Y v. M

CACV 333/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 333 OF 2002

(ON APPEAL FROM HCMP NO. 598 OF 2002)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from an order of Hartmann J given on 31 July 2002. The proceedings before the judge were part of wardship proceedings which had been commenced in February of this year. The order made by the judge was as follows:

"1. The Plaintiff should write to the United States Consulate General, for the attention of its Immigration and Naturalisation Service, and to attached a copy of the Ruling made by the Honourable Mr. Justice Hartmann dated the 31st day of July 2002.

2. The Plaintiff's Solicitors should seek answers from the United States Consulate General regarding the following questions in which the Court wishes to know:

i) Is the child present lawfully resident in the United States?

ii) Is the child at present lawfully able to attend public school in the United States, that school being an elementary school in Brooklyn, New York?

iii) Are there avenues which having regard to the particular circumstances of the child, can be taken to regularise her position in the United States, both as to her residence there and as to her schooling there, without her first having to return to Hong Kong? If so, what are those avenues?"

Background

2. The matter arises in this way: the plaintiff is the father of the 'child', and the mother is the defendant. Both the plaintiff and the defendant have speech and hearing impairments. The plaintiff had come to Hong Kong in 1964 and had married the mother in 1991, whilst she was in China. The child of the marriage was born in 1992. The mother and daughter only came to Hong Kong in 1997 but, it seems, very soon afterwards the marriage unfortunately fell apart. Divorce proceedings followed. In May 1999, Deputy Judge Jenkins made an order which covered amongst other things the custody of the child. Custody was given to the defendant with reasonable access for the plaintiff. An order was made that the child should not be removed from Hong Kong without leave except if there was consent of both parents.

3. Although there has been no adjudication which specifically covers this aspect, it appears that there were difficulties not only between the father and mother but also between the father and the child. Nevertheless, the father did have supervised access to the child in the period up to June 2001. It seems that then the defendant took the child with her when she visited her own mother and other relations who lived in New York. It would appear that initially it was intended that the visit would be temporary. There is reference in the papers to a "Humanity Visa" in a context which would indicate that the visa was granted because of the grandmother's illness. Other indications in the papers are that the defendant and her daughter travelled on a tourist visa. The distinction between these two types of visas has not been explained to this court.

4. It appears that the child found circumstances in New York congenial. There is a report from the Administration for Children's Services of the City of New York dated 29 August 2002, which, of course, would not have been available to the judge below, which indicates that the child has the benefit of living in her maternal uncle's house together with her cousin who is slightly older and her maternal grandmother. The accommodation would seem to be considerably superior to that which the child would enjoy if she returned to Hong Kong. She has also been able to gain entry to a local school and her English is of high standard.

5. The plaintiff only discovered the exact whereabouts of and contact details for his daughter in April 2002. Because of that, these proceedings had already been commenced in February 2002. The child has been made a ward of court and the Originating Summons seeks an order that she should remain a ward of court. One of the reliefs sought was that the defendant should disclose the present whereabouts of the child. It is quite clear that the wardship proceedings are also directed to obtaining an order that the defendant should secure the return of the child to Hong Kong.

6. The Unites States Central Authority has given instructions for proceedings to be commenced under the Hague Convention in New York. Despite the fact that we were told that there are difficulties in communication between the plaintiff and the lawyer representing him in New York, the matter is likely to come before the court in New York.

7. In those circumstances the wardship proceedings in Hong Kong have still proceeded. At the hearing on 31 July, the judge had before him evidence which included evidence from the defendant and from her brother, the daughter's maternal uncle. The uncle's affirmation states that the child holds a "tourist" visa which has an expiry date of 2006. It also appears that the school where she studies is a public school in Brooklyn, New York. The judge also had shown to him one, if not two, letters from the Immigration and Naturalisation Service of the United States Department of Justice written from the American Consulate-General in Hong Kong. That letter indicates that a holder of a visitor's visa would normally be granted a six-month stay as a visitor upon entry, but that there could be an extension of the stay for an additional six months granted locally. The letter indicated that there may be difficulties in the child being permitted to attend school in the United States depending on her immigration status.

8. In the light of that the judge was concerned as to the child's status in the United States. The judge considered that these were matters which he may have to take into account in deciding what order to make in the wardship proceedings. The judge was concerned about the propriety of making an order in wardship proceedings the effect of which would be to sanction a stay in a foreign country which would be illegal by the laws of that country. The order which the judge made was clearly be an unusual interlocutory order.

9. The thrust of this appeal was that, in the first place, matters should await the outcome of the Hague Convention proceedings in New York and in the second place the judge's order might well precipitate action being taken by the Immigration Authorities of the United States which might not otherwise be the case. It was pointed out that the child was living openly in the United States attending school and indeed the report had been obtained from the Administration of Children's Services which referred to the child's immigration status.

10. This is a decision which I find particularly difficult because I, too, like the defendant's counsel, am apprehensive that it may ultimately cause the return of the daughter to circumstances where she would be materially worse off. On the papers before this court I consider that it would not be possible to come to any conclusion other than that the daughter was materially better off in New York than she would be in Hong Kong. The major drawback of the present arrangements would seem to be that the mother is not with the child. The maternal grandmother has had her naturalization interview and established her eligibility for naturalization. Once naturalized she will be in a position to apply for the mother to join her in the US. How soon the mother might be able to join her daughter seems to be an open question. Other than the mother's presence it would seem that the child is benefited by the present arrangements. In saying that, I do not lose sight of the fact that as a practical matter the child has no contact with her father. On the papers before the court it would seem that child's relationship with the father has been strained and not entirely happy. The court can only be caused to question whether the attempts to remove the child from her present environment are motivated by a desire to benefit the child. That, however, is beside the point in the present appeal.

11. After giving the matter further consideration following the first hearing, this court invited the parties to make submissions in relation to whether the wardship proceedings should be continued or whether the matter would be better dealt with as part of the matrimonial proceedings. At the adjourned hearing, this court's attention was drawn to passages in Wardship: The Law and Practice by Nasreen Pearce and in particular to the passage in Chapter 13 dealing with termination of wardship. There, it is said:

"An application to deward the child may be made at any time. In deciding whether to make the order or not, the court will consider what is in the best interest of the child.

There may, however, be cases where the wardship may be discontinued without a full investigation into the merits of the case. The following are some examples:

...

(c) the court may decline to exercise jurisdiction, eg where there is in existence a foreign court order;

(d) kidnapping cases (see Chapter 16) where, eg the foreign court is already seized of the matter;"

12. It seems to me that in the circumstances of this case the best course would be to discontinue these proceedings without deciding the merits of the case. In the first place, these proceedings are essentially a question of custody and care and control which are conveniently dealt with as part of the matrimonial proceedings. The initial application in the wardship proceedings was, of course, in circumstances where the father did not know the exact whereabouts of the child. As already noted, obtaining that information was part of the relief initially sought. There appears to be little need for the continuation of the wardship proceedings since all the relief which is now sought is best dealt with as part of matrimonial proceedings in general.

13. The concerns of the court in relation to the child remaining illegally in the United States are, in any event, a matter which are best considered by a court of that country which would be far more attuned to the law and practice relating to child relatives of those already in the country. The matter is destined to come before the courts in New York in the course of the Hague Convention proceedings. Furthermore, it is apparent that the child is progressing very well in the public school in New York whose authorities are well aware of the child's immigration status. The child is therefore not remaining in the United States in a clandestine manner and indeed furthermore, the matter has also already been drawn to the attention of the United States Consulate in Hong Kong.

14. In my view, therefore, the appropriate order for this court to make is that the wardship proceedings should be discontinued. The matter of the child remaining in New York can await the outcome of the Hague Convention proceedings. If necessary, the matter can also be dealt with in the matrimonial proceedings in the District Court which is the appropriate place for the consideration of contested custody matters. There should be an order nisi that there be no order as to costs.

Hon Le Pichon JA:

15. I agree.