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Jeremy D. Morley
The Singapore Family
Court, in a ruling by District Judge Low, has rendered a ruling on consent in
Hague abduction cases. The Court issued the following
determination*:
“In summary, the legal
principles in relation to consent that may be gleaned from the abovementioned
cases are as follows:
-Consent is not relevant to Art. 3 but to establish a
defense under Art. 13(a), i.e. if a child is removed in prima facie breach of a
right of custody, the removing parent has the burden of proof to justify the
removal and establish that the removal was done with consent;
-Consent must be proved on the balance of probabilities,
but the evidence in support of it needs to be clear and cogent. If the court is left uncertain, then the
defense under Art. 13(a) fails;
-The consent must be for a stay of sufficient duration or
quality properly to be regarded as habitual and where the consent had been
given for a purpose which has changed, the parent must have agreed to the
continued stay based on the new purpose;
-If there is ostensible consent and the party seeking the
return of the child alleges that there are circumstances vitiating the consent,
it is for that party making that claim to prove it on the balance of the
probabilities;
-Proof of deceit or dishonesty in relation to a marital
aspect of the consent, going to the root of the consent, is one such
circumstance that would vitiate a consent outwardly given; and
-The court should, in summary proceedings such as Hague
applications, be cautious about finding dishonest conduct without having
enjoyed the advantage of hearing oral evidence.”
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*Together with eminent Singapore counsel, Jeremy D. Morley assisted the successful defendant.
