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Malayan Law Journal Articles/2008/Volume 2/A Judicial Response To Parental Child Abduction [2008] 2 MLJ i Malayan Law Journal Articles 2008

A Judicial Response To Parental Child Abduction

Chan Wing Cheong LLM (Cornell), MA (Oxford)Barrister (Gray's Inn), Advocate & Solicitor (Singapore),Attorney & Counsellor (New York State) Associate Professor, Faculty of Law, National University of Singapore FACTS OF THE CASE The recent case of Herbert Thomas Small v Elizabeth Mary Small (Kerajaan Malaysia & Anor, Intervener)1 raised interesting issues regarding the proper approach to be taken by a Malaysian court in deciding child custody2 issues where one of the parents has already obtained a custody order in a foreign jurisdiction. Should a Malaysian court reassess the issue of which parent should have the custody, care and control of the child? Or should the approach be simply to acknowledge the order by the other jurisdiction -- particularly if it is from a jurisdiction that has a close connection to the case? This is an important area in child law considering the not infrequent cases of parental 'kidnapping' where judicial proceedings are commenced in more than one jurisdiction in the hope that the result will be more favourable to his or her case.3 The facts of the case are as follows. The plaintiff husband and the defendant wife were married on 11 May 1991 and a daughter was born to them on 26 March 1992. All of them are Australian citizens. They resided in the UK from 1994 to 1997, and later returned to Australia in December 1998. The plaintiff husband and the 2 MLJ i at ii defendant wife had been having marital difficulties and the former moved out of their matrimonial home, leaving the daughter with the defendant wife. In December 2002, the plaintiff husband left Australia with the daughter for a holiday. They did not return to Australia by the end of January 2003 as scheduled. Instead, they entered Malaysia in January 2003 and the plaintiff husband registered the daughter at a school in Kuala Lumpur without the defendant's wife's knowledge or consent. On realising that the plaintiff husband had no intention to return the daughter to Australia, the defendant wife applied to the Australian courts on 4 February 2003 for orders for the custody and return of the daughter to Australia. Interim orders were obtained on 17 April 2003 and 7 October 2003 to this effect and a final order was obtained on 25 May 2004 for the daughter to reside with her (equivalent to 'custody, care and control'). In the meantime, the plaintiff husband was issued with a Social Visa on 19 August 2003 by the Malaysian immigration authorities under the 'Malaysia My Second Home Programme' where he was permitted to enter and remain in West Malaysia and Sabah until 18 August 2005. He filed and obtained an ex parte interim order on 24 May 2004 for the interim custody and interim guardianship of the daughter by the Malaysian courts. The defendant wife applied to set aside the interim order of the Malaysian court and inter alia for the delivery of the daughter to her in accordance with the Australian court order and for the daughter to be returned to Australia. The orders sought were granted by the learned Justice Faiza Tamby Chik. Broadly, three reasons were given by the learned judge for the decision: forum non conveniens, giving special consideration to orders from the jurisdiction in which the child is 'ordinarily resident', and the welfare

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principle.4 A critique of these reasons will be given, with reference made to decisions from other jurisdictions. This short note ends with a suggested approach that should be taken in future cases. FORUM NON CONVENIENS In determining whether the Australian court order should be followed, one of the grounds considered by the learned judge is the 2 MLJ i at iii doctrine of forum non conveniens, which involved determining whether Australia was the more appropriate forum to hear the dispute as to child custody.5 It was held that this was made out since Australia had the most real and substantial connection with the action.6 This was inter alia because: (a) the daughter had no right of permanent residence in Malaysia; (b) the parties are all Australians and had been residing in Australia prior to the daughter's abduction; (c) the daughter was well-settled in Australia, was attending school in Australia, and hence had close cultural connections with Australia; (d) the plaintiff husband himself only had a tenuous connection with Malaysia through the 'Malaysia My Second Home Programme'; and (e) issues concerning the relationship of the daughter with her parents occurred during their time in Australia and are best inquired into by the Australian court.7 This part of the decision can be criticised in that the judge can be said to have in effect abdicated the responsibility to decide on the custody issue and defered to a court of another jurisdiction. In matters of custody, the court is bound by statute to 'have regard primarily to the welfare of the infant'.8 The issues raised by the doctrine of forum non conveniens might touch on the welfare of the child, but they are not relevant in themselves.9 In the English Court of Appeal case of Re R (Minors) (Wardship: Jurisdiction), it was said that:

'Kidnapping', like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to prompt return of the child to his or her own country, but not the sacrifice of the child's welfare to some other principle of law.10

This point was put even more strongly by the House of Lords in In re J (A Child) (Custody Rights: Jurisdiction) where it was said: 2 MLJ i at iv

If our courts have jurisdiction, then the welfare principle applies, unless it is excluded, and our law has no concept of the 'proper law of the child'.11

ORDERS FROM A JURISDICTION IN WHICH THE CHILD IS 'ORDINARILY RESIDENT' In addition, the learned judge offered another reason that the Australian court order should be 'given special consideration by this court in arriving at its decision on guardianship, custody, care and control of the daughter' since she was 'ordinarily resident in Australia prior to her abduction'.12 Reference was made to the English Court of Appeal case of In re P (GE) (An Infant)13 where the principle was advanced apparently in the interests of reciprocity:

And if she [ie the mother whose child was kidnapped by the father] has eventually to apply to the courts of the foreign country, they will surely respect an order made by the courts of the ordinary residence -- just as we should -- for the simple reason that it is his [ie the child's] home and, as such, is entitled to special consideration.14

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However, there is little discussion as to what it means to be 'ordinarily resident' and why an order from a jurisdiction in which the child is 'ordinarily resident' should be given added weight. References in the judgment to the plaintiff husband having filed affidavits in the Australian proceedings and had therefore submitted to its jurisdiction,15 or was simply having a second bite at the cherry by instituting Malaysian proceedings16 are inapposite. It does not explain why orders from a jurisdiction where the child is 'ordinarily resident' are special. It is submitted that in order to justify giving special consideration to orders from the child's 'ordinary residence', reference must be made to the broader underlying policy objective of discouraging 2 MLJ i at v unilateral removals of children by one parent in general. It also serves to identify the place where the child is settled and where recent information on the quality of family life is available. In that sense, this approach is little different from the approach under the Hague Convention on the Civil Aspects of International Child Abduction (the 'Hague Convention')17 (described below) and its concept of 'habitual residence'. The concept of 'ordinary' or 'habitual' residence serves to distinguish cases where the child may have entered the country on a temporary visit only. WELFARE OF THE CHILD The learned judge also held that:

... in applying the welfare principle in the interests of justice and the welfare of the daughter the court should not countenance such a unilateral movement of the daughter to Malaysia. In 'kidnapping' cases such as the present, where the child is abducted by one parent and brought to another country without the other parent's knowledge and consent, it is in the child's welfare to be returned to its home country, unless there is compelling reason to the contrary, or the child would come to harm if returned.18

In this case, there were no compelling reasons not to return the daughter to Australia.19 Furthermore:

It is in the daughter's welfare and interest for her to be returned to Australia, her home, her school, her friends and relatives, where the issue as to who is to have custody can be decided by the Australian court, the court of the country to which the daughter has the most real and substantial connection.20

In the Malaysian Court of Appeal case of Neduncheliyan Balasubramaniam v Kohila a/p Shanmugam,21 where two children were kept in Malaysia by their mother against the wishes of their 2 MLJ i at vi Canadian father, it was also held that the Malaysian courts would not rule on custody as this was an issue to be decided by the Canadian courts. It was said that:

... we do not think it is desirable for the Malaysian courts to make a full inquiry into the wife-husband disputes in cases such as the present where the court is satisfied that no obvious harm will come to the children by sending them back to Canada.22 ... the basic rule is that the paramount consideration is the well-being of the infants. But where the children are Canadian nationals, the question is where do the children belong, where is the matrimonial establishment, and which is the proper court to decide the future of these Canadian nationals.23

It should be noted that this interpretation of what the welfare principle requires (that the child should be returned to its home country unless there is compelling reason to the contrary) is not universally followed in

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Malaysia. Another possible interpretation of the welfare principle is that once the court's jurisdiction is invoked, it must make its own independent assessment of what the welfare of the child requires and it cannot simply follow an order made by the foreign court.24 This was indeed the approach taken by the Malaysian Federal Court in Mahabir Prasad v Mahabir Prasad.25 In that case, the parties were married in India and had two children. The father came to Malaysia to make a home here and the mother and children followed. The marriage later broke down and the mother returned to India. She petitioned for divorce in India and was awarded custody of the two children who had stayed on in Malaysia with the father with the parties' mutual consent. Despite the order made by the Indian court, the father applied to the Malaysian courts for custody of the children. The Federal Court of Malaysia held that a court hearing the application for custody was not bound to give effect to a foreign court order if it would not be for the children's benefit. In the words of the House of Lords case of In re J (A Child) (Custody Rights: Jurisdiction)

... there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child 2 MLJ i at vii from his home country. On the other hand, summary return may very well be in the interests of the individual child.26

It is submitted that the approach taken by the learned judge in Herbert Thomas Small v Elizabeth Mary Small is the better one. It should be presumed that it will not be in a child's interests to have the custody dispute fought and decided in a jurisdiction with little connection to him or her. I had commented earlier that

... allowing for a full investigation of the merits of the case [in a jurisdiction where the child has been brought] based on welfare considerations plays into the hands of the parent who has abducted the child. It takes time for the evidence and social enquiry reports to be amassed, and depending on the backlog of cases, it could be years before the case is heard. By that time, the child may very well have formed roots in the new country of residence and it would be extremely difficult for a court to order the child to be returned even if other evidence points in its favour. If there is an existing custody order made by the foreign court already, repeating the analysis in another jurisdiction can also be faulted for being highly unproductive.27

Furthermore, in recognising that the return of an abducted child is usually in the welfare of the child is very much in accordance with the approach under the Hague Convention. This Convention is described below. One possible clarification on the Herbert Thomas Small v Elizabeth Mary Small decision concerns the statement that what can amount to a compelling reason for not returning a child to its home country is prima facie evidence that the host country would not apply the paramountcy of the child's welfare principle.28 It is well known that what is deemed to be in a child's welfare differs from place to place. There is a danger that this exception to ordering the return of the child is interpreted to mean that a court should enter into an enquiry of not only whether the other jurisdiction follows the welfare principle but also what that principle means and that orders of return 2 MLJ i at viii will only be made if the law in the other jurisdiction is the same as the law in Malaysia. The sentiments expressed In re J (A Child) (Custody Rights: Jurisdiction) are worth repeating here:

It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child.29

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Hence, all that should be required is that the foreign court will consider questions of custody from the child's viewpoint as to what will be the best for his or her own future well-being. Any suggestion that this is not the case will have to be proved by the party making the allegations. In summary, the decision in Herbert Thomas Small v Elizabeth Mary Small informs us that an order for the return of an abducted child will be made by the Malaysian courts unless there is evidence that the child will be harmed or that the child's home State does not apply the welfare principle in determining questions of custody. APPROACH UNDER THE HAGUE CONVENTION The Hague Convention is an international treaty that seeks to establish uniform procedures for the return of children who have been wrongfully removed. Such children, save for limited exceptions, are to be returned to the State of their 'habitual residence' to resolve any custody disputes.30 There are at present 80 contracting States to the Hague Convention.31 The approach of the Hague Convention has been described in lessening: 2 MLJ i at ix

... any attraction for a dissatisfied parent to abduct his or her own child in the hope that a different judicial system would favour him or her, and promotes international respect and trust of foreign legal systems.32

Although the Hague Convention has gained increasing acceptance around the world, it is regrettable that Malaysia has not acceded to it. This is particularly disappointing as there is an obligation on State Parties under art 11 of the Convention on the Rights of the Child33 to combat illicit transfer and non-return of children abroad, in particular by entering into international agreements to this end. Malaysia acceded to the Convention on the Rights of the Child in 1995.34 The underlying philosophy of the Hague Convention is that the best chance of protecting all children from parental abduction is by their prompt return to the State of their habitual residence and for the courts of that State to adjudicate on the issue of custody. In doing so, the court where the child is found may have to relinquish its traditional role of analysing what that particular child's welfare requires. In return, it could expect its own children to benefit by being sent back if they should be abducted to another jurisdiction. The benefits of membership are therefore reciprocal and mutual. Parental child abduction is a pressing issue considering the high mobility of persons around the world and the temptation for a dissatisfied parent who has not been awarded custody over a child to initiate new court proceedings in another jurisdiction in the hope of a more favourable decision. It is disappointing that countries with a predominantly Muslim population, other than Turkey, Turkmenistan and Uzbekistan, have not acceded to the Hague Convention. This reluctance could be due to the perceived differences between Shariah law and other systems of law in resolving custody disputes, with the result that Muslim countries do not want to give up their right to determine what is in the child's best interests. However, the failure to accede to the Hague Convention means that these countries will not 2 MLJ i at x benefit from the international regime if its own children are abducted to countries overseas.35 A SOUND APPROACH The decision of Herbert Thomas Small v Elizabeth Mary Small shows us what a judiciary in a country which is not party to the Hague Convention can do to tackle the problems of parental child abduction. In cases of abduction of non-Muslim children into Malaysia at the very least, a Malaysian court will order the return of the children except where there is proof that the children will be harmed or that the foreign court will not decide issues of custody based on the welfare principle. This is an admirable approach that other countries which are not yet parties to the Hague Convention should consider adopting.36 2 MLJ i at xi

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1 [2006] 6 MLJ 372. 2 The term 'custody' is used interchangeably with 'custody, care and control'. 3 Local articles on this area can be found in Leong Wai Kum, International Co-operation in Child Abduction Across Borders (1999) 11 SAcLJ 409; Chan Wing Cheong, The Law in Singapore on Child Abduction [2004] SJLS 444; and Debbie SL Ong, Parental Child Abduction in Singapore: The Experience of a Non-Convention Country (2007) 21 IJLPF 220. 4 The judge also found that the interim order should be set aside on the basis that the plaintiff husband did not disclose the Australian proceedings to the court, supra, note 1, para [19]. 5 Ibid, at [5]. 6 The exceptions of 'injustice', 'special circumstances' and 'personal or juridical advantage' were found not to apply, ibid, at [6]. 7 Ibid, at [5]. 8 Section 11 of the Guardianship of Infants Act 1961 (Act 351). 9 See the Australian High Court case of ZP v PS (1994) 122 ALR 1. 10 (1981) 2 Fam LR 416 at p 425 per Ormrod LJ (emphasis in the original). 11 [2005] 3 WLR 14 at [19] per Baroness Hale of Richmond. The welfare principle is excluded by statute in the UK by the Child Abduction and Custody Act 1985 which was passed to given effect to two international treaties, the Hague Convention on the Civil Aspects of International Child Abduction and the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children. 12 Supra, note 1, at [7]. 13 [1965] 1 Ch 568. 14 Ibid, at p 584 per Lord Denning. 15 Supra, note 1, at [10]. 16 Ibid, at [17]. 17 1343 UNTS 89 (entered into force on 1 December 1983). 18 Supra, note 1, at [20]. The English cases of In re T (Infants) [1968] 1 Ch 704; In re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250; In re H (Infants) [1966] 1 WLR 381; and In re E (D) (An Infant) [1967] 1 Ch 761 as well as the Malaysian case of Neduncheliyan Balasubramaniam v Kohila a/p Shanmugam [1997] 3 MLJ 768 were cited in support of this view. The statutory basis for applying the welfare principle is s 11 of the Guardianship of Infants Act 1961 (Act 351). 19 Ibid, at [26]. 20 Ibid. 21 Supra, note 18. 22 Ibid, at p 788 per Mahadev Shankar JCA. 23 Ibid, at p 790. 24 See In re B's Settlement [1940] Ch 54; McKee v McKee [1951] AC 352; In re J (A Child) (Custody Rights: Jurisdiction), supra, note 11. Other interpretations of what the welfare principle requires are described in Chan, supra, note 3, at pp 455-457. 25 [1982] 1 MLJ 189. 26 Supra, note 11, at [28] per Baroness Hale of Richmond. 27 Chan, supra, note 3, at p 455. It was also noted that in the case of Mahabir Prasad v Mahabir Prasad, supra, note 25, the

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Malaysian High Court eventually also decided that the mother should be given custody of the children and this was later upheld by the Federal Court of Malaysia on appeal. This result is not surprising since the courts in Malaysia and India both apply the welfare of the child standard in determining custody issues. 28 Supra, note 1, at [26]. 29 Supra, note 11, at [37] per Baroness Hale of Richmond. However, I do not agree with the conclusion reached by the court that it is bound to apply its own assessment of what is in the welfare of the child. 30 Articles 12, 13 and 20 of the Hague Convention. The main exception is a 'grave risk that his or her return will expose the child to physical or psychological harm or otherwise place the child in an intolerable situation'. The term 'habitual residence' is not defined in the Convention. 31 See [#8810]http://hcch.e-vision.nl/index_en.php[#8811] for updates. 32 Chan, supra, note 3, at p 454. Some commentators have pointed out weaknesses in the Convention, see eg references in footnote 7 in Chan, ibid, and in endnote 40 in Ong, supra, note 3. 33 UN Doc A/RES/44/25 (entered into force on 20 November 1989). 34 Singapore, who is also a party to the Convention on the Rights of the Child, has not acceded to the Hague Convention either. 35 For example the House of Lords has ruled in In re J (A Child) (Custody Rights: Jurisdiction), supra, note 11, at [22], that the principles under the Hague Convention cannot be extended to countries which are not parties to it. 36 See also the Singaporean case of AB v AC [2004] SGDC 6 which has applied the Hague Convention principles to children abducted to Singapore even though it is not a party to the Convention. The approach of the House of Lords, ibid, in refusing to extend the Hague Convention principles to non-Convention countries is disappointing in this respect.