Lchy v. Cwf & Others
Read the full judgment text of HCMP 5231/2001 on BabelCite. This High Court CFI judgment was delivered on 22 March 2002.
1. The Plaintiff in these proceedings is the mother of a pair of twins, K and L. They were born on 12 September 1995 in New Zealand. They held New Zealand passports. By that time, the father (the 1st Defendant in these proceedings) and the mother were already divorced. The father lived in Taiwan. He has his own family there. Until they were brought to Hong Kong on 8 July 2001, the twins had all along lived with their mother in New Zealand.
Cited by 3 cases · Cites 3 cases
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HCMP005231A/2001 HCMP 5231/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 5231 OF 2001 ____________
BETWEEN
____________ Coram: Deputy High Court Judge Lam in Chambers Dates of Hearing: 6-7, 10-11 December 2001 and 13-14 March 2002 Date of Handing down Decision: 22 March 2002 ____________________ J U D G M E N T ____________________ History of the case 1.The Plaintiff in these proceedings is the mother of a pair of twins, K and L. They were born on 12 September 1995 in New Zealand. They held New Zealand passports. By that time, the father (the 1st Defendant in these proceedings) and the mother were already divorced. The father lived in Taiwan. He has his own family there. Until they were brought to Hong Kong on 8 July 2001, the twins had all along lived with their mother in New Zealand. 2.The 2nd Defendant is the brother of the mother. The 3rd Defendant is the wife of the 2nd Defendant. They live in Hong Kong. I shall call them uncle and aunt. Until 14 June 2001, the uncle and aunt did not have any active involvement with the lives of the mother and the twins. 3.Apart from the twins, the mother and the father have two other elder children. One of them, G, is in New Zealand. The other one K is living with the father in Taiwan. 4.Upon police notification, the Department of Child, Youth and Family Services of New Zealand ["CYFS"] became involved in June 2001. Emergency Psychiatric Services was also engaged, again on referral by the police, in respect of the mother. She was admitted to hospital on 11 June 2001 under a Compulsory Treatment Order under the Mental Health Act. The twins were placed under the foster care of CYFS under Section 139 of the Children, Young Persons and Their Families Act 1989. That section provides for the placement of a child in the care of CYFS for a period not exceeding 28 days when the parent or guardian or other person having the care of the child is temporarily unable or unwilling to care for the child. If the parent is unable to resume the care at the end of that period, the period may, with the agreement of that parent, be extended for one further period of up to 28 days. It is clear that such statutory power is meant to be a temporary measure. 5.The uncle and aunt were contacted by S, a friend of the mother, informing them of the situation of the family. They went to New Zealand on 21 June 2001. After meeting between the mother and uncle and aunt and health care professionals and social workers, and with the support of a report by an independent barrister Ms Weatherall and a report by a psychiatrist, two consent orders were made by the Family Court in Dunedin on 29 June 2001. The first one was an order appointing the uncle to be the welfare guardian of the mother. Under that order, the uncle was given the following authority in respect of the care of the mother:
This order was discharged by the court on 30 November 2001. 6.The second order was an interim order appointing the uncle to be the property manager in respect of the mother's property. That order lapsed in three months' time automatically unless the manager apply for a review and upon review, the court extends the order. There was no application for review and the order lapsed accordingly. 7.On 6 July 2001, the mother signed an Agreement as to Care ["the Care Agreement"], the material provisions read as follows:
8.On 8 July 2001, the uncle and aunt brought K and L to Hong Kong. On 14 July 2001, the father came to Hong Kong to see the children. The children were enrolled by the uncle and aunt into a school in Hong Kong and commenced their schooling here on 3 September 2001. The father came to visit the children in Hong Kong again between 8 and 12 September 2001. During that period, he also visited the children's school. On 18 September 2001, the father took away the children from the school without any prior notification to the uncle and aunt. He refused to hand them back to the uncle and aunt. Apparently, he wished to take them back to Taiwan. However, he was unable to do so without the passports of the children. Wardship proceedings were commenced by the uncle and aunt on 21 September 2001. In those proceedings, the uncle and aunt asked for, inter alia, the custody of the children. On 28 September 2001, I ordered the children to be returned to the uncle and aunt for interim care and control. Although I accept the father abducted the children out of his concern for them, I must still point out that such action is wrong. It caused disruptions to the lives of the children and could not be in the best interest of the children. There was suggestion that the father did so on legal advice. If that were true, the lawyer who gave such advice should be warned that the court will not look upon the matter lightly. The children were returned to the uncle and aunt on 29 September 2001. 9.The mother was released from hospital on 24 July 2001. Her relationship with the uncle and aunt turned sour. Originally, it was the intention of all involved that the mother would come to Hong Kong after her release from hospital. However, that did not materialize. There was some misunderstanding as to the whereabouts of her travel documents and notwithstanding that a ticket was booked for her travel to Hong Kong on 4 August 2001, she could not make the trip. I should say that on the evidence before me, I am not satisfied that the uncle and aunt deliberately concealed from the mother the whereabout of her travel documents to prevent her to come to Hong Kong. It appears that there were also some ill feelings arising from telephone conversations between the mother and her parents (who are living in Hong Kong). The upshot was that the mother decided that her family members in Hong Kong had excluded her from the family. In a letter dated 18 September 2001, the mother accused the uncle and aunt of taking everything, including her children away from her. The mother determined not to come to Hong Kong. This is unfortunate because in Hong Kong, she could have family support whereas in New Zealand, she is basically on her own. Be that as it may, it is her right to decide for herself whether she would be better in New Zealand or in Hong Kong. 10.After she learnt of the abduction of the children by the father, she commenced proceedings under the Hague Convention on the Civil Aspects of International Child Abduction ["the Convention"] on 25 September 2001. In its original form, the application was made against the father. On 28 September 2001, the uncle and aunt were joined as defendants to the proceedings. On 11 October 2001, the proceedings were amended to allege wrongful retention of the children in Hong Kong by the uncle and aunt. The allegation against the father was deleted. On 6 December 2001, the originating summons was further amended to allege wrongful retention by the uncle and aunt "since or before 16 August 2001 or alternatively since September 2001". I have directed on 28 September 2001 that the wardship proceedings is not to be heard until the determination of the Convention proceedings. 11.The substantive hearing of the Convention proceedings started on 6 December 2001. By that time, the father and the mother took a united front by asking for the children to be returned to New Zealand. That was opposed by the uncle and aunt. I heard the matter on 6, 7, 10 and 11 December 2001. On 7 December 2001, the Court of Appeal handed down its judgment in D and G, CACV 3646 of 2001. In the light of that judgment, further reports have to be called for and I refer to what I have said in my two Rulings on 10 and 11 December 2001 respectively as to the circumstances under which the case was adjourned. 12.The following reports are obtained as a result of my directions/ requests on 11 December 2001:
Further, the Plaintiff also filed a further affirmation on 24 December 2001 providing information as to the measures available in New Zealand to deal with the safety of the children if they were returned to New Zealand. The father also filed an affirmation on 26 December 2001 setting out his proposal if the children were returned to New Zealand. I am grateful to all concerned with regard to the efforts they made in providing this court with the relevant information expeditiously. 13.Hearing was resumed on 13 March 2002 and further submissions were made by the parties in respect of the new material. The hearing was concluded on 14 March 2002. I wish to express my gratitude to counsel and the father (who appeared in person throughout the hearing) for the assistance they gave to me in this rather unusual case. The nature of the Convention proceedings 14.By the Child Abduction and Custody Ordinance Cap.512, the Convention was applied to Hong Kong. In Re H [2000] 2 AC 291 at 302 D to E, Lord Mackay identified the objectives of the Convention as follows:
15.In LM v. HTS, HCMP No.1329 of 2001, 19.4.2001, Hartmann J said at p.8:
16.The court's duty to return the child is mandatory as provided under Article 12 of the Convention. In D and G, CACV 3646 of 2001, 7.12.2001, Le Pichon JA said at [9]:
17.The last-cited dicta summarized neatly the three main issues in the present case:
The uncle and aunt took issues with the mother on all these. 18.In Re S [1994] 1 FLR 82 at p.88C to D, Wall J reiterated that the court is not to be concerned with substantive merits on questions of custody and access in Convention proceedings:
The relevant dates 19.Before dealing with the submissions of the parties, it is necessary to identify the relevant dates for consideration of the question of habitual residence. It is common ground that the removal of the children from New Zealand to Hong Kong in July 2001 was with the consent of the mother and therefore could not be wrongful. In the final version of the Originating Summons, two alternative dates of wrongful retention were relied upon by the mother:
20.Under the Convention, the notion of retention refers to a specific occasion rather than a continuing state of affairs. In Re H Re S [1991] 2 AC 476 at p.499G, Lord Brandon said, after referring to Article 12 of the Convention:
This was applied by Hartmann J in the case of N and O [1998] 4 HKC 574 at p.586. See also Lord Slynn in Re S [1998] AC 750 at 767F to G. 21.Hence, it is rather unsatisfactory to refer to the act of wrongful retention since a particular date. From the submission of Mr Coleman, counsel for the mother, I understand that in respect of the first alternative, he relied on a letter dated 16 August 2001 from the aunt to the mother. Counsel submitted that the letter evidenced an intention on the part of the uncle and aunt to retain the children in Hong Kong because the mother was not well enough to take care of them. He said that the uncle and aunt manifested an intention to refuse to send the children back to New Zealand against the wish of the mother. 22.With respect to Mr Coleman, I do not read that letter as manifestation of an intention on the part of the uncle and aunt to retain the children wrongfully. Reading the letter as a whole, I regard the letter as an attempt by the aunt to explain to the mother how they perceived the problem. It was by no means a refusal to return the children to the mother. It was not written in response to a request by the mother to send the children back to New Zealand. In her two affirmations before me, there was no reference to any request made by the mother around that time. The tenor of the letter was consistent with the purpose for which the children were placed under the care of the uncle and aunt pursuant to the Care Agreement. The aunt in fact said in the letter:
I shall return to this allegation of wrongful retention in my discussion on wrongful retention below. 23.With regard to the alternative case of wrongful retention, Mr Coleman referred to the formation of an intention on the part of the uncle and aunt not to return the children in the early part to mid-September 2001. He did not pinpoint a particular act or date. In a letter dated 18 September 2001, the mother demanded the return of the children to New Zealand. That demand was made when the children were abducted by the father. The demand was repeated in the Originating Summons in the Convention proceedings issued on 25 September 2001. In the application for return of the children abducted from New Zealand dated 21 September 2001 signed by the mother, she alleged in paragraph 8 at p.6 thereof that the uncle and aunt have neglected and refused to return the children to her despite her several requests that they did so. 24.The relevant dates for consideration of the habitual residence of the children and whether the mother has right of custody over them is therefore around 16 August 2001 (on the basis of the first limb of the mother's case as to wrongful retention) or alternatively around mid-September 2001 (on the basis of the second limb of her case). Wrongful retention and habitual residence: the law 25.Article 3 of the Convention defines wrongful removal and retention:
26.The meaning of "rights of custody" under the Convention is set out in Article 5:
In Re C [1989] 1 FLR 403 at 413, Lord Donaldson MR pointed out that rights of custody under the Convention had its own meaning which might be different from the meaning of custody under domestic law.
27.To similar effect is the judgment of Hale J (as she then was) in Re W; Re B [1998] 2 FLR 146 at 151H to 152C:
28.The correct approach is therefore the one applied by Hale J (as she then was) in S v. H [1998] Fam 49 at 51H:
29.Since the right is to be assessed by reference to the right attributed to the applicant "under the law of the State in which the child was habitually resident immediately before the removal or retention", one has to consider the place of habitual residence of the children before the right under such law could be determined. Habitual residence is a question of fact. In N and O [1998] 4 HKC 574, Hartmann J set out the relevant principles at p.587 to 588:
Waite J. further accepted that it is possible for habitual residence to change periodically if that is the intended regular order of life for the parents and children. That, in my judgment, accords fully with the lifestyle and career patterns chosen by an increasing number of people in a world where freedom to travel and commerce have diminished national boundaries. Indeed, in my opinion, the mother in this matter falls into this category. Lord Brandon in the House of Lords decision of Re J supra, in considering the concept of habitual residence said at page 578 -
30.In the context where a person having the sole parental responsibility causes the child to leave the jurisdiction in which she herself remains habitually resident, Balcombe LJ in Re M [1993] 1 FLR 495 at p.500 E to H held that the relevant test was to examine the intention of that person (the mother in that case) and see whether she had an intention that the child should take up long-term residence elsewhere for a settled purpose. 31.Re M [1993] 1 FLR 495 concerned a mother who had the sole parental responsibility over her children. The social service department were concerned about, inter alia, the mother's parenting ability. Through the intervention of the social worker, the children went to live with their grandparents in Scotland in September 1991 whilst the mother remained in England. The mother said she agreed to the children going to Scotland for one year only whilst the grandparents said that it was agreed that the children would stay for a minimum period of one year, and thereafter consideration would be given to returning the children to the mother should social services consider that she was capable and fit to look after them. In July 1992, the children came to England to the mother to have a two-week holiday. During that holiday, the mother changed her mind and decided not to return the children. On those facts, Balcombe LJ held that between September 1991 and July 1992, the children were habitually resident in Scotland. At p.501E to F, Balcombe LJ said:
However, His Lordship went on to hold that by 23 July 1992, the Scottish residence of the children were brought to an end when the mother who alone had parental responsibility and alone could determine where they should live had decided that they should no longer reside with the grandparents in Scotland (p.501G to H). 32.It is important to note that Re M was not decided under the Convention (since the children were present in England when the matter was dealt with by the court) and Balcombe LJ therefore did not find it necessary to decide whether the children reacquired an habitual residence in England (see p.501F to G). His Lordship followed Lord Brandon's speech in Re J about the distinction between losing habitual residence in country A in a single day and the acquisition of habitual residence in country B (which required an appreciable period of time). On the facts, Balcombe LJ expressed grave doubts whether the children had by 23 July 1992 regained habitual residence in England. On the other hand, Hoffmann LJ had no difficulty in holding that the children were habitually resident in England after the mother changed her mind. Hoffmann LJ said at p.503B to E:
Hoffmann LJ cited a dicta of Purchas LJ in Re S [1991] 2 FLR 1 and laid emphasis on the dicta that the transfer of habitual residence was effected from the actual transfer of physical custody. 33.In the context of Convention proceedings, the dicta of Butler-Sloss LJ in Re F [1992] 1 FLR 548 at 555H to 556A serves as a good reminder:
34.Where children were brought to another country with the consent of the persons with parental authority for a temporary purpose, they did not lose their habitual residence in their country of origin. Hence where two children went abroad together with their parents for a one year sabbatical leave, their habitual residence was held to be in their country of origin (see Re S [1994] Fam. 70). Similarly, where a child was sent abroad away from his parents for educational and cultural purposes, it was held that it was not sufficient to change his habitual residence (see Re A [1995] 1 FLR 767). Both cases were approved as to the results on their facts by Sir John Balcombe in the Court of Appeal in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 although Sir John Balcombe disagreed with some of the dictum in Re A. A recent example was the case of Re V [2001] 1 FLR 253, where it was held that the mother had not discharged the burden of proof in showing the abandonment of former habitual residence of the child of 6 when she was sent to Ghana to live with her grandparents. Wilson J came to that finding by reason of the fluidity and lack of clarity of the mother's plan for the child's future which confirmed the absence of settled intention. In these cases, it does not matter that the children did not physically reside at their country of origin immediately before the alleged wrongful retention. 35.It would be different if a child has acquired a habitual residence elsewhere. That was what happened in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887. In that case, the parents were habitually resident in England. The child was born in England. The marriage deteriorated and the parents separated. In January 1994 the parents agreed that the child would go to live with the paternal grandparents in India and spend his childhood there and be brought up by them. The child went to India in February 1994 when he was about 2 years old. The mother changed her mind in July 1995 and applied to the court in England to order the child to be returned to England. The judge found that pursuant to the agreement of January 1994, the child acquired habitual residence in India. In the Court of Appeal, Sir John Balcombe said, at p.895 C to G:
36.Both Sir John Balcombe and Millett LJ (as he then was) stressed that habitual residence is a question of fact (see p.895C and H). Millett LJ also held at p.896A that while it is not necessary for a person to remain continuously present in a particular country in order for him to retain residence there, it is not possible for a person to acquire residence in one country while remaining throughout physically present in another. 37.In Re S [1998] AC 750, the House of Lords held that a person who had the de facto care of a child but no parental rights could not bring about a change in the child's habitual residence merely by taking him out of the jurisdiction. In that case, the child had been taken out of England for 2 days by the grandmother shortly after the death the mother (who had had sole custody of the child) when the father (who was not married to the deceased mother and therefore had no right of custody) applied for interim care and control and for return of the child in the English court. Lord Slynn said at p.762G to 763B:
38.However, it would be different if the child stayed out of jurisdiction for a substantial period of time without challenge. In the Court of Appeal, Butler-Sloss LJ said In re S (quoted by Lord Slynn at p.761G to 762B),
Habitual residence: the facts and my findings 39.It cannot be disputed that prior to 8 July 2001, the children were habitual residents in New Zealand. The question is whether their coming to Hong Kong and their stay thereafter brought about a change of their habitual residence prior to the alleged wrongful retention. I have outlined the circumstances under which the children were brought to Hong Kong on 8 July 2001 by the uncle and aunt in Paragraphs 4 to 8 above. Although as stated in Paragraph 24 above, the relevant dates for consideration are 16 August 2001 and mid September 2001, it is necessary to go back to early July 2001 in order to examine the mother's intention at the time when she agreed to let the uncle and aunt to take the children to Hong Kong. In my judgment, the crucial issue is whether the mother had a settled intention at that stage to send the children away from New Zealand and to let them take up residence in Hong Kong for an appreciable period of time. If the answer is affirmative, the situation would be similar to Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 and Re M [1993] 1 FLR 495. The children would cease to be habitual resident in New Zealand upon their departure and after living in Hong Kong for a substantial period, they would acquire an habitual residence here. They could not reacquire their habitual residence in New Zealand subsequently just because of the later change of mind of the mother whilst they remained in Hong Kong physically (see Re M (Abduction: Habitual Residence) [1996] 1 FLR 887). On the other hand, if I find that the mother has not yet developed a settled intention on 8 July 2001, I have to ask whether she has developed such intention at any time thereafter before she changed her mind and demanded their return to New Zealand. If her intention remained unsettled, the situation would be similar to Re A [1995] 1 FLR 767 and Re V [2001] 1 FLR 253. The children would remain habitual resident in New Zealand notwithstanding their temporary absence. 40.It is common ground that when the mother agreed to let the uncle and aunt to take the children to Hong Kong, it was envisaged by all parties that she would be joining them here later on. The aunt said so in paragraph 4 of her Affidavit of 2 November 2001. So did the mother in Paragraph 11 of her First Affidavit of 9 October 2001 and Paragraph 12 of her Second Affidavit of 16 November 2001. What the parties disagreed is whether the stay in Hong Kong by the mother and the children would be a long term one and whether the mother expected to return to New Zealand in the near future. The uncle and aunt said that the move was a relocation and the children would not return to New Zealand. The mother said otherwise. 41.In respect of that conflict, there is some evidence from third parties. Hazel Scoles, the CYFS Social Worker said in her report of 31 October 2001:
Michelle Derrett, the social worker of Dunedin Hospital, said the following in a letter dated 25 October 2001 to the mother regarding a meeting with the uncle and aunt on 5 July 2001 before the signing of the care agreement,
The aunt accepted that such assurance had been given although she said it was only to allay the concern of Ms Derrett as to the possibility of litigation from the mother. In my view, the manifestation of such a concern showed that there was at least a question mark in the mind of those dealt with the mother that she might wish to have the children back in New Zealand later on. These evidence, in my judgment, supports the mother's contention that the return to New Zealand remained at least as a possible option. 42.On the other hand, there is the evidence of Ms Jennifer Beck who prepared the Care Agreement. In Paragraph 5 of her affidavit of 31 October 2001, she said that no one thought that the mother would remain in Dunedin long term nor that the children would return to live there. However, she also said that she was not present when the Care Agreement was signed and she was instructed by the uncle and aunt to draft the same. Her understanding was based on what she was told by Ms Scoles and the uncle and aunt. This showed that she had not discussed the matter with the mother. Since what I am concerned is the intention of the mother rather than the intention of the uncle and aunt, I do not find the evidence of Ms Beck on this point to be helpful. 43.On the face of the Care Agreement, there were wordings which indicated that the arrangement was meant to last so long as the children are under the care of the uncle and aunt. However, there is no express provision stipulating the duration for which they would have the care of the children. The only indication is the reference in paragraph 2 thereof to the hospitalization of the mother. It is also significant to bear in mind that although suggestion was made to the uncle and aunt to apply for custody of the children from the court in New Zealand, they did not do so. Hence, they were not in a position to change the habitual residence of the children by retaining them in Hong Kong against the wish of the mother (see Re S [1998] AC 750). Ms Beck said in her affidavit that she prepared the agreement by using a draft faxed to her by CYFS which were used by the latter for the purpose of Section 139 Children, Young Persons and Their Families Act. That sort of agreement did not envisage the transfer of custody right over the children (see Paragraph 4 above). 44.As I said, the relevant intention was that of the mother. The burden of proof is on the uncle and aunt to establish a settled intention on her part to strip the children of their habitual residence in New Zealand (see F v S [1993] 2 FLR 686 at p.694H, applied by Wilson J in Re V [2001] 1 FLR 253 at 258-9). On balance, I find that they have failed to discharge such burden. Whilst they themselves might perceive that it was unlikely for the children to return to New Zealand in the foreseeable future, I am not satisfied that such understanding was shared by the mother. I am not satisfied that the mother had been asked to consent to a long term relocation of the children to Hong Kong, still less the long term stay of the children in Hong Kong even if she were not to come to Hong Kong. On the evidence, I find that the mother was keeping the option of returning to New Zealand open. It follows that she has not yet formed a settled intention at the time when she signed the Care Agreement that the children were to relocate to Hong Kong and not to return to New Zealand for an appreciable period of time. Hence, they have not lost their habitual residence in New Zealand when they came to Hong Kong on 8 July 2001. 45.In coming to that conclusion, I bear in mind that the mother had been living in New Zealand since 1994 and the children had never been in Hong Kong prior to 8 July 2001. It would be a major decision for her if she decided to relocate back to Hong Kong on a long term basis and the evidence before me is insufficient to show that she had made such a decision. At that time, she was undergoing medical treatment and the Care Agreement was signed by her without the benefit of independent legal advice. I am not convinced that she intended to make such an important decision. 46.Mr Pilbrow submitted that the Care Agreement conferred upon the uncle and aunt the right to be the primary carers of the children. In my judgment, for the reasons given above, in particular Paragraph 43, and in the section below dealing with custody rights, the mother did not give up her right to determine where the children live under the Care Agreement. She remains the person who has custody over the children. Without any court order granting custody of the children to the uncle and aunt, their position could not be better than the grandmother in Re S [1998] AC 750 and the paternal grandparents in Re M [1993] 1 FLR 495. 47.Mr Pilbrow relied on the case of F v F (Abduction: Habitual Residence) [1993] Fam. Law 199. The report is very brief. However, the parents in that case has agreed to move to England permanently before they returned to Canada to sort out the practicalities of the intended relocation. The children were left behind in England in the safekeeping of the grandparents. The father subsequently applied under the Hague Convention for the return of the children to Canada. That application was dismissed by Thorpe J on the ground that the children ceased to be habitually resident in Canada. Given the background, it is clear that on the facts of that case there was a settled intention to relocate and the decision was not surprising. Mr Pilbrow referred me to the following summary of a dicta of Thorpe J at p.200:
Mr Pilbrow submitted that the centre of gravity of the children in the present case has been switched to Hong Kong under the Care Agreement. I am of the view that the relevant consideration is still the intention of the mother, which I have already analysed above. A crucial distinction between F v F and the present case is the agreement of both parents (who had joint custody rights at the time of the agreement) to relocate to England in that case. As I said, I am not satisfied that the mother (who had the sole custody of the children) in the present case had formed such settled intention. 48.I was also referred to the case of Re K [1995] 2 FLR 211. In that case, the parents and child had lived in Texas. The marriage broke down and there was a divorce. The parents were made joint conservators. The child lived with the mother and had general leave to take the child out of Texas for vacation purposes. The mother took the child to England with the father's permission in May 1991. The child returned to the father for 7 months in October 1991. Subsequently, in May 1992 the father returned the child to the mother in England. With the father's consent, the child was enrolled with a school in England in September 1992. The father agreed to the child studying there for one school term. However, at the end of the school term in May 1993, the mother did not return the child to the father. The father made an application under the Hague Convention. The trial judge held that there was an element of permanence in the father's consent to the child being brought to England (see p.215G) and the mother had a settled intention to stay in England. The child therefore became habitually resident in England and Texas ceased to be his state of habitual residence. The decision was upheld in the Court of Appeal. Mr Pilbrow relied on the following dicta of Waite LJ at p.215H to 216B:
49.That case is clearly distinguishable from the present case on the facts. In view of my findings in Paragraphs 44 to 46 above, the only person who has custody over the children at the material time was the mother. The mother has not formed any settled intention as to the future of the children. With regard to the dicta of Waite LJ, I would not take that as laying down that a temporary shift of base would mean a change in the habitual residence of the child. That would be inconsistent with cases like Re S [1994] Fam. 70, Re A [1995] 1 FLR 767 and Re V [2001] 1 FLR 253. I think what Waite LJ said should be read in the context of the facts of that case. The child in that case settled in England with the consent of the father for quite lengthy periods between 1991 and 1993. The "temporary shift" referred to by Waite LJ was not measured in terms of months. Further, Waite LJ made the observations by way of a statement couched with double negatives. I read that dicta as saying no more than that one could not rule out a change of habitual residence just because the shift of base was not intended to be permanent. All the facts have to be considered. This must be correct in view of cases like Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 and Re M [1993] 1 FLR 495. Ultimately, one has to bear in mind that habitual residence is a question of fact. In the present case, with reference to the intention of the mother at the material time, the stay of the children in Hong Kong was not only temporary, it was also unsettled. 50.On the evidence, it is not very clear to me precisely when did the mother change her mind about her coming to Hong Kong and allowing the children to remain in the care of the uncle and aunt. It should occur some time in August or September 2001. In a letter dated 18 September 2001, the mother demanded the return of the children to New Zealand. In any event, irrespective of the precise moment in time when she changed her mind, I find that at no time prior to that did she form a settled intention to relocate to Hong Kong. Hence, up to mid September when the mother issued the Convention proceedings, the children remained habitually resident in New Zealand. The mother's right of custody over the children 51.Given my finding that the children's habitual residence remained in New Zealand, in accordance with Article 3, the rights of custody attributable to the mother has to be considered with reference to New Zealand law in the application of the two stage test of Hale J (see Paragraph 28 above). 52.In New Zealand, custody in respect of the Children is governed by the Guardianship Act 1968. Pursuant to Section 6(2), the mother is the sole guardian and has sole custody of the Children under Section 3. As such, the mother has the right to determine the Children's place of residence, see Section 2 of the Guardianship Amendment Act (No.2) 1994. 53.Mr Pilbrow did not dispute these propositions which are supported by an Affidavit of applicable law by Anita Chan. It was also accepted that the placement of the Children under the foster care of CYFS under Section 139 of the Children, Young Persons and Their Families Act 1989, which was only meant to be a temporary emergency arrangement, did not take away the rights of custody over the children. In this connection, I have the evidence of the Second Affidavit of Mr Guest dated 5 December 2001. However, Mr Pilbrow submitted that the position was changed by virtue of the two orders made by the Family Court in Dunedin on 29 June 2001 as stated in Paragraph 5 above. He referred specifically to the order for appointment of the uncle as welfare guardian of the mother ["the Personal Order"]. He submitted that under the order, the uncle could make decision as to where the mother lives, hence it was submitted that the uncle could also determine where the Children live. Mr Pilbrow also relied on the Care Agreement and pointed to that as an authorization given by the mother to the uncle and aunt to determine where the Children shall reside. He submitted that irrespective of domestic law as to right of custody, the Care Agreement achieved a transfer of right of custody in the Convention sense by reason of the transfer of right to determine where the Children shall reside. 54.I think Mr Coleman is right in saying that there is an element of inconsistency between the first and second limbs of Mr Pilbrow's submissions. If the Personal Order has the effect of transferring the custody rights of the mother as contended for by Mr Pilbrow, there was simply no need for the uncle and aunt to procure the Care Agreement from the mother. In my judgment, it is clear that the Personal Order did not have such effect. That was an order made under Section 12 of the Protection of Personal and Property Rights Act, which reads:
55.It is therefore clear that the effect of the Personal Order was confined to the personal care and welfare of the mother. I do not think the right of custody of the mother over the children can be taken as an aspect of the personal care and welfare of the mother. The evidence as to New Zealand law did not support the submission of Mr Pilbrow. Further, Section 12 requires the particular aspects to which the order has effect to be specified in the order. From the terms of the Personal Order (reproduced by me in Paragraph 5 above), it is plain that the Family Court did not deal with the question as to custody of the Children. 56.With regard to the Care Agreement, I am of the view that it only provided an authorization to the uncle and aunt to take care of the children in the meantime. It did not have the effect of transferring the right of custody. I accept the evidence of Mr Guest that if a transfer of custody was intended, the proper and only way to achieve that was to make an application under the Guardianship Act. As mentioned, although they have been advised to make such an application, the uncle and aunt chose not to do so. Mr Pilbrow submitted that whilst it may be so for a transfer of custody right under domestic law, the position is different if one considers the transfer of custody right in the Convention sense. He based his argument on the right of the uncle and aunt to determine where the children are to reside whilst they are under their care. Mr Coleman pointed out that the Care Agreement only authorized the uncle and aunt to house the Children in their home, hence the mother still determined where they live. On my part, I am prepared to accept that uncle and aunt could take the Children abroad for a short holiday pursuant to Clause 4 of the Agreement. I am even prepared to go to the extent of holding that the uncle and aunt may have some rights of custody in the Convention sense. But that does not mean that they have such right to the exclusion of the mother. In my judgment, even if the uncle and aunt have rights of custody, the mother still has her right of custody. In short, the Care Agreement only permitted the uncle and aunt to do certain things in terms of care of the Children rather than effected a transfer of the mother's rights. The right of the uncle and aunt, being a right acquired from the mother under the Care Agreement rather than from an order of a court, is subject to the overriding right of the mother to determine the Agreement. This is precisely why the paternal grandparents failed in their application in Re M [1993] 1 FLR 495, see in particular Balcombe LJ at p.501 H. 57.I am therefore satisfied that the mother has at all material time right of custody over the Children according to New Zealand law and such right includes the right to determine where they live. It follows that she has the right to demand their return to New Zealand. She therefore has rights of custody within the meaning of that expression under the Convention. Wrongful retention: my findings 58.As explained in Paragraph 22 above, I do not regard the letter of 16 August 2001 as a refusal by the uncle and aunt to return the children to the mother. Mr Coleman referred to certain statements in the letter which suggested that the aunt had reservation about the mother's ability to take care of the children by reason of her illness. Bearing in mind the purpose for which the children were placed under their care in the first place and the evidence as to the mental health of the mother as revealed to them at that stage, I think the aunt was only raising some legitimate concerns. 59.Mr Coleman relied on Re S [1994] 1 FLR 82 and the finding by Wall J in that case that the mother's retention of the children in England against the wish of their father was wrongful. The whole family went from Israel to England for a sabbatical leave of the parents for one year. In the course of that year, the marriage broke down, the father went back to Israel. Before the expiration of one year, the father issued Convention proceedings. Wall J held that if the mother had intended to return the children at the expiry of one year, she would have a complete defence. However, since the mother had stated her intention not to return the children at any time in the future, Wall J held that the retention was wrongful from the time of the formation of such intention. Before proceedings were commenced, the father had written a letter to the mother to demand the return of the children (see p.86). The ratio of that decision can be found at p.93F to G:
60.On my part, I have reservations about the suggestion that there could be wrongful retention as soon as an intention was formed without any manifestation thereof in terms of action or communication. A similar doubt was expressed by Sir Michael Kerr in the Court of Appeal decision in Re AZ [1993] 1 FLR 682 at 689. This aspect of the decision of Wall J was also questioned by Beaumont & McEleavy, The Hague Convention on International Child Abduction, at p.41. (see also Watson v. Jamieson (1998) SLT 180) 61.On the facts of the present case, it is unnecessary for me to come to a concluded view on this point. For reasons already given, I am not satisfied that the letter of 16 August 2001 could be taken as evidence that the aunt and uncle did not intend to return the children to the mother when the purpose of the Care Agreement has been served. I am not satisfied that the mother had terminated the Care Agreement at that stage. The retention of the children in Hong Kong by the aunt and uncle at that stage was consistent with the Care Agreement. Therefore, there was no wrongful retention at the time when the letter of 16 August 2001 was written. The mother did not issue any Convention proceedings until 25 September 2001. Re S does not assist the mother regarding the first limb of her case of wrongful retention. 62.I now turn to the second limb of the mother's case of wrongful retention. By the letter of 18 September 2001, the mother clearly demanded the return of the children back to New Zealand. By necessary implication, the mother terminated the Care Agreement. For reasons already given in the section dealing with the custody rights of the mother, the uncle and aunt could not object to the termination of the Care Agreement since they had not obtained the custody of the children by any court order. Mr Pilbrow submitted that custody rights could be transferred by operation of law. I have already explained why on the facts of the present case, there was no transfer of custody rights from the mother to the uncle and aunt whether under the Care Agreement or pursuant to the two court orders of 29 June 2001. From 18 September 2001, the aunt and uncle could not retain the children in Hong Kong without any breach of the rights of custody of the mother. At the time when the uncle and aunt received the letter, the children had already been abducted by the father. They were returned on 28 September 2001. 63.On 21 September 2001, the uncle and aunt issued wardship proceedings in HCMP 5172 of 2001 in which they asked for custody of the children. In an affidavit filed on 27 September 2001, the uncle said that the mother could not possibly be the best person to look after the children at that time. These were clear statements of intention that they would not return the children to the mother in compliance with her request of 18 September 2001. At the direction hearing before me on 28 September 2001, I was told that they would oppose the Hague proceedings herein and I therefore directed that they be joined as defendants to these proceedings. Further, after the children were returned to the uncle and aunt, they retained them in Hong Kong instead of sending them back to the mother. The allegation of wrongful retention against the uncle and aunt was added by amendments to the Originating Summons on 11 October 2001. In my judgment, Re S [1994] 1 FLR 82 and Re AZ [1993] 1 FLR 682 are relevant and I find as a fact that the retention of the children by the uncle and aunt after 28 September 2001 to be wrongful in the Convention sense. I wish to emphasize that in so finding, I am not implicating that the uncle and aunt have done something wrong morally. I appreciate their concerns for the welfare of the children and I do not want this judgment to be taken as criticism against them for what they did. I only hold, as I am duty-bound to hold, that the requirements under Article 3 have been satisfied. Article 13: the law 64.Having reached the aforesaid conclusions, the only possible grounds for me to decline to make an order for the return of the children to New Zealand are those set out in Article 13 of the Convention. The relevant parts of Article 13 read:
65.Whatever one could say with regard to the situation prior to 18 September 2001, I do not think the mother could be said to consent or acquiesce in the retention of the children in Hong Kong after that date. Article 13(a) therefore does not apply. The arguments before me focused on Article 13(b), whether there was a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation. 66.Before I consider the relevant facts in the present case, it is necessary for me to deal with the law pertaining to Article 13(b). It was submitted by Mr Pilbrow that the Court of Appeal in D and G has construed Article 13(b) in a manner substantially different from overseas authorities. He submitted that according to D and G, if there are doubts on matters relevant to the welfare of the children, Article 13(b) would be engaged and the discretion of the court cannot be exercised by reference to undertakings or conditions to be imposed as to the return of children. Mr Pilbrow summarized the effect of D and G as follows:
67.Those are very bold submissions. In fact, one can see immediately that if Mr Pilbrow is correct in his interpretation of D and G, the aim of the Hague Convention could readily be frustrated as far as proceedings in Hong Kong are concerned. If the court were bound to investigate into each and every allegation relevant to the welfare of the child, it would in effect be conducting a custody hearing. This is precisely the situation which the Hague Convention aims at preventing. In this connection, I respectfully refer to Parta.34 of the explanatory report of the Convention by Perez-Vera:
68.To the same effect is the reminder of Laws LJ in TB v JB [2001] 2 FLR 515 at 545 [109],
And further at 547 [112], Law LJ summarized the position in the following terms,
Hale LJ said at [39] and [40] in the same case,
69.Kirby J in the High Court of Australia also expressed similar sentiment in the case of DP v Commonwealth Central Authority [2001] HCA 39 (27 June 2001):
Later on, His Honour concluded:
70.As I said in my Ruling of 10 December 2001, I am duty bound to follow the decision of the Court of Appeal in D and G even if it were inconsistent with overseas authorities. However, I do not think the judgment of the Court of Appeal requires me to adopt the approach suggested by Mr Pilbrow. I have already set out at length in Paras 10 to 17 of my Ruling what I understood to be the rationale of the Court of Appeal. I do not think there is any justification for deriving general propositions to the extent as proposed by Mr Pilbrow. It is necessary to bear in mind the factual context under which D and G was decided. The Court of Appeal was concerned with allegations of sexual abuse. The risk of physical or psychological harm was obvious if the allegations were true. The dicta of Le Pichon LJ in Paragraph 19 of the judgment must be read in that light. Her Ladyship was clearly referring to the specific allegations the court was dealing with. Hence, Le Pichon LJ said:
71.In my judgment, it would be wholly wrong to extrapolate from that paragraph a general principle that all allegations concerning the welfare of the child has to be resolved before a decision could be made under Article 13(b). That would indeed be inconsistent with what Cheung JA said expressly in Paragraph 32 of the judgment:
72.Regarding what amounts to "grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation", I do not think the Court of Appeal laid down any test different from the overseas authorities. It was not one of the issues the Court of Appeal had to decide in D and G. There seems to be not much dispute in D and G that if the allegations of sexual abuse were found to be true, grave risk would be established. 73.In Re C (abduction) (grave risk of psychological harm) [1999] 1 FLR 1145 at 1154, Ward LJ set the standard as follows:
74.In TB v JB [2001] 2 FLR 515 at p.532 [65], Arden LJ added the following after citation of the dicta of Ward LJ:
75.In the present context, the observations by Arden LJ at [95] in the same case is also relevant:
Hence, I can properly have regard to the mother's ability to look after the children if they were returned to New Zealand in consideration of Article 13(b) (and indeed duty bound to do so). But the overriding question remains whether there would be grave risk that the children would suffer physical or psychological harm or that they would be placed in an intolerable situation. 76.Mr Pilbrow referred to several paragraphs in the judgment of the High Court of Australia in DP v Commonwealth Central Authority [2001] HCA 39 (27 June 2001) on the approach in consideration of Article 13(b):
He submitted that the approach of the Court of Appeal in D and G was consistent with these dicta. 77.That was part of the joint judgment of Gaudron, Gummow and Hayne JJ (with whom Callinan J agreed, and they constituted the majority in that case). It is necessary to set out what their Honours continued to say immediately after the passage cited by Mr Pilbrow:
Hence, it is clear that their Honours were not saying that there should be investigation into each and every aspect concerning the welfare of the child once allegations of grave risk were made under Article 13(b). It is also relevant to refer to the observations of their Honours in earlier parts of their judgment:
78.In the same case, Kirby J (who together with Glesson CJ constituted the minority) said:
79.Although there were differences between the majority and the minority as to the application of the principles to the facts of the case in DP v Commonwealth Central Authority, I do not think there was disagreement as to the construction of Article 13(b). As Gleeson CJ said in his judgment in that case:
80.I agree that the joint judgment of the majority supports the approach laid down by the Court of Appeal in D and G, but it does not support the wider propositions advanced by Mr Pilbrow. Application of Article 13(b) to the facts 81.In my Ruling dated 11 December 2001, I have identified the risk pinpointed by Mr Pilbrow. At the request of the parties, I also set out the areas of concern which might be relevant for my decision under Article 13(b). The reason why I did so was to assist the various persons who would prepare the reports I asked for (see para.7 of the Ruling). Mr Coleman rightly reminded the court that those were only tentative areas of concern on which the report makers were asked to address. It was not my intention to hold at that stage that if those concerns were not dealt with satisfactorily, a case of grave risk of harm would have been made out under Article 13(b) and I certainly did not do so. That should also have been clear to the parties given the circumstances under which I give the directions on 11 December 2001. 82.As I mentioned, pursuant to my directions and requests, further material were placed before me. They give me more information to facilitate my adjudication on Article 13(b). At the same time, based on the additional material, Mr Pilbrow has slightly changed his emphasis in his argument as to the grave risk of harm. Previously, his emphasis was on the mental condition of the mother and the threat posed by G. At the resumed hearing, his emphasis seems to be on the parental functioning of the mother. 83.Mr Pilbrow has gone through each area of concern mentioned in my Ruling of 11 December 2001 and submitted that there are still uncertainties which have not been satisfactorily resolved. Whilst those are relevant for my consideration, the ultimate question remains whether the 2nd and 3rd Defendants established that there is a grave risk that the return of the children to New Zealand would expose them to physical or psychological harm or otherwise place them in an intolerable situation. If that is not established, I must order their return. On the other hand, if that is established, I would have a discretion to refuse to make an order for their return to New Zealand. But I may still exercise my discretion to order their return if I am satisfied that adequate and sufficient practical measures are in place to deal with such risk. 84.I shall first deal with the concern emerging from the incident concerning G. I am greatly assisted by the report of the Senior Psychologist and on the evidence, I am satisfied that the unhappy incident did happen. If G continued to live together with the mother, I would have no difficulty in holding that grave risk is established particularly in view of the mother's attitude towards the incident in Paragraph 25 of the Second Affidavit of the mother. However, I am satisfied that G has moved away and it is unlikely that he would go back. I agree with the view expressed by the Senior Psychologist that there will be no imminent risk in that regard if the children were returned to New Zealand (see Paras 20, 21(f) and 22 of the report of 27 February 2002, see also report of James Trigger-Hay at p.344 of the bundle and Dr Taghavi at p.340). I therefore find that grave risk has not been shown in relation to menace from G. 85.As to the mental condition of the mother, in general there is no disagreement between the experts. The mother was diagnosed as suffering from schizophrenia and has been subject to medical treatment since June 2001. Since her discharge from the hospital, she has been closely monitored by professionals from the North Community Mental Health Team. The team included consultant psychiatrist, psychiatric nurse, social workers and occupational therapist. Her current mental condition was described by Dr Taghavi in January 2002 as follows:
The doctor also said the following in a letter dated 13 November 2001:
86.The risk of relapse could not be ruled out. Dr Taghavi intended to keep her on medication for 24 months. The underlying assumption seems to be that as long as she is on medication, the risk of relapse would be minimized. Although Dr Taghavi described her as having some insight, it is obvious that she has yet to accept fully the nature of her illness. But she does accept she need to have treatment. Dr Hong agreed in his letter of 2 November 2001 that the condition of the mother was treatable with medication. He expressed doubts about the mother's compliance with treatment. 87.Mr Pilbrow submitted that Dr Taghavi did not have a full picture because he did not interview the family members of the mother. He relied on the following observations of Dr Hong (who, for obvious reason, did not have the opportunity of interviewing the mother) in his letter of 2 November 2001:
88.With respect, I do not see that as a valid criticism. It is clear that Dr Taghavi did not prepare his report merely by reference to his interview with the mother. As stated clearly in his report of 4 January 2002, apart from his monthly interviews with the mother, Dr Taghavi also referred to bi-weekly reports from the social worker and community nurse and occupational therapist. The social worker and community nurse visited the mother on a regular basis. Whilst G might be able to provide some additional information, I do not think that it would escape the attention of these professionals if the mother's mental condition was actually unstable or materially worse than the one depicted by Dr Taghavi. 89.Dr Hong's reservation about the mother's compliance to treatment was based on her lack of insight as to her illness and the observation in a report dated 27 June 2001 of Dr Andrea Boros-Lavack. The latter report, being one made shortly after the admission of the mother into hospital, could not be fairly relied upon when we are dealing with the current condition of the mother. As to her insight on her illness, whilst it may be incomplete or partial, the fact remains that she has apparently been responding well to medication. After all, she has been subject to close monitoring by the North Community Mental Health Team since her discharge and Dr Taghavi was able to report that she had been co-operative and progressing steadily. 90.Another point made by Mr Pilbrow was that the return of the children to New Zealand would increase her stress which might increase the chance of relapse. Dr Taghavi accepted that should the children return, there would be more work and stress for the mother, however he also advised that their return would help her emotionally. I have to assess this risk in the light of what the mother told the social worker as recorded in Para.6 of the report of 11 January 2002 (p.326 of the Bundle). I am comforted by the fact that the North Community Mental Health Team would continue to monitor her condition closely and according to Mr Trigger-Hay, there will be daily contacts during the first month of the children's back in New Zealand. Their role will be to monitor the mother's mental state, her safety and the safety/care of the children. The CYFS would also be working alongside with them and I am satisfied that when there are signs that the children are at risk, CYFS would be duly notified to make the necessary applications under Children Young Persons & Their Families Act 1989 (see the replies of Rangi Atari in the fax of 13 December 2001, Para.3(v) and Para.7 at p.306 and 307 of the bundle). Borrowing the expression of Mr Pilbrow, there will be someone there to "press the button" to evoke the protective mechanism towards the children in case things go wrong. 91.I move on to deal with the points raised by Mr Pilbrow as to the parental functioning of the mother. Paragraphs 16, 17, 19 and 21(e) of the report of the Senior Psychologist identified several areas of concern over the mother's psychological and parental functioning. She considered those as a separate aspect from the mental stability of the mother. The Senior Psychologist summed up her worries in Para.22 as follows:
92.Whilst it cannot be denied that psychological deficits of a parent could in some circumstances lead to psychological harm to children, one has to bear in mind that in the context of Article 13(b), the risk of harm that has to be established must be grave. It has to be commensurate with an intolerable situation. It has to be severe and proved by clear and compelling evidence. The Senior Psychologist had certain limitations in the preparation of her report (see Para.4 of her report). Due to such limitations, her deductions as to possible psychological explanations for certain occurrence were neither definitive nor conclusive. She was unable to put it higher than as worries harboured by her. On the other hand, she observed that the children had a lot of positive feelings and yearnings for the mother and they longed for and wished to be reunited with their mother. In these circumstances, even bearing in mind what the Senior Psychologist said in Para.16 of her report, I do not think the worries expressed by her constituted sufficient evidence to satisfy the test under Article 13(b). 93.The evidence does show that there were aspects in the child care provided by the mother which might cause one to raise an eyebrow. But one must be careful not to allow the inquiry into these matters to turn into a full blown custody hearing. That would defeat the purpose of the Convention. Within the confines of Article 13(b), the quality of child care provided by the mother is only relevant when the under-functioning of parental responsibility is so severe that it could properly be said that the return of the child to such a parent would expose him to grave risk of physical or psychological harm or otherwise place him in an intolerable situation. The matters relied on by Mr Pilbrow included the neglect of the mother to the needs of the children (see Para.13 of the report of the Senior Psychologist, but there is a question mark as to whether that was due to the mother's mental condition), the failure of the mother to protect L against G, the mother's tendency to satisfy her emotional needs through the children, the experience with regard to G's upbringing (see Para.17 of the report of the Senior Psychologist, Para.6 of the report of Social Welfare Officer). 94.I must admit that at one stage these matters did cause me concern, hence my Rulings on 10 and 11 December 2001. However, with the benefit of the reports and bearing in mind the measures in place stated in Paragraph 95 below, I have come to a clear conclusion that these matters, whether taken individually or cumulatively, did not justify the exercise of my discretion to refuse the return of the children under Article 13(b). The children were described by the Senior Psychologist as being pleasant, spontaneous, expressive, cooperative and happy. Although the children have probably improved since they come to Hong Kong (see Para.8 of the report of the Senior Psychologist), I do not think they could be so if they have suffered substantial psychological impairment when they were under the care of the mother. It has to be remembered that they had been under her sole care since birth until they were brought to Hong Kong in July 2001. Granted that the uncle and aunt indeed found the situation appalling when they went to New Zealand in June 2001, but that was when the family was in serious distress because of the mental condition of the mother. 95.Further, in a letter dated 31 October 2001, CYFS indicated that they would do an assessment of the mother's child care ability and her commitment to keep the children protected from harm upon notification of concerns about the twin's care or protection. They are also obliged under New Zealand law to protect the children. Mr Pilbrow said there was no-one there to alert them. I have dealt with that in Paragraph 90 above. 96.That brings me to a point I have not addressed so far. The safety net referred to in Paragraph 90 would only work if the mother remains in Dunedin. Once she leaves there, she would not be subject to any monitoring by the North Community Mental Health Team. There is nothing to stop her from leaving once the children were returned to her. In fact, she has indicated she intended to move back to somewhere warmer. Although several friends of the father have kindly indicated to this court that they were willing to assist, I agree with Mr Pilbrow that there are doubts as to whether they could provide any practical help given the fact that none of them live in Dunedin. The father's promise to visit the mother and the children in New Zealand once every month is also suspect in view of his track record as to the exercise of access whilst the children were in Hong Kong and as to his previous visits to New Zealand. He also has another family in Taiwan to look after. 97.This concern is exacerbated by the association of the mother with S who is in Australia and her reticence about it. This could be a strong inducement for the mother to leave New Zealand. There is also evidence that this gentleman did not have a sound insight as to the illness of the mother. 98.In the usual case, this could easily be resolved by pending or intended proceedings in the requesting country concerning the children. Until the court of that country is satisfied with the welfare of the children, the mother could not take them out of jurisdiction. However, I am dealing with an unusual case. The mother lives in New Zealand by herself. The father lives in Taiwan. He has not commenced any proceedings concerning the children in New Zealand. Although he mentioned at the hearing in December 2001 that he has instructed New Zealand lawyer to ask for joint custody, at the end of the day he only produced a handwritten agreement signed by the mother to the effect that she has custody of the children while he could "take over what-so-ever happen to the mother". It seems that if the children were returned to New Zealand, the father would not commence any proceedings in New Zealand on his own volition. Despite the genuine care of the uncle and aunt for the children, it is by no means clear whether they would institute proceedings in New Zealand regarding the children. In this respect, the joint judgment of Gaudron, Gummow and Hayne JJ cited in Paragraph 77 above is relevant. 99.Mr Coleman submitted that I should not be concerned with what would happen in several months' time after the children were returned. Whether the mother would remain in Dunedin or move elsewhere, that would not happen immediately. I do not agree. My conclusion on Article 13(b) in the present case depends to some extent on the close monitoring of the situation by the North Community Mental Health Team. If they are not there to "press the button" when necessary, the picture would be very different. If she moves to say Australia, the mother would be on her own in taking care of the children in a strange place. I do not have much confidence about S properly taking care of her mental well-being. And the children would be at risk. In the circumstances, I consider that I am duty bound to require some assurance that this safety net mechanism would not be frustrated by the relocation of the mother. 100.Looking the matter from this angle, unless I can have that assurance by imposing some conditions as to the return of the children, the case would have to be considered on the basis that there was a grave risk that the mother would move elsewhere, hence the monitoring of the North Community Mental Health Team would not be effective. On that scenario, by reason of the risk of the stress on the return of the children causing a relapse of her mental illness and the likely deterioration of the child care provided by her to an unacceptable level in that event, adopting the approach of D and G as explained in Para. 17 of my Ruling of 10 December 2001, I would have found that grave risk of harm or intolerable situation under Article 13(b) is established and I would exercise my discretion to refuse the application of the mother. 101.Mr Pilbrow submitted that the court should not make a conditional order for return and he relied on the dicta of Le Pichon LJ in D and G at [18]:
102.I do not think Le Pichon LJ went so far as saying that no conditional order could properly be made in the exercise of the court's discretion under Article 13(b). What Her Ladyship was saying was that the court must reflect on the enforceability of the condition before it could properly rely on such conditions as sufficient for alleviating the risk concerned. Read in that light, that approach is supported by the joint judgment of Gaudron, Gummow and Hayne JJ cited in Paragraph 77 above, although by the use of the word 'otherwise', their Honours seemed to consider this in an overall context asking whether grave risk has been established instead of splitting it into a two stage test. 103.The condition that I have in mind is a condition to ensure that there are legal proceedings on foot in New Zealand concerning the welfare of the children before they are returned. That would ensure that the mother could not lawfully take the children away without the sanction of the court in New Zealand. It would be a matter for the New Zealand Court to decide whether the mother should stay in Dunedin or live elsewhere in New Zealand and what measures are necessary to monitor the welfare of the children. I would also direct that a copy of this judgment be supplied to the New Zealand court seized with the matter. Such proceedings should be commenced before the children were returned. Proceedings could be commenced either by the father (and he is at the moment subject to the jurisdiction of this court, being one of the party to these proceedings) or the Central Authority in New Zealand. In the third Special Commission Meeting to review the operation of the Hague Convention held in March 1997, the delegates agreed that the Central Authority could play an active role in the context of Article 7(h) in ensuring the safety of the children returned. In the report prepared by the Permanent Bureau, it was stated in Paras 58 and 59 as follows:
104.As a result of that discussion, certain proposals were drawn up, including a revised proposal prepared by the delegations of Australia, the United Kingdom, Monaco, New Zealand, Norway, Sweden and Switzerland. All experts agreed with the spirit of the proposal contained in this document although some changes were suggested. In its final form, the proposals are in the following terms:
105.Although some countries have expressed reservations concerning the conclusion in the square brackets, that did not include New Zealand. The final version was based on the draft put forward by, inter alia, New Zealand. Hence, I have every confidence that the Central Authority in New Zealand would take the measure suggested in Paragraph 3(a) of the said Conclusions and cause legal proceedings concerning the welfare of the children to be commenced in New Zealand to allay the concern of this court. 106.The uncle and aunt may also consider whether they would join in as parties to those proceedings. Since the children would not be returned until proceedings are on foot, there is no question about enforceability. I would require an affidavit setting out progress as to such proceedings and exhibiting the relevant court documents to be filed before the return of the children. However, I wish to hear parties as to the precise terms of the condition and for that purpose, the matter has to be restored. I expect the Central Authority in Hong Kong to liaise with their counterpart in New Zealand concerning the implementation of the condition and provide me with necessary information at the restored hearing. 107.Subject to the fulfillment of the said condition, the children would have to be returned to New Zealand, that being their habitual residence. I would end this judgment by commending the efforts of the uncle and aunt in taking care of the children whilst they were in Hong Kong. I realize that they might be disappointed with my decision. However, I hope they could understand that I am constrained by the nature of these proceedings and my decision to return the children to New Zealand in no way reflect against their contribution to the well-being of the children whilst they were under their care. Boggs J said in the U.S. case of Friedrich v Friedrich (1996) 78 F 3d 1060 at 1068,
In a different context, Ward LJ said in Re P, 2 November 2000, in dismissing an appeal against an order for returning a child to Zimbabwe notwithstanding the evocation of Article 13(b) by the mother due to the situation there:
Representation: Mr R Coleman, instructed by Department of Justice, for the Plaintiff Mr Pilbrow, instructed by Messrs Hampton, Winter & Glynn, for the 2nd and 3rd Defendants 1st Defendant, CWF, in person |
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