TDX v TDY: Cross-Border Parental Child Abduction & Forum Non Conveniens

In TDX v TDY, the Singapore High Court heard an appeal by the Father against the District Judge's decision to dismiss his application for a stay of Singapore proceedings related to the custody, care, and control of their child, B. The Father argued that Hong Kong, where the child was born and where proceedings were already underway, was the more appropriate forum. The Mother initiated proceedings in Singapore seeking sole custody and preventing the Father from taking B overseas without her consent. Debbie Ong JC allowed the appeal, set aside the orders made in the courts below, and ordered that the Singapore proceedings be stayed, finding Hong Kong to be the more appropriate forum to determine issues concerning B's welfare.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal Allowed

1.3 Case Type

Family

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Singapore High Court stays proceedings in a cross-border parental dispute, finding Hong Kong the more appropriate forum to decide child custody.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
TDXAppellantIndividualAppeal AllowedWon
TDYRespondentIndividualOrders Set AsideLost

3. Judges

Judge NameTitleDelivered Judgment
Debbie OngJudicial CommissionerYes

4. Counsels

Counsel NameOrganization
Yap Teong LiangT L Yap Law Chambers LLC
Bernard Sahagar s/o TanggaveluLee Bon Leong & Co
Low Wee JeeLee Bon Leong & Co

4. Facts

  1. The parties, who are not married, had a child, B, born in Hong Kong in 2013.
  2. The Mother took B to Singapore in June 2014.
  3. The Father commenced proceedings in Hong Kong in August 2014 seeking custody of B.
  4. The Hong Kong court made interim orders for the Father's access to B and made B a ward of the court.
  5. The Mother commenced proceedings in Singapore in September 2014 seeking sole custody of B.
  6. The Mother obtained an ex parte order in Singapore preventing B from being taken out of Singapore without her consent.
  7. The Hong Kong court was not fully informed of the Singapore proceedings when the Singapore order was obtained.

5. Formal Citations

  1. TDX v TDY, Registrar's Appeal from the Family Courts No 254 of 2014, [2015] SGHCF 4
  2. BNS v BNT, , [2015] SGCA 23
  3. Low Wing Hong Alvin v Kelso Sharon Leigh, , [1999] 3 SLR(R) 993
  4. Spiliada Maritime Corporation v Cansulex Ltd, , [1987] AC 460
  5. Mala Shukla v Jayant Amritanand Shukla (Danialle An, co-respondent), , [2002] 1 SLR(R) 920
  6. PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Ltd and another, , [2001] 1 SLR(R) 104
  7. Re A (an infant), , [2002] 1 SLR(R) 570
  8. De Dampierre v De Dampierre, , [1988] AC 92
  9. BDA v BDB, , [2013] 1 SLR 607
  10. Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd and another appeal, , [2013] 4 SLR 1097
  11. Re F (A Minor) (Abduction: Custody Rights), , [1991] Fam 25
  12. BDU v BDT, , [2014] 2 SLR 725
  13. MW v Director-General of the Department of Community Services, , (2008) 244 ALR 205
  14. LK v Director-General, Department of Community Services, , (2009) 253 ALR 202
  15. In re LC (Children) (Reunite International Child Abduction Centre intervening), , [2014] AC 1038
  16. A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and other intervening), , [2014] AC 1
  17. Mercredi v Chaffe (Case C-497/10 PPU), , [2012] Fam 22
  18. Re J (A Minor) (Abduction: Custody Rights), , [1990] 2 AC 562
  19. SK v KP, , [2005] 3 NZLR 590
  20. Punter v Secretary for Justice, , [2004] 2 NZLR 28
  21. AZS and another v AZR, , [2013] 3 SLR 700
  22. In re J (A Child) (Custody Rights: Jurisdiction), , [2006] 1 AC 80

6. Timeline

DateEvent
B was born in Hong Kong
Mother took B to Singapore
Father commenced proceedings in Hong Kong seeking custody, care and control of B
Hong Kong court made interim order for Father's access to B and made B a ward of the court
Father's application and order served on Mother
Mother's solicitors applied for stay of execution of the order
Hong Kong court ordered stay of execution until 6 October 2014, allowed Father interim access between 26 and 28 September 2014
Mother commenced proceedings in Singapore for sole custody, care and control of B and supervised access to Father
Mother obtained ex parte order in Singapore that B shall not be taken out of Singapore by either party without written consent
Mother's solicitors indicated they were preparing application for stay of Hong Kong proceedings
Hong Kong court ordered Father to continue interim access and adjourned stay of execution until 16 October 2014
Mother filed notice to act in person in Hong Kong proceedings
Hong Kong court ordered B remained a ward of the court, Father had all rights and authority, access to be carried out in accordance with order of 12 September 2014, Mother's application for stay of execution dismissed
District Judge dismissed Father's application for stay of Singapore proceedings and made fresh interim orders
Final orders made confirming orders of 4 December 2014
Hong Kong court ordered continuance of access order of 12 September 2014
Hong Kong order mirrored in Singapore by order of court
Stay of execution of order dismissed by family court
Other orders made by Hong Kong court
Appeal allowed, Singapore proceedings stayed

7. Legal Issues

  1. Forum Non Conveniens in Child Custody Disputes
    • Outcome: The court held that Hong Kong was the more appropriate forum to determine issues concerning the child's welfare.
    • Category: Procedural
    • Sub-Issues:
      • Application of Spiliada principles
      • Lis alibi pendens
      • Habitual residence of the child
    • Related Cases:
      • [1987] AC 460
      • [2002] 1 SLR(R) 570
      • [2013] 4 SLR 1097
  2. Paramountcy of Child's Welfare
    • Outcome: The court reiterated that the child's welfare is the paramount consideration in proceedings relating to a child.
    • Category: Substantive
    • Sub-Issues:
      • Determination of child's best interests
      • Impact of cross-border relocation
      • Consideration of habitual residence
    • Related Cases:
      • [2015] SGCA 23
  3. Habitual Residence of a Child
    • Outcome: The court found that the child's habitual residence was Hong Kong.
    • Category: Substantive
    • Sub-Issues:
      • Determination of habitual residence
      • Child-centric approach
      • Parents' intentions
    • Related Cases:
      • [2014] AC 1038
      • [2014] AC 1

8. Remedies Sought

  1. Stay of Singapore Proceedings
  2. Sole Custody
  3. Supervised Access
  4. Order to prevent Father from bringing B overseas without consent

9. Cause of Actions

  • Custody
  • Care and Control
  • Access

10. Practice Areas

  • Family Litigation
  • Cross-Border Disputes

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
BNS v BNTCourt of AppealYes[2015] SGCA 23SingaporeCited for the growing phenomenon of cross-border family disputes and the paramount importance of the child's welfare.
Low Wing Hong Alvin v Kelso Sharon LeighHigh CourtYes[1999] 3 SLR(R) 993SingaporeCited for the application of the Spiliada principles in matrimonial proceedings.
Spiliada Maritime Corporation v Cansulex LtdHouse of LordsYes[1987] AC 460United KingdomCited for the Spiliada principles regarding forum non conveniens.
Mala Shukla v Jayant Amritanand Shukla (Danialle An, co-respondent)High CourtYes[2002] 1 SLR(R) 920SingaporeCited for applying the Spiliada principles to divorce and related ancillary matters.
PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Ltd and anotherCourt of AppealYes[2001] 1 SLR(R) 104SingaporeCited for the principles regarding stay of proceedings and the 'unless question' in forum non conveniens.
Re A (an infant)High CourtYes[2002] 1 SLR(R) 570SingaporeCited for the principle that the central question is which forum would more effectively evaluate the best interests of the child.
De Dampierre v De DampierreHouse of LordsYes[1988] AC 92United KingdomCited for applying the Spiliada principles to matrimonial proceedings.
BDA v BDBHigh CourtYes[2013] 1 SLR 607SingaporeCited for factors considered in determining whether maintenance proceedings should be stayed.
Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd and another appealCourt of AppealYes[2013] 4 SLR 1097SingaporeCited for the principle that lis alibi pendens is a factor to be considered in deciding whether the Singapore court is the more appropriate forum.
Re F (A Minor) (Abduction: Custody Rights)Court of AppealYes[1991] Fam 25England and WalesCited for the principle that the welfare of the child is considered in the context of which court shall decide what the child's best interests require.
MW v Director-General of the Department of Community ServicesHigh Court of AustraliaYes(2008) 244 ALR 205AustraliaCited for the aims of the Hague Convention on the Civil Aspects of International Child Abduction.
BDU v BDTCourt of AppealYes[2014] 2 SLR 725SingaporeCited for the summary of what countries have agreed to do under the Hague Convention on the Civil Aspects of International Child Abduction.
LK v Director-General, Department of Community ServicesHigh Court of AustraliaYes(2009) 253 ALR 202AustraliaCited for the principle that, in order to ascertain the habitual residence of the child, it must consider where the caregiver of the child lives.
In re LC (Children) (Reunite International Child Abduction Centre intervening)UK Supreme CourtYes[2014] AC 1038United KingdomCited for adopting a child-centric approach to the determination of a child’s habitual residence.
A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and other intervening)UK Supreme CourtYes[2014] AC 1United KingdomCited for the views of the European Court of Justice on assessing the primary caregiver’s integration in her social and family environment to determine if she was habitually resident in the country she had moved to.
Mercredi v Chaffe (Case C-497/10 PPU)European Court of JusticeYes[2012] Fam 22European UnionCited for the principle that the court should assess the primary caregiver’s integration in her social and family environment to determine if she was habitually resident in the country she had moved to.
Re J (A Minor) (Abduction: Custody Rights)House of LordsYes[1990] 2 AC 562United KingdomCited for the general principles in the determination of habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction.
SK v KPHigh CourtYes[2005] 3 NZLR 590New ZealandCited for the principle that a unilateral removal by a parent can give rise to a new habitual residence after some time has passed and the child is integrated into the new country.
Punter v Secretary for JusticeHigh CourtYes[2004] 2 NZLR 28New ZealandCited for the principle that a unilateral removal by a parent can give rise to a new habitual residence after some time has passed and the child is integrated into the new country.
AZS and another v AZRHigh CourtYes[2013] 3 SLR 700SingaporeCited for the principle that lis alibi pendens is a factor in favor of a stay of proceedings.
In re J (A Child) (Custody Rights: Jurisdiction)House of LordsYes[2006] 1 AC 80United KingdomCited for the principle that it was not open to the court to apply quasi-Hague Convention on the Civil Aspects of International Child Abduction rules in non-Hague Convention on the Civil Aspects of International Child Abduction cases.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
Hague Convention on the Civil Aspects of International Child AbductionInternational
International Child Abduction Act (Cap 143C, 2011 Rev Ed)Singapore
Protection from Harassment Act (Cap 256A, 2015 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Forum non conveniens
  • Habitual residence
  • Child's welfare
  • Cross-border dispute
  • Lis alibi pendens
  • Ward of court
  • Parental child abduction
  • Spiliada principles
  • Interim orders
  • Ex parte application

15.2 Keywords

  • family law
  • child custody
  • international child abduction
  • forum non conveniens
  • Singapore
  • Hong Kong
  • cross-border dispute
  • child welfare

17. Areas of Law

Area NameRelevance Score
Child Custody90
Family Law90
Child Support70
Cross-border disputes70
Jurisdiction60
Private International Law50

16. Subjects

  • Family Law
  • Conflict of Laws
  • International Law
  • Child Law