VET v VEU [2020] SGHCF 4: High Court rejects bid by biological parent in same-sex marriage to appoint his spouse as guardian of their 2 children as the Judge was of the view that the court lacked the jurisdiction to make the appointment. (Photo credits: Nick Karvounis)

CASE SUMMARY

In VET v VEU [2020] SGHCF 4, the plaintiff and the defendant were a same-sex couple having married in the United States. By surrogacy agreements, the couple has 2 children, a boy and a girl. The plaintiff is the biological parent of both children whilst the defendant has no biological links with either of them. In an earlier case, the plaintiff was permitted by a three-judge coram of the High Court to adopt the boy. The plaintiff legally adopted the girl in the US. Both children lived with the plaintiff and the defendant in Singapore and together, they provided care and control for the children. The defendant resigned from his previous employment to care for the children.  

The plaintiff applied, among others, to have the defendant appointed guardian of the children. Unsurprisingly, the defendant consented to the application and in fact desired to be so appointed. As to the reason for the application, the plaintiff pointed out that the defendant had faced or would face difficulties caring for the children given that the defendant is neither the biological or legal parent of either child. For instance, the defendant is unable to provide consent for medical procedures on behalf of the children. The plaintiff made clear that he intended to retain his parental rights and obligations but wished to clothe the defendant with similar rights and obligations to enable the defendant to co-parent with him. Notably, it was not disputed that both the plaintiff and the defendant were fit persons to care for the children.  

The plaintiff’s application was made pursuant to s 5 (1) Guardianship of Infants Act (“GIA”) which provides:  

The court may, upon the application of either parent or of any guardian appointed under this Act, make orders as it may think fit regarding the custody of such infant, the right of access thereto and the payment of any sum towards the maintenance of the infant and may alter, vary or discharge such order on the application of either parent or of any guardian appointed under this Act. 

COURT’S DECISION

The High Court Judge recognised that the plaintiff, being the biological parent of both children, had locus standi to make the application. In dismissing the application, the Judge was of the view that s 5 does not confer on the High Court the jurisdiction or power to appoint a non-parent (such as the defendant) as the guardian based on the factual matrix of the case. In this regard, the Judge noted that s 5 itself does not expressly provide for the appointment of a guardian. Instead, there were only 2 sections in the GIA which permitted the court to appoint a non-parent as a guardian (putting aside the situation under s 7 GIA where either parent appoints testamentary guardians whose appointment only come into effect after their death):  

(1) The first is s 6 (3) which however applies only where the infant has no parent, no guardian of the person and no other person having parental rights with respect to him. That was not the case here since the plaintiff is the parent of both children.  

(2) The second is s 10 which confers on the court the power to remove any guardian and appoint another guardian in his place. However, the Judge was of the view that the section was inapplicable as the term “guardian” appearing therein does not encompass the parents of a child.  

In the result, the Judge was of the view that the court lacked the jurisdiction to make the appointment sought concluding that it “is evident from the statutory regime that the purpose of the GIA is to enable the courts to make orders for the welfare of the children without intervening unnecessarily in a parent’s parental responsibility.”  

The Judge allayed fears that her interpretation of the GIA may be misread to suggest that the law is helpless in protecting children from parents who are clearly unfit to parent their children (which was not the case before the Judge). To this, the Judge highlighted (at [[4]) that:  

“When parents fail gravely in their parental responsibility, court intervention is justified; depending on the precise circumstances of each case, such parents may lose custody and care and control of the children, or may even face the possibility of adoption proceedings where their unfitness to parent is severe, persistent and recalcitrant for the long term.”

CONCLUDING REMARKS

The Judge ended by suggesting that it may be apt for law reform such that specific provisions allowing for non-parents with some connection to a child to make applications for custody, care and control and access in appropriate cases, for example, the child’s grandparents. It thus remains to be seen whether Parliament will take up the Judge’s suggestion. 

To read the full judgment, click here.