LCHY v. CWF & OTHERS

HCMP 5231/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5231 OF 2001

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J U D G M E N T

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History of the case

1. The Plaintiff in these proceedings is the mother of a pair of twins, K and L. They were born on 12 September 1995 in New Zealand. They held New Zealand passports. By that time, the father (the 1st Defendant in these proceedings) and the mother were already divorced. The father lived in Taiwan. He has his own family there. Until they were brought to Hong Kong on 8 July 2001, the twins had all along lived with their mother in New Zealand.

2. The 2nd Defendant is the brother of the mother. The 3rd Defendant is the wife of the 2nd Defendant. They live in Hong Kong. I shall call them uncle and aunt. Until 14 June 2001, the uncle and aunt did not have any active involvement with the lives of the mother and the twins.

3. Apart from the twins, the mother and the father have two other elder children. One of them, G, is in New Zealand. The other one K is living with the father in Taiwan.

4. Upon police notification, the Department of Child, Youth and Family Services of New Zealand ["CYFS"] became involved in June 2001. Emergency Psychiatric Services was also engaged, again on referral by the police, in respect of the mother. She was admitted to hospital on 11 June 2001 under a Compulsory Treatment Order under the Mental Health Act. The twins were placed under the foster care of CYFS under Section 139 of the Children, Young Persons and Their Families Act 1989. That section provides for the placement of a child in the care of CYFS for a period not exceeding 28 days when the parent or guardian or other person having the care of the child is temporarily unable or unwilling to care for the child. If the parent is unable to resume the care at the end of that period, the period may, with the agreement of that parent, be extended for one further period of up to 28 days. It is clear that such statutory power is meant to be a temporary measure.

5. The uncle and aunt were contacted by S, a friend of the mother, informing them of the situation of the family. They went to New Zealand on 21 June 2001. After meeting between the mother and uncle and aunt and health care professionals and social workers, and with the support of a report by an independent barrister Ms Weatherall and a report by a psychiatrist, two consent orders were made by the Family Court in Dunedin on 29 June 2001. The first one was an order appointing the uncle to be the welfare guardian of the mother. Under that order, the uncle was given the following authority in respect of the care of the mother:

(a) To make and implement decisions concerning her personal care and welfare which promote her best interests, having regard to her needs with respect to:

(i) where she lives, with whom she lives and with whom she associates;

(ii) her health and decisions concerning medical treatment, subject to the restriction imposed by Section 18(1)(a)(b)(c)(d)(e)(f) of the Protection of Personal Property Rights Act 1988.

(b) To liaise with the hospital in Dunedin or any other hospital concerning the length of her stay.

This order was discharged by the court on 30 November 2001.

6. The second order was an interim order appointing the uncle to be the property manager in respect of the mother's property. That order lapsed in three months' time automatically unless the manager apply for a review and upon review, the court extends the order. There was no application for review and the order lapsed accordingly.

7. On 6 July 2001, the mother signed an Agreement as to Care ["the Care Agreement"], the material provisions read as follows:

"(2) At present, [the mother] is unwell and is receiving treatment at Dunedin Hospital.

(3) [The mother] agrees that [the uncle and aunt] should take her five years old twin children, K and L, back to their home in Hong Kong and care for them there.

(4) [The mother] agrees that [the uncle and aunt] will while they are caring for K and L be able to make decisions regarding schooling, extramural activities, social activities, contact with extended family and so on.

(5) [The mother] authorises [the uncle and aunt] to consent to the carrying out on K and L of any necessary medical, surgical or dental procedure.

(6) [The uncle and aunt] agree that they will maintain good contact with [the mother] during the period that K and L are in their care and will keep her informed of all significant information about her children."

8. On 8 July 2001, the uncle and aunt brought K and L to Hong Kong. On 14 July 2001, the father came to Hong Kong to see the children. The children were enrolled by the uncle and aunt into a school in Hong Kong and commenced their schooling here on 3 September 2001. The father came to visit the children in Hong Kong again between 8 and 12 September 2001. During that period, he also visited the children's school. On 18 September 2001, the father took away the children from the school without any prior notification to the uncle and aunt. He refused to hand them back to the uncle and aunt. Apparently, he wished to take them back to Taiwan. However, he was unable to do so without the passports of the children. Wardship proceedings were commenced by the uncle and aunt on 21 September 2001. In those proceedings, the uncle and aunt asked for, inter alia, the custody of the children. On 28 September 2001, I ordered the children to be returned to the uncle and aunt for interim care and control. Although I accept the father abducted the children out of his concern for them, I must still point out that such action is wrong. It caused disruptions to the lives of the children and could not be in the best interest of the children. There was suggestion that the father did so on legal advice. If that were true, the lawyer who gave such advice should be warned that the court will not look upon the matter lightly. The children were returned to the uncle and aunt on 29 September 2001.

9. The mother was released from hospital on 24 July 2001. Her relationship with the uncle and aunt turned sour. Originally, it was the intention of all involved that the mother would come to Hong Kong after her release from hospital. However, that did not materialize. There was some misunderstanding as to the whereabouts of her travel documents and notwithstanding that a ticket was booked for her travel to Hong Kong on 4 August 2001, she could not make the trip. I should say that on the evidence before me, I am not satisfied that the uncle and aunt deliberately concealed from the mother the whereabout of her travel documents to prevent her to come to Hong Kong. It appears that there were also some ill feelings arising from telephone conversations between the mother and her parents (who are living in Hong Kong). The upshot was that the mother decided that her family members in Hong Kong had excluded her from the family. In a letter dated 18 September 2001, the mother accused the uncle and aunt of taking everything, including her children away from her. The mother determined not to come to Hong Kong. This is unfortunate because in Hong Kong, she could have family support whereas in New Zealand, she is basically on her own. Be that as it may, it is her right to decide for herself whether she would be better in New Zealand or in Hong Kong.

10. After she learnt of the abduction of the children by the father, she commenced proceedings under the Hague Convention on the Civil Aspects of International Child Abduction ["the Convention"] on 25 September 2001. In its original form, the application was made against the father. On 28 September 2001, the uncle and aunt were joined as defendants to the proceedings. On 11 October 2001, the proceedings were amended to allege wrongful retention of the children in Hong Kong by the uncle and aunt. The allegation against the father was deleted. On 6 December 2001, the originating summons was further amended to allege wrongful retention by the uncle and aunt "since or before 16 August 2001 or alternatively since September 2001". I have directed on 28 September 2001 that the wardship proceedings is not to be heard until the determination of the Convention proceedings.

11. The substantive hearing of the Convention proceedings started on 6 December 2001. By that time, the father and the mother took a united front by asking for the children to be returned to New Zealand. That was opposed by the uncle and aunt. I heard the matter on 6, 7, 10 and 11 December 2001. On 7 December 2001, the Court of Appeal handed down its judgment in D and G, CACV 3646 of 2001. In the light of that judgment, further reports have to be called for and I refer to what I have said in my two Rulings on 10 and 11 December 2001 respectively as to the circumstances under which the case was adjourned.

12. The following reports are obtained as a result of my directions/ requests on 11 December 2001:

(a) Social Investigation Report dated 11 January 2002 made by a Social Welfare Officer;

(b) Psychological Report dated 27 February 2002 made by a Senior Psychologist of the Social Welfare Department;

(c) Medical report by Dr Taghavi dated 4 January 2002;

(d) Social Worker's report dated 4 January 2002 prepared by James Trigger-Hay of the North Community Mental Health Team who followed up on the Plaintiff's case in New Zealand.

Further, the Plaintiff also filed a further affirmation on 24 December 2001 providing information as to the measures available in New Zealand to deal with the safety of the children if they were returned to New Zealand. The father also filed an affirmation on 26 December 2001 setting out his proposal if the children were returned to New Zealand. I am grateful to all concerned with regard to the efforts they made in providing this court with the relevant information expeditiously.

13. Hearing was resumed on 13 March 2002 and further submissions were made by the parties in respect of the new material. The hearing was concluded on 14 March 2002. I wish to express my gratitude to counsel and the father (who appeared in person throughout the hearing) for the assistance they gave to me in this rather unusual case.

The nature of the Convention proceedings

14. By the Child Abduction and Custody Ordinance Cap.512, the Convention was applied to Hong Kong. In Re H [2000] 2 AC 291 at 302 D to E, Lord Mackay identified the objectives of the Convention as follows:

"The objects of the Convention are (a) to secure the prompt return of children wrongfully removed to or retained in any contracting state; and (b) to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states. Since this is an international Convention to be applied under a variety of systems of law it is right that it should be given a purposive construction in order to make as effective as possible the machinery set up under it."

15. In LM v. HTS, HCMP No.1329 of 2001, 19.4.2001, Hartmann J said at p.8:

"The Convention, which was signed in the Hague on 25th October 1980, is designed to counter the growing problem of the civil abduction of children across international borders. Although neither the Preamble nor Article 1 of the Convention have been enacted into Hong Kong law, they may nevertheless be considered in understanding the objects of the Convention. The Preamble states the objects succinctly; namely, 'to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence'. The essential mischief which the Convention is designed to counter is the removal - either by abduction or wrongful retention - of a child from its natural environment, that is, its country of habitual residence. The means by which the Convention counters such mischief is by an early restoration of the status quo which is achieved by ensuring the prompt return of the child to the country of its habitual residence. If this were not done, it would allow the party who has abducted the child to a country of refuge or wrongfully retained the child in that country to seek the assistance of the courts there and by that means create a jurisdiction which is more or less artificial."

16. The court's duty to return the child is mandatory as provided under Article 12 of the Convention. In D and G, CACV 3646 of 2001, 7.12.2001, Le Pichon JA said at [9]:

"Once it is proved that the father had removed the child from Switzerland in breach of the mother's custodial rights or refused to return her in breach of those rights and the child was habitually resident in Switzerland immediately before the wrongful removal or retention, Hong Kong as a Contracting State must return the child subject only to the provisions of Article 13 of the Convention."

17. The last-cited dicta summarized neatly the three main issues in the present case:

(a) habitual residence;

(b) wrongful retention;

(c) Article 13.

The uncle and aunt took issues with the mother on all these.

18. In Re S [1994] 1 FLR 82 at p.88C to D, Wall J reiterated that the court is not to be concerned with substantive merits on questions of custody and access in Convention proceedings:

"In the instant case, therefore, as in any case to which articles 3 and 12 are said to apply, I am not determining the merits of residence or contact issues as between the parties. I am not determining where or with whom the children should live. I have to decide first whether or not the Convention applies and secondly, if it does, whether or not the children should be promptly returned to Israel in order for the courts of that country to decide with whom they should reside and where."

The relevant dates

19. Before dealing with the submissions of the parties, it is necessary to identify the relevant dates for consideration of the question of habitual residence. It is common ground that the removal of the children from New Zealand to Hong Kong in July 2001 was with the consent of the mother and therefore could not be wrongful. In the final version of the Originating Summons, two alternative dates of wrongful retention were relied upon by the mother:

(a) since or before 16 August 2001;

(b) since September 2001.

20. Under the Convention, the notion of retention refers to a specific occasion rather than a continuing state of affairs. In Re H Re S [1991] 2 AC 476 at p.499G, Lord Brandon said, after referring to Article 12 of the Convention:

"The period of one year referred to in this article is a period measured from the date of the wrongful removal or retention. That appears to me to show clearly that, for the purpose of the Convention, both removal and retention are events occurring on a specific occasion, for otherwise it would be impossible to measure a period of one year from their occurrence."

This was applied by Hartmann J in the case of N and O [1998] 4 HKC 574 at p.586. See also Lord Slynn in Re S [1998] AC 750 at 767F to G.

21. Hence, it is rather unsatisfactory to refer to the act of wrongful retention since a particular date. From the submission of Mr Coleman, counsel for the mother, I understand that in respect of the first alternative, he relied on a letter dated 16 August 2001 from the aunt to the mother. Counsel submitted that the letter evidenced an intention on the part of the uncle and aunt to retain the children in Hong Kong because the mother was not well enough to take care of them. He said that the uncle and aunt manifested an intention to refuse to send the children back to New Zealand against the wish of the mother.

22. With respect to Mr Coleman, I do not read that letter as manifestation of an intention on the part of the uncle and aunt to retain the children wrongfully. Reading the letter as a whole, I regard the letter as an attempt by the aunt to explain to the mother how they perceived the problem. It was by no means a refusal to return the children to the mother. It was not written in response to a request by the mother to send the children back to New Zealand. In her two affirmations before me, there was no reference to any request made by the mother around that time. The tenor of the letter was consistent with the purpose for which the children were placed under the care of the uncle and aunt pursuant to the Care Agreement. The aunt in fact said in the letter:

"I still wish that you could be in Hong Kong because it would be better if you could be with the children."

I shall return to this allegation of wrongful retention in my discussion on wrongful retention below.

23. With regard to the alternative case of wrongful retention, Mr Coleman referred to the formation of an intention on the part of the uncle and aunt not to return the children in the early part to mid-September 2001. He did not pinpoint a particular act or date. In a letter dated 18 September 2001, the mother demanded the return of the children to New Zealand. That demand was made when the children were abducted by the father. The demand was repeated in the Originating Summons in the Convention proceedings issued on 25 September 2001. In the application for return of the children abducted from New Zealand dated 21 September 2001 signed by the mother, she alleged in paragraph 8 at p.6 thereof that the uncle and aunt have neglected and refused to return the children to her despite her several requests that they did so.

24. The relevant dates for consideration of the habitual residence of the children and whether the mother has right of custody over them is therefore around 16 August 2001 (on the basis of the first limb of the mother's case as to wrongful retention) or alternatively around mid-September 2001 (on the basis of the second limb of her case).

Wrongful retention and habitual residence: the law

25. Article 3 of the Convention defines wrongful removal and retention:

"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."

26. The meaning of "rights of custody" under the Convention is set out in Article 5:

"For the purposes of this Convention-

(a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

(b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence."

In Re C [1989] 1 FLR 403 at 413, Lord Donaldson MR pointed out that rights of custody under the Convention had its own meaning which might be different from the meaning of custody under domestic law.

"'Custody', as a matter of non-technical English, means "Safe keeping, protection; charge, care, guardianship" (I take that from the Shorter Oxford English Dictionary); but "rights of custody" as defined in the convention includes a much more precise meaning, which will, I apprehend, usually be decisive of most applications under the convention. This is "the right to determine the child's place of residence". This right may be in the court, the mother, the father, some caretaking institution, such as a local authority, or it may, as in this case, be a divided right, in so far as the child is to reside in Australia, the right being that of the mother but, in so far as any question arises as to the child residing outside Australia, it being a joint right subject always, of course, to the overriding rights of the court. If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the convention. I add for completeness that a "right to determine the child's place of residence" (using the phrase in the convention) may be specific, the right to decide that it shall live at a particular address, or it may be general, e.g. 'within the Commonwealth of Australia'."

27. To similar effect is the judgment of Hale J (as she then was) in Re W; Re B [1998] 2 FLR 146 at 151H to 152C:

"According to the conclusion of the Report of the Second Special Commission meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction 1980, 18-21 January 1993, at p.16:

"The key concepts which determine the scope of the Convention are not dependent for their meaning on any single legal system. Thus the expression 'rights of custody,' for example, does not coincide with any particular concept of custody in domestic law, but draws its meaning from the definitions, structure and purposes of the Convention."

This same principle was expressed by Lord Donaldson of Lymington M R in C. v. C. (Abduction: Rights of Custody) [1989] 1 W.L.R. 654, 663:

"We are necessarily concerned with Australian law because we are bidden by article 3 to decide whether the removal of the child was in breach of 'rights of custody' attributed to the father either jointly or alone under the law, but it matters not in the least how those rights are described in Australian law. What matters is whether those rights fall within the Convention definition of 'rights of custody.' Equally, it matters not in the least whether those rights would be regarded as rights of custody under English law, if they fall within the definition."

Similar observations are made in other cases, perhaps most notably in the present context In re F. (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam. 224."

28. The correct approach is therefore the one applied by Hale J (as she then was) in S v. H [1998] Fam 49 at 51H:

"The question, therefore, is whether the father has "rights of custody" within the meaning of the Hague Convention of 1980. This is in fact a two-part question: first, what rights does the father have under Italian law and, second, do those rights amount to rights of custody under the Hague Convention?"

29. Since the right is to be assessed by reference to the right attributed to the applicant "under the law of the State in which the child was habitually resident immediately before the removal or retention", one has to consider the place of habitual residence of the children before the right under such law could be determined. Habitual residence is a question of fact. In N and O [1998] 4 HKC 574, Hartmann J set out the relevant principles at p.587 to 588:

"The principles applicable to the concept of habitual residence (which is not defined in the Convention) have been derived from the leading English authorities and summarised by Waite J. in Re B [1993] 1 FLR 993. I would adopt those summarised principles which are set out as follows on page 995 of the judgment -

"1. The habitual residence of the young children of parents who are living together is the same as the habitual residence of the parents themselves and neither parent can change it without the express or tacit consent of the other or an order of the court.

2. Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration. All that the law requires for a "settled purpose" is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled.

3. Although habitual residence can be lost in a single day, for example upon departure from the initial abode with no intention of returning, the assumption of habitual residence requires an appreciable period of time and a settled intention. The House of Lords in Re J, sub nom C v. S [1990] 2 AC 562 refrained, no doubt advisedly, from giving any indication as to what an "appreciable period" would be. Logic would suggest that provided the purpose was settled, the period of habitation need not be long. Certainly in Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 the Court of Appeal approved a judicial finding that a family had acquired a fresh habitual residence only one month after arrival in a new country.""

Waite J. further accepted that it is possible for habitual residence to change periodically if that is the intended regular order of life for the parents and children. That, in my judgment, accords fully with the lifestyle and career patterns chosen by an increasing number of people in a world where freedom to travel and commerce have diminished national boundaries. Indeed, in my opinion, the mother in this matter falls into this category.

Lord Brandon in the House of Lords decision of Re J supra, in considering the concept of habitual residence said at page 578 -

"In considering this issue it seems to me to be helpful to deal with a number of preliminary points. The first point is that the expression "habitually resident" as used in Art 3 of the Convention is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case."

30. In the context where a person having the sole parental responsibility causes the child to leave the jurisdiction in which she herself remains habitually resident, Balcombe LJ in Re M [1993] 1 FLR 495 at p.500 E to H held that the relevant test was to examine the intention of that person (the mother in that case) and see whether she had an intention that the child should take up long-term residence elsewhere for a settled purpose.

31. Re M [1993] 1 FLR 495 concerned a mother who had the sole parental responsibility over her children. The social service department were concerned about, inter alia, the mother's parenting ability. Through the intervention of the social worker, the children went to live with their grandparents in Scotland in September 1991 whilst the mother remained in England. The mother said she agreed to the children going to Scotland for one year only whilst the grandparents said that it was agreed that the children would stay for a minimum period of one year, and thereafter consideration would be given to returning the children to the mother should social services consider that she was capable and fit to look after them. In July 1992, the children came to England to the mother to have a two-week holiday. During that holiday, the mother changed her mind and decided not to return the children. On those facts, Balcombe LJ held that between September 1991 and July 1992, the children were habitually resident in Scotland. At p.501E to F, Balcombe LJ said:

"Their physical presence in Scotland was for the settled purpose of living with their grandparents, and attending school, for at least a year, and was with the agreement of the mother who alone had parental responsibility for them. It seems to me quite artificial to say that in those circumstances the children remained habitually resident in England and Wales."

However, His Lordship went on to hold that by 23 July 1992, the Scottish residence of the children were brought to an end when the mother who alone had parental responsibility and alone could determine where they should live had decided that they should no longer reside with the grandparents in Scotland (p.501G to H).

32. It is important to note that Re M was not decided under the Convention (since the children were present in England when the matter was dealt with by the court) and Balcombe LJ therefore did not find it necessary to decide whether the children reacquired an habitual residence in England (see p.501F to G). His Lordship followed Lord Brandon's speech in Re J about the distinction between losing habitual residence in country A in a single day and the acquisition of habitual residence in country B (which required an appreciable period of time). On the facts, Balcombe LJ expressed grave doubts whether the children had by 23 July 1992 regained habitual residence in England. On the other hand, Hoffmann LJ had no difficulty in holding that the children were habitually resident in England after the mother changed her mind. Hoffmann LJ said at p.503B to E:

"Once [the mother] decided that they should stay, they became resident and because they were in the mother's settled home and she intended they should remain there, I think they became at once habitually resident. In a case like Re J in which mother and child arrive in a new country together and have to find a settled home, it may be that although they have lost their old residence, it is necessary for some time to keep an open mind on whether their new residence is habitual. But where a child comes into a home which is undoubtedly the habitual residence of the parent or other person to be responsible for his care and the intention of the parent or parents with parental responsibility is that the child's stay should not be merely transient or temporary, I do not see why the child's residence should not forthwith be treated as habitual."

Hoffmann LJ cited a dicta of Purchas LJ in Re S [1991] 2 FLR 1 and laid emphasis on the dicta that the transfer of habitual residence was effected from the actual transfer of physical custody.

33. In the context of Convention proceedings, the dicta of Butler-Sloss LJ in Re F [1992] 1 FLR 548 at 555H to 556A serves as a good reminder:

"...it is important for the successful operation of the Convention that a child should have, where possible, an habitual residence, otherwise he cannot be protected from abduction by a parent from the country where he was last residing. ...we should not strain to find a lack of habitual residence where, on a broad canvas, the child has settled in a particular country."

34. Where children were brought to another country with the consent of the persons with parental authority for a temporary purpose, they did not lose their habitual residence in their country of origin. Hence where two children went abroad together with their parents for a one year sabbatical leave, their habitual residence was held to be in their country of origin (see Re S [1994] Fam. 70). Similarly, where a child was sent abroad away from his parents for educational and cultural purposes, it was held that it was not sufficient to change his habitual residence (see Re A [1995] 1 FLR 767). Both cases were approved as to the results on their facts by Sir John Balcombe in the Court of Appeal in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 although Sir John Balcombe disagreed with some of the dictum in Re A. A recent example was the case of Re V [2001] 1 FLR 253, where it was held that the mother had not discharged the burden of proof in showing the abandonment of former habitual residence of the child of 6 when she was sent to Ghana to live with her grandparents. Wilson J came to that finding by reason of the fluidity and lack of clarity of the mother's plan for the child's future which confirmed the absence of settled intention. In these cases, it does not matter that the children did not physically reside at their country of origin immediately before the alleged wrongful retention.

35. It would be different if a child has acquired a habitual residence elsewhere. That was what happened in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887. In that case, the parents were habitually resident in England. The child was born in England. The marriage deteriorated and the parents separated. In January 1994 the parents agreed that the child would go to live with the paternal grandparents in India and spend his childhood there and be brought up by them. The child went to India in February 1994 when he was about 2 years old. The mother changed her mind in July 1995 and applied to the court in England to order the child to be returned to England. The judge found that pursuant to the agreement of January 1994, the child acquired habitual residence in India. In the Court of Appeal, Sir John Balcombe said, at p.895 C to G:

"Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is clear that he must be resident in that country. Of course, residence does not necessarily require physical presence at all times. Temporary absence on holiday, or for educational purposes (as in Re A), will not bring to an end habitual residence. But here the judge found as a fact, and on ample evidence, that K became habitually resident in India. He has never to this day come back to England. As a matter of fact, he has not been resident in England since he went to India in February 1994. Bracewell J held that the mother's change of mind both brought to an end K's habitual residence in India and gave him an habitual residence in England.

I have the gravest doubts whether the first proposition is correct. Clearly, the mother's change of mind could not alter the fact that he was, and is, physically resident in India. Whether he change of mind could alone alter the 'habitual' nature of that residence I very much doubt, but in any event it is not necessary finally to decide that point on this appeal, since the one thing about which I am quite clear is that the child's residence in India could not become a residence in England and Wales without his ever having returned to this country. As I said before, the idea that a child's residence can be changed without his ever leaving the country where he is resident is to abandon the factual basis of 'habitual residence' and to clothe it with some metaphysical or abstract basis more appropriate to a legal concept such as domicile."

36. Both Sir John Balcombe and Millett LJ (as he then was) stressed that habitual residence is a question of fact (see p.895C and H). Millett LJ also held at p.896A that while it is not necessary for a person to remain continuously present in a particular country in order for him to retain residence there, it is not possible for a person to acquire residence in one country while remaining throughout physically present in another.

37. In Re S [1998] AC 750, the House of Lords held that a person who had the de facto care of a child but no parental rights could not bring about a change in the child's habitual residence merely by taking him out of the jurisdiction. In that case, the child had been taken out of England for 2 days by the grandmother shortly after the death the mother (who had had sole custody of the child) when the father (who was not married to the deceased mother and therefore had no right of custody) applied for interim care and control and for return of the child in the English court. Lord Slynn said at p.762G to 763B:

"...it is fully understandable that, in the distressing circumstances of the mother's death, the grandmother should wish to have with her the baby who had spent several months at her house in Ireland in the latter part of 1995. This desire, however, and the need for someone to look after the child cannot, in my view, mean that by merely taking S. out of the jurisdiction during a period of two days the defendants had ipso facto brought about a change in his habitual residence. Neither defendant had parental rights over the child, who was too young to form any intention as to his own future residence, and two days with the defendants in Ireland is not sufficient of itself to result in his existing habitual residence being lost and a new one gained. The position is quite different in the case of a mother, with parental rights and on whose habitual residence the child's habitual residence depends. If she leaves one country to go to another with the established intention of settling there permanently her habitual residence and that of the child may change very quickly. Such is not the present case where no parental rights were involved and where S.'s habitual residence did not depend on and automatically change with those of the defendants.

I agree with Butler-Sloss L.J. that the powers conferred by section 3(5) of the Act of 1989 on a person, who has care of a child but without parental responsibility, to do what is reasonable in all the circumstances for the purpose of safeguarding or promoting the child's welfare do not include the power to change the child's habitual residence merely by taking him out of the jurisdiction."

38. However, it would be different if the child stayed out of jurisdiction for a substantial period of time without challenge. In the Court of Appeal, Butler-Sloss LJ said In re S (quoted by Lord Slynn at p.761G to 762B),

"The death of the mother, the sole carer, would not immediately strip the child of his habitual residence acquired from her, at least, while he remained in the same jurisdiction. Once the child has been removed to another jurisdiction, the issue whether the child has obtained a new habitual residence whilst in the care of those who have not obtained an order or the agreement of others will depend upon the facts. But a clandestine removal of the child on the present facts would not immediately clothe the child with the habitual residence of those removing him to that jurisdiction, although the longer the actual residence of the child in the new jurisdiction without challenge, the more likely the child would acquire the habitual residence of those who have continued to care for the child without opposition. Since, in the present case, the English court was seised of the case within two days of the removal of the child, it is premature to say that the child lost his habitual residence on leaving England or had acquired a new habitual residence from his de facto carers on arrival in Ireland."

Habitual residence: the facts and my findings

39. It cannot be disputed that prior to 8 July 2001, the children were habitual residents in New Zealand. The question is whether their coming to Hong Kong and their stay thereafter brought about a change of their habitual residence prior to the alleged wrongful retention. I have outlined the circumstances under which the children were brought to Hong Kong on 8 July 2001 by the uncle and aunt in Paragraphs 4 to 8 above. Although as stated in Paragraph 24 above, the relevant dates for consideration are 16 August 2001 and mid September 2001, it is necessary to go back to early July 2001 in order to examine the mother's intention at the time when she agreed to let the uncle and aunt to take the children to Hong Kong. In my judgment, the crucial issue is whether the mother had a settled intention at that stage to send the children away from New Zealand and to let them take up residence in Hong Kong for an appreciable period of time. If the answer is affirmative, the situation would be similar to Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 and Re M [1993] 1 FLR 495. The children would cease to be habitual resident in New Zealand upon their departure and after living in Hong Kong for a substantial period, they would acquire an habitual residence here. They could not reacquire their habitual residence in New Zealand subsequently just because of the later change of mind of the mother whilst they remained in Hong Kong physically (see Re M (Abduction: Habitual Residence) [1996] 1 FLR 887). On the other hand, if I find that the mother has not yet developed a settled intention on 8 July 2001, I have to ask whether she has developed such intention at any time thereafter before she changed her mind and demanded their return to New Zealand. If her intention remained unsettled, the situation would be similar to Re A [1995] 1 FLR 767 and Re V [2001] 1 FLR 253. The children would remain habitual resident in New Zealand notwithstanding their temporary absence.

40. It is common ground that when the mother agreed to let the uncle and aunt to take the children to Hong Kong, it was envisaged by all parties that she would be joining them here later on. The aunt said so in paragraph 4 of her Affidavit of 2 November 2001. So did the mother in Paragraph 11 of her First Affidavit of 9 October 2001 and Paragraph 12 of her Second Affidavit of 16 November 2001. What the parties disagreed is whether the stay in Hong Kong by the mother and the children would be a long term one and whether the mother expected to return to New Zealand in the near future. The uncle and aunt said that the move was a relocation and the children would not return to New Zealand. The mother said otherwise.

41. In respect of that conflict, there is some evidence from third parties. Hazel Scoles, the CYFS Social Worker said in her report of 31 October 2001:

"My understanding of this arrangement was that the children would reside in Hong Kong until either [the mother] was well enough to travel to Hong Kong herself, or well enough for the children to return to New Zealand."

Michelle Derrett, the social worker of Dunedin Hospital, said the following in a letter dated 25 October 2001 to the mother regarding a meeting with the uncle and aunt on 5 July 2001 before the signing of the care agreement,

"I asked for assurance that if you wanted the children returned to New Zealand that [the uncle and aunt] would bring them back. They gave me their assurance that this is what would happen."

The aunt accepted that such assurance had been given although she said it was only to allay the concern of Ms Derrett as to the possibility of litigation from the mother. In my view, the manifestation of such a concern showed that there was at least a question mark in the mind of those dealt with the mother that she might wish to have the children back in New Zealand later on. These evidence, in my judgment, supports the mother's contention that the return to New Zealand remained at least as a possible option.

42. On the other hand, there is the evidence of Ms Jennifer Beck who prepared the Care Agreement. In Paragraph 5 of her affidavit of 31 October 2001, she said that no one thought that the mother would remain in Dunedin long term nor that the children would return to live there. However, she also said that she was not present when the Care Agreement was signed and she was instructed by the uncle and aunt to draft the same. Her understanding was based on what she was told by Ms Scoles and the uncle and aunt. This showed that she had not discussed the matter with the mother. Since what I am concerned is the intention of the mother rather than the intention of the uncle and aunt, I do not find the evidence of Ms Beck on this point to be helpful.

43. On the face of the Care Agreement, there were wordings which indicated that the arrangement was meant to last so long as the children are under the care of the uncle and aunt. However, there is no express provision stipulating the duration for which they would have the care of the children. The only indication is the reference in paragraph 2 thereof to the hospitalization of the mother. It is also significant to bear in mind that although suggestion was made to the uncle and aunt to apply for custody of the children from the court in New Zealand, they did not do so. Hence, they were not in a position to change the habitual residence of the children by retaining them in Hong Kong against the wish of the mother (see Re S [1998] AC 750). Ms Beck said in her affidavit that she prepared the agreement by using a draft faxed to her by CYFS which were used by the latter for the purpose of Section 139 Children, Young Persons and Their Families Act. That sort of agreement did not envisage the transfer of custody right over the children (see Paragraph 4 above).

44. As I said, the relevant intention was that of the mother. The burden of proof is on the uncle and aunt to establish a settled intention on her part to strip the children of their habitual residence in New Zealand (see F v S [1993] 2 FLR 686 at p.694H, applied by Wilson J in Re V [2001] 1 FLR 253 at 258-9). On balance, I find that they have failed to discharge such burden. Whilst they themselves might perceive that it was unlikely for the children to return to New Zealand in the foreseeable future, I am not satisfied that such understanding was shared by the mother. I am not satisfied that the mother had been asked to consent to a long term relocation of the children to Hong Kong, still less the long term stay of the children in Hong Kong even if she were not to come to Hong Kong. On the evidence, I find that the mother was keeping the option of returning to New Zealand open. It follows that she has not yet formed a settled intention at the time when she signed the Care Agreement that the children were to relocate to Hong Kong and not to return to New Zealand for an appreciable period of time. Hence, they have not lost their habitual residence in New Zealand when they came to Hong Kong on 8 July 2001.

45. In coming to that conclusion, I bear in mind that the mother had been living in New Zealand since 1994 and the children had never been in Hong Kong prior to 8 July 2001. It would be a major decision for her if she decided to relocate back to Hong Kong on a long term basis and the evidence before me is insufficient to show that she had made such a decision. At that time, she was undergoing medical treatment and the Care Agreement was signed by her without the benefit of independent legal advice. I am not convinced that she intended to make such an important decision.

46. Mr Pilbrow submitted that the Care Agreement conferred upon the uncle and aunt the right to be the primary carers of the children. In my judgment, for the reasons given above, in particular Paragraph 43, and in the section below dealing with custody rights, the mother did not give up her right to determine where the children live under the Care Agreement. She remains the person who has custody over the children. Without any court order granting custody of the children to the uncle and aunt, their position could not be better than the grandmother in Re S [1998] AC 750 and the paternal grandparents in Re M [1993] 1 FLR 495.

47. Mr Pilbrow relied on the case of F v F (Abduction: Habitual Residence) [1993] Fam. Law 199. The report is very brief. However, the parents in that case has agreed to move to England permanently before they returned to Canada to sort out the practicalities of the intended relocation. The children were left behind in England in the safekeeping of the grandparents. The father subsequently applied under the Hague Convention for the return of the children to Canada. That application was dismissed by Thorpe J on the ground that the children ceased to be habitually resident in Canada. Given the background, it is clear that on the facts of that case there was a settled intention to relocate and the decision was not surprising. Mr Pilbrow referred me to the following summary of a dicta of Thorpe J at p.200:

"[Thorpe J] took the view that the proceedings were misconceived as the children were not abducted children, but children whose centre of gravity had been switched eastwards across the Atlantic by parental agreement at a time when the marriage was by no means over, although its future hung in the balance."

Mr Pilbrow submitted that the centre of gravity of the children in the present case has been switched to Hong Kong under the Care Agreement. I am of the view that the relevant consideration is still the intention of the mother, which I have already analysed above. A crucial distinction between F v F and the present case is the agreement of both parents (who had joint custody rights at the time of the agreement) to relocate to England in that case. As I said, I am not satisfied that the mother (who had the sole custody of the children) in the present case had formed such settled intention.

48. I was also referred to the case of Re K [1995] 2 FLR 211. In that case, the parents and child had lived in Texas. The marriage broke down and there was a divorce. The parents were made joint conservators. The child lived with the mother and had general leave to take the child out of Texas for vacation purposes. The mother took the child to England with the father's permission in May 1991. The child returned to the father for 7 months in October 1991. Subsequently, in May 1992 the father returned the child to the mother in England. With the father's consent, the child was enrolled with a school in England in September 1992. The father agreed to the child studying there for one school term. However, at the end of the school term in May 1993, the mother did not return the child to the father. The father made an application under the Hague Convention. The trial judge held that there was an element of permanence in the father's consent to the child being brought to England (see p.215G) and the mother had a settled intention to stay in England. The child therefore became habitually resident in England and Texas ceased to be his state of habitual residence. The decision was upheld in the Court of Appeal. Mr Pilbrow relied on the following dicta of Waite LJ at p.215H to 216B:

"Habitual residence is, moreover, an ephemeral concept. In Re J Lord Brandon described it as being capable of loss in a single day. It by no means necessarily follows, therefore, that even if the judge had found that the father consented to no more than a 'temporary shift of base' the court would necessarily have been precluded from holding that a consent of that kind (transient though it may have been) was sufficient in the circumstances to constitute consent by the father to a loss by J of his habitual residence in Texas."

49. That case is clearly distinguishable from the present case on the facts. In view of my findings in Paragraphs 44 to 46 above, the only person who has custody over the children at the material time was the mother. The mother has not formed any settled intention as to the future of the children. With regard to the dicta of Waite LJ, I would not take that as laying down that a temporary shift of base would mean a change in the habitual residence of the child. That would be inconsistent with cases like Re S [1994] Fam. 70, Re A [1995] 1 FLR 767 and Re V [2001] 1 FLR 253. I think what Waite LJ said should be read in the context of the facts of that case. The child in that case settled in England with the consent of the father for quite lengthy periods between 1991 and 1993. The "temporary shift" referred to by Waite LJ was not measured in terms of months. Further, Waite LJ made the observations by way of a statement couched with double negatives. I read that dicta as saying no more than that one could not rule out a change of habitual residence just because the shift of base was not intended to be permanent. All the facts have to be considered. This must be correct in view of cases like Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 and Re M [1993] 1 FLR 495. Ultimately, one has to bear in mind that habitual residence is a question of fact. In the present case, with reference to the intention of the mother at the material time, the stay of the children in Hong Kong was not only temporary, it was also unsettled.

50. On the evidence, it is not very clear to me precisely when did the mother change her mind about her coming to Hong Kong and allowing the children to remain in the care of the uncle and aunt. It should occur some time in August or September 2001. In a letter dated 18 September 2001, the mother demanded the return of the children to New Zealand. In any event, irrespective of the precise moment in time when she changed her mind, I find that at no time prior to that did she form a settled intention to relocate to Hong Kong. Hence, up to mid September when the mother issued the Convention proceedings, the children remained habitually resident in New Zealand.

The mother's right of custody over the children

51. Given my finding that the children's habitual residence remained in New Zealand, in accordance with Article 3, the rights of custody attributable to the mother has to be considered with reference to New Zealand law in the application of the two stage test of Hale J (see Paragraph 28 above).

52. In New Zealand, custody in respect of the Children is governed by the Guardianship Act 1968. Pursuant to Section 6(2), the mother is the sole guardian and has sole custody of the Children under Section 3. As such, the mother has the right to determine the Children's place of residence, see Section 2 of the Guardianship Amendment Act (No.2) 1994.

53. Mr Pilbrow did not dispute these propositions which are supported by an Affidavit of applicable law by Anita Chan. It was also accepted that the placement of the Children under the foster care of CYFS under Section 139 of the Children, Young Persons and Their Families Act 1989, which was only meant to be a temporary emergency arrangement, did not take away the rights of custody over the children. In this connection, I have the evidence of the Second Affidavit of Mr Guest dated 5 December 2001. However, Mr Pilbrow submitted that the position was changed by virtue of the two orders made by the Family Court in Dunedin on 29 June 2001 as stated in Paragraph 5 above. He referred specifically to the order for appointment of the uncle as welfare guardian of the mother ["the Personal Order"]. He submitted that under the order, the uncle could make decision as to where the mother lives, hence it was submitted that the uncle could also determine where the Children live. Mr Pilbrow also relied on the Care Agreement and pointed to that as an authorization given by the mother to the uncle and aunt to determine where the Children shall reside. He submitted that irrespective of domestic law as to right of custody, the Care Agreement achieved a transfer of right of custody in the Convention sense by reason of the transfer of right to determine where the Children shall reside.

54. I think Mr Coleman is right in saying that there is an element of inconsistency between the first and second limbs of Mr Pilbrow's submissions. If the Personal Order has the effect of transferring the custody rights of the mother as contended for by Mr Pilbrow, there was simply no need for the uncle and aunt to procure the Care Agreement from the mother. In my judgment, it is clear that the Personal Order did not have such effect. That was an order made under Section 12 of the Protection of Personal and Property Rights Act, which reads:

"(1) ...on an application for the exercise of a Court's jurisdiction under this Part of this Act, the Court may make an order appointing a welfare guardian for the person in respect of whom the application is made in relation to such aspect or aspects of the personal care and welfare of that person as the Court specifies in the order.

(2) A Court shall not make an order under subsection (1) of this section unless it is satisfied ---

(a) That the person in respect of whom the application is made wholly lacks the capacity to make or to communicate decisions relating to any particular aspect or aspects of the personal care and welfare of that person; and

(b) That the appointment of a welfare guardian is the only satisfactory way to ensure that appropriate decisions are made relating to that particular aspect or those particular aspects of the personal care and welfare of that person."

55. It is therefore clear that the effect of the Personal Order was confined to the personal care and welfare of the mother. I do not think the right of custody of the mother over the children can be taken as an aspect of the personal care and welfare of the mother. The evidence as to New Zealand law did not support the submission of Mr Pilbrow. Further, Section 12 requires the particular aspects to which the order has effect to be specified in the order. From the terms of the Personal Order (reproduced by me in Paragraph 5 above), it is plain that the Family Court did not deal with the question as to custody of the Children.

56. With regard to the Care Agreement, I am of the view that it only provided an authorization to the uncle and aunt to take care of the children in the meantime. It did not have the effect of transferring the right of custody. I accept the evidence of Mr Guest that if a transfer of custody was intended, the proper and only way to achieve that was to make an application under the Guardianship Act. As mentioned, although they have been advised to make such an application, the uncle and aunt chose not to do so. Mr Pilbrow submitted that whilst it may be so for a transfer of custody right under domestic law, the position is different if one considers the transfer of custody right in the Convention sense. He based his argument on the right of the uncle and aunt to determine where the children are to reside whilst they are under their care. Mr Coleman pointed out that the Care Agreement only authorized the uncle and aunt to house the Children in their home, hence the mother still determined where they live. On my part, I am prepared to accept that uncle and aunt could take the Children abroad for a short holiday pursuant to Clause 4 of the Agreement. I am even prepared to go to the extent of holding that the uncle and aunt may have some rights of custody in the Convention sense. But that does not mean that they have such right to the exclusion of the mother. In my judgment, even if the uncle and aunt have rights of custody, the mother still has her right of custody. In short, the Care Agreement only permitted the uncle and aunt to do certain things in terms of care of the Children rather than effected a transfer of the mother's rights. The right of the uncle and aunt, being a right acquired from the mother under the Care Agreement rather than from an order of a court, is subject to the overriding right of the mother to determine the Agreement. This is precisely why the paternal grandparents failed in their application in Re M [1993] 1 FLR 495, see in particular Balcombe LJ at p.501 H.

57. I am therefore satisfied that the mother has at all material time right of custody over the Children according to New Zealand law and such right includes the right to determine where they live. It follows that she has the right to demand their return to New Zealand. She therefore has rights of custody within the meaning of that expression under the Convention.

Wrongful retention: my findings

58. As explained in Paragraph 22 above, I do not regard the letter of 16 August 2001 as a refusal by the uncle and aunt to return the children to the mother. Mr Coleman referred to certain statements in the letter which suggested that the aunt had reservation about the mother's ability to take care of the children by reason of her illness. Bearing in mind the purpose for which the children were placed under their care in the first place and the evidence as to the mental health of the mother as revealed to them at that stage, I think the aunt was only raising some legitimate concerns.

59. Mr Coleman relied on Re S [1994] 1 FLR 82 and the finding by Wall J in that case that the mother's retention of the children in England against the wish of their father was wrongful. The whole family went from Israel to England for a sabbatical leave of the parents for one year. In the course of that year, the marriage broke down, the father went back to Israel. Before the expiration of one year, the father issued Convention proceedings. Wall J held that if the mother had intended to return the children at the expiry of one year, she would have a complete defence. However, since the mother had stated her intention not to return the children at any time in the future, Wall J held that the retention was wrongful from the time of the formation of such intention. Before proceedings were commenced, the father had written a letter to the mother to demand the return of the children (see p.86). The ratio of that decision can be found at p.93F to G:

"However, it seems to me that where a parent, as here, announces as part of her case that she does not intend to return the children to Israel at all, she can no longer herself rely on the father's agreement to the limited period of removal or retention as protecting her either under Article 3 or under Article 13(a). As Mr Turner puts it, she cannot have the benefit of the agreement without the burden. Equally, as an issue of fact, it seems to me that the decision which precedes the announcement, even if not communicated to the father, must be capable itself of constituting an act of wrongful retention."

60. On my part, I have reservations about the suggestion that there could be wrongful retention as soon as an intention was formed without any manifestation thereof in terms of action or communication. A similar doubt was expressed by Sir Michael Kerr in the Court of Appeal decision in Re AZ [1993] 1 FLR 682 at 689. This aspect of the decision of Wall J was also questioned by Beaumont & McEleavy, The Hague Convention on International Child Abduction, at p.41. (see also Watson v. Jamieson (1998) SLT 180)

61. On the facts of the present case, it is unnecessary for me to come to a concluded view on this point. For reasons already given, I am not satisfied that the letter of 16 August 2001 could be taken as evidence that the aunt and uncle did not intend to return the children to the mother when the purpose of the Care Agreement has been served. I am not satisfied that the mother had terminated the Care Agreement at that stage. The retention of the children in Hong Kong by the aunt and uncle at that stage was consistent with the Care Agreement. Therefore, there was no wrongful retention at the time when the letter of 16 August 2001 was written. The mother did not issue any Convention proceedings until 25 September 2001. Re S does not assist the mother regarding the first limb of her case of wrongful retention.

62. I now turn to the second limb of the mother's case of wrongful retention. By the letter of 18 September 2001, the mother clearly demanded the return of the children back to New Zealand. By necessary implication, the mother terminated the Care Agreement. For reasons already given in the section dealing with the custody rights of the mother, the uncle and aunt could not object to the termination of the Care Agreement since they had not obtained the custody of the children by any court order. Mr Pilbrow submitted that custody rights could be transferred by operation of law. I have already explained why on the facts of the present case, there was no transfer of custody rights from the mother to the uncle and aunt whether under the Care Agreement or pursuant to the two court orders of 29 June 2001. From 18 September 2001, the aunt and uncle could not retain the children in Hong Kong without any breach of the rights of custody of the mother. At the time when the uncle and aunt received the letter, the children had already been abducted by the father. They were returned on 28 September 2001.

63. On 21 September 2001, the uncle and aunt issued wardship proceedings in HCMP 5172 of 2001 in which they asked for custody of the children. In an affidavit filed on 27 September 2001, the uncle said that the mother could not possibly be the best person to look after the children at that time. These were clear statements of intention that they would not return the children to the mother in compliance with her request of 18 September 2001. At the direction hearing before me on 28 September 2001, I was told that they would oppose the Hague proceedings herein and I therefore directed that they be joined as defendants to these proceedings. Further, after the children were returned to the uncle and aunt, they retained them in Hong Kong instead of sending them back to the mother. The allegation of wrongful retention against the uncle and aunt was added by amendments to the Originating Summons on 11 October 2001. In my judgment, Re S [1994] 1 FLR 82 and Re AZ [1993] 1 FLR 682 are relevant and I find as a fact that the retention of the children by the uncle and aunt after 28 September 2001 to be wrongful in the Convention sense. I wish to emphasize that in so finding, I am not implicating that the uncle and aunt have done something wrong morally. I appreciate their concerns for the welfare of the children and I do not want this judgment to be taken as criticism against them for what they did. I only hold, as I am duty-bound to hold, that the requirements under Article 3 have been satisfied.

Article 13: the law

64. Having reached the aforesaid conclusions, the only possible grounds for me to decline to make an order for the return of the children to New Zealand are those set out in Article 13 of the Convention. The relevant parts of Article 13 read:

"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."

65. Whatever one could say with regard to the situation prior to 18 September 2001, I do not think the mother could be said to consent or acquiesce in the retention of the children in Hong Kong after that date. Article 13(a) therefore does not apply. The arguments before me focused on Article 13(b), whether there was a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

66. Before I consider the relevant facts in the present case, it is necessary for me to deal with the law pertaining to Article 13(b). It was submitted by Mr Pilbrow that the Court of Appeal in D and G has construed Article 13(b) in a manner substantially different from overseas authorities. He submitted that according to D and G, if there are doubts on matters relevant to the welfare of the children, Article 13(b) would be engaged and the discretion of the court cannot be exercised by reference to undertakings or conditions to be imposed as to the return of children. Mr Pilbrow summarized the effect of D and G as follows:

(a) applying the principle that the welfare of the child is the paramount consideration, it is incumbent on the Hong Kong court and indeed the Court is duty bound to investigate those allegations fully and should not defer to a court or other authority in another jurisdiction to investigate the same;

(b) unless and until the Hong Kong court has fully satisfied itself that all doubts arising from such allegations are resolved, it should not exercise its discretion under Article 13(b);

(c) unless the allegation can be discounted altogether, it is almost inconceivable that the Hong Kong court could reasonably and responsibly exercise it's discretion to return a child;

(d) in those highly unusual and exceptional circumstances where a Hong Kong court might feel justified to exercise its discretion to return a child notwithstanding a grave risk being demonstrated, it should not do so until it is fully satisfied that adequate and sufficient practical measures are in place to ensure that the child will not be exposed to any risk of harm;

(e) it follows that a Hong Kong court should not make an order for the return of a child, which order is conditional upon the act of or requires the acceptance of an undertaking of a party, over whom the court has neither jurisdiction nor control.

67. Those are very bold submissions. In fact, one can see immediately that if Mr Pilbrow is correct in his interpretation of D and G, the aim of the Hague Convention could readily be frustrated as far as proceedings in Hong Kong are concerned. If the court were bound to investigate into each and every allegation relevant to the welfare of the child, it would in effect be conducting a custody hearing. This is precisely the situation which the Hague Convention aims at preventing. In this connection, I respectfully refer to Parta.34 of the explanatory report of the Convention by Perez-Vera:

"To conclude our consideration of the problems with which this paragraph deals, it would seem necessary to underline the fact that the three types of exception to the rule concerning the return of the child must be applied only as far as they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a dead letter. In fact, the Convention as a whole rests upon the unanimous rejection of this phenomenon of illegal child removals and upon the conviction that the best way to combat them at an international level is to refuse to grant them legal recognition. The practical application of this principle requires that the signatory States be convinced that they belong, despite their differences, to the same legal community within which the authorities of each State acknowledge that the authorities of one of them-those of the child's habitual residence-are in principle best placed to decide upon questions of custody and access. As a result, a systematic invocation of the said exceptions, substituting the forum chosen by the abductor for that of the child's residence, would lead to the collapse of the whole structure of the Convention by depriving it of the spirit of the mutual confidence which is its inspiration."

68. To the same effect is the reminder of Laws LJ in TB v JB [2001] 2 FLR 515 at 545 [109],

"In my judgment it is critical to recognise, and to bear in mind at every stage of the court's consideration of the case, the difference between the judicial exercise upon which we are here engaged in administering the Convention on the Civil Aspect of International Child Abduction 1980 (set out in Sch 1 to the Child Abduction and Custody Act 1985) (the Hague Convention), and the task which family courts daily undertake (in care proceedings and otherwise) of deciding where the welfare of a child or children lies. In dealing with an application to return a child under art 12 of the Convention we do not apply a straightforward welfare test; if we did, we should risk frustrating the plain purpose of the Convention."

And further at 547 [112], Law LJ summarized the position in the following terms,

"In summary, then, these following features of this jurisdiction are in my judgment interdependent functions of each other. (1) The Convention's policy is that substantive questions of a child's welfare should be decided by the courts of the state of the child's habitual residence. (2) A child unlawfully removed from the state of habitual residence will therefore be promptly returned unless it is shown, exceptionally, that an order of return would create grave risk of intolerable harm to the child. (3) The decision whether such grave risk is made out has to be assessed summarily, else (a) the policy stated at (1) might be undermined, and (b) otherwise the parent left behind in the home jurisdiction is potentially put to unjust disadvantage in seeking to make a case for the child's return. (4) The considerations set out at (3), the words of art 13(b), and the exceptional nature of what has to be demonstrated, show that 'clear and compelling evidence' (Re C (abduction) (grave risk of psychological harm) [1999] 2 FCR 507 at 517 per Ward LJ) is required if the obligation to return is in any particular case to give way in light of art 13(b)."

Hale LJ said at [39] and [40] in the same case,

"39 The policy of the Convention is that disputes about children should be determined in the courts of the country of their habitual residence. Children should not be uprooted and placed beyond their jurisdiction. It is for them to determine where the best interests of the children lie. Article 13(b) is the one exception to this. No requested country can be expected to return children to a situation where they will be at serious risk, but this must not be turned into a substitute for the welfare test, usurping the function of the courts of the home country.

40 Hence the courts in this country have always adopted a strict view of art 13(b). The risk must be grave and the harm must be serious. As Lord Donaldson of Lymington MR said in Re C (a minor) (abduction) [1989] FCR 197 at 208, [1989] 2 All ER 465 at 473: 'the words "or otherwise place the child in an intolerable situation" . . . cast considerable light on the severe degree of psychological harm which the Convention has in mind. ' The courts are also anxious that the wrongdoer should not benefit from the wrong: that is, that the person removing the children should not be able to rely on the consequences of that removal to create a risk of harm or an intolerable situation on return."

69. Kirby J in the High Court of Australia also expressed similar sentiment in the case of DP v Commonwealth Central Authority [2001] HCA 39 (27 June 2001):

"The exceptions, including the one invoked in these proceedings, have to be construed and applied so that they do not undermine the achievement of the overall objective of the Regulations (and the Convention). This is the approach adopted by decisional authority in many countries with systems of law similar to Australia. Although municipal courts are not bound by the approaches adopted by courts of other jurisdictions to the construction of the Convention (or of corresponding municipal law), it is both permissible and sensible for such courts to inform themselves of the approaches taken by others. As the Convention contemplates reciprocal benefits and cooperation between nation states, it is natural for courts, especially final courts, to strive to achieve, as far as they can, a general uniformity of approach in the application of this, as with other bodies of law. Consistent with this general approach and consonant with the language of the Regulations (and of the Convention), it is proper to regard their objective as including that of normally restoring the child, and the other parties concerned, to the status quo that existed before the international removal or retention in question. Specifically, it is ordinarily to require that the authorities (courts or tribunals as the case may be) in the country of the child's habitual residence should resolve the merits of disputes over custody and, in that context, decide the best interests of the child. It is in this sense that provisions such as those in the Regulations are properly to be classified not, as such, as laws searching for the best interests of the child but rather as laws for selecting the forum where that search is to be undertaken and concluded. It is easy enough to slip back into a factual inquiry into the child's best interests, that having for centuries been the duty of common law courts in disposing of analogous cases. But such a tendency must be resisted for otherwise the attainment of the main point of the Regulations and the Convention will be frustrated. Further support for this approach comes from internal evidence in both the Convention and the Regulations that a "full blown" contested custody suit was not what was contemplated once the Convention procedures were invoked. What was envisaged was the "prompt return of a child". To the extent that the proceeding under the Regulations is allowed to become (as these ones have) enmeshed in considerations that would normally arise in a contested custody hearing, the primary objective of urgency, reflected in the Convention and in the Regulations, will be defeated. Were it otherwise, the abducting party would effectively be rewarded for its conduct; time would tend to run in favour of the new status quo; and the party in the country of the child's habitual residence would commonly be forced to contest the proceedings often occurring far away and in a hearing, initiated by a central authority on behalf of a government, in which that party, if present at all, would usually be no more than a witness. The foregoing considerations demonstrate why it is that courts in many countries have repeatedly stated that the proper application of the Convention (in Australia, to the extent expressed in the Regulations) is usually intended to result in a prompt order for the return of the child to its country of habitual residence. Inevitably, this means that the application of the exception provided for in reg16(3)(b) will be rare both by virtue of the language in which that exception is expressed and so as not to undermine the achievement of the overall object of the law. This is also the source of the repeated proposition that the exceptions, being drawn with particularity and using restrictive wording such as "grave" and "intolerable", are to be narrowly construed by courts when applying their terms to the facts of a particular case. Statements such as this may not take the decision-maker far. However, they do focus the mind on the obvious fact that the exceptions (including that in reg16(3)(b)) are narrowly stated. It should not therefore be surprising that they have only been invoked successfully in comparatively rare instances. This analysis requires decision-makers to face up to what will necessarily, on many occasions, be an unpleasant obligation where there may be a suspicion that the child's best interests, viewed purely as a custody determination, might suggest the child's retention within the jurisdiction, although the proper operation of the Regulations, implementing the Convention, requires an order of removal. This is inescapable in the structure of the Regulations (and of the Convention), in the language chosen to express their objectives and in the principal focus which the law places upon responding to conduct which the international community, and municipal lawmakers (including in Australia), have agreed to resist."

Later on, His Honour concluded:

"It is enough to say that, like all exceptions from a general rule, those in reg16(3) must be construed in their context so as to fulfil their function as a departure from the general rule but one that does not destroy or undermine the ordinary attainment of that rule. The Full Court was right to recognise the exceptional character of the derogation from the general rule of return afforded by reg16(3)(b). The overseas authorities to which the Federal Court pointed confirmed this approach."

70. As I said in my Ruling of 10 December 2001, I am duty bound to follow the decision of the Court of Appeal in D and G even if it were inconsistent with overseas authorities. However, I do not think the judgment of the Court of Appeal requires me to adopt the approach suggested by Mr Pilbrow. I have already set out at length in Paras 10 to 17 of my Ruling what I understood to be the rationale of the Court of Appeal. I do not think there is any justification for deriving general propositions to the extent as proposed by Mr Pilbrow. It is necessary to bear in mind the factual context under which D and G was decided. The Court of Appeal was concerned with allegations of sexual abuse. The risk of physical or psychological harm was obvious if the allegations were true. The dicta of Le Pichon LJ in Paragraph 19 of the judgment must be read in that light. Her Ladyship was clearly referring to the specific allegations the court was dealing with. Hence, Le Pichon LJ said:

"So, unless and until those allegations could be discounted altogether or after investigation is found to have no substance, it is almost inconceivable that the discretion could reasonably and responsibly be exercised to return the child to the environment in which the alleged abuse took place." (My emphasis)

71. In my judgment, it would be wholly wrong to extrapolate from that paragraph a general principle that all allegations concerning the welfare of the child has to be resolved before a decision could be made under Article 13(b). That would indeed be inconsistent with what Cheung JA said expressly in Paragraph 32 of the judgment:

"Generally speaking, if the Hong Kong court is satisfied that the conditions for the return of child have been fulfilled, it should make the order and let the court of the child's habitual residence resolve the contested issues affecting the implementation of the access order." (My emphasis)

72. Regarding what amounts to "grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation", I do not think the Court of Appeal laid down any test different from the overseas authorities. It was not one of the issues the Court of Appeal had to decide in D and G. There seems to be not much dispute in D and G that if the allegations of sexual abuse were found to be true, grave risk would be established.

73. In Re C (abduction) (grave risk of psychological harm) [1999] 1 FLR 1145 at 1154, Ward LJ set the standard as follows:

"There is, therefore, an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability, which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."

74. In TB v JB [2001] 2 FLR 515 at p.532 [65], Arden LJ added the following after citation of the dicta of Ward LJ:

"It follows that not only must the harm be substantial but the risk of it occurring must be serious. This follows from the qualification in art 13 of the risk as 'grave'. It is thus not sufficient that it is just a possible risk. It must also be a present risk, as opposed to one that previously existed, of harm occurring on return. In addition, the harm must be caused by the return, not be the mere continuation of an existing state which would have continued in any event."

75. In the present context, the observations by Arden LJ at [95] in the same case is also relevant:

"It is clear that harm for the purposes of art 13 is capable of including harm caused in the way found by Singer J, that is by the deterioration in the mother's condition and consequently in her ability to care for her children. The issue as it seems to me is whether he was correct in his conclusion about the gravity of the risk of such harm. As I see it, the Convention requires an assessment of the factors relevant to that risk, and an evaluation of the likelihood of its occurring."

Hence, I can properly have regard to the mother's ability to look after the children if they were returned to New Zealand in consideration of Article 13(b) (and indeed duty bound to do so). But the overriding question remains whether there would be grave risk that the children would suffer physical or psychological harm or that they would be placed in an intolerable situation.

76. Mr Pilbrow referred to several paragraphs in the judgment of the High Court of Australia in DP v Commonwealth Central Authority [2001] HCA 39 (27 June 2001) on the approach in consideration of Article 13(b):

"The burden of proof is plainly imposed on the person who opposes return. What must be established is clearly identified: that there is a grave risk that the return of the child would expose the child to certain types of harm or otherwise place the child in "an intolerable situation". That requires some prediction, based on the evidence, of what may happen if the child is returned. In a case where the person opposing return raises the exception, a court cannot avoid making that prediction by repeating that it is not for the courts of the country to which or in which a child has been removed or retained to inquire into the best interests of the child. The exception requires courts to make the kind of inquiry and prediction that will inevitably involve some consideration of the interests of the child."

He submitted that the approach of the Court of Appeal in D and G was consistent with these dicta.

77. That was part of the joint judgment of Gaudron, Gummow and Hayne JJ (with whom Callinan J agreed, and they constituted the majority in that case). It is necessary to set out what their Honours continued to say immediately after the passage cited by Mr Pilbrow:

"Necessarily there will seldom be any certainty about the prediction. It is essential, however, to observe that certainty is not required: what is required is persuasion that there is a risk which warrants the qualitative description "grave". Leaving aside the reference to "intolerable situation", and confining attention to harm, the risk that is relevant is not limited to harm that will actually occur, it extends to a risk that the return would expose the child to harm.

Because what is to be established is a grave risk of exposure to future harm, it may well be true to say that a court will not be persuaded of that without some clear and compelling evidence. The bare assertion, by the person opposing return, of fears for the child may well not be sufficient to persuade the court that there is a real risk of exposure to harm.

... That is not to say, however, that reg16(3)(b) will find frequent application. It is well-nigh inevitable that a child, taken from one country to another without the agreement of one parent, will suffer disruption, uncertainty and anxiety. That disruption, uncertainty and anxiety will recur, and may well be magnified, by having to return to the country of habitual residence. Reg16(3)(b) and Art 13(b) of the Convention intend to refer to more than this kind of result when they speak of a grave risk to the child of exposure to physical or psychological harm on return."

Hence, it is clear that their Honours were not saying that there should be investigation into each and every aspect concerning the welfare of the child once allegations of grave risk were made under Article 13(b). It is also relevant to refer to the observations of their Honours in earlier parts of their judgment:

"If it would expose the child to a grave risk of physical or psychological harm, or an intolerable situation, the discretion to refuse to make an order for return is enlivened. It is for the Australian court to decide whether return would expose the child to that risk. Of course it must be recalled that the onus of proof lies on the party opposing return. It will be for that party to demonstrate a grave risk of exposure to harm. Many factors may be relevant to that inquiry. Often enough the answer to a claim of grave risk will be that the feared harm will form a central issue in subsequent judicial proceedings in the country of return. But it is important to notice that this answer has two parts: first, that there will be judicial proceedings in the country of return and, second, that the feared harm which is alleged can be a matter relevant to those proceedings. Both parts of that answer are important if it is to meet a contention that return will expose the child to a grave risk of harm.

So far as reg16(3)(b) is concerned, the first task of the Family Court is to determine whether the evidence establishes that "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". If it does or if, on the evidence, one of the other conditions in reg16 is satisfied, the discretion to refuse an order for return is enlivened. There may be many matters that bear upon the exercise of that discretion. In particular, there will be cases where, by moulding the conditions on which return may occur, the discretion will properly be exercised by making an order for return on those conditions, notwithstanding that a case of grave risk might otherwise have been established. Ensuring not only that there will be judicial proceedings in the country of return but also that there will be suitable interim arrangements for the child may loom large at this point in the inquiry. If that is to be done, however, care must be taken to ensure that the conditions are such as will be met voluntarily or, if not met voluntarily, can readily be enforced."

78. In the same case, Kirby J (who together with Glesson CJ constituted the minority) said:

"The adoption of the word "grave" to qualify "risk" plainly contemplates that in some cases, an order of return will be made although there is a real, even significant (but not "grave") risk of the kinds of harm contemplated. Similarly, the use of the word "otherwise" in reg16(3)(b) indicates that the types of "physical or psychological harm" referred to must also be such as to place the child concerned in an "intolerable situation". Therefore, the language in question, as well as its appearance in a provision enumerating limited exceptions to the general rule, make it clear beyond argument that orders of return will be made to uphold the principal object of the law in circumstances where, were the matter simply a custody dispute (however described), in all likelihood, on the evidence provided, the child's current arrangements would not be altered. Only a circumstance where the party resisting the order can establish, in the context presented by the ordinary rule of return, that that result would expose the child to a grave risk that was "intolerable ... extreme and compelling", will invite the application of the exception."

79. Although there were differences between the majority and the minority as to the application of the principles to the facts of the case in DP v Commonwealth Central Authority, I do not think there was disagreement as to the construction of Article 13(b). As Gleeson CJ said in his judgment in that case:

"The task of the decision-maker is to give effect to the regulation according to its terms. The meaning of the regulation is not difficult to understand; the problem in a given case is more likely to be found in making the required judgment. That is not a problem of construction; it is a problem of application. It may exist at the level of finding the primary facts relevant to judgment; or at the level of deciding the conclusion to be drawn from evaluating known facts. What is made clear, for reasons that are explicable by reference to the nature and purpose of the regulatory scheme, and the Convention to which it gives effect, is that the discretion not to make an order for return only exists where there is a grave risk of harm (the gravity being emphasised by the cognate reference to an intolerable situation), and the onus of establishing that circumstance is upon the person opposing return."

80. I agree that the joint judgment of the majority supports the approach laid down by the Court of Appeal in D and G, but it does not support the wider propositions advanced by Mr Pilbrow.

Application of Article 13(b) to the facts

81. In my Ruling dated 11 December 2001, I have identified the risk pinpointed by Mr Pilbrow. At the request of the parties, I also set out the areas of concern which might be relevant for my decision under Article 13(b). The reason why I did so was to assist the various persons who would prepare the reports I asked for (see para.7 of the Ruling). Mr Coleman rightly reminded the court that those were only tentative areas of concern on which the report makers were asked to address. It was not my intention to hold at that stage that if those concerns were not dealt with satisfactorily, a case of grave risk of harm would have been made out under Article 13(b) and I certainly did not do so. That should also have been clear to the parties given the circumstances under which I give the directions on 11 December 2001.

82. As I mentioned, pursuant to my directions and requests, further material were placed before me. They give me more information to facilitate my adjudication on Article 13(b). At the same time, based on the additional material, Mr Pilbrow has slightly changed his emphasis in his argument as to the grave risk of harm. Previously, his emphasis was on the mental condition of the mother and the threat posed by G. At the resumed hearing, his emphasis seems to be on the parental functioning of the mother.

83. Mr Pilbrow has gone through each area of concern mentioned in my Ruling of 11 December 2001 and submitted that there are still uncertainties which have not been satisfactorily resolved. Whilst those are relevant for my consideration, the ultimate question remains whether the 2nd and 3rd Defendants established that there is a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation. If that is not established, I must order their return. On the other hand, if that is established, I would have a discretion to refuse to make an order for their return to New Zealand. But I may still exercise my discretion to order their return if I am satisfied that adequate and sufficient practical measures are in place to deal with such risk.

84. I shall first deal with the concern emerging from the incident concerning G. I am greatly assisted by the report of the Senior Psychologist and on the evidence, I am satisfied that the unhappy incident did happen. If G continued to live together with the mother, I would have no difficulty in holding that grave risk is established particularly in view of the mother's attitude towards the incident in Paragraph 25 of the Second Affidavit of the mother. However, I am satisfied that G has moved away and it is unlikely that he would go back. I agree with the view expressed by the Senior Psychologist that there will be no imminent risk in that regard if the children were returned to New Zealand (see Paras 20, 21(f) and 22 of the report of 27 February 2002, see also report of James Trigger-Hay at p.344 of the bundle and Dr Taghavi at p.340). I therefore find that grave risk has not been shown in relation to menace from G.

85. As to the mental condition of the mother, in general there is no disagreement between the experts. The mother was diagnosed as suffering from schizophrenia and has been subject to medical treatment since June 2001. Since her discharge from the hospital, she has been closely monitored by professionals from the North Community Mental Health Team. The team included consultant psychiatrist, psychiatric nurse, social workers and occupational therapist. Her current mental condition was described by Dr Taghavi in January 2002 as follows:

"Her mental state has been stable over the last five months and she has been functioning very well, being involved in different activities and social interactions."

The doctor also said the following in a letter dated 13 November 2001:

"At present her mental state is good and she has been cooperative and without any adverse developments. She is progressing steadily and our network is in place if she needs this.

Our plan is to monitor her mental state to keep her stable, and at this stage I do not think she poses any credible harm to her children or anyone in the community...."

86. The risk of relapse could not be ruled out. Dr Taghavi intended to keep her on medication for 24 months. The underlying assumption seems to be that as long as she is on medication, the risk of relapse would be minimized. Although Dr Taghavi described her as having some insight, it is obvious that she has yet to accept fully the nature of her illness. But she does accept she need to have treatment. Dr Hong agreed in his letter of 2 November 2001 that the condition of the mother was treatable with medication. He expressed doubts about the mother's compliance with treatment.

87. Mr Pilbrow submitted that Dr Taghavi did not have a full picture because he did not interview the family members of the mother. He relied on the following observations of Dr Hong (who, for obvious reason, did not have the opportunity of interviewing the mother) in his letter of 2 November 2001:

"...patients with delusional disorder often hide their symptoms from their attending doctors, but they are more likely to reveal their delusional thoughts and experiences to family members or close relatives. Therefore, in order to have a more reliable assessment of [the mother's] mental condition, the doctor should not just rely on interview with the patient alone, and whenever possible, should from time to time obtain information from her family members ..."

88. With respect, I do not see that as a valid criticism. It is clear that Dr Taghavi did not prepare his report merely by reference to his interview with the mother. As stated clearly in his report of 4 January 2002, apart from his monthly interviews with the mother, Dr Taghavi also referred to bi-weekly reports from the social worker and community nurse and occupational therapist. The social worker and community nurse visited the mother on a regular basis. Whilst G might be able to provide some additional information, I do not think that it would escape the attention of these professionals if the mother's mental condition was actually unstable or materially worse than the one depicted by Dr Taghavi.

89. Dr Hong's reservation about the mother's compliance to treatment was based on her lack of insight as to her illness and the observation in a report dated 27 June 2001 of Dr Andrea Boros-Lavack. The latter report, being one made shortly after the admission of the mother into hospital, could not be fairly relied upon when we are dealing with the current condition of the mother. As to her insight on her illness, whilst it may be incomplete or partial, the fact remains that she has apparently been responding well to medication. After all, she has been subject to close monitoring by the North Community Mental Health Team since her discharge and Dr Taghavi was able to report that she had been co-operative and progressing steadily.

90. Another point made by Mr Pilbrow was that the return of the children to New Zealand would increase her stress which might increase the chance of relapse. Dr Taghavi accepted that should the children return, there would be more work and stress for the mother, however he also advised that their return would help her emotionally. I have to assess this risk in the light of what the mother told the social worker as recorded in Para.6 of the report of 11 January 2002 (p.326 of the Bundle). I am comforted by the fact that the North Community Mental Health Team would continue to monitor her condition closely and according to Mr Trigger-Hay, there will be daily contacts during the first month of the children's back in New Zealand. Their role will be to monitor the mother's mental state, her safety and the safety/care of the children. The CYFS would also be working alongside with them and I am satisfied that when there are signs that the children are at risk, CYFS would be duly notified to make the necessary applications under Children Young Persons & Their Families Act 1989 (see the replies of Rangi Atari in the fax of 13 December 2001, Para.3(v) and Para.7 at p.306 and 307 of the bundle). Borrowing the expression of Mr Pilbrow, there will be someone there to "press the button" to evoke the protective mechanism towards the children in case things go wrong.

91. I move on to deal with the points raised by Mr Pilbrow as to the parental functioning of the mother. Paragraphs 16, 17, 19 and 21(e) of the report of the Senior Psychologist identified several areas of concern over the mother's psychological and parental functioning. She considered those as a separate aspect from the mental stability of the mother. The Senior Psychologist summed up her worries in Para.22 as follows:

"If the mother has psychological problems or difficulties significant enough as to adversely affect her parental functioning or her abilities to protect her children, this would certainly have a negative impact on the psychological and emotional development of the two children. The impact can range from mild to severe depending on circumstances. With all the above questions unanswered, I can only say that I have some worries whether the children are returning to an emotionally safe family environment, but nothing more definitive or conclusive can be said at this point."

92. Whilst it cannot be denied that psychological deficits of a parent could in some circumstances lead to psychological harm to children, one has to bear in mind that in the context of Article 13(b), the risk of harm that has to be established must be grave. It has to be commensurate with an intolerable situation. It has to be severe and proved by clear and compelling evidence. The Senior Psychologist had certain limitations in the preparation of her report (see Para.4 of her report). Due to such limitations, her deductions as to possible psychological explanations for certain occurrence were neither definitive nor conclusive. She was unable to put it higher than as worries harboured by her. On the other hand, she observed that the children had a lot of positive feelings and yearnings for the mother and they longed for and wished to be reunited with their mother. In these circumstances, even bearing in mind what the Senior Psychologist said in Para.16 of her report, I do not think the worries expressed by her constituted sufficient evidence to satisfy the test under Article 13(b).

93. The evidence does show that there were aspects in the child care provided by the mother which might cause one to raise an eyebrow. But one must be careful not to allow the inquiry into these matters to turn into a full blown custody hearing. That would defeat the purpose of the Convention. Within the confines of Article 13(b), the quality of child care provided by the mother is only relevant when the under-functioning of parental responsibility is so severe that it could properly be said that the return of the child to such a parent would expose him to grave risk of physical or psychological harm or otherwise place him in an intolerable situation. The matters relied on by Mr Pilbrow included the neglect of the mother to the needs of the children (see Para.13 of the report of the Senior Psychologist, but there is a question mark as to whether that was due to the mother's mental condition), the failure of the mother to protect L against G, the mother's tendency to satisfy her emotional needs through the children, the experience with regard to G's upbringing (see Para.17 of the report of the Senior Psychologist, Para.6 of the report of Social Welfare Officer).

94. I must admit that at one stage these matters did cause me concern, hence my Rulings on 10 and 11 December 2001. However, with the benefit of the reports and bearing in mind the measures in place stated in Paragraph 95 below, I have come to a clear conclusion that these matters, whether taken individually or cumulatively, did not justify the exercise of my discretion to refuse the return of the children under Article 13(b). The children were described by the Senior Psychologist as being pleasant, spontaneous, expressive, cooperative and happy. Although the children have probably improved since they come to Hong Kong (see Para.8 of the report of the Senior Psychologist), I do not think they could be so if they have suffered substantial psychological impairment when they were under the care of the mother. It has to be remembered that they had been under her sole care since birth until they were brought to Hong Kong in July 2001. Granted that the uncle and aunt indeed found the situation appalling when they went to New Zealand in June 2001, but that was when the family was in serious distress because of the mental condition of the mother.

95. Further, in a letter dated 31 October 2001, CYFS indicated that they would do an assessment of the mother's child care ability and her commitment to keep the children protected from harm upon notification of concerns about the twin's care or protection. They are also obliged under New Zealand law to protect the children. Mr Pilbrow said there was no-one there to alert them. I have dealt with that in Paragraph 90 above.

96. That brings me to a point I have not addressed so far. The safety net referred to in Paragraph 90 would only work if the mother remains in Dunedin. Once she leaves there, she would not be subject to any monitoring by the North Community Mental Health Team. There is nothing to stop her from leaving once the children were returned to her. In fact, she has indicated she intended to move back to somewhere warmer. Although several friends of the father have kindly indicated to this court that they were willing to assist, I agree with Mr Pilbrow that there are doubts as to whether they could provide any practical help given the fact that none of them live in Dunedin. The father's promise to visit the mother and the children in New Zealand once every month is also suspect in view of his track record as to the exercise of access whilst the children were in Hong Kong and as to his previous visits to New Zealand. He also has another family in Taiwan to look after.

97. This concern is exacerbated by the association of the mother with S who is in Australia and her reticence about it. This could be a strong inducement for the mother to leave New Zealand. There is also evidence that this gentleman did not have a sound insight as to the illness of the mother.

98. In the usual case, this could easily be resolved by pending or intended proceedings in the requesting country concerning the children. Until the court of that country is satisfied with the welfare of the children, the mother could not take them out of jurisdiction. However, I am dealing with an unusual case. The mother lives in New Zealand by herself. The father lives in Taiwan. He has not commenced any proceedings concerning the children in New Zealand. Although he mentioned at the hearing in December 2001 that he has instructed New Zealand lawyer to ask for joint custody, at the end of the day he only produced a handwritten agreement signed by the mother to the effect that she has custody of the children while he could "take over what-so-ever happen to the mother". It seems that if the children were returned to New Zealand, the father would not commence any proceedings in New Zealand on his own volition. Despite the genuine care of the uncle and aunt for the children, it is by no means clear whether they would institute proceedings in New Zealand regarding the children. In this respect, the joint judgment of Gaudron, Gummow and Hayne JJ cited in Paragraph 77 above is relevant.

99. Mr Coleman submitted that I should not be concerned with what would happen in several months' time after the children were returned. Whether the mother would remain in Dunedin or move elsewhere, that would not happen immediately. I do not agree. My conclusion on Article 13(b) in the present case depends to some extent on the close monitoring of the situation by the North Community Mental Health Team. If they are not there to "press the button" when necessary, the picture would be very different. If she moves to say Australia, the mother would be on her own in taking care of the children in a strange place. I do not have much confidence about S properly taking care of her mental well-being. And the children would be at risk. In the circumstances, I consider that I am duty bound to require some assurance that this safety net mechanism would not be frustrated by the relocation of the mother.

100. Looking the matter from this angle, unless I can have that assurance by imposing some conditions as to the return of the children, the case would have to be considered on the basis that there was a grave risk that the mother would move elsewhere, hence the monitoring of the North Community Mental Health Team would not be effective. On that scenario, by reason of the risk of the stress on the return of the children causing a relapse of her mental illness and the likely deterioration of the child care provided by her to an unacceptable level in that event, adopting the approach of D and G as explained in Para. 17 of my Ruling of 10 December 2001, I would have found that grave risk of harm or intolerable situation under Article 13(b) is established and I would exercise my discretion to refuse the application of the mother.

101. Mr Pilbrow submitted that the court should not make a conditional order for return and he relied on the dicta of Le Pichon LJ in D and G at [18]:

"In effect, the order was made conditional on the acts of a third party over whom the Hong Kong court has neither jurisdiction nor control. To say the least, that was a highly unusual course to take."

102. I do not think Le Pichon LJ went so far as saying that no conditional order could properly be made in the exercise of the court's discretion under Article 13(b). What Her Ladyship was saying was that the court must reflect on the enforceability of the condition before it could properly rely on such conditions as sufficient for alleviating the risk concerned. Read in that light, that approach is supported by the joint judgment of Gaudron, Gummow and Hayne JJ cited in Paragraph 77 above, although by the use of the word 'otherwise', their Honours seemed to consider this in an overall context asking whether grave risk has been established instead of splitting it into a two stage test.

103. The condition that I have in mind is a condition to ensure that there are legal proceedings on foot in New Zealand concerning the welfare of the children before they are returned. That would ensure that the mother could not lawfully take the children away without the sanction of the court in New Zealand. It would be a matter for the New Zealand Court to decide whether the mother should stay in Dunedin or live elsewhere in New Zealand and what measures are necessary to monitor the welfare of the children. I would also direct that a copy of this judgment be supplied to the New Zealand court seized with the matter. Such proceedings should be commenced before the children were returned. Proceedings could be commenced either by the father (and he is at the moment subject to the jurisdiction of this court, being one of the party to these proceedings) or the Central Authority in New Zealand. In the third Special Commission Meeting to review the operation of the Hague Convention held in March 1997, the delegates agreed that the Central Authority could play an active role in the context of Article 7(h) in ensuring the safety of the children returned. In the report prepared by the Permanent Bureau, it was stated in Paras 58 and 59 as follows:

"58 Article 13, paragraph 1 b, forms a sensitive part of the Convention. It must be given a restrictive interpretation. If misused, it could destroy the effectiveness of the Convention. Nonetheless, some argue that courts should show greater sensitivity to the dangers a child may face upon return. Others feel that courts should not commence a detailed social enquiry solely on the basis of an allegation that the child would be harmed if returned, as such proceedings hold the danger of leading to a decision on the merits of the case. It has been suggested that a higher burden of proof should be required where substantive proceedings are already pending in the State of habitual residence.

59 Because Article 13, paragraph 1 b, should only be used in exceptional cases, the issue of the safety of returning children, also considering the trend towards a larger percentage of mothers abducting children, is very important. Questions in this regard concern the role to be played by the Central Authorities upon the return of the child, pursuant to Article 7 h, and the scope for judicial co-operation, even when no proceedings have been started in the requesting State, including, in such co-operation, the putting into place of protective measures."

104. As a result of that discussion, certain proposals were drawn up, including a revised proposal prepared by the delegations of Australia, the United Kingdom, Monaco, New Zealand, Norway, Sweden and Switzerland. All experts agreed with the spirit of the proposal contained in this document although some changes were suggested. In its final form, the proposals are in the following terms:

"1 It is essential to the integrity of the Convention to ensure the safety of children on their return to their country of habitual residence, in order to alleviate possible concerns and the reluctance of judges to order the return of children where issues of (alleged) abuse or violence arise.

2 An increase in the number of refusals to return, in cases where such issues arise, would not be desirable. Accordingly, a narrow interpretation of Article 13 b of the Convention should be encouraged by strengthening the role of Central Authorities in co-operating to facilitate awareness of government or public resources available to parents and children. In that context, Central Authorities should be prepared and encouraged by their respective States to adopt a flexible approach to their obligations under Article 7 h of the Convention."

In view of the above proposals, delegations are urged to adopt the following conclusions:

(1) To the extent permitted by the powers of their Central Authority and by the legal and social welfare systems of their country, Contracting States accept that Central Authorities have an obligation under Article 7 h to ensure appropriate child protection bodies are alerted so they may act to protect the welfare of children upon return until the jurisdiction of the appropriate court has been effectively invoked, in certain cases.

(2) It is recognised that, in most cases, a consideration of the child's best interests requires that both parents have the opportunity to participate and be heard in custody proceedings. Central Authorities should therefore co-operate to the fullest extent possible to provide information respecting, legal, financial, protection and other resources in the requesting State, and facilitate contact with these bodies in appropriate cases.

[(3) The measures which may be taken in fulfillment of the obligation under Article 7 h to take or cause to be taken an action to protect the welfare of children may include, for example:

(a) alerting the appropriate protection agencies or judicial authorities in the requesting State of the return of a child who may be in danger;

(b) advising the requested State, upon request, of the protective measures and services available in the requesting State to secure the safe return of a particular child;

[(c) providing the requested State with a report on the welfare of the child;]

(d) encouraging the use of Article 21 of the Convention to secure the effective exercise of access or visitation rights.]"

105. Although some countries have expressed reservations concerning the conclusion in the square brackets, that did not include New Zealand. The final version was based on the draft put forward by, inter alia, New Zealand. Hence, I have every confidence that the Central Authority in New Zealand would take the measure suggested in Paragraph 3(a) of the said Conclusions and cause legal proceedings concerning the welfare of the children to be commenced in New Zealand to allay the concern of this court.

106. The uncle and aunt may also consider whether they would join in as parties to those proceedings. Since the children would not be returned until proceedings are on foot, there is no question about enforceability. I would require an affidavit setting out progress as to such proceedings and exhibiting the relevant court documents to be filed before the return of the children. However, I wish to hear parties as to the precise terms of the condition and for that purpose, the matter has to be restored. I expect the Central Authority in Hong Kong to liaise with their counterpart in New Zealand concerning the implementation of the condition and provide me with necessary information at the restored hearing.

107. Subject to the fulfillment of the said condition, the children would have to be returned to New Zealand, that being their habitual residence. I would end this judgment by commending the efforts of the uncle and aunt in taking care of the children whilst they were in Hong Kong. I realize that they might be disappointed with my decision. However, I hope they could understand that I am constrained by the nature of these proceedings and my decision to return the children to New Zealand in no way reflect against their contribution to the well-being of the children whilst they were under their care. Boggs J said in the U.S. case of Friedrich v Friedrich (1996) 78 F 3d 1060 at 1068,

"The exception for grave harm to the child is not license for a court in the abducted-to country to speculate on where the child would be happiest. That decision is a custody matter and reserved to the court in the State of habitual residence."

In a different context, Ward LJ said in Re P, 2 November 2000, in dismissing an appeal against an order for returning a child to Zimbabwe notwithstanding the evocation of Article 13(b) by the mother due to the situation there:

"[The state of affairs in Zimbabwe] has become deeply worrying. It has become uncomfortable. It would be not without hardship. It may not be the place that everybody wants to live. It may be that others would rather get out than have to go back. I am concerned with none of those problems. Nor was the judge. She had to assess whether there was a grave risk of harm. That must mean imminent harm or an intolerable risk of harm. An appeal would have no prospect of success. I repeat, for what it is worth, that I am sorry for the mother. I am sorry for the four children, but, in my view, one cannot flinch from the obligations placed upon us by the Convention to honour its spirit. I would refuse the application."