Aag v. Jdc

FCMC 4022 / 2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 4022 OF 2016

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JUDGMENT
(Temporary removal)

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Introduction

1.This is an application by a Respondent mother for leave to remove the two children of the family, a boy A, born on the X January 2006 now aged 10 ½ and a girl L, born on the X January 2008 now aged 8 ½, out of the jurisdiction of Hong Kong in order to visit the Philippines for a weekend in November so as to attend the wedding of her brother and his fiancée.

2.In the mother’s summons dated the 1 September 2016 she sought an order in the following terms:

UPON the Respondent undertaking to the Court and to the Petitioner that she will return the children of the family namely A, a boy born on X January 2006 and L, a girl born on X January 2008, to the jurisdiction of Hong Kong after conclusion of the intended overseas vacation to Manila, the Philippines from 19 November 2016 (Saturday) to 21 November 2016 (Monday) (both days inclusive) to attend the Respondent’s brother’s wedding.

IT SHALL BE ORDERED THAT:

1.   Leave the granted to the Respondent to temporarily remove the children of the family namely A, a boy born on X January 2006 and L, a girl born on X January 2008, from the jurisdiction of Hong Kong to Manila, the Philippines from 19 November 2016 (Saturday) to 21 November 2016 (Monday) (both days inclusive) to attend the Respondent’s brother’s wedding.

2.   The Petitioner do pay costs of and occasioned by this application.

3.In order to allay some of the father’s stated concerns the mother also offered under cover of a letter from her solicitors dated the 29 August 2016 to settle matters on the following premise:

UPON the Respondent undertaking to the Court and to the Petitioner that she will return the children of the family namely A, a boy born on X January 2006 and L, a girl born on X January 2008, to the jurisdiction of Hong Kong after conclusion of the overseas trip to Manila, the Philippines from 19 November 2016 (Saturday) to 21 November 2016 (Monday) (both days inclusive) to attend the Respondent’s brother’s wedding.

AND UPON the Respondent undertaking to the Court and to the Petitioner that she will personally accompany the said children in the flight from Hong Kong to the Philippines on 19 November 2016 and the flight from the Philippines to Hong Kong on 21 November 2016.  In the event that the Respondent is in emergency, she will ensure that her father namely GPC will accompany and return the children to Hong Kong on 21 November 2016.

AND UPON the Petitioner and the Respondent agreeing and acknowledging that Messrs. Howse Williams Bowers shall release the children’s HKID and US Passports to the Respondent 3 days prior to the said overseas trip and the Respondent’s undertaking to return the children’s HKIDs and US passports to Messrs. Howse Williams Bowers after conclusion of the trip.

BY CONSENT IT IS ORDERED THAT:

1.     Leave be granted to the Respondent to temporarily remove the children of the family namely A, a boy born on X January 2006 and L, a girl born on X January 2008, from the jurisdiction of Hong Kong to Manila, the Philippines from 19 November 2016 (Saturday) to 21 November 2016 (Monday) (both days inclusive) to attend the Respondent’s brother’s wedding.

2.     There be no order as to costs.

4.The parties agree that I am being asked to assess the risk attached to this proposed trip and to make a ruling accordingly. The mother says there is no discernable risk. The father maintains that there is significant risk. For reasons that I will go into below I am of the view that any risk to the children is negligible and that this potential risk is outweighed by the significant benefits attached to them attending a large family event of this type. I am also very alive to the strategic overtones that exist here. The need for this hearing was unfortunate given the fact that against all the odds the parties were able to reach a mediated agreement with respect to the children. I would strongly suggest, in the circumstances, that the parties think very seriously before embarking on further litigation over the children which will only serve to undo the significant progress that has been made to date. 

The law in Hong Kong

5.Applications of this type are governed by section 3 of the Guardianship of Minors Ordinance, Cap 13, which states 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 …

The issue

Should leave be given to the mother so that she may take A and L to the Philippines for a weekend in November in order that the children might attend her brother’s wedding?

Discussion

6.Initially the father raised a number of objections to the trip in his solicitor’s letter of the 25 August 2016 as follows:

However, our client has some legitimate concerns about the proposed trip to the Philippines (which is why he initially refused your client’s request) which still remain. We would like to set out these concerns, so that your client has the opportunity to address them:-

1. Our client is concerned that if something unfortunate happened to the Children and/or your client whilst they were in the Philippines, he would not be able to go to the Philippines to assist the Children and/or bring them back to Hong Kong, because of the various complaints which your client has made to the Philippines National Police about our client.

For example, if your client were to have a serious car accident whilst she was in the Philippines, our client might not be able to go to the Philippines to assist the Children and/to bring them back to Hong Kong, because the moment he set foot in the Philippines, there is a risk he might be immediately deported/repatriated, detained and/or arrested unlawfully.

For this reason, he has serious reservations about agreeing to your client’s request.

2. Second, as your client knows, Mr. RS, who lives in Manila, was a major negative protagonist in the unfortunate events over Easter.  At the time, Mr. RS demonstrated an abnormal desire to get involved in this matrimonial dispute and an abnormal interest in forcibly separating the Children from their father.

Our client holds serious concerns that, if the Children were to visit the Philippines whilst these matrimonial proceedings are still ongoing, then Mr. RS might - acting against your client’s wishes - prevent the Children from returning to Hong Kong.

What we are endeavouring to say is that, given the past conduct of Mr. RS, our client holds legitimate concerns that Mr. RS might prevent the Children from returning to Hong Kong even though your client would want them to return to Hong Kong.

3. Our client understands that the itinerary proposed by your client would mean the Children would miss some school.  Our client is not comfortable with this.

Our client holds a strong desire that matters regarding the Children return to normalcy, i.e. as they were before the incident last Easter.  However, since our client has been advised by the United States Embassy Manila, his Legal Counsel, and his Personal Security Advisors in the Philippines not to return to the Philippines because of the police complaints your client made against him, he is concerned that he might not be able to retrieve the Children from the Philippines, should it become necessary for him to do so.

As you can see, our client’s concerns are not directed towards your client, but to third-party risks, which your client has little control over.

Can you kindly please take instructions from your client and set out what steps your client proposes to take to address these legitimate concerns.

(We are obliged to point out that our client strongly denies there is any basis for the aforesaid police complaints).

Further, we request that you provide us with the following (which is the usual practice, in respect of these type of requests):-

(i) A detailed itinerary of the Children in the Philippines, i.e. flight details, address where they will be staying and contact numbers, and names of individuals accompanying the Children;

(ii) An undertaking from your client that she will facilitate regular Skype access to the Children during the said trip;

(iii) An undertaking from your client that she will personally accompany the Children in the flight from Hong Kong to Philippines on 19 November 2016 and the flight from Philippines to Hong Kong on 21 November 2016; and

(iv) An undertaking from your client that she will bring the Children back to the jurisdiction of Hong Kong upon the conclusion of the said trip, i.e. on 21 November 2016.

In order to save costs, we request that your client hold off her application for the temporary removal of the Children until we have exhausted attempts to resolve this matter by way of solicitors’ correspondence.

7.The mother provided the father with a detailed itinerary, she proposed skype access on Sunday morning, which is in keeping with their normal practice and she agreed to the proposed undertakings sought at iii) and iv). It is of note that at this stage the father had not raised any security concerns with respect to the Philippines.

8.In so far as the other matters are concerned I asked both sides if they were able to provide me with any evidence with respect to the alleged criminal complaint made by the mother against the father in the Philippines concerning the alleged kidnapping of the children by him back in April of this year. None could be provided. Thus it is impossible for me to assess the situation fully. For example I do not know if there is an ongoing prosecution and if so, what stage the prosecution is at. I do not know whether it is infact possible for the mother to withdraw her complaint – or whether a prosecution could proceed quite separately from her in any event. In such circumstances it is not possible for me to properly assess whether the father’s stated concerns are real or imagined.

9.In any event I accept that in the very unlikely event that something were to happen to the mother over the weekend and the father felt unable to go to the Philippines that it is extremely unlikely that the children would not be returned to Hong Kong. Notwithstanding that I will nevertheless accept the undertakings provided by the mother’s sister JS and her brother FC under cover of the letter dated the 19 September 2016. This undertaking states as follows:

This is to certify that we, the undersigned, recognize that our nephew, boy born X January 2006, and our niece, girl born on X January 2008, are habitual residents of Hong Kong.  If there was an emergency and something happened that would incapacitate their mother, JDC, while visiting the Philippines with the children for a family wedding on Nov 19-21, we undertake to return both children safely and promptly back to Hong Kong.

10.I note the allegations made by the father against the mother’s brother in law Mr RS. These are hotly disputed by the mother. It is not possible for me to assess their accuracy without hearing oral evidence. Regardless of that however, it seems to me that they are of peripheral importance when considering the present application before me. As rightly pointed out by the father’s solicitors Mr RS is not a party to these proceedings and it is hard to see what assurances the mother would be able to give to the father in this respect that were legally enforceable even if she were minded to do so. Consequently I do not intend to make any further comment on this aspect of the case.

11.Generally speaking I note that the mother has a very good job and that the children are settled in school in Hong Kong. The father referred to a “bond” in his correspondence and requested that the mother provide the same. He did not say how much he was requesting as a bond. When asked during the hearing counsel sought HK$2 million. This seemed to me to be excessive in the circumstances. I will not require the mother to provide such a bond. It seems to me that the risk of the children not returning to Hong Kong is negligible. This is notwithstanding the fact that I accept that although the Philippines have recently become a signatory to the 1980 Hague Convention on Child Abduction, Hong Kong has not yet accepted their accession.

12.It was not until the father filed his affidavit in opposition dated the 7 September 2016 that he first raised his concerns about the “State of National Emergency and Lawless Violence” and the possibility terrorist attacks etc in the Philippines. Given that he had not raised these concerns previously I have to say that it seems to me that there is a sense of opportunism about them. Generally I accept the wife’s position on these namely that they are a “red herring”. It is also clear that the children have visited the Philippines regularly in the past even when there have been other security issues and that in any event most of the trouble is not in Manila. During the hearing Ms Heathfield for the mother produced the updated travel alert from the Security Bureau of the Hong Kong SAR. This confirmed that the Philippines had recently been added to the lowest alert level – i.e. amber. This requires travellers to “monitor the situation” and to “exercise caution”. To put this into some kind of context an amber alert also exists with respect to France, Germany, India, Malaysia and Thailand. In order to allay some of the father’s concerns the mother has suggested that she stay with the children at her sister’s and brother in laws place where the security arrangement is better. This seems like a sensible proposal and one that I will accept. Therefore the mother’s undertaking to that effect shall be included in the preamble of the court order. In so far as the other allegations made by the father in his affidavit, it seems to me that these are largely without merit and I do not intend to go into them in any further detail in this Ruling.

13.The father is also concerned about the children missing school and asks that if I allow the trip that the children return to Hong Kong on Sunday as opposed to Monday morning. I note that this would mean that the children would miss a substantial part of the wedding celebration and given that it does not seem to me that the father’s request is a reasonable one. This is a big family wedding with relatives flying in from the States and other parts of the world. The son will be an escort and the daughter a flower girl. They should be allowed to fully participate in and enjoy the occasion. In any event I have also been referred to an e-mail from the Headmaster of the children’s school dated the 19 September 2016 where he says that he is happy to authorize the children’s absence from school for half a day as a “one off” event. If the school is agreeable to the children taking a half day leave of absence then it seems to me that there is little basis for the father to resist.   

14.I will therefore make an order in terms of the consent summons in paragraph 3 above with the additional undertakings by the mother also as referred to above. In addition the mother initially suggested that the parties swop the wedding weekend with Thanksgiving weekend as follows:

In order to facilitate the travel, our client proposes that the nesting arrangement shall be swapped to the effect that she will spend time with the children from 18 November 2016 (pm) to 21 November 2016.  Our client will try and bring the children to school on 21 November 2016, though they will be late and just catch their extracurricular activities as the flight shall arrive at 10:45am.  Your client’s shall spend time with the children from 25 November 2016 (pm) to 28 November 2016 so that he can spend Thanksgiving weekend with the children.

I accept that this seems sensible and in the absence of any agreement between the parties I accordingly make an order to this effect. 

Costs

15.Generally speaking the rule of thumb is that there should be no order as to costs when it comes to children’s matters. I appreciate that the mother may wish to challenge this norm. Notwithstanding that I will in the first instance make an order nisi to be made absolute in 14 days time that there be no order as to costs. If either party wishes to challenge this then they should issue a summons in the normal way.    

Ms F Irving instructed by Payne Clermont for the Petitioner

Ms L Heathfield of Howse Williams Bowers for the Respondent