2017 (Ra) No. 742 Appeal case against an order of the return of a child

INCADAT legal file Hague parental abduction

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Grave Risk – Art. 13(1)(b)
Firstly, the mother contended that the father was exercising violence, creating a grave risk of harm to her life and body, and may well continue exercising such violence in a way that would expose the daughter to psychological harm by witnessing it (given that the Singaporean personal protection order allegedly did not have the effect of preventing the father’s violence against the mother). Secondly, the mother asserted that providing care for the daughter in Singapore would be difficult, as the daughter was claimed to have already fully settled in Japan, return would cause her serious physical and psychological harm, and the father would use violence against the daughter also in the future.
However, the Court held that these arguments did not have sufficient grounds. With regard to the first point raised by the mother, the father was not constantly exercising serious violence against her and the Singaporean personal protection order was found to have had deterring effects. As for the second point, it was held to be adequately possible for the daughter, now 2 years and several months old, to become settled again in Singapore. Ordering her return could not be considered to cause serious physical or psychological harm to her. Nor was there any evidence that the father had been violent towards her. The expert opinion and the medical certificate submitted by the mother could not be accepted, on the grounds that they did not provide a diagnosis resulting from substantive medical examination, but were limited to stating a mere presumption or possibility of causing serious physical or psychological harm to the daughter by returning her to Singapore.
Acquiescence – Art. 13(1)(a)
The mother further asserted that the father was not actually exercising rights of custody after she left home and moved to a shelter with the daughter. However, the Court noted that the only reason why he could not exercise his rights of custody was that the mother and daughter did not reveal their whereabouts while hiding themselves in the shelter. Considering that the father did not give up his rights of custody, the alleged ground for refusal was held not to apply.
Acquiescence – Art. 13(1)(a)
Subsequent approval (Art 28(1) No 3 of the Implementation Act)
The mother contended that the father subsequently approved of or acquiesced in the retention of the child in Japan, as he did not immediately file a petition for return with the courts of Japan, only doing so after almost one year had lapsed since the removal. As a matter of fact, however, the father filed a return application with the Central Authority of Singapore about one month after coming to know about the removal of the child in 2016. The return application was transmitted to and approved by the Central Authority of Japan. The mother requested a divorce from the father, but he refused. He then had access to the child the following year in Japan. The father eventually filed a petition for return with the Osaka Family Court in 2017. Given these circumstances, the father cannot be held to have subsequently approved of or acquiesced in the retention, even though he filed a petition for return almost one year after the removal.