C v. N

HCMP 154/2016

MISCELLANEOUS PROCEEDINGS NO154 OF 2016

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REASONS FOR DECISION

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BACKGROUND

1.  The plaintiff (“the father”) and the defendant (“the mother”) have 2 children.  The mother took the children out of Taiwan where they used to reside to Hong Kong.  This was the father’s application for custody and order for the children to be returned to Taiwan.

2.  At the hearing on 7 March 2016, upon undertakings given by the father and mother respectively, I ordered, amongst others,  that:

(1) Interim custody of the children be given to the mother pending resolution of the Taiwan divorce and custody proceedings, with interim care and control to her;

(2) The father be at liberty to take the children back to Taiwan;

(3) The mother be at liberty to follow and travel with the father to Taiwan at his expense;

(4) The wardship status of the children shall be uplifted after they have left Hong Kong;

(5) The mother shall inform the father in writing should she decide to reside out of Taiwan, whether in Hong Kong or elsewhere.

3.  Here are my reasons for decision.

THE UNDISPUTED FACTS

4.  The father came from a wealthy family and he is a business man. He and the mother met whilst studying in Australia.  They got married in Taiwan in 2004.  The mother has always been a housewife. 

5.  The children were born and grew up in Taiwan.  The elder child is a girl (aged 11, born in 2005).  The younger child is a boy (aged 8, born in 2007). They studied at a European international school (“the School”) in Taiwan.  Apart from going to school, they have private tuitions and extra curricula activities such as violin, ballet and piano.

6.  During the marriage, the mother was not able to get along with her parents-in-law.  The father bought a property (“the Property”) on mortgage with himself as guarantor.  It used to house the mother and the 2 children.  The Property was very near to the home of the father’s parents. 

7.  There were cross-allegations between the father and mother as to infidelity towards the marriage, which were irrelevant to the present proceedings. 

8.  The mother and father lived apart since about 2010 but the father continued to support the mother and the children.  The father lived in the house of his parents, with rooms for the children.  The mother lived in the Property.  The children used to be under the care of the mother with the assistance of a domestic helper.  The father worked in Huizhou in Mainland China and Taiwan.  When he was not working, the father visited the children often, and drove them to school.  The children spent time in the home of their grandparents.

9.  In September 2015, the father sent a divorce agreement to the mother. Mediation took place on 12 November 2015, but fell through. 

10.  Two weeks later, on 24 November 2015, the mother brought the children to Hong Kong, without notice to or consent of the father.  She has since been residing in the homes of her father and a sister in Hong Kong.

11.  The father has applied for interim custody in Taiwan on 30 November 2015.  He commenced divorce and custody proceedings in Taiwan on 14 January 2016. 

12.  The father commenced the present wardship proceedings on 20 January 2016.  He had been prevented from seeing the children or having telephone contact with them for a full 2 months until after this court’s order for interim access on 27 January 2016.

13.  The father accused the mother of abducting the children and using them as a ransom against him to seek more maintenance from him.  He said that the mother had depression and was on medication.  She had mood swings and changed her mind from time to time to suit her case.  Whilst in Taiwan, she would deprive the father of access.

14.  The mother claimed that the father cut her credit card and failed to repay the mortgage with a view to coercing her into signing the divorce papers.  He reduced the monthly maintenance from about NTD150,000 to NTD20,000.  He told her to find a job in the emails of November 2015.  As she was left without financial support, she came to Hong Kong to seek the assistance of her maiden family.  She had told the children beforehand and the children chose to come with her.  It is her plan to settle in Hong Kong and find a school for the children.  She would require financial assistance from the father.

LEGAL PRINCIPLES

15.  The Hague Convention does not apply to the present situation. Wardship may thus be invoked. In such cases, it is proper to apply the general principles of the Hague Convention with some modifications:

(a) The Hong Kong courts will treat the welfare of the child as paramount: s.3 Guardianship of Minors Ordinance, Cap 13.  It will first determine the appropriate forum to decide the substantive issues relating to the child’s welfare.

(b) Normally the best interests of children are best secured by having their future determined in the jurisdiction of their habitual residence.

(c) So long as the country from which the child came applies principles acceptable to the Hong Kong courts, subject to contra-indications such as those in article 13 of the Hague Convention, or risk of persecution or discrimination, then the question as to the child’s future must be decided by the courts of the child’s habitual residence.

(d) Only where jurisdiction was retained will the court consider the welfare of the child in the context of the substantive issues.

(e) The court will take account of the relevant matters to consider under article 13 of the Hague Convention.

See Hotten, Marwah & Marwah, Hong Kong Family Court Practice, 2^nd ed, §§5.388 and 5.389.

16.  I will add that:

(f) Once the mandatory return obligation arises under the Hague Convention, it is for the abducting parent to prove that there is a defence to the mandatory return: S v S [1998] 2 HKC 316 at page 325 E-G.  Where the Hague Convention does not apply, similarly it is for the abducting parent to justify why the children whose habitual residence is not Hong Kong should stay here.

(g) Similar to the procedure under the Hague Convention, the return of an abducted child should be pre-emptory and summary.  Speed is of the essence. S v S, at page 327.

17.  In cases of return, it is the normal practice of the courts to insist on undertakings to the court in order to safeguard the child’s welfare on return. Hong Kong Family Court Practice, §5.389. 

18.  However, the Hong Kong court should not hamper the freedom of a foreign court by undertakings to be given to the Hong Kong court.  The undertakings to be given by a party should be simple, clear, easy to implement and mainly to cover the interim period when the foreign court has not yet had the opportunity to react to what has happened in Hong Kong.  S v S, at page 336 F, G, H.

19.  In order for the objection of the abducted child to be taken into account by the court, the child must be of a sufficient age and of a degree of maturity; and the child must have expressed a valid objection to return to the country, but not to the person who would be living with him in a proper country.  S v S, at page 333 B, C, E.

THE APPROPRIATE FORUM TO DETERMINE THE CHILDREN’S WELFARE

20.  An alien minor who is physically present in Hong Kong can be made a ward by the Hong Kong court irrespective of his nationality or citizenship. It is, however, for the applicant to justify the exercise of that jurisdiction in the circumstances of the case.  See Nguyen Dang Vu & anor v AG, HCMP4257/1993, Kaplan J.

21.  The Hong Kong court will have jurisdiction notwithstanding that the court of a foreign country where the child may be also has jurisdiction to make an order.  See Halsbury’s Laws of Hong Kong, Section 180 Family Law, Section 3 Children in Family Law, Section 3 Wardship, §180.338.

22.  In the present case, the children were born and grew up in Taiwan. Their home was there.  Their school was there.  The mother has lived there since 2004 (apart from about 1.5 years when the family lived in Shenzhen.)  The father’s base was in Taiwan although he worked in the Mainland.  The paternal grandparents lived there and the children enjoyed a close relationship with them.  There could be no dispute that the children’s habitual residence was Taiwan.

23.  The mother removed the children from Taiwan stealthily.  It was in breach of the father’s rights of custody, which he has been exercising all the time.  The children were cut off from their well evolved and fulfilling way of life in Taiwan.  Worse still, the mother had no concrete plans to help the children settle here, nothing in terms of schooling, little in terms of residence apparently formulated only when she was here.

24.  The mother has not begun to show that Taiwan was not an appropriate forum.  The courts there equally put the welfare of the children in the forefront.  There was no suggestion of persecution, discrimination or risk that the mother or the children might face were they to return Taiwan.

25.  I find that there was no better jurisdiction to deal with the children’s custody issue than Taiwan and the Hong Kong court should decline jurisdiction. I would, however, temporarily exercise the wardship jurisdiction to ensure smooth transition of moving the children from Hong Kong to Taiwan.

WELFARE OF THE CHILDREN

26.  The removal of the children from Taiwan has disturbed the children in the following aspects:

(a) Education;

(b) Contacts with the father and the grandparents.

EDUCATION

27.  By the time of this hearing, the children have been deprived of formal schooling for over 3 months.  Home schooling by the mother was no substitute.  That was particularly damaging to the daughter as she was in the second last year of middle school.  Moreover, the children have not had the extra curricula activities as they were used to.

28.  In terms of international schools in Hong Kong, the father has provided evidence that their school fees were double that of the School.  The mother could not afford to pay.  Although there was no suggestion that the father could not afford the school fees, it was, in my view, undesirable for the children to be put into a new school in the middle of a term.  The School has promised to help the children catch up if they shall return to Taiwan.

29.  In terms of local school, the children could not get enrolled because they did not have identity cards and did not speak Cantonese.  The son’s application for a local school under the direct subsidy scheme has been rejected. 

30.  Further, the son has Attention Deficit Hyperactive Disorder (ADHD) and needed to attend rehabilitation training.  He had repeated Grade 1 to relieve any pressure from work.  Any disruption to his school year may mean that he may have to repeat another year.  It would also disrupt his rehabilitation training.

31.  It was reckless for the mother to leave the children’s education in this state.  I have directed the application for HK identity cards for the children to be stalled for the time being because this court did not want to run the risk of affecting the children’s residence status in Taiwan.

CONTACTS WITH THE FATHER AND THE GRANDPARENTS

32.  The children have accepted the separation of their parents, but that has never prevented the children from developing a close relationship with each parent and moved between 2 homes in Taiwan.

33.  But for the order on interim access, the children have been deprived of the contact with their father.  The grandparents had no access to them.  The mother could not provide any justification for such deprivation.  Her act had caused the children great distress.  In particular, the recording of the transcript of the daughter’s conversation with the father demonstrated this.

34.  Whilst the mother was keen to demonstrate to the court that the father was irresponsible and had little time to spend with the children, the objective circumstances told the contrary.  The children had confirmed to the social worker that the father used to drive them to school and see them 3-4 days (sometimes 1-2 weeks) per month in Taiwan.  They spent time together with the grandparents. 

35.  The social worker was able to observe the father and the children interacting in Hong Kong without their knowing.  He stated that the father and the children enjoyed a close relationship. 

36.  Subsequent to the order on 27 January 2016, the father has exercised full access to the children in Hong Kong, showing the sacrifice he was ready to make in order to stay with the children. 

37.  Similarly, the grandparents have had a good relationship with the children, as could be seen from the various activities they had with the children and the photos taken.  For years, the children have been spending time at their home.  Their concern for the children could also be demonstrated by the various telephone messages they sent out to the mother’s side in order to ascertain the whereabouts of the children and to persuade her to return the children. It was a serious deprivation to not to let the children meet the grandparents freely as they had in the past.

38.  The father also referred to 2 instances in 2005 and 2009 of the mother abducting the children.  I found those 2 instances too distant in time to be worth considering in the present case.

39.  In summary, the mother’s conduct entirely demonstrated that she did not put the children’s interests as top priority. I could not blame the father for thinking that she held the children as ransom to seek a better financial deal in the divorce.  All the facts pointed to it clearly not in the best interests of the children to stay in Hong Kong but they should return to Taiwan.

GROUNDS FOR THE MOTHER’S REFUSAL TO RETURN THE CHILDREN TO TAIWAN

40.  The mother’s grounds can be classified as follows:

(i) Lack of financial support in Taiwan;

(ii) That the children wanted to follow her to stay in Hong Kong;

(iii) The social worker considered that the children were mature enough for the court to consider their views;

(iv) The father failed to disclose criminal complaints against her.

(i) Lack of financial support in Taiwan

41.  The mother used to be a housewife.  There was no substantial dispute that the father has reduced his financial support, taken back the car and asked her to return to work.  She had been receiving calls from the mortgagee chasing for repayment of the mortgage.  She alleged that the father has been adopting coercion and abuse to try forcing her into signing the divorce papers.  She had limited means to defend herself. It would be difficult to enforce maintenance orders for periodic payments and she wanted a lump sum.

42.  The mother was also concerned that if the children were returned to Taiwan, they would be placed in the care of the grandparents who were aged and busy themselves.  As the father rarely returned to Taiwan, the children would practically be taken care of by helpers and tutors.  In view of their tender age, absence of parental care and control would amount to an intolerable situation.

43.  In my view, these were matters which could and should be dealt with by appropriate court orders in Taiwan.  The mother was represented in the divorce proceedings in Taiwan.  Negotiation for financial maintenance has just begun and yet she left Taiwan without notice.  Lack of financial support was not a reason to remove the children from Taiwan.

44.  The mother’s stay in Hong Kong did not improve her financial situation. She did not have a job.  She had been relying on her father and siblings and expected financial support from the father in future.  The maternal grandfather apparently has not lived with the children. He lived in Mainland China with his new wife.  That was why he was able to offer one of the 3 rooms in his unit in Hong Kong for the mother and the children to use.  There was no suggestion that the siblings of the mother would be able to render financial assistance in the long term.

45.  The assertion that the children would be placed under the care of helpers and tutors was not a real issue.  The children had been used to having tutoring.  There were helpers both in the grandparents’ house and the mother’s home.  If the mother was so concerned about the children left without parental care, she could have returned to Taiwan and asked for an order for the father to continue paying maintenance to her. 

46.  The legal opinions on Taiwan law exhibited by the father showed that the Taiwan courts do provide for estranged spouses.  The courts there adhere to the basic principles of fairness, gender equality, best interests of the children, parties’ obligation to support the children and enforcement for delinquency. Distribution of marital assets is designed to protect the person with less income or who devotes his/her time to take care of the children.  There is also a writ of execution available in cases of non-payment.  There are safeguards to delinquency and a trust account can be set up.  Those powers are very similar to those of the Family Court in Hong Kong. 

47.  In the interim, pending assumption of jurisdiction by the Taiwan courts, the Hong Kong courts could extract appropriate undertakings from the father, which I did, to address the mother’s concern.

(ii)  That the children wanted to follow the mother to stay in Hong Kong

48.  The mother had allegedly told the children why she came to Hong Kong.  Being their daily carer, it was natural for the children to follow her here.

49.  However, as was revealed from the Social Welfare Report, the children opted to stay in Hong Kong because they thought that was the only way in which they could have seen the father more.  That was a false premise.  Whilst in Hong Kong, the mother did not let the father see the children at all until under compulsion of a court order.

(iii)  The social worker considered that the children were mature enough for the court to consider their views

50.  With an age of 11 and 8 respectively, the children were far from mature to justify the court placing much weight on their personal views.  This is particularly so in the light of paragraph 49.

51.  What was more troubling was that, with respect to the social worker, the children had been asked to rate their parents’ performance.  I strongly discourage such an approach.  The yardstick for rating was unknown, hopefully not based on subjective feelings.  Such rating exercise undermined the authority of the parents and the respect due to them.  It would create a sense of split loyalty in the children.  Subsequent to the interview by the social worker, one could expect the parents to have asked, as they did in this case, what the children had told the social worker.  The result was that the parents engaged in a dispute as to whether each had exerted improper influence over the children.

52.  In my view, the social worker’s job should better be limited to gathering objective facts for the court’s consideration rather than invite the children to do such rating.  Luckily, in the present case, their rating of each parent was good and not far apart.

53.  I place no weight on the children’s rating.  Judging from the objective facts put forth in the Social Welfare Report, both the father and the mother were in close relationship with the children.  The mother’s depression has not affected her ability to be a mother.  The father’s work outside Hong Kong, and his not seeing the children for 2 months, had not affected his relationship with the children. 

(iv)  Failure of the father to disclose criminal complaints against the mother

54.  There had been 3 criminal complaints by the father against the mother, which the mother said was not disclosed to the Hong Kong court. 

55.  The first complaint arose because the mother entered his home and removed the children’s travel documents.  It transpired to be part of the mother’s premeditated plan to remove the children from Taiwan.

56.  The 2^nd and 3^rd complaints were related.  The father lost contact with the mother and the children.  Out of concern about abduction, he made a report of missing persons to the police.  Again out of abundance of caution, the grandparents prized open the lock to the Property to try and look for the mother and the children.  Since the lock was damaged, the grandparents had it replaced with a new one.

57.  I accepted the father’s explanation.  I did not agree with the mother that these complaints were “malicious”.  She only had herself to blame.  No warrant of arrest had been issued.  In any case, the father has undertaken to withdraw these complaints to the best of his ability.  I accepted, though, that the father had no control over what the police or Taiwan court would do to the mother.

58.  In summary, none of the grounds relied on by the mother to refuse to return the children to Taiwan carried any weight.  It was plain for all to see that it was in the best interests of the children to return them to Taiwan where the Taiwan courts would be seized of all matters concerning the divorce and custody.  The sooner they went back and put behind this traumatic experience, the better.

INTERIM ARRANGEMENTS

59.  The welfare of the children demanded that they should continue to live in the Property without the threat of eviction from the mortgagee and to enjoy the same standard of living, pending any resolution of the Taiwan courts.  The mother should not change the residence of the children without prior notice and consent of the father.  The mother and father shall continue to take the children to and from school and learning activities as usual.

60.  Any interim financial measures to adopt need to cover at most 6 months, which would sufficiently enable the Taiwan court to take up the matter.  A broad brush approach should be adopted.

61.  The mother asked for security in the amount of HK$2,000,000, representing outstanding mortgage of about NTD7,000,000 and some monthly expenses. 

62.  I do not find the mother’s request reasonable.  This court should not pre-empt the Taiwan court’s power to distribute matrimonial assets or award lump sums.  Nor should this court send the wrong message to the mother that she could place herself in a better position by abducting the children than abiding by the law in Taiwan.

63.  There was little in terms of documentary evidence before the court except the bare assertion of the mother that she used to have cash expenses of NTD150,000, the use of 2 credit cards (one of which was for about NTD47,000 per month) and the use of a car with the petrol being paid by the father.  This was never disputed by the father in his affirmations.

64.  Nevertheless, both parties’ lawyers have tried hard to put before the court bank documents as to cash and credit card expenses.  There was dispute over figures.  The father said that the credit card in the mother’s name had a limit of only NTD30,000.  There was a supplementary credit card to her of which the monthly spending (both for him and the mother) was in the region of NTD30,000 to 40,000.

65.  The father had undertaken (a) to provide proof that the mortgage repayments were updated and to continue to pay the monthly mortgage; (b) to pay NTD120,000 per month to the mother to cover what used to be cash withdrawals for household expenses and under 2 credit cards; he would bear all expenses of the children; (c) to provide 3 months’ maintenance as security by payment of NTD360,000 into court; (d) to return the car to the mother with a petrol card and to settle the petrol costs; and (e) to withdraw the criminal complaints.  

66.  The monthly maintenance were to start on 20 March 2016, ie after the children were returned to Taiwan.  In the meantime, the mother had to live on the interim maintenance received for the month of March under the court order dated 30 January 2016.  The security could not be withdrawn without this court’s approval and may be taken into account by the Taiwan court on the question of maintenance for the mother or the children.

67.  Once the father has fulfilled his undertakings in paragraph 65(a), (c) and (e) above, he shall be at liberty to take the children out of Hong Kong.

68.  On the other hand, the mother has undertaken not to bring the children away from the jurisdiction of Taiwan and must let the children reside at the Property.

69.  The access to the father should be generous to restore to the position before the children were removed from Taiwan.  The mother should be flexible. The father has to work.  If he does not take up access, it should not be treated as his giving up his rights.  The mother should, as far as possible, accommodate the father to enable the children to see him frequently.  The mother and the father were effectively sharing each week with the children. The mother has undertaken to give the father 3 weekends’ staying access.

70.  The mother has also undertaken that she would not apply for Hong Kong identity cards for the children.

ORDERS MADE

71.  In view of the undertakings given, and recognizing that the orders were of an interim nature, I made an order for custody to be given to the mother but she must not change the school or residence of the children. She had to inform the father of all major decisions.  This order was made solely because she was a full time housewife taking care of the children whereas the father had to work outside Taiwan.  My orders indicated that she was not to oust the father from any major decisions over the children.

72.  As Taiwan was the proper court to handle the custody issue, I therefore gave leave to the father to take the children out of Hong Kong.  The mother was at liberty to follow and travel with them at the expense of the father. 

73.  As the parties did not trust each other over keeping of the children’s travel documents, and I was told that the Taiwan courts would not keep travel documents like the Hong Kong courts, the parties have agreed that they would be kept by an independent firm of lawyers in Taiwan after the children returned there.

74.  I ordered the mother to inform the father should she decide to reside out of Taiwan. This would ensure that there would be someone to take over care and control or even custody of the children.

75.  The parties should jointly inform this court in writing of any order made by the Taiwan court in terms of custody and maintenance so that if appropriate, these wardship proceedings can be entirely discharged and the security is released.

OTHER MATTERS

76.  It will be helpful if practitioners can, in citing cases, identify the relevant paragraph(s) containing the applicable principle; and, in citing textbooks, to identify the relevant paragraph if it is not the intention to rely on the whole chapter.

77.  It will also assist the court to find an exhibit if the index to the exhibits bundle could describe the exhibits instead of just stating the exhibit number.

78.  I thank Ms Siron and Ms Kong for their assistance to the court.  I especially wish to express my appreciation of the promptness of Ms Siron in addressing the court’s queries and the subsequent efficiency in seeing to the compliance by the father of the undertakings.

79.  I also thank the social work officer Mr Yip Siu Bun Stephen for preparing such a detailed report under such pressure of time and with the intervening Chinese New Year.