Child Relocation 2024 Comparisons

The courts have held that there is only one fundamental critical legal principle on which a relocation application depends which is that “the welfare of the child [is] paramount and this principle ought to override any other consideration”. This is the “golden thread” that runs through all proceedings involving the interest of children as mandated by Section 3 of the Guardianship of Infants Act 1934 which enjoined the court to have regard for the welfare of the children as the “first and paramount consideration” in any proceeding where the custody or upbringing of a child is in issue (BNS v BNT [2015] 3 SLR 973 (“BNS v BNT”) at [19]). In determining what the welfare of the child/ren requires in any given case, the courts consider a multitude of factors. Amongst them, the following feature most commonly in the context of a relocation application.

Reasonable Wishes of the Primary Care Giver to Relocate

One prominent factor which is often looked at in cases is the reasonable wishes of the primary care giver to relocate. As the Court of Appeal in BNS v BNT recognised, “This is often identified as an important factor affecting the child’s welfare because the child’s emotional and psychological welfare is, generally speaking, intertwined with that of the primary care giver” (at [20]). It was more recently observed that “[i]t is unrealistic to disregard the well-being of the caretaker and treat it as separate and distinct from the welfare of the child” (VLO v VLP [2021] SGHCF 34 at [7]).

It was underscored by the Court of Appeal in BNS v BNT, however, that “the relocating parent’s reasonable wish to relocate is not relevant per se. It is relevant only to the extent that it is found that there will be a transference of his or her insecurity and negative feelings onto the child” (at [20]). This meant that “even where the primary care giver was able to establish that her wishes to relocate were reasonable, that was merely one factor to be considered in the overarching inquiry into the child’s welfare”; and “not a singularly determinative factor... if shown to exist, necessarily trumped all other relevant considerations” (BNS v BNT at [21]).

Moreover, the finding that the primary care giver’s wishes to relocate was not unreasonable, did not itself give rise to a presumption in favour of relocation; instead, the law expected parents to put the interests of their child/ren before their own, and sacrifices may have to be made when the child/ren is/are in need (TAA v TAB [2015] 2 SLR 879 (“TAA v TAB”) at [17] and [18]). Whilst the reasonable wishes may have a bearing on the welfare of the child/ren, the court was still obliged to consider all the relevant facts and circumstances in determining whether those wishes were incompatible with the welfare of the child/ren in any given case (TAA v TAB at [17]; UXH v UXI [2019] SGHCF 24 (“UXH v UXI”) at [11]).

Of the various reasons for relocation, the courts have generally held that a relocating parent’s desire to relocate with, or to join, a new partner or spouse in another country would not suffice where the relocation would otherwise not be in the children’s best interests. The High Court in TAA v TAB, for example, viewed that the father in that case did not have a good enough reason to relocate to Spain, a country where the children had never lived and had no other family, because his decision to do so appeared to be for the benefit of his new spouse who was Spanish. Similarly, the mother’s “driving reason” for relocation to move to the UK with her new partner and set up a family, in UXH v UXI, did not outweigh the concerns that the children would have to adjust to an entirely new living environment, new schools and new friends, and they would lose, to a significant extent, their relationship with their father.

Where, on the other hand, the relocating parent’s reason for relocation is that he/she cannot stay in Singapore due to the loss of employment, the court in TEU v TEV [2016] SGFC 33 (“TEU v TEV”) cautioned that “care must be taken to scrutinise such claims or any foreigner can circumvent the law by simply quitting his or her job, refusing to look for another job in Singapore, and then apply for relocation on the basis that he or she has to leave Singapore because of the loss of job” (at [38]). Rather, to demonstrate that he or she cannot stay in Singapore, an applicant must demonstrate that she has “exhausted all reasonable attempts to stay in Singapore”, and in the case of a person who has been terminated from his or her job, “that [he or she] has actually attempted to look for an equivalent position in Singapore and has not been able to find one” (at [33]).

In determining the weight to be ascribed to the primary care giver’s wishes in the ultimate inquiry, the courts consider all the facts of the case and focus on the likely impact on the child/ren. In the recent case of WNO v WNP [2023] SGFC 19, where there was a shared care arrangement with both parents having care of the child, the court observed that “where there are two primary care givers… the transference of the insecurity and negative feelings onto the child by the parent who is disappointed that his or her relocation application [has not been] granted, is mitigated by the presence of the other care-giving parent” and that “it follows that in such a situation, the wishes of the relocating parent would carry less weight compared to cases where the relocating parent is the sole care-giver” (at [32]).

Loss of Relationship With the Left-Behind Parent

Another significant factor that must be given due consideration in relocation applications is the child’s loss of relationship with the left-behind parent. As the Court of Appeal in BNS v BNT laid down, “It was axiomatic that a child benefited from the nurturing presence and joint contribution of both parents in his or her life and this did not cease to be true upon the breakdown of marriage”, and “relocation… represented a serious threat to this ideal state of joint parenting since the left-behind parent would become less of a presence in the child’s new life” (at [25]).

The impact of the loss of relationship on the child/ren in each case would depend on the facts, and, in particular, the strength of the existing bond between the child/ren and the left-behind parent. As a general rule, “the stronger the bond, the larger the resultant void in the child’s life if relocation were allowed, and, accordingly, the weightier this factor would be in the overall analysis” (BNS v BNT at [26]). However, on the other hand, where there have been difficulties with access and the left-behind parent was fighting to rebuild her relationship with the children, it may also not be in the children’s interests to allow the relocation, particularly in circumstances where the relocating parent was not encouraging or supportive of access (TAA v TAB at [23]).

As with the reasonable wishes of the primary care giver to relocate, the loss of relationship with the left-behind parent was not to be treated as having determinative weight or as being decisive in every case (at [26]). The High Court in UYK v UYJ [2020] 5 SLR 772 (“UYK v UYJ”) observed that the loss of relationship with the left-behind parent was an unfortunate consequence of relationship breakdown when parties were unable to agree on a common country of residence (at [64]). This is because if the parents’ desired countries of residence do not coincide and neither parent makes the sacrifice, a child would inevitably be physically separated from one parent. In such circumstances, the willingness and ability of both parents to support substantial access arrangements could help to mitigate the loss of time and relationship with the left-behind parent (at [64]). Such access may comprise physical access and virtual access.

To what extent such substantial access may be able to mitigate the loss of relationship would depend on the facts of each case. The ages of the children is a relevant factor given that remote access may be less effective for younger children. The Court of Appeal in BNS v BNT cited the High Court’s observation that “… with younger children, closeness is promoted by physical contact and frequent interaction in routine activities. Telephone and internet access are frequently unsatisfactory due to technical difficulties and generally permit only one type of interaction: conversation” (at [34]).

In a similar vein, the High Court in UXH v UXI also expressed concern that “the loss of relationship with the left-behind parent is likely to be more palpable for young children” as they “may not have had sufficient time to establish the bonding required to withstand a long-distance relationship when relocation occur[red] in their earlier childhood years”, whereas “[o]lder children may be better able to control the effects of the loss of relationship through meaningful virtual and phone communications across the miles, especially if the parent-child relationship is already strong from close bonding in the child’s younger years” (at [21]).

The relocating parent needs to be supportive and facilitative of access. Where, for example, the father was not supportive of access but on the contrary appeared to show support for the children to write letters that they did not wish to spend time with the mother, the High Court disallowed the father’s application to relocate, reasoning that such a relocation was “likely to sound a death knell to the relationship between the [m]other and the children” (TAA v TAB at [23]).

On the other hand, in a case where facilitating access was not an issue, but the father’s work commitments involved significant periods of overseas travel anyway, the High Court was satisfied that the post-relocation access plan afforded him substantial time with the children and suitably mitigated the loss of relationship such that the mother’s relocation could be allowed (UFZ v UFY [2018] 4 SLR 1350 at [45]).

Well-Settledness of the Children in Singapore

The courts also frequently consider the settledness of the children in Singapore as a factor weighing against relocation. This is because it is generally thought that it is preferable for a child’s welfare to maintain continuity. The High Court in TAA v TAB considered that the relocation was incompatible with the children’s interest in that case because they would have been uprooted from a very stable living environment in Singapore where they were well settled in schools (at [25]). As there were suggestions that the relocation was not intended to be permanent, the children would have been uprooted for a possibly non-permanent relocation.

At the same time, the High Court in UYK v UYJ observed that it was important to bear in mind that “in a globalised world, families are geographically mobile and adaptable, and the weight to be placed on well-settledness will depend on other related circumstances including how many years the child has lived in that country, the age of the child, and whether that country has been the family’s home for many years” (at [51]). Affirming the decision to allow relocation in that case, the High Court noted that it “was not a case where a child and her family have lived in Singapore for many years with strong ties to Singapore, or at least ties which are not merely transient” and that the district judge below “was not wrong to find that [the child] was young and adaptable, and would be able to settle down in the UK with a loving parent by his side” (at [55] and [57]).

More recently, the High Court in VLO v VLP and another appeal [2021] SGHCF 34 considered that the child was well-settled after moving back to Singapore, having started attending pre-school and spending his weekends with his father. It dismissed the mother’s appeal to relocate to Taiwan. In WNO v WNP [2023] SGFC 19, where the child in question had been born in Singapore and lived in Singapore all her life, the court held that it would be disadvantageous for her to be uprooted from her current environment, expressing concerns that the loss of her relationship with her father would adversely impact her capacity and resilience to adapt to a new environment.

Immigration Status and Ties to Countries

A family’s lack of immigration status and ties to Singapore are factors that frequently provide support in favour of relocation, particularly where the country sought to be relocated to would be the option which would offer the child/ren the prospect of greater long-term stability when compared with remaining in Singapore. As such, the immigration status and citizenship of the parties and child/ren are relevant considerations.

It was the family’s “lack of connection to Singapore” which the High Court in VJM v VJL and another appeal [2021] held was one of the strongest reasons in favour of relocation in that case. The father was a British citizen while the mother was a US citizen and the child was a US and British citizen – neither party nor the child held any permanent residence status in Singapore.

The High Court noted the similarities with UYK v UYJ where it was observed that relocating to the UK was the option that granted the child long-term stability in that context (at [62]), another relevant consideration/factor in the context of relocation applications. This was the converse of TSF v TSE [2018] 2 SLR 833 where the Court of Appeal reversed the High Court’s order allowing relocation because the relocating mother’s immigration status in the UK was not permanent, which resulted in uncertainty of a long-term stay in the UK.

Significantly, the High Court in VPG v VPF and another appeal [2021] SGHCF 18 allowed the appeal in respect of the decision refusing leave for the father to relocate with the child to India. The High Court observed that India was essentially the “seat” of that family, the parties and the child all being Indian citizens with no permanent immigration status in Singapore, and the family not having stayed in Singapore for long. The High Court remarked in its conclusion that it was India that would provide the child with long-term stability.

The Relocating Parent’s Relocation Plans

The courts will also consider the relocating parent’s relocation plans in determining whether such a relocation would be in the children’s best interests. This would include arrangements for the children’s accommodation, schooling, and care post-relocation, and how any other particular needs of the children are to be met. The benefit of having kinship and extended family support in caring for the children is a factor weighing in favour of relocation, particularly in the context of the relocating parent returning to his or her home country (UFZ v UFY; VTU v VTV [2022] 3 SLR 598; UFZ v UFY [2018] 4 SLR 1350; and TCI v TCJ [2015] SGFC 58).

The courts would not allow hastily made unilateral plans that failed to consider the welfare of the children, although well-made plans resulting from robust and extensive discussions between both parents that promoted both the common interests of the parents and the children could be supported (TAA v TAB at [20]). In this regard, it would be necessary for the relocating parent to show how the relocation would “promote” the children’s interests and not just that it would “not harm” their interests (UXH v UXI at [13] to [15]).

The High Court in BNT v BNS [2014] 4 SLR 859 stated that the court should also scrutinise the relocation plan with care to satisfy itself that there is a genuine motivation for the move and that the move is not intended to bring contact with the left-behind parent to an end. Poorly thought-out relocation plans in that case belied the mother’s claim that she was relocating to Canada to seek the support of her extended family, and suggested instead that she was really motivated by a desire simply to avoid unpleasantness of having to maintain contact with the father (at [45] and [46]).

The wishes and feelings of the child are relevant considerations in a relocation application. They are, however, just one factor to be weighed with all the relevant facts and circumstances of the case, subject always to the welfare of the child and not necessarily determinative in themselves.

Section 125(2) of the Women’s Charter provides that “In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and, subject to this, the court shall have regard… to the wishes of the child, where he or she is of an age to express an independent opinion”. Although the Guardianship of Infants Act is silent on the consideration of a child’s wishes, the courts have held that the voice of the child would be relevant in assessing what is in the child’s best interests and his or her welfare (VJN v VJO [2020] SGFC 61 at [45] citing ZO v ZP and another appeal [2011] 3 SLR 647 (“ZO v ZP”) at [15] and [16]).

As such, the approach laid down by the Court of Appeal in ZO v ZP is that the views of children may be taken into account by way of interviews with the judge concerned provided the children were “mature enough to convey their views independently” (at [15]). Whilst it was acknowledged that there was always a possibility that a child might be coached by a parent prior to the interview, the Court of Appeal expressed confidence that the judge should be sufficiently astute to discern whether or not the child has been so coached, and that, in any case, such a possibility could not negate the implementation of such a helpful and practical procedure (at [16]).

In a similar vein, the High Court in AZB v AZC [2016] SGHCF 1 (“AZB v AZC”) espoused that where a child was of an age where he/she can articulate and express views clearly, then it was desirable for the judge to interview the child to ascertain his/her views and to give the child a “voice”, albeit not necessarily burdened with the “choice” in proceedings (at [11] to [12]). The High Court nevertheless acknowledged that there were concerns regarding the judicial interview of children, such as drawing children into the fray, that judges are not trained to ascertain children’s views, and that children may be coached by parents (at [15]). Whilst a judge was not compelled to interview the children concerned, the High Court observed that such interviews are “useful” and could be very “helpful” to a judge, for the welfare of the children (at [20] and [25]).

It bears noting, however, that giving the child a “voice” in proceedings and interviewing the child “is also not to say that the child’s views would determine the outcome of the custody dispute; it is simply one factor which the court shall have regard for when ascertaining the best interests/welfare of the child” (UGM v UGN [2017] SGFC 123 at [12]). As the High Court in AZB v AZC observed, “when judges are aware of the limitations and reservations [of the judicial interview], they can place appropriate weight on the children’s views as they see fit”.

Going forward, the Family Justice Reform Act 2023 clarifies that where the wishes of the child are to be considered by the court, the Family Justice Rules can set out the mode by which the child’s wishes may be determined. This is anticipated to include judges conducting judicial interviews with the child to hear from him/her. Alternatively, the children’s wishes and feelings may also be ascertained through a Custody Evaluation Report or Specific Issues Report, which judges are already empowered to order/direct and are conducted by the Family Court specialists. As with the judicial interview, however, such reports are not themselves determinative, but are considered by the court with all the relevant facts and circumstances in determining the application concerning the welfare of the child/ren.

The age at which a child’s views should be considered is not fixed. The Court of Appeal in ZO v ZP took the view that “there is no particular age when [the views of the children are to be taken into account] as different children may mature sufficiently at different ages” (at [15]). What mattered was that they were “mature enough to convey their views independently”. Of the children aged 16, 13, and 9 in that case, the Court of Appeal noted that there was no issue of consultation not being appropriate.

Judges have exercised their discretion to interview and speak with children across a range of different ages and maturities since. For example, the judge in VER v VES [2020] SGFC 5 concerning the father’s relocation application, interviewed and spoke with the child aged 10 at the time, whereas the judge in UMR v UMS [2018] SGFC 56 interviewed children aged 10 and 12, observing that they presented as articulate, confident, and bright. More recently, the High Court judge in VTU v VTV [2022] 3 SLR 598 concerning the wife’s relocation application, had interviewed children as young as four and nine years old respectively, and his observations were impressionistic as he found the children to be “cheerful and happy”, and they seemed to have settled down well.

The desirability of keeping siblings together is one of the factors that the courts consider in making orders in relation to children. It was listed amongst the non-exhaustive factors to be taken into account in ABW v ABV [2014] 2 SLR 769 at [23]. Whilst recognising that “keeping siblings together should be the norm for the obvious reason that the anxieties arising from their parental separation should not be increased by a further separation of a sibling”, however, the High Court in WIQ v WIP [2023] SGHCF 16 (“WIQ v WIP”) underscored that “this is just one of many considerations, and the weight to be given to it varies from case to case, each on its own facts” (at [4]).

The High Court in WIQ v WIP affirmed the decision to order split care and control on the facts of that case where the elder child had expressed the desire to be under the mother’s care and it would not be in his best interest to compel him to return to the father’s care; whereas the younger child required greater supervision and coaching which the father was better able to provide.

In the context of relocation, for example, the High Court in TAA v TAB, holding that relocation was incompatible with the children’s interests, considered that relocation would have the effect of splitting the siblings up as the elder sibling intended to live and continue her studies in Singapore. This loss of a relationship with a significant family member, between the siblings, weighed against relocation.

The loss of relationship with the left-behind parent is an important factor to be weighed in the overarching inquiry into the child’s welfare. However, this is not determinative and how much weight is placed on this factor will depend on the facts of each case.

It bears noting that the Court of Appeal in BNS v BNT emphasised that “there can be no pre-fixed precedence or hierarchy among the many composite factors which may inform the court’s decision as to where the child’s best interests ultimately lie – where these factors stand in relation to one another must depend, in the final analysis, on a consideration of all the facts in each case”.

Relevant facts and circumstances affecting the weight placed on the loss of relationship include the strength of the relationship between the children and their respective parents, the ages of the children, and whether the loss of relationship can be mitigated by suitable access arrangements (see 2.3.1 Factors Determining an Application for Relocation).

Of the decisions where leave to relocate was granted, many cases have involved a parent returning to his or her home country after the breakdown of the parents’ relationship. This is particularly where the relocating parent has no significant connection to Singapore and feels, or is, isolated without the support of extended family back home after the breakdown of the parents’ relationship (see UYK v UYJ at [32] to [33]; VTU v VTV [2022] 3 SLR 598; UFZ v UFY [2018] 4 SLR 1350; and TCI v TCJ [2015] SGFC 58).

It bears noting, however, that, as the High Court in UYK v UYJ took pains to emphasise, there is no presumption for or against relocation, and it cautioned against pigeonholing cases into “categories” that would lead to prescribed outcomes (at [37]). Ultimately, no two cases are alike, and deciding whether or not to allow relocation in each case is an intensely fact-centric exercise (at [38]). The High Court reiterated what the Court of Appeal in BNS v BNT had said that there can be no pre-fixed precedence or hierarchy among the many composite factors which may inform a court’s decision.

As the welfare of the children is paramount and overrides all other considerations, the sole ground for opposing relocation is essentially that the relocation would not be in the welfare or best interests of the children. This may be due to a range of factors including the loss of relationship with the left-behind parent, the well-settledness of the children in Singapore, and the lack of well-thought-out relocation plans that prioritise the children’s welfare (see 2.3.1 Factors Determining an Application for Relocation).

There are no publicly-available statistics on the costs of bringing such an application. Depending on the complexity of the case and extensiveness of the evidence, a relocation application may cost at least SGD30,000 to SGD50,000 from filing to first-instance decision.

From the filing of an application, it typically takes three to six months for the application to be determined. If an appeal is filed, this may take another three to six months to be heard and determined.

As the High Court in UYK v UYJ emphasised, there is no presumption for or against relocation, and it would be unhelpful and dangerous to pigeonhole cases (at [37]). Deciding whether or not to allow relocation in each case is, as previously described, an intensely fact-centric exercise (at [38]). The welfare of the children is paramount and is determined on the consideration of all relevant facts and circumstances, and the courts are neither more sympathetic to applications by the primary care giver, nor more favourable to the left-behind parent.