Case Study: Cross-Border Child Custody and the Hague Convention on International Child Abduction

by June Lim

A cross-border custody battle

This case involved a German husband and a Singaporean wife who met over the Internet in 2007. It was the first time that the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) and the International Child Abduction Act (“ICAA”) had been litigated before the Singapore courts.

On the Singaporean wife’s first trip to Germany to meet the German husband in 2009, she became pregnant and the couple married in Denmark soon thereafter. The couple’s first child was born in Germany in 2010 and they then moved in to live with the husband’s parents.

The wife found life difficult in Germany as she could not speak the language. She also could not cope with the cultural differences between her and her mother-in-law.

In 2012, the family travelled back to Singapore to celebrate Chinese New Year with the wife’s relatives. However, only the husband returned to Germany as scheduled. The wife refused to return to Germany with their first child. At that time, the wife was also pregnant with the couple’s second child.

After the husband returned to Germany, he obtained an interim order from a German court for the wife to return the child to Germany. Despite the interim order, the wife still refused to return the child to Germany and instead commenced proceedings for the sole custody and care and control of the child in Singapore.

The Hague Convention on International Child Abduction

Singapore became a signatory to the Hague Convention on 28 December 2010. Under the Hague Convention, which has been implemented in Singapore through the ICAA, signatory nations generally agree that the courts of the country of “habitual residence”  of the child should be the forum to decide all issues relating to the custody and care of the child.

In this case, as the child had lived in Germany since his birth and the family had been settled in Germany for all intents and purposes before their trip to Singapore, the husband argued that the Germany should be deemed the “habitual residence” of the child.

Action

The husband eventually made an application under the ICAA for the return of the child to Germany.

The mother resisted the application before the Singapore courts, arguing that there was a grave risk that the child’s return would expose him to physical or psychological harm, or otherwise place the child in an intolerable situation. She argued that there would be psychological harm to the child due to his separation from his mother, since the wife claimed to be unable to return to Germany for medical reasons. By contrast, the husband claimed that the wife’s medical reasons were mostly psychological and that she was unwilling (and not unable) to return to Germany with the child.

The case eventually came up for hearing before the Court of Appeal. In order to assess the wife’s mental condition, the Court of Appeal appointed an independent medical expert who eventually found that the wife suffered from mental illnesses that required extensive treatment.

Resolution

The Court of Appeal took the expert’s opinion on the wife’s mental condition into consideration in its decision. It upheld the order for the child’s return to Germany, with undertakings on the part of both the husband and the wife to ensure the wife’s prompt return to Germany with both the couple’s children, separate accommodation for the wife and children, maintenance for the wife and children, and facilities for the wife’s medical treatment for her mental condition.

(The above is a summary of the case BDU v BDT [2014] SGCA 12)

June Lim acted for the successful German husband in BDU v. BDT [2014] SGCA 12. Her principal area of practice is in matrimonial law, and she is currently the managing director of Eden Law Corporation.