黎 v. 凌

CACV 204/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 204 OF 2016

(ON APPEAL FROM FCMC NO 17193 of 2014)

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JUDGMENT

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The Court:

Introduction

1.  This appeal highlights various issues in relation to a child taken across the border to Mainland China unilaterally by one of his parents, when a cross border marriage or relationship between his parents breaks down.

2.  In the present case, the child was taken by his mother (the respondent) unilaterally to the Mainland, and his father (the petitioner) is appealing against the decision of the Family Court Judge CK Chan (“Family Judge”) of 15 October 2015 declining to make a final custody order in his favour.  Instead, the judge adjourned his application sine die with liberty to restore. 

3.  At the time of granting leave to appeal, in view of the general importance of the issues, we directed notice of the appeal should be given to the Secretary for Justice, the Hong Kong Bar Association, the Law Society of Hong Kong, and the Hong Kong Family Law Association, for their consideration as to whether they would wish to make any submissions to assist the Court.  Very helpfully, the professional bodies joined force and instructed Mr Jeremy Chan to provide submissions in this appeal.  The Secretary for Justice also instructed Mr Abraham Chan SC and Ms Bonnie Cheng to put before us submissions.  We are very grateful for these submissions and the assistance rendered by the professional bodies as well as the Secretary for Justice.  

4.  We had also directed the Hong Kong Social Welfare Department to investigate as to the present whereabouts of the child and his living and schooling arrangements.  The mother did not respond to any communications sent to her by the Hong Kong Social Welfare Department, and the father did not agree to pay for the services of the International Social Service.  As a result, it was not possible for the Hong Kong Social Welfare Department and/or International Social Service to carry out any investigation as to the child’s whereabouts.  

5.  In the meantime, there have been two recent developments mentioned below which may have an impact on this appeal.  They are:

(i)  An arrangement signed on 20 June 2017 between the Executive Vice President of the Supreme People’s Court and our Secretary for Justice, namely “Arrangement on reciprocal recognition and enforcement of civil judgments in matrimonial and family cases by the Courts of the Mainland and of the Hong Kong Special Administrative Region” (關於內地與香港特別行政區法院 相互認可和執行婚姻家庭民事案件判決的安排) (“Reciprocal Arrangement”); and

(ii)  The judgment handed down by our Court of Final Appeal on 21 June 2017 in QMY v GSS, (2017) 20 HKCFAR 303, FACV 11 of 2016 (“QMY”).

6.  Written submissions have been received from the Father acting in person.  As we said, Mr Abraham Chan SC leading Ms Bonnie Cheng have lodged written submissions on behalf of Secretary for Justice, and Mr Jeremy Chan has lodged written submissions on behalf of the Hong Kong Bar Association, the Law Society of Hong Kong and the Hong Kong Family Law Association.  The mother had been duly served and notified of our directions on the conduct of the appeal.  She chose not to put forward any submissions before us.  However, we have read her letter of 13 March 2015 to the Family Court (which set out her case), a copy of which has been included in the appeal bundle.  

Background

7.  The father (“Father”) is and was at all material times a Hong Kong permanent resident.  The mother (“Mother”) was from Hunan Province, and her mother is still living in Hengyang city, Hunan[1].  

8.  The parties married in Hong Kong in October 2010.  After their marriage, the Father commuted between Hong Kong and Shenzhen.  In Hong Kong, the Father resided in a flat owned by his elder sister (“Tseung Kwan O Property”).  In Shenzhen, the parties had resided in a rented flat initially and later in a flat purchased in the Mother’s name (“Shenzhen Property”). 

9.  The Mother gave birth to the parties’ son in October 2012 in Guangdong (“Child”), and the Child will be 5 years old in October this year.

10.  After giving birth, the Mother and the Child continued to live in the Shenzhen Property until the Child was about 6 months old.  According to the Mother, when the Child was about 6 months old, the Father “tricked” her and the Child into moving to the Father’s home at the Tsueng Kwan O Property, and the Mother then had to commute between Shenzhen and Hong Kong with the Child for extension /renewal of their “two-way permit” until they obtained their one-way permit 單程證, (“One Way Permit”) in August 2014. According to the Mother, she had always been the primary carer of the Child. After their arrivals in Hong Kong on the strength of their One Way Permit, Hong Kong identity cards were issued to them.

11.  On the other hand, the Father’s case was that the Child had been residing at the Tseung Kwan O Property for about two years before he was unilaterally taken by the Mother to the Mainland on about 18 February 2015.  Further, according to the Father, his elder sister and mother had helped to take care of the Child together with a domestic helper.  Before his removal from Hong Kong by the Mother, the Child had already been accepted by several kindergartens in the Tseung Kwan O district with a view to commencing K1 in 2015.  The Child had attended pre-school classes in the Po Lam area prior to being taken to the Mainland.

12.  Sadly, the marriage went into difficulties. On 31 December 2014, the Father issued a petition in the Family Court seeking a divorce based on the Mother’s unreasonable behaviour and the Father sought custody of the Child.  According to the Mother, she was evicted from the Tseung Kwan O Property by the Father upon his issue of the petition.

13.  The Father’s evidence indicated that the parties had been seeking assistance from the Social Welfare Department’s Tseung Kwan O Family Services Centre prior to the issue of the petition[2].  The petition was served on the Mother through the social worker at the Social Welfare Department[3].  The Mother had instructed solicitors and filed an acknowledgment of service giving notice of intention to defend the case, and seeking custody of the Child and ancillary relief.

14.  It was further the Father’s case that in the presence of a social worker, the parties had agreed on the Mother’s interim access arrangements to the Child, but that in breach of her promise/ agreement, the Mother unilaterally took the Child to her home town in Hunan on 18 February 2015[4].

15.  It later transpired that on 18 February 2015 the Mother applied and obtained, on urgent basis, a temporary travel permit for the Child, which was valid for a single entry to and exit from the Mainland within 3 months from the date of issue[5] (“Travel Permit”).  The Travel Permit recorded the reason for the application of the Travel Permit was the loss of the Child’s travel document and the Child needed to travel urgently to the Mainland.

16.  The Father issued his 1^st summons on 24 February 2015 seeking that he be granted custody of the Child and that the Mother was to have the Child brought back to Hong Kong to be hand over to him.  His 1^st summons was fixed for hearing on 12 March 2015 and was served on the Mother’s then solicitors.

17.  A week before the hearing, the Mother filed a notice to act in person, and gave an address care of another person in Lo Wu, Shenzhen, as her address of service.

18.  The Mother did not turn up at the hearing on 12 March 2015.  On that day, in her absence, the Family Judge, not knowing that the Child had already been removed from the jurisdiction, ordered that the Father be granted interim custody of the Child, with the usual restriction against removal out of jurisdiction (“Interim Custody Order”).

19.  As evidenced by her letter dated 13 March 2015 to the Family Judge (“13.03.15 Letter”), the Mother was fully aware of the hearing on 12 March 2015.  She has since then not communicated further with the Family Court.  She has also not participated in the Hong Kong proceedings. 

20.  In the 13.03.15 Letter, the Mother provided an email address and a Hong Kong mobile telephone number for contact.  The envelope containing the 13.03.15 Letter also bore her Mainland mobile telephone number.  The Mother explained in the letter that she was evicted from the Tseung Kwan O Property and there was nowhere for her to live, and further she was concerned about her safety due to the Father’s harassment.  She asserted that there were also disputes over her access to the Child and the matter had been reported to the police.  The Mother said she had no alternative but to take the Child to her home town.

21.  On 19 March 2015, the Father issued a 2^nd summons seeking an order for the Mother to bring the Child back to Hong Kong.  On 30 March 2015, the Family Judge ordered the Mother to bring the Child back to Hong Kong within 28 days (“Return Order”). 

22.  The Father proceeded with his divorce petition.  Upon granting a decree nisi of divorce on 7 May 2015, the Family Judge adjourned the matter of the final custody order to 23 July 2015.  On that day, the Family Judge again adjourned the matter to 15 October 2015.  The Father was dissatisfied with the adjournment and had sought leave to appeal.

23.  While proceedings were taking place in Hong Kong, the Father separately made an application to the Lo Wu People’s Court in Shenzhen for divorce and custody of the Child.  On 3 August 2015, the Lo Wu People’s Court declined jurisdiction on the ground that both parties were “Hong Kong people” (香港人) and also that the marriage took place in Hong Kong. 

24.  So far as the Hong Kong proceedings were concerned, the Father’s application for leave to appeal was dismissed by the Family Judge on 17 September 2015, with written reasons handed down on the following day.  The Father did not take his leave application further on that occasion.  

25.  The Family Judge granted the Father’s application for the Decree Nisi to be made absolute, made a declaration on 16 September 2015 under s 18(b)(ii) of the Matrimonial Proceedings and Property Ordinance, Cap 192, that it was impracticable for the Father to make any arrangements for the welfare of the Child.  The Decree Nisi was later made absolute on 18 September 2015.

26.  When the matter of final custody came up again at the hearing on 15 October 2015, the Family Judge made the order which is now the subject of this appeal, namely that the question of final custody be adjourned sine die with liberty to restore (“15.10.15 Order”).  The Father did not immediately apply for leave to appeal against the 15.10.15 Order.

27.  At the hearing on 15 October 2015, the Family Judge expressed the view that the Father could take action in Mainland China for assistance and the Father then requested the Family Judge to relinquish jurisdiction over the Child, or to make a declaration that Hong Kong courts had no jurisdiction over the Child, in order that he could, armed with the order, seek relevant orders from the Mainland Court[6].  The Family Judge declined indicating that he had no jurisdiction to make the order/declaration sought by the Father.

28.  Meanwhile in the Mainland, the Father’s appeal against the decision of the Lo Wu People’s Court was dismissed by the Shenzhen Intermediate People’s Court on 7 December 2015.  

29.  The Father had produced an opinion from a Mainland lawyer dated 7 February 2016, stating that the Mainland Courts had decided that they had no jurisdiction in the parties’ divorce matter (including custody of the Child).  

30.  Eventually, on 30 April 2016, the Father issued a summons for leave to appeal out of time against the 15.10.15 Order, which was refused by the Family Judge on 19 July 2016.  Leave was subsequently granted by this Court (Lam VP and B Chu J) on 18 October 2016.

31.  According to the Father’s affirmation of 27 January 2017, although the Mainland Court declined jurisdiction over the divorce and custody matter, it has accepted jurisdiction over the dispute concerning the Shenzhen Property, and the Mother was legally represented in those proceedings.

The Family Judge’s reasons

32.  The Family Judge gave oral reasons at the time when he made the 15.10.15 Order. 

33.  After dismissing the Father’s leave application, the Family Judge handed down written reasons on 19 July 2016.  He referred to the Father’s delay in applying for leave and said he did not accept the Father’s explanation in relation to his delay.  The Family Judge reiterated that even if he had not adjourned the question of custody sine die, he would not be in a position to make a final custody order as the Mother and the Child were in Mainland China, and he was unable to consider the Child’s long term arrangement or his best interests.

34.  In gist, even though he was prepared to grant the Interim Custody Order to the Father, the Family Judge decided not to make a final custody order because:

(i)   The Child was not in Hong Kong and his whereabouts were unknown; and

(ii)   There was no information as to the Child’s then circumstances.

The Father’s grounds of appeal

35.  The Father’s grounds of appeal can be summarized as follows:

(i)   The Family Judge failed to consider the Child’s best interests from all the available information before him and that granting the Father a final custody order was the only way to assist him to bring the Child back; and

(ii)   The Family Judge failed to appreciate that the Interim Custody Order would not be recognized or enforced by the Mainland Court under article 12 of the PRC Regulation on “Procedural questions in relation to a PRC citizen applying for recognition of a divorce order in Mainland China” (最高人民法院關於中國公民申請承認外國法院離婚判決程序問題的規定, “Regulation”).

Implications arising from the Child being not in Hong Kong

36.  In the recent case of QMY, the Hong Kong Court of Final Appeal held, among other things, that (1) jurisdiction to entertain an application under the Guardianship of Minors Ordinance (GMO) in respect of a child who was neither ordinarily resident nor present in Hong Kong was established as of right when the father was duly served in the jurisdiction and had acknowledged service; (2) the court did not have a discretion to stay the proceedings other than on forum non conveniens principles; and (3) the exercise of the court’s discretion must depend on the facts of the individual case.

37.  It was a case in which the mother of a child sought maintenance under the GMO from the father who was validly served in Hong Kong (and had assets in Hong Kong).  Though the child resided out of the jurisdiction, there was no question that the order of maintenance could be effectively enforced in Hong Kong.  The court was not concerned with the question of custody or access in that case.  In this respect, Tang PJ highlighted the difference between cases (like custody cases) where the presence within the jurisdiction was an important consideration and cases where the court is only concerned with maintenance, see [23] and [24]. Fok PJ and Stock NPJ also specified that the case was concerned with order for maintenance, see [37], [40] and [49].  In such circumstances, Ribeiro PJ held that the Hong Kong Court was bound to assume jurisdiction over the respondent unless it was persuaded that the proceedings should be stayed, on forum non conveniens principles and having assumed jurisdiction, it would be bound to consider whether orders sought should be made, applying substantive discretionary principles relevant to the exercise of powers under the GMO[7]. On the facts of the case, Ribeiro PJ held it was unnecessary to stray into considerations relevant to custody issues and the inherent jurisdiction of the court.  The latter was a reference to the inherent jurisdiction in wardship proceedings.

38.  As mentioned, Fok PJ highlighted it was a case concerning maintenance and the jurisdiction was founded as of right (as the father was properly served in Hong Kong).  In such context, the sole issue to be considered at that stage was whether proceedings should be stayed on the ground of forum non conveniens.  Both Fok PJ and Gleeson NPJ mentioned that it was not a case involving the potential exercise of an exorbitant jurisdiction.  Thus, they both (and implicitly Ribeiro PJ and Stock NPJ as well) held that the third certified question did not arise.  

39.  In his answer to the second certified question, Tang PJ[8] drew a distinction between declining jurisdiction on the ground of forum non conveniens and the court refusing to exercise its discretion to make an order in the GMO proceedings. Apparently, His Lordship had the latter situation in mind when he gave his answer to the third certified question at [35] as follows:

“ The exercise of the court’s discretion must depend on the facts of the individual case. Even if it is possible to do so, which I doubt, I think it would be unwise to confine the exercise of discretion by strict criteria.”

40.  In his judgment, Tang PJ referred to two English cases, Hope v Hope (1854) 4 De GM & G 328 and In re Willoughby (An Infant) (1885) 30 Ch D 324 in addressing the Court of Appeal’s view that jurisdiction should be declined because the child in question was not in Hong Kong.  These are common law cases decided on the inherent parens patriae jurisdiction of the court.  Hope v Hope, supra concerned an application (brought in the name of the children[9]) for an order that the mother (who was in France with the children in question) deliver the children to the father.  In re Willoughby, supra, the relief sought was the appointment of guardians for an infant who was in France in respect of property also in France.  The courts held in both cases that the absence of the child from England would not be an impediment to the court having jurisdiction to make the orders sought though it would be a relevant consideration as to how the discretion would be exercised.  On the facts, despite the lack of effective means to enforce the court orders and the existence of parallel proceedings abroad, the courts considered it appropriate to make the orders sought. 

41.  In Hope v Hope, Lord Cranworth LC observed as follows:

“ But a more difficult point has been raised, namely putting aside the question as to the place of birth, how can the jurisdiction be exercised in the case of an infant who at the time the jurisdiction is asked is not within the jurisdiction of the Court? This is a more plausible objection than the one based on the mere place of birth, but it is not of a material nature, as bearing upon the existence of the jurisdiction. It may be that the child is placed under such circumstances that the jurisdiction of the Court cannot be exercised over it because no order I might issue could be enforced; but in that case there is not a want of jurisdiction but a want of the power of enforcing it. … So with an infant abroad; if the parents were also abroad, and the infant either had no property, or the property was likewise abroad, I should never say that I had no jurisdiction over the infant if it was a British born subject of Her Majesty, though I might have no means of enforcing the jurisdiction. Therefore, it is putting the matter on a wrong footing to say, because the child is out of the jurisdiction, that the Court has no jurisdiction. In such a case, anybody might, by merely withdrawing himself from the jurisdiction, escape all liability to it.” [10]

42.  In In Re Willoughby (An Infant) (1885) 30 Ch D 324, Kay J held in the circumstances of the case, namely that litigation had commenced in France and that the French court had declined to exercise their jurisdiction until the English court had determined what they thought it right to do, it was appropriate for the English court to exercise its jurisdiction:

“ … I think it right that the Court should in a case in which it is admitted that the mother is not a proper person to be the guardian, appoint English guardians of this English child; and I have no doubt whatever that when this Court has done that, the Courts of France will pay the respect and attention to the orders of the English Court concerning this English child which, as I have said, the English Courts would pay in the converse case with respect to the order of the French Courts as to a French child residing in this country.”[11]

43.  In dismissing the mother’s appeal, Cotton LJ held that it would be wrong to refuse to make an order, and further said:

“ It may assist the French Court in determining what is right to be done in the litigation going on there, especially having regard to the objection taken by the French guardian, and to the fact that the proceedings in France, whether by consent or otherwise, stood over in order that there might be a decision in these proceedings in the Court of England – the Court of the country of the infant’s nationality.”[12]

44.  The decisions in these cases concerned children who were British by nationality.  In QMY, supra, Tang PJ did not find it opportune to decide for the purpose of the exercise of parens patriae jurisdiction if one can regard a child entitled to permanent residence in Hong Kong as analogous to an English child of British nationality in the application of the common law principle[13]. In this respect, the Court of Appeal in QMY was of the view the protective jurisdiction is so entrenched that it would be unimaginable that the Hong Kong court would decline to exercise such jurisdiction simply because a child who is a permanent resident of Hong Kong is not physically present here notwithstanding that the relevant circumstances of the case called for the exercise of such jurisdiction, see [8.10] of the judgment of the Court of Appeal[14].  

45.  In the present appeal, unlike QMY, supra, we are concerned with question of custody.  There is no doubt that the Family Court had jurisdiction to make an order in respect of the custody of the Child, the divorce proceedings having been properly brought in Hong Kong, the Mother was duly served here and she had entered appearance in the proceedings.  She only removed the Child out of Hong Kong in the course of the proceedings.  At no stage did she contest the jurisdiction of the Family Court.  The issue before us is therefore not one of jurisdiction.  Rather, we (as did the judge below) are concerned with how the jurisdiction should be exercised in light of the fact that the Child was removed out of Hong Kong on 18 February 2015.

46.  Mr Abraham Chan SC and Mr Jeremy Chan helpfully referred us to other English cases in which the courts considered whether orders should be made over a child not within jurisdiction. We only need to examine briefly two recent decisions of the UK Supreme Court.   

47.  In A v A (Children: Habitual Residence) [2014] AC 1, Baroness Hale having reviewed the English cases in which the common law jurisdiction in Hope v Hope was exercised in respect of children of British nationality not physically within the jurisdiction and habitually resided elsewhere, reiterated that such jurisdiction was to be exercised with extreme circumspection[15].

48.  The position was further clarified in the more recent case of In re B (A Child) [2016] AC 606.  In that case, the Court of Appeal gave a clear exposition of the relevant case law at [32] to [56].  Since the Supreme Court did not actually decide the case on the basis of inherent jurisdiction as the majority was able to conclude that the court had jurisdiction under the Children Act 1989 based on the habitual residence of the child, discussion on the former aspect in the judgment of the Supreme Court was limited (though important, as we shall see below).  It is useful for our purposes to highlight some observations by Black LJ.  In England, because of the effect of the Family Law Act 1986, the focus in the exercise of inherent jurisdiction in respect of a child not residing in England had shifted to a consideration of the protective, rather than custodial, aspect of the jurisdiction[16].  We do not have similar constraint in Hong Kong.  Secondly, after a comprehensive survey of the case law leading to A v A (Children: Habitual Residence) supra and Parker J’s subsequent decision in that case, Black LJ held at [44] and [45] that the exercise of inherent jurisdiction in respect of a child not habitually residing in England does not turn on questions of forum non conveniens alone.  At [53], Her Ladyship said:

“ … We would not wish to lay down any rigid boundaries for the exercise of the jurisdiction; all must depend, as always, on the circumstances of the particular case. However, we are satisfied that the present case does not approach the very high threshold necessary to justify the exercise of the jurisdiction…. The situation falls short of the exceptional gravity where it might indeed be necessary to consider the exercise of the inherent jurisdiction.”

49.  In the Supreme Court, Baroness Hale and Lord Toulson (with the concurrence of Lord Wilson[17] and Lord Clarke[18]) set out the relevant considerations informing the exercise of the inherent jurisdiction at [59]:

“ … It is, however, one thing to approach the use of the jurisdiction with great caution or circumspection. It is another thing to conclude that the circumstances justifying its use must always be “dire and exceptional” or “at the very extreme end of the spectrum”. There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and third, that it may result in unenforceable orders.”

50.  The Supreme Court also realigned the approach to be adopted in assessing whether the court should exercise inherent jurisdiction over a British child who was not habitually resident in England.  The following was said at [60] and [61]:

“ The basis of the jurisdiction … is that ‘an infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection’. The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to ‘cases which are at the extreme end of the spectrum’ …

There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed. Exercising a nationality-based inherent jurisdiction may run counter to the concept of comity …”

51.  We are of the view that Hong Kong Courts should adopt a similar approach in the exercise of the parens patriae jurisdiction in respect of children who have not been habitually resident here.  For the reasons given by Lord Wilson in In re B (A Child) supra, at [27] to [30] we agree that habitual residence is the more appropriate guide than mere physical presence or absence for determining whether the court should exercise jurisdiction in cases involving children.  The discussion above is in relation to those exceptional cases where the parens patriae jurisdiction is to be invoked for a child who has not been habitually resident in Hong Kong.   

52.  However, in the present appeal, we are concerned with a child who had been habitually residing in Hong Kong prior to his removal by the Mother on 18 February 2015.  Although the One Way Permit was only issued in August 2014, even on the Mother’s case, the Child had been living in Hong Kong since he was six months old, viz since about May 2013.  The  grant of the One Way Permit for the Mother and the Child entailed with it the giving up and/or cancellation of their household registration in the Mainland.[19] This is clear evidence of the settled intention to have Hong Kong as their habitual residence.  The Child was attending pre-school in Hong Kong at the date of the divorce petition. Further, the Travel Permit obtained by the Mother for the Child indicated that the Child was a Hong Kong resident with a Hong Kong Identity Card and stated his permanent place of residence to be Hong Kong.   

53.  According to the legal principles adumbrated by Lord Wilson in In re B (A Child) supra, the surreptitious removal of the Child out of Hong Kong to the Mainland on 18 February 2015 cannot change the habitual residence of the Child.  

54.  Further, we are here concerned with the exercise of statutory jurisdiction under section 19(1) of the Matrimonial Proceedings and Property Ordinance, Cap 192 [“MPPO”] in respect of the custody a child of the marriage.  That section gives the Family Court the power to “make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18” in, amongst other things, proceedings for divorce.  The jurisdiction of the court in proceedings for divorce is governed by section 3 of the Matrimonial Causes Ordinance Cap 179. As mentioned above, there is no doubt that the Family Court has jurisdiction in the present case and the Mother has not disputed jurisdiction.

55.  In such circumstances, notwithstanding the absence of the Child from Hong Kong after 18 February 2015, there is no impediment to the exercise of the statutory jurisdiction.  In so doing, the court is not exercising any exorbitant jurisdiction and there is no forum non conveniens consideration.  The considerations relevant to the exercise of parens patriae jurisdiction in respect of children who has not been habitually resident here also do not arise.

56.  Instead, putting aside the question of delay, the Family Judge’s refusal to make a final custody order was due to the inability of the court to consider the Child’s long term arrangement or his best interest.  It was an exercise of discretion by the Family Judge and unless he erred in principle or the exercise is plainly wrong, this court should not intervene.

Exercise of Discretion

Generally

57.  Under section 3 of the GMO, in relation to the custody or upbringing of a child, the Court shall regard the best interests of the child as the first and paramount consideration and in having such regard shall give due consideration to (i) the views of a child if having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so, and (ii) any material information including any report of the Director of Social Welfare available to the court at the hearing. 

58.  The above general principles apply in the context of an application under section 19(1) of the MPPO.   

59.  To guide the court in determining what is in the best interests of a child, there is a checklist of factors recommended in the 2005 Law Reform Commission Report on Child Custody and Access (“Checklist of Factors”)[20].  The Checklist of Factors has been incorporated in the Children Proceedings (Parental Responsibility) Bill[21].  Although the Bill has not yet been passed, in a number of family cases, the Hong Kong courts have referred to the Checklist of Factors to assist them in considering what is in the best interests of a child. 

60.  The Checklist of Factors states:

“ In determining what is in the child’s best interests[22], the court must, have regard, in particular,to—

(a) the ascertainable views of the child concerned (considered in the light of the child’s age and understanding);

(b) the child’s physical, emotional and educational needs;

(c) the nature of the relationship of the child with each of the child’s parents and with other persons;

(d) the likely effect on the child of any change in the child’s circumstances;

(e) the child’s age, maturity, sex, social and cultural background and any other characteristics of the child that the court considers relevant;

(f) any harm that the child has suffered or is at risk of suffering;

(g) any family violence involving the child or a member of the child’s family;

(h) how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;

(i) the practical difficulty and expense of the child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(j) the range of powers available to the court under this Ordinance in the proceedings in question; and

(k) any other fact or circumstance that the court thinks is relevant.”

61.  Prior to making any order of custody, whether interim or not, the court will usually call for a social investigation report and the social worker will then investigate into the background of the parties and all the relevant circumstances concerning the child in question.  However, a social investigation report is not a mandatory requirement before a custody order is made.  As a matter of law, though rare in practice, it is open to a court to make a custody order without calling for a social investigation report.  In the present case, the Family Judge made an interim custody order without any social investigation report.

62.  Short of granting a custody order, faced with a situation where there is a serious risk of a child being removed out of jurisdiction pending the resolution of custody proceedings, there is a range of orders open to the court to make.  Depending on the circumstances of the case, the court may make a non-removal order if the child has not yet left the jurisdiction and direct the order be registered at the “stop list” of the Immigration Control points.  If the child has been taken out of jurisdiction the court may make an order requiring the taking parent to return the child to jurisdiction, or make an order requiring the taking parent to deliver the child to the care of the left behind parent in order that the child be brought back to Hong Kong.  If the taking parent’s whereabouts in the foreign jurisdiction or Mainland China is known or ascertainable, the court may urgently call for an international social investigation report.  

63.  In the present case, the Family Judge made an order for the return of the Child to Hong Kong.  It is an order to facilitate the court’s exercise of its jurisdiction over the custody of the child and as such an order that the court could make under section 19(1).  By the same token, the court can make an order directing the taking parent to deliver the child to the other parent with a view to securing the return of the child to Hong Kong.  In the former case, the taking parent would be responsible for bringing the child back whilst in the latter it is expected that the taking parent simply deliver the child to the other parent at the place where he has been taken to so that the other parent can bring the child back to Hong Kong.  

64.  The Family Judge had also made an interim custody order (before he made the return order).  In principle, the court has power to make an interim order.  The ordinary meaning of the word “interim” suggests the order is temporary, pending the making a final or a further order.  In respect of a custody order, a care and control order or an access order, section 19(5) of the MPPO provides that the court “may exercise that power from time to time” and section 19(6) provides that the court shall have power to vary such orders or to suspend any provision thereof temporarily and to revive its operation.  Thus, such orders are capable of being varied before the child reaches the age of majority, particularly if there is a change in circumstances.  In this sense, any “final” order would not necessarily bring finality to the matter. 

65.  In a case without any cross-border element, it is unlikely that there is any need for interim custody to be granted.  In most cases, interim care and control would be sufficient to cater for the immediate needs for handling affairs regarding a child during the interim period.  The distinction between the concepts of custody and care and control was usefully explained by Hartmann JA in PD v KWW (Child: Joint Custody) [2010] 4 HKLRD 191 at [28] to [43].  Occasionally, there may be specific matters which call for parental decision, e.g. medical treatment or education.  The court expects parties to have sensible discussions and resolve differences with the best interest of their child in mind.  In cases of high conflict, the matter may have to be brought before the court for determination.  As observed by Hartmann JA at [39], this would be so even in cases where custody has been granted to one party. 

66.  In cases with a cross-border element where a child has been taken out of jurisdiction, judges would occasionally make an interim custody order to facilitate the enforcement of a return order.  The purpose for such custody order is to show to the court in the jurisdiction to whom the child is taken that the applicant has been granted custody.  As a matter of law, it is unnecessary to do so in respect of countries which have subscribed to the Convention on the Civil Aspects of International Child Abduction 1980 because of the wide concept of custody under that convention.  However, in respect of other countries, it may sometimes be necessary. 

67.  Since Hong Kong is part of China, the 1980 Convention is not applicable.  The Father was under the impression that courts in the Mainland do not recognize interim custody order. On behalf of the Hong Kong Family Law Association, Mr Jeremy Chan submitted, based on the understanding of family law practitioners in Hong Kong, that at the moment custody orders made in Hong Kong cannot be directly enforced in the Mainland though sometimes courts in the Mainland would pay regard to the orders made in Hong Kong in exercising their independent judgment on children cases. 

68.  In light of the information relating to the Reciprocal Arrangement in the papers before us, it is clear that currently a custody order of the Hong Kong Court (whether interim or final) cannot be directly enforced in the Mainland.  This is also the understanding of Mr Abraham Chan.  We would in this connection point out that the Regulation relied upon by the Father has no application because Hong Kong being part of China, Hong Kong courts are not courts of another country (外國法院).

69.  As for the weight that the Mainland courts may place on custody orders of Hong Kong courts, it is to some extent a matter of speculation and there is no concrete evidence before us.  With the signing of the Reciprocal Arrangement, it is not unreasonable to expect that Mainland courts will be more willing to assist.  Hong Kong courts can proceed on a basis similar to the aspiration of Kay J and Cotton LJ in In Re Willoughby (An Infant), supra.  

70.  Notwithstanding the lack of clear evidence, we accept that a custody order which is expressed to be “interim” (or “臨時” in Chinese meaning temporary) could be confusing to non-common law authorities.  Bearing in mind what we have said above on the nature of an order for custody, if a court deems appropriate to make a custody order and such order is necessary to facilitate a parent seeking the return of a child to Hong Kong, it would be simpler to make a custody order without qualifying it as an “interim” one.

71.  In so saying, we are not laying down a general rule that in every case where a return of a child is sought the court should make a custody order.  It remains a matter of discretion and the court has a number of options including:

(a)  Making a return order only;

(b)  Making a delivery order, directing the child be delivered to the party seeking return; and

(c)  Making a custody order together with a delivery order.

72.  The court must exercise its discretion depending on the facts and circumstances of the case, including its understanding as to the law and practice of the jurisdiction to which the child has been brought.  

73.  First and foremost, the court must assess whether it is a suitable case for custody as opposed to a case for access only.  If it is clearly a case for access only, then it would be wrong in principle for a custody order to be made simply for the purpose of securing the return of the child.  Sometimes, it may not be absolutely clear. In that scenario, the court can only assess the matter by reference to the evidence before it, and probably without the evidence of the parent who has taken the child out of jurisdiction. 

74.  Due to the absence of the child from the jurisdiction, the court may not be able to obtain a social investigation report.  Notwithstanding that, if the court is of the view on the available evidence that custody order is appropriate, it should not shrink from granting the order solely because the report cannot be obtained due to the removal of the child from the jurisdiction. 

75.  Further, the court must consider whether it should provide for the arrangement upon the child being brought back to Hong Kong.  In a case (like the present case) where the party taking the child away has, in all likelihood, been the primary carer and has accommodation or maintenance needs in Hong Kong, the court may require the party seeking to bring the child back to give appropriate undertakings to cater for such matters. 

76.  The court must also provide for the party to report to the court as soon as practicable upon the return of the child and to have the matter listed before the court for further directions within a short time frame.

The present case

77.  At the time of making the Interim Custody Order, the Family Judge had not called for any report. However, the Father’s evidence was that for the past two years, the Child was residing at the Tseung Kwan O Property and the Child had enrolled with a kindergarten.  As we said above, all the evidence pointed to the Child being habitually resident in Hong Kong before his removal on 18 February 2015 and the Child, being a Hong Kong resident, would cease to have any Household Registration in the Mainland.  There was no contrary evidence before the Family Judge at the hearing of the 1^st summons. 

78.  The Family Judge must have accepted, in light of the evidence available, that it was in the best interests of the Child to grant custody to the Father before he made the Interim Custody Order.  There is no appeal by the Mother against the Interim Custody Order and we have no reason to disturb the same.  

79.  After the discovery of the Child’s removal from Hong Kong, the Father asked for a final custody order.  Instead of acceding to such request, the Family Judge adjourned the application sine die with liberty to restore.  

80.  In so doing, the Family Judge had, with respect, erred in principle.  Adjourning the application indefinitely could not be in the best interests of the Child since he was being taken away to a place where he had no Household Registration and he has been deprived of all contact with his father. 

81.  In the circumstances, it falls upon us to exercise the discretion afresh. 

82.  Mr Jeremy Chan has questioned whether the Child should now be summarily returned to Hong Kong in light of the passage of time since February 2015.  This is a real question that will need to be considered.  However, it is not a question that we should address in this appeal.  We can only consider whether a custody order should be made.  What happened after such an order (if we shall make the order) is not a matter before this Court.  In fact, this Court does not have the power to make such determination.  It is a question to be determined by the judicial authority at the place where the Child is.  We have no doubt that such authority would have more information about the present condition of the Child and would therefore in a much better position than a court in Hong Kong to assess the appropriate course.  The extent to which such authority would pay regard to the order made by a Hong Kong court is also a matter for that court.  

83.  Mr Abraham Chan and Mr Jeremy Chan have also invited this Court to call for a social investigation report together with the giving of notice to the Mother that should she fail to co-operate, the report will be prepared with the Father’s input only, and the court may draw adverse inferences against her.

84.  As recited above, this Court had already endeavoured to call for a report, including an international social welfare report, but the Mother failed to respond at all.  We see little point in making another order for an investigation report.  In any event, we are of the view that there is sufficient material before us for the determination on custody order. 

85.  Bearing in mind that we have no basis to disturb the Interim Custody Order and what we have said above on custody order, we consider it appropriate to make an order granting custody of the Child to the Father subject to the Father undertaking to provide accommodation for the Mother in Hong Kong in the event she shall decide to come to Hong Kong to contest custody.  Further, we would direct the Father to apply to the Family Court for further directions on the arrangement for the Child within 7 days from the Child returning to Hong Kong.

86.  We allow the appeal accordingly. 

87.  Before we leave this case, we shall say a few words on enforcement and service which may be of general interest. 

Enforcement

88.  As mentioned above, currently there is no means for direct enforcement in Mainland China of a custody order of the Hong Kong Court.  This is unsatisfactory.

89.  Though the Reciprocal Arrangement has been signed, it has no retrospective effect and only applies to orders made after the effective date.  Hence, the Father cannot benefit from it immediately.

90.  The Reciprocal Arrangement will be implemented in the Mainland by judicial interpretation.  So far as Hong Kong is concerned, we understand that corresponding legislative proposals will be prepared as soon as possible for consultation with stakeholders, with a view that the legislative proposals be introduced into the Legislative Council before the end of 2018. 

91.  Nowadays, cross-border marriages between Hong Kong residents and Mainland residents are common occurrence.  The Reciprocal Arrangement is a long overdue arrangement.  As the present appeal illustrates, absent formal arrangement of this nature, there can be a lack of effective judicial redress for problems arising from the breakdown of such marriages.  In the interest of our society, we would urge that the preparation and enactment of the legislative scheme be proceeded diligently and expeditiously.  

Service

92.  Though the petition was duly served on the Mother in Hong Kong, by the time leave to appeal was granted, she had already left the jurisdiction.  After the grant of leave, the Notice of Appeal has to be served on the Mother in accordance with Order 59 Rule 3(5) of the Rules of the High Court.

93.  Further, the time for appeal is currently fixed by reference to the service of the notice of appeal, see Order 59 Rule 4(1).  

94.  Due to the absence of the Mother from Hong Kong, service has to be effected outside the jurisdiction.  Further, service in Mainland China has to be effected in accordance with Order 11 Rule 5A, see Deutsche Bank AG v Zhang Hong Li [2016] 3 HKLRD 303.  

95.  In view of the time required for such service, the Court had granted an extension of time for the service of the Notice of Appeal.  Eventually, through the assistance of the Mainland judicial authorities, service was duly effected on the Mother on 9 March 2017.  

96.  There are more and more appeals involving Mainland parties.  On several occasions, we have to deal with appeals in which the Mainland parties may not have been properly served in accordance with Order 11 Rule 5A.  If such party actually appears at the appeal, it can be said that the irregularity has been waived.  However, for if the Mainland party does not appear, it would be a problem. 

97.  In a recent consultation concerning the rules relating to appeal, the Law Society proposed that Order 59 Rule 4 be amended so that the time for appeal is to be reckoned by reference to the filing of the Notice of Appeal with the Appeal Registry instead of the service of the Notice of Appeal.  We hope such proposal could reach fruition in the foreseeable future.

98.  The present case also demonstrates the importance of a careful formulation of the request for assistance on service in the Mainland.  In Deutsche Bank AG v Zhang Hong Li, supra, Kwan JA alluded to various modes of substituted service in the Mainland at [59] to [70].  In cases where a Mainland party cannot be found at his last known address, these options should be explored.

Disposition

99.  We allow the Father’s appeal, set aside the 15.10.15 Order, and make the following orders:

(i) The Father shall within 14 days from the handing down of this judgment undertake in writing to this Court that if the Mother shall decide to come to Hong Kong to contest the custody of the Child, he shall make provision for her reasonable accommodation in Hong Kong. 

(ii) Subject to the giving of the undertaking stated in (i) above, the Father is granted the custody, care and control of the Child, with reasonable access to the Mother;

(iii) Within 28 days from being served with this Order, the Mother shall deliver the Child to the care of the Father for the Father to bring the Child back to Hong Kong;

(iv) The Father shall within 7 days from the Child returning to Hong Kong inform the Family Court in writing of the return of the Child, and apply to the Family Court for further directions on the arrangement of the Child; and

(v) There is liberty to apply. 

100.  We make no order as to costs of this appeal.