T v. L

                     HCMP 376/2022

[2022] HKCFI 1418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 376 OF 2022

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JUDGMENT

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INTRODUCTION

1.  The originating summons herein is issued by the father of the Minor (“F”) for the return of the Minor (“AT”) to United Kingdom (“UK”) under the Child Abduction and Custody Ordinance Cap 512 (“Ordinance”) and the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (“Convention”).

2.  Notice of the application has been sent to the Hong Kong Central Authority and representatives of the Hong Kong Central Authority attended the directions hearing on 21 April 2022 and the substantive hearing on 10 May 2022 to render necessary assistance to this Court.

3.  At the directions hearing, the mother of AT (“M”) informed the Court that she had on 20 April 2022 commenced divorce proceedings in the Family Court under FCMC 1725/2022.  F had not yet been served at that time.  Such proceedings have since been stayed by this Court under section 20 of the Ordinance.

4.  The date of the removal of AT from UK by M was agreed to be 7 March 2022.  

5.  M has made it clear at the directions hearing that she objects to the return of AT to UK and further that if AT were to be ordered to return to UK, M herself would remain in HK.  F then decided to travel to HK to attend the substantive hearing.  He arrived on 2 May 2022 and had complied with the quarantine requirements in Hong Kong.

6.  Counsel Mr Felix Li appeared for the father (“F”) and the mother (“M”) acted in person throughout. 

BRIEF BACKGROUND

7.  Both F and M were born and raised in Hong Kong.  F is about to be 40 years old.  M is currently 34 years old.  The parties were married in Hong Kong in March 2014 and their daughter AT was born in September 2016.  AT is now about 5 years and 8 months old.  

8.  In July 2020, the UK Government introduced a scheme for BNO visa holders that allows eligible Hong Kong citizens to stay, study, and work in the UK (“Scheme”).  It is F’s case that the parties decided to emigrate to London under the Scheme after AT’s school year 2020-2021.  Prior to their emigration, F was working as an engineer in Hong Kong and M was a teacher. 

9.  F arrived in London earlier on about 21 June 2021 to complete the purchase of a house and to make arrangements for M and AT to arrive in July 2021.  The house is in Barnet and is registered in the joint names of F and his father (“UK Property”).  The UK Property has been the parties’ matrimonial home.  F secured a job as a Senior Design Engineer since January 2022.  AT was enrolled into reception class at a Catholic primary school where she was studying prior to the removal.

10.  Since AT arrived in England with M on 28 July 2021, until her removal on 7 March 2022, she was residing continuously in England.

11.  What was not disputed was that there was an incident on 25 February 2022 (“Incident”).  It was F’s case that he was shocked when M informed him that day of her intention to divorce him. Their conversation soon escalated into a heated quarrel.  M’s case was that F assaulted her on that occasion and M had called the police.  Further, F had demanded her and AT to leave, which they did. 

12.  As a result of M’s police report, F spent the night in police custody for questioning.  F was released on the next day with no further action taken by the police and no charges were laid against him.

13.  F’s case was essentially that the Incident was orchestrated by M.

14.  According to F, after he was released from police station the next day 26 February 2022 and regained access to his smartphone, he did try to contact M about her whereabouts with AT via Signal (a messaging application akin to WhatsApp), but M replied that she would only discuss with F on matters relating to divorce, without replying to his enquiries.  Two days later on 28 February 2022, upon receiving a call from AT’s school to notify F that AT had been absent from school without reasons, F once again contacted M about the same and asked M to take AT to school, even if the adults were still in the middle of conflict.

15.  It was M’s case that what F said above was incorrect and that he had never asked M as to her and AT’s whereabouts after they left home after the Incident.

16.  On the other hand, F said M had concealed from him her whereabouts with AT.  According to F, it was only on 28 March 2022 when he was contacted by M’s solicitors in Hong Kong Messrs Lo, Wong & Tsui (“LWT”) that he learnt that M and AT had left UK on 7 March 2022 and arrived in Hong Kong via Germany and were subject to compulsory quarantine in a hotel until 9 April 2022.

17.  Upon learning that M had removed AT out of UK, F contacted the UK Central Authority in late March. 

18.  It was F’s case that at that time he had no idea as to whereabouts of M and AT and that even when F’s Hong Kong solicitors Messrs Hugill & Ip (“HIP”) specifically asked LWT M’s and AT’s whereabouts, no information was provided.

19.  F decided to issue the OS herein on 13 April 2012 and he said it was only the day before the directions hearing when he received M’s 1^st affirmation that it was revealed to him about AT’s situation.  It was thus F’s allegation that he was deprived of information of AT from 25 February 2022 to 20 April 2022. 

20.  At the directions hearing, this Court directed that AT be interviewed by a social worker and her views be obtained.  As seen in the report by the social worker, upon arrival in Hong Kong, M and AT have been staying with M’s parents, M’s brother and their domestic helper in a village house in Sai Kung.  M has further reserved a school placement at one of the international schools for AT in Hong Kong.

THE ISSUES

21.  From what this Court can gather from M’s case, the issues in this application are as follows:

(1)  Whether UK was AT’s place of habitual residence immediately before the removal under Article 3 (1)(a) of the Convention (“Issue (1)”);

(2)  Whether M’s removal of AT was wrongful under Article 3 of the Convention (“Issue (2)”);

(3)  Whether F had consented or subsequently acquiesced in the removal under Article 13 (1)(a) of the Convention (“Issue (3)”);

(4)  Whether there is a grave risk that AT’s return would expose her to physical or psychological harm under Article 13(1)(b) of the Convention (“Issue (4)”);

(5)  Whether, if any, AT’s objection to return should be taken into account under Article 13(2) of the Convention (“Issue (5)”).

THE EVIDENCE 

22.  F’s application was supported by his 1^st affidavit on 12 April 2022, and M hers on 20 April 2022.  As M indicated that she wished to file a further affirmation, leave was given for her to file a 2^nd affirmation which was filed on 28 April 2022. F’s reply affidavit was sworn on 10 May 2022.

23.  As mentioned earlier, this Court had directed that AT be interviewed and her views be sought.  The social work officer (“Miss Tsang”) submitted her investigation report on 5 May 2022 (“SIR”).

ISSUE (1) – WHETHER UK WAS AT’S PLACE OF HABITUAL RESIDENCE IMMEDIATELY BEFORE THE REMOVAL

The legal principles

24.  The legal principles on habitual residence have been set out by our Court of Appeal in LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 where it is stated:

(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); 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).

(emphasis added)

25.  Guidance may also be sought from In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] AC 1038 where Baroness Hale stated at paragraph 63:

“The quality of a child’s stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another.”

(emphasis added)

26.  Mr Li has referred this Court to LM v HTS (Child Abduction: Habitual Residence) [2002] 1 HKC 194, a family left Hong Kong for Germany with the intention of building a new life in Germany. It was held that the stay in Germany for four months for a settled purpose was enough for the couple to take up residence there, as part of the regular order of their lives for the time being was established.

27.  Mr Li has also referred this Court to MJB v CWC (Hague Convention) [2018] HKFLR 331 in which a mother from Hong Kong had agreed to relocate with the father to the UK.  Even though the infant was in the UK for about ten weeks, it was held there was a sufficient degree of stability and integration in the social and family environment in the UK for the infant’s residence there to be habitual.

Parties’ intention

28.  F’s evidence was that she and M had carefully and thoroughly discussed the possibility of migrating to England, and they decided to migrate for the purpose of a better quality of family life and a better upbringing environment for AT.  They decided to migrate after AT’s school year of 2020-2021, and since making their “collective decision”, he took up the role to prepare “the hardware” such as purchasing the UK Property and making all the necessary applications and that M took care of AT.  According to F, although he was the one dealing with the purchase of the UK Property, he had also sought M’s consent before he made every decision, and she was well informed of each step he took.  There was no denial of this on M’s part.

29.  It was M’s case that F is an “ill-tempered habitual domestic abuser of physical violence and psychological aggression”[1] and that there had been at least three incidents of domestic violence, once in late 2016 when AT was only two months old and once was in 2018 when M moved to her parents’ home with AT who was only two at that time, and another incident in about May 2018 which was reported to the police.  After the incident in May 2018, the parties had attended marital therapy sessions arranged by the social worker which led to M returning home with AT.  M had said when the Scheme was announced, F was very excited about the opportunity while she was gravely worried about life away from Hong Kong with no family or social ties, but after many promises made to her by F, she agreed to F’s proposal by giving it “a try” for a life in UK as she also held an optimistic prospect that a change of living environment could help salvage their marriage.

30.  The parties’ former matrimonial home in Hong Kong was a flat in Taikoo Shing purchased in F’s sole name (“TKS Property”) and it was M’s case that the parties have kept the TKS Property as, so described by M, a “backdoor”, and that they only planned to give moving to UK “a try” but would return to Hong Kong if they eventually were to find UK not suitable for them.

31.  In her 2^nd affirmation, M stressed again that she had never agreed to live in UK permanently and that she simply wanted to explore the possibility of living in another country and that before going to UK, AT was attending a kindergarten and that it was the parties’ plan was for her to study in an international primary school and that they though it would not be an interruption for AT to take one gap year to study in UK.

32.  As for the TKS Property, in reply to what M said, F had produced a copy of the estate agency agreement[2] to show that the TKS Property was in fact put up for sale prior to M’s and AT’s arrival in UK, but as the property market was static, the property had and has not yet been sold. M then alleged that F had tried to sell the TKS Property without her knowledge or consent and that she could not understand how F could sign the agency agreement on 7 July 2021 when F had already left for UK in June 2021. 

33.  The estate agency agreement was for a period of two years from 7 July 2021 to 8 October 2023 during which the agency was appointed the sole agent for the period from 7 July 2021 to 7 October 2021[3] and the agent’s office was situate in the Tai Koo Shing estate.  Since M and AT only left Hong Kong on about 28 July 2021, and presumably still residing in the TKS Property until their departure, it would not seem possible for any agreement or any appointment for viewing to be made without M’s knowledge.  Anyway, there was no sufficient evidence before the Court at this stage to show that the estate agency agreement was not a genuine agreement or that it was entered into without M’s knowledge or consent.

34.  It was F’s evidence that M was excited about her new life in England and had she even sold her flat in Shau Kei Wan on 22 April 2021 for HKD 4m.  According to the Land Registry record, the flat was initially purchased on 9 September 2011 by M’s father (“Mr Lee”) and M as joint tenants and then Mr Lee signed a “nomination” to nominate M (stated to be the beneficial owner) to be the sole registered owner on completion of 17 November 2011.  M explained that the flat was in fact purchased by her father but to facilitate him to secure a mortgage, as M had a stable income, her name was registered as the sole owner in order to apply for a mortgage loan and that according to M, eventually Mr Lee got an income proof for mortgage and the flat was then registered in Mr Lee’s name on 22 April 2021.

35.  However, I do not quite understand M’s explanation since the Land Registry record indicates that the mortgage was in fact discharged on 22 April 2021, ie the date of the assignment by M to Mr Lee, and this would mean that the mortgage loan was paid off on that day.  There was thus no need for any income proof from Mr Lee for any mortgage as alleged by M.  In any event, for whatever reasons, it is clear is that on 22 April 2021, M has transferred out to her father what appeared to be the only landed property in Hong Kong registered in her name.  

36.  As seen in her affirmations, M’s case was that she was reluctant and pessimistic in the relocation and that apart from the TKS Property, they had kept their bank accounts and mobile phone plans.  Even if this is correct, this does not mean that it was not their joint intention and decision to relocate and to settle in England.  

37.  There was no sufficient evidence to suggest that there was a consensus between the parties to try relocating to UK for a specific period of time, or to review their relocation after any specific period of time.  There was no sufficient evidence to support M’s case that the parties’ joint intention was that the move was meant for a short period or for AT to have a “gap year”.  Had it only been intended for say a “gap year”, there was no reason why the parties could not have started to make enquiries or applications for AT for the academic year 2022-2023 prior to their move. 

38.  It was F’s evidence that M was equally excited with the idea of relocating to UK and that a main reason for M deciding to move was she wanted to become a designer and to achieve her goal and to aid her preparation, M had enrolled into classes in Hong Kong to prepare for her portfolio.  Unfortunately, she was unable to get into the university in UK of her choice as planned but instead she joined a short-term course at City and Islington College and a long term 2-year course at British Academy of Fashion Design.

39.  M responded in her opening submissions by saying that the 2 year course only consisted of 15 face-to-face lessons, which had been completed and the rest were online-leaning courses which could be accessed all over the world and that she only joined the course to kill time. 

40.  In any event, if indeed it was the parties’ joint intention to try and live in England for a short period of time, there was no reason why M could not attempt to make any arrangements or efforts for her teaching job in Hong Kong to be kept open for her during the alleged short or “gap year” that they were away.  There was no evidence that she had make any such attempts.  There also seemed to be no denial that she had enrolled in some designer classes in Hong Kong or that she had applied to a university in UK.

41.  As seen in a letter issued on 28 May 2021 by the UK Visas & Immigration Department, M was given permission to be in UK as “Residence – Partner” from 16 July 2021 to 16 July 2026[4].  AT was granted entry clearance as a BNO dependant from 17 March 2021 until 17 March 2026[5].  M and AT left Hong Kong on 27 July 2021 and arrived in UK on 28 July 2021 on one way air tickets[6].  There were no return flights booked.

42.  Instead of renting accommodation in England, F had purchased a house for the family in anticipation of M and AT arriving. There appeared to be no mortgage loan on the house.  In any event, the purchase of a house would provide stability for a home for the family.  It was not M’s case that she had not agreed to the purchase of the house or that it was purchased without her knowledge.  F had also bought a car even if it was not a car that M wanted or one she could drive.  Such steps taken by F would support his case that it was the parties’ joint intention to relocate to England for long term and not merely to give living in England “a try” or for AT to be there for “a gap year”.  There is nothing in their lifestyle during the 7 month stay in UK to suggest they had considered jointly or had acted upon returning to HK.

43.  F had produced his employment contract with commencement date on 12 January 2022[7].  He would be entitled to be enrolled into his employer’s pension plan on the first of the month after joining.

44.  Having considered all the evidence, I have come to the view that F’s case is more probable, that it was the parties’ joint intention to emigrate and to settle in UK for long term for the purpose of a better quality of family life and a better education and living environment for AT.

Whether settled after arrival

45.  M’s evidence is that she did not integrate into life in UK at all.  She was not added into any whatsapp group nor did she engage in any long-term commitment in UK.  M had also said she found it very difficult to settle in UK.  

46.  On the other hand, F’s evidence that that since his arrival in UK in June 2021, he joined a Hong Kong whatsapp group to meet some new friends, and that the group would organise some social activities including tea gathering and parties, and that after M being unhappy after F joined a gathering around Christmas 2021, he had added M to the whatsapp group chat at her request.  F denied that he had prevented M from integrating into his new social circle or new environment.

47.  Although M joined the 2 year course at the British Academy mentioned earlier, she said she had completed the face to face lessons and that she joined the course to kill time.  However, the course was a two year course, and whether she could do it online at home in England or elsewhere, it was a commitment for two years which she had undertaken at the time and would tend to support F’s case that she had intended to become a fashion designer in UK, as F had said.

48.  It was M’s evidence that F had made it very difficult for her to settle in UK and she cited various examples, one of which was that she was only allowed to work when F was free from work to take care of AT and that she only managed to work for three days throughout the 7 months when she was in UK and that she was not even a stand-by part time teacher while she was in UK and was really a full-time housewife taking care of AT during those 7 months in UK. 

49.  However, practically speaking, someone had to care for AT, and if one parent was working, the other parent would have to care for AT unless other care arrangements for AT could be made.

50.  Other examples cited by M involved complaints about F failing to give her Sterling 500 per month for her petty cash spending as he had promised, F accusing M and AT spending too much of his money and locking up toilet paper after M and AT used up a roll in a day after getting a cold, F failing to purchase an automatic car and instead bought a manual gear car whereas M only had a driving licence for automatic gear cars and F exercising strict control where to put the things in the “common area” of the UK Property and describing M as “a parasite” as the UK Property was under his name.

51.  M’s above complaints were however mainly of F’s alleged behaviour towards her.

52.  As for AT, as mentioned earlier, she was enrolled into reception class at a Catholic primary school and started attending the new autumn term for 2021-2022 on 2 September 2021.  According to F, AT had made many friends within her reception class.  F had produced photographs of AT and her friends.  F also pointed out that even after M and AT moved out of the UK Property on 25 February 2022, according to M, AT did resume schooling at her school in England between 1 to 4 March 2022 prior to the removal.

53.  On the other hand, M’s evidence is that AT did not have any social life with other children in UK outside school.  The only occasion that A played with her classmates outside school during the 7 month stay was a birthday party of her classmate on 13 November 2021 which according to M, it was she who begged F to take A to join the party.  M also pointed out that F failed to show any photos or videos or any evidence of A joining any other social gathering except the birthday party mentioned.  

54.  The evidence shows that AT had attended a wide array of different extra-curricular activities in addition to her school curriculum.  M’s evidence was that all the activities (up to some 15 of them listed out by M herself) arranged by F were solely due to the fact those were free trials and F could not resist free offers.  However, whether those activities were free or not, there was no evidence that it was not in AT’s interests for her to try out different activities.  F had produced evidence that after letting AT to try out different activities, he enrolled AT into the Music Theatre and he had paid for the same in December 2021.  M then pointed out that this was only an activity organised by AT’s school and was not an extra-curricular activity.  However, in my view, whether organised by the school or not, such activity would enable AT in further socialising with other students out of class.  AT started at the Music Theatre on 10 January 2022.

55.  There were two photographs which F produced of AT participating in a school performance[8]. F had also produced some 6 photographs of the birthday party attended by AT, and also one of a Christmas party organised by the community centre and attended by AT[9].

56.  F also produced a registration confirmation letter showing that on 10 August 2021, AT was registered with a GP practice at a surgery in Barnet under the UK National Health Scheme (NHS)[10].

57.  The UK Property has been AT’s home since she arrived in England.  F had produced Facebook posts by M of AT’s drawing and painting hung up on the wall in the UK Property[11]. According to the SIR, AT had left two of her favourite dolls in the UK Property[12].  AT had clearly settled in her home.

58.  Having considered all the evidence, I am of the view that AT had settled and integrated into living in England and that her habitual residence was UK immediately prior to her removal.

ISSUE (2) – WHETHER M’S REMOVAL OF AT WAS WRONGFUL UNDER ARTICLE 3 OF THE CONVENTION  

Whether the removal was in breach of F’s rights of custody under Article 3(1) of the Convention

59.  Article 3 of the Convention provides that

“The removal or the retention of a child is to be considered wrongful where

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

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

60.  Article 5 of the Convention then sets out the meaning of “rights of custody” and “rights of access”:- 

“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.”

61.  Article 14 further provides that the Court “may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable”.

Discussion

62.  As said earlier, this Court has found that UK was AT’s place of habitual residence immediately prior to the removal.  Under UK law, parental responsibility is defined at s 3(1) of the Children Act 1989 as ‘all the rights, duties, powers, responsivities and authority which by law a parent of a child has in relation to the child and his property.’

63.  Thus under the UK law, being her natural and lawful father as F was married to M at the time of the removal, F clearly has parental responsibility of AT and has rights of custody to AT. 

64.  M had produced a transcript of her audio recording of the Incident[13] (“Transcript”).  It is not disputed by M that on 25 February 2022, she was proposing divorce to F and had intended to discuss plans regarding AT with F and that it is M’s case that this had led to F’s assault of her.

65.  M’s evidence was that F had suggested that she should separate from F for two years and that during those two years, AT was to stay with M.  M further said that after the assault on 25 February 2022 until 14 March 2022, F had never asked AT or M to return to the UK Property and that for almost a month, F never enquired about AT’s whereabouts at all and that even after a “cool-off” period, F had not changed his mind that AT was to be in M’s sole care and to live elsewhere for two years.

66.  The Transcript showed that during the Incident, F had said to M whoever had the financial ability, he/she would care for AT and when M said she had, F then asked her to take AT and leave.  The Transcript had showed that right in the beginning when M produced to F what she said was a divorce petition, F’s response was that she had gone mad and that he would not consent (“痴線，我唔贊成喎”).  The Transcript also showed that F was upset.  As mentioned earlier, the Incident had led to F allegedly hitting M and a report was made to the police by M.

67.  On M’s own evidence, thereafter there was a “cool-off” period.  On F’s evidence, after his release from the police station, he did try to contact M about her whereabouts with AT via Signal, but M replied that she would only discuss with F on matters relating to divorce, without replying to his enquiries as to her whereabouts.  F had also said that later upon receiving a call from AT’s school that AT had been absent from school without reasons, he had once again contacted M about this and asked M to take AT to school, saying that even if the adults were still in the middle of conflict. 

68.  Even though F had asked M to leave immediately with AT, this did not mean that F had agreed during the Incident to give up his rights of custody, or had agreed to M having sole custody or sole care of AT. In particular, there was no sufficient evidence that F had given up his right to determine AT’s place of residence. 

69.  Further, even if M were correct that F had never asked her and AT to return home between 25 February 2022 and 7 March 2022, this did not mean he was giving up his rights of custody and as said this was during the parties’ “cool-off period”. 

70.  In light of the above, I do not find there was sufficient evidence that F had given up his rights of custody or that he no longer had any rights to custody at the time of removal.  The removal was wrongful as it was in breach of F’s rights of custody under the law of UK where AT is found to be habitually resident immediately before the removal and that at the time of removal, those rights would have been so exercised by F but for the removal.

ISSUE (3) - WHETHER F HAD CONSENTED OR SUBSEQUENTLY ACQUIESCED IN THE REMOVAL UNDER ARTICLE 13(1)(A) OF THE CONVENTION

The legal principles

71.  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;”

72.  There is a distinction between consent and acquiescence.  In EW v LP, HCMP 1605/2011, 31 January 2013, unreported.  This Court has summarised in paragraph 37 the difference as follows:

“Consent, if it occurs, precedes the wrongful removal or retention; acquiescence, if it occurs, follows it. Consent is not defined in the Convention, but the question whether a wronged parent consented is a question of fact. The issue of consent is a very important matter; the existence of consent needs to be established on the balance of probabilities by clear and cogent evidence, although it is possible in an appropriate case to infer consent from conduct. The consent should be to the child’s permanent removal or retention.”

73.  As for the concept of acquiescence, in paragraph 41 of EW, this Court applied the principle enunciated in the UK House of Lord’s case of In Re H (minors) (abduction: acquiescence)[1997] 2 All ER 225:

“… (1) For the purposes of article 13 of the Convention, the question whether the wronged parent has ‘acquiesced’ in the removal of retention of the child depends upon his actual state of mind. As Neill LJ said in In re S. (Minors (Abduction: Acquiescence) [1994] 1 FLR 819, 838: ‘the court is primarily concerned, not with the question of the other parent’s perception of the applicant’s conduct, but with the question whether the applicant acquiesced in fact.’

(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

(4) There is only one exception.  Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

Discussion

74.  M’s case was rather confusing, in that initially her case was that as F had asked her to leave the London Property with AT, he had consented to them leaving UK, but her submission at the hearing suggested she was relying on F’s acquiescence as well.

75.  For consent, M relied on the Incident and that it was F who asked her and AT to leave home on 25 February 2022.  Further, as F was aware that on previous occasions, when M had left home, M would return to her parents’ home every time and yet F still made M and AT leave on 25 February 2022.

76.  The screen capture of conversations between M and her friend/s[14] show that (i) on 13 February 2022, a friend had asked M when she planned to tell F about moving out, and M’s reply was she had made a booking commencing from 25 February, and that her plan was to leave AT to continue to reside in the UK Property and would visit AT when F was at work; (ii) on 17 February 2022, she sent friends her booking of a private room at an AirBnB in Barnet with check in time after 6 pm on 25 February 2022 and that she would reside there until June; and (iii) on 22 February 2022, a friend asked M whether she had prepared what to say and M replied by sending a copy of her note to her friend what she planned to say to F, including that from 25 February 2022 to June 2022, she would remain in UK with AT residing in the UK Property and she would take AT to school every morning and would be with AT until 6 pm when F finished work, and for long term arrangement, she planned to take AT back to Hong Kong.

77.  Although the above note mentioned it was M’s plan to take AT back to Hong Kong after June 2022, there was no mention of this in the Transcript.  The Transcript showed that M mentioned “a divorce petition” and that F had clearly said he would not consent to a divorce.  There was no evidence that F had read the note.  When M said amongst other things, they should discuss about AT’s care arrangement, F had responded that whoever had the financial ability to care for AT was to care for AJ.  When M answered that she had the financial ability, F then said if so, M was to leave with AT.  F appeared to be getting upset, as M had asked him to calm down.  When M mentioned they should discuss about AT, F had said no need to discuss and that she could leave that night immediately.  F had further said he would discuss after she left, and he had also said that she did not really intend to discuss with him and that she was threatening him with a piece of paper.  When M said she would return to bring AT on Sunday, F asked them to leave then, and thereafter there was the alleged assault.

78.  As said, it was F’s evidence that the Incident was orchestrated and that later when he checked the CCTV at the UK Property, he found that M had arranged a van and collected her luggage in the afternoon of 25 February 2022.

79.  In fact, M had made a audio/video recording of the Incident on 25 February 2022 secretly without F’s consent or knowledge.

80.  There was no sufficient evidence that F knew that M was planning to divorce him prior to 25 February 2022.  As M had mentioned previous incidents about F’s violence, it would appear that it was not really unexpected by M that F would become upset when M raised the matter of a divorce, and F did. His asking M to leave with AT then and there had to be seen in that light.  

81.  In any event, by asking or demanding M to leave home immediately with AT in the midst of the Incident, or that F had agreed to a separation does not necessarily mean F had consented to AT being taken out of UK or for AT to leave UK and to move back to Hong Kong permanently.  There was no sufficient evidence that F did so consent, nor could his consent be inferred from his conduct.  

82.  M had submitted that F never mentioned that she could not remove AT out of UK during the period from 25 February 2022 to 21 March 2022.  He never asked M and AT to return home after 25 February 2022 nor enquire as to their whereabouts, and even when he was called up by AT’s school regarding AT’s absence on 28 February 2022, he did not enquire as to the whereabouts of M and AT.

83.  M also said that F had clearly known that M’s intention to go back to Hong Kong with AT by 14 March 2022 (UK time) when he received AT’s Hong Kong school application email confirmation which was sent to an email address of both F and M, and yet he did not make any attempt to stop AT from leaving UK, and that F had subsequently acquiesced to AT’s removal.

84.  The school confirmation sent by a school in Hong Kong was for confirmation of receipt of an online application for AT for the 2022-2023 school term[15]. On the face of it, there was no indication that M and AT had already left UK or they would be leaving UK imminently.

85.  In fact, on 14 March 2022, LWT had sent to F a without prejudice letter with settlement proposals for a divorce.  F said he was shocked to receive LWT’s letter, as although there had been previous occasions that M had left home after an argument, she would always return home afterwards.  F’s evidence was that there was no mention in the LWT’s letter that M and AT had already left UK or were planning to leave UK imminently.

86.  M also said on 19 March 2022, she had tried to discuss AT’s arrangement with F but F ignored it.  M had produced copies of screen capture of the conversations between he and F[16].  These screen capture showed that M had said that their marriage was over and they should consider AT’s arrangements after divorce.  However, F responded to say he regretted what happened and that he begged M to at least give him a chance for one last time.

87.  On 21 March 2022, F instructed his Hong Kong solicitors HIP to issue a without prejudice letter to LWT and according to M, that was the first time F had expressly stated that M could not remove AT out of UK. 

88.  This was followed by a letter to M on 28 March 2022 (UK time) from F’s UK solicitors seeking proposals for access to AT and suggesting mediation[17]. On 28 March 2022 (Hong Kong time), LWT wrote to HIP and amongst other things informed F that M had left UK with AT on 7 March 2022 for Hong Kong via Germany and that at that moment, M and AT were in a quarantine hotel in Hong Kong.

89.  It was F’s evidence that it was only from LWT’s letter of 28 March 2022 that he was informed by M that she had left UK with AT on 7 March 2022.  F then issued the return application under the Convention in UK followed by the present proceedings in Hong Kong.  

90.  To summarise, M relies heavily on what F had said over the heated exchange on 25 February 2022 and to interpret the same as F giving express consent for M to ‘leave’ with A – and to have that to mean returning to Hong Kong as M would have nowhere else to go with AT.

91.  What is clear is that M did have somewhere to go with AT in that they left the UK Property on 25 February 2022 in that they were staying in a short term rented place.  When the school called F on 28 February 2022, both M and AT were still residing in UK.  Her own evidence showed she had planned to remain in UK until June 2021.  That F did not ask M and AT to return home or ask for their whereabouts after 25 February 2022 would not mean that he had consented to them leaving UK.  There was no sufficient evidence that F was to know that M was planning to leave UK imminently or they had left UK on 7 March 2022.  As for M relying on F’s conduct after 14 March 2022 when he received notification about AT’s application to a school in Hong Kong, as said earlier, there was no sufficient evidence that by the Hong Kong school confirmation of receipt of an application for the 2022-2023 term for AT or anything in LWT’s without prejudice letter of 21 March 2022 to say that by 14 March 2022, F ought to know AT was in Hong Kong or that he had acquiesced in the removal.

92.  In fact, on the contrary, F had taken steps as soon as he received the LWT’s letter of 28 March 2022 to start the return application under the Convention.

93.  Having considered the above, I find no sufficient evidence that F had either consented or subsequently acquiesced in the removal.

ISSUE (4) - WHETHER THERE IS A GRAVE RISK THAT AT’S RETURN WOULD EXPOSE HER TO PHYSICAL OR PSYCHOLOGICAL HARM UNDER ARTICLE 13(1)(B) OF THE CONVENTION

Legal principles

94.  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 tolerable situation.”

95.  Cheung JA has summarised the principles of grave risk in M v E (Hague Convention; Rights of Custody) [2015] HKFLR 337 at paragraphs 8.1 and 8.2 as follows:

“8.1 The principles relating to the exception of grave risk can be summarised as follows:

…

(1) 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.

(2) 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.

(3) 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 (emphasis supplied). 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.

(4) 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.”

Discussion

96.  It was not really disputed that there had been at least two incidents in Hong Kong prior to the Incident when F was alleged to have assaulted M.  One was around December 2016 and one was around January 2018.  M had left home on both occasions, the first time with AT, and the second time AT had remained in the matrimonial home.  There had been no medical reports produced by M in relation to those two incidents in Hong Kong, nor was there any evidence as to whether the incidents took place in AT’s presence.

97.  Having said this, F seemed to have acknowledged that he was the one who was wrong on those occasions.

98.  As for the Incident on 25 February 2022, the police did not bring charges in the end, although this could be because M did not press charges.  As seen in the “Initial Risk Management and Intervention” Form, F had consented to his details being referred to a Domestic Violence Support Agency by the UK police[18]. F had apologized to M over his conduct[19].

99.  M seemed to rely on what A had witnessed on 25 February 2022 and to say (i) AT did witness F assaulting M; (ii) AT became scared when recalling what she saw; and (iii) AT became scared of F.

100.  There was no evidence that F had ever used violence towards AT.  It can be seen in the SIR that AT had witnessed the Incident during which F hit M, and AT had said “father hit mother” and “mother was pushed to the garden” and “father pulled mother’s hair” and demonstrated how father had pulled mother’s hair, and that she said she pulled her father’s clothes but her father asked them to leave , and that she was in fear and cried at the material time[20].

101.  There was no medical evidence produced by M as to whether there were any injuries suffered by M during the alleged assault during the Incident, or whether AT had suffered any physical or psychological harm by witnessing the assault during the Incident.

102.  In any event, F has provided various undertakings and proposed various protective measures/safeguards and as such, even if a grave risk of physical or psychological harm exists, AT will be adequately protected by F’s undertakings upon her return, until any further order made by the UK Court. 

103.  It did not appear to be M’s case that any return would place AT in an intolerable situation.  F’s mother had passed away.  F had said that if M refused to return with AT in the event of a return order being made, his father had agreed to go to UK to assist in AT’s care and that his father had hands-on experience in the daily care of AT, and most recently during the period when F had landed in UK in June 2021 and before M and AT arrived in July 2021, M had entrusted AT’s care to his father during weekends over a period of one month while they were still in Hong Kong.  It was also AT’s evidence that during school days, AT’s school could provide child care before and after school and that he would also apply for flexible working hours from his employer, and that F could look after AT during public holidays and weekends.

104.  On the other hand, M said F’s father is now 69 years old and he has heart disease and that he has little experience taking care of a child by himself.  M then cited an example on 20 July 2021, when F’s father requested to have AT to stay overnight with him that night, AT cried terribly when M went to pick her up the next day.  M had produced a screen capture of an exchange with F’s father on 24 July 2021[21].  It appears that AT complained that the room she spent the night was terrible, and she was crying.  However, the screen shot also showed that M agreed to bring AT over to F’s father’s home to play the next day, and it showed that there was a good relationship between AT and her paternal grandfather.  In any event, the proposal is if AT were ordered to return, she would be staying in the UK Property.  She would be living in her own home with either F or with M, in her own bedroom with her favourite dolls there.  

105.  There is no sufficient evidence that there is grave risk that AT’s return would place her in an intolerable situation. Further, although M had said initially that she would not return to UK even if this Court were to order a return, it would appear that towards the end of the hearing, she would return with AT in the event of a return order being made.

106.  In light of all said above, M has not been able to make out a defence under Article 13 (1)(b). 

ISSUE (5) - AT’S OBJECTION TO RETURN

107.  As Miss Tsang had said in the SIR, AT “being a little girl [of] age of 5, it was understood that [AT] might not be mature enough to master her decision-making based on her own interest or welfare need.  However, she was able to express her straight view or willingness simultaneously towards the return to UK.  Her refusal to [return to] UK was not solely based on her own interest but apparent was relying heavily on her security feeling towards parents and her experience in witnesses of parents’ conflicting incident”[22].

108.  It appeared from the SIR that AT kept repeating “father hit mother” when asked whether she could return to UK, and that she further said that she wanted to stay with her mother and her mother was in Hong Kong[23].  When she was asked to describe mother and father, she had said mother “好少少”, ie a little better, and that father was “壞少少” ie a little worse, and that this was because “father hit mother” and that “mother playing with her”.  She had gone on to say she wished “her parents had no argument anymore and hoped they would be happy”.

109.  From what I can gather from the SIR, AT has a good relationship with both her parents.  Even though AT had said as her mother was in Hong Kong, she wanted to be with her mother in Hong Kong, that AT is more attached to her mother and wanted to be with her mother is understandable as M has no doubt been her primary carer particularly after F started to work full time and after M left home. 

110.  As pointed out by Miss Tsang, AT might not be mature enough to master her decision-making based on her own interest or welfare needs. 

111.  Having regard to AT’s age and maturity, and what was reported by Miss Tsang, I do not propose to give much weight to AT’s views of not wanting to return to UK.  M has not been able to make out a defence under Article 13(2) of the Convention. 

CONCLUSION  

112.  As said, F had provided various undertakings and suffice to say, if M were to accompany AT to return, F would:

(a)  provide separate accommodation in the vicinity of AT’s school including the option of residing in the UK Property, if M so wishes;

(b)  in the event that M chooses to reside in the UK Property, F shall move out until further order of Hong Kong/UK Court;

(c)  to provide reasonable contact of AT to M in the event by subsequent court order, AT is to mainly reside with F;

(d)  not to molest M and/or AT;

(e)  to co-operate and support any relevant applications which M wishes to make in the event her visa becomes an issue;

(f)  to undergo a psychological or psychiatric assessment upon his return to UK in relation to his suitability to care for AT.

113.  I accept F’s above undertakings. I further understand that if M were to return with AT, she may not wish to sit together with F on the same flight.  F has indicated that there should not be a problem for M and AT to sit separately from him on the same flight.

114.  M has not been able to make out her defences/objections under the Convention.  I am also of the view that it is in AT’s best interests to return to UK.  I therefore order AT to return to UK upon F’s above undertakings.  There be liberty to apply in the event that the parties are not able to agree to any logistical arrangements in relation to the return.

115.  As for costs, as found earlier, AT’s removal from UK by M was wrongful.  F has succeeded with his application.  In the circumstances, I order M to pay F’s costs of this application, such costs to be summarily assessed, if not agreed.

116.  F to submit his statement of costs within 7 days, and M her list of objections within 7 days thereafter.

117.  This is a costs order nisi which shall be made final and absolute within 21 days hereof.

118.  Finally, I thank all Counsel and representatives of the Department of Justice/Hong Kong Central Authority for their assistance to the Court.