YYW v. HWW

HCMP 409/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 409 OF 2017

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J U D G M E N T

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Introduction

1.  This is an application for the return of two children (“Children”) to the Republic of Korea (“Korea”) under the Child Abduction and Custody Ordinance Cap 512, which incorporates most of the articles of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“Convention”).

2.  The application was initially made by the Secretary of Justice in his capacity as the Central Authority (“HKSoJ”) pursuant to a request by the 2^nd defendant who is the father of the Children (“Father”) made through the Ministry of Justice /Central Authority of Korea (“Korean MoJ”).

3.  By consent on 17 March 2017, this court granted leave for HKSoJ to withdraw from these proceedings and for the Father to become the plaintiff in substitution, and further leave was granted for HKSoJ to remain as an observer.  The mother of the two children (“Mother”) thus remains the only defendant.

4.  6 April 2017 was the date initially fixed for substantive argument on the Father’s application for return (“1^st Hearing”).  However, prior to the 1^st Hearing, the Mother took out 3 summonses, namely:

(i) A summons on 28 March 2017, for an anti-sui injunction, and this summons was at the 1^st Hearing adjourned sine die with liberty to restore upon the parties undertaking not to take further steps in the Korean Divorce Proceedings as referred to later in this judgment[1].

(ii) A summons on 3 April 2017, to expunge the Father’s affirmation on the ground that it was not properly affirmed in accordance with the Oath and Declaration Ordinance as the Father had made the affirmation before his lawyers in Korea.  As the Father had properly affirmed his affirmation upon his arrival in Hong Kong, no order was made in relation to that summons.

(iii) A summons on 5 April 2017, for leave to adduce 2 psychologist reports, one for each of the Children (“Reports”).

5.  This court granted leave at the 1^st Hearing for the Mother to adduce the Reports.  At the 1^st Hearing, this court had invited the parties to make proposals and submissions on “protective measures” in light of certain concerns of the Mother in the event of a return order being made (“Protective Measures”).  This court also had certain queries of its own and the HKSoJ was requested to make further enquiries from the Korean MoJ including the following:

(i) Whether undertakings proposed by the Father will be recognized by the Korean Court;

(ii) Whether legal aid is available for the Mother for her to issue or to defend proceedings in Korea in the event of a return order is made;

(iii) Whether any mirror order reflecting the terms of this court’s order can be made by the Korean Court and the time it will take;

(iv) How soon will the Korean Court be able to determine any maintenance application by the Mother in the event of a return order being made.

6.  In light of the above enquiries, and in light of the intervening Easter holidays, the Father’s application was adjourned to 24 April 2017 (“2^nd Hearing”).

7.  Shortly prior to the 2^nd Hearing, the Mother’s mother (“Maternal Grandmother”) stepped into the arena.  She applied for legal aid on behalf of the Children for them to be separately represented by the Maternal Grandmother as guardian ad litem and to be joined as parties in these proceedings.  Counsel Mr Neal Clough was assigned to represent the Maternal Grandmother on behalf of the Children and turned up at the 2^nd Hearing, even though no proper summons had yet been issued on behalf of the Maternal Grandmother.

8.  The Father opposed any application for the Children to be separately represented by the Maternal Grandmother and/or made parties to these proceedings.  Upon being directed to the provisions of the Practice Direction PDSL 6 – Guidance on Separate Representation for Children in Matrimonial and Family Proceedings, in particular to paragraph 14 thereof, which provides that the court is to take into account whether other alternatives have been explored, the parties then agreed that a social welfare officer (“SWO”) should be directed to interview the Children first. 

9.  As a result, this court called for an urgent social welfare report and directed the Children be interviewed to ascertain whether they have attained an age and degree of majority at which it would be appropriate for this court to take into account of their views and that whether they have any objection to returning to Korea.  This court had listed out the matters the SWO was to report on, and a report was subsequently submitted on 5 May 2017.  The hearing had to be adjourned again to 8 May 2017 (“3^rd Hearing”).

10.  Thereafter, the Maternal Grandmother did not pursue with her intended application to represent the Children or for the Children to be separately represented.

11.  Throughout the hearings, Counsel Ms Karen WL Wong appeared for the Father and Counsel Mr Andy Hung appeared for the Mother, and Government Counsel, Ms Osa Chan Wing Yan (“Ms Chan”) appeared for HKSoJ, as observer.

Brief Background

12.  The Father is of Korean nationality and the Mother is a Hong Kong Chinese.  They are now both about 38 years of age.

13.  The parties met each other in 2004 in Canada when attending an English language course.  They were married in October 2006 in Hong Kong.  The marriage was later registered in Korea.

14.  After their marriage in Hong Kong, the parties lived together in Hong Kong and the Mother was working as a clerk in a kindergarten.  According to the Mother, after the Father failed to secure a job for 7 months, he decided to return to Korea in February 2007 in order to work in his parents’ textile factory and he said the Mother went with him. According to the Mother, she only joined him at the end of May 2007.  

15.  The Mother did not work after she went to Korea and the parties were living with the Father’s parents at their house. 

16.  The Children were both born in Hong Kong.  The older child, a son, was born in June 2008 and will be 9 years old next month (“Son”). The younger child, a daughter, was born in July 2010 and will be 7 years old in July this year (“Daughter”).

17.  The parties gave different versions as to why the Mother came back to Hong Kong to give birth.  It was however not disputed that the Mother stayed in Hong Kong with the Maternal Grandmother for a postpartum period on each occasion before returning to Korea.  After the Son was born, the Mother and the Son remained in Hong Kong for about 3 months, from about June to September 2008.  The Mother then came to Hong Kong in January 2010 with the Son, when she was pregnant with the Daughter, and they remained in Hong Kong until after the Daughter was born, and all three returned to Korea in October 2010. 

18.  Thereafter, the Maternal Grandmother would visit the Mother and the Children regularly.

19.  The Mother said in around January 2013, when the Son was 5 years old and the Daughter was 3, the Father agreed to her moving with the Children to Hong Kong permanently for them to receive their education here. According to the Father, since 2013, the Maternal Grandmother had repeatedly asked him to allow her to take the Children back to Hong Kong and the Mother expressed strongly that she wanted to move back to Hong Kong and for the Children to be educated here, and the Father said eventually he agreed and allowed the Children to go to Hong Kong on 2 March 2013. 

20.  However, in May 2013, the Father’s father (“Paternal Grandfather”) was suddenly diagnosed with advanced pancreatic cancer.   The Mother and the Children returned to Korea to see the Paternal Grandfather on about 7 July 2013.  The Paternal Grandfather then unexpectedly passed away on 11 July 2013.  After the death of the Paternal Grandfather, as the Father told her that it was the Paternal Grandfather’s wish that the family should be together, the Mother decided to remain in Korea with the Children instead of returning to Hong Kong.  The parties then lived with the Father’s mother (“Paternal Grandmother”).

21.  The Maternal Grandmother had also come to Korea as the time of the death of the Paternal Grandfather to help the Mother take care of the Children.  Apparently, the Maternal Grandmother had stayed about 3 weeks on that occasion.

22.  The Mother has complained that the Father is exceedingly hot-tempered and impulsive person and that since the Maternal Grandmother’s 3 week stay in July 2013, the Father’s hostility towards her and the Maternal Grandmother had gone from bad to worse causing her great mental distress and psychological depression and that on several occasions, the Mother alleged that the Father had threatened to kill the Maternal Grandmother if she came to Korea.

23.  The Mother is her mother’s only child.  The Maternal Grandmother is a divorcee and the Mother and the Maternal Grandmother are very close.  It would appear that in about November 2013 or early 2014, the Mother had suggested to the Father to rent a place for the Maternal Grandmother to stay in Korea.

24.  According to the Mother, this led the Father to suspect that the Maternal Grandmother had some designs on the fortune of his parents and that since then, the Father began to use the subject to scold and abuse the Mother.

25.  The Father on the other hand had said he asked the Mother to wait for around 2 years so that he could take care of matters following the death of his father, but thereafter, the Mother had repeatedly brought up the subject and that she gradually became annoyed, and he became tired of it.

26.  The Mother alleged that on 5 February 2014, the Father returned home and dragged her to the 2^nd floor and locked them up inside the room, as he discovered that she had used the credit card which he gave her for buying grocery, to pay for the postage of a parcel that the Mother sent to the Maternal Grandmother in Hong Kong (“05.02.14 Incident”). According to the Mother, he demanded her to telephone the Maternal Grandmother on the spot and that he had yelled that the Mother could immediately take the Children to Hong Kong as the Maternal Grandmother was well able to support them.

27.  It was the Mother’s evidence that the day after the 05.02.14 Incident, the Father had demanded the Mother to hand to him her HKSAR passport as well as those of the Children’s, which the Mother did. However, later, the Mother found the passports on the desk, and that the Father had said to her if she wanted to go to Hong Kong, by all means.

28.  According to the Father, the Mother was preparing for a divorce from the end of 2013 and was trying to prevent him from having an intimate relationship with the Children.  The Father further said that the Mother demanded a divorce again and again during 2014, and she told him that if her mother could not come to live in Korea she would rather go to Hong Kong with the Children after the divorce.

29.  Since August 2015, the Paternal Grandmother moved to her newly purchased property and ceased living with the parties, but the Mother said the Father’s hostility of her intensified thereafter.

30.  The Mother had said on 15 September 2015, the Father had again through the Paternal Grandmother asked the Mother to hand over the passports of the Mother and the Children, which the Mother did.  The following day, the Father threw the passports back on the table and said he had originally decided to divorce but he had changed his mind after talking to the others.

31.  The Mother alleged violence on the part of the Father.  There appeared in particular two incidents when reports were made to the police:

(i) The 1^st incident was on or about 8 November 2015 (“08.11.15 Incident”).  The Mother alleged that the Father suddenly turned hostile and fiercely dragged the Children to his room and locked them inside and the Mother called the police. The Paternal Grandmother also came over.  After the police left, the Paternal Grandmother dragged the Son to a room and the Son was crying and saying he was afraid and when the Mother went to try and help the Son, she was blocked by the Father.  In the meantime, the Daughter was still hiding on the 2^nd floor.  The Paternal Grandmother and the Father then left the house and went outside for a while.  When they returned, the Father said if the Children wanted to go with the Mother to Hong Kong then he would allow them to go.  The Daughter indicated that she would go with the Mother to Hong Kong, and the Son also indicated that he would stay with the Mother.  However, the Father gave a different version as to what happened that day.  According to him, he was only playing hide-and-seek with the Children, and because the door was locked, the Mother called the police.  The Father said the police came and took no action, and left “ridiculed”.

(ii) The 2^nd incident took place on 7 February 2016 near the Lunar New Year (“07.02.16 Incident”).  The Paternal Grandmother and the Mother had an argument, and according to the Mother, the Paternal Grandmother then dragged her pullover and her hair and pushed her to the sitting room, and that the Father joined his mother and twisted the Mother’s arms and dragged her out of the house.  The Mother said it was winter in Korea at the time, and she was not wearing any shoes and overcoat.  The Mother said she called the police with the assistance of the neighbours.  With the assistance of the police, the Father and Paternal Grandmother then allowed her to go inside the house to take her clothes, and later on the Mother went to seek medical treatment, and made a formal report to the police on 8 February 2016.  The Mother had said that the Father was prosecuted.  The Father admitted that there was an argument and a tussle between his mother and the Mother, and that he had pulled the Mother’s arms and had asked the Mother to go out earlier as she was planning to visit her friend that day anyway.  He said the Mother’s allegation was false in that he was not prosecuted and that the Mother only produced a copy of an acknowledgment of a complaint by her to the police but not the full translated copy of the non-prosecution disposition.

32.  After the 07.02.16 Incident, the Mother did not return home.  The Mother said on 10 February 2016 (which the Father said was on 11 February 2016), the police accompanied her to go home and according to her the Father agreed to stay away at his mother’s place temporarily.  Notwithstanding this, the Mother said she could not sleep and was under constant fear that the Father would come home any time and would abuse her again.  In the meantime, the Maternal Grandmother had arrived in Korea and on 16 February 2016, the Mother said she and the Children went to stay at the hotel with the Maternal Grandmother until 18 February 2016. Thereafter, the Mother and the Children were accepted into an urgent temporary shelter for victims of domestic violence for 4 days between 19 to 22 February 2016.  They later moved to stay at the Seoul Counselling Centre for Migrant Women (“Multicultural Centre”), a shelter where they stayed for about a month, and as this was only temporary accommodation, she decided to go to Hong Kong with the Children.

33.  The Father gave a somewhat different version of events.  He said after the 07.02.16 Incident, the Mother returned home on 11 February 2016 accompanied by the police and a Chinese interpreter.  While the Paternal Grandmother was talking to the police, the Mother told the Father that she would dine out with the Children, and they left and then disappeared.  On 17 February 2016, the Mother sent him an email to say that she and the Children would be with her mother. 

34.  Then on 24 February 2016, the Mother sent another email to say that the Children did not want to come home as they were scared of the Father, and she wanted a divorce and custody of the Children. The Father did not respond until 2 March 2016.  The Father said as that day was the opening ceremony for the children’s school, he thought the Mother would bring the Children to school.  When the Children did not appear at school, he was angry and shocked.  In his email of 2 March 2016, he told the Mother that he did not want a divorce and wanted to keep his family.  The Father sent another long email to the Mother on 3 March 2016.  There was no response from the Mother.

35.  On 4 March 2016, the Father made a report to the police regarding the Children’s disappearance, and the following day, he was told that the Mother was in the Multicultural Centre.

36.  The Father said he then tried to see the Children at the Multicultural Centre but failed, and then later he discovered that on 26 March 2016, the Mother took the Children to Hong Kong (“Removal”).

37.  I will consider later in detail as to what actions were taken by the Father after the Removal.  Suffice to say at this stage, on 7 June 2016, the Mother petitioned for divorce in Hong Kong (FCMC 6931 of 2016) (“HK Divorce Proceedings”).  Later on 11 August 2016, the Father filed his divorce petition in Korea[2] (“Korean Divorce Proceedings”).

38.  The Father said he only received advice in October 2017 that he could make an application under the Convention.  On 31 October 2017 he submitted an application through the Korean MoJ. 

39.  These proceedings were eventually only filed on 23 February 2017.

The Issues

40.  Ms Wong has set out in her skeleton submissions the issues before this court.  To summarise, the issues were:

(a) Whether the Removal was wrongful, which in turn depends on:

(i) Whether the Father held “rights of custody” of the Children;

(ii) Whether the Children were habitual residents of Korea immediately before the Removal;

(iii) Whether the rights of custody were actually exercised at the time of Removal.

(b) Whether the Father had subsequently acquiesced in the Removal;

(c) Whether there is a grave risk that the return of the Children would expose them to physical or psychological harm or otherwise place them in an intolerable situation; and

(d) If so, whether there will be Protective Measures for the Children’s safe return.

41.  To the above, I would only add that although it was not made clear by Mr Hung in his 1^st skeleton submissions, the Mother was also relying on Article 13 (2), namely that the Children object to returning to Korea.

Rights of Custody

42.  Article 3 of the Convention states that:

“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.  Article 5 of the Convention then sets out the meaning of “rights of custody” and “rights of access”: -

“For the purposes of this Convention-

(a) ‘rights of custody’ shall include 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.  The Father had produced a copy of a letter dated 18 November 2016 from his lawyer Mr Yang So Young of his present law firm Sung-In (“Sung-In”)[3], containing Mr Yang’s legal opinion as to the Father’s rights under the Civil Act of Korea.  The Father had also produced a “Certificate of Expertise Registration “dated 5 December 2011 issued by the President of the Korean Bar Association, certifying that Mr Yang was a person registered <Domestic Litigation> as an expertise area under deliberation of Screening Committee for Expertise Registration of Korean Bar Association.

45.  According to Mr Yang’s legal opinion, under Article 909 of the Civil Act, a parent becomes the person having the parental authority of a minor child and further while parents are under marriage, the parents shall jointly exercise their parental authority[4], and further under Article 913, the person having parental authority has rights and obligations to protect and have the custody of the child[5]. Thus, Mr Yang was of the opinion that the Father is a person who has parental authority and custody of the Children.

46.  Further, Article 914 stipulates that a child shall reside at the place where a person having the parental authority of the child designated.  Thus, Mr Yang was of the view that the Father being a person having the parental authority of the Children had a right to designate the place where the Children should stay at the time when they were abducted.

47.  The Mother did not produce any expert report to contradict the legal opinion from Mr Yang.  I am satisfied that according to the law in Korea, the Father had rights of custody of the Children at the time of removal. 

48.  The evidence of the Father indicated that he had exercised his rights of custody prior to the Children were removed by the Mother from their home. The Father’s evidence included that he had taken care of the Children by taking them to and from school and tutor center by school bus, and teaching them homework, playing soccer with the Son and read story books to the Daughter.  He had also attended school events of the Children, and paid for family trips.  This was also reflected in the Reports[6].

49.  In any event, after the Mother left home on 7 February 2016, the Children were in the care of the Father until 11 February 2016, when the Mother took them away and failed to return home prior to the Removal.  There was a gap of some 6 weeks between the Children being removed from their home and the actual Removal.  The Father’s evidence was that he had tried to go to the Multicultural Centre to see the Children and had repeatedly called to request seeing the Children but failed. 

50.  Having considered the above circumstances, I am satisfied that the Father would have exercised his custody rights but for the Removal.

Habitual Residence

51.  The principles on habitual residence under the Convention have been set out by the Court of Appeal in LCYP v JEK [2015] 4 HKLRD 798 as follows[7]:

“(1) Habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce (In re L (A child) paragraph 20);

(2) The factual question is : has the residence of a particular person in a particular place acquired the necessary degree of stability (permanent is the word used in the English versions of the two CJEU judgments) to become habitual? It is not a matter of intention: one does not acquire a habitual residence merely by intending to do so; nor does one fail to acquire one merely by not intending to do so (In re LC (Children) paragraph 59);

(3) The concept corresponds to the place which reflects some degree of integration by the child in a social and family environment (In re L (A child) paragraph 20);

(4) The question is the quality of the child’s residence, in which all sorts of factors may be relevant. Some of these are objective: how long is he there, what are his living conditions while there, is he at school or at work, and so on? But subjective factors are also relevant: what is the reason for his being there, and what is his perception about being there? (In re LC (Children) paragraph 60);

(5) There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents (In re L (A child) paragraph 21); and

(6) Although a child could lose his habitual residence without a parent’s consent, nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child’s leaving one country and going to stay in another.  This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence (In re L (A child) paragraph 23).”

52.  Mr Hung submitted that if one were to go through the “check list” in LCYP v JEK, the outcome would be in favour of the Mother in that:

(i) Even before the Mother and the Children left Korea in March 2016, the parties had discussed about the divorce and the Mother would take the Children to Hong Kong;

(ii) The Father was vacillating only because he was concerned over the claim for maintenance by the Mother for herself and for the Children;

(iii) After the 07.02.16 Incident, the Mother and Children left home and moved to the Multicultural Centre, and the Mother discussed with the Children and they decided to go to Hong Kong;

(iv) The Children were born in Hong Kong and held HKSAR passports;

(v) Before March 2016, the habitual residence of the Children was no longer Korea;

(vi) It took time for the Children to make Hong Kong as their habitual residence and hence in the meantime upon their departure from Korea they had no habitual residence neither here nor there.

53.  I find it difficult to follow Mr Hung’s arguments that prior to the Removal, the Children had lost their habitual residence in Korea.  In my view, such arguments were misconceived.

54.  I accept that prior to the Removal, the Children had stayed in Hong Kong over various periods of time, as follows:

(i) The Son – from birth in June 2008 to September 2008; and from January 2010 to October 2010 during which period he had attended a kindergarten

(ii) The Daughter – from birth in July 2010 to October 2010

(iii) The Children from March to July 2013 during which period they attended kindergarten

55.  To summarise, prior to the Removal, the Son had stayed in Hong Kong for 3 periods totaling about 19 months, and the Daughter for 2 periods totaling about 9 months. However, apart from the period of March to July 2013, there was no sufficient evidence that prior to that period, the Mother had formed any intention to move back to settle in Hong Kong with the Children.

56.  It was not disputed that the Father did agree to the Children moving to Hong Kong in March 2013 to receive education.  However, what was also not disputed was that after the passing away of the Paternal Grandfather on 11 July 2013, the Mother agreed to move back to Korea with the Children.

57.  The evidence showed that after 11 July 2013, and prior to the Removal, the Children had settled back in Korea for some 2 years and 8 months and they been enrolled into schools in Korea.  In particular, the Son had started to attend primary 1.   

58.  In my view, the Children’s habitual residence immediately prior to the Removal was clearly Korea.

Whether the Removal wrongful

59.  In light of the above, in my view, the Removal by the Mother was wrongful under Article 3 of the Convention.

The Mother’s defences under Article 13 (1) (b)

60.  Article 13 (1) (b) of the Convention states that:

“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.”

61.  As set out in Mr Hung’s 1^st skeleton submissions, the Mother’s main contentions under Article 13(1)(b) were at that time[8] :

(i) The Father had acquiesced in the retention of the Children by the Mother;

(ii) Further or alternatively, there is a grave risk that the return of the Children would expose them to psychological harm or otherwise place them in an intolerable situation.

62.  It turned out that the Mother also relied on the Children’s objections to return.

Acquiescence

63.  It has been held by the then House of Lords in In re H, and Others (Minors) (Abduction: Acquiescence) (HL) [1998] AC 72 that, amongst other things, that[9] :

(i) English law concepts of acquiescence had no direct application to the construction of article 13 of the Convention;

(ii) Acquiescence under article 13(a) was a matter of the actual subjective intent of the wronged parents, save only where his words or actions clearly showed, and had led the other parent to believe, that he was not asserting or going to assert his right to summary return and were inconsistent with such return; and

(iii) Acquiescence was a question of fact, the burden of proof being on the abducting parent, but that judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or to reach an agreed voluntary return of the abducted child.

64.  Cheung JA had also in the Hong Kong Court of Appeal case of M and E, CACV 75 of 2015, unreported Reasons for Judgment, dated 5 June 2015, quoted the following passage of Lord Borwne-Wilkinson in In re H[10]:

“In my judgment, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with the wrongful abduction. Acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world’s perception of his intentions.”

65.  In M and E, Cheung JA had further referred to In Re L [2004] 1 HKLRD 655, where Hartmann J (as he then was) held :

“37. While the Convention in its language emphasises the need for prompt action, it does not demand that a parent must act immediately and through formal channels. See, for example, H v H [1995] 13 FRNZ 498, a decision of the High Court of New Zealand …”

66.  Mr Hung’s submissions were :

(i) The Father knew the address of the Maternal Grandmother as he had instructed HKSoJ to serve documents on the Mother at that address;

(ii) The Father had been living there for over 7 months after marriage;

(iii) The Father had the details of the Mother’s HSBC account and yet did not pay or remit a single cent in the past 13 months;

(iv) The Father had the Mother’s email address and after early March 2016, he sent no emails to the Mother.

67.  Thus, Mr Hung’s submissions on acquiescence were based on:

(i) The Father knew the Mother and the Children were in Hong Kong after the Removal and had means of contacting them;

(ii) The Father had failed to take any steps even after he was served with the Hong Kong Divorce Proceedings in June 2016;

(iii) The Father had failed to take any steps to challenge the jurisdiction of the Hong Kong Divorce Proceedings or any of the orders sought therein by the Mother;

(iv) Even though he issued the Korean Divorce Proceedings in August 2016, he did not notify the Mother, and the documents were only served on the Mother on 6 March 2017, after the issue of the present proceedings.

Prior to the Removal

68.  It would appear that the conflict between the parties arose not long after the death of the Paternal Grandfather in July 2013.

69.  The Mother’s evidence was that between July 2013 and February 2016, the Father had repeatedly said to her and the Children that they should go back to Hong Kong and then he wanted to sever his relationship with them, and that the Mother said she believed that it was only because of the uncertainty of the legal consequences that the Father kept changing his mind[11]. What the Mother meant about the uncertainty of the legal consequences was in relation to any financial claims which might be made by her.

70.  On the other hand, the Father accused the Mother preparing for a divorce from end of 2013.

71.  In particular, the Mother’s evidence was in particular since around August 2015, the Father did not return to sleep at the same house as the Mother and the Children between Fridays and Sundays, and that that he had repeatedly told them to return to Hong Kong and he would not pay any maintenance to them, and that he had intended to find another woman and to set up a new family and that he wanted to do so as he was young and got the fortune. 

72.  As mentioned earlier, after the 08.11.15 Incident, the Father had said if the Children wanted to go with the Mother to Hong Kong, he would allow them to go, and according to the Mother, the Children indicated that they both wanted to be with her, upon hearing this, the Father then said to the Mother if she returned to Hong Kong, she might claim maintenance against him, and that he needed her to confirm she would give up such right.  The Father had indicated then that he would arrange his lawyers to prepare documents for her to sign.

73.  The Father had produced an email sent by the Mother on 21 December 2015 and produced by the Father[12], and it would appear that the Mother had attached a copy of a divorce agreement, one in Chinese and one in Korean, and had asked the Father to check it and to reply as soon as possible.  The copy of the divorce agreement referred to in that email was however not produced to this court by either party. 

74.  It was the Mother’s case that by February 2016, the Father on one part, and the Mother and the Children on the other, were basically living separately in the same house.

75.  Thus, by the time of the 07.02.16 Incident, it would appear that the parties’ marriage was already on the rocks, and that the incident was the last straw for the Mother.

76.  As mentioned earlier, there were a number of email exchanges between the parties prior to the Removal.  From the email of 17 February 2016 sent by the Father, it would appear that the Father thought the Mother had by then already gone to Hong Kong, but he had said in his 1^st affirmation that as 2 March 2016 was the opening ceremony for the Children’s school, he thought the Mother would bring the Children back to school and he had gone to the school to find the Children.

77.  On 24 February 2016, as mentioned earlier, the Mother had sent an email to the Father indicating that the Children were scared to go home and suggested the parties discuss divorce matters, indicating that she did not need any alimony from the Father but only the guardianship of the Children.

78.  Anyway, as mentioned earlier, when the Father found that the Mother had not taken the Children to school, he had sent the Mother an email on 2 March 2016 and a longer one on 3 March 2016.  He denied ever using violence towards the Mother of the Children during the 10 years of their marriage and, among other things, indicated that they should go home, and that they should not be scared of going home, as he was staying at his mother’s home.  In his long email, the Father was also begging the Mother to send the Children to school and indicated that he wanted to keep his family together. 

79.  On 4 March 2016, after he discovered that the Children still had not gone back to school, he made a report to the police in relation to the Children being missing.  The police then informed the Father that the Mother and the Children were at the Multicultural Centre.

80.  It was only on 12 March 2016 that the Mother replied to the Father’s emails.  It was the Mother’s case that the emails sent by the Father on 2 and 3 March 2016 were not written by him, and were written for self-serving purpose, and in particular, after sending those emails, he made a report to the police on 4 March 2016. 

81.  In her email, the Mother had complained that the Father never liked the Maternal Grandmother and that he had tried to sever any relationship the Maternal Grandmother between the Mother and the Children.  The Mother had also complained that the Father showed no concern towards the Children and that they needed understanding, care and love, and yet often over minor matters, the Father would shout at them and that he and the Paternal Grandmother often said in the presence of the Children that they would sever relationship with the Children, and that when the Children chose to be with the Mother, the Father and the Paternal Grandmother had asked them to go back to Hong Kong[13]. Anyway, the Mother ended her email by saying that she and the Children would need time to calm down, and as the Father and the Paternal Grandmother had found out the whereabouts of the Mother and the Children from the authorities, they should be relieved.

82.  The Father replied the same day, denying all the allegations made by the Mother against him, and that what she said were lies. He denied pushing her and mentioned that the Mother had told him several times to let her and the Children go to Hong Kong, and he said if she really was to leave, she was to leave alone and that he would raise the Children, as it would be stressful for the Children to learn a new language in Hong Kong.  He then begged the Mother to make an effect to keep the family together for the Children. 

83.  The Father had said that after he was then informed by the police that the Mother and the Children were staying in the Multicultural Centre, he felt relieved as the Children had not left Korea.  As mentioned earlier, he said he had repeatedly tried to see the Children at the Multicultural Centre but without success. 

84.  He then said he later found out from the Multicultural Centre that the Maternal Grandmother had come to Korea, and he felt extremely worried, and went to the Immigration Office and found out that the Mother and the Children had left Korea on 26 March 2016.

85.  To summarise, the evidence showed that the parties were discussing a divorce as early as end of 2013.  The Mother’s position was that she would return to Hong Kong after the divorce, and her evidence was that the Children had indicated they wanted to be with her.  As mentioned earlier, on two occasions, for fear that the Mother would take the Children to Hong Kong, the Father had asked the Mother to hand over her passports and the Children’s passports but he had later returned them.

86.  The evidence thus showed that the Father had expected or anticipated the Mother might leave Korea and take the Children to Hong Kong.  However, he did not take any step to prevent the Removal after the Mother and the Children left home on 11 February 2016.  Notwithstanding this, in my view, there was no sufficient evidence of any clear consent on the part of the Father for the Mother to take the Children to Hong Kong prior to the Removal. 

87.  In any event, the Mother did not rely on the Father’s prior consent to the Removal.  Her case was that he had acquiesced after the Removal, for the Children to remain residing in Hong Kong.

After the Removal

88.  It was not quite clear as to when exactly the Father found out about the Removal.  Anyway, the Father had said after finding out about the Removal, he had thought of going to Hong Kong to find the Children directly.  He did not do so and gave the following reasons:

(i) He had no clue where the Mother and the Children were living.  He only had an old address of the Maternal Grandmother, which according to the knowledge of the Father, has been changed, and that he lost his bearings and did not know how and where to find the Children;

(ii) He has no connection in Hong Kong, and could only speak very simple English; and

(iii) He has to manage his textile factory closely and could not afford to stay in Hong Kong for a long period of time.

89.  However, the above reasons he gave had to be seen in the light of the following:

(i) Seoul is not that far from Hong Kong, only about 4 hours in flight time;

(ii) The Paternal Grandmother’s address was the address where he had informed the HKSoJ to serve all the documents herein, and also where he had lived with the Mother for 7 months after their marriage.

(iii) He and the Mother met when attending an English language course in Canada.

(iv) The Father had the Mother’s email address, and the Mother had said in her email of 18 February 2016 that she would check her email account all the time[14].

(v) Further, he has said in his 1^st affirmation that his work timetable is flexible since he is running his own business[15].

90.  Anyway, the Father did not try and contact the Mother, or go to Hong Kong to look for or to see the Children, or take any other immediate action.  The Father said he had sought legal advice on how to get the Children back and was told that he could file divorce proceedings in Korea to take the Children back to Korea.  Yet, there was no evidence that he had taken any immediate step to file any divorce proceedings in Korea.

91.  The Mother then issued the HK Divorce Proceedings. The documents which were served on the Father by double registered post included the following[16]:

(i) Divorce in Petition;

(ii) Petitioner’s Certificate as to Mediation;

(iii) Statement as to Arrangement for the Children;

(iv) Acknowledgment of Service Form;

(v) Respondent’s Certificate as to Mediation;

(vi) Leaflet on Family Mediation

(vii) Notice of First Appointment scheduled on 22 August 2016.

92.  The above documents were enclosed in a covering letter dated 6 June 2016 from the Mother’s solicitors, with details of contact address, telephone number, fax and email.  According to the Hong Kong Post Office, the Father received all the above documents on 15 June 2016.  The Father had admitted that he was served around the middle of June 2016.

93.  The Father said after he received the above court documents in the HK Divorce Proceedings, he went to consult lawyers in Korea. He was told that for the HK Divorce Proceedings, he needed to appoint a Hong Kong lawyer.  He said even if he hired a Hong Kong lawyer, there was no way for him to communicate sufficiently with the Hong Kong lawyer.

94.  Again, no immediate action was taken by the Father even after he was served with all the papers in the HK Divorce Proceedings.

95.  Then in July 2016, he consulted his present law firm Sung-In.  He told them that he had received the Mother’s divorce petition in the HK Divorce Proceedings, and that he wanted a divorce but needed to bring his children back to Korea and he wanted to obtain custody, care and control of the Children. According to the Father, he was advised by Sung-In that the Hong Kong court did not have jurisdiction over the divorce as under the Korean Law, the jurisdiction of a divorce suit must be the place where the parties last lived together or where the respondent, or the Father lives, which was Korea, and for the Children’s custody rights, if the Children’s habitual residence was in Korea, a foreign judgment would likely to be unaccepted in Korea.

96.  The Father said as he did not have a way to find a Hong Kong lawyer and that he thought that the Mother would come to Korea with the Children to respond to his petition in Korea, he then instructed Sung-In to file the Korean Divorce Proceedings on 11 August 2016. 

97.  He explained why the service of the Korean Divorce Proceedings on the Mother took a long time was because the service had to be conducted through the Korean authorities, as it was for service abroad of judicial documents, and indeed the Mother was only formally served with all the papers in the Korean Divorce Proceedings by the bailiff in Hong Kong on 6 March 2017 although she first learnt of the Korean Divorce Proceedings on 27 February 2017 upon being served with the papers in the present proceedings by HKSoJ[17].

98.  In the Korean Divorce Proceedings, the Father had stated that the Mother had taken the Children to Hong Kong without notifying the Father and had completely restricted contact between the Father and the Children and he had asked the Korean Court to grant him an order that the Children be handed to him.

99.  As set out earlier, the Father explained that he did not receive advice that he could make an application under the Convention until October 2017, and as soon as he found out, he submitted his application to the Korea MoJ on 31 October 2016.  

100.  After filing the said application, there were active correspondence between the HKSoJ and Korea MoJ[18].  The evidence from Ms Chan was that the HKSoJ received by email the Father’s application in Korean language from the Korea MoJ, and thereafter on various dates the received English and Chinese translations of the application and the supporting documents and by 20 December 2016, they had received all the documents.  It would appear that around 2 months were spent in translating documents from Korean to Chinese, and for taking further instructions from the Father.

101.  However, according to Ms Chan, all the documents were ready for filing by 20 December 2016, but the Father then instructed the HKSoJ not to initiate proceedings yet as he would like to attempt resolving the issues with the Mother by other amicable means.  Ms Chan said she then referred the Father to the International Social Services (Hong Kong Branch), but she was not informed whether the Father had contacted the Mother through the International Social Services or how the matter had proceeded.

102.  Thereafter on 12 January 2017, HKSoJ received a letter from the Father’s present solicitors indicating that the solicitors would initiate the proceedings under the Convention on behalf of the Father. Later, on 17 February 2017, Ms Chan received another letter from the Father’s solicitors requesting HKSoJ to initiate the present proceedings on behalf of the Father.

103.  The Father said it was through the help of a Korean lawyer and the Korea MoJ that he appointed his present solicitors on 12 January 2017, and that his solicitors then took some time to conduct research and to instruct a barrister for advice, and it was only after confirming the Father’s instructions on 17 February 2017 that the Father’s solicitors informed HKSoJ to initiate the present proceedings.

104.  What was clear from the Father’s evidence that he knew that Mother and the Children had left for Hong Kong on 26 March 2016 but he took no immediate action to attempt to bring back the Children.  By about middle of June 2016, he should know from the Statement of Arrangements of the Children filed in the HK Divorce Proceeding that they were residing and attending school in Hong Kong and that the Mother was claiming their custody, even though the exact address of where they were living or the school they were attending in Hong Kong were not known to him.  He had received legal advice that he should appoint a Hong Kong lawyer to conduct his case in the HK Divorce Proceedings and yet he chose not do to so.  The Father and the Mother met in Canada when they were studying English, and further according to the Mother, she and the Father communicated mostly in English although over the years she has acquired a reasonably good understanding of spoken Korea.  Even if the Father felt that his English or Chinese was not good to communicate with a Hong Kong lawyer, there was no reason why he could not have communicated with the Hong Kong lawyer through his Korean lawyer.  In July 2016, he had already consulted his present firm Sung-In, and his lawyer Ms Jeon YoungJu (“Ms Jeon”) has made an affirmation indicating that she is well acquainted with the Korean, English and Chinese language.  In fact, Ms Jeon came to Hong Kong to attend the 1^st Hearing with the Father, and had attended subsequent hearings without the Father.

105.  Further, even if the Father did not know any lawyer in Hong Kong, he could have contacted the Korean Consulate in Hong Kong for assistance.  He could also have sought the assistance of his own lawyers Sung-In.  Yet, he took no steps to contact the Mother or her solicitors in Hong Kong, or the Family Court, to notifying that he objected to the Mother being granted custody and/or the Children residing in Hong Kong.

106.  The Father said he was advised that the Hong Kong court has no jurisdiction over his divorce.  However, in response to queries from HKDoJ, the Korean MoJ has said that the Mother will be able to request the Korean Court for approval of her final judgment concerning divorce granted by the Hong Kong Court under Article 217 of the Civil Procedure Act subject to the requirements under Article 217.  This was further confirmed by Ms Jeon. There was no sufficient evidence to support what the Father had said.  In any event, the Father never took any step to challenge the jurisdiction of the Hong Kong Court in the HK Divorce Proceedings, not even after he had instructed solicitors in Hong Kong. 

107.  According to the Mother, her solicitors had in fact written to the Father again on 1 August 2016 reminding him of the First Appointment and the filing of the financial statement.  Also, on 10 August 2016, the Mother’s solicitors again sent to the Father the bundle of documents filed on behalf of the Mother for the First Appointment. 

108.  There was no reasonable explanation by the Father as to why he kept on ignoring the HK Divorce Proceedings.

109.  There was no evidence that he or his lawyers in Korea had notified the Family Court or the Mother, or the Mother’s solicitors about the Korean Divorce Proceedings.  Even though formal service had not been effected, there was no reason why no notification was even given to the Mother or her solicitors in Hong Kong, or the Family Court of Hong Kong.

110.  Notwithstanding what was said by Ms Chan as to why she was told to withhold from filing these proceedings on 20 December 2016, there was no evidence of any attempt by the Father to contact the Mother to resolve the matter with the Mother prior to the issue of there proceedings. There was also no satisfactory explanation from the Father why he had instructed the HKSoJ to withhold issuing the present proceedings on 20 December 2016.

111.  It had been said in In re H that acquiescence could not be inferred simply from the wronged parent having concurred in a temporary arrangement with a view to arriving at an amicable solution and that the court would look to the actual intention of the parent.

112.  However, in the present case, there was no evidence that the Father’s silence after the Removal or non participation in the HK Divorce Proceedings was due to any discussion of an amicable solution.

113.  The notice of the Decree Nisi hearing on 5 January 2017 of the Mother’s divorce petition should have been sent to the Father by the Family Court Registry.  In any event, there was no evidence as to why the Father would not have knowledge of the notice of the hearing on 5 January 2017 or that the hearing was for the granting of a divorce including the Mother’s application for custody and nominal maintenance.

114.  The evidence showed that the Father only instructed solicitors in Hong Kong after the Decree Nisi of divorce and custody had been granted to the Mother on 5 January 2017.  Further, notwithstanding instructing solicitors on 12 January 2017, his solicitors only filed an acknowledgment of service on his behalf around 21 February 2017.

115.  There was no reasonable explanation as to why his solicitors would require some 5 weeks to conduct research, nor was it clear what research was required.

116.  Even if it was true that it was only with the help of his solicitors in Hong Kong that he “became aware of the process of the divorce lawsuit”, as claimed by him, latest by the time the Father filed an acknowledgment of service, he or his solicitors should have known that a Decree Nisi of divorce and a custody order had already been granted.  Yet, no immediate action was taken by the Father, and the Decree was thus made absolute on 23 February 2017.

117.  In any event, in the acknowledgment of service, there was no indication that the Father was going to issue proceedings for return under the Convention, or to challenge the jurisdiction of Hong Kong over the divorce.  

118.  The Mother’s visa to Korea had expired on 4 October 2016.  The effect of the Decree Nisi being absolute means that the Mother is now no longer married to the Father under the Hong Kong law. According to the response from the Korean MoJ, if the Mother holds an F-6 status (being a foreign spouse of a Korean citizen), she can stay in Korea up to three years at a maximum, but if she is no longer entitled to a F-6 status, then she can apply for an ordinary visitor visa which will entitled her to stay in Korea up to 90 days, or she can apply for a G-1 status (any miscellaneous reason to stay in Korea), and if granted, she can stay in Korea up to one year maximum. 

119.  Anyway, the evidence before this court would indicate that the Father had intentionally chosen not to participate in the HK Divorce Proceedings and failed to inform the Mother or her solicitors about the Korean Divorce Proceedings.  There was in fact no sufficient evidence produced by the Father that by issuing the Korean Divorce Proceedings he would have been able to achieve the purpose of bringing the Children back to Korea.

120.  The Father had chosen to ignore the Mother by not contacting her at all, nor even to seek any contact with the Children, notwithstanding that he was fully aware of their presence in Hong Kong after the Removal.  

121.  Whatever the Father may now say was his subjective intent, having considered the particular circumstances of this case and the present evidence before this court, I am satisfied that so far as the Mother was concerned, the Father’s complete silence and non action would have led the Mother to believe that the Father had accepted and acquiesced in the Children residing and receiving education in Hong Kong, and that he was not asserting or going to assert his right to demand summary return of the Children. 

122.  It is my view that the Mother has made out her defence relying on the Father’s acquiescence.  In any event, I will also consider her other defences.

Article 13(1)(b)

123.  In M v E, CACV 75/2015, unreported, Reasons for Judgment dated 5 June 2015,  Cheung JA  summarized the principles  on the grave risk defence under Article 13(b) to be[19] :

“(1) The burden of proof lies on the party who opposes the return of the child. It is rarely appropriate to hear evidence on this issue.

(2) The risk to the child must be grave. It means the risk has reached such a serious level as to be considered grave. The word ‘grave’ is related to the risk rather than the harm itself, although ‘risk’ and ‘harm’ are often linked.

(3) The grave risk associated with return is either of the children’s physical or psychological harm which is unqualified or they would otherwise be put in an intolerable situation. The latter means a situation that the child should not reasonably be expected to tolerate or put up with, such as physical or psychological abuse or neglect of the child.

(4) This exception is concerned with the future when the child is returned to his home country.  At the same time one would expect protective measures for the child to be put in place by the Court of the child’s own country.”

124.  Cheung JA had also referred to the leading authority on Article 13 (b) defence is the UK Supreme Court decision in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144 where Baroness Hale and Lord Wilson JJSC had in their joint judgment laid down the general principles on Article 13(b).  A summary of the general principles laid down in Re E have also recently been set out in T v E (A Child) (Abduction: Refusal to Order Return) [2016] EWHC 3148 (Fam); [2017] 4 WLR 18, which are as follows:

“(i) There is no need for article 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of article 13 are quite plain and need no further elaboration or gloss.

(ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.

(iii) The risk to the child must be “grave”. It is not enough for the risk to be “real”. It must have reached such a level of seriousness that it can be characterised as “grave”. Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two.

(iv) The words “physical or psychological harm” are not qualified but do gain colour from the alternative “or otherwise” placed “in an intolerable situation”. “Intolerable” is a strong word, but when applied to a child must mean “a situation which this particular child in these particular circumstances should not be expected to tolerate”.

(v) Article 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child’s immediate future because the need for protection may persist.

(vi) Where the defence under article 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child’s situation would become intolerable the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled.”

125.  The Mother’s allegations in her 1^st affirmation and in her divorce petition consisted of :

(i) The Father was exceedingly hot-tempered, impulsive and hostile person who often used abusive language to scold the Mother causing her great mental distress and psychological depression;

(ii) Since the 3 week stay of the Maternal Grandmother in July 2013, on several occasions, the Father threatened to kill the Maternal Grandmother if she went to Korea;

(iii) The Father often found excuses to scold the Mother fiercely over trivial matters or threaten to kill her if she did not submit to his demands and all these occasions took place in front of the Children;

(iv) The Father was tyrannical and dictatorial, and whenever he lost his temper, even in front of the Children, he would bang on the table, throw metal chopsticks and objects on the floor or forced her violently to the wall;

(v) Then there was the 05.02.14 Incident;

(vi) The Father’s hostility towards the Mother intensified since the Paternal Grandmother moved to her newly purchased property in August 2015 and ceased living with the parties. 

(vii) The Mother also relied on the 08.11.15 Incident and the 07.02.16 Incident.

126.  In particular, the Mother had produced a medical record after the 07.02.16 Incident showing bruises and abrasions on various parts of her body.

127.  As I have said earlier, the 07.02.16 Incident was the last straw and the Mother never returned home thereafter save to take the Children on 11 February 2016, before taking them to Hong Kong.

128.  Upon arrival in Hong Kong, the Mother had immediately made a report to the local police for fear of violence from the Father and applied for leave for non-disclosure of her residential address and the Children’s schools in her divorce petition.

129.  As mentioned earlier, prior to the 1^st Hearing, the Mother suddenly sought leave to file the Reports.  First of all, these are proceedings in chambers not open to public, the Mother should not have produced any of the documents filed in these proceedings to any one without prior leave of court, and secondly, she should have sought prior leave for appointment of an expert and to produce expert evidence.

130.  Mr Hung explained that the urgent nature of the return proceedings under the Convention often meant that the parties would be given only a short time for file their evidence, and that the Mother’s application for legal aid took time to process.  This court in the end accepted his submissions and allowed the Mother’s application.

131.  The Children were seen by the clinical psychologist (“Psychologist”) during two sessions.  It was stated in the opening paragraph of each of the Reports that the purpose of the assessment was to “assess possible psychological impact of ill-temper and violence of the Father” on the Children, and that there were “ongoing court proceedings for matters regarding abduction and custody”.

132.  There seemed to be some misunderstanding on the part of the Psychologist.  There were no ongoing proceedings regarding custody, nor was the issue on the psychological impact of ill-temper and violence of the Father on the Children.  The issue is whether there is a grave risk that the return of the Children to their habitual residence, namely Korea, would expose them to physical or psychological harm or otherwise place the Children in an intolerable situation.

133.  The background of the case was provided to the Psychologist solely by the Mother and the Maternal Grandmother.  The Children were escorted to the 1^st session by the Mother and the Maternal Grandmother and to the 2^nd session by the Mother and the paternal grandaunt.  The Maternal Grandmother apparently had further telephoned the Psychologist on 1 April 2017.  It was not clear for what purpose was this telephone call made.

134.  The Daughter was reported to view the Father as a symbol of anger and that she was said to distinctly recall the Father hitting the table forcefully, and she had perception of the Father as a threat and there was little trust in the Father.  She was reported to be in fear that the Father would take her and her elder brother back to Korea secretly[20].

135.  The Daughter was reported to have an aversion to loud sound, but it would appear that on occasions of altercation between the Mother and the Maternal Grandmother where they raised their voices, the distress to the daughter would also arise.  The Daughter was reported to have recalled hiding under the blankets when the Father was throwing temper in a violent manner.  Nowadays, she would cup her ears to block the loudness and to reduce the distress.

136.  There was no sufficient evidence that the Daughter’s aversion to loud sound was caused by the Father’s temper or threatening behavior.  In any event, it would appear that the Daughter’s aversion to loud sound and her distress could be triggered generally by any loud sound.

137.  The Son was reported to be keenly aware of the difficulties in the parental relationship.  He described the Father as an angry person who shouted and scolded the Mother a lot and he reported witnessing the hostility in person in repeated episodes.  He was said to vividly recall in detail an incident in which the Father threw temper all of a sudden, and threw bowls and chopsticks onto the floor spoiling everything.  He had also witnessed the threat made by the Father to kill the Mother.  The Son also reported of having prior nightmares with themes of being eaten by a ghost, the Father killing the Mother with a knife and he being left on his own on the upper deck of a bus.  He was also reported to have a strong need to fight off the Father and considered it his duty to protect his younger sister and his mother.

138.  The Son was reported also to remember positive activities engaged with the Father such as playing football with him and buying him necessities, he made a strong association between ‘danger’ and the presence of the Father.  He was not only fearful about the Father doing harm to the Mother but also the threat that the Father would take him away from the Mother.

139.  The threatening behavior of the Father as reported was directed by the Father at the Mother rather than the Children, although the evidence indicated that on occasions the Children had been present and had witnessed it. 

140.  However, the Children had only mentioned one or two specific incidents to the Psychologist.  Neither of them in fact mentioned any of the 3 incidents, namely the 05.02.14 Incident, or the 08.11.15 Incident or the 08.02.16 Incident.  In particular, according to the Mother, the 08.11.15 Incident involved the dragging of the Children by the Father to his room and locking them inside.

141.  Further, even from information provided to the Psychologist, the Father had participated in childcare in supervising the Children’s school work in Korean, as well as bringing the Children out for sports activities.  He was described to be rather intolerant of the Children’s noises and would send them to the upper floor of the house when they made noises when playing.  The Psychologist however reported that physical punishment of the Children was infrequent, although he did ask the Children to stand still till he was satisfied that his instructions were fully understood[21].

142.  Anyway, the Psychologist had concluded, among other things, that the exposure of the Children to incidents of threatening behavior of the Father, even though such was mainly targeted at the Mother would qualify as a “psychologically traumatic event” for the Children. Further, the Father’s threatening behaviour has effected significant negative changes in both the physical and the emotional environment for the Children, resulting in disruption in their development and adjustment.

143.  Apart from the 3 specific incidents, the Mother’s allegations of violence and/or threatening behaviour against the Father were general in nature.  Even if what the Mother alleged said was proven, from the Psychologist’s “Summary and Conclusions”, the exposure of the Children to threatening behavior of the Father towards the Mother “might cause disruption in the Children’s development and adjustment”, and that“the sense of safety, a pertinent basis for healthy child development, has been significantly hampered with the exposure”. The Psychologist has not actually mentioned that there is a grave risk that the return of the Children to Korea would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

144.  The Psychologist had referred to “exposure” to the threatening behavior of the Father and had mentioned “upon the settlement in Hong Kong with the provision of a stable and secure routine and the cessation of the exposure to the threatening occasions, the Children are rebuilding their sense of security”. 

145.  The “exposure” referred to by the Psychologist was the exposure to the threatening behavior and/or violence of the Father.  There had been no consideration by the Psychologist of any effect on the Children if they were ordered to return to Korea but to reside with the Mother in separate accommodation from the Father with adequate Protective Measures in place thereby removing or limiting any such exposure.   

146.  The Reports were based on one sided information from the Mother and the Maternal Grandmother.  There was also no arrangement for the Psychologist to see the Father.  Neither Ms Chan’s affirmation nor the Father’s 1^st affirmation was provided to the Psychologist.  The Father had attached a video recording on 9 February 2016, one day after the 08.02.16 Incident, to show the interaction between the Children and the Father and the Paternal Grandmother and that they were playing happily with the Father and the Paternal Grandmother. This was not shown to the Psychologist.  Even if the Father’s 1^st affirmation was formally filed after the Psychologist met the Children, there was no reason why it was not sent to the Psychologist.  I am of the view that the Reports do not really assist the Mother in establishing that there is a grave risk of the Children being exposed to physical or psychological harm or otherwise place the Children in an intolerable situation.

147.  Prior to the 2^nd Hearing, the Mother had apparently sent an email to her solicitors and her Counsel on 27 April 2017, essentially saying that returning to Korea would mean a road to death for her and that she could not return to Korea.  This email had not been previously exhibited in any of the Mother’s 4 affirmations.

148.  Mr Hung reproduced the email in its entirety in his skeleton submissions for the 3^rd Hearing.  This was most inappropriate conduct since Counsel should not give evidence for lay client. 

149.  It was Mr Hung’s submission that to order the Children to return to Korea without the Mother would to expose them to an intolerable situation.  However, notwithstanding her above email to her legal representatives, the Mother had not said in any of her affirmations that in the event that the Children were ordered to return to Korea, they had to return alone without her and that the Mother would definitely not return with them. In fact, on the contrary, it was the Mother’s stance at the 1^st Hearing that in the event that this court were indeed to order a return, such return should only take place in July this year after the Children have completed their present school term, and subject to all the Protective Measures being in place.

150.  The burden is on the Mother to establish that there is a grave risk the Children will be exposed to physical or psychological harm or otherwise place the Children in an intolerable situation, and notwithstanding that the present evidence shows that the Father has a short and intolerant temper and has scolded the Mother and/or behaved in a threatening or violent manner towards the Mother, I am not satisfied that that Mother has discharged the burden on her.

151.  In any event, even if there is such a grave risk, I am of the view that such can be met by adequate Protective Measures. The Protective Measures proposed by the Father were however not acceptable to the Mother and vice versa.

152.  There is no mechanism for a mirror order to be made by the Korean Court, and any mechanism to record any undertakings made by the Father to this court, but according to the Korean MoJ, any undertakings or interim arrangements could be incorporated in a “Notarial Deed” executed by the parties.  However, the Father did not agree to all the Mother’s proposals for Protective Measures, or vice versa.

153.  In any event, in light of my decision as seen later in this judgment, it is not necessary for this court to consider the parties’ respective proposals for Protective Measures.

The Children’s Objection

154.  In the Reports, there was no indication that the Children would “object” to returning to Korea with the Mother.  However, I accept that the Psychologist was not directed to seek the Children’s views on whether they object to return to Korea. 

155.  The Son was reported by the Psychologist to be keen on attending his present school although the Chinese subject has remained a challenge for him, and that he has friends in school and he enjoys the activities there and the aspiration for achievement through learning and these are significant motivators for him.  He was reported to have settled in Hong Kong where he felt secure and that for his best interest, any changes that could challenge the rebuilding of sense of security would need to be avoided.

156.  So far as the Daughter was concerned, she has attained satisfactory school performance with high average attainment, and her mastery of the Chinese subject is reported to be satisfactory.  She was also reported to have settled in Hong Kong and that for her best interest, any changes that could challenge the rebuilding of sense of security would need to be avoided.

157.  The Psychologist had seen the Children individually on two occasions, and had reported that the Daughter’s “verbal disclosure was clear” and she was “adequately articulated” in Cantonese.  Although the Son was reported by the Psychologist to be “not very fluent in verbal expression”, he was very “effortful” in communicating his thoughts and opinions which were made in a straightforward manner.

158.  The SWO, however, reported that although a Korean interpreter was arranged to be present, the Son expressed difficulty in communicating in Korean but was responsive to the SWO in Cantonese, and the Son said he had forgotten many Korean words at present.  He said to the SWO that he objected to returning to Korea and hoped to live with the Mother in Hong Kong. He showed unwillingness to return to Korea alone without the Mother, and said it was miserable for him to live without the Mother.

159.  The Son refused to live with the Father in the same accommodation as before in Korea as he portrayed the Father as a violent person.  He then mentioned he witnessed the Father and the Paternal Grandmother “pushed” the Mother out of the door, and the Mother cried for help and called the police and that the Father used physical punishment against him once or twice a week.  He objected to returning to Korea to live with the Mother in separate accommodation, and as he was worried the Father would do harm to the Mother if she was in Korea.

160.  The Son also found the living and studying environment in Hong Kong better for him and stressed that the parents had had conflicts daily in Korea in the past two years.  He even showed the SWO some photos of outdoor activities in Hong Kong to give evidence for his happy moment in Hong Kong.  He found no reason to return to Korea as he said that the Father could come to visit him and keep contact with him by phone.  He proposed to have monthly access with the Father in the presence of the Mother so as to prevent the Father from taking him and his sister away.

161.  According to the SWO, the Daughter also objected to returning to Korea and refused to return to Korea alone without the Mother. She said she did not want to see the Father whom she described as a fierce man, and that she remembered the Father threw a bowl of rice at both her and the Mother but forgot the details.  She said she witnessed three times the Father hit the Mother by hand.  The Daughter also objected to returning to Korea to live with the Mother in separate accommodation.  She dislikes the very cold weather in Korea and likes the warm weather in Hong Kong.

162.  The SWO reported that the Children verbally showed resistance to return to Korea and they wish to live with the Mother in Hong Kong.  They were reported to have witnessed domestic violence in Korea and showed worries about the possibility of the parents’ conflicts after their return to Korea.  They expressed to have peace and the absence of the parental conflicts when living in Hong Kong.  From the Children’s view point, their parents adopted different parenting styles and the Children preferred the Mother’s.

163.  The Children were described by the SWO that they took serious consideration of the questions asked of them and were spontaneous in expressing their views during the interview.  The Son supported his views with concrete reasons and explanations, and that he “articulated” the picture of the family situation and had idea of his future with proposed plan, which showed that he may be mature enough to make decision.  Thus, the SWO was of the view that the Son’s views can be taken into account, in so far as one can draw conclusion from the time-limited interview.  Even though the Daughter, limited by her age, had limited elaboration on her views, the SWO opined that her explanation as to her adverse image of Korea and better relationship with the Mother still carry certain weight for the court’s consideration.

164.  In In Re M and others (Children) (Abduction: Child’s Objections) [2015] EWCA Civ 26, Judgment dated 27 January 2015), Black LJ summarised the approach to the child’s objection exception :

“18. In England and Wales, the normal approach to the child’s objections exception is to break the matter down into stages. There is what is sometimes called the “gateway stage” and the discretion stage.  The gateway stage has two parts in that it has to be established that (a) the child objects to being returned and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views.  If the gateway elements are not established, the court is bound to return the child in accordance with Article 12.  If the gateway elements are established, the court may return him or her but is not obliged so to do.  This approach has not been challenged before us.

…

69. In the light of all of this, the position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in 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 his or her views.  Sub-tests and technicality of all sorts should be avoided.  In particular, the Re T approach to the gateway stage should be abandoned.”

165.  In JEK v LCYP CACV 125/2015, [2015] 4 HKLRD 798, Cheung JA had referred to the above passages.  He also referred to the distinction between “preference” and “objection” drawn by Bracewell J in In re R (A Minor: Abduction) [1992] 1 FLR 105 and other authorities.  However, Cheung JA had said that he did not find it necessary to go into a discussion on the true purport of the words ‘objection’ and ‘preference’.  As said by Cheung JA in the context in JEK, “A forthcoming child may use the expression ‘I object to return to New Jersey’, while a child who is less forthcoming, particularly one who has concern about the feelings of both of his parents, may simply say ‘I prefer to stay in Hong Kong. What is important is the substance of the views of the child and not simply the labels to be attached to his views.”

166.  Anyway, according to the SWO, the Son had “objected to returning to Korea” and he had “showed unwillingness to return to Korea alone without the Mother” and he “refused to live with the Father”.  Further, he had “objected to returning to Korea with the Mother even if the Mother agreed to return”. 

167.  Miss Wong submitted that the Son was influenced by the Mother, as otherwise, he would not have on his own bring photographs of outdoor activities in Hong Kong to give evidence for his happy moment in Hong Kong.  Further, the Children were attending schools in Korea, and that it was odd that they would both express difficulty in communicating in Korean and both chose to be interviewed in Cantonese.

168.  However, the Children had also spent periods of time in Hong Kong prior to the Removal.  They had attended kindergarten in Hong Kong.  Further the Mother has all along been speaking Cantonese to them since their birth.  In fact, the Children were also interviewed by the Psychologist in Cantonese. 

169.  The Children have been in Hong Kong for some 14 months, studying at local schools, and whether they would indeed have difficulty in communicating in Korean or not, there seemed to be no problems in them expressing themselves in Cantonese.

170.  Although the evidence indicated that the Father had also provided care to the Children and took them out for sporting activities and was a responsible father, the Mother being a non working mother would appear to be the primary carer of the Children since their birth.  The evidence indicates that the Children are close and attached to the Mother and the Son in particular is very protective of her and his younger sister.  The Children no doubt were aware that their mother did not wish to return to Korea, and being close to their mother, they would naturally want to see her happy. This is particularly so when the Father seemed to have failed to contact them for some 14 months after the Removal.

171.  Since the Removal, the Father had made no attempt to contact the Children at all.  There was no evidence that the Mother had objected to the Father having access.  In fact, in her Statement of Arrangement for the Children in the HK Divorce Proceedings, she had proposed reasonable access to the Father as the court deemed fit.  Not only did the Father not try and come to visit them in Hong Kong prior to these proceedings, there was no attempt to even telephone or skype with them or to request any contact with them at all.  The Father came to Hong Kong to attend the 1^st Hearing, and while he was in Hong Kong, he did not even make any request to see or have any contact with the Children. 

172.  The Father complained that the Children were coached by the Mother.  However, although this court had specifically asked, Miss Wong indicated to the court that the Father did not wish to have any further adjournment, nor did he wish to cross examine the SWO or clarify any matters with the SWO.  

173.  Notwithstanding the SWO saw the Children only on one occasion due to the limited time, she had reported that both the Children took serious consideration of those questions from her, and that they were spontaneous in expressing their views.  In particular, the officer considered the Son may be mature enough to make decisions and that his views should be taken into account, and further the Daughter’s views should also carry weight, as she was able to express her views and was able to give reasons as to why she did not like Korea.

174.  The Son is now almost 9 years old and the Daughter will be 7 in two months’ time.  Having regard to the report from the SWO, and also the Reports, I am of the view that the Son has attained an age and degree of maturity at which it is appropriate to take account of his views.  So far as the Daughter is concerned, although she is not yet 7 years old, and was limited on elaboration of her views, she had also given reasons as to why she objected to return to Korea.

175.  It is my view that the Children’s objection to return has been made out.

Conclusion

176.  Having considered all the circumstances of this case, it is my view that there was acquiescence on the part of the Father to the Children remaining in Hong Kong after the Removal and for some reasons, he then changed his mind.  He made no attempt to have any contact with the Children since the Removal.  The Children now both object to return to Korea. The Son is of an age and maturity which this court should take into account his views.  Even if the Daughter may not be, it was not suggested that she should return without her brother.  The Children are now both well settled in Hong Kong and I find it is not in their best interest for them to be up-rooted again. I thus exercise my discretion and decline to order the return of the Children to Korea.

Costs 

177.  I will make no orders as to costs, save that the Mother’s own costs be taxed under legal aid regulations.  This is an order nisi, which will be made final after 21 days.