Parental child abduction in singapore: The experience of a non-convention country

International Journal of Law, Policy and the Family

Volumn 21, Issue 2, 2007, Pages 220-241

  Ong, Debbie S L ^a  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

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EID: 51249157031     PISSN: 13609939     EISSN: 14643707     Source Type: Journal    
DOI: 10.1093/lawfam/ebm002     Document Type: Article

References (57)

1. Convention on the Civil Aspects of International Child Abduction, October 25 1980, TIAS No. 11,670, 1343 UNTS 89.
2. Time period of case files covered in this research: Applications beginning within the period of January 2001 to September 2006. Where a case first comes to the court before 2001, it is included if there are any proceedings involving or alleging wrongful removal of a child out of the jurisdiction recorded in 2001 or after. Categories of files covered in this research: all OSF (Originating Summons Family issue) files in EFS (the Electronic Filing System) since December 2003 till September 2006; all DP (Divorce Petition) files in EFS with at least one foreign party since December 2003 till September 2006; all DP files prior to the use of EFS with at least one foreign party since January 2001 till November 2003; all files in the past five years personally identified as having elements of child abduction by a group of family judges and lawyers. The author is very grateful to the Family Court of Singapore who permitted access to research the files. Much support and assistance has been rendered by the judicial o ficers, family registry staff and law student research assistants in this project. The author is also very grateful to Professor Nigel Lowe for inspiring this research and for his very helpful guidance throughout the project.
3. Statutes of the Republic of Singapore Cap 353, 1997 edn (available online at http://statutes. agc.gov.sg/).
4. This provision was inserted in the 1996 amendments to the Women's Charter, ibid, rendering the removal of a child under the stipulated circumstances a Women's Charter offence attracting penal consequences. It is the only provision which punishes parental child abduction as the criminal law in Singapore makes no such provision.
5. Leong Wai Kum (2005) 'The Convention on the civil aspects of international child abduction: A case for Singapore to be a member state', Law Gazette July, 19-26 (available online at http://www. lawgazette.com.sg/2005-7/).
6. For instance, in OSF 98/2004, the mother took the two children to Australia for two weeks as she was afraid of the father's wrath when he learns of her application for an injunction against his assets. She returned after two weeks as intended.
7. In observing confidentiality and to protect the identity of the children involved, the names of parties are not used.
8. 'Shanghai search party for missing Singaporean girl, 6' 19 January 2005, The Straits Times; 'Final bid to find child in China', 22 January 2005, The New Paper and 'Help me find my daughter' 30 August 2002, The New Paper.
9. In Order 45 r 7(4) of the Rules of Court, Supreme Court of Judicature Act, Cap 322, this serves as notice that if the order is disobeyed, the person responsible is liable to process of execution, such as committal proceedings.
10. [2004] SGDC 6.
11. 1 Convention countries are aware of the importance of reciprocity to the effectiveness of the Convention: see Mackie, S. (1996) 'International Parental Child Abduction' 10 Temp. Int'l and Comp. L. J 445 at 462-64 and articles in n 12, infra.
12. Zawadski, D. M. (2005) 'The role of courts in preventing international child abduction' 13 Cardozo J. Int'l and Comp. L. 353 at 359: 'The Hague Convention is further limited in that approximately 75 per cent of the world's nations have not ratified it. These non-signatory nations provide a safe-haven for parents abducting their parents abroad';
13. Todd, J. A. (1994-95) 'The Hague Convention on the civil aspects of international child abduction: Are the convention's goals being achieved?' 2 Ind. J. Global Legal Stu. 554 at 560 where it was noted that non-convention states become 'haven-states' for parental child abduction.
14. [2005] 3 SLR 690.
15. Supra, n 10.
16. [2005] 3 W.L.R. 14;
17. [2005] UKHL 40.
18. The Sunday Times, 1 October 2006 (The Sunday edition of The Straits Times).
19. Singapore operates highly efficient systems of internal security, police force, and immigration control which take advantage of information technology. The US Department of State has reported on the rather controlled living environment in Singapore: see Country Reports on Human Rights Practices. Released by the Bureau of Democracy, Human Rights, and Labor, on February 23 2001 at http://www.state.gOv/g/drl/rls/hrrpt/2000/eap/770.htm.
20. See Lowe N, Everall, M. and Nicholls, M. (2004) International Movement of Children: Law, Practice and Procedure, Jordans, Bristol at Chap 20, which discusses the law prior to In re J both in England and Wales and elsewhere.
21. Supra, n 15.
22. See Lowe N and Douglas G. (2006) Bromley's Family Law, 10th edn, Oxford: Oxford University Press at 623-27 and for the position prior to In re J, see 622-23.
23. Singapore's welfare principle is embodied in section 3 of its Guardianship of Infants Act, Cap 122, 1985 edn, and section 125 of the Women's Charter, supra, n 3. section 3 of the former provides: 'Where in any proceedings before any court the custody or upbringing of an infant ...is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration'.
24. See Tan Yock Lin (1993) Conflict Issues in Family and Succession Law, Asia: Butterworths at 504-05.
25. [1951] AC 352.
26. Supra, n 15.
27. See the Australian case of ZP v PS [1994] HCA 29;
28. (1994) 181 CLR 639, (1994) 122 ALR 1, where forum non conveniens was held to have no application to a child custody dispute.
29. [1998] 1 FLR 231.
30. [2000] Fam 62.
31. In 2000, 14.9 per cent of the resident population in Singapore were Muslims: Singapore Census of Population 2000: Statistical release 2: Education, Language and Religion, October 2001, Department of Statistics, Ministry of Trade and Industry, Republic of Singapore.
32. Zawadski, D. M. (2005) 'The role of courts in preventing international child abduction' supra, n 14 at 364.
33. See also Zahraa, M. and Malek, N. A. (1998) 'The concept of custody in Islamic law', 13 Arab Law Quarterly, 2, 155-77, at 170: 'the Hanbalis require the custodian to be a Muslim'.
34. Ibid; Mackie, S. 'International parental child abduction", supra, n 11 at 463 citing C. L. Finan (1994) 'Convention on the rights of the child: A potentially effective remedy in cases of international child abduction', 34 Santa Clara Law Review, 1007 at 1029 that some Islamic countries do not recognize the custody rights of women and custody is frequently granted to the father regardless of the mother's claim.
35. See also for further understanding of Islamic law on custody of children Khaliq and Young (2001) 'Cultural diversity, human rights and inconsistency in the English courts' 21 Legal Studies, 192-224, at 210-11.
36. Statutes of the Republic of Singapore, Cap 3, 1999 edn.
37. Supra, n 20.
38. [2002] 2 SLR 137.
39. De Dampierre v De Dampierre [1988] AC 92;
40. Spiliada Maritime Corp v Cansulex [1987] AC 460.
41. These assumptions underlie leading works in family sociology, such as Quah, S. R. (2005) Home and Kin: Families in Asia, Singapore: Marshall Cavendish Academic;
42. Cherlin, A. J. (2002) Public and Private Families. An Introduction, 3rd edn, Boston: McGraw Hill;
43. Ambert, A. M. (2001) Families in the New Millennium, Boston: Allyn and Bacon;
44. McDaniel, S. A. and Tepperman, L. (2000) Close Relations. An Introduction to the Sociology of Families, 2nd edn, Scarborough, Canada: Prentice Hall.
45. Sprey,J. (2000) 'Theorizing in family studies: Discovering process', Journal of Marriage and the Family, 62, 18-31 at 29.
46. [1991] Fam 25.
47. Leong Wai Kum (1999) 'International cooperation in child abduction across borders', 11 Singapore Ac. L.J. 409 at 431-32.
48. Chan Wing Cheong (2004) 'The law in Singapore on child abduction', Singapore J. L. S. 444-61;
49. Leong Wai Kum (2005) 'The convention on the civil aspects of international child abduction: A case for Singapore to be a member state', supra n 5 at 24.
50. This can contrast with Jens Christian Thorsen v Amjit Kaur [2000] SGDC 29 where the court was willing to re-examine the issue of custody of a child wrongfully removed into Singapore.
51. See Chan Wing Cheong, 'The law in Singapore on child abduction', ibid, at 460.
52. O'Brien, S. (2003) 'The trials and tribulations of implementing the Hague Convention on international child abduction: Improving dispute resolution and enforcement of parental rights in the International Arena', 35 Geo. Wash. Int'l L. Rev. 198 at Part III;
53. Armstrong, S. (2002) 'Is the jurisdiction of England and Wales correctly applying the 1980 Hague Convention on international child abduction?', 51 I.C.L.Q. 427;
54. Duncan, W (2000-2001) 'Action in support of the Hague Child Abduction Convention: A viewfrom the permanent bureau', 33 N.Y.U.J. Int'l L. and Pol. 104;
55. Sapone, A. I. (2000) 'Children as pawns in their parents' fight for control: The failure of the United States to protect against international child abduction', 21 Women's Rts. L. Rep. 130;
56. Todd, J. A. (1994)'The Hague Convention on the civil aspects of international child abduction: Are the convention's goals being achieved?', supra, n 14.
57. Leong Wai Kum (2005) 'The convention on the civil aspects of international child abduction: A case for Singapore to be a member state', supra n 5 at 19.