International Child Abduction

23 October 2017

Foo Soon Yien

The Hague Convention on the Civil Aspects of International Child Abduction (1980) (the “Convention”) is an international treaty between Contracting States that governs issues of international child abduction. Where a child under 16 years has been wrongfully removed or retained overseas, the Convention secures protection for parental rights of custody and access, and facilitates the prompt return of the child to his or her habitual residence.

The return of the child is based on the underlying agreement that the child’s welfare is best served by swiftly returning the child to his or her habitual residence where the courts there will decide all issues of custody and care.

Singapore acceded to the Convention on 28 December 2010 and implemented its obligations on 1 March 2011 with the enactment of the International Child Abduction Act (the “ICAA”). Singapore has a Convention relationship with countries including Australia, Hong Kong, France, Germany, United Kingdom and the United States of America.
 
Where a child has been removed or retained from his or her habitual residence to Singapore, the parent seeking the return of the child (the “requesting parent”) has two options in Singapore under the ICAA. The parent may either apply to the Central Authority of Singapore (i.e. the Ministry of Social and Family Development at the date of this publication) or apply to the Court in Singapore for an order that the child be returned.
 
The Central Authority of Singapore can take measures to, amongst others, discover the whereabouts of the child, prevent further harm to the child and facilitate a voluntary return or bring about an amicable resolution.
 
In the event that the Central Authority’s efforts are unsuccessful, the requesting parent may apply to the Court for a return order of the child. Unless the parent who removed the child (the “abducting parent”) has a defence, the Court must order the return of a child if the following requirements are satisfied:
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1. The child is under 16 years;
   
   
2. The child was habitually resident in a Contracting State that Singapore has a Convention relationship with immediately before any breach of custody or access rights. In determining a child’s habitual residence, the Court will look at the degree to which the child is settled or integrated in a country, and the intention of the parents as to whether the child is to reside in that country;
   
   
3. The child was wrongfully removed or retained. The child was wrongfully removed when the abducting parent took the child from the country of habitual residence to another country in breach of the requesting parent’s rights of custody under the Contracting State’s law. In comparison, the child is wrongfully retained when the abducting parent took the child to another country lawfully, but fails to return the child to the country of habitual residence in breach of the requesting parent’s rights of custody under the Contracting State’s law; and
   
   
4. The requesting parent was exercising his or her custody rights at the time of the removal or wrongful retention; and
   
   
5. The proceedings under the ICAA were commenced less than one year from the date of the wrongful removal or retention.

 
It is imperative that the requesting parent acts swiftly under the ICAA. Where proceedings under the ICAA are commenced in Singapore after one year from the date of the child’s wrongful removal or retention, the Court is no longer duty-bound to order the return of the child if it is demonstrated that the child is now settled in his or her new environment.
 
The Court is also not duty-bound to order the return of the child if other exceptions are satisfied. The burden of proving the exceptions falls on the abducting parent and the Court has held that it is a stringent burden to discharge. First, if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views, the Court may refuse to make the return order. The Court may also refuse to make the return order where there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Lastly, if it is shown that the requesting parent had consented to or subsequently acquiesced in the removal or retention, the Court may refuse to make the return order.
 
The Court may order that the return of the child is conditional on undertakings that the Court thinks fit and the requesting parent should be prepared to make such undertakings. The Court has emphasised that undertakings are not only a sign of the requesting parent’s good faith, they are also a temporary protective measure to ensure that the return of the child will not (as far as possible) adversely impact the child and/or the abducting parent. The requesting parent may be required to undertake that the abducting parent would receive legal representation for the custody and care hearings in the child’s habitual residence, and making arrangements for the child’s and abducting parent’s travel, reasonable accommodation, maintenance and health care in the child’s returning country.
 
Given the nature of this particular sphere of law, the Court has emphasised that the facts in each case are not only the first port of call but are also of the first importance. The Court will make its decision based on a close and granular analysis of the precise facts. Applicants and respondents are therefore well advised to present their respective cases in extensive detail.

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Foo Soon Yien
Director, BR Law Corporation
foosoonyien@brlawcorp.com