Ac v. Pc

HCMP001238/2004

HCMP 1238/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1238 OF 2004

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Coram: Hon Hartmann J in Chambers

Date of Hearing: 8 June 2004

Date of Handing Down Judgment: 14 June 2004

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J U D G M E N T

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Introduction

1.On 17 May 2004, pursuant to a request made by the Australian Commonwealth Central Authority, proceedings were instituted in this Court under the Child Abduction and Custody Ordinance, Cap.512. The Ordinance gives effect to Hong Kong's obligations under the Convention on Civil Aspects of International Child Abduction, commonly known as the Hague Convention ('the Convention'). The originating summons was issued by Hong Kong's Central Authority, it being the original plaintiff. However, in terms of what now appears to be customary procedure, by an order of 20 May it withdrew from the proceedings. That being said, a representative of the Central Authority remained in court during the hearing to render any assistance necessary.

2.The substituted plaintiff in the proceedings ('the mother') alleges that the defendant ('the father') removed the two children of their marriage from Australia, their country of habitual residence, on 16 August 1999 in breach of her rights of custody within the meaning of art.3 of the Convention. She seeks an order for the return of the children pursuant to art.12.

3.The two children are Al (born 6 March 1991) and his sister Ar (born 20 November 1994). Al is now 13 years old, Ar is 9 years old. Both children were born in Australia.

4.The father concedes that he removed the children from Australia in breach of the Convention. This has never been in issue. However, he opposes the mother's application on the basis that, in terms of art.12 of the Convention, more than one year has elapsed since the date of the wrongful removal and the commencement of proceedings against him and the children are now settled in their new environment. Accordingly, it is his contention that the Convention no longer applies or, if it is held still to apply, that this Court should not exercise its discretion to order the children's return.

5.It is agreed that the provisions of art.12 of the Convention, as read with art.18, determine this matter. Art.12, in so far as it is relevant, reads :

" Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed form the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."

6.Art.18 reads :

" The provisions of this Chapter [Chapter III - Return of Children] do not limit the power of a judicial or administrative authority to order the return of the child at any time."

Background

7.The history of this matter, in so far as it is relevant, may be summarised in the following way.

8.The mother, who is of Malaysian origin, was raised in Perth, Western Australia. The father, who is Cantonese, was raised in Hong Kong. The parties met in 1989 when both were studying at college in Perth. A year later, they were married in that city.

9.Although the parties lived and worked in Perth for much of their married life, two extended periods of time were spent in Hong Kong. On the first occasion, they lived here for about six months between the end of 1993 and mid-1994. On the second occasion their time in Hong Kong was more extended, spanning a period of some three years from 1995 until 1998.

10.As is often customary in Asian marriages, both the maternal and paternal grandparents have played an integral role in helping to raise the children. When the parties lived in Perth, they resided with the maternal grandparents, when they lived in Hong Kong they resided with the paternal grandparents.

11.It appears that towards the end of the parties' second period of time in Hong Kong, unhappy differences arose in the marriage. Seeking a fresh start, it was resolved that the family should return to Perth. The mother returned with the two children in late 1998, the father in early 1999. Regrettably, despite their joint resolve, the relationship worsened to the extent that, after her return but before the father had himself returned, the mother instituted divorce proceedings. The couple were divorced in or about April 1999.

12.The father, however, settled in Perth, opening a lunch bar business. If not for the events which followed it appears he would have persisted in that business.

13.When he returned, the father continued to live with his parents-in-law in the same house as the mother and the children. The divorce did not alter that arrangement.

14.It appears, however, that there was an unfortunate confrontation in or about July 1999. In the result, the mother made an application to the Family Court in Perth seeking the day-to-day care and control of the children. That application was set for hearing on 23 August 1999. Fearing that if she remained in Perth there would be further confrontations between herself and the father prior to the hearing, the mother flew to Sydney to spend the interim period with relatives. The children were left in the care of her mother and father, the maternal grandparents.

15.After he had been served with the court papers, the father removed the children from the home of the maternal grandparents and, on 16 August 1999, flew with them to Hong Kong.

16.It is evident that, when she learnt her children had been taken by the father, the mother took active steps to find them. It is further evident that, upon the fathers' failure to appear at the Perth Family Court on 23 August 1999, she took advantage of whatever legal channels were available to her to try to locate the children and seek their return.

17.As for the father, although he returned to Hong Kong with the children on 17 August 1999, he only remained with them in this jurisdiction for a limited period of time. In early September of that year, he took the children to his father's home town in the Mainland, a town called Zhongshan situated in Guangdong Province. The children remained there in the care of their paternal grandmother and commenced schooling.

18.Although Hong Kong is a member of the Convention, the Peoples Republic of China has not itself ratified the Convention. On the preponderance of the evidence, I believe it is to be inferred that the father was aware that removing the children to the Mainland would place them beyond the reach of the Convention.

19.Early the following year, in March 2000, the Australian Central Authority, believing that the children may be found in Hong Kong, made an application to the Hong Kong Central Authority for their return. Enquires revealed that the children were not here but the Hong Kong immigration authorities were alerted and the children placed on what is called a 'watch list'.

20.As it transpired, when the children did return to Hong Kong from the Mainland, the immigration authorities were not alerted. This is because the children were able to bypass immigration controls. The evidence shows that the children returned to Hong Kong in or about December 2002 and have resided here since that time. They were able to avoid immigration controls because, according to the father, they were brought from the Mainland in a vessel which sailed into the fishing port of Aberdeen and landed the children there.

21.As to how this came about, it is the father's case that an epidemic broke out in Guangdong Province in the area where the children were living. Fearing that the children may fall victim, the father sought to bring them to Hong Kong. Their Australian passports were required for this purpose but they could not be found. With time of the essence, the father therefore sought the help of his clansmen to bring the children to this jurisdiction.

22.While I cannot reject the father's version of why it was necessary to smuggle the children into Hong Kong, I confess I am skeptical, the more so as the childrens' passports were subsequently located. In my view, the probabilities support the mother's contention that the clandestine return to Hong Kong was part of the father's on-going attempt to ensure that the mother would not be in a position to locate the children and institute action for their return to Australia.

23.Although the father's evidence is equivocal on the subject, I am satisfied that after he had removed the children from Australia he did take active steps, not to exclude the mother entirely from the lives of the children, but rather to keep the children beyond the reach of any legal process she may (in any practical sense) have been able to commence. The evidence throws up a number of examples to prove the point.

24.In May 2000, when the children were already settled in the Mainland, being cared for on a day-to-day basis by the paternal grandmother, and were attending school there, the father sent the following e-mail to the mother :

"How are you? We are fine, children are at school, they both like here very much I have called you so many times but your father always hang me up. Since the last mail, I told you we are going to Taiwan, I asked you but you didn't reply.

Now we stay in Taiwan, if you have time, you can call me at 927272182. The country code for Taiwan is 886. You better check it again for sure. OK, if you want to join us in Taiwan, you are welcome."

It is not disputed that the assertions concerning Taiwan, in respect of the children at least, were entirely false. There is no evidence of any intention even to take the children to live in Taiwan.

25.In the same month, a firm of Taiwan attorneys - not Hong Kong solicitors or Mainland lawyers - wrote to the mother saying that they had been instructed by the father to seek a settlement of the 'outstanding issue' of the children's custody.

26.It is also pertinent to note that nearly a year later, in March 2001, the Hong Kong Central Authority sent a report to the mother in the following terms :

" We have requested the social worker to inquire with the [paternal] grandfather again. However, the grandfather claimed the children are now in Taiwan with the grandmother who takes care of them. He also claimed that he has no knowledge of the father's frequent travelling. The social worker has requested the grandfather to relate the matter to the father and ask the father to contact us. However, we have not heard from the father up to now."

27.In or about May 2002, the father was stopped en route to Zhongshan by immigration officers in Macau. The children were not with him. He was informed that proceedings had been instituted against him for the wrongful removal of the children from Australia. In the days thereafter there was a flurry of communication with the mother. In his affirmation of 3 June 2004, the father has described events as follows :

" Having told them [the Macanese immigration officers] the children's address in Zhongshan together with all the other information required, I was released. Once in Zhongshan, I called the Plaintiff. On the phone, I invited her to visit the children in Zhongshan. I also proposed to buy her an air-ticket for the purpose. The offer was however, rejected right away. About a week later, while I was still in Zhongshan, my son received a phone call from the Plaintiff ..."

28.The evidence reveals that during this short period of communication the father sought a compromise with the mother in terms of which she would have regular access to the children. That came to nothing and at the end of the year, of course, the father arranged for the clandestine arrival of the children in Hong Kong.

29.The presence of the children in Hong Kong eventually came to light in April 2004 when the father sought to obtain permanent resident status for Al. This necessited an application being made to the Hong Kong immigration authorities who notified the Central Authority.

Deliberate concealment

30.It will be apparent from my observations that I am satisfied on the evidence of two matters. First, that the mother has been active in her pursuit of the children; there can be no suggestion that she has in any way acquiesced in their removal and indeed none has been made. Second, from the time of their removal from Australia the father has taken steps to physically locate the children beyond the reach of the Convention and/or to conceal their whereabouts from the mother. I have little doubt that, if the father had not inadvertently revealed Al's whereabouts in the application made to the immigration authorities, the mother would still be ignorant of the fact that the children have been living in Hong Kong since the end of 2002. The father's policy of concealment was pursued by him from the time he removed the children from Australia on 16 August 1999 until the commencement of proceedings in this matter on 17 May 2004.

Does concealment act to 'toll' the twelve-month period under art.12?

31.Art.12 contains two paragraphs. They are not given their own numbers but are commonly described as 12(1) and 12(2). Art.12(1), to cite it again, reads :

" Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

32.On a plain reading of the text, I believe the meaning is clear. If proceedings under the Convention are commenced within one year of a wrongful removal or retention of a child, the court is obliged to order the return of the child 'forthwith'. Subject to art.13, which has no application in this case, the obligation is mandatory.

33.Art.12(2) looks to the position where a period of more than one year has elapsed. To cite it again, art.12(2) reads :

" The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."

34.Again, on a plain reading of the text, I believe the meaning is clear. The fact that proceedings under the Convention are commenced more than one year after a wrongful removal or retention does not alter the obligation of our courts to order the return of the child (albeit not necessarily 'forthwith') unless it is demonstrated that the child is now settled in its new environment.

35.For the mother, Ms Catherine Por submitted that to allow an abducting parent to benefit from deliberate acts of concealment would not accord with the intent and purpose of the Convention. It would encourage clandestine manouvres and thereby undermine not only the interests of many individual children but the interests of children generally. It must therefore be the purposive intent of the language of art.12 that deliberate acts of concealment do suspend or toll the effluxion of time under art.12.

36.That being the case, she said, the whereabouts of the children having only been discovered the month before the commencement of these proceedings, art.12(1) must apply and no question of the children being now settled in Hong Kong arises. The father has conceded that the children were removed from their country of habitual residence in breach of the mother's rights of custody under art.3 and accordingly the children must be returned forthwith.

37.Surprisingly, there appears to be a dearth of jurisprudence on this issue and in support of her submissions Ms Por was only able to refer in any real substance to two authorities. The first was a decision of the United States Court of Appeals for the Eleventh Circuit in the case of Furnes v. Reeves, 362 F.3d 702 (2004), decided as recently as March of this year, in which the court held that 'equitable tolling' may apply in Convention cases where the parent removing the child has secreted the child from the parent seeking return. If it was otherwise, a parent who abducts and conceals a child for more than a year would be rewarded for his or her misconduct by creating eligibity for an affirmative defense which would not otherwise be available.

38.Ms Por also made reference to an English authority, that of Re H (Abduction : child of 16) [2000] 2 FLR, a first instance decision of Bracewell J in which the following was said :

"It is the case, looking at the relative dates, that these proceedings were commenced after the expiration of the period of one year from the date of removal. It is, in my judgment, necessary to consider why the proceedings were so delayed. That, in my opinion, is relevant to the question of settlement ... time in hiding cannot go to establish settlement and it is not good law for the abducting parent to be able to say 'well, I have managed to evade the wronged parent; I have managed to hide my address and whereabouts of the children and I am going to rely on that in advance of the argument that the children have been so long in the jurisdiction that they have now settled in that environment and the court should exercise a judgment not to return them to the original jurisdiction'."

39.I have struggled a little with that passage. While I can readily understand how concealment is of direct (and perhaps overriding) relevance to the factual question of whether a child has settled in its new environment, I do not see how it can be directly relevant to the separate issue of whether a year has or has not passed for the purposes of art.12, not unless it is being said indirectly that the principle of equitable tolling is to be applied.

40.In opposing Ms Por's submissions as to the meaning and intent of art.12, Ms Lisa Remedios, for the father, submitted that, in terms of the article, the effluxion of time is a simple calculation and is not in any way 'suspended' or 'tolled' by a deliberate act of concealment on the part of the abducting parent. The Convention is an international document intended to be read consistently by the authorities of all member states and it is imperative therefore that the plain language of the Convention be honoured without the application of any judicial gloss, common law or civil.

41.The father, she said, removed the children from Australia on 16 August 1999. The present proceedings were commenced on 17 May 2004. A period of four years and nine months has elapsed between the wrongful removal and the commencement of proceedings. Accordingly, art.12(2) applies and it is for this Court to determine, as an issue of law and fact, whether the children are now settled in Hong Kong. If it is found that they are settled then either the Convention ceases to apply or, in terms of art.18, the court must decide whether, in the exercise of its discretion, the children should remain here, their future to be determined by the Hong Kong courts, or whether they should be returned to Australia, their future to be determined by the courts of that country.

42.Ms Remedios was greatly assisted in her submissions by a judgment of Singer J in the High Court of England delivered, it appears, on 28 May 2004, a matter of days before the commencement of this hearing. The judgment was brought to the court's attention by the Hong Kong Central Authority. The judgment, that of Re C (Abduction : Settlement) [2004] EWHC 1245 (Fam), Case No.FD03P02308, contains an impressive, in-depth analysis of the meaning and effect of art.12, both as it stands alone and as it is related to art.18. Having reviewed relevant authorities and academic writings, Singer J concluded that :

(a) Deliberate concealment by an abducting parent does not suspend or toll the effluxion of the one year under art.12 although, as I have observed in para.39 supra, it may be and often is highly material when the court considers whether settlement is demonstrated.

(b) If the court is satisfied pursuant to art.12(2) that a child is now settled in its new environment then the application falls from the Convention's ambit entirely and no discretionary power to order return subsists.

(c) Article 18 does not create a residual discretion to make a return order under the Convention. Its purpose and effect are to make it clear that the Convention in no way limits or precludes a requested state (or jurisdiction, such as Hong Kong) from ordering return pursuant to its own domestic laws.

43.I have considered Singer J's judgment in Re C at length, and, while I have taken the United States authority referred to in para.37 supra as being highly persuasive, I am nevertheless satisfied that the three conclusions reached by Singer J are correct in law. For the purposes of this judgment, I adopt them in full.

44.I accept that I do an injustice to the judgment by scavenging from it but to assist the parties in this case it seems to me to be the simplest way of setting out in broad terms why it is that I have adopted Singer J's three conclusions.

45.As to why deliberate concealment should not suspend or toll the passing of time under art.12, Singer J (at para.70) made reference to the observations of District Judge James L. Graham in Anderson v. Acree, 250F. Supp.2d 872; (2002) United States District Court for the Southern District of Onio, Eastern Division. Those observations are a succinct exposition of what I consider to be the true interpretation of art.12 in respect of tolling. The judge said (at 875) :

"However, this court is not convinced that the one-year period referred to in Article 12 is a statute of limitations. A petition for the return of the child is not barred if it is filed over one year from the date of removal. Rather, the drafters of the Hague Convention decided that after the passage of a year, it became a reasonable possibility that the child could be harmed by its removal from an environment into which the child had become settled, and that the court ought to be allowed to consider this factor in making the decision whether to order the child's return. This potential of harm to the child remains regardless of whether the petitioner has a good reason for failing to file the petition sooner, such as where the respondent has concealed the child's whereabouts. There is nothing in the language of the Hague Convention which suggests that the fact that the child is settled in his or her new environment may not be considered if the petitioning parent has a good reason for failing to file the petition within one year."

46.The same interpretation was reached by District Judge George A. O'Toole Jr in the case of Toren v. Toren, 26F. Supp. 2d 240; (1998) United States District Court for the District of Massachusetts, and stated with equal clarity. Again, the words reflect my thinking. The judge said :

"the language of the Convention is unambiguous, measuring the one-year period from the 'date of the wrongful removal or retention.' ... It might have provided that the period should be measured from the date the offended-against party learned or had notice of the wrongful retention, but it does not. That is not surprising, since the evident import of the provision is not so much to provide a potential plaintiff with a reasonable time to assert any claims, as a statute of limitation does, but rather to put some limit on the uprooting of a settled child. Thus, even in the unlikely event that the potential plaintiff had no notice of the wrongful retention until after a year had expired, it is the Convention's prescription that the child who is settled in a new environment ought not to be ordered returned under the Convention's auspices."

47.Those opinions of the United States District Court are supported, I believe, by Professor Perez-Vera who said the following in respect of art.12 in her authoritative commentary on the genesis of the Convention Explanatory Report of the Convention on Civil Aspects of International Child Abduction :

"Article 12 ... highlights two cases; firstly, the duty of authorities where proceedings have begun within one year of the wrongful removal or retention of a child and, secondly, the conditions which attach to this duty where an application is submitted after the aforementioned time-limit.

107 In the first paragraph, the article brings a unique solution to bear upon the problem of determining the period during which the authorities concerned must order the return of the child forthwith. The problem is an important one since, in so far as the return of the child is regarded as being in its interests, it is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it - something which is outside the scope of the Convention. Now, the difficulties encountered in any attempt to state this test of 'integration of the child' as an objective rule resulted in a time-limit being fixed which, although perhaps arbitrary, nevertheless proved to be the 'least bad' answer to the concerns which were voiced in this regard." [my emphasis]

In respect of art.12(2), Professor Perez-Vera said :

"109 The second paragraph answered to the need, felt strongly throughout the preliminary proceedings, to lessen the consequences which would flow from the adoption of an inflexible time-limit beyond which the provisions of the Convention could not be invoked. The solution finally adopted plainly extends the Convention's scope by maintaining indefinitely a real obligation to return the child. In any event, it cannot be denied that such an obligation disappears whenever it can be shown that 'the child is now settled in its new environment'. The provision does not state how this fact is to be proved, but it would seem logical to regard such a task as falling upon the abductor or upon the person who opposes the return of the child, whilst at the same time preserving the contingent discretionary power of internal authorities in this regard. In any case, the proof or verification of a child's establishment in a new environment opens up the possibility of longer proceedings than those envisaged in the first paragraph. Finally, and as much for these reasons as for the fact that the return will, in the very nature of things, always occur much later than one year after the abduction, the Convention does not speak in this context of return 'forthwith' but merely of return."

[my emphasis]

48.In my view, these commentaries support the conclusion that, although largely unspoken, one of the principal objects of the Convention is to secure the best interests of abducted children rather than punishing those who abduct them. That being the case, even if there has been morally reprehensible conduct on the part of the abductor, a time must be reached when, if the circumstances so dictate, it harms rather than helps children to order their return.

49.In this regard, it is important, I believe, to look to the essential mischief which the Convention is designed to counter and the manner in which it does so. The essential mischief is the removal - either by abduction or wrongful retention - of a child from its natural environment. By 'natural environment' I mean the family and social environment of the country in which the child's life has developed or is developing. The means by which the Convention counters such mischief is by an early restoration of the status quo which is achieved by ensuring the prompt return of the child to the country of its natural environment. If this were not done, it would allow the party who has abducted the child to a country of refuge or wrongfully retained the child in that country to seek the assistance of the courts there and by that means create a jurisdiction which is more or less artificial. The creation of such a jurisdiction is artificial because it does not encompass the child's natural environment. An early return from that jurisdiction returns the child to the jurisdiction of its natural environment.

50.The key element of promptness was recognised by the drafters of the Convention. Although neither the Preamble nor art.1 of the Convention have been enacted into Hong Kong law, they may nevertheless be considered in this regard. The Preamble is in the following terms :

"The States signatory to the present Convention,

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody,

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access ..." [my emphasis]

51.Art.1 reads :

"The objects of the present Convention are -

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State ..." [my emphasis]

52.In Re C, Singer J emphasised the key word 'prompt', coming to the finding that

" 'Prompt' in this context does not refer to the separate requirement (encapsulated in article 2) for Contracting States to 'use the most expeditious procedures available' to secure the implementation of the Convention's objects. 'Prompt' relates to the time lapse between wrongful removal or retention and the 'return of the child forthwith' to be ordered under article 12(1) where the interval is less than a year: to be contrasted (I repeat) with the less urgent obligation to order return envisaged where more than a year has run."

53.This, in my view, must be correct. As Thorpe LJ has commented in Re C (Abduction : Grave Risk of Physical or Psychological harm) [1999] 2 FLR 478, the mechanisms of the Convention are 'intended to be a hot pursuit remedy'.

54.But, to use the same language, what happens when the hot pursuit turns cold? Surely a point of transition must be reached when the Convention's objective of prompt return by way of summary proceedings loses its rationale and when to order the return of a child, notwithstanding any moral culpability on the part of the abducting parent, becomes fundamentally disruptive and (almost as bleak) a fundamentally artificial process. In his judgment, Singer J concluded that art.12(2) defines the point of transition :

" Established settlement after more than one year since the wrongful removal or retention is the juncture in a child's life where the Hague judge's legitimate policy objective shifts from predominant focus on the Convention's aims (for the benefit of the subject child in particular and of potentially abducted children generally) to a more individualised and emphasised recognition that the length and degree of interaction of the particular child in his or her new situation deserve qualitative evaluation, free of Hague Convention considerations and constraints. If (by analogy with the judicial response to the exercise of the article 13(b) discretion) too high a threshold is set for establishing settlement the consequence is not so much that the Hague aim of speedy return will be frustrated, but rather that a child who has in his or her past already suffered the disadvantages of unilateral removal across a frontier will be exposed to the disruption inherent in what for that child would be a second dys-location, potentially inflicting cumulative trauma."

55.For the reasons outlined, which sketch the more profound exposition of Singer J, I am satisfied that in the present case, even though the children have been the victims of deliberate concealment by the father, that concealment has not suspended the passing of time under art.12(1). I must therefore look to art.12(2) in order to determine this matter.

The concept of 'settlement'

56.For a period of time, it appears that the most widely followed test for what amounts to settlement under art.12(2) was that enunciated by Bracewell J in Re N (Minors) (Abduction) [1991] 1 FLR 413 in which it was held that settlement had to be more than mere adjustment to surroundings and required 'a physical element of relating to, being established in, a community and an environment, and also 'an emotional constituent denoting security and stability'. Settlement, said Bracewell J, must have assumed a 'long term settled position' so that it is as permanent as anything in life can be said to be permanent.

57.That test, however, has been criticised as going too far. As the authors, Beaumont and McEleavy, say in their text, The Hague Convention On International Child Abduction, Oxford University Press, page 207 :

" ... it would be manifestly unreasonable, if not illogical, to demand a demonstrably higher standard than would, for example, be required to indicate a change in habitual residence."

58.More recently, the Full Court of the Family Court of Australia disapproved of the need to add any form of gloss to what is, in terms of the Convention, a clearly stated test; namely : are the children now settled in their new environment? In its judgment in Townsend v. Director General, Department of Families, Youth and Community Care (1999) 24 Fam LR 495, the court said that insofar as it be said that

"... the test for whether a child is 'settled in his or her new environment' requires a degree of settlement which is more than mere adjustment to surroundings, or that the word 'settled' has two constituent elements, a physical element and an emotional constituent, it represents a gloss on the legislation [the Convention] and should not be regarded as accurately stating the law."

59.In my judgment, no gloss is required and the contemporary approach of the Australian courts is to be preferred. This is not to say, of course, that the burden upon the person seeking to demonstrate settlement under art.12(2) should only be token. The authorities accept that it is a significant burden. But it is a burden which, if it is discharged, may only be accomplished by considering all relevant facts. As Singer J expressed it in Re C :

"The last thing that I wish to do is to attempt to make things clearer by applying a further coat of gloss, when my instinct is that I should try to reposition myself, if at all, closer to the unvarnished words of the Convention. But by way of comment may I make the point that it seems to me that there is room, in the evaluation whether settlement has or has not been achieved in the particular case, to encompass whichever evidential strands appear most relevant to that consideration. Thus, surely it must be going too far to say that the future can be ignored: take the case of an abducing parent who after many years in country A, or town B or house C, at the relevant time has the firm intention and is in the midst of making plans to achieve a move to a different country, town or home. At the other end of the spectrum may be some more speculative or distant but nevertheless fundamental uncertainty about the pattern of the child's life. In between may be doubts about immigration status ..."

60.In short, each and every case will throw up its own considerations and almost invariably I would think, if a child is subject to a regime of concealment, that will be a matter of material relevance. As Wilson J commented in Re L (Abduction : Pending Criminal Proceedings) [1999] 1 FLR 433 :

" Whether a Danish mother who has been present with the children in England for a year only because it has been a good hiding-place and who faces likely extradition proceedings could demonstrate the children's settlement in England ... is doubtful."

Are the children now settled into their new environment?

61.In looking to the question of settlement, I focus on the children's lives in Hong Kong only. The Mainland appears always to have been a temporary refuge, as much a hiding place as a place of settlement. The fact that the children went to school there and had an orderly routine does little to advance the father's cause.

62.However, the children have lived in Hong Kong since December 2002, a period of one year and some four months. Since their arrival they have lived in an apartment in Aberdeen with their father, his girlfriend, M, a divorcee, and M's 14-year-old daughter. They have therefore lived in a family setting and enjoyed its security.

63.The paternal grandmother, who has always played a central role in the children's lives and cared for them in the Mainland, is in Hong Kong and continues to assist in caring for them.

64.Both children commenced schooling at a primary school in Apleichau in January 2003 and remain at that school. They have, in addition, attended an after school care centre and continue to attend that centre.

65.Both children are fluent in Cantonese, the dialect spoken by the great majority of Hong Kong people. Their father is Cantonese. The Cantonese culture and lifestyle has always been integral to their upbringing. There is no evidence of any cultural estrangement since their arrival in Hong Kong.

66.To assist the court, a report was prepared by the Family and Child Protective Services Unit. In respect of the children's schooling, Ms Chiu Suk May, the reporting officer, spoke to the children's teachers. The teachers confirm that both children relate well with their classmates, are good 'team members' and are progressing with their studies. The fact that Al has integrated well is evidenced by the fact that he is a class monitor, a member of the school table tennis team and also a member of the school road safety patrol.

67.In respect of the after school care centre, Ms Chiu was informed that both children were unexceptional : they had exhibited no behavioural problems, were co-operative, 'normal' children.

68.As for the children's home life, according to Ms Chiu that has been harmonious. In an attempt to ensure that the children were able to settle into their new household, in late 2003, the father and M attended a series of seminars dealing with what their certificates describe as 'parenting issues in step families'.

69.There is no suggestion that since their arrival in Hong Kong the children have in any way had to lead a covert lifestyle. They appear to enjoy a full range of activities. Al, for example, has been attending lion dance classes. The children travel freely by bus. In short, they have enjoyed the ability to come and go as they wish.

70.Both children have right of residence in Hong Kong. There is therefore no looming crisis with the immigration authorities despite the manner of their arrival here in late 2002.

71.In the circumstances, I am satisfied that the children are now settled into their environment. Indeed, on all the evidence this appears manifestly to be the case, a fact which Ms Por, for the mother, did not feel she could strongly contest.

Conclusion

72.Having found that the children, in terms of art.12(2), are settled in their new environment, I am of the view that the Convention does not apply. In this regard, as I have earlier indicated, I adopt the reasoning of Singer J in Re C.

73.But even if I am wrong in this regard and I do have a discretion in terms of art.18 to order the return of the children, I would exercise that discretion not to order their return to Australia. Having regard to the time that has passed in excess of four years - and the circumstances of the children's lives since leaving Australia, I am firmly of the view that the paramount best interests of the children now dictate that matters concerning their future should be decided by the courts of Hong Kong.

74.In the circumstances, the application made under the Convention for the return of the children to Australia must be declined. Matters of care and control, rights of access and the like will be determined by the Hong Kong courts and I will give directions in that regard.

Representation:

Ms Catherine Por of Stevenson, Wong & Co., for the Plaintiff

Ms Lisa Remedios, instructed by Paul Ng & Company, for the Defendant

Mr Enzo Chow, GC of Department of Justice, for the Central Authority