CWY v. EFO

FCMC 8316 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 8316 OF 2011

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J U D G M E N T
(Removal)

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The Application

1.  This is the application by the Respondent Father (“the Father”) by way of a Notice of Application for Leave to Remove Child from the Jurisdiction dated 31 August 2012 (“the Application”).  The Father seeks leave to remove the younger child of the family back to his home country, namely, Nigeria, for holiday and to visit his family for the period from 31 December 2012 to 31 January 2013.  The Father also filed the prescribed form of Undertaking to return the younger child to Hong Kong after the trip.

2.  The Application was initially scheduled for hearing on 27 September 2012 which was adjourned and re-fixed to 28 November 2012 due to a stay of proceedings for the Father’s application for legal aid.  The Father was subsequently granted legal aid for this application.  The Mother had earlier on already obtained legal aid to oppose this application.

3.  Due to the stay of proceedings resulting from the Father’s legal aid application, the Father now seeks leave to remove the younger child from Hong Kong for a period of 3 weeks from 8 February 2013 onwards.

4.  At the first hearing on 28 November 2012, leave was granted for the Father to file and serve supplemental supporting Affirmation and the Mother to file and serve supplemental Affirmation in opposition.  The Father was allowed to file and serve an Affirmation in Reply (if any).

Background

5.  The Father is of Nigerian nationality.  The Mother is a Hong Kong citizen.

6.  The Decree Nisi was granted on 16 September 2011 whereby the parties’ marriage was dissolved.  The Decree Absolute was granted on 28 July 2012. 

7.  By an Order dated 3 April 2012, the Petitioner Mother (“the Mother”) was granted the custody, care and control of the 2 children of the family, namely, the elder daughter “J” now aged 8 and the younger son “A” now aged 4 with the usual removal restrictions.  The Father was granted reasonable access to the 2 children.

8.  At the time of this application, the Father is still receiving comprehensive social security assistance (“CSSA”) and the Mother is a full time working mother. 

Father’s reasons for the application

9.  The reasons provided by the Father are simple and straightforward.  His father (that is, the paternal grandfather of the child) is now around 75 years old and had never seen the 2 children of the family.  Moreover, his whole family is in Nigeria.  Two of his sisters and three of his brothers are married with children.  Thus, he believed the younger son A would have a good time with his family and his cousins.  There is also nothing to worry about regarding the care of A since there are family members around.

10.  Since he could not afford to take both children back at one time, he wished to take the younger son A back first.  The air tickets for himself and A costs around HK$10,000 to HK$12,000.  He managed to obtain a loan from one of his friends and produced as exhibit “EFO-1” a note-paper of one “R Group Limited” stating the following :

“I Mr. A______ gave to my friend Mr. OE the sum of 2,000

(USD) dollars. For helping him to solve his financial

problems. Tel : 861xxxxxxx226.”

11.  The younger child A had started his kindergarten at KG2 level since September 2012.  The Father in his Affirmation said he had checked with the kindergarten and was informed that few weeks absence for the newly scheduled trip in February 2013 would not affect A’s education.  It is noted there are no school holidays after the Lunar New Year holidays which end on 13 February 2013. 

Mother’s reasons for opposition

12.  The grounds of opposition set out in the Mother’s Affirmation of 20 November 2012 can be summarised as follows :-

(a)     The Father was not very close to the 2 children during subsistence of marriage.  After conclusion of the divorce proceedings, the Father hardly exercised right of access to any one of the 2 children, namely, J and A (at paragraph 5);

(b)     Throughout the marriage, the Father had never made any attempt to bring either one of the 2 children back to Nigeria with or without the Mother accompanying (at paragraph 6);

(c)     The paternal grandfather had difficulty in walking.  The paternal grandmother had passed away.  Apart from the Father himself, no one would be looking after A. There are concerns for A’s personal welfare and safety and also worries of the Father not returning A to Hong Kong after the trip (at paragraph 7);

(d)    The trip would disrupt A’s school attendance (at paragraph 8).

13.  In addition to the above, there are also allegations in the Mother’s Affirmation against the Father that, being a recipient of CSSA and not been ordered to pay maintenance for the 2 children, would have the means for the trip which is not a necessity but a luxury.  The Mother believes there are hidden source of income of the Father.   

14.  The Mother in her supplemental Affirmation also raised the worry and concern that the Father would, to her disagreement, have the younger child circumcised.  The Father had indicated such intention during the marriage.

15.  The Mother obtained leave from this Court to issue a subpoena to the Principal of the kindergarten which A is studying to give evidence at the adjourned hearing.

16.  Both parties had testified in Court confirming the veracities of their respective affirmations. 

17.  Miss Tam for the Wife also drew the Court’s attention that the Father had initially sought for custody, care and control of the children.  It was only after the social investigation report was obtained then the Father conceded to the Wife having custody, care and control. It was, however, only about few months later that the Father came up with the removal application. 

18.  Besides, it was also submitted the Father’s present place of residence, being a public housing unit under the Wife’s name, might have to be returned to the Housing Authority.  The Father might have to move elsewhere but this would only happen if he could be provided with some other arrangement by the Housing Authority.

Issues

19.  Given the fact the present application is a temporary removal, I believe the issues to be determined are as follows :-

(a) Whether it is in A’s best interest to take the trip ?

(b) If the answer is in the affirmative, whether there is a chance or likelihood that the Father would not return the child to Hong Kong despite his Undertaking given to the Court ?

(c) In the event that the child was not returned by the Father, what remedies would be available to the Mother ?

The proper approach

20.  In all cases of removal of children, the parent bringing the child would have to submit a written undertaking to the Court for the child’s return; be it a temporary trip or otherwise, and also whenever it was required by the Court.  There is no difference for cases where the other parent consents to the removal.  The aim and objective of the undertaking is obvious and any breach is contempt of the Court with serious consequences. 

21.  It is always at the discretion of the Court whether or not to grant leave for the removal.  Such discretion would be exercised on a case by case basis after considering all the relevant circumstances giving rise to the application and grounds of opposition with the interest of the child being the first and paramount consideration.  There is no exhaustive list of factors which the Court is bound to look into.  In my view, the Court is entitled to consider any factors which are of relevance and material irrespective of whether those factors had been raised by the opposing parent. 

Discussion

22.  At the hearing, I have raised 2 questions with the Father which I consider of relevance and importance in considering my discretion.

23.  The first question asked upon him were the factors that he had considered in deciding which child to bring, the elder daughter or the younger son, to see his family in Nigeria given the fact that he could not afford taking both of them together.     

23. The Father was then asked when he communicated with the younger child in English, what language did the child use to reply him ?

24.  The Father was unable to provide a satisfactory answer to the first question except by saying that the paternal grandfather knew he had 2 children and would very much like to see them both.  But for his limited means, he would be bringing both of them.  This is, in my view, not a satisfactory answer if not evading the question.   I do not believe the Father simply decide by drawing lots or cards whether the elder or younger child to be the one to go first.   There must be a reason behind such selection which was not forthcoming in the Father’s answers.

25.  As to my second question, the Father confirmed the child would answer him correctly in Cantonese.  He said the child is a smart boy and would know what he was saying to him.  I find the Father’s answer unbelievable.  Having had the benefit of listening to the Father’s English accent in Court, I believe it is not easy for a child of 4 (who has just started kindergarten for a few months) to be able to understand what he said.  I also find it hard to believe the Father in reciprocity understands the child’s answers. 

26.  The Father, in his oral evidence or affirmations, had not been able to show why there is a need to bring the child to Nigeria in the middle of his studies.  I do not see any real urgency.  The original planned trip had also been delayed due to his own legal aid application.  The mere fact of his paternal grandfather being of old age wishing to see the grandchildren would not justify a disruption of studies, be it in the kindergarten or tertiary education. 

27.  I also noted nowhere in any of the Father’s Affirmation had he, who would have the benefit of full legal advice, stated his father’s address and contact numbers in Nigeria.  It was only when being cross examined by Miss Tam for the Wife that the Father disclosed it.  However, I noticed the Father had to ‘copy’ the address from his mobile.  There is no evidence that the address so disclosed is a correct address.     

28.  The child A is under the care of Po Leung Kuk.  That being the case, any application for leave of absence has to come from the Social Welfare Officer in charge.  This was confirmed by the evidence of the Principal of the Kindergarten.  Moreover, the Principal also confirmed that nobody had contacted them in respect of A’s planned leave of absence.  In respect of programme of studies, the Principal testified they have designated and extensive curriculum even for their kindergarten students.  I believe in her evidence.

29.  I am minded to also consider the fact that the child is only at the age of 4 who had never been to Nigeria would have any interest in taking the trip.  Besides, there is also the language barrier. 

30.  Taking all the circumstances into consideration, I am not convinced that it is in A’s best interest for taking the trip to Nigeria.  I dismissed the Father’s application.

31.  Had I been wrong in finding it is not in A’s best interest to take the trip, I still believe there is a high probability of the Father not returning the child to Hong Kong.  First, the Father has not been employed and is receiving social security assistance of only $800 to $900 after rent.  It might be that he could not secure a job here in Hong Kong and have to look to his home country for job opportunities.  Despite of what he said in Court, I do not believe he has any business plan as he was not able to show by evidence any solid business proposals.  He was making bare allegation only.  Secondly, the flat which he is now residing is under the name of the Mother.  He only made bare allegation that he was not required to move out but without further documents to prove it such as change of tenant’s name.   Thirdly, all his family members are in Nigeria and he has no ties or link with Hong Kong.  Although he mentioned he had a company incorporated in Hong Kong but it had not been in business for some time.      

32.  On balance, I believe the chance or likelihood of the Father not returning the child is more than average.  That being the case, the balance tilts in favour of the Mother.

33.  Both parties rightly conceded that Nigeria is not a member of the Hague Convention.  I am not convinced by the Father that he has every reason to return to Hong Kong as he still has a daughter here.   Reason being that the Father is unable to tell the factors upon which he decided to take the younger son this time and not the elder daughter. 

Conclusion

34.  The Father’s application is dismissed. 

Orders

35.  I now make the following Orders :-

(a) The Respondent’s (Father’s) application be dismissed;

(b) There be no Order as to costs;

(c) Both parties’ own costs be taxed in accordance with Legal Aid Regulations.