SECRETARY FOR JUSTICE (in his capacity as the Central Authority designated under the Child Abduction and Custody Ordinance, Cap. 512) v. SK AND ANOTHER

HCMP 1946/2025

[2025] HKCFI 6345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1946 OF 2025

____________________

______________________

__________________

JUDGMENT

__________________

INTRODUCTION

1.  This is an application made by Originating Summons filed on 30 October 2025 (“the Originating Summons”) under the Child Abduction and Custody Ordinance (Cap. 512, Laws of Hong Kong) (“the Ordinance”) and the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (“the Hague Convention”) for the return of S (a boy born on                  2012) and K (a boy born on                   2016) (collectively, “the Children”) to the Czech Republic, on the basis that the 1^st defendant (“the Mother”) has wrongfully removed the Children to Hong Kong without the 2^nd defendant (“the Father”)’s consent.

FACTUAL BACKGROUND

2.  The following background is undisputed or indisputable.

3.  The Father and the Mother (collectively, “the Parents”) were married in New Jersey, USA on 9 August 2008.  Both Children were born in USA.

4.  Upon the Mother’s application for divorce, the Superior Court of                                                                      USA (“the USA Court”) had made, inter alia, the following orders as reflected by a Memorandum of Decision dated 5 May 2022 (“the 5 May 2022 Decision”):

(1)     The marriage of the parties be dissolved;

(2)     The parties shall have joint legal custody of the Children, and the Mother shall have primary physical custody;

(3)     If the Mother shall choose to relocate with the Children to the Czech Republic, it shall be considered a substantial change of circumstances affecting the best interest of the Children, and the Court reserved jurisdiction to modify the parenting plan;

(4)     The Father shall pay the Mother periodic alimony and  children support.

(“the 5 May 2022 Order”)

5.  On 19 May 2022, the USA Court issued another Memorandum of Decision, in which it was stated, inter alia, that:

“[…] the plaintiff mother sought temporary sole custody of the two minor children […] due to the defendant father’s reincarceration in the Bergen County Jail on April 1, as a result of his continued failure to obey the orders of the Chancery Division of the New Jersey Superior Court, to wit, the repatriation of approximately $20,000,000.00, wrongfully transferred to a person or persons in Slovakia […]

FINDINGS

[…]

1. That under all the circumstances, in particular the father’s current indeterminate period of incarceration, it is in the best interest of the minor children that the mother has temporary sole physical custody of the minor children.

2. That the father’s unilateral decision to discuss his incarceration with the minor child […] at least one week before informing the mother was lacking in good judgment and likely harmful to the emotional well-being of the child; that his continued insistence on discussing the subject with the minor child outside the presence of the mother is not in the best interest of the child; and that his failure to discuss this decision with the mother, or to inform her of his imminent incarceration, until approximately one and one half hours prior thereto, was inconsistent with a fundamental element of joint parenting.

3. That under all the circumstances, it is in the best interest of the minor children that the father’s visitation with the children be suspended until further order of court, but that he has reasonable telephone access during the period of his incarceration.

4.     […]

ORDERS

BASED UPON THE FOREGOING, IT IS HEREBY ORDERED THAT:

1. The parties shall share joint legal custody of the minor children […] and the mother shall [have] sole temporary physical custody pending further order. As such, she shall have sole decision-making authority, and the father shall not interfere with her exercise thereof. The mother shall inform the father of any significant educational or medical decisions regarding the children. The father’s in-person visitation with the children shall be suspended until further order of the court.

[…]”

(“the 19 May 2022 Decision” and “the 19 May 2022 Order”, as the case may be)

6.  The Mother and the Children relocated to the Czech Republic on 12 June 2022.

7.  On 13 March 2023, the Mother entered into a one year fixed term employment contract with the Ministry of Foreign Affairs of the Czech Republic (“the Ministry”).

8.  On 4 January 2024, the Mother’s employment with the Ministry becomes permanent.

9.  By virtue of a Judgment dated 30 July 2024 (“the Czech Judgment”), the District Court of                      in the Czech Republic (“the Czech Court”) recognised the 5 May 2022 Decision and the 19 May 2022 Decision.

10.  On 18 July 2025, the Ministry decided that the Mother would be working in Hong Kong from 1 August 2025 onwards as the ______________________________________ of the Consulate General until 2029.

11.  Pursuant to the aforesaid decision of the Ministry, the Mother arrived in Hong Kong and reported duty on 1 August 2025.

12.  On 24 August 2025, the Children were also relocated to Hong Kong upon the arrangement of the Mother, after they had lived in the Czech Republic on a continuous basis for approximately 3 years.

13.  On 26 August 2025, the Mother sent an email to the Father and informed him that she has received a job offer in Hong Kong and that the Children would attend school in Hong Kong.

14.  On 29 August 2025, upon the Father’s application, the USA Court granted him temporary legal and physical custody of the Children, and ordered that the Children shall attend the school in Czech Republic as last enrolled.

15.  On 4 September 2025, the Mother applied to the Czech Court and asked the Court to grant consent on behalf of the Father to the change of the Children’s residence to Hong Kong.  This application is still pending.

PROCEDURAL BACKGROUND

16.  Upon the request of the Central Authority for the Czech Republic under the Hague Convention, the Secretary for Justice (in his capacity as the Central Authority designated under the Ordinance) commenced the present proceedings on 30 October 2025.

17.  Upon the ex parte application of the plaintiff made on 28 October 2025, this Court ordered, among other things, that the Mother or any other persons who are in possession of travel documents of the Children must deliver all such document(s) to the custody of the Court no later than one working day following the plaintiff’s written request.  This Court also fixed an inter parte call-over hearing to be held on 7 November 2025.

18.  By a letter dated 5 November 2025 (“the Consulate’s 1^st Letter”), the Consulate General of the Czech Republic in Hong Kong informed the Department of Justice that:

“[…]

The Consulate General respectfully conveys that, in accordance with the relevant regulations and practices of the Ministry of Foreign Affairs of the Czech Republic, diplomatic passports issued to consular officers and their dependents are official documents of the Czech Republic. The holders of such passports are not authorized to dispose of them, nor can they be surrendered or seized by any authority, including judicial bodies, without the express consent of the issuing authority.

The Consulate General is convinced that the consular officer in question will fully engage in the ongoing court proceedings, within the scope of the court’s jurisdiction. She will provide all relevant documentation and evidence demonstrating the legality of the custody arrangements concerning her children, and all related actions undertaken in this regard, with full respect for the best interest of the child.

[…]”

(emphasis added)

19.  On the following day (6 November 2025), the Mother’s solicitors wrote to the plaintiff and proposed that the call-over hearing scheduled for 7 November 2025 be adjourned.  According to Ms Cheng who appeared for the plaintiff, the defendant’s solicitors also indicated over a telephone conversation that they took the view that this Court does not have jurisdiction over the Mother for she is a consular officer.

20.  The inter parte call-over hearing proceeded as scheduled on 7 November 2025.  However, neither the Mother nor her solicitors appeared.  As the Mother had suggested (albeit not in a proper way procedurally) that she was not even subject to this Court’s jurisdiction, a 2^nd inter parte call-over hearing was scheduled for 13 November 2025, and in the meantime, the plaintiff was asked to contact the Mother and ascertain the basis of her stance.

21.  By her solicitors’ letter dated 11 November 2025, the Mother maintained that the Hong Kong Court does not have jurisdiction over her by virtue of the Vienna Convention on Consular Relations (1963) (“the Vienna Convention”) and the Consular Relations Ordinance (Cap.557, Laws of Hong Kong).

22.  Apart from writing to the Mother’s solicitors, the plaintiff had also written to the Consulate General of the Czech Republic on 10 November 2025 and enquired whether it was aware of, and agreed with, the position taken by the Mother’s solicitors that she was not subject to the jurisdiction of the Hong Kong Court as regards the present proceedings.

23.  The Consulate General of the Czech Republic replied on 12 November 2025, and reconfirmed the statement made in the Consulate’s 1^st Letter.

24.  Probably because of the Mother’s stance that she was not subject to the jurisdiction of this Court, she did not appear at the 2^nd inter parte call-over hearing on 13 November 2025.  Be that as it may, and despite the fact that no Acknowledgement of Service had yet been filed by the Mother at that stage, this Court, on an exceptional basis, granted leave to the Mother to file and serve evidence in opposition.  The door for the Mother to contest these proceedings was deliberately kept open because this Court had in mind the best interest of the Children, which would be better served if the Mother would appear in Court and make her objections known, whether on the immunity point or otherwise, so that the Originating Summons would be disposed of on its merits. 

25.  The Mother subsequently filed and served an affirmation in opposition.  She has also instructed counsel to attend the substantive hearing.  In the said affirmation, the Mother has put forward, among others, the following grounds to oppose the present application under the Hague Convention:

(1)     Under the 5 May 2022 Decision, the 19 May 2022 Decision and the Czech Judgment, she has the sole decision-making authority about the Children.  Therefore she could decide on the relocation of the Children to Hong Kong.  Hence, their removal from the Czech Republic was not wrongful at all;

(2)     She is entitled to state and consular immunity, and this Court does not have jurisdiction over her.

26.  However, her solicitors still failed to file any Acknowledgement of Service on her behalf.  They only did so after this Court had, by letter dated 11 December 2025, drawn their attention to Order 121 rule 6 of the Rules of the High Court (Cap.4A, Laws of Hong Kong)[1].

THE MOTHER’S APPLICATION FOR ADJOURNMENT

27.  At the beginning of the substantive hearing, the Mother’s counsel made an application for adjournment.  He relied on 2 grounds:

(1)     While the plaintiff has produced a letter issued by the Czech Central Authority in support of his stance that the Mother does not enjoy consular immunity in the present case, such a letter was only served on the Mother on 12 December 2025 and therefore she has not had any chance to confirm with the Czech Central Authority on its stance on state immunity.  She would therefore like to have the chance to make enquiry with the Czech Central Authority on the matter;

(2)     Time (around 4 weeks) should be given for the Court to obtain a report by the Director of Social Welfare to ascertain the respective wishes of the Children as well as the arrangement to be made in the event a return is made.

28.  This application for adjournment is bound to be rejected:

(1)     As far as the letter from the Czech Central Authority is concerned, as submitted by Mr Yim for the Father, there are other materials upon which the Court may decide on the question of state immunity. It is therefore unnecessary to adjourn the substantive hearing for the Mother to make any enquiry as suggested;

(2)     As can be seen from the procedural history set out above, although the Mother clearly had notice of these proceedings before the inter parte call-over hearing held on 7 November 2025, she had elected not to appear thereat.  She only instructed her solicitors to issue a letter dated 6 November 2025, in which she did not mention about her defence at all, apart from saying that she was “in the course of getting in touch with the Director of Protocol to sort out the present matter”;

(3)     Although the Court had given the Mother another chance to appear in the call-over hearing by fixing a 2^nd call-over hearing to be held on 13 November 2025, she had elected not to appear and inform the Court her defence;

(4)     In the letter of the Mother’s solicitors dated 11 November 2025, while the Mother’s defence had been set out, “children’s objection” was not mentioned at all;

(5)     While it is true that the Mother’s solicitors did make it clear in the aforesaid letter that the matters set out therein are “non-exhaustive and are subject to further instructions”, it is undeniable that the Mother had never alleged in her affirmation in opposition that she would rely on the ground of children’s objection as her defence.  In other words, there is no evidential basis for her to assert that further evidence on this aspect is required.

29.  It must also be borne in mind that the Hong Kong Court is obliged to act expeditiously in proceedings for the return of children (Article 11 of the Hague Convention), and cases of this sort are normally completed within 6 weeks.  That is the reason why the Court would normally fix a very tight case management timetable so as to discharge this aspect of its duties. It is therefore of utmost importance that the parties should disclose their case fully and timely, such that all necessary directions may be given at the earliest opportunities. 

30.  Hence, the application to adjourn the case at the substantive hearing under the circumstances of the present case is totally against the rationale and spirit of the Hague Convention.

31.  I have therefore refused the Mother’s application for adjournment at the hearing.

IMMUNITY

32.  As it is the Mother’s stance that this Court has no jurisdiction over her by reason of her status as a consular officer, I am of the view that this is a matter which should be considered first in this Judgment.

State immunity

33.  The Mother argued that she is entitled to state immunity.  Her counsel submitted that:

“37. The Mother has been a permanent employee of the Ministry since 4^th January 2024. The Mother’s current posting to Hong Kong was pursuant to the decision of the Ministry dated 18^th July 2025, in which it was decided that the Mother would be sent to Hong Kong to work as the ________________________________________ of the Consulate General until 2029. Pursuant to the Foreign Service Act of the Czech Republic, the Mother shall have the right to be accompanied by her family members (i.e. the Children) whilst performing her service abroad.

38.     It is submitted that the decision by the Ministry to post the Mother to Hong Kong was clearly an act of a governmental nature and as such was thus subject to state immunity from legal process. Moreover, state immunity is not simply restricted to the case where the state is a party. The agent of a foreign State will also enjoy immunity in respect of his acts of a sovereign or governmental nature.: see Re P (Diplomatic Immunity: Jurisdiction) [1998] 1 FLR 1026. Further, such aspect of state immunity is not affected by the post-handover position of absolute immunity as stated in DRC (No.2).”

(emphasis added)

34.  The Mother relied on the case of Re P (Diplomatic Immunity: Jurisdiction) [1998] 1 FLR 1026.  In that case, the father was a member of the US Diplomatic Service and a US citizen. The mother was a German national. The father was posted to London until 1997 and the family and their two children lived in a house provided by the US embassy.  In 1997, the mother commenced divorce proceedings in Germany. She issued applications for residence orders in respect of the children under the Children Act 1989 in London. The USA and the father successfully sought a dismissal of the English proceedings on the grounds of diplomatic immunity. The family then returned to the USA although they lived there separately.  In November 1997, the mother sought and obtained, on an ex parte basis, a declaration in the English court pursuant to section 8 of the Child Abduction and Custody Act 1985 (which gives effect to the Hague Convention) that the removal of the children from the jurisdiction of the UK was wrongful.  The father and the USA sought a dismissal of the proceedings on the grounds of state immunity (under the State Immunity Act 1978) and diplomatic immunity. It was held that, while there was no diplomatic immunity, there was state immunity based on the State Immunity Act 1978.  The Family Division upheld the father and the USA’s claim. 

35.  Particular reliance was placed by the Mother on the finding in Re P that:

“[…] state immunity is a separate concept and usually applies to cases where the foreign State is named as a defendant. However, the agent of a foreign State will also enjoy immunity in respect of his acts of a sovereign or governmental nature. The father’s act of taking his children back to the USA at the end of his mission was an act of a governmental nature and as such was subject to state immunity from legal process.”[2]

36.  I do not accept the Mother’s argument.  

37.  In my view, the Mother’s act of arranging the Children to relocate to Hong Kong cannot be an act of a sovereign or governmental nature.  Re P can clearly be distinguished on the facts. To demonstrate this point, I only have to quote the following parts of the Judgment:

“The US Government has insisted in this case that the removal of Mr P of his family from the UK and their return to the USA was done in compliance with a direct order of government. It is plainly put on a high plane by Mr Williams [Director of the Office of Career Development and Assignments in the Bureau of Personnel of the US Department of State in Washington, DC] in both his affidavits. Paragraph 5 of his second affidavit states:

‘The foreign service of the USA could not operate efficiently and effectively if the US Government were not freely able to assign and reassign diplomats and their dependants in accordance with the needs of the service. As a member of the diplomatic staff of the mission representing the USA in the UK, Mr P’s acts in compliance with his recall orders were an essential part of his functions as a member of the mission albeit his final exercise of those functions before departing his post and taking up a new position at the Department of State in Washington, DC.’

‘Having received his orders, Mr P’s only choice was either to comply with them or to disobey them. In order to comply with them he had to return to the USA at the time and in the manner directed by the embassy and to bring his family with him. Mr P complied.’

In the light of that evidence, which I accept, I am driven to conclude that the act of taking his children back to the USA at the end of his mission was an act of a governmental nature and as such is subject to State immunity from legal process.”[3]

(emphasis added)

38.  In the present case, there is simply no evidence that the removal of the Children to Hong Kong by the Mother is an act done pursuant to any order of the Czech Republic. 

39.  In such circumstances, the removal of the Children to Hong Kong by the Mother cannot be said to be acts of a sovereign or governmental nature.

40.  In his argument, Mr Leung submitted that the Mother had already been given “exclusive physical care” of the Children by virtue of the Czech Judgment when the Ministry decided to send her to work in Hong Kong.  It was therefore said that the Ministry had implicitly required the Mother to bring the Children with her to Hong Kong.

41.  With respect, the problem with this line of argument is that there is simply no evidence that the Ministry had any knowledge about the Czech Judgment at the material time.  This argument must therefore be rejected.

42.  Indeed, it has been repeatedly confirmed by the Consulate General of the Czech Republic that it is their belief that the Mother “will fully engage in the ongoing court proceedings” and that “she will provide all relevant documentation and evidence demonstrating the legality of the custody arrangements concerning the children”[4]. They would not have done so if the Mother’s claim of immunity is justified.

43.  Mr Leung submitted that when the Consulate General of the Czech Republic mentioned about the said belief, the issue of immunity had not been raised yet.  That may be so.  However, one must not lose sight of the confirmation of the aforesaid belief on the part of the Consulate General of the Czech Republic upon the Department of Justice’s specific enquiry which was made on 10 November 2025 which reads:

“[…] in order to avoid any misunderstanding, we would be most grateful if the Consulate General could clarify whether it is aware of, or agrees with, the position taken by John CH Suen & Co that [SK] was not subject to the jurisdiction of the Hong Kong courts as regards the subject proceedings […]”

44.  I therefore conclude that the Mother does not enjoy state immunity as far as these proceedings are concerned.

Consular immunity

45.  The Mother also claims consular immunity.  Her basis is the Consular Relations Ordinance which has given legal force in Hong Kong to certain provisions in the Vienna Convention including Article 43(1) thereof which provides that:

“Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.”

(emphasis added)

46.  The Mother argues that:

“40. It cannot be seriously challenged that reporting duty in Hong Kong by the Mother pursuant to the decision of the Ministry is an act performed in the exercise of consular functions. Bearing in mind that she is the exclusive caregiver under the Czech Judgment, to comply with the decision of the Ministry, she has to exercise her right to bring the Children under the Czech Foreign Service Act. It is submitted therefore that the bringing of the Children to Hong Kong is an extension of an act performed in the exercise of consular functions. It is not simply a personal choice as characterised by D2 (at §112 of D2’s submissions).

41. It is further submitted that similar to diplomatic immunity (see Re P above), the purpose of consular immunity is to ensure the efficient performance of the functions of consular missions as representing States. As the exclusive caregiver of the Children under the Czech Judgment, returning the Children to Czech Republic means that the Mother would have to defy the decision of the Ministry and return to Czech Republic to take care of the Children there, significantly hampering her performance of functions as                     in Hong Kong.”[5]

47.  With respect, I disagree with the Mother.  While she has a right to bring the Children with her to Hong Kong, she was not obliged to do so.  It was her personal choice.  Viewed in any light, the Mother’s taking the Children to Hong Kong cannot be her exercise of consular functions.

48.  Although the Mother has been the exclusive caregiver under the Czech Judgment, that does not mean that she had no choice.

49.  Further, as pointed out above, the Consulate General of the Czech Republic has confirmed that it is their belief that the Mother would participate in these court proceedings.  That is the clearest indication that they do not support the Mother’s stance on immunity.

50.  To conclude, it is my view that the Mother’s claim of immunity must fail.

THE RELEVANT PROVISIONS OF THE HAGUE CONVENTION

51.  I now turn to consider the substantive merits of the application.

52.  By virtue of the Ordinance, the provisions set out in Schedule 1 thereto have been given the force of law in Hong Kong.

53.  For the purpose of the present application, Articles 3, 5, 13 and 16 of the Hague Convention are relevant and are set out hereinafter for easy reference:

Article 3

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.

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.

Article 5

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)     […]

Article 13

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; 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.

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.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

Article 16

After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.

(emphasis added)

LEGAL PRINCIPLES

54.  The objective and operation of the Hague Convention have been explained by the Court of Appeal in M v E (CACV 75/2015, unreported, 5 June 2015).  In gist, the objective of the Hague Convention is to ensure the prompt return of children, who had been wrongly removed by one parent against the wish of the other parent to another country, back to the country of the habitual residence of the children, so that the courts of that country may determine the question of custody and residence of the children on the basis of a full welfare investigation.  To implement this objective, Article 16 of the Hague Convention provides that the courts of the country to which the children have been removed shall not decide on the merits of rights of custody until it has been determined that the children should not be returned under the Hague Convention.

55.  The Court of Appeal in M v E (supra) also pointed out at [5.8] thereof that it has been the very object of the Hague Convention to avoid an in-depth examination of the child’s future in the determination of an application for a summary order for the return to the child’s state of habitual residence and a properly careful determination did not equate to an in-depth examination of the entire family situation: In re S (A Child) [2012] 2 AC 257, per Lord Wilson JSC at [37].

56.  As far as “grave risk of intolerable situation” is concerned, Cheung JA had summarised the relevant principles in M v E (supra) 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. 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.

8.2      This is elaborated by Baroness Hale and Lord Wilson JJSC in their joint judgment in In re E :

‘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.’ ”

THE MOTHER’S DEFENCE

57.  The Mother has only raised 2 grounds of defences:

(1)     The removal of the Children was not wrongful;

(2)     There is a grave risk that the Children’s return to the Czech Republic would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

58.  I will examine these grounds in turn below.

Wrongful removal

59.  It is argued by the Mother that:

“[…] On a proper reading of the operative part of the Czech Judgment, the Mother has, until further order, the exclusive physical care and therefore has also been given the exclusive decision-making authority, and the Father shall not interfere with the exercise of this authority. The Father only has the right to be informed in respect of all important decisions. As such, it is submitted that the Father’s parental responsibility under Czech law has been relieved temporarily pending further order of the Court.”[6]

60.  To consider this argument, it is first of all necessary to understand the Czech Judgment properly.  It reads:

“[…]

The Court recognises on the territory of the Czech Republic the judgments of the Superior Court, Judicial District _______ _______, United States of America, dated 05/05/2022 and 19/05/2022, Case No. FA17-6031344S, in the part concerning the decision on the exercise of parental responsibility, arrangements for care and contact with minors, thus the manner of exercise of parental responsibility and arrangements for care and contact with minors set out in points 1, 3, 4 and 5 of the operative part of the judgment dated 19/05/2022 shall apply, namely:

- [The Children] are entrusted to the joint care of the parties and until further order to the exclusive physical care of the mother. The mother shall therefore have exclusive decision-making authority and the father shall not interfere with the exercise of this authority. The mother shall inform the father of all important decisions in the area of the children’s education or medical care of the children […]

-     […]

- The father shall not interfere with the educational programme of any of the children, but has the right to access the school noticeboard in order to monitor the progress of each of the children.

-     Upon the father’s release from Bergen County Jail, the Superior Court, Judicial District                              , United States of America, shall order a hearing for the purpose of establishing a final parental care plan based on the best interests of the children having regard to all circumstances existing at that time […]”

(emphasis added)

61.  The first bullet point in the Czech Judgment quoted above (“the First Bullet Point”) stated that the parties were given “joint care” of the Children.  In my view, that must be taken to mean “joint custody”, because:

(1)     Paragraph 1 of the 19 May 2022 Order clearly states that the parties shall share joint legal custody of the Children;

(2)     On a proper reading of the Czech Judgment, the Czech Court has recognized the 19 May 2022 Order in full, without in any way varying the effect of the order;

(3)     In fact, it is indisputable that the First Bullet Point was meant to quote paragraph 1 of the 19 May 2022 Order.

62.  Mr Leung for the Mother also agrees with such an interpretation.

63.  Once the term of the actual order of the Czech Judgment is clarified, it can be seen that the Mother’s argument is totally misconceived and must be rejected.

64.  It can be seen that, by virtue of the 5 May 2022 Order, the Parents were granted joint legal custody of the Children.  Apart from relocating the Children to the Czech Republic, the Mother was not given any power to relocate the Children to anywhere else.

65.  On the other hand, it is also apparent from the 19 May 2022 Decision that the 19 May 2022 Order was made simply because the Father was put behind the bars at the material time, and therefore the Court had imposed some temporary measures for the time being.  

66.  At the hearing, Mr Leung for the Mother has confirmed fairly that since there is no evidence which shows that the legal concept of “custody” in the US and the Czech Republic is in any way different from the legal effect of such a term in Hong Kong, this Court should take it as if the meaning of the term under Hong Kong law is as same as that under Czech law and US law.

67.  That being the case, I find that the effect of the 19 May 2022 Order is that while the Mother could make decision on the education of the Children, she did not have the right to relocate the Children such that they would receive education in another country altogether.

68.  It is also evident that, under Czech law, if the Parents cannot agree on a matter which is significant for a child in particular with regard to his interests, the decision shall be made by a court. 

69.  Here, since the Parents cannot agree on the relocation issue, the matter has to be decided by the court.  The unilateral removal of the Children to Hong Kong is thus wrongful.

70.  The Mother argued that she has the exclusive decision-making authority to relocate the Children to Hong Kong.  I am of the view that she has taken the Czech Judgment out of context.  I accept the Father’s argument that the “sole decision-making authority” under the 19 May 2022 Order is obviously in relation to her exercise of “sole temporary physical custody” only.  In my view, the Mother only has such an authority, for example, to decide which school the Children to go to in the Czech Republic. 

71.  It was further argued on behalf of the Mother that the Children would not have been issued with their diplomatic passports unless the Mother’s removal of the Children to Hong Kong is lawful. 

72.  With respect, this submission has been made without evidential basis and must be rejected.

73.  For the above reasons, I hold that the removal of the Children to Hong Kong is wrongful.

Intolerable situation

74.  The Mother also relies on Article 13 of the Hague Convention and argues that there is a grave risk that the Children’s return to the Czech Republic would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

75.  In gist, it is her argument that if the Children are returned, no one would be able to take good care of them, particularly when she herself has to stay in Hong Kong to work with the Consulate General of the Czech Republic.

76.  I am of the view that the “grave risk” which the Mother is relying on is not the sort of risk which is intended to be covered by Article 13 of the Hague Convention.  In the present case, even if the Children are returned, I cannot see any basis to allege that they may be exposed to physical or psychological harm or abuse.  Indeed, the Mother has adduced no evidence in this regard, apart from saying that no one would be in a position to take good care of the Children back in the Czech Republic.

77.  I can see why the Mother would argue that for the best interest of the Children, they should be relocated to Hong Kong. However, that is not a matter which this Court should consider.  This should be decided by the Czech Court to which the Mother has already made an application for relocation.

78.  The Mother’s argument under the said Article 13 is therefore rejected.

ORDER

79.  Having heard this Court’s decision on return, the Parents have been able to agree on the logistics of the Children’s return to the Czech Republic.  I therefore make the following orders on the basis of their consensus as follows:

(1)     The Children shall be returned to and arrive in the Czech Republic no later than 29 December 2025;

(2)     Paragraph 1 of the court order dated 28 October 2025 be varied to read as follows:

“The children S and K must not be removed from the jurisdiction of Hong Kong unless they are returning to the Czech Republic.”

(3)     The aforesaid varied order shall be discharged upon the Children’s departure from Hong Kong pursuant to paragraph (2) above;

(4)     The Mother’s solicitors shall notify the Father’s solicitors by facsimile and email at least 72 hours before the Children’s departure from Hong Kong and inform the latter the exact date, time and flight details in relation to the Children’s return to the Czech Republic.

COSTS

80.  Article 26 of the Hague Convention provides that:

“[…]

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.”

81.  The general principles on costs of Hague Convention cases have been considered in Re M (Child Abduction) [2024] 5 HKLRD 658, [2024] HKCFI 2821 and Re TH [2025] HKCFI 250.  Those principles may be summarised as follows:

(1)     Article 26 of the Hague Convention gives the Court a discretion to order the abductor of the child to pay necessary expenses incurred by the applicant, and such expenses may include payment of legal costs.  The purpose of such a provision is to act as a deterrent to behaviour which is contrary to the objects of the Convention;

(2)     Generally speaking, the Court would not make any costs order against an unsuccessful party in Hague Convention cases except in exceptional circumstances.  It is unnecessary and undesirable to attempt to limit or place into confined categories the cases which a court might regard as constituting exceptional circumstances, but they will include cases where the litigation has been instigated vexatiously or in bad faith or where the one party has acted in a reprehensible manner or in a manner concerning the litigation which goes well beyond what would be expected of a reasonable parent anxious to secure his or her child’s best interests: N v O (HCMP 4204/1998, unreported, 6 January 1999), at page 9;

(3)     The Court may also consider whether to exercise its discretion on costs in accordance with the normal civil principles if a party’s conduct had been unreasonable or where there was a disparity of means: EC-L v DM (Child Abduction: costs) [2005] EWHC 588 (Fam) at [68];

(4)     When considering whether there are exceptional circumstances justifying departure from the general practice, the Court should not be too quick to label a parent’s conduct as “unreasonable”: TPL v WYY formerly known as WYY (CACV 47/2014 & CACV 61/2014, unreported, 15 December 2014) at [15.2];

(5)     Having said that, it should be borne in mind that costs are a matter of wide discretion for the Judge.  The general practice for the Hong Kong court not to award costs in children matters, after all, is just a practice but not a principle of law.  When exercising that discretion, the Court may take into account the parties’ conduct before, as well as during, the proceedings pursuant to Order 62 rules 5(1)(e) and 5(2)(d) of the Rules of the High Court (Cap.4A, Laws of Hong Kong).

82.  There are 2 limbs of costs which the Court has to decide on: the expenses on the Children’s flight tickets back to the Czech Republic and the costs of these proceedings.

83.  As far as the flight tickets are concerned, since it was the Mother who took the Children to Hong Kong without the consent of the Father, I see no reason why the Mother should not be ordered to bear the expenses thereof solely.

84.  As far as the costs of these proceedings are concerned, having considered parties’ submissions, I have come to the view that the Father’s costs should be borne by the Mother for the following reasons:

(1)     This is not the first time that the Mother had removed the Children from one country to another wrongfully.  She should know well that this is not permissible;

(2)     I do not agree with the Mother’s counsel that, by taking the aforesaid matter into account, this Court is penalising her for her previous abduction of the Children.  Rather, this renders her conduct in taking the Children to Hong Kong even more unreasonable;

(3)     I agree with Mr Yim for the Father that it is unreasonable for the Mother to pursue her points on immunity despite the clear indication of the Consulate General that she is not entitled to any immunity in the present case;

(4)     Worse still, the Mother has tried to make use of her status as _____________ in her attempt to avoid the jurisdiction of the Hong Kong Court, and this had caused delay to these proceedings;

(5)     The documents also show that the Mother had apparently tried to conceal from the Father her decision to relocate the Children to Hong Kong.  This can be seen from the fact that even though the decision of the Ministry to send the Mother to work in Hong Kong was made on 18 July 2025, she did not inform the Father about this until 26 August 2025 (when she sent him a notification email), and even then, she did not tell the Father that the Children were already in Hong Kong by then.  The Mother argued that she did not breach the 19 May 2022 Order under which she was only obliged to inform the Father about her decision on the Children’s education.  Even if she is right, that does not mean that it was not unreasonable for her to withhold informing the Father of such an important decision for over a month.  She has given no explanation at all as to why she had adopted such an approach;

(6)     In my view, the Mother’s conduct in the handling of the Children as well as her conduct of these proceedings are unreasonable, which justify the departure from the general practice of “no order as to costs”.

85.  I therefore order the Mother:

(1)     to pay for the Children’s flight tickets back to the Czech Republic;

(2)     to pay for the Father’s costs of these proceedings, which are summarily assessed at $230,000.  The Mother shall pay Father the assessed sum by 13 February 2026.

86.  As the plaintiff does not ask for costs, I make no order as to his costs.