YJH v. LKHM

HCMP 631/2017

[2019] HKCFI 2030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 631 OF 2017

____________

_____________

_____________

________________________

D E C I S I O N

________________________

A.  INTRODUCTION

1.  This is a hearing concerning a boy aged 2 years and 8 months, born in Hong Kong, but removed by the defendant Mother to Taiwan when he was 2 months old.  Soon after his removal, the Father took out wardship proceedings in the Hong Kong court.

2.  After strenuous efforts, with the assistance of the Hong Kong and Taiwan courts, the Child and his maternal grandmother were intercepted by government authorities at the Hong Kong International Airport just as they were about to leave Hong Kong.  Since then, the Child has remained in Hong Kong pursuant to this court’s interim order.

3.  This is the hearing of the Mother’s applications for:

(1)     Stay of the present proceedings on the ground of forum non conveniens in favour of the Taoyuan District Court of Taiwan (“the Stay Summons”); and

(2)     Variation of interim access (“the Variation Summons”).

4.  It is the Mother’s case that there was breakdown of trust between her and the Father such that she brought the Child to settle in Taiwan.  The proper forum to litigate questions of custody should be the Taoyuan District Court.

5.  The Father disagrees.  He says that the Mother falls short of discharging her burden that the Taiwan courts are clearly or distinctly the more appropriate forum to hear this case.  If the action is heard in Taiwan, he will suffer personal and juridical disadvantages that outweigh any possible disadvantage that the Mother might suffer if the action were to proceed in Hong Kong.

B.  BACKGROUND FACTS

6.  The Mother and the Father were both Hong Kong born and raised.  They are just above the age of 30.

7.  The Father has been working as a    consultant since 2015 although his Form E states that he is an executive assistant.  He allegedly earns a monthly sum of HK$24,875 including performance based bonuses.

8.  The Father comes from a wealthy family.  The paternal grandfather    and the paternal grandmother    [are in their 60s].  The paternal grandfather is a   while the paternal grandmother   [is] now a part-time  .  The Father is living with the paternal grandmother in a spacious flat   [on Hong Kong island] . 

9.  The Father admits that he has to travel extensively for work.  He spent less than half of his time in Hong Kong:

Date	Days not in Hong Kong (both day of departure and arrival   counted as not in Hong Kong)
Sep 2018	21
Oct 2018	19
Nov 2018	22
Dec 2018	22
Jan 2019	24
Feb 2019	12

10.  The Mother previously worked as a    in Taiwan, earning about HK$9,000 per month.  She now claims to be on unpaid leave as she returned to Hong Kong.  She has had no income since December 2018.

11.  The Mother comes from a humble background.  The maternal grandmother and grandfather are     [aged 55-65].  The maternal grandmother is a housewife while the maternal grandfather is working as a part-time   in Taiwan.  Despite that, her father is supporting the Mother’s monthly expenses and, in particular, her legal fees, which obviously were beyond her capacity to pay.

12.  The Mother met the Father in  . Soon afterwards, they began dating and sexual relations.  In    2016, the Mother discovered she was 2 months pregnant.  The Father is the acknowledged father of the Child.  .

13.  The Father’s case is that in the course of the Mother’s pregnancy, the two of them had mutually discussed and decided that Hong Kong was the best place to raise the Child. To that end, the parties looked into accommodation as well as suitable schooling in Hong Kong.

14.  The Mother’s case is that the parties’ relationship began to turn sour after she became pregnant.  The Father had repeatedly requested her to have an abortion or put the Child up for adoption, which were singularly rejected by the Mother.  Thereafter, the Father repeatedly asked the Mother to sign a consent summons to secure his rights as the father of the Child, even when the Mother was still at her postnatal confinement.  The Mother refused.

15.  The Child was born on   2016. The Father paid the hospital bills. The Father visited daily to take care of the Mother and the Child.

16.  Following discharge on   2016, both the Mother and the Child had resided with the Mother’s parents in   [TW] (“the     [TW] Residence”).

17.  Through a WhatsApp Group named   , comprising the Father, the Mother, their parents and a few other persons, updates on the Child’s condition were shared and visits by the Father’s parents and family members facilitated.

18.  From    2016 to    2017, the Father had stayed (including overnight) at the    [TW] Residence to participate in the Child’s care.  In the month next following, he kept contact with the Child through WhatsApp messages when he worked outside Hong Kong, visits at the    [TW] Residence for 3-6 hours almost every day (though he was not allowed overnight access) and gatherings.  The paternal grandmother and cousin were able to visit the Child at the    [TW] Residence.

19.  From 10 February to 21 March 2017, the Father was in    [Mainland China] for work.  He had received far fewer updates from the Mother about the Child.  The paternal grandmother also encountered difficulties in communicating with the Mother and her family and arranging visits to the Child.

20.  It transpired that on    2017 the Mother left Hong Kong with the Child for Taiwan.  They lived with the maternal grandparents, who assisted in taking care of the Child.  The Mother was able to return to employment a year later, in March 2018. The Child has developed a strong bonding with the maternal grandparents.

21.  On    2017, the Mother and her father abruptly exited the WhatsApp group.  The Mother and her family then became unreachable.

22.  Fearing for the Child, Father commenced wardship proceedings in Hong Kong by originating summons on 20 March 2017 (“the OS”). However, attempts of personal service of the OS on the Mother failed.  Documents served by ordinary post to the   [TW] Residence were returned.

23.  On 14 April 2017, Father discovered through the Hong Kong Police that the Mother and the Child had left Hong Kong on   2017 and were both in Taiwan.  

24.  Upon the Father’s application, this court on 26 April 2017, gave leave to serve the OS out of jurisdiction, made an order for the Child’s return to Hong Kong and restrained the Mother from removing the Child from Hong Kong.  Interim custody of the Child was given to the Father.

25.  Three months later, on 27 July 2017, the Hong Kong Police informed the Father that the Mother and the Child were residing at an address in Taoyuan, Taiwan (“Taoyuan Address”). Various attempts were then made by Father’s Taiwan lawyers to serve the court documents on the Mother at the Taoyuan Address, but in vain.

26.  On 22 February 2018, upon learning that the Father’s friend (“R”) was going to meet the Mother at a bar in Taiwan, the Father’s side purportedly handed the Mother a bundle of the court documents in these proceedings.  There is dispute as to whether there was valid service.

27.  After the meeting between the Mother and R, the Father learned through R that the Mother and the Child had moved out of the Taoyuan Address but the new address was unknown.

28.  The Father filed a Civil Complaint with the Taipei District Court on 22 March 2018 seeking judicial confirmation that he is the Child’s father. With the assistance of the Taipei District Court, and later upon transfer, the Taoyuan District Court:

(1)     The Father came to know that the Mother had again changed the Child’s name (from LPY to LCY), having already changed his name once before (from YPY to LPY) when she applied for the Child’s HKID card.

(2)     The Father obtained the travel records of the Mother and the Child.  The travel records revealed that the Mother has been travelling extensively.  For example, in the period between February and October 2018, the Mother travelled 8 times out of Taiwan, sometimes staying abroad for almost a whole month.  During the same period, the Child (who had not reached 2 at the time) travelled 4 times out of Taiwan, two of which involved him being out of Taiwan for over 10 days.  

29.  Meanwhile, the Mother and the Child were maintaining close ties with Hong Kong.  For the period between   2017 (when they moved to Taiwan) and October 2018 (when the travel records were issued):

(1)     The Mother travelled to Hong Kong 3 times;

(2)     The Child travelled to Hong Kong once; and

(3)     The Mother and the Child travelled to Macau once.  The Mother probably entered Hong Kong on that occasion as shown from an Instagram photo.

30.  The Mother’s family members, who resided in Hong Kong, had also travelled to Macau to meet with Mother and the Child.

31.  On 8 December 2018, the maternal grandmother and the Child were stopped at the Hong Kong International Airport just as they were about to leave Hong Kong.  The immigration records of the Child showed that he entered Hong Kong on 27 November 2018.

32.  The Mother immediately flew back to Hong Kong.  From 8 December 2018 to late February 2019, the Child had moved 8 times until the Mother was finally able to rent an apartment in    [the New Territories] with interim financial support from the Father.

33.  The Mother first instructed lawyers to approach the Father’s solicitors by a letter dated 11 December 2018.  On the same day, the Father was told by immigration authorities that the Mother had arrived in Hong Kong.

34.  On 14 December 2018, the Mother issued her first summons, to de-ward the Child, for sole custody to her and relocation of the Child to Taiwan (“the Custody Summons”).

35.  Two months later, on 12 February 2019, the Mother issued the Stay Summons. It was then some 2 years after issue of the OS.

36.  On 27 February 2019, this Court granted, amongst others, interim joint custody of the Child to the parties, interim care and control to the Mother, and interim access to the Father (“the Feb Access Order”).  Since then, the Father (and his parents) have had regular access to the Child.

37.  On 21 March 2019, the Father’s lawyers applied to withdraw the Taiwan proceedings, as the original purpose to locate the Mother and the Child had been achieved.  The Mother’s consent is necessary for the proceedings to be terminated but it is yet to come.

38.  On 9 April 2019, the Mother filed the Variation Summons to vary the interim access arrangements under the Feb Access Order and for a psychologist report on the Child to be prepared. The first social investigation report dated 30 April 2019 (“SIR-1”) recommended that no psychological report was needed.

39.  The parties have filed their respective Form E in May 2019.

40.  The Mother’s case is that the trust between the parties completely broke down on    , about a month after the birth of the Child, when she saw the Father’s WeChat messages with his mother showing that he had litigation in mind when paying the hospital bill for giving birth to the Child.

41.  During the parties’ relationship, they allegedly argued frequently on financial matters.  The Father had all along been unwilling to shoulder the childcare duties and the Child’s expenses.  After the Child was born, the Mother experienced tremendous difficulty in taking care of the Child on her own without any financial and emotional support from the Father.  Faced with frustration and pressure, she thus took the Child to live with her parents.

42.  The Father denies the Mother’s case.  He says that the Mother fails to meet the tests for stay of proceedings.  In particular, he queries whether the Child has habitual residence in Taiwan.

C.  LEGAL PRINCIPLES

C1.  Forum non conveniens

43.  The Court of Final Appeal summarized the principles governing applications to stay Hong Kong actions on forum non conveniens in SPH v SA (2014) 17 HKCFAR 364 at §51:

“1. The single question to be decided is whether there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of an action ie in which the action may be tried more suitably for the interests of all the parties and the ends of justice?

2. In order to answer this question, the applicant for the stay has to establish that, first, Hong Kong is not the natural or appropriate forum (‘appropriate’ in this context means the forum has the most real and substantial connection with the action) and second, there is another available forum which is clearly and distinctly more appropriate than Hong Kong. Failure by the applicant to establish these two matters at this stage is fatal.

3. If the applicant is able to establish both of these two matters, then the plaintiff in the Hong Kong proceedings has to show that he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.

4. If the plaintiff is able to establish this, the court will have to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. Deprivation of the one or more personal advantages will not necessarily be fatal to the applicant for the stay if he is able to establish to the court’s satisfaction that substantial justice will be done in the available appropriate forum.” (emphasis added)

44.  For proper assessment, it is not enough to load up factors which connect a case or the parties to any particular jurisdiction.  The court is required to focus on the appropriateness of a forum from the point of view of the trial of the action: Rambas Marketing Co LLC v Chow Kam Fai David [2001] 3 HKC 250, at 255B-E, Recorder Ma SC as he then was.

45.  These primary forum non conveniens principles have been applied to children proceedings but the court should always bear in mind in the application of these principles that the welfare of the minor is of paramount importance: QMY v GSS(2017) 20 HKCFAR 303, at §§28-30, 34, Tang PJ and LN v SCCM (Forum Non Conveniens)[2013] HKFLR 358, at §§15-17, Cheung JA.

46.  The welfare of the child has to be considered in two different contexts. The first is the context of which court shall decide what the child’s best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the Hong Kong rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made: Re F (A Minor)(Abduction: Custody Rights) [1991] Fam 25, at 31D-E, Lord Donaldson.

47.  In the absence of statutory provisions and as a matter of good common sense, the jurisdiction where the child habitually resides should try the case: LN v SCCM at §29, Cheung JA.  The rationale is:

“29. … After all, if the children are here, issues concerning their well being can be conveniently dealt with in terms of the Court’s local knowledge and experience on the way they are to be raised and educated, inquiry by social workers and experts, testimony from witnesses and the Court’s wish to hear the views of the children directly. More importantly, this will ensure that there is no undue disruption of the children’s normal daily life when the matter is heard on home grounds. Without going into a discussion on the legal meaning of habitual residence, it does appear that the children have habitually been residing in Hong Kong.”

48.  However, though habitual residence of the child is a factor of high importance, it is not a conclusive factor: H v H (Minors) (Forum Conveniens) [1993 1 FLR 958, at 974 D-G.

49.  The court has to consider a basket of other factors.  In V & M (A Child) (Stranding: Forum Conveniens: Anti-Suit Injunction) [2019] 4 WLR 38, Williams J stated at §35(iii):

“In assessing the appropriateness of each forum, the court must discern the forum with which the case has the more real and substantial connection in terms of convenience, expense and availability of witnesses. In evaluating this limb the following will be relevant; (a) the desirability of deciding questions as to a child’s future upbringing in the state of his habitual residence and the child’s and parties’ connections with the competing forums in particular the jurisdictional foundation; (b) the relative ability of each forum to determine the issues including the availability of investigating and reporting systems. In practice judges will be reluctant to assume that facilities for a fair trial are not available in the court of another jurisdiction but this may have to give way to the evidence in any particular case; (c) the availability of witnesses and the convenience and expense to the parties of attending and participating in the hearing; (d) the availability of legal representation; (e) any earlier agreement as to where disputes should be litigated; (f) the stage any proceedings have reached in either jurisdiction and the likely date of the substantive hearing; (g) principles of international comity, in so far as they are relevant to the particular situation in the case in question. However public interest or public policy considerations not related to the private interests of the parties and the ends of justice in the particular case have no bearing on the decision which the court has to make; (h) it has also been held that it is relevant to consider the prospects of success of the applications.” (emphasis added)

50.  Sometimes, the financial situation of the parent living outside Hong Kong can be a relevant factor.  In RE K (A Child) (No 3) (Forum Conveniens) [2015] EWHC 2192 (Fam), there were wardship proceedings in relation to a 2-year-old child, who was placed in the care of his paternal grandparents in Singapore.  The Father sought a stay of the UK proceedings on the ground that Singapore was a more appropriate forum.

51.  Roberts J, after taking into account, amongst other, issues in relation to financial difficulty of the mother, dismissed the Father’s application.  He found that the Mother was unable to re-enter Singapore for lack of local sponsors.  She had no independent means to instruct lawyers and no public funding available to assist her in the presentation of her case (§§86-89). 

52.  Roberts J stated at §90,

“[90] The mother lacks the financial wherewithal to provide for herself even the most basic accommodation in Singapore if she is to litigate in that jurisdiction as a litigant in person. I am told, and it is not disputed, that she was obliged to spend a night sleeping on the streets following her release from custody before she could make arrangements to return (via Mongolia) to London. She has no practical support or back up. She is a student with no regular source of income over and above the modest funds she has earmarked for her living expenses whilst she completes her studies at college. The father, on the other hand, … accepts that he has been the beneficiary of financial support from his parents in the past. It appears to be accepted that they have independent financial means and have certainly been able to afford specialist representation in terms of the lawyers they have instructed to progress their own application which is ongoing in the Singapore court. I know that because Mr Armstrong confirmed that to be the case when I asked him during the course of argument how far the grandparents’ financial circumstances fell to be considered as a financial resource which was available to the father in the context of these proceedings.”

53.  Ultimately, whether to stay or refuse a stay depends on whether the defendant can establish that to refuse a stay would cause injustice.  In MacShannon v Rochware Glass Ltd [1978] AC 795, Lord Salmon at 818-819 of his judgment stated as follows:

“In an action brought in England when its natural forum is Scotland, I consider the question as to whether it should be stayed depends upon whether the defendants can establish that to refuse a stay would produce injustice. Clearly if the trial of the action in England would afford the Scottish plaintiff no real advantage and would be substantially more expensive and inconvenient than if it were tried in Scotland, it would be unjust to refuse a stay. If, on the other hand, a trial in England would offer the plaintiff some real personal advantage, e.g., if he had come to live in England, a balance would have to be struck and the court might in its discretion consider that justice demanded that the trial should be allowed to proceed in England (see e.g. Devine v. Cementation Co. Ltd. [1963] N.I. 65). To my mind, the real test of stay or no stay depends upon what the court in its discretion considers that justice demands. I prefer this test to the test of whether the plaintiff has behaved ‘vexatiously’ or ‘oppressively’ on a so-called liberal interpretation of these words.” (emphasis added)

C2.  Habitual residence

54.  The legal principles on habitual residence have been restated in BRS v LYY, unrep [2018] HKCFI 1524 (Au-Yeung J), at §§51-52, citing LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 and Re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562 as follows:

“51. Habitual residence is a question of fact which reflects integration by a child in a social and family environment. In LCYP v JEK, at §7.7, Cheung JA stated the law on habitual residence as follows:

‘(1) Habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce (In re L (A child) paragraph 20);

(2) The factual question is: has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so (In re LC (Children) paragraph 59);

(3) The concept corresponds to the place which reflects some degree of integration by the child in a social and family environment (In re L (A child) paragraph 20);

(4) The question is the quality of the child’s residence, in which all sorts of factors may be relevant. Some of these are objective: how long is he there, what are his living conditions while there, is he at school or at work, and so on? But subjective factors are also relevant: what is the reason for his being there, and what is his perception about being there? (In re LC (Children) paragraph 60);

(5) There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents (In re L (A child) paragraph 21) (emphasis added); and

(6) Although a child could lose his habitual residence without a parent’s consent, nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child’s leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence (In re L (A child) paragraph 23).’

52. There has to be an applicable period of time and a settled intention to enable a person to become habitually resident in a new place: Re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562, at 578G-579A. Lord Brandon of Oakbrook held that:

‘It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. Any appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of a J’s age [3 years] is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.” (emphasis added)

C3.  Hague Convention guidance in a non-Convention case

55.  The Mother also specifically refers to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”), which requires the court to order the return of the child forthwith where he/she has been wrongfully removed for more than a year before issue of the OS, unless it is demonstrated that the child is now settled in its new environment.

56.  Since Taiwan is not a contracting party to the Convention, concepts under the Convention have no direct application: C v N (children: wardship) [2016] 2 HKLRD 765 (also a case involving Taiwan) at §15; In re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 at §25 (Baroness Hale).

57.  The court may nonetheless, with due caution, have regard to general principles of the Convention with some modification in an appropriate case: C v N at §15.  However, the legal principles concerning forum non conveniens are quite enough for present purposes without resorting to the Convention authorities.

C4.  Submission to jurisdiction

58.  In RKL v WL & anor [2016] 5 HKC 153, at §§31-33, Chu JA set out the tests on voluntary submission to jurisdiction:

(1)     Whether any particular matter amounts to a voluntary submission to jurisdiction must depend on the circumstances of the particular case. The circumstances should be looked at sensibly, realistically and fairly to see whether the step taken by the defendant constituted a submission to jurisdiction.

(2)     The test to be applied is an objective one and what must be determined is whether the only possible explanation for the conduct relied on is an intention on the part of the defendant to have the case tried in this jurisdiction.

(3)     A useful test is whether a disinterested bystander with knowledge of the case would have regarded the acts of the defendant, or his solicitors, as inconsistent with the making and maintaining of his challenge.  The representation derived from those acts said to be submission must be capable of only one meaning. If the well-informed bystander had been left in doubt because what the defendant had done was equivocal, in the sense that it was explicable on other grounds in addition to submission to jurisdiction, then the conclusion must be that there has been no submission to the jurisdiction.

59.  In Hwoo Huang Linda v Fu Being San & ors [2013] 1 HKLRD 259, §26, Deputy Judge Reyes SC (as he then was) gave some guidelines to evaluate if there was submission to Hong Kong jurisdiction:

(1)     A party may be treated as having submitted to the jurisdiction if he files a pleading setting out his case on the substantive merits of an action.

(2)     A party may be treated as having submitted to the jurisdiction if he invokes the court’s jurisdiction to obtain an interlocutory or final order requiring the opposite party to perform some act (for example, disclose documents, provide further and better particulars, or answer interrogatories).

(3)     A party does not submit to the jurisdiction if he merely acts to preserve the status quo pending the mounting and resolution of an application to challenge forum.

(4)     A party does not submit to the jurisdiction if he merely takes defensive action in interlocutory injunction proceedings brought by the other side.

(5)     A party may be able to preserve an option to challenge forum, despite having engaged in conduct which might be regarded as submission to the jurisdiction, if before or at the time of such conduct he makes it clear that his action is without prejudice to the bringing of a challenge to forum.

(6)     The Court should adopt a common sense approach. It must not be overly subtle or astute to find that a party has submitted to the jurisdiction. Otherwise the question of submission could easily become a technicality trap for the unwary. The real question is whether a party’s conduct is so inconsistent with maintaining an option to challenge forum that the party should be assumed to have waived such option. In the case of any doubt, the party proposing to challenge forum should probably be given the benefit of that doubt.

60.  Acceptance of jurisdiction of a court other than that of the child’s habitual residence is not lightly to be inferred: Bush v Bush [2008] 2 FLR 1437 at §53, Lawrence Collins LJ.

61.  Subsequent acts and contact can illuminate the quality of the acceptance at the time the court was seised. Nevertheless, the acceptance still has to be unequivocal: VC v GC (Jurisdiction: Brussels II Revised Art 12) [2013] 1 FLR 244, §30, Eleanor King J.

62.  VG v GC, relied on by Ms Yip SC, in fact fell within guidelines (3) and (4) in Hwoo v Fu.  There, the mother instituted proceedings in England and obtained a residence order.  The Father instituted proceedings in France and obtained an interim order requiring the mother to deliver up to him the daughter who, save for contact, had never been away from her mother, and who thereafter was to have only visiting rights until a final hearing at some unknown time in the future. 

63.  The mother appealed.  Eleanor King J did not find the mother to have submitted to the French jurisdiction.  She pointed out (in §31) that any parent in that mother’s situation was faced with a serious dilemma; whether to decline to engage in the foreign proceedings on any level for fear of that engagement resulting in a finding of unequivocal acceptance or rather to engage in the foreign proceedings to such limited extent as was necessary to protect her and her child’s position in the event that the jurisdictional issue goes against her.

C5.  Pending proceedings out of jurisdiction

64.  Where there are pending proceedings out of Hong Kong, the considerations highlighted in LN v SCCN, at §§19-24 apply:

(1)     There is the additional inconvenience and expense which must result from allowing two sets of legal proceedings with the same parties to be pursued concurrently in two different countries where the same facts will be in issue and the testimony of the same witnesses required.

(2)     The foreign proceedings will have little or no relevance if they have not passed beyond the stage of the initiating process.  On the other hand, if genuine proceedings have started and developed to a stage where they had some impact upon the dispute between the parties, this will impact on the question of the appropriate forum.

65.  In short, the court must closely and realistically consider the extent of actual overlap in terms of both the substantive issues and respective procedural progress of the local and foreign proceedings. 

D.  SUBMISSION OF THE MOTHER TO JURISDICTION

D1.  Steps taken by the Mother in these proceedings

66.  Holding the view that it was the Father and his mother who caused breakdown in the parties’ relationship, and with some knowledge of there being a case in Hong Kong, the Mother took the following steps in these proceedings:

(1)     Issued the Custody Summons;

(2)     Issued a solicitors’ letter dated 9 January 2019 to challenge jurisdiction before filing the Stay Summons;

(3)     Filed her Form E; and

(4)     Issued the Variation Summons.

D2.  Father and his mother causing breakdown in relationship of the parties

67.  I accept the Mother’s evidence, for present purposes, that the cause of breakdown was the Husband’s attitude.  He did not love the Mother enough to want to marry her and was not ready to have a child.  He suggested an abortion in the 2^nd month of the Mother’s pregnancy.  The paternal grandmother suggested an abortion and when that was not accepted, she suggested that the Mother should give birth but surrender the baby for adoption.  Such attitude of the Father and the paternal grandmother was borne out by the WhatsApp messages between the paternal grandmother and the maternal grandfather.

68.  The Father did take care of the Child after his birth.  However, the WhatsApp messages between the paternal grandmother and the Father disclosed that they had legal process in mind when they discussed whether they should foot the hospital bills in respect of the Child’s birth.  Having read those messages, the Mother lost trust in the Father and left for Taiwan.

D3.  Mother’s knowledge of there being a case in Hong Kong

69.  There is dispute as to whether or not the Mother had knowledge of the OS.  She said she did not until after instructing her lawyers on 12 December 2018. 

70.  The Father asserted that she has had notice as early as in February 2018 when the OS was purportedly served on her at a bar in Taiwan. The Father produced some WhatsApp messages between the Mother and R which revealed that: 

(a)     R and the Mother mentioned about some papers but it seemed the Mother never took them and there was nothing to show that R had told the Mother what those documents were about.

(b)     Between 23 and 28 February 2018, R told the Mother that the Father was willing to have a dialogue with her: 

“As a show of good faith, he’s willing to stop using private investigators in Taipei and hold off on further legal actions in Hong Kong.”

(c)     The Mother’s reply indicated conditional agreement to a dialogue:

“… Also who know (sic) if this conversation will show up in the court someday so I’m not going to say anything here. Further my request is to cancel all the legal actions in Hong Kong and I need some legal documents to secure my situation which I might need to discuss [with] my lawyer if he agrees to do that. That’s my request for having a dialogue and it’s his choice.”

(d)     In 2 March 2018, the Mother messaged R:

“First he was the one to break all the trust and yes you are right it would be great if we can solve things without legal proceedings, so I requested to cancel all the legal actions in hk. Please bear in mind he is [the] one taking legal actions and I never did that. And in case he and his mom not keeping their words, which is very high chance like 99.9% based on the past experiences, I need them to sign on a paper that they will never take any legal actions again.”

71.  Although service on the Mother was not valid in law, it was plain from sub-paragraphs (b) to (d) above that the Mother knew about there being a case in Hong Kong.  It could not be anything but concerned the Child although the extent of her knowledge was not clear. 

D4.  The Mother’s issue of the Custody Summons

72.  The Custody Summons was the first summons that the Mother issued.  Not only did it seek to de-ward the Child but it asked for a relocation order. In my view, that was not a mere defensive act to an interlocutory application but was a request for the court’s adjudication on substantive matters.  The court would have to embark on a detailed qualitative evaluation of the evidence, including going through the “welfare checklist”: H v N [2012] 5 HKLRD 498, Poon J (as he then was); ZJ v XWN [2018] 3 HKLRD 644, §25, Lam VP.  The judgment will finally dispose of the OS. It fell within guidelines (1) and (2) in Hwoo v Fu. 

73.  Ms Yip SC submits that, without knowledge of the details of the proceedings at all, the Mother urgently instructed her former solicitors, whilst busily arranging a temporary place of residence for the Child and herself, re-arranging her work commitment in Taiwan and buying all necessities for a temporary stay in Hong Kong.  The Custody Summons and her first affirmation (“M-1^st”) were filed less than 48 hours after she received all the court documents from the solicitors for the Father, which contained 4 long affirmations of the Father with numerous allegations against her.  At the time of issue of the Custody Summons, the Mother had never been advised on her right to apply for a stay.  The Custody Summons was necessary for some other purposes, ie, to protect her interest and right over the Child.

74.  With respect, I disagree.  Judging from her WhatsApp messages with R quoted above, the Mother had probably consulted lawyers before March 2018. With the cause of breakdown and the knowledge of extant proceedings concerning the Child, the Mother could not have missed the importance of the Custody Summons. She as the birth mother had and has all the rights in the world over her natural child whereas the Father only had interim relief.  Any interim needs for maintenance and accommodation could be addressed by a summons without a request for a removal order. 

75.  Though it was filed in a hurry, M-1^st purported to answer the Father’s allegations substantively.  For about 4 weeks since issue of the Custody Summons, the Mother had not protested against jurisdiction nor asserted that she would resort to the Taiwan courts. Plainly, she had intended the Hong Kong courts to decide all substantive issues over the Child.

76.  The lack of proper legal advice that she could apply for a stay would not be something that a disinterested bystander with knowledge of the case had known when the Custody Summons was issued and in the 4 weeks that followed.  Objectively, the Custody Summons could bear no other meaning but to submit to the jurisdiction of the Hong Kong courts. 

77.  However strong the alleged merits of the Mother’s relocation application are, the right stage to consider them is after the proper forum has been determined: Re F. 

D5.  Letter from the Mother’s solicitors issued before the Stay Summons

78.  This letter was issued about 4 weeks after the Custody Summons, immediately after the Mother had received proper legal advice.  The Stay Summons was filed on 12 February 2019 after the Father’s refusal of stay.  The Mother’s then solicitors claimed that it had recently come to their knowledge that the Father had commenced proceedings in Taiwan. But that was not a good explanation for her submission to the Hong Kong jurisdiction earlier on.  Her bases of an alternative more appropriate forum should not be dependent on there being existing proceedings elsewhere. 

D6 & D7.  Filing of Form E and Variation Summons

79.  These 2 steps can be considered together.  The filing of Form E (and at the same time the calling of the SIR) were usual directions given by the court for the purpose of disposal of the substantive issues. However, I do not think they in themselves could point to submission to jurisdiction.  The Mother and the Child were stranded in Hong Kong with no income or accommodation.  The welfare of the Child required immediate attention.  Information obtained from Form E and the SIR could assist on interim measures.

80.  The application for variation of interim access arose in April 2019 because the Child appeared to have some separation anxiety when he was first taken away from the Mother for the Father to have access.  The Mother was concerned, rightly or wrongly, as to the emotional well-being of the Child pending final resolution of the Custody Summons.

81.  In my view, the filing of Form E and the application to vary interim access were merely to preserve the status quo and the Mother has expressly preserved her rights to dispute forum when the Variation Summons was heard: guidelines (3) and (4) in Hwoo v Fu.  

82.  In summary, among all the steps taken by the Mother, I find that issue of the Custody Summons was inconsistent with her challenge to jurisdiction of Hong Kong.  Mr Chan SC, however, fairly does not take the point of submission to jurisdiction as a bar to the Mother’s seeking a stay but he invites the court to consider her conduct to see if she meets the test in the next section.

E.  WHETHER TAIWAN IS CLEARLY OR DISTINCTLY THE MORE APPROPRIATE FORUM

E1.  Burden of proof

83.  The burden is on the applicant to satisfy this limb of SPH v SA, §51(2).

84.  The court’s approach to disputed evidence has been laid down in ME v CYM[2017] 4 HKLRD 739 (a Convention case), §34, Lok J, following Re F (a Minor) (Child Abduction) [1992] 1 FLR 548, 553-554:

(1)     The judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has to be compelling before the judge is entitled to reject the sworn testimony of a deponent.

(2)     Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it.

(3)     If there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.

E2.    Habitual residence of the Child

85.  At the time of issue of the OS, the Child had just left Hong Kong for 32 days.  By the time of his interception in Hong Kong, he had lived in Taiwan for the most part of his life, ie 22 continuous months. Being only 2½ years old then, his habitual residence will necessarily be the same as his Mother, the primary carer.  

86.  The pertinent question is: had the Child integrated in a family or social environment in Taiwan? LCYP v JEK (paragraph 54 above). 

87.  Family-wise, there had been. The Child had lived stably in the grandparents’ property of 1,800 sq ft.  He bonded well with his maternal grandparents.  In big contrast, he has moved 8 times in Hong Kong since December 2018.  For some unexplained reason, the    [TW] Residence was no longer available.  He has been living with the Mother in a rented flat of about 377 sq ft in    [the New Territories].  The Mother used to work in Taiwan but cannot now as she has to take care of the Child with assistance of the maternal grandmother.  The Child has suffered a substantial drop in quality of accommodation in Hong Kong and is separated from his maternal grandfather.

88.  Socially, integration was doubtful. At his age, the Child’s activities were primarily domestic.  He had not even begun school (or even interest class) in Taiwan.  He could hardly be said to have established meaningful bond of friendship, still less integrated socially or locally in Taiwan.  On a child-focused approach, the fact that the mother has made friends with Taiwanese mothers would not take her case further.

89.  In terms of schooling, the Mother claims to have enrolled the Child in an international kindergarten in Taiwan and produced a receipt bearing the Child’s name.  However, as pointed out by Mr Chan SC, the receipt was not on proper letterhead showing enrolment to formal kindergarten education but a short-term tutorial class instead.

90.  Anyway, even if the Child misses the chance of entering that international kindergarten in September, that should not have great impact on him if he shall be relocated to Taiwan after trial (say, 1-2 years from now). He will be less than 5 and can adjust to the education system there.

91.  In the meantime, he is enjoying swimming, drawing, dancing and Taekwondo classes in Hong Kong.  This shows his flexibility in integration into Hong Kong.  The living environment may not be as good as in Taiwan but it might have been the type of residence used if the parties had decided to raise him in Hong Kong in the first place.

E3.  The Mother’s integration into Taiwan

92.  The court should look at the carer’s reasons for her move to another jurisdiction and her geographic and family origin and her integration into the locality: ME v CYM, §25. 

93.  It is the Mother’s evidence that the parties had not talked about the future residence of the Child before he left Hong Kong.  However, the WeChat messages produced by the Father contradicted her.  The parties had, before birth of the Child, actually discussed about accommodation and schooling in Hong Kong.

94.  Anyway, given that the cause of breakdown was the Mother’s distrust towards the Father, it was natural for her to turn to her parents for help.  The maternal grandparents have emigrated to Taiwan since 2015.

95.  Mr Chan SC queries whether the Mother’s spontaneous removal of the Child to Taiwan had stemmed from a carefully considered plan to settle there or for the avoidance of the Father there. 

96.  There are bases for that submission. The maternal grandfather went to the extent of covering up the Child’s absence from Hong Kong and fended off visit dates of the Father/the paternal grandmother by messaging, “Sorry that nobody at home” (Exhibit YJH-2).  If, as the Mother alleged, her removal of the Child to join her parents in Taiwan was without objection of the Father, there was simply no reason why she needed to keep the whereabouts of the Child a secret from him for almost 2 years.

97.  Further, the Mothers own integration into Taiwan through her job is in doubt.  As pointed out by Mr Chan SC, the Mother has been employed since 1 March 2018. It was incredible that the company had allowed her to travel as many as 62 days in a span of 9 months up to December 2018 when she returned to Hong Kong.  The employment contract did not specify the work location. The only address provided was at Kaohsiung, which is 297 km from Taipei and requires 2½ hours’ commuting one-way.  If the Mother were really working in Kaohsiung, she would hardly have time for personal care of the Child. 

98.  The Mother’s Form E shows that she still maintains 3 bank accounts and 2 credit cards in Hong Kong.  On the other hand, she has not disclosed her Taiwan bank account(s), claiming she is (somehow) unable to access Taiwan bank statements: §2.3.  I place little weight on this.  She grew up in and maintains contact with Hong Kong.  Also given the international nature of banking nowadays, it is not surprising for her to keep Hong Kong bank accounts or credit cards.

99.  Mr Chan SC also reminds the court to be cautious about effectively condoning the Mother’s behaviour in first severing the Child’s ties with the Father and his family and suddenly, traumatically and without notice, unilaterally move to Taiwan to “acquire connections” with that place and then claim an “artificial jurisdiction” there. It thwarted the Father’s attempt to seek relief in the Hong Kong courts and caused him to be drawn into a cat-and-mouse chase to locate the Mother and the Child.  She also ignored this court’s interim custody order.

100.  This is an apt reminder.  It is not necessary to make findings at this stage as to the Mother’s intention to integrate into Taiwan or whether she had deliberately ignored the court’s order dated 26 April 2017 granting interim custody to the Father.  Suffice to say that where the court has doubts as to her evidence, the Mother would have failed to discharge her burden of proof that Taiwan is distinctly or clearly the more appropriate forum. 

E4.  Appropriateness of forum from the perspective of the trial

101.  On a child-focussed approach, it would prima facie be better for the Child to reside in Taiwan with his main carers pending trial.  The maternal grandmother (who has her own health issue) can provide continuous care in Taiwan whereas the paternal grandparents did not offer (according to SIR-2) to assist in child care except during access.

102.  Having regard to the basket of factors in V v M (paragraph 49 above), I lay emphasis on the availability of witnesses. The main witnesses will be the Father, the Mother, the maternal grandmother and (probably) the other 3 grandparents who have less role to play in terms of care.  So half of the witnesses reside in Hong Kong and the other half in Taiwan. 

103.  The 2 jurisdictions are geographically close to each other.  It is only 1 hour and 40 minutes away by flight one-way and an air ticket costs about $1,800 round trip.  Neither party can claim inconvenience for his/her witnesses to travel to another jurisdiction for trial.  The travel history of the Mother and her mother, the job nature of the Father and his parents showed that it was not inconvenient for any of them to fly.

104.  On balance, solely from the perspective of the trial, Taiwan is the more appropriate forum because of paragraph 101 above.

E5.  Existence and stage of proceedings in Taiwan

105.  The Taiwan proceedings were of a much more limited scope than the OS.  The Father sought a confirmation that he is the father.  The Father could have (according to the Mother’s legal opinion on Taiwan law in reply) in the same proceedings asked for allocation of parental rights but the fact remained that he had not.  The confirmation turned out to be academic in view of the Mother’s acknowledgement of the Father’s status.  The Taiwan proceedings have effectively ceased in March 2019. 

106.  The Mother considers the withdrawal as a tactical move to strengthen the Father’s position on the forum issue.  On the other hand, she has allegedly instructed her Taiwan lawyers to make a fresh application against the Father seeking, amongst others, sole custody of the Child.  However, no Taiwan proceedings appears to have been commenced by the Mother and there is no risk of inconsistent decisions between 2 courts.

107.  Mr Chan SC submits that the Hong Kong court has made a total of 6 orders on “substantive” matters including interim custody, care and control and access.  In contrast, Taiwan has only made 3 orders, all of procedural nature (granting the Father the right to the household registration transcript, transferring the case from the Taipei Court to Taoyuan Court and granting the Father the travel records of the Mother and the Child). 

108.  With respect, I do not think the Hong Kong court orders could be regarded as “substantive” ones.  They were interim measures to preserve the status quo and maintain the welfare of the Child pending trial. 

109.  I do agree, however, that the Hong Kong courts have more knowledge of the case up to now than our Taiwan counterparts.  The parties and the Child are more affected by the Hong Kong court orders than the Taiwan ones, especially in the sense of rebuilding the father and son relationship and working out access smoothly.  Both parties have filed affirmations and Form Es.  SIRs have been called for.  Parties appeared to have agreed to joint custody.  Subject to filing of any affirmation to update the parties’ position, the substantive issues (principally on relocation and maintenance for the Child) are ready for trial.

110.  In summary, there are no on-going Taiwan proceedings.  For the reasons given in this section and without disrespect, any order made in Taiwan do not carry much weight on the question of stay of proceedings.  Whilst a suitable forum for trial, the Taiwan courts cannot be said to be clearly or distinctly more appropriate than the Hong Kong courts.

E6.  Financial and other hardship on the Mother

111.  The Mother has sought to file the affirmation of her solicitor, Lo Yee Hang, to give an estimate of the legal costs and time needed to dispose of this case.  It could have been filed earlier and its lateness has deprived the Father of the opportunity to answer it.  However, the information is useful although one needs to apply some common sense as regards the level of legal fees.  This court also applies its own knowledge of the court’s diary in the High Court. 

112.  The Mother’s side estimates that it will take 3 years and 3 months including appeal to the Court of Appeal for the case to finish.  This is much longer than the process in Taiwan: which both parties estimate to be about 1½ to 2 years. 

113.  The Mother is currently out of job. According to the letter from her employer, her unpaid leave is until the end of 2019.  It is likely that she would lose her job if the case is tried in Hong Kong. She has depleted her savings such that the balance is now only about    [a 5-digit figure].  She has been granted $15,000 as interim maintenance from the Father plus taxi fares for travelling between her home and the Father’s on days of access.  With an income of just under HK$25,000, the Father cannot afford better accommodation for the Mother and the Child.  She has to seek help from her parents but that cannot last for long. 

114.  In addition, it is more costly to litigate in Hong Kong (estimated at HK$4,000,000 for the Mother) than in Taiwan (estimated at HK$48,000 to $78,000) for all issues up to appeal to the Court of Appeal.  She submits that the Father comes from a wealthy background and has the ability to instruct an international firm to represent him.  On the other hand, she cannot afford the legal costs of private representation.  She has difficulty as a mother (as opposed to a wife) in seeking litigation funding from the Husband.  She submits that fairness demands that the case should be tried in Taiwan.  She relies on the case of Re K.

115.  In my view, all these factors are relevant but not conclusive.  Otherwise, parties would be forced to litigate in the jurisdiction where legal services are the cheapest or quickest.

116.  In any case, the present case is a far cry from Re K which has peculiar facts.  There, the Mother was in dire circumstances.  Here, life forced on the Mother and the Child in Hong Kong may be difficult but not impossible or without temporary support.

117.  Even if I am wrong, first of all, I do not think this is a complicated case that should take so long to resolve.  I repeat paragraph 109 above.  The amount of about HK$4,000,000 (for one party) for this case is quite disproportionate to the substantive issues presently disclosed.  (This court hopes that such costs could be saved to enable the purchase accommodation for the Child in Taiwan or Hong Kong).

118.  Secondly, even ignoring the Mother’s estimates on costs, experience tells that it is clearly more costly to litigate in Hong Kong than in Taiwan.  However, the Mother is eligible for legal aid but chooses to be privately represented.  She is not at risk of lack of legal representation. 

119.  Thirdly, the employer’s letter merely stated that the Mother has “applied” for unpaid leave until December 2019.  It did not state whether the application was granted, or that the Mother could not extend the unpaid leave. In any case, the Mother was Hong Kong born, had worked and could work in Hong Kong while the maternal grandmother takes care of the child, in the unlikely event that the case needs 3 years to finish.  There is no suggestion that she will have difficulty finding a job.

E7.  Findings

120.  The court may order a case to be tried in one jurisdiction although the Child is habitually resident in another.  An example is SPH v SA, where the children were resident in Hong Kong but because the parents have previously submitted to the jurisdiction of Singapore and there was a court order governing rights over the children, the Hong Kong courts declined jurisdiction.

121.  Here, the Child had been habitually residing for 22 months in Taiwan in terms of time but it was not shown that he had socially integrated into Taiwan.  To the contrary, he has shown gradual social integration in Hong Kong through his interest classes.  There is no need for a court to be equipped with local knowledge and experience of Taiwan before it can determine issues under the OS/the Custody Summons in accordance with the Child’s best interests. The substantial drop in quality of his accommodation is off-set by his rebuilding of relationship with the Father.

122.  As a carer, the Mother’s own integration is in doubt.  The court is cautious of her unilateral removal of the Child to Taiwan.  By conduct, the Mother has invoked the jurisdiction of the Hong Kong courts by issue of the Custody Summons.  Past Taiwan proceedings involved procedural steps and there is no ongoing proceeding in Taiwan.  From the perspective of the trial she cannot even show it is inconvenient for her witnesses to come to Hong Kong. Whilst it is costly and may take more time to litigate in Hong Kong, that disadvantage to the Mother is temporary and she can apply for legal aid. 

123.  She fails to establish that Hong Kong is not an appropriate forum or that Taiwan is clearly or distinctly the more appropriate forum.

F.  WHETHER THE FATHER WOULD SUFFER PERSONAL OR JURIDICAL DISADVANTAGE IF THE CASE IS TRIED IN TAIWAN

124.  The alleged personal disadvantages that the Father would suffer can be classified as follows:

(1)     The Hong Kong proceedings have indisputably been on foot for a long time and affected the parties more substantively than the Taiwan proceedings.

(2)     To require the Father to give up all the time, costs and effort already invested in the Hong Kong proceedings and litigate in Taiwan will cause hardship.  It will be disadvantageous to deprive him of the benefit of the accumulated experience, familiarity and established trust of his lawyers with the case.

(3)     The delay and additional expenditure of financial resources on either party arising out of a stay will harm the interests of the Child.  It is axiomatic that with the lapse of time, a child would settle down in the new environment. In such circumstances, further disruptions occasioned by any reversal of the decision of relocation (requiring another exercise of re-adjustment on the part of the child) may give rise to adverse impact on the child's development.  See ZJ v XWN, at §59, CA; LN v SCCN, §35. 

125.  With regard to item (1), in my view, these proceedings could only be treated as having been “in real progress” since December 2018. The orders made were but interim.  I do agree, however, that they affected the parties and the Child more substantively than the Taiwan proceedings.

126.  Item (2) does not carry much weight.  The evidence so far is paper-based.  It can easily be referred to the Taiwan lawyers if litigation is conducted in Taiwan. 

127.  Item (3) actually operates against the Father.  It is much less costly to litigate in Taiwan and the living expenses for the Child and the Mother are lower.  However, it is not necessarily faster than in Hong Kong having regard to the issues.  Given his young age, any relocation order by the Taiwan courts would not cause much disruption to the Child.  Two years later when the case finishes in Taiwan, there would still be time for the Child to adjust or catch up before joining a Hong Kong primary school.

128.  In the meantime, the Father (and, of lesser importance, his extended family) would lose the convenience of access to the Child.  However, his job nature requires him to travel out of Hong Kong for over half of the time in a month on average.  There is no great prejudice to him to visit the Child in Taiwan or pick him up from there for access in Hong Kong.  That is also the recommendation of the social worker in SIR-2.

129.  I find the personal disadvantages to the Father to be more theoretical than real.

130.  As to juridical disadvantages, Mr Chan SC submits that the consequence of trying the action in Taiwan is that:

(1)     If the Taiwan court makes the equivalent of an order granting sole custody to a parent, that parent can decide matters for the Child without seeking the other parent’s consent or even informing the other parent.  That is not the same in Hong Kong. A non-custodial parent has the right to be consulted on matters that relate to a child’s upbringing.  That right does not include a power of veto but a right to be able to confer on the matter in issue, to give advice and to have that advice considered: PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191, §38, Hartmann J. 

(2)     If the Taiwan court makes the equivalent of a joint custody order, it will usually appoint a primary carer and that carer has the right to decide important matters concerning the child without the consent of the other parent.  This is different from Hong Kong where both parents effectively have a power of veto over decisions for the child and the parents are expected to cooperate: PD v KWW, §55.

(3)     The Father may only pursue a removal application in Taiwan or oppose the Mother’s decision to remove the Child from Taiwan if he has joint parental rights. That process will take approximately 1½ to 2 years.

(4)     The Father will have no rights over the Child in the interim pending trial in Taiwan.

131.  With respect, Mr Chan SC is merely comparing the effects of a sole custody order in Hong Kong and Taiwan.  He does not say that the Taiwan courts will grant such an order in this case.  The reason is plain – there is nothing to indicate that the Taiwan courts will favour a single mother and act without regard to a child’s welfare.

132.  All the legal opinions show that the law is not very much different between Hong Kong and Taiwan.  Both jurisdictions:

(a)     Treat a child’s welfare as of paramount importance;

(b)     Treat legitimate and illegitimate children equally save that the illegitimate child’s surname should follow that of the mother in Taiwan;

(c)     Entertain an application by the Father for relocation and non-removal orders; 

(d)     Recognize the Father’s right to exercise parental rights once he acquires the legal status as the Child’s father;

(e)     Use indirect enforcement measures.

133.  To allay the worries of the Father, if this court is minded to order a stay of proceedings, it will make “safe harbour orders” before permitting the Child to leave Hong Kong.  These would include requiring the Mother to apply for mirror orders in the Taoyuan District Court (i) acknowledging the Father’s parentage; (ii) for joint custody and joint parental rights; (iii) interim access; and (iv) non-removal of the Child from Taiwan without consent of the Father or permission of the Taiwan courts.

134.  In my view, the Father’s alleged concerns as to juridical disadvantages are equally more theoretical than real.

G.  BALANCING ADVANTAGES OF THE TAIWAN FORUM WITH DISADVANTAGES THAT THE MOTHER MAY SUFFER IF NO STAY

135.  The Mother has failed to discharge her burden under the first test as explained in section E.  The Stay Summons shall be dismissed.

136.  If the Mother has discharged her burden, there is no personal or juridical disadvantage that the Father would suffer that could not be removed by appropriate safe harbour orders.

137.  Though it is substantially more costly to litigate in Hong Kong, the Mother can use legal aid.  Any disadvantage to her is monetary and temporary. But the advantage is to the Child and the Father in rebuilding their relationship without adversely affecting the Child’s relationship with his primary carers. That is a kind of real advantage which would benefit the Father and the Child in the interim and even after trial.  To refuse a stay is not unjust: MacShannon.

H.  VARIATION OF INTERIM ACCESS

138.  The Feb Access Order defined the interim access as including:

(a)     For 6 hours each day for 3 days per week including a Saturday or Sunday in July and August 2019; and

(b)     For 8 hours each day for 3 days from Monday to Friday, and overnight access every other Saturday or Sunday thereafter until further order.

139.  Since then, access has gradually worked out and the condition of the Child is said to have become more stable.  The Father has been exercising access although he occasionally had to skip the opportunity.

140.  The Mother (sensibly) no longer seeks an order for the Child to be seen by a clinical child psychologist.  However, she proposes variation of terms of access if the court does not grant a stay of proceedings: 

(a)     Week day access becomes 6 hours on every Friday and Sunday up to the end of August 2019; 

(b)     Access from September to December 2019 becomes every Friday after school to 7 pm; and every Sunday from 10 am to 4 pm;

(c)     Access from January 2020 becomes every Friday after school to 7 pm; weekend staying access from Saturday 12 noon to Sunday 4 pm; and

(d)     The Mother requests that staying access should not start until the Child turns 3 on 15 December 2019 to address his need for a sense of security.

141.  The Father’s proposals, as stated in Ms Irving’s written submission, is for:

(a)     Staying access to start in September; and given his travel commitments, he proposes it to be from noon on Saturday to noon on Sunday; and

(b)     Dinner once a week after school on Friday, consistent with the Feb Access Order.

142.  It is clear from the SIRs that the Father has shown commitment towards building a relationship with his son after losing time for 22 months.  The relationship appears to be strengthening.  The Father has made practical arrangements for the Child in his home, with necessary equipment and toys.  The Child has had naps in the Father’s home during access.  The residence of the Father should be familiar to the Child by now.

143.  The Child is used to being looked after by more than one person.  Whilst the Mother spent time on her trips, presumably the Child was left to the maternal grandmother.

144.  I see no reason why staying access should not start until the Child reaches the age 3.  The Father has the obligation to learn to take care of his son who may wake up during the night, and should appreciate the hard time the Mother has gone through in the last 2 years. 

145.  The Father in fact asks for shorter hours for staying access.  I see no reason why the Mother should not accept that, as it will give her some time with the Child at weekends.

146.  Since access has been working well, I see no reason for cutting down the interim access from 8 hours to 6 hours from September until this court shall see the plans for schooling from September. 

147.  Given that the Father will have 8 hours’ access on 3 weekdays, there will be sufficient time for 2 meals with the Child each time.  I see no reason for prescribing a time for dinner beyond what has been ordered in the Feb Access Order.

I.  ORDER

148.  At the hearing, a number of procedural matters have been dealt with.  I summarize the orders made:

(1)     There be leave to amend the Stay Summons to change the forum to Taiwan Taoyuan District Court;

(2)     There be leave to the Mother to adduce a supplemental legal opinion dated 16 May 2019 in reply.

149.  I further order as follows:

(3)     There be leave to the Father to adduce the supplemental legal opinion provided to the Mother on 30 May 2019;

(4)     There be leave to file Lo Yee Hang’s affirmation;

(5)     That §1 of the Amended Stay Summons for stay of proceedings on the ground of forum non conveniens be dismissed.

(6)     All previous interim access orders shall cease and, starting from September 2019, be replaced by the following until further order:

(a)     For 8 hours each day for 3 days from Monday to Friday;

(b)     Starting from 6 September 2019, overnight access every other week, from 12 noon on Saturday to 12 noon on Sunday;

Save as aforesaid, the application to vary the Access Order is dismissed. 

150.  The Mother and the Child have been stranded in Hong Kong for 8 months by now.  There is heavy financial burden on the parties and their parents.  The parties have exchanged offers openly (from the consent summons in 2016 to the Mother’s proposed undertakings if there is a stay at this hearing).  SIR-2 has made recommendations.  The major issues thus far are relocation and maintenance of the child. This case should proceed to trial quickly, to be completed in the first quarter of 2020, if not 2019.

151.  I therefore direct as follows:

(7)     Within 14 days from the handing down of this decision, the parties shall jointly submit one memorandum of directions for the further conduct of this case with the estimated dates when the case is ready for trial. Disputed directions should be put into square brackets.  Anything that does not appear in this joint memorandum will not be considered;

(8)     The memorandum should set out eg any interim directions as to schooling, responsibility for school fees and necessary expenses and any consequential variation as to interim access;

(9)     There should be a short explanatory note of not more than 2 pages of font-size 14) attached to the draft directions setting out briefly both parties’ reasons for each disputed item.

J.  COSTS

152.  It was not unreasonable for the Mother to see how interim access worked out and consider the recommendations of the social worker. The order now made by the court accommodated the Father’s needs.

(10)   There be an order nisi that there be no order as to costs of the Variation Summons. 

153.  As regards the Stay Summons, in principle, costs should follow the event and be to the Father.  However, the broader picture should be looked at before the court would decide on costs, eg whether there has been mediation and if not, why not. 

154.  Further, this court discourages interlocutory applications that do not have the proper perspectives of the substantive issues in mind.  The Father has “won” on a procedural step.  But how has that helped in narrowing down or resolving the substantial issues?

155.  The parties might have together spent, maybe, HK$500,000 on this procedural matter.  If so, this would be quite disproportionate to the issues at stake and the money could have been better spent on education funds for the Child.

156.  I therefore reserve the question of costs until after disposal of the OS.

K.  COSTS ON PREPARATION OF HEARING BUNDLES

157.  The hearing bundles were prepared late by the Mother’s solicitors. Those bundles were, by far, the worst set that this court has ever received in children proceedings.  They did not comply with PD 5.4. 

158.  Despite this court’s strong criticism of the use of “running bundles” in H v W, HCMC 6/2008, §786-787, running bundles were lodged for the present hearing.  There was no sorting of documents into comprehensible sections and documents not relevant were included.  The court could hardly read in advance of the hearing to understand the full picture without losing track along the way. There were photocopied documents which could not be read (eg the Father’s statement to the police) or were unclear (eg photos); I presume they were not intended to be read. 

159.  The hearing was stood down for 45 minutes for the parties to remove the unnecessary documents.  Even after some sorting, the final bundles were still not in good order.  Documents were not in chronological order. Bundles A (without marking as A1, A2 etc) was interspersed with summonses, SIR, legal opinions and court orders.  There was ridiculous pagination in Bundles A like “81el1-81e11”, “81k1-81k24”.  The legal opinion of the Mother in reply was split into 2 bundles.  The court had to re-sort the documents after the hearing for the purpose of judgment writing. The correspondence bundle was virtually useless.

160.  I require the Mother’s solicitors to show cause in writing within 7 days as to why they should not bear all costs on indemnity basis for preparing such bundles and the wastage of hearing time.

161.  Last but not least, I thank counsel on both sides for their thorough preparation and able assistance.