La v. L
Read the full judgment text of HCMP 1548/2017 on BabelCite. This High Court CFI judgment was delivered on 22 August 2017.
1. The plaintiff father seeks return of the child of the family to UK under the Child Abduction and Custody Ordinance, Cap 512 and the Convention on the Civil Aspects of International Child Abduction (“ the Convention ”). The defendant mother objects to return under Article 13 of the Convention.
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HCMP 1548/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO1548 OF 2017 ____________
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_____________ Before: Hon Au-Yeung J in Chambers (Not Open to the Public) Date of Hearing: 15 August 2017 Date of Judgment: 22 August 2017 _______________ J U D G M E N T _______________ BACKGROUND 1.The plaintiff father seeks return of the child of the family to UK under the Child Abduction and Custody Ordinance, Cap 512 and the Convention on the Civil Aspects of International Child Abduction (“the Convention”). The defendant mother objects to return under Article 13 of the Convention. 2.The mother is a Hong Kong native. She married the father, an English national, in Hong Kong in 2007. The child was born in Hong Kong in 2009 and is now aged 7 and 9 months. 3.In 2014, the family moved to England after the father lost his job in Hong Kong. The child has been habitually resident there until his removal to Hong Kong in June 2017 as described below. 4.It is the mother’s case that she and the child have suffered from domestic violence and psychological harm due to the controlling and abusive conduct of the father. She and the father agreed to separate in mid-June 2017. 5.Allegedly on 14 June 2017, the father kicked the child, causing a bruise in the right forearm and the eye of the child. 6.The mother and the child moved to refuge between 16 and 23 June. The case worker at Bromley Children’s Services (“BCS”) interviewed the mother, the father and the child and other relevant people. Due to the allegation of physical chastisement, an “S47 enquiry” was initiated and deemed single agency by the police. A DASH Risk Assessment rated the mother’s case as high risk. 7.On 23 June 2017, the father obtained orders from the Family Court at Bromley prohibiting the mother from removing the child from the care and control of the father, removing the child from the jurisdiction of England and Wales and from applying for a passport in the child’s name. 8.The mother left England for Hong Kong with the child in the evening of 23 June 2017 despite her being orally informed of the Bromley Court order (a fact she never denied), with an emergency passport issued by the Chinese Embassy to the child. Further investigation on the mother and child by the BCS was halted. 9.This court became seized of the father’s application for return of the child under the Convention on 4 July 2017. 10.The mother objects to return. She claims that the child has for a long time wanted to return to Hong Kong and has formed a strong view that he does not wish to return to England or to the father’s custody. She is concerned that the father cannot care of the child, and has never been able to do so on his own. Recently, their relationship has become increasingly violent and she does not believe “safe harbour” undertakings will be able to protect the child (§4, mother’s affidavit). The mother relies on Article 13 of the Convention for the following reasons:
11.The father denies the allegations of abuse. He says that the child is too young for his views to be taken into account. He relies upon the safe harbour arrangements in England and the undertakings between the parties. ISSUES 12.The issues are as follows:
LEGAL PRINCIPLES 13.Article 13 of the Convention reads:[1]
14.The mother relies on the defences in limb (1)(b) and (2). Grave risk or intolerable situation – Article 13(1)(b) 15.A very high threshold has been set for this defence. There must be clear and compelling evidence showing a severity much more than was inherent in the inevitable disruption or anxiety which followed an unwelcome return to the jurisdiction of the court of habitual residence of the child: Re P [2004] 1 HKLRD 815, §17,Deputy Judge Lam (as he then was). 16.The principles relating to grave risk have been set out in M v E (unreported) CACV 75/2015 (5 June 2015) at §8.1:
17.Regardless of whether a child is returned or not, the risk of abuse is also relevant to the question of appropriate undertakings to protect him upon return: M v E at §8.9. 18.Unless the Court can reject the allegations of abuse contained in the affidavit evidence, because they are so inherently incredible or unreliable, it should consider whether there is independent extraneous evidence in support of the allegations. While admission of oral evidence in Convention cases should be allowed sparingly, in such cases evidence in the form of an expert report from an independent psychologist or psychiatrist, who specializes in abuse of children cases should be introduced to assist the Court in its determination: D v G [2002] 1 HKLRD 52 at §33, per Cheung JA (as he then was). 19.Although D v G was concerned with sexual abuse, these principles have been applied in respect of allegations of psychological and physical abuse. See YYW v HWW (unreported) HCMP 409/2017 (19 May 2017, B Chu J) at §§4, 26, 31, 132, 159 (allegations of physical violence to children and mother). Objection to return 20.To rely on Article 13(2) of the Convention, it requires a higher threshold than a stated preference: RRG v LGR (Hague Convention) [2006] 3 HKFLR 490, §44. 21.The normal approach to the child’s objections is to break the matter down into 2 stages: the “gateway stage” and the discretion stage. 22.In the gateway stage, it has to be established that (a) the child objects to being returned and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views. If the gateway elements are not established, the court is bound to return the child in accordance with Article 12. If the gateway elements are established, the court may return him or her but is not obliged so to do. LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 (CA) at §9.4. 23.It is the substance of the child’s views that should be considered.
24.There is no absolute threshold age below which a child could not be sufficiently mature for the purposes of the child’s objections, nor are there presumptions. Whether a child has the age and degree of maturity can be determined by looking at the attributes of the particular child, the circumstances in which he finds himself, and the nature of the objections.See Re W (Abduction: Acquiescence: Children’s Objections) [2010] 2 FLR 1150 at §37 (children aged 8 and 6); Re B (Abduction: Children’s Objections) [1998] 1 FLR 667 (children aged 12 and 7). In those 2 cases, objections of the children were accepted by the courts. Issue (1) – Has the child been subjected to physical or psychological abuse? 25.There is evidence from several sources suggesting that the child has been exposed to violence and abusive behaviour by the father:
26.The mother’s evidence details a long history of the father’s possessive, manipulative and obsessive tendencies towards her. Those that affected the child included being physically and verbally abusive and shouting to her in the child’s presence. The allegations directly concerning the child include the following:
27.The mother told Dr Flavill that once when reading a bedtime story to the child, the child said, “mummy I wish I had a new daddy. I will always be in trouble with this one. … Daddy doesn’t love us anyway. If daddy dies I will cry a little but I will be a bit happy.” When Dr Flavill asked the child if there was anything he was worried about, he said he was worried that daddy would find him and mummy and take them back to his house. He might hurt the child and shout at mummy. 28.As the mother perceived, the situation has become worse since January 2017. The child was growing up physically and in confidence. He would resist the father’s controlling and aggressive behaviour. 29.The father denies abusing the child and the mother. He is unable to explain the injury to the child’s right forearm but denied that it was caused by his kicking the child. He suggests that the child’s bruises to his eye was caused by an unrelated incident at school. He accepts that he did tap the child's arm with his foot to try to get him to go to bed. It was because the mother had thrown a plastic toy on the father, which caused him back injury and the father could not lift the child up from the floor. 30.The father accepts that there were escalating and constant disagreements, which he attributes to pressure of work, the mother’s behaviour and lack of support. 31.The father points out that:
32.The mother disputes Ms Lane’s Report as containing hearsay, secret communication with the father without the mother’s input, lots of errors and was biased. 33.Ms Lane’s Report was prepared within a short time. Her statement that the mother was of unsound mind was not based on medical evidence but only a reflection of what she perceived to be the then unstable state of mind of the mother. However, as in the references below, Ms Lane did not reject the mother’s case on abuse. She very fairly presented the evidence as she has received, including her own observation of the child. It may be true that she cancelled a meeting with the mother. However, the truth is that she was prevented from fixing another one because the mother has already left England. Save as otherwise indicated, I accept Ms Lane’s Report as evidence. 34.On their own, I agree with Mr Marwah that allegations from the mother’s side cannot be dismissed outright as being inherently incredible or unreliable, notwithstanding the lack of expert reports.
35.As Dr Flavill says, “It is well known that exposure to abuse and domestic violence can have long term negative effects on children, including mental health difficulties. It is important that [the child] is able to live free from abuse and domestic violence.” 36.There is also evidence of the couple seeking marital counselling in Hong Kong between 2012 and 2013 and in England in 2015. There is a medical certificate showing that the father suffered from oppressive compulsive disorder (“OCD”) although there is another one showing that he had recovered from OCD in November 2013. 37.There is evidence of one report to the Hong Kong police about a domestic dispute before the family moved to England but it did not involve the child. 38.I note that evidence on both sides and reports were prepared in a hurry and could not be said to be complete. The DASH Risk Assessment was, without disrespect, one-sided. Allegations of abuse have thus to be considered against the objective circumstances. 39.In December 2014, shortly after moving to England, the mother sought help from the Chinese Information and Advice Centre. She was focused on the father’s OCD. She asked if there were any urgent shelters just in case the father’s panic attack got over him and she had a 5-year old boy. There was no mention of violence or abuse on the child or herself. As observed by Ms Lane, despite extensive enduring domestic violence, the mother had not reported to the police, Social Care or any domestic violence practitioners in UK for help and support. 40.More importantly, there is no dispute that notwithstanding the alleged abuses, the child had been left to the sole care of the father for a total of 1.5 years. The father was able to take care of him with the assistance of a nanny/the maternal grandmother in the following periods when the mother was out of England:
41.Such absence was not overlooked by Ms Lane. The mother seeks to tone it down by alleging that Ms Lane has not included the mother’s assertion that it was since about January 2017 that the father had become violent to the child and that Ms Lane was biased. 42.Even if the mother was correct in her criticism of Ms Lane, there is no evidence that the maternal grandmother had ever detected any improper conduct of the father in the 5 months when she was in England. All that the maternal grandmother told Ms Chow was that the father and son had poor interaction; the father was demanding and mean which made the son very unhappy; the son was not given adequate toys and clothes that suited his size. The mother supplements the evidence by saying that the maternal grandmother has described the father as being indifferent and shouted loudly to the son which scared him. Such evidence, in my view, hardly demonstrates abuse, physical or psychological harm on the child. 43.Further, according to Ms Chow, the routine for the child was for the mother to collect the child on every Wednesday after school for Kumon class. The father would drive the child home for the rest of the week[2]. Weekends were spent on shopping and leisure together. There was nothing to suggest that the child has at any time opposed to being alone with the father at those times. 44.Moreover, the mother appears to accept that she has had Friday nights out on her own. I query why she would be content to leave the child alone to such an abusive father who would harm him. 45.So at least up to the end of 2016, even if any allegations of the child abuse were true, they were not so serious or intolerable that the mother had seen fit to take any action to protect the child from his father. 46.Despite the mother’s allegations about growing conflict in 2017, the father has maintained at least a fair relationship with the child as is consistently reflected in the observations of (i) Ms Lane, (ii) a family friend Ms Mok; (iii) Ms Chow; and (iv) the after-school club. 47.Firstly, Ms Lane observed that the child did not appear afraid of his father and was happy to be left alone with him to play and interact which, to her, somewhat undermined what the mother has reported in regards to the father and the extent of the concerns that the mother was self-reporting. She considered that the child’s wishes and feelings need to be explored further. She had not identified any behavioural traits which would suggest that the child had been witness to ongoing domestic violence. These remarks were made after the child had moved into refuge. 48.Again the mother seeks to tone down such observations by saying that the child was with the father for only 20 minutes. The child was initially scared and turned to the mother for assistance. It was only after her assurance that the father would not harm him that the child engaged with the father. In my view, that goes to show that the child was still open to persuasion. 49.In fact, Ms Lane did not miss the child’s initial reaction:
50.Ms Lane has also stated in her email dated 22 June 2017 to the father’s solicitor (J Li) that
51.I do not see bias in Ms Lane’s view as she was basing it on her own observation of the scene before her and her own expertise. 52.Secondly, a family friend, Ms Mok, was interviewed by Ms Chow. She was not a baby sitter of the child. The child mixed well with her daughters. She said that the father’s sister and mother sometimes helped to take care of the child. As the mother was absent from home sometimes, Ms Mok introduced the child to the breakfast club in school to ease the child care. She observed that the parent child relationship was good. She never heard of any physical punishment to the child. She described the child as a good boy without any special problems. 53.Thirdly, Ms Chow observed the father and child relationship on 21 July 2017 after they had been separated for a month. The father and son were in the playroom together whilst the maternal grandmother was outside. Initially the child was detached but gradually he played with the father and even gave suggestions to the father on the games. 54.Fourthly, the after-school club describes the father as a reliable person and has always put the child first, making sure his child care needs were always met. 55.The objective circumstances show that at least before the child left England, his relationship with the father was not so bad as the mother wants to portray now. 56.The situation greatly deteriorated in Hong Kong after separation of the father and son pending this substantive hearing. Skype access was not smooth. The mother says she has been encouraging the son to speak to the father. The father says that the mother stood behind giving the child pressure or making loud noise to disrupt their contact. Day access was frustrating for the father. The maternal grandmother and aunt would not allow the child to have private time with the father notwithstanding the father and child had had excellent moments (according to the father) of swimming, visiting museums and eating in restaurants. The child’s narration to Ms Chow shows that he was so stressed that he had forgotten where he had gone during access. He did not want to sleep with the father. He cried a bit as he worried he would be scolded by the father. 57.Considering all circumstances, whilst the child may have been subjected to some physical or psychological harm from the father, I am not satisfied on balance that it was as serious as depicted by the mother. Nor am I satisfied that the current psychological state of the child was what existed when he was first brought into refuge. Issue (2) – If the child is returned to England, would it expose him to a grave risk of harm or place him in an intolerable situation? 58.No expert assessment has yet been made into the likely effect of return to England. Mr Marwah submits that past abuse created a profound effect on the child’s sense of security for both himself and his mother, as demonstrated by his views expressed to Ms Chow (§§66-68 of her Report). It clearly rises to the level of ‘intolerable’ and ‘harm’. The threat of return creates fear in the child, whereas the thought of remaining in Hong Kong fills him with relief. Mr Marwah submits that there is a grave risk that a return to England would affect the child psychologically – regardless of safeguards. 59.Given my views and findings in paragraphs 38-57 above, I am not satisfied that there is grave risk of harm to the child or that he would be placed in an intolerable situation. 60.I have not overlooked what appears to be deterioration in the father-and-son relationship since the child left England. There is no evidence that the mother or her extended family members exerted negative influence on the child. However, for a month, the child has been subjected to interviews with professionals or social workers about his father hurting him. His father’s access to him was in the presence of the extended family members, sometimes with video recording of him. 61.The reason for such deterioration is yet to be investigated but I am not satisfied on balance of probabilities that the cause was dominantly due to the father’s conduct. 62.Moreover, there should be a distinction between returning the child to England and returning him to the father’s home. The court should consider safeguards. If Mr Marwah is correct that in view of grave risk the child should not be returned to England, regardless of safeguards, there will be no need for the court’s exercise of discretion under Article 13(2). Issue (3) – Does the child object to returning to England? 63.Whilst in England, the child had regularly told the mother and the father that he wanted to go back and live in Hong Kong. He said that he wanted to live with his “big family” in Hong Kong. The child had asked the mother, “But daddy won’t let us, will he?” This was, in my view, more of an expression of preference, when one remembers that he had spent his first 5 years in Hong Kong. 64.According to the mother, the child had said on a number of occasions, without prompting, that he does not wish to return to England and wishes to live in Hong Kong. He also said this to the maternal grandmother and the aunt. When the father first exercised access in Hong Kong, the father asked the child if he wanted to go back to study in the UK to which the child said Hong Kong. On subsequent occasions, the father kept asking child whether he wished to return to England but the child remained silent on each occasion. He subsequently told the mother that he was too scared to tell the father that he did not want to go back. He also refused to go to the home of the father’s friend during staying access in Hong Kong. 65.According to Ms Chow’s Report:
66.Considering paragraph 68 of Ms Chow’s Report, I find that the child objects to return to England. Issue (4) – Is the child of sufficient age and maturity that his views should be taken into account? 67.The child is aged 7 years and 9 months. There is reference on the mother’s side to the school’s comments on the child’s performance and Dr Flavill’s comments on the child’s response when interviewed. I do not consider those references to be helpful in deciding if he has the maturity to understand the situation he is facing or to decide the important question of where to live and with whom. 68.Mr Marwah submits that:
69.Mr Marwah submits that the child clearly understands the relevant circumstances and his reasons are well articulated. His concerns are in line with bona fide welfare concerns – they are not spurious. His feelings are strong, and not momentary or fleeting. The father has not raised any substantial basis for rejecting the child’s views, aside from the general comment that he is young and an unsupported allegation of coercion and alienation by the mother. 70.I have alluded to the situation before the child was taken out of England. In addition, there was no evidence of even one occasion in England where the child refused to return home to his father or go out with the father. The fear of the father hurting him out of home was not even the subject of the mother’s complaint. And yet the child has expressed fear of his father in Hong Kong without bases. He was never hurt or scolded for not doing skype access, not going out with the father or sleeping with him during access. 71.Those fears were wholly inconsistent with the child staying alone with the father in Ms Lane’s office and initially in Hong Kong in Ms Chow’s office. His almost complete rejection of the father appeared to have started only after he lives in Hong Kong with the mother’s family. The fear of his father was displayed when the mother or her family members were around. 72.The child is not of sufficient maturity for the court to take into account his views, which were lopsided. Issue (5) – Should the court exercise its discretion in favour of the child’s views 73.If I am wrong, I have considered whether to exercise my discretion to order the child to return to England or to stay in Hong Kong. The spirit of the Convention is to ensure the prompt return of an abducted child to his place of habitual residence and that must be upheld save for good reasons. 74.Mr Marwah submits that a return to England would not be in the best interests of the child. The child’s physical, educational, housing, emotional and social needs are well catered for in Hong Kong. The child is strongly attached to his mother’s family, especially his maternal grandmother. On the other hand, the child has suffered abuse in England and is likely to suffer further if returned. It is practically more difficult for the child and his mother to relocate. The mother has little support in England and is facing contempt charges if she returns that may lead to separation of the child from his mother. The child enjoys a good relationship with his mother and a poor relationship with his father. 75.In the present context, I have considered whether there are safe harbour measures in England and the mutual undertakings. 5.1 – Safe harbour measures in England 76.The English Courts have shown expediency in taking up the case, but for the mother’s act in contempt of the injunction. The matter was moved up to the High Court of England. An inter parte hearing has been fixed for 22 August, within 2 months of the Bromley Court Order. 77.Further, the English Children Act 1989 sets out a scheme for handling child abuse cases. The scheme is not much different in substance to the spirit of Hong Kong legislation in treating a child’s welfare as of paramount importance. Multi-disciplines (like police, social workers, doctors, psychologists and other professionals) will be involved in investigating the allegations and making applications for protection orders to the court if necessary. Supervision order and accommodation may be provided to a child. 78.After the mother first made a complaint to Women’s Aid in June 2017, what followed was in accordance with what was laid down in the Children Act 1989. She and the child were provided with temporary refuge despite the fact that the mother was not a UK resident. The police was alerted. Dr Flavill was consulted, who recommended follow up on psychological investigation. Investigations were halted only because the mother had fled the country. 79.The Bromley Healthcare Report dated 26 June 2017 relied on by the mother recommends as follows:
80.Therefore, even on the mother’s own case, there are safe harbour measures in England available and they are in accordance with the legislation. 5.2 – Mutual undertakings 81.Regardless of whether the court accepts the mother’s case on abuse, returning the child to England is not the same as returning him to the father’s home. In my view, the home may be a pressure cooker for the mother and father, and will be more so after this piece of litigation. 82.The interim position has now been dealt with by way of mutual undertakings. The major undertakings are that:
83.These mutual undertakings provide yet another form of safe harbour arrangements that will ensure the smooth return of the child to England. I would give the sternest warning to the mother that court orders are to be obeyed and that she should not take the kindness of the father not to pursue contempt proceedings lightly. Issue (6) – If the child returns or remains, what consequential orders should the court make? 84.The summer vacation will soon be over. The child should be returned to England as soon as possible, arriving by 29 August 2017, latest. Given the unhappy encounters in Hong Kong, the father should not travel in the same plane with the child. The air fares shall be borne by the father. 85.Parties have been trying to work out access. Generous access including staying access should be given to the father. In default of agreement, the previous arrangement shall continue so that the mother will fetch the child direct from school on the day he has Kumon class. The father will fetch the child direct from school on the rest of the week days and send him home to his mother. 86.Staying access shall be attempted on alternate weekends. Mr Egerton suggests:
87.With respect, I do not find this to be desirable. The child will be effectively “split” between 2 homes and there may be adjustment problems. I would direct, on an interim basis before the English Court hears the matter, that staying access be from Friday after school until Monday morning on alternate weekends. CONCLUSION 88.In summary, this is a blatant case of child abduction which the Convention was designed to remedy. The child’s habitual residence is England. The removal was wrongful and in breach of an English Court order. The mother’s complaint of physical or psychological harm does not reach the threshold of showing grave risk of physical or psychological harm on the child if the child is returned. Even if grave risk is established, there are safe harbour measures in England and by virtue of the parties’ mutual undertakings. The Court would not rely on the child’s objections but should exercise its discretion to order his return. 89.Each party has attempted to put his/her case before the court. I have no doubt each considers his/her move to be in the best interest of the child. I am of the view that there should be no order as to costs. There shall be legal aid taxation of the mother’s own costs. 90.I accept the mutual undertakings as amended by me at the hearing and order as follows:
91.I thank counsel for their assistance.
Mr Robin Egerton, instructed by Hampton, Winter & Glynn, for the plaintiff Mr Azan Marwah, instructed by Tanner De Witt, for the defendant Ms Bethany Choi, Senior Government Counsel, of Department of Justice, as an observer | |||||||||||||||||||||||||||||||||||||||||||