YKM v. ZJ

FCMC 7394/2024

[2025] HKFC 12

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7394 OF 2024

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RULING
(Temporary Removal)

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1.  This is the respondent’s mother’s appeal against a Master’s decision dated 3 December 2024 dismissing her summons dated 19 November 2024 (“the Summons”) to temporarily remove the child of the family (“the child”), born on 5 October 2019 (now aged 5), to the United States from 22 December 2024 to 5 January 2025 during the school holidays.

2.  In this Ruling, for the ease of reference, I shall refer to the petitioner as “the father” and the respondent, “the mother”.

3.  As this matter has some urgency, I directed the mother’s appeal be listed to be heard before the Christmas break. For the same reason, this appeal has to be dealt with expeditiously. Below are my Ex tempore Ruling.

4.  Master’s appeal before a Judge is by way of actual re-hearing, and the Judge treats the matter as though it came before him for the first time: Order 58, rule 1, RHC. The judge in chambers is in no way fettered by the previous exercise of the master’s discretion: see Hong Kong Civil Procedure (2024) at §58/1/2, quoting Evans v. Bartlam [1937] AC 473; Cooper v. Cooper [1936] W.N. 205; and Cremin v. Barjack Properties Ltd (1985) 273 E.G. 299, CA.

5.  For the purpose of this Ex tempore Ruling, I only need to refer to the brief facts of this case.

6.  The father is 37 years old and the mother is 32 years old.

7.  The mother acquired her US green card (ie the status as Permanent Resident (“PR”) of US) when she had completed her High School education. She received education in the United States. The mother’s father is residing in the US and the maternal grandmother is residing in Shenzhen.

8.  Parties married in Hong Kong in July 2019.

9.  As said above, this marriage has a child. He is a boy, now 5 years old. He was born in the US, hence, he has US citizenship. It is common ground that the child was diagnosed with Autism Spectrum Disorder (ASD), and has special education needs.

10.  Sadly, this marriage did not last long. On 11 July 2024, the father petitioned for divorce on the ground of 2 years separation. The divorce proceedings are still on-going. It is fair to say that the proceedings are still at their initial stages, whether in terms of ancillary reliefs or children’s matter.

11.  On 19 July 2024, on the application of the father, HH Judge Simon Lo made an order restraining the child from leaving Hong Kong.

12.  On 31 October 2024, upon the mother’s application for a non-molestation order, the father has given an undertaking to the court that he shall not attack, harass or threaten the child and has been given supervised access by way of an interim order.

13.  On 19 November 2024, the mother took out the Summons for temporary removal of the child during the Christmas and New Year holidays. The primary purpose of this trip was to allow the mother to have her green card renewed. It is not in dispute that she received renewal notification on 12 July 2024. Hence, she was constrained in time in returning to the US for the renewal.

14.  The mother now wishes to go to the US with the child from 26 December 2024 to 9 January 2025.

15.  The father has filed two affirmations on 18 December 2024 and one affirmation today without leave in opposition to the present appeal. These are not allowed under Order 58, rule 1(5) of the Rules of the High Court (or rule 1(4), Rules of the District Court). The sub-paragraph provides that,

“No further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds.”

16.  The father has to satisfy the requirements under the Ladd v Marshall principles if he would like to rely on these affirmations. The father at today’s hearing agrees that he is not able to do so. In any event, the first affirmation is just repetitive of his earlier affirmation, which was already before the Master; and the new affirmation does not contain relevant matters that have occurred after the date of the order.

17.  After having considered the evidence and heard parties’ submissions, by and large, I agree with Ms Jenny Zhang, counsel for the mother, as set out in her submissions.

18.  I have determined that the mother’s appeal ought to be allowed. Below are my reasons.

19.  The father’s position, as can be seen from his affirmation in opposition that was before the Master, was that the mother has no ties in Hong Kong, that her father (ie the maternal grandfather) is residing in the US and there is a risk of flight. However, at today’s hearing, when being asked by the court what is the father’s most important ground of opposition, to my surprise, he refers to the credibility of the mother, in particular, he pins point his allegation that the mother committed adultery and that he was deceived into getting married with her for the purpose of getting a single entry permit. I do not see how these new grounds are relevant to the present appeal before me, being for leave for the child to be away from Hong Kong for a short period of time.

20.  Be that as it may, I accept there is a risk that the mother is a run-away mother and this concern is not without unreasonable basis.

21.  However, this is not the end of the matter; the court has to strike a balance between addressing this concern and the mother’s needs for having her green card renewed, ultimately the decision must be determined by what is the best interest of the child. I refer to the mother’s needs because it may have impact on the child’s well-being. As said by Dame Elizabeth Butler-Sloss P in the landmark English Court of Appeal judgment of Payne v Payne [2001] Fam 473 by the English Court of Appeal in the context of permanent relocation,

“Even if there is not a new relationship, the effect upon the parent with the residence order of the frustration of plan for the future might have an equally bad effect upon the children…”: see para 84.

22.  Hence, in my assessment, the mother’s plan or needs to have her PR status renewed is also a relevant consideration.

23.  At all material times, even before the marriage, the father was well aware of the mother’s status as a US permanent resident. In my view, he has chosen to live with this status. In any event, it is not the father’s suggestion that the mother should not have her PR status renewed. Further, the objective fact is the child was arranged to be have been born in the US, obviously for the purpose of acquiring a US citizenship. Looking at it objectively, it was so arranged when the parties were on good terms.

24.  The undisputed fact is the mother is currently the de facto primary carer of the child. The status of being a permanent resident of a country, whatever it is, must be a significant status for any person. The frustration of the mother’s plan to have her green card renewed or even the loss of her status as a PR might have an equally bad effect upon the child. I accept that in the present case, I am not considering permanent relocation, but I do give weight to the fact that it must be important for the mother to retain her PR status, given the fact the child was arranged to have acquired US citizenship by birth.

25.  I am aware that the mother has been living in Hong Kong since July 2021. She is allowed to reside in Hong Kong on her own (and not as a dependant of the father) by virtue of a work visa, which expires in August 2026.

26.  Further, there is a non-molestation undertaking by the father in place. I do not see how it is possible for the child to be left in Hong Kong. The father said he can take care of the child, but he does not have a childcare plan before me. Further, he said he has been deprived of seeing the child for the last 5 years. I therefore do not see how the father’s proposal that he can take care of the child is workable.

27.  It is fortunate that the United States and Hong Kong are parties to the Hague Convention on the Civil Aspects of International Child Abduction and there are well established mechanisms for the return of the child in the event of default on the part of the mother. Further, the mother may face imprisonment if she is found to have committed contempt of court.

28.  Thus, there are mechanisms in place available for the court for striking the balance I mentioned above.

29.  I come to the view that it is to the best interest of the child if the mother could have her status renewed while at the same time the child could continue to be taken care of by his primary carer. There is also the additional benefits that the child can meet the maternal grandfather, have vacation while at the same time have a medical check-up at the hospital where he arrived.

30.  There will be some disturbance to the child’s school days, but as I see it, the disturbance is minimal.

31.  The mother said she has around $200,000 in her bank accounts in Hong Kong. I impose a condition, as a safeguard, that she is to pay $80,000 into court as security on or before 24 December 2024 for her compliance of the order to be made by this court. She agrees to this condition.

32.  As an additional measure, I also grant the interim joint custody of the child to the father and the mother.

33.  The mother agrees and acknowledges that the child’s habitual residence for the purpose of the Hague Convention is Hong Kong. This should be stated expressly on the Order.

34.  The Order should clearly identify-

(1) the mother by all her identification documents and passports and

(2) the child by his date of birth, gender, and all identification documents

for the purpose of tracking down his location in the event of default.

35.  The Order should also contain the respondent’s undertaking to reside with the child at the two addresses referred to in Ms Zhang’s submissions (full address with postal code has to be stated).

36.  The mother shall also file her undertaking to return the child to Hong Kong by 24 December 2024.

37.  In view of the fact that there are 15 to 16 hours’ difference in time, that there is not any workable plan for remote access before me, and that the absence from Hong Kong is not of substantial time, I would make an order to suspend the interim access during the temporary removal.

38.  As this matter concerns children’s matter, I make the usual order of no order as to costs, including the costs of the application before the master.