RB v. L

HCMP 2706/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO2706 OF 2014

____________

____________

____________

______________

J U D G M E N T

______________

1.  This is an application by the plaintiff Father against the defendant Mother for an order for the return of their natural daughter (“the Child”) to Australia.

BACKGROUND

2.  Save where otherwise specified, the following facts in this section are not disputed.

3.  The Father, aged 32, is a resident of Australia.  He used to be a chef but is now a business manager of his family business.

4.  The Mother, aged 30, has acquired permanent residence in Australia in mid 2012.  She is currently living in Australia but her address and occupation is unknown.

5.  The parties met each other when the Mother was on a working holiday in Australia in 2007.  They started a relationship in April 2008 but were never married. 

6.  The Child was born 1½ years later on 19 September 2009 in Australia. She is now aged 5.  She is living with one Madam H (the mother of the Mother’s best friend), whom the Child calls “Grandmother”.  The Child is now studying K3.

7.  Two months after the Child was born, the Father was arrested for 18 counts of drugs, fraud and firearms offences, for which he was sentenced to 4 years and 9 months’ imprisonment. 

8.  As borne out by the prison record, the Mother and the Child had been visiting the Father 2 times a week.  It lasted for 10 months from December 2009 to October 2010, except for the occasion between 9 May and 22 July 2010 when the Mother took the Child back to Hong Kong to visit her own mother, who was terminally ill with cancer. 

9.  There was a dispute as to whether or not the Mother had informed the Father on that occasion that she would take the Child back to Hong Kong on a permanent basis. 

10.  Anyway, the Father consented to removal of the Child and signed the passport application for the Child.  The Mother and the Child returned to Australia on 23 July 2010 and resumed the prison visits immediately on the following day.

11.  Since October 2010, the Child has lived in Hong Kong except for one return in April/May 2012.  This departure was probably prompted by the condition of the Mother’s mother who eventually died on 29 October 2010.

12.  The Mother returned on 10 January 2011, without the Child.  She lived in Newcastle but she visited the Father once every fortnight in Sydney, who was still in prison.

13.  After 2½ years in jail, the Father was released on 24 December 2011 but put on parole for 2 years and 2 months.  He moved to his grandparents’ home in Haberfield.  He began working as a chef.  He spoke on occasion to the Child over skype through the arrangement of the Mother’s sister (E).

14.  The Mother brought the Child back to visit the Father in Australia for 6 weeks between 16 April and 25 May 2012.  It appears undisputed that they moved into a rented unit at Marrickville with the Father.  The Father changed his restaurant job to a café near this unit.  He supported the Child and the Mother.  During this time, as borne out by the photos, the Child had met her grandparents.  In September 2012, the Child even met the Father’s aunt and sister in Hong Kong.

15.  In about the middle of 2012, the Mother was granted permanent residency in Australia. 

16.  The relationship between the parties deteriorated and they ended their relationship.  The Father put this date as July 2012 (about 2 months after the Mother and the Child left for Hong Kong). 

17.  There was a dispute as to whether that removal (should be the one at end of May 2012 according to the movement records of the Mother) was temporary or permanent, but the Child has never returned to Australia.

18.  According to the Father, following the separation, the Mother told him at that time, “I’m taking [the Child] away from you.”  She wanted to go to Hong Kong to have some space from each other.  There was a dispute as to who paid for the air tickets to Hong Kong.  If, as the Father claimed, that it was he who paid, he clearly consented to the removal.  He spoke to the Mother and the Child over skype once or twice after they arrived in Hong Kong.

19.  On the Father’s own case, when the Mother returned to Australia (this appeared to be July 2012), she went to see him and said words to the effect that she had left the Child in Hong Kong.  When the Father asked for the reason why the Child could not live with him, the Mother said that it was better for her, for her education to be in Hong Kong.  She would not disclose the residence or the phone number of the person with whom the Child was staying. 

20.  Between the Father’s release from jail and December 2012, the parties had met for dinner and argued over whether the Child should be brought back to Australia.

21.  Despite his wish to travel to Hong Kong, the Father could not do so whilst on parole.  He exercised his rights of custody over the Child by talking to the Child over the phone or skype if she was with E.  This had lasted until late 2013.  This was denied by the Mother who said that the Child did not speak English and the Father was a stranger to her.

22.  In about October or November 2012, the parties again talked over dinner about the Child.  There was dispute as to whether the Mother told the Father words to this effect, “Don’t worry.  [The Child] will come back to Australia to start pre-school here before she goes to school” (“the promise”).  The Father was reluctant but on those words, the Child was placed on a waitlist in a pre-school in Marrickville to start schooling in February 2014. 

23.  The parties did not have significant contact after December 2012 when the Mother moved to Melbourne.  However, he still had facebook contact with the Mother showed that he was still seeking to speak to the Child.

24.  In November 2013, the Father telephoned the Mother to make arrangement for the Child’s return to Australia.  She said words to the effect that “[the Child] doesn’t have a father anymore.  You won’t get to see her again.” Thereafter, the Father lost contact with the Mother and gradually with E who would not answer the phone or was not with the Child. 

25.  In February 2014, the Father informed E over the phone that he would come to Hong Kong.  E disconnected her phone.  He could not even contact the Mother or E or their friends over facebook.  At the time of this application, the Father had been unable to contact the Child.

26.  Soon after his parole ended in February 2014, the Father sought help from the NSW police, Federal police and Legal Aid.  Unfortunately, it was only until August 2014 that the Father was referred to the International Social Service which assisted him to apply under the Convention.

27.  Having received the request from the Central Authority of Australia, the Department of Justice took out the present application promptly.

28.  There is no dispute that at the time of this application, the Father had parental responsibility under Australian law and rights of custody for the purpose of the Convention.  Where both parties had joint parental responsibility, neither of them could unilaterally change the habitual residence of the child by removing the child wrongfully and in breach of the other party’s rights.   The habitual residence of the young children of parents who were living together was the same as the habitual residence of the parents themselves.  See BLW v BWL [2007] 2 HKLRD 193.  In the present case, the habitual residence of the Child was Australia.

29.  It is the Father’s case that the Mother has wrongfully removed or retained the Child in Hong Kong and he has not consented to or acquiesced in it.

30.  The Mother contests this application.  Her defence is as follows:

Delay of 4 years in making this application: Article 12(b);

The Child has settled in Hong Kong: Article 12(b);

C. The Father has consented and/or acquiesced in the Child’s relocation due to the prolonged and unexplained lapse of time for over 4 years: Article 13(a);

D. That the return of the Child will expose her to grave risk of physical or psychological harm or otherwise place her in an intolerable situation: Article 13(b).

THE EVIDENCE

31.  The Central Authorities of Australia and Hong Kong have given evidence. Apart from that, the Father and Mother have filed affirmations.  The parties agree that despite the dispute on facts, cross-examination can be dispensed with and I can proceed to hear the case.

32.  Great weight should be attached to indisputable records and contemporaneous documents when litigation was not in sight.  Amongst the documents were prison records and travel records of the Mother and the Child that the Father obtained which were greatly useful.  As can be seen from the analyses below, I view the Mother’s evidence with suspicion.  I prefer the evidence of the Father to hers where there is conflict, unless I state otherwise.

LEGAL PRINCIPLES

33.  The Convention on the Civil Aspects of International Child Abduction signed at the Hague on 25 October 1980 (“the Convention”) was incorporated into Hong Kong law by the Child Abduction and Custody Ordinance (‘the Ordinance’), Cap 512.  Its objective is to secure the prompt return to the state of their habitual residence of 2 categories of children (1) those who have been wrongfully removed from the state of their habitual residence to another contractual state or (2) wrongfully retained in a contractual state other than the state of their habitual residence. 

34.  In the first category a child only comes within it if it is wrongfully taken out, ie across the frontier of the state of its habitual residence. In the second category a child can only come within it if it has been first removed rightfully (for example under a court order or an agreement between the parents) out of the state of its habitual residence and subsequently retained wrongfully (for example contrary to a court order or an agreement between its two parents) instead of being returned to the state of its habitual residence : see the Preamble and Article 1(a) of the Convention which, though not incorporated into the Ordinance, has been a guiding principle in Hong Kong: BLW v BWL [2007] 2 HKLRD 193, §§1-3, Cheung JA; LM v HTS [2002] 1 HKC 194 per Hartmann J.

35.  The relevant articles of the Convention are as follows:

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

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

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

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

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

“18. The provisions of this Chapter [Chapter III on Return of Children] do not limit the power of a judicial or administrative authority to order the return of the child at any time.”

A.  Delay in application

36.  There is need for prompt return of the child wrongfully removed to or retained under Article 1(a) of the Convention. 

“52. … 'Prompt' in this context does not refer to the separate requirement (encapsulated in article 2) for Contracting States to 'use the most expeditious procedures available' to secure the implementation of the Convention's objects. 'Prompt' relates to the time lapse between wrongful removal or retention and the 'return of the child forthwith' to be ordered under article 12(1) where the interval is less than a year: to be contrasted (I repeat) with the less urgent obligation to order return envisaged where more than a year has run.” See AC v PC, HCMP 1238/2004, 14 June 2014,at §52, Hartmann J (as he then was), following Singer J in Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam).

“53. … As Thorpe LJ has commented in Re C (Abduction: Grave Risk of Physical or Psychological harm) [1999] 2 FLR 478, the mechanisms of the Convention are 'intended to be a hot pursuit remedy'.”

37.  Delay, in itself is not determinative.  The court recognizes that parties may take time to consider and conciliate.  Even so, a time would have been reached when a parent must have known that the discussions were going nowhere and he had no other option than to seek a remedy under the Convention. Although a parent may have taken steps to protect his rights in the immediate aftermath of the removal, the single, compelling inference to be drawn from his or her subsequent inactivity, might be that while initially he might have been determined to seek the return of the Child, over a period of time he or she came to accept the status quo and made a choice not to assert his or her rights seeking a prompt return.

38.  It is the Mother’s case that the Convention does not apply because of the Father’s delay of 4 years (computed from May 2010) in bringing this application resulting in the Child’s settlement in Hong Kong: Article 12(b).

39.  The Father consented to the removal of the Child in May 2010, but I am not satisfied that the Mother had told the Father that that removal was on a permanent basis for the following reasons:

(a) The Mother was herself on a good behaviour bond for 12 months since about 5 October 2010 for offences of dishonesty (forged credit cards) and was precluded from leaving Australia.  In applying to the Australian Immigration Authority to leave for Hong Kong, she stated in her email to her lawyer dated 19 April 2010 that she would like to go at least 1-2 months because of her mother’s illness. She pleaded that the Child’s Father was still in Australia and she would not run away.

(b) The Mother’s bail was only varied to permit her to travel to Hong Kong and return prior to 16 June 2010, although for reasons not apparent, she had been able to extend the return date.

(c) The Mother and Child returned to Australia in July 2010.  The removal was clearly temporary.

40.  Even by 2011, the Mother had not evinced any intention not to stay on as a family.  In fact, she had been living under the care of the Father’s extended family.  This is evidenced by her letters to the Australian Immigration Authority and the Presiding Magistrate who sentenced the Father, the contemporaneous photos of family gatherings and the statutory declarations of the Father’s parents, sister, aunt and grandmother.

41.  In the letter to the Australian Immigration Authority dated 21 January 2011, executed jointly by the Mother and the Father (then in prison),

(a) She applied for a “partner visa”, relying on her relationship with the Father. 

(b) She stated,

“My partner, [the Father], whose grandparents live in Haberfield. While his parents live in Queensland. We are purposed to wait for our baby’s born and moved in Haberfield in June 2009.

On that day [of birth of the Child], [the Father] and his younger sister were accompanied with me to the delivery room and give me support.  [The Father’s] other family members all came from Queensland to Sydney in order to meet our little one.  … All of us were so excited for [the Child’s] born (sic).”

(c) That letter contradicted the Mother’s assertion in her affirmation that during the 2 days she was in hospital since delivery of the Child, the Father only stayed for 20 minutes and that he literally left after learning that she gave birth to the Child. 

(d) That letter, read with contemporaneous photos of family members spending time with the Child in Australia, and the statutory declarations refuted any allegation by the Mother that the Father showed little interest in the Child but, to the contrary, showed that the extended family of the Father took great joy in the little girl’s company. 

(e) The Mother also stated that,

“[The Child] is really smart and she knows who love her. When I showed her my mother and [the Father’s] photo, she can recognize them and keep on kissing the photo. Even she did not meet her daddy for few months.

I came back alone on 9 January 2011 but [the Child] is stay with my family members in Hong Kong.  We are now looking forward to [the Father’s] sentence and hope that he can be released on 11 February 2011.  If this is the result, we will move up to Queensland settle down and take back our baby [the Child] to re-build our family.”

42.  In her letter to the Presiding Magistrate issued in about March 2011, pleading for leniency of sentence on the Father,

(a) It was stated that when the Child was 16 months old (ie about January 2011 when the Father was still in prison) the Mother was living in Haberfield with the great grandparents of the Father.  It was contrary to her assertion now on affirmation that when the Child was 2 months old and the Father was in jail, she moved to the home of her friend’s grandparents and assumed parental responsibility all by herself.  Again the family photos and statutory declarations all testify against the Mother. 

(b) She referred to the Father as,

“a man with great integrity and extremely dedicated to the family. He has an entirely peace-loving personality. … I trust him with all my secrets and share a great deal of my life with him. I believe [the Father] is a prudent, conscientious, hardworking and a caring person.

[The Father] told me that he is extremely embarrassed about his behaviour.  He is deeply regretted what he did wrong before.  He really wants to go back to the society but he was in the remand centre for more than 1 year until now.  He missed a lot of treasure time with our daughter and me.  He promised to take care and teach our daughter to be a good person.  He hopes that he can come out soon.  Then he can get a job and get back our daughter in order to start our family.”

43.  These letters were the clearest statements of the Mother’s intention to continue the family relationship with the Father and lack of intention to relocate to Hong Kong permanently even in 2011.  It was more likely than not that she was now making up allegations to blemish the Father’s character.

44.  No doubt the Child had been out of Australia for over a year between October 2010 and March 2012.  The Mother described the stay for the period of April/May 2012 as on the expressed understanding that it will be short and temporary to see if the Father had changed his ways after his prison term.  I find that assertion to be quite incredible.  If the stay were temporary, there was simply no need to move into a new unit and for the Child to attend day care 4 days per week when the Mother was not working.

45.  I therefore do not agree that there had been removal or retention of the Child on a permanent basis at any time before 25 May 2012.

46.  Rather, it was the Father’s own case to the Central Authority of Australia that the Child left him in July 2012, ie the time when the Mother returned without the Child.  In my view, the one year time under the Convention should be computed from this date.

47.  The Father consented to the removal in May 2012.  It is said that the promise was made about 4 months later.

48.  Even accepting that the promise was made, the Father had consented to wait for over 1 year from then on for the Child’s return. 

49.  By virtue of the matters in paragraphs 19 and 20 above, the Father had complained about the wrongful retention.

50.  Although one did not need to leave Australia to assert his rights under the Convention, I accept the Father’s version that he genuinely thought that he had to leave Australia to be able to get back the Child.  At the latest, by late 2013, the Father formed the idea of coming to Hong Kong but for the fact of his parole.  This demonstrated that he then had no belief that the Mother would return the Child in accordance with the promise.

51.  The court accepts that parents might take time to negotiate instead of rushing to litigation immediately.  The Father was waiting for voluntary return of the Child.  However, the Father has done nothing in terms of seeking advice or turning to the authorities from November 2013.  His skype messages to the Mother was about once or twice a month asking to talk to or skype the Child but there was nothing about his asserting his rights for summary return of the Child.  He was far from making “hot pursuit” as contemplated by the Convention: AC v PC, at §52. 

52.  The delay between February and August 2014 was not the Father’s fault. Afterall, even the authorities he went to did not point him to the right direction. 

53.  Similar to the situation of deliberate concealment of the whereabouts of a child, the wronged parent’s ignorance of his rights under the Convention cannot suspend or “toll” the time under Article 12(1) of the Convention: AC v PC, at §55.

54.  I find that at the time of this application, 2 years have elapsed since the wrongful retention in July 2012. 

B.  Settlement of the Child in Hong Kong

55.  Under Article 12, the fact that proceedings under the Convention are commenced more than one year after a wrongful removal or retention does not alter the obligation of our courts to order the return of the child (albeit not necessarily “forthwith”) unless it is demonstrated, as an issue of law and fact, that the child is now settled in its new environment:  AC v PC, at §§34 and 41. 

56.  If it is found that they are settled then either the Convention ceases to apply or, in terms of Article 18, the court must decide whether, in the exercise of its discretion, the children should remain here, their future to be determined by the Hong Kong courts, or whether they should be returned to their habitual residence, their future to be determined by the courts of that country: AC v PC, at §§41-42. 

57.  Article 18 does not create a residual discretion to make a return order under the Convention.  Its purpose and effect are to make it clear that the Convention in no way limits or precludes a requested state (or jurisdiction, such as Hong Kong) from ordering return pursuant to its own domestic laws: AC v PC, at §§41-42, following Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam), Case No. FD03P02308, per Singer J.

58.  To order return of a child who has settled in the new environment can be fundamentally disruptive, regardless of the moral culpability of the abducting parent:  AC v PC, at §54:

“54.   But, to use the same language, what happens when the hot pursuit turns cold? Surely a point of transition must be reached when the Convention's objective of prompt return by way of summary proceedings loses its rationale and when to order the return of a child, notwithstanding any moral culpability on the part of the abducting parent, becomes fundamentally disruptive and (almost as bleak) a fundamentally artificial process. In his judgment, Singer J concluded that art.12(2) defines the point of transition :

‘Established settlement after more than one year since the wrongful removal or retention is the juncture in a child's life where the Hague judge's legitimate policy objective shifts from predominant focus on the Convention's aims (for the benefit of the subject child in particular and of potentially abducted children generally) to a more individualised and emphasised recognition that the length and degree of interaction of the particular child in his or her new situation deserve qualitative evaluation, free of Hague Convention considerations and constraints. If (by analogy with the judicial response to the exercise of the article 13(b) discretion) too high a threshold is set for establishing settlement the consequence is not so much that the Hague aim of speedy return will be frustrated, but rather that a child who has in his or her past already suffered the disadvantages of unilateral removal across a frontier will be exposed to the disruption inherent in what for that child would be a second dys-location, potentially inflicting cumulative trauma.’ ”

59.  No gloss should be put on the test of whether the children are now settled in their new environment.  The test that “requires a degree of settlement which is more than mere adjustment to surroundings, or that the word ‘settled’ has two constituent elements, a physical element and an emotional constituent” should not be regarded as accurately stating the law. See AC v PC, at §59, adopting the contemporary approach of the Australian courts.

60.  The burden on the person seeking to demonstrate settlement is a significant one which may only be accomplished by considering all relevant facts.  As Singer J expressed it inRe C (Abduction: Settlement) [2004] EWHC 1245 (Fam) Case No. FD03P02308:

“The last thing that I wish to do is to attempt to make things clearer by applying a further coat of gloss, when my instinct is that I should try to reposition myself, if at all, closer to the unvarnished words of the Convention. But by way of comment may I make the point that it seems to me that there is room, in the evaluation whether settlement has or has not been achieved in the particular case, to encompass whichever evidential strands appear most relevant to that consideration. Thus, surely it must be going too far to say that the future can be ignored: take the case of an abducing (sic) parent who after many years in country A, or town B or house C, at the relevant time has the firm intention and is in the midst of making plans to achieve a move to a different country, town or home. At the other end of the spectrum may be some more speculative or distant but nevertheless fundamental uncertainty about the pattern of the child's life. In between may be doubts about immigration status ...”

61.  The Child has been physically in Hong Kong for over 4 out of 5 years since her birth.  She has obtained permanent residency in Hong Kong since September 2011 at the age of 2 years (probably without the knowledge of the Father).  She speaks mainly Cantonese and very little English.  She is studying K3 in Hong Kong and is engaged in a lot of activities and competitions.  Her future education plans are unknown.

62.  According to the Mother, since about October 2010, the Child has been brought up in the home setting of Madam H, who is not related to the Mother. Given what the Mother told the Immigration Authority, the Child could not have been living with Madam H before January 2011.  She could have been living with the Mother’s family or the undisclosed friend before living with Madam H on an unknown date.

63.  I accept that it is not uncommon for parents to work abroad, leaving the child in the hands of a carer in Hong Kong.  The carer may or may not be a relative.  However, in all the authorities referred to me under the Convention, the abducting parent was residing with the child or staying with the child for the bulk of the time notwithstanding that the abducting parent had to work outside the state to which the child was abducted and the child was left in the hands of a carer (eg EW v LP, HCMP 1605/2011, 31 January 2013, Deputy Judge B Chu).

64.  The Mother is a Hong Kong permanent resident.  However, she has been residing in Australia for 7 years since 2007 and has acquired permanent residency there.  She has lived apart from the Child for 4 years since the Child was 1 year old (except, of course for the time they went to Australia for 2 months in 2012).  She has not even told the court her address and occupation in Australia. 

65.  From her movement records, the Mother was away from Australia for a total of 3 months in each of 2011, 2012 and 2013 respectively.  In 2014, she was in Australia from February to mid September (a month before the present application was made).  She did not even say if she was with the Child in Hong Kong at any time when she was out of Australia.

66.  She gave an address in a public housing estate in Hong Kong as her residence.  The lease was granted to her for 58 days only since 2 January 2014. There was no explanation for this short period.  Mr Chan refers to clause 1 of the tenancy agreement which continued the tenancy, but he very prudently decided not to push this point.  The indisputable evidence is that the Mother has been out of Hong Kong since the grant of the tenancy there and the Child could not be living there alone.  This Hong Kong residence was but a smoke screen.

67.  The Mother talked little about her own family except that her mother had died.  The court knows nothing about the role of E or other family members in the upbringing of the Child.

68.  The Mother did not give evidence of what jobs she has had in Hong Kong or that she is currently finding a job here.

69.  Having regard to paragraphs 64-68, the Mother’s intention of permanently staying in Hong Kong is but a bare assertion.

70.  I accept that under Article 13(b), it is settlement of the child, not the parent, that is relevant.  However, I can hardly find the child to be settled in a place where the abducting parent is not there, her stated intentions as to residence cannot be relied on and the Child has been left in the hands of a stranger.

71.  I have considered the effect of an order that will cause the Child to be uprooted from Hong Kong.  The timing of this application is important.  The change from kindergarten to primary school is an important but distinct phase in a child’s life in Hong Kong. The Child will be enrolled in a primary school in September 2015.  An order made by this court now for the return of the Child to Australia will mark a clean break of the Child from her kindergarten education, in good time to start a new phase of education in Australia in about February 2015.

72.  Taking all circumstances together, notwithstanding the application was made over a year since the unlawful retention of the Child, I am not satisfied that the Child has settled in Hong Kong.

C.  Consent or acquiescence of the Father

73.  The burden is on the Mother who opposes the return to substantiate one of the exceptions under Article 13(b).  The standard of proof is one of balance of probabilities.

74.  In EW v LP, HCMP 1605/2011, 31 January 2013,Deputy Judge B. Chu explained the difference between consent and acquiescence thus:

“37. Consent, if it occurs, precedes the wrongful removal or retention; acquiescence, if it occurs, follows it. Consent is not defined in the Convention, but the question whether a wronged parent consented is a question of fact. The issue of consent is a very important matter; the existence of consent needs to be established on the balance of probabilities by clear and cogent evidence, although it is possible in an appropriate case to infer consent from conduct. The consent should be to the child’s permanent removal or retention.” (emphasis added)

75.  Acquiescence depends on the subjective intention of the wronged parent:

“(1) For the purposes of article 13 of the Convention, the question whether the wronged parent has ‘acquiesced’ in the removal of retention of the child depends upon his actual state of mind. As Neill LJ said in In re S. (Minors (Abduction: Acquiescence) [1994] 1 FLR 819, 838: ‘the court is primarily concerned, not with the question of the other parent’s perception of the applicant’s conduct, but with the question whether the applicant acquiesced in fact.’

(2) The subjection (sic) intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

Re H (minors) (Abduction: Acquiescence) [1998] AC 72, House of Lords, per Lord Brown-Wilkinson; followed in Re L [2004] 1 HKLRD 655, per Hartmann J (as he then was) and EW v LP, per Deputy Judge B Chu, at §41.

76.  The complaining parent must prove an event occurring on a specific occasion which constituted the act of wrongful detention: BLW v BWL, §55. However, it is not necessary to point to a specific date as when acquiescence took place. A state of consent or acceptance might emerge over a period of time and it is sufficient for the abductor to have shown that between about a period, the wronged parent came to accept the wrongful removal or retention: Re L.

77.  Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child: In re H (minors) (Abduction: Acquiescence) [1998] AC 72 at 88 F-G. 

78.  The Father consented to the Child leaving Hong Kong in May 2012.  It was clearly for the parties to cool down and there was no indication that the consent was to permanent removal.

79.  The Father did object to the Mother leaving the Child in Hong Kong since July 2012.  From that point onwards the retention in Hong Kong has become wrongful.  He was interested in finding out from the Mother the whereabouts of the Child but to no avail.  His quarrels with the Mother over dinners could not have led her to believe that he had consented to the wrongful retention.

80.  As for the promise, it was an easy allegation to be made by the Father but difficult to prove.  The Father was unable to produce the enrolment record of the Child for February 2014.  On the one hand, the Mother had already enrolled the Child in a school in Hong Kong in September 2012.  It appeared unlikely that she would have consented to bring the Child back in February 2014.  On the other hand, there was no suggestion that the Father knew of the enrolment.  Rather, there was evidence in the Father’s case note report dated 23/5/2013, whilst he was on parole, that he considered the Child as “overseas in Hong Kong with [   ] family for a holiday.  His subjective belief and intention could not be that the Child was living permanently in Hong Kong.

81.  When one takes a global view of the Father’s evidence, he had been frank and correct substantially on the facts, except for some memory error on dates. His evidence had been corroborated by contemporaneous documents whereas the Mother’s was not so.  There was no reason why he suddenly suggested to E about going back to Hong Kong except to follow up the Mother’s refusal of return.  I am more inclined towards the view that the promise was made.

82.  The promise evidenced an agreement between the parties for the Child to stay out of Hong Kong on a non-permanent basis with an “expiry date”.  I am not satisfied that there had been consent or acquiescence for the purpose of the Convention.

D.  Grave risk of physical or psychological health of the Child or putting the Child into an intolerable situation

83.  The risk to the Child must be “grave”.  It is not enough that it be real, as in the asylum cases.  “Intolerable” is a strong word, but when applied to a child must mean “a situation which this particular child in these particular circumstances should not be expected to tolerate”.  Article 13(b) is looking to the future: the situation as it would be if the child were to be returned forthwith to the child’s home country.  The situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when the child gets home: In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144.

84.  The mother’s subjective perception of harm may be sufficient to make out a defence under Article 13(b): In re S (A Child) (Abduction: Rights of Custody) [2012] 2 AC 257.

85.  The Mother relies on the past convictions of the Father to assert grave concerns that the Child would be subject to a grave risk of physical harm of the Father who remains a drug abuser, and that she will be living in intolerable circumstances, potentially even used as a means to transport drugs for the Father.  The Father works 6-7 days a week and is not in a position to care for the Child.

86.  The Mother’s allegations are easy to allege but difficult to prove.  The objective circumstances, however, speak in favour of the Father.  The offences involved did not show the Father to have used violence.  Even if one accepts the Mother’s evidence that he kept a gun under his bed in 2009, he only took out the gun when he heard noises at night and went downstairs to check the source of the noise.  It was an act of protection of himself and the Mother rather than an attack with firearms.

87.  The Father, on the other hand, asserts that it was the Mother who was associated with drugs and that he shouldered the criminal responsibility for her.  It is not necessary to resolve these cross allegations here.

88.  I do not regard the past convictions of a person necessarily meant that he cannot be a good father.  In the present case, the Father has demonstrated his keenness in seeing the Child over the years.  Whilst the Child was living with him, he had spent time with the Child notwithstanding he had to work 6-7 days a week as a chef.  There was no evidence that the Father used violence on the Child whilst they were living together. 

89.  He has also demonstrated that he has turned over a new leaf.  He had passed his parole period without complications.  He kept his appointments on a weekly basis.  He passed random drugs test.  Smoking does not necessarily mean drug abuse. The Mother’s allegations of drug abuse had no bases. 

90.  Likewise, when she said she discovered suspected packets of white powder in the Child’s backpack, there was no evidence of her confrontation with the Father on that.  Her allegation is not credible.

91.  All of these only served to illustrate that the Mother might have been exaggerating to blemish the Father’s character.

92.  Mr Chan, counsel for the Mother, submits that relocation of the Child would present a grave psychological risk as the Child would be torn from her Mother and forced to settle in a new and English environment  which she is not used to, thus putting her in an intolerable situation.

93.  In my view, it lies ill in the mouth of the Mother, having lived apart from the Child herself, to claim that the Child would be torn from her. Further, the kindergarten teaches English, as can be seen from the report card. The Child might not be entirely fluent in English but at her age there should not be difficulty in picking it up.

94.  For the Child to leave Hong Kong after 4 years (even on the Mother’s case) with Madam H may involve some emotional disturbance to the Child but I am far from satisfied that it will be intolerable.

95.  Further, the Convention does not require a child to be returned to the applicant.  It all depends on the consequential directions.

FINDINGS

96.  I find that even considering the attempts of the Father in seeking voluntary return of the Child, the Father has delayed in taking out this application.  It was more than one year after the Father first considered that the Child had been wrongly retained in Hong Kong since July 2012.  Despite that, I do not find that the Child has settled in Hong Kong.  The Father had consented to the removal of the Child but never consented to or acquiesced in her retention in Hong Kong.  The defences of risk of exposure to physical or psychological harm or placing her in an intolerable situation are not established. In any case, I find that with the habitual residence of the parents in Australia, it is most appropriate for the Australian courts to deal with issues of custody.  I exercise my discretion under Article 12 (para 2) to order the return of the Child to Australia.

CONSEQUENTIAL ARRANGEMENTS

97.  It is in the middle of a school term and the Christmas break is likely to start only in the week of 22 December 2014.  I order that the Child shall return no later than 7 January 2015. 

98.  This court is only told of the Father’s home but not the Mother’s home in Australia.  The Father’s parents are willing to take care of the Child.  The Father’s sister and her children live close by.  Given that the Child has lived apart from the Father for some time, I do not think it is desirable to order the Child to be sent alone straight to the Father.  It is not desirable for the Child to be sent to the home of the Father’s sister either, as she, by now, will be a stranger to the Child. 

99.  The Mother shall accompany the Child back to Australia.  Either of them should be at liberty to stay with the Child at the home of the Father or such other residence arranged by the Father for her and the Child.  The Father shall use his best endeavours to ensure that any residence of the Child shall be free from smokers, including himself.

100.  For transitional arrangements whilst the Father is in Hong Kong, I have taken into account the need for the Child to attend school and activities, do homework and go to bed at 8:30 pm.  The Mother shall arrange for the Father to have access to the Child when the Child is off from school until she has to attend activities:

(i) On Tuesdays – from 12 to 2 pm;

(ii) On Wednesdays – from 12 to 5 pm;

(iii) On Thusdays – from 12 to 5 pm;

(iv) On Fridays – from 12 pm, and the Father is at liberty to take her to theme parks;

(v) On Saturday or Sunday, the Father is at liberty to see the Child for not less than 4 hours.

101.  The Mother or Madam H shall be at liberty to accompany the Child at all times at which the Child is with the Father in Hong Kong and shall encourage the Child to build rapport with the Father.

102.  The parties are at liberty to agree other terms for my approval.  In the event of any disagreement, they shall come back to see me on 22 December 2014 at 10:00 am.

103.  On costs, I make an order nisi that the Father shall have the costs of this application.

104.  I thank counsel for their assistance.