RS v. BK also known as MBK

HCMP 796/2018

[2018] HKCFI 1814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 796 OF 2018

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J U D G M E N T

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Introduction

1.  The is an application for the return of a child to Singapore under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Convention”) and pursuant to the Child Abduction and Custody Ordinance Cap 512 (“Ordinance”).

2.  The application was initiated on 30 May 2018 by the Secretary of Justice in his capacity as the Central Authority designated under the Ordinance, and pursuant to a request by the Singapore Central Authority on behalf of the father of the child (“Father”).

3.  The mother of the child (“Mother”) opposes the return.

4.  At a direction hearing on 6 June 2018, this Court directed the Director of Social Welfare to submit an urgent report on the Child’s views under article 13(2) of the Convention.  The report was submitted on 20 June 2018 by a social work officer Ms Lo Lai-king (“SWO”).

5.  Shortly before the substantive hearing, by consent, the Secretary of Justice was replaced by the Father as plaintiff and the Mother became the sole defendant in these proceedings.  Ms Mahomed Yasmin Ebrahim (“Ms Mahomed”) appeared on behalf of the Secretary of Justice as an observer to render any assistance to the court.  Counsel Mr Kay Chan appeared for the Father and Mr Ng Man Kin appeared for the Mother.

6.  At the hearing, the Court had raised various queries on the law of Singapore and Ms Mahomed kindly agreed to assist by making enquiries to the Central Authority of Singapore.  After submissions, the parties’ Counsel also requested the Court to withhold its decision as the parties would like a further 14 days to attend mediation to see whether their disputes could be resolved amicably while the Father was here physically.  Time was thus given, but unfortunately the parties were not able to come to any agreement and after meeting with the Child, the parties were given time to make further written submissions.  All this had resulted in a delay in this judgment being handed down.

Background

7.  The parties were married in September 2006 in Singapore. They have a son, who was born in Singapore in November 2007 (“Child”), and who is now about 10 years 9 months old.

8.  The Father was born in July 1982 in India and holds a Singapore passport.  He is currently employed by a company in Singapore as a technical assistant.  He has a 59 year old mother whom he lives with and his brother is also living and working in Singapore.

9.  The Mother was born in June 1982 in Hong Kong and holds an Indian passport.  She was brought up here and speaks fluent Cantonese and was working in a jewellery company as a quality control coordinator before she moved to Singapore.  Her father had passed away and her 64 year old mother and all of her siblings who are married are residing in Hong Kong.  

10.  The Mother moved to Singapore to live with the Father after their marriage.  Since then and until 2015, she was a full time housewife, and she said she was the main caretaker of the Child, but the Father also claimed that he had been involved in the upbringing of the Child.

11.  In 2013, the parties jointly purchased an apartment in Singapore (“Property”).  After purchase, the parties, the Child and the Father’s mother (“Paternal Grandmother”) moved in to reside in the Property.  In 2015, the Mother started working as a personal secretary for a Singapore company and since then until about early January 2018, the parties had employed an Indian domestic helper to assist in looking after the Child.

12.  The Child started attending a primary school in January 2014 and was studying at the same school for 4 years.  The Child was diagnosed with autism and delayed speech when he was about 2 years old but his autistic tendencies subsided in recent years.  According to the Father, the Child had since 6 months old slept with the Paternal Grandmother until he was 10 years old, or about late last year.

13.  The relationship between the parties broke down in early 2017 round about the time the Father started to have an extra-marital affair with his colleague but the Father said his brief extra-marital relationship had ended in November 2017.  The Father had also made a vague allegation that the Mother had an extra-marital affair with his friend when the Child was about 2 years old which ended in the same year.

14.  The Mother on the other hand said their marriage was a happy one until about April 2017 when the Father admitted to her that he had been having an affair with his colleague.  Since then, the parties’ relationship started deteriorating. 

15.  Anyway, the parties had made cross allegations against each other.  The Father alleged that the Mother had mental health history and he had produced suicidal notes from her, one of which dated 28 May 2017, and that since discovering that he had an extra-marital affair, the Mother began to exhibit self-harming tendencies and the Father produced photographs showing injuries inflicted by the Mother on herself.  On the other hand, the Mother had made various allegations of threats and violence by the Father against her and the Child which I will go into later.

16.  It was the Mother’s case that she and the Father had signed an agreement on 8 October 2017 (“Custody Agreement”). However, the Father’s case was that the Custody Agreement was a forged document. 

17.  It was not really disputed that there was a serious incident on 1 January 2018.  The Mother said thereafter she decided to leave Singapore for Hong Kong with the Child.  The Mother later resigned from her work in February 2018.

18.  The Father denied that he had consented to the Mother relocating to Hong Kong with the Child.  Anyway, according to the Father, on 21 March 2018, when the Father returned home from work, he found that the Mother and the Child were not at home.  He reported the matter to the police on 28 March 2018 and later came to know that they had travelled to Hong Kong on 21 March 2018 and were residing with the Mother’s family in Cheung On Estate in Tsing Yi. 

19.  The Father had also alleged that the Mother was psychologically unstable after the she and the Child came to Hong Kong and that there was an incident during which she had assaulted her own mother (“Maternal Grandmother”) in Hong Kong on 7 April 2018 and that the Maternal Grandmother made a report to the police.

20.  The Mother however said that after arriving in Hong Kong, she and the Child stayed in the Maternal Mother’s home that night and thereafter had stayed in her friend’s home in Sha Tin from 22 March 2018 to 4 April 2018.  The Mother did not deny that there was an incident on 7 April 2018 involving her and the Maternal Grandmother who disapproved of her intended divorce from the Father but denied having hit the Maternal Grandmother.  Anyway, the Mother said that through the help of her former domestic helper (“Helper”), she and the Child had moved to stay in the Helper’s cousin’s flat on the 7^th floor of a walk up old building in To Kwa Wan.  On 17 April 2018, the Mother found employment with a company as a shipping clerk with working hours from 9:30am to 6:30 pm 5 days a week.  According to her, while she is at work during the day time, the Helper’s cousins assist in the care of the Child, and that the Mother’s younger brother also goes there to help.

21.  On 23 May 2018, the Father made a request to the Singapore Central Authority for the return of the Child to Singapore.  The originating summons was issued by the Secretary for Justice on 29 May 2018.  The substantive hearing took place on 6 July 2018.

Issues

22.  It was not disputed that the date of removal of the Child from Singapore was 21 March 2018 (“Removal”).  It was also not disputed that the Child was habitually resident in Singapore immediately before the date of the Removal.

23.  The Mother had raised the following issues:

(i)  Whether the Father held “rights of custody” before the Removal of the Child and whether the Removal was wrongful;

(ii)  Whether the Father had consented, and/or subsequently acquiesced in the Removal or retention of the Child in Hong Kong;

(iii)  Whether there is a grave risk the return of the Child to Singapore would expose him to harm or otherwise place him in an intolerable situation;

(iv)  Whether the Child objects to being returned to Singapore.

24.  At the hearing, Mr Ng clarified on behalf of the Mother that she was only relying on the Father’s consent prior to the Removal, and not acquiescence.

Whether the Father held rights of custody

25.  Under Article 3 of the Convention, the Removal was to be considered wrongful where –

“(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

26.  Further, Article 3 states that the rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

27.  The rights of custody are different from the rights of access.  The two terms are defined in Article 5 of the Convention as follows :

“For the purpose of this Convention-

(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;

(b) ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”

28.  As said earlier, the Mother alleged that the Father had signed the Custody Agreement and had given up his rights of custody prior to the Removal.

29.  The Custody Agreement[1] provides that :

(i)  the Father agrees that the Mother shall have the “primary and physical custody” of the Child [Clause A1];

(ii)  the Father agrees to let the Mother relocate to any country of her wish with the Child.  A contactable phone number, email address and postal address should be given once relocated [Clause A4];

(iii)  the Mother should get the legal custody of the Child and she will be the main parent in charge of making substantial decisions for purposes such as education, medical care of the Child’s general safety except when emergencies or exigent circumstances in which do not allow her to confer decision, she will act in the best interest of the Child [Clause B1];

(iv)  the Father agrees not to claim the custody of the Child or any of his family member will claim the Child’s custody now and in future [Clause J3].

30.  The Father’s case in his affirmation was that the Custody Agreement was a forged document and his allegations were:

(1)  The agreement was disjointed in its content as the subheadings were “out of sync”;

(2)  The Father said he signed an agreement in February 2018 and not in October 2017;

(3)  The clauses under section A were different to the clauses in the agreement signed by him;

(4)  Even though the signature on the last page of the Custody Agreement was indeed the Father’s, the pages before the signing page had been replaced;

(5)  The Whatsapp messages and Facebook posts adduced by Father indicated that the Mother was carrying out a covert operation akin to an “escape” and that the Mother would not have needed to resort to such action if the Father had consented to the removal or relocation of the Child.

31.  When the Father was asked by the SWO about the Custody Agreement, he had told the SWO that he was threatened by the Mother to sign on the agreement and he had never agreed to give up the custodial rights of the Child and neither had he agreed that the Mother could relocate to any country of her wish with the Child.

32.  The Mother had explained that :

(i)  In about September 2017, the Father took a loan from a loan shark and on 20 and 26 September 2017, the loan shark harassed the Mother and threatened to harm and kidnap the Child from his school, and on 26 September 2017, the Mother made a report to the police.  After the incident, the Mother said she made up her mind to separate from the Father;

(ii)  In early October 2017, she searched some law websites relating to the law of custody and downloaded a template of child custody agreement from the website and made some amendments on it;

(iii)  She gave a copy to the Father and that after a lengthy and serious negotiation between them, they finally reached an agreement and that she and the Father voluntarily signed the Child Custody Agreement on 8 October 2017.

33.  At the hearing, this Court had enquired from which website/s the Mother downloaded the template for the Custody Agreement, as it would appear that subheadings in the Custody Agreement produced by the Mother jumped from “E” then to “I” although the page numbers were in sequence. The Mother had provided a website address to the Court at the hearing, but the Father’s legal representatives could not find the template therein. Subsequently, on 12 July 2018, the Mother’s solicitors sent a letter to the Court to explain that the Mother searched the internet extensively to gather information on the divorce and custody law and that the template was downloaded from one of the websites she visited, and she thought it was the one she provided to the Court but “believed she must have mixed up the things and her mistaken belief should have been caused by the lapse of time”.  She apologised for the incorrect information provided to the Court.

34.  The Mother had produced copies of 3 series of whatsapp messages (respectively “MBK-13”, “MBK-14” and “MBK-15”), in support of her case that the Father had consented to her relocating with the Child[2]. The Father on the other hand alleged these were examples of the Mother “creating fake whatsapp conversations and taking screenshots of them to support her made up story”.

35.  MBK-13 was in relation to living and working in Spain and its state healthcare.  These were undated although the Mother claimed they were sent in mid-January 2018[3].

36.  MBK-14 bore the words “Screenshot of_20180206-173047.png” which appeared to be messages between the Father and the Mother on 6 February 2018.  According to the Mother, after she reported the incident on 1 January 2018 to the police, she had told the Father that she decided to move back to Hong Kong with the Child and that the Father agreed on the condition that he had to transfer her interests in the Property into his name[4].  The messages were as follows:

Mother:	So I have proof and no one can stop me from taking dev with me
Father:	U prepare the letter u giving the house and u taking Dev both of us thumbprint and sign
Mother:	no you admit I will only give u the letter the day when I leave I din trust you Once give you the letter (later) you kick us (out) cheap xxxx like you can do this type of cheap things so you say you choose that xxxxxx and the house over me and dev
Father :	I won’t kick my son out U can put in the date u leaving

37.  According to the Mother, MBK-15 consisted of messages between the parties after she had taken the Child to Hong Kong[5].  The screenshot of MBK-15 showed as follows:

Father:	U say u want Dev what
Mother:	You are still in your lala land You go talk to your lawyer first
Father:	Oh so ur plan is Dev and house la GD luck then
Mother:	Look at your intention Good
Father:	Going
Mother:	Now you are block byr We will see in court Don’t worry I will file divorce in Hong Kong You can go do what you want
Father:	U can’t have both

38.  It is not clear why the Mother only produced screen shots of whatsapp messages for MBK-13, MBK-14, MBK-15.  The difficulty with these screen shots is that there were no dates on those messages, nor was it clear the context from which they were extracted.  By comparison, the Mother had produced copies of detailed records of the whatsapp messages between the Father and the loan shark from 19 September 2017 and 28 September 2017 with dates and times[6].

39.  Anyway, so far as the MBK-13 messages were concerned, they were said to be sent in January 20218 seemed to be one sided messages during which the Mother was talking about living and working in Spain. As for the MBK-14 messages, the 1^st message from the Mother was that no one could stop her from taking the Child with her, and what she did not say was that the Father had already signed an agreement agreeing to her having legal custody of the Child and she could relocate to wherever she wanted with the Child.  Further, the parties appeared to be exchanging messages as to who should have the Property and whether the Mother could leave the Property with the Child.  There was no indication in those messages that the Father had consented to the Mother leaving Singapore with the Child and to come to Hong Kong.  So far as those MBK-15 messages, according to the Mother, they took place after the Removal, and they would not support the Mother’s case that the Father had given up his rights of custody prior to the Removal or had consented to her taking the Child to Hong Kong prior to the Removal.

40.  The MBK-15 messages appeared to show that the Father had said to the Mother she could not have both the Property and the Child and this would appear that the Father would agree to her having either the Property or the Child.  The Father denied that he was trying to negotiate with the Mother over the Child, and he had said that the Property was jointly owned by the parties and he had never demanded the Mother for her to transfer her interest in the Property to him in exchange for giving up custody of the Child to the Mother.

41.  The Father admitted that the Mother had mentioned in a casual conversation in September 2017 that she wanted to leave Singapore and that she had mentioned India, Spain and Hong Kong as her options but the Father said he had never agreed to her leaving for any of those countries with the Child. 

42.  The Father admitted signing a custody agreement in February 2018 without prior legal advice and believed that it had no legal effect as it did not have a witness.  As said earlier, he told the SWO he signed the agreement involuntarily under threats.  He had said when he refused to sign, the Mother harassed and threatened him including calling his workplace incessantly and threatening to commit suicide with the Child.  The Father also said at the time of signing, he was certain Section A clauses 1 to 4 regarding the “Physical Residence” of the Child were not in the agreement, and that the Mother had inserted those clauses after he had signed it unwillingly in February 2018.

43.  In support of his case, the Father had produced copies of whatsapp chat messages between the Mother and her family with the date 8 February, which showed the Mother had said “if i take dev he will report kidnap….  Then if he dun sign i will play dirty games, I will sign his signature and give the school ask my maid sign as witness”[7].  There were also messages on 9 February from the Mother to her family, indicating that the following day the Child was going with the Father to a birthday party and that she would be alone at home and that she was going to pack her things and to keep them at her friend’s house[8].

44.  The Father had also produced copies of the Mother’s posting on Facebook indicating that the Mother had referred to “The Escape Plan !!” and then “The Escape Plan was a success !!” with the front pages of her passport and the Child’s passport and portion of their boarding passes for the flight from Singapore to Hong Kong[9].

45.  The messages from the Mother to her family and her posts on the Facebook were in my view telling.  There was no need for the Mother to pack or to leave her luggage at a friend’s place, nor would she have referred to her leaving as an “escape plan” had the Father already signed an agreement of legal effect voluntarily giving up his rights of custody and/or consented to her relocation with the Child.

46.  As stated in the affirmation of Ms Mohomed, section 3 of the Guardianship of Infant Act of Singapore Cap 122 of the Laws of Singapore states, a father and a mother have equal custody rights/responsibilities of an infant in respect of custody of the infant.  Further, Sections 6(1) and 6(2) of the Guardianship of Infant Act indicate that both parents of an infant, if they are alive, are both natural guardians with equal rights on the question of custody of the Infant.  Ms Mahomed has further stated that in lieu of any court order to the contrary the Father has joint parental rights/responsibilities with the Mother over custody of the Child and in the present case the Mother and the Father have joint rights of custody in relation to the Child, and that these rights of custody have been breached by the removal of the Child to Hong Kong by the Mother without the Father’s consent. 

47.  As said by Ms Mahomed, based on the information available, on the face of it, the requirements of ‘wrongful removal of the Child’ within the meaning of Article 3 of the Convention had been met[10].

48.  Ms Mahomed had made sought further input from the Singapore Central Authority on the questions raised by this Court, namely:

(i)  What is the legal effect of the Custody Agreement on the rights of custody of the Father over the Child under Singapore law;

(ii)  What is the Singapore Court’s power of overview (oversight) over this form of arrangement (agreement) under Singapore law;

(iii)  Whether the Father has given up his rights of custody over the Child by signing the Custody Agreement.

49.  The response from the Singapore Central Authority was that they were unable to provide specific legal advice, and they could only refer to the relevant sections of the Singapore law and a judgment of the Singapore Court of Appeal in TQ v TR [2009] 2 SLR (R), [2009] SGCA 6.  Mr Ng has in his further skeleton submissions set out the relevant provisions of section 125 and 129 of the Women Charter, Chapter 353 of the laws of Singapore and also what was held by the Singapore Court of Appeal in TQ v TR, amongst other things, that :

“As a matter of general logic as well as principle, the courts must always have the power (whether at common law or under statute) to scrutinise both prenuptial as well as post nuptial agreements relating to the custody (as well as the care and control) of children. There would be a presumption that such an agreement is unenforceable unless it is clearly demonstrated by the party relying upon the agreement that the agreement is in the best interests of the child or the children concerned[11].”

(emphasis in the judgment)

50.  Mr Ng submitted that the Custody Agreement is in the best interest of the Child.  However, the present application is under the Convention and the matter for the Court is to decide whether the Child is to be returned to Singapore, the place of the Child’s habitual residence and the place which shall have jurisdiction over him.  Any return order, in the event it is made, will not present or restrict the Mother from taking out an application before the Singapore Court for custody, care and control of the Child and for permission to relocate under the Laws of Singapore.  Whether the Custody Agreement is a valid agreement and whether it will be upheld is a matter for the Singapore Court to decide, in the course of those proceedings.

51.  At present, the Father has raised issues over the circumstances in which the Custody Agreement was signed by him, and whether the agreement he signed indeed contained those provisions in the Custody Agreement.  The parties’ evidence as to the signing of the Custody Agreement will have to be tested in a proper trial where they can be cross examined, and the burden is on the Mother to demonstrate that the agreement should be upheld in the best interests of the Child after a proper trial. As held in TG v TR, there is a presumption that the agreement is unenforceable.   

52.  Having considered all the above, and on the face of the available evidence including the whatsapp messages from the Mother to her family and also her posts on Facebook, I do not find that the Father had given up his rights of custody by signing the Custody Agreement as alleged by the Mother.  The Father has satisfied this Court that he continued to hold rights of custody immediately prior to the Removal and that those rights were actually exercised or would have been so exercised but for the Removal.  In the circumstances, the Removal was wrongful under Article 3 of the Convention as it was in breach of the Father’s rights of custody under the Laws of Singapore where the Child was habitually resident immediately before the Removal.

Whether the Father had consented to the Removal

53.  Article 13 (1) (a) of the Convention provides that:

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

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

54.  Apart from relying on the Custody Agreement pursuant to which the Mother said the Father had agreed to her relocation to any country of her wish with the Child, the Mother had also said that she tendered her resignation in mid February 2018 and that from February 2018 to March 2018 she had informed the Father and his family numerous times of her departure to Hong Kong.  It was also the Mother’s evidence that her luggage was well packed and kept in the room of the Property where the Father was able to see and that the Child had also informed the Father’s relatives and the Paternal Grandmother about his departure to Hong Kong and that he would be staying in Hong Kong for good, and that no one had raised any issue at that time.  According to the Mother, the Father was well aware in advance of their departure date.

55.  Apart from MBK-13, MBK-14 and MBK-15 mentioned earlier, the Mother had not produced any other evidence to support her case. As I said earlier, the whatsapp messages from the Mother to her family and her posts on Facebook did not really support her case.

56.  Having considered the present evidence before this Court, I am not satisfied that at this stage there is sufficient evidence that the Father had consented to the Removal.

Any grave risk under Article 13(1)(b)

57.  Article 13 (1) (b) of the Convention provides that:

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

(a) … or

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

58.  In M and E CACV 75 of 2015 unreported, Reasons for Judgment 05.06.15, Cheung JA summarised the principles relating to the exception of grave risk as follows[12] :

“(i) The burden of proof lies on the party who opposes the return of the child. It is rarely appropriate to hear evidence on this issue.

(ii) The risk to the child must be grave. It means the risk has reached such a serious level as to be considered grave. The word ‘grave’ is related to the risk rather than the harm itself, although ‘risk’ and ‘harm’ are often linked.

(iii) The grave risk associated with return is either of the children’s physical or psychological harm which is unqualified or they would otherwise be put in an intolerable situation. The latter means a situation that the child should not reasonably be expected to tolerate or put up with, such as physical or psychological abuse or neglect of the child.

(iv) This exception is concerned with the future when the child is returned to his home country.  At the same time one would expect protective measures for the child to be put in place by the Court of the child’s own country.”

59.  Cheung JA had also in his judgment quoted the following passages from the joint judgment of Baroness Hale and Lord Wilson JJSC in In re E [13]:

“32  First, it is clear that the burden of proof lies with the “person, institution or other body” which opposes the child’s return.  It is for them to produce evidence to substantiate one of the exceptions.  There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities.  But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process.  It will rarely be appropriate to hear oral evidence of the allegations made under article 13(b) and so neither those allegations nor their rebuttal are usually tested in cross-examination.

33  Second, the risk to the child must be “grave”.  It is not enough, as it is in other contexts such as asylum, that the risk be “real”.  It must have reached such a level of seriousness as to be characterised as “grave”.  Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two.  Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm.

34  Third, the words “physical or psychological harm” are not qualified.  However, they do gain colour from the alternative “or otherwise” placed ‘in an intolerable situation” (emphasis supplied).  As was said in In re D [2007] 1 AC 619, para 52, “‘Intolerable’ is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’”.  Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation.  Every child has to put up with a certain amount of rough and tumble, discomfort and distress.  It is part of growing up.  But there are some things which it is not reasonable to expect a child to tolerate.  Among these, of course, are physical or psychological abuse or neglect of the child herself.  Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent.  Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

35  Fourth, article 13(b) is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country.  As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand.  More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home.  Mr Turner accepts that if the risk is serious enough to fall within article 13(b) the court is not only concerned with the child’s immediate future, because the need for effective protection may persist.”

60.  The Mother’s allegations consisted of :

(i)  The Father had taken a loan from a loan shark and that on 20 and 26 September 2017, the loan shark harassed her at her office and threatened to harm the Child and to kidnap the Child from his school;

(ii)  In around October 2017, the Father bought a machete and kept it in the Property without any licence and that he had pointed at her twice with the machete;

(iii)  On 14 October 2017, she was slapped by the Father at the Property;

(iv)  The Father had also used violence towards the Child ;

(v)  On 1 January 2018, she was brutally beaten up by the Father in the presence of the Child.

Harassment by loan shark

61.  As mentioned earlier, the Mother had produced details of the whatsapp messages between the Father and the loan shark between 19 to 28 September 2017.  The Mother had also produced copies of the reports made to the Singapore Police respectively on 20 September 2017 and 26 September 2017[14]. The earlier report was made by the Mother and the 2^nd report was made by the Father.

62.  The Father had said the loans taken out from the loan shark were for household expenses because his monthly income of SGD 2,500 at that time was insufficient to cover all household expenses and he said all the loans had since been repaid with the help of the Paternal Grandmother and there were no further harassment.

63.  Although the Mother had said that because of the loan shark incident she had made up her mind to separate from the Father and to bring the Child out of Singapore to make sure the Child was safe, in fact it would appear that she continued to live in the Property with the Child after the incident and the Child continued to attend the same school, and there was no evidence that there was any further harassment from the loan shark after the police reports and/or after the Father said the loan was repaid.  There was also no other allegation of threats or harassment from loan sharks apart from that one time during the parties’ marriage.

The machete

64.  The Mother alleged that keeping the machete in the Property without any licence was illegal and that the Father had claimed that he bought it for self-protection, and that she felt so scared as the Father had pointed the machete at her twice to threaten her.  The Mother had produced a photograph of the machete and copy of a receipt showing that the Father had bought the same on 10/2/2017.

65.  The Father in his affirmation explained that his job duties were electromagnetic cable spooling and splicing and that he was working outdoors where his machineries (spooling winch) were set up beside a row of tress with protruding branches and leaves which sometimes affected his access to his machineries.  The Father explained that the machete was for the purpose of cutting down the protruding branches and leaves but before it was used, the Mother took it and hid it from him. Apart from the photograph and the receipt, there was no other evidence to support the Mother’s allegation.

66.  As pointed out by the Father, there was no mention of the Father threatening her with the machete in any of the Mother’s reports to the police as exhibited her Mother’s affirmation.  

The 14 October 2017 incident

67.  The Mother alleged she was slapped by the Father during the incident on 14 October 2017 and that she had reported the matter to the police.  The Mother had produced a copy of the medical form of her being referred by the police to the hospital for medical examination[15].

68.  On the other hand, according to the Father, on 14 October 2017, he was physically attacked by the Mother during their row and that he was referred to the hospital for medical examination by the police and he had also produced a copy of the medical form[16].

69.  The extent of their respective injuries was not known, nor had a full report of their respective complaints been produced.  The incident appeared to be one when they had both hit each other.

Alleged violence towards the Child

70.  The Mother alleged that the Father had used violence towards the Child by slapping his face and whipping him with a belt or rattan and that the Father had also repeatedly verbally abused the Child. However, no particulars were given by the Mother as to the approximate time/date/year or the occasion which gave rise to the alleged violence.

71.  The Mother had produced a “screenshot_20171002- 153735.png” of whatsapp messages between the Child and her[17].  In the messages, the Child had complained that the Father had called him “stupid idiot” as he had wet his pants and that the Father said the Child had wished the Father to die fast but the Child explained it was not true.  The Mother tried to comfort the Child and asked him not to worry and to leave the Father alone.

72.  The Father on the other hand had said he always kept his rows with the Mother out of the Child’s sight as he did not wish the Child to be affected by their turbulent relationship.  He said he had never beat or hit the Child for discipline or indeed any reasons and that on the contrary the Mother had a tendency to slap the Child and hit the Child with coat hangers when the Child did not behave according to her instructions, or when the Mother was in one of her temper tantrums.

73.  The was no report to the police made by the Mother concerning the Father’s alleged violence towards the Child.

74.  The SWO had reported that the Child felt happy when being with his father and his mother.  When he was asked how he felt without being able to see his father so often after coming to Hong Kong, he said he used to be happy with his father who played badminton and went swimming with him but he had become less attached to the Father after the latter had another girlfriend.  The Child had said the worst thing that he had come across was his parents’ violent acts towards each other and hope that both parent would not hurt each other again.

75.  Save as the alleged screenshot of a whatsapp message sent by the Child to the Mother there was no other evidence that the Father had used violence against the Child or verbally abused the Child.

76.  During my meeting with the Child, the Child did not express any fear for the Father and on the contrary he had said he enjoyed going out with his father and that they had always played games together.  I do not find there was sufficient evidence of threats or violence by the Father directed at the Child, save that the evidence did show that the Child had witnesesed his parents’ violent acts towards each other. 

The 1 January 2018 incident

77.  The Mother alleged that during this incident she was brutally beaten up by the Father in the presence of the Child and she had shown copies of photographs showing some of her injuries.

78.  The Mother did not file any police report immediate the same day.  She explained this by saying she did not wish the Father to have a criminal conviction and that she decided to move out from Singapore with the Child and to separate with the Father.  She said she had sent messages to the Father about her decision and that she would be taking the Child and that the Father did agree to that.  The Mother further said that the Helper resigned in early January 2018 after witnessing the incident and that the Helper had advised her to leave Singapore as soon as possible for her own and the Child’s safety.  However, the Mother did not produce any of the messages she allegedly sent to the Father save MBK-14 or any supporting evidence from the Helper.

79.  According to the Mother, on 6 February 2018 she received a whatsapp message from the Child’s school asking her to have an urgent meeting[18]. When she met the school teacher, she was told that the Child behaved strangely at the school and upon enquiries, the Child revealed to the teacher the ordeals the Mother suffered and in particular what the Father did to her during the 01.01.18 incident and that the Child had told the teacher he was very disturbed by the on-going harassment behaviour of the Father towards him and the Mother and he could not endure anymore and wanted to commit suicide due to what the Father did.  The Mother however did not provide any supporting evidence from the school as to what was said by the Child.

80.  According to the Mother, she told the school’s Vice Principal and also the School Counseller about the incident and that they urged her to lodge a police report against the Father.

81.  The Mother then lodged a report on 9 February 2018 and she had produced a copy of her police report[19].  She was referred by the police for medical examination for assault on her left eyes, face, stomach and elbow.  It was not clear what the results were but the police issued a “Notice concerning Non-arrestable/Non-criminal cases” (“Police Notice”) and did not take further action at that point and that the parties were only advised to pursue mediation. 

82.  The Father had written to the Child’s school and enquired over the allegations of the Mother.  The Father had produced a copy of the email dated 4 July 2018 from the School Counsellor[20].  According to the Counsellor, on 1 February 2018 (wrongly typed as 2017), the Child was having a frequent meltdown at the school and seemed afraid and traumatized and had mentioned to the teachers and to the Counsellor that when his parents quarrelled at home he would hide under the table or behind the chair and that there was a significant change of mood and emotions observed as compared to P1 to P4 (primary 1 to primary 4).

83.  According to the School Counsellor, on 6 February 2018, the Mother was invited to the school with a meeting with the Vice Principal to address the Child’s behaviour.  The Child’s mother mentioned that her marriage was breaking up and she had no desire to live in Singapore and she had intentions to bring the Child to Hong Kong to continue his education there as her family were there to support her and the Child.  The school asked the Mother to write to the school her intentions so that the school could release the result slip and other relevant documents as requested by her, but she had not done so until a home visit initiated on 20 March 2017 where she was asked to write a letter before the school handed the result slips to her.

84.  The complaints by the Mother to the police on 9 February 2018 were serious complaints.  Although the Mother had reported to the police on 14 October 2017 on the day of her being slapped by the Father, she chose not to report to the police the incident immediately on 1 January 2018. Her explanation of not wanting the Father to have a criminal conviction appeared to contradict the fact that later she did make a report.  Anyway, attached to the Police Notice is various information including where to apply for protection orders for family violence and also venues for seeking legal advice. There seemed to be no further step taken by the Mother for protection, even though according to her, she had told her boss that she and the Child had suffered from domestic violence and were very scared but had nowhere to go and that her boss had kindly offered them alternative accommodation in Singapore.  However, again, there was no supporting evidence from her boss.

85.  The Moher produced photographs to show she did suffer injuries but she had continued to stay at home and did not make an immediate report to the police or go to the hospital.  There was also no sufficient evidence that she had sought any other help apart from telling her boss.  Having said this, I accept that the evidence showed that the Child was traumatized by the incident.

Any physical or psychological harm or intolerable situation

86.  From the present available evidence, the alleged incidents of violence towards the Mother took place while the Mother and the Father were residing under the same roof.  There was no sufficient evidence that if the Mother were to return with the Child to live separately from the Father, the Child would be exposed to any physical or psychological harm.  The Father came to Hong Kong for the hearing and had had access to the Child.  There was no evidence that such access did not go smoothly or the Child was exposed to any harm.

87.  There is also no evidence that the Mother is not able to seek protective orders against the Father from the Singapore Courts in the event that the Child is ordered to be returned.  As said earlier, attached to the Police Notice, there is a list of information on where to apply for protective orders and to seek legal advice.  

88.  At the hearing, I have asked the parties whether they have any proposals for protective measures in the event if the Child were to be ordered to return to Singapore.  However, the Mother’s response was that she would not be returning to Singapore in any event, and if the Child were ordered to return, he would have to return alone without her.

89.  As said earlier, the Child was diagnosed with autism when he was three years old.  He was said to have experienced delayed speech development and has difficulty in communicating with others.  He is also said to have lacked social skills and that it is very difficult for him to establish trust and confidence on others.  The Mother claimed that she was the one who brought him to doctors’ appointments and corresponded with the doctors about his treatment progress.

90.  The Father said the Child’s autistic tendencies subsided in recent years.  According to the Father, the Child had slept with his parents since birth until he was 6 months old and he then slept with Paternal Grandmother until he was 10 years old or at about end of last year. The Father claimed that he had continued to be involved in the upbringing of the Child throughout his life, and that he had brought the Child to his doctor’s appointments, therapy sessions and to school personally and that he had brought him to visit a dietician and a nutritionist around 4 or 5 years ago.

91.  Prior to the Mother starting to work, as the Father had to work full time, I accept that the Mother was probably be the Child’s primary carer.  When the Mother took up full time work in 2015, the Child was about 7 or 8 years old.  Since then, it would appear that both parents had cared for the Child assisted by the Helper.  As mentioned earlier, the Child had also expressed to the SWO that he used to be happy with the Father but he had become less attached to the Father after the latter had another girlfriend.

92.  The Mother had said that owing to the continuous and close interactions with the Child, they had developed a strong connection and trust in their relationship and that the Child would not be able to adapt to any living environment without the Mother as no one else can sufficiently cater towards his needs.  In particular, the Mother has said:

(i)  The Child specifically refuses to take food from others including the Father and the Paternal Grandmother and is only willing to take foods the Mother provided to him;

(ii)  Due to his withdrawal behaviour from people, he is very reserved towards other people, including the Father and the Paternal Grandmother.  He does not like to make friends and only shares his feelings with the Mother;

(iii)  The Mother says she wholeheartedly devotes herself to the caring of the Child and there is a strong bond between her and the Child.

93.  Although the Father agrees that the Child is more reclusive than other children, the Father denies that the Child is only willing to take food from the Mother, and that he had personally given the Child food and so had the Paternal Grandmother.

94.  During my meeting with the Child, when asked what is his favourite food he said it is a secret and that the food he eats I must not know and only his family can know.  He did not say that only his mother knows what food he eats.  It is not quite clear what the Mother means by saying that the Child only takes food from her.  There is no evidence that the Child still needs to be fed by her.  If she means food cooked by her, the evidence shows that the Child has been away on holidays and has been to MacDonald’s.  In any event, I do not find that there is sufficient evidence before the Court that the Child would only take food from the Mother.  

95.  The Father had also said that the Paternal Grandmother would resign from her present job in order to take care of the Child on a full time basis.

96.  The Father denied that the Helper had resigned and said that she had returned to her home country India to get engaged and that the Helper had called the Paternal Grandmother on 3 July 2018 and she was considering to return to Singapore to work for the family after her engagement. According to the Father, the Helper has no relatives in Hong Kong. Anyway, the Mother herself has told the SWO that she and the Child are living in the flat of her friend.  It is not clear whether her friend is a cousin of the Helper or not.

97.  As reported by the SWO, the Child had expressed that he was most joyful when his mother was around, and the Mother was also the best person he regarded in the world and the worst thing was his parents’ violent acts towards each other.  He had hoped his parents would not hurt each other again.  He had said to the SWO that he preferred staying in Hong Kong as he wanted to make his mother happy and would not be happy about returning to Singapore.  As reported by the SWO, there is a close emotional bondage between the Child and the Mother.

98.  Having considered all the present evidence, I find there was no sufficient evidence of any violence or abuse by the Father towards the Child. I accept that there is close bond between the Child and the Mother and that the Child may be emotionally attached to the Mother.  On the evidence, the Child however also has a good relationship with the Father and they used to play badminton together.  No expert evidence had been produced by the Mother to demonstrate that there will be a grave risk that the Child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.  The burden is on the Mother to satisfy this Court of the grave risk defence and that on the present evidence before this Court, I do not find that the Mother has been able to discharge the burden on her.

The Child’s objection

99.  Article 13 (2) states that :

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

100.  In re M (Children) (Abduction: Child’s Objections) [2015] EWCA Civ 26 is a leading UK authority on the child objection exception.  As set out by Black LJ, as she then was :-

“In England and Wales, the normal approach to the child’s objections exception is to break the matter down into stages.  There is what is sometimes called the “gateway stage” and the discretion stage.  The gateway stage has two parts in that it has to be established that (a) the child objects to being returned and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views.  If the gateway elements are not established, the court is bound to return the child in accordance with article 12.  If the gateway elements are established, the court may return him or her but is not obliged so to do.  This approach has not been challenged before us.”

101.  Black LJ went on to consider the developments and divergence in approaches over the years.  As said by Black LJ, in so far as where the law stands in relation to the gateway requirements, “certain features can perhaps be treated as tolerably well established”.  These features are very briefly[21] :

(1)  Factual matters: whether a child objects to being returned is a matter of fact, as is his or her age, and that the degree of maturity that the child has is also a question of fact;

(2)  No chronological threshold: there is no fixed age below which a child’s objections will not be taken into account.  However, the younger the child is, the less likely it is that he or she will have the maturity which makes it appropriate for the court to take his or her objections into account;

(3)  Objections and not anything less: the child’s views have to amount to objections before they can give rise to an Article 13 exception, and anything less than an objection will therefore not do;

(4)  Objection to return to country of habitual residence: it is said that the child has to object to returning to the country of habitual residence rather than to returning to particular circumstances in that country although it has been clear from early on that there may be difficulty in separating out the two sorts of objections;

(5)  Objections are not determinative: the child’s objections cannot be presumed to be determinative of the application; once the court’s discretion arises, it is at large.

102.  Black LJ then dealt with the authorities which appear to reveal an inconsistency of approach at the gateway stage: on the one hand, a highly technical, structured, approach is described which requires the court to go in considerable detail into the circumstance in which the child objects called the (“the In re T approach”), and on the other hand, a much simpler exercise at the gateway stage, with the detail of the case being considered if and when it comes to determining whether return should be ordered (“the more basic approach”).

103.  Black LJ came to the view that the In re T approach should be abandoned :

“69. In the light of all of this, the position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Sub-tests and technicality of all sorts should be avoided. In particular, the Re T approach to the gateway stage should be abandoned.”

104.  The approach of Balck LJ in In re M was followed in LCYP and JEK (Children: Habitual Residence) [2015] 4 HKLRD 798.  Cheung JA had also said as follows in relation to “preference” as opposed to “objection”[22]:

“9.10 For my part, I do not find it necessary to go into a discussion on the true purport of the words ‘objection’ and ‘preference’. A forthcoming child may use the expression ‘I object to return to New Jersey’, while a child who is less forthcoming, particularly one who has concern about the feelings of both of his parents, may simply say ‘I prefer to stay in Hong Kong’. What is important is the substance of the views of the child and not simply the labels to be attached to his views.”

105.  The Child will be 11 years old in the last week of November this year.  He was about 10 ½ years old when he was seen by the SWO in June 2018. 

106.  As summarised by Mr Chan, the Child’s views as reflected by SWO were:

(1)  He felt happy when being with his father and his mother.

(2)  He used to be happy with his father who played badminton and went swimming with him but he had become less attached to his father after the latter had another girlfriend.

(3)  The worst thing that he came across was his parents’ violent acts towards each other. He hoped that both parents would not hurt each other again.

(4)  The Child stressed that he felt bored living in Singapore although the house was big there.

(5)  He preferred staying in Hong Kong because he wanted to make his mother happy.

(6)  When he was asked how he felt if he was arranged to return and live in Singapore and he said he would not be happy about it.

107.  The Mother had produced whatsapp messages that the Father said that the School Counsellor told him that the Child hated him a lot[23]. It was not clear when the messages took place, nor the context thereof.  In fact, the Mother herself had told the Father not to worry about that.

108.  I met with the Child on 27 July 2018 in the presence of my clerk with the parties absent.

109.  The Child had repeated several times that he likes to stay in Hong Kong because he likes it here.  He did not elaborate on why he likes Hong Kong, and the only reason given by him for saying that he likes it in Hong Kong appears to be that the room he sleeps in is “comfy”. He has also said “I just want to be with mummy”.

110.  Anyway, the impression I got is that the reason why that he wants to stay in Hong Kong is because he wants to be with mummy.  Having said this, he has clearly indicated his views of wanting to stay with his mother.  Looking at it the other way, he objects to being returned without the Mother.

111.  There is no dispute that the Child has attained an age and degree of maturity at which it is appropriate to take account of his views.

112.  I am prepared to accept that the elements at the “gateway stage” have been established.  I now come to the “discretion stage”. As said by Black LJ and quoted earlier, if the gateway elements are established, the court may return the Child but is not obliged so to do.

113.  I understand that the Child is at present in Hong Kong on a visitor’s visa, and if he is allowed to stay, the Mother will be applying for a dependant visa for him. 

114.  Although the Maternal Mother is residing in Hong Kong, the evidence is that, for whatever reason, the relationship between them is not a good one.  Apart from the incident of the alleged assault, during my meeting with the Child, he has said that Maternal Grandmother wants to “kick him out of the house” because she does not like the Mother, and the Child says he does not see the Maternal Grandmother.  Further, according to the Child, his maternal uncle (who also lives in Hong Kong) never talks to him nor does the Child want to see or to talk to his maternal uncle.  When asked whom he sees most often, and whether it is his mother’s sister, the Child responded: “Not my mummy’s sister, my mummy’s sister’s friend”, and he said he does not see his mother’s sister.  When asked again whether he goes to see his mother’s sisters and his cousins in Hong Kong, he said he has seen them before but now “very rare, super rare”. 

115.  From what the Child said, there seems to be not much support from the Mother’s maiden family in Hong Kong and there has not been much contact between the Child and his Hong Kong relatives or cousins. The Mother was still on probation for her job and she was working 5 days a week, from 9:30am until 6:30 pm, and the Child is left in the care of a friend of the Mother’s.  The Child had described the place he lives as “disgusting” and it seems that he stays in his room all the time since he is not attending any school at the moment.  He plays his iPad when he is bored and says he always “split up” his poster, throws it onto the ceiling, or on the wall or on the bed.

116.  By comparison, the Child appeared to be very much open up and animated when he was telling me about his previous holidays to Indonesia with his parents and the Paternal Grandmother, and when telling me about his friends at school, the games they played and his cousins in Singapore.  He did not answer my question directly when I asked him whether he missed the Paternal Grandmother, and told me instead that the Paternal Grandmother was banned from the Property on 1 January 2018 and that he could see her only when he visited his cousin’s house in Singapore.

117.  When I asked him what happens if he has to go back to Singapore, he has said 3 times, that “I return to my normal life without mummy”.

118.  The Child only speaks English and no other languages.  He has grown up in Singapore and has lived there since.  Although the Mother said the Child is very reserved and does not like to make friends, he has told me that he has 5 or 6 good friends at school in Singapore.  He has attended the same school for some 4 years and he will be able to go back to the same school if he returns and will be enrolled in primary 5.  Although he has said “no” twice when I asked him whether he wants to go back to his previous school, my impression is that this is mainly because he wants to stay in Hong Kong with his mother.  In any event, if the Child really prefers not to return to his previous school, there is no reason why another school cannot be found for him in Singapore.  If he returns to Singapore, he will be able to return to reside in the Property which had been his home for some 4 years.  I understand that the Paternal Grandmother has returned to reside with the Father and according to the Father, she will quit her present job to look after the Child.  As the Child himself has said, he will return to his normal life, only without the Mother.

119.  In my view, the Child’s home is Singapore. Bearing in mind he is said to be autistic and more reclusive than other children, and has delayed speech problems, it may not be easy for him to make new friends and /or communicate with children in Hong Kong, when most children’s mother tongue is Cantonese.  There is a lack of information provided by the Mother as to whether the school she is proposing for the Child to attend in Hong Kong has facilities or support for an English speaking child with no knowledge Chinese language and further with a history of autism and delayed speech problems.  There is also no written confirmation from the school proposed by the Mother that the Child will be accepted in the 2018-2019 school year.    

120.  No doubt, upon a return, the Child will have less physical contact with his mother with whom he has a close emotional bond. Singapore is not that far away from Hong Kong and there are frequent flights between the two places and the Mother can fly down to see the Child over weekends, or the Child can fly up to see his mother during school holidays.  The evidence shows that the Child communicates well with the Mother through whatsapp.  There is no reason why the Child cannot also communicate with the Mother by skype or by telephone.  I understand through Mr Chan that the Father is prepared to give the Mother generous access.  There is also nothing to prevent the Mother from seeking orders from the Singapore Court for custody care and control and/or access of the Child or an order to relocate the Child when all evidence can be placed before the Singapore Court for its decision.  

121.  Having considered all the present evidence, in my view, notwithstanding the Child’s objection, it is in his best interest that he should return to Singapore as soon as practicable.

Conclusion 

122.  In light of all the above said, on the Father’s undertaking that he will accompany the Child to return to Singapore and on the Father’s undertaking that he will give the Mother generous access, I order the Child to be returned to Singapore within 7 days of this order.  I will leave the parties to agree to the logistics of return.  I will also direct the Secretary of Justice and the Director of Social Welfare to assist if necessary. There will be liberty to apply in relation to the implementation of this order.

123.  I make no order as to costs, including any costs reserved, save that each party’s costs be taxed in accordance with Legal Aid Regulations.