OM v. WX

HCMP 1433/2023

[2023] HKCFI 2688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1433 OF 2023

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J U D G M E N T

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A.  Introduction

1.  This was the substantive hearing of Hague proceedings for the return of a child, a boy, Y (aged 5 years), brought under the Child Abduction and Custody Ordinance (Cap 512) by the plaintiff Father against the defendant Mother.

2.  The affirmation and written submission of the Mother focus on seeking an order for custody, care and control to be vested in her, in the best interests of Y. They did not disclose a defence in law to these proceedings.

3.  After mediation held shortly before this hearing, the parties have come to terms by a Mediation Settlement Agreement. I found some variance between the English and Chinese terms and have clarified them with the parties at the hearing. They then signed a consent summons, the terms of which I have approved were, in substance:

(1)  That Y be returned to his habitual residence, Japan, on 31 October 2023 in accordance with the Mediation Settlement Agreement and that the travel documents be released to the Father for the purpose of returning Y to Japan;

(2)  The interim orders dated 31 August and 11 September 2023 be uplifted to return Y to Japan on 31 October 2023 and be discharged upon Y’s arrival in Japan;

(3)  Following return to Japan, the Mother shall have in person access with Y in Hong Kong on 2 occasions per year and in Japan on 2 occasions per year and daily video access of 30 minutes between Hong Kong time 8-9 pm.

(4)  A penal notice be endorsed on the order; and

(5)  There be no order as to costs.

4.  Here are my reasons for approval and a record of the terms of the Mediation Settlement Agreement as clarified.

B.  Background

5.  The Mother is a Chinese national and the Father is a Japanese national. The parties were married in Hong Kong on 5 November 2015.

6.  Y was born in Japan on 15 October 2017 out of the parties’ marriage. He is a Japanese national holding only a Japanese passport. He has always lived in Japan with the parties except for 2 short trips to Hong Kong and until his wrongful retention in Hong Kong described below.

7.  Y was (and remains) enrolled at Mxxxxx Kindergarten in Japan.

8.  During the Kindergarten’s spring 2023 vacation, the Mother took Y to Hong Kong ostensibly to visit the relatives on her side of the family. The Mother had return flight tickets for both her and Y, departing on 24 March 2023 and returning on 9 April 2023. The Father agreed to the trip on the basis that Y (and the Mother) would be returning on 9 April 2023. He has never consented to Y remaining out of Japan past that date.

9.  On 3 April 2023, however, the Mother claimed in text message to the Father that the visit had to be extended to 7 June 2023 so that a Hong Kong identity card could be issued for Y.

10.  The Mother indicated to the Father that she and Y would travel to Mainland China on 4 April 2023 (before the wrongful retention). The Father did not know if this travel took place.

11.  The Father proposed, instead, that he come to Hong Kong to collect Y to attend Mxxxxx Kindergarten, as schooling was due to resume on 10 April 2023. The Mother refused and, on 10 and 27 April, proposed that Y remain in Hong Kong to complete “elementary school” and that the Father do visit Y “on vacation” or “holiday”.

12.  Further, on 10 and 12 April 2023, the Mother asked the Father to come to Hong Kong to live with her and Y. The Father refused as he did not have a work visa or job in Hong Kong.

13.  On or around 5 May 2023, the Father applied to Japan’s Central Authority, which contacted the Secretary for Justice of Hong Kong on 5 June 2023.

14.  On 11 June 2023, the Mother successfully obtained a visa for Y to enter Shenzhen for 5 days at the Lo Wu border and appeared to have spent a day there. The Secretary for Justice confirmed that the Mother tried to depart Hong Kong at the Lo Wu Control Point on 24 July 2023 but was unsuccessful for reasons unknown.

15.  The Secretary commenced these proceedings on 31 August 2023. This Court granted ex parte relief the same day and gave directions on 11 September 2023 including, amongst others, that Y shall not be removed from Hong Kong. The Mother was privately represented at the directions hearing (pending approval of her legal aid application) but has acted in person since around 17 September 2023.

16.  The Mother indicated to the Father’s solicitors, Tanner de Witt (“TDW”) at a meeting in their offices that she would agree to return to Japan on 13 September 2023. Accordingly, TDW sent detailed return proposals. On 18 September 2023 she attended TDW’s offices and again expressed that she wished to settle the dispute and would agree to Y returning to Japan.

17.  The Father’s access has been a problem since departure in March 2023. The Mother has since failed to facilitate daily video calls and allegedly disparaged the Father in front of Y.

18.  The Mother has issued a petition for divorce in Hong Kong but she has undertaken to withdraw it within 14 days of the Mediation Settlement Agreement.

19.  The Social Investigation Report (“SIR”) stated that since Y has come to Court, he has stayed with the Mother in the flat of his maternal grandaunt and granduncle. The Mother has managed to support herself and Y by working as a hotel housekeeper. Y has been receiving proper care and attention from the Mother and relating well with the Mother’s relatives. Y was attached to his Mother but also on good terms with the Father. Being a Japanese citizen, Y does not have the right of abode in Hong Kong and is not entitled to any local welfare benefits. The Mother has secured a primary 1 placement in a private primary school for Y but admission cannot be arranged unless Y can obtain a valid student visa.

C.  Legal principles

20.  Section 3 of the Child Abduction and Custody Ordinance (Cap 512) gives legal effect to such articles of the Convention on the Civil Aspects of International Child Abduction (25 October 1980), as are set out in Schedule 1.

21.  Article 3 provides (among other things) that (i) removal or retention of a child is “wrongful” where it breaches custody rights of a parent under the law of the State in which the child was habitually resident immediately before the removal or retention; and (ii) 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.

22.  Article 12 provides that the requested state (in this case, Hong Kong) “shall” order the return of a wrongfully removed or retained child if less than a year has passed from the date of the wrongful removal or retention.

23.  Under Article 13, the requested State is not bound to order the return of a child under 4 situations: ie where (i) custody rights were not actually exercised, at the time of the removal or retention; (ii) the parent consented or acquiesced in the removal or retention; (iii) there is a grave risk of exposing the child to physical or psychological harm or otherwise place him in an intolerable situation; and (iv) the child objects to return, being old and mature enough to have such view considered. 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.

24.  Article 16, 17 and 19 provide that the requested state will not decide the merits of the parents’ rights of custody unless and until it has decided not to return the child, whereas a decision on custody rights is not to be a ground for resisting removal. Further, a decision to return does not amount to a decision as regards custody rights – the two are separate.

25.  In other words, the purpose of the Convention is to ensure that the merits of custody disputes are decided in the state where the child is habitually resident, not in a state to which they were wrongfully abducted or retained.

D.  Analyses

26.  Article 818(3) of the Civil Code of Japan provides that parental authority shall be exercised jointly by married parents. Article 820 provides that persons with parental authority have ‘the right’ and duty to “care for and educate the child”.

27.  As biological parents of Y, both the Father and the Mother had and have rights of custody under Articles 818(3) and 820. The Father satisfied the requirement under Article 3 of the Convention at the time of the wrongful retention.

28.  The parties have rightly conceded that Y’s habitual residence was and is Japan as Y was born and raised there. The Father has never consented to nor acquiesced in Y remaining in Hong Kong after 9 April 2023 as could be seen from the Father’s refusal to let Y receive education in Hong Kong or come to reside with the Mother and Y in Hong Kong. The Mother’s affirmation came nowhere near any of the 4 situations set out in §23 above. The parties have sensibly agreed for Y to be returned to Japan.

29.  The Court has considered the views in the SIR. Y is too young for his views to be taken into account.

E.  Terms of the Mediation Settlement Agreement

30.  The following terms of the Mediation Settlement Agreement have been clarified at the hearing.

31.  Clause 7: The telephone access with the Father whilst Y is in Hong Kong was agreed to be on a daily access.

32.  Clause 12: The Chinese version was clarified such that if the Father were to accompany the Child for the visits to Hong Kong, the Father shall bear his own cost incurred thereof. (若乙方 (Father) 陪同Y 訪港，乙方將自行承擔自己由此產生的費用。) This would be consistent with the parties’ intention (in clause 11) for each party to bear 50% of Y’s travelling costs of the Visits to Hong Kong whilst the Father would bear his own costs.

33.  Clause 13: The English version was amended to be consistent with the Chinese such that the Father would allow the Mother to visit Y in Japan twice a year for access up to 4 weeks on each occasion.

34.  Clause 16: If the Mother would not stay at the Father’s residence during the Visits to Japan, the parties agreed that:

a.  The Father would bear 50% of the Mother’s travelling expenses (旅費) incurred thereof; and

b.  The Mother would bear other costs she would incur.

35.  I pointed out that “travelling expenses” could have 2 meanings and may differ from the Chinese term “旅費”. The English term may mean all travelling expenses (including air tickets) or only those whilst in Japan. The Chinese term will cover the travel costs from Hong Kong to Japan. The parties have since clarified that “travelling expenses” in clause 16(a) shall mean those for air, land and sea. The costs in clause 16(b) would cover those for, eg fun parks, accommodation and food.

36.  Clause 17: additional access by the Mother to Y in Japan could be arranged upon parties’ agreement, including the issue of costs. The parties agreed that “costs” meant “expenses”.

37.  Clause 19: the Mother undertook not to unlawfully bring Y to leave Japan without the Father’s consent. I have queried what the position would be if the Mother were to “lawfully” bring Y out of Japan. The parties have agreed that another undertaking should be included (and did include) in Recital G to the consent summons to prevent the Mother from taking Y out of Japan without the Father’s consent.

38.  Clause 20: the Mother undertook not to unlawfully prevent Y from returning to Japan after the Visits to Hong Kong. As the parties have also agreed that the Mother could take Y to Mainland China to visit his maternal grandfather, Recital G to the consent summons was amended so that the Mother undertakes that she shall not bring Y to leave Japan without the Father’s written permission or prevent Y from returning to Japan after access in Hong Kong or elsewhere.

39.  I was satisfied that the terms in the Mediation Settlement Agreement, as clarified were appropriate and in the best interests of Y. The Mediation Settlement Agreement shall form part of the order to be made by the Court and the parties have undertaken to perform the terms of the Mediation Settlement Agreement, as reflected in Recital F to the consent summons.

F.  Terms of the consent summons

40.  As the parties have agreed, Y shall continue to stay with the Mother in Hong Kong until 10 pm on 30 October 2023. This was reflected in Recital A and E of the consent summons.

41.  The parties have agreed that the Mother could bring Y to Mainland China to see the maternal grandfather. I have referred to the amendment to Recital G above. Recital H was also added so that the Mother may remove Y to Mainland China only with the prior written agreement of the Father on each occasion.

42.  The Father has made arrangements to work from home and would be able to make use of childcare assistance offered by Mxxxxx Kindergarten and (if necessary) parents of Y’s friends who live close by. He would drop off and pick up Y from school on Mondays to Friday. He would facilitate daily video call access by the Mother from 8 pm to 9 pm. I was satisfied that Y will be left with appropriate care whether he will be in Hong Kong or in Japan.

43.  I was satisfied that the consent summons has included appropriate undertakings and that the terms of the consent summons were orders or consequential directions that I could validly make under Cap 512. I therefore made an order in terms of the consent summons at the hearing.

44.  I thank Mr Baker for his assistance.