NP also known as NF v. CTF

FCMC 625 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 625 OF 2011

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J U D G M E N T
(Removal)

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Introduction

1.  This is an application by a Petitioner mother for leave to remove the child of the family, a little girl S, born in November 2008, out of the jurisdiction of Hong Kong in order to visit Thailand. Originally she sought leave to remove her for a holiday from the 19 November – 25 November 2011. It was not however possible to hear this matter prior to the planned November holiday and this has now become a general application for leave to remove S from time to time for holiday purposes. In particular the mother wishes to be able to take S to Thailand from time to time. The mother is a Thai national and S is therefore half Thai. The mother has family and friends in Thailand. The father is Canadian. In particular the mother now seeks leave from this court so that S may attend her wedding in Thailand in September 2012.

2.  The main issue here is whether or not I should allow the mother’s application for leave where there is a history of high conflict and against the father’s stated concerns about possible child abduction. It is really a case about the assessment of risk.

Background to the marriage

3.  It seems that this was short lived marriage following an even shorter period of courtship. The parties met in Bangkok, Thailand in January 2007 and married in November 2007. The mother was pregnant with S almost immediately thereafter. It seems that the marriage was in trouble almost from the start with each side making very damaging allegations against the other. This led to several periods of separation even prior to S’s birth. S was subsequently born in November 2008 in Thailand. She is now 3 ¾ years old. The mother remained in Thailand with S and her wider family until August 2009 when she returned to Hong Kong with the father in an attempt to form a family. Unfortunately the situation did not improve, prompting police involvement on a number of occasions. In December 2009 the mother was bound over following an incident involving the father, for common assault. On the 21 December 2009, following a further incident that occurred on the 20 December, the father left the matrimonial home taking S with him. In January 2010 proceedings were initiated by the father in the High Court as set out below. On the 16 March 2010 there was a further incident when the mother tried to take S from the former matrimonial home in breach of the court order dated the 5 February 2010 also referred to below. 

Background to the current litigation

4.  Following High Court proceedings instituted by the father a number of orders were made including the following:

a)   An order dated the 5 February 2010 granting the father interim custody and care and control of S, with supervised access to the mother. All access to be in the presence of a third party, the identity of the third party to be agreed between the parents. There was also an order preventing S’s removal from Hong Kong. The parties also entered into mutual non molestation undertakings;

b)   An order entered into by consent dated the 24 September 2010 granting the father sole custody and care and control of S;

c)   An order dated the 19 October 2010 granting the father general leave to remove S from the jurisdiction of Hong Kong from time to time for holiday purposes subject to his undertaking to provide travel itineraries and contact details in advance and to return S to the jurisdiction of Hong Kong on the dated specified or when called upon by the court to do so;  

d)  An order dated the 24 January 2011 granting the mother unsupervised weekly access to S every Saturday from 9:00 am – 5:00 pm, with further directions given for pickups and drop offs;

e)   An order dated the 20 June 2011 granting the father leave to permanently remove S from Hong Kong in order to reside with him in Macau. This was subject to the following undertakings: 

   AND UPON the Applicant [the father] undertaking to return the child, namely S, a girl, born in November 2008 (“S”) to the jurisdiction of the Hong Kong SAR when called upon to do so by the Court.

   AND UPON the Applicant undertaking to the Court and to the Respondent to notify any change in domestic arrangements for S, including her address and the arrangements for her care forthwith upon any such change taking place and the Applicant to give to the Respondent at least three (3) months’ notice in writing, where possible, of any intention by the Applicant, to reside elsewhere other than in Macau.

   AND UPON the Respondent undertaking to the Court and the Applicant to notify any change to her circumstances including her address and the arrangements for the care of S when she is with her forthwith upon any such change taking place and the Respondent to give the Applicant at least three (3) months’ notice in writing, where possible, of any intention by the Respondent, to reside elsewhere other than in Hong Kong SAR.

5.  Further it was ordered that the mother would have staying access as follows:

2.   The Respondent shall have staying access to S as follows unless otherwise agreed between the Parties or until further Order of the Court:-

(a)    The weekends of 24^th to 26^th June 2011, 8^th to 10^th July 2011, 23^rd to 30^th July 2011, from Friday 6:30 p.m. until Sunday 5:00 p.m., except in the case of the 23^rd July 2011 where the pick-up day shall be a Saturday.

(b)   From August 2011 staying access on alternate weekends commencing on 6^th August 2011 to 7^th August 2011 from Saturday 9:00 a.m. until Sunday 4:00 p.m. and on alternate weekends thereafter.

(c)    In addition to the above staying access, one week’s holiday from 13^th August 2011 to 20^th August 2011.

(d)   The Respondent shall have staying access for the purposes of holiday being five (5) days’ at Christmas, three (3) days over Easter holiday and for a period of two (2) weeks during the month of July and August in each year on a non-consecutive basis.  The Parties having agreed the arrangements for the summer holidays in 2011 as above.

(e)    The Christmas and Easter holidays shall be alternated to the effect that Christmas Day and Easter Sunday shall fall during the period of S’s holiday, alternating in each year, the Respondent to enjoy access to S for Christmas Day 2011 and Easter Sunday 2012, and alternating thereafter.

(f)    The meeting point for collection and delivery of S should be the entrance/exit to a Ferry Terminal (Hong Kong side), once S has moved to Macau.  Prior to S moving to Macau the meeting point shall be X MTR by Starbucks.

6.  Unfortunately the access arrangements have not been without incident and I have been shown copies of e-mail exchanges between the mother and father direct and also between the father and the mother’s fiancée. At times these exchanges have become quite heated with each side interpreting the order slightly differently. Notwithstanding that, access has largely continued to take place uninterrupted and there has not been any further major incident since the parties began to live separately and apart from each other.      

7.  On the 14 January 2011 the wife issued divorce proceedings based on the husband’s unreasonable behaviour. These were originally defended. Consensus was finally reached and the divorce eventually proceeded on the basis of one year separation with consent. The decree nisi was pronounced on the 25 August 2011. On the 13 January 2012 the parties entered into a consent summons whereby it was agreed that there would be a clean break between the parties with neither side making any claim against the other for any form of ancillary relief. A section 18 declaration was also made. The decree absolute was pronounced on the 6 February 2012.

The present situation of the parties

8.  Both the father and the mother are now in new relationships. The mother is living with a British national. They had a baby girl in March 2012 and they currently reside in Discovery Bay. As I have said they plan to marry in Thailand in September.

9.  The father is also living with his new partner in Macau. She is originally from the Philippines. He says that they also intend to marry shortly and to have further children.

10.  S presently resides with her father and his partner in Macau. She has been attending kindergarten at an International School of Macau (I), but there is some suggestion that she might be accepted into a College (A). At the time of writing it was not known which school she will be attending from August 2012. In so far as the term dates are concerned I have checked the web sites as suggested by the father in his closing submission. As one might expect the term dates are similar to each other but not exactly the same. For example I commences on the 29 August 2012 and the A starts on the 3 September.  There is an October half term of one week for I and a shorter break of three days for the A and so on and so forth.

11.  S continues to spend every other weekend with her mother and new family in Discovery Bay. She also enjoys the other access as ordered. This does not include holiday access overseas for the moment.

The law in Hong Kong

12.  The mother’s application is made in accordance with Rule 94 (2) of the Matrimonial Causes Rules, Cap 179 which states as follows:

Rule:

94

Removal of child out of Hong Kong, etc.

30/06/1997

(2)   A petitioner or respondent, or in case of a joint application, either of the joint applicants concerned may apply at any time for an order prohibiting the removal of any child of the family under 18 out of Hong Kong or out of the custody, care or control of any person named in the application without the leave of the court except on such terms as may be specified in the order.  Unless otherwise directed, an application under this paragraph may be made ex parte.

(L.N. 325 of 1982; L.N. 172 of 1996)

13.  Other than that the general principles governing applications concerning children apply. See s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

GENERAL PRINCIPLES

(1)   In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a)   in any proceedings before any court (whether or not a court as defined in section 2) the court -

(i)      shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A)  the wishes of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing;

14.  In so far as access is concerned, this is generally said to be the right of the child, as opposed to the parent. In other words the child has the right to see and to have a relationship with both of her parents. I accept, as suggested by Mr Hemens in his closing submission for the mother, that generally speaking a holiday overseas with a parent will be viewed by the court as being in the best interests of a child. This is particularly so when as here, the parents are from different countries and cultures (Thailand and Canada) and where the parent’s partners also come from different parts of the world (United Kingdom and the Philippines). No doubt as time moves on not only will the mother wish to take S to Thailand and the father to take her to Canada (as he has done in the more recent past), but the mother may also wish to take her to the UK with her new husband and family and the father may wish to take her to the Philippines with his partner.  Other Asian destinations may also beckon. This is to be expected.

The issues

Should leave be given for the mother to take S to Thailand in September 2012 in order that S might attend her wedding?

Should general leave be given for the mother to take S out of the jurisdiction of Hong Kong from time to time in order to visit Thailand and other countries?

Should any other orders be made with respect to the arrangements for S’s care?

Discussion

The Social Welfare Report

15.  The father explained to me that to date there have been five separate social welfare reports ordered between January 2010 and January 2012. He clearly takes issue with the approach taken at times by the Social Welfare Department and complains that they have ignored some of his legitimate concerns. Notwithstanding that he relies on the reports in their assessment of him as a loving and devoted father. 

16.  In the most recent report dated the 5 January 2012 the social welfare officer described the interaction between both parents and their partners with S in identical terms as follows:

The atmosphere was free and relaxed while their interactions were spontaneous and natural. The father-daughter relationship was observed to be close, sweet and affectionate.

……

The atmosphere was free and relaxed while their interactions were spontaneous and natural. The mother-daughter relationship was observed to be close, sweet and affectionate.

He concluded:

Remarks and Conclusion

25.  From the investigation, it is noted that both parents love S who shows attachment to them in return.  S was also observed to relate well with the parents’ partners.  Given that if Madam N [the mother] follows Mr A to continue staying in Hong Kong and her expressed view that she would like to have more time with S, there seems to have little possibility that she would not bring S back to Hong Kong as leaving S behind in other countries would also deprive herself from having regular access with S.  However, as the present issue involves prediction, there is no absolute guarantee that the worst scenario worrying Mr F [the father] will not happen.

26.  With respect to Mr F’s concerns relating to the legal issues in Hong Kong, Thailand and other countries surrounding the Hague Convention, as well as the legal points responded by Mr Hemens above, the Investigating Social Work Officer is not in a position to comment.  If what Mr F has expressed in this regard is the reality, his worry is understandable, and vice versa. [see paragraph 17 below]

27.  From a social point of view, the taking of S by either of her parents to go to other countries whether for vacation, or visiting friends and relatives seems to meet the needs of the parents, not S.  For S who is in her tender age, the centre of her life is her parents.  As long as she is with her parents towards whom she is attached, she will feel secured, happy and satisfied.  All other things, whether it is beautiful scenery, historical attractions, parents’ close relatives and old friends, or in any particular part of the world, indeed have little meaning to her.  In other words, it may be viewed that S’s overseas travel can be beneficial to her as she will have different exposure and experiences but these may simply be a flash in her life.  On the other hand, it may be also viewed that S’s not travelling overseas is not harmful to her either.

28.  Indeed, the question of whether S should be brought out of Hong Kong for travel by Madam N is indeed a very difficult one as both Madam N and Mr F have their own justifications in proposing and rejecting the request, while the view of S is unavailable.  On the one hand, it is an issue of fairness that Mr F is permitted to take S to Canada while it is unfair to Madam N if she is not permitted to do so.  On the other hand, it can be detrimental to S’s best interest if the worse scenario as alleged by Mr F do occur eventually.  Nevertheless, the present issue of bringing S to other countries involves the mutual trust between Madam N and Mr F, and it is obvious that their mutual trust is lacking.  The best interest of S in this regard then centers around the mutual trust between the parents in arranging the activities for her.  The present staying access arrangement as enjoyed by S started off with supervised day access which gradually evolved with lapse of time and efforts by the parents in building up their mutual trust.  By the same token, the mutual trust involved in bringing S for trips outside Hong Kong by Madam N will again take time and efforts between the parents to build up.  Mutual trust in the arrangement for S between the parents will ensure the best interest for S.  Meanwhile, the Investigating Social Worker Officer is inclined to consider that the travel outside Hong Kong will bring substantial benefit to S by broadening her horizon when she gets older as she would have developed better understanding, more personal ability and life skill to integrate things around her and to make more sense out of the exposure.

29.  In light of the above, the Investigating Social Work Officer opined that for the time being, the taking of S out of Hong Kong by Madam N may not be an opportune time to be considered.

Should leave be given for the mother to take S to Thailand in September 2012 in order that S might attend her wedding?

17.  The father’s main objection to the proposed trip stems from his concerns about the Hague Convention. It appears that although Thailand has signed the Hague Treaty on Child Abduction, that the Thai government have not as yet put any domestic legislation in place in order to ensure that they are able to comply with their treaty obligations. Consequently if the mother took S to Thailand and refused to return her to Hong Kong (or indeed Macau), the father argues that it would be very difficult to ensure S’s immediate return to him. The mother has conceded this point in her closing submission, when she said that

…although Thailand is a signatory to the Hague Convention on child abduction, there have been as yet no laws developed in Thailand to implement the terms of the relevant laws developed in Thailand to implement the terms of the relevant articles of the convention. It would seem therefore that as the law stands at present in Thailand, a parent requesting its child to be returned to another jurisdiction would have to make such application through the Thai Courts.   

18.  The mother says that this should not be of any concern in any event given that that she is now in a stable relationship and based in Hong Kong with a new baby. She has no need nor any desire to return to Thailand on a permanent basis. Further she argues that it belies belief to think that she would place S in Thailand but return to Hong Kong herself. This is especially given that in those circumstances she would not be able to see S regularly and she would also, in all probability, be subject to contempt of court proceedings.

19.  The father also raises other issues. Given the past history he does not trust the mother or her motives. He refers to their history and raises again the past incidences of violence and alleged neglect. He says that the mother tried to kidnap S in the past (reference to the 16 March incident) and that she could try to do so again. He also refers to more recent incidences which he believes are indicative of possible emotional abuse on the part of the mother which have led to certain behavioural problems. He also says that the mother is dishonest.

20.  Unfortunately allegations of this type do little to facilitate an easier working relationship between the parties. As suggested during the trial it seems to me that both parties would be assisted greatly by a parenting course for high conflict cases. In particular it seems to me that some of the father’s concerns may be allayed if he understood the ways in which children are likely to react in situations such as this.

21.  Certainly there is nothing on the face of it to cause the court any particular concern now. According to the Social Investigation Report S appears, notwithstanding the obvious difficulties generated by the adults, to relate well to both her father and her mother. She is happy in the company of both. She also relates well to the other adults in her life and in particular to her parents cohabitants. The mother seems more settled and has explained her past behaviour in terms of the huge emotional upheaval that she was experiencing at the time. There have been no recent incidences which might cause the court further concern.

22.  I accept that the risk of S being abducted by her mother and removed to Thailand is now very low. The father also suggests that S might be deliberately lost by her mother and/or abducted by a third party. Again this risk seems rather remote and the allegations somewhat extreme. I also accept that although the mother behaved badly in the past that there is no indication at present that she is likely to do so again.   

23.  In so far as the wedding is concerned, notwithstanding the social welfare officer’s recommendations it seems to me that it is of the utmost importance that S should be present at the wedding of her mother and Mr A. Likewise I would expect S to be present at the wedding of her father to his new partner.

24.  During the hearing the father suggested that there could be a more constructive approach taken to the present impasse. Please note the following exchange that took place in court at the end of the hearing:

MR F: You know, I’ve given this a lot of thought obviously because I don’t want this animosity or – you know – you’re right, S feels it, you know, I know that but it maybe we could all go [to the wedding], you know.

MR HEMENS: Well, it’s a possibility – I mean I’m grateful for the …

COURT: I mean …

MR F: Your Honour, I know it might be a little uncomfortable but whatever is best for S.

COURT: Yes, you know, with the best will in the world I’m sure that …

MR F: You understand the intent though, right?

MR HEMENS: Yes.

COURT: I understand the intent and there may be ways of working around that.  I’m not dismissing [the suggestion] out of hand.

MR F: Yes, I’m going to have to be creative a bit but, you know …

COURT: Yes, I’m not dismissing it out of hand but certainly, I’m sure that you know, you’re not going to be invited to the wedding …

MR F: I know that, yes, which I don’t mind just as long as I know my little girl is okay, I don’t care, right.

COURT: … creative options … mediation or negotiations perhaps in the first instance might be very helpful.

25.  Given that I had hoped that both parties would consider a more constructive way forward. Unfortunately from the closing submissions filed it does not seem that the parties have entered into any form of dialogue since the court hearing.

26.  Notwithstanding that I will give leave in principle for S to visit Thailand in order to attend her mother’s wedding. Precise dates have not been provided to me so I do not know when it is anticipated that the wedding will take place and whether or not this will also necessitate taking S out of school. Further details will therefore need to be provided to the court. In the event that the father wishes to accompany S on the flight to Thailand then I would have no objection to this. Clearly he should not attend the wedding itself. In the event that he no longer wishes to avail himself of this option then leave should be given for S to attend her mother’s wedding and to be accompanied to and from Thailand by her mother in any event.

Should general leave be given for the mother to take S out of the jurisdiction of Hong Kong from time to time in order to visit Thailand and other countries?

27.  In all divorce cases there is a general prohibition preventing a child’s removal from Hong Kong, unless there is an agreement with the other side or court order. Often this means that each party will make an application for temporary removal as and when required. However as things stand at present in this case the father has the ability to take S way on holiday at will, but the mother does not. The social welfare officer has said that that overseas travel by the mother with S is not currently supported mainly because of the lack of trust between the parties. My concern however is that there may never be a high degree of trust between these parties. For the time being though it seems to me that this is not a case where general leave should be given. Rather in the medium to short term, the mother should apply for leave as and when she wishes to go overseas with S. I can certainly see no basis for any objection, if for example, the mother wishes to take S to a contracting Hague Convention state where the provisions of the convention have been fully ratified.   

Should any other orders be made with respect to the arrangements for S’s care?  

Access going forward

28.  Although neither party has made an application to vary the access order, my bigger concern relates to the current access arrangements. Consequently as indicated during the hearing I will bring the parties back for a call over in order to put in place a comprehensive timetable for access to cover the next 11 months or so – i.e. until the end of June 2013. In so doing I have in mind the great distances that S needs to cover on a regular basis (i.e. from Macau to Discovery Bay every other weekend) and the need to ensure that she has quality time with each of her parents. It seems to me that the parties should be working towards a situation whereby as far as possible the school holidays are split equally between them. Further the weekend access should not take place during the school holidays. In other words there should be an access time table for term time and an access time table for the school holidays.  

29.  The father has also raised the issue of S’s habitual residence. I accept that given that she is now residing in Macau on a permanent basis that Macau should be regarded as her place of habitual residence. He also said that he was not sure where the mother currently resided and where S stayed when she was in her mother’s care. For the avoidance of doubt that information should also be provided to the father.     

30.  Consequently an order will be made allowing the mother to remove S from the jurisdiction of Hong Kong subject to further information being provided to the court as referred to above. This will be subject to the same undertaking as was given by the father previously namely to provide a travel itinerary and contact details in advance and to return S to the jurisdiction of Hong Kong on the date specified or when called upon by the court to do so. There shall be a call over on the  7 August 2012 at 2:30 p.m. with respect to the access arrangements for S going forward. Both parties do personally attend that hearing. There shall also be an order nisi that there be no order as to costs to include costs reserved on the 7 November 2011 and 13 January 2012, such order to be made absolute in 14 days time.