J v. Q AND ANOTHER

HCMP 2563/2024 &
HCMP 2721/2024
(Heard together)

[2025] HKCFI 632

HCMP 2563/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2563 OF 2024

________________________

________________________

________________________

AND

HCMP 2721/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2721 OF 2024

________________________

________________________

________________________

(Heard together)

___________________

J U D G M E N T

___________________

INTRODUCTION

1.  These two sets of proceedings concern the child, K, who is now 12 years old and physically in Hong Kong.  He was born in Hong Kong and holds an HKSAR passport.  However, he has not lived here before.  He was brought to Hong Kong from Shanghai by his mother without the father’s consent on 25 November 2024.  By now, he has been in Hong Kong for nearly three months.

2.  By originating summons dated 30 November 2024 and filed in HCMP 2563/2024, the father commenced wardship proceedings against the mother in respect of the child and sought his summary return to Shanghai.  By order dated 1 December 2024, I made the child a ward of the court.  I also ordered that the mother be restrained from taking him out of the jurisdiction of Hong Kong until further order of the court.  I shall refer to these proceedings as “the wardship proceedings” below.

3.  By originating summons dated 18 December 2024 and filed in HCMP 2721/2024, the mother commenced proceedings against the father under the Child Abduction and Custody Ordinance, Cap 512, and the Hague Convention on the Civil Aspects of International Child Abduction, 1980.  The mother says that as of 3 August 2024, the child’s place of habitual residence was Japan and that on that date, he was wrongfully retained by the father in Shanghai.  The mother now seeks the return of the child to Japan.  I shall call these proceedings “the Hague proceedings” below.

4.  By order dated 14 January 2025, I granted leave to the Central Authority in Hong Kong to observe both sets of proceedings.

5.  Furthermore, in the wardship proceedings, the mother took out a summons dated 16 January 2025 asking for care and control of the child be granted to her and for leave for her to return the child to Japan forthwith.  The summons was taken out to ensure that if the mother fails in the Hague proceedings, she may still ask for the return of the child to Japan in the wardship proceedings.

6.  By order dated 21 January 2025, I joined the child as the 2^nd respondent in both the wardship and Hague proceedings and appointed the Official Solicitor to act as his guardian ad litem.  I granted leave to the father and the mother to amend their respective originating summonses to reflect the joinder.

7.  There are therefore before me three applications at the substantive hearing.  First, the father’s amended originating summons in the wardship proceedings.  Second, the mother’s amended originating summons in the Hague proceedings.  Third, the mother’s summons for return in the wardship proceedings.  

8.  There is no dispute that the child should not be retained in Hong Kong, with whom he has no connection whatsoever save that he was born here and holds an HKSAR passport.  The key issue is whether he should be returned to Shanghai or Japan.

FACTUAL BACKGROUND

9.  It is convenient to set out at the outset the background of the family, the key dates and events which are common ground and presently material.

10.  The father was born in Taiwan and is now 38 years old.  He has since 2011 lived in the mainland to help run his parents’ furniture business.  The mother is mainland Chinese and is also 38 years old.

11.  They got married in February 2012.  The child is their first child and was born in September of the same year.  In October 2013, a second child, a girl, named XX was born in Shanghai.  The family lived in Shanghai where the children attended an international school called XX (“[School S]”).

12.  By an agreement dated 18 April 2016, the father and the mother agreed to divorce.  They reached agreement on the arrangements for the children and financial matters.  The father would have custody (撫養) of the child who would live with him.  The mother would have custody of the sister who would however live with the father until the age of eight.  The mother would have the right to visit the children at any time.  She also had the right to travel with them overseas during weekends and holidays.  The father and the mother should consult each other (相互協商) on choice of schools, relocation overseas and medical matters.  I shall refer to the agreement as “the divorce agreement” below.

13.  The above provisions concerning the children arrangements was set out in clause 2 of the divorce agreement.  I reproduce the original text below[1]:

“雙方離婚後，[the child]由[the father]撫養，隨[the father]共同生活；[the sister]由[the mother]撫養，但是[the sister]年滿8週歲之前仍然隨[the father]共同生活，[the mother]無須支付撫養費；[the mother]有權隨時探望[the child]和[the sister]，有權在周末和節假日帶[the child]和[the sister]外出居住或旅行；[the sister]隨[the mother]共同生活後，[the father]有權隨時探望[the sister]，有權在周末和節假日帶[the sister]外出居住或旅行；有關[the child]和[the sister]的擇校、移居境外、醫療等重大問題，[the father]與[the mother]應相互協商…” (underline added)

14.  Since the divorce, the children had lived in Shanghai up to August 2023.  Notwithstanding the express terms of the divorce agreement, the father and the mother had shared care of the children, who split their time equally between the father’s and the mother’s homes.  During that time, the parents maintained an amicable relationship and were able to co-parent and discuss plans together for the children.

15.  In August 2023, the mother and the two children left Shanghai for Tokyo, Japan, with the consent of the father.  The children attended XX (“[School T]”), an international school there, but would return to Shanghai for all their school holidays (except the first one).  The father would also visit them in Japan every two weeks.

16.  In March 2024, the mother’s parents were arrested in the mainland for misconduct and/or embezzlement charges.  The mother informed the father that she could not leave Japan and that her parents were to be detained for an indefinite period.

17.  On 27 June 2024, the father and the mother attended the graduation ceremony of the children in Tokyo.  On the same day, the father and the children left Tokyo for Shanghai.  The mother remained in Japan.  At that time, the plan was for the children to return to Tokyo in early July and continue their studies in [School T].  On 15 July 2024, the father paid his half share of the tuition fees for the new academic year.

18.  The return date was later changed to 17 August, as agreed by the father and the mother.

19.  However, on 3 August 2024, the father sent a message to the mother saying that the children would not be returning to Tokyo and would be staying in Shanghai.

20.  The reason for the father doing so is hotly disputed.

21.  It is the mother’s case that the relocation of the children to Tokyo in August 2023 had been agreed by both her and the father to be a long-term arrangement.  The trip to Shanghai in June 2024 was just for holiday.  By his message of 3 August 2024, the father reneged on the agreement. As of that date, the mother contends that the habitual residence of the child was Japan.  The father had since that date wrongfully retained the child in Shanghai.  That is the basis of the mother’s application in the Hague proceedings.

22.  On the other hand, it is the father’s case that, first, there had been an agreement reached between him and the mother before the move to Japan that the children would stay in Tokyo for one year only and, second, there had been a subsequent agreement reached in May 2024 that the children would return to Shanghai in June for the summer and if both of the mother’s parents were still detained by the authorities at the end of the summer, the children would stay with the mother in Japan until one of her parents were released.  In these proceedings, the father has referred to the two agreements as “the initial agreement” and “the conditional agreement”.  The father’s case is that the maternal grandmother was released by the authorities on 29 July.  Hence, pursuant to the conditional agreement, he informed the mother that the children would stay in Shanghai.  There was therefore no wrongful retention.  In any event, the father disagrees that as of 3 August, the child’s place of habitual residence was Japan.

23.  The father arranged for the children to re-enrol in [School S].

24.  The relationship of the parties thus began to break down around this time.

25.  Two incidents happened in August 2024.

26.  On 20 August, the mother went to [School S] to collect the children without any prior notice to the father.  In the end, she only managed to collect the sister.  She was stopped by the paternal grandparent from collecting the child.

27.  On 28 August, the father retrieved the sister from the mother’s home.  The child was present at the scene.

28.  On the same day, the father commenced proceedings in the Shanghai court asking for the sister’s care to be granted to him.  On the following day, the mother commenced proceedings applying for the child’s care to be granted to her.  That would be the beginning of the care proceedings in the Shanghai court.  These proceedings are currently at the appeal stage and are ongoing.

29.  On 10 September, with the assistance of the Shanghai court’s mediation services, the father and the mother entered into an interim agreement.  The agreement provided that the mother shall spend time with the children from Saturday morning to Tuesday and the father shall spend time with them from Tuesday after school to Saturday morning.  The parties also agreed to deliver up the children’s travel documents to the Shanghai court.

30.  On 14 September, the father delivered the Home Return Permit and the HKSAR passport of the child to the court in accordance with the interim agreement.

31.  After the signing of the interim agreement and up to the end of October, the mother spent time with the children pursuant to the terms of the agreement.

32.  On 31 October, the Shanghai court heard the two care applications.

33.  On 6 November, the Shanghai court handed down judgments ruling in favour of the father in both applications.  In respect of the child, it dismissed the mother’s application for his care.  She was granted access one day a week, namely every Saturday from 9 am to 5 pm.

34.  On 15 November, the child spent time with the mother pursuant to the order.

35.  On the same day, the mother filed an appeal against the judgments of the Shanghai court.

36.  On 23 November (Saturday), the child had overnight access with the mother.  The mother did not return the child to the father that weekend.

37.  On 25 November (Monday), she and the child left the mainland, without informing the father.  It appears that the mother had used the child’s birth certificate to leave the mainland and enter Hong Kong.  At that time, the child was in the middle of the school term.  It is this unilateral removal of the child from Shanghai to Hong Kong which has led to the wardship proceedings.

38.  On the same day, the mother took the child to the Immigration Department in Hong Kong to apply for a replacement HKSAR passport.  The mother had in fact booked flights tickets for her and the child to travel to London and Oxford on 30 November to meet an education consultant.

39.  The father learnt of the whereabouts of the child shortly afterwards.  He commenced the wardship proceedings in Hong Kong a few days later, on 30 November.

PROCEDURAL HISTORY

40.  Since that date, the parties had appeared before me five times prior to the substantive hearing.

41.  On 30 November, the father took out an urgent ex parte application for an order that the child be made a ward of the court and for injunctions restraining the mother, among other things, from collecting any travel document of the child and from taking him out of the jurisdiction of Hong Kong pending further order of the court.  I adjourned the application to the following day for the father to give notice of the application to the mother.

42.  On the following day, 1 December, the mother appeared by her former legal representatives at the adjourned hearing.  She gave an undertaking to return the child to the father at 3 pm on that day at the lift lobby of a residential building in Kowloon Tong, where she and the child were staying.  At the conclusion of that hearing, I granted the father’s application.  I fixed a return date hearing on 11 December.

43.  However, the handover scheduled for that afternoon was unsuccessful.  The child refused to go down to the lobby to see the father.  That led to the father taking out another urgent application on 3 December, seeking an order that the mother do return the child to him forthwith and that the bailiff be directed to collect the child and deliver him to the father.

44.  I heard that application on 6 December.  As there was no time to obtain a social investigation report, I met the child in the morning of that day in order to ascertain his wishes on whether he would prefer to go back to the father or stay with the mother while he was in Hong Kong pending the resolution of the legal proceedings.  The child expressed to me his wish to stay with the mother.  Later that afternoon, I delivered my decision orally: see [2025] HKCFI 363.  I ordered the mother to return the child to the father forthwith.  I further ordered that the interim care and control of the child be granted to the father.  I met the child for the second time to explain the decision to him.

45.  After my second meeting with him and as he went back to join the mother outside the courtroom, the child became very emotional. As a result of the emotional outburst, counsel for the mother immediately requested a stay of my order on interim care and control.  I acceded to the request and directed that the interim order be stayed in light of the potential medical situation which the child might be in until the return date hearing on 11 December or further order of the court.

46.  That evening, the mother took the child to the Hong Kong Sanatorium Hospital.  The doctor reported that he presented with features of post-traumatic stress disorder.  The doctor advised that the child should avoid any emotion triggering event until further assessment by a psychiatrist and psychologist.  That would be the beginning of a series of medical consultations which the child attended in Hong Kong.

47.  On 11 December, at the return date hearing, I gave directions for the filing of evidence and the fixing of the substantive hearing for the wardship proceedings.  I also imposed a deadline for the mother to take out an application under the Hague Convention and gave consequential directions if one was taken out.  I also gave directions with regard to the appointment of a single joint expert, Dr Kristie Craigen, clinical psychologist.

48.  At the same hearing, I refused to grant leave for the mother to appeal against the decision which I made on 6 December: see [2025] HKCFI 364. But I imposed a further stay of the interim care order in light of the child’s refusal to go back to the father and his psychological condition, as recorded in the various medical certificates produced by the mother at the hearing.  Instead I ordered that the father should have phone, video calls and/or messaging contact with the child on a generous level within reasonable limits.  I appointed Dr Adrian Wong, clinical psychologist, as the treating psychologist for the child and directed that he should evaluate his condition, to give treatment where appropriate, and to advise on steps to re-establish contact between the child and the father.

49.  On 18 December, the mother commenced the Hague proceedings.

50.  Notwithstanding my order made on 11 December, the father was not able to have any contact with the child until 3 January 2025 when a short video was sent to the child’s phone.  But the child did not reply.

51.  In the meantime, Dr Craigen issued her single joint expert report on 17 January 2025 (“the SJE report”).

52.  At the court’s initiative, a directions hearing took place on 21 January 2025.  By then, the parties had completed their evidence.  The evidence refers to various medical consultations the child had had since 6 December.  

53.  Together with the SJE report, they reveal that the child is experiencing psychological and emotional issues. These issues need to be attended to and addressed with care.  This is to ensure the child’s well-being.  They should also be at the forefront of the court’s mind when putting in place suitable protective measures to accompany the return order which is to be made.

54.  At the directions hearing, in light of this, I appointed the Official Solicitor to represent the child in these proceedings as I wished to have an independent opinion on this matter.  I directed the Official Solicitor to file a report on (1) the evaluation and analysis of the evidence filed in these proceedings, and (2) the protective measures which were to be proposed by the father and the mother for the return of the child to either Shanghai or Japan.

55.  As regards interim access, in light of the favourable opinion expressed by Dr Craigen on the relationship between the father and the child, the father applied for, and I granted, an order that he do have interim access on the upcoming Friday and then every Wednesday.  The arrangement was that the mother should deliver the child to the staff of Rent-A-Mum, a company offering services in child dispute cases, at the lobby of Mandarin Oriental Hotel in Central (where the father is staying whilst in Hong Kong), and then for the father to collect the child.  The father was to spend two hours with the child in the presence of the staff from Rent-A-Mum.

56.  24 January was the scheduled date for the father’s first access.  However, like previous occasions, the attempt for the father to see the child in person was not successful.  The child ran out of the hotel lobby upon seeing the staff of Rent-A-Mum.

THE EVIDENCE

57.  The evidence before the court at the substantive hearing comprises the affirmations made by the father and the mother and the SJE report. 

58.  In addition, in the Hague proceedings, the burden is on the mother to show that as of 3 August 2024, she had rights of custody over the child under Japanese law.  By an earlier order, I directed the mother and the father to produce evidence on this, particularly taking into account the divorce agreement in 2016.  The parties have each filed a Japanese legal opinion.  The two Japanese counsel have reached opposite conclusions on the issue.

59.  Lastly, also before the court is the report made by the Official Solicitor dated 4 February 2025.  At the directions hearing on 21 January 2025, there was a discussion on the scope of the report to be compiled.  Given that Dr Craigen had already given her opinion on the child’s wishes and given further that there was a concern that the child was already seeing a number of doctors, as directed by the court, Ms Eunice Ip, of the Official Solicitor’s Office, was not asked to interview the child.  Instead, she would talk to the treating doctors who are presently seeing the child, namely Dr Phyllis Chan, the psychiatrist, and Dr Adrian Wong, the clinical psychologist, in order to comment on the protective measures which should be put in place. 

60.  The report of the Official Solicitor has therefore been prepared on that basis.  In the report, Ms Ip related what the two treating doctors said about the child’s medical condition.

61.  The primary factual dispute revolves around the circumstances in which the children left Shanghai and studied in Japan from August 2023 to June 2024, and the intention of the father and the mother as to the children’s stay in Japan.  Was it the case, as the father now contends, that he and the mother had agreed that the children would stay in Japan for one year only and, subsequently, in light of the arrest of the maternal grandparents, he and the mother made the conditional agreement?  Or, was it the case, as the mother contends, that the plan, as agreed by the father and the mother all along, was for the children to stay in Japan for the long term?

62.  This factual dispute will need to be resolved. This is because the parent’s intention as to where the child should live and whether, and if so how, that intention had had an impact on the actual living arrangement is a relevant factor when determining the place of habitual residence in the Hague proceedings: LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 at para 7.7(6).  This is also directly relevant to the defence of consent raised by the father under Article 13 of the Hague Convention.

63.  In resolving this dispute, I have the benefit of reviewing text messages which the father and the mother exchanged with each other during the material period, ie from 2022 onwards.  There are also text messages sent to other parties and some emails.  These are contemporaneous documents against which the parties’ factual cases, where they differ, can be tested.

64.  I shall now set out their cases in more detail below.  One background to bear in mind is that at the relevant time, the COVID-19 pandemic was ongoing and lockdown measures were in place in the mainland (and elsewhere).  One would therefore see references to lockdown (“封鎖”), online school (“上網課”) and COVID testing (“核酸”).

FROM APRIL 2022 TO AUGUST 2024

65.  It is common ground that the idea of having the children stay in Japan first came up in about April 2022.  In an exchange of text messages on the 22^nd of that month, the mother and the father casually discussed the low prices of hotels in Japan for the mother’s upcoming trip.  During the conversation, the father jokingly suggested that the mother might as well buy an apartment in Ginza, Tokyo.  The mother then told the father that she had already purchased a property somewhere in Tokyo.

66.  I reproduce below the text messages around that time showing that discussion.  One can see that the discussion then revolved around the possibility of obtaining foreign passports for the children:

“[22 April 2022]

Father: 六本木GrandHyatt那麼便宜啊

Mother: 對

我決定就一直住下去了

Andaz

1400

Father: 我們上次住了另一個Hyatt也不錯

Mother:            [emoji]

Father: 有一個新開的在Ginza

Mother: 哦哦哦 我去試試

很誇張

Father:             你去買一個房子算了 [emoji]

住日本也不錯

Mother: 陳老師讓我去幫小孩搞個歐洲身份

我準備去弄

她不同意日本

Father: 找Yatch咯

Mother: 日本買了

我幫她挑的

Father: Yatch有這個服務

Mother: 新宿塔樓

日本身份稅收太高

葡萄牙那個買個房子就好，一年去一週

歐盟考英國方便……

先拿一個再說吧

[emoji]

…

[Date unknown]

Mother: 我媽很急，我準備買葡萄牙房子弄個護照

Father: 葡萄牙不是只有PR

Mother: 最後一年可以直接換

護照

小孩拿eu護照去英國讀書吧 早點出去也可以 我陪著 [emoji]

[11 May 2022]

Father: 人不用去葡萄牙也可以買房子嗎

Mother: 對

沒錯

Father: 不會風險很高嗎

項目不存在之類的

Mother: 買真房子”

The father’s case

67.  It is the father’s case that from at least April 2022, the mother was concerned about the risk of a corruption investigation against her stepfather, and the possibility that she or her mother might be called in for questioning by the mainland authorities.  As a result, the mother began planning to obtain Japanese and Portuguese citizenship for herself and the children.  Her family started to purchase properties in Japan and Portugal.

68.  It is further the father’s case that by November 2022, the mother started proposing that the children spend one school year in Japan, with only six months out of Shanghai.  The father had reservations about being separated from the child.  He communicated those reservations with the mother.

69.  The father relies on the following text messages sent on 4 November to show that he had from the outset raised his concerns about the move to Japan and that the mother had tried to address his concerns by suggesting that the father could go to visit them in Tokyo and the children could go back to Shanghai during school breaks. She mentioned that school time was only about six months in a year:

“[4 November 2022]

Father: Btw I’m not ready to let the kids leave my side yet. You can apply first and see what’s up. Before we make any decisions we need to talk to the kids about the possibility as well as us go to check out the place to see if it’s feasible. Plus the country need to open up first.

Mother: 要報也是明年9月份

30萬上網課對孩子傷害太大了 而且老師天差地別

你可以來東京每週陪 或者我陪 明年肯定可以開了

half term也可以回來

Father: 突然離開上海跟我分開傷害更大呀。

Mother: 本來也只有6個月上課

Father: anyways

你先apply

Just letting you know my concern

Mother: 我陪一個月你陪一個月也可以啊

不想讓他們覺得這種封鎖和核酸是正常的

元旦 + 過年你可以提前來看看”

70.  Although the father did not to agree to her plan, the mother proceeded with her own move.  She purchased a three-bedroom duplex apartment in Tokyo and started to set that up as a home in December 2022.  In fact, the mother was assisted by the father in the process.

71.  It will be recalled that the father is in the furniture business in the mainland.  He offered to send furniture to the mother for use in the Tokyo flat.  In the course of asking for the dimensions of the flat, the father reiterated on 30 November that he was not ready for the children to move to Japan on a long-term basis.  The chain of this conversation started a few days earlier:

“[28 November 2022]

Mother: 你要不要送我點家具 [emoji]

Father: 你家嗎

Mother: 日本

我來出運費

Father: 但是日本家不都很小嗎

Mother: 對

我給你平面圖

…

Father: 量一下你現在的尺寸

地毯尺寸

拍一下你房間的現況

…

[30 November 2022]

Father: 我看一下尺寸，椅子床估計沒有問題。沙發應該有很小的那種。

但是風格就是混撘

你懂的

…

Father: 我需要再聲明一次我還沒有ready要讓他們去常駐哦

Mother: 哈哈哈哈 好的

我們先努力 aim 看能不能進好的學校吧 明年 如果可以進 晚點近也可以”

72.  In January 2023, the mother texted the father saying that she needed a false divorce agreement which should state that she would raise the children, that would make things easier, but that the agreement would have no legal effect.  The mother wanted to put in applications for both Japan and Portugal.  The father replied that he would follow up.  But, once again, he repeated that he did not agree to the children going to Japan that year as they were too young and he did not want to be separated from them.  He suggested that he would bring the children to stay with the mother during holiday for a bit longer. The text messages read:

“[Date unknown]

Mother: OK 離婚協議之後需要弄一個假的 寫我撫養兩個小孩的 給日本這裡 辦起來方便

[Father: 我下午去公司找]

這個是給葡萄牙的

Father: 哈哈…

Mother: 葡萄牙人不管的

我怕日本人要證明

反正沒有法律效應

[13 January 2023]

Father: 手機沒拍

你等我去公司找一下那個folder

Mother: OK

這兩個國家過年都不休息，過年爭取把兩個國家的申請都提交

Father: ok

我到公司就找，但是我還是要說今年不可能讓他們去，現在還太小了我沒辦法跟他們這樣分開。但假期我會帶過去跟你久一點。我也會盡量過去hang。

Mother: 去不去再說，先辦好

[Father: 我到公司就找，但是我還是要說今年不可能讓他們去，現在還太小了我沒辦法…]

Father: ok”

73.  Further messages were exchanged in the following months.  The mother made references to [School T] saying that it had a very good reputation.  In March 2023, she asked the father to take the children to Japan in May to activate the process of obtaining permanent residency.  The father signed the relevant forms.

74.  Then, on 4 April 2023, the father and the mother had further discussion about plans for the children.  The father was still objecting to them going to Japan in September that year.  He was simply assisting the mother to help the children secure residency status.  The mother tried to reason with him by saying that the children needed only to stay in Japan for 180 days in one year, the children were getting into the best school, and at the same time they could secure the permanent residency status.  He asked the father to treat that as a “gap year”.  The text messages read:

“[4 April 2023]

Father: 我等一下就到餐廳了，關於去日本的事希望不要在小孩的面前討論。周日你突然提到“既然九月要去日本讀書，四月就不用繼續上英國學校。” 什麼時候已經確定了小孩九月要去日本？我感到很震驚。

我只是一直配合協助你幫他們辦身份，我從來沒有同意讓他們九月就去日本讀書，這件事你不能單方面做決定，我一直持反對的態度至今沒改變過。你也不需要單方面一直洗腦小孩，這樣只會反應出我們兩個缺乏溝通各說各話。

如果我們繼續各說各話，找不到共識，最後的結果就是一個去日本一個留在上海，我想這都不是我們想要的結果。我還是堅持兩年以後再討論這件事，不能因為可能錯過一個好學校就貿然做決定。一會兒見。

…

Mother: 因為我是高度人才，一般人要住10年拿身份，小孩只需要住1年

但是問題是需要住一年，大於180天。

現在進了好的學校，我也正好在做移民監。所以你明年9月不讓他們讀也可以，今年一定要去半年。

不然就是放棄拿身份，放棄日本最好的學校

…

Mother: 就是12個月裡呆滿180天，學期時間正好，以後怎麼樣你可以提前規劃

現在正好進了最好的學校，又可以順便拿永居，拿完就是永久的了

你當gap year 就好

Father: [Mother: 你當gap year 就好]

get 但是我還是需要和你見面溝通”

75.  On 13 April 2023, the father and the mother exchanged further messages.  The father repeated his objection, and expressed his reservation on the need to obtain permanent residency for the children.  The mother disagreed.  She expressed her dissatisfaction with the situation in the mainland, namely the lockdown measures and the online learning for the children.  She repeated that the children would be going to the best school in Japan and they could get hold of the permanent residency status while doing that.  She said that the immigration scheme would not be available later.  See the text messages:

“[13 April 2023]

Father: 兩件事和你說一下：

1. 經過一個禮拜審慎的思考，現階段我還是不可能因為要拿永居讓孩子去日本一年。我沒有辦法和他們分開那麼久，我也無法一直飛去。

最重要的是，小孩去那邊我會日夜掛心。作為父親，我也無法想像若有緊急情況我無法到場。

如果辦永居是為了小孩大學畢業並能去日本就業。這些都是十一年以後的事情。假設他們很優秀，他們一樣可以申請日本高才居留，假設他們不優秀去日本也只是換了一個地方過着平淡生活。

但為了配合你的規劃，我可以讓他們多上一個日語課程，並在假期時都安排去日本找你。

…

Mother: 什麼生活亂七八糟的，你在說什麼啊？你不知道中國現在的情況？不知道二重身份的重要性？不知道為什麼所有人拼命把孩子帶出去？不知道未來的風險？你自己思考和我討論過一句？

你自己有自己鴕鳥做了一個完全鑽牛角尖地決定而已

惡化是國內一直封鎖上網課了一年，你是記憶是不是出了問題 [emoji]

很多[School S]的孩子都在這一年裡加重了100度，已經幾個媽媽提到了

作為父母你在爭取的是什麼？給孩子更多機會還是離家近？你無形中只是在剝奪他們的生存空間和選擇而已。

1. 小孩這個學校是日本最好的國際學校，今年第一次擴招，之後不會再擴招

2. XX學校每讀2個月放假一次，所謂的一年也只是9-11月，1到3，4到6月而已

3. 我的高度人才簽證以後不會再有，一年拿永居相比所有中國人10年經營管理拿永居的機會也不會再有，這種一石二鳥的機會也不會有

4. 我們做的所有的事情不是為了把孩子放身邊管教，而是給他更多選擇，這個會讓他們多一門語言，多一層好學校的鍍金，擴大自己的國際視野

5. 他們是獨立的人，我不知道你為什麼要剝奪好的經歷和有更多保障的權利？在日本的6個月你隨時也可以來，沒有那麼困難”

76.  In the meantime, the mother continued her efforts to apply for Portuguese residency for the children.  On 20 April 2023, she sent to the father statements to sign for the visa application. 

77.  On 8 May 2023, the father and the mother had another exchange of messages about relocating the children to Japan.  The mother emphasised that the opportunity was one off and said that it would provide the children with an alternative.  She stated: “Study one year, with half a year back to the country and half a year studying”.  The father expressed that he understood but he still had concerns, which he wanted to discuss with the mother face to face.  The text messages read:

“[Date unknown – before 8 May 2023]

Father: 我已經是最願意跟你配合的了

Mother: 那就一輩子在你身邊，你負責以後教育開支，我偶爾來看看，身份都放棄都不用拿，國內考大學呀

Father: 要不然幹嗎幫你飛他們去

Mother: 過了這個村沒有這個店了

就讀一年，半年回國，半年讀書

孩子不會有大問題，只會多條路

Father: I know. But there’s still concern. 我一直想跟你見面又不是要跟你吵架

你聽一下擔憂 協助我跟我家人溝通

Mother: Concern 你羅列一下啊

你寫下來，我聽一下”

78.  There was another exchange on 12 May 2023.  The father asked the mother to confirm whether it was indeed the case that one year would be sufficient for the children to obtain permanent residency in Japan. The mother confirmed it.  She added that it would take in total three years to obtain the passport but there was no six-month requirement for the last two years.

79.  Then, finally, on 30 August 2023, the father sent the mother a message referring to an earlier agreement that the children should go to Japan but only on the basis that the formality would be completed within one year.  He stated that he would totally not accept that the children would stay in Japan for a second academic year and if that was the case, he would choose to give up the residency.  The mother replied that she would add the father into a group with the lawyers and they could try to speed things up.

“[30 August 2023]

Father: 我們還是需要慎重的溝通這件事，畢竟這一切都是基於對你的信任才開始的！

1) 當時你保證一年內會完成手續，我才同意讓孩子過來，我也一直非常積極配合

2) 如因政府流程的不確定性超過而12個月，你剛才說肯定不會拖到第二學年

3) 完全不接受再在這邊留第二學年，如果這麼久我就選擇放棄

4) 對我們來說這一切和經濟及政治形勢問題都無關

以上都已是為了雙方和氣而妥協的結果，也是我和你經過協商而達成的共識。

Mother: 到時候提交材料的律師我再拉群，你可以一起參與知道結果，我們可以一起想辦法加快。

經濟政治可以放一邊，但孩子多一個身份多一種選擇。”

80.  It is therefore the father’s case that the parties agreed that the children could temporarily go to Japan on the mother’s promise that the passport formalities would be completed after the year and the children would then be back in Shanghai.  This would be “the initial agreement”.

81.  In August 2023, the mother and the children relocated to Japan, with the consent of the father and on the basis of the initial agreement.

82.  There was ongoing discussion about the plans for the children.  In messages exchanged on 30 September, the father made his point again that the children would return to Shanghai in June of the following year, and that even if they had to give up the passports, it would make no difference to them.  He wrote:

“[30 September 2023]

Father: 回覆你昨天的信息：

和律師組群是你上個月的提議。

當然明年六月他們會回來上海，但這段時間我還是需要和律師組群來了解申請進度和細節。

[Mother: 其實加不加無所謂，6月帶回去就好了]

關心孩子不等於搶孩子。

單獨一個人要照顧兩個小孩確實很辛苦，品質也很難維持。

明年孩子回上海課業學校由我這邊負責。你在日本就有更多的時間可以發展未來。孩子放假的時候再來日本跟你相處參加各種活動，於是跟你在一起的回憶都是美好歡樂的。

[Mother: 沒人要和你搶孩子，這裡所有課外活動加作業我一個人負責兩個人也很累]

放棄對他們兩個沒差，焦慮是不存在的。

申請歐洲和日本的護照對你比較重要，未來你申請到了，他們去找你都可依親居留。”

83.  The father made the same point again about the scheduled return in June and the passports on 3 October.

“[3 October 2023]

Father: 這次和他們兩個分開的一月，無法天天聯繫到他們，讓我非常焦慮

之後需要麻煩你安排孩子每天和我通話至少兩次：

一次晚餐前後 (讓我關心他們的課業)

一次睡前 (和我道晚安)

每天和他們通話，對我來說很重要，請你務必支持。未來他們在上海我也會尊重你的通話要求，謝謝！

Father: [Mother’s name]。別再提護照了，6月回來是我們的約定。

為了孩子我們需要彼此尊重保持融洽，不要再反覆為了這些事爭執。

如因我們之間關係不和諧，而帶給孩子焦慮和心理壓力，讀再好的學校、拿再多的護照都無法彌補這個過程給他們帶來的傷害。

另外，在孩子面前不批評彼此是為人父母的基本原則。小孩已經長大不要低估他們的判斷能力，任何事實扭曲和詆毀最後損害的都是自己在孩子心目中的形象。”

84.  The father regularly visited the children in Japan.  He went there every two weeks during the academic year.  Save for the first term break in October 2023, the children went back to the father in Shanghai every school holiday, namely December 2023 (Christmas break), February 2024 (about one week), March to April 2024 (about two weeks), May 2024 (about one week) and, lastly, June 2024.

85.  On 14 March, the mother’s fears about her parents finally came true.  They were arrested and detained by the authorities for corruption and embezzlement.

86.  On 1 May, the father reiterated to the mother that the children would return to Shanghai in June.  But he offered to bring them to visit her in Japan regularly.  The mother said that she did not have the freedom to travel and complained that what the father suggested was inhumane.

“[1 May 2024]

Father: 上次我媽從日本回來有和我深談過關於小孩去留的問題。

我想了很久還是決定按照當時的約定6月學期結束後回滬就學，但基於你有突發狀況，我願意配合每個月帶他們過去陪你幾天。

以下為學校下學期的Calender，我把可以帶他們來日本的日期圈起來你看一下。

關於暑假假期我們再一起提前規劃。

[Attachment]

Mother: 不可能

你這樣做的話太過份了

我沒有任何機動性和自由

你這種時候和我說這個太沒人性了

你要這樣做 我們就做最壞的處理

Father: 你是不是沒看我圈起來的天數

Mother: 和天數沒有任何關係”

87.  On 17 May, the father raised another possible plan for the children, namely for the child to stay in Japan for one more academic year, subject to certain conditions, and for the sister to return to Shanghai as planned.  But nothing came out of that.

88.  On the same day, the mother left a voice message for the father’s mother.  She pleaded with the grandmother to let the children stay with her, given that she could not go back to the mainland. 

“[17 May 2023]

Mother:            [Audio message]

媽媽，我每一天接到的都是壞消息，沒有一天有任何的好消息，我現在什麼都做不了，吃不下飯就睡不了覺。我，我真的只有一個訴求，就希望兩個小孩可以陪陪我，真的就是媽媽的事情，如果早一點結束，他們早一點回來，也可以問我也自由嘛，因為我現在真的我沒有任何辦法。我也想回國，有很多事情要處理，我，我現在什麼也都做不了。”

89.  It is the father’s case that later that month (May 2024), he and the mother reached the conditional agreement, namely that the children would return to Shanghai in June for the summer and if both of the mother’s parents were still retained by the authorities at the end of the summer, the children would stay with the mother in Japan until one of her parents were released.

90.  The children returned to Shanghai for the summer on 27 June. 

91.  As it was unknown whether and when the mother’s parents would be released, the parties proceeded in accordance with the conditional agreement.  The father paid half of the [School T] school fees on 15 July.  And it was planned that the children would return to Japan on 17 August to start another academic year. 

92.  It is the father’s case that on 29 July, the maternal grandmother was released by the authorities. 

93.  Accordingly, on 3 August, the father informed the mother that the children would stay in Shanghai as originally planned.  He wrote:

“[3 August 2024]

Father: 很高興媽媽已經平安回到家！因你三月有突發狀況而同意讓孩子繼續留在日本。現在繼續留日的理由已不存在，當時你也說過待你媽媽回來小孩即可回滬，接下來我們必須按照原來的計劃及約定讓兩個小孩今年在上海就學。

再提醒一下，你當初承諾孩子只需留日一年後就可以回上海，對此不應該再有爭議，反覆爭論也無法改變你我原來的約定。

Mother: 已經說好的事為什麼又要改變？

我母親和我目前家裡的情況你是不知道嗎？我們並不能自由出入境，任何情況都沒有改變，我仍然見不到孩子和家人

而是學費已經支付”

The mother’s case

94.  On the other hand, the mother’s case is that there was all along a clear intention for the children to relocate from Shanghai and set up a new home in Tokyo on a long-term basis.  The intention was implemented. In fact, the father actively assisted the mother in the process.

95.  She said in her affirmation:

“… It was always our plan to relocate to Japan to provide a better and safer environment for the Children. The move was not a temporary arrangement to cope with COVID. The efforts that we made jointly to set up a home for the Children … is indicative of our intention. …

… The relocation to Japan was intended to be a long-term arrangement – not caused by the pandemic or in any way just a restrictive 1 year stay as purported by XX [ie the father].  [The father] has also confirmed in no uncertain terms that I will have the care of the Children and they will live with me in Japan.  He wanted the Children to obtain permanent residency in Japan.  To date, they are still not qualified to do so due to the unlawful retention by [the father].”

96.  She denies that there was ever an agreement that the children would stay in Japan for one year only.  She refers to the contemporaneous text messages, including the ones quoted above, and makes the point that she never said anything or made any promise to that effect in those messages.  As regards the various references to a one-year stay in Japan, the mother explained in her affirmation that the messages were in fact referring to her application for permanent residency which could be expedited to one year due to her high score under the immigration scheme.  As for the children, they would have to stay in Japan for at least two years.  As of the date of her affirmation, they had not yet obtained their permanent residency.

97.  She says that her case is supported by the following matters.

98.  In June 2022, she applied and received an offer to work for an IT company in Tokyo as a consultant.  In the following month, she applied for a work permit which was approved in October.

99.  In early November 2022, she attended an open day at [School T].  With the father’s cooperation, the mother enrolled the children in [School T].  The father paid half of the tuition fees.

100.  In December 2022, the mother went to Japan to purchase the Tokyo flat for her and the children to live in.  Later, she purchased two other properties in Tokyo for investment purposes.

101.  Between December 2022 and January 2023, the father and the father’s mother also visited Japan together with the mother and the children to set up their lives there.

102.  Between January and August 2023, the mother shuttled between Shanghai and Tokyo to prepare for the relocation, including setting up the home in the Tokyo flat.

103.  The father agreed to the children applying for permanent residency in Japan.  On 16 March 2023, the father signed the form for the children’s Japanese residence cards.  The mother also asked the father to bring the children to Japan to activate the permanent residency process.

104.  In June 2023, the father, on his own initiative, hired a Japanese tutor for the children so that they could start learning Japanese in Shanghai prior to the relocation.

105.  In July 2023, the mother asked the father whether the children should do half French and half Japanese at [School T].  The father replied of course 100% Japanese.

106.  The children withdrew their school places at [School S].  The mother highlights the fact that there was no reservation at [School S] for the following academic year.

107.  All the mother’s and the children’s belongings from the mother’s place in Shanghai were shipped to Japan, leaving only old furniture and belongings.  The mother’s place in Shanghai was then put on the market for sale.  She laid off her driver and helper in Shanghai.

108.  In late August 2023, when the mother and the children left Shanghai for Tokyo, they travelled with four huge suitcases, which contained the children’s belongings and their cellos.

109.  The Tokyo home was fully set up, renovated and decorated. The father in fact sent some custom-made furniture to them.  The mother hired a helper to assist with the housework.

110.  From August 2023 to June 2024, the children lived in Japan for about 11 months.  They attended [School T].  The mother was then a “mid to long-term resident” in Japan with permanent resident status.  The child was also a resident and was covered by Japanese medical insurance.  Tokyo was clearly their settled home.  The child fully integrated into his life in Japan.  Copies of photographs showing his daily school lives and social lives were exhibited to the mother’s affirmations.

(1)  At school, the child was appointed as the language ambassador.

(2)  He had weekly private tutoring to improve his Japanese.  He became conversational in the language. 

(3)  In his school report dated 24 June 2024, his Japanese teacher commented that he had been “learning basic Japanese” and he exhibited “good ability in Japanese”. 

(4)  In the report, under “Student Reflection”, the child said:

“I think I have become more confident this year. I have made a lot of friends.”

(5)  The child was invited to birthday parties and friends’ houses for play dates.  His best friend is called XX (a Chinese schoolmate at [School T]), with whom he spoke on the phone every day and played video games. 

(6)  The child joined extra-curricular activities. He played football with the XX team, a local team in the neighbourhood.  He attended weekly bouldering class with a Japanese route-setter.  He learnt cello.  He joined the orchestra at [School T] and also the XX Symphony Orchestra.

(7)  The child knew the neighbourhood well.  He was able to travel on his own. 

111.  As for the mother, she acquired a lifetime membership, as opposed to a three-year membership, of the Tokyo American Club, a prestigious club frequented by expatriate families in [School T].  The children are dependent members.  They used the facilities and hung out with friends there on a regular basis and the staff would recognise them.  The mother bought a car.  She and the children adopted a two-year-old dog which they named “Muffin”.  The children were very attached to Muffin.  In addition to the father, the maternal grandmother also visited the children in Japan regularly, coming to Tokyo every month until her arrest in March 2024.  In April 2024, the mother’s brother, with whom the children are very close, moved to Tokyo.

112.  It is the mother’s case that by the time the children travelled to Shanghai in late June 2024, they had already fully integrated into their lives in Japan.  The trip was intended to be a short one.  The child left with a small carry-on bag expecting to return shortly to his home in Tokyo.  All his belongings were left behind, including his cello, school bags, daily clothes.  He was due to return to Tokyo to start a new school year.  As the mother initially expected the children to be back on 5 July, she made an orthodontic appointment for the sister in Tokyo on that date.  When the return date was changed, she specifically texted the father asking when the appointment should be re-scheduled to.  The father replied that as the children would return on 17 August, any day on or after 18 August would do.

113.  After the father sent the message on 3 August saying that the children would not be returning to Japan, the mother was extremely shocked, worried and confused.  She tried to contact him multiple times.  However, he refused to pick up her calls or communicate with her.  The mother described her reaction in her affirmation:

“I had no clue of [the father’s] reasoning and the purported promises. … At no time was there a discussion and/or agreement of a purported one-year stay. And there was also no discussion about my parents’ investigation in Shanghai. … He made reference to my mother’s release in August 2024, and that there was no “reason” to continue staying in Japan. I see no logic in this assertion.”

114.  In fact, on the same day when the father sent the message, the children travelled to Taipei together with the paternal grandmother.  On the following day, the father unilaterally enrolled the children in [School S] behind the mother’s back. 

115.  As the father did not respond, the mother texted the paternal grandmother complaining about the father’s behaviour which was selfish and irrational:

“[6 August 2024]

Mother: 媽媽，

[father’s name]和我母親吃飯的時候他也提到了17號會帶孩子回來日本，我們都以為他會信守承諾。

我不知道如何和我母親提起，我可能暫時都見不到孩子這件事，她最近還需要繼續配合調查，事情還沒了結。

大家也都為了孩子好，我父母對[father’s name]也不薄，這次[father’s name]接連7月8月欺騙我說會帶孩子回來，却再無下文，等到的就是冷冰冰的一句微信，不接電話。現在這個時間點單方面把孩子帶走，落井下石，我認為實在不太妥當。”

116.  The mother also denies that the conditional agreement was ever made.  She says that there is not a shred of evidence about this alleged agreement apart from the father’s bare assertion, notwithstanding the extensive messages exchanged between the parties.  After the father’s wrongful retention on 3 August, he immediately rushed to enrol the children in [School S].  There was no careful preparation for the alleged conditional agreement. According to the mother, it was this wrongful retention which started the terrible conflict that has turned the child’s life into turmoil.

117.  Overall speaking, the mother’s case in the Hague proceedings is that as of 3 August 2024, the child’s place of habitual residence was Japan and he should now be returned there for his care arrangements to be determined by the court in that jurisdiction.  She wants nothing more than for the child to return to his normal life in Tokyo, be reunited with his dog and his friends, go back to [School T] where he was happy and was doing well.    

FROM AUGUST TO NOVEMBER 2024

118.  As the children were not returning to Japan, the mother flew to Shanghai on 19 August.  This month marks the beginning of the complete breakdown of the relationship between the parties. 

119.  During the period from August to November 2024, of present relevance are the two incidents which happened on 20 and 28 August. The mother says that what happened on 28 August is one prime example showing that the father has put pressure on the child and put him directly in the conflict between the parents.  The incident has been traumatising for the child and demonstrates a terrible lack of judgement on the part of the father towards the well-being of the children.

120.  Also of relevance is the care proceedings in the Shanghai court.  The father relies on the evidence in those proceedings to show that it was indeed the mother who was applying pressure on the child as she took him to a “mock court” beforehand where he was told what to say.  On the other hand, the mother complained that during this period, the father had been taking videos of the children for use in the proceedings in which the children spoke against their mother.

The incidents on 20 and 28 August 2024

121.  On 20 August, the mother went to [School S] intending to pick up both children.  She managed to collect the sister. However, she was prevented by the paternal grandparent to pick up the child.

122.  On 28 August, the father went to the mother’s flat to retrieve the sister.  The child was brought along because, according to the father, he knew the way to get up to the flat.  The mother was not at home but her boyfriend was there.

123.  The mother’s account is that the father physically snatched the sister away with a group of four unknown men.  The child witnessed the events as they unfolded.  This included the father and the other men violently fighting off the mother’s boyfriend. 

124.  Both the father and the mother rely on the CCTV footage showing the inside of the lift and the lift lobby outside the mother’s flat.  The mother says that it shows quite a shocking account of the violent encounter and the child was placed right in the centre of the violent scuffle. The father however says that the footage shows that the boyfriend in fact forced his way into the lift and that all along the sister was standing in the corner of the lift, not being forced or restrained in any way by the father.

125.  According to the mother, the child later told her that his legs went weak during the incident.  The incident shows the extreme lengths the father would go.  To drag the children away from the mother was disproportionate and violent.

126.  The mother says that after the incident, she was unable to communicate with the children.  In the meantime, the father had been making videos of the children in which they said that they did not want to call the mother and that she was crazy.

The care proceedings in Shanghai

127.  The care proceedings in Shanghai also commenced on 28 August.  Both parties were legally represented.

128.  At the court’s directions, the parties negotiated and came to an agreement on interim child arrangements.  On 10 September, they signed the interim agreement.

129.  The mother says that it was only after the signing of the interim agreement that she was able to see the children together for the first time after the incidents in August.  To her dismay, the mother found numerous tracking devices on the children.  She also noticed that the children behaved differently and in a reserved manner, especially in the child’s case.  Recognising that they were suffering, the mother arranged for the children to receive therapy.

130.  The hearing of the care proceedings took place on 31 October.  After that, the mother says that she was suddenly unable to have any access with the children at all.

131.  On 6 November, the court handed down the judgments for both care applications.  The judgments reveal that the child had attended three interviews for the purpose of the proceedings.  As recorded in the judgments:

(1)  The first interview was on 9 September.  The child stated that he was only in Japan temporarily and he wanted to return to the mainland.

(2)  The second interview was on 15 October.  The child gave an opposite view.  He said he wanted to live in Japan and could accept being separated from the sister.

(3)  The third interview was on 29 October.  The judge went to see the children without notifying the parents beforehand in order to prevent them from interfering with the child’s wishes.  On this occasion, the child told the judge that before the second interview, he had been taken by the mother to a “mock court” and taught to say things in her favour.  He also said that if he did not do what the mother said, he was afraid that she would be angry.  He said that he preferred the school in Shanghai and did not want to be separated from the sister.

132.  The court found that there was no evidence of interference with the child’s views from the father but there was evidence of interference from the mother.  It also found that the child indeed preferred to live with his father in Shanghai.  The court ordered that care of the child should remain with the father, with access given to the mother one day per week.

133.  The father contends that the evidence before the Shanghai court shows that the mother had been pressuring the child.  Furthermore, the father points out that in the care proceedings, the mother did not apply for the child to go to Japan.  In fact, at that time, she claimed that she did not plan to settle in Japan. This is how the judgment recounted the mother’s intention:

“自己也沒有要定居日本”

134.  The mother then lodged an appeal against the judgments.  In her notice of appeal dated 25 November, she said that she clearly stated in the proceedings that she had no intention of settling in Japan and yet the judgment subjectively speculated that she had such an intention.  She criticised that as absurd.  That ground of appeal read as follows:

“原判決在沒有任何證據且[the mother]明確表示沒有在日本定居的打算後，仍然主觀推測[the mother]有定居日本的打算，實屬荒謬。”

135.  The position taken by the mother in the care proceedings is of course directly contradictory to her position in the present proceedings (see para 117 above).

136.  On this contradiction, she explained in her affirmation:

“In response to [the father’s] allegation that I had submitted to the PRC Court that I did not intend to settle in Japan, it was pleaded this way upon my PRC Lawyer’s advice that this way I could be with the Children wherever they wanted to be in the future, whether it would be Japan or UK – the priority is I have the Children back in my care.”

137.  Furthermore, based on the PRC legal advice which the mother receives, given that the judgments are under appeal, they are not effective yet.  The significance is therefore that as of this date, there is no existing or legally effective order on the custody and care of the child in any court.

138.  Contrary to the access terms ordered by the court, the mother was only able to see the child for half a day on 17 November and then on 23 November for overnight access.

The mother took the child to Hong Kong on 25 November 2024 without the consent of the father

139.  On 24 November, the father received a text message from the child’s phone saying that he would be skiing for two days with the mother.  Upon receiving that, the father tried to call him but his phone was turned off.  The father then texted the mother saying that she could take the child to ski during school holidays but not in the middle of the school term.  The child never called back the father.

140.  As it turned out, the mother did not take the child to go skiing.  Instead, on 25 November, she took the child to Hong Kong.  As the latter’s travel documents had been lodged with the Shanghai court under the interim agreement, the child entered Hong Kong through the Lo Wu immigration control point using his birth certificate.

141.  The mother explained why she did this in her affirmation:

“On 23 November 2024, when I saw [the child] again and after his repeated plea that he does not want to stay with [the father] or in Shanghai and it would be devastating that he were to be kept in China, with the signs of distress such as having no appetite and extreme fatigue, I decided that the only way I could help [the child] to get out of this mess would be to take him to Hong Kong by car to avoid being followed. [The child] was born in Hong Kong, with Hong Kong resident’s status, I trust this Honourable Court, which is a signatory to Hague Convention, would be able to protect [the child] from further abuse by [the father].”

142.  Ms Mairéad Rattigan, SC, who represents the mother with Ms Terri Ha, submits that this was a desperate response to the father’s total obstruction of access and the emotional distress caused to the child.  The mother felt compelled to resort to such drastic actions in order to protect the child’s well-being.

143.  On the day they arrived in Hong Kong, the mother took the child to the Immigration Department and applied for a replacement HKSAR passport for him.  The plan was for them to travel to the UK later in the week to meet an education consultant there, using the new passport.

144.  According to the father, his solicitors were informed by a senior immigration officer of the Immigration Department that the mother claimed that the original passport was lost. 

145.  Shortly after the commencement of the wardship proceedings, I directed the mother to explain a number of things on affidavit, including why she brought the child to Hong Kong.  On 4 December 2024, I also directed the mother to explain “the circumstances in which she applied for the replacement HKSAR passport for the child”.  She was reminded of her right to claim privilege against self-incrimination.

146.  The mother has filed five affirmations in these two sets of proceedings.  I should put on record that she did not provide any explanation about the passport in any of the affirmations.  Nor did she ever claim privilege.

THE MEDICAL CONDITION OF THE CHILD

147.  It is plain that the child has gone through a lot in the past six months since August 2024, whether on the father’s or the mother’s account of events.  He is experiencing emotional and psychological issues.  There is no doubt that his current medical condition should be at the forefront of the court’s mind.  This is so that proper orders are made to ensure that he is receiving proper treatment, if so advised professionally. His medical condition is also material in that both parties are saying that if he is to be returned to the other party, the child would suffer and that he would be exposed to further psychological harm or be placed in an intolerable situation. 

The mother’s case

148.  The mother says that before August 2024, the child was having a happy life living and studying in Tokyo.  Because of the father’s wrongful retention, the child’s world has been turned upside down.  He has gone from being a happy and energetic adolescent to being emotionally distraught, anxious, angry and suffering from the effects of PTSD.  He also refuses to see the father.  While he is in Hong Kong, all the attempts for him to meet the father in person have failed. 

149.  The mother claims that it is the father who has placed the child directly in the conflict and in a loyalty bind, having to choose between his parents.  He has made him make videos and speak against the mother.  Ms Rattigan describes what the father did as “simply terrible”.  As a result, the child is suffering immensely.

150.  According to the mother, after his emotional outburst at court on 6 December, the child had several panic attacks, nightmares and showed self-harming tendencies over the next few days.  To date, the child has been taken to see a total of eight medical professionals, including psychiatrists and clinical psychologists.  The mother highlights the following:

(1)  On 14 December, Dr Cheung Hoi Ki (psychiatrist) reported that the child presented suicidal thoughts and self-harm behaviours. The diagnosis was PTSD and medication was prescribed.  The doctor initially recommended that the child should withhold contact with his father in the meantime to avoid any triggers.

(2)  On 16 December, Dr Adrian Wong (clinical psychologist) confirmed that the child was suffering from PTSD and he was receiving psychotherapy under his care to manage his symptoms.

(3)  On 9 and 16 January, Dr Phyllis Chan (psychiatrist) re-affirmed the diagnosis of PTSD but confirmed that the panic attack phase had passed.

151.  The latest development is what happened on 24 January, which is the day scheduled for access with the father in the presence of the staff from Rent-a-Mum.  According to the mother, the child woke up at 4 in the morning feeling extremely anxious.  On his way to the Mandarin Oriental Hotel, the child said he felt short of breath.  In the end, he ran out of the hotel lobby without even seeing the father.  He threw up and kept scratching himself.

152.  The mother says that the father’s conduct clearly has contributed to the child’s present psychological state.  Worse still, the father seemed to be unwilling for the child to consult medical professionals and take medication prescribed by the doctors, as shown in the solicitors’ correspondence in December 2024.  Fortunately, the mother persisted with the treatment and according to her, the child’s condition had been improving.

153.  The mother’s view is therefore that she is best placed to oversee the medical consultation process to ensure that the child receives proper treatment.  On this, Ms Rattigan states the concerns of the mother as follows:

“The Mother is extremely concerned that a summary order for [the child] to return to the Father would trigger an episode in [the child], and amplify the physical and psychological harm to [the child].

…

It is not in his interests to force a sudden and immediate return to the Father’s care now, and risk triggering an extreme emotional reaction with physical violence again.  Effort and time is needed for [the child’s] relationship with the Father to be rebuilt, which the Mother will facilitate …”

The father’s case

154.  On the other hand, the father’s view is that the child is suffering while in the mother’s care.  The mother has inflicted serious psychological harm on the child.  The father highlights that the mother had put the child under fear and pressure in the course of the Shanghai proceedings.  She took the child to a mock court and coached him to say things in her favour.  Since abducting the child to Hong Kong, the mother has embarked on a process of alienating him from the father.  Otherwise there is no reason why the child would refuse to see him at all.

155.  The father’s position is that if the child is sent to Japan, there will be no protective measures that can properly safeguard him against the mother’s behaviours pending orders of the Japanese court.  The father cannot move to Japan. The sister is in Shanghai and his job is also in Shanghai.  There is no reason to think that the mother’s behaviour would change in Japan.

156.  That is the defence raised by the father under Article 13 in the Hague proceedings.

The SJE report

157.  Dr Craigen set out her opinions in the SJE report after interviewing the father, the mother and the child.  I set out below her material observations and findings on the psychological condition of the child.

158.  The child exhibited an “extremely elevated” level of anxiety, an “extremely elevated” level of depression and a “moderately elevated” level of anger, compared to others of his age and gender.  He reported that he “always” worries about the future and that something bad might happen to him.  He reported that he sometimes wishes he were dead, always feels stupid and he often feels bad about what he does.  He reported that he “always” feels like screaming and he “often” thinks his life is unfair. 

159.  The tests also revealed a high possibility that he may have a stressor-and-trauma related disorder.  He reported being bothered “quite a bit” by repeated, disturbing memories, thoughts or images of stressful experiences from the past, feeling as if a stressful experience were happening again, repeated disturbing dreams of a stressful experience from the past, difficulties concentrating and feeling as if his future would somehow be cut short.

160.  The tests revealed notable internalising difficulties.  He almost always gets so nervous that he cannot breathe and is excessively worried something bad will happen to him.  He is nervous and is unable to relax.  He also sometimes feels sad, misunderstood and perceives his life as getting worse and worse (eg I “sometimes” feel life isn’t worth living).  He acknowledged that he used to be happier.  Moreover, he often experiences minor health related problems, eg headaches, stomach ailments, and/or dizziness.

161.  Dr Craigen found that both the father and the mother appear to be caring, loving and invested parents.  Historical evidence suggests that the child had been well cared for by both parents.  The child’s attachment to both of them is evident.  Her evaluation did not reveal any serious concerns regarding the parent capacities of either parent.  As regards the relationship between the child and the father, Dr Craigen observed that during the Zoom interview, although the child was initially resistant to speaking with the father, he quickly warmed to him.  It was clear that “a deep emotional attachment exists between them as well as his extended family”.

162.  However, she found that the child has been suffering from distress of moderate-severe severity and that was caused by the events which began in July 2024 and his emotional and psychological symptoms are largely due to the conflict between the parents.

163.  I quote from her summary findings on the cause of the child’s current psychological issues and the ways to resolve them:

“10. Possibly the most serious concern is that neither parent seems to fully appreciate [the child’s] need for psychological safety, nor do they appear to be aware that the psychological and emotional symptoms he is clearly experiencing are largely due to the conflict between them. Therefore, the quicker they can find and agree on a fair and equitable solution to address the issues surrounding care and control, the faster his symptoms will attenuate. Solutions that restrict contact with or access to either parent are likely to continue to cause him harm.

11. The cumulative distress caused by the events that began to unfold from July 2024 onwards appears to be of moderate-severe severity; [the child] perceives himself as having few of the protective psychological resources that typically facilitate emotional resilience and he is extremely sad and anxious, as well as very angry. In addition, he appears to harbour beliefs that he cannot trust his parents, that his life is getting worse and worse, and when a person is pushed hard enough, there comes a point beyond which anything he does is justifiable.

12.  [The child’s] attachment to both parents is evident and these primary emotional bonds are a reflection of his internal working models of himself in relation to others. Unless [the child’s] parents can reach an agreement, potentially via mediation, regarding his schooling and living arrangements, protective measures, such as boarding school and the threat of criminal charges, should be enforced to ensure his continued contact with and access to each of them.  Disruptions in primary attachments not only causes significant distress in children, but they also then cause disturbances in the ability to develop healthy relationships in the future.  A secure and stable family environment is also essential for the development of healthy self-esteem and wellbeing in children.”

164.  Dr Craigen stressed that the parents need to find ways to better manage their own high conflict relationship.  And this will serve as a foundational building block for the continued development of the child.

The Official Solicitor’s report

165.  In the Official Solicitor’s report, Ms Ip recounted what the psychiatrist and the clinical psychologist who are currently treating the child told her about his present medical condition.

166.  Dr Phyllis Chan, who had met the child twice, was of the opinion that he had mild PTSD and depression symptoms, which were improving after medications. 

167.  Dr Adrian Wong first met the child on 16 December, and then about once a week.  He had concerns about the child being under constant stress and jiggling between the parents due to their conflict and the ongoing proceedings.  He observed that the child was overall stable without much typical anxiety but he was noted to have very frequent eye blinking.

THE CHILD’S WISHES

168.  According to the mother, the child has expressed strong objections to going to Shanghai with the father.  His objection can clearly be seen from his immediate reaction after being informed that he should go back to the father while he was in Hong Kong in court on 6 December.  The mother says that his emotional breakdown directly led to his diagnosis of PTSD. 

The SJE report

169.  In his interview with Dr Craigen, the child said that he wanted to return to Japan with the mother. He gave four reasons:

(1)  He will have a better education with the mother.

(2)  He can do his sports with the mother.

(3)  He will feel safer with the mother.

(4)  His mother cares about his emotions.

170.  Dr Craigen is of the opinion that there are doubts as to the authenticity of the child’s stated wish which was “likely to have been shaped by the motives of others” and that the child presented as a child who had his “mind-made-up”, meaning that the child is consciously aware that he is campaigning for a particular parent.

171.  She gave a number of reasons for her opinion.

172.  First, she observed that the reasons which the child gave for preferring Japan were very clear and definitive reasons which he repeated in the interview.  There was a “rehearsed quality” to his statements.

173.  Second, the child was unable to articulate his rationale beyond the repeated recital of the “four rather scripted reasons”, which were almost identical to those shared by his mother during her interview.

174.  Third, all children undergoing an evaluation will initially exhibit some degree of apprehension.  However, almost all will warm to an experienced evaluator and become comfortable as the evaluation progresses.  However, children who feel the need to campaign for a particular parent are of the very few exceptions.  Dr Craigen observed that the child remained rather tense throughout the evaluation, kept to “the script”, made only fleeting eye contact, and resisted overtures of friendliness.

175.  Furthermore, while the cognitive tests showed that the child is an intellectually capable boy and can engage in sophisticated reasoning process, Dr Craigen is of the opinion that it would be premature to overestimate his ability to fully comprehend the psychological and emotional impact his decisions may have, given his young age.  This is because he has only begun the process of developing his higher-order critical thinking and reasoning skills.  His immaturities in this area were evidenced by his inability to communicate an adequate understanding of the broader issues at hand.  He was also unable to demonstrate an appropriate level of awareness of the potential long-term impact, risks and/or consequences his decision may have on his mental well-being and relationships with key family members in the future.

The Official Solicitor’s report

176.  In her report, Ms Ip stated the child’s wish, as related to her by Dr Phyllis Chan and Dr Adrian Wong.

177.  Dr Chan observed that the child felt closer to the mother and would like to live with her, but it really did not matter to him whether it was in Shanghai or Japan.  The child was also fine with the sister and the family members of the father’s side.  Dr Chan reported that according to the child, the father would get angry easily and sometimes verbally or physically abused him by pinching his shoulders or beating him with a hanger, when he did not follow the father’s instructions.

178.  Dr Wong reported that the child loved both the father and the mother, but he did not feel comfortable whenever he thought of the father.  The child himself seldom proactively mentioned any bad things about the father, which were instead mostly reported by the mother.

179.  Upon enquiry, Dr Wong recalled that the child did mention about the father pinching his shoulders or beating him with a hanger.  However, Dr Wong did not consider that there was any cause for concern as it was just a general comment made by the child.  Also, he did not appear to be very traumatised when relating the information.  Dr Wong had doubts about the validity of these statements and wondered if the child’s views had been coloured by others.

180.  Lastly, Dr Wong observed that the child was not actually passionate in returning to Japan.  Put it another way, he just had no objection to going to Japan.

THE HAGUE PROCEEDINGS

181.  I shall first deal with the mother’s application in the Hague proceedings.

182.  The objective of the Hague Convention is to ensure the prompt return of children who had been wrongly removed by one parent against the wish of the other parent to another country, back to the country of the habitual residence of the children so that the courts of that country may determine the question of custody and residence of the children on the basis of a full welfare investigation: LCYP v JEK at para 6.

183.  Articles 3, 12 and 13 of the Convention are presently relevant.  I reproduce the contents below:

“Article 3

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.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

…

Article 13

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.”

184.  The mother’s case is that as of 3 August 2024, the place of habitual residence of the child was Japan, and the father had wrongfully retained him in Shanghai as from that date.  She asks for a return of the child to Japan under Article 12.

185.  Mr Shaphan Marwah, counsel for the father, submits that as of 3 August 2024, the mother did not have any rights of custody over the child under Japanese law.  The Convention is therefore not engaged.  Furthermore, he submits that as of that date the child’s place of habitual residence was Shanghai, not Japan.  Hence, the Convention does not apply.  Alternatively, if the child’s place of habitual residence was Japan, the father raises three defences under Article 13.  First, he contends that the mother had given her consent for him to remain in Shanghai pursuant to the conditional agreement.  Second, as an alternative, she acquiesced to the child remaining in Shanghai.  Third, if the child is sent to Japan, there is a grave risk that he will be suffering in the mother’s care and exposed to psychological harm or placed in an intolerable situation.

186.  As the evidence reveals, the main point of contention is the habitual residence of the child as of 3 August 2024.

Legal principles on habitual residence

187.  The leading authority in Hong Kong on the issue of habitual residence is the Court of Appeal’s decision in LCYP v JEK.  I reproduce below the general principles set out in para 7.7:

(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;

(2)  The factual question is: has the residence of a particular person in a particular place acquired the necessary degree of stability to become habitual?

(3)  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;

(4)  The concept corresponds to the place which reflects some degree of integration by the child in a social and family environment;

(5)  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;

(6)  There is no legal rule, akin to that in the law of domicile, that a child automatically takes the habitual residence of his parents; and

(7)  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.

188.  As regards the requisite degree of integration (sub-para (4)), it is to be noted that the criterion does not require the child’s full integration in the environment of the new country which he moves to but only a degree of it.  In certain circumstances, the requisite degree of integration can occur quickly: Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 at para 39.

189.  As regards the issue of parental intention (sub-para (7)), it is important to understand how it operates as a relevant factor.  The modern approach of determining habitual residence is to adopt a child-centred approach.  It is the child’s habitual residence which is in question.  It is the child’s integration which is under consideration.  These questions are not necessarily determined by the decisions of his parents.  It is not a question of the parents determining the habitual residence of the children.  It is a question of looking at the impact which the parental decisions about where the children will live have on the factual question of where the children habitually beside: Re LC (Children)(Reunite International Child Abduction Centre intervening) [2014] AC 1038 at paras 62 and 64.

190.  In that case, Baroness Hale explained, at para 62, the different impact a parental decision may have, depending on the individual circumstances of the child in question:

“… The tiny baby whose mother took him back to her home country in Mercredi v Chaffe was in a very different situation from any of the three children with whom we are concerned. The environment of an infant or very young child is (one hopes) a family environment and so determined by reference to the person with whom he lives. But once a child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account. Furthermore, where parents are separated, there may well be two possible homes in which the children can live and the children will be well aware of this. This may well affect the degree of their integration in a new environment.” (underline added)

191.  As regards the situation concerning a child who has moved from one country to another (sub-para (7)), the question before the court then becomes at which point in time the child has lost habitual residence in the original country and gained habitual residence in the new one.  The modern concept operates in the expectation that an old habitual residence is lost when a new one is gained.  It is clear from the authorities that this question remains overarchingly a question of fact: Re B at paras 45 and 46.

192.  Among the factors that the court is entitled to look at is the past history of the child in question. In Re LC, Baroness Hale explained, at para 63:

“The quality of a child’s stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another.”

193.  In Re B, Lord Wilson offered the following guidance, at para 46:

“The identification of a child’s habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him: (a) the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state; (b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.”

Legal principles on consent

194.  The principles on consent are well-established.

195.  In EW v LP HCMP 1605/2011, 31 January 2013, Deputy High Court Judge B Chu (as she then was) explained, at para 37:

“Consent, if it occurs, precedes the wrongful removal or retention; acquiescence, if it occurs, follows it. Consent is not defined in the Convention, but the question whether a wronged parent consented is a question of fact. The issue of consent is a very important matter; the existence of consent needs to be established on the balance of probabilities by clear and cogent evidence, although it is possible in an appropriate case to infer consent from conduct. The consent should be to the child’s permanent removal or retention.”

196.  Consent to the removal of the child must be clear and unequivocal.  The burden of proving the consent rests on the person who asserts it.  The enquiry is inevitably fact-specific and the facts and circumstances will vary infinitely from case to case.  The ultimate question is a simple one even if a multitude of facts bear upon the answer.  The question is – had the other parent clearly and unequivocally consented to the removal? See the principles set out in Re P-J (Children) [2009] EWCA Civ 588 at para 48.

Legal principles on the approach to the evidence

197.  Proceedings under the Hague Convention are summary in nature. They are designed to provide a speedy resolution of disputes over children. It is not the general practice to admit oral evidence at the substantive hearing and the court is to decide the case on affidavit evidence only. In fact, it has been said that the admission of oral evidence in Convention cases should be allowed sparingly: Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 at 552 to 553.

198.  Where there is irreconcilable affidavit evidence and no oral evidence is available, the approach of the court in resolving the factual dispute is well-established. See Re F at 553:

“If a judge is faced with irreconcilable affidavit evidence and no oral evidence is available or, as in this case, there was no application to call it, how does the judge resolve the disputed evidence? It may turn out not to be crucial to the decision, thus not requiring a determination. If the issue has to be faced on disputed non-oral evidence, the judge has to look to see if there is independent extraneous evidence in support of one side. That evidence has, in my judgment, to be compelling before the judge is entitled to reject the sworn testimony of a deponent. Alternatively, the evidence contained within the affidavit may in itself be inherently improbable and therefore so unreliable that the judge is entitled to reject it. If, however, there are no grounds for rejecting the written evidence on either side, the applicant will have failed to establish his case.”

The factual dispute over the parties’ intention

199.  The intention of the father and the mother from about April 2022 to 3 August 2024 as to where the child should live is in dispute.  This factual dispute needs to be resolved first.  While the resolution of this dispute will not dictate the answer for the habitual residence of the child, once the intention is found, the court is to look at what impact it has, if any, on the life of the child: Re LC at para 64.

200.  The father and the mother put forward starkly different accounts on this factual issue.  There is no oral evidence adduced before me.  I shall analyse the affidavit evidence by applying the approach stated in Re F.

201.  In theory, the first task is to determine who bears the burden of proof.  Does the father bear the burden to prove his case on the initial agreement and the conditional agreement? Or, does the mother bear the burden to prove her case that the move to Japan was on a long-term basis?

202.  In the present case, it is unnecessary for me to determine with whom the burden lies.  This is because even assuming that the father bears the burden, I am satisfied that on the balance of probabilities, he has discharged the burden with cogent evidence and made out his factual case on the issue of intention.  I arrive at this conclusion for a number of reasons.

203.  First, the father’s case is on the whole coherent and internally consistent.

(1)  From the time when the idea of going to Japan was first floated in about April 2022, the father consistently expressed his concern that the children were too young to leave him.

(2)  On the other hand, the mother was keen to obtain foreign passports, in particular Japanese passports, for herself and the children. She was also driven by the COVID situation in the mainland, with which she was not happy.

(3)  The father was willing to cooperate with the mother on this. He was prepared to go along and take the necessary steps suggested by the mother to see how it went. However, foreign passports for the children was not his primary concern.

(4)  Throughout the correspondence up to May 2024, the father made clear that he was not willing to let the children stay in Japan for more than one academic year.

(5)  In fact, the mother at different times assured him that one year would be sufficient for the children to obtain their permanent residency status in Japan. Furthermore, within that year, the children would need to stay only for half of that period and could go back to Shanghai for the other half. The mother thought it was a very good idea for the children to go to a good school in Japan and at the same time accumulate sufficient time to obtain the permanent residency status.

(6)  After the arrest of the maternal grandparents in March 2024, the father engaged in discussions with the mother regarding the plan for the children. This became necessary because the mother did not have the freedom to travel to the mainland in the meantime and she wanted the children to be with her in Japan. Eventually they reached the conditional agreement.

(7)  Up to late July 2024, the father and the mother proceeded in accordance with the conditional agreement. That was why when the children went to Shanghai in late June, everything was done on the basis that it was only for the summer. That was also why the father paid half of the tuition fees for [School T] on 15 July 2024.

(8)  After learning of the release of the maternal grandmother on 29 July 2024, the father texted the mother on 3 August saying that the children would not be returning to Japan. That was also in accordance with the conditional agreement.

204.  Second, the father’s case is on the whole well supported by contemporaneous text messages exchanged between the parties.  The messages really speak for themselves.  In my view, they are cogent and clear evidence in support of his case.  I have already quoted the messages at length above.  I shall now extract the relevant ones which corroborate the material aspects of the father’s case as set out in the preceding paragraph.

205.  As regards sub-para (1), the father expressed his concerns not only once, but many times.  He also repeated his concerns in different contexts, and not only before and but also after the children’s move to Japan.  See, for example, the following messages:

“Btw I’m not ready to let the kids leave my side yet.”

“突然離開上海跟我分開傷害更大呀。”

“我需要再聲明一次我還沒有ready要讓他們去常駐哦”

“但是我還是要說今年不可能讓他們去，現在還太小了我沒辦法跟他們這樣分開。”

206.  As regards sub-para (2), see the following messages from the mother:

“現在進了好的學校，我也正好在做移民監。所以你明年9月不讓他們讀也可以，今年一定要去半年。”

“現在正好進了最好的學校，又可以順便拿永居，拿完就是永久的了”

“我的高度人才簽證以後不會再有，一年拿永居相比所有中國人10年經營管理拿永居的機會也不會再有，這種一石二鳥的機會也不會有”

207.  As regards sub-para (3), see the following messages from the father:

“經過一個禮拜審慎的思考，現階段我還是不可能因為要拿永居讓孩子去日本一年。”

“如果辦永居是為了小孩大學畢業並能去日本就業。這些都是十一年以後的事情。”

“完全不接受再在這邊留第二學年，如果這麼久我就選擇放棄”

“申請歐洲和日本的護照對你比較重要，未來你申請到了，他們去找你都可依親居留。”

“[Mother’s name]。別再提護照了，6月回來是我們的約定。

…

如因我們之間關係不和諧，而帶給孩子焦慮和心理壓力，讀再好的學校、拿再多的護照都無法彌補這個過程給他們帶來的傷害。”

208.  As regards sub-para (4), see the following messages from the father. He was consistently clear that the stay would only be for one year:

“1) 當時你保證一年內會完成手續，我才同意讓孩子過來，我也一直非常積極配合

2) 如因政府流程的不確定性超過而12個月，你剛才說肯定不會拖到第二學年

我想了很久還是決定按照當時的約定6月學期結束後回滬就學

3) 完全不接受再在這邊留第二學年，如果這麼久我就選擇放棄” (underline added)

“當然明年六月他們會回來上海” (underline added)

“明年孩子回上海課業學校由我這邊負責。”

209.  As regards sub-para (5), see the following messages from the mother. She herself stated unequivocally that the stay would not be for more than half a year:

“但是問題是需要住一年，大於180天。

“所以你明年9月不讓他們讀也可以，今年一定要去半年。” (underline added)

“就是12個月裡呆滿180天，學期時間正好，以後怎麼樣你可以提前規劃” (underline added)

“你當gap year 就好”

“2. 英國學校每讀2個月放假一次，所謂的一年也只是9-11月，1到3，4到6月而已”

“就讀一年，半年回國，半年讀書”

210.  As regards sub-para (6), see the following messages from the mother:

“我沒有任何機動性和自由”

“我也想回國，有很多事情要處理，我，我現在什麼也都做不了。”

211.  The mother’s main submission regarding these messages is that she never said the move would only be for one year.  I do not think there is any merit in this submission.  The messages need to be read in context.  I have the benefit of having before me the extensive correspondence exchanged between the parties during the material time.  It is clear from the overall chain of correspondence that initially (and up to May 2024) the parties jointly intended that the children would only study in Japan for one academic year.  In fact, the messages show that the mother was the one who gave the assurance on this, as she was trying to persuade the father to let the children go to Japan in order to get the passports.

212.  Ms Rattigan makes the criticism that the father’s case on the conditional agreement is wholly unsupported by evidence.  The only reference in the messages to the arrangement is in the text sent by him on 3 August.  But that was after the alleged agreement was made.  She also points out that the father has failed to pinpoint any specific date when the conditional agreement was reached.

213.  I accept these comments as fair to an extent.  The conditional agreement is alleged to have been made in May 2024.  Therefore, the text message of 3 August cannot be regarded as a piece of contemporaneous document.  In fact, that is the day on which the mother says the father reneged on the agreement.  There is therefore no direct documentary evidence showing the alleged contents of the conditional agreement.

214.  However, there is undisputed evidence corroborating the background leading to the making of the conditional agreement.  And that is the arrest of the mother’s parents and the mother’s own view that she could not travel to the mainland after her parents’ arrest.  In addition, the rationale for making the conditional agreement is inherently plausible.  This lends support to its credibility.

215.  Third, the mother’s factual case is internally contradictory and is also directly contradicted by the contemporaneous documents in a number of material respects.

216.  Her allegation that the move from Shanghai to Japan in August 2023 was intended to be on a long-term basis is directly contradicted by what she said in the Shanghai proceedings.  As late as in November 2024, when she launched her appeal against the Shanghai judgments, she was still repeating that she did not intend to settle in Japan.  See paras 133 to 134 above. In these proceedings, she stated on affirmation that the reason she said so in the Shanghai proceedings was because of the legal advice that she was given. See para 136 above. Simply put, she told the Shanghai court something that she knew to be false in order to get what she wanted.

217.  If what she now says is true, that means she was lying about her intention to the Shanghai court back in October and November 2024.  If what she said to the Shanghai court then is true, that means she is now lying to this court.  It is simply impossible for me to tell when (if at all) she is telling the truth and when she is not.  As such, I am not able to give any weight to her present assertion that the move to Japan was for the long term. That is a bare assertion. She has not pinpointed any single contemporaneous document which is in support of that.

218.  The mother also makes the allegation that the father wanted the children to obtain permanent residency in Japan: see para 95 above.  This allegation is contradicted by the contemporaneous messages which show that the father was in fact not enthusiastic about securing foreign passports for the children and that he was quite prepared to give them up if that involved keeping the children in Japan for more than one year.  See the messages quoted in para 207 above.

219.  On the whole, I find that the mother’s account of events is unreliable in a number of material respects.

220.  For the above reasons, I find that the father’s account on the intention of the parties regarding the children’s stay in Japan to be true.  I find that the initial agreement and the conditional agreement were indeed made as alleged by the father.

Habitual residence

221.  The child had lived in Shanghai for all his life until August 2023 when he moved with the sister and the mother to Japan.  There can be no dispute that before the move, he habitually resided in Shanghai.  The question now before the court is whether by 3 August 2024, he had lost his habitual residence in Shanghai and gained one in Japan.

222.  The mother’s evidence on how she had prepared for the move as early as from mid-2022, how she had set up the home in the Tokyo flat, and how the children had settled into their student, family and social lives since they arrived in August 2023, as set out in paras 98 to 111 above, are factors pointing to the conclusion that by 3 August 2024, the child had gained habitual residence in Japan. The following factors are particularly notable:

(1)  A lot of preparatory work had been put in to set up the new home not only by the mother, but also with the assistance of the father, well in advance of the move.  This would help the children to integrate into their new lives in Tokyo quickly: see para 193 above, in particular, point (b) in the extract of Re B.

(2)  The photographs produced by the mother show that the Tokyo flat is a well set-up and comfortable home for the children.

(3)  The children were covered by medical insurance in Japan.

(4)  The child studied full-time at an international school in Tokyo.

(5)  The child mastered a basic level of Japanese.

(6)  The child went to a number of extra-curricular activities, including not only those at school but also those outside school.  He played football in a local team in the neighbourhood.

(7)  The child had friends with whom he socialised.

223.  All the above shows that while the child was in Japan, there was certainly a degree of integration into the lives there.  

224.  On the other hand, the following factors point to the conclusion that he had not lost his habitual residence in Shanghai as of 3 August 2024:

(1)  The child had prior to the move spent his entire life in Shanghai.  He attended [School S] all along.  This suggests that it would take some time for him to lose his habitual residence there and gain a new one in Japan.

(2)  While he was in Japan, the father and his family remained in Shanghai.  As Dr Craigen noted in the SJE report, there is a deep emotional attachment between the child and his father and the extended family.

(3)  As found, the father and the mother intended that the children would only stay in Japan for one academic year, and that during that year, they would only need to spend half of the time in Japan.  While the intention does not dictate where the child habitually resided, nevertheless, in implementing that intention, the children in fact went back to Shanghai every school holiday (save for the first term break). In my view, this is an important factor.  While the child is a full-time student, his holiday is also an essential part of his life.  On the evidence, he spent most of his holidays in Shanghai.

(4)  Equally importantly, the children would go back to the father’s place when they went back during school breaks.  That was indeed one of their two homes before the move.  It can be said that the child retained a home in Shanghai while he was studying in Japan.  This provides an important and continuing linkage, both physical and emotional, between the child and his life in Shanghai.

225.  On balance, I find that by 3 August 2024, the child had not yet lost his habitual residence in Shanghai, and accordingly had not acquired habitual residence in Japan.  In my view, the fact that the child had lived in Shanghai for his entire life before the move and the further fact that he frequently and regularly went back to his home in Shanghai mean that he had not disengaged from his life in Shanghai.  His connection with Shanghai remained a real and substantial one, notwithstanding the amount of time he was spending in Japan.

Conclusion on the Hague proceedings

226.  I therefore conclude that as of 3 August 2024, the child’s place of habitual residence was Shanghai.  The mother’s application in the Hague proceedings therefore fails for that reason.

227.  If I am wrong on this and the place of habitual residence of the child was Japan, I would hold that, on the facts as found, the mother gave her consent for the child to remain in Shanghai under the terms of the conditional agreement and she cannot now retract from that.  Hence, the father would make out his defence of consent under Article 13.  For this alternative reason, the mother’s application would also fail.

228.  In light of my conclusion, it is unnecessary to deal with the issue of rights of custody under Japanese law and the defence of acquiescence.

THE WARDSHIP PROCEEDINGS

229.  I now turn to the wardship proceedings.  As remarked at the outset, there is no reason for the child to remain in Hong Kong with which he has no real connection whatsoever.  It is a question of whether he should be returned to Shanghai or Japan.  The father’s application for the summary return of the child to Shanghai is not governed by the Hague Convention.

Legal principles

230.  The proper approach to applications for the summary return of children to countries which are not parties to the Hague Convention are set out in the House of Lords decision in Re J (A Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80.

231.  The court is to have regard to the welfare of the child as its paramount consideration.  The specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Convention case. Notwithstanding that, the court does have the power, in accordance with the welfare principle, to order the immediate return of the child to a foreign jurisdiction without conducting a full investigation of the merits: see paras 25 and 26.

232.  “Kidnapping” is to be strongly discouraged. The discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading in proper cases to the prompt return of the child to his own country.  There is always a choice to be made between summary return and a further investigation.  A judge may well find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there: Re J at para 32; see also Re M (Children)(Abduction: Rights of Custody) [2008] 1 AC 1288 at paras 38 and 39.

233.  The law does not start from any a priori assumptions about what is best for any individual child.  It looks at the child and weighs a number of factors in the balance.  The court should take into account the well-known “welfare checklist”: Re J at para 38.

Discussion

234.  The child was removed from Shanghai and brought to Hong Kong by the mother unilaterally and without the consent of the father on 25 November 2024.  What the mother did was prima facie in breach of the divorce agreement made in 2016 and the interim agreement made in September 2024, and without having any regard to the judgment handed down in the care proceedings by the Shanghai court in November 2024.  On a practical level, it disrupted the child’s life in Shanghai and caused his separation from the sister.

Shanghai has all along been the child’s home place

235.  Save for the time spent in Japan, Shanghai is where the child has lived practically his entire life.  This is where his sister is right now.  At the time of his abduction on 25 November 2024, he lived in Shanghai and Shanghai was his home.

236.  Applying Re J and Re M, the starting point is that it would be in the best interests of the child to go back to Shanghai as soon as practicable and for any disputes about his future to be decided by the Shanghai court.

237.  This starting point is reinforced by the fact that the mother has already submitted to the jurisdiction of the Shanghai court since August 2024.  Her appeal against the care judgments is in fact ongoing.  As submitted by Mr Marwah, since the Shanghai court is already seised of his welfare, that court will be able to resume supervision without delay.

238.  There is really no reason why the child should be returned to Japan, as suggested by the mother.  He was last physically in Japan in June 2024.  Applying a common sense approach, he has a much closer connection with Shanghai than Japan. It is plain that the Japanese court is not an appropriate forum where issues concerning his custody and care should be decided.

239.  The Official Solicitor is of the view that the child should be returned to Shanghai so that the Shanghai court can deal with the mother’s appeal and make a determination on the rights and obligations of the parties in relation to the child. I agree with that.

The child’s wishes

240.  The child expressed his wish to return to Japan with the mother in his interview with Dr Craigen.  He also expressed strong objections to going to Shanghai with the father.

241.  I accept Dr Craigen’s opinion that the authenticity of the child’s stated wishes is open to doubt. She is the single joint expert. (I should add that she was in fact nominated by the mother’s legal team in one of the directions hearing.) Her opinion is supported by reasons which I consider to be sound and plausible.  I therefore find that the child’s wishes as expressed to Dr Craigen were not his authentic wishes.  In any event, I also accept her opinion that the child had not yet acquired the maturity of such a degree that his wishes should be taken into account or be given considerable weight.

242.  In this regard, it is to be noted that according to both his treating psychiatrist and clinical psychologist, as between Japan and Shanghai, the child does not in fact have a strong preference.

The child’s medical condition

243.  In these proceedings, the mother has repeatedly expressed her concerns about the harm which may be caused to the child if he is to return to Shanghai with the father.  Her case is that the father has played a significant role in inducing the mental trauma from which the child is now suffering.  She also says that the father seems to be unwilling to let the child receive medical treatment for his psychological and emotional issues.  She fears that returning the child to the father’s care now would risk triggering an extreme emotional reaction with physical violence, and amplifying his physical and psychological symptoms.

244.  On the cause of the child’s present psychological and emotional symptoms and the stress which he is experiencing, it is Dr Craigen’s opinion, and I accept, that they are largely due to the conflict between the father and the mother.  In fact, Dr Craigen stated in the SJE report that the most serious concern in the present case is that neither parent seems to fully appreciate the child’s need for psychological safety and they do not appear to be aware of the actual cause of the child’s symptoms, namely their conflict. 

245.  On this issue, I share the Official Solicitor’s observation that the child is at risk of suffering continuing emotional and psychological harm as long as the parents’ conflict persists.

246.  Accordingly, I do not find that the child’s symptoms are caused solely by the father.  The father and the mother share joint responsibility.  They should try their best to agree on a solution to address the care and control issues of the child.  The faster they are able to do that, the faster the child’s mental condition will improve.

247.  In these wardship proceedings, I do not consider that it is necessary to conduct a full investigation on the merits of the issues of custody and care.  In my judgment, an order that the child be returned to Shanghai as soon as practicable would be in his best interests. This would enable the Shanghai court to forthwith proceed with the pending appeal of the mother, decide on the child’s care arrangements and execute its judgment, where appropriate.  The speedy resolution of the legal dispute would help extract the child from the conflict between his parents. 

248.  At the same time, it is of critical importance that the child’s mental health condition should be closely monitored by the medical professionals and treatment be given if called for.  The return to Shanghai should be handled with care, with proper steps taken to manage additional stress or symptoms which may be caused to the child in the process.

249.  The father has asked the court to allow him to accompany the child back to Shanghai.

250.  As regards the relationship between the child and the father, I accept Dr Craigen’s opinion that there is a deep attachment between them.  Having said that, it must be recognised that by now there have been a number of failed attempts to reunite the child with the father.  The child has shown strong resistance to going back to the father.  The most obvious instances are his emotional outburst after the court hearing on 6 December 2024 and his running away from the hotel lobby on 25 January 2025.

251.  According to both Dr Phyllis Chan and Dr Adrian Wong, it would be difficult for the child to return to Shanghai with the father only.  It would be too much pressure for him.  It would also involve a change of carer which is a major factor affecting the child’s psychological well-being.  Dr Wong considers that it would be ideal for the mother to accompany the child to travel to Shanghai and to stay with him there during a transitional period.

252.  The Official Solicitor shares that view.

Conclusion on the wardship proceedings and protective measures

253.  The court should therefore order that the child be returned to Shanghai as soon as practicable.  The mother should accompany the child back, as advised by Dr Phyllis Chan and Dr Adrian Wong.  At the hearing, I asked the mother whether she would follow the advice of the treating doctors in the event that the court ordered a return to Shanghai.  Ms Rattigan, on her behalf, replied that she would want to return to her life in Tokyo as her life is in Tokyo, and she would consider the issue further if the order was made.

254.  I have found that a return to Shanghai would serve the best interests of the child.  To implement that, the professional medical opinion is that the mother should return with the child.  The mother has repeatedly expressed her worry in these proceedings that an order returning the child to the father’s care would trigger an emotional breakdown and worsen his PTSD.  For all these reasons, it is entirely reasonable to expect that the mother should go with the child.  Further, as submitted by Ms Ip at the hearing, it should pose no difficulty for her as we are really just talking about the flight back to Shanghai and perhaps the initial few weeks after arrival.

255.  As previously directed by the court, both the father and the mother have each proposed a series of protective measures to accompany the return order.  The Official Solicitor considers that the father’s proposed measures are sensible and reasonable.  Ms Ip further suggests that it would be an option for the child to attend a boarding school when he returns to Shanghai as this would remove him from the conflict between his parents.  Further, given the tension between them and the potential pressure and influence from the mother, access by the father should be assisted and supervised, and access by the mother be supervised by a social worker (if available) in the short term.  The parties should also be warned of the detrimental effect of speaking ill of the other in front of the child.

256.  I also find the measures proposed by the father to be sensible and reasonable. I will therefore broadly adopt them in the orders below.

257.  Earlier this week, I made the following directions:

(1)  This judgment be handed down at 3.30 pm on 20 February 2025.

(2)  A copy of the judgment be released to the Official Solicitor three hours before the handing down time (ie 12.30 pm).

(3)  The child be brought to Dr Adrian Wong’s clinic no later than 3 pm.

(4)  The Official Solicitor should be present at the clinic and, at the handing down time, should inform the child of the court orders in the presence of Dr Wong.

(5)  As the child is now in the care of the mother, she should accompany him to the clinic and be present when the orders are read out.

258.  These directions are made to ensure that the child’s mental condition is closely monitored and any adverse reaction which he may have upon hearing the orders is managed professionally and without delay.

ORDERS

259.  I dismiss the mother’s amended originating summons in the Hague proceedings.

260.  I also dismiss the mother’s summons in the wardship proceedings.

261.  In respect of the father’s amended originating summons in the wardship proceedings, I make the following orders:

(1)  The child be returned to Shanghai on or before 25 February 2025. 

(2)  The mother do confirm in writing by 3.30 pm on 21 February 2025 whether she will accompany the child back to Shanghai.

(3)  Upon the mother’s positive confirmation, the father shall book seats for the mother and the child on a direct flight from Hong Kong to Shanghai. The mother shall not travel with any other persons, including any friends or close relatives. The father shall be at liberty to travel on the same flight. He shall at all times retain all of the child’s passport, travel and identity documents and shall directly liaise with the Immigration Department on the practical steps to be taken for the child to leave Hong Kong at the airport border control point.

(4)  The father and the mother shall seek the advice of Dr Adrian Wong on the return arrangement.

(5)  In the event that the mother does not return with the child, the father shall accompany him back to Shanghai, but he should first seek the advice of Dr Adrian Wong on the manner in which it should be done, including but not limited to the arrangement for the handover of the child by the mother, and considering and arranging for Dr Wong to accompany the child to Shanghai so that he may give assistance on his mental or emotional needs during his return.

(6)  The Immigration Department do release the child’s HKSAR passport to the father for the sole purpose of returning the child to Shanghai.

(7)  Parties do have liberty to release a copy of these orders to their respective solicitors in the mainland.

(8)  Parties do have liberty to lodge a copy of these orders with the Shanghai court for recognition and enforcement purposes.

(9)  The order made on 6 December 2024 regarding interim access be further stayed until further order of the court.

(10)  The parties’ solicitors do jointly inform the court in writing of the child’s arrival in Shanghai within 24 hours of landing.

(11)  There be liberty to apply.

262.  I make further orders concerning the arrangements for the child after his arrival in Shanghai, pending and subject to any order that may be made by the court in Shanghai:

(1)  Upon arrival, the father do as soon as practicable lodge all of the child’s passports and travel documents with the Shanghai court. They shall not be released to either party until further order of that court.

(2)  Neither party shall bring the child out of the jurisdiction without the leave of the Shanghai court.

(3)  The child shall stay with the father and the mother in the manner as provided for in the interim agreement, namely that the mother is to spend time with the child every Saturday from 9 am until she delivers him to school on Tuesday morning; and the father is to collect him from school on Tuesday and spend time with him from that time until changeover on Saturday at 9 am.

(4)  The child shall be free to have WeChat audio or video with either parent when he stays with the other parent. The father and the mother should encourage and facilitate such audio or video access.

(5)  The child shall be free to spend time with his friends regardless of whether he is staying with the mother or the father at the time.

(6)  The child should forthwith resume schooling at [School S]. The father should make the necessary arrangements forthwith.

(7)  The father and the mother should jointly appraise the school of the child’s mental health condition such that the school can support him. The father and the mother be at liberty to discuss with and ask for updates from the school as required.

(8)  The child will be free to choose his preferred extra-curricular activities. The parent with whom he is staying should arrange for him to attend such activities.

(9)  The child should maintain his counselling sessions with Dr Adrian Wong by Zoom on a weekly basis pending the identification and agreement of a suitable and experienced child psychologist in Shanghai.

(10)  The father and the mother shall agree on a psychiatrist in Shanghai within three days of the child’s return who should take over his psychiatric care forthwith and the provision of medication as advised. The child should have an appointment with the psychiatrist within two days after that. The father and the mother shall administer and maintain the medication as prescribed by the psychiatrist.

(11)  The child should continue with his appointments in line with the medical advice from his treating psychologist or counsellor.

(12)  The father and the mother shall have access to and be at liberty to attend the medical appointments with the child.

(13)  The father and the mother shall explore with the child psychologist in Shanghai whether it is a feasible and suitable option for the child to attend a boarding school there so that he can be freed from the conflict between the parents.

(14)  The father and the mother do proceed with the appeal lodged by the mother in the Shanghai court or any other legal proceedings concerning the care of the child in the mainland. 

263.  I will reserve the issue of costs in the meantime, while the logistics of the return are being worked out.  I give liberty to parties to apply to restore the issue for disposal.