XCHRX A C v. A S

For reference

Hague Convention - distinction between rights of custody and rights of access - right to determine the child's place of residence of non-custodial parent - right to be consulted not a right of veto - right of custody of foreign court - wrongful retention - habitual residence - peripatetic and unmarried parent - absence of settled intention.

HCMP 4266/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4266 OF 2001

______________________________

J U D G M E N T
(EDITED VERSION)

______________________________

Background

1. This application concerns a child, whom I shall call J.S. He was born on 21st July 1999 in France. By these proceedings, his father sought his return to France. He said that the child has been wrongly removed from France by his mother. He said France was the habitual residence of the child before the wrongful removal. After hearing submissions for three days, I dismissed the application on 8th October 2001. I said I would hand down my written judgment later. This is my judgment. To understand my decision, it is necessary to go into a bit of details with regard to the factual background and the history of the relationship between the parents.

2. The mother of JS was not married to his father. She herself was a Chinese born in Hong Kong. She emigrated to Australia at the age of 18. Apart from Australian passport, she also held and still holds a green card issued by the United States. She ran a business in Los Angeles. She had to travel a lot for her business. The father of the child is a French national. He was born in France. He also travelled a lot. The father first met the mother in November 1996 in London. They met again shortly afterwards in Milan. They had an affair for a few days. Then the mother went back to Los Angeles. Thereafter, the two had occasionally met each other at Los Angeles and Cannes and spent time together. The father pursued the mother more seriously after she broke up with her then boyfriend in July 1998.

3. Between August and December 1998, the mother and father had a stormy and very emotional relationship. It had not been an easy relationship from the start. In the words of the father, and I quote from Paragraph 14 of his Second Affidavit filed in these proceedings, "...we discovered that we could not cope very well with each other. We had our own frustrations. She found me intolerable and I found her unmanageable." He was referring to their relationship earlier than August 1998 but I think it also gave a picture of their relationship ever since. The mother spoke little French and the father did not speak English very well. It was exacerbated by the rather sudden demise of the father's own mother, to whom he was very emotionally attached, in October 1998. The mother still travelled extensively during this period.

4. In the midst of such relationship, the child was conceived in late October 1998. For reason which I do not deem necessary to go into in this judgment, the father was not enthusiastic when he was told about it in November 1998. This proved to be the presage to the end of the first phase of their relationship. The two of them eventually broke up shortly afterwards.

[Paras. 5 to 8 contained factual details which do not call for reporting.]

9. From all these, it can be seen that the relationship between the father and the mother suffered from a number of acrimonious incidents and was fraught with difficulties. It has never been a steady and stable relationship. It would appear that January 2000 marked the complete breakdown between the two of them. On 27th January 2000, the father filed proceedings in France regarding his rights towards the child. In February 2000, the mother left Paris with the child and went back to Los Angeles before any hearing. This, however, is not the removal relied on by the father.

10. I shall have to delve into the French proceedings at greater length at a later stage. The mother challenged the jurisdiction of the French court. On 9th May 2000, the French court rejected the mother's plea as to its lack of jurisdiction and made an order that,

(a) the father and the mother were to exercise joint parental rights over the child;

(b) the child was to reside at the usual residence of the mother;

(c) the father was given visitation rights but without any accommodation rights;

(d) the mother was to inform the father as to her usual residence;

(e) the father was to pay maintenance in the sum of 2,000FF per month as child support.

At the time when the order was made, the mother and the child were in Los Angeles.

11. The mother came back from Los Angeles to France with the child on 12th May 2000. There were contacts between the parties and the father was given access to the child although perhaps not to the full extent as ordered by the court. There were conflicts in the evidence as to the reason behind that. The French court also ordered that a psychological report be obtained. The mother filed an appeal against the French order. Up to the time of the hearing before me, the appeal has not yet been disposed of. The mother stayed in France to arrange for examination by the psychologist. That only took place in late August 2000 after the psychologist returned from holidays. Whilst counsel for the father at one stage submitted that they were back together as a family during May to August 2000 enjoying a summer holiday, the correspondence between the parties during this period showed otherwise. In fact, the father's Second Affidavit filed in these proceedings showed that during this period, there were constant arguments between the parents on the question of access. This was wholly inconsistent with a case of happy family reunion. The father was not constantly around the mother and the child during that period.

12. The mother took the child to Hong Kong on 11th September 2000. This is the first removal alleged to be wrongful by the father. She only informed the father of the same by a fax dated 13th September 2000. From the letter, it appears that the mother did not plan to stay in Hong Kong for long. She came to attend the funeral of her god mother, and was intending to go back to Los Angeles thereafter. In the correspondence between the parents whilst she was in France, she had been saying that she would go back to Los Angeles. However, she subsequently decided to settle in Hong Kong. She has relatives here who could assist her in terms of daily needs. She enrolled the child into playgroups and kindergarten. She stayed at first at her family home in Tsimshatsui. On 2nd December 2000, she leased a house in Shatin. In the submissions filed on 15th December 2000 on the behalf of the mother in the French proceedings, the mother clearly indicated that she had settled with the child in Hong Kong.

13. The father did not take any immediate action after the receipt of the fax of 13th September 2000. He explained in Paragraph 25 of his First Affidavit, "Throughout our relationship, the [mother] has flown off many times without informing me prior to the event even if she was taking [the child] along. She would always return as unpredictably as she left, and there was certainly nothing in her faxes to suggest this was any different." But the mother said in her fax of 13th September 2000 that she would go back to Los Angeles instead of Paris. The father also said he was expecting to see the mother and child in Milan in October 2000. He did not see them there. Apparently, he did not contact the brother of the mother until January 2001 to locate her whereabout in Hong Kong. He instead instructed his French lawyer to write to the mother's lawyer in France on 5th December 2000 to demand information as to the place of residence of the child and communicate his wish to see the child. The response from the mother's lawyer on 11th December 2000 was not particularly helpful. It alleged that the father knew the mother's address in Hong Kong and suggested the father to write to her in Hong Kong or send fax to her at Los Angeles about his intended visit. In a letter dated 18th December 2000, the father's lawyer protested that the father did not know the address or telephone number of the mother in Hong Kong. It also asked for the date of the mother's return to France, Europe or Los Angeles "so as to allow the father to organize his travels under acceptable and bearable conditions particularly financially."

14. The mother had to go to Los Angeles to attend her own father on 2nd January 2001 because he suffered a massive stroke. She went there with the child. Hence, when the father tried to locate them through the brother of the mother, he was told that she had gone to Los Angeles. By a fax dated 19th January 2001, the mother informed the father as to her address in Tsimshatsui (which she still kept as correspondent address despite her move to Shatin). She reminded him that he had been there when he came to Hong Kong with her to attend the funeral of her mother. She explained why she was in Los Angeles and her decision to live in Hong Kong. She also told him that the child had been going to preschool in Hong Kong. Her own father died in Los Angeles and after the funeral, the mother left Los Angeles with the child to go to Berlin. Arrangement was made for the father to see the child and the father did manage to see him on 21st February 2001 in Paris. The father then went to Los Angeles for his own business. After staying in France for about 2 weeks (the mother said she was there to fix the child's pram and to attend to some business at Deauville), the mother and the child left France on 8th March 2001. This is the second alleged wrongful removal. After staying about 10 days in Los Angeles to clear her late father's belonging in Los Angeles, she came back to Hong Kong with the child on 19th March 2001. The child remained in Hong Kong until now.

15. On 27th March 2001, the French Court made a second order. It was noted that the appeal against the first order had not yet been ruled on. It reminded that parental rights in respect of the child were to be shared and that the child's usual residence was at the mother's residence. It granted housing right to the father for specified periods of time during the year. In respect of the mother's failure to inform the father as to the whereabout of the child, the French Court imposed a fine of 12,500 FF. It stated that whatever the situation is, the mother will have to inform the father of the child's residence each month. The father heard of the order in early May 2001. The order was not served on the mother until 23rd June 2001.

16. The father came to Hong Kong and exercised his right of access in respect of the child during his stay in Hong Kong. Having obtained legal advice in Hong Kong, the present proceedings were commenced by the father on 7th August 2001.

The legal framework

17. The Hague Convention on the Civil Aspects of International Child Abduction was applied to Hong Kong under the Child Abduction and Custody Ordinance Cap.512. The objective of the convention has been succinctly summarised by Hartmann J. in the case of LM v. HTS, HCMP No.1329 of 2001, 19.4.2001 and I respectfully agree with what was said at p.8 of that judgment,

"The Convention, which was signed in the Hague on 25th October 1980, is designed to counter the growing problem of the civil abduction of children across international borders. Although neither the Preamble nor Article 1 of the Convention have been enacted into Hong Kong law, they may nevertheless be considered in understanding the objects of the Convention. The Preamble states the objects succinctly; namely, 'to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence'. The essential mischief which the Convention is designed to counter is the removal - either by abduction or wrongful retention - of a child from its natural environment, that is, its country of habitual residence. The means by which the Convention counters such mischief is by an early restoration of the status quo which is achieved by ensuring the prompt return of the child to the country of its habitual residence. If this were not done, it would allow the party who has abducted the child to a country of refuge or wrongfully retained the child in that country to seek the assistance of the courts there and by that means create a jurisdiction which is more or less artificial."

18. In the context of the present case, the following articles in the Convention are relevant.

Article 3 defines wrongful removal and retention,

"The removal or the retention of a child is to be considered wrongful where -

(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

The meaning of "rights of custody" under the Convention can be found in Article 5,

"For the purposes of this Convention -

(a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence."

The obligation of a requested state to return a child is set out in Article 12 and it is mandatory if the conditions set out in the Convention are satisfied.

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."

In dealing with an application under the Convention, the court should not look into the merits of the custody claim nor undertake its own investigation as to what is in the best interest of the child (see McCall and McCall (1995) FLC 92-551, a decision of the Full Court of the Family Court in Australia). This is obvious from Article 16 and 19. Article 16 reads,

"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."

Article 19 reads,

"A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."

The only instances where the court can refuse to order the return of a child even if the conditions in Article 12 are satisfied are those provided for in Article 13.

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."

Access is dealt with separately under Chapter IV. Article 21 provides,

"An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child.

The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject."

It has been held in England that this article do not confer any jurisdiction on the court to determine matters relating to contact or to recognise and enforce foreign access orders. The role of the Central Authority is limited to executive co-operation and to make arrangement for legal services (see Re G [1993] Fam 216; Re T [1993] 2 FLR 617).

19. The distinction between rights of access and rights of custody is important in the context of the present case. Such distinction has been recognised in the Convention regime and the case law developed thereunder. A E Anton, the Chairman of the Special Commission formed under the aegis of the Hague Conference responsible for drafting the Convention, clearly identified the distinction in his article, "The Hague Convention on International Child Abduction", (1981) 30 ICLQ 537 at p.546 and 554-5,

"It is clear also from the definitions of custody and access in Article 5 that the removal or retention of a child in breach merely of access rights would not be a wrongful removal or retention in the sense of Article 3 ..."

"The Convention contains no mandatory provisions for the support of access rights comparable with those of its provisions which protect breaches of rights of custody. This applies even in the extreme case where a child is taken to another country by the parent with custody rights and is so taken deliberately with a view to render the further enjoyment of access rights impossible."

He explained the rationale for the difference at p.555,

"It was felt not only that mandatory rules in the fluid field of access rights would be difficult to devise but, perhaps more importantly, that the effective exercise of access rights depends in the long run more upon the goodwill, or at least the restraint, of the parties than upon the existence of formal rules."

John M. Eekelaar in another article, "International Child Abduction by Parents" (1982) 32 UTLJ 281 at p.315 further explained about the need for the distinction,

"The reason for this is that disputes about access are notoriously difficult to unravel (it might be alleged that the absent parent was visiting very infrequently, or that the children disliked the visits), and to order the return of the children when such matters may well be in dispute is to provide too drastic a remedy."

20. In S v. H. [1998] Fam 49, Hale J. said at p.56B to C,

"Yet it is also clear from the preamble and from the provisions of the Hague Convention itself that the contracting states deliberately intended to draw a distinction between rights of custody and rights of access. The stereotypical picture of a child abduction is the non-custodial parent kidnapping the child from the custodial parent or one of two cohabiting parents disappearing with the child. It must be questioned whether the contracting states intended the remedy of summary return to apply to a single parent who has brought the child up alone virtually since birth, who has twice been granted sole custody by the courts in their own country, and who was not prohibited from removing the child at the time when she did so."

At p.57C to E, Her Ladyship referred to the Explanatory Report to the Convention,

"The Explanatory Report to the Convention by Elisa Perez-Vera (see Hague Conference on private international law, Actes et documents de la Quatorzieme session 6 au 25 octobre 1980, vol. 3 (Child Abduction), pp. 444-445) makes essentially the same point:

"Although the problems which can arise from a breach of access rights, especially where the child is taken abroad by its custodian, were raised during the Fourteenth Session, the majority view was that such situations could not be put in the same category as the wrongful removals which it is sought to prevent. . . . A questionable result would have been attained had the application of the Convention, by granting the same degree of protection to custody and access rights, led ultimately to the substitution of the holders of one type of right by those who held the other."

In that case, the Italian court granted the mother custody, giving the father the right to watch over the child's education and living conditions and a right to access twice a week and in the holidays. Hale J. identified the father's rights at p.53B as follows,

"However, he clearly does have two rights: first, the right to watch over the child's education, instruction and living conditions; and, secondly, the right to access, as defined in the order made in April 1996 and reaffirmed in the later orders and declaration. That order, providing as it does for access twice a week, is clearly only compatible with father and child living reasonably close to one another."

At p.54G, Hale J. further referred to the fact that the father could have applied to the Italian court for a prohibition against removal of the child (a prohibition had in fact been granted which was only revoked later because there was no reason to think the mother would leave Italy). Despite these Hale J. held that the father's rights were primarily rights of access and he did not have any rights of custody in the context of the Convention and the removal of the child without the consent of the father was not a wrongful removal under Article 3.

21. The issue has also been considered by the Supreme Court of Canada. In Thomson v. Thomson (1994) 119 DLR (4th) 253, La Forest J. who delivered the leading judgment said at p.274,

"It is clear from the wording of the preamble and art. 3 of the Convention, cited supra, and from the travaux preparatoires that the primary object of the Convention is the enforcement of custody rights. Article 3 provides that the removal or retention of a child is to be considered wrongful where "it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention". Such rights of custody are given effect through proceedings for the return of the child under art. 12.

By contrast, the Convention leaves the enforcement of access rights to the administrative channels of Central Authorities designated by the state parties to the Convention. The duties of these central authorities, set forth in art. 21, are, unlike situations involving custody rights, not to return the child forthwith, but rather to cooperate "to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject", including the initiation of or assistance "in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject."

Reference was made to the preparatory work to the Convention including the Dyer Report in which five types of situations considered to be child abduction were described (see p.274-5). La Forest J. observed at p.275f,

"It by no means follows, however, that the Convention applies to every case where a child is removed from one country to another where a court order prohibits it. From the emphasis placed in the Convention and the preparatory work on the enforcement of custody, as distinguished from mere access, the proper view would appear to be that the mandatory return dictated by the Convention is limited to cases where the removal is in violation of the custody rights of a person, institution or other body."

Further, at p.281g,

"The right of access is, of course, important but, as we have seen, it was not intended to be given the same level of protection by the Convention as custody. The return of a child in the care of a person having permanent custody will ordinarily be far more disruptive to the child since the child may be removed from its habitual place of residence long after the custody order was made. The situation also has serious implications for the mobility rights of the custodian."

22. The same point was made again in Canada in a subsequent Supreme Court decision in D.S. v. V.W. (1996) 134 DLR (4th) 481. At p.501c, L'Heureux-Dubé J. said,

"In summary, the application of the Act is triggered under s. 3 where a child is removed or retained in breach of rights of custody within the meaning of the Act, as opposed to rights of access only. Although it is true that an interim custody order combined with an order restricting the removal of a child might temporarily deprive the person awarded custody of the right to determine the child's place of residence by making any removal of the child wrongful within the meaning of s. 3 of the Act, aside from this exception, the large and liberal interpretation to be given to the concept of custody under the Act is not affected."

That should be read together with what was said at p.499c to e,

"In my view, the possibility of severing the right to determine the child's place of residence from rights of custody must be considered in light of the fundamental purpose of the Act: to prevent any person, including the non-custodial parent, regardless of whether he or she has rights of access, from removing or retaining a child, custody of whom has been awarded to one parent, to or in a place other than the child's habitual residence. From this perspective, the Act clearly suggests a large and liberal interpretation of the custody concept. More specifically, rights of custody within the meaning of the Act cannot be interpreted in a way that systematically prevents the custodial parent from exercising all the attributes of custody, in particular that of choosing the child's place of residence, but, on the contrary, must be interpreted in a way that protects their exercise."

In other words, we have to be vigilant in guarding against elevating a right of access to an extent that it would deprive the person with custody the right to determine the child's place of residence.

23. In Re W; ReB [1998] 2 FLR 146, Hale J. examined the policy of the Convention and reminded us at p.157C that not every child who is removed from his country of habitual residence without the consent of both of his parents is to be summarily returned. Her Ladyship reiterated the distinction between rights of custody and rights of access. Then she dealt with the broader meaning of rights of custody to encompass the situation where the non-custodial parent may secure a return of the child where there has not been a determination by a court of where the child is to live or where that parent has a right to veto the child's removal to another country. But that was where she drew the line. At p.158, reference was made to the report of Professor Perez-Vera,

"However, where no rights exist ex lege or where they have already been determined, the distinction between rights of custody and rights of access was undoubtedly intended to have meaning. Professor Perez-Vera in the Explanatory Report to the Convention, at pp. 444-445, para. 65, explains it thus:

'Although the problems which can arise from a breach of access rights, especially where the child is taken abroad by its custodian, were raised during the Fourteenth Session, the majority view was that such situations could not be put in the same category as the wrongful removals which it is sought to prevent. This example, and others like it where breach of access rights profoundly upsets the equilibrium established by a judicial or administrative decision, certainly demonstrates that decisions concerning the custody of children should always be open to review. This problem however defied all efforts of the Hague Conference to co-ordinate views thereon. A questionable result would have been attained had the application of the Convention, by granting the same degree of protection to custody and access rights, led ultimately to the substitution of the holders of one type of right by those who held the other.' (Emphasis added by Hale J.)"

Hale J. cautioned against extending the protection beyond that line at p.158F toG,

"There appears to be a consensus among most contracting states which would stretch "rights of custody" to include a right to veto leaving the country but there is no evidence before me of a consensus taking it further than that. To do so would, as was pointed out in the two Canadian cases referred to earlier, entail serious inroads into those rights of custody which it was the principal object of the Hague Convention to protect. It could lead to considerable confusion and uncertainty, for example if a person claiming such wider rights were tempted to snatch a child back, even though the person who had taken the child away was perfectly entitled to do so."

The approach of Hale J. has since been endorsed by the English Court of Appeal in Re V-B [1999] 2 FLR 192 at p.198E.

The rights of the father granted by the French court

24. It is therefore important to identify the rights of the father before it can be determined whether there has been any breach of rights of custody attributable to him. In this connection, I respectfully follow the approach of Hale J. in S. v. H. [1998] Fam 49 at p.51H,

"The question, therefore, is whether the father has "rights of custody " within the meaning of the Hague Convention of 1980. This is in fact a two- part question: first, what rights does the father have under Italian law and, second, do those rights amount to rights of custody under the Hague Convention?"

Of course, I understand that counsel for the father also relied upon the rights of custody of the French court, which I will deal with in the next section.

25. The Claim of the father in France was filed on 27th January 2000. It referred to the fear of the father that the mother was planning to leave France with the child since she was almost without resource in France. His complaint was that the mother did not let him see the child since 24th December 1999. He asked for declaration as to parental right pursuant to Article 372, Para.2 of the Civil Code or alternatively pursuant to Article 374. He further asked for right of access and right to accommodate.

26. As mentioned, the mother left France in February 2000. In the submissions (called "Conclusions" in the French proceedings) filed on her behalf for the intended hearing of 9th March 2000, she put forward her address in Los Angeles as her residence. One of her main argument was that she did not live France and her habitual residence was in Los Angeles although she travelled a lot. She explained that she was only allowed by IP to stay at her house as a friend when she was in France. She also indicated that it would be difficult to implement classical right to visit and accommodation as the child lived in the United States whilst the father lived in France.

27. The father envisaged the exercise of his rights of access in foreign country in his Conclusions filed with the French court. At C133 of the court bundle, he said,

"[The father] wishes to exercise his right of access and right to accommodate related to the child ...during his stay in France and during his stay in any foreign country, in particular, the United States."

This was repeated in the relief he sought from the French court at C134.

28. In the further submissions filed on behalf of the mother, she reiterated she travelled a lot and her usual residence was in Los Angeles (at C44). It was therefore quite obvious that the French court was fully aware of the fact that mother would not be living in France when it made the order on 9th May 2000 that the child's usual residence be with the mother.

29. At the hearing before the French court on 20th April 2000, the father "adjusted" his claim by asking for visitation and accommodation right according to the residence of the mother and child in the United States and professional obligations of both parents. This is important because the French court was therefore never asked to make any order to direct the mother to bring the child back to France. The mother and the child were in Los Angeles at that time. In the judgment of the French court, it was acknowledged that the mother did not have a permanent residence in France. It further acknowledged that the parents travelled a lot throughout the world and were unsettled in their lifestyle. However, the court rejected the mother's plea of lack of jurisdiction on the basis that the child was French by birth. The court found it unnecessary to decide whether the mother was residing in France at the time when the proceedings were served. The court also made no finding as to cohabitation between the parents but granted a declaration of joint parental rights. By reason of the lack of finding of cohabitation, such declaration could only be granted pursuant to Article 374 of the Civil Code, subsection 3 of which reads,

"in all cases, the judge in charge can upon the request of the father, the mother or the public prosecutor's office, modify conditions of exercise of the parental authority towards a natural child. He can decide that it shall be exercised either by one of the parents, or jointly by the father and the mother; he designates in this case the parent with whom the child shall have his habitual residence."

30. The judgment recited the fact that the fixing of the usual residence of the child with his mother was not questioned by the father. Again it showed that the court had not been asked to consider restoring the child back into France. It has never been a live issue in the French proceedings. It was accepted all along by the father that the child could stay with the mother outside France. The court also appreciated this because in the judgment, Senior Judge Lassner said (at C61),

"[The mother] who has obviously a way of life which leads her frequently to change her place of residence, must notify [the father], every month, of the addresses where [his] visitation right can be exercised. In order to ensure the possibility of exercising such visitation right, it is proper to fix an enforcement fine for such obligation, the taxation of which shall be within the competence of the judge in charge of family causes."

31. In respect of parental rights, the judge said the following (C60),

"...as the child concerned in this case is a very young child who shall have to construct his life compromising with the separation of his parents, it is necessary for his balance that his two parents should be led to discuss together the great options in which he is concerned, and that both should be associated by equal shares with his development."

32. In respect of access, the judge granted a simple visitation right twice a week which may be exercised "in the town where the mother resides", viz. wherever the mother was. That was an interim order because the judge said (at C61) that for modification of the right of visitation (viz. to extend it to accommodation rights, equivalent to what we know in Hong Kong as staying access), there had to be medical and psychological examination. The judge observed in this connection,

"the mother being able to take advantage of her professional travels to come to France in order to meet the appointed expert with the child." (My emphasis)

Hence, the judge was well aware of the fact that the mother and the child were living outside France and did not consider it necessary for the exercise of the court's jurisdiction to restore the child to France. This again showed that the imposition of any restraint against the removal of the child away from France was not on the agenda before the court.

33. I have already mentioned that the mother lodged an appeal. In her submission filed on 15th December 2000, she offered access to the father in Hong Kong. In January 2001, another hearing was scheduled for review of the access right of the father in the light of the result of the medical psychological examination. In the submissions filed on behalf of the father, the taking up of residence in Hong Kong by the mother and child was mentioned. The father complaint about not being informed as to the address of the mother and the latter's obstruction to his exercise of right of access. Regarding the right of access, the father took into account of the mother's lack of permanent residence and frequent overseas travels and asked for right to accommodate in accordance with the French school holidays "as long as the child is not sent to school abroad". The right of access and right accommodate was to be exercised "whatever the child's place of residence" (see C120 and C121). The father also asked for a fine being imposed on the mother due to her failure to inform him of the address where right of access was to be exercised (see C121). Hence, it is a fine for failure to inform which was ancillary to the right of access rather than a fine for removing the child away from France. No application was made by the father for any order to restore the child back into France.

34. In the judgment of the French court for the second order dated 27th March 2001, Family Judge Nadal referred to the travels of the mother to Los Angeles, Hong Kong and Deauville and granted housing right to the father in accordance with his request. It means that the right is to be exercised wherever the child resides. The judge also confirmed that the child's usual residence would be at his mother's house. As mentioned, it was clear to every party at that time that the mother and child had settled in Hong Kong. By implication, the French court and the father agreed to such arrangement. A fine was imposed against the mother for the breach of her obligation to inform the father as to her residence.

35. Counsel for the mother submitted that the rights of the father under these French orders were mere rights of access. It is said that the father did not ask for custody in the French proceedings. Counsel further said that the father and his legal advisers had all along understood that the father only had rights of access and had no right to prevent the mother from living with the child outside France. He referred to paragraphs 25 to 27 of the First Affidavit of the father filed in the present proceedings. The father said in those paragraphs that he had been advised by his French lawyer that he only had access but did not have custody in respect of the child. The father said he was not advised about the Hague Convention. However, whether he had custody under French law should be within the competence of the French lawyer, who as far as I am aware is still acting for the father in the French proceedings. Further, in the letters written by the father's lawyers in December 2000, complaints was made about lack of information as to where the mother and the child were instead of the removal of the child away from France. Counsel also submitted that the French court did contemplate that the mother and the child would be living outside France and no restriction has been imposed against the mother in that respect.

36. On the other hand, counsel for the father submitted that the rights of the father are not confined to rights of access. She said although the mother has the right of usual residence regarding the child, this is not sole custody. She emphasized on the joint parental rights declared by the French court. Initially, she argued that it was implicit in the French orders that the child could not be removed from France since that would be inconsistent with the father's rights of access. She had to backtrack from that submission in her final submissions. In the light of the circumstances under which the French orders were made, she had to concede that it had been contemplated that the mother could take the child out of France. However, she submitted that although the father agreed that the mother could travel abroad with the child (as he recognised her need to travel for business purposes), the mother could not change her residence to country abroad.

37. I was referred to the judgment of Lord Donaldson MR in Re C [1989] 1 FLR 403 at 413,

" 'Custody', as a matter of non-technical English, means "Safe keeping, protection; charge, care, guardianship" (I take that from the Shorter Oxford English Dictionary); but "rights of custody" as defined in the convention includes a much more precise meaning, which will, I apprehend, usually be decisive of most applications under the convention. This is "the right to determine the child's place of residence". This right may be in the court, the mother, the father, some caretaking institution, such as a local authority, or it may, as in this case, be a divided right, in so far as the child is to reside in Australia, the right being that of the mother but, in so far as any question arises as to the child residing outside Australia, it being a joint right subject always, of course, to the overriding rights of the court. If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the convention. I add for completeness that a "right to determine the child's place of residence" (using the phrase in the convention) may be specific, the right to decide that it shall live at a particular address, or it may be general, e.g. 'within the Commonwealth of Australia'."

Putting aside the divergence of opinions between the English authorities and the Canadian, Irish and United States authorities as to the effect of a non-removal order (which I do not find necessary to resolve in the present application), I do not think that dicta assisted the father. In that case, although the wife was granted custody, there was an order which provided that neither the husband nor the wife were to remove the child from Australia without the consent of the other. In the present case, there is no such provision in the French orders. I am invited by counsel for the father to hold that similar effects could be implied. I find it very difficult to come to such conclusion in view of the background leading to the making of the orders. Both the parties and the French court were aware that the mother and the child were not in France when the orders were made and there was nothing to suggest that the mother would come back to France for her residence. Access were expressly ordered to be exercised at the mother's residence. Counsel for the father accepted that if the father had a right to prevent the child from being removed from France, he could have asked for an injunction to prevent the mother from doing so, especially at the time when the mother came back to France with the child in February 2001 (and that was after he had protested in December 2000 about his lack of information about the child). Yet he did not do so. If he really had a right under the French orders to prevent the mother to remove the child from France, I could not understand why no step was taken by him to enforce such a right at that stage. Nor did he ask for any order for the child to be returned at the hearing which culminated in the second order.

38. Counsel for the father relied on the joint parental rights. Three opinions on French law has been filed, two by the father and one by the mother. However, I find them not particularly helpful on the legal effect of a declaration of joint parental rights under French law. The opinion of Mr Marie Pierre Certin-Teitgen (expert for the father) dated 27th September 2001 said that the French order of 9th May 2000 was made in conformity with the French law which he identified as article 374 of the Civil Code. He did not elaborate on whether such joint parental right gave the father any right to object to the child from being removed from France. Indeed, the other parts of his opinion suggested the contrary because he based his conclusion that the removal was wrongful on the breach of the father's right of access instead of the joint parental right. As to his opinion on right of access, he did not appear to have considered the background leading to the making of the orders. He also referred to the fine imposed in the second order (as did counsel for the father). However, as I have already demonstrated, the fine was imposed for the mother's failure to inform the father of her residence instead of the removal of the child from France. I do not accept that one could conclude from the imposition of such a fine that the French orders did implicitly prohibit the mother from taking the child away from France.

39. The opinion of Mr Alain Cornec (expert for the mother) dated 12th September 2001 did not deal with the question of joint parental right. The opinion of Colette Auger (who acted for the father in the French proceedings) dated 27th August 2001 did explain the concept of parental authority in French law. Since she acted for the father, she could not be regarded as an independent expert. However, I still have to consider her opinion as hers was the only opinion before me dealing with this topic at length subject to my later assessment of weight to be given to some of her conclusions. She said parental authority consisted of three aspects,

(a) custody of the child which she explained to be the right to retain the child at one's home. She further said that the habitual residence is the place where concretely the life of the child attaches to, the place which he will not be able to leave without authorization; by indicating the habitual residence, the judge shall designate which of the parents shall, in fact, makes decisions on a daily basis. In this connection, I take it that she was referring to the provision for usual residence in the French orders. I was told that the original wordings in French in the orders were the equivalent of "habitual residence" although the translation came out to be usual residence. This is confirmed in her interpretation of the French order of 27th March 2001 at A72 of the bundle;

(b) supervision of the child which she described as the orientation of the person of the child, the right to supervise his correspondence and his relationships;

(c) education of the child which encompasses the choice and orientation of religious education, the choice of school establishment, studies etc.

40. It follows from what she said so far that in effect, the court granted the custody of the child to the mother by designating that his usual or habitual residence would be with his mother. She did not say in her opinion that by a declaration of joint parental rights, the father retained any right in terms of custody notwithstanding such designation in the orders. In fact, under Article 374 sub-section 3 of the Civil Code, when a judge made a declaration of parental authority thereunder, he has to designate the parent with whom the child shall have his habitual residence. In other words, the judge has to grant custody (which, according to Colette Auger's opinion, is in substance designation of habitual residence of the child) to one parent when making a declaration. In the light of that, the grant of parental authority jointly to both parents did not mean that both of them have custody under French law. Custody is with the parent with whom the child is to be habitually resided as designated by the court.

41. Although Coletter Auger did say in her opinion, in the context of the Hague Convention, that certain consequence would follow from a situation of joint custody, she did not say that in the present case the father and the mother had joint custody. Indeed, that would be against what she had said in the previous sections in her opinion.

42. In the circumstances, on the material before me, I hold that the French orders did not impose any restriction, whether express or implied, against the mother for taking the child away from France and custody (or habitual residence of the child) was granted to the mother. It does not necessarily mean that the father does not have any rights of custody within the meaning of the Hague Convention. In Re W; Re B [1998] 2 FLR 146 at p.151H to 152C, Hale J. observed as follows,

"However, that is not the end of the matter. According to the conclusion of the Report of the Second Special Commission meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction 1980, 18-21 January 1993, at p. 16:

"The key concepts which determine the scope of the Convention are not dependent for their meaning on any single legal system. Thus the expression 'rights of custody,' for example, does not coincide with any particular concept of custody in domestic law, but draws its meaning from the definitions, structure and purposes of the Convention."

This same principle was expressed by Lord Donaldson of Lymington M.R. in C. v. C. (Abduction: Rights of Custody) [1989] 1 W.L.R. 654, 663:

"We are necessarily concerned with Australian law because we are bidden by article 3 to decide whether the removal of the child was in breach of 'rights of custody' attributed to the father either jointly or alone under the law, but it matters not in the least how those rights are described in Australian law. What matters is whether those rights fall within the Convention definition of 'rights of custody.' Equally, it matters not in the least whether those rights would be regarded as rights of custody under English law, if they fall within the definition."

Similar observations are made in other cases, perhaps most notably in the present context In re F. (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam. 224."

43. I therefore have to ask myself whether the father has any rights of custody within the meaning of the Convention. I have to answer that on the basis that the father was granted rights of access and joint parental authority but without custody. Rights of access by itself could not be rights of custody as I have tried to highlight in discussing the distinction between the two concepts in the Convention. How about the joint parental rights? According to the opinion of Colette Auger, the father would have joint rights in respect of the education and supervision of the child (custody having been granted to the mother). Would those be sufficient to elevate his rights to rights of custody?

44. In my judgment, the answer is "No". According to the definition of rights of custody in Article 5, an essential element is the right to determine the child's place of residence. On my construction of the French orders, the father does not have such right. Whilst there are English cases which held that a non-removal clause in a court order would suffice (e.g. Re C [1989] 1FLR 403 contra. Re V-B [1999] 2 FLR 192 per Ward LJ at p.202-203), they do not assist the father in the present case because I have found that the French orders did not impose any travel restriction on the mother. Ultimately, the matter has to be determined by reference to the distinction between the rights of access and rights of custody. In S. v H. [1998] Fam 49, Hale J. held that the father did not have rights of custody although he had rights of access and the right to watch over the child's education, instruction and living conditions. These are similar to the various aspects of the parental authority shared between the father and the mother in the present case. Whilst the French orders also directed that the mother should inform the father of her residence, this does not amount to a rights of custody in the Convention sense. The case of Re V-B [1999] 2 FLR 192 concerns a Dutch father who was granted access with undertaking from the mother to inform him of any matters of importance relating to the children including specifically a decision to reside abroad. The mother took the children to Wales without obtaining the father's consent and the father sought their return to the Netherlands under the Hague Convention. The Court of Appeal upheld the decision of Sumner J. in refusing to grant the relief sought. The court held that a right to be consulted is not a right of veto. It did not amount to a right relating to the care of the person of the child nor a right to determine the children's place of residence. At p.204 E, Ward LJ said,

"The attempt to elevate a right to consultation to a right of custody is to eradicate the crucial distinction between custody and access."

The same can be said in respect of the father's application in the present case.

45. Counsel for the father also relied on the case of Bordera v. Bordera (1995) SLT 1176. However, the court in that case was dealing with the rights of the parents under an agreement. The court held that there was implied agreement (derived from the provisions in the agreement) that the child's residence should not be changed from Ibiza without the father's agreement. That amounted to rights of custody. For the reasons already given by me, there could not be any implied restriction in the French orders to prohibit the mother from taking the child out of France. The case therefore could not help the father.

46. My conclusion is therefore that the father does not have any rights of custody within the meaning of the Convention.

Right of custody in the French court?

47. That is not the end of the matter because even if the father does not have any right of custody, he could still seek a return on the basis of the right of custody of the French court, if the latter has such right at the time of the removal (see Re H [2000] 2 AC 291; Re W; Re B [1998] 2 FLR 146; Thomson v. Thomson (1994) 119 DLR (4th) 253; B v. B [1993] Fam 32). Counsel for the father submitted that since there was an appeal by the mother against the French orders, the matter regarding the child has not been finally resolved by the French courts and therefore the court there still has rights of custody. In so doing, she equated an order under appeal with an interim order. That is wrong. Moreover, the mother's appeal would not enable the father to reopen the issue of usual or habitual residence of the child since it has been conceded in the French court that the child should have his usual residence with the mother. In D.S. v. V.W. (1996) 134 DLR (4th) 481 L'Heureux-Dubé J. said p.503e to g,

"It could, of course, be argued that an award of custody rights is never permanent because of the changeability over time of each of the circumstances relating to the child that may affect his or her best interests. Thus, the removal of a child from one country to another is undoubtedly a significant change in that child's situation and may justify an application for a review of the award in certain circumstances. However, this does not mean that the courts in the child's original jurisdiction automatically have rights of custody within the meaning of the Act following that removal. Accepting such a submission would amount to saying that all custody is unsettled and that every time a custodial parent removes a child there might be a wrongful removal within the meaning of the Act. In my view, that is not the purpose of the Act ..."

Hence, the fact that the father might reconsider his concession in the French proceedings does not automatically give rise to right of custody in the French court. (see also Hale J. in S. v. H. [1998] Fam 49 at p.54H to 55B).

48. In Re H [2000] 2 AC 291, Lord Mackay said at p.304 in respect of a court's right of custody,

"There are two aspects to this matter. First of all the application to the court must raise matters of custody within the meaning of the Convention and that will require in every case a consideration of the terms of the application. Secondly, a question arises as to the time at which the court acquires such right. It is clear that the interpretation which has been accepted of the Convention which allows the possibility of a court having rights of custody does not contemplate that happening unless there is an application to the court in a particular case raising the issue of the custody of one or more children."

49. Adopting that approach, I have to ask whether the issue of custody was raised in the French proceedings. From my analysis above, it can be seen that all along, the father only sought rights of access and joint parental rights. When he conceded usual residence to the mother, it is equivalent to a concession of custody to the mother. Hence, at the latest by the time of the hearing on 20th April 2000, custody was no longer an issue. When the order was made on 9th May 2000, by granting usual residence to the mother without imposing any restriction on her against the removal of the child from France, the French court effectively disposed of whatever custody rights the French court might have over the child. Although it is submitted that the order of 9th May 2000 was only an interim one, my view is that it is interim only in terms of the question of access. As far as custody, since there was no dispute, it was a final order. My view is reinforced by the fact that in the second order made on 27th March 2001, the French court only reminded that the child's usual residence was at his mother's house.

50. Hence, it is clear that even if there is an appeal pending, it is settled in the French proceedings that the child's usual residence would be with his mother. I therefore hold that the French court did not have rights of custody in respect of the child when the mother took him away from France in September 2000 and subsequently in March 2001.

Wrongful retention

51. Apart from the two removals of the child, the father also relied on wrongful retention. The first act of wrongful retention was said to occur when the father through his French lawyer sent a letter dated 5th December 2000 to the mother's lawyer asking for the whereabout of the child. That letter only asked for information and demanded to be allowed to exercise the father's right of access. I fail to see how it could be an act of wrongful retention by the mother. Obstruction of access by itself is not a wrongful retention. Insofar as it is argued that the letter made clear to the mother that the father did not consent to the child being brought to Hong Kong, that would be relevant if the father has a right to prevent the mother from doing so. However, as I have held, the father did not have such right under the French orders. Even considering that letter together with the letter of 18th December 2000 between the lawyers and the letter of 14th February 2001 written by the father to the mother (as requested by counsel for the father), my conclusion is still the same.

52. The second act of alleged wrongful retention was the failure of the mother to bring the child to Cannes in May 2001 and leaving him in Hong Kong. I again fail to see how it could be an act of wrongful retention. The fact that the father expected to see the child at Cannes and was frustrated in that respect is only relevant to the issue whether his right of access has been obstructed. It has nothing to do with his rights of custody. I should also mention that it was not suggested before me that the father had in fact requested the mother to bring the child to Cannes. All he said was that he expected this to happen.

53. As a matter of law, since neither the father nor the French court has rights of custody when the mother took the child away from France in September 2000 and thereafter, there cannot be any wrongful removal or retention as defined in Article 3 of the Convention. The requirement in Article 3(a) has not been satisfied.

Habitual residence

54. My decision on rights of custody is sufficient to dispose of the application. However, I would also say a few words with regard to habitual residence since the matter has also been argued extensively before me. The law in this regard has been carefully examined by Hartmann J in his judgments in N v. O, HCMP 4204 of 1998, 23.10.1998 and LM v. HTS, HCMP 1329 of 2001, 19.4.2001. This is a question of fact and in the present context, it is common ground that the habitual residence of the child was that of the mother, who being his primary care provider. I have to ask whether the mother had adopted voluntarily an intention to live in France for settled purposes for an appreciable period of time with a sufficient degree of continuity at the material time.

55. As the father put in Paragraph 36 in his First Affidavit filed herein, the mother led a peripatetic life-style. She did not speak much French and did not have right of permanent residence there. She only stayed in a friend's house when she was in France and she did not have any landed property there. She was not gainfully employed there although she had business dealings there. I have gone through the history of their relationship at some length in reciting background. It shows that their relationship had not been a stable one. For a long stretch of time during the pregnancy, they were not together. In April 1999, she declared that she was resident in Los Angeles when she recognised the child in Paris. This was a good indication of her intent at that time. I find as a fact that up to July 1999, she did not have any settled intention to live in France. I do not attach much significance to the opening of a bank account with BNP in the light of the explanation offered by the mother in her Second Affirmation.

56. After the birth of the child, whilst the parties were together for a longer period of time, their relationship was by no means steady. It is likely that the mother was considering whether the future of her and the child would be in France. Yet it is by no means clear that she had made up her mind on the matter. They went in and out of France and travelled frequently. Bearing in mind of the various unhappy instances I have referred to in Paragraphs 8 and 9 above, I find that on balance of probabilities the mother had not yet developed a settled intention to remain in France in January 2000 when proceedings were commenced by the father. Taking into account of the subsequent developments, it is impossible to say that the mother was habitually residing in France when she took the child away in September 2000. In the correspondence during the summer of 2000, she repeatedly said that she was about to go back to Los Angeles.

57. It is even more difficult to suggest that her place of habitual residence in March 2001 was France. However, counsel for the father submitted this to be the case on the basis of Re S [1998] 1 FLR 651. What happened in that case was similar to the present case in that there were two removals. The mother removed the child from Germany to England in May 1996. The child was returned to Germany for 3 days in September 1996 and was subsequently taken back again to England by the mother. Wall J. held that the father was entitled to rely on the second removal and rejected the argument of the mother that the first removal governed the case. In that case, the first removal was outside the one year limit whilst the second one was not. This was material because in the meantime, the child had settled in England and the special defence in Article 12 was available regarding the first removal but not the second one. It seems to be common ground in that case that notwithstanding the settlement of the child in England, her habitual residence remained in Germany. This must be right because there was no dispute that before the first removal the child's habitual residence was in Germany where both parents lived together since 1981 and the child was born in 1986. It followed from that the unilateral act of the mother taking the child to England could not have changed the habitual residence of the child (see the first proposition of Waite J in Re B [1993] 1 FLR 993 at p.995). What we have in the present case is different. The father did not live together with the child or the mother before the first removal in September 2000. Hence, the relevant intent was that of the mother as the primary care provider of the child. Further, as I have held, the place of habitual residence of the mother and thus the child was not France before the first removal. There is therefore no question of the mother unilaterally changing the habitual residence by leaving France in March 2001: it has never been France all along. I therefore hold that the case does not assist the father and in March 2001 when the child was in France for a short while before he was taken away, his habitual residence was not in France.

58. For the sake of completeness, I would just mention that it follows from what I have said that on the alleged dates of wrongful retention (viz. December 2000 and May 2001), it is my finding that the habitual residence of the child was not in France.

Acquiescence

59. Parties also advanced some arguments on the basis of acquiescence in the context of Article 13 although counsel for the mother did not address me on the topic at length. In view of what I have already said, it is unnecessary for me to dwell on that point. In the circumstances, I hope I could be forgiven for not burdening this already lengthy judgment with a discussion of the same.

Conclusions

60. For the reasons given, I dismiss the application. Counsel for the father said that this would be harsh on the father. He could not exercise his right of access in the frequency as ordered by the French court. He felt that the child was alienated from him due to the steps taken by the mother. I was told that the child cannot speak French and the father has to communicate with the child in English. I accept that it is important to the development of the child that he should maintain a healthy relationship with his father and every possible step should be taken to ensure proper access is given to the father. The mother should recognise that although she is the primary care provider, the father does have a role to play in the upbringing of the child. However, it does not follow that the solution is to send the child back to France. Since it is essentially an access case, the proper remedy for the father is to seek appropriate orders in the court in Hong Kong in that regard instead of resorting to the Hague Convention which in my view is not applicable on the facts of this case. The father undertakes before me that he would commence wardship proceedings in Hong Kong.

61. Lastly, I wish to express my gratitude to counsel for the parties in respect of the assistance they have given to me in the course of the hearing. Without their precise, succinct and well-presented submissions, I am sure that the hearing could not have been completed within the 3 days allocated to the case.