Saturday, June 18, 2011

Court's dilemma over tug-of-love twins

Jun 14, 2011

By K. C. Vijayan

THE case of the Singaporean mother arrested last week when she landed in the United States to seek access to her sons highlights the difficult issues in cross-border child custody battles.

It is likely to be the start of more such disputes in Singapore. This is because Singapore acceded to the Hague Convention just this March. This sets out rules on what countries should do to prevent child abduction in custody cases, and the need to ensure the prompt return of the children to their original dwelling in the country they were unlawfully taken from. More legal challenges can be expected to be filed in courts here by couples battling for custody over their children.

This particular incident provides a case study of how observing the letter of the law can be seen as contravening its spirit.

But to recap. The 45-year-old Singaporean woman had been embroiled with her former American husband over custody of her twin boys, now 11. The couple split in 2009 after about 10 years. The marriage was annulled as it emerged her divorce to her first husband had not been completed when she married the American.

Tests have also shown that the American is not the boys' biological father.

In 2009, while there were still unresolved access and custody issues before the US courts, the mother took the boys and left Los Angeles to return to Singapore. They remained here for about 18 months, enrolling in primary school and living a Singapore life.

As this is considered child abduction under US law, the former husband took out a court order to compel her to send the twins back to America pending the hearings. His lawyers sought to enforce the US court order here, and she appealed in the Singapore courts.

At a hearing in March, a district judge here ordered that the twins should return to the US, saying the courts would not endorse any move to be in contempt of a standing US court order.

This followed the Hague Convention's requirement of 'prompt return' of the children involved.

But as some analysts point out, the court must also be guided by the paramount issue of what is in the child's best interests. This is embodied in the Convention as well.

In this case, the twins had previously written to the Singapore authorities seeking help so they could remain in Singapore with their mother. But their testimonies were not heard in court.

Following the Singapore court decision, the twins were put on a plane and sent back to the US two weeks later.

The mother would have to return to the US to go through the court process to seek access and custody of her children. But as she had broken the law by taking them out of the country, she was considered a criminal and placed on the Interpol's global Red Notice wanted list, alongside drug traffickers, terrorists and murderers.

She decided to return to the US anyway to seek custody of her children. As expected, she was detained on landing. She is now in remand and will have to fight both her criminal and subsequent family court cases for access to her children.

While difficult, such tug-of love cases are not uncommon in divorces where the two parties involved live in different countries and both seek custody.

The court deciding such issues has to weigh many different considerations.

One is the principle of giving friendly recognition to the laws of other countries. This explains the district judge's statement that she would not endorse the mother's application not to return to the US hearings as that was in contempt of the US courts.

But a higher court judge opined that giving friendly recognition to the laws of another country could not outweigh the interests of the children. Justice Andrew Ang said this in a High Court hearing last month, when the woman decided to appeal against the district judge's decision.

The district judge was not wrong to have had regard to the fact that there was a US court order giving sole physical and legal custody to the father, said Justice Ang.

But the district judge 'should have also considered whether or not the children would be at grave risk of physical or psychological harm or would be placed in an intolerable situation if an order for their return was to be made'.

'In deciding whether or not to grant a summary order for the return of the children, the court must necessarily consider all the facts and circumstances of the case discoverable from affidavits or other evidence filed by the parents or other relevant parties.

'The children's objections may also be taken into account where they are regarded as having attained sufficient maturity,' he said.

Singapore Management University law don Chen Siyuan concurs that the child's welfare is paramount. Sometimes, a court's ruling may be viewed as unfair to one parent.

National University of Singapore law don and family law expert Debbie Ong points out that where the Hague Convention does not apply, a British court case ruled in 2005 that welfare of the particular child is the paramount consideration.

'So in this case, the court can disregard the foreign order, reopen the merits of the case at hand, and determine what is presently in the child's welfare. This may include calling for reports of experts assessing the child's well-being.'

She explained that under domestic law, the welfare of the particular child is paramount. But the Hague Convention also upholds another important principle - the welfare of all children.

'The convention aims to protect all children by discouraging child abduction with its prompt return directive.

'This directive is strongest in the first year of removal, and less strong if more than a year has passed since the wrongful removal. The convention allows exceptions to the prompt return directive - where the child is well settled or expresses opinion that she wishes to remain in the country, or where there is a grave risk that her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the court can order children to stay and not be returned,' she added.

While prompt return is the main directive under the convention, it does not apply in this case as the children in question were removed before March 1 this year.

Highlighting the delicate balance to be struck, Associate Professor Ong said the court would have to balance all the interests involved, including upholding the convention's principle of prompt return. After all, the mother would have appreciated the convention's assistance to obtain the return of the children if the positions had been reversed.

She said: 'The convention can assist many like her who will not otherwise have resources to locate her children. In order for the convention to be effective and achieve its objectives, it must not too easily allow exceptions to prompt return principle, but exceptions are available in genuine cases.'

Family lawyer Rajan Chettiar said this is the first case he has come across where the competing interests of the law in sending the twins back and their own interests have been reported here.

'This is a very difficult case for the courts where it appears the best interests of the kids have taken a back seat. I expect to see more cases to emerge with the Hague Convention now applying here.'

Singapore judges in future cases will have this precedent to look at, where one district judge orders prompt return, and a higher court says judges must also consider if such a return order would put the children in an 'intolerable situation'.

The Hague Convention may require prompt return, but the convention exists in the first place to safeguard children in custody battles. Thus a prompt return order may follow the letter of the law, but is not always in keeping with its spirit of acting in the child's best interests. In such cases, exceptions may be necessary.

This is the paradox that courts of different jurisdictions have to reconcile based on peculiar circumstances of a particular case.

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