TUC v TUD: International Child Abduction, Habitual Residence, and Parental Consent

In TUC v TUD, the Court of Appeal of Singapore heard an appeal regarding the wrongful retention of two children in Singapore. The father, TUC, sought the children's return to the USA under the International Child Abduction Act, arguing their habitual residence was California. The mother, TUD, contested, claiming the children's habitual residence had changed to Singapore and that the father had consented to their retention. The court allowed the appeal, finding the children's habitual residence remained in the USA and the father had not consented to their retention after the mother declared her intention to divorce. The court ordered the children's return to the USA.

1. Case Overview

1.1 Court

Family Justice Courts of the Republic of Singapore

1.2 Outcome

Appeal Allowed

1.3 Case Type

Family

1.4 Judgment Type

Written Judgment

1.5 Jurisdiction

Singapore

1.6 Description

Singapore court addresses international child abduction, habitual residence, and parental consent in a Hague Convention case, ordering the children's return to the USA.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
TUCAppellantIndividualAppeal AllowedWonYap Teong Liang, Tan Hui Qing, Rina Kalpanath Singh
TUDRespondentIndividualAppeal DismissedLostPoonam Mirchandani, Ashok Chugani

3. Judges

Judge NameTitleDelivered Judgment
Sundaresh MenonChief JusticeYes
Andrew Phang Boon LeongJudge of AppealNo
Judith PrakashJudge of AppealNo

4. Counsels

Counsel NameOrganization
Yap Teong LiangT L Yap & Associates
Tan Hui QingT L Yap & Associates
Rina Kalpanath SinghKalco Law LLC
Poonam MirchandaniMirchandani & Partners
Ashok ChuganiMirchandani & Partners
Chan Yong WeiDrew & Napier LLC

4. Facts

  1. The Father and Mother are naturalized US citizens married in India in April 2003 and registered their marriage in California in April 2004.
  2. The two children, FC and SC, were born in the USA and are US citizens.
  3. In April 2015, the parties bought a home in West Menlo Park, California.
  4. In late 2015, the family traveled to Singapore for a holiday.
  5. The Mother secured a consultancy contract in Singapore, leading to discussions about relocating.
  6. The Father agreed to move to Singapore to attempt to reconcile with the Mother and keep the family together.
  7. On 2 June 2016, the Mother told the Father that they should file for divorce.

5. Formal Citations

  1. TUC v TUD, District Court Appeal No 158 of 2016, [2017] SGHCF 12

6. Timeline

DateEvent
Father and Mother married in India.
Marriage registered in California, USA.
FC born in Fremont, California.
SC born in California.
Parties bought a home in West Menlo Park, California.
MIL flew to the USA to help the Mother.
MIL returned to Singapore with SC.
Mother and FC arrived in Singapore.
Father arrived in Singapore.
Father returned to San Francisco.
Father re-established contact with the Mother by email.
PEC sent the Mother a consultancy contract.
Father withdrew FC from his school in California.
Mother returned to the USA to resign from her company.
Father put the West Menlo Park property up for rent.
Mother returned to Singapore.
MIL signed a tenancy agreement for the condominium unit.
Mother was issued her Employment Pass.
Father left for Singapore.
Parties signed a contract with an international school in Singapore for FC.
FC's school term commenced in Singapore.
PEC terminated its consultancy contract with ERP.
Mother told the Father that they should file for divorce.
Father asked UNC to return the US$100,000.
Father spoke to a US consular officer.
Father spoke to a US attorney.
UNC returned the US$100,000 to the Father.
Father returned to the USA.
Mother filed an originating summons under the Guardianship of Infants Act.
Mother filed for divorce in California.
Father requested the Office of Children’s Issues to place his children on a travel alert system.
Father filed his application under s 8 of the ICAA.
Judgment reserved.
Judgment delivered.

7. Legal Issues

  1. Habitual Residence
    • Outcome: The court found that the children's habitual residence remained in the USA.
    • Category: Substantive
  2. Parental Consent
    • Outcome: The court found that the father did not consent to the children's retention in Singapore after the mother declared her intention to divorce.
    • Category: Substantive
  3. Wrongful Retention
    • Outcome: The court found that the children were wrongfully retained in Singapore.
    • Category: Substantive

8. Remedies Sought

  1. Order for the return of the children to the USA

9. Cause of Actions

  • Application for return of child under the International Child Abduction Act

10. Practice Areas

  • Family Law
  • International Child Abduction

11. Industries

  • No industries specified

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
BDU v BDTCourt of AppealYes[2014] 2 SLR 725SingaporeCited for the principle that the parent seeking to invoke exceptions in Art 13 of the Hague Convention bears the onus of proof.
In re H (Minors) (Abduction: Custody Rights)House of LordsYes[1991] 3 WLR 68United KingdomCited to define the difference between wrongful removal and wrongful retention of a child.
In re H and others (Minors) (Abduction: Acquiescence)Privy Council (House of Lords)Yes[1998] AC 72United KingdomCited to explain that retention of a child for the purposes of the Hague Convention only occurs where the child has been lawfully taken from one country to another and there has been a wrongful failure to return the child at the expiry of that period.
John Paul Balev v Catharine-Rose BaggottOntario Court of AppealYes[2016] ONCA 680CanadaCited to illustrate that where parents have agreed that a child should move to a different country for a defined period of time, the children’s wrongful retention in that country would usually begin after the expiry of the agreed period.
In re R (Children) (Reunite International Child Abduction Centre and others intervening)UK Supreme CourtYes[2015] 2 WLR 1583United KingdomCited to show that retention of a child contrary to an agreement can occur even before the end of the agreed period of relocation once the parent in question intimates a clear intention not to return the child at the end of that period.
LCYP v JEKHong Kong Court of AppealYesCivil Appeals Nos 98 and 125 of 2015Hong KongCited to support the principle that retention of a child contrary to an agreement can occur even before the end of the agreed period of relocation once the parent in question intimates a clear intention not to return the child at the end of that period.
Re H-K (Children)England and Wales Court of Appeal (Civil Division)Yes[2011] EWCA Civ 1100United KingdomCited to show that the date on which the mother announced that she would not return to Australia with the children was taken to be the date on which retention contrary to the agreed terms occurred.
In the matter of BA (A Minor) (Hague Convention: habitual residence: consent: acquiescence)High Court of Northern IrelandYes[2016] NIFam 8United KingdomCited to show that the date on which the father sent text messages indicating he would not return the child to Australia was taken to be the date of retention contrary to the agreement.
TDX v TDYHigh CourtYes[2015] 4 SLR 982SingaporeCited for the approach to determining habitual residence, considering where the child has been living, how settled she is, and the intention of the parents.
LK v Director-General, Department of Community ServicesHigh Court of AustraliaYes[2009] HCA 9AustraliaCited for the principle that neither parent can unilaterally change the place of habitual residence.
Punter v Secretary for JusticeNew Zealand Court of AppealYes[2007] 1 NZLR 40New ZealandCited as a common law jurisdiction that is also a signatory to the Hague Convention.
SK v KPNew Zealand Court of AppealYes[2005] 3 NZLR 590New ZealandCited for the proposition that the unilateral purpose of one of the parents cannot change the habitual residence of the child.
Gitter v GitterUS Court of Appeals for the Second CircuitYes396 F 3d 124 (2nd Cir, 2005)United StatesCited for the test for habitual residence applied in the Second Circuit, requiring the court to look at the last “shared intent” of the parents.
Hoffman v SenderUS Court of Appeals for the Second CircuitYes716 F 3d 282 (2nd Cir, 2013)United StatesCited as following Gitter v Gitter on the test for habitual residence.
Halaf v HalafNew York District CourtYes[2009] WL 454565United StatesCited to show that the habitual residence of a child can change in as short a period of time as three to four months, where there is a joint intention on the part of both parents to relocate.
BDT v BDUDistrict CourtYes[2012] SGDC 363SingaporeCited as an example where habitual residence was unlikely to have changed due to a short period of stay and no shared parental intention to relocate.
Re H (Abduction: Habitual Residence: Consent)High CourtYes[2000] 2 FLR 294United KingdomCited to clarify that the standard of proof for consent is the balance of probabilities.
Re K (Abduction: Consent)High CourtYes[1997] 2 FLR 212United KingdomCited to show that the parent who seeks to rely on the “consent” exception under Art 13(a) of the Hague Convention must show on the balance of probabilities that the parent alleging wrongful removal or retention of the child had positively and unequivocally consented to the child’s removal or retention.
P v PCourt of AppealYes[1998] 2 FLR 835United KingdomCited to show that the test for consent has been said to be a subjective one.
Re C (Abduction: Consent)High CourtYes[1996] 1 FLR 414United KingdomCited to show that consent is a matter of inference to be assessed “viewing a parent’s words and actions as a whole and his state of knowledge of what is planned by the other parent”.
Re W (Abduction: Procedure)High CourtYes[1995] 1 FLR 878United KingdomCited to show that there must be clear and compelling evidence of a positive consent to the removal of the child from the jurisdiction of his habitual residence.
KMA V The Secretary for JusticeNew Zealand Court of AppealYes[2007] NZCA 223New ZealandCited to show that the court could “infer the necessary consent from conduct, as occurs often enough in other contexts”, but the evidence had to be “clear and cogent”.
Wenceslas & Director-General, Department of Community ServicesFamily Court of AustraliaYes[2007] FamCA 398AustraliaCited to show that although consent could be inferred from conduct, “the consent must be real and unequivocal and can only be made out by clear and cogent evidence”.
R v A (Abduction: Habitual Residence)High CourtYes[2014] 1 FLR 969United KingdomCited to show that it would be artificial to ask whether a parent had intended or consented to a change of the child’s “‘habitual residence’ as a concept: as a quasi-status”.
Matthews v MatthewsBritish Columbia Supreme CourtYes[2007] BCSC 1825CanadaCited to show that consent under Art 13(a) of the Hague Convention will be vitiated if it was obtained by deceit, fraud, misrepresentation or non-disclosure.
T v T (Abduction: Consent)High CourtYes[1999] 2 FLR 912United KingdomCited to show that consent under Art 13(a) of the Hague Convention will be vitiated if it was obtained by deceit, fraud, misrepresentation or non-disclosure.
In re P-J (Children) (Abduction: Consent)Court of AppealYes[2010] 1 WLR 1237United KingdomCited to show that consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life.
M v T (Abduction)High CourtYes[2000] 1 FLR 1309United KingdomCited as a case where there was formal written consent, such as an agreement on custody and parental responsibility.
Re B (A minor) (Abduction)High CourtYes[1994] 2 FLR 249United KingdomCited as a case where there was a consent order.
TUC v TUDFamily CourtYes[2016] SGFC 146SingaporeThe decision below, which was overturned on appeal.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute NameJurisdiction
International Child Abduction Act (Cap 143C, 2011 Rev Ed)Singapore
Guardianship of Infants Act (Cap 122, 1985 Rev Ed)Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Habitual residence
  • Parental consent
  • Wrongful retention
  • International Child Abduction Act
  • Hague Convention
  • Relocation
  • Reconciliation
  • Consultancy contract

15.2 Keywords

  • Child abduction
  • Hague Convention
  • Habitual residence
  • Parental consent
  • Singapore
  • United States
  • Family law

16. Subjects

  • Family Law
  • International Child Abduction
  • Conflict of Laws

17. Areas of Law

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