M v. E

HCMP 392/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 392 OF 2015

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J U D G M E N T

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Introduction

1.  The application before the court was for the return of two children to the Federative Republic of Brazil (“Brazil”) under the Child Abduction and Custody Ordinance Cap 512.  The application was made pursuant to a request from the Central Authority in Brazil on behalf of the mother of the children.

Background

2.  The plaintiff (“Mother”) and the defendant (“Father”) had been involved in contentious proceedings over the children in both Argentina and Brazil.

3.  The Father was born in Argentina, and is now 58 years old.  He holds Argentine, Venezuelan and Brazilian nationalities.  The Father is in the 10 pin bowling business with various groups of investors, throughout South America, Hong Kong and Japan.  He and other investors purchased the Brazilian operation in 2002, and in 2003, he and another associate purchased the Hong Kong operation.  This was followed by the purchase of the business in Japan in 2007.  The Father is a permanent resident of Hong Kong and has lived in Hong Kong since 2003, although he has also maintained residence in Brazil. 

4.  The Mother is an Argentine national born in Argentina, and is now 35 years old.

5.  The parties married in Argentina in April 2006 and after marriage, they settled in Sao Paulo.  In 2007, the Mother’s family, including her parents, her sister P and her brother D also moved to Sao Paulo, and her sister P and brother D started to work in the Brazilian operation of the bowling business in Sao Paulo after their move there .

6.  The parties’ daughter CI, now 8, was born in Brazil in February 2007 and their son RS, now 5, was born in Brazil in November 2009 (collectively “Children”).  The Children have both Argentinian and Brazilian nationalities.

7.  The marriage ran into difficulties in about 2011. It was the Father’s allegation that the Mother and her sister P had wrongfully diverted funds belonging to the companies of the Father and his investors for various purposes without his consent or knowledge.  According to the Father, the matter was reported to the police and the Father said he had subsequently also commenced civil proceedings in Brazil against the Mother and P and obtained two judgments, one on 26 July 2013 and one in February 2014[1], both appeared to be in relation to rendering accounts.  The Mother denied the allegations and alleged she was not served with any proceedings, and had no knowledge of the same until they were exhibited in the Father’s affirmation herein.  There was no evidence provided by the Father as to whether, or how, those proceedings were brought to the attention of the Mother who was by then in Argentina, as the proceedings seemed to have been served “by publication”.

8.  Anyway, it was the Mother’s case that in September 2011 the Father had told her that he wanted a divorce, but this was denied by the Father, who said in early October 2011 while he was in Hong Kong, he had tried to contact the Children for a few days but was unsuccessful.  Then on about 8 or 9 October 2011, he found out that the Mother had taken the Children and left for Buenos Aires.  He left Hong Kong on 9 October 2011 to return to their home in Sao Paulo, and upon arrival, he found that the Mother had cleared their home of all her personal effects and also the Children’s.  He flew to Buenos Aires and went to the Mother’s father’s house seeking access to the Children.  He was told to leave and was told the Children were not there.  The Father then called the police, and the Mother issued domestic violence proceedings.  This then sparked off protracted litigation between the parties.

9.  The Father returned to Sao Paulo and contacted the Brazilian Central Authority and proceedings were commenced on 27 October 2011 in Argentina for the Children to be returned to Brazil under the Inter-American Convention on International Return of Children (“1^st Return Proceedings”). I understand the said convention contains similar provisions as the Hague Convention on the Civil Aspects of International Child Abduction 25 October 1980 (“Convention”). The 1^st Return Proceedings lasted some 1½ years and eventually on 18 April 2013, the First National Civil Court No 4 in Argentina ordered that the children be returned to Brazil[2].  The Mother’s appeal was later dismissed on 24 October 2013[3] (“Return Decision”).

10.  It was the Father’s case that while the 1^st Return Proceedings were going on in Argentina, and since about 23 February 2012, the Mother completely cut off all contact between the Father and the Children.  He was not allowed to even talk to the Children, whether on skype or on telephone, and only saw them for the first time on 29 April 2014 when they were all together to arrange for issue of passports for the Children to fly back to Brazil, as their previous ones had expired. 

11.  The Mother, on the other hand, said the parties and the Children spent Christmas 2011 together as a family, and their relationship was fairly amicable but in February 2012, the Father changed lawyers and his attitude changed and he wanted to have unsupervised access with the Children.  Anyway, it did not seem to be really disputed by the Mother that, for whatever reasons, the Father had no contact with the Children for about 2 years between February 2012 to April 2014. 

12.  When the parties went to apply for new passports for the Children on 29 April 2014, they agreed to an endorsement in the Children’s respective passports bearing the same date, which stated the names of their parents, and that each child was authorized by the parent(s) to travel unattended (“Travel Endorsement”)[4]. I will deal with the effect of the Travel Endorsement later in the judgment.

13.  It would appear during the 1^st Return Proceedings, and  after the Return Decision, without the Mother’s knowledge, the Father had obtained an ex parte order on 15 January 2014 from the courts in Brazil granting him sole custody of the Children (“1^st Custody Order”).  

14.  Eventually, on 16 May 2014, the Children returned to Brazil with the parties.  Upon arrival in Brazil, the Children were taken away from the Mother by the police and handed to the Father pursuant to the 1^st Custody Order.  The Mother said this was contrary to what was provided for in the Return Decision when the Argentine Court of Appeal had said that to preserve the health and interest of the Children, the proper transition began with the return of the Children to Brazil with the Mother accompanying the Children and keeping their custody at least until the Brazilian judicial authority had decided on this issue[5].

15.  The Mother had also said that the Father and/or his Brazilian lawyers failed to comply with what was stated in the Return Decision, namely that they should have sent an official letter to inform the Argentine Central Authority whether there was any judicial process against the Mother or any arrest warrant order against her.  The Father’s response was that there was no such judicial process.  The Mother was clearly unaware of the 1^st Custody Order.  

16.  The Mother filed an appeal on 23 May 2014 against the 1^st Custody Order.  On 25 May 2014, the Court of Appeal in Brazil granted the Mother sole custody of the Children (“2^nd Custody Order”), but the Father lodged an appeal at 4 pm the same day and the 2^nd Custody Order was stayed and a hearing was fixed on 5 June 2014.  Thus, the 2^nd Custody Order was only of a few hours’ duration before it was stayed.

17.  On 5 June 2014, a conciliation hearing took place in the First Private Law Chamber of the Sao Paulo State Court of Appeals.  The parties eventually arrived at an agreement, which resulted in an order being made on 5 June 2014 (“Consent Order”)[6].  I will go into the effect of the Consent Order later, but suffice to say at this juncture, the parties agreed to custody orders and that there were provisions as to which floor the Father and the Mother were to respectively reside at, and also where the Children were to reside, all under the same roof in the same house located at Rua Bernardino Fanganiello, 704, Casa Verde (“Property”).  

18.  Any peace or a new start hoped for did not last long.  On 28 June 2014, the Mother made a complaint to the police against the Father for alleged physical assault against her and her mother (“Grandmother”) who was visiting from Argentina.  The Father counter-alleged that he was assaulted by the Mother and the Grandmother.

19.  The Father then left with the Children, and the Mother said she understood that he was taking them to lunch, but then they disappeared.

20.  The Father and the Children left Brazil on 1 July 2014 on South African Airways to Johannesburg and then flew to Hong Kong. They arrived in Hong Kong on 3 July 2014.  

21.  The Father proceeded to apply for visas for the Children to stay in Hong Kong as his dependents, and on 22 July 2014, there was a letter from the Hong Kong Immigration Department requesting for further information from the Father, including the Mother’s consent.  On 23 July 2014, the Father made an application to the Family Court of Hong Kong for custody of the Children under the Guardianship of Minors Ordinance[7] (“HK Proceedings”).  According to the Father, his Argentine lawyer Ms Fabiana Marcela Quaini (“Ms Quaini”) had attempted service of the documents in the HK Proceedings on the Mother at her address at the Property on 6 August 2014, but there was no one answering the door, and Ms Quaini had inserted the documents under the door of the Mother’s address at the Property. 

22.  The Father further said he had sent an email to the Mother at her usual email address on 13 August 2014, with a copy of the Immigration Department’s letter, seeking her consent for the visas for the Children to remain in Hong Kong.

23.  Again, according to the Father, on 18 August 2014, he had caused a set of the documents in the HK Proceedings to be sent by Federal Express to the Mother to another address at 177, Rua Reliquia, Casa Verde, San Paulo (“Rua Reliquia Address.  The Father alleged that the Mother had signed the delivery advice of Federal Express on 21 August 2014 (“Delivery Advice”)[8]. The Mother alleged her signature on the Delivery Advice was forged.

24.  The Father had produced letters from his then solicitors Messrs Haldanes and also a 3^rd affirmation from Mr Hemens of Messrs Haldanes filed in the HK Proceedings in relation to service of the documents consisting of the originating summons, the Father’s 1^st affirmation in support of his application and the acknowledgment of service (“HK Proceedings Documents”).  The Father also said he had sent the Mother an email to her usual email address on 28 August 2014 attaching copies of the HK Proceedings Documents. 

25.  The Mother denied she had received any email from the Father, or that there had been service of the HK Proceedings Documents on her.  I will go into these issues later.

26.  In the meantime, on 12 August 2014, the Sao Paulo State Court of Appeals Judicial District of Sao Paulo, Regional Jurisdiction 1 issued a warrant for the search of the Children at school.

27.  The Mother obtained two orders on 27 August 2014 from the Sao Paul State Court of Appeals Judicial District of Sao Paulo, Regional Jurisdiction 1, one awarding custody to the Mother (“3^rd Custody Order”), and the other one was a Seek and Recover Order (“Recovery Order”) to return the Children to her.  According to the Mother, the Father had presented an appeal against the Recovery Order, but the Father said he had no knowledge of these orders until he was served with the papers in the present proceedings on 18 February 2014, and that his appeal was lodged by his lawyer only on 5 March 2015. 

28.  Anyway, the Father claimed the Mother had consented to the Children staying and living in Hong Kong and had produced a letter dated 7 September 2014 purportedly signed by the Mother, confirming her consent (“Consent Letter”)[9]. The Mother alleged that her signature on the Consent Letter was also forged.

29.  The Mother reported the Children missing on 23 September 2014 to the Federal Police Department, and she said it was only then that she learnt of the Father and the Children having left Brazil on 1 July 2014.

30.  On 29 September 2014, the Children were issued with dependant visas from the Immigration Department in Hong Kong, which would valid for one year.  In early October 2014, the Mother submitted information to the Brazilian Central Authority for return of the Children under the Convention.  The request was formally lodged on 30 October 2014 and was received by the Hong Kong Central Authority on 10 November 2014.

31.  The Hong Kong Central Authority obtained an ex parte order on 13 February 2015 for the Children not to be removed from Hong Kong and the Father was further ordered to deliver their travel documents to the court.  The Father, however, then claimed the Children’s passports were missing.

32.  The originating summons herein was formally filed on 16 February 2015.  The Children were said to have been wrongfully removed on 1 July 2014, from Brazil where they were habitually residing. 

33.  At the first hearing of the originating summons herein, this court was not satisfied with what the Father had said in his first affirmation about the loss of the Children’s passports, such affirmation being brief and lacking in particulars and directed the Father to file a second affirmation as to the circumstances of the alleged loss.  This court further directed both parents to attend the Brazilian Consulate the same afternoon to obtain new passports for the Children.  These were duly applied for and issued and were delivered to the court on 26 February 2015. 

34.  Mr Wingfield appeared for the Mother at the hearing before this court on instructions of the Director of Legal Aid.  Mr Russell Coleman SC leading Ms Theresa Chow appeared for the Father.  Ms Susanna Sit and Ms Osa Chan of the Hong Kong Central Authority were also present to provide assistance, if necessary.

35.  The first affirmation in support of the Mother’s application was filed by Ms Chan Wing Yan of the Hong Kong Central Authority (“Ms Chan”) on behalf of the Central Authority of Brazil and the Mother, and the Mother had filed an affirmation in reply to the affirmations filed by the Father’s witnesses.

36.  The Father’s lawyer in Argentina, Ms Quaini, and also his lawyer in Brazil, Mr Marco Aurelio Gerace (“Mr Gerace”) had filed affirmations for the Father, Ms Quaini’s in relation to the 1^st Return Proceedings in Argentina and Mr Gerace’s to explain the various court orders in Brazil.  The Father’s expert Professor Andre Ricardo Blanco Ferreira Pinto (“Professor Pinto”) had made two reports dated respectively 1 and 3 March 2015.  Ms Quaini, Mr Gerace and Professor Pinto all flew to Hong Kong for the hearing in case they needed to be cross-examined on their affirmations/reports.  The Mother had objected to them sitting inside the court room, the present proceedings being held in chambers not open to public.  Previously, at the 1^st hearing for directions, the Mother had applied for a representative from the Argentine Consulate and/or Brazilian Consulate to be present, but this was not allowed by this court due to objection from the Father’s side.  

37.  Neither side had made any application prior to the hearing for cross examination or further oral evidence at the hearing.  Mr Wingfield had confirmed at the commencement of the hearing that he did not wish to cross examine any of the Father’s witnesses, including Professor Pinto.

38.  In the circumstances, I see no reason as to why the Father’s three witnesses needed to remain inside the courtroom with their Portuguese interpreter.  They then left the courtroom.

The Disputed Issues

39.  There was no dispute that the Children were removed from Brazil on 1 July 2014 (“Removal”), and that prior to the Removal, the Children’s habitual residence was in Brazil. 

40.  The disputed issues posed by Mr Wingfield were:

(i) Was there wrongful removal/retention of the Children by the Father under Article 3 of the Convention, namely:

(a) Whether the Removal wrongful?

(b) Even if the Removal was not wrongful, whether retention of the Children in Hong Kong beyond 5 October 2014 (“Retention”) wrongful?

(ii) Were the Father’s objections to return, based on acquiescence under Article 13(1) (a) or grave risk under Article 13(1) (b) made out?

(iii) In considering issue (i), the essential question was whether the Mother had rights of custody under Article 3 of the Convention immediately or at the time of the Removal/Retention.

The Law

41.  The main relevant articles for the present application are Articles 3, 5 13 and 15 of the Convention.

42.  Article 3 defines ‘wrongful removal and retention’ as follows:

“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.”

43.  Further, the meaning of “rights of custody” and “rights of access” under the Convention can be found in Article 5:-

“For the purposes of this Convention-

(a) ‘rights of custody’ shall included rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;

(b)  ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.”

44.  Under Article 13 of the Convention, it is stated:-

“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.”

45.  Article 15 then states that:

“The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.”

46.  On interpretation of the Convention, it has been stated in Rayden & Jackson on Divorce and Family Matters 18 Ed Volume 1 (2)  that:

“It is the duty of the court to construe the Convention in a purposive way… It is to be construed broadly as an international agreement according to its general tenor and purpose, without attributing to any of its terms a specialist meaning which the word or words in question may have acquired under the domestic law of England. Resort may be had to the French text of the Convention, to the commentaries of learned authors and to judicial decisions of other contracting states. The Explanatory Report on the Convention by Professor Elisa Perez-Vera is also available as an aid to interpretation ... [10]”

47.  The Explanatory Report referred to in the above passage (“Explanatory Report”) had been referred to as an authoritative guide to interpretation by the United Kingdom Supreme Court in a number of cases and was also referred to by Mr Wingfield.

48.  Guidance on the approach adopted by judges considering Hague cases has been given by the UK Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 [2011] 2 FLR 758.  Among other things, the Supreme Court held that although the best interests of the child had not been expressly made a primary consideration in Hague proceedings, there was an underlying assumption that the unilateral action of one parent should not be permitted to pre-empt or delay resolution of  any dispute and also that the best interests of the child would be served by a prompt return to the child’s country of habitual residence; although both those assumptions were rebuttable in certain circumstances.

49.  The Supreme Court also held that in evaluating evidence the court should be mindful of the limitations involved in the summary nature of the Convention process and that it would rarely be appropriate to hear oral evidence of allegations made under Article 13(1) (b) and gave guidance on how the resolution of factual disputes should be approached. 

50.  In its subsequent decision of In the Matter of S (a Child) [2012] 2 AC 257, the Supreme Court clarified that the guidance that it gave in In re E should form part of the court’s general process of reasoning in appraising a defence and does not require formal identification as a preliminary point[11]. 

51.  In concluding its judgment, the Supreme Court reiterated that it had been the very object of the 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; that a properly careful determination did not equate to an in-depth examination of the entire family situation[12].

52.  With the above general principles in mind, I turn to the facts and the issues in the present application.

Whether the Mother had rights of custody immediately before the Removal/Retention under Article 3 of the Convention?

The Father’s Case

53.  The Father’s case was that under the Consent Order, he had unilateral/sole custody of the Children for 4 months, from 5 June 2014 to 4 October 2014, and the Mother had no “rights of custody” on 1 July 2014, only “rights of access”.

54.  Articles 3 and 5 of the Convention were given domestic effect in Brazil and Mr Coleman had pointed out that the word “guarda” was the Brazilian-Portuguese term for “custody”, and the term “guarda” was the same term used in the Brazilian-Portuguese Consent Order, in which the Father was granted “guarda” of the Children for the first 4 months following the order.

55.  Mr Coleman further submitted that the Mother knew that she did not enjoy any rights of custody on the date of the Removal, as she saw fit to apply to the Brazilian Court for a custody order on 27 August 2014, and further although she applied for a search warrant for the Children as early as 12 August 2014, she did not formally file her application for request for return under the Convention until 30 October 2014, and that her formal request was filed only after the effective date of when the parties started to have shared “guarda” under the Consent Order.

The Article 15 declaration

56.  In the present case, the relevant law of Brazil was first set out in Ms Chan’s affirmation[13] and she had further produced emails from the Brazilian Central Authority which provided additional information and clarifications on the relevant law.  The information provided to the Hong Kong Central Authority was with reference to article 1,583, paragraph 5 of Chapter XI of the Brazilian Civil Code, and also articles 84 and 85 of Chapter 2 of the Children and Teenager Statute (“Children’s Act”).

57.  At the 1^st hearing of the present proceedings, the Father’s solicitor Ms Por had pointed out that the law as stated above in Ms Chan’s affirmation was not the law at the time of the Removal when she sought leave to file expert evidence.

58.  As it turned out, there had been amendments to article 1,583 as follows:

(i) Law 10,406 of January 10, 2002 article 1,583  (“2002 Law”);

(ii) Law 11,698 of June 13, 2008, with modifications to  articles 1,583 and 1,584 of the 2002 Law (“2008 Law”);

(iii) Law 13,058 of December 22, 2014 amending articles 1,583, 1,284, 1585 and 1,634 (“2014 Law”).

59.  Anyway, at the 1^st hearing, this court indicated that an Article 15 declaration should be sought, if possible from the Brazilian Court.

60.  The Hong Kong Central Authority subsequently wrote on 3 March 2015 (“03.03.15 Letter”) [14] to inform the court that the competent authority to issue the Article 15 declaration was the Brazilian Central Authority and enclosed a copy of the Article 15 declaration signed by the Head of the Brazilian Central Authority dated 24 February 2015 (“Declaration”)[15] .

61.  The Hong Kong Central Authority in their 03.03.15 Letter had also enclosed a copy of a letter of 24 February 2015 from the Head of the Brazilian Central Authority[16] which stated that under the Brazilian Presidential Act no 3.951 Article 2 item V paragraph a, the competent Authority to issue a decision or other determination that a removal or retention was wrongful within the meaning of Article 3 of the Convention was the Brazilian Central Authority.

62.  The Declaration stated that the Removal was to be considered wrongful within the meaning of Article 3 of the Convention in that it had had breached the parental rights held by the Mother.  It further stated that :

“2. According to the Brazilian Civil Code, even if a parent is granted with sole custody rights over the child, it does not imply that the other parent has been deprived of the parental responsibility which includes the right to decide about any changes in their place of habitual residence.

3. According the Brazilian Law, custody and parental responsibility are two different institutes. Custody refers to the care of the child in day to day activities, while the parental responsibility is much broader, including the right to decide the child’s country of habitual residence. A parent may have only access rights to the child, but still hold parental responsibility, which means that this parent shall be consulted and shall agree to any change in the child’s place of habitual residence.

4. Further, the Children’s act, Federal law no 8.069 of June 13^th 1990 states in article 84 that consent of both parents is required for removing a Brazilian child from Brazil and in case a Brazilian child travels in the company of one of the parents, the express authorization of the other parent is required in a document with his/her sworn signature. The Law also states that without prior and express judicial authorization, no child or adolescent born in Brazil may leave the country in the company of a foreigner resident or have residence abroad.

5. By the time of the removal of the children from Brazil to Hong Kong the father had no judicial authorization to unilaterally change the children’s habitual residency.  The mother and the Sao Paul State Court of Appeals were not informed of such removal and no judicial authorization has been given to the father.  Hence the removal of the children is to be considered wrongful”

63.  As stated in the 03.03.15 Letter, the Brazilian Central Authority clarified that the Brazilian law provided to Ms Chan as set out in her affirmation was the 2014 Law, and confirmed it was not the law at the time of the Removal.  However, the Brazilian Central Authority was of the opinion that the 2008 Law protected the parental authority of the parent who did not have custody in the same way as the 2014 Law, and that even under the 2008 Law, the Mother held parental responsibilities over the Children at the time of the Removal and the Mother “shall be consulted and shall agree to any change in the place of habitual residence of the Children”[17].

64.  Mr Coleman had provided the court with a copy of the   Decree issued by the Civil Office Deputy for Legal Affairs of the President of the Republic[18], the statute which designates a Central Authority to be responsible and to advise on the Civil Aspects of International Abduction of children.

65.  Article 3 of the above Decree sets out the creation of the Council of Central Authority federal administration, which consists of representatives from, among others, the Attorney General and Brazilian Order of Lawyers, and Article 2 states that the Central Authority is competent to provide information relating to the Brazilian legislation and the statistics data referring to the abduction of children and teenagers.

66.  From my reading of the Decree, the Brazilian Central Authority is clearly a competent authority thereunder to provide any Article 15 declaration.    

67.  Mr Coleman submitted that the Declaration was produced by an administrative rather than a judicial body, and signed by a non-lawyer. 

68.  Mr Coleman had referred this court to Hunter v Murrow [2005] 2 FLR 119 where the English Court of Appeal had held that a declaration made under Article 15 of the Convention was persuasive but not binding upon the court which had sought it. 

69.  Dyson LJ had made a few observations in the above case on the question of when it would be appropriate to request a determination pursuant to Article 15 of the Convention and the significance of such a determination.  As he had pointed out, an assertion that the removal of a child was wrongful within the meaning of Article 3 entailed 3 propositions: (i) the applicant enjoyed certain rights in relation to the child; (ii) these rights were ‘rights of custody’ within the meaning of the Convention; so that (iii) the removal of the child was in breach of those rights and therefore wrongful. He stated:

“[49] The first proposition raises the domestic law question. In many cases, this question is satisfactorily resolved on the basis of expert evidence; or in reliance on a certificate or affidavit under Article 8(f) ‘emanating from a Central Authority, or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State’; by taking notice ‘directly of the law of, and judicial or administrative decisions, formally recognized or not in the state of habitual residence of the child, without recourse to the specific procedures for the proof of that law or the recognition of foreign decisions which would otherwise be applicable’(Article 14).

[50] But it can also be resolved by a determination pursuant to Art 15: a request for a determination that the removal was wrongful within the meaning of Art 3 can include a request for a determination of the domestic law rights (if any) of the applicant in relation to the child. … The decision of a court of competent jurisdiction is, obviously, more authoritative on the domestic law question than the opinion of an expert.  In some circumstances, it is preferable to obtain a court ruling. But delay is inimical to the best interest of the child. …”

70.  The then House of Lords had also considered an Article 15 declaration made by the final Court of Appeal of Bucharest in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 and Baroness Hale had held that if the requesting state’s characterization of the parent’s rights is clearly out of time with the international understanding of the Convention’s terms, as in Hunter v Murrow, the Court in the requested state may decline to follow it.

71.  It seems clear from the authorities that the Declaration would not be binding on this court although it would be persuasive.

The Case Law on Rights of Custody

72.  I now turn to consider the authorities on rights of custody.

73.  It was held by the Supreme Court  in In re K (A Child), for the purposes of the Convention, rights of custody, which were to be distinguished from rights of access, bore an autonomous meaning independent of that given in the domestic law of any individual state party and were to be interpreted as applying consistently in all such states; that, referring to what was said in the Explanatory Report, the Convention was not essentially concerned with the merits of custody rights, and it would only characterize a removal or retention as wrongful where it interfered with the existence of a custody right which gave legal content to a situation which had been changed by the removal or the retention[19].

74.  4 of the 5 Justices of the Supreme Court including Baroness Hale of Richmond DPSC held that Article 3 of the Convention, in contemplating that rights of custody might arise “in particular” by operation of law, by judicial or administrative decision, or by an agreement having legal effect under the law of the relevant state party, indicated that such rights might arise in other ways[20](emphasis added).  In that case, Baroness Hale was considering inchoate rights of grandparents.

75.  Baroness Hale of Richmond DPSC had referred to the second conclusion of the Second Special Commission to Review the Operation of the Convention in her judgment [21], which stated:

“The key concepts which determine the scope of the Convention are not dependent for their meaning on any single legal system. Thus the expression ‘rights of custody’, for example, does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention”

76.  As pointed out by Baroness Hale, the above conclusion was more recently reaffirmed by the Sixth Meeting of the Special Commission.  She then went on to point out that it was also for this reason that Dyson LJ in Hunter v Murrow divided the question of whether the father had rights of custody into two, the first, which he called “the domestic law question”, was what rights the father had in national law, and the second, which he called “the Convention question” was whether those rights were to be characterized as rights of custody for the purpose of the Convention.

77.  In S v H (Abduction: Access Rights)[1998] Fam 49, Hale J (as she then was) considered a case where the Italian Court granted to the mother sole custody and to the father “a right to watch over the child’s education and living conditions and a right of access”.  She held that:

“…it is also clear from the preamble and from the provisions of the Hague Convention itself that the contracting states deliberately intended to draw a distinction between rights of custody and rights of access.

…

This case… there was no specific travel restriction, and the evidence presented by the father has not satisfied me that he has a general right to prevent removal … The father has only shown that his rights under the code were rights of access albeit incompatible with the child living in another country[22]”

78.  She further held that:

“The Explanatory Report to the Convention by Elisa Pérez-Vera (see Hague Conference on private international law, Actes et documents de la Quatorzième session 6 au 25 octobre 1980, vol. 3 (Child Abduction), pp. 444-445) makes essentially the same point:

‘Although the problems which can arise from a breach of access rights, especially where the child is taken abroad by its custodian, were raised during the Fourteenth Session, the majority view was that such situations could not be put in the same category as the wrongful removals which it is sought to prevent. . . . A questionable result would have been attained had the application of the Convention, by granting the same degree of protection to custody and access rights, led ultimately to the substitution of the holders of one type of right by those who held the other.’”[23]

79.  In Re V-B (Abduction: Rights of Custody) [1999] 2 FLR 192, the English Court of Appeal had considered a case where the parents were divorced in the Netherlands and the Dutch father was granted contact to the two children whereas the Welsh mother was granted sole custody, who undertook to inform the husband of “any matters of importance relating to the children, including specifically, a decision to reside abroad”.  The mother subsequently took the children to live in Wales without informing the father.

80.  It was held that a distinction had to be drawn between rights of custody and rights of access.  Rights of custody involved the right to determine a child’s place of residence, but a right to be consulted without the right to object did not amount to a right relating to the care of the child and therefore was not a right of custody.  Since the father had “no right to object and only a bare right to be consulted”, it followed the father had no rights of custody.[24]

81.  In reaching such a conclusion, Ward LJ had referred to Lord Donaldson’s dicta in C v C (Abduction: Rights of Custody) [1989] 1 FLR 403, at 413B-C:

“‘Custody’, as a matter of non-technical English, means ‘safe keeping, protection; charge, care, guardianship’ (I take that from the Shorter Oxford English Dictionary, 3rd ed, rev (1973)); but ‘rights of custody’ as defined in the Convention includes a much more precise meaning which will, I apprehend, usually be decisive of most applications under the Convention. This is ‘the right to determine the child’s place of residence.’ This right may be in the court, the mother, the father, some caretaking institution, such as a local authority, or it may, as in this case, be a divided right — in so far as the child is to reside in Australia, the right being that of the mother; but, in so far as any question arises as to the child residing outside Australia, it being a joint right subject always, of course, to the overriding rights of the court. If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the Convention …[25]”(emphasis added)

82.  Ward LJ further considered Explanatory Report on the Convention and held:

“I am quite satisfied that a right to be consulted does not amount to a right relating to the care of the person of the child [within Art 5(a) of the Convention]. The father’s response to the consultation cannot force any change to the pattern of the children’s care … The right to be consulted is not a right of veto. The mother was not bound to take his objections into account nor even to explain why she would not do so. She was free to leave the Netherlands without the father’s permission and without the court’s permission. If she was free to decide where the children were to reside, and he could not object, then it seems to me he had no right to determine the children’s place of residence. The attempt to elevate a right to consultation to a right of custody is to eradicate the crucial distinction between custody and access. The broad purpose of the Convention is to maintain that distinction.” [26] (emphasis added)

83.  A similar conclusion was reached in AC v AS(unreported, HCMP 4266/2001, 24/10/2001 per Lam DHCJ (as he then was)).  Having reviewed English and Canadian authorities and academic publication, he held :

“…We have to be vigilant in guarding against elevating a right of access to an extent that it would deprive the person with custody the right to determine the child's place of residence[27].”

84.  In the above case, the French court granted the father and the mother joint parental rights over the child, that the child was to reside at the usual residence of the mother which she is to inform the father and he was given visitation rights but without any accommodation rights. The learned Judge considered that the father was granted “rights of access and joint parental authority but without custody” and held that  that “joint parental authority” does not elevate the father’s rights to “rights of custody” under the Convention, given the French orders did not impose any travel restriction on the mother[28].  

85.  The Judge applied Re V-Band held that a right to be consulted/informed is not a right of veto and it did not amount to a right relating to the care of the person of the child nor a right to determine the children’s place of residence.  To elevate a right to consultation to a right of custody is to eradicate “the crucial distinction between custody and access”.

The Expert Opinion

86.  According to Professor Pinto, prior to the 2014 Law “the Judge would attribute at his discretion if the custody would be unilateral or shared”, but after the 2014 Law, the Judge “came to bear the obligation of determining the shared custody as a rule, but keeps on respecting the parties’ will, provided no litigation occurs”.[29]

87.  Further, according to Professor Pinto, it is only after the 2004 Law, “the city where the child would live in came to receive direct interference by the Judge”, as under the 2014 Law, “the full performance of the family power is for both parents to perform, whatever the marital status might be, said power consisting in granting or denying them the consent to move their domicile to another city”[30].

88.  Professor Pinto opined that at the time of the Removal, under the 2008 Law, the Father held an unilateral custody right which, among other things, allowed him to settle the Children’s residence to his discretion, as the 2014 Law had not yet come into effect.

89.  Professor Pinto had referred to two previous cases in his, a 2005 case of the Supreme Court of Buenos Aires, Argentina concerning a child being taken by the Mother from Brazil to Argentina (“Argentine Case”), and the other a 2008 case of the Regional Federal Court of the 5^th Region in Brazil concerning a child being taken by the mother to Brazil from Argentina without the father’s consent (“Brazilian Case”).

90.  From my reading of the English translation of the Argentine Case, it was argued that the defendant mother had full legal custody in Brazil, and as such, she decided the place of residence[31].  The removal by the mother of the child from Brazil to Argentine was held to be not wrongful.  It was stated by one of the Judges that no one had contradicted that the child’s father had, at the time of the removal, visitation rights and not rights of custody[32].  The detailed terms of the legal custody order made in Brazil had not been clearly set out, and in any event, the father in that case did not dispute that he had no rights of custody.  Further, the Argentine Case was in 2005, which was based on the 2002 Law and before the modifications by the 2008 Law.  I do not see how this Argentine Case would assist in the interpretation of the 2008 Law.

91.  As for the Brazilian case, which involved the Brazilian court considering whether the father’s visitation rights included the right to decide where the child should reside under the Argentine legislation.  Again, I do not see how this case would assist in the present case. 

92.  Professor Pinto explained about the Travel Endorsement, in that article 84 of the Children’s Act determines the need of a travelling consent, and if a child is accompanied by both parents, no authority is necessary, but in case the child is accompanied by only one of them, he/she may leave the country only if authorized by the other parent, in a separate document with certified signature according to the Brazilian law, or through consent by the Judge of the Child and Teenager Court or also, provided the consent by a parent is inserted in the passport.

93.  Article 85 of the Children’s Act states that without prior and express judicial authorization, no child or adolescent born in Brazil may leave the country in the company of a foreigner resident or have residence abroad.  Professor Pinto opined out that as the Father is a naturalized Brazilian, article 85 does not apply[33].

94.  According to Professor Pinto, the term “guarda/guardianship” and “custody” are synonymous expressions under the 2002 Law, although the legislation used the expression “guarda”/“guardianship”[34].  He then went on to state that article 1,583 of the 2002 Law provided wide liberty for the spouses to decide about the custody and visitation to children, with the judge being called to decide only and exclusively when no amicable composition would be reached. Further, upon the 2008 Law being introduced, the law came to accept the possibility of the parents to institute the shared custody, without excluding the unilateral one.

95.  Professor Pinto went on to state that the amendments to articles 1,583 and 1,584  of the 2008 Law were brought in “so as to deal with the modality of shared custody, now as a rule to be observed by the Judge upon the act of deciding when there is a litigation about how to distribute the custody/visit[35].”

96.  It was also Professor Pinto’s opinion that the parents’ rights   and duties were not altered and kept on being basically the same, and that it is the parents’ duty not only to represent and assist the children in the civil life acts, but, much beyond that, to assist them physically, morally and intellectually, as developing human beings[36].

97.  Professor Pinto then explained the term “family power” (the set of rights and duties the parents have as to their children) (“Family Power”), namely “two orders of relationships outstand : a) the one derived from the parents’ rights and duties in respect to the children’s person, and b) those rights and duties concerning the children goods administration, as contained in  the Civil Code, article 1,634”[37].     

98.  He further elaborated on the concept of Family Power in his 2^nd report, in that Family Power is wider and does not “confound” with custody, since they have different reflections.  According to Professor Pinto, Family Power determines a set of powers and duties the parents have in respect to the children and the assets, irrespective of the concept of custody, and the parent who has no custody will not lose the right to decide on the issues of child’s interest[38].

99.  There had been no response/comments by the Brazilian Central Authority to Professor Pinto’s expert reports which were filed just shortly before the commencement of the substantive hearing before this court.  Professor Pinto was not cross examined.

100.  It seems from what Professor Pinto’s reports that one of the major amendments introduced by the 2014 Law was that under the 2008 Law, if no agreement was reached by the parties,the Judge would determine proprietarily (sic) that it would be shared and that the shared custody was applied “whenever possible”, and the exception applied if the father or the mother relinquished it, and the law did not oblige the child to spend a half of the time in the house of each of the parents.

101.  In any event, it seems Professor Pinto did not dispute that under the 2008 Law the parent without sole custody still has parental responsibilities and rights and Family Power towards his/her child and the main difference between him and the Brazilian Central Authority is whether these rights include a right to decide on the child’s habitual residence.

Discussion

102.  It was argued on behalf of the Father in the present case that the Mother had only visitation rights, and any reliance on the fact that she might have retained any parental power or obligations would be misplaced.

103.  However, Professor Pinto’s reports were in answer to specific question put to him by the Father’s solicitors in their letter of 27 February 2015, and as submitted by Mr Wingfield, the questions that Professor Pinto was asked to answer did not address two crucial issues in the present case.  The questions were only directed to the Father’s guardianship/custody in the initial four month period and Professor Pinto was not asked to advise on (i) whether the terms of the Consent Order requiring the parties to live at a specified address affected the rights that the Father might otherwise enjoy during that limited period, and in particular the right to change the address and country without the consent of the Mother or order of the court; and (ii) the rights that the parties enjoyed after the first four months and even if the Father was free to unilaterally change the Children’s address during the first four months under the terms of the Consent Order, whether he remained free to do so after the end of the fourth month.

104.  It appears from what Professor Pinto had said, article 1,583 in the 2002 Law provided wide liberty for the spouses to decide about the custody and visitation to children, with the judge being called to decide only and exclusively when no amicable agreement would be reached, and it appears that this was not affected by the amendments in the 2008 Law.

105.  In the present case, the parties reached an agreement, and the agreement did not provide simply for one parent to have custody and the other to have visitation rights.  It was a detailed agreement and the parties had agreed to the Mother permanently residing on the ground floor of the Property, and the Father to continue to reside permanently on the 1^st floor (middle floor) of the Property.  During the initial four months, even though the parties agreed to custody of the Children be practised by the Father, what the parties had agreed was that the Children were to reside with the Father on the middle floor, where the Father was to continue to reside permanently. The parties had also agreed that during this period, the Children were to remain with the Mother every Wednesday, who was to pick them at school and the Children were to stay with her overnight and she was to take them directly to the school on Thursday.

106.  The parties agreed to shared custody as of the fifth month, with the Children were to continue to reside at the same address, with free visits to either parent, and that the Children would sleep on Mondays and Wednesdays at the Father’s home, and on Tuesdays and Thursdays at the Mother’s home, and the Children to remain on weekends with each parent.

107.  The provision as to whether the Children were to live in the initial four months was expressed in mandatory terms[39].  Further, where the Children were to live as from fifth month onwards, was also expressed in mandatory terms[40].  It was also agreed that if either party were to set up a stable union or marriage with third parties, that party would have to leave the Property and the Children were to remain in the home of the other parent[41].

108.  It was also an agreed term that irrespective of the regime of visitation already agreed upon, every day the Mother was authorized to take the Children to school, agreeing to being accompanied by the Father whenever possible[42].  It was also an agreed term for the parties to attend psychological treatment with the Children[43].

109.  Both parties were present at the conciliation hearing, accompanied by their respective lawyers, the Mother’s being Dr Jose Claudio Alves, and the Father’s being Mr Gerace, and the Justice Attorney Dr Mario Augusto Bruno Neto was also present.

110.  There was no opposition from the Justice Attorney to the parties’ agreed terms and the parties requested “homologation” of their agreement from the Honourable Judge of the Court of Appeals Ms Christine Santini (“Justice Santini”). The Consent Order bore the signatures of the parties, their respective lawyers, Justice Attorney and Justice Santini.

111.  Professor Pinto had said that the custody order to the Father for the initial 4 months was not a “provisional” order but definite with a certain term of force.  I accept that the custody order for the initial 4 months did not appear to require any further confirmation from the court, and was definite in that sense, but in my view the Father’s custody order was clearly for a finite and a short limited period until the  shared custody was to take effect as from the 5^th month onwards, and that the shared custody order was the final order for an indefinite period, until the parties were to renegotiate and come to a further agreement, or until the Brazilian Court had made a new order.  The Hong Kong Central Authority, based on advice from the Brazilian Central Authority, had in their 03.03.15 Letter referred to the custody order to the Father being a temporary order.

112.  Mr Wingfield had submitted that the Mother already had “accrued rights” at the time of the removal under the Consent Order, and not merely some indefinite future rights.   I agree.

113.  Further, whether the right to decide about changes in the place of habitual residence was that of  sole custodian under the 2008 Law or not, I am of the view that under the Consent Order, the Father’s “guarda”/custody/guardianship was expressly subject to conditions/terms agreed by both parties as to certain rights of the Mother, namely (i) the parties were to reside permanently at the Property where the Children were to reside; (ii) the Mother had the right to take the Children to their school; (iii) the Mother had the right to attend psychological treatment with the Children; (iv) the Mother would have the shared custody and care of the Children as from November 2014. 

114.  There was nothing to indicate that the parties or the Children were to reside elsewhere other than in the Property in Sao Paulo, or the Children’s school was anywhere other than the school they were attending in Sao Paulo, or the psychological treatment was to take place anywhere else other than in Sao Paulo.  There was nothing to indicate the Consent Order could be varied unilaterally without the consent of the other party or an order of the court.  Indeed, this could be seen from the Father’s own action of instructing Mr Gerace own lawyer to start a new action to vary the Consent Order, with a view to moving out from the Property with the Children, which led to the Civil Prosecutor’s Recommendation referred to later in this judgment.

115.  Having considered the terms of the Consent Order, I am of the view that under the agreed terms, the Mother had the right to decide about changes in relation to the Children’s residence, and the Father could not change it without her consent or an order of the court.  This is not merely a right to be consulted.

116.  It seemed to be suggested by Mr Coleman that as the right to decide about changes in the place of habitual residence was according to Professor Pinto that of the sole custodian under the 2008 Law, the Brazilian Court would not have the jurisdiction to homologate agreed terms which would have a contrary effect.  In other words, the Consent Order could not have interpreted to have given the Mother the right to decide about changes in the place of habitual residence. 

117.  The Mother had produced a letter from Justice Santini dated 3 March 2015[44], which contained comments made by Justice Santini when considering the Mother’s request for suspension of her financial application.  Justice Santini had mentioned that “There are signs of attempt to frustrate the judicial decisions by the perpetrator that, after the judicial agreement, took the children out of the country without the mother’s permission”.  She then went on to say that it was convenient to keep the terms to prevent frustration of the sharing, and information was requested, including about action of INTERPOL in the proceedings with regard to custody of the Children.

118.  Mr Coleman submitted that the comment by Justice Santini was a “throw away” line.  Justice Santini was the judge who homologated the terms of the Consent Order.  She was familiar with the matter. Whether it was a “throw away” line or not, her comments were consistent with the views of the Brazilian Central Authority, and indeed with my interpretation of the terms of the Consent Order, that permission of the Mother would have to be sought for the Removal. 

119.  In light of what I have said I am satisfied that for the initial four months even when the Father was agreed by both parties to have unilateral custody, this was only a temporary or interim order, and the Mother had rights relating to the care of the person of the Children including, in particular, the right to determine the Children’s place of residence, whether under the 2008 Law or the Children’s Act or simply under the Consent Order.  It is my conclusion that the Mother held rights of custody under Article 3 and Article 5 of the Convention immediately before the Removal, whether by operation of law or under terms of the Consent Order agreed by the parties and homologated by the Court of Appeal in Brazil.

120.  At the commencement of the hearing Mr Wingfield made it clear that the Mother relied on both the Removal and the Retention being wrongful under Article 3 of the Convention.

121.  Mr Coleman submitted that the Mother should not be allowed to raise the wrongful retention point, as in the Mother’s originating summons, she only complained of the Removal being wrongful, and that although the Mother had mentioned the Father wrongfully retained the Children in Hong Kong in paragraph 3 of her originating summons, this was not said in the context of breach of Convention rights.  There was also no evidence in her original Request for return or in her 1^st affirmation in relation to any wrongful retention, nor was this contained in the Declaration.

122.  Mr Wingfield accepted that the Mother’s application and the Declaration were based on the wrongful Removal, but pointed out he had set out Articles 3, 4, 5, 12 and 13 in his submissions, and had posed the question under Article 3, which had referred to both wrongful removal and retention.

123.  Although the Mother had not made clear the wrongful retention point in the originating summons or her supporting evidence, when the court was framing the issues at the commencement of the hearing, Mr Wingfield did make clear that whether the Retention was wrongful was a disputed issue.  As 4 days had been reserved for the hearing, the Father had sufficient time and opportunity to deal with this disputed issue, even if it was only raised at the hearing.  There was no sufficient evidence of prejudice to the Father by the late clarification.  I see no reason as to why the Mother could not be allowed to raise this issue at the hearing. 

124.  The terms of the Consent Order were clear and the parties’ position after the initial four months, namely from 5 October 2014 onwards, had to be addressed.  Even if the Removal was not wrongful, under the terms of the Consent Order, the parties were to have shared custody and they were to continue to reside at the Property after 5 October 2014.  The Father said the Mother did having any rights of custody before 4 October 2014 and he also relied on the Consent Letter.  For reasons set out later in this judgment, I attach no weight to the Consent Letter. In my view, it is clear that the Mother would have rights of custody in any event latest as from 5 October 2014 as she was to have shared custody with the Father. 

Was the Removal wrongful

125.  From the evidence of the Mother in her 1^st affirmation, she moved into the Property on 5 June 2014, the day of the Consent order.   The daughter CI appeared to have only attended school on only 3 days since her return from Argentina, namely 27 May 2014, 9 and 27 June 2014, she being said to be in adaptation process with psychological care.  The son RS did attend school from 27 May onwards until the July holidays, with the exception of 30 June 2014.  There was no evidence that the Mother had not tried to exercise her right to take the Children to school, although she had complained that the Father would not let her and instead he would drive them himself.  There was no evidence that she had failed to care for the Children or exercise her rights of custody.  Having considered the evidence before the court, I am satisfied that the Mother’s rights of custody were actually exercised by her at the time of the Removal, whether jointly or alone, and would have been so exercised but for the Removal.

126.  I am satisfied that the Removal of the children by the Father was in breach of the Mother’s rights of custody under Article 3 of the Convention and was wrongful.

Was the Retention wrongful

127.  The Father’s case was that even if the Mother did have rights of custody immediately before Retention, she had not actually exercised such rights.

128.  Mr Coleman submitted that the Mother had not in fact been exercising any rights of custody of her own volition.  It was the Father’s case that she had never once called the Children or the Father, and had only sent SMS messages to the Father’s Brazilian mobile telephone number, when she knew all along that the Father was in Hong Kong with the Children, and that there was no response to the Father’s emails saying that she missed his calls.

129.  The evidence showed that the Mother had reported the Children to the police after their disappearance.  When the Mother discovered that the Children did not attend school in Sao Paulo on 4 August 2014, following the July holidays, she obtained a search warrant for the Children from the Sao Paul State Court of Appeal.  When the Children failed to be located, The Mother applied and on 27 August 2014 obtained the 3^rd Custody Order and the Recovery Order.

130.  The Father complained that he was not served with the papers for the Mother’s application for the 3^rd Custody Order, and was only aware of the order when served with papers in the present proceedings.  Be this as it may, it cannot be said of the Mother that she had not taken steps to exercise her rights of custody and she was granted the 3^rd Custody Order, albeit this is a provisional order.

131.  Further, on 23 September 2014, the Mother further contacted the Federal Police Department and later Interpol to report the Children missing.

132.  As earlier said, I find that the Mother was exercising rights of custody or such rights would have been so exercised at the time of the Removal, and having considered the evidence, I am satisfied that thereafter, and at the time of the Retention, the Mother had actually exercised her rights of custody or would have been so exercised her rights of custody, but for the Retention.

133.  The Retention was in breach of the Mother’s rights of custody, and was clearly wrongful in my view.

Whether there was acquiescence under Article 13(1) (a)

General Principles

134.  This court had in EW v LP [2013] HKEC 1388 considered the authorities on acquiescence and followed the test laid down by the House of Lords in Re H (minors) (abduction: acquiescence) [1998] AC 72 , which was also applied by Hartman J, as he then was in Re L [2004] 1 HKLRD 655.  Briefly whether there was acquiescence on the part of the wronged parent would depend on his/her state of mind, and the subjective intention of the wronged person is a question of fact, the burden of proof being on the abducting parent.  The judge will be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his/her bare assertions in evidence of his/her intention.

135.  Further, as Mr Coleman had submitted, bearing in the mind the summary nature of these proceedings, the proper approach to disputed evidence, as laid down by Butler-Sloss LJ in Re F [1992] 1 FLR 548, it that if the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side, and that evidence has to be compelling before the judge is entitled to reject the sworn testimony of a deponent, or alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it[45].

The Father’s Allegations

136.  The Father said he had telephoned the Mother on 30 June 2014 to inform her that he and the Children were leaving Brazil the following day and told her to be at the airport in time to check in with them, as he had bought her a ticket as well (“30.06.14 Telephone Call”).  He said the Mother was very angry and was shouting at him over the telephone and he was not sure whether the Mother took in what he told her.  He said he recalled telling her about them leaving, and but could not recall if he had specifically mentioned Hong Kong as our destination.  The Mother had denied there was such a call from the Father, and that she had made four police reports after the Father had disappeared with the Children and that the police was looking for the Father at the time. 

137.  What the Father said about what he had told the Mother was rather vague.  In any event, the Father admitted that the Mother was not taking in what he was telling her.  The Father had said that he came to the decision that the best thing for the Children and him would be to leave South America and to come to Hong Kong, and thus on his own case, it was an unilateral decision on his part.  It was not quite clear when he made this unilateral decision, since the evidence showed that the Father had instructed Mr Gerace to file a new provisional action against the Mother on 30 June 2014[46].  As a result of this new provisional action,  the Civil Prosecutor, a judicial officer who is mandatorily appointed by the courts to act for the Children,  had provided a recommendation on 2 July 2014 that the conditions of residence in the Consent order were not working and recommended that there be interlocutory relief authorising the Father and the Children no longer live in the same house as the Mother, and that the parties should strive for a new reconciliation hearing[47] (“Civil Prosecutor’s Recommendation”), but by which time the Father had left Brazil with the Children.  There was clearly no evidence of consent from the Mother to the Removal, and the Removal was clearly an unilateral decision by the Father.

138.  Anyway, the Father’s present case was that there had been subsequent acquiescence on the part of the Mother.

139.  The Father had relied on the Travel Endorsement in which the Mother had specifically consented to the Children travelling unaccompanied.

140.  The Father had also relied on the following:

(i) The Mother had received the HK Proceedings Documents but took no steps to participate and/or oppose the Father’s application;

(ii) The parties had been in touch through email after the Father “relocated” to Hong Kong with the Children;

(iii) The Mother had all of the Father’s personal and business numbers and address in Hong Kong, and yet never once contacted him since the relocation, except by an email on 9 August 2014, and SMS messages were only sent to the Father’s Brazilian mobile telephone number, even though the Mother knew of the whereabouts of the Children;

(iv) In the Consent Letter, the Mother unequivocally and expressly acquiesced in the Removal and/or the Retention.

The Travel Endorsement

141.  The Mother’s explanation for the Travel Endorsement was that at the time of the Return Decision, the Children’s Brazilian passports had expired, and she and the Father had to attend the Brazilian Consulate in Argentina to apply for new passports for them to return to Brazil and that it was envisaged at that time that only the Mother would be travelling with the Children back to Sao Paulo, and that the Father had agreed to  the Travel Endorsement and that the Travel Endorsement was for this single use.  It was not there to give the Father general permission to take the Children to another foreign jurisdiction from Brazil.

142.  The Brazilian Central Authority had in the Declaration stated that under article 84 consent of both parents was required for removing a Brazilian child from Brazil and in case a Brazilian child travels in the company of one of the parents, the express authorization of the other parent is required in a document with his/her sworn signature.

143.  Professor Pinto had set out articles 83, 84 and 85 of the Children’s Act in his first report[48].  Article 83 starts off by stating that no child is allowed to travel out of the “county” he/she lives unaccompanied by the parents or custodian without express legal consent, and goes on to provide for certain circumstances where no consent is required for travel   to  “another county contiguous to that of the child’s domicile”.

144.  Article 84 then goes on to state the circumstances where the consent of parent is dispensable “in case of a trip overseas” subject to certain conditions.  

145.  It would appear article 84 should be read together with article 83 that the Travel Endorsement was obtained in light of these articles, to deal with travels accompanied by one of the parents, expressly authorised by the other one, through a document with certified signature.

146.  Although the Travel Endorsement was general in nature and not stated to be restricted to a specific or a single trip, namely the return from Argentina to Sao Paulo, I accept Mr Wingfield’s submission that the Mother’s consent for the Travel Endorsement was only in relation to any short trips or holidays to be undertaken by the Children with either parent. To argue otherwise would be in a way contrary to the Father’s own case, since he had accepted that there was no prior consent from the Mother to the Removal. Further, if otherwise, this would mean the Travel Endorsement would equally have enabled the Mother to unilaterally remove the Children permanently from Sao Paulo without the Father’s further consent or even knowledge, and I do not believe this could have been the Father’s then intention that the Mother could do so.

The chronology of events relied on by the Father for acquiescence

147.  As mentioned earlier, after the Father arrived in Hong Kong with the Children, he had applied for dependent visas for the children to remain in Hong Kong, and on 22 July 2014 he had received a letter from the Hong Kong Immigration Department requiring further information from him, including the Father’s custody order, the Mother’s consent and her passport for verification of signature (“Immigration Letter”)[49].

148.  Thereafter, he issued the HK Proceedings and his then solicitors Messrs Haldanes had sent the HK Proceedings Documents to the Mother by post on 31 July 2014 at her address at the Property[50]. 

149.  According to the Father, on 6 August 2014, Ms Quaini had also attempted service of the HK Proceedings Documents on the Mother at the address of the Property, but there was no answer at the door, and Ms Quaini then placed the HK Proceedings Documents under the door of the Mother’s address at the Property.  Ms Quaini was said to be accompanied by a Notary who confirmed her account of the service[51].  The Father had produced a copy of the Notary Act dated 6 August 2014 confirming the said service (“06.08.14 Notary Act”)[52].

150.  The Father said the Mother had sent him an email from her usual email address on 9 August 2014[53] stating that it had been more than 40 days that he kidnapped the Children and she wanted to know where they were, and pointing out that the Children were most harmed by his actions.

151.  Then, according to the Father, he had sent the Mother an email on 13 August 2014 with a copy of the Immigration Letter, seeking her consent for the granting of a visa for the Children to stay in Hong Kong (“13.08.14 Email”)[54]. 

152.  Further, according to the Father, on 18 August 2014, he had also caused the HK Proceedings Documents to be sent to the Mother by Federal Express to the Mother at the Rua Reliquia Address, and that the Mother had signed the Delivery Advice.  As I have mentioned earlier, the Mother had alleged that her purported signature on the Delivery Advice was forged.

153.  Anyway, Messrs Haldanes seemed to have again sent a copy of their earlier letter of 31 July 2014 and enclosures on 28 August 2014 to the Mother at the Property and also at the Rua Reliquia Address[55].  This letter was stated to be sent by email and by post. As it turned out from the paragraph below, the letter was not sent by email by Messrs Haldanes. 

154.  It can be seen from Mr Hemens’ 3^rd affirmation filed in the HK Proceedings in relation to service that Mr Hemens had also sent a set of the HK Proceedings Documents to a Maria Eugenia Esteban, said to be the Mother’s last known solicitors in Argentina, on 27 August 2014 by way of email and post.  What Mr Hemens had also said in his affirmation was that he had been advised by the Father’s lawyers in Brazil that he should not email the Mother direct with regard to any of the papers as according to Brazilian law, it was not appropriate for him to communicate direct with the Mother by way of email, and accordingly, it was the Father who had sent the papers by email and Messrs Haldanes did not do so.

155.  The Father said he had sent an email on 28 August 2014 to the Mother with the HK Proceedings Documents and the email started off by saying “I think you already know that I have started a process in Hong Kong in relation to our children and I’m surprised that you have not responded so far.  They are here with me in Hong Kong and they are doing very well …” (“28.08.14 Email”)[56].

Discussion

156.  The evidence showed that the Father had disappeared with the Children on 28 June 2014.  As the Mother had said, she had reported the Father and the Children missing to the police and the police was looking for them.  Even if the 30.06.14 Telephone Call had indeed been made been made, it would   have been made within the country.

157.  The evidence showed that the Mother had sent SMS messages to the Father’s Brazilian mobile telephone number as early as 1 July 2014, and followed by further emails on  5, 7, 8 and 22  July 2014, asking the Father where the Children were, and demanding to see them (“July SMSs”)[57].  In particular, the Mother had said in her SMS of 5 July 2014 that the Father was not answering the phone. 

158.  By early July 2014, the Mother should be aware of the Civil Prosecutor’s Recommendation, which was provided at the Father’s instigation of the new action.  Whether the Mother was aware of the Father’s instigating the new action or not, there was no sufficient evidence that the Mother would suspect at that time that the Father and the Children had left Brazil and were in Hong Kong. 

159.  As for the purported service of the HK Proceedings Documents by Messrs Haldanes and Ms Quaini at about end of July/early August 2014.  There seemed to be no mention of Ms Quaini’s attempted service in Mr Hemens’ 3^rd affirmation of service, nor in Ms Quaini’s affirmation.  It was not clear whether there had been any earlier affirmations of service filed, but whether there had been or not, Judge Melloy did not seem to be satisfied of the service, and she had made an order on 27 August 2014 for service at the Mother’s last known solicitor in Argentina, Ms Maria Eugenia Esteban.  According to the Mother, Ms Esteban is only a friend who happens to be a lawyer.

160.  It was not clear what information had been provided to Judge Melloy by the Father since the most recent proceedings between the parties were in Brazil, and one would have thought that service could have been attempted by sending the HK Proceedings Documents to the Mother’s lawyer in Brazil whose name appeared in the Consent Order, or to the Mother’s parents’ address in Argentina.  

161.  The HK Proceedings Documents were all in English, and there was no sufficient evidence that the Mother would have understood the contents of these documents.  I also note there were no exhibits produced by the Father in his 1^st affirmation filed in the HK Proceedings, in particular, he did not set out the terms of the Consent Order in full, nor was a copy of the Consent order exhibited, which as I have said, would have the name of the Mother’s Brazilian lawyer. There was also no mention of the 30.06.14 Telephone Call.

162.  The Father had not produced any automatic confirmation of receipt of the 13.08.14 Email and the 28.08.14 Email.  There was no sufficient evidence that both emails and the attachments had been successfully sent.  In particular, I note that the 28.08.14 Email attachments would be some 29 pages, and it is not improbable that bulky attachments may be rejected by the recipient’s email provider.  I note that Father’s email address given to the Hong Kong Immigration Department, being one with “hk” at the end, was not the same email address to which he claimed the Mother had sent her email of 9 August 2014 or from which he claimed he had sent the 13.08.14 Email and the 28.08.14 Email, being one without “hk” at the end.

163.  The Mother denied that the HK Proceedings Documents had been served on her.  She pointed out that the Notary Act only stated that a sealed envelope was left under her door, the contents of which were not listed out.

164.  It was not quite clear why the Father would instruct Ms Quaini to serve.  Ms Quaini is the Father’s Argentine lawyer and the address given in her affirmation was in Argentina.  So far as I could see, there was no affirmation of service from Ms Quaini and there was no mention of this service in Mr Hemens’ 3^rd affidavit. 

165.  As for the Delivery Advice, the package was sent to the Rua Reliquia Address, which was the office address of the Father’s business in Sao Paulo.  Although the Mother used to work at the Father’s business prior to her move to Argentina, there was no evidence that she had resumed working there after return to Brazil.  Indeed, since the Father had instituted proceedings against the Mother over alleged withdrawal of funds from the business and in light of all his accusations against the Mother and her sister, it would seem unlikely that the Mother would return to work for the business.  There was also no evidence that the Mother had ever lived at the Rua Reliquia Address. 

166.  It was not quite clear why the Father would want to send the package to the Rua Reliquia Address. His own Brazilian lawyer Mr Gerace had stated in his affirmation affirmed on 1 March 2015 that the only addresses he had for the Mother in Brazil were at first, at Rua Urandi, the Mother’s friend’s house where she first stayed at, and the address of the Property[58].  

167.  Seen against the above, it would not seem inherently probable that any documents would have been received by the Mother at the Rua Reliquia Address.

168.  The Mother had denied any knowledge of the Immigration Letter.  As I have said, the 13.08.14 Email was not sent from the Father’s email address given to the Immigration Department.  Although there was a stamp by a Notary Public, the Consent letter was not in fact signed in the presence of the Notary.  The Consent Letter was purportedly signed on 7 September 2014, but the Notary certification was on 9 September 2014.  Further, the Consent Letter was in Portuguese but the Mother’s native language is Spanish.  The Mother said some one else signed it and then the Notary merely certified that it looked like the Mother’s signature.  The Father himself had said that the Consent letter was left at the office at the Rua Reliquia Address by some one, and that it was forwarded to him by his staff.

169.  The allegations made by the Mother in relation to her signatures on the Delivery Advice and the Consent Letter being forged were serious allegations.  It is not this court’s function to make any finding on these allegations.  However, in light of the history and the hostility of the litigation between the parties, and the evidence showing that the Mother had been the primary carer of the Children since their birth apart from the period when they were taken from her upon their return to Brazil until the Consent Order, and after the Removal, and the various steps the Mother had taken to find the Children, it did not seem inherently probable that the Mother would give her consent to the Children living in Hong Kong with the Father, thousands of miles away with no physical access arrangements proposed for her.

170.  Having considered the above, I accept what Mr Wingfield had submitted, no weight should be given to those two documents in considering whether there had been acquiescence on the part of the Mother.

171.  I accept that as seen in the Request for return made by the Brazilian Central Authority to the Hong Kong Central Authority, the Mother had provided the Father’s business address in Hong Kong, and his Hong Kong mobile telephone number.  There was no evidence from the Mother as to whether she had tried to contact the Father at his Hong Kong mobile telephone number, or his Hong Kong business address.

172.  Mr Coleman pointed out that after the July SMSs, there was a gap period during which the Mother did not seem to have sent any SMS messages to the Father’s Brazilian mobile telephone number, until 28 August 2014 when such SMS messages resumed on various dates until 7 September 2014, but all repeating almost the same one line message that she wanted to see the Children.

173.  Mr Coleman submitted that the above would support the Father’s case that on about 6 August 2014, the Mother would have known about the HK Proceedings and that the Children were then in Hong Kong.

174.  Further, the Father claimed that from about 4 September 2014 onwards, he had made unsuccessful calls to the Mother an also sent the Mother various emails.  He had produced a list of these unsuccessful calls[59]  and emails[60], but both lists started with 4 September 2014.  The emails were from the address without “hk” at the end.

175.  In my view, there was no sufficient evidence that the Mother had known about the HK Proceedings by early August 2014, but even if she had, any failure on her part to respond to the HK Proceedings would not be sufficient to indicate acquiescence on her part to the Removal.  

176.  Further, the Mother’s various police reports, application for search warrants for the Children on 12 August 2014 when they failed to return to school, for obtaining the 3^rd Custody Order and  the Recovery Order, her contacting the Federal Police Department to report the Children missing on 23 September 2014, her alerting the Interpol, her television interview broadcast in Buenos Aires on 21 October 2014  followed by her formal Request for return lodged with the Brazilian Central Authority on 30 October 2014 all supported the Mother’s case that there was no acquiescence on her part.  There was also no undue delay in her lodging the Request, bearing in mind the Brazilian Central Authority is in Brasilia and not in Sao Paulo and all documents and information needed to be sent there and also to be translated into English.

177.  As Hartmann J , as he then was, had said in Re L,

“... Acquiescence under the Convention is not necessarily an acceptance that the abducting parent will now, by reason of the abduction (which includes wrongful retention) exercise sole rights in respect of the child, it need only be an acceptance by the wronged parent that he or she will not pursue the remedy provided by the Convention; namely, that of the child's prompt return. A wronged parent who accepts the fact of a wrongful removal may nevertheless pursue rights of custody, access and the like in the courts of the jurisdiction to which the child has been removed[61].” (emphasis added)

178.  The burden of proof is on the Father to show that the Mother had acquiesced in the Removal or the Retention and that she would not seek the prompt return of the Children to Brazil.  Having considered the evidence, I am of the view that the Father is not able to discharge the burden.  I find there was no sufficient evidence of acquiescence on the part of the Mother to the Removal/Retention.

Whether exception under Article 13(1) (b) made out

179.  The Father’s case under Article 13(1) (b) was based mainly on what he said was the Mother’s intention to return to Argentina.  He anticipated the Mother would make an application for permanent removal of the Children to Argentina upon the Children being returned to Brazil.  The Father had set out the litigation history in Argentina.

180.  The Father claimed he was the victim of numerous assaults and threats during his time in Argentina and Brazil, possibly instigated by members of the Mother’s family.

181.  Further, he alleged he was completely cut off and alienated from the Children for two years while the Argentine proceedings were going on, notwithstanding a stream of court orders from the Argentine Court which according to him, the Mother ignored.  The Father had said once the Children were taken again to Argentina, he would have practical difficulties finding them and having any contact with them.

182.  Also, the past circumstances had caused the Father to fear for his life and made it impossible for him to properly carry out his parental responsibilities, that it could not in the best interest of the children for them to be deprived of the love and care of their Father.

183.  According to the Father, the Children have started schooling in Hong Kong and in a safe environment.  After the Mother arrived in Hong Kong for the present proceedings, she had seen the Children and the Father said they enjoyed the company of both parents as well as their half-brother. Notwithstanding what the Father had said, prior to this application, there was no evidence that he had proposed any physical access for the Mother, apart from him allegedly having brought her a ticket at the time of Removal. He had even objected to the Mother being informed of his and the Children’s residential address in Hong Kong, although he did give this to the court in a sealed envelope, and agreed the information could be released to the Hong Kong Central Authority for verification.  His reason was that he feared for his safety even in Hong Kong.  He seemed also to have moved from one address to another address since the Children’s arrival.  Apart from the fact that the Children have been attending school since last September, there was in fact very little information about their present circumstances.

184.  It is Mr Coleman’s submission that  the Children’s return to Brazil now would  place them in an intolerable situation given:

(i) the likelihood that the Mother would again take them to Argentina and cut the Father off from their lives;

(ii) the Mother’s public assertions by herself and her lawyer of her intention to take the Children to Argentina, and her lack of any tie to Brazil;

(iii) no degree of protective measures could prevent this possibility given the loose security of the border between Argentina and Brazil; and

(iv) the Father’s real fear of persisting assaults and threats which would interfere with his parenting.

185.  Under Article 13(1) (b), the grave risk referred to is whether the Children would be exposed to physical or psychological harm or placed in an intolerable situation on their return to their habitual residence, which is Brazil.  Under the Consent Order, the parties are to have shared custody.  There is no reason why the Father could not raise all his above perceived concerns to the Brazilian Court, if indeed the Mother were to make an application for permanent removal back to Argentina. I am not satisfied that there is a grave risk that the Mother will  again remove the Children to Argentina unilaterally, without a proper court order, as she is fully aware that this is only likely to spark off a third round of return proceedings.

186.  I am of the view that the Father had not made out any valid ground for exception under Article 13(1) (b) of the Convention.  In any event, the Mother has also filed an undertaking in court, that provided the Father will provide her with sufficient financial provision for the Children and her to live in Brazil and for the Children’s schooling in Brazil, she shall not make an application for permanent removal to Argentina.  This undertaking will be included in this court’s order.

Conclusion

187.  In light of all of the above, I will allow the Mother’s application.  There were no submissions from Mr Coleman on the other incidental orders sought by the Mother, I order as follows:-

(i) The Children shall be handed over to the Mother by the Father and they shall return to Brazil accompanied by the Mother as soon as practicable.

(ii) The Father shall pay for the travel costs of the Children and the Mother for their return to Brazil.

(iii) The Father shall pay for the Mother’s air fare to Hong Kong and her costs of accommodation in Hong Kong for the present proceedings.

(iv) There be leave for the Mother to remove the Children out of jurisdiction of Hong Kong to Brazil and the Children’s passports shall be released to her forthwith.

(v) Liberty to apply in relation to implementation of this order.

188.  As the Mother succeeds with her application, I see no reason as to why the Father should not pay the Mother’s costs of her application, such costs to be taxed in accordance with the Legal Aid taxation, if not agreed.  This is an order nisi, which shall be made final after 21 days.

189.  Lastly, I thank all Counsel for their helpful submissions to the court.

[1] B1:148-162

[2] B1:164-183 (English Translation)

[3] B1:184-198 (English Translation)

[4] B2:38, 390

[5] Under Para III.2, B1; 194

[6] B2:334-336

[7] FCMP 184 of 2014

[8] B2:409

[9] B2:459, English Translation

[10] At para 45.18

[11] At para 22

[12] At para 37

[13] Paras 26-30,A:24-25

[14] B5:1320-1321

[15] B5:1323

[16] B5:1322-1323

[17] See 1^st para, B5:1321

[18] B5:1537-1542

[19] See Holding (1) between A and B, pg 1402

[20] See Holding (1) between B and C, pg 1402

[21] At para 53, pg 1429

[22] At pg 56

[23] At pg 57

[24] At 201C-D

[25] At 200H-201D

[26] At 204C-F

[27] Para 22

[28] At para 44

[29] A:145-147

[30] A:146

[31] B5:1427, 3^rd sentence

[32] Para 3, B5:1428

[33] See answer to question 4, A:152

[34] See answer to question 5, A:152

[35] A:153

[36] 7^th para, A:153

[37] See last para, A:153

[38] Under item 4, A:179

[39] Agreed Term (2), B2:334

[40] Agreed Term (3), B2:334

[41] Agreed Term (9), B2:335

[42] Agreed Term (5), B2: 334-335

[43] Agreed Term (8), B2:335

[44] B5:1316-1318

[45] At pg 553-4

[46] See para 32, A:105

[47] See para 33, A:105, B2:380

[48] A:151

[49] B2:457

[50] B5:1522

[51] See para 43, A:58

[52] B2:404-405

[53] B2:452, English Translation

[54] B2:455-456

[55] B5:1521

[56] B2:452

[57] B5:1533

[58] At para 44, A:107

[59] B4:1118-1168

[60] B4:1171-1189

[61] per Hartmann J, at para 8