A Singaporean man, who was allowed to legally adopt his biological son in a widely publicised landmark court case in 2018, has failed in his bid to have his same-sex partner named guardian of his son, as well as a girl he fathered in the US via a surrogacy arrangement.
The High Court also rejected the man's bid to have his partner awarded joint custody, care and control of the children.
In the case which raised important questions of law, the High Court ruled that simply saying the man's application was made in the welfare of the children is insufficient.
Justice Debbie Ong, in judgment grounds issued last week, said the case raised the key issue of whether and, if so, when a fit parent may voluntarily delegate or share parental responsibility over his child with a non-parent through appointing the non-parent as a guardian.
The man had married his partner, named the defendant, in the United States in 2018.
Early last year, he had a daughter through a second surrogacy arrangement in California. His first child born in 2013 was also similarly fathered in the US.
The man legally adopted the girl in the US and she now lives with the couple and their son in Singapore.
In 2018, a three-judge court allowed him to adopt the son in Singapore, stressing its decision was based on the welfare of the child, and "should not be taken as an endorsement of what the appellant and his partner set out to do".
In the current case, he applied for his partner to be appointed a guardian of both children under the Guardianship of Infants Act (GIA).
He also applied for both of them to have joint custody and shared care and control of the children. His partner consented to the moves.
Through his lawyers Koh Tien Hua and Shaun Ho from Eversheds Harry Elias, the man said he and his partner provide care for both children with a domestic helper, but pointed out that his partner faced or would face difficulties caring for them as he is neither the biological nor legal parent of either child.
His partner, who was unrepresented, added that the couple collaborated in caring for the children.
Justice Ong accepted that the child's welfare is the court's paramount consideration under the GIA.
But the judge also pointed out that under the Women's Charter, parental responsibility cannot be voluntarily delegated unless the parent gives the child up for adoption.
The judge noted the orders the man sought did not seek to limit the partner's authority. This meant the appointment as a guardian over children "results in the guardian stepping into the shoes of a parent to exercise the authority that the parent naturally possesses over the child".
This includes delegating long-term decision-making authority to that guardian, even if the child's parent still retains responsibility and authority as a parent.
Justice Ong said the court has no jurisdiction and power to appoint a guardian in this case and it is not in the children's welfare to do so.
"Caregivers need not be clothed with the heavy legal instrument of a guardianship appointment. Thus, I do not find it necessary for the defendant to be appointed guardian in order to care for the children when the plaintiff is not present.
"It appears that the plaintiff's application was driven by convenience, not necessity."
Justice Ong said the reasons for guardianship were insufficient for the court to make such an order, even if it had the power to do so.
The judge further saw no need to order joint custody, care and control, noting that the man and his partner had been caring for the children without any order for custody or care and control.
