JMHK v. BRG

FCMC 11427 / 2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11427 OF 2010

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J U D G M E N T
(Sole custody/joint custody, supervised access)

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Introduction

1. This is an application by the respondent mother for sole custody and care and control of the only child of the family, a little girl S who is now 7 years of age. She asks that all access with the father be supervised and she opposes staying access. The father now concedes care and control to the mother but seeks an order for joint custody with unsupervised staying access in Hong Kong.

2. The facts in this case are very unusual. In essence the court is being asked to determine what arrangements should be put in place for a young child where both the mother and child are mandated refugees in Hong Kong in accordance with the United Nations High Commissioner for Refugees (UNHCR).  

Background

3. The parents, who are both Coptic Christians and Egyptian, married in Cairo in May 2005. The father ran a plastics business with two partners and the mother worked for a short while in that plastics business and then on marriage became a full time housewife. S was born in June 2007. In December 2009 the mother left Egypt with S, without informing the father, and came to Hong Kong. In December 2009, one week after her arrival, she then, seemingly with the assistance of the Coptic Church, applied for refugee status for herself and S. The father did not initially know where the mother and S had gone. On the 11 May 2010, once he had ascertained their whereabouts, he issued proceedings under the Guardianship of Minors Ordinance in Hong Kong. He sought custody and in the alternative interim access including staying access in Hong Kong. He asked that S not be removed from Hong Kong save with the leave of the court. This matter first came before the Family Court on the 22 November 2010 and on that occasion an order was made that the father should have supervised access to S “in the presence of a member of each party’s respective law firm”. Access was ordered to take place once a month. Although Egypt is not a signatory to the Hague Convention, given the international overtones of this case and the fact that the High Court has a wider inherent jurisdiction than the District Court, the father’s application under the Guardianship Minors Ordinance, Cap 13 i.e. FCMP 96/2010 was transferred up to the High Court. These proceedings became HCMP 784/2011.

4. Other applications followed. On the 2 September 2010 the mother issued proceedings for divorce in Hong Kong based on the father’s unreasonable behaviour. She makes very serious allegations against the father, including allegations of extreme verbal abuse and physical assault; she alleges that the father threatened to take S away and to kill her father and that she had no option but flee Egypt. These proceedings were also transferred up to the High Court as HCMC 2 of 2011.

5. On the father’s case initially there were no serious problems in the marriage and the mother simply left him without warning. He says that she phoned him after she had arrived in Hong Kong and after she had made her application under the UNHCR. At the time the father suspected that the mother had formed an extra marital relationship. The father wished S to return to Egypt and to live with him there. On the 15 October 2010 the father issued divorce proceedings against the mother in Egypt seemingly on the basis of “fornication” or adultery. The mother says that she was never given an opportunity to participate in those proceedings. An affidavit filed by the father’s lawyer dated the 11 January 2011 states that Egypt should be regarded as the appropriate forum to determine the matter. However the issue of forum does not appear to have been further advanced. In any event it seems that the father now has a final decree of divorce from the Egyptian authorities dated the 24 November 2011.

6. On the 29 June 2011 the father issued an application that S be made a ward of court. Again he sought a prohibition order.

7. On the 16 August 2011 the Honourable Mr Justice Poon consolidated all three actions in Hong Kong and the matter was set down for hearing in the High Court.

8. On the 10 April 2013 the father was given leave to withdraw the wardship proceedings and the consolidated action was transferred back to this court under its former case numbers, and adjourned for a further substantive hearing under the Guardianship of Minors Ordinance.

9. The father had continued to have supervised access to S. The order dated the 28 September 2012 states that

1. The Father be granted specific access to the child S born 20^th June 2006

a. On Saturday, 29^th September 2012, from 10am to 8pm; and

b. On Sunday, 30^th September 2012, from 2pm to 6pm;

Place for pick up and return of the said child to be at the entrance to X Park.

2. The Father is not to take the said child out of the Tsim Sha Tsui area and be under the supervision of Mr. SC of Messrs. Krishnan & Tsang throughout the times of access;

10. Access has continued in this manner i.e. it has continued to be supervised by the father’s lawyer with pickups and drop offs generally being at X Park.

What are the current arrangements in place for S?

11. S has lived in Hong Kong for the last 4 years. She lives a regular life with her mother, who is the care taking parent and her mother’s new partner, Mr EAA. She attends school and she enjoys extracurricular activities such as ballet, swimming and violin lessons. She attends church regularly.

12. Somewhat surprisingly perhaps given the circumstances S seems to have a very good relationship with her father. They have a “skype date” every Saturday from 12 noon for 2 or 3 hours. This necessitates the father getting up very early in the morning in Egypt in order to speak to his daughter. The fact that they spend so much time with each other on skype is, in my experience rather unusual, but is perhaps a testament to the effort that everyone is putting into this arrangement – including the mother. The father has also continued to have supervised access to S when he is in Hong Kong. He does not have overnight staying access.   

What will happen going forward?

13. S and her mother are both mandated refuges. Although Hong Kong is not a party to the relevant conventions, nonetheless as a matter of public policy a mandated refugee in Hong Kong is allowed to remain in the territory until they are resettled to a third country. The government will also provide them with limited financial assistance. They are also required to report to the Immigration Department on a regular basis and they have been issued with the relevant recognizance papers. They no longer hold passports and are effectively stateless.

14. The mother says in her most recent affidavit of the 5 February 2013 that although she and Mr EAA would like to remarry that she has until recently put that on hold because she did not wish in any way to jeopardise her refugee status. She continues

8.  I have however recently been advised and verily believe that my refugee status will not be affected by remarriage.  I am also advised that as E (Mr EAA) will enjoy the right of abode in Hong Kong in one year, there is a very real possibility that upon our marriage, I could apply for dependent visa status for S and myself under the sponsorship of E.  This would mean that S and I could remain in Hong Kong as Hong Kong residents whilst remaining under the protection of the UNHCR.  We would therefore not need to be resettled by the UNHCR.

9.  The receipt of this recent advice has for the first time since S and I sought asylum in Hong Kong, given rise to my hope that we can stay in Hong Kong whilst under the protection of the UNHCR, thereby enabling S to continue her studies here, keep her friends and her new life in Hong Kong whilst maintaining contact with her father without the fear of being returned or abducted to Egypt or the necessity of having to be resettled elsewhere on an indeterminate date.

15. In summary then there is a possibility that the mother may remarry and in that event there is also the possibility that she and S may be able to remain in Hong Kong. Mr Peter Barnes, who appeared in court with Mr Egerton for the wife very helpfully, provided the court with a note on “Immigration Status”. In that note he states inter alia as follows:

Dependent visa in case Mother remarries

5.  In case the Mother remarries a resident of Hong Kong who is either a permanent resident or a resident not subject to a limit of stay, she may apply for what is commonly referred to as a “dependent” visa.  The following is an extract from the Immigration Guidelines (from HK Immigration Website):

   http://www.immd.gov.hk/en/services/hk-visas/index.html) –

“Residence as Dependant

44. For a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay), the following dependants may apply to join him/her for residence in Hong Kong:

a. his/her spouse;

b. his/her unmarried dependent children under the age of 18; and

c.  his/her parent aged 60 or above.”

6.  If a dependent visa is granted, the Mother will be able to apply to Immigration for permission to work in Hong Kong.

7.  As for S, she does not fall within the guidelines as she is not a dependent child of the sponsor (i.e. Mr. A).  Her status may remain unchanged.  However, the Director of Immigration does have the power under Section 11, Immigration Ordinance, (Cap. 115) to grant her an entry visa to “regularize” her status here.  If that occurs, then she will no longer be on a recognizance paper and report every 10 weeks to Immigration to renew it.

Document of identity

8.  The Director of Immigration has the power to issue a Document of Identity for Visa purposes.  The Guidance Notes are here:

   http://www.immd.gov.hk/pdforms/ID(E)437n.pdf.

9.  It will be necessary for the mother’s and S’s Immigration status to be “regularized” i.e. they will need to obtain permission to remain as residents of Hong Kong, before the DI [Document of Identity] is issued.

16. Alternatively the mother will be required to leave Hong Kong as soon as she and S are resettled to a third country. Both she and Mr EAA made reference to Canada as one possibility. Mr EAA said in the witness box that he would follow the mother and S wherever they were resettled.

17. Both of these options are of some concern to the father. He fears that S may be resettled somewhere without him being informed of the same. In other words he fears that S may be taken away from him all over again. If the mother remains in Hong Kong he also fears that she may then be entitled to apply for travel documents and that this may again give rise to the possibility of the mother being able to leave Hong Kong with S, without further recourse to himself.

The issues

What arrangements should be put in place for access in the short and medium term?

Should an order be made for sole or joint custody? 

The law in Hong Kong

18. The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.

Section 19 Matrimonial Proceedings and Property Ordinance, Cap. 192 states that

(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18-

(Amended 69 of 1997 s. 28)

(a)   in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

19. The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that:

GENERAL PRINCIPLES

(1)    In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a)  in any proceedings before any court (whether or not a court as defined in section 2) the court -

(i)  shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to -

(A)  the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B)  any material information including any report of the Director of Social Welfare available to the court at the hearing;

For the avoidance of doubt s. 48 C Matrimonial Causes Ordinance, Cap. 179 adds that

…… section 3 of the Guardianship of Minors Ordinance (Cap 13) (which provides that the welfare of the minor shall be the first and paramount consideration) shall apply in relation to any order for the custody care or supervision of a child which may be made under this Ordinance or the Matrimonial Proceedings and Property Ordinance (Cap 192).

20. Both sides have referred me a number of authorities on the issue of custody including the Court of Appeal decisions PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010, Y v P [2009] HKEC 1322 and CCMJ v SSM [2013] 3 HKLRD. Other decisions have been referred to from England and Wales. I recently tried to summarize the up to date position in this jurisdiction on orders for sole custody versus joint custody in my judgment LMM v LKKV 1062 of 2013 (unreported and dated the 5 December 2013). By reference to PD v KWW, Civil Appeal No 188 of 2008 I said as follows:   

22. Thus it is generally accepted that joint custody means that the parents should, in an ideal world, be able to make the major decisions concerning their child’s life together. On occasions joint custody orders have been described as “aspirational”, (see the first instance decision in PD v KWW, which was upheld on this appeal). Counsel for the father points out that this approach has been criticized (but by a differently constituted Court of Appeal) in Y v P [2009] HKEC 1322, where Mr Justice Rogers referred to the order in that instance being “more a matter of wishful thinking than a matter of practical reality”. In CCMJ v SSM [2013] HKLRD 497, the Court of Appeal upheld an order for sole custody where the father had made the mother’s life unbearable and where it was held that he was “determined to ‘micromanage every aspect and every minutiae of a child’s life”. 

21. I then went on to discuss both sole and joint custody in the context of orders for care and control/access and shared care. This is of less relevance here as it is agreed that care and control should vest in the mother.

22. Thus it would be fair to say that joint custody orders are generally made when the parents are able to co operate with each other. However they can also be made in the belief that an appropriately worded court order will provide the necessary structure to enable the parents to make decision of a custodial nature. In some instances such orders could be described as “aspirational”. For example in the first instance decision H v A, FCMP 186 of 2003, referred to by counsel for the father, an order for joint custody was made even though the mother refused to communicate with the father at all.

The concept of custody in an international context

23. In addition to the general domestic law on the subject of joint versus sole custody as set out above, I also asked counsel to address me on the issue from an international perspective. I was particularly concerned as to the possible ramifications under the Hague Convention. Mr Egerton for the father neatly summed up the present position in his closing:

32.  Although “domestically” the practical difference between sole custody and joint custody may be described as narrow, in the context of international movement of children, the significance of a formal recognition of custody rights is magnified.  “Joint custody” will not simply be a “label” for the Father (para 57, Mother’s opening submissions).

33.  Under the Hague Convention on the Civil Aspects of International Child Abduction, removal of a child to another state is only wrongful if it is shown to be in breach of “rights of custody” (Article 3).  The distinction between rights of custody and rights of access is thus a fundamental part of the Convention and the mechanism for summary return of a child to the place of his/her habitual residence in the case of wrongful relocation.

34.  The Convention does not require the return of a child in every case, and the difference between custody and access rights has been repeatedly emphasized: RE W; Re B [1998] 2 FLR 146; AC v AS, HCMP 4266/2001, (unreported 24 October 2001).

35.  In short, the Convention does not supply the remedy of prompt return to a parent who has non-custodial rights.

36.  It has been held that the formal recognition of a parent’s ‘right of veto’ as opposed to the potential to ask a court for such an order, is a right of custody: Re D (Abduction: Rights of Custody) [2007] 1 FLR 961.  The House of Lords reaffirmed that the requested state’s Court had no warrant to question the underpinning of the order made in the requesting state, and said that an Article 15 ruling from the requesting state must be conclusive as to the contents of the rights of the parent seeking the return of the child, absence exceptional circumstances.

37.  In the circumstances of this case, it is in S’s best interests for there to be a formal recognition of the Father’s rights of custody by an order for joint custody.

24. Mr Clough has also produced other cases for the mother, with respect to the meaning of “rights of custody” within the convention. (See Abbott v Abbott, 130 S. Ct. 1983 USA (2010), State Central Authority v Quang [2010] FamCA 231, Helsinki Court of Appeal, 22 March 2011, Decision No 879 FINLAND, Adkins v Adkins, 2009 BCSC 337 (2009) CANADA).

The law on access and the supervision of access

25. There are no other specific provisions in the legislation that relate to access. Access or contact is generally said to be the right of the child, as opposed to the parent. In other words S has the right to see and to have a relationship with both of her parents. The court is primarily concerned with the best interests of S and not the relative rights of each of the adults with respect to her.

26. The supervision of access is referred to in sections 48, 48A and 48B Matrimonial Causes Ordinance, Cap 179. The term “supervision” normally denotes supervision by the Social Welfare Department – although it is possible for access to be supervised by other third parties. 

27. Although unusual, I would accept as has been pointed out by Mr. Clough, that it is possible for staying access to be supervised, if the situation warrants it.  

The evidence

28. I must now turn to consider the issues, the law and the parties evidence as set out in their affirmations and as given orally by them during the hearing.  For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, or one of the other witnesses, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact.  In addition I have had the opportunity to observe the demeanor of the parties while they gave evidence in court.

29. I heard evidence from the father and the mother, the three social welfare officers, the mother’s new partner and the father’s new wife.

The parents in the witness box

The father

30. The father presented as being a rather forceful and uncompromising character. Having said that I have no doubt that he loves his daughter. He has shown that he will go to great lengths to ensure that he has a relationship with her including regular skype sessions in the early hours of the morning Egyptian time. He comes to Hong Kong on a regular basis to see her and at great cost. These proceedings have also cost him a great deal of money. It is clear that he wishes to be fully involved in S’s life going forward notwithstanding the rather difficult circumstances that now exist. He wishes to be consulted on all aspects of her life and he asks for free and regular access to her. He is indignant that the mother wishes supervision to continue and did not propose any alternatives in that respect.

The mother

31. The mother struck me as being a bright and resourceful woman. She was also quite emotional and would not be shifted from her alleged concerns even when they made little logical sense. She is absolutely convinced, for example, that the father plans to abduct S and I suspect that nothing will convince her otherwise – however much time is allowed to elapse in order, as she says, for trust to be rebuilt. Having said that she is clearly a very good mother and all credit should be given to her for ensuring that her daughter has a good relationship with her father, notwithstanding these very difficult circumstances and her own very crippling fears.

Mdm M

32. Mdm M is the father’s new wife and she presented as “the voice of reason”. She is from Mainland China and is ethnically Chinese. She married the father in 2012. She has attempted to bridge the gap between the two sides and although initially unsuccessful all credit should be given to her for this. I would hope that further steps could be taken in this regard once these proceedings have come to an end. She has confirmed that she will accompany the father on all future access trips to Hong Kong.

Mr EAA

33. The mother’s new partner is ethnically Egyptian, although he has never lived in Egypt. He is also a member of the Coptic Church, which is where he met the mother. He holds a British passport and is entitled to apply for Hong Kong permanent residency this month. He presented as being a sensible down to earth person, who is very supportive of the mother in her present predicament. He is also clearly very fond of S.  

The Social Investigation Reports

34. There have been three social welfare reports filed at different times in the course of these proceedings. Unfortunately and rather strangely all three social welfare officers had disposed of their notes and did not bring them to court. As in all cases concerning children the social welfare reports are very influential. They provide the court with a unique insight into the family dynamic and reasons must be given if their recommendations are not adopted.

Social Welfare Report dated the 26 January 2011 

35. In paragraph 28 of this report the social welfare officer said as follows:

28.  Regarding the matter of access, she admitted that S was happy after meeting Mr B in the access on 23.11.2010 in Hong Kong.  S also told her that she hoped to see the father again.  Hence, she would not stop Mr B from seeing S.  She preferred access once every two months and she would not object staying access.

36. Much was made of this during the hearing – i.e. the suggestion that the mother was at that stage willing to agree to unsupervised access and also to staying access. The mother said that her English skills were not very good at that time and that she had not fully understood what the Social Welfare Officer had meant. In any event I do not intend to attach very much weight to this aspect of the report. Whatever may or may not have been said it is clear that the mother’s position quickly crystallized and that she has not wavered since then from her stated position about both supervision and staying access. She wishes all access to be supervised and she is opposed to staying access at the moment. She says that “trust” needs to be rebuilt before she can countenance the possibility of staying access.

37. It should be noted that the social welfare officer did not make any recommendations at that stage because she had not had the opportunity to interview the father.

Supplemental Investigation Report dated the 3 February 2012 

38. A second welfare officer commented as follows after observing both parents with S:

42.  Before making my recommendation, I would like to highlight that the interests of S is of paramount concern.  The caring arrangement for the child should be made with reference to her daily routine, social development and psychological needs. For a five and a half years old girl like S, it is necessary for her to develop self-determination, communicate with others, maintain a stable living environment and routine and keep a close bond with both parents.  In her pre-school years, S needs time to adjust in any change of physical and social environment.

43.  From direct observation, S was found attached to both parents.  She interacted spontaneously with both parents who seemed to have the ability to speak the child’s language and handle the child’s emotion.  In this case, S appears to have received stable and adequate care from her mother who has established a stable routine for her as reflected by her tidy appearance, cheerful character and regular schooling.  Ms K’s plan to continue to render full-time care to her daughter is also geared to the developmental needs of the child.  For a child in young age, the mother can play a more prominent role in the child’s upbringing both in terms of her emotional and physical needs.

44.  The child’s need of having regular access with the non-residing parent upon parental separation is considered important as such can help maintain the unbroken tie between the non-residing parent and the child.  In this case, Ms K has concern that S would be taken away by her father during access.  It needs to be pointed out that no evidence has been shown that S is subject to any kind of risk or harm.  The right of the father and the child to maintain parent-child relationship through regular access with privacy should be respected.

45.  In view of the foregoing, I would like to recommend that the Petitioner/Respondent/Defendant mother Ms JMHK be given greater consideration of the child’s custody with care and control while the Respondent/Applicant/Plaintiff father Mr BRGE be granted day access from 2:00pm to 9:00pm for 2 days during his each visit to Hong Kong and reasonable telephone access, provided that such access arrangement does not affect the schooling of S.  It is hoped that more access including staying access can be arranged in future when both parties are able to develop more trust to each other.

39. As will be seen I tend to agree with the observations made by the social welfare officer at paragraph 44 of her report above.

Social Investigation Report dated the 5 November 2013

40. In this report a different social welfare officer recommended that:

50.  From the limited direct observation and gathered findings, S has intimate relationship with her mother and harmonious communication with her father.  S appears to have stable and adequate care from her mother who has established a stable routine for her as reflected by her tidy appearance, cheerful character and regular schooling.  Mdm K’s plan to continue to provide full-time care to S is also geared to the developmental needs of the child.  However, the cooperation and communication between the parents was indirect and limited in the past few years.  They would mainly communicate though their lawyers.  Mdm K also expressed her fear to Mr. E.  Without a mutual trusting relationship between the parents, the effectiveness of their future cooperation for S’s welfare was not optimistic.  There is also a practical difficulty for Mr. E to participate in S’s welfare as he lived in Egypt where is far away from Hong Kong.  In order to protect S in access time, the existing access practice with the presence of the father’s lawyer carried out in past three years.  There is no obvious urgent need of change in such access arrangement in terms of the child’s interest.

51.  In view of above, I thus recommend that the Petitioner / Respondent mother Mdm JMHK be given greater consideration of the child’s sole custody with care and control while the Respondent / Petitioner father Mr. BRGE be granted the day access from 9am to 7pm on S’s non-school days (if Sunday to be from 2pm to 7pm) or for 2 hours from after school to 6:30pm on school days, for reasonable consecutive days, during his visit to Hong Kong once a month, with the presence of his lawyer; and reasonable phone and Skype access, provided that such access arrangement does not affect S’s school routine.

41. No consideration seems to have been given to the international ramifications of this recommendation (please refer to paragraph 22 – 23 above). Further the social welfare officer does not appear to have given thought to the practicalities of recommending ongoing supervision by the husband’s lawyer. For the avoidance of doubt the husband’s lawyer is not prepared to supervise access going forward. Neither party were prepared to put forward other options for the court’s consideration in this respect. For the record however I accept that it does not seem to me that it is viable for supervision to continue in this manner.  

What arrangements should be put in place for access in the short to medium term?

42. The mother is vehemently opposed to any form of unsupervised access. She will not agree to any form of staying access. She says that the risks are too great. She fears that the father will falsify the daughter’s passport or other travel documents and that he will take her back to Egypt. 

43. One of the very real difficulties with this case is that there is no extrinsic evidence to back up what each side says. It is all “he said/ she said”. For example, as Mr Clough for the mother points out in his closing submission, I am asked to believe that

4.  She [the mother] was the victim of spousal abuse and threats to her life in Egypt. Her husband was violent to her; he threatened her; the Egyptian authorities gave her no protection but pro-actively offered support her husband, the perpetrator of these assaults.

Mr Clough continues:

7.  The fact that M is a refugee and recognised as such by the UNHCR is significant. She escaped Egypt.  She would risk persecution if she returned.  She was the victim of abuse.  She and her family were subjected to threats.  Egyptian law, in form and by its practice and procedure, discriminates against women.  [See e.g. Exhibit “JMHK-1” Human Rights watch Overview of Marriage and Divorce Laws in Egypt P1:165

44. The difficulty is that there is nothing to support what the mother says in this respect. There are no affidavits from third parties or other family members who might have been able to confirm her version of events. There are no photographs or doctor or hospital reports which might also verify her account. No expert evidence has been adduced. I am asked to rely on the fact that she has been granted refugee status as if that of itself should be attached some weight. Unfortunately although Poon J ordered the wife to provide the husband with a copy of her UNHCR application and supporting documents (see paragraph 5 of the Court order dated the 6 March 2012) they were not forthcoming as the UNHCR asserted absolute confidentiality in that respect and refused to release any of the documentation filed with them. It seems that the mother did not retain any copies otherwise. In such circumstances it does not seem to me that I can simply assume that what Mr Clough asserts on behalf for the wife is correct. This is especially so since at one point the father claimed that the mother had obtained refugee status because she said that he had tried to force her to convert to Islam – which he categorically denied. The reality is that I do not know why the mother was granted refugee status. It would be quite wrong of me to rely on innuendo and supposition in that respect and I do not intend to do so.

45. The father for his part reiterated that he did not believe that there was anything fundamentally wrong with the marriage – despite the allegations later made by him in the Egyptian divorce papers of fornication etc.

46. Whatever the truth or otherwise of the situation however the fact remains that the mother took a very extreme cause of action to extricate herself from the parties marriage and her life in Egypt.  

Is there any basis then for the mother’s fears?   

47. The mother fears that S will be abducted by her father; she says that he has forged documents in the past and that he could do so again. She says that once S is with the father in Egypt that it will be virtually impossible for her to get S back again.

48. Although I accept that the mother genuinely fears these things, there seems to be little evidence to support what she says in this respect. She points to the fact that she has witnessed with her own eyes the father forging documents in his factory for tax or other purposes. With respect, even if that were the case, that is a very long way from arranging to falsify passports or other travel documents in Hong Kong, with all that that might entail. The father was also clear about this in the witness box. He acknowledged the harm that such action might do to S and said that that was not something that he wished to do.

49. The mother says that it will take time to rebuild trust – but by the same token has done nothing herself to try to establish a more trusting relationship with the father. I was particularly perturbed at her reaction to the father’s new wife’s attempts to open up direct dialogue between both families. She accused the father of harassment and insisted that all further communication be via the solicitors.

The mother’s proposal on access

50. Although not repeated in her closing the mother initially made the following proposals for access in her opening:

PROPOSED ARRANGEMENTS

38.  School week access School week access must take S’s school, ECA commitments and daily routine into account.

39.  Holiday and weekend access M fears F will carry out threats to abduct S.  If he managed to remove her to Egypt, the prospects of her return to Hong Kong are extremely remote.  Supervised access must continue.

40.  Subject to that, M will facilitate access.  For example, if F wants S to stay with him M will agree that a Disneyland stay could take place with M having a room at the Disneyland hotel so she sleeps overnight with her mum but can have supper with her F and joins him for breakfast.

41.  This means he can have supervised access to S up to the point when she goes to bed and from the time when she gets up.

42.  M proposes F has seven consecutive days access in any fourteen-day period with supervision.  This has been the status quo for the past 3 ½ years.

43.  Since S is a mandated refugee and unable to leave Hong Kong without losing her refugee status, access outside Hong Kong is not feasible.

44.  If F is in Hong Kong on public holidays or special occasions M will encourage access.

45.  Skype / telephone access M will ensure this continues.  S is comfortable with using Skype, Viber etc. M will encourage more Skype contact.

46.  M proposes a dedicated email account.  She will email F copies of school reports.

47.  The parties can communicate about all child matters including schooling and access.

48.  M will consult F on all major decisions.

The father’s proposals on access

51. In his closing the father proposes as follows:

SCHEDULE A

Father’s proposals as to access:

Unsupervised staying access in Hong Kong

2014 (3 visits to Hong Kong)

Easter school holidays (18 April) 10 days

Summer holidays (14 July to 1 September) 2 weeks

Autumn term 10 days inclusive of 2 weekends

2015 (4 visits to Hong Kong)

Chinese New Year 10 days

Easter 10 days

Summer holidays 2 weeks

Autumn term 10 days inclusive of 2 weekends

Weekly Communication

1.   Skype access each Saturday

2.   Other Skype by agreement

3.   Telephone call between evening 5-6.30pm (HK time).  The Father to give prior notice by text

Conclusion

52. As indicated to the parties I intend to bring this matter back to the court within the next 12 months or so. Although the father wishes to have staying access that is completely unsupervised, the fact remains that S has not spent more than one day at any time with him before. She has never had unsupervised access. The mother is also terrified by the prospect. Thus it seems to me that instead of choosing between two stark alternatives that the more appropriate approach would be to introduce unsupervised day time access first – with a view to then introducing overnight access once that has been established. This will also be subject to certain conditions, which the father must comply with in order for the access to take place as ordered.    

Preconditions

53. These arrangements will therefore be on the premise that the father’s new wife is in attendance at all times and that the father’s and his new wife’s passports are held by his solicitor’s during periods of access.

54. The Immigration Department shall also be informed of the different spellings used by the mother and S in various different official documents and all alternative spellings should be included in this court order.

55. Further I accept that the mother shall i) give the father at least 28 days prior notice of any application by her for a new passport/travel document for either herself and/or S and to provide copies of these to the father, ii) to notify the father as soon as she has been made aware of any change to her and S’s status in Hong Kong – with particular reference to the acquisition of local residency status in Hong Kong and iii) to inform the father immediately in the event that she and S are to be resettled outside of Hong Kong.

56. In addition the father must undertake not to apply for a passport or any other identity document for S unless with the consent of the mother or by order of the court.

57. Subject to those preconditions I will make an order for access as follows:

Access in 2014

i)    Easter school holidays from the 18 April 2014 – exact dates to be confirmed. The father shall have unsupervised day time access to S, save for the presence of his wife, for 10 consecutive days. In the absence of any agreement to the contrary this shall be from 9 am – 7:00 pm on non school days during the holidays and from 2 pm – 7 pm on Sundays. The weekend (one night) shall take place in the manner suggested by the mother at paragraph 48 (40) above and the father shall be responsible for the mother’s costs in that respect.

ii)   Summer holidays – two weeks during the period from the 14 July – 1 September 2014 – exact dates to be confirmed. The father shall have unsupervised day time access to S, save for the presence of his wife, for 14 consecutive days. In the absence of any agreement to the contrary this shall be from 9 am – 7:00 pm on non school days during the holidays and from 2 pm – 7 pm on Sunday. The weekend (two nights) shall take place in the manner suggested by the mother at paragraph   48 (40) above and the father shall be responsible for the mother’s costs in that respect.

iii)   Autumn term – 10 days inclusive of 2 weekends. The father shall have unsupervised day time access to S, save for the presence of his wife, for 10 consecutive days. In the absence of any agreement to the contrary this shall be from 9 am – 7:00 pm on non school days during the holidays and from 2 pm – 7 pm on Sunday. During the weekends (two weekends), the father shall have unsupervised staying access for one night on each weekend.

iv)   The father shall continue to have skype access each Saturday from 12 noon for 2 or 3 hours. Other skype access to be by agreement between the parties.

v)   The father shall have telephone access between 5:00 – 6:30 pm Hong Kong time. The father shall give prior notice of the same by text.

vi)   For the avoidance of doubt the prohibition order shall remain in place. Neither party shall remove S from Hong Kong save with leave of the court. All versions of S’s name shall be included in the order and the Immigration Department shall be informed of the same in a joint covering letter.

vii)   Liberty to apply on an urgent basis.

viii)  There shall be a call over in relation to the access arrangements on the 14 January 2015 at 9:30 am.

ix)  An updated SIR on the issue of access only to be called for and filed prior to the call over hearing.    

Each party’s proposals

58. The mother wishes to have sole custody and the father joint custody. The mother says that given that she and S are mandated refugees that it would be inappropriate for there to be an order for joint custody. She is concerned that the father would use this against her somehow in Egypt. In any event she says that she is fearful of the father and that she cannot communicate with him. 

59. Each party has dealt with some of the technicalities surrounding their position. For example the mother says that she will consult the father on all major decisions (presumably this will be by way of an undertaking) and the father says that he would give a general form of authority to the mother to allow her to make decisions solely, in order for example for S to take part in certain school trips. Again this should be by way of an undertaking and should also cover the mother’s need to make medical and dental decisions solely should the need arise. Both of these concessions denote a willingness by the parents to co operate with each other at a very basic level.

60. The mother says that the father’s concerns about S unilateral removal to a third country are misplaced. She argues that should they be resettled that she and S would be granted residency rights in that country and there would be no possibility of returning to Hong Kong, where they are stateless, in response to an application by the father under the Hague Convention. This argument is of itself of some concern. Whilst that may be true, it is also important to ensure that if she and S are resettled – or indeed if circumstances change by virtue of her possible remarriage, that the father is informed accordingly; that he is consulted and that orders, including possible mirror orders, are put in place to ensure that his rights and indeed S’s right to have a relationship with him are upheld. In that event it seems to me that in order to prevent the possibility of any ambiguity in that respect that it is important that in these circumstances the father’s custodial rights are fully recognised. Consequently I will make an order for joint custody, subject to the father’s undertaking authorizing the mother to make certain decisions solely and his undertaking not to apply for a passport or any other form of identity document for or on behalf of S. I should add that in making this order I accept that the level of co operation between the parties is presently minimal. However it seems to me that an order for joint custody in these circumstances is truly in S’s best interests and must therefore be made.  

61. I will therefore make an order that there shall be joint custody of S, with care and control to the mother and defined access to the father as set out in paragraph 57 i) – v) above.

Costs

62. Given the nature of this dispute I will make an order nisi to be made absolute at the expiration of 14 days that there shall be no order as to costs. There shall be certificate for counsel.