J v. Q and Another
Read the full judgment text of HCMP 2563/2024 on BabelCite. This High Court CFI judgment was delivered on 20 February 2025.
1. These two sets of proceedings concern the child, K, who is now 12 years old and physically in Hong Kong. He was born in Hong Kong and holds an HKSAR passport. However, he has not lived here before. He was brought to Hong Kong from Shanghai by his mother without the father’s consent on 25 November 2024. By now, he has been in Hong Kong for nearly three months.
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HCMP 2563/2024 & [2025] HKCFI 632 HCMP 2563/2024 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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________________________ AND HCMP 2721/2024 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 2721 OF 2024 ________________________
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________________________ (Heard together)
___________________ J U D G M E N T ___________________ INTRODUCTION 1.These two sets of proceedings concern the child, K, who is now 12 years old and physically in Hong Kong. He was born in Hong Kong and holds an HKSAR passport. However, he has not lived here before. He was brought to Hong Kong from Shanghai by his mother without the father’s consent on 25 November 2024. By now, he has been in Hong Kong for nearly three months. 2.By originating summons dated 30 November 2024 and filed in HCMP 2563/2024, the father commenced wardship proceedings against the mother in respect of the child and sought his summary return to Shanghai. By order dated 1 December 2024, I made the child a ward of the court. I also ordered that the mother be restrained from taking him out of the jurisdiction of Hong Kong until further order of the court. I shall refer to these proceedings as “the wardship proceedings” below. 3.By originating summons dated 18 December 2024 and filed in HCMP 2721/2024, the mother commenced proceedings against the father under the Child Abduction and Custody Ordinance, Cap 512, and the Hague Convention on the Civil Aspects of International Child Abduction, 1980. The mother says that as of 3 August 2024, the child’s place of habitual residence was Japan and that on that date, he was wrongfully retained by the father in Shanghai. The mother now seeks the return of the child to Japan. I shall call these proceedings “the Hague proceedings” below. 4.By order dated 14 January 2025, I granted leave to the Central Authority in Hong Kong to observe both sets of proceedings. 5.Furthermore, in the wardship proceedings, the mother took out a summons dated 16 January 2025 asking for care and control of the child be granted to her and for leave for her to return the child to Japan forthwith. The summons was taken out to ensure that if the mother fails in the Hague proceedings, she may still ask for the return of the child to Japan in the wardship proceedings. 6.By order dated 21 January 2025, I joined the child as the 2nd respondent in both the wardship and Hague proceedings and appointed the Official Solicitor to act as his guardian ad litem. I granted leave to the father and the mother to amend their respective originating summonses to reflect the joinder. 7.There are therefore before me three applications at the substantive hearing. First, the father’s amended originating summons in the wardship proceedings. Second, the mother’s amended originating summons in the Hague proceedings. Third, the mother’s summons for return in the wardship proceedings. 8.There is no dispute that the child should not be retained in Hong Kong, with whom he has no connection whatsoever save that he was born here and holds an HKSAR passport. The key issue is whether he should be returned to Shanghai or Japan. FACTUAL BACKGROUND 9.It is convenient to set out at the outset the background of the family, the key dates and events which are common ground and presently material. 10.The father was born in Taiwan and is now 38 years old. He has since 2011 lived in the mainland to help run his parents’ furniture business. The mother is mainland Chinese and is also 38 years old. 11.They got married in February 2012. The child is their first child and was born in September of the same year. In October 2013, a second child, a girl, named XX was born in Shanghai. The family lived in Shanghai where the children attended an international school called XX (“[School S]”). 12.By an agreement dated 18 April 2016, the father and the mother agreed to divorce. They reached agreement on the arrangements for the children and financial matters. The father would have custody (撫養) of the child who would live with him. The mother would have custody of the sister who would however live with the father until the age of eight. The mother would have the right to visit the children at any time. She also had the right to travel with them overseas during weekends and holidays. The father and the mother should consult each other (相互協商) on choice of schools, relocation overseas and medical matters. I shall refer to the agreement as “the divorce agreement” below. 13.The above provisions concerning the children arrangements was set out in clause 2 of the divorce agreement. I reproduce the original text below[1]:
14.Since the divorce, the children had lived in Shanghai up to August 2023. Notwithstanding the express terms of the divorce agreement, the father and the mother had shared care of the children, who split their time equally between the father’s and the mother’s homes. During that time, the parents maintained an amicable relationship and were able to co-parent and discuss plans together for the children. 15.In August 2023, the mother and the two children left Shanghai for Tokyo, Japan, with the consent of the father. The children attended XX (“[School T]”), an international school there, but would return to Shanghai for all their school holidays (except the first one). The father would also visit them in Japan every two weeks. 16.In March 2024, the mother’s parents were arrested in the mainland for misconduct and/or embezzlement charges. The mother informed the father that she could not leave Japan and that her parents were to be detained for an indefinite period. 17.On 27 June 2024, the father and the mother attended the graduation ceremony of the children in Tokyo. On the same day, the father and the children left Tokyo for Shanghai. The mother remained in Japan. At that time, the plan was for the children to return to Tokyo in early July and continue their studies in [School T]. On 15 July 2024, the father paid his half share of the tuition fees for the new academic year. 18.The return date was later changed to 17 August, as agreed by the father and the mother. 19.However, on 3 August 2024, the father sent a message to the mother saying that the children would not be returning to Tokyo and would be staying in Shanghai. 20.The reason for the father doing so is hotly disputed. 21.It is the mother’s case that the relocation of the children to Tokyo in August 2023 had been agreed by both her and the father to be a long-term arrangement. The trip to Shanghai in June 2024 was just for holiday. By his message of 3 August 2024, the father reneged on the agreement. As of that date, the mother contends that the habitual residence of the child was Japan. The father had since that date wrongfully retained the child in Shanghai. That is the basis of the mother’s application in the Hague proceedings. 22.On the other hand, it is the father’s case that, first, there had been an agreement reached between him and the mother before the move to Japan that the children would stay in Tokyo for one year only and, second, there had been a subsequent agreement reached in May 2024 that the children would return to Shanghai in June for the summer and if both of the mother’s parents were still detained by the authorities at the end of the summer, the children would stay with the mother in Japan until one of her parents were released. In these proceedings, the father has referred to the two agreements as “the initial agreement” and “the conditional agreement”. The father’s case is that the maternal grandmother was released by the authorities on 29 July. Hence, pursuant to the conditional agreement, he informed the mother that the children would stay in Shanghai. There was therefore no wrongful retention. In any event, the father disagrees that as of 3 August, the child’s place of habitual residence was Japan. 23.The father arranged for the children to re-enrol in [School S]. 24.The relationship of the parties thus began to break down around this time. 25.Two incidents happened in August 2024. 26.On 20 August, the mother went to [School S] to collect the children without any prior notice to the father. In the end, she only managed to collect the sister. She was stopped by the paternal grandparent from collecting the child. 27.On 28 August, the father retrieved the sister from the mother’s home. The child was present at the scene. 28.On the same day, the father commenced proceedings in the Shanghai court asking for the sister’s care to be granted to him. On the following day, the mother commenced proceedings applying for the child’s care to be granted to her. That would be the beginning of the care proceedings in the Shanghai court. These proceedings are currently at the appeal stage and are ongoing. 29.On 10 September, with the assistance of the Shanghai court’s mediation services, the father and the mother entered into an interim agreement. The agreement provided that the mother shall spend time with the children from Saturday morning to Tuesday and the father shall spend time with them from Tuesday after school to Saturday morning. The parties also agreed to deliver up the children’s travel documents to the Shanghai court. 30.On 14 September, the father delivered the Home Return Permit and the HKSAR passport of the child to the court in accordance with the interim agreement. 31.After the signing of the interim agreement and up to the end of October, the mother spent time with the children pursuant to the terms of the agreement. 32.On 31 October, the Shanghai court heard the two care applications. 33.On 6 November, the Shanghai court handed down judgments ruling in favour of the father in both applications. In respect of the child, it dismissed the mother’s application for his care. She was granted access one day a week, namely every Saturday from 9 am to 5 pm. 34.On 15 November, the child spent time with the mother pursuant to the order. 35.On the same day, the mother filed an appeal against the judgments of the Shanghai court. 36.On 23 November (Saturday), the child had overnight access with the mother. The mother did not return the child to the father that weekend. 37.On 25 November (Monday), she and the child left the mainland, without informing the father. It appears that the mother had used the child’s birth certificate to leave the mainland and enter Hong Kong. At that time, the child was in the middle of the school term. It is this unilateral removal of the child from Shanghai to Hong Kong which has led to the wardship proceedings. 38.On the same day, the mother took the child to the Immigration Department in Hong Kong to apply for a replacement HKSAR passport. The mother had in fact booked flights tickets for her and the child to travel to London and Oxford on 30 November to meet an education consultant. 39.The father learnt of the whereabouts of the child shortly afterwards. He commenced the wardship proceedings in Hong Kong a few days later, on 30 November. PROCEDURAL HISTORY 40.Since that date, the parties had appeared before me five times prior to the substantive hearing. 41.On 30 November, the father took out an urgent ex parte application for an order that the child be made a ward of the court and for injunctions restraining the mother, among other things, from collecting any travel document of the child and from taking him out of the jurisdiction of Hong Kong pending further order of the court. I adjourned the application to the following day for the father to give notice of the application to the mother. 42.On the following day, 1 December, the mother appeared by her former legal representatives at the adjourned hearing. She gave an undertaking to return the child to the father at 3 pm on that day at the lift lobby of a residential building in Kowloon Tong, where she and the child were staying. At the conclusion of that hearing, I granted the father’s application. I fixed a return date hearing on 11 December. 43.However, the handover scheduled for that afternoon was unsuccessful. The child refused to go down to the lobby to see the father. That led to the father taking out another urgent application on 3 December, seeking an order that the mother do return the child to him forthwith and that the bailiff be directed to collect the child and deliver him to the father. 44.I heard that application on 6 December. As there was no time to obtain a social investigation report, I met the child in the morning of that day in order to ascertain his wishes on whether he would prefer to go back to the father or stay with the mother while he was in Hong Kong pending the resolution of the legal proceedings. The child expressed to me his wish to stay with the mother. Later that afternoon, I delivered my decision orally: see [2025] HKCFI 363. I ordered the mother to return the child to the father forthwith. I further ordered that the interim care and control of the child be granted to the father. I met the child for the second time to explain the decision to him. 45.After my second meeting with him and as he went back to join the mother outside the courtroom, the child became very emotional. As a result of the emotional outburst, counsel for the mother immediately requested a stay of my order on interim care and control. I acceded to the request and directed that the interim order be stayed in light of the potential medical situation which the child might be in until the return date hearing on 11 December or further order of the court. 46.That evening, the mother took the child to the Hong Kong Sanatorium Hospital. The doctor reported that he presented with features of post-traumatic stress disorder. The doctor advised that the child should avoid any emotion triggering event until further assessment by a psychiatrist and psychologist. That would be the beginning of a series of medical consultations which the child attended in Hong Kong. 47.On 11 December, at the return date hearing, I gave directions for the filing of evidence and the fixing of the substantive hearing for the wardship proceedings. I also imposed a deadline for the mother to take out an application under the Hague Convention and gave consequential directions if one was taken out. I also gave directions with regard to the appointment of a single joint expert, Dr Kristie Craigen, clinical psychologist. 48.At the same hearing, I refused to grant leave for the mother to appeal against the decision which I made on 6 December: see [2025] HKCFI 364. But I imposed a further stay of the interim care order in light of the child’s refusal to go back to the father and his psychological condition, as recorded in the various medical certificates produced by the mother at the hearing. Instead I ordered that the father should have phone, video calls and/or messaging contact with the child on a generous level within reasonable limits. I appointed Dr Adrian Wong, clinical psychologist, as the treating psychologist for the child and directed that he should evaluate his condition, to give treatment where appropriate, and to advise on steps to re-establish contact between the child and the father. 49.On 18 December, the mother commenced the Hague proceedings. 50.Notwithstanding my order made on 11 December, the father was not able to have any contact with the child until 3 January 2025 when a short video was sent to the child’s phone. But the child did not reply. 51.In the meantime, Dr Craigen issued her single joint expert report on 17 January 2025 (“the SJE report”). 52.At the court’s initiative, a directions hearing took place on 21 January 2025. By then, the parties had completed their evidence. The evidence refers to various medical consultations the child had had since 6 December. 53.Together with the SJE report, they reveal that the child is experiencing psychological and emotional issues. These issues need to be attended to and addressed with care. This is to ensure the child’s well-being. They should also be at the forefront of the court’s mind when putting in place suitable protective measures to accompany the return order which is to be made. 54.At the directions hearing, in light of this, I appointed the Official Solicitor to represent the child in these proceedings as I wished to have an independent opinion on this matter. I directed the Official Solicitor to file a report on (1) the evaluation and analysis of the evidence filed in these proceedings, and (2) the protective measures which were to be proposed by the father and the mother for the return of the child to either Shanghai or Japan. 55.As regards interim access, in light of the favourable opinion expressed by Dr Craigen on the relationship between the father and the child, the father applied for, and I granted, an order that he do have interim access on the upcoming Friday and then every Wednesday. The arrangement was that the mother should deliver the child to the staff of Rent-A-Mum, a company offering services in child dispute cases, at the lobby of Mandarin Oriental Hotel in Central (where the father is staying whilst in Hong Kong), and then for the father to collect the child. The father was to spend two hours with the child in the presence of the staff from Rent-A-Mum. 56.24 January was the scheduled date for the father’s first access. However, like previous occasions, the attempt for the father to see the child in person was not successful. The child ran out of the hotel lobby upon seeing the staff of Rent-A-Mum. THE EVIDENCE 57.The evidence before the court at the substantive hearing comprises the affirmations made by the father and the mother and the SJE report. 58.In addition, in the Hague proceedings, the burden is on the mother to show that as of 3 August 2024, she had rights of custody over the child under Japanese law. By an earlier order, I directed the mother and the father to produce evidence on this, particularly taking into account the divorce agreement in 2016. The parties have each filed a Japanese legal opinion. The two Japanese counsel have reached opposite conclusions on the issue. 59.Lastly, also before the court is the report made by the Official Solicitor dated 4 February 2025. At the directions hearing on 21 January 2025, there was a discussion on the scope of the report to be compiled. Given that Dr Craigen had already given her opinion on the child’s wishes and given further that there was a concern that the child was already seeing a number of doctors, as directed by the court, Ms Eunice Ip, of the Official Solicitor’s Office, was not asked to interview the child. Instead, she would talk to the treating doctors who are presently seeing the child, namely Dr Phyllis Chan, the psychiatrist, and Dr Adrian Wong, the clinical psychologist, in order to comment on the protective measures which should be put in place. 60.The report of the Official Solicitor has therefore been prepared on that basis. In the report, Ms Ip related what the two treating doctors said about the child’s medical condition. 61.The primary factual dispute revolves around the circumstances in which the children left Shanghai and studied in Japan from August 2023 to June 2024, and the intention of the father and the mother as to the children’s stay in Japan. Was it the case, as the father now contends, that he and the mother had agreed that the children would stay in Japan for one year only and, subsequently, in light of the arrest of the maternal grandparents, he and the mother made the conditional agreement? Or, was it the case, as the mother contends, that the plan, as agreed by the father and the mother all along, was for the children to stay in Japan for the long term? 62.This factual dispute will need to be resolved. This is because the parent’s intention as to where the child should live and whether, and if so how, that intention had had an impact on the actual living arrangement is a relevant factor when determining the place of habitual residence in the Hague proceedings: LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 at para 7.7(6). This is also directly relevant to the defence of consent raised by the father under Article 13 of the Hague Convention. 63.In resolving this dispute, I have the benefit of reviewing text messages which the father and the mother exchanged with each other during the material period, ie from 2022 onwards. There are also text messages sent to other parties and some emails. These are contemporaneous documents against which the parties’ factual cases, where they differ, can be tested. 64.I shall now set out their cases in more detail below. One background to bear in mind is that at the relevant time, the COVID-19 pandemic was ongoing and lockdown measures were in place in the mainland (and elsewhere). One would therefore see references to lockdown (“封鎖”), online school (“上網課”) and COVID testing (“核酸”). FROM APRIL 2022 TO AUGUST 2024 65.It is common ground that the idea of having the children stay in Japan first came up in about April 2022. In an exchange of text messages on the 22nd of that month, the mother and the father casually discussed the low prices of hotels in Japan for the mother’s upcoming trip. During the conversation, the father jokingly suggested that the mother might as well buy an apartment in Ginza, Tokyo. The mother then told the father that she had already purchased a property somewhere in Tokyo. 66.I reproduce below the text messages around that time showing that discussion. One can see that the discussion then revolved around the possibility of obtaining foreign passports for the children:
The father’s case 67.It is the father’s case that from at least April 2022, the mother was concerned about the risk of a corruption investigation against her stepfather, and the possibility that she or her mother might be called in for questioning by the mainland authorities. As a result, the mother began planning to obtain Japanese and Portuguese citizenship for herself and the children. Her family started to purchase properties in Japan and Portugal. 68.It is further the father’s case that by November 2022, the mother started proposing that the children spend one school year in Japan, with only six months out of Shanghai. The father had reservations about being separated from the child. He communicated those reservations with the mother. 69.The father relies on the following text messages sent on 4 November to show that he had from the outset raised his concerns about the move to Japan and that the mother had tried to address his concerns by suggesting that the father could go to visit them in Tokyo and the children could go back to Shanghai during school breaks. She mentioned that school time was only about six months in a year:
70.Although the father did not to agree to her plan, the mother proceeded with her own move. She purchased a three-bedroom duplex apartment in Tokyo and started to set that up as a home in December 2022. In fact, the mother was assisted by the father in the process. 71.It will be recalled that the father is in the furniture business in the mainland. He offered to send furniture to the mother for use in the Tokyo flat. In the course of asking for the dimensions of the flat, the father reiterated on 30 November that he was not ready for the children to move to Japan on a long-term basis. The chain of this conversation started a few days earlier:
72.In January 2023, the mother texted the father saying that she needed a false divorce agreement which should state that she would raise the children, that would make things easier, but that the agreement would have no legal effect. The mother wanted to put in applications for both Japan and Portugal. The father replied that he would follow up. But, once again, he repeated that he did not agree to the children going to Japan that year as they were too young and he did not want to be separated from them. He suggested that he would bring the children to stay with the mother during holiday for a bit longer. The text messages read:
73.Further messages were exchanged in the following months. The mother made references to [School T] saying that it had a very good reputation. In March 2023, she asked the father to take the children to Japan in May to activate the process of obtaining permanent residency. The father signed the relevant forms. 74.Then, on 4 April 2023, the father and the mother had further discussion about plans for the children. The father was still objecting to them going to Japan in September that year. He was simply assisting the mother to help the children secure residency status. The mother tried to reason with him by saying that the children needed only to stay in Japan for 180 days in one year, the children were getting into the best school, and at the same time they could secure the permanent residency status. He asked the father to treat that as a “gap year”. The text messages read:
75.On 13 April 2023, the father and the mother exchanged further messages. The father repeated his objection, and expressed his reservation on the need to obtain permanent residency for the children. The mother disagreed. She expressed her dissatisfaction with the situation in the mainland, namely the lockdown measures and the online learning for the children. She repeated that the children would be going to the best school in Japan and they could get hold of the permanent residency status while doing that. She said that the immigration scheme would not be available later. See the text messages:
76.In the meantime, the mother continued her efforts to apply for Portuguese residency for the children. On 20 April 2023, she sent to the father statements to sign for the visa application. 77.On 8 May 2023, the father and the mother had another exchange of messages about relocating the children to Japan. The mother emphasised that the opportunity was one off and said that it would provide the children with an alternative. She stated: “Study one year, with half a year back to the country and half a year studying”. The father expressed that he understood but he still had concerns, which he wanted to discuss with the mother face to face. The text messages read:
78.There was another exchange on 12 May 2023. The father asked the mother to confirm whether it was indeed the case that one year would be sufficient for the children to obtain permanent residency in Japan. The mother confirmed it. She added that it would take in total three years to obtain the passport but there was no six-month requirement for the last two years. 79.Then, finally, on 30 August 2023, the father sent the mother a message referring to an earlier agreement that the children should go to Japan but only on the basis that the formality would be completed within one year. He stated that he would totally not accept that the children would stay in Japan for a second academic year and if that was the case, he would choose to give up the residency. The mother replied that she would add the father into a group with the lawyers and they could try to speed things up.
80.It is therefore the father’s case that the parties agreed that the children could temporarily go to Japan on the mother’s promise that the passport formalities would be completed after the year and the children would then be back in Shanghai. This would be “the initial agreement”. 81.In August 2023, the mother and the children relocated to Japan, with the consent of the father and on the basis of the initial agreement. 82.There was ongoing discussion about the plans for the children. In messages exchanged on 30 September, the father made his point again that the children would return to Shanghai in June of the following year, and that even if they had to give up the passports, it would make no difference to them. He wrote:
83.The father made the same point again about the scheduled return in June and the passports on 3 October.
84.The father regularly visited the children in Japan. He went there every two weeks during the academic year. Save for the first term break in October 2023, the children went back to the father in Shanghai every school holiday, namely December 2023 (Christmas break), February 2024 (about one week), March to April 2024 (about two weeks), May 2024 (about one week) and, lastly, June 2024. 85.On 14 March, the mother’s fears about her parents finally came true. They were arrested and detained by the authorities for corruption and embezzlement. 86.On 1 May, the father reiterated to the mother that the children would return to Shanghai in June. But he offered to bring them to visit her in Japan regularly. The mother said that she did not have the freedom to travel and complained that what the father suggested was inhumane.
87.On 17 May, the father raised another possible plan for the children, namely for the child to stay in Japan for one more academic year, subject to certain conditions, and for the sister to return to Shanghai as planned. But nothing came out of that. 88.On the same day, the mother left a voice message for the father’s mother. She pleaded with the grandmother to let the children stay with her, given that she could not go back to the mainland.
89.It is the father’s case that later that month (May 2024), he and the mother reached the conditional agreement, namely that the children would return to Shanghai in June for the summer and if both of the mother’s parents were still retained by the authorities at the end of the summer, the children would stay with the mother in Japan until one of her parents were released. 90.The children returned to Shanghai for the summer on 27 June. 91.As it was unknown whether and when the mother’s parents would be released, the parties proceeded in accordance with the conditional agreement. The father paid half of the [School T] school fees on 15 July. And it was planned that the children would return to Japan on 17 August to start another academic year. 92.It is the father’s case that on 29 July, the maternal grandmother was released by the authorities. 93.Accordingly, on 3 August, the father informed the mother that the children would stay in Shanghai as originally planned. He wrote:
The mother’s case 94.On the other hand, the mother’s case is that there was all along a clear intention for the children to relocate from Shanghai and set up a new home in Tokyo on a long-term basis. The intention was implemented. In fact, the father actively assisted the mother in the process. 95.She said in her affirmation:
96.She denies that there was ever an agreement that the children would stay in Japan for one year only. She refers to the contemporaneous text messages, including the ones quoted above, and makes the point that she never said anything or made any promise to that effect in those messages. As regards the various references to a one-year stay in Japan, the mother explained in her affirmation that the messages were in fact referring to her application for permanent residency which could be expedited to one year due to her high score under the immigration scheme. As for the children, they would have to stay in Japan for at least two years. As of the date of her affirmation, they had not yet obtained their permanent residency. 97.She says that her case is supported by the following matters. 98.In June 2022, she applied and received an offer to work for an IT company in Tokyo as a consultant. In the following month, she applied for a work permit which was approved in October. 99.In early November 2022, she attended an open day at [School T]. With the father’s cooperation, the mother enrolled the children in [School T]. The father paid half of the tuition fees. 100.In December 2022, the mother went to Japan to purchase the Tokyo flat for her and the children to live in. Later, she purchased two other properties in Tokyo for investment purposes. 101.Between December 2022 and January 2023, the father and the father’s mother also visited Japan together with the mother and the children to set up their lives there. 102.Between January and August 2023, the mother shuttled between Shanghai and Tokyo to prepare for the relocation, including setting up the home in the Tokyo flat. 103.The father agreed to the children applying for permanent residency in Japan. On 16 March 2023, the father signed the form for the children’s Japanese residence cards. The mother also asked the father to bring the children to Japan to activate the permanent residency process. 104.In June 2023, the father, on his own initiative, hired a Japanese tutor for the children so that they could start learning Japanese in Shanghai prior to the relocation. 105.In July 2023, the mother asked the father whether the children should do half French and half Japanese at [School T]. The father replied of course 100% Japanese. 106.The children withdrew their school places at [School S]. The mother highlights the fact that there was no reservation at [School S] for the following academic year. 107.All the mother’s and the children’s belongings from the mother’s place in Shanghai were shipped to Japan, leaving only old furniture and belongings. The mother’s place in Shanghai was then put on the market for sale. She laid off her driver and helper in Shanghai. 108.In late August 2023, when the mother and the children left Shanghai for Tokyo, they travelled with four huge suitcases, which contained the children’s belongings and their cellos. 109.The Tokyo home was fully set up, renovated and decorated. The father in fact sent some custom-made furniture to them. The mother hired a helper to assist with the housework. 110.From August 2023 to June 2024, the children lived in Japan for about 11 months. They attended [School T]. The mother was then a “mid to long-term resident” in Japan with permanent resident status. The child was also a resident and was covered by Japanese medical insurance. Tokyo was clearly their settled home. The child fully integrated into his life in Japan. Copies of photographs showing his daily school lives and social lives were exhibited to the mother’s affirmations.
111.As for the mother, she acquired a lifetime membership, as opposed to a three-year membership, of the Tokyo American Club, a prestigious club frequented by expatriate families in [School T]. The children are dependent members. They used the facilities and hung out with friends there on a regular basis and the staff would recognise them. The mother bought a car. She and the children adopted a two-year-old dog which they named “Muffin”. The children were very attached to Muffin. In addition to the father, the maternal grandmother also visited the children in Japan regularly, coming to Tokyo every month until her arrest in March 2024. In April 2024, the mother’s brother, with whom the children are very close, moved to Tokyo. 112.It is the mother’s case that by the time the children travelled to Shanghai in late June 2024, they had already fully integrated into their lives in Japan. The trip was intended to be a short one. The child left with a small carry-on bag expecting to return shortly to his home in Tokyo. All his belongings were left behind, including his cello, school bags, daily clothes. He was due to return to Tokyo to start a new school year. As the mother initially expected the children to be back on 5 July, she made an orthodontic appointment for the sister in Tokyo on that date. When the return date was changed, she specifically texted the father asking when the appointment should be re-scheduled to. The father replied that as the children would return on 17 August, any day on or after 18 August would do. 113.After the father sent the message on 3 August saying that the children would not be returning to Japan, the mother was extremely shocked, worried and confused. She tried to contact him multiple times. However, he refused to pick up her calls or communicate with her. The mother described her reaction in her affirmation:
114.In fact, on the same day when the father sent the message, the children travelled to Taipei together with the paternal grandmother. On the following day, the father unilaterally enrolled the children in [School S] behind the mother’s back. 115.As the father did not respond, the mother texted the paternal grandmother complaining about the father’s behaviour which was selfish and irrational:
116.The mother also denies that the conditional agreement was ever made. She says that there is not a shred of evidence about this alleged agreement apart from the father’s bare assertion, notwithstanding the extensive messages exchanged between the parties. After the father’s wrongful retention on 3 August, he immediately rushed to enrol the children in [School S]. There was no careful preparation for the alleged conditional agreement. According to the mother, it was this wrongful retention which started the terrible conflict that has turned the child’s life into turmoil. 117.Overall speaking, the mother’s case in the Hague proceedings is that as of 3 August 2024, the child’s place of habitual residence was Japan and he should now be returned there for his care arrangements to be determined by the court in that jurisdiction. She wants nothing more than for the child to return to his normal life in Tokyo, be reunited with his dog and his friends, go back to [School T] where he was happy and was doing well. FROM AUGUST TO NOVEMBER 2024 118.As the children were not returning to Japan, the mother flew to Shanghai on 19 August. This month marks the beginning of the complete breakdown of the relationship between the parties. 119.During the period from August to November 2024, of present relevance are the two incidents which happened on 20 and 28 August. The mother says that what happened on 28 August is one prime example showing that the father has put pressure on the child and put him directly in the conflict between the parents. The incident has been traumatising for the child and demonstrates a terrible lack of judgement on the part of the father towards the well-being of the children. 120.Also of relevance is the care proceedings in the Shanghai court. The father relies on the evidence in those proceedings to show that it was indeed the mother who was applying pressure on the child as she took him to a “mock court” beforehand where he was told what to say. On the other hand, the mother complained that during this period, the father had been taking videos of the children for use in the proceedings in which the children spoke against their mother. The incidents on 20 and 28 August 2024 121.On 20 August, the mother went to [School S] intending to pick up both children. She managed to collect the sister. However, she was prevented by the paternal grandparent to pick up the child. 122.On 28 August, the father went to the mother’s flat to retrieve the sister. The child was brought along because, according to the father, he knew the way to get up to the flat. The mother was not at home but her boyfriend was there. 123.The mother’s account is that the father physically snatched the sister away with a group of four unknown men. The child witnessed the events as they unfolded. This included the father and the other men violently fighting off the mother’s boyfriend. 124.Both the father and the mother rely on the CCTV footage showing the inside of the lift and the lift lobby outside the mother’s flat. The mother says that it shows quite a shocking account of the violent encounter and the child was placed right in the centre of the violent scuffle. The father however says that the footage shows that the boyfriend in fact forced his way into the lift and that all along the sister was standing in the corner of the lift, not being forced or restrained in any way by the father. 125.According to the mother, the child later told her that his legs went weak during the incident. The incident shows the extreme lengths the father would go. To drag the children away from the mother was disproportionate and violent. 126.The mother says that after the incident, she was unable to communicate with the children. In the meantime, the father had been making videos of the children in which they said that they did not want to call the mother and that she was crazy. The care proceedings in Shanghai 127.The care proceedings in Shanghai also commenced on 28 August. Both parties were legally represented. 128.At the court’s directions, the parties negotiated and came to an agreement on interim child arrangements. On 10 September, they signed the interim agreement. 129.The mother says that it was only after the signing of the interim agreement that she was able to see the children together for the first time after the incidents in August. To her dismay, the mother found numerous tracking devices on the children. She also noticed that the children behaved differently and in a reserved manner, especially in the child’s case. Recognising that they were suffering, the mother arranged for the children to receive therapy. 130.The hearing of the care proceedings took place on 31 October. After that, the mother says that she was suddenly unable to have any access with the children at all. 131.On 6 November, the court handed down the judgments for both care applications. The judgments reveal that the child had attended three interviews for the purpose of the proceedings. As recorded in the judgments:
132.The court found that there was no evidence of interference with the child’s views from the father but there was evidence of interference from the mother. It also found that the child indeed preferred to live with his father in Shanghai. The court ordered that care of the child should remain with the father, with access given to the mother one day per week. 133.The father contends that the evidence before the Shanghai court shows that the mother had been pressuring the child. Furthermore, the father points out that in the care proceedings, the mother did not apply for the child to go to Japan. In fact, at that time, she claimed that she did not plan to settle in Japan. This is how the judgment recounted the mother’s intention:
134.The mother then lodged an appeal against the judgments. In her notice of appeal dated 25 November, she said that she clearly stated in the proceedings that she had no intention of settling in Japan and yet the judgment subjectively speculated that she had such an intention. She criticised that as absurd. That ground of appeal read as follows:
135.The position taken by the mother in the care proceedings is of course directly contradictory to her position in the present proceedings (see para 117 above). 136.On this contradiction, she explained in her affirmation:
137.Furthermore, based on the PRC legal advice which the mother receives, given that the judgments are under appeal, they are not effective yet. The significance is therefore that as of this date, there is no existing or legally effective order on the custody and care of the child in any court. 138.Contrary to the access terms ordered by the court, the mother was only able to see the child for half a day on 17 November and then on 23 November for overnight access. The mother took the child to Hong Kong on 25 November 2024 without the consent of the father 139.On 24 November, the father received a text message from the child’s phone saying that he would be skiing for two days with the mother. Upon receiving that, the father tried to call him but his phone was turned off. The father then texted the mother saying that she could take the child to ski during school holidays but not in the middle of the school term. The child never called back the father. 140.As it turned out, the mother did not take the child to go skiing. Instead, on 25 November, she took the child to Hong Kong. As the latter’s travel documents had been lodged with the Shanghai court under the interim agreement, the child entered Hong Kong through the Lo Wu immigration control point using his birth certificate. 141.The mother explained why she did this in her affirmation:
142.Ms Mairéad Rattigan, SC, who represents the mother with Ms Terri Ha, submits that this was a desperate response to the father’s total obstruction of access and the emotional distress caused to the child. The mother felt compelled to resort to such drastic actions in order to protect the child’s well-being. 143.On the day they arrived in Hong Kong, the mother took the child to the Immigration Department and applied for a replacement HKSAR passport for him. The plan was for them to travel to the UK later in the week to meet an education consultant there, using the new passport. 144.According to the father, his solicitors were informed by a senior immigration officer of the Immigration Department that the mother claimed that the original passport was lost. 145.Shortly after the commencement of the wardship proceedings, I directed the mother to explain a number of things on affidavit, including why she brought the child to Hong Kong. On 4 December 2024, I also directed the mother to explain “the circumstances in which she applied for the replacement HKSAR passport for the child”. She was reminded of her right to claim privilege against self-incrimination. 146.The mother has filed five affirmations in these two sets of proceedings. I should put on record that she did not provide any explanation about the passport in any of the affirmations. Nor did she ever claim privilege. THE MEDICAL CONDITION OF THE CHILD 147.It is plain that the child has gone through a lot in the past six months since August 2024, whether on the father’s or the mother’s account of events. He is experiencing emotional and psychological issues. There is no doubt that his current medical condition should be at the forefront of the court’s mind. This is so that proper orders are made to ensure that he is receiving proper treatment, if so advised professionally. His medical condition is also material in that both parties are saying that if he is to be returned to the other party, the child would suffer and that he would be exposed to further psychological harm or be placed in an intolerable situation. The mother’s case 148.The mother says that before August 2024, the child was having a happy life living and studying in Tokyo. Because of the father’s wrongful retention, the child’s world has been turned upside down. He has gone from being a happy and energetic adolescent to being emotionally distraught, anxious, angry and suffering from the effects of PTSD. He also refuses to see the father. While he is in Hong Kong, all the attempts for him to meet the father in person have failed. 149.The mother claims that it is the father who has placed the child directly in the conflict and in a loyalty bind, having to choose between his parents. He has made him make videos and speak against the mother. Ms Rattigan describes what the father did as “simply terrible”. As a result, the child is suffering immensely. 150.According to the mother, after his emotional outburst at court on 6 December, the child had several panic attacks, nightmares and showed self-harming tendencies over the next few days. To date, the child has been taken to see a total of eight medical professionals, including psychiatrists and clinical psychologists. The mother highlights the following:
151.The latest development is what happened on 24 January, which is the day scheduled for access with the father in the presence of the staff from Rent-a-Mum. According to the mother, the child woke up at 4 in the morning feeling extremely anxious. On his way to the Mandarin Oriental Hotel, the child said he felt short of breath. In the end, he ran out of the hotel lobby without even seeing the father. He threw up and kept scratching himself. 152.The mother says that the father’s conduct clearly has contributed to the child’s present psychological state. Worse still, the father seemed to be unwilling for the child to consult medical professionals and take medication prescribed by the doctors, as shown in the solicitors’ correspondence in December 2024. Fortunately, the mother persisted with the treatment and according to her, the child’s condition had been improving. 153.The mother’s view is therefore that she is best placed to oversee the medical consultation process to ensure that the child receives proper treatment. On this, Ms Rattigan states the concerns of the mother as follows:
The father’s case 154.On the other hand, the father’s view is that the child is suffering while in the mother’s care. The mother has inflicted serious psychological harm on the child. The father highlights that the mother had put the child under fear and pressure in the course of the Shanghai proceedings. She took the child to a mock court and coached him to say things in her favour. Since abducting the child to Hong Kong, the mother has embarked on a process of alienating him from the father. Otherwise there is no reason why the child would refuse to see him at all. 155.The father’s position is that if the child is sent to Japan, there will be no protective measures that can properly safeguard him against the mother’s behaviours pending orders of the Japanese court. The father cannot move to Japan. The sister is in Shanghai and his job is also in Shanghai. There is no reason to think that the mother’s behaviour would change in Japan. 156.That is the defence raised by the father under Article 13 in the Hague proceedings. The SJE report 157.Dr Craigen set out her opinions in the SJE report after interviewing the father, the mother and the child. I set out below her material observations and findings on the psychological condition of the child. 158.The child exhibited an “extremely elevated” level of anxiety, an “extremely elevated” level of depression and a “moderately elevated” level of anger, compared to others of his age and gender. He reported that he “always” worries about the future and that something bad might happen to him. He reported that he sometimes wishes he were dead, always feels stupid and he often feels bad about what he does. He reported that he “always” feels like screaming and he “often” thinks his life is unfair. 159.The tests also revealed a high possibility that he may have a stressor-and-trauma related disorder. He reported being bothered “quite a bit” by repeated, disturbing memories, thoughts or images of stressful experiences from the past, feeling as if a stressful experience were happening again, repeated disturbing dreams of a stressful experience from the past, difficulties concentrating and feeling as if his future would somehow be cut short. 160.The tests revealed notable internalising difficulties. He almost always gets so nervous that he cannot breathe and is excessively worried something bad will happen to him. He is nervous and is unable to relax. He also sometimes feels sad, misunderstood and perceives his life as getting worse and worse (eg I “sometimes” feel life isn’t worth living). He acknowledged that he used to be happier. Moreover, he often experiences minor health related problems, eg headaches, stomach ailments, and/or dizziness. 161.Dr Craigen found that both the father and the mother appear to be caring, loving and invested parents. Historical evidence suggests that the child had been well cared for by both parents. The child’s attachment to both of them is evident. Her evaluation did not reveal any serious concerns regarding the parent capacities of either parent. As regards the relationship between the child and the father, Dr Craigen observed that during the Zoom interview, although the child was initially resistant to speaking with the father, he quickly warmed to him. It was clear that “a deep emotional attachment exists between them as well as his extended family”. 162.However, she found that the child has been suffering from distress of moderate-severe severity and that was caused by the events which began in July 2024 and his emotional and psychological symptoms are largely due to the conflict between the parents. 163.I quote from her summary findings on the cause of the child’s current psychological issues and the ways to resolve them:
164.Dr Craigen stressed that the parents need to find ways to better manage their own high conflict relationship. And this will serve as a foundational building block for the continued development of the child. The Official Solicitor’s report 165.In the Official Solicitor’s report, Ms Ip recounted what the psychiatrist and the clinical psychologist who are currently treating the child told her about his present medical condition. 166.Dr Phyllis Chan, who had met the child twice, was of the opinion that he had mild PTSD and depression symptoms, which were improving after medications. 167.Dr Adrian Wong first met the child on 16 December, and then about once a week. He had concerns about the child being under constant stress and jiggling between the parents due to their conflict and the ongoing proceedings. He observed that the child was overall stable without much typical anxiety but he was noted to have very frequent eye blinking. THE CHILD’S WISHES 168.According to the mother, the child has expressed strong objections to going to Shanghai with the father. His objection can clearly be seen from his immediate reaction after being informed that he should go back to the father while he was in Hong Kong in court on 6 December. The mother says that his emotional breakdown directly led to his diagnosis of PTSD. The SJE report 169.In his interview with Dr Craigen, the child said that he wanted to return to Japan with the mother. He gave four reasons:
170.Dr Craigen is of the opinion that there are doubts as to the authenticity of the child’s stated wish which was “likely to have been shaped by the motives of others” and that the child presented as a child who had his “mind-made-up”, meaning that the child is consciously aware that he is campaigning for a particular parent. 171.She gave a number of reasons for her opinion. 172.First, she observed that the reasons which the child gave for preferring Japan were very clear and definitive reasons which he repeated in the interview. There was a “rehearsed quality” to his statements. 173.Second, the child was unable to articulate his rationale beyond the repeated recital of the “four rather scripted reasons”, which were almost identical to those shared by his mother during her interview. 174.Third, all children undergoing an evaluation will initially exhibit some degree of apprehension. However, almost all will warm to an experienced evaluator and become comfortable as the evaluation progresses. However, children who feel the need to campaign for a particular parent are of the very few exceptions. Dr Craigen observed that the child remained rather tense throughout the evaluation, kept to “the script”, made only fleeting eye contact, and resisted overtures of friendliness. 175.Furthermore, while the cognitive tests showed that the child is an intellectually capable boy and can engage in sophisticated reasoning process, Dr Craigen is of the opinion that it would be premature to overestimate his ability to fully comprehend the psychological and emotional impact his decisions may have, given his young age. This is because he has only begun the process of developing his higher-order critical thinking and reasoning skills. His immaturities in this area were evidenced by his inability to communicate an adequate understanding of the broader issues at hand. He was also unable to demonstrate an appropriate level of awareness of the potential long-term impact, risks and/or consequences his decision may have on his mental well-being and relationships with key family members in the future. The Official Solicitor’s report 176.In her report, Ms Ip stated the child’s wish, as related to her by Dr Phyllis Chan and Dr Adrian Wong. 177.Dr Chan observed that the child felt closer to the mother and would like to live with her, but it really did not matter to him whether it was in Shanghai or Japan. The child was also fine with the sister and the family members of the father’s side. Dr Chan reported that according to the child, the father would get angry easily and sometimes verbally or physically abused him by pinching his shoulders or beating him with a hanger, when he did not follow the father’s instructions. 178.Dr Wong reported that the child loved both the father and the mother, but he did not feel comfortable whenever he thought of the father. The child himself seldom proactively mentioned any bad things about the father, which were instead mostly reported by the mother. 179.Upon enquiry, Dr Wong recalled that the child did mention about the father pinching his shoulders or beating him with a hanger. However, Dr Wong did not consider that there was any cause for concern as it was just a general comment made by the child. Also, he did not appear to be very traumatised when relating the information. Dr Wong had doubts about the validity of these statements and wondered if the child’s views had been coloured by others. 180.Lastly, Dr Wong observed that the child was not actually passionate in returning to Japan. Put it another way, he just had no objection to going to Japan. THE HAGUE PROCEEDINGS 181.I shall first deal with the mother’s application in the Hague proceedings. 182.The objective of the Hague Convention is to ensure the prompt return of children who had been wrongly removed by one parent against the wish of the other parent to another country, back to the country of the habitual residence of the children so that the courts of that country may determine the question of custody and residence of the children on the basis of a full welfare investigation: LCYP v JEK at para 6. 183.Articles 3, 12 and 13 of the Convention are presently relevant. I reproduce the contents below:
184.The mother’s case is that as of 3 August 2024, the place of habitual residence of the child was Japan, and the father had wrongfully retained him in Shanghai as from that date. She asks for a return of the child to Japan under Article 12. 185.Mr Shaphan Marwah, counsel for the father, submits that as of 3 August 2024, the mother did not have any rights of custody over the child under Japanese law. The Convention is therefore not engaged. Furthermore, he submits that as of that date the child’s place of habitual residence was Shanghai, not Japan. Hence, the Convention does not apply. Alternatively, if the child’s place of habitual residence was Japan, the father raises three defences under Article 13. First, he contends that the mother had given her consent for him to remain in Shanghai pursuant to the conditional agreement. Second, as an alternative, she acquiesced to the child remaining in Shanghai. Third, if the child is sent to Japan, there is a grave risk that he will be suffering in the mother’s care and exposed to psychological harm or placed in an intolerable situation. 186.As the evidence reveals, the main point of contention is the habitual residence of the child as of 3 August 2024. Legal principles on habitual residence 187.The leading authority in Hong Kong on the issue of habitual residence is the Court of Appeal’s decision in LCYP v JEK. I reproduce below the general principles set out in para 7.7:
188.As regards the requisite degree of integration (sub-para (4)), it is to be noted that the criterion does not require the child’s full integration in the environment of the new country which he moves to but only a degree of it. In certain circumstances, the requisite degree of integration can occur quickly: Re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 at para 39. 189.As regards the issue of parental intention (sub-para (7)), it is important to understand how it operates as a relevant factor. The modern approach of determining habitual residence is to adopt a child-centred approach. It is the child’s habitual residence which is in question. It is the child’s integration which is under consideration. These questions are not necessarily determined by the decisions of his parents. It is not a question of the parents determining the habitual residence of the children. It is a question of looking at the impact which the parental decisions about where the children will live have on the factual question of where the children habitually beside: Re LC (Children)(Reunite International Child Abduction Centre intervening) [2014] AC 1038 at paras 62 and 64. 190.In that case, Baroness Hale explained, at para 62, the different impact a parental decision may have, depending on the individual circumstances of the child in question:
191.As regards the situation concerning a child who has moved from one country to another (sub-para (7)), the question before the court then becomes at which point in time the child has lost habitual residence in the original country and gained habitual residence in the new one. The modern concept operates in the expectation that an old habitual residence is lost when a new one is gained. It is clear from the authorities that this question remains overarchingly a question of fact: Re B at paras 45 and 46. 192.Among the factors that the court is entitled to look at is the past history of the child in question. In Re LC, Baroness Hale explained, at para 63:
193.In Re B, Lord Wilson offered the following guidance, at para 46:
Legal principles on consent 194.The principles on consent are well-established. 195.In EW v LP HCMP 1605/2011, 31 January 2013, Deputy High Court Judge B Chu (as she then was) explained, at para 37:
196.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. Legal principles on the approach to the evidence 197.Proceedings under the Hague Convention are summary in nature. They are designed to provide a speedy resolution of disputes over children. It is not the general practice to admit oral evidence at the substantive hearing and the court is to decide the case on affidavit evidence only. In fact, it has been said that the admission of oral evidence in Convention cases should be allowed sparingly: Re F (A Minor)(Child Abduction) [1992] 1 FLR 548 at 552 to 553. 198.Where there is irreconcilable affidavit evidence and no oral evidence is available, the approach of the court in resolving the factual dispute is well-established. See Re F at 553:
The factual dispute over the parties’ intention 199.The intention of the father and the mother from about April 2022 to 3 August 2024 as to where the child should live is in dispute. This factual dispute needs to be resolved first. While the resolution of this dispute will not dictate the answer for the habitual residence of the child, once the intention is found, the court is to look at what impact it has, if any, on the life of the child: Re LC at para 64. 200.The father and the mother put forward starkly different accounts on this factual issue. There is no oral evidence adduced before me. I shall analyse the affidavit evidence by applying the approach stated in Re F. 201.In theory, the first task is to determine who bears the burden of proof. Does the father bear the burden to prove his case on the initial agreement and the conditional agreement? Or, does the mother bear the burden to prove her case that the move to Japan was on a long-term basis? 202.In the present case, it is unnecessary for me to determine with whom the burden lies. This is because even assuming that the father bears the burden, I am satisfied that on the balance of probabilities, he has discharged the burden with cogent evidence and made out his factual case on the issue of intention. I arrive at this conclusion for a number of reasons. 203.First, the father’s case is on the whole coherent and internally consistent.
204.Second, the father’s case is on the whole well supported by contemporaneous text messages exchanged between the parties. The messages really speak for themselves. In my view, they are cogent and clear evidence in support of his case. I have already quoted the messages at length above. I shall now extract the relevant ones which corroborate the material aspects of the father’s case as set out in the preceding paragraph. 205.As regards sub-para (1), the father expressed his concerns not only once, but many times. He also repeated his concerns in different contexts, and not only before and but also after the children’s move to Japan. See, for example, the following messages:
206.As regards sub-para (2), see the following messages from the mother:
207.As regards sub-para (3), see the following messages from the father:
208.As regards sub-para (4), see the following messages from the father. He was consistently clear that the stay would only be for one year:
209.As regards sub-para (5), see the following messages from the mother. She herself stated unequivocally that the stay would not be for more than half a year:
210.As regards sub-para (6), see the following messages from the mother:
211.The mother’s main submission regarding these messages is that she never said the move would only be for one year. I do not think there is any merit in this submission. The messages need to be read in context. I have the benefit of having before me the extensive correspondence exchanged between the parties during the material time. It is clear from the overall chain of correspondence that initially (and up to May 2024) the parties jointly intended that the children would only study in Japan for one academic year. In fact, the messages show that the mother was the one who gave the assurance on this, as she was trying to persuade the father to let the children go to Japan in order to get the passports. 212.Ms Rattigan makes the criticism that the father’s case on the conditional agreement is wholly unsupported by evidence. The only reference in the messages to the arrangement is in the text sent by him on 3 August. But that was after the alleged agreement was made. She also points out that the father has failed to pinpoint any specific date when the conditional agreement was reached. 213.I accept these comments as fair to an extent. The conditional agreement is alleged to have been made in May 2024. Therefore, the text message of 3 August cannot be regarded as a piece of contemporaneous document. In fact, that is the day on which the mother says the father reneged on the agreement. There is therefore no direct documentary evidence showing the alleged contents of the conditional agreement. 214.However, there is undisputed evidence corroborating the background leading to the making of the conditional agreement. And that is the arrest of the mother’s parents and the mother’s own view that she could not travel to the mainland after her parents’ arrest. In addition, the rationale for making the conditional agreement is inherently plausible. This lends support to its credibility. 215.Third, the mother’s factual case is internally contradictory and is also directly contradicted by the contemporaneous documents in a number of material respects. 216.Her allegation that the move from Shanghai to Japan in August 2023 was intended to be on a long-term basis is directly contradicted by what she said in the Shanghai proceedings. As late as in November 2024, when she launched her appeal against the Shanghai judgments, she was still repeating that she did not intend to settle in Japan. See paras 133 to 134 above. In these proceedings, she stated on affirmation that the reason she said so in the Shanghai proceedings was because of the legal advice that she was given. See para 136 above. Simply put, she told the Shanghai court something that she knew to be false in order to get what she wanted. 217.If what she now says is true, that means she was lying about her intention to the Shanghai court back in October and November 2024. If what she said to the Shanghai court then is true, that means she is now lying to this court. It is simply impossible for me to tell when (if at all) she is telling the truth and when she is not. As such, I am not able to give any weight to her present assertion that the move to Japan was for the long term. That is a bare assertion. She has not pinpointed any single contemporaneous document which is in support of that. 218.The mother also makes the allegation that the father wanted the children to obtain permanent residency in Japan: see para 95 above. This allegation is contradicted by the contemporaneous messages which show that the father was in fact not enthusiastic about securing foreign passports for the children and that he was quite prepared to give them up if that involved keeping the children in Japan for more than one year. See the messages quoted in para 207 above. 219.On the whole, I find that the mother’s account of events is unreliable in a number of material respects. 220.For the above reasons, I find that the father’s account on the intention of the parties regarding the children’s stay in Japan to be true. I find that the initial agreement and the conditional agreement were indeed made as alleged by the father. Habitual residence 221.The child had lived in Shanghai for all his life until August 2023 when he moved with the sister and the mother to Japan. There can be no dispute that before the move, he habitually resided in Shanghai. The question now before the court is whether by 3 August 2024, he had lost his habitual residence in Shanghai and gained one in Japan. 222.The mother’s evidence on how she had prepared for the move as early as from mid-2022, how she had set up the home in the Tokyo flat, and how the children had settled into their student, family and social lives since they arrived in August 2023, as set out in paras 98 to 111 above, are factors pointing to the conclusion that by 3 August 2024, the child had gained habitual residence in Japan. The following factors are particularly notable:
223.All the above shows that while the child was in Japan, there was certainly a degree of integration into the lives there. 224.On the other hand, the following factors point to the conclusion that he had not lost his habitual residence in Shanghai as of 3 August 2024:
225.On balance, I find that by 3 August 2024, the child had not yet lost his habitual residence in Shanghai, and accordingly had not acquired habitual residence in Japan. In my view, the fact that the child had lived in Shanghai for his entire life before the move and the further fact that he frequently and regularly went back to his home in Shanghai mean that he had not disengaged from his life in Shanghai. His connection with Shanghai remained a real and substantial one, notwithstanding the amount of time he was spending in Japan. Conclusion on the Hague proceedings 226.I therefore conclude that as of 3 August 2024, the child’s place of habitual residence was Shanghai. The mother’s application in the Hague proceedings therefore fails for that reason. 227.If I am wrong on this and the place of habitual residence of the child was Japan, I would hold that, on the facts as found, the mother gave her consent for the child to remain in Shanghai under the terms of the conditional agreement and she cannot now retract from that. Hence, the father would make out his defence of consent under Article 13. For this alternative reason, the mother’s application would also fail. 228.In light of my conclusion, it is unnecessary to deal with the issue of rights of custody under Japanese law and the defence of acquiescence. THE WARDSHIP PROCEEDINGS 229.I now turn to the wardship proceedings. As remarked at the outset, there is no reason for the child to remain in Hong Kong with which he has no real connection whatsoever. It is a question of whether he should be returned to Shanghai or Japan. The father’s application for the summary return of the child to Shanghai is not governed by the Hague Convention. Legal principles 230.The proper approach to applications for the summary return of children to countries which are not parties to the Hague Convention are set out in the House of Lords decision in Re J (A Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80. 231.The court is to have regard to the welfare of the child as its paramount consideration. The specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Convention case. Notwithstanding that, the court does have the power, in accordance with the welfare principle, to order the immediate return of the child to a foreign jurisdiction without conducting a full investigation of the merits: see paras 25 and 26. 232.“Kidnapping” is to be strongly discouraged. The discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading in proper cases to the prompt return of the child to his own country. There is always a choice to be made between summary return and a further investigation. A judge may well find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there: Re J at para 32; see also Re M (Children)(Abduction: Rights of Custody) [2008] 1 AC 1288 at paras 38 and 39. 233.The law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance. The court should take into account the well-known “welfare checklist”: Re J at para 38. Discussion 234.The child was removed from Shanghai and brought to Hong Kong by the mother unilaterally and without the consent of the father on 25 November 2024. What the mother did was prima facie in breach of the divorce agreement made in 2016 and the interim agreement made in September 2024, and without having any regard to the judgment handed down in the care proceedings by the Shanghai court in November 2024. On a practical level, it disrupted the child’s life in Shanghai and caused his separation from the sister. Shanghai has all along been the child’s home place 235.Save for the time spent in Japan, Shanghai is where the child has lived practically his entire life. This is where his sister is right now. At the time of his abduction on 25 November 2024, he lived in Shanghai and Shanghai was his home. 236.Applying Re J and Re M, the starting point is that it would be in the best interests of the child to go back to Shanghai as soon as practicable and for any disputes about his future to be decided by the Shanghai court. 237.This starting point is reinforced by the fact that the mother has already submitted to the jurisdiction of the Shanghai court since August 2024. Her appeal against the care judgments is in fact ongoing. As submitted by Mr Marwah, since the Shanghai court is already seised of his welfare, that court will be able to resume supervision without delay. 238.There is really no reason why the child should be returned to Japan, as suggested by the mother. He was last physically in Japan in June 2024. Applying a common sense approach, he has a much closer connection with Shanghai than Japan. It is plain that the Japanese court is not an appropriate forum where issues concerning his custody and care should be decided. 239.The Official Solicitor is of the view that the child should be returned to Shanghai so that the Shanghai court can deal with the mother’s appeal and make a determination on the rights and obligations of the parties in relation to the child. I agree with that. The child’s wishes 240.The child expressed his wish to return to Japan with the mother in his interview with Dr Craigen. He also expressed strong objections to going to Shanghai with the father. 241.I accept Dr Craigen’s opinion that the authenticity of the child’s stated wishes is open to doubt. She is the single joint expert. (I should add that she was in fact nominated by the mother’s legal team in one of the directions hearing.) Her opinion is supported by reasons which I consider to be sound and plausible. I therefore find that the child’s wishes as expressed to Dr Craigen were not his authentic wishes. In any event, I also accept her opinion that the child had not yet acquired the maturity of such a degree that his wishes should be taken into account or be given considerable weight. 242.In this regard, it is to be noted that according to both his treating psychiatrist and clinical psychologist, as between Japan and Shanghai, the child does not in fact have a strong preference. The child’s medical condition 243.In these proceedings, the mother has repeatedly expressed her concerns about the harm which may be caused to the child if he is to return to Shanghai with the father. Her case is that the father has played a significant role in inducing the mental trauma from which the child is now suffering. She also says that the father seems to be unwilling to let the child receive medical treatment for his psychological and emotional issues. She fears that returning the child to the father’s care now would risk triggering an extreme emotional reaction with physical violence, and amplifying his physical and psychological symptoms. 244.On the cause of the child’s present psychological and emotional symptoms and the stress which he is experiencing, it is Dr Craigen’s opinion, and I accept, that they are largely due to the conflict between the father and the mother. In fact, Dr Craigen stated in the SJE report that the most serious concern in the present case is that neither parent seems to fully appreciate the child’s need for psychological safety and they do not appear to be aware of the actual cause of the child’s symptoms, namely their conflict. 245.On this issue, I share the Official Solicitor’s observation that the child is at risk of suffering continuing emotional and psychological harm as long as the parents’ conflict persists. 246.Accordingly, I do not find that the child’s symptoms are caused solely by the father. The father and the mother share joint responsibility. They should try their best to agree on a solution to address the care and control issues of the child. The faster they are able to do that, the faster the child’s mental condition will improve. 247.In these wardship proceedings, I do not consider that it is necessary to conduct a full investigation on the merits of the issues of custody and care. In my judgment, an order that the child be returned to Shanghai as soon as practicable would be in his best interests. This would enable the Shanghai court to forthwith proceed with the pending appeal of the mother, decide on the child’s care arrangements and execute its judgment, where appropriate. The speedy resolution of the legal dispute would help extract the child from the conflict between his parents. 248.At the same time, it is of critical importance that the child’s mental health condition should be closely monitored by the medical professionals and treatment be given if called for. The return to Shanghai should be handled with care, with proper steps taken to manage additional stress or symptoms which may be caused to the child in the process. 249.The father has asked the court to allow him to accompany the child back to Shanghai. 250.As regards the relationship between the child and the father, I accept Dr Craigen’s opinion that there is a deep attachment between them. Having said that, it must be recognised that by now there have been a number of failed attempts to reunite the child with the father. The child has shown strong resistance to going back to the father. The most obvious instances are his emotional outburst after the court hearing on 6 December 2024 and his running away from the hotel lobby on 25 January 2025. 251.According to both Dr Phyllis Chan and Dr Adrian Wong, it would be difficult for the child to return to Shanghai with the father only. It would be too much pressure for him. It would also involve a change of carer which is a major factor affecting the child’s psychological well-being. Dr Wong considers that it would be ideal for the mother to accompany the child to travel to Shanghai and to stay with him there during a transitional period. 252.The Official Solicitor shares that view. Conclusion on the wardship proceedings and protective measures 253.The court should therefore order that the child be returned to Shanghai as soon as practicable. The mother should accompany the child back, as advised by Dr Phyllis Chan and Dr Adrian Wong. At the hearing, I asked the mother whether she would follow the advice of the treating doctors in the event that the court ordered a return to Shanghai. Ms Rattigan, on her behalf, replied that she would want to return to her life in Tokyo as her life is in Tokyo, and she would consider the issue further if the order was made. 254.I have found that a return to Shanghai would serve the best interests of the child. To implement that, the professional medical opinion is that the mother should return with the child. The mother has repeatedly expressed her worry in these proceedings that an order returning the child to the father’s care would trigger an emotional breakdown and worsen his PTSD. For all these reasons, it is entirely reasonable to expect that the mother should go with the child. Further, as submitted by Ms Ip at the hearing, it should pose no difficulty for her as we are really just talking about the flight back to Shanghai and perhaps the initial few weeks after arrival. 255.As previously directed by the court, both the father and the mother have each proposed a series of protective measures to accompany the return order. The Official Solicitor considers that the father’s proposed measures are sensible and reasonable. Ms Ip further suggests that it would be an option for the child to attend a boarding school when he returns to Shanghai as this would remove him from the conflict between his parents. Further, given the tension between them and the potential pressure and influence from the mother, access by the father should be assisted and supervised, and access by the mother be supervised by a social worker (if available) in the short term. The parties should also be warned of the detrimental effect of speaking ill of the other in front of the child. 256.I also find the measures proposed by the father to be sensible and reasonable. I will therefore broadly adopt them in the orders below. 257.Earlier this week, I made the following directions:
258.These directions are made to ensure that the child’s mental condition is closely monitored and any adverse reaction which he may have upon hearing the orders is managed professionally and without delay. ORDERS 259.I dismiss the mother’s amended originating summons in the Hague proceedings. 260.I also dismiss the mother’s summons in the wardship proceedings. 261.In respect of the father’s amended originating summons in the wardship proceedings, I make the following orders:
262.I make further orders concerning the arrangements for the child after his arrival in Shanghai, pending and subject to any order that may be made by the court in Shanghai:
263.I will reserve the issue of costs in the meantime, while the logistics of the return are being worked out. I give liberty to parties to apply to restore the issue for disposal.
Mr Shaphan Marwah, instructed by Tanner De Witt, for the applicant in HCMP 2563/2024 and for the 1st respondent in HCMP 2721/2024 Ms Mairéad Rattigan, SC and Ms Terri Ha (written submissions only), instructed by Rita Ku & Ser, for the 1st respondent in HCMP 2563/2024 and for the applicant in HCMP 2721/2024 Ms Eunice Ip, of the Official Solicitor’s Office, for the 2nd respondent in HCMP 2563/2024 and HCMP 2721/2024 Ms Clare Leung, Government Counsel, and Ms Marianne Cheng, Government Counsel, of the Department of Justice, as observers [1] The Chinese documents quoted in this judgment are written in simplified characters in the originals. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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