MY v. FT

HCMP 500/2022

[2022] HKCFI 1407

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 500 OF 2022

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REASONS FOR DECISION

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Introduction

1.  The applicant (“Mother”) took out the present originating summons under the Child Abduction and Custody Ordinance, Cap 512 (“CACO”) for a declaration that the Respondent (“Father”) has unlawfully removed the child (“YL”) out of Hong Kong. On 5 May 2022, on ex parte on notice basis, the Mother applied for a Location Order, which I granted. Here are my reasons.

Facts

2.  YL, aged 2, was born to the Father and Mother within wedlock.

3.  On 8 January 2022, the Mother and YL moved to a shelter for victims of domestic violence.

4.  The Father and Mother are in the course of divorce in the Family Court under FCMC 1789/2022. The Mother seeks sole custody, care and control, with reasonable access to the Father.

5.  By consensus reached on 13 April 2022, the Father would have defined access to YL for 2 days per week for 6 hours each, but no staying access. The Mother is to have interim care and control of YL.

6.  On the first day the defined access was to take place, the Father, under the disguise of taking YL to the paternal grandparents’ place, did not return YL. Numerous attempts have been made by the Mother to ascertain from the Father the whereabouts of YL, which were ignored.

7.  The Mother tried to locate YL through various channels, including the Father’s ex-solicitors, Department of Justice and the Hong Kong police.

8.  The Mother had obtained a Non-Removal Order from the Family Court on 20 April 2022 and an order for the Father to inform the Mother of the whereabouts of YL and to return her to the Mother within 48 hours. The Non-Removal Order was served on the Father and was brought to his attention through WhatsApp and email. It was not complied with. The Father even blocked the WhatsApp messages of the Mother, her solicitors and even the police.

9.  It transpired that the Father and YL had left Hong Kong through the airport on 16 April 2022, destination unknown. That removal of YL out of Hong Kong was without consent of the Mother.

10.  On 29 April 2022, the Mother filed the originating summons in the present proceedings for a declaration under section 10 of CACO that the removal of YL from Hong Kong by the Father was wrongful.

11.  As the whereabouts of the YL was unknown, the Mother sought a location order under section 15 of CACO against 4 persons:

(1)  XXXXXXXXXX(“Paternal Grandmother”), whom I designated as 1^st Interested Party;

(2)  XXXXXXXX(“Paternal Grandfather”), whom I designated as 2^nd Interested Party;

(3)  XXXXXXXXX(“Aunt”, younger sister of the Paternal Grandmother), whom I designated as 3^rd Interested Party; and

(4)  XXXXXX(“Friend”), whom I designated as 4^th Interested Party.

12.  Having heard the Mother on ex parte basis, I granted the following order:

(1)  The 4 Interested Parties be added as Interested Parties to these proceedings for the purpose of the application, making and execution of the Location Order;

(2)  Each of the Respondent and the 1^st to 4^th Interested Parties do within 24 hours of the service of this Order on him or her obtain and/or provide to the Mother information on YL’s whereabouts or other circumstances relevant to locating the Minor, including but not limited to:

(a)  The country where YL is or has been in since 16 April 2022;

(b)  The flight details (ie the date of travel and destination) of YL when she left Hong Kong on 16 April 2022;

(c)  Who YL is with as of today and under whose care she is and where that person may be found;

(d)  The last known address and/or current address of YL;

(e)  The details of upcoming travel plans of YL (ie the date of travel and destination) and/or the date she may return to Hong Kong;

(f)  The telephone number at which YL or her carer can be contacted;

(g)  Email address, WeChat and/or other social media through which YL or her carer can be contacted; and

(h)  The address of the Father (whom the Court has reason to believe the Minor is staying with).

(3)  The information obtained pursuant to paragraph (2) may be used for the present proceedings and in FCMC 1789/2022; and

(4)  Penal notice be endorsed on this order.

The procedure

13.  Under section 15(2)(a) of CACO, for any applicable proceedings relating to a child, the Court may, on application make a location order requiring a person to provide the Court with applicable information about the child. Such information is not confined to that presently held by the respondent, but also that which he/she may reasonably obtain.

14.  A pre-requisite is that there are “applicable proceedings”, ie proceedings for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction 1980 that have been commenced, or is about to be commenced, in Hong Kong or in another Contracting State: section 15(1).

15.  “Applicable information” in relation to a child, means information about the child’s whereabouts or other circumstances relevant to locating the child: section 15(1).

16.  Unless otherwise directed by the Court of First Instance, the application may be made ex parte: section 15(5) of CACO.

17.  A person to whom a location order applies must comply with it, regardless of any restriction imposed by a law or agreement or legal professional privilege concerning the disclosure of the applicable information. A person is not excused from complying with a location order only because doing so may incriminate the person or the person’s spouse. See section 15(7) and (8) of CACO.

18.  The originating summons under the Convention has been filed when the Location Order was sought. The supporting affirmation disclosed the bases for seeking the Location Order. There were subsequent affirmations filed by the Mother to update the Court on the position.

19.  CACO is silent on the appropriate procedure except to state that the application can be made ex parte. In my view, the appropriate procedure to seek such an order in the present circumstances is to use an ex parte summons supported by an affirmation, and produce a draft order to the Court at the hearing. This will enable the Court to deal with the matter on an urgent basis as if it were an ex parte injunction.

20.  Although the procedure is ex parte, there is usually no secrecy. Accordingly, notice should be given to the party against whom a location order is sought, including by instant mode of communications like WhatsApp messages and emails.

Application of the legal principles

21.  It appears from the Mother and Father’s communications that the Father and YL were most likely in Macau as the Father talked of Macau being the proper jurisdiction to conduct the divorce proceedings and that the Father had consulted the Social Welfare Bureau in Macau and the Mother would be hearing from his Macau lawyers. The Father holds citizenship of Macau.

22.  The Mother also suggested a possibility that the Father and YL were in Thailand as the Father regularly did business there.

23.  Both PRC-Macau and Thailand are Contracting States under the Convention. Once YL is located, the procedure for seeking her return through the relevant Central Authority can be invoked. This Court thus had jurisdiction under section15 of CACO to entertain the application for a Location Order.

24.  The information that the Interested Parties were to provide would be necessary for the fair disposal of the cause or matter in the originating summons. In paragraph 1 of the Order, I have thus given leave for the named persons to be joined as Interested Parties for the limited purpose of the application for, execution and enforcement of the Location Order. This would bind them to comply with the Location Order. They should not be made respondents, for otherwise they could have access to the confidential information relating to the child in the case file.

25.  I made the Location Order against the Grandparents as they were persons having close relationship with the Father. In fact, they were the persons whom the Father claimed he would take the child to on the first occasion the agreed access was to take place. According to the Mother, the Father was keen to please and obey the Paternal Grandfather. The Father and the Paternal Grandfather had acted together to try and snatch YL from the Mother on 8 January 2022 when the Mother left the family.

26.  The Paternal Grandfather lived and travelled between Hong Kong and Macau. According to the 3^rd affidavit of the Mother, the Paternal Grandfather had, on 4 May 2022, shown to the police a video showing YL to be with the Father. The grandfather has blocked the Mother’s WhatsApp messages.

27.  There was thus reasons to believe that the Grandparents had information as to location of YL. Even if not, given their close relationship with the Father, they could reasonably obtain information about YL from him.

28.  The Aunt had close relationship with the Grandparents and often saw one another. In the first week since YL had not returned to the Mother, the Mother noticed from the Aunt’s Instagram account that the Paternal Grandmother had left her cat with the Aunt. The Mother believed that the Paternal Grandmother was away from Hong Kong to assist the Father in his plan to abduct YL. The Aunt may thus be able to provide information as to the whereabouts of the Paternal Grandmother or YL.

29.  The Friend was the closest friend, business partner and fellow bandmate of the Father. They used to see each other a few times every week. The Mother learnt from mutual friends that the Friend had recently gone to Thailand on a work trip in place of the Father. The Mother suspected that it might be because the Father was engaged in his abduction of YL and therefore had to ask the Friend to stand in for him. Given the close relationship, the Friend would either know where YL was and would be able to find out.

30.  I was satisfied from the Mother’s affirmations that the 4 Interested Parties were each persons who held information about YL’s whereabouts. Even if they did not, they may reasonably be able to obtain information from the Father under whose care YL was and is.

31.  The information required was set out in some detail. It would enable the Interested Parties to know what was required of them and avoid their evading disclosure on the ground of the Location Order being unclear. The penal notice was to bring forward to the attention of the Interested Parties that the order must be complied with under section 15(7) and (8) of CACO and that failure to comply may be in contempt of court.

32.  As both the present proceedings and the FCMC proceedings were pending disposal, so I permitted use of the information in both sets of proceedings.

33.  For the above reasons, I have given the Location Order.