme run by the Autism Association (Singapore) ("AAS") since June 2017. 5. The appellant, TSF ("the Father"), is M's father. He is a 41-year-old Singaporean. During the marriage, the Father worked in the London office of an international bank. After his return to Singapore in September 2016, the circumstances of which are discussed below (at [27]), he worked as an ad hoc tuition teacher and a freelance risk management consultant. His counsel informed this Court at the hearing of the appeal that he had recently found employment as an administrator in a local tertiary institution. He presently resides with M in Singapore. 6. The respondent, TSE ("the Mother"), is M's mother. She is currently 35 years old and is a national of another Asian country. After the parties married in Singapore in June 2011, she moved to London to live with the Father. At present, she is still residing in the parties' English matrimonial home. She has been granted a "Leave to Remain" permit by the UK immigration authorities. This permit, granted in August 2017, entitles her to live and work in the UK until 31st January, 2020, with the possibility of further extensions. The Mother was a student during the marriage but avers that she recently found employment in London as a bookkeeper and office administrator. 7. M and the Father live with M's paternal grandparents ("the Grandparents"), who are retirees. The Grandparents have been involved in caring for M for a substantial part of his life. Proceedings in Singapore 8. In July 2013, when M was around a year old, his parents brought him to Singapore so that the Grandparents could look after him while the Mother prepared for an examination in England. Shortly thereafter, the couple returned to the UK, leaving M behind. The relationship between his parents broke down while M was in Singapore. Unbeknownst to the Mother, the Father had decided to end their marriage and he covertly instructed his solicitors in Singapore to prepare the necessary applications. 9. On 18th January, 2014, the Father and the Mother arrived in Singapore again. The Mother was under the impression that they were here to pick up M and would return to the UK with him within the month. Within days of their arrival, however, the Father initiated divorce proceedings in Singapore and filed the following applications:-- (a) OSF 30/2014, an ex parte application to restrain the Mother from taking M out of jurisdiction while the other applications were being heard; (b) OSF 31/2014, an application for sole custody, care and control of M with supervised access to the Mother; and (c) OSF 36/2014, an application for leave to file a Writ of Summons for divorce within three years of marriage. 10. The second and third applications were served on the Mother on 22nd January, 2014. She was caught by surprise. Although the applications had been assigned hearing dates in February, the Mother took no action in Singapore at that point. Instead, she instructed solicitors in England to file an emergency application in the English Courts. She obtained an order from the English High Court
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on 24th January, 2014 requiring the Father to return M to England. According to the Mother, the order was served on the Father by e-mail and so enraged him that he made threats against her life which terrified her. On 25th January, 2014, the Mother flew back to the UK alone. At the Singapore airport she was served with the ex parte application to restrain her from taking M with her but there is no indication on the record that she was planning to do so at that time. 11. The Mother took no part in the Singapore proceedings for quite a while thereafter but pursued her English proceedings. These led to several orders being made subsequently by the English Courts: (a) M was made a ward of the English Courts; (b) the Father's passport was impounded; and (c) the Father was repeatedly ordered to return or cause the return of M to the UK. For clarity of exposition, we elaborate on the English proceedings separately at [0] to [25] below. It should be noted that the Father himself returned to England shortly after the Mother, leaving M with the Grandparents, and thereafter contested the English proceedings. 12. On 26th February, 2014, the Father was granted leave by the Singapore Court to commence a divorce suit within three years of the marriage. The Father filed for divorce here on 28th February, 2014. At this point, the Father carried on the proceedings from abroad. Shortly after the divorce proceedings were commenced, the Grandparents filed an application seeking to be appointed legal guardians of M and to have interim custody, care and control, pending the conclusion of the divorce proceedings. 13. In July, 2014, interim judgment of divorce was granted to the Father. In January, 2015, the Court decided it should make no order as to the custody, care and control of M, without prejudice to either party's right to apply for custody after the conclusion of the English proceedings in relation to M. In the light of this, the Grandparents withdrew their application for guardianship. 14. Whilst the Mother's English solicitors wrote to the Family Court in Singapore a few times in 2015 informing them of orders made by the English Courts, the Mother hardly participated in the Singapore proceedings. She did not take action here until late November 2015 when she filed an application for an order mirroring those made by the English Courts for the return of M and for the recognition of M as a ward of the English Courts (hereinafter, the "mirror order"). Shortly thereafter, in January, 2016, she filed a Notice of Appointment of Solicitors in the divorce proceedings. Proceedings in England 15.In the meantime, proceedings relating to the custody of M were apace in England. On 24th January, 2014, in response to the Father's applications in Singapore, the Mother filed an emergency ex parte application in the English Courts for the return of M to England. On the same day, the English High Court made orders for the Father to return M to England no later than 29th January, 2014. Further, the Father was to surrender his and M's travel documents, insofar as they were within his possession or control, until further direction of the Court. M was also made a ward of the English Court until further order. 16. On 30th January, 2014, the Father attended at the English High Court and disputed its jurisdiction over M. He took the position that M was habitually resident in Singapore and that it was the Singapore Courts that had jurisdiction to make orders relating to M's welfare. As a result, the earlier Court order was suspended and the issue as to M's place of habitual residence was fixed for hearing. 17. On 28th February, 2014, the Father was arrested by the London police in relation to allegations of marital rape made against him by the Mother. 18. On 14th March, 2014, after hearing arguments as to M's habitual residence, Russell, J. delivered judgment holding that M was habitually resident in the UK and accordingly ordered the Father's return of M to the UK no later than 18th March, 2014: see Re M (a child) [2014] EWHC 963 (Fam). The Father's passport was ordered to be detained until M was returned to England. 19. On 3rd April, 2014, after the Father failed repeatedly to comply with orders to return M to the UK,
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the Father was found to be in contempt of Court by the English High Court and sentenced to 18 months' imprisonment: see MB v. GK [2014] EWHC 1122 (Fam). The Grandparents were also joined as parties to the wardship proceedings and ordered to return M to the UK. In June 2014, on appeal by the Father, the English Court of Appeal set aside the order of imprisonment but affirmed the finding that M was habitually resident in the UK and consequently dismissed the Father's appeal against the orders requiring him to cause M's return to the UK: see Re K (Return Order Failure to Comply: Committal: Appeal) [2015] 1 FLR 927. 20. Several events occurred in the second half of 2014:-- (a) In August, 2014, the Mother engaged the assistance of a child recovery organisation and entered Singapore illegally by boat with two of its operatives. They forcibly removed M from the Grandparents' care while the Grandparents were leaving their residence with M. A scuffle left M and one or both of the Grandparents with minor injuries. The police retrieved M shortly afterwards and arrested the Mother. M was then placed in the voluntary care of the Grandparents. In September, 2014, the Mother pleaded guilty to immigration offences in Singapore and was sentenced to ten weeks' imprisonment. (b) In July, 2014, Wood, J. ordered the Father, insofar as he was lawfully able to do so, to seek the immediate return of M to the UK in the Singapore Courts. However, this order was later discharged as the Mother no longer relied on it. 21. In June, 2015, Roberts, J. of the English High Court heard and dismissed the Father's application to stay the English wardship proceedings on the grounds of forum non-conveniens in Re K (A Child) (No, 3) (Forum Convenient) [2016] 2 FLR 132. Further, she made orders in July, 2015 for M to be joined as a party to the proceedings, for a third party to be appointed as his guardian, and for him to be returned to England by 9th September, 2015. Two further Court orders were made in August and October, 2015 requiring the Father to cause the return of M to England on pain of contempt of Court. Again, these orders were not complied with. 22. In October, 2015, the Father was tried for alleged rape of the Mother. He was subsequently acquitted by the jury. 23.According to the Mother, as of November, 2015, 11 orders had been made by the English Courts for the return of M, none of which were complied with. 24. In late November, 2015, the Mother filed OSG 204/2015 in Singapore seeking the mirror order (see [14] above). In December 2015, she also obtained an interim injunction preventing the Father and the Grandparents from removing M from Singapore. In response, the Grandparents made a second bid for guardianship of M. The Father also applied for sole custody, care and control of M with supervised access to the Mother. The Mother in turn applied for the Father's and the Grandparents' applications to be stayed. 25. This led to a total of five applications before the District Judge ("the, DJ") in the Family Court and it is to these applications that we now turn. The decisions below The DJ's decision On 9th May, 2016, the DJ delvered judgment, identified as TSE v.TSF and others [2016] SGFC 121 ("the FC GD"). It should be noted that at that point in time, both the Father and the Mother were in the UK and the Father was unable to return to Singapore as his passport had been impounded by the UK authorities. The five applications dealt with in the FC GD may be briefly discussed in three groups as follows:--- (a) Mirror Order: The Father took no position as regards the mirror order but he objected to the other prayers (e.g., that M be returned to the UK) on the basis of forum non-conveniens (the FC GD at [42]). The DJ held that neither forum non-conveniens considerations nor M's best interests would be offended if she granted the mirror order, and, accordingly, made that order (see the FC GD at
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[44]). (b) Grandparents' Application: The Grandparents applied (i) to be appointed M's legal guardians; (ii) to be granted interim custody, care and control of M; and (iii) for the Court to request a Social Welfare Report. In response, the Mother applied to stay or dismiss the Grand parents' application on grounds of lis alibi pendens and/or forum non-conveniens. The DJ granted the Mother's application for a stay on the basis, first, that England was the more appropriate forum for M's custody proceedings (inter alia, because of the ongoing English proceedings and the presence of both parents in England) and, second, that there were no special circumstances justifying a refusal of the stay application (the FC GD at [37]-[39]). (c) Father's Application: The Father sought sole custody, care and control of M with supervised access to the Mother. His application was filed under the parties' divorce suit that had already concluded, in which an appeal from the District Judge's decision to make no order then as to custody, care and control of M was dismissed "save that it is without prejudice to any application made after [the Father's] return to this jurisdiction" (the FC GD at [26]). The Mother applied to stay or dismiss the Father's application. The DJ dismissed the Father's application on the basis that he was not in Singapore and therefore did not satisfy the condition on which he could make a new application (the FC GD at [26]). Events after the DJ's decision 27. As stated, the FC GD was issued in May, 2016. In September, 2016, the Father absconded from the UK to Singapore in breach of the English passport orders. His counsel informed this Court that the Father had attempted to obtain a travel document from the Singapore consulate in Dublin, Ireland, under the false pretext that he had lost his passport. This plan was foiled when the consulate discovered that his passport had in fact been impounded by the English authorities. The Father then apparently travelled as a stowaway and somehow reached Ankara, Turkey, where he confessed his situation to the Singapore embassy there. He was given a one-time travel permit which allowed him to return to Singapore. On arrival here, criminal proceedings were brought against him for the false statements that he had made to the consulate in Dublin. In May, 2017, the Father was sentenced to three weeks' imprisonment. As a result of this offence, the Father is highly unlikely to be issued a replacement passport by the Singapore authorities for some time to come. 28. Meanwhile in England, Roberts, J. had convened a welfare enquiry in November 2016 to decide on the final orders to be made in relation to M. She invited the Father and the Grandparents to participate, but they declined on the basis that the English Courts lacked jurisdiction. The enquiry led to a judgment delivered in November, 2016 for M to be returned to England immediately, whereupon he was to be handed to the Mother and to live with her: MB v. GK and others (No, 2) Wardship (Welfare Enquiry) [2017] EWHC 16 (Fam) ("MB (Welfare)"). The Judge's decision 29. In March 2017, appeals by the Father and Grandparents against the DJ's decision came before the Judge in the High Court. 30. As the Father had by then returned to Singapore, he became the driving force opposing the Mother's applications. In March, 2017, he sought and was granted leave to amend his notice of appeal to include an appeal against the mirror order, even though he had initially taken no position in this regard (the Judgment at [27]). To facilitate this amendment, the parties were granted leave to adduce fresh evidence. Further, the Father filed an application to vary the earlier no-custody order made in his divorce suit. This was directed to be heard together with the appeal. The Grandparents took a backseat and requested that no order be made on their application to be appointed M's guardians. 31. In the High Court, the main issue was whether it would be in M's best interests for the mirror order to be made. The Mother argued that it.was in M's best interests to be returned to the UK and
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placed under her care, relying primarily on MB (Welfare). The Father argued that it was not in M's best interests to be returned to the UK, relying in particular on two new facts that were not known to the DJ:--- (a) that M has ASD; and (b) the Father's return to Singapore in September 2016 and his willingness to care and provide for M. 32. To aid the Court's determination, the Judge appointed Mr. Yap Teong Liang ("Mr. Yap") as the Child Representative for M and Ms Flazel Yang ("Ms Yang") as the Court Counsellor. Each of them prepared a report which the Judge considered. 33. The Judgment was released on 29th August, 2017. For purposes of the present appeal, it suffices to note that the Judge held that MB (Welfare) could not constitute res judicata (the Judgment at [50]). Instead, the Court had a statutory duty under S. 3 of the Guardianship of Infants Act (Cap 122, 1985 Rev. Ed.) ("the GIA") to consider the child's welfare as the first and paramount consideration in deciding any question relating to the custody or upbringing of an infant (the Judgment at [38]). The concept ofthe child's welfare was to be understood "in the widest sense" and might implicate a multitude of factors (the Judgment at [74]). In this regard, the Judge adopted the factors proposed by the Family Law Review Working Group in its report titled Recommendations for Guardianship Reform in Singapore dated 23rd March, 2016 ("the Guardianship Report") (the Judgment at [75]). 34. Applying the factors, the Judge found that even though M had settled in a stable environment, the Mother remained the best candidate to care for M on a daily basis (the Judgment at [78]). Her conclusion was based on the following main findings:--- (a) Despite their lack of contact in person for several years, M still shared a stronger emotional bond with the Mother than with the Father. In this regard, the maternal bond is worthy of special protection in cases involving the custody of young infants. (b) The Mother was more than capable of meeting M's developmental and material needs. (c) If M remained in the Father's household, he would likely see the Mother's role in his life diminish under the influence of the Father and the Grandparents. In contrast, the Mother appeared to recognise that the Father ought to play a role in M's life. (d) The need to ensure a stable care environment did not override the need for M to be reunited with the Mother. The challenges that M would face in adapting to a new environment were neither new nor insuperable. The English Courts would also assist M's adaptation to his new environment in the UK. 35. Consequently, the Judge dismissed the Father's appeal entirely. She affirmed the mirror order and, to facilitate that, she also granted joint custody to both Parents, care and control to the Mother, and reasonable access to the Father. She made no order on the Grand parents' appeal. Further, the Judge also ordered, amongst other things, that:--- (a) M was to be returned to England within 28 days of the date of the order. (b) The Father was to hand M and his travel documents over to the Mother at the Child Focused Dispute Resolution Centre at the Family Courts' premises within 14 days of the order. (c) The Father and the Mother were each to have daily access to M (in person or through Skype) before M left Singapore. After M left Singapore, the Father was to have daily access through Skype at a time convenient to both parties. (d) M was to commence transition and reunification counseling with a Court-appointed counselor within ten days of the date of the order, the costs of which were to be borne equally by the parents. The arguments on appeal 36. In the present appeal, the sole issue relates to the Judge's conclusion that it was in M's best interests for him to be returned to England and placed in the Mother's care. In this regard, the
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Father raises six main arguments against the Judge's findings:--- (a) that the Judge gave excessive weight to the emotional bond between M and the Mother and the perceived level of intimacy between M and each of his parents; (b) that the Judge erred in finding that M is closer to the Mother than the Father; (c) that the Judge erred in finding that the Mother would be able to meet all of M's emotional, developmental, and material needs; (d) that the Judge gave undue and excessive weight to the Father's perceived character and conduct, without applying the same level of scrutiny to the Mother's character and conduct; (e) that the Judge erred in finding that M's relationship with the Mother would not be preserved by the Father and the Grandparents, and conversely that M's relationship with the Father and the Grandparents would be preserved by the Mother; and (f) that the Judge gave insufficient weight to the desirability of continuity of arrangements and the likely impact of a change of environment on M. 37. The Mother's submissions respond directly to the arguments raised by the Father and are taken account of in the analysis below. Before moving to the analysis, we deal with the Father's application for leave to adduce fresh evidence in this appeal. The application to adduce fresh evidence 38. In SUM 27, the Father sought leave to adduce tree reports as fresh evidence on appeal. Contents of the fresh evidence 39. The first report was by a consultant pediatrician of KKH ("the Consultant") dated 22nd January, 2018 ("the KKH Report"). This report confirmed the diagnosis of ASD made in respect of M and observed that M had made good progress with improved communication and no behavioural difficulties. The report further stated that such progress was "likely" to be due to the early intervention programme that M was enrolled in, and that if M continued to receive intervention and support from his preschool, it was "likely" that he "may be able to" access mainstream curriculum, either in a mainstream school or a special education school. Conversely, however, the Consultant opined that M's condition could stagnate if the intervention programme was disrupted:--- If there is a disruption to the intervention programme, there is a possibility that there could be stagnation in his progress. Unless ... he gets similar kind of intensive intervention in a foreign country, to which he could take some time to get adjusted. Any kind of transition or disruption is challenging to a child with ASD. With him being close to a year from attending Primary 1, it is strongly encouraged…
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