BDU v BDT: Hague Convention, International Child Abduction, Grave Risk of Psychological Harm

In BDU v BDT, the Singapore Court of Appeal heard an appeal by the mother, BDU, against the High Court's decision to allow the father, BDT's application under the International Child Abduction Act for the return of their child, B, to Germany. The mother resisted the application, arguing that the return would expose the child to grave psychological harm under Art 13(b) of the Hague Convention. The Court of Appeal ordered the return of the child to Germany, subject to specific undertakings from both parties, taking into account the mother's psychological condition and ensuring a level playing field in the German court regarding custody proceedings.

1. Case Overview

1.1 Court

Court of Appeal

1.2 Outcome

Return order made in respect of the child, subject to specific undertakings by both parties.

1.3 Case Type

Family

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Singapore Court of Appeal decision regarding the return of a child to Germany under the Hague Convention, addressing psychological harm.

1.7 Decision Date

16 February 2014

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
BDU	Appellant	Individual	Appeal Dismissed	Lost	Poonam Mirchandani, Ashok Chugani
BDT	Respondent	Individual	Application Allowed	Won	Patrick Tan Tse Chia, Lim Pei Ling June, Low Seow Ling

3. Judges

Judge Name	Title	Delivered Judgment
Sundaresh Menon	Chief Justice	No
Chao Hick Tin	Justice of the Court of Appeal	No
Andrew Phang Boon Leong	Justice of the Court of Appeal	Yes

4. Counsels

Counsel Name	Organization
Poonam Mirchandani	Mirchandani & Partners
Ashok Chugani	Mirchandani & Partners
Patrick Tan Tse Chia	Patrick Tan LLC
Lim Pei Ling June	Patrick Tan LLC
Low Seow Ling	Patrick Tan LLC

4. Facts

The Appellant and Respondent married in 2009 and have two children, [B] and [J].
[B] was born in Germany in 2010.
The Appellant and [B] traveled to Singapore in January 2012 and did not return to Germany.
The Respondent applied for [B]'s return to Germany under the International Child Abduction Act.
The Appellant argued that returning [B] to Germany would expose him to grave psychological harm.
The Appellant cited her own psychological condition and the potential separation from [B] as reasons for the risk.
The Court appointed an independent expert, Dr. Mahendran, to assess the Appellant's psychological condition.

5. Formal Citations

BDU v BDT, Civil Appeal No 65 of 2013, [2014] SGCA 12
BDU v BDT, , [2013] 3 SLR 535

6. Timeline

Date	Event
2007-01-01	Appellant and Respondent got to know each other over the Internet.
2009-01-01	Appellant travelled to Germany to meet the Respondent.
2009-10-30	Appellant and Respondent married in Denmark.
2010-04-16	[B] was born in Germany.
2010-11-01	Appellant and [B] visited Singapore.
2011-02-07	Appellant, Respondent and [B] returned to Germany.
2011-02-15	German court made an interim order that the Respondent was to have the sole right to determine [B]’s place of abode.
2011-07-14	German court ordered that the parties should jointly exercise the right of determination of [B]’s abode.
2012-01-18	Appellant, Respondent and [B] travelled to Singapore.
2012-02-17	Respondent returned to Germany.
2012-03-02	German court made an interim order that the exercise of “paternal authority” over [B] was to be transferred to the Respondent alone.
2012-04-04	Singapore Central Authority contacted the Appellant.
2012-04-07	Respondent and the Respondent’s father arrived in Singapore to retrieve [B].
2012-04-24	Appellant commenced proceedings for the sole custody and care and control of [B].
2012-05-31	Respondent brought an application under the Act for a return order to Germany in respect of [B].
2012-07-01	District Court heard the parties over several days.
2012-08-21	District Court ordered the return of [B] to Germany.
2012-08-21	[J] was born in Singapore.
2012-08-31	Appellant filed an appeal against the decision of the District Court.
2013-02-01	Appellant commenced divorce proceedings in the Family Court.
2013-03-25	Appeal against the District Court’s decision was heard by the High Court judge.
2013-05-15	High Court dismissed the appeal.
2013-07-22	Present appeal was heard before the Court of Appeal.
2013-09-16	Dr Mahendran prepared a psychiatric report on the Appellant.
2013-10-18	Court convened to hear the submissions of the parties on the appropriate course of action.
2013-11-28	Hearing date to finalise the respective undertakings to be given by the parties.
2013-11-29	Hearing date to finalise the respective undertakings to be given by the parties.
2013-12-03	Hearing date to finalise the respective undertakings to be given by the parties.
2013-12-03	Court ordered the return of [B] to Germany before the expiry of 2.5 months from 1 December 2013 subject to the parties providing undertakings.
2014-02-17	Decision Date

7. Legal Issues

Grave Risk of Psychological Harm
- Outcome: The court found that the risk could be mitigated by undertakings from both parties, including the mother undergoing treatment and the father providing financial and logistical support.
- Category: Substantive
- Sub-Issues:
  - Separation of child from primary caregiver
  - Impact of mother's psychological condition on child
  - Risk of suicide or self-harm by mother
Application of Hague Convention
- Outcome: The court applied the principles of the Hague Convention, emphasizing the importance of returning the child to the country of habitual residence unless an exception applies.
- Category: Substantive
- Sub-Issues:
  - Habitual residence of the child
  - Wrongful retention of the child
  - Exceptions to return order

8. Remedies Sought

Order for the return of the child to Germany

9. Cause of Actions

Application for return of child under the International Child Abduction Act

10. Practice Areas

Family Litigation
International Law

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
BDU v BDT	High Court	Yes	[2013] 3 SLR 535	Singapore	The High Court decision that was appealed against in the current judgment.
BDT v BDU	District Court	Yes	[2012] SGDC 363	Singapore	The District Court decision that was appealed against in the High Court, concerning the return of the child to Germany.
De L v Director-General, New South Wales Department of Community Services and Another	High Court of Australia	Yes	(1996) 187 CLR 640	Australia	Cited for the principle that the Hague Convention reserves the determination of custody rights to the jurisdiction of the child's habitual residence.
DP v Commonwealth Central Authority	High Court of Australia	Yes	(2001) 206 CLR 401	Australia	Cited in relation to the Hague Convention and reserving jurisdiction to the child's habitual residence.
El Sayed v Secretary for Justice	New Zealand High Court	Yes	[2003] 1 NZLR 349	New Zealand	Cited regarding the compromise embodied in Art 13 of the Hague Convention.
C v C (Abduction: Rights of Custody)	English Court of Appeal	Yes	[1989] 1 WLR 654	England and Wales	Cited for the principle that exceptions to the Hague Convention should not be so broad as to undermine the convention's purpose.
A v Central Authority for New Zealand	New Zealand Court of Appeal	Yes	[1996] 2 NZLR 517	New Zealand	Cited regarding the court's role when the best interests of the child are paramount in the country of habitual residence.
Re M (Abduction: Undertakings)	English Court of Appeal	Yes	[1995] 1 FLR 1021	England and Wales	Cited for the principle that the court must trust the judge in the country of habitual residence to do what is right for the children.
McCarthy v McCarthy	Scottish Outer House	Yes	[1994] SLT 743	Scotland	Cited for the principle that a parent cannot create a psychological situation and then rely upon it to prevent the return of a child.
In the Estate of Crippen	English High Court	Yes	[1911] P 108	England and Wales	Cited as an example of the broader principle that criminals cannot profit from their crimes.
D v D (Child Abduction: Non-Convention Country)	English Court of Appeal	Yes	[1994] 1 FLR 137	England and Wales	Cited as an example of a non-Convention case where the specific welfare of the children was the overriding factor.
In the Marriage of McOwan	Family Court of Australia	Yes	(1993) 17 Fam LR 377	Australia	Cited regarding the importance of ensuring that undertakings can be enforced.
Re G (Abduction: Psychological Harm)	English High Court	Yes	[1995] 1 FLR 64	England and Wales	Cited as an example where the father's application for the return of the children was dismissed due to the mother's depression.
Armstrong v Evans	New Zealand District Court	Yes	[2000] NZFLR 984	New Zealand	Cited as an example where the court considered the fact that the abducting mother had received treatment for post-traumatic stress disorder.
Director-General, Department of Families v RSP	Full Court of the Family Court of Australia	Yes	[2003] FamCA 623	Australia	Cited in relation to the weight given to the prospect of one parent suiciding.
Director-General, Department of Families, Youth and Community Care v Bennett	Family Court of Australia	Yes	[2000] FamCA 253	Australia	Cited as a comparison to Armstrong v Evans.
In re E (Children) (Abduction: Custody Appeal)	UK Supreme Court	Yes	[2012] 1 AC 144	United Kingdom	Cited regarding the importance of undertakings and protective measures in Hague Convention cases.
In re S (A Child) (Abduction: Rights of Custody)	UK Supreme Court	Yes	[2012] 2 AC 257	United Kingdom	Cited regarding the principle that an appellate court will not overturn the judgment of the court below unless it was not open to the judge to make that judgment.
Re C (Abduction: Grave Risk of Physical or Psychological Harm)	English Court of Appeal	Yes	[1999] 2 FLR 478	England and Wales	Cited for the principle that a parent cannot create a psychological situation and then rely upon it to prevent the return of a child.
In re D (A Child) (Abduction: Rights of Custody)	House of Lords	Yes	[2007] 1 AC 619	United Kingdom	Cited regarding the need to deal with Hague Convention proceedings as expeditiously as possible.
Re O (Child Abduction: Undertakings)	English High Court	Yes	[1994] 2 FLR 349	England and Wales	Cited regarding the need to further develop and refine collaboration with respect to the smooth and effective implementation of the Hague Convention across jurisdictions.
Re M and J (Abduction: International Judicial Collaboration)	English High Court	Yes	[2000] 1 FLR 803	England and Wales	Cited regarding instructive observations with respect to judicial collaboration.
S v C	English Court of Appeal	Yes	[2011] EWCA Civ 1385	England and Wales	Cited regarding instructive observations with respect to judicial collaboration.
Thomson v Thomson	Supreme Court of Canada	Yes	(1994) 119 DLR (4th) 253	Canada	Cited regarding the interpretation of 'grave risk' in Art 13(b) and the use of undertakings.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
International Child Abduction Act (Cap 143C, 2011 Rev Ed)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Hague Convention
International Child Abduction Act
Grave risk of psychological harm
Undertakings
Habitual residence
Return order
Custody
Access
Delusion Disorder

15.2 Keywords

Hague Convention
child abduction
Singapore
Germany
family law
psychological harm
return order

16. Subjects

Family Law
International Child Abduction
Hague Convention

17. Areas of Law

Family Law
International Child Abduction
Hague Convention on the Civil Aspects of International Child Abduction