Thursday, November 17, 2016

Singapore Ruling on Consent in Hague Abduction Cases

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.”
*Together with eminent Singapore counsel, Jeremy D. Morley assisted the successful defendant.