Te v. Lsy
Read the full judgment text of HCMP 2357/2024 on BabelCite. This High Court CFI judgment was delivered on 23 December 2024.
1. This is an application for the return of GT (“the child”) to Italy under the Child Abduction and Custody Ordinance, Cap 512, and the Hague Convention on the Civil Aspects of International Child Abduction, 1980.
Cites 2 cases
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HCMP 2357/2024 [2024] HKCFI 3652 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 2357 OF 2024 ________________________
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________________________ J U D G M E N T ________________________ INTRODUCTION 1.This is an application for the return of GT (“the child”) to Italy under the Child Abduction and Custody Ordinance, Cap 512, and the Hague Convention on the Civil Aspects of International Child Abduction, 1980. 2.The child was born on xx March 2022. He is now two years and nine months old. 3.The originating summons was taken out by the Secretary for Justice, acting in his capacity as the Central Authority of Hong Kong under the Hague Convention, on 13 November 2024. He did so at the request of the Central Authority of Italy. The mother and the father of the child were named as the 1st and 2nd defendants respectively. 4.At the directions hearing on 20 November 2024, I granted leave for the Secretary for Justice to withdraw from these proceedings and for him to be replaced by the father, who has since become the plaintiff in these proceedings. The mother is now the only defendant. The Secretary for Justice was granted leave to observe these proceedings. 5.As directed, parties have lodged an agreed chronology and an agreed list of issues. There is only one issue set out in the agreed list. The issue is whether the father has consented and/or acquiesced to the removal or retention of the child in Hong Kong. 6.It is not disputed that the mother and the child left Italy for Hong Kong on 25 June 2024. That would be the date of removal for the purpose of this application. 7.The mother’s case is that in an oral discussion between her and the father on 2 June 2024, the father expressly consented to the mother relocating the child with her to Hong Kong permanently. On the other hand, the father’s case is that he only gave consent for the mother to travel with the child to Hong Kong for the summer only. 8.The mother’s case is further that if there was no consent given on 2 June, consent can be inferred from the conduct of the father after that date. As a further alternative, the mother says that the father subsequently acquiesced to the removal. For this, she relies on the father’s conduct from 25 June to 10 July. The latter date is the date on which the mother says the father reneged on the parties’ agreement for the permanent relocation of the child. On the father’s case, it was on 10 and 11 July that the mother informed him of her intention to retain the child in Hong Kong permanently and to enrol him in pre-nursery class here. The father thus says that the child was wrongfully retained in Hong Kong as from that time. 9.It is common ground that as of the date of removal, namely 25 June 2024, the place of habitual residence of the child was Italy. 10.In the hearing, the father was represented by Mr Calvin Lo of Messrs Stevenson, Wong and Co, and the mother was represented by Miss Vivien Leung, counsel. BACKGROUND 11.The father is Italian and the mother is Hong Kong Chinese. They are now both 35 years old. They were married on xx November 2019 in Hong Kong. 12.The child was born on xx March 2022 in Italy and had been living there prior to 25 June 2024. Since birth, the child visited Hong Kong twice. The first visit was in September 2023 and he was here for about six weeks. The second visit was in January and February 2024. He was here for just over five weeks. I shall refer to the latter trip as “the early 2024 trip” below. 13.It is not in dispute that while the mother was in Italy, she was a full-time housewife. The father works as a chef. THE PARTIES’ CASES 14.I set out below the parties’ respective cases. Prior to 2 June 2024 15.According to the mother, for the past two years, there had been a gradual crumbling of the marriage and she had tolerated the situation the best she could for the sake of the child. She also suspected that the father had an affair. After she returned to Italy from the early 2024 trip, the father told her that he no longer loved her. The mother became extremely worried about the future, in particular for the child and his education. What the father said to her brought the breakdown of the marriage into the open. The mother says that they managed to let matters drift for a few months until the evening of 2 June when they had long discussions about the way forward. 16.The father accepts that the marriage had faced a lot of challenges since before the child was born and that he and the mother had frequent disputes and gradually grew apart. After the child was born, the relationship did not improve. The two of them were having different views on how the child should be brought up. The father says that these differences often resulted in fraught and unhappy arguments. But he always tried to maintain the marriage because he wanted the child to grow up in a whole and complete family. He denies that he was having an affair. The conversation on 2 June 2024 17.It is the mother’s case that on 2 June, the father expressly gave consent for the permanent relocation of the child to Hong Kong. The mother said this in her affirmation:
18.The mother relies on some notes which she says she made of the 2 June conversation. Copies of these notes are exhibited to her affirmation. They contain three pages, including the original text in typed Chinese, accompanied by English translation prepared for this application. She says in her affirmation that these notes are only about one quarter of her full notes. I should say at the outset that the notes themselves are not dated and it was not stated in the affirmation when these notes were made. 19.In her submissions, Ms Leung highlighted the following:
20.The father’s case on the 2 June conversation is as follows. 21.He says that after the mother returned from the early 2024 trip, the two of them engaged in many heated arguments about the future of their marriage, how and where the child should be brought up, and eventually the possibility of divorce. However, he stresses that the discussion on 2 June was a continuation of their many heated arguments. His position has all along been that the child should stay in Italy and receive education there. He is the only person with a full-time employment and a stable income to support the family and he believes that the living environment and schooling options in Italy are suitable for the child. 22.The father denies that he gave his consent to the permanent relocation of the child to Hong Kong in the 2 June conversation. Instead, he only agreed that the mother could bring the child to Hong Kong to spend the summer there with her family and relatives. 23.This is what he said in his affirmation about the conversation:
Between 2 and 25 June 2024 24.In these proceedings, the mother relies on subsequent conduct of the parties and the communications between them to show that the father had in fact given his consent on 2 June. 25.First, shortly after the discussion, the mother purchased single journey tickets for her and the child to travel to Hong Kong and the father knew about that. Miss Leung submits that this objective facts shows that the parties had agreed that the child would relocate to Hong Kong permanently. Furthermore, for the early 2024 trip, return tickets were purchased. And that was when the intention was to return back to Italy after the visit to Hong Kong. 26.On the other hand, the father explains that single journey tickets were purchased because the mother told him that she did not have a definite return date yet. The father says that he did not think too much about it because it was not the first time that the mother had travelled on a single journey ticket to Hong Kong. When the mother was pregnant with the child, she also travelled to Hong Kong on a single journey ticket. (At the hearing, Miss Leung confirmed on behalf of the mother that that was indeed the case but explained that it was because of the COVID situation that this arrangement was made.) 27.Second, on or about 25 June, the father signed a consent form, which read:
28.In her affirmation, the mother explained that she was told that a single parent travelling with a child would need a form to be signed by the non-travelling parent, otherwise she might encounter queries from the Italian immigration authorities. She therefore downloaded a form and requested the father to sign to indicate his consent. The mother says that the father duly signed, being fully aware of the implications and that the mother only had a single journey ticket. The mother stresses that for the early 2024 trip, no such consent form was signed by the father. 29.In her submissions, Miss Leung highlights the phrase “any country without limit of time” in the consent form. She submits that the wording indicates that the father understood that it was a permanent relocation. 30.On the other hand, the father says that the mother told him that the consent form was required at the immigration checkpoint because he, as the father, would not be travelling with her. He had a glance of the terms and thought that they were quite standard. In any event, Mr Lo submits that while the form did not specify the travelling destination and the travelling time, the heading of the form was expressly stated to be “Permission to travel from non-travelling parent”. Nowhere in the form did it say that by signing the form, the father was giving consent to the permanent relocation of the child. He also points out that the mother put down the matrimonial home address in Italy as the address in the form. 31.Third, it is the mother’s case that after the 2 June conversation, she tidied up all her and the child’s belongings from their rooms and packed them all in bags, parcels and boxes. They were then stored away in cupboards, given away or thrown away. In particular, the thick heavy winter clothing needed only in Italy were all packed away or given away. By the time of their departure, the bedroom where she and the child slept and the child’s playroom were almost empty and clear of all the belongings. She exhibited to her affirmation some photographs showing the rooms before and after the packing. 32.The mother further says that the father in fact helped her tidy up the rooms. The mother arranged for some spare items to be sent to her friend, Ms LMK, who lives in Italy. In her haste, however she made a mistake. Instead of putting down LMK’s name and address on the parcel, she wrote down her own name and her address as the recipient. The parcel was later sent to the parties’ home after the mother left Italy. In fact, it was the father who helped resend the parcel to LMK later on. 33.To this, the father says that the mother told him that she wanted to pack for her trip and tidy up and reorganise her and the child’s belongings. He therefore helped her pack. As regards the sending of the parcel, the father says that the mother often sent items and goods to her friends via courier service. It was therefore nothing extraordinary that he helped the mother resend her parcel to LMK at her request. He did not know what was in the parcel. 34.Fourth, the mother points out that it was the father who escorted the mother and the child to the airport on 25 June. 35.To this, the father says that it was only natural for him to escort them to the airport to see them off for their summer trip. After all, the father was very attached to the child and he knew that he would not be able to see him for several weeks. 36.Fifth, the mother had told two of her friends about the agreement she reached with the father on the relocation shortly after the 2 June conversation. The two friends are LMK and SLT. Both have made affirmations in these proceedings to support the mother’s case. 37.On 4 June, the mother spoke to LMK on the phone. She told LMK what was discussed in the 2 June conversation. After that, she sent LMK WhatsApp messages saying that she was very happy and she could return to Hong Kong normally. On the following day, LMK shared the news on a Facebook group stating that a friend of hers (ie the mother) had sorted out the matter with her husband (ie the father) and the husband had agreed that her friend could take the child back to Hong Kong at the end of June. 38.On 19 June, the mother and SLT had some exchanges on WhatsApp. The mother told SLT that she would be arriving in Hong Kong on 26 June. She expressed her relief that she could finally leave. The two of them also had two long telephone conversations in the early morning of the following day about the 2 June conversation. From 25 June to 10 July 2024 39.On 25 June, the mother and the child boarded the plane to Hong Kong. From that time onwards, the father and the mother had been exchanging messages on WhatsApp. The parties have exhibited copies of these messages to their affirmations. The mother relies on some of these messages to support her case that the father had consented to the permanent relocation in the 2 June conversation. 40.First, the mother contends that the messages show that the father had an emotional breakdown after seeing her and the child off at the airport. And this can only be consistent with the fact that he had consented to them leaving Italy for good. 41.She relies on the following messages sent on 25 and 26 June:
42.She also relies on the following messages sent on 27 June:
43.Miss Leung submits that the father’s reaction was dramatic and that can only be consistent with there being a prior agreement that the mother and the child were leaving Italy for good. 44.There was no specific response to the above in the father’s reply affirmation. 45.It is the mother’s case that in early July, she started looking and applying for schools for the child. She began discussing with the father about the choice of schools. 46.On 10 July, she and the father had a long conversation on WhatsApp. It lasted for 23 minutes. According to her evidence, she explained the procedure in Hong Kong to the father. The father raised no objection to her looking for a school. 47.Immediately after the conversation, the father and the mother exchanged messages about school options. The following messages were exchanged:
48.The mother contends that the above messages show that she and the father were discussing the school options in Hong Kong. Had the father not previously consented to the relocation, he would not have discussed the choice of schools with the mother or even suggested the child attend an international school. 49.In her submissions, Miss Leung highlights that throughout the messages, the mother repeatedly referred to the fact that the parties had already “discussed” and “decided” on the relocation. See some of the underlined extracts above. 50.On the other hand, the father says that in these messages, it can be seen that he raised objection for the child to stay and study in Hong Kong. He actually objected to the schooling option proposed by the mother. The father says that these messages clearly show that there was no prior consent given by him. See the extracts in bold. After 10 July 2024 51.The mother and the father exchanged further messages on the following day, 11 July:
52.The father’s case is that by then it became clear to him that the mother was wrongfully retaining the child in Hong Kong. He therefore sought assistance from a lawyer in Italy. He filed a complaint report to the Central Authority in Italy on 19 July. 53.The father and the mother exchanged further messages on 15 July:
54.On 12 August, he also wrote an email to the nursery school in Hong Kong proposed by the mother to clarify that he as the father did not consent to the mother’s application for the child to study at that school. The mother’s case 55.Based on the above evidence, it is the mother’s primary case that in the 2 June conversation, the father gave his express consent to the permanent relocation of the child to Hong Kong. She contends that the father’s subsequent actions show that such consent had been given. Alternatively, if the court finds that there was no express consent, it may infer consent from those subsequent actions. As a further alternative, if the court finds that there was no consent (whether expressly or by conduct), the mother says that the subsequent actions of the father, as from 25 June, amount to acquiescence on his part to the permanent relocation of the child. LEGAL PRINCIPLES 56.The primary objective of the Convention is to secure the prompt return of the children, who had been wrongfully removed, to their place of habitual residence. 57.Articles 3, 12 and 13 of the Convention are presently relevant. I reproduce the contents below:
58.In the present case, it is not in dispute that both the father and the mother have rights of custody of the child in Italy. The sole issue before the court is whether the mother can rely on the exception in Article 13(a), namely the father’s consent or acquiescence as alleged. 59.The principles on consent and acquiescence are well-established. 60.In EW v LP HCMP 1605/2011, 31 January 2013, Deputy High Court Judge B Chu (as she then was) explained, at para 37:
61.Consent to the removal of the child must be clear and unequivocal. The burden of proving the consent rests on the person who asserts it. The enquiry is inevitably fact-specific and the facts and circumstances will vary infinitely from case to case. The ultimate question is a simple one even if a multitude of facts bear upon the answer. The question is – had the other parent clearly and unequivocally consented to the removal? See the principles set out in Re P-J (Children) [2009] EWCA Civ 588 at para 48. 62.As for acquiescence, in T v L [2022] HKCFI 1418, B Chu J, at para 73, recited the principles set out by the House of Lords in In re H (Minors) (Abduction: Acquiescence) [1998] AC 72 at 90D-G:
DISCUSSION 63.I shall first deal with the primary case of the mother. 64.The burden is on her to adduce clear and cogent evidence to show that on a balance of probabilities, the father gave his oral consent in the 2 June conversation for the permanent relocation of the child to Hong Kong. The consent must be clear and unequivocal. 65.In her attempt to discharge the burden, the mother deposed in her affirmation that the father gave his consent on 2 June. Evidentially, she heavily relies on the subsequent conduct of the parties and the communications between them to show that consent had indeed been given. 66.In my judgement, whether each of these matters is viewed singly or cumulatively as a whole, the evidence relied on by the mother is not clear or cogent enough to enable me to come to the conclusion that the father in fact gave the consent, judging the matter on a balance of probabilities. Much of the evidence is, in my view, equivocal in the sense that while they may be consistent with the conclusion that the father had given consent, at the same time they are also plausibly consistent with the conclusion that he had not done so. Some other evidence is self-serving. And it would be unsafe to give much weight to it. I shall now deal with each of those matters in turn. First, the mother’s notes 67.On the face of it, the contents of some parts of the mother’s notes suggest that the father might have accepted in the 2 June conversation that it was a good idea for the child to study in Hong Kong. On the other hand, the father says he had never seen the notes before the mother filed her affirmation. In any event, the notes were written in Chinese and he would not have understood them. 68.The circumstances in which the notes were made are unclear. The mother did not explain in her affirmation when and why those notes were made. She simply exhibited three pages containing the notes to her affirmation. In fact, she added that the notes were only “about one quarter of my full notes”. That revelation is itself puzzling. If the notes recorded what was discussed on 2 June, it is not known why she would choose to disclose only one quarter of the notes. One is left wondering what the rest of the notes were about. 69.More importantly, the mother did not state when she made those notes. Was it immediately after the conversation on 2 June? Or was it some time after? It is also not known whether there was any alteration to the notes since they were made. Mr Lo submits that for all these reasons, the notes cannot be taken as a contemporaneous record of the 2 June conversation. I agree with that submission. Furthermore, the notes were written by the mother herself. Without knowing how those notes came into existence in the first place, I am unable to give much weight to them as reflecting correctly and accurately what had actually been discussed in the 2 June conversation. Second, the purchase of single journey tickets 70.I accept that the fact that single journey tickets were purchased is prima facie in support of the mother’s case. It is consistent with the plan to move to Hong Kong permanently. 71.However, the father’s evidence in this regard should also be taken into account. According to him, the mother told him that since she did not have a definite return date, she went on to purchase single journey tickets. This explanation is also inherently plausible and cannot be dismissed out of hand. 72.Furthermore, when the mother or the mother together with the child travelled to Hong Kong previously, on one occasion single journey ticket was purchased (when the mother was pregnant) whereas on another occasion return tickets were purchased (ie the early 2024 trip). This seems to suggest that single journey tickets or return tickets had been purchased in the past for different reasons. 73.Against such factual background, I consider that the fact that single journey tickets were purchased is an equivocal piece of evidence when it comes to determining the issue of consent. Third, the consent form 74.I do not consider that it is appropriate to give much weight to this document. On the mother’s own case, this document was required for clearing immigration checkpoints in Italy. She is not saying that it was signed for the purpose of showing to the authorities that the father had consented to the permanent relocation of the child. This means that the signing of the form is equally consistent with the father’s case that the child and the mother were only travelling to Hong Kong for a short trip. 75.Separately, the origin of the form is far from clear. The mother simply said in her affirmation that she “downloaded that form”. She did not say where she downloaded it from. The form itself was written in both English and Chinese. According to the mother, the form was used to deal with enquiries from the Italian immigration authorities. It is therefore unclear why the form, not written in Italian, would be used. 76.In any case, for the reasons set out in the previous paragraph, I find the consent form to be equivocal insofar as it is being relied on to show that the father had given consent to the permanent relocation. Fourth, the packing away of belongings of the mother and the child 77.On the face of it, the fact that the mother had packed and sent away a lot of the belongings is consistent with her allegation that she was preparing to leave the matrimonial home with the child for good. It is also consistent with the allegation that the father had given consent for them to do so because he knew about the packing. The mother’s allegation is also supported by the photographs she had taken of the rooms in the matrimonial home. 78.On the other hand, Mr Lo submits that it was natural for the father to help the mother pack. On the father’s case, many of the belongings would have to be packed as the trip would last for the whole summer as opposed to a short trip lasting a few days. Mr Lo also points out that in the photograph relied on by the mother as showing the state of the room after the packing, there was still a playmat, which appears to be quite sizeable, in the middle of the room. One asks rhetorically, if the child was not going to come back after the trip, why didn’t the mother pack away the playmat as well? 79.I have to say that I also consider that the fact of the packing and the sending away of stuff is equivocal in showing whether the mother and child were leaving the matrimonial home for good. The photographs relied on by the mother are simply not clear enough. The fact that the playmat was left in the room is consistent with the father’s allegation that the mother and the child were to return after the trip. Fifth, the emotional state of the father after the departure 80.I accept that the text messages do show that the father was getting emotional after the mother and the child took off. He said that he cried all day. He even said that he did not want to throw away the child’s pampers. The mother acknowledged in reply that it was a hard time for the father. Miss Leung submits that the father’s reaction and the mother’s comforting words can only be consistent with there being a prior understanding that the mother and the child were leaving for good. 81.I do not agree with that submission because it can also at the same time be consistent what the father said about his relationship with the child, namely that he was very attached to the child and he was separating from the child for a long time in terms of weeks, not days. Hence, once again, the emotional reaction of the father is evidentially equivocal. Sixth, the discussion of school options on 10 July 2024 82.In the extracts reproduced above, I have underlined those parts which are now relied on by the mother as proving that the father and the mother had previously discussed and decided on the child’s permanent relocation. I have also underlined those parts which, the mother says, show that the father must have consented to it as otherwise he would not have said what he said in those parts of the messages. He would not have discussed with the mother which school the child should attend in Hong Kong if he had not previously consented to him studying in Hong Kong. For the same reason, he would not have said that he wanted the child to stay with him before the latter started school in Hong Kong. 83.At the same time, however, there are other parts in the messages which show that the father was objecting to the child staying and studying in Hong Kong. I have marked those parts in bold in the extracts above. 84.The text messages are contemporaneous records of what was discussed on 10 July. I should therefore give a lot of weight to them. The question is – how to properly interpret them? 85.As shown in the extracts, there are parts of the communication which seem to show that the father had previously consented to the child studying in Hong Kong. For example, he said, “i don’t understand why he cannot stay with me here a few months”. He repeated this point later, “Why i cannot keep him before he start the N class?” On the face of it, he was asking for a short stay with the child in Italy before the child started school in Hong Kong. That should mean that he had accepted that the child would start school in Hong Kong. On this point, it should be noted however that the first quote was preceded by “And even if he would start the school in September 2025” (emphasis added). 86.At the same time, however, there are other parts in which the father said quite simply that the plan to study in Hong Kong was a decision of the mother only. For example, he said, “You need to know that you wanted him to stay there but no me”, “And now you took him there”. Shortly afterwards, he said “This is your decision not mine”. 87.In my view, some of the messages seem to support the mother’s case whereas some others seem to support the father’s. In other words, the messages, when read as a whole, are capable of being interpreted in different ways. As such, they are equivocal and are not clear or cogent enough to support the mother’s case of consent. Seventh, the evidence of the two friends of the mother 88.Based on the affirmation evidence of the two friends, I accept that the mother communicated with them shortly after the 2 June conversation, and that in these communications, the mother expressed happiness and relief about her situation. This fact is consistent with, and supports, her version of events that the father had given his consent. However, the friends’ knowledge and understanding of the situation between the father and the mother was entirely based on what the mother told them. To that extent, their evidence does not add much to the mother’s case and is not a weighty piece of evidence in the evaluation exercise. Conclusion on the mother’s primary case 89.I have gone through each of the matters relied on by the mother to show consent. In summary, I have found that each such matter, when viewed on its own, does not amount to clear and cogent evidence of consent. 90.When the mother’s evidence is looked at on an overall basis, I equally find that it is insufficient to establish the alleged consent, on the balance of probabilities. 91.Her case is on the whole coherent. It is prima facie supported by objective facts, including the purchase of single journey tickets, the fact that she told her friends of the news shortly after the 2 June conversation, and the father getting emotional after he saw them off. On the other hand, the father has put forward explanations for some of these matters, which are not inherently implausible and cannot simply be brushed aside. 92.On the whole, I find that the conduct of the father and the mother and the communications between them after the 2 June conversation are open to different interpretations. They can be said to be consistent with, and therefore supportive of, the mother’s case. But at the same time, they are also plausibly consistent with the father’s version of events. For that reason, the evidence now relied on by the mother is equivocal when determining whether the father had given his oral consent to the permanent relocation of the child. Insofar as the mother is relying on these actions and communications to corroborate her case of express consent given on 2 June, I do not consider that they amount to clear or cogent evidence, which is required in this type of application. There is therefore no sufficient evidence before me to find that the father gave the consent on 2 June. The primary case of the mother therefore fails. The mother’s alternative case – consent by conduct 93.Since the mother’s alternative case of consent by conduct also relies on the same evidence, for the same reason, I find that there is no sufficient evidence showing that the father gave his consent by his conduct after 2 June. The mother’s further alternative case – subsequent acquiescence 94.Since the mother’s further alternative case of subsequent acquiescence also relies on the same set of evidence, for the same reason, I find that there is no sufficient evidence in support of the subsequent acquiescence. 95.Accordingly, on the sole issue in this application, my determination is that the mother has failed to show consent or acquiescence on the part of the father for the child to be permanently relocated to Hong Kong. The retention of the child in Hong Kong is therefore wrongful. The court should proceed to make a return order as mandated under the Convention. ORDERS 96.The father would want to come to Hong Kong and take the child back to Italy. However, due to work reasons, he can only do so on or after 4 January 2025. At the hearing, the mother indicated that she would want to accompany the child back to Italy if a return order is made. Subsequent to the hearing, the father’s solicitors confirmed in writing that the father is willing to give an undertaking to the court and the mother that he will either personally drive the mother or arrange the transportation for her to travel from the airport to the matrimonial home in Italy. 97.Upon the undertaking being given, I make the following orders:
98.I make an order nisi that there be no order as to costs for the originating summons, and that the father’s and the mother’s own costs be taxed in accordance with the Legal Aid Regulations.
Mr Calvin Lo, of Stevenson, Wong & Co, for the plaintiff Ms Vivien Leung, instructed by Foo and Li, for the defendant Ms Alexandra Chua, Senior Government Counsel, Ms Clare Leung, Government Counsel, and Ms Marianne Leung, Government Counsel, of the Department of Justice, as observers | |||||||||||||||||||||||||||||
Cases cited in this judgment