M v. T

HCMP 1860/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO1860 OF 2013

____________

_____________

______________

J U D G M E N T

______________

1.This hearing originated from an application by the SJ pursuant to the Child Abduction and Custody Ordinance, Cap 512 (“the Ordinance”), and the Hague Convention on the Civil Aspects of International Child Abduction 1997 (“the Convention”), seeking a return of the subject child (“the child”) to the Netherlands. This is opposed by the mother.

UNDISPUTED OR INDISPUTABLE BACKGROUND

2.The child is the only child of the family born on 12 October 2011 and is now 1 year and 10 months old.

3.The parents were married on 21 November 2005 in the Netherlands. The father is both a Dutch and US national and was born in the Netherlands on 24 April 1960.  He is now aged 53 and is an Assistant University Professor.

4.The mother is both a Dutch national and Hong Kong permanent resident.  She was born on 10 August 1968.  She is now aged 45 and was a social worker before moving to the Netherlands.  She is currently and working in Hong Kong as a social worker in an old age home.  At the hearing, this court has been informed that she will change to a new job on 23 September 2013, also to work as a social worker in an old age home. 

5.With the father’s agreement, the mother and the child travelled from the Netherlands to Hong Kong for holiday on 8 January 2013.  The scheduled return flight was for 15 March 2013.

6.On 13 March 2013, the mother telephoned the father and informed him that she was extending her and the child’s trip for another 2 months until 15 May 2013.

7.According to the affirmation of Ms Kwok of the Department of Justice (“Ms Kwok’s affirmation”) filed in support of the present proceedings, on 29 March 2013, the mother informed the father that she was not returning to the Netherlands, nor would she allow the child to return.

8.On 7 May 2013, the mother telephoned the father and informed him that she had no intention to return to the Netherlands with the child.  On the same day, the father sent an email to her pointing out that he considered that she had abducted the child and he referred her to a link with information on the Convention.

9.On 11 June 2013, the mother filed divorce proceedings in Hong Kong, papers of which were received by the father on 2 July 2013.

10.On 10 July 2013, the father made a request for the return of the child to the Dutch Central Authority.

11.On 12 July 2013, the father requested the mother to drop the divorce petition and they could maintain an amicable relationship while the mother was living in Hong Kong with the child.

12.On 14 July 2013, the mother informed the father that she had applied for the child to become a Hong Kong citizen and that his status has been confirmed and approved in April 2013.  She again indicated that she and the child are not returning to the Netherlands.

13.On 25 July 2013, the Hong Kong Central Authority received the request from the Dutch Central Authority.

14.On 30 July 2013, this court issued a stop order to prevent the child from being removed from Hong Kong.

15.On 31 July 2013, the present proceedings were commenced.

16.On 14 August, 2013, the father filed divorce proceedings in the Netherlands.

17.By consent, the parties have agreed to stay both the Hong Kong and Netherlands divorce proceedings pending resolution of the present application.

18.The father’s case is premised on the mother having wrongfully retained the child in Hong Kong in breach of his rights of custody.  The parties do not dispute that the habitual residence of the child is the Netherlands; and that under Article 251 of the Dutch Civil Code, the father has rights of custody in respect of the child.

THE DISPUTE BETWEEN THE PARTIES

19.Article 13 of the Convention provides that:

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that-

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

20.The issues are as follows:

A. Has the father acquiesced in the mother’s retention of the child in Hong Kong? (“the acquiescence defence”)

B. Is there a grave risk the return of the child to the Netherlands would expose him to harm or otherwise place him in an intolerable situation? (“the grave risk defence”)

21.The parties have filed affirmations.  There are disputes of facts.  It is rare to call for oral evidence and I have not done so.

“If the issues between the parties cannot be resolved on affidavit the Article 13(b) criteria will not have been established. The child is returned pursuant to Article 12 and it will be for the court of habitual residence to determine the disputed issues with the opportunity to hear oral evidence and the parties cross-examined.” Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam. 224, 232, per Butler-Sloss LJ; followed in Hong Kong in Re P [2004] 1 HKLRD 815at para 24, per Deputy Judge Lam (as he then was)

22.In any case, I do not see much difficulty in resolving them in this case where the parties have documented a lot of their views in emails and skype messages.

A. THE ACQUIESCENCE DEFENCE

A1.  The legal principles

23.Re H (Abduction: Acquiescence) [1997] 1 FLR 872, 884 lays down the principles for establishing acquiescence:

“(1) For the purposes of Art 13 of the Convention, the question whether the wronged parent has ‘acquiesced’ in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minors) [1994] 1 FLR 819, ‘the court is primarily concerned, not with the question of the other parent's perception of the applicant’s conduct, but with the question whether the applicant acquiesced in fact’.

(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

24.The House of Lords further states that judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted child.  The burden of proving that the wronged parent has acquiesced was on the abducting parent. See Re H (Abduction: Acquiescence), at page 882, 883.

25.In P v P (Abduction: Acquiescence) [1998] 1 FLR 630, Hale J went to the extent of holding that only if there was a clear and concluded agreement could it be said that there was a clear and unequivocal conduct which amounted to acquiescence under Art 13:

“As to acquiescence, the present case bore all the hallmarks of what frequently occurred in this type of case, namely that the parent whose child had been abducted agreed that the child should remain in the country to which he had been taken, provided that other issues between the parents were resolved. In such cases, only if there was a clear and concluded agreement could it be said that there was a clear and unequivocal conduct which amounted to acquiescence under Art 13.”

26.Negotiating was not acquiescing: Re I (Abduction: Acquiescence)[1999] 1 FLR 778, where the father wished the children to return but was, in the interests of the family, prepared to enter into negotiations.  No agreement was ever reached, and court ordered the return of the child.

27.Acquiescence need only be an acceptance not to pursue the Convention remedy: Re L [2004] 1 HKLRD 655, Hartmann J (as he then was).

“7. Acquiescence is not a single concept. It may encompass active consent to the wrongful removal of a child after that removal has taken place or fall short of that and amount to no more than an acceptance of it. …

8. Acquiescence under the Convention is not necessarily an acceptance that the abducting parent will now, by reason of the abduction (which included wrongful retention) exercise sole rights in respect of the child, it need only be an acceptance by the wronged parent that he or she will not pursue the remedy provided by the Convention; namely, that of the child’s prompt return.”

A2.  Since when has there been retention of the child?

28.There is retention of the child for the purposes of the Convention only where the child has been lawfully taken from one country to another and there has been a wrongful failure to return the child at the expiry of that period: Re H (Abduction: Acquiescence) [1997] 1 FLR 872, 879.

29.The wronged parent must prove an event occurring on a specific occasion which constituted such act: BLW v BWL [2007] 2 HKLRD 193, para 55. However, it is not necessary to point to a specific date as when acquiescence took place.  A state of consent or acceptance might emerge over a period of time and it is sufficient for the abductor to have shown that between about a period, the wronged parent came to accept the wrongful removal or retention: Re L, at 672 I-J.

A3.  Application of the legal principles on acquiescence

30.In the present case, the father says that wrongful retention started from 7 May 2013, whereas the mother says it was 29 March 2013.

31.Mr Chow appears to state in his submission that the mother has on 14 March 2013 informed the father that she would not return to the Netherlands with the child. This is disputed by the father.

32.There were 2 emails on 14 March 2013.  One of them expressed the father’s wish to know the address of the child; the other was from the grandparents who noted the postponement in return of the child and expressed in very polite terms their wait for him.  The emails did not support the mother’s version.  At the hearing, Mr Chow does not appear to rely on this date anymore.

33.Rather, the mother relies on the date of 29 March 2013, a date referred to in DOJ’s affirmation and based on information then known and confirmed by the father’s signature.

34.Between 29 March and 6 May 2013, what the father did could not be said to have been acquiescence for the following reasons:

(i) The mother told the father that she was extending her trip until 15 May.  Hence, even the mother did not expect to separate the child from the father beyond 15 May. 

(ii) The father affirmed to the fact that he strongly objected to the child and the mother staying longer but since the mother insisted more time to think about the marriage, the father did not press her for fear of losing contact with her.  At that time, the father did not have a clear idea of the address of the mother.  What the father said was credible in the light of the then prevailing circumstances.

(iii) The father also said that the mother offered to send him a copy of her flight reservation but he trusted her and told her that it would not be necessary.  Such would have given the father the impression that the mother would return with the child.  It was not surprising, in my view, that the father still trusted her then.

35.The position was slightly different after 7 May 2013.  The father knew of the mother’s wrong and his rights under the Convention.  The mother relies on the following conduct of the father as constituting acquiescence.

A3.1  The lack of requests for return of the child to the Netherlands after 7 May 2013until 10 July 2013

36.It is true that in none of the emails had the father requested for the return of the child in this period. Skype communications continued as usual. Mr Chow, counsel for the mother, submits that the father’s attitude was “business as usual” and he was expecting to see the child on webcam only.  Even in his emails on divorce on 9 and 10 July, he was merely asking for the passport numbers of the mother and the child.  He appeared to have no concerns about the safety of the child in the hands of the mother whom the father described as hysterical and uncontrollable.

37.The father talked of his knowledge that the mother’s return ticket was 8 July 2013.  She hated wasting money and so he held hopes of her returning.  This appeared in his very first affirmation and was credible in showing his subjective views.  It was consistent with his struggle in those 2 months.  Whilst desperately wanting to have his son back, he also did not want him to be separated from the mother.  He was still having hopes for reconciliation with the mother which only vanished when he received the divorce papers on or about 2 July, at the same time understanding that the mother has declined mediation or discussion with her lawyer.

38.The tone and contents of the father’s emails before receiving the divorce papers were consistent with his intention to resolve the matter amicably.  There appeared to be nothing to indicate that the mother was hysterical or uncontrollable so there was no cause for his concern over the safety of the child.  He could not have flown to Hong Kong because of his aviophobia. The father even made a last ditch attempt on 12 July 2013 to resolve this matter without the stress and costs and input of lawyers.  Upon receipt of the divorce papers he acted immediately to enforce his rights under the Convention.  I accept that the father’s true intentions were that he was looking for reconciliation.  A duration of 2 months in the present circumstances was not too long as to constitute acquiescence on his part.

A3.2  The father’s conflicting evidence as to when he sought legal advice

39.Mr Chow points out that in the father’s first affirmation, it seemed that the father sought legal advice on around 4 July 2013 when he realized that the mother had no intention of returning to the Netherlands.  In his second affirmation, he seemed to be saying that during the period of May to June he was unsure what to do and had been in touch with legal advisers from the Ministry of Justice who advised him to start Hague proceedings immediately.  Mr Chow asks: if the father has obtained legal advice early, why didn’t he start Hague proceedings early?

40.In Re S (Abduction: Acquiescence) [1998] 2 FLR 115, the father’s inaction for 5 months after receiving adequate and realistic legal advice was found to be evidence supporting acquiescence.

41.Although proceedings under the Convention were summary in nature and its language emphasized the need for prompt action, it did not demand that a parent must act immediately and through formal channels. The duration of any delay, while a factor in determining whether there was acquiescence, could not, except in rare cases, be determinative. There must always be time for consideration, which might be for quite a long time if it was thought that some conciliation might be achieved.  Re L [2004] 1 HKLRD 655, Hartmann J (as he then was).

42.The father has tried to confirm through Skype the return of the child. Each time the mother said “We will see” and did not state no.  He did not have a clear idea as to where the child was residing.  He did not want to break contact with the mother and child.  This was credible.  He only got their address in Hung To Road on 13 June 2013.

43.When viewed in the light of the analyses under paragraph A3.1 and even assuming the worst scenario, that the father had sought legal advice in May, a delay of 2 months since obtaining of legal advice was not unduly long in this case. 

A3.3  Assisting the mother in her application for emergency public housing by providing supporting documents on 15 June 2013

44.This happened at a time after the mother has already expressed her intention of not returning with the child to the Netherlands and that she must have custody to obtain special public housing.  The father was aware that accommodation was potentially for one year.  Though the housing period was short, as a matter of principle, it would have been enough for the court to find acquiescence, as the Convention required an application to be taken out within one year of removal/retention: Article 12.  When he was informed about the public housing unit allocated to the mother, the father checked it up on Google map right away and commented positively on its location.  He never suggested asking for the son to come back to the 1,500 square feet house in the Netherlands.

45.Again, the father’s intention had to be considered in the light of the then accommodation of the child seen through Skype – sleeping on a mattress in a room.  Any father would have wanted the child to live better, be it for long or short term.  In just over 3 weeks, he has gone to the Dutch Central Authority.

46.The father denied that the mother mentioned about custody.  Judging from his keenness in seeking return of the child from all the documents, it was likely that custody was not mentioned, otherwise, he would have reacted promptly as he did subsequently.

A3.4  Other acts

47.In the period after 10 July 2013, the father has done other acts but these could hardly operate against him when he had already taken steps to seek return of the child:

(i) Offering to send a carpet for the child on 18 July 2013: the accompanying words of the father were that it was for the child “to have something familiar whilst in Hong Kong”.  It was clearly for sentimental purposes and could not be interpreted as the father’s giving up of his Convention rights.

(ii) Sending the child miscellaneous items: the sleeping bags (not a bed) could not connote any idea of permanent stay in a place.  The reference to the father buying nipples for bottles clearly reflected the mother’s desperate attempt to bolster her case.

(iii) Purchase of a new webcam: it was clearly to facilitate continued access through skype pending return of the child.

(iv) Sending a password to the mother for internet banking and claiming reimbursement for medical expenses: this was clearly to provide financial support to the mother and child.

(v) Looking for the Chinese version of Microsoft word for her job application in Hong Kong on 29 June 2013.  This would have alerted him to the mother’s intention to stay in Hong Kong.  The father explained that he did not want to make the mother feel miserable.  In 10 days’ time he has already approached the Dutch Central Authority.

48.On 12 July 2013, the father’s messaged to the mother that “we could maintain an amicable relationship while [the mother] was living in Hong Kong with [the child] and he lives in the Netherlands.”   That was negotiating and not acquiescing.

49.The mother relies on a conversation on 9 August 2013 after the stop order to show the father’s acquiescence.  It reads, 

“W: And I also have a question, it is about the … if you think we just need to solve the divorce and shared custody and Isaac will stay with me to carry on living in Hong Kong…

H: No, I am not saying … it’s … it’s … not that simple … but I said I can imagine that … that possible in the future this will happen. But that’s not step one, step one is that he has to be returned.

W: But how come wecannot solve it in Hong Kong. Once we settled, the mutual, the shared custody in Hong Kong, he also can visit Netherlands in December time.

H: Yea, you know, that is not good enough for me, I am sorry, that is not good enough for me, I have not seen this boy for half a year and you took him away illegally, so that’s why I want him returned and let’s do it in the legal way.” (underline added)

50.The mother clearly misinterpreted that piece of conversation.  In my view, it was an unequivocal statement by the Father that he sought the child’s return to the Netherlands and that he knew the distinction between exercise of rights under the Convention and the custody issue to be resolved in the right jurisdiction.

51.None of the acts relied on by the mother on or after 7 May 2013 was sufficient (viewed individually or together) to give rise to an unequivocal and clear statement of giving up the father’s Convention rights.  The acquiescence defence is not established. 

B. THE GRAVE RISK DEFENCE

B1.  Legal principles

52.Once the removal of the child has been established to be wrongful within the terms of the Convention, the court is under an absolute obligation to return him unless some grave risk of psychological harm, or the fact that he objected to returning, brought him within the discretionary release provided by Article 13:  Re G (A Minor) (Abduction) [1989] 2 FLR 475.  The burden is on the parent objecting to the return to establish this defence under Article 13. 

53.The focus on risk of psychological harm or intolerable situation is on the child and not the parent objecting to the return, but the extent to which the parent’s mental condition might affect his/her parenting skills can be considered.  In re G (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2008] 2 FLR 351, it was held that:

“The Hague Convention did not require or permit the court to apply ordinary welfare principles in cases such as this, in which a child’s primary carer, in a state of depression or desperation at her position in an unhappy marriage outside her country of origin went ‘back to mother’ in order to enjoy the support and sympathy of her own extended family, taking with her the child of the marriage. The test was whether an order for return would place the child in an intolerable situation; the key questions were (a) the extent to which the mother’s mental condition might affect her parenting skills and; if they were not affected to a serious degree, (b) whether there was a grave risk they would so deteriorate if an order were made for return.”

54.In C v. B (Abduction: Grave Risk) [2006] 1 FLR 1095, the court held,

“It was essential that the court considering an application for return did not usurp the function of the ‘home’ court by considering broader welfare considerations instead of confining itself to those matters which went to the establishment of the defence being relied upon under Art 13 of the Hague Convention on the Civil Aspects of International Child Abduction.”

55.It is not sufficient just to show risk of harm to the child.  The risk of exposure to harm must be “grave” or the situation “intolerable”.  In Re E (Children)[2011] 1 AC 144,Baroness Hale of Richmond set out the relevant principles in relation to the “grave risk” defence as follows,

“33 … the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm.

34. Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in Re D, at para 52, "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

35. Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home. Mr Turner accepts that if the risk is serious enough to fall within article 13b the court is not only concerned with the child's immediate future, because the need for effective protection may persist.”

56.The House of Lords is also of the view that a respondent’s subjective perception of the risk of intolerable situation can in principle found the defence: Re E (Children)(Abduction: Custody Appeal) [2011] 1 AC 144 and Re S (A Child)[2012] 2 AC 257.

B2.  Application of the legal principles

57.The mother relies on the inability of the father to take care of the child, the father’s medical problems and drinking habit and his lack of care to the family in support of the grave risk defence.  She alleges that during the marriage, the father was more concerned with finishing his research paper than taking care of the child.  The father had drinking habits which caused him to stay away from home during weekends.  He would be drunk and lose his temper, which was not merely temper but mental problem.  The father has aviophobia (fear of travelling in a plane), which he kept from the mother.  He has been on anti-depressants for years.  The mother thinks that he was hiding his medical problems.  Specifically the mother relies on “the 28 day incident” and “the 17 October 2012 incident.

The 28 day incident

58.The child suffered from acid reflux and would cry for 10 hours a day.  When he was 28 days old, the mother who had not slept for 4 consecutive days asked the father to rock the child to sleep whilst she went to bed.  The father put the crying child beside the mother’s ear for revenge.  The mother woke in fear and started crying too.  The father called the police and health care people, accusing the mother of being hysterical.  Only the police came. On the following day, the father called up the family doctor accusing the mother of being in need of psychiatric treatment but the doctor considered her normal.  The mother considered the father as having mentally abused her and the child.

59.The mother added that when the child was 6 weeks old, a midwife, paediatrician and family doctor found that the child and the mother were “at risk” (not specified what) and the child was sent for in-patient assessment. The mother was said to have high stress.

The 17 October 2012 incident

60.The father left the child alone crying himself to sleep in a bedroom whilst the mother had to clean up a flat before showing to potential new tenants.  The father pulled the mother’s hair in his anger.  He did nothing to comfort the crying mother or the child.  They then talked about divorce.  Out of desperation, the mother attempted to commit suicide that night but was not successful.

61.After 17 October, the father called up the family doctor again, asking him to call the police to arrest the mother.

62.Before coming back to Hong Kong, the mother felt that the relationship was over.  By that time, the flight back to Hong Kong had been booked.  The father had kept on threatening her that if she dared not return with the child, he would sue her for abduction and get her arrested.

63.The father does not deny these 2 incidents, although he has his own explanations.  He said he has been taking care of the child.  He was never under the influence of alcohol.  For the 28 day incident, he called the emergency line but only the police came.  He never asked for arrest of the mother but was concerned with risk of her harming herself.

64.The mother also refers to the difficulties in her relationship with her in laws and how they were not willing to help and very controlling in the way she took care of the child.

65.The mother has given a comprehensive account of her life in the Netherlands in her affidavits before her return to Hong Kong.  She has produced statements from independent witnesses from her church to show the attitude of the father in ignoring her and the interests of the child.  She has made allegations against the sister of the father, many of which are personal against her and not relevant to the present proceedings.

66.The mother claims that returning to the Netherlands with the child will force her to face the same stress and expose her to a situation of having no or inadequate public or communal support. Therefore, while she acknowledges that the Convention is for the benefit of abducted children rather than adults, she submits that returning to the Netherlands will “expose the child to more harm or an even more intolerable situation”.

67.In addition, she obviously fears the criminal consequence upon returning to Netherlands.

68.It is apparent from Mr Chow’s submission that (1) the harm to the child himself is not identified; (ii) even if there is a risk of harm, the mother has not described the risk as “grave”.

69.It is not necessary to resolve the conflicts of evidence.  I shall assume that in the 2 worst incidents (the 28 day incident and the 17 October 2012 incident), the father’s behaviour was inappropriate. However, it was directed towards the mother (who admittedly was in an emotional state) rather than the child.

70.There was no suggestion of any direct harm on the child.  It must be borne in mind, however, that the child had his own medical problem at the time. The child is now aged 2.  There is no suggestion that this medical problem has persisted up to now that would lead to repetition of the father’s conduct. Likewise, there was no suggestion of repetition of the 17 October 2012 incident.

71.As for the harm on the mother, the mother suffers from high stress but has never been diagnosed as having depression or psychiatric abnormalities. Even after her return to Hong Kong, she has been receiving psychological treatment.

72.A person may suffer stress upon breakdown of a marriage.  There will be unhappy memories.  It is natural for the mother not to want to see the father again or hear him repeat what she considers to be wrong accusations of her. However, that is different from saying that she is so stressed that her parenting skill is affected. 

73.In any case, the mother has not denied that the father has had enjoyed his access with the child through skype.  The father has demonstrated his keenness in seeing his son (by frequent access through skype); and living with him (by taking more time off and adjusting his working hours). 

74.Considering all circumstances I am not satisfied that the evidence is sufficient to establish the “grave risk” defence.

B3.  Protective measures

75.This court has also considered the protective measures proposed by the father should the child be returned to the Netherlands.  In relation to accommodation:

(a) Either the 4-storey house be shared so that the mother and child occupy the top 2 floors and the father occupies the 1^st floor; they will share the kitchen on the ground floor and bathroom on the 3^rd floor;

(b) Or the father will move out and live with his parents, whose home is 20 minutes away by car.

76.The mother says that she does not want to live under the same roof with the father.  In that case, the father can move out and live with his parents pending further order.  In the event the mother does not want to stay in the Netherlands after returning the child there, the father can of course live with the child and turn to a day care centre (where he has already secured a place) for assistance.  I can see no basis for a double standard.  The child can adjust to living with a “community nanny” in Hong Kong whilst the mother (the primary carer) works full time.  I do not see why a day care centre cannot render similar arrangements whilst the father works full time. 

77.Given these proposals, it is not necessary to consider the need for the grandparents’ assistance.  If they want to have access to their grandson, that can be done in the absence of the mother to avoid conflict.

78.The mother says that the parties are unable to sustain themselves financially in the Netherlands and they had to rely on subsidies from the father’s parents from time to time.  The father disputes this.  Be that as it may, the question of finance is not for this court to decide.

79.I respect the mother’s fear of criminal prosecution in the Netherlands. I also appreciate that it is hard for a civilian to confirm with the authorities that she will not be prosecuted for a particular offence.  However, the father has stated on affirmation that he will not report the retention to the police and undertakes not to commence prosecution in the Netherlands.  That in my view is of great importance.  I cannot see any basis for the mother to say that the father has acted so capriciously in the past that he cannot be trusted. Obviously the occasion when he called the police was, even based on the mother’s account, due to his perception of the mother’s emotional state and the father needed to seek help rather than criminal sanctions on the mother.  In fact, the father has explained in his affirmation that he had not called the police but was expecting health care people but the police was sent to him instead.  I do not accept that there was caprice on the part of the father.  If the father does not honour his word, that can surely be a matter that should be brought to the attention of the court handling custody.

B4.  Access

80.If the mother were to stay in the Netherlands, generous access should be given to the father upon the child’s return.  Even if, as the mother says, the father has not been taking sufficient interest in the care of the child in the past, he has demonstrated in the emails and skype messages his keenness of building a relationship with the child.

81.The mother has resolutely failed to propose at what place access can be exercised, despite my suggestion of places like a church, a child care centre or community centre in the Netherlands.  I leave it to the parties to discuss, hopefully as they have done when they arranged access by skype.  In case of difficulty, a court in the Netherlands can of course intervene to decide the access if necessary.

82.I am of the view that these arrangements proposed by the father should alleviate the concerns of the mother.  Given that there are proceedings on foot that may deal with the question of custody, these temporary arrangement under this judgment should not pose difficulties.

83.The mother plays on the latest developments.  The parties have agreed to stay the divorce proceedings in Hong Kong and the Netherlands.  The mother says that the father has made an appointment with the Dutch court for a hearing on 27 September 2013.  I have no idea when that hearing was fixed.  Even if it was fixed, I can hardly see its impact on this case and the proceedings, since this judgment is handed down on the next working day after this hearing.  From the date of handing down to 27 September, there are over 3 weeks for the parties to seek legal advice and take the appropriate steps.

84.The Article 13 defences have not been established and the father has offered good protective measures.  I am of the view that the child should be returned to the Netherlands.

C.  CONSEQUENTIAL DIRECTIONS

85.Date of return of the child  The mother has indicated that she will leave her present job on 21 September 2013[1] and enter into a new job on 23 September.  She says that if she were to leave early, she might have to pay wages in lieu of notice at about HK$600 per day.  Despite there being no documentary evidence to support her change in occupation, in the spirit of amiable resolution of this matter, I permit her to return the child to Netherlands latest by 29 September (Sunday, Netherlands time).  This will give her the flexibility of adjusting the end date of her current job or commencement date of her new job if she decides to leave the child behind in the Netherlands.

86.Person to accompany the child back to the Netherlands  At the last hearing on 15 August 2013, this court has, with the best interests of the child in mind, invited the parties to address me on who shall accompany the child on the flight back to the Netherlands.  The father suggested his sister previously in his affirmation.  I have indicated at the last hearing that it might not be a good idea, having regard to the fact that the mother was not on good terms with his sister and that the child was not familiar with her. 

87.The father has since, sensibly, dropped the idea of engaging his sister.  The father has already proposed to foot the costs of the air ticket of the child and the mother for the trip. 

88.At this hearing the mother has resolutely indicated that she would not personally send the child back even if this court were to so order and made no proposal for a custodian to accompany him.  Mr Chow went to the extent of submitting (without prior notice and without authorities in support) that an order of the court requiring the mother to accompany the child back would be in breach of the human rights of the mother, ie her right of staying in Hong Kong and freedom of movement.  I can hardly see how such human rights could be said to have been breached.  Nor is Mr Chow able to show how the mother can possibly comply with an order for return of the child without her personal involvement.

89.The courts do not place weight on the plea that the child will suffer a grave risk of harm because the carer refuses to return with the child to his place of habitual residence.  In C v C (Minor: Abduction: Rights of Custody) [1989] 1 WLR 654, Butler-Sloss LJ states,

“The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him … Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parents who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention …”

90.In my view, the mother is the best candidate to accompany the child.  She is holding the court to ransom in saying she will not be able to escort the child back if an order for return is made, but will be willing to do so if it is just to bring him back for 7 days.

91.The community nanny with whom the child has been taken care of in Hong Kong is the next best person in line but obviously the mother has not explored the opportunity of engaging her in the flight.  By letter of today’s date, the mother says that the community nanny will not be available to escort the child to the Netherlands as she has her own son to take care of.

92.I do not, without disrespect, prefer the grandparents, having regard to their age (in their late 80’s) and the dissatisfaction that the mother shows against them.  An unnamed neighbour is out of the question. There may of course be other options, such as engaging the assistance of a solicitor but that should be the last resort, as it will require the child to be placed into the hands of a stranger for a long haul flight and will escalate costs. 

93.I can do no more than reiterate the importance of letting the father have access to the child as soon as possible, he having been denied it for too long.  Certainly the mother’s solicitors will explain to her that the order I shall make is directed at her personally regardless of whom she appoints to accompany the child back, and there are serious consequences of not complying with a court order.

D.  CONCLUSION

94.Between 29 March and 6 May 2013, the father has done nothing to give up his rights under the Convention.  The mother has been in retention of the child since 7 May 2013.  The father was struggling in the hope of reconciliation.  Any delay between 7 May and 10 July was not so long as to constitute acquiescence of the father.  Nor are the acts relied on by the mother clear and unequivocal acts to show acquiescence or that the father was not pursuing his rights under the Convention.  He has acted promptly on 10 July, shortly after being served with divorce papers on 2 July 2013 to enlist the assistance of the Dutch Central Authority to request the return of the child.  There was no basis for the mother to assert the grave risk defence under Article 13.  The father has offered reasonable protective measures to alleviate her concerns.  There is no reason why the child should not be returned to the Netherlands. 

95.Upon the father’s confirmation that he has not commenced criminal prosecution in the Netherlands for the mother’s retention of the child and upon his undertaking not to do so, I order as follows:

(1) The Mother shall return the Child to the Father in Amsterdam, Netherlands, no later than 29 September 2013 (Netherlands time).

(2) The Father shall provide an air-ticket for the Child for the journey to the Netherlands and an air-ticket for the Mother (or the person escorting the Child in that journey) for the round-trip journey from Hong Kong to the Netherlands and back to Hong Kong.

(3) Upon return to the Netherlands, if the Mother shall stay with the Child, they shall live at the former matrimonial property at Constant Erzeijstraat 26, 3523 VW Utrecht and the Father shall move out, until further order.

(4) Should the mother stay with the child in the Netherlands pending custody proceedings, the Father shall be given access to the Child for not less than 5 days a week, including overnight staying access. The parties are at liberty to arrange the dates and times of such access.

(5) There be liberty to apply.

96.I make an order nisi that there be no order as to costs and the mother’s own costs shall be taxed in accordance with Legal Aid Regulations.

97.I thank counsel for their assistance in preparing this case under such a pressing time frame.

Mr Robin Egerton, instructed by Hampton, Winter and Glynn, for the plaintiff

Mr Enzo Chow, instructed by Chain, Chow & Barbara Hung, for the defendant

Ms Pansy Kwok, GC of Department of Justice on watching brief