Wd on behalf of Lnt (A Minor) v. Chief Executive of Hospital Authority and Another

HCAL 1460/2025

[2025] HKCFI 2741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1460 OF 2025

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REASONS FOR DECISION

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A.  Introduction

1.This is an extremely unusual habeas corpus application, where the person whose release was sought is a three-year-old boy (“LNT”) allegedly unlawfully detained at the Prince of Wales Hospital, Shatin, Hong Kong (“Hospital”).

2.The ex parte habeas corpus application was issued in the afternoon of 24 June 2025, and was brought on LNT’s behalf by his father (“Father”), who currently has sole care and control of LNT by virtue of an order made in the Family Court (see below).

3.I directed an urgent inter partes hearing for the following morning, 25 June 2025. At that hearing: LNT was represented by Ms Anita Yip SC, leading Ms Helen Au and Mr Jonathan Chan; and the Director of Social Welfare was represented by Mr Alvin Hor, Senior Government Counsel (Acting). The Hospital Authority was absent, but it appeared from the papers that it would anyway take a neutral stance.

4.Because of the involvement of a minor, which I considered to give rise to exceptional circumstances justifying a departure from conducting the hearing in open Court, the hearing was mainly conducted in camera (i.e. in Chambers not open to the public). However, as required by section 22A(4) of the High Court Ordinance Cap 4, all orders and decisions made in respect these proceedings, and the reasons for orders and decisions, are in every case to be announced in open Court.

5.At the end of the hearing in camera and after adjourning the matter into open Court, and having made inquiry into the circumstances, I made an order that LNT should be released or discharged from the Hospital, because I was not satisfied that LNT was lawfully detained there. I said I would hand down my reasons for that decision at a later date, and also deal with the matter of costs.

6.These are my Reasons for Decision. Though handed down as from open Court, I have anonymized the various persons involved.

7.It is worth emphasising at once that, though I might have some regard to the apparent best interests of the child LNT, the question which fell to be determined on this application was whether there was and continued to be lawful authority for his detention.

B.  Background

8.As identified in the Father’s affirmation leading the application, there is a chequered factual and procedural history in relation to the status and care arrangements of LNT. This is in part as a result of the apparent unusual features starting with LNT’s birth in June 2022.

9.The Father and a Madam LN (“Mother”) were married in Hong Kong on 15 July 2013, but separated in 2020. They had a daughter during the marriage, who is now about 10 years old. Since separation in 2020, there was no intimate or sexual contact between the Father and the Mother.

10.Earlier, in around 2016 or 2017, when the matrimonial relationship was still intact, the Mother invited the Father to attempt in vitro fertilisation (“IVF”) at a hospital in Los Angeles, because the couple wished to have a son. It seems that the sperm provided by the Father was considered of good quality, but the eggs provided by the Mother were not satisfactory, and so the attempted IVF failed.

11.Divorce proceedings were commenced by the Father in February 2021, on unreasonable behaviour grounds. But the currently pending proceedings in the Family Court are under a fresh petition issued in 2024 on the ground of two years’ separation.

12.In around August 2023, the Father was told by the Mother in person that he had a son, born in the USA, being LNT. This was about one year after the birth of LNT. The Father believes that the Mother had retained his gametes from the failed IVF, and had commissioned surrogacy arrangements without his permission. It appears that the Father’s sperm was used together with another person’s egg in a surrogacy arrangement, leading to the birth of LNT.

13.The Father has since confirmed by DNA testing that he is the biological father of LNT. The Mother apparently has no biological connection with LNT, and did not give birth to him, but is named as the “mother” on LNT’s US birth certificate. Though it does not matter much for present purposes, it might be noted that the Mother would not be regarded as the “mother” under Hong Kong law, and in particular section 9 of the Parent and Child Ordinance Cap 429.

14.The Father had brief contact with LNT on two occasions in September/October 2023 (in Chengdu) and October 2024 (in Hong Kong). However, on 19 November 2024, the Mother arrived unannounced at the Father’s relative’s office in Chengdu, and – according to the Father – in effect surrendered and abandoned LNT and his US passport to the Father. As a result, the Father became LNT’s primary caretaker between November 2024 and January 2025 in Hong Kong.

15.In February 2025, LNT and the Father’s relatives spent the Chinese New Year celebration in Chengdu. At that time, the Mother suggested to the Chengdu Police that LNT had been abducted. Chengdu Police conducted various home visits and dismissed the Mother’s allegation.

16.On 3 February 2025, it was intended that LNT and relatives fly back from Chengdu to Hong Kong. The Mother appeared at the Chengdu airport and attempted to take LNT, but the Chengdu Police became involved and would not permit her and the persons with her to do that. The Mother therefore purchased a ticket on the same flight, and followed LNT and the relative back to Hong Kong. Upon arrival, the Mother called Hong Kong Police and alleged that LNT had been abducted.

17.At that time, LNT was taken under the control of the Hong Kong Police and the Social Welfare Department (“SWD”). On 4 January 2025, LNT was brought before the Juvenile Court on the application of the SWD for a Care and Protection Order under the Protection of Children and Juveniles Ordinance Cap 213 (“PCJO”).

18.This is what triggered the subsequent, and rather complex and apparently conflicting, legal proceedings.

19.On 4 February 2025, a Magistrate of the Juvenile Court (a part of the Magistrates’ Court) made an order committing LNT to the care of the Mother. This order was apparently made on the basis that the Mother was named as LNT’s mother on his birth certificate.

20.On 3 March 2025, the Father commenced wardship proceedings in the High Court. The commencement of those proceedings triggered the commencement of the wardship, meaning that the Court became the legal guardian of LNT from 3 March 2025 (unless and until de-warded). A hearing date was fixed for 11 April 2025.

21.On 7 March 2025, the Juvenile Court made an order (“CP Order”), committing LNT to the care of the Mother, and further ordering that LNT be placed under the supervision of a Social Welfare Officer (“SWO”) for a period of 12 months. The CP Order was expressly made pursuant to section 34 (1)(b) and (d) of the PCJO. It can be noted that no special conditions were attached to the CP Order. The matter was made subject to a progress report on 6 June 2025 (see below).

22.The CP Order was made notwithstanding that the Magistrate had been informed of the ongoing wardship proceedings and the ongoing Family Court proceedings.

23.On 10 April 2025, a Family Court Master deferred consideration of matters relating to LNT, pending consideration by the High Court in the wardship proceedings. The matter was adjourned for further hearing on 28 April 2025.

24.On 11 April 2025, in the scheduled hearing of the wardship proceedings, H Au-Yeung J took the view that the care arrangements for LNT should be dealt with by the Family Court in the divorce proceedings. He thought that LNT should be de-warded. But he also granted the Father’s three periods of staying access with LNT, pending further consideration by the Family Court at the hearing on 28 April 2025. H Au-Yeung J also made a non-removal order.

25.On 25 April 2025, the Mother by an application for leave to appeal against the access order made by H Au-Yeung J. However, the hearing was scheduled for 13 May 2025, a date after all three periods of staying access would have occurred. In any event, the application for leave to appeal was subsequently dismissed with costs.

26.The Father says that the staying access went smoothly, except that during the third period of staying access between 25 and 26 April 2025, he discovered multiple bruises on LNT’s body. The Father suspected physical abuse by the Mother, as there had also been similar but less severe bruising noticed on the two previous access occasions.

27.The Father took LNT to a hospital for medical examination on 26 April 2025. LNT was immediately transferred to the Hospital to facilitate multidisciplinary management. After transfer to the Hospital, LNT was subject to medical examination and treatment. As I understand it, whatever treatment was required was completed by early May 2025, and LNT was therefore medically fit to be discharged from that time.

28.On 26 April 2025, the Father reported the incident to the Police. The Police interviewed LNT, and subsequently issued a visitation prohibition order on the Hospital to prohibit the Mother from entering LNT’s ward or visiting him. In response, the Mother told the Police that the Father had only limited access rights granted by the High Court, and he was also required to leave the Hospital and not permitted to visit LNT. However, the Father arranged for the two helpers/nannies who had persisted in taking care of LNT to be with him.

29.On 28 April 2025, the Family Court Master made certain orders about the care arrangements for LNT. But they were subsequently made subject to an appeal, and replaced with the order made by HHJ Ivan Wong, the Principal Family Court Judge on 21 May 2025 (see below).

30.On 9 May 2025, H Au-Yeung J made the formal order de-warding LNT.

31.Following hearings on 13 and 21 May 2025, HHJ Ivan Wong made orders (“Interim CC Order”) that: (1) sole interim care and control of LNT be granted to the Father; (2) the Mother shall surrender LNT’s US passport to the Court; (3) LNT shall not be removed from the jurisdiction, except when under the Father’s care for the purpose of complying with visa conditions; and (4) the Interim CC Order should be served on the Hospital and LNT’s school.

32.Since 21 May 2025, the Father has made enquiries of the Hospital, the Police and the SWO as to whether LNT could be discharged. The block on discharge was imposed by the SWO, who claimed to have powers under SWD guidelines and in the circumstances that an multi-disciplinary case conference (“MDCC”) had been convened but had yet to be concluded.

33.The Police apparently concluded their investigation, suggesting that there was no case of child abuse, no one was arrested, and the mother was no longer the suspect. The Police lifted the visitation prohibition order on 22 May 2025.

34.On the Father’s visit to the Hospital on 22 May 2025, he says, the Hospital and the Police were keen to discharge LNT and would have done so but for the SWO’s “mandate”. It is apparently not in dispute that the SWO has instructed the Hospital not to discharge LNT without her authorisation.

35.A meeting between the Father and the SWO failed to identify any statutory or other administrative provisions which would permit the SWO to detain LNT.

36.On 6 June 2025, the Juvenile Court apparently adopted the recommendations of the SWO provided in a progress report, and ordered the 7 March 2025 CP Order, including supervision order, to be continued. The Magistrate did so, notwithstanding that he had been informed of the Interim CC Order, and had recognised conflict between the SWO’s recommendation and that order.

37.No applications have been issued by the Director/SWO under any provision of the PCJO or other statutory provisions.

C.  Whether Lawful Detention

38.As already indicated, the central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention. The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court. The review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

39.Either continuing detention is lawful, or it is not. Even in circumstances that the Court’s review involves an exercise of judgement and balance, that is not a discretionary decision. Where there is a prima facie case that the detention is unlawful, the burden is upon the person detaining to show that the detention is lawful.

40.The lawfulness of detention is to be assessed at the time of the application.

41.In those circumstances, despite the relatively complex procedural history which I have rehearsed above, it is not strictly necessary to go back further than 21 May 2025, when the Interim CC Order granted to the Father the interim sole care and control of LNT.

42.That order was served on the Hospital, which confirmed that LNT was medically fit for discharge, but discharge was being prevented only by the stance taken by the SWO. On the face of those matters, it seems to me that there was a strong basis to think that the continued detention was without lawful authority, and the burden shifted to the Hospital or the Director/SWO to demonstrate the lawfulness of detention.

43.As indicated above, the Hospital appeared to take a neutral stance (although it has apparently informed the Father that, but for the SWO’s position, it is happy to discharge LNT). So that left the Director/SWO.

44.Mr Hor advanced three main points in his argument: (1) the habeas corpus application had ‘jumped the gun’; (2) the application was misconceived because the detention is lawful; and (3) the circumstances of the detention are reasonable.

45.The first point was predicated on the fact that the MDCC was due to be held on 26 June 2025, and Mr Hor said that it might be the case that it would be decided that LNT could be soon discharged from the Hospital in any event. Even if not, it remained open to the Father to make a further application to the Juvenile Court (if permission from that court were obtained) to seek the discharge of the CP Order: see section 34C(1) and (5) of the PCJO. However, I did not think that the lawfulness of detention turned on a contingent future event. Either the intention was lawful at the time of the application, or it was not. I have also already noted that no other application under the PCJO has been made by the Director/SWO.

46.As to the third point, Mr Hor said that the picture painted by the Father in his evidence as to the circumstances and condition of LNT’s stay in the Hospital was far bleaker than the reality. For the purposes of the application, I was prepared to proceed on the basis that LNT was being properly cared for in the Hospital (even if he was being kept from seeing the Father or the two helpers/nannies who have helped to look after him). However, that the care provided in the Hospital might be reasonable would be no answer to an unlawful detention.

47.Hence, the argument revolved around Mr Hor’s second point as to whether the detention was and remained lawful.

48.The provisions relied upon by Mr Hor as giving lawful authority to the Director/SWO to detain LNT in the Hospital, or to block his discharge, are found in the PCJO. Mr Hor placed particular reliance on section 34(1)(b) and (d), being the provisions relied upon in the CP Order, as well as section 34(4)(a). Those provisions – and, for context within the section, sections 43(1B) and 34(2) – are as follows:

34. Powers of juvenile courts in relation to guardianship, custody and control of children and juveniles in need of care and protection

(1) A juvenile court, on its own motion or upon the application of the Director of Social Welfare or of any person authorized by the Director of Social Welfare in writing in that behalf either generally or specially or of any police officer upon being satisfied that any person of or above the age of 7 years brought before the court or any other person under the age of 7 years is a child or juvenile in need of care or protection, may—

(a) appoint the Director of Social Welfare to be the legal guardian of such child or juvenile; or

(b) commit him to the care of any person whether a relative or not, who is willing to undertake the care of him, or of any institution which is so willing; or

(c) order his parent or guardian to enter into recognizance to exercise proper care and guardianship; or

(d) without making such order or in addition to making an order under paragraph (b) or (c), make an order placing him for a specified period, not exceeding 3 years under the supervision of a person appointed for the purpose by the court:

Provided that no order shall be made under paragraph (a) without the consent of the Director of Social Welfare.

…

(1B) A juvenile court shall, if practicable, forthwith send copies of—

(a) an order made under subsection (1)(a) or an order made under section 34C(1) discharging or varying such order—

(i) to the juvenile in relation to whom the order is made and to his parent or guardian (other than the Director of Social Welfare) or, in the case of a child, to his parent or guardian (other than the Director of Social Welfare); and

(ii) to the Director of Social Welfare;

(b) an order made under subsection (1)(b) or (c) or an order made under section 34C(1) discharging or varying such order—

(i) to the juvenile in relation to whom the order is made and to his parent or guardian or, in the case of a child, to his parent or guardian;

(ii) to the Director of Social Welfare; and

(iii) to the person or institution to whom or to which the order is directed or to whose care the child or juvenile is committed;

(c) a supervision order made under subsection (1)(d) or an order under section 34C(2)—

(i) to the juvenile in relation to whom the order is made and to his parent or guardian or, in the case of a child, to his parent or guardian;

(ii) to the Director of Social Welfare; and

(iii) where the supervised person is required by the order, or was required by the supervision order before it was varied or discharged, to reside with an individual or to undergo medical or surgical attention or treatment by or under the direction of an individual or at any place, to the individual or the person in charge of the place.

(2) For the purposes of this Ordinance, a child or juvenile in need of care or protection means a child or juvenile—

(a) who has been or is being assaulted, ill-treated, neglected or sexually abused; or

(b) whose health, development or welfare has been or is being neglected or avoidably impaired; or

(c) whose health, development or welfare appears likely to be neglected or avoidably impaired; or

(d) who is beyond control, to the extent that harm may be caused to him or to others,

and who requires care or protection.

(4) (a) Any person or institution to whose care a child or juvenile is committed under this section shall, whilst the order is in force, have the like control over the child or juvenile as the parent and shall be responsible for his maintenance, and the child or juvenile shall continue in the care of such person or institution, notwithstanding that he is claimed by his parent or any other person, and if any person—

(i) knowingly assists or induces, directly or indirectly, a child or juvenile to escape from the person or institution to whose care he is so committed; or

(ii) knowingly harbours, conceals, or prevents from returning to such person or institution, a child or juvenile who has so escaped or knowingly assists in so doing,

he shall be guilty of an offence: Penalty: a fine at level 2 and imprisonment for 6 months.

49.I think it also helpful to refer to the following provisions of the PCJO to put section 34 in a wider context, as follows:

34A. Power to include requirements in supervision orders

A supervision order may require the supervised person to comply during the whole or any part of the duration of the supervision order with such requirements, including requirements as to residence or medical or surgical attention or treatment giving due consideration to the wishes (if any) of the parent or guardian of the supervised person notified under section 34(1AA)(b), as the juvenile court, having regard to the circumstances of the case, considers necessary for securing the adequate care, protection and control of the supervised person.

34B. Duty of supervisor

While a supervision order is in force it shall be the duty of the supervisor to advise, assist and befriend the supervised person.

34C. Discharge or variation of orders under section 34(1)

(1) Subject to subsection (5), a juvenile court may at any time on its own motion, or upon the application of a parent or guardian, or of any person or institution to whose care a child or juvenile has been committed, discharge or vary an order made under section 34(1)(a), (b) or (c).

(2) Subject to subsection (5), a juvenile court may at any time upon the application of the supervisor or the supervised person discharge or vary a supervision order and any such variation may include—

(a) the cancellation of any requirement included in it; or

(b) the insertion in it (either in addition to or in substitution for any of its provisions) of any requirement which could have been included in it.

(3) In dealing with any matter relating to the discharge or variation of an order made under section 34(1), the juvenile court may require the presence before it of the child and the parent or guardian of the child, or may require the presence before it of the juvenile, as the case may be, and subject to subsection (4) a court shall not make an order under this section unless the child (other than a child under the age of 7 years) and the parent or guardian of the child, or the juvenile, is present before it.

(4) A juvenile court may make an order under this section in the absence of the child and the parent or guardian of the child, or the juvenile, if the effect of the order is confined to one or more of the following—

(a) discharging the order;

(b) reducing the duration of the order or any requirement included in it;

(c) cancelling a requirement included in the order.

(5) Where an application under this section for the discharge of an order is dismissed, no further application for its discharge shall be made under this section by any person during the period of 3 months beginning with the date of the dismissal except with the consent of a juvenile court.

(6) Upon any application under subsection (1) for the discharge or variation of an order made under section 34(1)(a) appointing the Director of Social Welfare to be the guardian of a child or juvenile, the juvenile court shall have power, whether or not it discharges the order of appointment, to make any order as to the custody or control of or access to the child or juvenile as it considers to be for the benefit of the child or juvenile and may discharge or vary any order or requirement made under section 34(5) by the Director of Social Welfare.

34D. Contraventions of supervision orders

Where a supervised person fails to comply with any requirement imposed by a supervision order, the supervisor may make an application to a juvenile court under section 34C(2) or an order to be made under that section.

34E. Detention of child or juvenile in place of refuge

(1) Subject to subsection (1A), any person authorized in writing by the Director of Social Welfare or any police officer of the rank of station sergeant or above may take to a place of refuge or such other place as he may consider appropriate any child or juvenile—

(a) who appears to be in need of care or protection; or

(b) in relation to whom there is in force an order under section 34(1) and who is the subject of a motion or application under section 34C.

(1A) The power conferred by subsection (1)(a) shall not be exercised in respect of a child or juvenile who appears to be in need of care or protection by virtue only of any matter referred to in section 34(2)(b) or (c), unless—

(a) the child or juvenile has within the preceding 2 weeks, been assessed by a medical practitioner, clinical psychologist or an approved social worker pursuant to section 45A;

(b) a notice issued and served under section 45A(1)(a) within the preceding one month in respect of the child or juvenile has not been complied with as regards the production of the child or juvenile for an assessment; or

(c) the Director of Social Welfare is unable to ascertain the identity or whereabouts of any of the persons on whom notice may be served pursuant to section 45A(1)(a) for the purposes of an assessment of the child or juvenile.

(2) Subject to this section, a child or juvenile who is taken to a place of refuge or other place under subsection (1), or who has taken refuge in a place of refuge, may be detained there until the child or juvenile can be brought before a juvenile court.

(3) Within 48 hours after a child or juvenile is taken to a place of refuge or other place under subsection (1), or takes refuge in a place of refuge, an application in relation to that child or juvenile shall be made to a juvenile court under section 34(1) or 34C, as the case may be, if no such application has already been made.

(4) Notwithstanding anything contained in section 34(1), where an application is made to a juvenile court under that section or under section 34C the court may, whether or not the child or juvenile in relation to whom the application is made is before the court, order the detention or continued detention of the child or juvenile in a place of refuge for a period not exceeding 28 days from the date of the order in the first instance in order that further inquiries may be made about the child or juvenile, and, if necessary for that purpose, may during the continuance in force of such order make further orders of detention for such period or periods as the court thinks fit, provided that the total period of continuous detention does not at any time exceed an aggregate of 56 days.

…

34F. Detention in hospital

(1) Where any of the circumstances set out in subsection (1)(a) or (b) of section 34E apply in relation to a child or juvenile, any person mentioned in that subsection who is of the opinion that that child or juvenile is in need of urgent medical or surgical attention or treatment may take the child or juvenile to a hospital instead of to a place of refuge.

(2) A child or juvenile who is admitted to a hospital after being taken there under subsection (1) may be detained by the Director of Social Welfare in that hospital for so long as the attendance of the child or juvenile at that hospital is necessary for the purpose of medical or surgical attention or treatment and thereafter the Director of Social Welfare may take him to a place of refuge.

…

50.Mr Hor argued that the combination of section 34(1)(b) and (d) and section 34(4)(a) identify the relevant legal authority for the SWO to detain LNT in the Hospital. He pointed to the fact that the CP Order had been made under the paragraphs of section 34(1), and that section 34(4)(a) identified the ability for the SWO to exercise control over the child. With respect, I disagree.

51.The CP Order made by the Juvenile Court committed LNT to the care of the Mother – and not to the SWO or any institution. Hence section 34(4)(a) would not avail the SWO or the Hospital. Further, that the CP Order also placed LNT under the supervision of a SWO did not assist the SWO in any wish to detain LNT. It can be noted that the duty of the supervisor is to advise, assist and befriend the supervised person: see section 34B. It can further be noted that the CP Order did not include any requirements as might have been put in place under section 34A.

52.In any event, it seems to me that there is at least a strong argument that the original order made on 5 January 2025 committing LNT to the care of the Mother was in effect overturned when LNT was warded in the High Court. In any event, it is not clear how the CP Order could be made on 7 March 2025, by which date LNT was already a ward of the High Court. I also doubt that the CP Order simply resurrected itself when LNT was dewarded.

53.In any event, it is clear that H Au-Yeung J dewarded LNT because he was of the view that matters relating to the care and control of LNT should be dealt with in the Family Court (as they subsequently were). I find it difficult to reconcile the Magistrate’s purported continuation of the CP Order on 6 June 2025, thereby supposedly confirming that LNT was committed to the care of the Mother, when the Magistrate knew that the Family Court had already granted interim sole care and control of LNT to the Father.

54.It does not assist Mr Hor to seek to draw a distinction between the CP Order and the Interim CC Order, and to argue that they can be regarded as compatible because the CP Order focused on the child and the supervision by the SWO, whereas the Interim CC Order bites as between the parties to the matrimonial proceedings. With respect, both orders relate to the proper care and control of LNT. It must be assumed that when the Principal Family Court Judge ordered sole care and control to the Father, that was because he thought that that was currently in the best interests of the child, who needed no further protection as might also have been ordered but was not. In other words, the Family Court considered it to be in the best interests of the child that LNT be placed under the sole care and control of the Father – not the Mother, not the Director/SWO and not the Hospital.

55.I also do not think it assists Mr Hor’s submissions to say that, even if the care part of the CP Order is regarded as discharged by the Interim CC Order, the supervision part of the CP Order remained extant. As I have already indicated above, I think that unlikely. But in any event, the supervision order did not create any lawful authority for the SWO to detain LNT, or prevent his discharge from the Hospital. Further, if the supervision part of the CP Order is regarded as remaining extant, notwithstanding the terms of the Interim CC Order, there is nothing to prevent supervision being conducted whilst LNT is under the Father’s sole care and control.

56.Put shortly, there seemed to me to be no basis for interference with the Family Court’s Interim CC Order, giving sole care and control of LNT to the Father. None of the provisions upon which Mr Hor placed reliance provided any lawful authority to the Director/SWO to detain LNT anywhere, or to block his discharge from the Hospital. Further, as a matter of fact, it was plainly inappropriate for LNT to be kept in a Hospital when there was no medical reason for him to be there. If there was or is any genuine concern as to the safety of LNT, appropriate steps might be taken under the appropriate provisions, rather than simply effecting a detention on some contingent basis.

D.  Result

57.It was for the above reasons that I ordered LNT to be released, or to be permitted to be discharged, from the Hospital.

58.It gave me some pause that the Father was not physically in Hong Kong at the time of the habeas corpus application, because he was participating in a national level competition in the Mainland. However, in accordance with his having sole care and control, he had made arrangements for his relatives and the two helpers/nannies to be able to look after LNT, and the Father would be returning to Hong Kong very soon.

59.As to costs, Ms Yip submitted that the costs should follow the event, because the application had proved necessary following attempts orally and in correspondence to secure LNT’s discharge or release from the Hospital. Mr Hor submitted that in the overall circumstances it would be appropriate to make no order as to costs. Having carefully considered the matter, and notwithstanding proceeding on the basis that the SWO was genuine and well-motivated, it seems to me to be clear that it ought not to have the necessary to make this application. In those circumstances, I exercise my discretion on costs to award the costs of the application to the Applicant. However, I will not grant any certificate for more than one Counsel. I will make a summary assessment of the costs on paper, in accordance with materials to be provided to me on a timetable which I require the parties to agree.

E.  Postscript

60.The background history, and in particular the procedural history, of this case identifies the need for different levels of court to act with appropriate deference and in harmony, where their respective powers might be overlapping or duplicative – and come into conflict.

61.I would respectfully echo the view adopted by H Au-Yeung J that, at least for the moment, the place for addressing and making orders on matters relating to the care and control of LNT (including any supervisory oversight as might be thought appropriate or necessary) is the Family Court. At the very least, the Juvenile Court should not be asked to make, and should not make, orders which conflict with those of the Family Court.

Ms Anita Yip SC, Ms Helen Au and Mr Jonathan Chan, instructed by Johnnie Yam, Jacky Lee & Co, for the applicant

1^st respondent, absent

Mr Alvin Hor, Senior Government Counsel (Ag), of the Department of Justice, for the 2^nd respondent