(1999) 2 SLR (R) 0392

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392 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)
Lim Chin Huat Francis and another

v
Lim Kok Chye Ivan and another
[1999] SGCA 35
Court of Appeal — Civil Appeal No 283 of 1998

Yong Pung How CJ, M Karthigesu JA and L P Thean JA
20 April; 17 May 1999
Civil Procedure — Appeals — Raising of new issue, without cross-petition or
application under Rules of Court to vary judge’s decision — Whether appellate court
has power to grant leave to place issue before court — O 57 rr 9A(5) and 9A(6)(c)
Rules of Court (Cap 322, R 5, 1997 Rev Ed)
Family Law — Child — Welfare of child — Court’s discretion whether infant to be
returned to applicant — Welfare of infant the paramount consideration — Sections 3,
11 and 14 Guardianship of Infants Act (Cap 122, 1985 Rev Ed)
Family Law — Guardianship — Application for infant to be returned to lawful
guardians — Infant in care of another couple after applicants’ first petition to adopt
unsuccessful — Whether applicants constitute lawful guardians — Section 14
Guardianship of Infants Act (Cap 122, 1985 Rev Ed)
Words and Phrases — “Lawful guardian” — Section 14 Guardianship of Infants Act
(Cap 122, 1985 Rev Ed)
Facts
The infant, Esther, three days after she was born was given to the respondents
for their adoption. From 3 January 1993 till mid-February 1994, Esther was in
Helen’s continuous care and custody. Helen was the first respondent’s mother.
The respondents visited Esther four times a week at Helen’s place but never
brought Esther home with them. In 1993, they filed their adoption petition and
in August 1993 they withdrew it because the Ministry of Community
Development (“MCD”) noted their failure to bond with Esther and refused to
support their petition. In October 1995, the respondents brought Esther home
and in January 1996, Esther fell ill and stayed with Helen. The respondents filed
their second adoption petition in January 1996. Helen, believing that the
respondents would not be able to adopt Esther, found the appellants (“the
Christian couple”) suitable to be Esther’s alternative adoptive parents and
allowed them to look after Esther since February 1996. In October 1996, the
Christian couple filed their adoption petition.
The respondents applied under s 14 of the Guardianship of Infants Act
(Cap 122, 1985 Rev Ed) (“the Act”) for orders that: (a) Esther be returned to
them as she was removed without their authorisation; (b) they be appointed
Esther’s guardians until an order of court was made; and (c) alternatively, Esther
be returned to her natural mother. The district judge applied the welfare
principle to hold that the status quo should be maintained to minimise trauma
to Esther who should continue to reside with the Christian couple while the
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[1999] 2 SLR(R) Lim Chin Huat Francis v Lim Kok Chye Ivan 393
respondents be given access to Esther each week. The High Court judge however
ruled that Esther be returned to the respondents’ lawful custody. Pending the
Christian couple’s appeal, the High Court judge’s order was stayed and the
respondents were allowed increased access. For the appeal, the respondents
raised an additional issue: whether the MCD had power to sanction the
Christian couple removing Esther without the respondents’ consent.
Held, allowing the appeal:

(1) “Guardian” was defined as a person who had charge of or control over a
child or young person at the material time. Such a guardian was only the “lawful
guardian” when the court had adjudged him to be the caregiver and custodian of
the child at the material time: at [46] and [55].
(2) What mattered under s 14 of the Act was whether the infant had been
removed from her lawful guardians. On the facts, between 3 January 1993 to
October 1995, it was Helen who had the care of and control over Esther and who
was her guardian. But from October 1995 to mid-January 1996, the respondents
were her lawful guardians and at the material time when Esther was handed over
to the Christian couple by Helen, the respondents remained Esther’s lawful
guardians. Therefore the respondents were entitled at the first stage of s 14 to
seek her return to their custody. The second stage of s 14 required the court to
exercise its judicial discretion in determining whether Esther should be returned
to the respondents. In exercising such powers, the court ought to have a
paramount regard for the infant’s welfare and this was consonant with the
welfare principle stated in s 3 of the Act: at [85].
(3) Esther was well-cared for by the Christian couple when she lived with
them and should continue living with them until final disposal of the adoption
issue: at [80], [87] and [89].
(4) Although the court had power to grant leave to the respondents to raise a
new issue despite their not having filed a cross-petition or applied to vary the
judge’s decision under O 57 r 9A(5) of the Rules of Court (Cap 322, R 5,
1997 Rev Ed), the respondents’ omission should not be encouraged unless there
were valid reasons for their omission. However, the court was not the proper
forum to initiate a complaint against a public service officer in the discharge of
his official duties. The court’s role was to provide judicial review concerning any
decision proceeding from a public office: at [95].
Case(s) referred to
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223 (refd)
Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430; [1998] 1 SLR 234 (refd)
Tan Siew Kee v Chua Ah Boey [1987] SLR(R) 725; [1987] SLR 549 (folld)
Legislation referred to
Children and Young Persons Act (Cap 38, 1994 Rev Ed) ss 2, 3, 16
Guardianship of Infants Act (Cap 122, 1985 Rev Ed) ss 3, 11, 14 (consd);
ss 6, 7, 10
Legal Aid and Advice Act (Cap 160, 1996 Rev Ed) s 2
Penal Code (Cap 224, 1985 Rev Ed) s 361

Post Office Savings Bank Act (Cap 237, 1985 Rev Ed) s 2
Rules of Court (Cap 322, R 5, 1997 Rev Ed) O 57 rr 9A(5), 9A(6)(c) (consd)
Women’s Charter (Cap 353, 1997 Rev Ed) ss 145(4), 160, 164, 165
Children Act 1989 (c 41) (UK) s 2(9)
Tan Cheng Han (Tan Cheng Han), Edwin Chan and Charan Singh (Edwin Chan &
Co) for the appellants;
Tan Bar Tien and Andy Chiok (B T Tan & Co) for the respondents;
N Navarani (Attorney-General’s Chambers) on watching brief.
[Editorial note: The decision from which this appeal arose is reported at [1996] 3
SLR(R) 83.]
17 May 1999
Yong Pung How CJ (delivering the grounds of judgment):
1 This was an appeal against a High Court judge’s decision in
DCA 5028/1998. The judge overturned the decision of a district judge and
ordered the return of the infant Esther to the respondents but made no
order on costs. The order for Esther’s return to the respondents was stayed
pending the hearing of this appeal. The judge has, in the interim, ordered
that the respondents be given greater, including overnight, access. We
allowed the appeal, restoring the decision of the district judge, and made no
order on costs. Our reasons are set out below.
Background
2 The respondents who were two of the plaintiffs in OS 5001/1996 as
amended, sought orders as follows:
(a) declaring that Esther had been removed by the appellants
without authorisation from the custody, management, care and
control of the respondents;
(b) for the appellants to produce Esther in court and Esther to be
returned to the custody of the respondents or for the Sheriff to seize
Esther and deliver her into the custody of the respondents – in the
alternative, for Esther to be returned to the third plaintiff who is the
natural mother of Esther;
(c) for Esther to remain under the custody, management, care and
control of the respondents until an order of court is made; and
(d) appointing the respondents as guardians of Esther.
3 Essentially, the respondents’ application was made pursuant to s 14 of
the Guardianship of Infants Act (Cap 122, 1985 Rev Ed) (“the Act”). The
hearing before the district judge proceeded by way of affidavits only
without cross-examination of their deponents, parties having agreed to this

mode of hearing. The hearing, however, should not be taken to be an easy
one, there being in all, 23 affidavits filed by 17 different persons who have
been somehow involved in this tale of young Esther.
The facts
4 Esther was the fourth child of one Mdm Tay, a divorcee who was also
the third plaintiff in the originating summons. Mdm Tay has since dropped
out of the entire matter, as she chose not to appeal against the Subordinate
Courts’ decision to strike out the entire originating summons. This decision
was overturned on the respondents’ appeal to the High Court, when Kan
Ting Chiu J restored the originating summons sans Mdm Tay as the third
plaintiff.
5 The respondents were a childless married couple known to Mdm Tay.
Before Esther was born, Mdm Tay agreed with them that she would give
them Esther for their eventual adoption. Three days after Esther’s birth on
31 December 1992, Esther was handed over to the respondents. Almost
immediately, she was placed in the care of the first respondent’s mother,
one Helen Tan (Helen).
6 Helen had brought up 11 children. She lived with her husband (who,
during the course of the legal proceedings, passed away on 1 April 1997)
and three unmarried daughters, Adeline, Lucinda and Kwee Lee
(collectively, the daughters) in the Ang Mo Kio housing estate. It was not
disputed that Helen was the main caregiver of Esther up to the time she was
taken away by the appellants. Helen was occasionally assisted by her
husband and the daughters.
7 The respondents filed their first petition to adopt Esther on
18 February 1993. This was withdrawn on 4 August 1995 after the Child
Welfare Service of the Ministry of Community Development (MCD) filed a
report refusing to support the petition (the report). The reasons given in the
report related mainly to the respondents’ failure to establish a bond with
Esther despite having been given a generous time-frame of two years, and
the uncertainty of the respondents subsequently putting in effort to do so.
The main obstacle in their continued inability to form close bonds to Esther
was attributed to the lack of time spent with her. This conclusion was
arrived at after various interviews were conducted and observations made
by MCD officers from May 1993 to end December 1994, this being the
normal procedure after a petition to adopt a child has been filed. As the
report has not been disputed for its contents, and provided vital
independent information on the initial two years of Esther’s life, its
contents will be elaborated upon at some length.
8 The report documented the following relevant events. From about
3 January 1993 (three days after Esther’s birth) to mid-February 1994, the
respondents placed her into Helen’s continuous care and custody. The
respondents were both working and would visit Esther a maximum of four
times per week, each visit lasting two to three hours. Both respondents were
observed to be nervous and uneasy with Esther, to the extent that Helen had
to accompany them on the rare occasion they took Esther to their flat in
Pasir Ris. They were also noted never to have brought Esther back to their
flat for the weekends.
9 The MCD officers’ observations up to mid-February 1994 were thus
not very encouraging. The respondents must have known this as they
pleaded for another chance to draw closer to Esther. A plan was thus
proposed, and this was recorded in the report, for Esther to be brought back
to the respondents’ home henceforth, whereupon the second respondent
would quit her job to personally care for Esther or otherwise for Esther to
be babysat in the day by a friend in Tampines. Presumably the latter
arrangement would be to the respondents’ convenience as they resided at
Pasir Ris and they would be able to have Esther with them each night after
work. The report also contained the observation that Helen and the
respondents apparently held different views on how to take care of Esther,
with Helen declaring her low opinion of the latter’s abilities in that respect.
The proposal thus would have gone towards “weaning” Esther from Helen
and facilitating the respondents’ assumption of the role as Esther’s actual
caregivers.
10 Despite having been allowed another chance to improve ties with
Esther, from mid-February to end-December 1994, the MCD officers failed
to observe any improvement. Accordingly the proposal was never
implemented. The second respondent continued working and Esther
remained in Helen’s care with the occasional weekly visits by the
respondents. The respondents were observed to continue having difficulties
handling Esther by themselves. In fact, it was noted that with their
commencement of a hawker business as of December 1994, they would
have to work from morning to late at night. The report concluded that they
would thus have even less time to spend with Esther.
11 The respondents admittedly were aware of and were concerned over
the report. They withdrew the first adoption petition as they were afraid,
and rightly so, that it would be dismissed in the light of the report. In their
affidavit filed on 9 June 1995 to withdraw the petition, they deposed:
We regret that although we have tried very hard we have not been able
to build a bond with the child Esther and are unable to get her to be
attached to us and accept us as her parents.
12 Helen and the daughters were also concerned over the report. Helen
in particular, was afraid that Esther would be taken away by the MCD and
she would lose control over Esther’s upbringing. It was around this stage
that conflicting testimonies from the witnesses commenced. Deponents of
affidavits may be divided into two camps, Helen with the respondents, and
the daughters with the appellants. One matter which saw such conflict
pertained to what Helen and the daughters did to assuage their fear of the
MCD’s taking away Esther.
13 It appeared that Helen and the daughters, firmly believing that the
respondents would not be able to adopt Esther, made concerted efforts to
find alternative adoptive parents. Helen denied having done so in her
affidavit filed on 16 April 1996. However, there was irrefutable evidence,
besides the daughters’ affidavits, which showed otherwise. Both judge and
district judge thus held that Helen had made overt attempts to find
alternative adoptive parents for Esther. One such instance involved William
Lim, one of Helen’s sons, and his wife who were childless. In his affidavit
filed on 9 January 1997, William Lim stated he had declined to adopt Esther
when approached by his parents. Further, Helen and her husband had
considered adopting Esther themselves. Unfortunately, the MCD officers
informed her that both her and her husband’s advanced years would be a
strong factor going against this course of action.
14 The respondents emphatically denied having any knowledge of the
above doings pertaining to the search for alternative adoptive parents. On
their part, they tried to rectify their relationship with Esther despite not
having implemented the proposal. They finally decided that they should
commence caring for Esther personally. In October 1995, the second
respondent stopped working to care for Esther, who was finally brought
into the respondents’ home. Presumably they subsequently became
confident of their chances in adopting Esther, as they filed a second
adoption petition on 2 January 1996.
15 Meanwhile, it appeared that Helen and the daughters continued with
their search for new adoptive parents for Esther. Having failed to secure any
within their immediate family, they commenced looking for couples
practising the Christian faith, believing that these would be more likely to
treat Esther well. One Phua Hui Bing and her husband were found. This
matter, however, did not proceed as there was some disagreement over
monetary affairs.
16 In January 1996, the appellants made their appearance. They were a
childless married couple who worshipped at the same church as Lucinda.
They were interested in adopting a child and their first meeting with Esther
secured their desire to adopt her, which desire has continued to this day.
They first met Esther on 24 January 1996 at Helen’s flat. Helen and her
husband were also present. The MCD officer then in charge of Esther’s case,
one Poh Yin Ling, had no objection to the appellants’ decision to draw close
to Esther. The appellants proceeded to take Esther home for trial periods.
On 2 February 1996, they fetched her from the void deck to Helen’s flat.
Two days later at church, Esther met Kwee Lee and started to cry. Kwee Lee
then brought her back to Helen. On 6 February, the appellants’ attempt to
bring Esther home failed as she cried upon seeing Helen when she was
about to leave. The next day, 7 February 1996, they successfully took Esther
home and she has been staying with them since then.
17 The appellants kept in touch through telephone with Helen and Kwee
Lee until 19 March 1996, periodically informing them of Esther’s well-
being. On 2 March 1996, it was arranged that Helen and Kwee Lee should
view Esther from a distance. Since Helen’s change of heart, to support the
respondents, there has been no contact between the appellants and Helen.
18 On 2 October 1996, the appellants filed a petition to adopt Esther.
Both this and the respondents’ second petition have been adjourned sine die
pending the outcome of this appeal.
19 The final piece to this convoluted tale concerned how Esther, who was
taken to be cared for by the respondents from October 1995, came to be
with Helen in January 1996. This was another matter in which there was
conflicting testimony. Helen apparently kept constant contact with Esther,
with weekly visits each weekend to the respondents’ home. She had initially
visited Esther daily, restraining herself only upon the MCD officers’
warning that, in doing so, she would be jeopardising the respondents’
chances of adopting Esther. One such weekend in January 1996, a few days
before the appellants’ visit, she decided to bring Esther back to her home.
Along the way, Esther was coughing badly and had to be taken to a doctor
where she was diagnosed to be suffering from a bad attack of a bronchial
infection requiring intensive medical care. After that, Esther remained with
Helen until the appellants took her to their home.
The decision below

20 The judge first held that the respondents knew nothing of Helen and
her daughters’ plan to search for alternative adoptive parents. In particular,
they never consented to the appellants’ removal of Esther from Helen. As
for Helen’s consent, he found that, although she had validly given it, it
could not be a “settled, voluntary and whole-hearted intention … the truth
of the matter is that Helen Tan was not ready to part with the child”.
21 Next, he proceeded to find that the respondents had not ceased to be
Esther’s guardians, having been lawfully given custody by Esther’s natural
mother. At most, he found that Helen shared guardianship with the
respondents. He thus concluded that, while the appellants never intended
to commit a legal wrong, Esther’s transfer into their care and custody could
not be considered a lawful one and thus Esther should be returned to the
respondents.
22 He then considered the impact of the welfare principle enunciated in
s 3 of the Act on his decision to return Esther into the care and custody of
the respondents. He agreed with the district judge that, if a child were
unlawfully removed, it would be difficult to invoke the welfare principle, in
the context of the contest between the person who removed the child and
the person from whom the child was removed. He quoted a paragraph of
Yong Pung How CJ’s decision from the case of Soon Peck Wah v Woon Che
Chye [1997] 3 SLR(R) 430 to say that, in a case where the child’s upbringing
or proprietary interests are not directly in issue but only arise incidentally
in relation to other matters which are directly in question, the welfare
principle will not apply.
23 The judge also considered the reality of Esther having lived with the
appellants for over two and a half years. Though he acknowledged that she
would probably have been well-settled with them, he found that the lapse of
time was due primarily to the various legal proceedings which had
occurred, through no fault of the respondents. As Esther had been in
regular contact with the respondents since 1 July 1996 and appeared to be
comfortable in the respondents’ company, he felt that his decision was
justified. Pending the hearing of this appeal, the judge’s order has been
stayed, while the respondents have been allowed increased access.
The appellants’ case
24 The appellants contended that they brought Esther to their home with
the full knowledge of and consent by Helen. Helen, being the main if not
sole caregiver, was Esther’s lawful guardian with authority to transfer
Esther’s care and custody to anyone she deemed fit. Having done so, it did
not become Helen to now claim to have done so otherwise, or deny that she
had the capacity to do so. They thus submitted that Esther should remain in
their custody and care, having been properly entrusted to them, pending
the outcome of both adoption petitions.
25 The crux of the appellants’ submissions pertained to the application

of the welfare principle to this case. They argued that the judge was wrong
not to apply the welfare principle here. They pointed out the strength of
Esther’s bond to themselves, having lived, and happily continuing to do so,
with them for over the last few years, since February 1996. This should be
held in contrast to her relationship with the respondents, which was
tenuous if even existent. Citing examples from various English cases, they
thus submitted that the status quo should be maintained to minimise
trauma to Esther.
The respondents’ case
26 The respondents submitted that they had been and continued to be

Esther’s lawful guardians. They denied Helen or the MCD had authority to
transfer care and custody of Esther to anyone else without their prior
consent, if Helen indeed had knowingly done so. Helen on her part denied
having allowed the appellants to take Esther away. In any case, they argued
that the appellants had unlawfully removed Esther from them and
submitted that the judge was right in so holding. Thus, the respondents
urged the court to uphold the judge’s decision.
27 On the issue of the application of the welfare principle, they
submitted that, the main issue being whether Esther had been lawfully
removed from the respondents, the judge was right not to apply it to this
case. Soon Peck Wah ([22] supra) was cited in support.
The appeal
28 There were two issues arising out of this appeal:
(a) the interpretation of “lawful guardian” under s 14 of the Act;
and
(b) whether the welfare principle applied to an application made
under s 14 of the Act.
29 The respondents in their case, raised an additional issue, whether the
MCD has powers to sanction or acquiesce in the appellants’ removal of
Esther from the respondents without the latter’s consent.
“Lawful guardian” and s 14 of the Guardianship of Infants Act

30 The judge found on the facts here that care and custody of Esther had
been undisputedly given from her birth by Mdm Tay, her natural mother,
to the respondents. This finding of fact was similar to the district judge’s.
The reason for this was because the law would recognise the respondents as
being Esther’s lawful guardians, having been selected by her natural mother
to assume care and custody of her.
31 He disagreed, however, with the district judge’s finding that Helen, by
exercising care and control over Esther, had taken over as the lawful
guardian of Esther. In his opinion, at most, this led to the respondents
sharing guardianship with Helen. The judge found that the respondents
had no intention of giving up custody of Esther, as evidenced by their filing
of the two adoption petitions, taking her back to care on a full-time basis,
their solicitors’ letter of demand to Helen for Esther’s return, their frantic
search for Esther when the appellants took her away and their tenacity in
pursuing this application. He stated that the respondents’ intention was
relevant to determine the question whether, at the material time, Esther was
in their custody.
32 The judge also considered the implications, if any, of Helen’s transfer
of Esther to the appellants. He agreed with the district judge that Helen had
in fact consented to giving Esther away, and did so willingly and with full
knowledge of the consequences of her actions. In doing so, the judge
disbelieved Helen’s testimony on this point and preferred those of the
daughters. He pointed out, however, that Helen subsequently changed her
mind. She had missed Esther dearly and grieved for her absence, especially
around the Chinese New Year season. She tried to bring Esther back then
but the daughters refused. The judge premised that their refusal stemmed
from good intentions to see Esther firmly established with the appellants
before allowing Helen to see her. This resulted in a compromise where
Helen could catch a glimpse of Esther from a distance at church. Instead of
satisfying Helen, she became more upset and even threatened to commit
suicide, later vowing to bring Esther back. The judge surmised that this was
how Helen came to support the respondents.
33 The judge disagreed with the district judge that the relevant time for
determining whether Esther had been unlawfully removed was when Esther
was actually handed over to the appellants. He declined to use “a clinical”
approach towards the “human relationship” between Helen and Esther. He
found that it was Helen’s immense fear of Esther being taken away from her
and put into an institution, buttressed by her lack of confidence in the
respondents’ application to adopt Esther, that led her to search for
alternative adoptive parents. It was a result of Helen’s intense emotions that
led her to give Esther up to the appellants and the judge refused to bind her
to that action. He stated that this was not a commercial contract where a
single momentary act had an irrevocable consequence. He found that,
because of her strong emotions, Helen had not been ready to give up Esther.
34 On this basis, the judge concluded that, as the respondents were

Esther’s lawful guardians from her birth, they remained so and had not
consented to Esther’s transfer to the appellants; together with the finding
that Helen had not been ready to give up Esther, the transfer of Esther to
the appellants was not lawful. He thus ruled that Esther should be returned
to the respondents’ lawful custody.
35 The starting point in this appeal is s 14 of the Act which states:

Where an infant leaves, or is removed from, the custody of his lawful
guardian, the court or a judge may order that he be returned to such
custody, and for the purposes of enforcing such order, may direct the
Sheriff to seize the person of the infant and deliver him into the
custody of his lawful guardian. [emphasis added]
The application and interpretation of s 14 have not been previously dealt

with. As with any provision, there will always be a time to start and it is no
less so with this provision.
36 First, s 14 does not speak of an unlawful removal; it only speaks of a

departure or removal from custody of lawful guardianship. Where an infant
leaves or has been removed from its lawful guardian, the court has the
power to order that the infant be returned to its lawful guardian. Here, both
appellants and respondents claim to be Esther’s lawful guardians. The
material time was when Esther was taken away by the appellants. To answer
the question as to who was Esther’s lawful guardian at the material time, we
first have to determine what is meant by “lawful guardianship” or “lawful

guardian”.
37 It may be helpful to delve briefly into the origin of guardianship as the
interpretation of “guardianship” is being raised in detail before us for the
first time. The concept of guardianship saw a long history which stemmed
from the English feudal system wherein the early guardians were largely
concerned with managing the infant heir’s property. Thus, different types
of landholding gave rise to different types of guardianship and the law on
guardianship developed in a piecemeal manner and was generally perceived
to be unsatisfactory: see for example, Pollock and Maitland’s The History of
English Law (1923) vol II, at p 443 and Cretney and Masson’s Principles of
Family Law (5th Ed, 1990) at pp 483–484. The Chancery Courts in England
further developed the concept of the Crown being parens patriae of infants
in need of protection. Guardians were also appointed by courts by custom
and under statute. At least 13 types of guardianships were identified out of
which only a few have survived today, preserved primarily by custom or
statute.
38 In England, the law on guardianship has been superseded by the
Children Acts 1975 and 1989. The Acts introduced a new concept of
parental responsibility, which is neither delegable nor transferable: s 2(9) of
the Children Act 1989. Indeed, only two types of guardianship exist there
today and only by statute, the concept of guardianship having become an
archaic one under English law. The Law Commission, Family Law, Review
of Child Law: Guardianship (Working Paper No 91, 1985) elaborates on the
reasons for the new English laws in this regard. Owing to the effectual
demise of the concept of guardianship in England, English decisions must
be carefully considered, and earlier English cases, having been found
lacking in this respect, should likewise be cited with caution.
39 In Singapore, the concept of guardianship continues to be prevalent
and has developed in a fashion to cater for our purposes and practices
which are dissimilar to those in England. The term “guardian” with or
without qualification can be found in several statutes. In an earlier decision
by Kan Ting Chiu J involving the same parties, he dismissed a preliminary
point raised by the appellants that the respondents were not lawful
guardians who could apply to court under s 14 of the Act to regain custody
of Esther: Lim Kok Chye Ivan v Lim Chin Huat Francis [1996] 3 SLR(R) 83.
Kan Ting Chiu J defined “lawful guardian” to be a person who is lawfully
entrusted with care and custody.
40 In doing so, Kan Ting Chiu J overturned a district judge’s decision.
He recognised that, under the Act and various authorities, there were two
ways in which guardians may be legally appointed. One was under an order
of court and the other was through a testamentary instrument of a deceased
parent. However, he refused to restrict the scope of guardianship
recognised by the courts to these two statutory forms. The Act did not
expressly limit this and there were other statutes which referred to the
terms “guardian”, “legal guardian” or “lawful guardian”. This begged the
question as to what each term signifies.
41 Section 2 of the Children and Young Persons Act (Cap 38) (“CYPA”)
interprets “guardian” as:
in relation to a child or young person, includes any person who, in the
opinion of the court having cognizance of any case in relation to the
child or young person, or in which the child or young person is
concerned, has for the time being the charge of, or control over, the
child or young person. [emphasis added]
42 “Guardian” is again defined in s 2 of the Post Office Savings Bank Act

(Cap 237) to mean:
the father of a minor, or if the father is dead, the mother, or if both
parents are dead or absent from Singapore or are incapable of acting
owing to disability or other cause and no guardian of the minor has
been appointed by will or deed or under any other written law for the
time being in force or by any competent court, any adult person with
whom the minor is residing and by whom he is being maintained.
[emphasis added]
43 And s 2 of the Legal Aid and Advice Act (Cap 160) defines “guardian”
to mean:
in relation to an infant, includes any person whom the Director (of the
Legal Aid Bureau) considers might properly be appointed to be the next
friend or guardian ad litem of the infant. [emphasis added]
44 The use of “guardian” in our statutes is by no means limited to these.

The word appears albeit without definition in, for example, the Land
Acquisition Act (Cap 152), Adoption of Children Act (Cap 4), Public
Trustee Act (Cap 260), Child Care Centres Act (Cap 37A), Human Organ
Transplant Act (Cap 131A), Co-operative Societies Act (Cap 62), Infectious
Diseases Act (Cap 131) and Probation of Offenders Act (Cap 252). In
relation to the definitions found in the above three Acts, they are consistent
with one another. We therefore agree with Kan Ting Chiu J that the concept
of “guardian” in Singapore covers more than the two types expressly
catered for under the Act. We also endorse the general definition of
“guardian” as stated by Kan Ting Chiu J to be a person who has charge of or
control over a child or young person, but we would include in the definition
the phrase at the material time. This phrase should be added as the statutory
definitions have put a time factor into the concept of “guardian” (see the
above emphasis in [41]–[43]).
45 We now proceed to the term “legal guardian”. At s 3 of the CYPA, this

is defined, unless otherwise stated, as:
in relation to a child or young person, means a person lawfully

appointed by deed or will or by the order of a competent court to be
the guardian of that child or young person.
This definition is also similar in every aspect to “legal guardian” defined

under s 145(4) of the Women’s Charter (Cap 353), and used in s 145(3) and
the Second Schedule therein.
46 Thus, the term “legal guardian” has a specific meaning, limiting the
types of guardianship under it only to the two expressly provided for under
ss 6(3), 7 and 10 of the Act. A person who is a “legal guardian” is thus either
a court-appointed guardian or a testamentary guardian.
47 Before we leave the Act, ss 6(1) and 6(2) appear to implicitly recognise
the concept of “natural guardianship” or “natural guardian”. It has been
authoritatively stated as being without doubt that parents are recognised by
their very status as being “natural guardians” of their natural children: see
Cretney and Masson at p 484, fn 9 and Leong Wai Kum in Family Law in
Singapore (1990 Ed) at p 251. There is, however, no reason to dwell on the
logic and validity of this concept, as, at least for purposes of this appeal,
Esther’s natural mother has abandoned legal proceedings for Esther’s
return to herself.
48 It is therefore evident that in Singapore the concept of guardianship is
very much alive. From the generic “guardian”, there are the “natural
guardian” and “legal guardian” envisaged under the Act, the latter being the
testamentary guardian and the guardian appointed by court. This leaves us
with the term “lawful guardian”.
49 The concept of “lawful guardianship” has been used in the context of
kidnapping and is defined under the Explanation to s 361 of the Penal Code
(Cap 224) as:
The words ‘lawful guardian’ in this section include any person lawfully
entrusted with the care or custody of such minor or other person.
This term can also be found in ss 160, 164 and 165 of the Women’s Charter,
s 16 of the CYPA and of course, s 14 of the Act.
50 Kan Ting Chiu J in his decision defined “lawful guardian” to be “a
person lawfully entrusted with the care and custody”. In doing so, he
purported to adopt s 361 of the Penal Code’s definition of the same, giving
no reason for doing so apart from declaring that it is “our law”. Section 361
states:
Whoever takes or entices any minor under 14 years of age if a male, or
under 16 years of age if a female, or any person of unsound mind, out
of the keeping of the lawful guardian of such minor or person of
unsound mind, without the consent of such guardian, is said to kidnap
such minor or person from lawful guardianship.
51 One immediately notices that while the Explanation to s 361 would

include any person lawfully entrusted with the care or custody of a minor to
be a “lawful guardian”, Kan Ting Chiu J chose to limit his definition. With
respect to the judge, in our view, restricting the definition of “lawful
guardian” to a person “entrusted” would severely limit the scope of
guardianship. At the very least, one may think of a scenario wherein a
person who of his own accord assumes the care and custody of a child
whose parents have died, without having been entrusted the task. This
person would be no less a guardian merely because there has not been an
entrustment.
52 The next point is that the definition is really not a true definition at
all. Section 361 of the Penal Code merely purports to declare one instance
wherein a person would be lawful guardian, without going further. In our
opinion, the word “lawful” is used in s 361 in the context of a value
judgment being made. In considering the status of the person who has
taken or enticed the minor away, while it may be said that such person
technically has care and custody of the minor, as compared to the person
from whom the infant was taken, the person who removed the infant would
not be adjudged “lawful guardian” despite having care and custody at the
material time. In addition, in the case of kidnapping, it may well have been
used to emphasise the status of the person who kidnapped the infant vis-à-
vis the person from whom the infant was taken, rather than to introduce a
whole new concept of “lawful guardian”.
53 Turning now to s 14 of the Act, the situation there envisages an infant
who has left or been removed from the custody of his lawful guardian.
Again, at least for the second factor of removal, there is the element of
contrasting the statuses of two parties, the party who removed the infant
and the person from whom the infant was taken. The court would have to
determine, firstly, which party is the guardian. Several scenarios may be
envisaged. For example, it may be incontrovertible which party is the
guardian, the clearest types being the testamentary or court-appointed
guardian. Or the scenario may be less clear, as in this case where both
parties claim to be the guardian. The need for the courts to determine who
is the guardian, and hence for such guardian to be the “lawful guardian”, is
reinforced by the omission of the adjective “lawful” from the brief title to
the provision in the alongside column. Further, the other provisions in the
Act are silent on the apparent lawfulness or unlawfulness of guardianship,
using only the term “guardian”: see ss 16–18 and 20.
54 In our opinion, therefore, the label “lawful” is simply tagged onto a
guardian who has been adjudged and recognised by law as entitled to care
and custody of the child and who had, at some point of time in the child’s
life, care and custody of the child. A person who has had care and custody
of a child for a certain length of time would generally be recognised by
society as the guardian. This thus accounts for the easily attainable status of
“guardian” as defined above ([44] supra). Whether such guardianship is

“lawful” is another matter. Such a guardian is only the “lawful guardian”
wherein the court has determined him to be the caregiver and custodian of
the child at the material time. This envisages a process wherein a value
judgment has to be made. The court may make such judgment as in a case
involving the Act or the Penal Code, or the Director of the MCD may do so
as in a case involving the Women’s Charter. In addition, the adjective
“lawful” in the context of a provision which involves two parties claiming to
be “guardian” may highlight the difference in the statuses of the parties, ie
the person who removed the child vis-à-vis the person from whom the child
was taken.
55 Hence, we affirm Kan Ting Chiu J’s decision to the extent that he
recognised the existence in Singapore, of other types of guardians, apart
from the legal guardians expressly provided for under the Act. We accept
his definition of a “guardian” as being a person who has charge of or control
over a child at the material time. Whether or not such guardian is the
“lawful” one would be a question for the determination of the courts or the
relevant authority depending on the context. It follows that, while natural
and legal guardians appointed either by court or by testament would
normally be secured in lawful guardianship, other types of guardianship
would only be “lawful” where the question arises and after adjudication is
made.
56 Here, neither the respondents nor the appellants were legal guardians.
The court then has to determine which party was the “lawful guardian” of
Esther. Based on the chronology of events, there were three significant
stages in Esther’s life. First, from the time of her birth; next, when she was in
Helen’s care and custody; and third, at the time that the respondents took
her into their home in October 1995.
57 The first stage may be easily disposed of. The appellants have
conceded that the respondents were lawful guardians of Esther from the
time her natural mother gave her up to the respondents for future adoption.
We accept this concession as validly made.
58 For the second stage, it was not disputed that, from the time the
respondents were given the care and custody of Esther three days after her
birth, from about 3 January 1993 to around October 1995, Esther had been,
in turn, placed by the respondents into Helen’s predominant care and
custody. Their links with Esther were tenuous; they only visited her, at
most, four times a week, each visit lasting a maximum of three hours. At no
time did they bring her back to their house to stay with them for a
substantial length of time; there was no overnight contact with Esther. It
was little wonder that, even during the periodic short interviews by the
MCD officers in their writing-up of the report, the respondents could not
manage to disguise the evident indifference between themselves and their
allegedly desired child.
59 The district judge found on the evidence, and the judge has not
otherwise disturbed his finding, that the respondents never enjoyed a close
relationship with Esther from the time she was given over to their care by
her natural mother until much later, at least around the time the first
petition was withdrawn. The lack of affection and bond between the
respondents and Esther was amply evidenced by the report, which the
parties have not denied and, in our opinion, could not deny.
60 In this appeal, the respondents claimed that Helen was merely in the
position of a babysitter. This, coupled with the fact that Helen was akin to
the position of grandmother to Esther, led them to the submission that they
remained Esther’s lawful guardians.
61 The Concise Oxford Dictionary defines “babysit” as “look after a child
or children while the parents are out”. “Babysitter” is the noun of “babysit”.
While in the modern Singapore context it is normal for both parents to
work for a living with some one else to babysit for them, it would be most
unusual, if not bizarre, for a babysitter to keep the child for over two years,
with the supposed parents dropping by for the occasional visit a few times
each week and spending about three hours per visit. If this scenario were
posed as a general question to identify who the parents were, without
disclosing the statuses of the parties involved and their ages, we would be
very surprised if the respondents were labelled “parents” and Helen
“babysitter”. Indeed, the converse would be the expected answer, if the
respondents would qualify even to babysit, as, from the evidence, they
required Helen or at least one of the daughters to be around during these
visits.
62 Further, the application here did not involve a parent-child
relationship. While the respondents were indeed striving in their own way
toward attaining that status, for purposes of this appeal, we were only
concerned with guardianship. A guardian, as already defined, is simply a
person who has, at the material time, care and custody of the child. The
“lawful guardian” would be the person who, having the care and custody of
the child for a certain period, is adjudged by the court to have been entitled
to do so. While there are certain physical conditions that must be fulfilled
before a person may adopt the child to become his parent (see s 4 of the
Adoption of Children Act, Cap 4), there is no such restriction for a person
who may be his guardian. The fact that Helen could only have been Esther’s
grandmother and could never become the adoptive mother did not exclude
her from being found, if indeed the facts so revealed, the lawful guardian at
the material time. “Guardian” is not synonymous with “parent”. The
respondents, in confusing these two concepts, appeared not to see the wood
for the trees.
63 Citing facts similar to those raised above, the district judge held that
Helen was Esther’s lawful guardian. On the other hand, the judge, although
not disagreeing with the facts, based his initial finding that Helen was not
Esther’s lawful guardian on the premise that from the outset the
respondents were lawfully given custody of Esther by her natural mother.
This led to his assumption that, by merely allowing Helen to exercise daily
care and control over Esther, this act could not lead to a cessation of the
respondents’ right and responsibility of guardianship. In coming to this
conclusion, he put weight on the respondents’ intention which he inferred
from certain facts. He qualified his conclusion with an alternative holding
that Helen might also share in the respondents’ guardianship of Esther.
64 The judge did not dispute Kan Ting Chiu J’s definitions of “guardian”
or “lawful guardian”. Although we have modified Kan Ting Chiu J’s
definition of “guardian” to include the phrase “at the material time” and
expounded the meaning of “lawful guardian”, these definitions have never
focused on the element of the guardian’s intention. No doubt the intention
of parties was relevant, but it would only be one of the factors to be taken
into account. Further, while the judge hinged his decision on the fact that
Esther’s natural mother had entrusted care and custody to the respondents,
he did not aver to the fact that subsequently the respondents had in turn
entrusted the same to Helen. This must be the necessary inference as there
was more than sufficient evidence that they depended on and trusted Helen
so much they only visited Esther a maximum of 12 hours per week, and left
Esther with Helen for the rest of the seven days and nights each week for
over two years.
65 The judge cited various factors which led his belief that the
respondents did not intend to give up custody of Esther. To reiterate, he
listed their filing of two adoption petitions, taking Esther back in
October 1995 to care for her personally, the solicitors’ letter demanding
that Helen return Esther, the frantic search for Esther and their tenacity in
pursuing the originating summons. The filing of the adoption petitions was,
of course, consistent with their intention to have Esther as their child. But
as we have said, intention would only be one of the factors. As for the
respondents taking Esther back to their home in October 1995, we shall
deal with it in a moment, as that would be a relevant consideration when we
come to the third stage. With regard to the letters of demand and the police
report, we did not attach much weight to them.
66 The last factor concerned the respondents’ persistence in pursuing the
originating summons. Indeed both the appellants and the respondents have
been persistent in this aspect. Therefore we find that this was a neutral
factor which assisted neither party.
67 In our opinion, both judge and district judge misinterpreted the
requirements of s 14 when they focused on whether the appellants had
unlawfully taken Esther away, there being no such requirement. In
addition, the judge also took into account wrong elements to reach his
finding that the respondents remained lawful guardians of Esther. On the
other hand, the district judge considered various factors to arrive at the
opposite finding. We would only comment on one point as the district

judge allotted an entire paragraph to it in his grounds. He pointed out there
was a conflict of evidence on whether Esther addressed the respondents as
“daddy” and “mommy”. We find the question of what Esther at age two or
three years addressed the respondents to be quite irrelevant. This was
immaterial for the simple reason that the child was two to three years old at
the material time. She would also have been learning to speak. If one
instructs such an infant to call anyone by any name, provided one
perseveres hard enough, the infant will oblige by repeating what has been
recited to her time and again. How would an infant of such a tender age
know the implication of calling someone “daddy” or “mommy”? Reliance
on such a factor should be avoided, especially where in this case there was
other evidence more concrete to base one’s decision on.
68 Having considered all the relevant factors discussed both by the judge
and district judge, we found that the most significant fact was that for over a
period of more than two years, Esther remained without any interruption,
in the de facto custody of Helen who provided all the care and attention, as
if she was Helen’s own child. The conclusion is inescapable that during this
second stage, from about 3 January 1993 to October 1995, it was Helen who
had the care of and control over Esther and who was her guardian.
69 We now come to the third stage, and that covered the period from
October 1995 to mid-January 1996, when Esther was in the respondents’
home and looked after full-time by the first respondent. The question then
arose as to whether Helen had restored guardianship to the respondents.
70 The judge did not read much into the respondents’ taking Esther into
their home. Instead, he pointed out that Helen remained very attached to
Esther, visiting her initially daily and subsequently on weekends upon being
informed that her daily visits might affect the respondents’ chances of
adopting Esther. She was found to have missed Esther very badly and the
straw finally broke when she perceived Esther to be badly cared for by the
respondents. Esther was found to have a bad attack of bronchial infection,
which required daily medical attention for a period of time. Helen
thereafter kept Esther with her.
71 The district judge also did not consider the effect of this period of
Esther’s absence from Helen’s care and custody, in particular, whether it
affected his decision that Helen was Esther’s lawful guardian when she
allowed Esther to be taken away by the appellants. He merely pointed out
that the versions of how Esther came to be returned to Helen around
18 January 1996 were contrasting and it was difficult to conclude what
actually triggered this off, save that Esther was found to have been quite ill,
and that she was likely to have been not well-cared for whilst living with the
respondents. The judge did not substantially [disturb] such a finding, save
to mention that he would not put too much on it.
72 On the evidence, what might be safely found as incontrovertible facts

were as follows. Around October 1995, the respondents finally brought
Esther into their home. The respondents were so serious about looking after
Esther by themselves that the second respondent gave up her job to do so
personally. By the end of December 1995, there was some indication of
Esther having developed an attachment for the respondents.
73 On her part, Helen gave her support to the respondents’ move

towards assuming actual care and custody for Esther. She paid frequent
visits to the respondents’ home, and often took Esther back to her own
home for weekends. In our opinion, we should not read too much into this;
there was nothing unusual in Helen doing so as she would be akin to an
overly anxious grandmother. The fact remained that during this period,
Esther stayed with the respondents and was looked after by the second
respondent. While Esther may have stayed with Helen over the weekends,
Helen would merely be helping out. Helen was undeniably an experienced
grandmother and having previously looked after Esther for a substantial
period of time, would naturally have a great deal of say on how Esther
should be looked after. The intention of the three parties must have been
that that state of affairs should continue.
74 Thus, we find that the respondents, by having actual care and custody
of Esther from October 1995 to mid-January 1996, were her lawful
guardians for that period. It follows from this that at the material time when
Esther was handed over to the appellants by Helen and the three daughters,
the respondents remained Esther’s lawful guardians. Esther came to be with
Helen because she was brought back to Helen’s house to spend the weekend
but unfortunately she fell ill. Upon consultation with a doctor, the doctor
required her to be brought back to see him daily over the next few days. For
that reason, the respondents allowed her to remain with Helen. During this
brief period, they would not have ceased to be her guardians; as far as they
were concerned, Esther would be going back to stay with them.
75 Therefore, at the final stage, when the appellants brought Esther into
their home, the respondents were her lawful guardians. The judge and
district judge had put emphasis on the question of whether Helen had
willingly and knowingly consented to let the appellants take Esther into
their home. This was because in their interpretation of s 14, a finding had to
be made on whether Esther’s removal was lawful. We have explained in the
preceding paragraphs why such an interpretation was erroneous. What
mattered under s 14 was not whether the removal was lawful or not, but
whether the infant had been removed from her lawful guardians. Having
found that the respondents were Esther’s lawful guardians at the time she
was taken from them by the appellants without their knowledge and
consent, the question whether Helen, who was no longer her lawful
guardian, consented or not became irrelevant.
76 With this conclusion, the respondents therefore satisfied the first

requirement of s 14 of the Act. Being Esther’s lawful guardians at the time
of her removal by the appellants, they were entitled to apply under s 14 to
seek her return into their custody.
77 Section 14 of the Act, however, does not end here. It confers on the
court a discretion as to whether the child should be returned to the lawful
guardian’s custody. Therefore, even if the respondents have been found to
be the lawful guardians as was the case here, the court still has a discretion
not to return Esther to them. For purposes of an application under s 14, the
court is not concerned to find out whether the infant’s removal from its
lawful guardian is lawful; it is not the intention of the Act to punish the
person who so removed the infant, the Penal Code already catering for such
penal purposes. Instead, s 14 first requires the court to determine who is
rightfully the guardian and hence the lawful guardian. Here, the
respondents have been found to be Esther’s lawful guardians at the material
time when she was taken away by the appellants without their knowledge.
While they were entitled to apply under s 14 for her return into their
custody, the court would not automatically do so. The second stage of s 14
requires the court to exercise its judicial discretion to determine whether
Esther should be returned to the respondents.
The welfare principle

78 Both the judge and the district judge were of the view that, if a child is
unlawfully removed, the welfare principle cannot be invoked in the context
of a contest between the person who removed the child and the person from
whom the child was taken. The judge cited as authority Yong Pung
How CJ’s approval in Soon Peck Wah v Woon Che Chye ([22] supra) of a
passage from Rayden and Jackson on Divorce and Family Matters (16th Ed,
at p 1004):
The welfare principle is universal in application and applies to disputes
not only between parents but between parents and strangers and
between strangers and strangers. But the welfare of the child is only to
be regarded as the court’s paramount consideration where the child’s
upbringing or proprietary interests are directly in issue: the principle
does not apply to a case where such matters are not directly in question
but only arise incidentally in relation to other matters which are
directly in question.
79 The district judge, while enunciating the general proposition that the
welfare principle does not apply in the contest between the unlawful
remover of the child and the child’s lawful guardian, foresaw certain
circumstances wherein exceptions might be made. He illustrated with an
example of a child who is being abused by his guardians and a neighbour
intervenes to remove the child into his own home. The district judge would
then apply the welfare principle to such a situation with the ultimate
decision not to return the child to his guardians but hand him over to an
organisation looking into the welfare of children. This organisation
presumably, would be the MCD.
80 The district judge differed from the judge in finding that the
appellants did not unlawfully remove Esther from Helen. He thus found he
had to apply the welfare principle to determine whether, as between the
appellants and the respondents, who should continue to have custody and
daily care of Esther, in her best interest. He essentially found that the
contest for care and custody of Esther was between two pairs of strangers.
He found that the respondents, on the evidence, had not shown themselves
capable of caring for Esther. On the other hand, the appellants who had
Esther for more than two years, had proven themselves able to provide
proper care. While they might have put Esther in a full-day childcare centre,
they took her back to their home each day. It thus appeared to the district
judge that, as compared with the respondents, the appellants had formed a
strong bond with Esther. While he noted that to allow Esther to remain
with the appellants might put the respondents at a disadvantage concerning
their pending adoption petition, the prevailing consideration should be that
to uproot Esther from her present environment would be traumatic to her
and could not be to her best interest. He thus held that the status quo
should be maintained wherein Esther continued residing with the
appellants and the respondents continued to have access to Esther each
week.
81 On the other hand, the judge found that the appellants had unlawfully
taken Esther from the respondents. He noted that, while Esther had been
with the appellants for over two years and would thus be well-settled with
them, the respondents were not to blame for such a situation. The delay was
occasioned through the length of the legal proceedings below. He also
noted that Esther had been in regular contact with the respondents since
1 June 1996 and appeared comfortable with them, according to the MCD
officer who monitored the accesses in December 1996 and January 1997.
He thus ordered Esther to be returned to the respondents. Pending this
appeal, however, he stayed his order but granted greater access to the
respondents.
82 The issue which arose in the appeal before us was whether the welfare
principle applies to an application under s 14 of the Act. The welfare
principle, as it is now commonly called, is the guiding principle which is set
out in s 3 of the Act in proceedings before any court concerning the custody
or upbringing of a child:
Where in any proceedings before any court the custody or upbringing
of an infant or the administration of any property belonging to or held
in trust for an infant or the application of the income thereof is in
question, the court, in deciding that question, shall have regard the
welfare of the infant as the first and paramount consideration and save
in so far as the welfare otherwise requires the father of an infant shall

not be deemed to have any right superior to that of the mother in
respect of such custody, administration or application nor shall the
mother be deemed to have any claim superior to that of the father.
83 Section 14 of the Act has been previously reproduced ([35] supra).

We reiterate that the court has a discretion under s 14 whether the infant,
who has left or been removed from the lawful guardian’s custody, should be
returned to the guardian. There is no requirement under s 14 for the taking
or removal to have been unlawful. “Lawfulness” in this provision is used to
connote the need for the court to adjudicate that the applicant who claims
to be guardian is indeed the person entitled to care and custody of the child.
The determination of whether the applicant is the “lawful guardian” of the
infant and hence whether the infant has left or been removed from the
applicant as lawful guardian is the first matter for consideration for an
application under s 14. We have dealt with it in the previous section.
84 The Act has expressly provided under s 11 that:
[T]he court or a judge, in exercising the powers conferred by this Act,
shall have regard primarily to the welfare of the child, and shall, where
the infant has a parent or parents, consider the wishes of such parent or
both of them, as the case may be.
Section 11, in essence, directs the court in exercising its powers under the
Act to have a primary or paramount regard for the welfare of the infant, and
is consonant with the welfare principle stated in s 3.
85 Therefore, s 11 puts it beyond doubt that, in exercise of its discretion
under s 14 of the Act on whether the infant should be returned to its
guardian, the court is to have primary regard to the infant’s welfare, taking
into account also the wishes of the infant’s parents. Further, the question
whether the child should continue being in the care and custody of its
guardian is intricately linked to the child’s custody and upbringing, thus
falling within the purview of s 3 of the Act which also requires the
application of the welfare principle. The welfare principle is therefore
always applicable in the exercise of the court’s discretion under the second
stage of a s 14 application and the respondents’ submission to the contrary
fails. Both judge and district judge were also wrong in this regard. Even
without relying on the statutory provisions, the same result would be
reached. The definition of “lawful guardian” as a person entitled to care and
custody of the infant is so connected to the infant’s upbringing and
proprietary interests that we cannot see how the respondents may even
begin to argue to the contrary. Therefore the judge, in accepting the
respondents’ submissions, misapplied and misinterpreted the dicta in Soon
Peck Wah.
86 In the exercise of the court’s discretion under s 14 of the Act,
established principles pertaining to the welfare principle may be referred to.
Rayden and Jackson have stated at p 1006, quoted by Yong Pung How CJ in
Soon Peck Wah v Woon Che Chye ([22] supra) at [25]:
… The word ‘welfare’ must be taken in its widest sense. It has been said
that the welfare of the child is not to be measured by money only nor
by physical comfort only; the moral and religious welfare of the child
must be considered as well as his religious wellbeing; nor can the ties of
affection be disregarded. The rights and wishes of parents must be
assessed and weighed in their bearing on the welfare of the child in
conjunction with all other factors relative to that issue. The question
for the judge is not what the essential justice of the case requires but
what the best interests of the child require.
Thus the court should look at all the circumstances of the case and
come to a decision on the issue of custody, always bearing in mind that
the welfare of the child should be given paramount priority.
These elements listed as going toward making up the welfare principle are
similar to those quoted by Chan Sek Keong JC (as he then was) in Tan Siew
Kee v Chua Ah Boey [1987] SLR(R) 725 at [12].
87 The district judge found, and this was not disputed by the judge, that
Esther had been well-cared for whilst living with the appellants. The
appellants, while placing Esther in a full-day childcare centre, were merely
following what was acceptable for ordinary working parents to do. In the
absence of any evidence she had not been taken back to the appellants’
home each evening after work, it must be assumed that she had been.
Indeed, we saw nothing wrong in this arrangement, as it was both
conducive to the child to have contact with other children and adults, as
well as to have a pre-school education, which no doubt would be provided
under a standard childcare programme.
88 Another important fact to be borne in mind was that this application
was only concerned with Esther’s care and custody pending the hearing of
the two petitions, one each having been filed by the appellants and the
respondents respectively. Counsel for the respondents submitted before the
district judge that, even if the respondents’ petition failed, they could
remain lawful guardians of Esther. This seemed to us very unlikely, bearing
in mind that the appellants had a concurrent petition to adopt Esther and,
should one fail, the other would succeed. In the rare event of both petitions
being dismissed, we would expect Esther to be taken away from both parties
and be properly put up for adoption by the MCD.
89 Enlarging on the above, whichever party succeeded in adopting
Esther, she would then remain permanently in that party’s care and
custody, and any access by the other party consequently terminated. Let us
consider the option of maintaining the status quo. If the appellants’ petition
to adopt Esther succeeded, Esther would only be affected, if at all, by the
disappearance of the respondents who now only have access to her. If the
respondents’ petition succeeded, this would simply mean that they would
obtain permanent care and custody of Esther a little later, as we would

expect the proceedings for both adoption petitions to resume expeditiously
after the disposal of this appeal. The other option, to order Esther to be
under the care and custody of the respondents, would see an uprooting of
the child from her current daily residence with the appellants to commence
afresh living with the respondents. Presumably, a reasonable amount of
access might have to be granted to the appellants who after all have a close
relationship with her and are the contesting party in the adoption
proceedings. This option would see a direct reversal of roles by the parties,
the appellants to exercise access and the respondents to be the dominant
caregivers. If it were the respondents’ petition succeeding, this interim
arrangement would be made permanent. If the appellants’ petition to adopt
Esther were to succeed, the consequence would be drastic. Esther, after
having only been shortly pulled out from the appellants’ dominant and
daily care into the respondents’, would have to be returned to the
appellants. In our view, the trauma created by this plausible last scenario
would be very extreme and the better of the two options would be to
maintain the status quo.
90 The express factor a court must take into account are the wishes, if
any, of the natural parent or parents. Here, Mdm Tay had given care and
custody of Esther three days after Esther’s birth to the respondents, having
previously agreed to do so. Mdm Tay was no doubt well-acquainted with
the respondents. When Esther was taken away by the appellants, the
originating summons under s 14 was commenced with Mdm Tay as the
third plaintiff. She appeared to have lent her support to the respondents, as
discernible from her affidavit filed on 1 April 1996. The affidavit cited
instances of the respondents’ concern and generosity prior to Esther’s birth,
and their apparent monetary contribution to the upkeep of Esther after her
birth. She had also boldly expressed a desire to seek Esther’s return to
herself. However, from the subsequent legal events which unfolded, her
joint application with the respondents in the alternative to have Esther to
herself as natural mother was dismissed and she did not participate in its
appeal or any later legal proceedings. The district judge thus stated that the
contest now was not between the natural mother and the appellants, but
between the parties who were not related by blood ties to the infant. In
reality, but for the fact that she is Esther’s natural mother, no bond of
affection between herself and Esther has ever developed; her affidavit was
devoid of any mention of her having maintained contact, or wishing to do
so, with Esther, although she may have maintained contact with the
respondents. Having considered her wish thereof to have the respondents
as guardians, without more, we found that she had merely stated this
without considering the fact that, while she might not be acquainted with
the appellants, this did not necessarily mean the latter would be unsuitable
guardians. Her wish therefore remained unsubstantiated, having been
made without consideration to Esther’s welfare, and should not be given

any weight.
91 This being a tussle between strangers, the wishes of the parties would
matter very little. It was clear that both parties were at least equally desirous
of adopting Esther. Both parties have filed adoption petitions. What this
court was currently concerned with was the welfare of the child, pending
resolution of the adoption petitions. It was the status quo which was clearly
beneficial for her overall well-being. Little Esther has been subject to too
many upheavals, and faced too many emotional trials for an infant of her
age. It was our wish to avoid putting any further emotive burdens on her. It
was not even clear that the respondents would succeed in their second
adoption petition. Thus, it must be the appellants, with whom she has spent
her last two and a half years, that she should continue to be with, until final
disposal of the adoption issue, which, it is to be hoped, would put a rest to
all matters in this regard. To the respondents, who have had the first chance
to prove themselves capable guardians worthy of adopting a child, one can
only recite the maxim, opportunity knocks but only once. They have no
legal claim over the child and minimal bonds of affection to speak of. They
must face the consequence of their omission. A child is not a thing or an
animal one can simply take for granted and discard at one’s convenience, to
pick up again later when circumstances become pressing. A child is a living
being, dependent on adults from birth and must be cherished with genuine
love from the outset. In this, natural parents certainly have the edge over
would-be adoptive parents, but that is only because society has always
worked on the premise that being the natural parents, the child would be
certain to be cherished and loved. Of course, this social presumption may
fail, from time to time. In any case, where the parties do not involve the
natural parents, the very least the court must do is to advocate the
underlying premise that parents, natural or potential, must care for their
children.
92 Therefore, even if the applicants were found to be the lawful
guardians under s 14, as had been in this case for the respondents, the court
would still have to consider whether the infant should be returned to their
care. In so considering, the welfare principle would have been applied and
here, the result would be that it was to Esther’s welfare and well-being that
she remained with the appellants.
The MCD
93 The respondents raised an additional issue in their case. It appeared
that they were dissatisfied with a certain MCD officer’s conduct in this
matter. They accused her of being biased and having acted ultra vires in
sanctioning and acquiescing in the appellants’ taking away of Esther. As
illustration, they cited instances of a meeting between the appellants,
Adeline and Kwee Lee on 31 January 1996, at which the officer was present,
and her conduct of home visits at the appellants’ residence after they took
Esther away. They pointed out that the MCD had not made Esther a child
under its statutory domain pursuant to either the CYPA or the Women’s
Charter. Hence, they submitted that the MCD did not have the power to
remove or sanction to or acquiesce in her removal by the appellants.
94 Foremost, the respondents raised this issue despite it not being an
issue in the appellants’ case. If they wished to submit on this point, they
should have filed a cross-petition on it. The judge’s grounds do not refer to
this point in any way, although the district judge whose decision the
respondents appealed against before the judge, dealt with this issue. From
the notes of evidence before the judge, counsel for the respondents had
interspersed his arguments with direct allegations against the officer. In any
event, it appeared that the judge did not see fit to rule on the district judge’s
decision on this point. Hence, if the respondents were keen to pursue the
issue, they should have expressly requested of the judge to rule on it and,
pursuant to his decision, file a cross-appeal or be satisfied with his decision
whatever it might be. In the alternative, they might take the course provided
for in the Rules of Court, O 57 r 9A(5), to vary the decision of the judge in
part or to affirm his decision on grounds other than those relied on. The
respondents under the Rules of Court must state in their case the grounds
of their contention. Here, the respondents did not elect to pursue either
course, but merely inserted an issue into their case which did not form part
of the appellants’ appeal before us, and in our opinion purported to use a
“backdoor” approach.
95 This court has the power to grant leave to the respondents to contend
at the hearing that the judge’s decision should be supported on grounds not
relied on by the judge: O 57 r 9A(6)(c). In our opinion, however,
“backdoor” applications should not be encouraged, unless there are valid
reasons for the issue to be placed before the court. As things stood, we did
not have the benefit of both the judge’s decision on this point and the
appellants’ submission and arguments on it. Further, if this matter were
properly before the court, the MCD would have to be a party to the
proceedings with a chance to defend its officers’ actions on this account.
Indeed, the court is not even the proper forum to initiate a complaint
against a public service officer in the discharge of his official duties. The
court’s role is only to provide judicial review concerning any decision
proceeding from a public office: see for example Associated Provincial
Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The
respondents thus would not have been allowed to raise this as an issue if
they had indeed so applied.
96 In any case, the district judge ruled here that the MCD and its officers
did not display any bias in their conduct of this entire matter. He referred to
the length of two years (from 1993–1995) given by the MCD for the
respondents to establish bonds with Esther. The MCD in reporting that the
appellants were better educated and financially better off than the
respondents, were merely stating actual facts which the parties could not
deny. In particular, the officer’s affidavit clarified that she was under the
impression that the arrangement for the appellants to bring Esther into
their home was a private one between all parties. She thus did not bring up
the subject with the respondents. The district judge noted that while a
prudent officer may have informed the respondents, such conduct fell short
of demonstrating bias. Finally, he stated that, whatever might have been the
conduct of the MCD and its officers, it did not affect his ultimate decision
in any way, as the alleged legitimisation by the MCD of Esther’s removal
into the care and custody of the appellants was not a valid consideration at
all. The MCD’s decision or say in this regard was irrelevant, and the MCD
had not exercised its statutory powers to place Esther under its domain. We
found no reason to disturb the district judge’s findings in this regard.
Therefore, even if we had allowed the issue of bias to be placed for
consideration at the hearing before us, it would have been dismissed as the
respondents failed to prove any bias on the part of the MCD.
Conclusion
97 Applications of this nature are one of the most painful to decide. This
case was no less so. Taking into account the entire circumstances, we found
that this was a case where the judge’s decision must be set aside and the
district judge’s restored. Accordingly, we so ordered.
Headnoted by Agnes Tan Suan Ping.

(1999) 2 SLR (R) 0392

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book Page 392 Sunday, September 20, 2009 2:30 AM

392 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

Lim Chin Huat Francis and another

Court of Appeal — Civil Appeal No 283 of 1998

Held, allowing the appeal:

394 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

Penal Code (Cap 224, 1985 Rev Ed) s 361

without cross-examination of their deponents, parties having agreed to this

396 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

398 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

The decision below

The appellants’ case

25 The crux of the appellants’ submissions pertained to the application

The respondents’ case

26 The respondents submitted that they had been and continued to be

400 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

“Lawful guardian” and s 14 of the Guardianship of Infants Act

34 On this basis, the judge concluded that, as the respondents were

35 The starting point in this appeal is s 14 of the Act which states:

The application and interpretation of s 14 have not been previously dealt

36 First, s 14 does not speak of an unlawful removal; it only speaks of a

402 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

first have to determine what is meant by “lawful guardianship” or “lawful

42 “Guardian” is again defined in s 2 of the Post Office Savings Bank Act

44 The use of “guardian” in our statutes is by no means limited to these.

45 We now proceed to the term “legal guardian”. At s 3 of the CYPA, this

404 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

in relation to a child or young person, means a person lawfully

This definition is also similar in every aspect to “legal guardian” defined

51 One immediately notices that while the Explanation to s 361 would

406 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

“guardian” as defined above ([44] supra). Whether such guardianship is

408 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

opposite finding. We would only comment on one point as the district

410 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

72 On the evidence, what might be safely found as incontrovertible facts

73 On her part, Helen gave her support to the respondents’ move

76 With this conclusion, the respondents therefore satisfied the first

The welfare principle

412 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

in so far as the welfare otherwise requires the father of an infant shall

83 Section 14 of the Act has been previously reproduced ([35] supra).

414 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

obtain permanent care and custody of Esther a little later, as we would

416 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

made without consideration to Esther’s welfare, and should not be given

418 SINGAPORE LAW REPORTS (REISSUE) [1999] 2 SLR(R)

Headnoted by Agnes Tan Suan Ping.

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