TE v. LSY

HCMP 2357/2024

[2024] HKCFI 3652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2357 OF 2024

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J U D G M E N T

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INTRODUCTION

1.  This is an application for the return of GT (“the child”) to Italy under the Child Abduction and Custody Ordinance, Cap 512, and the Hague Convention on the Civil Aspects of International Child Abduction, 1980.

2.  The child was born on xx March 2022. He is now two years and nine months old.

3.  The originating summons was taken out by the Secretary for Justice, acting in his capacity as the Central Authority of Hong Kong under the Hague Convention, on 13 November 2024. He did so at the request of the Central Authority of Italy. The mother and the father of the child were named as the 1^st and 2^nd defendants respectively.

4.  At the directions hearing on 20 November 2024, I granted leave for the Secretary for Justice to withdraw from these proceedings and for him to be replaced by the father, who has since become the plaintiff in these proceedings. The mother is now the only defendant. The Secretary for Justice was granted leave to observe these proceedings.

5.  As directed, parties have lodged an agreed chronology and an agreed list of issues. There is only one issue set out in the agreed list. The issue is whether the father has consented and/or acquiesced to the removal or retention of the child in Hong Kong.

6.  It is not disputed that the mother and the child left Italy for Hong Kong on 25 June 2024. That would be the date of removal for the purpose of this application.

7.  The mother’s case is that in an oral discussion between her and the father on 2 June 2024, the father expressly consented to the mother relocating the child with her to Hong Kong permanently. On the other hand, the father’s case is that he only gave consent for the mother to travel with the child to Hong Kong for the summer only.

8.  The mother’s case is further that if there was no consent given on 2 June, consent can be inferred from the conduct of the father after that date. As a further alternative, the mother says that the father subsequently acquiesced to the removal. For this, she relies on the father’s conduct from 25 June to 10 July. The latter date is the date on which the mother says the father reneged on the parties’ agreement for the permanent relocation of the child. On the father’s case, it was on 10 and 11 July that the mother informed him of her intention to retain the child in Hong Kong permanently and to enrol him in pre-nursery class here. The father thus says that the child was wrongfully retained in Hong Kong as from that time.

9.  It is common ground that as of the date of removal, namely 25 June 2024, the place of habitual residence of the child was Italy.

10.  In the hearing, the father was represented by Mr Calvin Lo of Messrs Stevenson, Wong and Co, and the mother was represented by Miss Vivien Leung, counsel.

BACKGROUND

11.  The father is Italian and the mother is Hong Kong Chinese. They are now both 35 years old. They were married on xx November 2019 in Hong Kong.

12.  The child was born on xx March 2022 in Italy and had been living there prior to 25 June 2024. Since birth, the child visited Hong Kong twice. The first visit was in September 2023 and he was here for about six weeks. The second visit was in January and February 2024. He was here for just over five weeks. I shall refer to the latter trip as “the early 2024 trip” below.

13.  It is not in dispute that while the mother was in Italy, she was a full-time housewife. The father works as a chef.

THE PARTIES’ CASES

14.  I set out below the parties’ respective cases.

Prior to 2 June 2024

15.  According to the mother, for the past two years, there had been a gradual crumbling of the marriage and she had tolerated the situation the best she could for the sake of the child. She also suspected that the father had an affair. After she returned to Italy from the early 2024 trip, the father told her that he no longer loved her. The mother became extremely worried about the future, in particular for the child and his education. What the father said to her brought the breakdown of the marriage into the open. The mother says that they managed to let matters drift for a few months until the evening of 2 June when they had long discussions about the way forward.

16.  The father accepts that the marriage had faced a lot of challenges since before the child was born and that he and the mother had frequent disputes and gradually grew apart. After the child was born, the relationship did not improve. The two of them were having different views on how the child should be brought up. The father says that these differences often resulted in fraught and unhappy arguments. But he always tried to maintain the marriage because he wanted the child to grow up in a whole and complete family. He denies that he was having an affair.

The conversation on 2 June 2024

17.  It is the mother’s case that on 2 June, the father expressly gave consent for the permanent relocation of the child to Hong Kong. The mother said this in her affirmation:

“3. … We had discussed at length and in detail about the breakdown of our marriage, where to petition for a divorce, where our son, GT, nicknamed xx (hereinafter ‘[G]’) and I will live and the future of our son and his schooling. By 2 June 2024, agreement was reached and our departure from Italy to relocate to Hong Kong was agreed by ET [ie the father] ...

…

10. Ultimately, we did reach agreement that [G] and I would relocate to HK as a crucial consideration leading to ET’s consent for [G] to relocate to HK with me was ET’s choice of venue for divorce. ET did not want to go through divorce proceedings in Italy as he believed it was unfair for the male party. I am given to understand that in Italy, divorces are difficult and take a very long time. Further, upon divorce, the husband/father must vacate and leave the matrimonial home and find alternate housing. Furthermore, the state stipulates that maintenance for the wife and child be provided for by the husband/father. Quite often, the money is taken out from the salary or subsidy received by husband/father and deposited directly into the wife/mother’s bank account.

11. ET was not keen for the above to occur and thus after detailed and lengthy discussions between us, he finally agreed and accepted that the best way forward is for me to take [G] back to HK to start school here, get vaccinated in HK as ET trusted the medical authorities and facilities here. He also told me to find a HK lawyer and start divorce proceedings in HK. This was the reason why I had taken [G]’s health papers, birth certificate and our marriage certificate as ET wanted me to start divorce proceedings in HK.” (underline added)

18.  The mother relies on some notes which she says she made of the 2 June conversation. Copies of these notes are exhibited to her affirmation. They contain three pages, including the original text in typed Chinese, accompanied by English translation prepared for this application. She says in her affirmation that these notes are only about one quarter of her full notes. I should say at the outset that the notes themselves are not dated and it was not stated in the affirmation when these notes were made.

19.  In her submissions, Ms Leung highlighted the following:

“幼兒園我認為係香港讀先 而且我要番香港生活 自然佢都可以係呢個時候香港滿足到佢成長既需求！慢慢 佢就接受左我既唸法，同埋再三強調要以xx為先 做咩都要係對佢最好既選擇！”

“我都有講到足夠既愛對於xx成長黎講 真係真係好重要！依家雖然住埋一齊 但我地之間冇左愛 對xx黎講都係好大既影響！我都唔希望佢見到我地當大家透明咁同一屋簷下生活，好快佢就會明白到有爸媽一齊住都唔代表有足夠既愛同快樂！！真正開心 滿滿既愛對人格成長真係好重要！我地屋企又人多 朋友又多 大家都咁鍚xx 佢會得到好多既愛！然後佢都同意！然後我就話咁香港9月開學，我睇下機票啦，要盡快番去先可以搵學校。” (underline added)

20.  The father’s case on the 2 June conversation is as follows.

21.  He says that after the mother returned from the early 2024 trip, the two of them engaged in many heated arguments about the future of their marriage, how and where the child should be brought up, and eventually the possibility of divorce. However, he stresses that the discussion on 2 June was a continuation of their many heated arguments. His position has all along been that the child should stay in Italy and receive education there. He is the only person with a full-time employment and a stable income to support the family and he believes that the living environment and schooling options in Italy are suitable for the child.

22.  The father denies that he gave his consent to the permanent relocation of the child to Hong Kong in the 2 June conversation. Instead, he only agreed that the mother could bring the child to Hong Kong to spend the summer there with her family and relatives.

23.  This is what he said in his affirmation about the conversation:

“From my recollection of our discussions in June 2024, I only reluctantly agreed that the Mother could bring [TG] to Hong Kong to spend summer with her family and relatives. At first, I did not agree to the trip because I did not think [TG] should spend his summer in Hong Kong after having spent about 6 weeks there just a few months prior. I missed [TG] very much when the Mother took him to Hong Kong in January 2024 and I could not withstand the thought that [TG] would be taken away from me for weeks again. However, the Mother was very adamant about the trip. She said that she must go to Hong Kong and Zhongshan to take care of her nephew (who had to undergo surgery) and she wished [TG] would be able to spend some time with his cousin as well. I agreed to the trip in the end, thinking that it could also be an opportunity for us to take a break from the never-ending arguments and to reflect on the future of our marriage. I never imagined that the Mother would refuse to return [TG] to Italy ever again.”

Between 2 and 25 June 2024

24.  In these proceedings, the mother relies on subsequent conduct of the parties and the communications between them to show that the father had in fact given his consent on 2 June.

25.  First, shortly after the discussion, the mother purchased single journey tickets for her and the child to travel to Hong Kong and the father knew about that. Miss Leung submits that this objective facts shows that the parties had agreed that the child would relocate to Hong Kong permanently. Furthermore, for the early 2024 trip, return tickets were purchased. And that was when the intention was to return back to Italy after the visit to Hong Kong.

26.  On the other hand, the father explains that single journey tickets were purchased because the mother told him that she did not have a definite return date yet. The father says that he did not think too much about it because it was not the first time that the mother had travelled on a single journey ticket to Hong Kong. When the mother was pregnant with the child, she also travelled to Hong Kong on a single journey ticket. (At the hearing, Miss Leung confirmed on behalf of the mother that that was indeed the case but explained that it was because of the COVID situation that this arrangement was made.)

27.  Second, on or about 25 June, the father signed a consent form, which read:

“I give permission for my child [TG] to visit to any country without limit of time, accompanied by [LSY] (Mother of [TG]).” (underlined words appear as handwritten in the original)

28.  In her affirmation, the mother explained that she was told that a single parent travelling with a child would need a form to be signed by the non-travelling parent, otherwise she might encounter queries from the Italian immigration authorities. She therefore downloaded a form and requested the father to sign to indicate his consent. The mother says that the father duly signed, being fully aware of the implications and that the mother only had a single journey ticket. The mother stresses that for the early 2024 trip, no such consent form was signed by the father.

29.  In her submissions, Miss Leung highlights the phrase “any country without limit of time” in the consent form. She submits that the wording indicates that the father understood that it was a permanent relocation.

30.  On the other hand, the father says that the mother told him that the consent form was required at the immigration checkpoint because he, as the father, would not be travelling with her. He had a glance of the terms and thought that they were quite standard. In any event, Mr Lo submits that while the form did not specify the travelling destination and the travelling time, the heading of the form was expressly stated to be “Permission to travel from non-travelling parent”. Nowhere in the form did it say that by signing the form, the father was giving consent to the permanent relocation of the child. He also points out that the mother put down the matrimonial home address in Italy as the address in the form.

31.  Third, it is the mother’s case that after the 2 June conversation, she tidied up all her and the child’s belongings from their rooms and packed them all in bags, parcels and boxes. They were then stored away in cupboards, given away or thrown away. In particular, the thick heavy winter clothing needed only in Italy were all packed away or given away. By the time of their departure, the bedroom where she and the child slept and the child’s playroom were almost empty and clear of all the belongings. She exhibited to her affirmation some photographs showing the rooms before and after the packing.

32.  The mother further says that the father in fact helped her tidy up the rooms. The mother arranged for some spare items to be sent to her friend, Ms LMK, who lives in Italy. In her haste, however she made a mistake. Instead of putting down LMK’s name and address on the parcel, she wrote down her own name and her address as the recipient. The parcel was later sent to the parties’ home after the mother left Italy. In fact, it was the father who helped resend the parcel to LMK later on.

33.  To this, the father says that the mother told him that she wanted to pack for her trip and tidy up and reorganise her and the child’s belongings. He therefore helped her pack. As regards the sending of the parcel, the father says that the mother often sent items and goods to her friends via courier service. It was therefore nothing extraordinary that he helped the mother resend her parcel to LMK at her request. He did not know what was in the parcel.

34.  Fourth, the mother points out that it was the father who escorted the mother and the child to the airport on 25 June.

35.  To this, the father says that it was only natural for him to escort them to the airport to see them off for their summer trip. After all, the father was very attached to the child and he knew that he would not be able to see him for several weeks.

36.  Fifth, the mother had told two of her friends about the agreement she reached with the father on the relocation shortly after the 2 June conversation. The two friends are LMK and SLT. Both have made affirmations in these proceedings to support the mother’s case.

37.  On 4 June, the mother spoke to LMK on the phone. She told LMK what was discussed in the 2 June conversation. After that, she sent LMK WhatsApp messages saying that she was very happy and she could return to Hong Kong normally. On the following day, LMK shared the news on a Facebook group stating that a friend of hers (ie the mother) had sorted out the matter with her husband (ie the father) and the husband had agreed that her friend could take the child back to Hong Kong at the end of June.

38.  On 19 June, the mother and SLT had some exchanges on WhatsApp. The mother told SLT that she would be arriving in Hong Kong on 26 June. She expressed her relief that she could finally leave. The two of them also had two long telephone conversations in the early morning of the following day about the 2 June conversation.

From 25 June to 10 July 2024

39.  On 25 June, the mother and the child boarded the plane to Hong Kong. From that time onwards, the father and the mother had been exchanging messages on WhatsApp. The parties have exhibited copies of these messages to their affirmations. The mother relies on some of these messages to support her case that the father had consented to the permanent relocation in the 2 June conversation.

40.  First, the mother contends that the messages show that the father had an emotional breakdown after seeing her and the child off at the airport. And this can only be consistent with the fact that he had consented to them leaving Italy for good.

41.  She relies on the following messages sent on 25 and 26 June:

“Mother: Now is taking off

[Voice message]

Father: Ok

It’s very difficult to go inside home and see his things around but he is not here

I should throw the pampers but I didn’t want

Mother: We are arrived Dubai

[Reply to: It’s very difficult to go inside home and see his things around but he is not here]

I understand that. It’s too difficult

[Reply to: I should throw the pampers but I didn’t want]

Keep for awhile

Father: [Reply to: Keep for awhile]

No too dirty

[Reply to: We are arrived Dubai]

Ok

Mother: [Reply to: No too dirty]

Very smelly”

42.  She also relies on the following messages sent on 27 June:

“Father: Yesterday i cried all day

And also when you were on the flight

…

Mother: [Reply to: Yesterday i cried all day]

I understand this is the very hard time”

43.  Miss Leung submits that the father’s reaction was dramatic and that can only be consistent with there being a prior agreement that the mother and the child were leaving Italy for good.

44.  There was no specific response to the above in the father’s reply affirmation.

45.  It is the mother’s case that in early July, she started looking and applying for schools for the child. She began discussing with the father about the choice of schools.

46.  On 10 July, she and the father had a long conversation on WhatsApp. It lasted for 23 minutes. According to her evidence, she explained the procedure in Hong Kong to the father. The father raised no objection to her looking for a school.

47.  Immediately after the conversation, the father and the mother exchanged messages about school options. The following messages were exchanged:

“Mother: [Video call (23 min)]

Father: You need to know that you wanted him to stay there but no me

Just because you couldn’t work here

And now you took him there

So i’m not happy

And even if he would start the school in September 2025 i don’t understand why he cannot stay with me here a few months

And think about how he may feel because until now he doesn’t look happy to be there, can see from his face

Mother: [Reply to: You need to know that you wanted him to stay there but no me]

This is we decided before I come back. U still think because of the job to make me come back? I ask u will u think about to come back to hk before u told me no more love. Then u said no. I come to Italy because we love each other.

[Reply to: And even if he would start the school in September 2025 i don’t understand why he cannot stay with me here a few months]

K1 start from 2025. But N class start from this November. And u said u will come to hk to see him. Now he is very happy, u see him on the phone only 20mins per day how can u said he is no happy. I know u are not happy because can not see him. But since we have to separate for sure I will not stay in Italy.

Father: I don’t understand why he cannot do schools in here

What’s N class?

You took him away from me

[Deleted message]

The school didn’t ask the consent of the father as well?

Mother: [Reply to: What’s N class?]

Pre kindergarten

[Reply to: The school didn’t ask the consent of the father as well?]

They ask. I told them u are working in Italy. Now not in HK.

Because in hk will start better and learn more and no need vaccine. Because that I will stay in hk and taking care everything for school and life. Because in hk I can also earn money for him and bring him to travel more and I have more friends in here can play together. There is so many reasons that we already talk about it.

I didn’t take him away from u as u said before. I didn’t said not allow u to see him. we already talk about this that u come to hk to see him. And later also will consider the primary school in Italy. I understand that now can not see him at home is very hard to u. I also can not live without him.

Father: You forgot that you also blackmailed me

Important is that you don’t forget that he is also italian

And remember that i’m not stupid

Mother: No. I just tell u the truth. I just tell u if we stay in Italy we divorce in Italy than this is the law in ITALY.

Father: You said it in a different way

Mother: [Reply to: And remember that i’m not stupid]

Why are u said this. I always respect u. But u always fucking me and rude to me. Did I say anything?

Father: [Reply to: Why are u said this. I always respect u. But u always fucking me and rude to me. Did I say anything?]

I didn’t do as you say

Mother: U know very well why we going to be like this.

[Reply to: Important is that you don’t forget that he is also italian]

Nobody can change it.

I don’t want to argue with u. I wish that I can keep calm when u calling me everyday.

Father: In this fucking world fathers are always considered useless

[Reply to: I don’t want to argue with u. I wish that I can keep calm when u calling me everyday.]

This is what i’m doing

But you have to understand that i never really wanted for him to live in there

I just tried to find the best solution

Mother: [Reply to: In this fucking world fathers are always considered useless]

Also mother in your world.

Father: In my world father doesn’t count

Mother: [Reply to: I just tried to find the best solution]

No. Only that u move to hk. We earn more money give a better life for him. … But that will not gonna happen.

Father: I cannot work in HK

Mother: [Reply to: In my world father doesn’t count]

Also mother. The mother of your son.

Father: You know it well

Mother: [Reply to: I cannot work in HK]

I know

Father: [Reply to: Also mother. The mother of your son.]

The mother everywhere is important

Mother: That’s why no better solution.

Father: Why i cannot keep him before he start the N class?

Mother: [Reply to: The mother everywhere is important]

I wish u can understand that all the mother

[Reply to: Why i cannot keep him before he start the N class?]

U can come to hk. he can not stay there with your mother and u go to work. N class start from end of August.

Father: Oh now from end of august and not September?

Mother: K1 is september

Father: Sorry i mean N class start in august but before you said november

Mother: N classic is end of August is the school I already ask. Most of the school start on 1 November

The one I ask is 22 August. one week different

Because I still asking the other school. I wanna choose the better one.

Father: [Reply to: U can come to hk. he can not stay there with your mother and u go to work. N class start from end of August.]

This is your decision not mine

And you are taking all decision without telling me which school and everything

Mother: Of course I will tell u everything

Now I’m finding the english website

https://www.naac.edu.hk/tcdn

[Reply to: https://www.naac.edu.hk/tcdn]

Didn’t see english website. This one is for N class

Father: So it’s not international?

Mother: https://www.gpkg.edu.hk/en/

https://sunisland.edu.hk/

These two is for Kindergarten

[Reply to: Didn’t see english website. This one is for N class]

This is N class not international.

Father: So in N class he will not even learn english

Mother: [Reply to: So in N class he will not even learn english]

They learn english.

[Reply to: https://sunisland.edu.hk/]

This is international

International N class is around 100000-130000/year

Father: Shit

[Reply to: They learn english.]

Ok” (emphasis added)

48.  The mother contends that the above messages show that she and the father were discussing the school options in Hong Kong. Had the father not previously consented to the relocation, he would not have discussed the choice of schools with the mother or even suggested the child attend an international school.

49.  In her submissions, Miss Leung highlights that throughout the messages, the mother repeatedly referred to the fact that the parties had already “discussed” and “decided” on the relocation. See some of the underlined extracts above.

50.  On the other hand, the father says that in these messages, it can be seen that he raised objection for the child to stay and study in Hong Kong. He actually objected to the schooling option proposed by the mother. The father says that these messages clearly show that there was no prior consent given by him. See the extracts in bold.

After 10 July 2024

51.  The mother and the father exchanged further messages on the following day, 11 July:

“Father: Nobody want you to separate from him, i just want the best solution but you still didn’t find it, i just think it is not fair that i am the only one who need to come to HK to see him and he cannot stay with me here even for a while.

As a father i have the right to share the same time as you

Mother: We already talk about this before. what about one day when he study in Italy, then should I say not fair? we talking about whats good for him, not for us right?”

52.  The father’s case is that by then it became clear to him that the mother was wrongfully retaining the child in Hong Kong. He therefore sought assistance from a lawyer in Italy. He filed a complaint report to the Central Authority in Italy on 19 July.

53.  The father and the mother exchanged further messages on 15 July:

“Mother: I applied the school for N class. Now need to waiting for reply. They will call in August.

https://www.naac.org.hk/?lang=en

This one

Apply first. Because it was full, so many child

Father: …

[Reply to: I applied the school for N class. Now need to waiting for reply. They will call in August.]

I told you i strongly disagree that he go to school in there

He must go to school in here

[Video call (No answer)]

[Video call (No answer)]

[Video call (No answer)]

Why no answer?

[Video call (No answer)]

[Video call (20 sec)]

Mother: We already decided before. He will go to school in HK.

Father: You decided not me”

54.  On 12 August, he also wrote an email to the nursery school in Hong Kong proposed by the mother to clarify that he as the father did not consent to the mother’s application for the child to study at that school.

The mother’s case

55.  Based on the above evidence, it is the mother’s primary case that in the 2 June conversation, the father gave his express consent to the permanent relocation of the child to Hong Kong. She contends that the father’s subsequent actions show that such consent had been given. Alternatively, if the court finds that there was no express consent, it may infer consent from those subsequent actions. As a further alternative, if the court finds that there was no consent (whether expressly or by conduct), the mother says that the subsequent actions of the father, as from 25 June, amount to acquiescence on his part to the permanent relocation of the child.

LEGAL PRINCIPLES

56.  The primary objective of the Convention is to secure the prompt return of the children, who had been wrongfully removed, to their place of habitual residence.

57.  Articles 3, 12 and 13 of the Convention are presently relevant. I reproduce the contents below:

“Article 3

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.

Article 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.

…

Article 13

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

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

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

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

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.” (underline added)

58.  In the present case, it is not in dispute that both the father and the mother have rights of custody of the child in Italy. The sole issue before the court is whether the mother can rely on the exception in Article 13(a), namely the father’s consent or acquiescence as alleged.

59.  The principles on consent and acquiescence are well-established.

60.  In EW v LP HCMP 1605/2011, 31 January 2013, Deputy High Court Judge B Chu (as she then was) explained, at para 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.” (underline added)

61.  Consent to the removal of the child must be clear and unequivocal. The burden of proving the consent rests on the person who asserts it. The enquiry is inevitably fact-specific and the facts and circumstances will vary infinitely from case to case. The ultimate question is a simple one even if a multitude of facts bear upon the answer. The question is – had the other parent clearly and unequivocally consented to the removal? See the principles set out in Re P-J (Children) [2009] EWCA Civ 588 at para 48.

62.  As for acquiescence, in T v L [2022] HKCFI 1418, B Chu J, at para 73, recited the principles set out by the House of Lords in In re H (Minors) (Abduction: Acquiescence) [1998] AC 72 at 90D-G:

“(1) For the purposes of article 13 of the Convention, the question whether the wronged parent has “acquiesced” in the removal or retention of the child depends upon his actual state of mind. As Neill L.J. said in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 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 subjective 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.”

DISCUSSION

63.  I shall first deal with the primary case of the mother.

64.  The burden is on her to adduce clear and cogent evidence to show that on a balance of probabilities, the father gave his oral consent in the 2 June conversation for the permanent relocation of the child to Hong Kong. The consent must be clear and unequivocal.

65.  In her attempt to discharge the burden, the mother deposed in her affirmation that the father gave his consent on 2 June. Evidentially, she heavily relies on the subsequent conduct of the parties and the communications between them to show that consent had indeed been given.

66.  In my judgement, whether each of these matters is viewed singly or cumulatively as a whole, the evidence relied on by the mother is not clear or cogent enough to enable me to come to the conclusion that the father in fact gave the consent, judging the matter on a balance of probabilities. Much of the evidence is, in my view, equivocal in the sense that while they may be consistent with the conclusion that the father had given consent, at the same time they are also plausibly consistent with the conclusion that he had not done so. Some other evidence is self-serving. And it would be unsafe to give much weight to it. I shall now deal with each of those matters in turn.

First, the mother’s notes

67.  On the face of it, the contents of some parts of the mother’s notes suggest that the father might have accepted in the 2 June conversation that it was a good idea for the child to study in Hong Kong. On the other hand, the father says he had never seen the notes before the mother filed her affirmation. In any event, the notes were written in Chinese and he would not have understood them.

68.  The circumstances in which the notes were made are unclear. The mother did not explain in her affirmation when and why those notes were made. She simply exhibited three pages containing the notes to her affirmation. In fact, she added that the notes were only “about one quarter of my full notes”. That revelation is itself puzzling. If the notes recorded what was discussed on 2 June, it is not known why she would choose to disclose only one quarter of the notes. One is left wondering what the rest of the notes were about.

69.  More importantly, the mother did not state when she made those notes. Was it immediately after the conversation on 2 June? Or was it some time after? It is also not known whether there was any alteration to the notes since they were made. Mr Lo submits that for all these reasons, the notes cannot be taken as a contemporaneous record of the 2 June conversation. I agree with that submission. Furthermore, the notes were written by the mother herself. Without knowing how those notes came into existence in the first place, I am unable to give much weight to them as reflecting correctly and accurately what had actually been discussed in the 2 June conversation.

Second, the purchase of single journey tickets

70.  I accept that the fact that single journey tickets were purchased is prima facie in support of the mother’s case. It is consistent with the plan to move to Hong Kong permanently.

71.  However, the father’s evidence in this regard should also be taken into account. According to him, the mother told him that since she did not have a definite return date, she went on to purchase single journey tickets. This explanation is also inherently plausible and cannot be dismissed out of hand.

72.  Furthermore, when the mother or the mother together with the child travelled to Hong Kong previously, on one occasion single journey ticket was purchased (when the mother was pregnant) whereas on another occasion return tickets were purchased (ie the early 2024 trip). This seems to suggest that single journey tickets or return tickets had been purchased in the past for different reasons.

73.  Against such factual background, I consider that the fact that single journey tickets were purchased is an equivocal piece of evidence when it comes to determining the issue of consent.

Third, the consent form

74.  I do not consider that it is appropriate to give much weight to this document. On the mother’s own case, this document was required for clearing immigration checkpoints in Italy. She is not saying that it was signed for the purpose of showing to the authorities that the father had consented to the permanent relocation of the child. This means that the signing of the form is equally consistent with the father’s case that the child and the mother were only travelling to Hong Kong for a short trip.

75.  Separately, the origin of the form is far from clear. The mother simply said in her affirmation that she “downloaded that form”. She did not say where she downloaded it from. The form itself was written in both English and Chinese. According to the mother, the form was used to deal with enquiries from the Italian immigration authorities. It is therefore unclear why the form, not written in Italian, would be used.

76.  In any case, for the reasons set out in the previous paragraph, I find the consent form to be equivocal insofar as it is being relied on to show that the father had given consent to the permanent relocation.

Fourth, the packing away of belongings of the mother and the child

77.  On the face of it, the fact that the mother had packed and sent away a lot of the belongings is consistent with her allegation that she was preparing to leave the matrimonial home with the child for good. It is also consistent with the allegation that the father had given consent for them to do so because he knew about the packing. The mother’s allegation is also supported by the photographs she had taken of the rooms in the matrimonial home.

78.  On the other hand, Mr Lo submits that it was natural for the father to help the mother pack. On the father’s case, many of the belongings would have to be packed as the trip would last for the whole summer as opposed to a short trip lasting a few days. Mr Lo also points out that in the photograph relied on by the mother as showing the state of the room after the packing, there was still a playmat, which appears to be quite sizeable, in the middle of the room. One asks rhetorically, if the child was not going to come back after the trip, why didn’t the mother pack away the playmat as well?

79.  I have to say that I also consider that the fact of the packing and the sending away of stuff is equivocal in showing whether the mother and child were leaving the matrimonial home for good. The photographs relied on by the mother are simply not clear enough. The fact that the playmat was left in the room is consistent with the father’s allegation that the mother and the child were to return after the trip.

Fifth, the emotional state of the father after the departure

80.  I accept that the text messages do show that the father was getting emotional after the mother and the child took off. He said that he cried all day. He even said that he did not want to throw away the child’s pampers. The mother acknowledged in reply that it was a hard time for the father. Miss Leung submits that the father’s reaction and the mother’s comforting words can only be consistent with there being a prior understanding that the mother and the child were leaving for good.

81.  I do not agree with that submission because it can also at the same time be consistent what the father said about his relationship with the child, namely that he was very attached to the child and he was separating from the child for a long time in terms of weeks, not days. Hence, once again, the emotional reaction of the father is evidentially equivocal.

Sixth, the discussion of school options on 10 July 2024

82.  In the extracts reproduced above, I have underlined those parts which are now relied on by the mother as proving that the father and the mother had previously discussed and decided on the child’s permanent relocation. I have also underlined those parts which, the mother says, show that the father must have consented to it as otherwise he would not have said what he said in those parts of the messages. He would not have discussed with the mother which school the child should attend in Hong Kong if he had not previously consented to him studying in Hong Kong. For the same reason, he would not have said that he wanted the child to stay with him before the latter started school in Hong Kong.

83.  At the same time, however, there are other parts in the messages which show that the father was objecting to the child staying and studying in Hong Kong. I have marked those parts in bold in the extracts above.

84.  The text messages are contemporaneous records of what was discussed on 10 July. I should therefore give a lot of weight to them. The question is – how to properly interpret them?

85.  As shown in the extracts, there are parts of the communication which seem to show that the father had previously consented to the child studying in Hong Kong. For example, he said, “i don’t understand why he cannot stay with me here a few months”. He repeated this point later, “Why i cannot keep him before he start the N class?” On the face of it, he was asking for a short stay with the child in Italy before the child started school in Hong Kong. That should mean that he had accepted that the child would start school in Hong Kong. On this point, it should be noted however that the first quote was preceded by “And even if he would start the school in September 2025” (emphasis added).

86.  At the same time, however, there are other parts in which the father said quite simply that the plan to study in Hong Kong was a decision of the mother only. For example, he said, “You need to know that you wanted him to stay there but no me”, “And now you took him there”. Shortly afterwards, he said “This is your decision not mine”.

87.  In my view, some of the messages seem to support the mother’s case whereas some others seem to support the father’s. In other words, the messages, when read as a whole, are capable of being interpreted in different ways. As such, they are equivocal and are not clear or cogent enough to support the mother’s case of consent.

Seventh, the evidence of the two friends of the mother

88.  Based on the affirmation evidence of the two friends, I accept that the mother communicated with them shortly after the 2 June conversation, and that in these communications, the mother expressed happiness and relief about her situation. This fact is consistent with, and supports, her version of events that the father had given his consent. However, the friends’ knowledge and understanding of the situation between the father and the mother was entirely based on what the mother told them. To that extent, their evidence does not add much to the mother’s case and is not a weighty piece of evidence in the evaluation exercise.

Conclusion on the mother’s primary case

89.  I have gone through each of the matters relied on by the mother to show consent. In summary, I have found that each such matter, when viewed on its own, does not amount to clear and cogent evidence of consent.

90.  When the mother’s evidence is looked at on an overall basis, I equally find that it is insufficient to establish the alleged consent, on the balance of probabilities.

91.  Her case is on the whole coherent. It is prima facie supported by objective facts, including the purchase of single journey tickets, the fact that she told her friends of the news shortly after the 2 June conversation, and the father getting emotional after he saw them off. On the other hand, the father has put forward explanations for some of these matters, which are not inherently implausible and cannot simply be brushed aside.

92.  On the whole, I find that the conduct of the father and the mother and the communications between them after the 2 June conversation are open to different interpretations. They can be said to be consistent with, and therefore supportive of, the mother’s case. But at the same time, they are also plausibly consistent with the father’s version of events. For that reason, the evidence now relied on by the mother is equivocal when determining whether the father had given his oral consent to the permanent relocation of the child. Insofar as the mother is relying on these actions and communications to corroborate her case of express consent given on 2 June, I do not consider that they amount to clear or cogent evidence, which is required in this type of application. There is therefore no sufficient evidence before me to find that the father gave the consent on 2 June. The primary case of the mother therefore fails.

The mother’s alternative case – consent by conduct

93.  Since the mother’s alternative case of consent by conduct also relies on the same evidence, for the same reason, I find that there is no sufficient evidence showing that the father gave his consent by his conduct after 2 June.

The mother’s further alternative case – subsequent acquiescence

94.  Since the mother’s further alternative case of subsequent acquiescence also relies on the same set of evidence, for the same reason, I find that there is no sufficient evidence in support of the subsequent acquiescence.

95.  Accordingly, on the sole issue in this application, my determination is that the mother has failed to show consent or acquiescence on the part of the father for the child to be permanently relocated to Hong Kong. The retention of the child in Hong Kong is therefore wrongful. The court should proceed to make a return order as mandated under the Convention.

ORDERS

96.  The father would want to come to Hong Kong and take the child back to Italy. However, due to work reasons, he can only do so on or after 4 January 2025. At the hearing, the mother indicated that she would want to accompany the child back to Italy if a return order is made. Subsequent to the hearing, the father’s solicitors confirmed in writing that the father is willing to give an undertaking to the court and the mother that he will either personally drive the mother or arrange the transportation for her to travel from the airport to the matrimonial home in Italy.

97.  Upon the undertaking being given, I make the following orders:

(1)  The child be returned to Italy on or after 4 January 2025.

(2)  Both the father and the mother shall personally accompany the child on his return trip from Hong Kong to Italy.

(3)  The father shall be responsible for the flight tickets of himself and the child. The mother shall be responsible for her own flight ticket.

(4)  The father and the mother shall notify the court and the Department of Justice of the details, with relevant documentary proof, of the return flight at least 48 hours before the scheduled flight.

(5)  Pending the return of the child to Italy, his passports, travel documents and identity documents be released to the father’s solicitors, upon the father’s solicitors undertaking that they will release the same to the father not more than 24 hours before the scheduled return flight.

(6)  The Director of Immigration shall allow the child to leave the jurisdiction of the Hong Kong Special Administrative Region, upon the relevant boarding passes and passports being presented to the immigration officers at the Hong Kong International Airport to the satisfaction that the child is accompanied by the father and the mother.

(7)  Penal notice be endorsed.

(8)  Personal service of this order be dispensed with.

(9)  There be liberty to apply.

98.  I make an order nisi that there be no order as to costs for the originating summons, and that the father’s and the mother’s own costs be taxed in accordance with the Legal Aid Regulations.