"In determining whether relocation applications should be granted, the welfare of the child is the paramount consideration." — Per Choo Han Teck J, Para 11
Case Information
- Citation: [2021] SGHCF 28 (Para 1)
- Court: General Division of the High Court (Family Division) (Para 1)
- Decision Date: 10 August 2021 (Para 1)
- Coram: Choo Han Teck J (Para 1)
- Counsel for Plaintiff/Appellant: Ong Kah Liang Basil and Kerri Tan (PK Wong & Nair LLC) for the plaintiff (Para 18)
- Counsel for Defendant/Respondent: Chua Junyi Leonard and Lim Qui’en (Damodara Ong LLC) for the defendant (Para 18)
- Case Number: Divorce (Transferred) No 101 of 2019; Summons 4085 of 2020; Summons 137 of 2021 (Para 1)
- Area of Law: Family law; custody; care and control; relocation (Para 1)
- Judgment Length: Approximately 18 paragraphs / about 1,500 words (Para 1, Para 18)
Summary
The dispute concerned the Wife’s application to relocate the children from Singapore to Malaysia after she had already brought them there in October 2020, and the Husband’s opposing application for their return to Singapore and a variation of care and control in his favour. The court noted that the parties had joint custody, with the Wife having sole care and control under the interim judgment, and that the relocation application was filed almost two months after the children had left Singapore. The Wife said relocation was necessary because her financial position in Singapore had become precarious and because she had stronger family and business support in Malaysia. The Husband said the move was unilateral, concealed from him, and contrary to the children’s welfare. (Para 3, Para 4, Para 5, Para 6, Para 7, Para 8, Para 9)
The court held that the welfare of the children was the paramount consideration in relocation cases, while the reasonable wishes of the primary caregiver were important but not decisive. Applying that principle, the court found that the Wife had been the primary caregiver and that the children had settled in Malaysia, were being cared for by maternal relatives, and had maintained contact with their father through video calls. The court also found that uprooting them again would be disruptive given their young ages. On that basis, the court declined to order their return to Singapore, even though it criticised the Wife’s conduct as clandestine and not condoned. (Para 11, Para 12, Para 13, Para 14, Para 15, Para 16)
At the same time, the court was clear that the Wife’s unilateral removal of the children without consulting the Husband, who shared joint custody, was a serious breach. The court observed that taking a child out of jurisdiction without leave can attract opprobrium and referred to s 126(3) and s 126(5) of the Women’s Charter, as well as s 3 of the Guardianship of Infants Act, in explaining the court’s powers. However, because the ancillary matters had not yet been completed, the court left the status quo in place for the time being, dismissed the Husband’s application, and ordered the Wife to pay the costs of both applications. (Para 14, Para 15, Para 16, Para 17, Para 18)
What Were the Facts Leading to the Relocation Dispute?
The parties married in December 2010 in Malaysia and later lived in Singapore for work. They had two children, [Q] and [Y], aged nine and four respectively. The Wife was a Malaysian national and Singapore permanent resident, while the Husband was a Singapore citizen. The family business expanded into the EE Group, with the Husband directing the Singapore company and the Wife holding the Malaysian company. (Para 3)
The Wife filed for divorce on 7 January 2019, and interim judgment was granted on 18 June 2019. Under that interim judgment, the parties had joint custody, the Wife had sole care and control, and the Husband had reasonable Sunday access. Ancillary matters on division of matrimonial assets and maintenance were still pending. (Para 4)
The Wife travelled to Kuala Lumpur in July 2020 and remained there. The children joined her on 31 October 2020 and had not returned to Singapore by the time of the hearing. The Wife’s solicitor had written on 23 November 2020 that she intended to bring the children back after medical appointments, but the relocation application was filed on 24 December 2020. (Para 5, Para 6)
What Did Each Party Argue?
The Wife argued that it was no longer tenable for her to remain in Singapore because her financial position there was precarious. She said she was no longer the corporate secretary of the EE Group companies in Singapore and no longer received monthly income from them. She also said she would have greater financial stability in Malaysia, where she intended to take over the EE Malaysian companies, or alternatively benefit from lower living costs and family support. (Para 7)
The Wife further said that relocation was not intended to deprive the Husband of access. She pointed to her fear of losing her stake in the Malaysian companies, concern about the children’s medical needs, and the presence of her parents, siblings, and extended family in Kuala Lumpur. She also said the children had been enrolled in school and kindergarten in Malaysia, and proposed weekly video access and other physical access arrangements for the Husband. (Para 8)
The Husband opposed the application on the basis that he had not been consulted and only learned of the move after the children were already in Malaysia. He relied on the fact that Q had been withdrawn from school in Singapore and said the Wife had not discussed relocation with him despite joint custody. He also argued that Malaysia was not a Hague Convention country, making it difficult to compel return. On the merits, he denied excluding the Wife from the EE companies and said her financial justification assumed, without basis, that she would receive the Malaysian companies in the matrimonial division. He also argued that Q’s education in Singapore should not be disrupted and that relocation risked weakening the children’s relationship with him. (Para 9, Para 10)
What Legal Principles Did the Court Apply to Relocation?
The court stated that in relocation applications, the welfare of the child is the paramount consideration. It also noted that the reasonable wishes of the primary caregiver are important because the child’s welfare is closely linked to the caregiver’s happiness and well-being, but those wishes are not always decisive. The court cited BNT v BNS and UFZ v UFY for those propositions. (Para 11)
The court explained that the tension in relocation cases lies between respecting the relocating parent’s reasonable wishes and preserving the child’s relationship with the left-behind parent. However, reduced access to the left-behind parent is not determinative if relocation is otherwise in the child’s welfare. (Para 11)
Why Did the Court Consider the Wife’s Conduct Problematic?
The court found that the Wife had been the primary caregiver and that her well-being was closely tied to the children’s welfare. Even so, it said her relocation wishes were reasonable but her conduct could not be condoned because she acted clandestinely and failed to discuss the move with the Husband, who shared joint custody and should have been consulted on major life decisions. The court found that the relocation application was made after the children had already been moved, making it a fait accompli. (Para 12, Para 15, Para 16)
The court also noted that the Wife’s explanation in her solicitor’s letter—that the children would return after medical appointments—was contradicted by her own evidence that she expected them to remain in Malaysia for a significant period and had already arranged schooling there. The fact that she unenrolled Q from her Singapore school showed that she intended relocation as early as November 2020. (Para 16)
The court observed that taking a child out of jurisdiction without leave carries a range of opprobrium and may, in some circumstances, resemble kidnapping by a parent. It referred to s 126(3) of the Women’s Charter, which requires written consent of both parents or leave of court before a child subject to a custody order is taken out of Singapore, and to s 126(5), which creates an offence for contravention. (Para 14)
Why Did the Court Refuse to Order the Children’s Return to Singapore?
Despite criticising the Wife’s conduct, the court held that it would not be in the children’s interests to relocate them back to Singapore at that stage. The court found that the children were cheerful and happy in Malaysia, had settled into school and kindergarten, and were being cared for by their maternal grandparents and extended family in Kuala Lumpur. The court also considered their young ages and the need for stability, concluding that uprooting them again would be disruptive. (Para 12)
The court further noted that the children had weekly video calls with their father, that Q had her own phone, and that the Husband could visit them in Kuala Lumpur when COVID-19 restrictions eased. The court therefore considered that the relationship with the Husband could be ameliorated for the time being through video communication and future visits. (Para 13, Para 17)
Importantly, the court said it was empowered to order the children’s return under the welfare principle in s 3 of the Guardianship of Infants Act, but it declined to do so because the ancillary hearing had not been completed and it might not yet be in the children’s best interests to return. The court therefore left the status quo in place, albeit undesirably. (Para 14, Para 15)
What Did the Court Decide on the Husband’s Application?
The Husband sought a return order and a variation of care and control so that he would have sole care and control with reasonable access to the Wife. The court did not grant that application. It stated that there was no corresponding need to vary the orders and that, without fault, the Husband’s application was not allowed. The court added that he remained at liberty to make the application at the ancillary hearing. (Para 6, Para 18)
The court’s refusal was tied to its decision not to disturb the children’s current living arrangement before the ancillary matters were heard. The court therefore treated the Husband’s application as premature in the circumstances, rather than as a final determination of the children’s long-term residence or care arrangements. (Para 15, Para 18)
What Orders Did the Court Make?
The court declined to grant the Wife’s relocation application and also declined to order the children’s immediate return to Singapore. It left the children in Malaysia for the time being, pending the ancillary hearing. It also dismissed the Husband’s application to vary care and control. Finally, it ordered the Wife to pay the costs of both applications. (Para 15, Para 17, Para 18)
Why Does This Case Matter?
This case is significant because it illustrates the court’s approach to relocation disputes where one parent has already moved the children across borders before obtaining leave. The judgment makes clear that even where the relocating parent has practical reasons for moving, unilateral action and failure to consult a joint custodian are serious matters. The court’s language shows that such conduct may attract strong judicial disapproval even if the court ultimately leaves the children where they are for welfare reasons. (Para 14, Para 15, Para 16)
The case is also important for its practical treatment of welfare in a relocation context. The court did not treat the left-behind parent’s reduced access as decisive, and it placed weight on the children’s adjustment, age, schooling, and available family support in Malaysia. At the same time, it recognised that the relationship with the left-behind parent remains a serious factor and that video access and future visits may mitigate, though not eliminate, the impact of relocation. (Para 11, Para 12, Para 13, Para 17)
Finally, the judgment is a useful reminder that custody, care and control, and relocation issues may be left open pending ancillary proceedings. The court expressly declined to make a final return order because the ancillary hearing had not been completed, showing that interim practical realities can influence the court’s immediate response even where the underlying conduct is criticised. (Para 15, Para 18)
Cases Referred To
| Case Name | Citation | How Used | Key Proposition |
|---|---|---|---|
| BNT v BNS | [2014] 4 SLR 859 | Relied upon | The reasonable wishes of the primary caregiver are important, but not always decisive in relocation cases. (Para 11) |
| UFZ v UFY | [2018] 4 SLR 1350 | Relied upon | Reduced access to the left-behind parent is not determinative if relocation is in the child’s welfare. (Para 11) |
Legislation Referenced
- Women’s Charter (Cap 353, 2009 Rev Ed), s 126(3) and s 126(5) — restrictions on taking a child subject to a custody order out of Singapore and the offence for contravention. (Para 14) [CDN] [SSO]
- Guardianship of Infants Act (Cap 122, 1985 Rev Ed), s 3 — welfare principle and the court’s power to order return if in the child’s best interests. (Para 15) [CDN] [SSO]
Source Documents
This article analyses [2021] SGHCF 28 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.