Tuesday, April 15, 2014

Father ordered to return his son to the UK after losing case

A father who kept his son in Singapore with his parents has been ordered to return to him to the UK.

The couple met and married in Singapore in 2011. The mother was originally from Mongolia. The father, referred to as ‘K’, who worked for a bank, bought a home in London, and the mother, B joined him there. and their son, M, was born the following year.

At the Court of Appeal, Mrs Justice Russell explained:

“It is clear, and not a matter of dispute, that the marriage had difficulties. The reasons for the difficulties are disputed but in February 2013 the police were called and there were concerns that B had been the victim of domestic abuse and K was taken into custody. Further concerns were raised that B was then minimising the incident. These concerns led to an assessment by Westminster social services. B was by then studying as well as looking after M full time and needed more assistance than she was getting from her husband; they were said to be arguing about whether to have a nanny or have the paternal grandparents involved.”

In summer last year, B began studying a course and it was agreed that the father’s parents would take the boy to Singapore to live with them for a few months.

In January this year, the couple flew out to Singapore with a return flight apparently booked for all three of them a few weeks later.

Mrs Justice Russell noted:

“Without telling his wife K resigned from his job in London and arranged to take up a position with his employer in Singapore.

Immediately on his arrival in Singapore in January, and unbeknownst to B, K commenced ex parte custody and divorce proceedings. B was served with the divorce and custody papers as she took lunch with her husband at the hotel where they were staying. He had also applied, without giving her notice, for a court order prohibiting her from removing M from the jurisdiction of Singapore. An attempt to serve this order, which he obtained in the ex parte hearing, took place when K and his Singaporean lawyer threw it at B at the airport as she was leaving the country.”

When she arrived back in the UK, “the mother discovered she had been locked out of the family home and that her ATM card to the party’s joint account no longer functioned.”

She launched proceedings for the return of her son, claiming that she had only ever agreed to a temporary visit. The father, meanwhile, insisted that they had agreed that M would stay with his parents indefinitely.

The case went before Mrs Justice Russell to determine the issue of M’s ‘habitual residence’: was it still the UK, where he had been born, or was had become Singapore during his stay in the country, as the father argued?

Mrs Justice Russell was unconvinced by the father’s claim that length of stay was just as important the intent of the parents in determining habitual residence.

She declared:

“…it must be the case that M has been dependant on the care of his paternal grandparents in Singapore over the past eight months and therefore must be, as an infant, necessarily sharing their social and family environment it does not mean that the purpose and intention of the parents (as those with parental responsibility) becomes immaterial.”

The judge cited the mother’s statements regarding her home country:

“B said that returning to Mongolia was not an option and that as a dependant of her husband she felt that there was no guarantee that she would be able to return to Singapore. This is a telling piece of evidence as it would not support the Respondent’s case that there was a long standing agreement to return to Singapore.”

She concluded:

“I do not accept the evidence of K that there was any agreement that M remain in Singapore or that it was intended that they would bring M up in Singapore. I am sure it is his plan that he and his family do so but there is nothing in his conduct or his evidence that he intended to include M’s mother in this plan.

M was habitually resident here. The purpose of his journey to Singapore, as agreed by his parents at the time was for a short period from August to November 2013, while B completed her English studies. This was extended to January as K said he could not travel until January 2014. Since January M has been retained there without his mother’s consent…

I find that M did not acquire a habitual residence in Singapore. His stay was temporary and for a fixed purpose. He was not living with either parent. His mother expected and planned to resume his care not later than January 2014. The role of the paternal grandparents as carers was also a temporary arrangement…”

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