JEK v. LCYP

HCMP 468/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 468 OF 2015

______________________

______________________

______________________

________________

JUDGMENT

________________

Introduction

1.  The application before the court was for the return of two children to the jurisdiction of New Jersey, USA under the Child Abduction and Custody Ordinance Cap 512 and pursuant to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (“Convention”).  The application was made by the father of the children.

Background

2.  The mother of the two children was born and grew up in Hong Kong (“Mother”).  The father was born in Brooklyn and grew up mainly in the New Jersey area of the United States (“Father”).  The Father is now 43 years of age, and the Mother is 42.  They met in 1994 in Hong Kong and married in September 1997 in New Jersey.  After their marriage, the Mother relocated to New Jersey where the parties set up home.  The Mother acquired US citizenship in about February 2004.

3.  There are two children of the family, both boys, and they were born in New Jersey.  The elder one P is now 14 years old, and the younger one S is 10 (collectively “Children”).

4.  It was not disputed between the parties that the family continued to live in New Jersey until the Mother moved to Hong Kong with the Children on about 6 July 2013[1], agreed by the Father (“Move”).    What was disputed was whether the agreement for the Move was meant to be for a temporary period of 1-2 years or not.

5.  After the Move, the Mother entered into a lease and purchased a car in Hong Kong, and the Children were enrolled into a prestigious international school here.  In about December 2013, the Mother said she discovered that the Father was having an affair and on 17 April 2014, she issued divorce proceedings in the Family Court of Hong Kong, namely FCMC 4880 of 2014 (“FC Proceedings”).  This was followed by the Father issuing divorce proceedings in New Jersey on 30 May 2014. 

6.  On 9 June 2014, the Father issued a summons in the FC Proceedings for declarations that, among other things, the court in Hong Kong had no jurisdiction over the divorce and for all the proceedings issued by the Mother be set aside and/or stayed, or alternatively, the court should not exercise any jurisdiction and the FC Proceedings be stayed on ground of forum non conveniens.

7.  The Father’s above summons resulted in a judgement handed down on 16 January 2015 by Judge Melloy, who came to the conclusion that the court in Hong Kong had no jurisdiction over the Mother’s divorce proceedings because neither the Father nor the Mother was domiciled in Hong Kong at the date of the Mother’s divorce petition, nor did either of them have a substantial connection with Hong Kong at that time (“FC Judgment”)[2].  The divorce proceedings in the Family Court were then stayed.

8.  The Mother applied for leave to appeal to the Court of Appeal, but such application was dismissed by Judge Melloy on 23 March 2015[3].  The Mother then applied to Court of Appeal for leave and after the hearing, this court was informed that leave had been granted for the Mother to appeal against the FC Judgment.

9.  After the FC Judgment, on 28 January 2015, the Father’s New Jersey attorneys wrote to the Mother’s New Jersey attorneys  stating that it was agreed between the parties that the Children would remain in Hong Kong “on a limited, temporary basis not to exceed 1 to 2 years and that the 2 year term will expire at the conclusion of the Children’s school year ie in June 2015”, and seeking the Mother’s response as to whether she intended to honour the parties’ agreement to return the Children to New Jersey in June 2015[4].

10.  This led to the Mother issuing an originating summons in the Family Court on 4 February 2015 under the Guardianship and Minors Ordinance Cap 13 for joint custody, sole care and control of the Children and for the Children not to be removed from the jurisdiction of Hong Kong save with consent or leave of court (“GMO Application”).  The GMO Application was supported by the Mother’s affirmation dated 6 February 2015 (“GMO Affirmation”)[5].

11.  The Father relied on what was said by the Mother in her GMO Affirmation to be the Mother’s wrongful retention of the Children in Hong Kong.  The Father issued the originating summons herein on 26 February 2015 seeking an order that the Children be returned forthwith to New Jersey.

12.  It was the Father’s case that the Children had repeatedly expressed to him that they wanted to return to the United States, and upon his application, this court directed that a Social Investigation Report be prepared in relation to the views of the Children (“SIR”)[6].  The Children indicated their wish to remain in Hong Kong.  I will consider the views of the Children in detail later in this judgment.

The applicable provisions of the Convention in these proceedings

13.  Article 3 of the Convention states as follows:

“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.”

14.  Article 5 then states –

“  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.”

15.  Article 13 states that –

“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;

(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.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.”

Disputed Issues

16.  The disputed  issues  posed by Mr Pang, Senior Counsel appearing for the Mother, and agreed by Mr Coleman, Senior Counsel for the Father, were:

(i)  Were the Children habitually resident in USA within the meaning of the Hague Convention on 4 February 2015 when the Mother instigated the GMO Application?

(ii)  Did the Mother’s GMO Application constitute a wrongful retention of the Children with the meaning of the Hague Convention?

(iii)  Should the court refuse the order sought by the Father in view of the wishes of the Children not to move back to USA?

17.  At the hearing, Mr Coleman had clarified that what the Father relied on as being the act of retention by the Mother of the Children in Hong Kong was the Mother’s filing of her GMO Affirmation and what was stated therein and thus the date of the alleged date of retention should be 6 February 2015 and not 4 February 2015, which was the date of the filing of the GMO Application.

18.  One of the issues raised by Mr Pang on behalf of the Mother was whether the Father’s present application was “premature”, in that the 1-2 year period of stay in Hong Kong agreed by the Father had not yet expired when the Father took out the present application, and that his application was based on an “anticipatory” retention.

19.  The terms of “removal” or “retention” are not defined in the Convention.  It had, however, been said  by the US Court of Appeals for the First Circuit in Toren v Toren 191F 3^rd  23 (1999) (1^st Cir), that there must be an initial determination as to whether there had been a removal or retention before any inquiry could be made into whether such removal or retention was wrongful[7].  The US Court of Appeals was of the view that the lower court in that case had jumped the gun by addressing the issue of the children’s habitual residence prior to making the threshold determination as to whether there had been any retention of the children at all within the meaning of the Convention[8].

20.  In light of what was said above, and in view of the prematurity issue, I will first of all consider the terms of the agreement between the parties and whether father’s application was premature in that whether there had been an actual act retention of the Children by the Mother, and if there had, then I will come to the question of the Children’s habitual residence before the retention and whether the retention was wrongful.  Finally, I will consider the Children’s views.

The Agreement

Issue Estoppel

21.  As I have mentioned earlier, the Children moved to Hong Kong with the agreement of the Father and had resided in Hong Kong since July 2013.  What was disputed was the terms of the agreement between the parties at that time in relation to the Move (“Agreement”).

22.  The Father had relied on the doctrine of issue estoppel/res judicata, in that Judge Melloy had made findings of fact in his favour in the FC Judgment and that it was not open for the Mother to attempt to reopen those factual disputes. 

23.  The Father’s argument was mainly that Judge Melloy had already found that the Mother’s move to Hong Kong with the Children in July 2013 was meant to be a “temporary” move and thus the habitual residence of the Children had remained in New Jersey all along.

24.  There was no dispute by Mr Pang on the general principles of issue estoppel/res judicata.  It was, however, his submission that issue estoppel could not arise in the present case as the issues before Judge Melloy were very different issues in the present proceedings, in that they were in relation to whether Hong Kong had jurisdiction to entertain the Mother’s divorce proceedings, namely (a) whether the Mother was domiciled in Hong Kong at the time of the divorce petition in April 2014 and (b) whether the Mother had a substantial connection with Hong Kong at that time.

25.  It was also Mr Pang’s submission that there was no strict rule of issue estoppel in cases concerning children.  He had referred this court to Re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 in which Dame Butler-Sloss had referred to the Headnote in an earlier case In Re B (Minors) (Care Proceedings: Issue Estoppel) [1997] Fam 117.

26.  The earlier In Re B was in connection with care proceedings of two children whose father had a specific finding against him of sexual abuse relating to two different children in other care proceedings, one of whom was the father’s.  There was a preliminary issue as to whether the father was bound by the finding of sexual abuse made in those other proceedings relating to the other children.  As seen from the Headnote, it was held by Hale J, as she then was –

(i)  that there was no strict rule of issue estoppel binding on any of the parties in children’s cases, although the court had a discretion to decline to allow a full hearing of the evidence in relation to matters decided in previous proceedings;

(ii)  that where one party in a case concerning children wished to rely on, and another party to challenge, findings made in previous proceedings the court might wish to be made aware of those findings and of the evidence on which they were based before deciding whether to exercise its discretion to allow any issue of fact to be tried afresh;

(iii)  that, in exercising its discretion, the court would balance the  underlying considerations of public policy that there was a public interest in an end to litigation, that delay in determining the case was likely to be prejudicial to the interests of the child concerned, that the child’s welfare was unlikely to be served by reliance upon determinations of fact which turned out to have been erroneous, and that the court’s discretion must be applied so as to work justice;

(iv)  that the court would also consider the importance of previous findings in the context of the current proceedings and whether there was any reason to think that a rehearing of the issue would result in any substantially different finding, having regard to whether the previous findings had been the result of a full hearing and if so, whether there was any ground on which their accuracy could have been appealed at the time, and whether there was any new evidence or information casting doubt on their accuracy.

27.  Hale J had further elaborated on (iv) above in her judgment, pointing out the court would want to know (a) whether the previous findings were the result of a full hearing in which the person concerned took part and the evidence was tested in the usual way; (b) if so, whether there was any ground upon which the accuracy of the previous finding could have been attacked at the time, and why therefore there was no appeal at the time; and (c) whether there was any new evidence or information casting doubt upon the accuracy of the original findings.

28.  After considering the above, it was accordingly held by Hale J that the father would not necessarily be bound by the finding of sexual abuse made in the previous proceedings. 

29.  As seen from the judgment of Hale J, the father’s Queen’s Counsel had traced the history of issue estoppel in family cases in her submissions on behalf of the father, demonstrating that the courts had always been reluctant to apply it strictly, and that in divorce cases, it was held subject to the court’s overriding duty to inquire into the truth of the allegations made, and in ancillary matters, the courts became increasingly reluctant to be bound by the grounds for divorce which had been had established in the divorce suit.  In children’s cases, the court’s duty would be to give paramount consideration to the child’s welfare, it would be highly unlikely to let the findings in the divorce suit stand in the way of considering all the evidence relevant to that issues.

30.  Although in proceedings under the Convention, the courts are primarily concerned with carrying out the objects of the Convention, namely to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States, they are in my view proceedings relating to children as the Convention is there 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 Contracting State of their habitual residence, as well as to secure protection for rights of access.

31.  Having said this, although the facts in In Re B which involved public children care proceedings were quite different from the present proceedings, and the nature of those proceedings were different, in my view, what was said by Hale J therein on issue estoppel in children’s cases could also be applicable in Hague proceedings, in that generally there would be no strict rule of issue estoppel binding on any of the parties.  In any event, I am of the view that I am not bound by those findings in the FC Judgment, which is currently under appeal.  

The terms of the Agreement

32.  The Father’s case was that he agreed with the Mother that she and the Children would spend a year or two in Hong Kong so as to be able to experience a new place and culture and for the Mother to spend time with her then ill father.  It was never agreed that the Move would be permanent, nor that the Children would stay in Hong Kong for more than two years, nor that they would abandon New Jersey as their permanent home and habitual residence, that the parties had always agreed that their family home was and would continue to be in New Jersey and they would remain in New Jersey and the Children would finish their education there.

33.  The Mother said in 2011 her father was diagnosed with liver cancer in Hong Kong, and also in 2012, the company jointly owned by the Father and his father was about to be acquired by a Hong Kong listed company in the USA, which led her to believe that the Father would have to travel to Asia even more frequently for business and he would spend even less time with her and the Children in New Jersey.  In the same year, there were also several high-profile school shootings in the USA.  The Mother then said all these events were a wake-up call to her that she could not continue staying in the USA taking care of the Children alone whilst the Father was away on his travels.

34.  The Mother then said she was “determined” to return to Hong Kong with the Children, and eventually told the Father of her decision.

35.  She said at first the Father was against the idea but in the end, he understood her feeling and agreed with her suggestion to return to Hong Kong. The Mother denied that her return was intended to be a temporary one for 1-2 years only.  She had set out what she said was the Agreement, namely:

(1)  Although the initial idea was the Move would be for a trial period of 1-2 years, the understanding between the parties had always been that if all went reasonably well during the trial period, the Children would continue and complete at least their high school education in Hong Kong;

(2)  As the Move became more imminent, it became apparent to her (and the Father also eventually accepted that) there was really nothing for her to return to in New Jersey, and that she would stay in Hong Kong with the Children until they had at least finished high school and they might return to the USA afterwards;

(3)  As the Father and she agreed that the Children would complete their high school education in Hong Kong, they decided to enroll them in an international school with a US curriculum.

(emphasis added)

36.  In short, the Mother’s case was that although initially the idea was for the Move to be temporary, as the Move became imminent, the Father had agreed to the Children completing their high school education in Hong Kong and staying in Hong Kong until they had completed high school education.

37.  It was not quite clear what the Mother meant by “as the Move became imminent”, but presumably it was prior to the Move in July 2013.

38.  Also, what the Mother had said in her supporting affirmation for these proceedings was “As Plaintiff and I agreed that our children would complete their high school education in Hong Kong, we decided to enrol them in xxx School”[9].  What she thus seemed to be saying was that when she and the Father decided to enroll the Children in xxx School, they had already agreed that the Children would complete their high school education in Hong Kong.

39.  This was, however, not quite consistent with what the Mother herself then went on to say  in the same paragraph of the same affirmation that the application for the Children to be enrolled in that school was in fact made in around January 2013, 6 months prior to the Move. 

40.  The earliest email between the parties in which the Move was mentioned was dated 14 January 2013, about 6 months prior to the Move, from the Mother to the Father, headed subject matter “HK Apartment” (“14.01.13 Email”)[10]. In this email, the Mother began by saying “I want to thank you for being supportive.  In order to move to HK, even for temporarily is no easy decision for me and not to mention the amount of matters to be handled.”(emphasis added)  

41.  Thus, in January 2013, when the parents applied to enrol the Children in xxx School, even on the Mother’s own case, and as seen in the 14.01.13 Email, the Move was, using the Mother’s own words “for temporarily”.

42.  What the Mother herself had said in the opening paragraph of the 14.01.13 Email would be consistent with the Father’s version of the Agreement, that the Move was meant to be temporary, and indeed also with the Mother’s version, as the Mother had explained that the use of the word “temporarily” was not surprising, as the initial plan was the Move was for a trial period of 1-2 years[11].

43.  The Father responded to the Mother’s 14.01.13 Email on 15 January 2013 with a short reply and said simply he was tired and would reply to what the Mother had said the following day.  It was not clear whether he did reply by email, as none had been produced by the parties.

44.  From the evidence, it would appear that about two weeks later, on 29 January 2013, the Mother, with the consent of the Father, entered into a two year lease for an apartment in Tai Kok Tsui in Kowloon (“Imperial Cullinan Flat”), of which the rent was paid by the Father.

45.  The Mother had also produced a copy of the agreement which she had signed to buy a car in Hong Kong, which was dated 28 June 2013[12].  It was not quite clear when the Move actually took place.  The Mother had mentioned June 2013, but at the hearing the court was told that according to immigration records, the Move was on about 6 July 2013.

46.  Anyway, the next email produced by the Mother was one dated 6 August 2013 from the Father to the Mother (“06.08.13 Email”)[13]. This would be about a month after the Move.  The Mother had relied heavily on this email to support her version of the Agreement.

47.  In the 06.08.13 Email, the Father started off by saying that he was not happy and that many things were bothering him.  He then set out what was agreed by the parties, namely the Mother had told him they should try Hong Kong and he agreed and that they said to get a place for a year and then the Mother got a 1-2 year lease, and that was “ok” with him, and that they would give it a try and then see what to do.  The Father then said he really did not like the Children and the Mother away all the time, as he was missing everything in their lives.

48.  He then went on to refer to “past fri”, namely the Friday prior to 6 August 2013, when there seemed to be a communication between the parties.  The Father told the Mother he did not like the arrangement but could give it a try but after 1-2 years, he would like for all to move back to New Jersey but the Mother told him that there was nothing for her in New Jersey and that she would not live in New Jersey so long the Children would be in school.  What the Father then said in the email was what he was told by the Mother really hit him hard.  He went on to say that for him to accept this would mean that he would live alone for next 10 years and that was a problem for him.

49.  Although there seemed to be no further action taken by the Father, nor indeed the Mother, from my reading of the 06.08.13 Email,  I do not find what the Father had said in the 06.08.13 Email was indicative of any actual agreement on his part for the Children to complete their high school education in Hong Kong.  In fact, it seemed from this email that the Mother only told the Father that she would not be living in New Jersey and that Hong Kong would really be best for the Children for high school the Friday before 6 August 2013.

50.  Again, this would not support the Mother’s version of the Agreement, that the Father had agreed or accepted the Children completing their high school education in Hong Kong as the Move became imminent.

51.  The fact that neither party seemed to have taken any further action after the 06.08.13 Email would not in a way be surprising, since notwithstanding that the Mother had told the Father that she would not be living in New Jersey and the Father saying he was not happy about this and that this was a problem for him, the marriage had not in fact broken down at this point and the Father had thereafter been on trips to Hong Kong to be with his family and the family had gone on holiday together. In my view, the Father not taking any further immediate action after the 06.08.13 Email could not be taken as his  acceptance or agreement that the Children were to complete their high school education in Hong Kong.  In any event, the Mother was not relying on any “acquiescence” as a defence under Article 13(a) of the Convention.

52.  The Children then started at xxx School in August 2013.

53.  On 1 November 2013, the Mother bought an uncompleted property (“Park Metropolitan Property”) which was partly financed by a mortgage.  The Father said it was purchased in the Mother’s sole name without his consent and knowledge and he only knew about it when the Mother asked him to guarantee the mortgage.  The Father signed the personal guarantee provided by the Father.  There was no dispute that the Park Metropolitan Property was bought as an investment property.

54.  It was the Mother’s case that she noticed on 10 December 2013, on one of the Father’s trips to Hong Kong, he was not wearing his wedding band and she became suspicious and eventually at end of December 2013, during a family ski trip, she found out from emails on the Father’s mobile phone that he had been conducting an affair with another woman for some three years.  She said the parties had tried to reconcile, but such attempts failed.  The Mother then instituted the FC Proceedings based on the Father’s unreasonable behaviour on 17 April 2014. 

55.  At about end of May 2014, the Mother also looked for another residence, and eventually signed a lease of a property in an area on Hong Kong Island and near to the Children’s school, for two years commencing from 29 July 2014.  The Mother and the Children were thus only in the Imperial Cullinan Property for about one year.

56.  The Children did not go back to New Jersey in the summer of 2014.  The Father’s mother (“Grandmother”) had sent an email to the Mother on 23 September 2014[14].  In this email, Grandmother mentioned that the Mother had told her and the Children’s grandfather (collectively “Grandparents”) that the Move was temporary for 2 years, that the Mother had discussed with Grandparents the temporary trip for hours, and that the Mother had given them a list of all the Children’s official school dates when they would be seeing the Children in New Jersey. The Grandmother was clearly disappointed and upset at not seeing the Children in New Jersey over the summer.

57.  The Mother replied to Grandmother on 22 September 2014[15]. In effect, what she said was that the Father was in love with another woman and the family was not the same anymore.  The Mother then said “All the original plans were no longer valid, so it is completely useless to bring it up.” (emphasis added)

58.  After the FC Judgment, the Mother tried to explain in her affirmation in the present proceedings that before the Move, she had tried to appease the Grandmother by telling her that the Children and she would be back soon.  The Mother said the Father probably did not tell his mother that he had accepted that the Children would stay in Hong Kong until completion of high school.  The Mother then said when she referred to “original plans”, what she meant was that she would not want to return to the USA even after the Children’s completion of their high school education as the Father and she were divorcing[16].

59.  Although the Grandmother’s email was sent after the parties had started their respective divorce proceedings, and whatever the Mother may say now, at that time, in her reply to the Grandmother, the Mother did not deny what was said by the Grandmother about the Move being temporary.

60.  Further, at the hearing, upon my enquiry, the Mother confirmed that when the Children first arrived, they were initially only granted a dependent visa for one year, and it was only upon expiration of that year, upon application for renewal by the Mother in about July 2014 that the Children were granted a dependent visa for the duration of their respective passports.  By then, of course the Mother had issued the FC Proceedings.

61.  In the SIR, the social work officer (“SWO”) had set out the circumstances leading to the present proceedings, and had reported that the Mother planned moving to Hong Kong was with the agreement from the Father for a trial period of 1-2 years in June 2013, and the SWO went on to state: “(The Mother) shared that she has changed her mind in around August 2013.  She all along received limited physical assistance and emotional support from (the Father) in taking care of the children, hence her family, friends and domestic helper in Hong Kong offered a great helping hand to her.  In addition to protect the safety of the children, she preferred the children completing their high school in Hong Kong before returning to New Jersey if they wanted.  However, (the parties) could not come to an agreement. … [17]

62.  Thus, it seems clear that the Mother only changed her mind unilaterally only after the Move. Having considered the above, although I am not bound by the findings of Melloy J on the terms of the Agreement in the FC Judgment, looking at the matter afresh, and on the present evidence before this court, I have come to the same view, that the Move was originally agreed to be only a temporary move for 1-2 years and there was no sufficient evidence of the Father having agreed to or accepted the Children staying on after 2 years in Hong Kong and completing their high school education here.  In other words, the parties’ shared intent for the Move was only for a limited duration of 1-2 years, and there was no sufficient evidence of any shared intent for the Children to stay beyond 1-2 years or to complete their high school education in Hong Kong.

Prematurity / Any actual retention

63.  The next issue this court will need to consider was whether there had been any ‘actual retention’, or that the Father’s case was based only on ‘anticipatory retention’.   

64.  I have referred earlier to the US case of Toren v Toren.  In that case, Mr and Mrs T were married in Israel and two children were born and upon divorce they agreed to joint legal custody of the children and their initial agreement was that the children would continue to reside in Israel for the least two years after the divorce.  Later, their amended agreement provided that the children would live with their mother in Massachusetts for a period of years but not beyond July 21 2000, and that after that date, they would study in Israel during the 2000 – 2001 school years.

65.  In July 1996, Mrs T and children moved to Massachusetts and on 1 July 1997 prior to Mr T’s scheduled visit with the children, Mrs T filed a complaint in Massachusetts Probate and Family Court seeking to modify the terms of the divorce agreement in relation to the joint legal custody, which was later amended in October 1997.  Mr T subsequently in July 1998 filed for the immediate return of the children to Israel under the Convention, on the basis that the mere fact of Mrs T’s filing of a complaint for custody in Massachusetts amounted to a wrongful retention.  Mr T’s application was dismissed. 

66.  On appeal, US Court of Appeals for the First Circuit agreed that Mr T’s application should be dismissed but for reasons different from the lower court.  The Court of Appeals concluded that the Convention would only provide a cause of action for an applicant who could show actual retention of a child and that it was not enough to demonstrate an anticipatory retention, ie that at the end of an agreed period a child would be retained in breach of the Convention. 

67.  Mr Pang had also referred this court to a Scottish case Watson v Jamieson 1998 SLT 180 where Lord Prosser had held the making of an application by the mother for return of the children to New Zealand under the Convention, before the end of the two-year shuttle period  when the children was with the father in Scotland, was premature.

68.  In Watson v Jamieson, the parents had agreed to a shuttle arrangement whereby the two children were to take turns, to be with their mother in New Zealand for two years, and then with their father in Scotland for two years and so on.  The children went to Scotland in December 1994 for their two years with their father.  Certain steps were taken by the father, in particular he wrote to the mother a letter on 19 August 1996 in which the father indicated that he would not be sending the children to New Zealand at the end of 1996 and went on to explain his reasons.  It was not disputed by the father that the words he used contained no indication of a willingness to discuss matters, and represented a unilateral and apparently final determination not to fulful his obligation under the agreement.  

69.  It was argued by the mother that by the father repudiating her rights under the agreement, he had repudiated his own, and there was no continuing consent and the retention had become a wrongful breach of her rights.   The mother had relied on Re S [1994] 1 All ER 242[18].

70.  There was a submission that the facts in Re S could be distinguished, as the actual application for an order as in Re S was a public act, asserting a contrary right, whereas in the case before him, there had only been a statement of intention by the father.  Lord Prosser then went on to say even if the facts in Re S could not be distinguished, he would not follow it, in that the statement by the father might give rise to arguments about anticipatory breach, with a possible basis for treating the contract as having been repudiated, and thus giving the mother grounds for rescission, if she chose to exercise them.  Lord Prosser then pointed out it was not clear that the mother wished to bring the whole terms of the agreement to an end by rescission and she certainly had not yet done so, and thus the intention statement remained only an intention statement and that to say that one would act in breach of an agreement at a future date was not itself to commit that breach, or necessarily any breach[19].

71.  Mr Pang also referred to the New Zealand case Punter v Secretary for Justice [2004] 2 NZLR 28, a case also involving a shuttle arrangement.  Mr and Mrs P lived and married in Australia had shared custody of the children of the marriage after their separation.  They then agreed to Mrs P taking the children to New Zealand for two years, after which time they would return to Mr P in Australia for two years.  This shuttle custody arrangement was to continue until the children reached 18 years of age.  About 6 months after arriving in New Zealand, Mrs P applied for sole custody of the children seeking that the children did not have to return to Australia in two years’ time.  Mr P then issued return proceedings under the Convention.

72.  The Family Court of New Zealand held Mrs P’s act of filing her application for sole custody constituted an act of wrongful retention under the Convention.  She appealed to the High Court which agreed with the decision of the Family Court.  On appeal to the Court of Appeal, it was held by Blanchard J, among other things, and following Toren v Toren and Watson v Jamieson, that Mrs P’s application for custody, coupled with her statement, had not amounted to a retention of the children in breach of the Convention, and that actual retention, rather than anticipatory retention of the children, was required for retention under the Convention.   

73.  What Blanchard J  had said was[20]:

“All that occurred on 4 July 2002 was that Mrs P asked the New Zealand Court to assume jurisdiction and to make an order giving her custody, and she further indicated a wish that the children would not have to be returned to Australia in accordance with the agreement at the end of the two year period. Seemingly, however, Mrs P’s position in 2004 was to be dependent upon the making of an order for custody in her favour by the New Zealand Court. She did not evince an intention to retain the children in New Zealand even if refused a custody order. What she was doing was requesting the New Zealand Court to assume jurisdiction and make an order allowing her to retain them. That may have been in breach of the agreement, but until and unless either the Court did assume jurisdiction by making the order sought, ie an order extending beyond the two year period, or the two year period elapsed and the children were not returned, there would not be, in any ordinary sense, a retention of the children.”

74.  Glazebrook J agreed with Blanchard J.  On the other hand,   Gault P, dissenting, had  held [21] :

“On the assumption that the children’s habitual residence was Australia at the material time, I take the view that, in effect, to open the way for the New Zealand Family Court to consider the mother’s custody application, is to frustrate the operation of the Hague Convention.  By deciding that the Convention does not apply because there will be no “retention” of the children in New Zealand until the expiry of the period their father initially agreed they could stay in New Zealand, is to allow their mother to both rely on and repudiate the agreement.

The agreement was that the rights of custody were to be shared.  It was in exercise of that joint right and responsibility that the father amicably agreed that the children should be taken to New Zealand and continue to live there for two years, after which they were to return to Australia.  The application by the mother to the New Zealand Family Court for custody plainly repudiated the father’s agreed right of custody.  But relying on the father’s agreement in arguing that there will be no ‘retention’ until the two year period has expired is to rely on the exercise by him of his rights of custody for the very purpose of denying them.”

75.  In the Hong Kong Court of Appeal case  BLW v BWL [2007] 2 HKLRD 193, CACV 416/2006, Cheung JA, when considering the issue of wrongful retention,  had quoted the above passages of Blanchard J and Gault P in Punter, and Cheung JA hadstated that he preferred the analysis of Blanchard J[22].

76.  In BLW v BWL, the parents were married in the US and their twin children were born there.  The mother was born in Hong Kong and the father was born in the US and grew up there.  The family had always lived in the US, but in August 2005, the mother moved to Hong Kong to begin a two-year employment contract.  The parents agreed that the family would move to Hong Kong for two years with the father looking for suitable employment and the children joining the mother once she had settled in and found a suitable apartment and helper.  On 1 November 2005, the father brought the children to Hong Kong.  He stayed for only two short periods in November and December 2005.  In February 2006, he told the mother that he would not be looking for work in Hong Kong, and in May 2006, he told her he wanted a divorce.  The mother filed for divorce in Hong Kong in August 2006 and applied for custody of the children.  The father the applied under the Convention for the return of the children on the basis that they were habitually resident in the US but had been wrongfully retained in Hong Kong.

77.  The Judge at first instance found for the father.  The mother then appealed and the Court of Appeal allowed her appeal.  There were two issues, the children’s habitual residence and also whether there had been wrongful retention. Cheung JA held that the children’s habitual residence was in Hong Kong after they came to Hong Kong and not USA.  He also held that the father had failed to establish the children had been wrongfully retained in Hong Kong.

78.  Mr Coleman, had also appeared for the father in BLW v BWL and had argued in that case that it would be too late for the father if he had to wait for an actual custody order to be made before he began the application for the removal of the children.  However, Cheung JA had said as follow[23]:

“The answer to this argument is that the law requires a specific act for the purpose of wrongful detention and a wish to have the custody of the children even though it may be implemented by way of court proceedings cannot be such an act. At the end of the day the Court may not grant custody to the mother. Further the granting of a custody order to the mother may not necessarily mean that she would not return the children to USA”.

79.  Mr Coleman had relied heavily on the case of In Re S (Minors) (Abduction: Wrongful Retention) [1994] Fam 70.

80.  In Re S was a case where the parents were Israeli citizens living Israel and they had equal parental rights and responsibilities under Israeli law.  They then brought their two children to England intending to reside in the country for a year before returning to Israel.  The father returned to Israel and commenced proceedings for divorce.  The mother remained in England with the children and obtained ex parte interim prohibited steps and residence orders under the Children Act 1989.  The father then issued return proceedings under the Convention.

81.  Wall J, as he then was, allowed the father’s application and held that, among other things, the parents had agreed that the family would live in England for a year and the breakdown of their relationship did not entitle the father unilaterally to resile from the agreement that the children should remain in England for that period; but since the mother had announced an intention not to return at all, she could no longer rely on the father’s agreement to the limited period of removal as protecting her against an application under the Convention.

82.  Mr Coleman had pointed out before this court that the very purpose of the Convention of having the matters of custody determined in the courts of the country of habitual residence can also be seen in the provisions of Article 16 of the Convention, namely after receiving notice of a wrongful removal or retention under Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which the child 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 the Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.

83.  However, Article 16 and the effect thereof did not seem to have been raised by Mr Coleman in BLW and BWL.

84.  What Cheung JA had held in BLW v BWL, in relation to wrongful retention, was firstly that the father’s application was premature as the fact that the mother had applied for custody did not mean that she would not return them to the US after August 2007 and that on the contrary, her intention was to return to the US, and secondly, a wish to have the custody of the children even though it might be implemented by way of court proceedings, eg an application for custody, could not constitute the requisite specific act for the purpose of wrongful retention, as the court might not grant custody to her, and if it was granted, this did not necessarily mean that the mother would not return the children to the US[24] .

85.  Cheung JA had distinguished the facts in In Re S (Minors) (Abduction:Wrongful Retention) from those in BLW v BWL, in that in his view was the mother in In re S had announced as part of her case that she did not intend to return the children to Israel at all and that was not the situation in BWL v BWL[25].(emphasis added)

86.  In my view, each case will depend on its own facts.

87.  In the Toren case, Mrs T filed the complaint for custody on 1 July 1997, when the amended agreement between the parties provided that for children to live with her but not beyond 21 July 2000.  In the Punter case, Mrs P issued the custody proceedings in New Zealand 6 months after the arrival of her and the children, and there was still some 18 months to go before the two year period ended. It would seem that the custody applications in both cases could be concluded prior to the end of the agreed period.  Anyway, in the Toren case, the mother’s complaint for custody made no reference to her post July 2000 plans.  In the Punter case, the mother did not evince an intention to retain the children in New Zealand even if refused a custody order.  In Watson v Jamieson, the father’s intention statement was said to be no more than an intention statement.

88.  Turning back to the facts in the present case, in my view, the first “announcement” by the Mother of her intention of not going back to New Jersey until the Children finished high school in Hong Kong was in fact the Friday prior to the 06.08.13 Email.  Then in her affirmation filed in the FC Proceedings, the Mother had said as follows:

(1)  “I found it necessary to explain to the children everything that was happening. I told them that they will complete their high school education in Hong Kong and where they will pursue their further studies will be their own choice. Preston still needs to study 4 years and Spenser still needs to study 8 years in HKIS until they complete their high school”[26];

(2)  “I specifically told my children that I would not be returning to New Jersey under any circumstance.  My children told me that they would stay with me wherever I chose”[27];

(3)  “our family would be settling permanently in Hong Kong”[28];

(4)  “the Petitioner brought the Children with her to settle in Hong Kong”[29];

(emphasis added)

89.  The Mother issued the GMO Application about 6 months before the expiry of the 1-2 year period, after receipt of the letter from the Father’s US attorney asking her whether she intended to return the Children at the end of school term in June 2015.  In her GMO Affirmation, she had said as the Father had threatened to carry out legal proceedings in USA to compel the return of the Children to New Jersey, she had no choice but to make the GMO Application to protect the Children[30]. Thus, as submitted by Mr Coleman, and which I agree, the purpose of the Mother’s issue of the GMO Application was clearly to resist the return of the Children to New Jersey.

90.  The Mother then went on to say, that the Children were well settled in Hong Kong and that they had expressly told her that they would finish their high school in Hong Kong[31].  She then stated that she completely disagreed with returning the Children to New Jersey on the basis of the allegation that their stay in Hong Kong was “temporary”, and that in any event, it would be extremely detrimental to the Children to remove them from Hong Kong.  She said that she had made it clear to the Father and the Children that she would under no circumstance return to New Jersey because of extra-marital affairs of the Father.  She had further said that the Father might consider applying for care and control of the Children in New Jersey, and that she would strongly object to care and control of the Children being granted to the Father, setting out her reasons[32].

91.  The Mother had also applied for maintenance of the Children in her GMO Affirmation and she had set out all the monthly expenses of the Children, based on their expenses in Hong Kong[33].

92.  In light of Article 16 of the Convention, the GMO Application would not proceed until the present proceedings had been determined.  The 2 year period will end around 6 July 2015, and it is not likely that the GMO Application could be determined before then.

93.  In the SIR which was prepared as recently as 14 April 2015, the Mother had also shared with the social work officer that she had changed her mind in about August 2013 and she preferred the Children completing their high school in Hong Kong before returning to New Jersey.

94.  Having considered the Mother’s evidence in her GMO Affirmation, in my view, she had evinced an intention therein not to return to New Jersey in June/July 2015 voluntarily and further her intention was to retain the Children in Hong Kong until completion of high school education, and that the filing of the GMO Affirmation with what she said therein was an actual act of retention.  I am thus of the view that Father’s present application was not premature, and that the facts of the present case can be distinguished from those in BLW v BWL, or in Toren, Punter,or Watson.

95.  The retention would only be considered wrongful if it is in breach of rights of custody of the Father under the law of the Contracting State in which the Children were habitually resident immediately before the retention.  I now come to consider the habitual residence of the Children immediately before the retention.

Habitual Residence

96.  It was not disputed that the Children were habitually resident in New Jersey USA prior to them being brought to Hong Kong by the Mother on about 6 July 2013.  It was further not disputed that the Father held rights of custody immediately before the retention or that such rights were actually exercised by the Father, or would have been so exercised but for the  retention.  The Mother’s case was that immediately before the retention on 6 February 2015, the Children were habitually resident in Hong Kong.

97.  Mr Coleman had submitted that each case would depend on each facts as to the habitual residence of an abducted child at the time of the abduction and that reliance must be place on the intentions of the parents.  He had referred this court to N v O [1999] 1 HKLRD 68, HCMP 4204 of 1998, where Hartmann J had said :

“It has been argued on behalf of the father that while generally the concept of habitual residence is linked to actual residence there are exceptions to the rule. Where, for example, a child’s removal to another country is understood to be temporary then the child does not take up habitual residence in that other country. That, of course, is true; the most obvious example in Hong Kong being the despatch of children to boarding school in other countries. Similarly, a business posting to a foreign country may be acknowledged as being purely temporary and while the parents may set up home in that foreign country for the duration of the temporary posting, the family’s habitual residence remains the home country. For example, an engineer may take his family from the United Kingdom to the Middle East for the duration of a particular engineering project, the intention being to return to the United Kingdom immediately the project is completed. Such illustrations are countless. Each, of course, depend very much on their own facts and reliance in each case must be placed on the intention of the parents.”[34]

98.  Cheung JA in his judgment in BLW v BWL had set out the principles as to the meaning of habitual residence as follows[35]:

(1)  The question whether a person is or is not habitually resident in a particular country is a question of fact: Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 578, Cv S (A Minor)(Abduction) [1990] 2 FLR 442, 454 per Lord Brandon.  The concept of habitual residence is not an artificial legal construct.

(2)  While it is not necessary for a person to remain continuously present in a particular country in order for him to retain residence there it is not possible for a person to acquire residence in one country while remaining throughout physically present in another.

(3)  Where both parents have joint parental responsibility, neither of them can unilaterally change the habitual residence of the child by removing the child wrongfully and in breach of the other party’s rights: Re J at 572 and 449 respectively per Lord Donaldson MR. See: Re M (Abduction: Habitual Residence) per Millet LJ at 895.

(4)  The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves.

(5)  Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration.

(6)  All that the law requires for a ‘settled purpose’ is that the parents’ shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.

(7)  Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention. See: Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993 and LM v HTS [2002] 1 HKC 194.

99.  Cheung JA had also considered various case law from other jurisdictions, among which was Whiting v Krassner 391 F 3^rd 540(2004) (3^rd Cir).  Mr Pang, Senior Counsel appearing for the Mother had also referred this court to this US case.

100.  In Whiting, the US Court of Appeals for the 3^rd Circuit had in referred to an earlier case of the US Court of Appeals in the 9^th  Circuit  Mozes v Mozes 239 F 3d 1067, 1069 (9^th Cir.2001).

101.  In Mozes, the 9^th Circuit had taken the opportunity to more clearly define the term “habitual residence” and explained that in its view “the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind” and had declared that the intentions that should be examined were those not of the child, but rather of “the person or persons entitled to fix the place of the child’s residence”.  The 3^rd Circuit had in Whiting agreed with what was said by the 9^th Circuit, at least when the child whose habitual residence was being determined was of such a young age that he or she could not possibly decide the issue of residency for himself or herself[36].

102.  As further set out in Whiting, The 9^th Circuit in Mozes went on to delineate 3 broad categories of fact patterns that arose in cases under the Convention in which parents were contesting over the child’s habitual residence[37] :-

(1)  Where the family as a unit has translocated and manifested a settled purpose to change its habitual residence despite the fact that one parent might have qualms about the move.  This usually leads the court to find a change of habitual residence;

(2)  Where the petitioning parent initially agreed to allow the child to stay abroad for an indefinite duration.  The court generally finds that there is no clear answer and is very fact-dependent;

(3)  Where the children’s initial move from an established habitual residence was clearly intended to be for a specific limited duration.  Most courts will find no change in habitual residence. However, a child may become habitually resident even in a place where he or she was intended to live only for a limited time if the child’s original habitual residence has been effectively abandoned by the shared intent of the parents.

103.  In BLW v BWL, Cheung JA had also considered  Watson v Jamieson where Lord Posser had found that the children’s habitual residence was in Scotland when the children left New Zealand to go to Scotland to be with their father for the two year period, as there was a “settled purpose”, according to which the children would in any ordinary sense be living in Scotland for that two year period notwithstanding that they would go back to New Zealand, to live there for the next two years up to the end of 1998[38].

104.  Cheung JA also considered In Re S (Minors) (Abduction: Wrongful Retention) but said that  Wall J did not analyse why despite the parents’ agreement that the children should live in England for that one year the  habitual residence of the children remained that of Israel[39].Another English case which Cheung JA had considered was Re N (Abduction: Habitual Residence) [2000] 2 FLR 899.

105.  In Re N, the parents and their children were British citizens.  The family went to Spain, purchased a bar and despite not having residence status, purchase a house.  Before moving into the house, the mother took the children back to England.  The father applied for return under the Convention.  Black J, as she then was, refused to grant the order.  She held that the mother had not left England with a settled intention not to return, and that she was embarking on a conditional trial move to Spain.  While the father had probably become habitually resident in Spain, the mother had not ceased to be habitually resident in England and certainly had not become habitually resident in Spain. Black J had said[40]:

“In my view, it is important to recognise that what the father seeks to establish is that the children’s place of habitual residence has changed. I have concluded that this cannot happen where he alone of the parents with whom they are living has lost the habitual residence that he shared with the mother and the children and become habitually resident elsewhere.”

106.  Mr Coleman had also referred to the House of Lords decision in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562.  In this case, the parents of the child were not married to each other and they were citizens of the United Kingdom resident in Western Australia.  The mother decided to return permanently to England and left Western Australia with the child. The father applied for return under the Convention.  The judge concluded that neither the removal nor the retention were wrongful and the Court of Appeal dismissed the father’s appeal which was in turn also dismissed by the House of Lords.  It was held that, among other things, under the law of Western Australia, the unmarried mother had the sole custody and the father did not have rights of custody, and further the child had ceased to be habitually resident in Western Australia when he left with his mother whose settled intention was not to return.

107.  As said by Lord Brandon of Oakbrook in the above case :

(i)  The expression “habitually resident” as used in Article 3 of the Convention is nowhere defined and it follows that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words;

(ii)  The question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case;

(iii)  There is a significant difference between a person ceasing to be habitual resident in country A, and his subsequently becoming habitually resident in country B.  A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead.

108.  The Father’s evidence in his affirmation filed in the FC Proceedings was that after the Move, the family’s home base continued to be in New Jersey.  The Grandparents had bought a house directly across the street, and the Children had a bedroom in their grandparents’ house with their toys and belongings.  The Mother still maintained her phone account in the US which was charged under the Father’s name in order to oversee and deal with matters in New Jersey.  The Father had produced copies of the US phone bill showing the Mother’s US phone number for April 2014 and said it was the Mother who had insisted on keeping her US number active and that he ended up paying nearly US$100 each month to keep it active, property tax bill for 2013/2014 and the car insurance bill showing that the Mother was listed as one of the drivers covered by the policy.

109.  The Mother, however, had said that she had stopped using her US mobile number after the Move, and that although some bills were still being sent to the US home, she had already tried her best to move all applicable bills to her own name and address in Hong Kong, and that she used her Hong Kong address as her address for most of her and the Children’s activities.  Also, her bank statements were sent to her Hong Kong home.

110.  The Father, however, said only the statements of the new accounts opened in Hong Kong by the Mother were sent to her new Hong Kong address.

111.  It was not disputed that the Children’s habitual residence was in New Jersey at the time or immediately prior to the Move.  P was 13 and S was 8 at the time of the Move and they had been living in New Jersey since they were born.  Their home was there and that was where they were to return during school holidays.   Their roots were there. I do not find there was sufficient evidence that the Move was with a settled purpose for the Children not to return to New Jersey after 1-2 years, or to abandon New Jersey as their residence and to take up long-term residence in Hong Kong.  As I have mentioned earlier, the Mother only changed her mind in early August 2013, about one month after she and the Children arrived in Hong Kong. I have also found that there was no sufficient evidence that the Father had after the 06.08.13 Email accepted or agreed to the Children living in Hong Kong beyond two years.

112.  Having considered all the circumstances, I do not find that there was sufficient evidence that there was a shared intention to abandon the Children’s place of habitual residence of New Jersey, nor a settled intention on the part of both parents to change the Children’s habitual residence to Hong Kong by the time of the retention.

113.  I am of the view that the Father had demonstrated that at the time of the retention the Children’s habitual residence had remained to be in New Jersey.

Was the retention wrongful

114.  As I have earlier found that the filing of the Mother’sGMO Affirmation was an actual act of retention, and that the habitual residence at the time of the retention was New Jersey, it being not disputed that the Father held rights of custody immediately prior to the retention, I am of the view that the Mother’s retention in Hong Kong was wrongful and  in breach of rights of custody of the Father under the law of New Jersey in which the Children were habitually resident immediately before the retention, and at the time of the retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the retention.  

Children’s views

115.  At the commencement of the hearing, the Father applied for leave to file an affirmation of the Grandmother dated 24 April 2015.  The Children saw the Grandmother over the Easter 2015 vacation and according to the Grandmother that they both would like to move back to New Jersey.  They had told her that whenever they mentioned New Jersey, or the Grandparents, their aunt, or the Father, the Mother would start to “yell” at them.  The older child P had said that the Mother had told them it was too late for him to get into a private school in New Jersey, and that the younger child S had told her that he could not sleep because he wanted to be in New Jersey, but that “mommy says things” to him.  Also, S had told Grandmother that the Mother said to him that he would not want his mother to be alone.

116.  Mr Pang had objected to the filing of the Grandmother’s above affirmation due to lateness. Also, there had been no formal application for leave taken out by the Father.  There was no summons taken out, nor was there any affirmation to explain the lateness. Mr Coleman pointed out that there were the Easter holidays, and that the SIW was only received on or after 14 April 2015, and also the Grandmother lives abroad.

117.  Mr Coleman submitted that what the Grandmother had said in this late affirmation really only reinforced what had been said by the Father.

118.  There was no evidence that the Mother would be prejudiced in any way and Mr Pang confirmed that the Mother did not wish to file any affirmation in reply, as it was a waste of time.

119.  The objection by the Mother was a technical one and based on principle.  It has, however, been said that in family cases, the court has a wider discretion than in general civil cases, in particular in children’s cases.  As there is no real prejudice to the Mother, I will give leave to the Father to file the Grandmother’s affirmation of 24 April 2015.

120.  Mr Coleman had pointed out that under Article 13, it is permissive, but not obligatory, to take the Children’s views into account.

121.  Mr Pang had referred this court to Re M (Abduction: Child’s Objections) [2007] 2 FLR 72 (CA).  The 8 year old girl was born to an English mother and Serbian father.  The parents never married but cohabited for a number of years and moved to Belgrade after the child’s birth.  On their separation, the father issued proceedings in Serbia in respect of the child.  The mother was granted custody, but later the father renewed his applications seeking custody and alleging that the mother could not cope and that she would remove the child from Serbia.  The mother removed the children from Serbia twice to England during those proceedings.  The English court ordered the child’s return as there were ongoing proceedings in Serbia concerning the child’s welfare, and that Serbia was the appropriate forum for litigating the disputed issues. The mother appealed and argued that the court failed to take into account the child’s views and the child’s objection defence.

122.  The Court of Appeal allowed the mother’s appeal.  Sir Mark Potter, the then President of the Family Division had set out the approach in his judgment[41]. There are 3 stages in the court’s consideration:

(1)  The 1^st question to be considered is whether or not the objections to return are made out;

(2)  The 2^nd is whether the age and maturity of the child are such that it is appropriate for the court to take account of those objections (unless that is so, the defence cannot be established). 

(3)  Assuming there is a positive finding in respect of (2), the 3^rd question, is whether or not it should exercise its discretion in favour of retention or return.

123.  The President had also adopted what was set out in an earlier judgment of Ward LJ in Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 as to the relevant considerations on both aspects (1) and (2) above[42]. The matters to be established are:

(i)  Whether the child objects to being returned to the country of habitual residence, bearing in mind there may be cases where this is so inevitably and inextricably linked with an objection to living with the other parent that the two factors cannot be separated.  Hence there is a need to ascertain why the child objects;

(ii)  The age and degree of maturity of the child.  Is the child more mature or less mature than, or as mature as, his/her chronological age? … Clearly the child has to know what has happened to him/her and to understand that there is a range of choice.  A child may be mature enough for it to be appropriate for her views to be taken into account even though she may not have gained that level of maturity that she is fully emancipated from parental dependence and can claim autonomy of decision-making.  The child’s “right” … is, consistently with Article 12 of the United Nations Convention on the Rights of the Child 1989, to have the opportunity to express his/her views and to be heard, not a right to self-determination.  Article 12, which is often judged to be one of the most important in that convention, assures to children capable of forming their own view, the right to express those views freely in all matters affecting them, the views of the child being given due weight in accordance with the age and maturity of the child.

124.  The President further pointed out[43] that Ward LJ had observed in Re T that each case would depend upon its own facts and the President had quoted with approval  the following passage from Ward LJ in Re T [44]:

“  (3) So a discrete finding as to age and maturity is necessary in order to judge the next question, which is whether it is appropriate to take account of the child’s views. That requires an ascertainment of the strength and validity of those views which will call for an examination of the following matters, among others –

(a)  What is the child’s own perspective of what is in her interest, short, medium and long term” Self-perception is important because it is her views which have to be judged appropriate.

(b)  To what extent, if at all, are the reasons for objections rooted in reality or might reasonably appear to the child to be so grounded?

(c)  To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?

(d)  To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence from the abducting parents?”

125.  In the present case, it was the Father who applied for the SIR to be prepared.  P will be 15 in October this year, and the Convention shall cease to apply to a child who attains the age of 16 years.  S is now 10.  The SWO considered that they are mature enough and age appropriate for the court to take into account their views. Anyway, it was not really disputed by the parties that the Children are of an age and degree of maturity that it is appropriate to take account of their views. 

126.  The Children were interviewed individually by the SWO on two occasions, on 25 March and 1 April 2015 before their Hawaii trip with the Father from 3 to 11 April 2015.

127.  It appeared that during their 1^st interview, they had asked SWO whether the Mother would stay with them wherever they chose.  After the 1^st interview, the SWO then asked the Mother who told the SWO that she would definitely stay with the Children wherever they chose despite that she would find it very difficult in returning to New Jersey because of lacking financial, emotional and physical support there.  The SWO reported that the Mother’s response was shared with the Children during the 2^nd interview.

128.  When P was invited by the SWO to share his views on whether to return to New Jersey or to stay in Hong Kong, he was reported to have “consistently and clearly” expressed that he preferred to stay in Hong Kong and justified his views with reasons.  P said that the only thing that he missed in New Jersey was his grandparents and relatives but he could visit them during his school break.  P was reported to be also concerned about the emotional response of his mother.

129.  What P had told the SWO was he had already settled in Hong Kong and adapted to the new environment, and he considered moving all the things back to New Jersey now would create a lot of trouble and difficulties again. He expressed his strong wish by maintaining the status quo and living in Hong Kong continuously.  He then said he preferred to stay in Hong Kong and not return to New Jersey at the present stage[45]. (emphasis added).

130.  S was reported to be a cheerful pre-adolescent who took into serious consideration before responding to SWO about his views on returning to New Jersey or staying in Hong Kong.  He was reported to have conscientiously concluded that he preferred to stay in Hong Kong.  He again gave his reasons. He did say he loved the school in New Jersey more because the recess break was longer and the studying pressure was easier to face as compared with the one in Hong Kong.  He was reported to be concerned the emotional response of his mother and wanted his mother to be happy by staying in Hong Kong.

131.  Mr Coleman pointed out that the Children do not ‘object to being returned’ as such, and that the SIR only appeared to suggest that the Children ‘prefer’ to be in Hong Kong.

132.  As said by Balcombe LJ in In Re S (A Minor) (Abduction: Custody Rights ) [1993] Fam 242, this part of Article 13 which relates to the child’s objections to being returned is completely separate from paragraph (b) of Article 13.  In Re S, Balcombe LJ rejected what Bracewell J had said in In re R (A Minor: Abduction) [1992] 1 FLR 105 that there must be more than a mere preference expressed by the child[46].  Balcombe LJ was of the view that there was no warrant for importing such a gloss on the words of Article 13, and he pointed out that Bracewell J was unfortunately not referred to the earlier decision of Sir Stephen Brown P in In Re M (Minors) (unreported), 25 July 1990, in which Sir Stephen Brown P had rightly considered this part of Article 13 by reference to its literal words and without giving them any such additional gloss[47]. 

133.  Balcome LJ had also pointed out that In Re M, Sir Stephen Brown P had made clear that the return under Article 13 the child objects is that which would otherwise be ordered under Article 12, ie an immediate return to the country from which the child was wrongfully removed, so that the courts of that country may resolve the merits of any dispute as to where and with whom the child should live, and there is nothing in the provisions of Article 13 to make it appropriate to consider whether the child objects to returning in any circumstances.

134.  In the present case, both the Children indicated their wish to remain in Hong Kong.  As said by Fisher J in the High Court of New Zealand in of S v S [1999] 3 NZLR 513, the framers of the Convention assumed that a mature child’s wishes would be taken into account without distinction between a wish to remain and a wish to return and Fisher J had referred to the Explanatory Report on the Convention prepared by Professor E Perez-Vera[48].

135.  The Father was sceptical, as what was reported in the SIR was contrary to what the Children had been telling the Father and the Grandmother, as could be seen from the latest affirmation of the Grandmother’s.  Mr Coleman submitted that it was clear that mental stress and pressure had been brought to bear upon these Children by the Mother, and it became a choice between New Jersey or their mother.  The Children did not have their own best interests at heart at all, and that what they reportedly said were  not true ‘preferences’ in any real sense.

136.  Mr Coleman had also drawn the court’s attention to an email dated 1 April 2015 from S’s fourth grade teacher which indicated that S had shared with the school counsellor that it was a difficult time in his family, and that S was feeling extreme stress[49].  That was the morning of S’s, and also P’s 2^nd interview with the SWO.

137.  It would only be natural for both the Children to be under stress, as they clearly were aware of the purpose of the interview and S, being much younger, would feel it more so than P.  They would not want to upset either their father or their mother.  It would be also be natural that they would be concerned over the Mother’s emotional response, she being their primary carer.  

138.  No doubt the Children love both their parents and their grandparents.  The evidence, however, showed that in the past few years, with the Father busy at work and travelling (although the days of travel may be disputed), the Children would have spent more time with their mother, and unsurprisingly they would be close to their mother emotionally.  The Mother had produced an email she sent to P and a reply from P on 27 June 2014 to show the love and bond between them[50].

139.  The Mother’s views and feelings over any return to New Jersey could not have been lost on them.  Equally, the Father’s views and feelings in this respect could not have been lost on them either, nor indeed the Grandmother’s. 

140.  S himself had said, although he now lives separately with his father, he could stay with his father for about 4-5 days in a month in Hong Kong, which he said was more or less the same when he stayed in New Jersey.  I accept what was said by S seemed to be echoing what the Mother had said in her affirmation.  However, although the Father had denied that he travelled frequently between 1997 and 2010, he had admitted that in 2012, the year before the Move, he was away for about 4 to 5 months within a year since that was the year that he sold his company.  In any event, whatever the frequency, the father’s travel pattern must be known to the Children.

141.  As P himself had said he had settled and adapted to Hong Kong and moving everything again could cause disruption again.   That P had made new friends could also be seen from the list of about 16 friends whom he wished the Mother to invite to his birthday party[51].

142.  The Father had had time to consider after receipt of the SIR on 14 April 2015, which was about two weeks before the hearing. There was no suggestion, nor any application, made by the Father for the SWO to give oral evidence or to be cross examined[52]. Nor was there any suggestion that the SWO should interview or clarify with the Children their wishes again after the Easter holidays, in light of the Grandmother’s latest affirmation. 

143.  Mr Coleman submitted that the ‘reasons’ proffered by the Children, as set out in the SIR bore the hallmarks of coming from the Mother, eg – P had said the high school section in xxx School being “prestigious”, or the suggestion that “he could only study in public high school in New Jersey while the deadline of application for other better private high school in New Jersey has been passed”.  

144.  As pointed out by Mr Pang, P,  who will be 15 coming October,  could have found out about whether any application to a good private high school in New Jersey had passed from other sources, eg friends or  the internet.

145.  Having considered the SIR, I am satisfied that the Children’s objections to forthwith return to New Jersey have been made out, and in light of the age and maturity of the Children, it is appropriate for this court to take account of their views and in my view the “child objection defence” under Article 13 has been established.  By now the Children have settled in Hong Kong as they have been here for almost two years.  P will be promoted to high school section of his present school in the coming semester and has made many friends here.  Even though S seems to love his school in New Jersey more, he has made improvements in the present school the last semester, and he has also made some close friends in Hong Kong. Having considered all the circumstances of this case, I exercise my discretion in favour of the Children remaining in Hong Kong at the present stage.

Conclusion

146.  The Father had sought a forthwith return under the Convention.  In light of what I have said above, I decline to make an order for forthwith return for the Children to New Jersey.  The Father’s application is dismissed.

147.  As for costs, as the Father has succeeded with most of the issues, save for the Children’s views, I make no order as to costs.  This is a costs order nisi which shall be made absolute after 21 days.

148.  Lastly, I thank all Counsel for their submissions and assistance to the court.