NI v. TCHK

FCMC 549 / 2020

[2023] HKFC 184

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 549 OF 2020

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DECISION
( Return of Child, Surrender of Travel Document
and Prohibition Order )

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1.  This is the inter partes hearing of the Petitioner’s (“Mother”) Summons (“Summons”) for return of the Child, a boy aged 8, to her from Hong Kong to Shenzhen, the surrender of the Child’s travel documents by the Respondent (“Father”) and an order to restrain Father from removing the Child out of the jurisdiction of Hong Kong.

2.  Mother took out an ex-parte Summons on notice on 31 August 2023. Father attended and was represented by leading counsel. The Summons was adjourned to today for argument inter partes with directions on the filing of evidence and submissions by both parties.

3.  The parties married in Hong Kong in 2015. On 15 January 2020, Mother presented the divorce petition. Decree Nisi was pronounced on 13 January 2023.

4.  By a Consent Summons, the parties agreed that the sole custody, care and control of the Child be granted to Mother, and Father has reasonable access, including staying access, overseas access and video access. The Consent Summons is to be heard at the first appointment hearing fixed for 26 October 2023.

5.  The Child has been living with Mother and studying in a school in Shenzhen. In July 2023, with the consent of Mother, Father took the Child overseas for attending summer school. It was intended that the Child would return to Shenzhen for school in August 2023.

6.  On 27 August 2023, Father informed Mother by a Wechat message that the Child did not want to return to Shenzhen but wished to live with him in Hong Kong. This precipitated Mother’s Summons.

7.  There is no dispute that this is not a Convention case.

8.  Mr Surman[1] for Mother submitted that this is a non-Convention case and the principles summarised in [57] of K v K[2] by HHJ Bruno Chan (as he then was) applied. Mr Surman further criticised Father for dishonestly planning the abduction of the Child. It is not in the best interests of the Child to place him under the care of Father who had reneged from his agreement in the Consent Summons, and abused Mother’s trust on him.

9.  Ms Yip, S.C.[3] for Father submitted that this is not a Convention case nor a non-Convention case as the Child was not asked to be returned to the place of his habitual residence for the purpose of determining his welfare in the place of his habitual residence.

10.  The distinction, as submitted by Ms Yip, is that the presumption that the Child should immediately return to the place of his habitual residence does not apply in the present case. Ms Yip further submitted that this court should consider the welfare of the Child and call an urgent social investigation report to ascertain the wishes of the Child.

11.  Mother did not dispute that a social investigation report should be called for, but she contended that there is no reason for this to be done on an urgent basis. Father should not be allowed to jump the queue.

12.  On a practical note, the question for this court today is whether the Child should stay with Father in the meantime or return to Shenzhen with Mother.

13.  I will approach this question by considering the best interests of the Child as the paramount consideration.

14.  There is no dispute that prior to the retention of the Child by Father, the status quo was that the Child was living mainly in Shenzhen under the de facto care of Mother at the agreement of the parties. Father had access to the Child, save when there was border restrictions during the spread of Covid-19.

15.  There is no suggestion that the Child was ill-treated by Mother while under her care. The evidence suggested that the Child was a happy and intelligent child, received good education in Shenzhen. The school report card showed that the Child was doing well academically and generally.

16.  Father said that during the holiday with the Child this summer, he discovered that the Child was neglected by Mother who has only seen the Child 2 days a week. Mother disputed and explained that she was admitted to the ICU for a certain period and was suffered from flu and Covid-19. She therefore could not have close contact with the Child during this time, and she said that the Child might have confused. This is a factual dispute.

17.  Father further said that the Child was only placed under the care of nanny who had exercised corporal punishment on him by hitting his hand and buttock when he was naughty. Mother said that she had discussed this matter with the Child and suggested to the Child that she can change the nanny, but the Child said it does not need to.

18.  The WeChat messages between Mother and Father prior to the holiday this summer show the following: [4]

(1)  On 7 June 2023, Father said that he would return the Child to Mother by around 19 August 2023.

(2)  On 20 June 2023, Father told Mother that they would return on 20 August 2023 and there was no need for her to enrol the Child with any summer camp.[5] Mother expressed her concern on the Child’s long period of absence.

(3)  Mother has asked Father several times the location of the summer camp to be participated by the Child. On 4 and 5 July 2023 (the date before Father picked up the Child), Father replied that they should be going to Singapore or Calgary. It turned out that the Child had the summer camp in Thailand. This showed that either Father had not determined the place of holiday at the time when he collected the Child, or he was not telling the truth to Mother.

(4)  On 1 August 2023, Mother asked when they would return. Father made no reply at all.

(5)  On 10 August 2023, Mother asked again the time for their return. She said that she missed the Child a lot, and reminded them to return before the Shenzhen school’s registration date in mid August.

(6)  Father replied that they could not because the summer class would not finish until 22 August, and their flight to Hong Kong would be on 25 August 2023.

(7)  On 11 August 2023, Father said that he had communicated with the summer school teacher. Graduation would be on 18 August 2023. They could fly back to Hong Kong on 20 August 2023.

(8)  Father did not respond to Mother’s further enquiries on the arrangement for the return of the Child.

(9)  On 21 August 2023, Father informed Mother by Wechat that they would return to Hong Kong by the end of that week. Mother made repeated enquiries in the meantime.

(10)  On 27 August 2023, Father informed Mother that the Child did not want to go back to Shenzhen. He wanted to live with the Child.

19.  It was subsequently discovered that during this period, Father had, behind the back of Mother, secretly engaged lawyers, made school applications in Hong Kong for the Child, and casued his lawyers to write a letter to Mother dated 25 August 2023 (which Mother did not receive until 29 August) essentially saying that he would not return the Child to Mother.

20.  Father has not explained why he chose to do all these behind Mother’s back and had actively planning to keep the Child with him.

21.  This court is not making a decision to punish any of the parents, but is considering the matter in the best interests of the Child.

22.  I have concern on the reliability of Father’s evidence. It appeared that Father is not forthcoming in the communication with Mother on matters concerning the Child.

23.  Father has given an impression to the court and Mother that he has rented a premises in Braemar Hill where the Child could live with him in Hong Kong. I noted that Father had not stated his address in his affirmation dated 5 September 2023 pursuant to Order 41 rule 1(4). There is no explanation from Father for the omission.

24.  At the hearing, Father disclosed an offer to lease an apartment in Breamer Hill. The document showed that the commencement date of the lease will be on 20 September. It is not clear from the document as to whether the offer to lease was accepted by the landlord.

25.  The main plank of Father’s case is the wishes of the Child. I have to caution myself that the Child is only 8 years old. His maturity and understanding of the situation are in issue. I do not place any weight on the video that Father secretly taped on the Child, as there is no evidence on the circumstances under which the video was taken and it is dangerous for me to take the video on its face.

26.  It is also noted, on the other hand, that Mother said the Child missed his home, family and friends in Shenzhen.

27.  It cannot be denied that the Child lived in Shenzhen prior to the retention by Father this summer. Ms Yip fairly admitted that the Child spent most of his times in Shenzhen for the past 8 years although he had also spent some time in Hong Kong.

28.  I have carefully balanced all the evidence before me. I am satisfied from the evidence that it is in the best interests of the Child to return to Shenzhen with Mother, and resume his school there. The custody, care and control of the Child will probably be another battle between the parties.

29.  Mother agreed to provide undertakings to the court that (1) she will take the Child from Hong Kong to Shenzhen; and (2) pending the determination of the custody, care and control of the Child, she will not remove the Child out of the jurisdiction of Shenzhen and will bring the Child to the jurisdiction of Hong Kong when requested to do so by the court. She also agreed to give access to Father in the meantime.

30.  Upon the above undertakings of Mother, I order that:

(1)  the Child do return to Shenzhen within 7 days, and for this purpose, Father shall hand over the Child to Mother in Hong Kong forthwith, and

(2)  Father do forthwith surrender all the travel documents of the Child to Mother; and

(3)  interim custody, care and control of the Child be granted to Mother.

31.  [Discussion on terms of access.]

32.  [Directions on submissions on costs for determination by paper disposal.]