J v. Q and Another

HCMP 2563/2024 &
HCMP 2721/2024
(Heard together)

[2025] HKCFI 1730

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)

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D E C I S I O N

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Introduction

1.On 20 February 2025, I handed down the judgment in these proceedings: see [2025] HKCFI 632. I ordered that the child be returned to Shanghai. I reserved the issue of costs pending the return.

2.By consent of the parties, the issue of costs was restored and ordered to be dealt with by paper disposal. The father asks for an order that the mother do pay his costs whereas the mother invites the court to make no costs order. The Official Solicitor who has been acting as the guardian ad litem of the child has confirmed in writing that he does not intend to charge for his services rendered to the court in these proceedings.

3.This is my decision on costs. I shall adopt below the defined terms and paragraph numbers used in the judgment.

Legal principles

4.The legal principles governing the issue of costs in the present case are not in dispute.

5.Costs are in the discretion of the court: section 52A(1) of the High Court Ordinance, Cap 4. Order 62, rule 5 of the Rules of the High Court, Cap 4A, sets out the special matters which the court may, where appropriate, take into account when exercising that discretion. Of particular relevance here is rule 5(1)(e) and (2)(d). The court is to take into account the conduct of all the parties, which would include conduct before as well as during the proceedings.

6.The principles governing costs in children cases are summarised by the Court of Appeal in TPL v WYY formerly known as WYY CACV 47/2014 and CACV 61/2014, 15 December 2014, paras 14.1 to 15.4.

7.The general practice is that the usual order should be no order as to costs. The written submissions of the mother refer to this as the “general rule”. However, case authorities suggest that it is perhaps more proper to call it the “general practice” or, alternatively, the “general proposition”, as it was done in TPL: see para 14.1.

8.The general practice is largely underpinned by policy considerations. The approach stems from the aspiration that in child cases the court is seeking to find an arrangement which is best for the children, so that the only “winner” is the children, and neither parent should be regarded as the “winner” or the “loser”. The proceedings are in nature inquisitorial rather than adversarial, as the court is in search for the best option available. It does not want to discourage those with a proper interest in the child from coming forward and participating in the debate for fear of an adverse costs order made against him or her in the future. There is also a concern that by characterising a party as the successful party entitled to costs and the other as the unsuccessful party obliged to pay them may risk reducing the chance of their co-operation around the future life of the child: TPL at paras 14.2 to 14.4.

9.That said, however, the general practice is not a rigid rule and should not be allowed to be abused. The approach therefore does not apply where there are exceptional circumstances, such as where the conduct of one party has been reprehensible, or the party’s stance has been beyond the band of what is reasonable: TPL at paras 14.5 and 15.1, citing London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 at 571.

10.When considering whether the exception applies, the court should not be too quick to label a parent’s conduct as unreasonable. Just because a judge considers one parent’s proposal hopeless does not by itself justify a costs order against him or her. Hopelessness and unreasonableness are not necessarily the same thing. But there will come a point when pursuing a hopeless application would become unreasonable. Lastly, if the court is of the view that the exception applies, it should make a costs order which should be no more than is necessary to reflect the exceptional circumstances: TPL at paras 15.2 to 15.4, citing R v R (Costs: Child Case) [1997] 2 FLR 95 at 98; Re G (Costs: Child Case) [1999] 2 FLR 250 at 252.

11.TPL is not a Hague Convention case. However, it is accepted that the principles summarised there apply equally to abduction cases brought under the Hague Convention. For authorities, see EC-L v DM (Child Abduction: Costs) [2005] 2 FLR 772 at para 65; and, in Hong Kong, Re M (Child Abduction) [2024] 5 HKLRD 658, [2024] HKCFI 2821, and Secretary for Justice v YWG [2025] HKCFI 250.

12.In the abduction context, it has been held that unreasonable conduct should include the deliberate and persistent falsification of a case in an attempt to deprive a child of his or her habitual residence, or otherwise by those falsehoods, an attempt to deny or render ineffective the rights of custody and access of the other parent: EC-L at para 66. What amounts to unreasonable conduct must depend on the circumstances of each individual case.

Discussion

13.In my judgment, the present case falls within the exception to the general practice that the court should make no costs order because some of the conduct of the mother both before and during these proceedings can be said to be reprehensible and some of her behaviour in this litigation has gone beyond the band of what is reasonable. In coming to this conclusion, the following four matters are material in my deliberation.

14.First, the removal of the child from Shanghai to Hong Kong on 25 November 2024 by the mother amounts to reprehensible conduct when the surrounding circumstances are taken into account.

15.The objective facts here are (as recorded in paras 28, 29, 33, 37, 128, 139 and 234):

(1)  On 28 August, the mother applied to the Shanghai court for the care of the child.

(2)  While the Shanghai proceedings were ongoing, on 10 September, she entered into an interim agreement with the father in which the parties agreed on the split of time with the child between the two of them and they agreed to deliver up the child’s travel documents to the court.

(3)  On 6 November, the Shanghai court handed down its judgment ruling in favour of the father.

(4)  Shortly afterwards, on 15 November, the mother filed an appeal against the judgment.

(5)  On 25 November, during her access time, the mother unilaterally took the child to Hong Kong without informing the father. (Shortly before that, the father received a text message from the child’s phone saying that he would be skiing for two days with the mother.) That was in the middle of the child’s school term.

(6)  By the time the child was returned to Shanghai on 23 February this year, he had already spent three months in Hong Kong, a place with which he had no real connection, and all this time being separated from his sister and not being able to attend school.

16.It has been said that the fact of the abduction per se would not amount to an exceptional circumstance which justifies a departure from the general practice on costs in children cases: YWG at para 18. It is however clear, in my view, from the objective facts stated above that the present case goes way beyond the mere act of abduction. By removing the child from Shanghai, the mother was prima facie in deliberate and flagrant breach of the interim access arrangement put in place in the course of the Shanghai care proceedings. It must be remembered that these proceedings were commenced by the mother herself. After she lost at first instance, she abducted the child to Hong Kong while her own appeal was still to be determined. We are therefore looking at a situation where the mother simply ignored her own legal obligations when the legal system to which she herself submitted ruled against her.

17.Second, she ignored the express direction made by this court on 4 December 2024 that she should explain on affidavit the circumstances in which she applied for the replacement HKSAR passport for the child on 25 November 2024. In none of her affirmations did she give an explanation as directed. Nor did she claim any privilege for not doing so: see paras 38, 143 to 146. The non-compliance with the court direction was unreasonable.

18.I should state for the record that on 19 March 2025, I referred the matter to the Secretary for Justice for him to consider whether any prosecution should be launched in relation to the mother’s application for the replacement HKSAR passport.

19.Third, I found that the mother’s factual case on the primary dispute, namely the parties’ intention from about April 2022 to 3 August 2024 as to where the child should live, was internally contradictory and directly contradicted by the contemporaneous documents in a number of material respects. In the evidence was the extensive text messages exchanged between the parties during the material time. As remarked in the judgment, the messages really spoke for themselves. Notwithstanding that the contemporaneous documents cogently and clearly supported the father’s factual case and directly contradicted the mother’s, the mother persisted with her factual case till the very end. See paras 202, 204 to 211, 215 to 219. In my view, this has gone beyond the band of what was reasonable in the context of the conduct of proceedings.

20.Fourth, the mother took diametrically opposite stances in the Shanghai care proceedings and in these proceedings as regards her intention to settle in Japan with the child. See paras 94, 95, 117, 133 to 136, 216 and 217. As observed in the judgment, on her own affirmation evidence, she effectively admitted that she told the Shanghai court something that she knew to be false in order to get what she wanted. I further observed that if, contrary to her assertion in the affirmation, what she said to the Shanghai court was true, then she was lying to the Hong Kong court. Either way, this shows that the mother paid scant regard to telling the truth in formal legal proceedings. That is reprehensible conduct.

21.I remind myself of what the Court of Appeal said in TPL about the need to make a costs order which is no more than necessary to reflect the exceptional circumstances. The question here is whether the mother should bear the entire costs incurred by the father (subject to the usual principle of taxation) or just parts of them which are referable to the objectionable conduct.

22.The mother’s written submissions have not proposed any fallback position should the court find that this case falls within the exception to the general practice. In any event, the reprehensible and unreasonable conduct and behaviour of the mother identified above permeates the time spanning from before the commencement of these proceedings and throughout their course. I am therefore satisfied that this justifies the court making an exceptional order that the mother should bear all the father’s costs in these proceedings.

Conclusion

23.For the above reasons, I order that the mother should pay the father his costs of the wardship proceedings and the Hague proceedings, including all reserved costs, to be taxed on a party and party basis if not agreed.

24.The costs incurred by the parties in relation to this paper disposal may properly be regarded as part of the overall costs of the two sets of proceedings. For that reason, I make a costs order nisi that the father should similarly be given those costs.

Mr Shaphan Marwah, instructed by Tanner De Witt, for the applicant in HCMP 2563/2024 and for the 1^st respondent in HCMP 2721/2024

Ms Mairéad Rattigan, SC and Ms Terri Ha, instructed by Rita Ku & Ser, for the 1^st respondent in HCMP 2563/2024 and for the applicant in HCMP 2721/2024