LCHY v. CWF & OTHERS

HCMP 5231/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5231 OF 2001

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R U L I N G (1)

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1. The hearing of this case started on last Thursday. One of the issue is whether I should refuse to order the return of the children to New Zealand by reason of Article 13(b) of the Hague Convention. It is argued by the 2nd and 3rd Defendants that there is a grave risk that their return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. The risk, according to the 2nd and 3rd Defendants, comes from the mental condition of the Plaintiff which renders her unable to take proper care of the children and the inappropriate behaviour of another child of the family towards L, one of the children.

2. On Friday, 7 December 2001, the Court of Appeal handed down its reasons for judgment in D and G, CACV 3646 of 2001 in open court. It is common ground that that judgment laid down an approach in dealing with a defence under Article 13(b) different from the authorities in other jurisdictions.

3. Notwithstanding that, it is my duty as a judge in the Court of First Instance to follow our Court of Appeal. Although this is a decision on the Hague Convention and for the sake of international comity, one would expect local court to adopt an approach consistent with overseas authorities, the omission of any reference by the Court of Appeal to the relevant authorities overseas in the judgment of D and G does not render the decision per incuriam.

4. The rule of stare decisis is set out in the case of Morelle v Wakeling [1955] 2 QB 379 at p. 405:

"In the light of these authorities it was the contention of the Atthorney-General that the question whether a decision had been given per incuriam was not to be determined according to any hard-and-fast rule but was one of degree, depending upon the special circumstances of the case. He referred to the language of Lord Greene M.R., which we have earlier quoted: "We do not think it would be right to say that there may not be other cases of decisions given per incuriam" (i.e., other than decisions given in ignorance or forgetfulness of a statute or a rule having the force of a statue) "in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts." In the first Morelle case (so ran the Attorney-General's argument) the circumstances were of a very special and unusual character; and he referred particularly to the subject-matter, the law relating to mortmain, which is of a specialized and highly technical character and which very infrequently comes before the courts; to the fact that the arguments were brief, counsel for the plaintiff company having only been instructed in the afternoon before the case came on for hearing; and to the absence of any sufficient emphasis, consequently, upon the connexion of the law relating to mortmain with the feudal conception of land tenure, and upon the fact that the Act of 1888 was a consolidating and amending statute.

We have been unable to accept this argument. As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene M.R., of the rarest occurrence. In the present case it is not shown that any statutory provision or binding authority was overlooked, and while not excluding the possibility that in rare and exceptional cases a decision may properly be held to have been per incuriam on other grounds, we cannot regard this as such a case. As we have already said, it is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which the judgments were based and to say of it: "Here was a manifest slip or error." In our judgment, acceptance of the Attorney-General's argument would necessarily involve the proposition that it is open to this court to disregard an earlier decision of its own or of a court of co-ordinate jurisdiction (at least in any case of significance or complexity) whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that the researches and industry of counsel could provide. Such a proposition would, as it seems to us, open the way to numerous and costly attempts to re-open questions now held to be authoritatively decided. Although, as was pointed out in Young v. Bristol Aeroplane Co. Ltd., a "full court" of five judges of the Court of Appeal has no greater jurisdiction or higher authority than a normal division of the court consisting of three judges, we cannot help thinking that, if the Attorney-General's argument were accepted, there would be a strong tendency in cases of public interest and importance, to invite a "full court" in effect to usurp the function of the House of Lords and to reverse a previous decision of the Court of Appeal. Such a result would plainly be inconsistent with the maintenance of the principle of stare decisis in our courts."

5. Those principles were applied by our Court of Appeal in Leung Chui-ying v Chow Sui-kwan [1982] HKLR 419 at p. 422. In Cheung Lai Wah v The Director of Immigration [1998] 1 HKLRD 772 at p. 779 F to J, Chan CJHC (as he then was) said as follows:

"It is quite clear that the opinion of this court in the David Ma case on the legality of the Provisional Legislative Council was the second reason for the decision in that case and formed part of the ratio decidendi. It was not merely on obiter dictum. That being the case, the decision on that issue is, rightly or wrongly, indeed binding on this court. This is so unless it can be demonstrated that we were per incuriam. It is not sought to argue that this court's decision in that case was per incuriam in that we had failed to follow or had misinterpreted any decision of the Court of Appeal or a higher court or had overlooked a statutory provision.

Mr Ma submits that even if we now think that our earlier decision was wrong, we are still bound by that decision. He relies on Halsbury's Laws of England (4th Ed) Vol 26 at para 578 on 298:

Even if a decision of the Court of Appeal has misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House of Lords to rectify the mistake.

That is indeed the legal position. Even if we were now to take the view that our previous decision was wrong, unless we fall within certain restricted exceptions (which do not apply in these appeals), we are still bound by that decision. The only remedy lies with the Court of Final Appeal which is the only authority that can rectify it."

6. Mr Coleman argued that even though the overseas authorities are not strictly binding upon the Court of Appeal, that decision could still be regarded as per incuriam. He submitted that those cases should have been discussed by the Court of Appeal when it departed from an established approach in the application of the Hague Convention. He referred me to Beaumont & McEleavy, The Hague Convention on International Child Abduction, p. 138-140. The following English cases on interpretation of Article 13(b) were also cited to me in the course of these proceedings:

(a) Re F [1995] 2 FLR 31;

(b) E v E [1998] 2 FLR 980;

(c) Re C [1999] 1 FLR 1145;

(d) TB v JB [2001] 2 FLR 515.

I was told that none of these cases had been cited to the Court of Appeal in D and G.

7. I do not think that this is sufficient to establish that the decision in D and G is per incuriam. Mr Coleman has not been able to cite to me any case which shows that there is a special rule of stare decisis in the context of construction of an international convention. I cannot choose to prefer overseas authorities over our Court of Appeal decision even in the setting of the Hague Convention. It is not for me to say whether the Court of Appeal was right in adopting a different approach. According to Chan CJHC (as he then was), the only remedy lies with the Court of Final Appeal.

8. Mr Coleman also argued that D and G is per incuriam because it is inconsistent with the plain meaning of Article 13(b). He submitted that under Article 13(b), the burden is on the party opposing the return of a child to establish a grave risk of physical or psychological harm or intolerable situation. Mr Coleman said that paras. 19 and 33 of the judgment of D and G reversed the burden of proof. In effect, he submitted, the Court of Appeal required a plaintiff to remove all risks of physical or psychological harm or intolerable situation before an order for return could be made.

9. I agree with Mr Coleman that if it could be shown plainly that the Court of Appeal had wrongly interpreted the Convention, it is my duty to apply the plain meaning of the Convention instead of following the Court of Appeal. In Farrell v Alexander [1976] 1 QB 345 at p. 359, Lord Denning MR said:

"No court is entitled to throw over the plain words of a statute by referring to a previous judicial decision. When there is a conflict between a plain statute and a previous decision, the statute must prevail."

10. However, I do not think the Court of Appeal reversed the burden of proof. In D and G, the judge in the Court of First Instance was not able to dismiss the allegations of sexual assault (see para. 16 of the judgment of the Court of Appeal). Instead of directing that psychiatrist's report be called for in Hong Kong, the learned judge acted on a letter from the Swiss Central Authority and ordered the return of the child to Switzerland on condition that the Swiss Central Authority would ensure investigation into these allegations. The Court of Appeal disagreed with that approach.

11. In essence, the Court of Appeal held that once the court felt that the allegations could not be safely ignored or discounted, it was duty bound to reach a decision on whether a grave risk of physical or psychological harm or intolerable situation had been established. It could not leave the allegation hanging in the air and relying on investigation by an overseas authority. This must be what the Court of Appeal meant when reference was made to the resolution of doubts regarding the allegations in paras. 19 and 33 of the judgment.

12. I do not think the Court of Appeal went further to hold that in the process of such resolution, the burden of proof was on the party requesting the return to disprove the allegation. The question of burden of proof did not appear to be in dispute in D and G.

13. I accept that reading in isolation, the following sentence in para. 33 of the judgment may suggest a higher onus is placed on the plaintiff:

"After all, it has to be satisfied that when returned, there is no risk that the child would be exposed to physical or psychological harm or the child being placed in a intolerable position as required by Article 13(b) of our Convention."

However, for reasons already given, I hold that this was not meant to be understood as reversing the burden of proof. What Cheung JA had in mind could be gathered from the latter part of para. 33:

"Unless the court can reject the allegation contained in the affidavit, because it is so inherently incredible or unreliable, it should consider whether there is independent extraneous evidence in support of the allegation. The view of an independent psychologist or psychiatrist who specializes in sexual abuse of children cases provides the appropriate independent evidence."

In some of the English cases on Article 13(b), reports from the Court Welfare Officer were obtained. Hence the decision of the Court of Appeal in this respect cannot be described as plainly wrong.

14. That was the first limb of Article 13(b). The Court of Appeal held that the court must come to a decision on it. If a grave risk is not established, that is the end of the matter. If such a risk is established, we come to the second limb, viz. the discretion. According to the Court of Appeal, there is no half-way house.

15. It cannot be disputed that even if a grave risk is established, Article 13(b) still provides for a residual discretion to be exercised because it stipulates that the requested authority "is not bound" to order the return of the child. The Court of Appeal held that in the exercise of discretion, the court had to consider whether adequate and sufficient practical measures are in place to ensure that the child would not be exposed to the risk of harm (see the last two sentences of para. 19 of the judgment).

16. The Court of Appeal further held that in connection with this limb, proper evidence as to the measures in place is required (see paras. 20 to 22 of the judgment).

17. In summary, the Court of Appeal construed Article 13(b) as involving a two stage test:

(a) investigation as to the allegations raised by the opposing party to decide whether there is a grave risk as to physical or psychological harm or intolerable situation;

(b) if the answer is yes, an exercise of discretion in the light of the evidence as to what measures are in place to alleviate the risk.

18. Whilst there may be arguments as to whether such construction of Article 13(b) is in line with the authorities overseas, I do not think it can be said that such construction is plainly wrong in the sense that it is against the plain meaning of Article 13(b).

19. Mr Coleman submitted that the protective measures should be taken into account at the first stage of the consideration. If proper measures are in place, he submitted that grave risk could not be said to be established. There might be some force in that submission. However, in the end I am not persuaded that it must be so and I therefore cannot say that the Court of Appeal is plainly wrong. In fact, if Mr Coleman is right on this point, it is difficult to envisage a scenario where discretion could be properly exercised in favour of ordering the return of a child once a grave risk is established. With regard to the consideration of protective measures in the context of discretion instead of that of grave risk, the judgment of Hale LJ in TB v JB [2001] 2 FLR 515 at 530 [57] to [59] seems to be in line with the Court of Appeal (contra. Arden LJ in the same case at p. 542 to 543 [96] to [102]).

20. In the circumstances, I hold that the ratio of the Court of Appeal's decision in D and G is as summarized in Paragraphs 11 to 17 above (insofar as it is relevant for present purposes). I further hold that such decision is not per incuriam and is therefore binding on me.

21. Applying those principles to the present case, I find that I am not in a position to dismiss the concerns raised by the 2nd and 3rd Defendants as without substance. To enable me to reach a decision on whether a grave risk is established, I need to call for reports. I also need more specific evidence on several aspects regarding measures that could be implemented to alleviate the risk. I shall hear parties on directions as to future conduct of the proceedings.