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

HCMP 1686/2024

[2024] HKCFI 2821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1686 OF 2024

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This is an application made by Originating Summons filed on 9 September 2024 (“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 M (“the Child”) to Germany. In a gist, it is the plaintiff’s and the 2^nd defendant (“the Father”)’s case that the 1^st defendant (“the Mother”) has wrongfully retained the Child in Hong Kong without the Father’s consent.

BACKGROUND

2.  The Father and the Mother (collectively, “the Parents”) were married in Germany in 2015. In the same year, the Mother gave birth to the Child, who had lived in Germany since his birth until he was removed by the Mother to Hong Kong on 11 July 2024. Prior to such removal, the Child had only visited Hong Kong 3 times for vacation.

3.  According to the Father, he and the Mother have applied for divorce in Germany. However, this was contrary to the understanding of the Mother. Be that as it may, what is undisputed is that the Parents have been involved in custody proceedings in Germany in relation to the Child, and they had been granted joint custody of the Child by a German Court on 11 October 2023.

4.  During a hearing in the Local Court of xxxxxx (a German Court) on 12 June 2024, the Parents agreed that the Child would stay with the Mother from 7 July 2024 to 23 July 2024, and then with the Father from 24 July 2024 to 1 August 2024.

5.  It was further agreed between the Parents that the Mother shall bring the Child to Hong Kong so as to visit the Mother’s maiden family from 8 July 2024 to 23 July 2024.

6.  However, the Mother did not deliver the Child to the Father as agreed, and has ceased contact with the Father since 25 July 2024. Prior to ceasing contact, the Mother told the Father that she was in Hong Kong with the Child, and that she did not know whether and when she would return to Germany.

7.  What happened was that, after the Child has been brought to Hong Kong, the Mother has lived with the Child together with her aunt (“the Aunt”) at the Aunt’s residence here. The Mother has also enrolled him to study in Primary x in a local school in xxxxxxx since September 2024.

8.  In the meantime, the Father has commenced another set of proceedings in Germany for the sole right to determine the place of residence of the Child on the basis that the Mother did not hand back the Child to him as agreed in the previous court hearing. On 8 August 2024, the District Court of xxxxxxxxxxx issued a temporary injunction prohibiting the Mother from taking the Child out of Germany and ordered that parental custody of the Child be temporarily transferred to the Father alone with regard to the right to determine the Child’s place of residence, with the joint care model revoked. The Mother was also ordered to surrender the Child to the Father.

9.  The present action was then commenced on 9 September 2024.

10.  In the Mother’s case, she does not dispute that the Child was habitually resident in Germany. She also accepts that the Father had, and has, rights of custody to the Child, and that he was exercising them at the time of the removal. However, she objects against returning the Child back to Germany by relying on the Child’s objection exception. She alleged that the Child has adapted to his new life in Hong Kong very well, and that he does not want to return to Germany at all. The Mother also stated that the Child wants to be with her in Hong Kong and does not want to be with the woman Ms S who is admittedly the current partner of the Father.

11.  The Mother further argued at the substantive hearing that there is a risk of intolerable situation if the Child is brought back to Germany.

THE RELEVANT PROVISIONS OF THE HAGUE CONVENTION

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

13.  For the purpose of the present application, Articles 3, 12, 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 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

[…]

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)

THE ISSUES

14.  The issues which this Court has to resolve herein are:

(1) Whether the Child objects to being returned to Germany;

(2) Whether, having taken into account the Child’s view, an order of return should be made;

(3) Whether there is a grave risk that the Child’s return to Germany would place him in an intolerable situation caused by the uncertainties regarding his carer (the Mother)’s ability to stay/reside there.

LEGAL PRINCIPLES

15.  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 a 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.

16.  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].

17.  When deciding whether an order of return should be made, the Court will have to take into account the views of the child concerned if he/she is mature enough to express his/her view: Article 13 of the Hague Convention.

18.  In this regard, Cheung JA in LCYP v JEK [2015] 4 HKLRD 798 had referred to the approach on the child’s objection exception as summarized by Black LJ in Re M & Others (Children) (Abduction: Child’s Objections) [2016] Fam 1 as follows:

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

[…]

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

19.  Cheung JA further explained that it does not matter whether the child expresses that he/she prefers to stay in one place or that he/she objects to return. What is important is the substance of the views of the child but not the labels to be attached to his/her views.[1]

20.  Black LJ in Re M & Others (supra) held that there are a few features in the law in relation to the gateway requirements which are tolerably well established[2]. These features are summarised as follows:

(1) Factual matters – whether a child objects to being returned, his or her age, and the degree of maturity of the child are all questions of fact;

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

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

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

(5) Objections are not determinative – the child’s objections cannot be presumed to be determinative of the application, and there is a difference between taking account of a child’s views and doing what he/she wants; once the court’s discretion arises, it is at large.

21.  As far as the discretion stage is concerned, what Baroness Hale said in In re M [2008] 1 AC 1288 at [42] – [46] should be borne in mind:

“42. In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.

43. My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child’s rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word ‘overriding’ if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

44. That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.

45. By way of illustration only, as this House pointed out in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619, para 55:

‘it is inconceivable that a court which reached the conclusion that there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate.’

It was not the policy of the Convention that children should be put at serious risk of harm or placed in intolerable situations. In consent or acquiescence cases, on the other hand, general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that her future can be decided in her home country.

46. In child’s objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are ‘authentically her own’ or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.”

22.  Black LJ’s reminder given in Re M & Others at [71] is also instructive:

“It must at all times be borne in mind that the 1980 Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said in In re M, at para 42, ‘[the] message should go out to potential abductors that there are no safe havens among contracting states’. ”

23.  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 CHILD’S VIEWS

24.  At the time of the call-over hearing on 17 September 2024, the Mother was still unrepresented and yet to receive legal advice. As a result, she was unable to inform the Court what her ground of opposition was.

25.  It was only on 25 September 2024 that the Mother’s solicitors filed a Notice to Act. In the afternoon on the following day, the Mother’s solicitors wrote and informed the Court that she would rely on the child objection exception herein, and invited the Court to obtain a social investigation report so that the Child’s views towards this application could be ascertained. However, by the time the solicitors’ letter reached this Court, it was already after office hours on 26 September 2024. That means even if the Social Welfare Department was informed immediately on 27 September 2024, there were less than 5 working days left before the scheduled hearing date (8 October 2024).

26.  This Court therefore proposed to the parties on 27 September 2024 that this Court should see the Child face-to-face on the day of the substantive hearing together with my clerk in the absence of the parties, which this Court did on 8 October 2024 with the parties’ consent (“the Child’s Meeting”).

27.  At the Child’s Meeting, the Child told this Court that:

(1) He does not want to go back to Germany;

(2) He does not like the Father and his girlfriend Ms S;

(3) He would like to stay in Hong Kong so as to live with the Mother here;

(4) He wants to continue studying in the school in Hong Kong because he wants to learn more Cantonese, English and Putonghua.

28.  Surprisingly, in the substantive hearing (both before and after the Child’s Meeting), the Mother’s counsel, apparently at the instruction of those instructing her, insisted that a social investigation report should be obtained despite the Child’s Meeting on the ground that the meeting with the Child should not be an occasion for the Court to gather evidence. She suggested that the substantive hearing should be adjourned for 3 weeks so that an expedited report may be obtained. She further submitted that this should be done despite the fact that this would necessarily mean that this Court would not be able to reach a final decision herein within 6 weeks from the date of commencement of the proceedings, as expected under Article 11 of the Hague Convention.

29.  With greatest respect, such a suggestion is totally misconceived and should not have been made at all:

(1) When the Mother’s solicitors first suggested by letter dated 26 September 2024 to obtain a social investigation report, the sole specified purpose was for the Child’s views towards this application to be ascertained. As this purpose has been achieved already by virtue of the Child’s Meeting, there is simply no need for a social investigation report to be obtained after the hearing;

(2) When this Court pointed out to the Mother’s solicitors on 27 September 2024 that it was unrealistic to expect that a social investigation report would be ready by the hearing date of 8 October 2024, and therefore proposed that the Child’s Meeting be held, the Mother’s solicitors unreservedly agreed, without indicating that she would still insist that such a report should be obtained after the substantive hearing. It is thus unreasonable for those representing her to try to re-open this matter at the substantive hearing;

(3) Paragraph 4 of PDSL 5 (Guidance on Meeting Children) provides that:

“In considering the need to meet with a child, a Judge may take into account the following matters :-

(i) […]

(ii) […]

(iii) If the proceedings have been brought as a matter of urgency and there is no social investigation report reflecting the views of the child, the Judge may consider this to be a factor favouring a meeting so that the views of the child may be ascertained without unduly delay.

(iv) […]”

In my view, it is clearly anticipated by the said Practice Direction that, in case of urgency, a meeting with the child by the Judge would be held in the place of a social investigation report for the purpose of ascertaining the views of the child.

(4) Ms Tam’s submission that PDSL 5 does not prohibit the Court from obtaining a social investigation report even after meeting the child is, with greatest respect, in total disregard of the spirit of the practice direction.

DISCUSSION – INTOLERABLE SITUATION

30.  As aforesaid, the Mother is relying on two limbs under Article 13 of the Hague Convention in her opposition against the present application for return of the Child back to Germany:

(1) The uncertainties regarding the Mother’s ability to stay/reside in Germany which place the Child at grave risk of an intolerable situation due to being separated from his carer;

(2) The Child’s objection against an order of return to Germany.

31.  For the sake of convenience, I will deal with the “intolerable situation” defence first.

32.  To establish this ground, the Mother relied on German legal expert evidence (“the German Legal Expert Evidence”), which was not exhibited to her Affirmation in opposition but only attached to her counsel’s skeleton submissions. It goes without saying that it is entirely improper for her to adduce expert evidence in such a way. However, since Mr Levaire for the Father has raised no objection against this, I allowed the Mother to rely on such evidence.

33.  Pausing here, while Ms Tam was in the course of making her submissions for the Mother, she attempted to hand up another piece of German legal advice (“Further German Legal Advice”) which she said her instructing solicitors had just received. Understandably, this was objected by Mr Levaire, who was only given a copy thereof right before the commencement of the hearing. There was therefore no chance for the Father’s legal team to consider this new evidence, not to mention for the Father to be properly advised on the matter. Ms Tam explained that this new evidence was obtained late because the necessity of adducing further expert evidence was only known upon the Mother’s perusal of the Father’s affirmation in reply. However, it is noted that the Father’s reply was filed and served on 30 September 2024. In other words, the Mother could have adduced this piece of evidence together with the German Legal Expert Evidence on 4 October 2024. In such circumstances, I refused the Mother’s application to rely on the Further German Legal Advice.

34.  I should specifically mention here that one of the arguments relied on by the Mother’s counsel was that this new evidence would “assist the Court”. With respect, this phrase has been abused by far too many legal practitioners, who always resort to this phrase when they attempt to adduce further evidence in contravention of the rules and directions. This should not be condoned.

35.  Coming back to the German Legal Expert Evidence, it states that:

“According to Section 5(1) no. 1 of the Residence Act, the granting of a residence permit requires that the person’s livelihood is secured.

Notwithstanding this, the residence permit is to be granted to the foreign parent of a minor, unmarried German in order to exercise personal care, according to Section 28 (1) sentence 1 no. 3 of the Residence Act if the German has his or her habitual residence in the federal territory.

At this point, it is already questionable whether the minor son of the child’s mother has his habitual residence in the federal territory, because the child is currently not in Germany. Here, even the first requirement is not certain.

In addition, the personal care must also exist. By order of August 8, 2024, the child’s father was granted the right of residence for sole exercise by way of a temporary injunction. This is only a part of parental custody that has now been transferred to the child’s father for sole exercise. The transfer of the right of residence to one parent means that this parent alone can determine where the child lives.

Personal care in the sense of §28 para. 1 sentence no. 3 of the Residence Act includes, in particular, the duty and the right to care for, educate, supervise and determine the child’s place of residence […]. The decisive factor in this respect is the actual exercise of custody. The person with custody must visibly take sufficient responsibility for the care and upbringing of the child.

In the decision dated August 8, 2024 by the xxxxxxxxxxx District Court […], the child’s father was provisionally granted the right of residence as part of parental custody by way of a temporary injunction. In this respect, the child’s mother in Germany is no longer entitled to decide where her child is living. Therefore, the child’s mother can no longer exercise all parts of custody in Germany.

In this case, it is highly questionable whether the child’s mother will be granted a residence permit, as she cannot fully exercise personal custody in Germany. In particular, she cannot actually exercise parental care if she is in Hong Kong and only her child is repatriated.

According to Section 28 (1) sentence 3 of the Residence Act, the residence permit can be granted to the parent without custody of a minor, unmarried German, when the family is already living in the federal territory. Accordingly, the child’s mother could join her child even if she is not entitled to personal custody. However, this is an optional provision, so that the court has discretion and the residence permit is not mandatory. If there is no custody, the issuance is at the discretion of the immigration office.

Furthermore, the child’s mother must already be living with her child in a family household in Germany. However, the child’s mother is not currently in the federal territory, so the family is not currently living in the federal territory together. Consequently, the conditions are not met, so that family reunification is not guaranteed even after that.

With the transfer of the right of residence to the child’s father by court order on August 8, 2024, he alone can determine where his child lives. Thereafter, the child will live with the parent who exercises the right of residence. Moving in from abroad to exercise the right of access/visitation (Section 28 (1) sentence 4) is not sufficient to obtain a residence permit.

In summary, there are considerable uncertainties as to whether the child’s mother can be guaranteed family reunification.

The extent to which other options for reunification through a visa exist is currently unclear.

It is also not known whether the child’s father has already filed a criminal complaint with the police for child abduction, so that the child’s mother in Germany could also face criminal charges. If the child’s mother is convicted of child abduction, she will not be able to obtain a German passport, because a person is only entitled to receive a German passport if they have not been convicted of a crime.”

36.  With greatest respect to the German lawyer concerned, I have great reservation on the analysis contained in the German Legal Expert Evidence.

37.  First, the expert questioned whether the Child still has his habitual residence in Germany on the ground that he is currently not physically in the country.

38.  There is no evidence that the law on habitual residence in Germany is different from that of Hong Kong.

39.  In LCYP v JEK [2015] 4 HKLRD 798, Lam VP (as he then was) explained the legal principles on habitual residence at [7.7] as follows:

“Instead of trying to discuss which of the principles in BLW should be modified, it will be more useful to restate the principles on habitual residence in the light of these decisions.

(1) Habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce (In re L (A child) paragraph 20);

(2) The factual question is : has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so (In re LC (Children) paragraph 59);

(3) The concept corresponds to the place which reflects some degree of integration by the child in a social and family environment (In re L (A child) paragraph 20);

(4) The question is the quality of the child’s residence, in which all sorts of factors may be relevant. Some of these are objective: how long is he there, what are his living conditions while there, is he at school or at work, and so on? But subjective factors are also relevant: what is the reason for his being there, and what is his perception about being there? (In re LC (Children) paragraph 60);

(5) There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents (In re L (A child) paragraph 21); and

(6) Although a child could lose his habitual residence without a parent’s consent, nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child’s leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence (In re L (A child) paragraph 23).”

40.  With the question of whether the Child should be returned to Germany still being fought in Court, coupled with the clear order of the German Court that the Child should not be brought outside Germany and the German Court’s anticipation that the issue on right of residence should be decided in the German Court, it is pre-mature to describe the Child’s residence in Hong Kong as having acquired the necessary degree of stability to become habitual. Furthermore, the Child has only started schooling here for slightly more than a month. It is again too early to talk about the Child attaining the requisite degree of integration into the Hong Kong society.

41.  Hence, the expert’s doubt on the Child’s habitual residence is unfounded.

42.  Second, the expert emphasised that personal care must exist before the Mother may apply for a residence permit, but, it was stated, the transfer of the right of residence (I was told that that is equivalent to “care and control”) to the Father means that he alone can determine where the Child lives. It was therefore concluded that the Mother can no longer exercise all parts of custody in Germany, which would render it questionable whether she would be granted residence permit.

43.  In my view, the problem of the expert’s analysis is that it only focused on the current situation, but has overlooked the fact that the transfer of the right of residence is temporary. It should be borne in mind that the latest court order of the German Court was made only consequential to the Mother’s retaining the Child in Hong Kong without the consent of the Father, and it has been expressly stated by the German Court that this temporary order is pending the decision to be made in the custody proceedings. It is therefore unjustified for the expert to assume that that is going to be the permanent situation.

44.  Third, the Mother’s expert stated that it is highly questionable whether she will be granted a residence permit if she is in Hong Kong and only the Child is “repatriated”.

45.  This viewpoint is not understood, for it is not the Mother’s case that she is unwilling to go to Germany. She is only worried about not being able to obtain a new permit of residence there. In other words, it is totally up to her to go back to Germany at any time.

46.  Fourth, while the Mother’s expert recognised that the Mother could join the Child even if she is not entitled to personal custody, it was pointed out that the Mother is currently not in Germany. As aforesaid, this is not a problem at all because there is no evidence that the Mother cannot even go back to Germany.

47.  Fifth, the expert opined that if the Mother moves into Germany from abroad to exercise the right of access/visitation, that is not sufficient to obtain a residence permit. However, the fact is that the Mother had lived in Germany since at least 2014, and she had only left Germany for 3 months. The expert did not explain why even under such a situation the Mother would still be regarded as “moving into Germany from abroad”. I therefore do not accept such a view.

48.  I now come to the crucial question: whether there is any grave risk of intolerable situation which is caused by the Mother having no permission to stay in Germany.

49.  In my view, the Mother has failed to establish such grave risk.

50.  First of all, it must be emphasised that the Mother has to establish that there is a “grave” risk that she will not be able to stay in Germany permanently. Mere “uncertainty” is not enough. Indeed, since the application for residence permit has to be made to the German authority which is responsible for immigration matters, it can never be said that there is any “certainty” that the application would be approved. However, that does not mean that there is a grave risk that the Mother’s application would be rejected.

51.  Further, even her own expert accepted that:

(1) Residence permit may be granted to the foreign parent of a minor, unmarried German in order to exercise personal care, if the German has his or her habitual residence in Germany;

(2) Residence permit can also be granted to the parent without custody of a minor, unmarried German, when the family is already living in Germany. Accordingly, if the Mother moves back to Germany, then, according to the expert, the court has a discretion to grant residence permit. If there is no custody, the issuance is at the discretion of the immigration office.

52.  These reinforce my view that the Mother has failed to establish grave risk which is required for her to rely on this defence.

53.  Ms Tam for the Mother relied very heavily on the case of W v W 2003 S.L.T. 1253, and submitted that this Court should follow the approach of the Scottish Court which came to the view therein that ordering the return of the children involved back to Australia without their mother would place them in an intolerable situation.

54.  However, W v W is quite unique on its facts which are clearly distinguishable from the fact in the present case. In W v W, the mother concerned had cared for her 4 children all of their lives. Further, the problem faced by the mother in W v W was that she was unable to obtain a suitable visa to enter into Australia, and as a result she could not even accompany the children back pursuant to the return order. But in the present case:

(1) It cannot be disputed that the Mother is at liberty to enter into Germany at any time (at least on the strength of a tourist visa);

(2) Since October 2023, there had been shared custody between the parties with a week-on week-off arrangement. In other words, there had been occasions since October 2023 that the Child was not staying with the Mother but with the Father or his parents.

55.  I therefore take the view that W v W does not assist the Mother.

56.  The Mother’s counsel also relied on the case of PD v LTY (Relocation) [2017] HKFLR 392 and suggested that even in case this Court considers that an order of return is suitable, it should be made conditional upon the Mother’s successful application for a residence permit.

57.  With greatest respect, this suggestion is bold and must be rejected.

58.  In my view, the best interest of the Child requires that he be brought back to Germany as soon as possible so that he could live his life in a familiar environment as he did in the last 9 years. It is also in the best interest of the Child for the custody proceedings in Germany to be proceeded with as soon as possible upon his return, so that the issue on custody can be decided sooner rather than later.

59.  The “grave risk” defence is therefore rejected.

DISCUSSION – THE CHILD’S OBJECTION

The gateway stage

60.  The Child has indicated that he is not willing to return to Germany. He is now 9 years old. I accept that he has attained the degree of maturity at which it is appropriate to take account of its views.

61.  Hence, I accept that the gateway stage has been passed.

The discretion stage

62.  The Child was born and grew up in Germany.

63.  He started attending a primary school in Germany in 2022. But for the fact that he has been brought to Hong Kong, he should have started his xxx grade in the same school.

64.  In other words, the Mother’s decision to bring the Child to Hong Kong unilaterally without the consent of the Father has the effect of uprooting the Child from one environment in which he had lived for nearly 9 years to an unfamiliar one.

65.  Although the Mother suggested that the Child has adapted very well to the new environment in Hong Kong, the fact is that, even if that is true:

(1) Hong Kong is a place which the Child has only visited 3 times for vacation before 2024;

(2) The Child has only arrived in Hong Kong on 11 July 2024, that is, for around 3 months by the time of this Judgment. When compared to the nearly 9-year period which he has spent in Germany, the time that he has stayed here is very short.

66.  Furthermore, custody proceedings in relation to the Child has been commenced in Germany for sometime. As mentioned, the Parents had initially been granted joint custody of the Child by a German Court on 11 October 2023. The German Court, having seized of the matter, has in fact met the Child at least twice.

67.  Since the unilateral retention of the Child in Hong Kong by the Mother, The District Court of xxxxxxxxx issued a temporary injunction on 8 August 2024 prohibiting the Mother from taking the Child out of Germany. The said Court further ordered that parental custody of the Child be temporarily transferred to the Father alone with regard to the right to determine the Child’s place of residence, with the joint care model revoked. The Mother was also ordered to surrender the Child to the Father.

68.  In the above circumstances, I am of the view that it must be in the best interest of the Child that the question concerning relocation be decided by the German Court. The Mother should not have taken the law into her own hands.

69.  Although the Child had in the meeting with this Court told that he did not want to return to Germany, I must say I do not believe that such a view was authentically his own, because, from the way he talked, it was apparent that he was reciting some scripts to me. He also said those lines repeatedly and quite unnaturally.

70.  Furthermore, it was only in June 2024 that the Local Court of xxxxxx had met the Child, who in the meeting had made his views known. Notably, the following was recorded in the transcript of the hearing:

“When asked how it was with his mother, he explained:

Fine.

When asked what he liked there, he explained that he liked everything.

When asked what it was like with his father, he also said:

Fine.

Then he explained that his father’s house was sometimes a bit untidy.”

71.  According to the transcript, the learned Judge of the District Court of xxxxxxxxxxxxx also had the following to say at the hearing held on 8 August 2024:

“[…] From the previous proceedings, the court is aware that [the Child] suffers from considerable fear of loss with regard to both parents. […]” (emphasis added)

72.  It can therefore be seen that the Child’s attitude towards the Father had had a dramatic change within a few months.

73.  From what the Child told this Court, the only reason why he does not like the Father is because of Ms S. However, according to the Mother’s own evidence, the Father had introduced Ms S to the Child back in 2023, and it was in that year that the Father had asked the Child to speak to Ms S in numerous video calls, which, the Mother said, had caused “significant emotional distress” and confusion in the mind of the Child. One naturally would wonder why the Child had never told the German Court that he disliked the Father in previous court hearings held in 2023 and 2024. That reinforces my view that the Child’s objection as expressed in the Child’s Meeting must have been the product of the influence of the Mother.

74.  I will therefore place little weight on such objection.

75.  The Mother stated that she was concerned over the Child’s daily care if he is to be returned to Germany, and it was said that the Father has all along relied on his own parents to take care of the Child. In my view, the investigation in relation to these matters should be done by the German Court rather than this Court at this stage.

76.  The Mother’s counsel also referred this Court to section 235(2) of the German Criminal Code, and submitted that if the Mother returns to Germany with the Child, there is a risk of criminal prosecution against her which, it was said, would not be in the Child’s interest.

77.  As the Mother’s counsel accepted, this offence would only be prosecuted upon request, unless the prosecuting authority deems there to be a special public interest in prosecution which calls for ex officio intervention.

78.  In this regard, the Father’s counsel, at the instruction of the Father, has given the following undertakings on his behalf:

(1) He undertakes not to make further reference or application to the police or prosecution authority in Germany in relation to the Mother’s abduction of the Child to Hong Kong;

(2) He undertakes to cause to withdraw his complaints from the police on the Mother’s abduction.

79.  On my part, I actually have reservation as to whether it is right for the Mother to ask the Court to make any order of return to be subject to the Father giving such undertakings, as it seems to me not right for the Mother to hold the Father to ransom. After all, the Mother has knowingly breached a court order of joint custody which was made by consent by taking the Child out of the jurisdiction of Germany and as a result breached the German Criminal Code. More importantly, although according to section 235 of such a Code, the convicted accused is liable to imprisonment of up to 5 years, a fine may also be imposed. Having taken into account the provisions in the same section on the appropriate penalty under different scenarios, it seems that the Mother, if convicted, would at most only face a fine. That being the case, any argument that the imprisonment of the Mother upon conviction of this offence would not be in the best interest of the Child simply cannot stand. But, since the Father has agreed to give the undertakings as mentioned, I need say no more on this matter.

80.  The Mother also stated that there is a lack of certainty over her legal status to remain in Germany. I have already dealt with this argument in the earlier part of this Decision and would not repeat the same here.

81.  Having considered all the above and balancing all the circumstances, I have come to the decision that notwithstanding the Child’s views, it is in his best interest for him to return to Germany forthwith. In my view, this Court should, in the present case, give due weight to the general policy considerations: secure the swift return of the Child, and respect the comity of the contracting states as well as the German judicial process. This Court should also send out a clear message to potential abductors that there are no safe havens among the contracting states.

ORDER

82.  I therefore make the following orders:

(1) M shall be returned to Germany no later than 23 October 2024;

(2) Paragraph 1 of the court order dated 5 September 2024 be varied to read as follows:

“M must not be removed from the jurisdiction of Hong Kong without leave of the Court unless he is accompanied by S”

(3) The aforesaid varied order shall be discharged upon M’s departure from Hong Kong pursuant to paragraph (1) above;

(4) The travel documents of M which have been kept by the Court shall be released to S through his solicitors.

83.  Since the German Court has ordered that the parental custody of the Child be transferred to the Father, I further order the Mother to return the Child to the Father forthwith upon his arrival in Hong Kong[3].

84.  There will be liberty to apply in respect of the implementation of the aforesaid orders.

COSTS

85.  My tentative view is that the Mother should bear the Father’s costs, but there should be no order as to the costs of the Department of Justice.

86.  I have considered the following matters when I come to the above tentative views.

87.  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.”

88.  Hartmann J (as he then was) explained in N v O (HCMP 4204/1998, unreported, 6 January 1999) that the last paragraph of the aforesaid Article 26 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. However, he stated further that:

“In the absence, therefore, of specific directions contained in the Child Abduction and Custody Ordinance, in my judgment, in Convention cases, our courts should adhere to the principles already established in children’s cases and should be wary of awarding costs against an unsuccessful party except in exceptional circumstances. It is unnecessary and undesirable to attempt to limit or place into confined categories the cases which a court might, in Convention cases, 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.” (at page 9)

89.  I have not lost sight of a more recent case LCH v JMC [2019] HKCFI 2521 referred to me by the Mother counsel. In this case, the learned Judge has referred to, inter alia, EC-L v DM (Child Abduction: costs) [2005] EWHC 588 (Fam), in which Ryder J had considered the approach on costs which the Court should adopt in a Hague Convention case, and his Lordship took the view that it should be the expectation in such cases that the usual orders would be no order as to costs, but where a party’s conduct had been unreasonable or where there was a disparity of means then the court could consider whether to exercise its discretion in accordance with the normal civil principles: at [68].

90.  Having said that, in my view, there is nothing in EC-L v DM (Child Abduction: costs) which queries the trite principle that costs are a matter of wide discretion for the Judge. Indeed, even though there is a general practice for the Hong Kong court not to award costs in children matters, this is just a practice but not a principle of law[4]. Hence, the Court must retain a discretion to make any order on costs as it thinks fit, even if that means one of the parents would have to pay costs of the other side.

91.  In this regard, Order 62 rule 5(1)(e) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) expressly provides that the Court may take into account the conduct of the parties when exercising its discretion as to costs, and rule 5(2)(d) of the same Order stipulates that “conduct” would include “conduct before, as well as during, the proceedings”. In other words, the “conduct” which the Court considers is not limited to the parties’ conduct in the litigation.

92.  In the present case, an important matter which the Court must take into account is that the Mother has in effect breached the joint custody order dated 11 October 2023 and another order stipulating how the Child should spend his holidays dated 12 June 2024, both made by the Local Court of xxxxxx. Such conduct, in my view, should not be condoned. An adverse order on costs should be made to reflect the Court’s strong disapproval of such conduct.

93.  I therefore make a costs order nisi that the 1^st defendant shall bear the costs of the 2^nd defendant, such costs shall be taxed if not agreed.

94.  I make no order as to the costs of the Department of Justice.

95.  The 1^st defendant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

96.  The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.