J v. Q

HCMP 2563/2024

[2025] HKCFI 363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2563 OF 2024

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D E C I S I O N

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1.I will grant interim care to the father while the child is in Hong Kong. I make an order in terms of the draft handed up by the father to the court this afternoon with the additional order that the child not be removed from the jurisdiction of Hong Kong without prior leave of the court, and that is until further order of the court.

2.I also make an additional direction that the father should, by 4 pm next Monday, lodge with the court the travel documents of the child which are in his possession.

3.After I deliver my reasons for the decision, I will hear submissions on any practical arrangement that needs to be put in place in order for the child to be returned to the father today and, if necessary, I will make further directions in this regard.

4.In coming to the above conclusion, I have taken into account the following matters. 

5.On a realistic estimate, the child is expected to be in Hong Kong for at least the coming six to eight weeks while the father’s originating summons and also the intended application of the mother are being resolved.

6.The question for me, therefore, today is this. Who should have care of the child during this interim period? 

7.There are a number of objective facts revealed by the evidence before the court. 

(1)  First, since birth, the child has spent the vast majority of his life in Shanghai with his father, save for a period of about ten months in Tokyo, Japan when he was with his mother. 

(2)  Second, after the child returned to Shanghai from Tokyo in June this year, he was in the care of the father until about 25 November. 

(3)  Third, in September, the father and the mother agreed that while the child was in the care of the father, the mother would have access to the child for some part of the week.  That is the September interim agreement.

(4)  Fourth, after contested litigation, the Shanghai court granted custody of the child to the father in a judgment handed down in early November. 

(5)  Fifth, the mother took the child to Hong Kong from Shanghai on 25 November without the consent or knowledge of the father and in apparent violation of the September interim agreement and the November Shanghai judgment.  But for that removal, the child should have been in the care of the father in Shanghai.

8.There is an issue as to the legal effect of the Shanghai judgment.  But leaving that issue to one side and assuming that the judgment has no binding effect right now because the mother is lodging an appeal against it, in the Shanghai proceedings, the parties had gone through an adjudication process.  The court had considered the evidence and eventually came up with the ruling that the father should have custody of the child.  That is certainly something that I should take into account and give weight to in determining today’s interim care issue.

9.In my view, all of the above matters point overwhelmingly to the conclusion that while the child is in Hong Kong, the father should have his care. 

10.The only countervailing factor is the preferences expressed by the child to me during my meeting with him this morning.  He said in no vague terms that he did not want to go back to the father.  He cited two reasons: 

(1)  First, he said he saw how his father took away his sister back in August in Shanghai. He said it was scary.  He said he was scared.

(2)  Second, he said his father doesn’t really care about his passions. 

11.The question for me is whether what he said to me this morning represents his genuine feelings and wishes, or whether he has been pressurised into saying all this by the mother.  If it is the latter scenario, I should give no weight to what he said.

12.For today’s purposes, I will have to take a view on this issue.  And my view is that it is more likely than not that what he said does not really represent what he genuinely thinks and feels. 

13.If he had been so scared by what had happened on 28 August, the mother would have known about it.  It is inexplicable why she would then proceed to agree to the access arrangement under the September interim agreement. 

14.If the child had been so scared of his father because of what happened on 28 August, the mother again would have known about it and it is inexplicable why she, through her lawyers, would still propose at the beginning of the hearing last Sunday that the father should have care of the child for half of the week while the child is in Hong Kong.

15.Today, the mother is telling me that the child has deep and underlying psychological issues arising out of the August incident.  But there is no independent evidence or medical evidence to support that. 

16.I was told this morning that, in fact, the mother took the child to see a therapist or some other kind of professional.  But the mother had not been able to tell me what the professional had said about the child’s mental condition.

17.The very first time the mother made this allegation concerning psychological issues was yesterday.  If that is indeed a true allegation, it is inexplicable why she never before mentioned it. 

18.To conclude, I will not give weight to what the child said to me about his preferences during our meeting this morning.  This is because there are sufficient grounds for me to suspect that he had been under pressure to say what the mother wanted him to say, and what he said to me does not represent his true preferences.

19.To grant interim care to the father now would be to continue what should have been the arrangement if the removal to Hong Kong had not taken place.  That removal itself and the surrounding circumstances are highly questionable, if not outright alarming.  Separately, there is no suggestion that there is any risk, in whatever form, to the child if he is to be returned to the father today.

20.For all these reasons, I grant interim care to the father on the terms proposed by the father. 

(Discussion re execution of interim care)

[21. The following orders are made:

(1) The Respondent do return the child K (the “Minor”) to the Applicant forthwith.

(2) Interim care and control of the Minor be granted to the Applicant.

(3) Paragraph 9 of the Order dated 1 December 2024 be varied so that the Respondent do have the following interim access with the Minor:

(a) Unrestricted remote access by telephone/video call daily.

(b) Supervised day access for 2 hours in the afternoon each Tuesday and Friday commencing from 13 December 2024 at the Hong Kong Catholic Marriage Advisory Council – KID First Specialised Co-parenting Support Centre (HK).

(4) Penal notice be endorsed.

(5) Until further order of the Court, the Minor must not be removed from the jurisdiction of Hong Kong without prior leave of this Honourable Court.

(6) There be liberty to apply. ]

Mr Shaphan Marwah, instructed by Tanner De Witt, for the applicant

Ms Anita Yip, SC and Ms Lily Yu, instructed by Rita Ku & Ser, for the respondent