Secretary for Justice (in His Capacity As the Central Authority Designated Under the Child Abduction and Custody Ordinance, Cap. 512) v. Ywg and Another

HCMP 2311/2024

[2025] HKCFI 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2311 OF 2024

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DECISION ON COSTS

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INTRODUCTION

1.By Originating Summons filed on 8 November 2024 (“the Originating Summons”) pursuant to the Child Abduction and Custody Ordinance (Cap. 512, Laws of Hong Kong) (“the Ordinance”) and the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (“the Hague Convention”), the plaintiff applied for the return of TH (“the Child”) to the United States of America. In a gist, it is the plaintiff’s and the 2^nd defendant (“Father”)’s case that the 1^st defendant (“Mother”) has wrongfully retained the Child in Hong Kong without Father’s consent.

2.In the inter parte hearing held on 14 November 2024, Mother, through her solicitor, accepted openly that this is a return case, and stated that she was willing to bring the Child back to the United States. However, she asked that the matter be adjourned for a short period so that she could sort out her overstay problem with the USA authority through the plaintiff. With the consent on the part of Father’s solicitors, the call-over hearing was adjourned to 19 November 2024. The adjourned hearing was then vacated and further adjourned to 27 November 2024 by consent.

3.However, on 22 November 2024, this Court received a speaking note lodged by a senior counsel engaged by Mother. The speaking note indicated that there was a complete change in Mother’s stance in these proceedings – she did not agree that the habitual residence of the Child was in the United States, and alleged that it would be “intolerable” under Article 13(b) of the Hague Convention if she were forced to return to the United States.

4.As Mother’s senior counsel did not attend the 1^st call-over hearing on 14 November 2024, and his speaking note did not mention anything about Mother’s concession made at the said hearing, this Court, on 25 November 2024, directed all parties, in particular Mother’s senior counsel, to attend court earlier than the scheduled time on 27 November 2024, so that they could listen to the audio recording of the 1^st call-over hearing before the commencement of the 2^nd call-over hearing.

5.The said senior counsel then lodged an “updated” speaking note on 26 November 2024, and informed the Court that Mother would revert back to her original position as a result of legal advice which she received overnight from the United States. In other words, she would no longer oppose the application.

6.Various orders were consequentially made on 27 November 2024 to facilitate the return of the Child to the United States.

7.At the end of the 2^nd call-over hearing, Father asked for costs of the proceedings. By consent, the application was ordered to be dealt with on papers.

FATHER’S GROUNDS

8.Father’s grounds in support of his application for costs are as follows:

(1)  Mother’s actions in abducting the Child were harmful to the Child and cruel (“the Abduction Ground”);

(2)  Mother has unreasonably refused to participate in the court proceedings regarding the custody of the Child in the United States (“the US Proceedings Ground”);

(3)  Mother’s change of stance in the present proceedings has caused wasted costs and delay in the negotiations between the parties on the logistics of the return (“the Wasted Costs Ground”).

THE LEGAL PRINCIPLES

9.By virtue of the Ordinance, the provisions set out in Schedule 1 thereto have been given the force of law in Hong Kong.

10.For the purpose of the present application, Article 26 of the Hague Convention is relevant:

“[…]

Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.”

11.Hartmann J (as he then was) explained in N v O (HCMP 4204/1998, unreported, 6 January 1999) that the last paragraph of the aforesaid Article 26 gives the Court a discretion to order the abductor of the child to pay necessary expenses incurred by the applicant, and such expenses may include payment of legal costs. The purpose of such a provision is to act as a deterrent to behaviour which is contrary to the objects of the Convention. However, he stated further that:

“In the absence, therefore, of specific directions contained in the Child Abduction and Custody Ordinance, in my judgment, in Convention cases, our courts should adhere to the principles already established in children’s cases and should be wary of awarding costs against an unsuccessful party except in exceptional circumstances. It is unnecessary and undesirable to attempt to limit or place into confined categories the cases which a court might, in Convention cases, regard as constituting exceptional circumstances. But they will include cases where the litigation has been instigated vexatiously or in bad faith or where the one party has acted in a reprehensible manner or in a manner concerning the litigation which goes well beyond what would be expected of a reasonable parent anxious to secure his or her child’s best interests.” (at page 9) (emphasis added)

12.In a more recent case LCH v JMC [2019] HKCFI 2521, the learned Judge has referred to, inter alia, EC-L v DM (Child Abduction: costs) [2005] EWHC 588 (Fam), in which Ryder J had considered the approach on costs which the Court should adopt in a Hague Convention case, and his Lordship took the view that it should be the expectation in such cases that the usual orders would be no order as to costs, but where a party’s conduct had been unreasonable or where there was a disparity of means then the court could consider whether to exercise its discretion in accordance with the normal civil principles: at [68].

13.Having said that, in my view, there is nothing in EC-L v DM (Child Abduction: costs) which queries the trite principle that costs are a matter of wide discretion for the Judge. Indeed, even though there is a general practice for the Hong Kong court not to award costs in children matters, this is just a practice but not a principle of law[1]. Hence, the Court must retain a discretion to make any order on costs as it thinks fit, even if that means one of the parents would have to pay costs of the other side.

14.In this regard, Order 62 rule 5(1)(e) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) expressly provides that the Court may take into account the conduct of the parties when exercising its discretion as to costs, and rule 5(2)(d) of the same Order stipulates that “conduct” would include “conduct before, as well as during, the proceedings”. In other words, the “conduct” which the Court considers is not limited to the parties’ conduct in the litigation.

15.However, it should be borne in mind that, after all, Hague Convention cases are applications concerning children. When considering whether there are exceptional circumstances justifying departure from the general practice, the Court should not be too quick to label a parent’s conduct as “unreasonable”: TPL v WYY formerly known as WYY (CACV 47/2014 & CACV 61/2014, unreported, 15 December 2014) at [15.2].

DISCUSSION

16.With the above in mind, I now turn to consider the grounds relied on by Father.

The Abduction Ground

17.Father argued that Mother, by abducting the Child, has not only deprived Father of the opportunity to experience the significant early months of the Child’s life, but also denied the Child the love and care of Father for the majority of his life[2].

18.I suppose complaints similar to those raised by Father herein would be present in, to say the least, most abduction cases. In my view, these per se would not amount to “exceptional circumstances” which justify departure from the aforesaid general practice on costs. Otherwise, the Court would be treating abduction cases differently as compared to other children cases.

19.I would not place weight on Father’s argument that the Child had been abducted for the majority of his life. This argument effectively means that abduction of babies would be more serious than the abduction of older children, which I do not agree.

20.Reliance has also been placed by Father’s counsel on the following remarks made by Cobb J in Sanchez v Oboz [2016] 1 FLR 913 at [7] to [8]:

“7. […] I had cause to remark in the case of London Borough of Tower Hamlets v Ali [2014] EWHC 845 (Fam), [2015] 1 FLR 205 that untold damage is done to children who are spirited away from one country to another, without warning or preparation; disruption to their routines, the predictability of their lives, their family relationships and social relationships, and to their schooling, all these are inevitable. Parents who remove children from their home environments in this way cannot go unpunished.

8. I stand by those words. The wilful retention of a child abroad in circumstances such as these is child abduction of the most heinous kind; it is an act of emotional abuse to the child. In this case, Isabella has been deprived of her relationship with her mother who, until her unlawful retention in Poland, was her primary carer; she has been denied the regularity of an environment which is familiar to her.” (Mr Marwah’s emphasis)

21.With respect, such reliance is misconceived, as the said remarks were made in the context of a contempt proceeding which was commenced upon the abducting parent’s failure to return the 3-year-old child from Poland to England pursuant to a court order. Moreover, the effect of the abduction on a 3 years’ old child must be different from that on a baby who is only a few months’ old, as in the present case.

22.Father also stated that because of Mother’s abduction of the Child, he had to retain US and Hong Kong lawyers so as to bring legal action under the Hague Convention[3]. With respect, for the reason explained in [18] above, this matter does not assist Father at all.

23.This ground is therefore without merits.

The US Proceedings Ground

24.Under this ground, Father relied on Mother’s previous refusal to accept service in the US Proceedings, and submitted that such refusal has not only led to delay on the part of the US Court to make interim custody orders but also caused Father having to incur significant costs. It was further alleged that this was an attempt on the part of Mother to obtain a strategic advantage over Father.

25.This ground should also be rejected.

26.Firstly, Father’s allegation that he has made numerous attempts to effect service of the US Proceedings case papers on Mother is not supported by admissible evidence. The email which was attached to Father’s written submissions in support of this application for costs is inadmissible and should be disregarded.

27.Secondly, in any event, Mother’s refusal only lasted for a short period of time, for she has agreed on 27 November 2024 to accept service of the US Proceedings.

28.Thirdly, if anything, this should be a matter to be taken into account by the US Court when it considers the issue on costs of the US Proceedings.

The Wasted Costs Ground

29.As mentioned above, Mother initially expressed her agreement to bring the Child back to the United States in the 1^st call-over hearing, but she changed her stance afterwards.

30.Father stated that extra costs had been incurred as a result of:

(1)  the necessity for him to instruct counsel to attend the 2^nd call-over hearing;

(2)  the desirability for him to prepare his affidavit in support once he was aware of Mother’s change of stance so that the resolution of the matter would not be delayed.

31.While Mother’s change of stance obviously should not be encouraged, this Court does not have any basis to reach any conclusion other than that such a change was made upon legal advice. As such, although it was undesirable, it was not unreasonable.

32.In fact, Mother was entitled to rely on the 2 arguments set out in [3] above at the 1^st call-over hearing. If she did so, the application would have been adjourned for substantive argument in the usual way, and in such a case, even if her arguments were rejected, Father would not be granted his costs on the sole basis that he had succeeded in the application.

33.Father argued that Mother’s argument on “intolerable situation” is unarguable. However, as pointed out by Yuen JA in TPL v WYY (supra) at [15.3]:

“Merely because a judge, dealing with a case dispassionately and objectively, considers one parent’s proposals hopeless does not justify a costs order against him/her. As Butler-Sloss LJ said in Re G (Costs: Child Case) [1999] 2 FLR 250 at p252G:

‘If this judge in this case had found that this father had behaved unreasonably in the litigation and had gone beyond what many fathers do, seeking orders which are hopeless, the point will come at which pursuing a hopeless application becomes unreasonable. But hopelessness and unreasonableness are not necessarily the same thing. Indeed, particularly where there is a litigant in person, a degree of generosity towards a litigant may be more appropriate than to a litigant who is on legal aid generally advised by counsel and solicitors to the extent to which they should continue to litigate’. ” (emphasis added)

34.While it may be said that Mother’s change of stance has caused delay to the parties’ negotiation on the logistics of the return, it should be recognized that it does not affect the overall timing of the return of the Child because an order of return has been made on 27 November 2024 as scheduled. The unexpected episode between 22 November 2024 and 26 November 2024 did not delay the making of the return order.

35.I therefore also reject this ground.

ORDER

36.I order that there be no order as to the costs of the action.

37.For the avoidance of doubt, this order also covers the costs of the Department of Justice.

COSTS

38.I make a costs order nisi that there be no order as to the costs of this application for costs.

39.The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on papers) within 14 days hereof.

Ms Tina Mok, instructed by Fan, Wong & Tso, for the 1^st defendant

Mr Shaphan Marwah, instructed by Rita Ku & Ser, for the 2^nd defendant