B v. B

HCMP1874/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1874 OF 1999

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J U D G M E N T

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1. This is an application under the Hague Convention on the Civil Aspects of International Child Abduction, the provisions of which form part of Hong Kong domestic law by reason of the Child Abduction and Custody Ordinance, Cap.512. The application is by the mother, who now lives in London, for the return of a child to the United Kingdom.

History

2. The father came to Hong Kong in 1989 and is a policeman here. He met the mother in England in 1992 and she came to live here in the same year. They married in January 1995 in England. The child of the family, a girl, was born in Hong Kong in May 1996, so she will be aged three years next month. The family continued to live in Hong Kong. In June 1998, the mother met and then formed a relationship with another man. It was planned that the mother would leave Hong Kong and move to England where that man lives. She left Hong Kong in early November 1998.

3. The mother says that, having announced the break-up of the marital relationship, she did not want to add to the father's distress by immediately wrenching the father from the child at the very same time as she, the mother, left, and in any event it made sense for her to settle in London before the child came. She asserts that it was, however, crystal clear that the father was to come with the child to England in December, and that the child would from then on live with her, subject to occasional access by the father in Hong Kong. There is a dispute about this, with the father asserting that although it was at one stage envisaged that the child would be going to live in the United Kingdom with the mother, that was only agreed on condition that the mother made suitable arrangements for the child's welfare and accommodation. He says that, in the event, the trip in December was to take the child for Christmas to the United Kingdom where the child's grandparents live and not, or not necessarily, for the purpose of delivery to a new permanent home. What is common ground is that the child remained in Hong Kong in November with the father, and it is also common ground that the parties had agreed that he would take the child to England in December and himself return in January without the child.

4. In December 1998, the father took the child to London and then returned to Hong Kong in January 1999, leaving the child with her mother. It was then agreed that the child was to visit her father in Hong Kong in March 1999. She did, although she came out here earlier than originally planned because the father's parents were travelling to Hong Kong in February and it seemed convenient to bring the child with them. The child was due to be returned to the United Kingdom to her mother on 19th March, a date then extended by agreement to 23rd March.

5. However, shortly before the child's expected return, the father changed his mind. His case is that he had become increasingly concerned about the welfare of the child in the United Kingdom, in particular, about the accommodation in which the child was housed - a small flat with the mother and the gentleman with whom her mother resides, and about the alleged fact that the mother was travelling too much abroad, leaving the child behind with her parents and leading a social life which did not give priority to the child. The child is used to Hong Kong and lives in comfortable surroundings in a flat in a pleasant neighbourhood. So on 18th March 1999, he sent his wife a message by electronic mail telling her that in his view the child's best interests were served by permitting the child to remain in Hong Kong. He told her that he intended to keep her here and to seek custody of the child. Hong Kong was where the child had always lived and she had her possessions here as well as her cat. The father works as a policeman but the child is cared for during the day by a domestic helper who is said to have known the child since the child was aged about one year. It is intended that in due course the father will return to live in England, probably the year after next. The father says that he hopes then to acquire a mortgage-free residence in England where he envisages his daughter living with him. He has instituted divorce proceedings in Hong Kong, and in those proceedings he seeks custody of the child.

Proceedings

6. The mother immediately consulted solicitors in London and on 19th March 1999, they sent a fax to the father asserting that the father had refused to return the child as agreed, that he was keeping her without the mother's consent and had committed an offence under the Child Abduction and Custody Act 1985. The father was by that letter asked to confirm by midday the next day that the child would immediately be available for collection by the mother, failing which undertaking the mother would make an application on Monday, 22nd March for the return of the child to the United Kingdom.

7. On 22nd March 1999, the father appeared by solicitors before the High Court (in Hong Kong) seeking an order that the child be made a ward of court, with care and control to himself. What moved him to make the application was, according to the evidence filed, that he understood that the mother was returning to Hong Kong to fetch the child and had made clandestine arrangements for delivery of the child to her, and he feared that she would take the child back to the United Kingdom without there being in place adequate arrangements for the care of the child and that he would be denied access or adequate access henceforth. An order was made that the child be made a ward of court, committing care and control to the father until further order, with 30th March 1999 as the return day.

8. For her part, the mother, on the same day, that is 22nd March, moved the Family Division of the High Court in London for a residence order under the Children Act 1989, and an order that the child be returned to the jurisdiction of England and Wales. Kirkwood J. made orders that the father return the child forthwith to England, restraining him from removing the child from that jurisdiction, and that the child shall reside forthwith with the mother.

9. On 23rd March 1999, the authority designated in the United Kingdom as the central authority for the purposes of the Convention wrote to its counterpart in Hong Kong, namely, the Secretary for Justice, with an application by the mother for the return of the child to England pursuant to the provisions of the Convention.

10. On 29th March 1999, the Secretary for Justice on behalf of the mother launched two applications, one asking for an order for the return of the child to the mother and the other asking for the wardship proceedings to be stayed pending determination of the Convention application. The stay application came before Stone J. as duty judge on 30th March. He continued the wardship so that the status quo could be maintained until 12th April when the Convention application was to come before me.

11. The application came before me that day but turned out merely to be an application by the Secretary for Justice for further directions. The directions then suggested by counsel for the Secretary for Justice would have meant a hearing of this Convention application sometime in May. Such delay appeared to me to be unwarranted and I made orders for the filing of evidence on a time scale which ensured the hearing today. That has in the event not proved difficult for any of the parties.

12. There has been yet one further development which is that the mother applied for legal aid. Section 15(4) of the Legal Aid Ordinance requires the stay of proceedings unless the court otherwise orders. It must generally be the case, especially with a child of tender years, that Convention proceedings should move forward apace. I am told by Mr Coleman today that the application for legal aid has been refused. But for the avoidance of doubt, I order today, as I did last week, that the application shall proceed notwithstanding the provisions of the Legal Aid Ordinance.

Relevant Provisions

13. There is no need for an extensive rehearsal of the scheme of the Convention but I must allude to those provisions which are salient to this application.

14. Article 12 of the Convention provides that where a child has been wrongfully retained in terms of Article 3, the authority concerned shall order the return of the child forthwith. A wrongful retention is defined by 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."

"Rights of custody" are explained in Article 5 as follows :

"'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;"

Article 13 specifies circumstances in which return is not obligatory :

"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."

15. The residence order made by Kirkwood J. was made under section 8 of the Children Act 1989. A residence order is an order which settles the arrangements as to the person with whom the child is to live. It is an order which the court there has power to make "in any family proceedings in which a question arises with respect to the welfare of the child" (see s.10). Section 2 of the same Act gives statutory emphasis to the concept of parental responsibility, and provides that :

"1. Where a child's father and mother were married to each other at the time of his birth they shall each have parental responsibility for the child;

.....

5. More than one person may have parental responsibility for the same child at the same time."

Parental responsibility means

"all the rights, duties, powers, responsibilities and authorities which by law, a parent of a child has in relation to the child and his property."

(see section 3 of the Children Act 1989)

The contending cases

16. I have permitted an amendment to the Originating Summons which now reflects the full grounds of the application. The essence of the mother's case is this : that prior to the mother's return to England in November 1998 it was agreed that the child would return to live with her mother in that country and it was for that purpose that the father brought the child to England in December 1998, and with that knowledge that he left England and returned to Hong Kong in January 1999; that once the child returned to England in December 1998 she became habitually resident there; that the visit to Hong Kong in February and March 1999 was an access visit only; and that once the father, on 18th March, communicated to the mother his intention to keep the child in Hong Kong contrary to their agreement, he then wrongfully retained the child. That was a retention classified, it is said, as wrongful by the terms of the Convention, and that in the absence of any of the defences for which the Convention provides, an order for the child's return must follow. If the father's conduct of 18th March did not constitute wrongful retention, then, so goes to the alternative argument, his refusal to return the child on 23rd March, which is the date on which the agreed access ended, became a wrongful retention within the Convention's meaning on that date, namely, 23rd March.

17. The father's case in opposition to this application is in its essence that retention of a child can, under the terms of the Convention, only be wrongful if it is in breach of rights attributed to a person under the law of the country in which the child was habitually resident immediately before the removal or retention. Yet in this case, so runs the argument, the child has at no material time been habitually resident in the United Kingdom. There had previously been intimated by the skeleton arguments presented on his behalf two further arguments :

1. that by virtue of the provisions of Article 13 of the Convention the court is not bound to order the return of a child if the person actually exercising custody rights at the time of retention had consented to the retention. In this case, there was consent by the mother for the child to be retained until 23rd March so that there could be no wrongful retention before that date; and

2. that on and after 23rd March, there could be no wrongful retention, for the child who was then a ward of court, and an order had been made that the child be not removed from the jurisdiction and that the child's care be given to the father.

Neither of those two points is now pursued and for reasons to which I shall aver, the points are correctly abandoned.

Evidence

18. There are several affidavits filed by and in support of the mother and there is an affidavit by the father in these proceedings as well as one in the wardship proceedings. For reason shortly to be given, I also had the benefit today of oral testimony from both mother and father. Exhibited to evidence filed by the mother is a series of e-mail messages to her from the father, the most pertinent of which are those in the month of March when the father decided to keep the child in Hong Kong. The papers make unhappy reading for it is evident that both parents love the child dearly. I have no doubt but that the father's concern for the welfare of his daughter is deeply felt and there is no reason for me to doubt on the present state of the evidence but that he feels that the child would be better served by staying with him. I do not intend, nor does the evidence equip me, to pass judgment on the merits of the contesting claims for custody. That will have to be decided in the future. My immediate task is considerably more limited; it is to determine whether the Convention criteria are or are not satisfied.

The issue of fact

19. The father's case on the question of habitual residence as framed on the papers is that the child was raised in Hong Kong and has spent but a few months, namely, between December and February in the United Kingdom and that it is self-evident that the child has not acquired habitual residence in the United Kingdom. When the mother left Hong Kong in December, or was going to leave, the decision reached was that the child would split her time evenly between Hong Kong and England until she was ready to attend school by which time the father hoped he would be residing in England. That, upon reflection, was thought to be too disruptful a plan for the girl so they agreed that the child would remain in Hong Kong until April 1999 by which time the mother would have made suitable accommodation arrangements for the child. He continues that when she returned to Hong Kong in February, no final arrangements had been made and that the child's place of residence was clearly still in Hong Kong. The mother had not managed to secure anything approaching suitable accommodation in England. There was still an agreement in principle that the child would eventually reside in England once certain criteria had been met. But those criteria were not met; the mother did not settle as he had expected, had not made permanent arrangements for the child, and the father, with a growing realisation that the mother, he says, was living a life style in which the child took second place, decided not to return the child in March as had been arranged. That decision did not, in other words, disturb an accepted arrangement for permanent residence. His case is that the child was merely staying in Hong Kong which was her home and in so far as he was going back upon an understanding, it was a change of heart certainly, but not a change of heart which breached a settled arrangement for the child's long term future.

20. The Plaintiff mother contends otherwise, and states that there was a clear agreement as early as about October 1998 that the child would live with her mother, with the daughter following on shortly after the mother's return to England and that when the father came to England in December 1998 with the daughter and all her clothes, that was an act in fulfillment of this understanding. The February/March visit was just that - a visit and no more.

21. So there is a factual dispute, and a material one, affecting the question of habitual residence, for if the child did not return to England in December to live permanently with her mother, that would not sit comfortably with a finding or suggestion that by February or March, England had become her place of habitual residence.

22. It seemed to me upon a study of the papers that there was much in the affidavits and exhibits filed both in these proceedings and in the wardship proceedings which suggested that there had been an agreement that the child was to live with her mother in England, not hide bound by preconditions and that in so far as the father was stating in his most recent evidence that any such agreement was loose and subject to the fulfillment of conditions which have in the event never been met, that might be said to evidence a shift of emphasis which could be material, and I felt it right that he should be given the opportunity of dealing with the matter by oral testimony. I therefore heard his evidence as well as that of the mother, and I took the opportunity of asking the mother a series of questions relating not only to this alleged agreement as to where the child should live but also about the living arrangements made for the child in December and in the future, making it plain that none was for the purpose of making any determination touching upon custody in the future.

23. I am impressed by the genuine concern which the father has for the child. I have seen photographs of the child's accommodation and her room is well furnished and replete with toys and the paraphernalia which one would expect to see in a room of a little girl nurtured with love and care. The father struck me, albeit in the relatively short episode of evidence, as a man of sensitivity and he evidently feels strongly about all matters to do with his daughter's welfare. That is not to say that the mother feels any different. But the point I here make is that I rather think that the wish of the father that he had not agreed that the girl should go and live in England, spurred perhaps by his conviction that the child is better off with him in Hong Kong, has parented or encouraged the thought, and then the conviction, that he never really agreed, or that such agreement as was made was tentative or subject to conditions.

Findings of fact

24. There is compelling evidence, however, to show that there was such an agreement and that it did not bear the conditions which the father has now convinced himself that it did bear. The evidence comes from the correspondence penned or typed by the father himself and from his affidavit in the wardship proceedings. The e-mail message of 18th March 1999 (and I do not ignore the earlier e-mails) in terms say that he "agreed to let her stay in the United Kingdom"; and that "the reasons for [E] moving to the UK have all gone", that "I agreed to let [E] live with you" and then talks of the "gradual swing away from what was originally intended"; "I agreed to just about everything, even letting you take her away." In a message of 16th March, he refers to the fact that he had "agreed I would not ask for custody". So too in the affidavit filed in support of the wardship proceedings he states :

"Our initial verbal agreement was that [E] should go back to the UK to live with her mother and that I would see her on a regular basis with staying access in Hong Kong at least three times a year. The original arrangements which we both felt were in the best interest of [E] are no longer part of my wife's plan."

25. It is my finding that there was an agreement in or about October 1998 that the child would go to live with her mother in England and I find that when the father went to England with the daughter in early December 1998, he was delivering the child to her mother pursuant to that agreement, and that it was not a delivery which was tentative or conditional on matters yet to be arranged. I find, too, that when the child was brought to Hong Kong in February, the agreement was that the child would be returned to the mother on about 19th March to live with the mother and not simply to visit her for access purposes. It follows that when the father decided, on 18th March or perhaps before, to retain the child in Hong Kong, that was a determination which was contrary to the agreements which he had reached with the mother - the agreement as to where the child should live and the agreement to return the child in March.

Was the retention wrongful?

26. The absence of a court order in the United Kingdom at that date, namely, 18th March, does not mean that the mother then had no "rights relating to the care of the person of the child". The Children Act 1989 by section 2 confers upon her, as well as upon the father, parental responsibility, and the right to care for the person of the child is self evidently, it seems to me, a concomitant of such a responsibility. In other words, I am satisfied that at all times in March 1999, the mother enjoyed in relation to the child rights of custody as that term is defined in the Convention. The father does not destroy those rights merely by removing the child from its mother's care even if removal was at the time lawful. (See In Re F [1995] Fam.224 at 230)

27. It would not in my judgment be tenable to argue, and I do not understand it to be argued now even though adverted to in the skeleton argument, that retention could not be wrongful on 18th March on the footing that at that date there was consent to the retention in so far as it had on any view been arranged that the child would be staying with her father until after that date. Once the father had determined to keep the child, he was then acting contrary to the parental rights of the mother. It would be a construction quite at odds with the reality of the matter, let alone with the intent of the Convention, to assert that once the parent enjoying an access visit evidences, and indeed announces, a clear intention to deprive the other parent of parental rights previously obtaining, the deprived parent must wait until the end of the period initially agreed for access before seeking redress in the courts. The agreement in this case was that access should be until 23rd March, but the point is that access was agreed in the first place only on the understanding that the child would be returned to the normal day-to-day care and control of the mother. So soon as it is clear that one of the parties no longer accepts that fundamental premise, the date for return becomes an irrelevance. If it were otherwise, then the aggrieved parent would have to wait, even though, for example, the parent enjoying access took the child wheresoever he wished, and even if he or she announced on the day after access was obtained that he intended to deprive the mother of any further rights to the child at all. In this case, the parental rights of the mother were infringed the day the defendant decided and told the mother that he was going to keep the child. I find support for this approach in Re S [1994] 1 FLR 82. I find that as from 18th March 1998 the father wrongfully retained the child.

28. Was the mother on that day exercising rights of custody? Article 3(b) is to be widely construed "as meaning that the custodial parent must be maintaining the stance and attitude of such a parent rather than narrowly as meaning that he or she must be continuing to exercise day-to-day care and control". (See Lord Brandon in Re H [1991] 2 AC 476 at 500)

Habitual residence

29. The next issue is the habitual residence of the child immediately before the wrongful retention. The phrase "habitual residence" is to be given its ordinary meaning and "should not be treated as a term of art with some special meaning". (See C v S [1990] 2 All ER 961 at 965)

30. Habitual residence refers to a person's abode in a particular place or country which he or she has adopted voluntarily and for settled purposes as part of the regular order of his or her life for the time being whether of short or long duration (see M v M [1997] 2 FLR 263). I find that when the child was sent to Hong Kong in February, its place of habitual residence was the United Kingdom and that also, in my judgment, is the position on 18th March (or immediately before 18th March) when the father decided to retain the child, and also on 22nd March when the court in England made its orders. True it is that the child was habitually resident in Hong Kong until December 1998, but the mother had left, and the acknowledged purpose, as I have found, of the return of the child to the United Kingdom was so that the child could live with her mother. The mother intended then to reside in the United Kingdom. She went there for a settled purpose, which was to live in England with a man whose home and employment are there. The mother then ceased to be habitually resident in Hong Kong. My attention has been drawn to the speech of Lord Brandon in C v S [1990] 2 All ER 961 at 965, in which he commented that

"A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot , however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B."

But what is an appreciable period will vary from case to case and what the court is to examine are the circumstances of the individual case and in particular the realities of the case.

31. In this case, one is not examining a move by the mother from a permanent home to a new country. One is instead faced with what was a return home. That is what the mother was doing. That is the reality of this case. She was going home, even though she was going there because she wanted to live with her new partner. And her new partner had his permanent and habitual home in England and his place of work was and is there. England had been her permanent home before she came to Hong Kong. She was born there, and had lived there all her life before coming to Hong Kong. She had been in Hong Kong for but a few years. It seems to me on the facts of this case that England which had been her place of habitual residence before she came to Hong Kong became once again the mother's place of habitual residence very soon after arriving in England and setting up residence with the man with whom she now lives. It follows from that, and from the agreement that I have found was reached, that England also became the child's place of habitual residence soon after the child was returned to the mother.

32. Ms Rattigan urges me to bear in mind that habitual residence is not a rather legalistic and abstract concept as might be said, perhaps, of domicile and that what is required is concrete evidence that a person has in fact taken up actual residence in a settled way, and further that that residence has the attribute of continuity. How can it be said, she asks, that this child whose home was always in Hong Kong before, who had but the availability of a one bedroom flat in London and who until mid January spent but little time with her mother - how can it be said that she was habitually resident in the United Kingdom?

33. I think that one has to remember that one is here talking of a two-year old child. A child of that age does not organise its own life so that it chooses to become settled and ordered in its affairs. This is done by the parents or parent, and where a child is taken to a country to live with a parent who is returning home, where that parent can realistically be said to acquire or re-acquire habitual residence there, the child's life becomes similarly characterised. It happened to be Christmas time and it is not surprising that the child was spending time with others before it stayed on a more settled basis with her mother after the turn of the year. The father left and the child stayed, and the mother was thence forward caring for the child on the footing that the child was living in England. The fact that there was to be a search for a more suitable house or flat does not, in my judgment, alter the fundamental situation which then prevailed. It is not 19th December at which I look to judge the question of habitual residence. It is to a time immediately before 18th March or perhaps 23rd March. By the time mid February arrived, the child had been in England for almost two months under the new and settled plan and I find that the child was by then habitually resident in the United Kingdom. That place of habitual residence did not change when the child came to Hong Kong in February 1999, since the purpose of that visit was for access only. The fact that one parent then decides, during the enjoyment of an access visit, to retain the child in the jurisdiction where access is enjoyed, contrary to an arrangement which both parents have made, knowing full well that the proposal is going to meet with turbulent and immediate opposition by the other parent, cannot by reason of the retention change, from that moment, the child's place of habitual residence. It seems to me not to matter for that purpose whether or not a court order has been made determining, even on an interim basis, the care and control of the child. The facts are simply that until the father's change of heart the child was habitually resident in the United Kingdom and the father's change of heart does not determine that residential status.

Conclusion

34. It follows from my findings that there has been shown a wrongful retention of the child in terms of Article 3 of the Convention. Article 13 of the Convention would empower this Court to refuse to make an order for the return of the child if the father were to establish that there is some grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. That is not established.

35. Accordingly, Article 12 of the Convention as applied by the Child Abduction and Custody Ordinance requires me to order the return of the child forthwith.

36. I should add that the fact that the child was made a ward of court does not impact upon my findings. That order was made after the date of wrongful retention. But in any event, the fact of this court's responsibilities in wardship is not a fact which deprives the mother of concurrent parental responsibility and it is not in my judgment a fact which can somehow alter the proper construction of Article 3. Counsel for both parties concede that an application in wardship does not make justifiable a retention which, but for that application, would have been wrongful.

37. I shall accordingly order that the child shall forthwith cease to be a ward of court, and that the order granting care and control to the father be rescinded. I further order that the child be forthwith returned to the United Kingdom pursuant to the provisions of the Convention.

38. I end with the expression of hope that these two parents might bury such differences as exist and strive to come to amicable arrangements for the child's future.

[Submission on Costs]

39. Mr Coleman, on behalf of the Plaintiff, asks me to make an order that the costs of this application and travelling expenses be paid by the defendant. Article 26 of the Convention provides that upon ordering the return of a child, the judicial authorities may, where appropriate, direct the person who retained the child to pay necessary expenses incurred by or on behalf of the applicant including travelling expenses, the costs of legal representation of the applicant, and those of returning the child. Ms Rattigan on behalf of the father urges me to make no order for costs on the basis that the father was justified in contesting this matter. From my finding, the retention of the child was wrongful and by that wrongful retention, he has occasioned these proceedings. I think that in those circumstances, the normal order would be an order condemning a respondent to such an application in costs, and I shall order that he shall pay the costs of this application including the travelling expenses of the applicant and the costs of legal representation. I also order that the defendant shall pay the costs of returning the child. As for the application to stay the wardship proceedings which came before Stone J. on 30th March, I shall order that there be no order as to costs.