by Jeremy D. Morley*
An appeal court in Singapore has ruled that, when a child is abducted to Singapore from a country that is not a treaty partner with Singapore under the Hague Abduction Convention (in this case it was China), the court should not decide an application for the child’s return on the principles that would apply if the other country had adopted the treaty. XLK v. XLJ, [2025] SGHC(A) 22. Instead, Singapore courts must consider only the “welfare” of the child (i.e. the child’s “best interests”) in accordance with Section 3 of Singapore’s Guardianship of Infants Act.
In the specific case before the court, the child’s father had brought the child to Singapore and had enrolled him in school there despite a prior Chinese court order that the child “shall be raised and educated” by the mother and despite losing an appeal from that determination.
After the abduction to Singapore, the mother sued in the Family Court in Singapore for his return. That court ordered that the child should be returned to China, focusing to a significant extent on the need to grant comity to foreign court orders. On appeal, the father alleged that the Family Court had improperly “conflated” the case with an application under the Hague Convention and, further, had afforded too much weight to the Chinese court orders, instead of engaging in a full analysis of the child’s best interests. The Appellate Division of the Singapore High Court disagreed. It held that the lower court had not treated the case as if it were a Hague Convention case, which would have been erroneous. Nor had the trial court improperly allowed the common law principle of affording comity to foreign court orders to supersede the court’s fundamental duty to apply the welfare principle to determine the case.
However, while holding that the trial judge had correctly ordered the child’s return to China by considering the child’s welfare, the Appellate Division stated that the trial judge had used inappropriate language in stating that the “doctrine of comity of nations has immense force” in such cases. Instead, in any such case, the courts are required to focus on the best interest of the child only.
The Appellate Division further stated that although an analysis of a child’s best interests should normally be considered at length, a court might correctly order an immediate return in appropriate circumstances without conducting a full investigation of the merits.
It explained that if, for instance, a child habitually resident in a foreign jurisdiction is unilaterally brought to Singapore where he is unaccustomed to its language, culture and contacts, a court may find that it is in the child’s best interests to ensure his swift and immediate return to minimize the disruption in his circumstances so that the “disturbing factors should be eliminated from his life as speedily as possible.” In doing so, the court would be giving due consideration to the foreign court orders and the fact that the child was removed from his habitual residence because these have material bearing on the welfare of the child and not because of the interests of comity.
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* Jeremy D. Morley may reached at www.international-divorce.com and info@ international-divorce.com