https://www.elitigation.sg/gdviewer/SUPCT/gd/2018_SGHCF_20

IN THE FAMILY JUSTICE COURTS OF THE REPUBLIC OF SINGAPORE

[2018] SGHCF 20

HCF/District Court Appeal No 44 of 2018

Between

UMF

… Appellant

And

(1) UMG

(2) UMH

… Respondents

GROUNDS OF DECISION

[Family Law] — [Guardianship] — [Section 5 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed)] — [Locus standi] — [Non-parents]

[Family Law] — [Wardship]

UMF

v

UMG and another

[2018] SGHCF 20

High Court — HCF/District Court Appeal No 44 of 2018

Debbie Ong J

11 September 2018

12 December 2018

Debbie Ong J:

Introduction

1 The present case raised the important question of how the law of guardianship should be applied to parents and non-parents and how the appropriate balance of authority can be preserved between both groups of adults.

2 The appellant in this case is the grand-aunt of a four-year-old child, whom I shall refer to as "H". As the appellant was the plaintiff in the proceedings below, I shall refer to her as "the Plaintiff". The first and second respondents are the child’s parents, whom I shall refer to individually as "the Mother" and "the Father", and collectively as "the Parents". It was undisputed that the Plaintiff had been caring for H since he was seven days old.

3 In the court below, the Plaintiff applied for custody and care and control of H. The Parents filed a separate application for the return of H, their biological child. The District Judge ("DJ") dismissed the Plaintiff's application and ordered that H be returned to the Parents. To facilitate the transfer of care, the DJ further ordered that the Parents were to have access to H every weekend from Saturday 10am to Sunday 7pm until 18 June 2018, after which he was to be returned to the Parents. The Plaintiff appealed against the DJ's orders. By the parties' consent, the order that H was to be returned to the Parents by 18 June 2018 was stayed pending the determination of this appeal.

4 After considering the parties' submissions and the evidence, I dismissed the appeal. As this case raised novel legal issues, I now provide fuller grounds of my decision.

Background facts

5 The Parents were married in Singapore sometime around November 2010. Prior to the marriage, the Mother had one child from another relationship. The Parents subsequently had five children together. H, who was born on 26 July 2014, is the third of their five children.

6 On 3 August 2014, when H was around seven days old, the Plaintiff met with the Father at the residence of his parents, ie, H's paternal grandparents. The Plaintiff stated that the Father "was in tears and appeared lost". At that meeting, the Father handed H over to the Plaintiff, who then brought H home. The reason behind the Father's decision was disputed – the Father claimed that he was under "duress" and experiencing "marital problems", while the Plaintiff claimed that the Parents had abandoned H or were unable to care for him.

7 The Plaintiff and the Father met again on the following day, ie, 4 August 2014. During that meeting, the Father then signed a "Letter of Guardianship" ("the Letter"), which was drafted by the Plaintiff. It stated:

Letter of Guardianship

(Personal)

BEFORE ME, the undersigned authority, personally came and appeared:

[The Father] who did say that they are the parent of [H] who is a minor. They do hereby give permission to [the Plaintiff] commencing on [3 August 2014], Sunday 11:52:08 to have full rights of guardianship, including such matters as to authorize medical treatment of any necessary nature, sign documents of any type, obtain lodging and do all things that I as a parent and/or legal guardian may do.

[Witness's signature]    [The Father's signature]

Pertinently, while the Letter alluded to the consent of both parents, the Mother did not sign it. The Mother only found out later that the Father had signed the Letter.

8 On the next day, ie, 5 August 2014, the Mother appeared at the Plaintiff's residence with police officers, demanding that the Plaintiff return H. Through the Plaintiff's sister-in-law, the Mother was informed that the Father had consented to entrusting H to the Plaintiff, and that the Plaintiff intended to "adopt" H. The Mother eventually left without H. The following day, ie, 6 August 2014, the Father requested that the Plaintiff return H to him, but she refused.

9 H remained in the Plaintiff's care until 12 August 2017, when he was handed over to the Mother. The Plaintiff had thought that H would be returned to her on the same day, but the Mother did not do so. Aggrieved, the Plaintiff filed her application for custody and care and control of H on 25 August 2017. Thereafter, the Mother returned H to the Plaintiff's care on 6 September 2017.

Decision below

10 The Plaintiff applied for custody and care and control of H. The DJ dismissed her application on the sole ground that she had no locus standi to make the application under s 5 of the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) ("GIA"), which provides:

Power of court to make, discharge or amend orders for custody and maintenance of infants

5. The court may, upon the application of either parent or of any guardian appointed under this Act, make orders as it may think fit regarding the custody of such infant, the right of access thereto and the payment of any sum towards the maintenance of the infant and may alter, vary or discharge such order on the application of either parent or of any guardian appointed under this Act.

[emphasis added]

11 The DJ held that on a literal reading, only parents or guardians appointed under the GIA may apply under the above provision. She noted that the Plaintiff did not belong in either category of adults. The DJ also relied on the decision of the High Court in CZ v DA and another [2004] 4 SLR(R) 784 ("CZ"), where it was held that "a grandmother is, without more, not entitled to apply for an order for access to her grandchild": at [8].

12 The DJ was further of the view that she was not bound by the decision of the High Court in Lim Kok Chye Ivan and another v Lim Chin Huat Francis and another [1996] 3 SLR(R) 83 ("Lim Chin Huat Francis (HC)") and the decision of the Court of Appeal in Lim Chin Huat Francis and another v Lim Kok Chye Ivan and another [1999] 2 SLR(R) 392 ("Lim Chin Huat Francis (CA)"). Lim Chin Huat Francis (CA) defined "guardian" as "a person who has charge of or control over a child at the material time", and held that the label "lawful" is "simply tagged onto a guardian who has been adjudged and recognised by law as entitled to care and custody of the child and who had, at some point of time in the child's life, care and custody of the child": at [54] and [55]. The DJ noted that that case concerned the definition of "lawful guardian" under s 14 of the GIA. While s 14 has since been amended from the time of the decision in Lim Chin Huat Francis (CA), there is no material difference in the substance of the provision. Section 14, as it stands today, provides:

Placing infant in custody of guardian

14. Where an infant leaves, or is removed from, the custody of his lawful guardian, the court may order that he be returned to such custody, and for the purposes of enforcing such order, may direct the bailiff to seize the person of the infant and deliver him into the custody of his lawful guardian.

[emphasis added]

13 The DJ held that Lim Chin Huat Francis (CA) was inapplicable because the relevant provision in the present case was s 5 of the GIA, which does not refer to a "lawful guardian" but instead refers specifically to "any guardian appointed under this Act [ie, the GIA]". Therefore, since the Plaintiff was not a court-appointed guardian, she had no locus standi to make an application under s 5.

Welfare of the child

39 Even if the Plaintiff did have locus standi to apply for relief, I would still have dismissed her application and ordered that H be returned to the Parents. As I explained at the hearing, the parties must have in mind the "end goal" which we seek to achieve for H – protecting the welfare of this young child did not necessarily involve entrenching the current arrangement just because H was presently closer to the Plaintiff than to the Parents. Of importance here was that there was no question that the Parents were fit parents; the Plaintiff's counsel made clear that there was no allegation of unfitness. With fit parents desiring to fully reunite with H together with their family with their other children, it would be in H's welfare to be returned to the Parents. I observed that when H was just days old in August 2014, the Plaintiff knew that the Mother desired H's return and that the Father also sought his return, seemingly changing his mind after he had signed the Letter and entrusted the Plaintiff with H just a few days earlier. Yet the Plaintiff took a "legalistic" view, relying on the Letter signed by just one parent, to take away the Parents' baby.

40 A baby is not a chattel to be passed around or 'owned'; a child is the responsibility of both his or her parents. Parental responsibility is a serious legal obligation not to be taken lightly.

41 As I had noted elsewhere (International Issues at para 7.5):

… There will, of course, possibly be other people who are important in the child's life. Grandparents, step-parents, aunts and uncles may form emotional bonds with the child. For such 'non-parents', their opportunities and rights to care for and have control over the child are very limited compared to that of parents. They may love the child as their own, but the child is not theirs. They do not have the primary obligation, privilege and responsibility as parents to raise the child as they see fit.

42 Unless a child is adopted by another set of parents, parenthood is for life: see Elements at paras 7.037 and 7.042. As the Court of Appeal has put it in TDT v TDS and another appeal and another matter [2016] 4 SLR 145 ("TDT") at [111]:

… the relationship between a biological parent and a child is special, in that it is a relationship created naturally without legal process. The relationship between adoptive parents and children also deserves a higher status as the process of adoption 'irrevocably severs the relationship between the biological parents and their child', replacing it simultaneously with a relationship between a new set of parents and a child … Parents are therefore in unique positions vis-à-vis a child. In this regard, we endorse the views of Assoc Prof Debbie Ong (as she then was) in "Family Law" (2011) 12 SAL Ann Rev 298 … where she stated (at para 15.6):

… Parents stand in an exalted position with respect to having authority over the upbringing of their children. They are also expected to bear the greatest responsibility for the protection, nurture and maintenance of the children. …

43 In TDT, the issue at hand was the duty of a non-parent to maintain a child. The court noted that while a parent is obliged to maintain his or her child (s 68 of the Women's Charter (Cap 353, 2009 Rev Ed)), a non-parent would only be so obliged if he or she had accepted a child (who is not his or her child) as a member of his or her family: s 70(1) of the Women's Charter. Significantly, a non-parent could claim for such expenditure from the child's biological parents under s 70(3). The court recognised s 70(1) as a "recognition of the primacy of parental liability to a child": see TDT at [111]–[117]. In ordinary circumstances, it would be in a child's welfare to be brought up by the child's parents.

44 This position is neither novel nor unprecedented. It is also consistent with a line with English cases. In Re H (A Minor) (Custody: Interim Care and Control) [1991] 2 FLR 109, the English Court of Appeal held at 113 that in a dispute over whether the child should live with a natural parent or some other family member (in that case, the grandmother), the applicable test is the child's welfare, and "there is a strong supposition that, other things being equal, it is in the interests of the child that it shall remain with its natural parents".

45 This statement was endorsed by a subsequent decision of the English Court of Appeal in Re W (A Minor) (Residence Order) [1993] 2 FLR 625 at 633. Similarly, in Re D (Care: Natural Parent Presumption) [1999] 1 FLR 134 ("Re D"), a case where the English Court of Appeal had to determine whether a child should live with his grandmother or his father, the court held that the correct approach was to first consider the father as a potential carer for the child, and whether there were "good grounds to reject the supposition in his favour": at 144. The court held that the judge below erred in carrying out a "balancing exercise between the two households" instead.

46 Our Court of Appeal has explained in Re C (an infant) [2003] 1 SLR(R) 502 ("Re C"):

14 The appellant's point here was that being a natural parent, and the other parent having passed away, he should automatically be entitled to the custody, care and control of the child. In this regard, he relied upon the English case of [Re D] which concerned a custody tussle between the father and the maternal grandmother. The English Court of Appeal said that the question for the court in a case such as this was whether there were any compelling factors which override the prima facie right of a child to an upbringing by its surviving natural parent. It held that the judge below had adopted the wrong test in reaching his decision by performing a balancing exercise as though the question was which of the households would provide the better home. The correct approach was first to consider whether the father was a potential carer for his son.

15 We accept the principle advanced that, prima facie, a surviving parent should have the right to custody of his child. This follows naturally from the settled rule that both parents of a child have equal rights over the child and if one parent should die, then the surviving parent would ordinarily have the sole right over the child …

47 Returning to the facts of this case, there was nothing in the evidence which suggested that it would be contrary to H's welfare to be brought up by his parents. As stated above, the Plaintiff accepted that the Parents were not unfit. The Parents also stated that they were able to provide for H. I further noted that the Parents had been having weekly overnight access to H with no significant issues.

48 I noted that even if a child is determined to be in need of care or protection under s 4 of the CYPA, the child's parents do not fall out of the picture completely. While the state may intervene in such situations to remove the child from the parents' care at the relevant time, re-integration of the child to his or her family will still remain a desired goal. There may of course be cases where the unfitness of parents is so persistent and the long term prognosis of fitness so bleak that other goals are pursued instead. The welfare of the child remains the paramount consideration in all cases.

*****

The direction of the law for all matters relating to the administration or application of the CYPA is always – re-integration of the child to his or her family will still remain a desired goal. Hence, CPS had disobeyed a direction of the law, with intent to cause injury to my biological child and myself by brainwashing and coaching my biological child to hate her biological father in order to preserve, prolong and perpetuate the "root causes of family conflict" for the sake of "counselling fraud or chronic counselling scams paid by public monies (pay-per-session counselling fees)" as well as impeding the upward mobility of children (born to low-income Singaporeans) to protect children (born to high-income Singaporeans) against "future competition" from children (born to low-income Singaporeans). CPO Benjamin just ignored me on 13 Mar 2024 when I told him that my biological child wants to move in and live with me asap during our Zoom session on 12 Mar 2024.