Case BriefsForeign Courts

Singapore High Court (Family Division): A Three-Judge Bench comprising of Sundaresh Menon, CJ.,  Judith Prakash, JA., and  Debbie Ong, J., allowed an adoption order in the favor of a same-sex couple.

The facts of the case are that the appellant was a gay man.  He wanted to adopt his biological son who was conceived through in-vitro fertilization and was born in the US by a surrogate mother. She was paid by the appellant for her services. She then abdicated her parental rights over the child, whom the appellant and his partner then brought to Singapore.  In these circumstances, the principal question was whether an adoption order would serve the best interests of the child considering the parenting arrangement and the ethics of the means by which his birth was procured.  The court focused on the difficult interplay between law and public policy in the determination of this question. Here the court answered the question that whether or not the appellant should be allowed to adopt his son. It also discussed the appropriate methodology to be applied in determining and weighing the material considerations of public policy that may bear on this particular issue.

The court gave an adoption order in the favor of the appellants.  The Court, while doing this, held that in determining this question the main concern should be the welfare of the child. Attention must be given not only to his psychological and emotional development but also to the environment within which his sense of identity, purpose and morality will be cultivated. The Court held that the welfare of a child refers to his well-being in every aspect, that is, his well-being in the most exhaustive sense of that word. It refers to his physical, intellectual, psychological, emotional, moral and religious well-being. It refers to his well-being both in the short term and in the long term. The inquiry under the Adoption of Children Act requires an assessment of the impact of making an adoption order on the child’s welfare, and if the court is not satisfied that the impact of such an order would be for the child’s welfare, then the Court cannot make the order. The welfare of the child ought to define the scope of the inquiry.

The Court also held that the adoption of a child clearly concerns his “upbringing”, and therefore, an adoption proceeding must be a proceeding concerning the upbringing of a child within the meaning of Section 3 of the Act. Section 3 was said to apply “whatever the proceedings, as long as within such proceedings an issue of the custody or upbringing of a child arises”, such that the consideration of the child’s welfare is the “ubiquitous” standard by which all such proceedings are to be guided.

The Court next addressed the appellant’s submission that an adoption order should nevertheless not be made because it would be in violation of public policy. In the Court’s view, there was a legal basis, in Section 3(1) of the Act, for the Court to take public policy considerations into account in arriving at its decision in this case. In evaluating this submission, the first question that was addressed was whether there was any legal basis for the Court to take public policy considerations into account in arriving at its decision in this case. The Court held that there was both a statutory basis and a common law basis for doing so, although, having regard to the specific public policies that the appellant relies on, it is the statutory basis that was applied here.

The Court attributed significant weight to the concern not to violate the public policy against the formation of same-sex family units on account of its rational connection to this dispute and the degree to which this policy would be violated should an adoption order be made.

The Court said that neither of these reasons were sufficiently powerful to enable it to ignore the statutory imperative to promote the welfare of the child, and to regard his welfare as first and paramount. The welfare of the child should always be kept before public policy consideration. Thus the Court concluded that an adoption order ought to be made in this case. [UKM v Attorney-General, [2018] SGHCF 18, decided on 17-12- 2018]

Law School NewsOthers

The Republic Day marks the day when the Constitution came into effect. Today, the Constitution is often used as an instrument for progressive change, or seen as an aspirational document of what the State should be. While it is both of them in limited capacities, it’s fundamental role is to pose a set of constraints–to establish separation of powers, a system of checks and balances and to constrain the scope of legislation, among other things.
The document has been remarkable in ensuring peaceful transitions of power, protection of linguistic minorities, women’s and dalits’ rights and in constraining majoritarianism. At the same time, government policy has shaped its interpretation in such a way that it has failed to effectively constrain the State from intervening in citizens’ lives. The Indian state’s long conflict with individual liberties is manifest in constitutional cases like Champakam Dorairajan (1951), Golaknath (1967), Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 and K.S. Puttaswamy v. Union of India (Privacy-9 J.), (2017) 10 SCC 1. The Directive Principles of State Policy and Fundamental Rights raise some fundamental contradictions inherent in the Constitution.
These issues are not of mere academic interest. On the contrary, government intervention continues to weigh heavy on India’s growth story. There are a ‘million mutinies’ across the country, on issues such as land rights, reservation in education and jobs, the unemployment crisis, religious freedom and others whose roots lie in an unrestrained state which acted as an arbiter of privilege for one section over the other.
On this Republic Day, join us as we attempt to understand the role of the constitution in India’s history and the future that lies ahead. Seats are limited.
Program Highlights:
 A 2-day certificate course in law and public policy. The course will explore the various ways in which the constitution remains the fundamental determinant of government policy, and what implications it has had on India’s policy success and failures.
Program Date: 26-27 January
Application deadline: 16 January 2019
Venue: Mumbai & Delhi
Course Fee: Rs. 2,000/-

Selection: Since the seats are limited and the candidates will be selected on a rolling basis, those who apply earlier will have a higher chance of selection.

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Conference/Seminars/LecturesLaw School News

Symbiosis Law School, NOIDA and the Outreach and Training Division of the Centre for Civil Society, New Delhi (CCS Academy) collaborated to conduct a Three day Certification Course on Public Policy, called “ipolicy” on July 20-22, 2018 . The Course focused on liberal approaches to public policy, aspects of individual liberty and institutional accountability.  

Over the past several years, CCS Academy has the privilege of conducting the said programs in leading Indian colleges like IIM Ahemdabad, FMS, IIT-Delhi, IIT Madras, IIT Mumbai, ISB-Hyderabad, Delhi School of Economics, National Law School-Bangalore, St Stephens-Delhi and St Xaviers-Mumbai, to name a few.

The resource person for the course were Mr. Parth J. Shah, President, Centre for Civil Society,  Mr. Shubho Roy,Legal Consultant, National Institute of Publica Finance and Policy (NIPFP) and Mr. Yugank Goyal, Founding Faculty Member, O P Jindal Global University

About the resource persons

Mr. Parth J. Shah, President, Centre for Civil Society 

Mr. Parth’s research and advocacy work focus on the themes of economic freedom (law, liberty and livelihood campaign), choice and competition in education (fund students, not schools), property rights approach for the environment (terracotta vision of stewardship), and good governance (new public management and the duty to publish). He has published extensively in international and Indian journals, on various topics from currency regulation to education policy. He holds a PhD in Economics from Auburn University, and taught at the University of Michigan.

Mr. Shubho Roy, Legal Consultant, National Institute of Publica Finance and Policy (NIPFP)

Mr. Shubho is a Legal Consultant at National Institute of Public Finance and Policy. He is a member of the research team for the Financial Sector Legislative Reforms Commission. This involves research support to one of the largest legislative redrafting projects India has undertaken to revamp the regulation of the financial sector. Previously, he has served as a law clerk to a judge at the Supreme Court of India.

Mr. Yugank Goyal, Founding Faculty Member, O P Jindal Global University 

Mr. Yugank Goyal received his Ph.D. in Economics and Law from University of Hamburg, Erasmus University Rotterdam and University of Bologna as Erasmus Mundus Fellow. He has an LL.M. from University of Manchester and Bachelor of Technology from NIT Surat, India.

Mr. Yugank is a founding faculty member of OP Jindal Global University. In addition to helping establish the University, he spearheaded several institution building initiatives, including designing curriculum and academic policies of the University in its formative stage. Between 2009 and 2012, Mr. Yugank was the Assistant Professor and Assistant Dean (Research & International Collaborations) at Jindal Global Law School. In his capacity as Assistant Dean, he cultivated research architecture of the law school and led its collaboration with world’s leading law schools and think tanks around the world.