If your spouse removes your child from Singapore for more than one month without your written consent or without permission from the court, this may constitute a punishable offence under section 126(3), (4) and (5) of the Women’s Charter.

Under Singapore law, parents are expected to cooperate with each other. As such, regardless of which parent has been granted custody and/or care and control over the child, the Women’s Charter states that no person may take the child out of Singapore “except with the written consent of both parents or the leave of the court”. This means that even the parent who was given sole custody of the child by an order of the court is just as much bound by the requirements of the Women’s Charter to obtain the consent of the other parent or the court’s permission.

Additionally, in the event that your spouse has taken your child out of the country (or has retained your child in Singapore) in breach of your custody rights, this may be regarded “child abduction” or “child kidnapping”. As Singapore has acceded to the Convention on the Civil Aspects of International Child Abduction (Hague Convention) in 2010, you can make a claim under section 8 of the International Child Abduction Act 2010 (ICAA) for an order that your child be returned.

The Hague Convention is an international treaty which seeks to protect children from the consequences of being wrongfully removed from their country of habitual residence. It provides a legal avenue for the custodial parent to seek the swift return of his or her child, make the necessary arrangements to secure the rights of access to the child, as well as determine the appropriate court that should make custody orders relating to the child.

However, the Hague Convention only applies to countries which are parties to the Convention. If your child is taken to a country where the Hague Convention does not apply, it may be difficult to enforce the order. Instead, both parents will have to come to an agreement on the return of the child.

What if my spouse claims that he or she had to remove the child from Singapore (or had to retain the child in Singapore) due to medical, especially psychological, problems?
While there is no definite answer as each individual and each medical problem is different, such a reason will typically be carefully considered by the courts especially when the abducting parent is the mother and the child is very young. This is because courts acknowledge the close biological and emotional bonds between a mother and her child. However, in cases where the abducting parent could have been treated for her medical condition but refused to be so treated, the Singapore courts are unlikely to accept the medical problem as a legitimate reason for the removal (or retention) of the child.

Indeed, when a cross-border divorce takes place, conflicting opinions on which country your child should reside in may arise. Should you need more information on the wrongful removal of your child from Singapore (or the wrongful retention of your child in Singapore), consult our family lawyers who will be able to assess your case and provide you with the best possible assistance.

Clients who seek advice from our International Divorce Lawyers regarding the permanent removal of their children from Singapore usually come into the office looking flustered, desperate, and helpless at what to do due to uncertainty and pressures that they face from their spouse or ex-spouse who wants to permanently remove their child from Singapore.

In many cases, clients experience this due to their existing acrimonious relationship with their spouse or ex-spouse.

We understand from experience that most clients are worried about the welfare of the child, are anxious that they would never see their child again, and that their spouses or ex-spouses will permanently terminate communication between them and the child when they leave Singapore. These concerns are real and traumatic, and this article sheds some light on general steps that can be taken by you, to reduce the likelihood of that from happening.

1. If your child has not been removed from Singapore yet

1. Talk to your spouse or ex-spouse;
   You can discuss and negotiate with your spouse or ex-spouse regarding your terms for taking the child out from Singapore. In your negotiation, you can discuss and agree on terms for the child to leave Singapore temporarily. However, in the event that you and your spouse or ex-spouse have an acrimonious relationship, he or she does not want to talk to you about the matter, and is adamant about leaving Singapore with the child permanently, you can refer to the steps and procedures below with the guidance of our Expat Divorce Lawyers.
2. Talk to our International Divorce Lawyers
   If you are worried that your spouse or ex-spouse is going to remove your child from Singapore permanently, it is possible to make an application for an injunction to prevent the removal of the child from Singapore. This injunction order is a judicial order that can restrain your spouse or ex-spouse from removing the child from Singapore. There are certain criteria that you would need to meet before you can bring such an application to Court. If the Court grants the order for an injunction, failure to comply is punishable as contempt.

Concurrent with an application for an injunction to prevent the removal of the child from Singapore, you can make an application for interim custody, care and control over your child.

If the Family Justice Courts grants an injunction order, you can then make an application to the Immigration and Checkpoints Authority (ICA) to prevent your child from being taken out of Singapore by providing an undertaking.

Our Specialist Divorce Lawyers are able to assist you in making an application for an injunction to prevent the removal of the child from Singapore. Our lawyers can also advise you on your application for interim custody, care and control over your child, and assist you with procedural issues regarding filing an undertaking with the ICA within tight timelines.

2. If your child has been removed from Singapore and is living overseas

You may be in a situation where your child has been removed from Singapore by your spouse or ex-spouse for some time, and you are unable to communicate with your child. In this case, you can bring an application to Court for an order for the child’s return to Singapore. There are procedural criteria to be met before you can make an application, such as that your child has to be under the age of 16 years old, and you have sufficient interest in the matter. The Court also considers various complex legal principles in determining whether it should order the return of the child.

If you decide to make an application for the return of your child brought to another country, you may face multiple hurdles along the way which can be distressing. The application for the return of the child to his or her habitual residence can be challenged by your spouse or ex-spouse on multiple grounds. In most instances, the Court will consider the best interests of the child in deciding what orders, if any, would be made.

Parental alienation from a child is common in family proceedings, and we understand that the process of obtaining an order for the return of the child can be exhausting and daunting. Our Divorce Lawyers will be able to assist you in making an application to the Family Justice Courts, and will be able to guide you through various legal hurdles that you may face when you make an application for the return of your child to Singapore.

A parent’s love for his/her child knows no boundaries. Parents act in a way they think is for the best interest of the child even if that means bringing the child out of Singapore, for a holiday or for good.

Local laws entail that the consent of the other parent has to be given first in order to remove a child from of Singapore. Failure to do so could amount to child abduction. Our International Divorce Lawyers can assist in obtaining a court order to prevent a parent from removing a child from Singapore.

Even with a Court Order, our clients share with us their fears of their spouse removing their child from Singapore. These are valid fears and we understand that time is of the essence in such situations.

In this article, we will be sharing steps to be taken to prevent the removal of a child.

1. Sign and submit to Court two (2) documents: –

a. An Undertaking; and
b. The Court Order.

• These documents can be submitted via a system known as ‘E-litigation’.
• When in doubt, our Specialist Divorce Lawyers can assist in the administrative procedure to ensure an expedient process to give you a peace of mind.

2. Send the above mentioned documents in 1(a) and (b) to the Immigration and Checkpoints Authority (“ICA”) through email.

• These documents have to be sent to the relevant ICA email address and during the ICA’s working hours.
• When in doubt, please do not hesitate to contact our Singapore Divorce Lawyers who can provide further assistance to ensure a speedy and efficient process for your ease of mind.

Compliance with the above mentioned requirements in 1 and 2 is very important. Failure to comply may result in the ICA not providing the necessary assistance.

Our Specialist International Divorce Lawyers can help to ensure that the entire process of preventing child removal is seamless and speedy as possible to help them feel more secure.

Whilst undergoing International divorce, you may face confusion in dealing with issues regarding your children —can I bring them for visitation overseas? Or perhaps even move overseas permanently with them?

Firstly it is important to note that removing your child from the country without permission from the other parent is a criminal offence under the Hague Convention on Civil Aspects of International Child Abduction to which Singapore is a signatory. Permission must be granted by the court for international child relocation or travel in such international divorce cases.

How likely is it for an application for international relocation to succeed?

Courts have sometimes relied on the fact that the country to which the child is to be relocated has yet to sign the Hague Convention as reason to reject such applications. However it has also been established that the foreign nation’s Hague Convention status whilst remaining a pertinent factor is not a dispositive factor. Beyond the foreign nation’s Hague Convention status, another key aspect is whether the foreign country will effectively enforce the orders of Singapore court. It is advisable to obtain appropriate orders in the foreign nations or enter contractual agreements that are definitively enforceable in foreign nations.

How likely is it for an application for international travel to succeed?

One main issue considered is the extent to which the parent taking the child for international travel is a likely child abductor. Factors indicating such a tendency would include whether the parent has previously abducted the child or attempted to do so, engaged in activities that indicate planned abduction (e.g. selling of residential property, resignation from employment). Whether or not the country has signed the Hague Convention whilst not dispositive remains a highly relevant factor. It is advisable to consult a good international divorce lawyer depending on the context of your case.

Can my child/children refuse to return after international travel?

Under Article 13 of the Hague Abduction Convention the child need not be returned if the child objects to being returned and has attained age and degree of maturity at which it is appropriate to take account of its views. Therefore it is possible that if the child is old enough, he/she may successfully oppose a return should the taking parent create attractive conditions in the new country or instill fear of going back.

What can be done to ensure I can visit my child as the non-traveling parent should international travel be permitted?

In the provision of visitation order, the use of language that makes it easier for the foreign court to make a quick ruling in a Hague case in favour of the left behind parent is possible. The visitation order may for example include provision that the non-traveling parent has specified custody rights over the child or a representation by the taking parent that he/she will return the child no later than a specified date. However it must be noted that such an order will not bind foreign courts and the extent to which it has influence in foreign court is variable. It is advisable to consult a lawyer experienced in international divorce cases.

We will study the recent 2014 Singapore Court of Appeal case of BDU v BDT.
This will give you some insight onto the basis upon which an order can be made to return a child from his abduction to a foreign country, and the basis upon which that order can be refused. Unfortunately, cross-border cases like these spanning multiple jurisdictions can be very complicated. As much as we have attempted to simplify and clarify the issues, it is best to get advice from a divorce lawyer, particularly on that specializes in expatriate and/or international divorce.

The proceedings involved a three-year-old child, [B], his Singaporean mother and his German father. This appeal was brought by the mother against the High Court’s decision allowing the application of the father under the International Child Abduction Act for the return of [B] to Germany on the basis that [B] had been wrongfully retained in Singapore by the mother.

The mother resisted the application, relying on the Hague Convention on the Civil Aspects of International Child Abduction. The mother contended that an order for [B]’s return to Germany would put [B] at grave risk of psychological harm or would otherwise be placed in an intolerable situation due to the separation of [B] from his mother. This impending separation was purportedly due to the mother’s inability, on medical (specifically, psychological) reasons, to return to Germany with [B] should a return order be made.

An independent court expert was appointed to assess the risk of physical and psychological harm to the mother (including any risk of suicide and/or self-harm). The expert diagnosed the mother with “Delusional Disorder”, opining that the “prognosis [was] poor”. It was noted that [B] was of a very young age and that the mother was his primary caregiver. Any physical separation of [B] from his mother would not have been in the best interests of [B].

The expert recommended that the mother start treatment in Singapore in order to achieve some symptom control, after which her care could be transferred to Germany. The mother undertook to follow the independent psychiatrist’s proposal. Whilst a sufficient period of time would need to be furnished to the mother to embark upon treatment, there had to nevertheless be a timely return of [B] to Germany together with the mother. The mother also agreed that she would consent to the father applying (on her behalf) to the German court seized of the matter to incorporate all her undertakings as an order of that court. These undertakings ensured that any problems of enforcement would be taken care of.

On the father’s part, he had to undertake to ensure that the mother’s return to Germany with [B] was one that would see her being placed on a level playing field with him, especially with respect to access to legal advice and representation. He was required to give the necessary undertakings with regard to the mother and the children’s travel to Germany, reasonable accommodation, maintenance and health care, as well as the mother’s legal representation in Germany. These undertakings would clear away unnecessary logistical and other obstacles and set the legal stage for the more efficient resolution by the German court of the substantive issues of custody and/or care and control of [B].

After a divorce judgment is granted, the second stage of divorce proceedings in Singapore family law will deal with ancillary matters. The court is empowered to make a variety of ancillary orders. In particular, the court will also make orders pertaining to the continual care of any children to the marriage. There are four main types of orders in this regard, namely: custody, care and control, access, as well as maintenance.

Custody relates to the residual upbringing of the child. In particular, it concerns the authority to make major decisions for the child, apart from his or her daily needs. The court may choose not to make a custody order, and instead leave it up to the parties to cooperate with each other for the wellbeing of their child. However, where the court chooses to make such an order, it is very likely that the order will be for joint custody as opposed to one of sole custody.

Care and Control relates to the party whom the child will continue living with. The party in question will have authority to make small daily decisions for the child. However, the party with care and control will still be expected to consult with the other party in making bigger decisions in the child’s life. The court will generally allow the parent who is better able to care for the child to have care and control.

Access Orders are typically granted to the parent without care and control of the child, if parties are unable to agree on reasonable access rights. The court will take into account the best interests of the child, and will generally try to ensure that the child gets to spend time with both parents and bond with them.

Maintenance Orders for children to the marriage are also available. This is because both parents bear the financial responsibility to maintain their child until he or she becomes an adult. This liability rests equally on both the father and the mother. The court can only make a maintenance order against a parent who has neglected to provide maintenance for the child. In making such an order, the court will take into account all circumstances of the case, with the most important factors being: (1) the financial needs of the child, and (2) the ability of the parent in question to meet such needs.

If you require advice on any of the above ancillary matters, you should engage a family law specialist. GJC Law has highly experienced lawyers who have dealt with a wide range of divorce matters. Should you wish to schedule a free initial consultation with us, please contact GJC Law at 6337 0469, or email consult@gjclaw.com.sg.

If you are an expatriate seeking divorce in Singapore and you have a child to your marriage, this article may be of use to you because it will provide you with a better understanding of Singapore’s position with regard to:

1. Custody
2. Overseas Access
3. Care and Control
4. Access
5. Relocation
6. The Welfare Principle

1. Custody

Custody grants you legal authority to make decisions on the major issues in your child’s life. Such major decisions are usually with regard to:

• Medical Issues: This includes decisions whether the child is to be hospitalised, whether a non-emergency surgical procedure is to be performed on the child.

• Education: This involves issues such as the choice of school, choice of enrichment classes, choice of course in school, choice of subjects, whether the child is to attend a particular school trip or outing, or tuition.

• Religion. This involves the religious instruction of the child, attendance at religious places of worship, undergoing religious ceremonies, etc.

There are four different types of “custody” orders that the courts may grant:

1. Sole custody order: The custodial parent may make major decisions for the child without the agreement of the other parent.

However, do note that sole custody is only granted in exceptional circumstances where joint parenting would hinder decision making in material ways or where joint parenting is not in the best interests of the child. For example

• Where one parent is abusive;
• Where the relationship between the parties is such that cooperation is impossible even after the avenues of mediation and counselling have been explored and such lack of cooperation is harmful to the child;
• However, acrimony alone will not justify a sole custody order.

Ultimately, the type of custody the courts will order is one that is based on the factual matrix of the case.

2. Joint custody order:Both parents must make major decisions for the child jointly. This means that they must agree on the decisions that are made. In the absence of agreement, regretfully, either parent will have to apply to court for a determination of the disputed issues.

A joint custody order is the most common order that courts make so as to promote the idea of joint parental responsibility. This encourages the parent who does not live with the child to continue with his responsibilities to the child as his or her parent.

3. Hybrid order: This is a sole custody order but includes an order that the custodial parent must consult (or even obtain the consent of) the non-custodial parent when making decisions on specified matters, for example, choice of school, choice of course in school and so on.

4. Split custody order: This is when the custody of one or more siblings is granted to one parent and the custody of the other siblings is granted to the other parent. As a general rule, siblings should be under the care of the same parent. If a split custody order is sought, then the parents must file affidavits in support of such a split custody order and explain how this would be in the best interests of the children.

Based on first principles, in every case where custody in contention, the welfare of the child is the paramount consideration when courts determine what type of custody order to grant.

2. Overseas Access

In a situation where the Court finally decides to award your spouse sole custody, you should not be disheartened.

On a case-by-case basis, if you live abroad, your child may still be allowed to visit you abroad. You may even take your child on a holiday overseas.

The rule is that where your spouse has been granted sole custody over your child, then you cannot take your child out of Singapore unless your spouse has given consent or if you apply to the Court for a grant of leave to do so (section 131(1), Women’s Charter).

It is important that you observe this rule as contravention of the rule would result in liability to a fine or imprisonment for a term not exceeding 12 months or to both.

However, you may wish to note that you may request for the Court’s order of granting custody to your spouse to be made subject to specific conditions that the court deems fit to impose in your favour.

This is provided for by rules under the Women’s Charter allowing you to take your child overseas if you are living abroad or to go on holiday.

• Courts may impose a condition to allow the child to be temporarily in your care and control for some periods of time although your wife is granted custody.

• Your child may visit you at such times and for such period as the court may consider reasonable.

• You may have access to your child at such times and for such frequency as the court may consider reasonable.

• Your spouse may be prohibited from taking your child out of Singapore.

Again, whether these rules can be applied in your favour would depend on the court’s discretion and turn on the specific circumstances of your case.

3. Care & Control

Custody is different from the issue of care and control. Care and control means with which parent the child lives with on a day-to-day basis. The parent who is awarded care and control has the authority to make decisions relating to the day-to-day activities of the child (e.g. with regard to meal times and bed times).

Like custody, care and control may also be held jointly or solely. There is also a situation in which care and control of children is split, in much the same way as there is a split custody order, i.e. when the siblings live with different parents.

However, as mentioned earlier, a split order for care and control is rare as the general rule is that siblings should be under the care of the same parent. This is unless parents are able to satisfy the courts that a split order for care and control would be in the best interests of the children.

Here is a non-exhaustive list of factors that the courts will take into consideration in coming to a decision with regard to the issue on care and control:

• Child’s attachment and comfort, whether shifting back and forth both parent’s houses will disrupt the child’s routine and life
• Financial circumstance of parents
• The age of your child – whether he or she is of an independent age to make a decision on who he or she prefers to live with
• Parent’s level of awareness of child’s behavioral cues, dietary habits and sleeping routines
• Who the proposed caregivers are (e.g. grandparents, domestic helpers, friends of parents awarded care and control) and how close are they to the children
• Whether one parent contributed to the other parent’s estrangement or made access difficult for the other parent

Do note that where the courts have awarded one parent care and control and that parent has attempted to deliberately alienate the child from the other parent, undermining their relationship, the courts may reverse the care and control order. This remedy would be most suitable in a situation in which the child begins to show animosity towards a parent with whom he previously had a loving relationship.

• Reasonableness in providing access for the other parent
• Stability (However, stability can be overridden by other factors such as the need to maintain a relationship with the parent who has been alienated)

Ultimately, like custody, in making an order for care and control, the paramount consideration is also the welfare of the child.

4. Access

The non-custodial parent who does not have care and control of the child will usually have access to the child. The starting point is a presumption that such access would be beneficial for the child. The issue is then the quantum of access.

The quantum of access is dependent on various factors, including but not limited to:

• The child’s needs.
• The child’s wishes.
• The non-custodial parent’s previous contact with the child.
• The history of the relationship between the child and the non-custodial parent.

Some examples of access periods that the non-custodial parent may ask for include the following:

• Weekday access: This is usually mid-week for a few hours and would usually be subject to the child’s school schedule or other activities, e.g. tuition.

• Weekend access: This may include overnight access and would also have to take in to account the child’s school schedule and other activities.

• Public holiday access: Parties often come to an arrangement where each parent spends alternate public holidays with the child. Certain public holidays may be more significant to parties for example, Lunar New Year for Chinese parties or Deepavali for Indian parties. Special arrangements can be made for such significant public holidays for example, if one parent has reunion dinner on Lunar New Year eve with the child, then the other parent then has the child with him/her on the first day of Lunar New Year and the first parent then has the child on the second day of Lunar New Year. This arrangement can then be alternated for the next year

• School holiday access: There are four main school holidays. These are:

1. One-week March school holidays;
2. Four-weeks June school holidays;
3. One-week September school holidays; and
4. Five-and-a-half-week November/December school holidays.

• Other school holidays: These are days in which the children do not need to attend school and which are not gazetted public holidays, for example Children’s Day, Teachers’ Day, Youth Day and PSLE marking days.

• Other special occasions for example:

1. Father’s Day
2. Mother’s Day
3. Birthdays of the children or their parents
4. Access for the purpose of attending a relative’s funeral or a wedding etc.

Access orders are generally unsupervised i.e. the non-custodial parent will be able to spend time on his own with the child without any third party monitoring the access.

However, the court may make an order for supervised access in light of the need to:

• Protect the child from possible abuse whether physical or emotional;
• Assess the relationship of the non-custodial parent with the child especially if contact has been infrequent; or
• Improve the relationship between the child and the non-custodial parent

5. Relocation

In the event of a divorce, you may desire to take your child back to your home country. However, the relocation may deprive your child of time spent with his or her other parent due to the inconvenience in scheduling time for access. Thus, if you wish to relocate with your child abroad, you have to seek the other parent’s consent or make an application to the court for such relocation.

In deciding whether or not to grant an application of relocation, the court also only has one paramount consideration: the welfare of the child. The court will reject such an application if it can be shown that relocation will not be in the best interests of the child.

Here are some factors that the courts will take into consideration in determining what is in the interest of the child:

• Whether the relocation is permanent or for a short term
• Remarriage of the relocating parent
• Family support and grandparents abroad
• Child’s education
• The loss of relationship with the other parent
• Enlistment for national service in Singapore

6. Welfare

As evidenced above, the welfare of the child is the paramount consideration when courts make orders concerning a child.

There is no definitive scope for the term “welfare” as it is to be construed broadly. However, “welfare” is not to be measured in monetary terms. As a non-exhaustive guide, the following factors will be taken into consideration by the courts when determining what is in your child’s welfare:

• The general wellbeing of your child
• Continuity of care given to the child
• The parent’s wishes
• Your child’s religious upbringing
• Your child’s moral upbringing
• Your child’s physical upbringing
• Your child’s happiness
• Your child’s comfort
• Your child’s sense of security
• Your child’s educational development
• Whether your child would be provided with a stable home
• The starting position that siblings should not be separated.

To find out more with regard to the above, you may wish to seek legal advice from a Singapore Expat Divorce lawyer from Gloria James-Civetta & Co.

At Gloria James-Civetta & Co, we offer a free 20-minute consultation with one of our matrimonial lawyers. Should you have any queries or should like to seek legal representation, kindly contact us at 6337 0469 or email us at consult@gjclaw.com.sg.