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CASE COMMENTARY: UYK v. UYJ [2020] SGHCF 9 (“UYK”) ON RELOCATION

Updated: Aug 3, 2020

As of June 2019, non-residents make up about 29.4% of the Singapore population[1] and permanent residents about 10%. In addition, more than one in three marriages in Singapore as of 2018 are transnational marriages i.e. where at least one of the spouses is a foreigner or non-resident.[2]


When marriages or relationships involving transnational or cross-border elements break down, parents may dispute on whether their children should be relocated from Singapore to the home country of the custodial parent.


Relocation presents competing tensions between the interests of parents. On the one hand, the custodial parent has an interest to relocate to his or her home country where family support and state benefits (as the case may be) may be more and readily accessible. On the other hand, the left-behind parent will inevitably face a drastic reduction in the quantity and quality of contact with the child, and therefore has an interest to ensure that the child continues to reside in Singapore.


The welfare of the child is the paramount consideration for the Courts when deciding if parental relocation of the child should be granted.[3] What is clear is that there is no presumption for or against relocation[4] and that the Courts will have to balance various factors specific to the case to reach an outcome that is in the child’s best interests.


Facts of UYK


In the case of UYK, the parties were British Citizens and had a child born in October 2014 in the United Kingdom (“UK”).[5] Just like the parties, the child is also a British Citizen.[6] The parties were not legally married to each other. The child was cared by and lived with the mother (“Mother”) in the UK since she was born up until 2018. The father (“Father”) did not appear to reside with the child in the UK, having been living in Monaco sometime in end 2014 till 2018.[7]


In 2017, the parties decided to move to Singapore in January 2018 with the child. The parties signed a Joint Letter of Intention (“JLOI”) prior to moving to Singapore. Relevant portions of the JLOI are reproduced as follows: -


For the time being we have decided that from January 2018 we shall relocate as a family from our respective homes in England and in Monaco to Singapore for the purposes of continuing our relationship. We accept that in building a life together in Singapore our habitual residence may change to Singapore, as may [C]’s. We agree and accept that any change to our habitual residence or to [C]’s habitual residence by virtue of our relocation to Singapore now, will not be treated as predictive of the appropriate jurisdiction for either of us, or for [C], to remain in at any point in the future. We both recognise that whilst it is our shared wish to live in Singapore now, as a family, it is impossible to ever predict long term changes and circumstances. (Which might include the decease of one parent or serious illness.)



We wish to record the arrangements in the tragic event of a breakdown of our relationship: [The Father] has agreed that in the interests of [C]’s welfare, [the Mother] will be the primary carer and [the Father] will have access to his son. [The Mother] has made it clear to [the Father] that under such unfortunate circumstances [the Mother’s] intention will be to return to the United Kingdom where [the Father] and [the Mother] will seek professional advice re contact arrangements relevant to [C]’s age.”


Soon after moving to Singapore, the parties’ relationship broke down. In September 2018, the Mother brought the child to the UK on a planned family vacation. The Father joined them in October 2018 and left a few days later. The Mother did not return to Singapore with the child. The Father then commenced proceedings in the UK under the Child Abduction and Custody Act 1985 (c 60) (UK) which implemented the Hague Convention on the Civil Aspects of International Child Abduction 1980. The English Court ordered that the child should be returned to Singapore and the Mother did so in January 2019.

Proceedings in Singapore followed. The Mother sought for joint custody of the child with care and control to her and leave of Court for the child to relocate with her permanently to London, UK. The Father sought for, amongst other things, sole care and control of the child and for the Mother to have access, and in the alternative, for the parties to have shared care and control of the child.


The lower Court granted the Mother care and control of the child and her application to relocate the child to London.


The Father filed an appeal against the said decision, and argued that: -


(a) The child was well settled and thriving in Singapore, and that relocation was not necessary for either the child or the Mother.[8]



(b) Relocation will affect the bond between Father and child. The Father claims that the Mother has a tendency to alienate him from the child and would not facilitate his access.[9]


(c) The COVID-19 situation has an impact on whether relocation should be granted as: -



(i) the situation in Singapore was under control as opposed to that in the UK;



(ii) the child can only return to school in September 2020 in the UK whereas he has already returned to school in Singapore as at the time of the hearing;



(iii) international travel posed risks of infection to the parties and the child;



(iv) quarantine measures and travel restrictions would make it difficult for the Father to have access to the child;



(v) travelling would jeopardise the Father’s residency status in Singapore;



(vi) the Mother’s relocation and employment plans in the UK were pre COVID-19 and are now less viable; and



(vii) the Mother in saying that relocation can take place in the immediate future, had admitted that relocation at the present time was not in the child’s best interests.[10]


High Court’s Decision


The High Court dismissed the Father’s appeal and upheld the lower court’s decision granting the Mother leave to relocate the child to the UK with her. The High Court found on the facts, that: -


(a) Singapore was not the family’s home. The Court considered the JLOI which suggests that the parties did not intend to reside in Singapore for the long term, as this was subject to how the circumstance developed.[11]



(b) Neither party have any roots in Singapore. The Father was in Singapore on an Employment Pass while the Mother had a short-term visa.[12] In contrast, both parties and the child have British citizenship with guaranteed permanent residence status in the UK[13]. The Mother and child would be able to enjoy the benefits of British citizenship by relocating.



(c) Disallowing relocation was in effect compelling the Mother to live permanently in a country which was not her home and where her immigration status was uncertain.[14]


(d) The child is able to adapt to life in the UK with a loving parent by his side. It appears that the child had spent some time in the UK when he was younger, and to some extent, had a life planned out for him in the UK prior to the relationship breakdown.[15]



(e) The Father has not explained why he could not move to London or nearer to London to be closer to the child.[16]



(f) If the Father still prefers to remain in Singapore after the child relocates, he has the financial means and flexibility to travel to London for access.[17]



(g) Showing that relocation is “necessary” is not a requirement but is a factor to be balanced against other factors.[18]



(h) The COVID-19 situation in itself should not hold the child back from relocating. The court should not be making orders on relocation depending on the COVID-19 situation at each specific point in time, as these orders would quickly become outdated as the global situation changes.[19]



Balancing all considerations, the High Court held that it will be in the child’s best interests to be relocated to his permanent home, being the UK.



Take-aways


While each case must be decided on its own facts, the case of UYK provides guidance on the important factors that assist the court in determining relocation applications involving non-residents.


Of importance is the consideration of whether the parties had intended for Singapore to be their home.


A party is less likely to be successful in showing that there was such an intention if the family had only resided in Singapore for a short period and / or do not possess any form of long term immigration statuses here. In UYK, the Father could not show any real reasons for staying in Singapore.[20] In arguing that the child and Mother should remain in Singapore despite this, the Father is effectively compelling the Mother and child to remain in a country where neither of the parties’ and child’s immigration statutes are certain. This was not in the child’s best interests.


If the parties did intend for Singapore to be their home, then this would have to be considered and balanced against other relevant factors of the case. Factors that the court can consider include “the child’s age, the child’s attachment to each parent and other significant persons in the child’s life, the child’s well-being in her present country of residence, as well as the child’s developmental needs at that particular stage of life, including her cognitive, emotional, academic and physical needs.”[21]


UYK also cautions parties from relying on the argument of “well-settledness” of the child, especially if the argument is premised on protracted litigation which causes the child to be kept in Singapore. The argument of “well-settledness” is not immutable. Children can adapt well to transitions in life with the passage of time and support from a loving parent.

Ultimately, the Court’s decision on relocation involves a fact-centric exercise which requires a careful analysis of all facts in each case. The High Court in UYK observed that “it would be unhelpful and in fact, dangerous to pigeonhole cases into “categories” that would lead to prescribed outcomes”.[22] Needless to say, the underlying thread that underscores any decision made would still be the paramount consideration of the child’s best interests.



[1] Department of Statistics Singapore website < https://www.singstat.gov.sg/find-data/search-by-theme/population/population-and-population-structure/latest-data> (accessed 30 July 2020)

[2] See Singapore, Prime Minister’s Office, Singapore Department of Statistics, Ministry of Home Affairs, Immigration & Checkpoints Authority, Ministry of Manpower, Population and Population Structure, Department of Statistics Singapore, Population in Brief (September 2019) at p 10.Population in Brief 2019, Page 10

[3] BNS v. BNT [2015] 3 SLR 973 at [3] and [19] and TAA v. TAB [2015] 2 SLR 879 at [7] [4] UYK v. UYJ [2020] SGHCF 9 at [37] [5] Supra Note 4 at [16]


[6] Ibid [7] Supra Note 4, at [17] [8] Supra Note 4 at [39] [9] Supra Note 4 at [39] [10] Supra Note 4 at [42] [11] Supra Note 4 at [48] to [50] and [74] [12] Supra Note 4 at [61] [13] Ibid [14] Supra Note 4 at [55] [15] Supra Note 4 at [56] [16] Supra Note 4 at [65] [17] Supra Note 4 at [66] [18] Supra Note 4 at [69] [19] Supra Note 4 at [70] and [71] [20] Supra Note 4 at [22] [21] UXH v. UXI [2019] SGHCF 24 at [28] [22] Supra Note 4 at [38]


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This article is not professional legal advice. If you have further enquiries, please reach out to us.

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