SECRETARY FOR JUSTICE v. M K

HCMP 2067/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2067 OF 2004

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R U L I N G

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1. This is an ex parte application before me, seeking an order with regard to a child called K. The parents of the child are LCW and MK who are parties to family proceedings in England. In essence, today's application is an application for a mirror order to ensure that during a period where the child is brought to Hong Kong for holiday, he would not be removed elsewhere and he would be duly returned to England at the end of the holiday.

2. I have before me an order by Bennett J made in the Family Division of the High Court of Justice in England on 11 August 2004. In that order, there is a request by the High Court of Justice to the Court of First Instance in Hong Kong to render assistance and to consider the making of an order to reflect the agreement of the parties, which were reduced into an order by Bennett J on that day.

3. The English order provides as follows: (1) there shall be a stop order in place preventing the mother from removing the child from Hong Kong Special Administrative Region during the period from 31 July 2004 to 11 September 2004, save only for the return trip from Hong Kong to the United Kingdom pre-booked for herself and the child on a date no later than six weeks after the date of entry to Hong Kong.

4. A copy of that order was served on the Department of Justice and in the capacity as Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction, the Secretary for Justice took up the matter and made this application before me this afternoon. Due to the prevalence in today's world of inter-country marriage, this sort of orders, known as mirror orders have been introduced in a number of jurisdictions.

5. I am told this afternoon that this is the first time the Secretary for Justice made application of this sort in a court in Hong Kong. I think the first point I have to take care of is the question of jurisdiction and on what basis the Hong Kong Court can be said to have jurisdiction to make this sort of order.

6. The nature of this kind of order has been usefully explained by Singer J in the case of Re P [2000] 1 FLR 435. In particular, His Lordship explained in that decision the difference between this kind of order and the usual type of order made in relation to children in the exercise of domestic jurisdiction. At page 442B, Singer J said in regard to this type of order:

"... the English Court is exercising a power of a fundamentally different type from when it considers a domestic section 8 or inherent jurisdiction dispute and reaches welfare decisions. The 'mirror order' jurisdiction is supportive of the foreign order and it is ancillary or auxiliary. It is, if I may term it such, adjutant. It is there as a safeguard, not to modify the foreign order but to enforce it if there is need for enforcement."

And Singer J went on to explain that a mirror order is intended only to have effect while the child is present within the jurisdiction. Singer J also said with reference to Re N [1995] Fam 96, that such an order can be made in anticipation of a child's arrival to this jurisdiction, but the order was to take effect only upon the child's arrival in the jurisdiction and will cease to have effect when the child leaves the jurisdiction.

7. The purpose of having this sort of order in place is further explained by Singer J at page 441E, where he said:

"... Where a foreign court is making provision for contact to take place in another jurisdiction, in that type of case it is important that there should be the possibility for orders to be made in advance of and against the arrival of the child so that parties and the foreign court may have confidence that if either of them seeks to take advantage of the presence of the child in the contact jurisdiction, the court there will not lend itself to such attempt. The classic anxiety is of course that the child having come in contact with the parent in England for a limited period, the parent in England either tends to remove the child to a third country and to keep the child there, or refuses at the end of the contact to allow the child to return to his country of residence. Armed with a consent order already made in the English jurisdiction, an English judge would virtually inevitably order return first and investigation of the merit in the resident jurisdiction."

Singer J concluded that: "As a matter of common sense, of comity and of public policy, the High Court should have the ability to make this kind of order." I shall add that the same rationale applies if one of the parents takes the child to another jurisdiction for the purpose of a holiday. Of course, in the case of Re P, Singer J considered the question of jurisdiction in the context of the English legislative regime. We do not have the equivalent of the Family Law Act 1986 in Hong Kong.

8. However, in my judgment, that should not stop us from exercising the same jurisdiction or a jurisdiction similar to that in England. I think the jurisdiction to make this type of order can stem from the wardship jurisdiction of the court concerning minors, and I see no reason why the wardship jurisdiction should not extend to minors coming to Hong Kong for a visit or for contact or access purposes, with a view that he should be returned in due course.

9. Mr Chow expressed concern that if the jurisdiction is based on the wardship jurisdiction, then the court might be obliged to look into the welfare of the child, and that is not the sort of exercise that a court should embark upon when it makes a mirror order. This is also explained by Singer J in the case of Re P at page 442A, when his Lordship emphasised that when making such an order, the court does not consider the welfare of the child. The court takes the order of the foreign court as read. And his Lordship went on to say, in that case his Lordship had not for one moment considered whether he would have made a similar order and had not investigated the merits, nor shown any materials beyond the order of the foreign court.

10. I accept that should be the correct approach in making a mirror order, but in one sense I venture to suggest that the court is safeguarding the welfare of the child. The whole rationale behind the Hague Convention is that it is generally in the interest and in line with the welfare of the child that substantive orders as to custody and access should be dealt with by the Court of the child's habitual residence. If one were to give a broad interpretation to the concept of welfare of a child, it is in line with the welfare of the child to ensure the due return of the child to his place of habitual residence.

11. Secondly, this sort of mirror order will facilitate inter-country access or contact and even holiday outside the jurisdiction of habitual residence. I would perceive such facilitation to be in line with the welfare of the child generally, and in the absence of any suggestion to the contrary, the making of a mirror order would not be inconsistent with the exercise of wardship jurisdiction without investigating factors pertaining to the welfare of the child in the manner as in a case of domestic dispute.

12. So that is one possibility. Another possibility is to regard this jurisdiction in Hong Kong as stemming from the jurisdiction to grant an injunction to facilitate the purpose of the Child Abduction and Custody Ordinance and the Hague Convention.

13. A difficulty with the latter is that normally there has to be some cause for concern before the court will grant an injunction and, in most of these cases, there might not be evidence of the likelihood of the parent who is going to take the child abroad not honouring his promise to bring the child back. In the present case there is no such evidence. The child has come to Hong Kong, together with the mother, and Mr Chow accepted that there is no suggestion that the mother would not return the child to England as promised.

14. I think cases concerning return of a child to the place of habitual residence may be regarded as somewhat different from an ordinary application for injunction. In this connection, I derive some support from the case of Re K [1999] EWCA Civil Appeal 1851, unreported. The English Court of Appeal in that case emphasised in this sort of situation the court will usually take every precaution to ensure the due return of the child, even though there is no evidence to show that there is a risk of the parent who is intending to take the child out of the jurisdiction will not return the child to the jurisdiction as promised.

15. That may be an alternative basis for saying that the Hong Kong Court does possess the jurisdiction to make this type of order. In the present case, the mother has no objection to this order being made because it has been indicated on her behalf to Bennett J that she would not object to an order in these terms to be made in Hong Kong.

16. As I said, as a matter of common sense, as well as judicial comity and also in line with the interest and welfare of the child, I think the order should be in place. Having satisfied myself that I have the jurisdiction to make the order, I think this is an appropriate case to make the order and therefore I shall make an order in terms as per the draft, with the amendments indicated during the course of submissions.