Swtq v. We also known as Cwc

FCMC 1135/2022

[2022] HKFC 177

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 1135 OF 2022

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Coram:  Deputy District Judge J. Cheung in Chambers (Not Open to Public)

Date of hearing:  22 July 2022

Date of Judgment:  22 August 2022

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J U D G M E N T

(Injunction Application)

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Introduction

1.This is the Petitioner (“Mother”)’s application for a return and non-removal order concerning the child of the family, a girl now aged 5 (“the Child”)[1].

2.The Mother and the Respondent being a Taiwanese (“Father”) were married in Hong Kong on 9 December 2016 and the Child was born on 30^th April 2017.[2]

3.It is undisputed that until 9^th February 2022, the Child has been habitually residing in Hong Kong. On 9^th February 2022, Father unilaterally took the Child away from Hong Kong to Taiwan. On 11^th February 2022, the Mother petitioned for divorce. On 25^th February 2022, the Mother took out this Summons for the return of the Child to Hong Kong and the Father be refrained from removing the Child out of Hong Kong upon return and to surrender the travel documents of the Child in his possession.

4.It was contended by the Mother that in September (about 5 months after the Child was born), the Father did relocate to Taiwan for work[3] and spent not much time in Hong Kong. The Mother has all along been the Child’s primary carer and the Child’s maternal grandmother (“Maternal Grandmother”) also lived with them and provided assistance in domestic duties and the Child’s daily care[4].

5.While the Father said quite the opposite in his affirmation that the Mother has often been out of town on business trip and it was him and the Maternal grandmother who were the main careers of the Child. The Father submitted that he spent most of the time in Hong Kong before the pandemic, and during and after that, he spent about half of the time in HK and the other half in Taiwan.

Analysis

Jurisdiction issue

6.Undisputedly, Taiwan is not a contracting party to the 1980 Hague Convention on the Civil Aspects of the International Child Abduction (the “Convention”). The Child Abduction and Custody Ordinance (Cap. 512) which gives effect to the Convention therefore does not apply. The Father therefore submitted that the Family Court may not have jurisdiction to make an order for the return & non-removal of the Child.

7.I cannot accede to this argument. This court’s jurisdiction to make a non-removal order can well be found in the Matrimonial Causes Ordinance (Cap.179), at s.48D (2) which provides that:

“(2) If a parent of the child is a party to any proceedings under this Ordinance, that parent may apply to the court[5] for an order prohibiting the removal of the child out of Hong Kong, or out of the custody, care or control of a person named in the application, except-

a. with the leave of the court; or

b. on compliance with the terms specified in the order.”

8.Further, a family court judge can make any interim and final orders as it deems fit for the custody and education of the child under s.19(1) of the Matrimonial Proceedings and Property Ordinance (Cap 192), which stipulates as follows: -

“(1) The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of 18 —

(a) in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;

(b) where such proceedings are dismissed after the beginning of the trial, either forthwith or within a reasonable period after the dismissal;” (emphasis added)

9.As explained in CAW v FHFD [2018] HKFC 239 at [66],

“66. The right of custody includes welfare of a child of the family, to consider welfare of the child and to make important decisions for him or her. There is no exhaust list of categories of decisions. Relocating a child to another jurisdiction, bringing a child to live in another place would significantly have an impact to the child's life and future. This should certainly fall into the "custody" category. For this reason, I see custody embraces relocation.”

10.The relevant considerations for the court in a non-Convention case are set out in C v N (Wardship) [2015] 1 HKFLR 125 at paras 15 to 17:

“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 art 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 art 13 of the Hague Convention.

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 p 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 p 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.”

11.In K v K [2007] HKFLR 67, which concerned an order for the return of the child to mainland China (also a non-Convention case), HHJ Bruno Chan stated at p.68 that:

“(1) In the present case, the welfare of [the child] was the paramount consideration of the Court.

(2) In considering whether a pre-emptory order against the mother should be granted, the principles underlying the Convention were applicable. ...

(3) In the ordinary case it was in the child’s best interests for his or her welfare to be determined by the court of the country where the child habitually resides. …

(4) There was no evidence at all to suggest that there was any risk that his return to his father in the Mainland China would expose him to any physical or psychological harm or otherwise place him in an intolerable or any situation which may be incompatible with his welfare or interests.”

The Child’s Best Interests

12.As a matter of fact, the Child was born and all along raised in Hong Kong. On the contrary, she has only visited Taiwan for a few times and has not travelled to Taiwan since the pandemic. Further, she has been removed abruptly from her Mother, Maternal Grandmother (undisputedly by both parties as one of the main carers of the Child) as well as her friends and teachers in school and relatives in Hong Kong.

13.The Child was studying K2 at St Catherine while she was in Hong Kong and currently studying at 何嘉仁國幼兒學校／菁英安親美語-南崁分校 in Taiwan - a school that the Father unilaterally chose for her without any consultation with the Mother[6]. The curriculum must be completely different from that of St Catherine’s. Undeniably, the school life and study of the Child must have been considerably interrupted. The Mother contented that due to the prolonged absence from St Catherine, the school is unwilling to prepare a school report for her, which is important for her primary school admission applications[7]. It is further submitted by the Mother that the second semester of K2 is a critical time as primary school admission interviews are usually held from June 2022 to the end of the year. The Child’s prompt return to Hong Kong is essential to ensure that her chances of getting into a good local primary school are not jeopardized.

14.On the other hand, the Father submitted that the Child’s study at St Catherine has not been satisfactory and they were advised by teacher to let the Child to repeat K2. It is further said by the Father that the Child is now developing a close relationship with family and friends in Taiwan and also enjoying the school life there. The Father said that the Child’s school work is now effectively supervised by him and her daily routines are well taken care of by the paternal grand-parents.

15.As plainly put by HH Bruno Chan in K v K (supra) at para. 36: “it is usually not in a child’s best interests to be taken away from her native land.” The judge further elaborated in the clearest terms:

“To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors) which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible.”

16.In the present case, the undisputed fact is that the Child has been taken away from her native land out of the blue. The psychological and emotional blow to her at such a tender age was unimaginable and unmeasurable. Without a thorough scrutiny of the case, the court simply has no basis to decide whether it was more beneficial for her to relocate to Taiwan. Even taking the Father’s case to the highest, I consider those submitted by the Father are only considerations for the Hong Kong court to look into at a later stage properly and comprehensively upon the Child’s return.

Factors prohibiting the return

17.The Child should be immediately returned to Hong Kong once the court forms the view that ordering return of the Child is in the best interest of her unless the Father is able to demonstrate (i) a grave risk of physical or psychological harm or (ii) that the Child objects to the return. On the evidence, neither of these limbs can be made out in the present case.

18.The Court in S v S (Child Abduction) (supra) held at [329E-G] [M#5]:

“Grave risk of physical harm

… [I]t is for the mother [i.e. the party opposing the Return Order] to prove and establish a defence under art 13(b), namely grave risk of physical harm. It is common ground between the parties that the risk of physical harm must be weighty and it must be of substantial or severe and not trivial, harm. A very high degree of intolerability of physical harm must be established. The test is a stringent one and will only be satisfied in exceptional circumstances, as the case law confirms.”

19.Regarding a child’s objection to return, S v S (Child Abduction) (supra) at [333B-D] provides:-

“Objection of child to return to UK

It is accepted by the parties that under this second issue, the mother has to establish three elements before I can begin to have a discretion not to return. The three essential elements are the child:

(1) must be of a sufficient age at which it is appropriate to take account of the child’s view;

(2) must be of a degree of maturity at which it is appropriate to take account of the child’s view;

(3) must express a valid objection to being returned.

I first start with age. Six years is very very young and for me it is really too young an age at which it is appropriate for a court to take account of a child’s view (not preference but objection which carries with it a degree of rationality). Having seen the child and talked to the child today, I am confirmed in my view that he is really too young for his view to be taken into account.”

20.The Father clarified [8] that there were in fact no inappropriate acts by Mother’s boyfriend towards the Child – who in any event was not a caregiver. The fact that the Mother sometimes has to go on business trips leaving the Child to the care of the Maternal Grandmother cannot reasonably or logically be equated with a grave risk of harm. There is no evidence whatsoever that the Child will be subject to a grave risk of physical or psychological harm upon her return to Hong Kong.

21.Also, there is no evidence that the Child has in by way objected to returning to Hong Kong. The Father’s Submission that “the Child objects to returning to Hong Kong” is not supported by any evidence[9]. In any event, the Child, being 5 years old, is too young to have her view being taken into account by the court: S v S (Child Abduction) (supra) at para. 333B-D.

Conclusion

22.The Father’s removal of the Child from Hong Kong was clearly premeditated and wholly inappropriate and a complete disregard for the Child’s emotional and psychological state. There is no doubt that the Child’s best interests lies in her returning to Hong Kong immediately. The Child has been removed from her Mother, Maternal Grandmother, school teachers, friends and relatives in Hong Kong for more than half a year. I also find that there is no risk of harm for the Child to return to Hong Kong.

23.In any event, the significant matters of custody, care and relocation etc. should be comprehensively scrutinized and decided by the Hong Kong court for the child and the separated parents. The Father is certainly wrong to take away the young aged Child without informing her mother and going through the court’s procedures properly.

24.I agree with the Mother’s Counsel that the factual disputes raised in the Father’s submission are irrelevant and misconceived, including: (i) the number of days that the Mother had to be on business trips[10]; (ii) the Mother’s relationship with her boyfriend[11]; (iii) the Mother’s supervision of the Child’s homework[12] and (iv) parental care and guidance generally[13]. This is not an application for the Child’s custody or care arrangements. The Child’s care and other welfare arrangements should be thoroughly dealt with by the court in due course after she is brought back to Hong Kong.

25.It is also flawed for the Father at this stage to make a comparison between the Child’s education and parental care and support network between Hong Kong and Taiwan[14]. Should the Father genuinely believe that the Child’s best interests would be served by her living and studying in Taiwan, he has the right to make an application for permanent relocation in Hong Kong pursuant to s.94 of the Matrimonial Causes Rules (Cap. 179A) upon the Child’s return to Hong Kong.

26.In gist, I am satisfied that it is in the best interest of the Child to return to Hong Kong, her habitual residence, as soon as possible. No grave risk of physical or psychological harm has been shown if the Child is back to Hong Kong. There is no suggestion of any untoward behaviour to the Child by the Mother or Maternal Grandmother who have been her caregivers in Hong Kong. Furthermore, neither is there any evidence that the Child objects to returning to Hong Kong. In any event, she is too young to express any view or objection on the matter, nor if any, to be considered properly by the court.

27.Analysed as the above, this application made by the Mother to a Return and non-removal Order is granted accordingly.

Costs

28.Costs of this summons be dealt with by way of paper disposal. The Mother do file and serve Submission on costs within 7 days from the date hereof. The Father do file and serve Submission on costs in opposition within 7 days thereafter. And the Mother do file and serve Submission on costs in reply, if any, within 7 days thereafter.

Mr. V. Leung instructed by M/S Withers for the petitioner  

Mr. T. Li instructed by M/S Wong Heung Sum & Lawyers for the respondent