XCHRX N v. O

1998 No. MP 4204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

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R U L I N G

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1. On 23rd October 1998, in terms of a written judgment, I declined the Plaintiff's application for the return of his son to him in Luxembourg, that application having been made in terms of the Child Abduction and Custody Ordinance, Cap. 512, which has extended the great majority of the provisions of the Hague Convention on the Civil Aspects of International Child Abduction into Hong Kong law. I did so on the basis that, in the circumstances of the case, the Ordinance did not apply. I further declined the Plaintiff's application to exercise the Court's discretionary jurisdiction to order the return of the child to Luxembourg. It was my considered opinion that the child - who was at the time a ward of this Court and still remains so - should have his future determined by a Hong Kong Court, Hong Kong now being the child's settled place of residence.

2. At the conclusion of my judgment I ruled that, as and for costs, there should be an order nisi that there be no order as to costs with liberty given to either party to apply to argue the matter. The Defendant, the mother, chose to avail herself of that option. Accordingly, the matter of costs was argued.

A brief background.

3. The Plaintiff, the father, was born and raised in Luxembourg. The Defendant, the mother, was raised in the United States. The couple met in Europe and were married in Luxembourg in October 1992. They then set up home in that country. On 6th April 1993, their son, J - M, was born.

4. Unhappy differences arose between the couple and in late 1995 the Defendant returned to the United States with the child, taking advantage of a transfer offered to her by her employer, an international corporate bank. She set up home with the child in New York.

5. The Luxembourg courts had been seized of the matrimonial litigation at the behest of both parties and, despite Defendant's departure from Luxembourg, continued to exercise jurisdiction. The Luxembourg courts recognised that, until a final determination of custody had been made, the child should remain in the Defendant's care and control in the United States while the Plaintiff enjoyed rights of visitation.

6. The Plaintiff, however, was always of the view that Defendant was acting purposefully to undermine his relationship with his son and, when the Defendant was transferred to Hong Kong in January 1998 and commenced living here with the child, he made an application to the Luxembourg courts for final custody.

7. The matter was argued before the court of competent jurisdiction in Luxembourg and in a reserved judgment that court granted final custody to the Plaintiff, ordering that the child be returned to Luxembourg. The Defendant appealed that decision and, to protect her position, applied to this court for the child to be made a ward of court. Upon that application, the child automatically became a ward and, pending a future resolution of the wardship matter, remains so at this time.

8. Despite the fact that an appeal was pending, Plaintiff sought to enforce the order of the court of first instance in Luxembourg which had granted him custody. He did so, as I have already indicated, by seeking an order for return under the Hague Convention or, in the alternative, by asking this Court to exercise its discretionary jurisdiction.

9. The hearing before me took place approximately one month before the Luxembourg appeal hearing. However, I had at all material times indicated that, even if I acceded to Plaintiff's applications and ordered the return of the child to Luxembourg, I would be loath to put such order into effect until after we knew of the result of the appeal. This was to avoid the danger of the child having to undergo potentially traumatic moves which proved to be temporary in nature.

10. As it transpired, some weeks after my judgment (and in full knowledge of it) the Luxembourg Court of Appeal overturned the ruling of its court of first instance, holding that the best interests of the child lay in remaining with the mother, the Defendant.

The Respondent's claim for costs.

11. I have been led to understand that the Defendant's costs incurred in successfully defending her ex-husband's Hong Kong applications amount to some HK$200,000.

12. Counsel representing Defendant has argued that here in Hong Kong, as elsewhere, the Plaintiff has acted precipitously. Common prudence dictated that he await the decision of the Luxembourg Court of Appeal before embarking upon his Hong Kong litigation as his application under the Hague Convention was founded fundamentally on the decision of the Court of First Instance in his home country, a decision which he knew to be under challenge. As it transpired, that challenge was successful. If he had waited, therefore, the Hong Kong legal costs need never have been wasted.

13. I agree that Plaintiff appears to have pursued his case with considerable zeal. But I am unable to say he did so for any ulterior motive. A father who sincerely believes that he has been unjustly separated from his child may well be expected, when he has a judicial decision in his favour, to take all steps necessary to end that separation. On all the evidence before me, it appears that the father received professional advice to the effect that the order of the Luxembourg Court could be executed despite the appeal. Nor is there any reason to believe his Luxembourg counsel were pessimistic in respect of that appeal. I can understand the father believing - in what he considered to be the best interests of his child - that he should pursue his remedies with speed to bring matters to finality.

14. I accept that the Plaintiff, in all wisdom, would have been better advised to await the outcome of the Court of Appeal decision but, having said that, I am unable to condemn his decision to proceed as being reprehensible or beyond the broad band of what is reasonable. Stability is important for a child and a desire to bring about an end to uncertainty in a child's life is aimed essentially at achieving that stability.

15. Defendant's counsel has argued, of course, that the one remedy which Plaintiff believed was open to him; namely, the remedy provided by the Hague Convention, was from the outset manifestly misconceived. I found it, in fact, to be misconceived and expressed my concern in that regard at an early stage; more specifically in respect of the requirement under the Convention that the child should have been 'habitually resident' in Luxembourg immediately before his abduction from that country or his wrongful retention outside of it. Having heard argument however, I cannot say that Plaintiff's application was so misconceived that it should never have been presented. On the authorities placed before me, the question of the child's habitual residence was arguable albeit within what may be called narrow, technical confines.

16. As for the Plaintiff himself, it must not be forgotten that he seemingly took advice from the central authorities in both Luxembourg and Hong Kong. Certainly the Hong Kong central authorities had the power to refuse to proceed if they considered the application lacked merit. In this regard Article 27 of the Convention (which has been adopted by Hong Kong) reads:

"When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons."

17. The Hong Kong central authority agreed to proceed and must have done so on the basis that it considered there to be merit in the application.

18. As for Plaintiff's argument that, in light of the judgment of the Luxembourg Court awarding custody to him, I should exercise my discretionary jurisdiction to return the child to Luxembourg, I confess that I did not find it an easy decision to make. A matter of particular concern for me centred on the principle of comity. Plaintiff's argument in that regard was a telling one.

19. I accept that the argument based on the exercise of the court's discretionary jurisdiction was only mounted late in the day - a matter criticised by Defendant's counsel - but there are a number of English authorities which make it clear that often, when a court has found that the requirements of the Convention have not been met, the natural argument which flows from that is centred on the exercise of discretionary jurisdiction. Plaintiff's alternative argument would not, therefore, have been totally unexpected.

The relevant law.

20. Article 26 of the Hague Convention deals generally with costs in the following terms:

"Each Central Authority shall bear its own costs in applying this Convention.

Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.

However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child."

21. The fourth paragraph of the Convention allows the court the discretion to order the 'abductor' of the child (or the person who prevented the exercise of access rights) to pay necessary expenses incurred by the applicant; these expenses may include payment of legal costs. The purpose of the fourth paragraph is to act as a deterrent to behaviour which is contrary to the objects of the Convention and, of course, gives to the court the power to order the culpable party to pay the kind of expenses not normally envisaged in litigation; for example, payment of travel expenses for both child and parent and costs of locating the child. But regarding an applicant who is unsuccessful, Article 26 is silent. In my judgment, this does not prevent a court in appropriate cases from awarding costs against an unsuccessful applicant but leaves the matter rather to those domestic principles of law which the court applies in children's cases.

22. During the course of argument, no authorities from other jurisdictions on the matter of costs were placed before me. In this regard, counsel for the Plaintiff advised me that in the United Kingdom, because of the unique nature of Hague convention cases, legal aid is automatically granted to all applicants without a means test being required. If that is so, it no doubt flows from Article 25 of the Convention which has not, however, been incorporated into our statute.

23. In the absence, therefore, of specific directions contained in the Child Abduction and Custody Ordinance, in my judgment, in Convention cases, our courts should adhere to the principles already established in children's cases and should be wary of awarding costs against an unsuccessful party except in exceptional circumstances. It is unnecessary and undesirable to attempt to limit or place into confined categories the cases which a court might, in Convention cases, regard as constituting exceptional circumstances. But they will include cases where the litigation has been instigated vexatiously or in bad faith or where the one party has acted in a reprehensible manner or in a manner concerning the litigation which goes well beyond what would be expected of a reasonable parent anxious to secure his or her child's best interests.

The financial standing of the parties.

24. It has long been accepted in family matters that the respective financial standing of the parties is a factor which may be taken into account when costs are considered, especially where there is a marked disparity between the means of the parties. In this regard, for example, see Keller v. Keller and Legal Aid Board [1995] 1 FLR 259.

25. I appreciate that Hague Convention cases are limited in their scope but that does not mean that the question of costs flowing from them must be considered in isolation, perhaps to the long term detriment of the child. It must be remembered that the parents will have to continue to work together for the child's best interests and where (as is often the case in Convention cases) the parents are separated geographically, an inappropriate order may well result in the child being deprived of the opportunity of regularly visiting or seeing the parent who is penalised in costs.

26. Although no conclusive evidence was placed before me of either the Plaintiff's or Defendant's financial position, I have no reason to doubt the submissions made by counsel for the Plaintiff that his present net income is modest and that an award of costs against him may well shackle him financially for some considerable time to come. The practical result may well be an enduring emnity between the parties and, in all likelihood, the inability of the father to finance visits to or by his son.

27. As I have said, I have no evidence of the Defendant's income or savings. I have no doubt that the costs incurred will be a heavy burden for her too. But it appears that she holds a job of responsibility with her employer and has no stated financial obligations of substance to anybody other than herself and her son.

My conclusions

28. From what I have said, it is plain that I do not consider the Plaintiff's application based on the exercise of my discretionary jurisdiction to have been misconceived. The Plaintiff may be open to censure for the lateness of notice given in respect of that application but not sufficient, in my opinion, to cause him to be penalised in costs.

29. But what of the application made under the Convention? While, as already stated, I believe the Plaintiff may (tactically) have acted more wisely in his application and while, at the end of the day, I found his argument concerning habitual residence to be misconceived, I cannot say that in the general conduct of his litigation he acted in a manner which went beyond the broad band of reasonableness expected of a concerned parent.

30. It is my understanding that the Plaintiff, armed with his judgment granting him custody, was advised by both the central authorities of Luxembourg and Hong Kong that he had an application under the Hague Convention which merited hearing. I do not see how he can be criticised for taking that advice. Nothing has been placed before me to suggest that he was a vexatious litigant defying rational opinion. Despite Defendant's profound suspicion that her ex-husband was motivated by matters other than their child's best interests, I have been unable, on the evidence placed before me, to find that Plaintiff acted in bad faith. Nor is there anything to suggest that, despite his avowed zeal in pursuing his son's custody, he acted in a way that was uncaring of his child's feelings; for example, by demanding that his son undergo further psychiatric tests or be subjected to other tests and interviews.

31. In all the circumstances, I do not consider this to be an exceptional case warranting the award of costs against the Plaintiff either in part or whole. It is, therefore, my order that there shall be no order as to costs in respect either of the main hearing or the hearing during which costs were argued.