Jmhk v. Brg
Read the full judgment text of FCMC 11427/2010 on BabelCite. This Family Court judgment was delivered on 17 January 2014 before Her Honour Judge Sharon D. Melloy.
Family law – custody – access – refugee status – joint custody – supervised access – Guardianship of Minors Ordinance – Matrimonial Proceedings and Property Ordinance – best interests of the child – international child abduction – UNHCR – District Court – JMHK v BRG – Joint custody ordered; Care and control to mother; Access ordered unsupervised day time then overnight weekends; No order as to costs – The court considered the best interests of the child S, a 7-year-old girl, in the context of her and her mother being mandated refugees in Hong Kong. The father sought joint custody and unsupervised access, while the mother sought sole custody and supervised access due to fears of abduction. The court held that joint custody was necessary to formally recognize the father's rights of custody under the Hague Convention and prevent ambiguity regarding removal to a third country. Access was ordered to be unsupervised day time initially, with overnight access introduced gradually, subject to preconditions including the father's wife's presence and passports being held by the solicitor. The court emphasized the importance of informing the father of any resettlement or change in immigration status. No order as to costs was made given the nature of the dispute.
Legal issues: Custody arrangement (Sole vs Joint) · Access arrangement (Supervised vs Unsupervised) · International implications (Hague Convention/Refugee status)
Outcome: Joint custody ordered; Care and control to mother; Access ordered (unsupervised day time then overnight weekends); No order as to costs.
Cites 3 cases
|
FCMC 11427 / 2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NO. 11427 OF 2010 ----------------------------
---------------------------- FCMP 96/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 96 OF 2010 ----------------------------
---------------------------- BETWEEN
---------------------------- (Consolidated pursuant to the order of the Hon Mr Justice Poon dated the 16 August 2011)
_________________________________________ J U D G M E N T _________________________________________ Introduction 1.This is an application by the respondent mother for sole custody and care and control of the only child of the family, a little girl S who is now 7 years of age. She asks that all access with the father be supervised and she opposes staying access. The father now concedes care and control to the mother but seeks an order for joint custody with unsupervised staying access in Hong Kong. 2.The facts in this case are very unusual. In essence the court is being asked to determine what arrangements should be put in place for a young child where both the mother and child are mandated refugees in Hong Kong in accordance with the United Nations High Commissioner for Refugees (UNHCR). Background 3.The parents, who are both Coptic Christians and Egyptian, married in Cairo in May 2005. The father ran a plastics business with two partners and the mother worked for a short while in that plastics business and then on marriage became a full time housewife. S was born in June 2007. In December 2009 the mother left Egypt with S, without informing the father, and came to Hong Kong. In December 2009, one week after her arrival, she then, seemingly with the assistance of the Coptic Church, applied for refugee status for herself and S. The father did not initially know where the mother and S had gone. On the 11 May 2010, once he had ascertained their whereabouts, he issued proceedings under the Guardianship of Minors Ordinance in Hong Kong. He sought custody and in the alternative interim access including staying access in Hong Kong. He asked that S not be removed from Hong Kong save with the leave of the court. This matter first came before the Family Court on the 22 November 2010 and on that occasion an order was made that the father should have supervised access to S “in the presence of a member of each party’s respective law firm”. Access was ordered to take place once a month. Although Egypt is not a signatory to the Hague Convention, given the international overtones of this case and the fact that the High Court has a wider inherent jurisdiction than the District Court, the father’s application under the Guardianship Minors Ordinance, Cap 13 i.e. FCMP 96/2010 was transferred up to the High Court. These proceedings became HCMP 784/2011. 4.Other applications followed. On the 2 September 2010 the mother issued proceedings for divorce in Hong Kong based on the father’s unreasonable behaviour. She makes very serious allegations against the father, including allegations of extreme verbal abuse and physical assault; she alleges that the father threatened to take S away and to kill her father and that she had no option but flee Egypt. These proceedings were also transferred up to the High Court as HCMC 2 of 2011. 5.On the father’s case initially there were no serious problems in the marriage and the mother simply left him without warning. He says that she phoned him after she had arrived in Hong Kong and after she had made her application under the UNHCR. At the time the father suspected that the mother had formed an extra marital relationship. The father wished S to return to Egypt and to live with him there. On the 15 October 2010 the father issued divorce proceedings against the mother in Egypt seemingly on the basis of “fornication” or adultery. The mother says that she was never given an opportunity to participate in those proceedings. An affidavit filed by the father’s lawyer dated the 11 January 2011 states that Egypt should be regarded as the appropriate forum to determine the matter. However the issue of forum does not appear to have been further advanced. In any event it seems that the father now has a final decree of divorce from the Egyptian authorities dated the 24 November 2011. 6.On the 29 June 2011 the father issued an application that S be made a ward of court. Again he sought a prohibition order. 7.On the 16 August 2011 the Honourable Mr Justice Poon consolidated all three actions in Hong Kong and the matter was set down for hearing in the High Court. 8.On the 10 April 2013 the father was given leave to withdraw the wardship proceedings and the consolidated action was transferred back to this court under its former case numbers, and adjourned for a further substantive hearing under the Guardianship of Minors Ordinance. 9.The father had continued to have supervised access to S. The order dated the 28 September 2012 states that
10.Access has continued in this manner i.e. it has continued to be supervised by the father’s lawyer with pickups and drop offs generally being at X Park. What are the current arrangements in place for S? 11.S has lived in Hong Kong for the last 4 years. She lives a regular life with her mother, who is the care taking parent and her mother’s new partner, Mr EAA. She attends school and she enjoys extracurricular activities such as ballet, swimming and violin lessons. She attends church regularly. 12.Somewhat surprisingly perhaps given the circumstances S seems to have a very good relationship with her father. They have a “skype date” every Saturday from 12 noon for 2 or 3 hours. This necessitates the father getting up very early in the morning in Egypt in order to speak to his daughter. The fact that they spend so much time with each other on skype is, in my experience rather unusual, but is perhaps a testament to the effort that everyone is putting into this arrangement – including the mother. The father has also continued to have supervised access to S when he is in Hong Kong. He does not have overnight staying access. What will happen going forward? 13.S and her mother are both mandated refuges. Although Hong Kong is not a party to the relevant conventions, nonetheless as a matter of public policy a mandated refugee in Hong Kong is allowed to remain in the territory until they are resettled to a third country. The government will also provide them with limited financial assistance. They are also required to report to the Immigration Department on a regular basis and they have been issued with the relevant recognizance papers. They no longer hold passports and are effectively stateless. 14.The mother says in her most recent affidavit of the 5 February 2013 that although she and Mr EAA would like to remarry that she has until recently put that on hold because she did not wish in any way to jeopardise her refugee status. She continues
15.In summary then there is a possibility that the mother may remarry and in that event there is also the possibility that she and S may be able to remain in Hong Kong. Mr Peter Barnes, who appeared in court with Mr Egerton for the wife very helpfully, provided the court with a note on “Immigration Status”. In that note he states inter alia as follows:
16.Alternatively the mother will be required to leave Hong Kong as soon as she and S are resettled to a third country. Both she and Mr EAA made reference to Canada as one possibility. Mr EAA said in the witness box that he would follow the mother and S wherever they were resettled. 17.Both of these options are of some concern to the father. He fears that S may be resettled somewhere without him being informed of the same. In other words he fears that S may be taken away from him all over again. If the mother remains in Hong Kong he also fears that she may then be entitled to apply for travel documents and that this may again give rise to the possibility of the mother being able to leave Hong Kong with S, without further recourse to himself. The issues What arrangements should be put in place for access in the short and medium term? Should an order be made for sole or joint custody? The law in Hong Kong 18.The law governing applications concerning children in Hong Kong can mainly be found in the Matrimonial Proceedings and Property Ordinance, Cap 192 and the Guardianship of Minors Ordinance, Cap 13.
19.The general principles governing such applications are set out in s.3 of the Guardianship of Minors Ordinance, Cap. 13, which says that: GENERAL PRINCIPLES
20.Both sides have referred me a number of authorities on the issue of custody including the Court of Appeal decisions PD v KWW, Civil Appeal No 188 of 2008, 9 June 2010, Y v P [2009] HKEC 1322 and CCMJ v SSM [2013] 3 HKLRD. Other decisions have been referred to from England and Wales. I recently tried to summarize the up to date position in this jurisdiction on orders for sole custody versus joint custody in my judgment LMM v LKKV 1062 of 2013 (unreported and dated the 5 December 2013). By reference to PD v KWW, Civil Appeal No 188 of 2008 I said as follows:
21.I then went on to discuss both sole and joint custody in the context of orders for care and control/access and shared care. This is of less relevance here as it is agreed that care and control should vest in the mother. 22.Thus it would be fair to say that joint custody orders are generally made when the parents are able to co operate with each other. However they can also be made in the belief that an appropriately worded court order will provide the necessary structure to enable the parents to make decision of a custodial nature. In some instances such orders could be described as “aspirational”. For example in the first instance decision H v A, FCMP 186 of 2003, referred to by counsel for the father, an order for joint custody was made even though the mother refused to communicate with the father at all. The concept of custody in an international context 23.In addition to the general domestic law on the subject of joint versus sole custody as set out above, I also asked counsel to address me on the issue from an international perspective. I was particularly concerned as to the possible ramifications under the Hague Convention. Mr Egerton for the father neatly summed up the present position in his closing:
24.Mr Clough has also produced other cases for the mother, with respect to the meaning of “rights of custody” within the convention. (See Abbott v Abbott, 130 S. Ct. 1983 USA (2010), State Central Authority v Quang [2010] FamCA 231, Helsinki Court of Appeal, 22 March 2011, Decision No 879 FINLAND, Adkins v Adkins, 2009 BCSC 337 (2009) CANADA). The law on access and the supervision of access 25.There are no other specific provisions in the legislation that relate to access. Access or contact is generally said to be the right of the child, as opposed to the parent. In other words S has the right to see and to have a relationship with both of her parents. The court is primarily concerned with the best interests of S and not the relative rights of each of the adults with respect to her. 26.The supervision of access is referred to in sections 48, 48A and 48B Matrimonial Causes Ordinance, Cap 179. The term “supervision” normally denotes supervision by the Social Welfare Department – although it is possible for access to be supervised by other third parties. 27.Although unusual, I would accept as has been pointed out by Mr. Clough, that it is possible for staying access to be supervised, if the situation warrants it. The evidence 28.I must now turn to consider the issues, the law and the parties evidence as set out in their affirmations and as given orally by them during the hearing. For the avoidance of doubt, in so far as the matters set out in this judgment differ from the evidence of the father or mother, or one of the other witnesses, that is because I have preferred the evidence of the other party or because I do not find the evidence given credible, or because I consider that the documents produced confirmed my findings of fact. In addition I have had the opportunity to observe the demeanor of the parties while they gave evidence in court. 29.I heard evidence from the father and the mother, the three social welfare officers, the mother’s new partner and the father’s new wife. The parents in the witness box The father 30.The father presented as being a rather forceful and uncompromising character. Having said that I have no doubt that he loves his daughter. He has shown that he will go to great lengths to ensure that he has a relationship with her including regular skype sessions in the early hours of the morning Egyptian time. He comes to Hong Kong on a regular basis to see her and at great cost. These proceedings have also cost him a great deal of money. It is clear that he wishes to be fully involved in S’s life going forward notwithstanding the rather difficult circumstances that now exist. He wishes to be consulted on all aspects of her life and he asks for free and regular access to her. He is indignant that the mother wishes supervision to continue and did not propose any alternatives in that respect. The mother 31.The mother struck me as being a bright and resourceful woman. She was also quite emotional and would not be shifted from her alleged concerns even when they made little logical sense. She is absolutely convinced, for example, that the father plans to abduct S and I suspect that nothing will convince her otherwise – however much time is allowed to elapse in order, as she says, for trust to be rebuilt. Having said that she is clearly a very good mother and all credit should be given to her for ensuring that her daughter has a good relationship with her father, notwithstanding these very difficult circumstances and her own very crippling fears. Mdm M 32.Mdm M is the father’s new wife and she presented as “the voice of reason”. She is from Mainland China and is ethnically Chinese. She married the father in 2012. She has attempted to bridge the gap between the two sides and although initially unsuccessful all credit should be given to her for this. I would hope that further steps could be taken in this regard once these proceedings have come to an end. She has confirmed that she will accompany the father on all future access trips to Hong Kong. Mr EAA 33.The mother’s new partner is ethnically Egyptian, although he has never lived in Egypt. He is also a member of the Coptic Church, which is where he met the mother. He holds a British passport and is entitled to apply for Hong Kong permanent residency this month. He presented as being a sensible down to earth person, who is very supportive of the mother in her present predicament. He is also clearly very fond of S. The Social Investigation Reports 34.There have been three social welfare reports filed at different times in the course of these proceedings. Unfortunately and rather strangely all three social welfare officers had disposed of their notes and did not bring them to court. As in all cases concerning children the social welfare reports are very influential. They provide the court with a unique insight into the family dynamic and reasons must be given if their recommendations are not adopted. Social Welfare Report dated the 26 January 2011 35.In paragraph 28 of this report the social welfare officer said as follows:
36.Much was made of this during the hearing – i.e. the suggestion that the mother was at that stage willing to agree to unsupervised access and also to staying access. The mother said that her English skills were not very good at that time and that she had not fully understood what the Social Welfare Officer had meant. In any event I do not intend to attach very much weight to this aspect of the report. Whatever may or may not have been said it is clear that the mother’s position quickly crystallized and that she has not wavered since then from her stated position about both supervision and staying access. She wishes all access to be supervised and she is opposed to staying access at the moment. She says that “trust” needs to be rebuilt before she can countenance the possibility of staying access. 37.It should be noted that the social welfare officer did not make any recommendations at that stage because she had not had the opportunity to interview the father. Supplemental Investigation Report dated the 3 February 2012 38.A second welfare officer commented as follows after observing both parents with S:
39.As will be seen I tend to agree with the observations made by the social welfare officer at paragraph 44 of her report above. Social Investigation Report dated the 5 November 2013 40.In this report a different social welfare officer recommended that:
41.No consideration seems to have been given to the international ramifications of this recommendation (please refer to paragraph 22 – 23 above). Further the social welfare officer does not appear to have given thought to the practicalities of recommending ongoing supervision by the husband’s lawyer. For the avoidance of doubt the husband’s lawyer is not prepared to supervise access going forward. Neither party were prepared to put forward other options for the court’s consideration in this respect. For the record however I accept that it does not seem to me that it is viable for supervision to continue in this manner. What arrangements should be put in place for access in the short to medium term? 42.The mother is vehemently opposed to any form of unsupervised access. She will not agree to any form of staying access. She says that the risks are too great. She fears that the father will falsify the daughter’s passport or other travel documents and that he will take her back to Egypt. 43.One of the very real difficulties with this case is that there is no extrinsic evidence to back up what each side says. It is all “he said/ she said”. For example, as Mr Clough for the mother points out in his closing submission, I am asked to believe that
Mr Clough continues:
44.The difficulty is that there is nothing to support what the mother says in this respect. There are no affidavits from third parties or other family members who might have been able to confirm her version of events. There are no photographs or doctor or hospital reports which might also verify her account. No expert evidence has been adduced. I am asked to rely on the fact that she has been granted refugee status as if that of itself should be attached some weight. Unfortunately although Poon J ordered the wife to provide the husband with a copy of her UNHCR application and supporting documents (see paragraph 5 of the Court order dated the 6 March 2012) they were not forthcoming as the UNHCR asserted absolute confidentiality in that respect and refused to release any of the documentation filed with them. It seems that the mother did not retain any copies otherwise. In such circumstances it does not seem to me that I can simply assume that what Mr Clough asserts on behalf for the wife is correct. This is especially so since at one point the father claimed that the mother had obtained refugee status because she said that he had tried to force her to convert to Islam – which he categorically denied. The reality is that I do not know why the mother was granted refugee status. It would be quite wrong of me to rely on innuendo and supposition in that respect and I do not intend to do so. 45.The father for his part reiterated that he did not believe that there was anything fundamentally wrong with the marriage – despite the allegations later made by him in the Egyptian divorce papers of fornication etc. 46.Whatever the truth or otherwise of the situation however the fact remains that the mother took a very extreme cause of action to extricate herself from the parties marriage and her life in Egypt. Is there any basis then for the mother’s fears? 47.The mother fears that S will be abducted by her father; she says that he has forged documents in the past and that he could do so again. She says that once S is with the father in Egypt that it will be virtually impossible for her to get S back again. 48.Although I accept that the mother genuinely fears these things, there seems to be little evidence to support what she says in this respect. She points to the fact that she has witnessed with her own eyes the father forging documents in his factory for tax or other purposes. With respect, even if that were the case, that is a very long way from arranging to falsify passports or other travel documents in Hong Kong, with all that that might entail. The father was also clear about this in the witness box. He acknowledged the harm that such action might do to S and said that that was not something that he wished to do. 49.The mother says that it will take time to rebuild trust – but by the same token has done nothing herself to try to establish a more trusting relationship with the father. I was particularly perturbed at her reaction to the father’s new wife’s attempts to open up direct dialogue between both families. She accused the father of harassment and insisted that all further communication be via the solicitors. The mother’s proposal on access 50.Although not repeated in her closing the mother initially made the following proposals for access in her opening:
The father’s proposals on access 51.In his closing the father proposes as follows:
Conclusion 52.As indicated to the parties I intend to bring this matter back to the court within the next 12 months or so. Although the father wishes to have staying access that is completely unsupervised, the fact remains that S has not spent more than one day at any time with him before. She has never had unsupervised access. The mother is also terrified by the prospect. Thus it seems to me that instead of choosing between two stark alternatives that the more appropriate approach would be to introduce unsupervised day time access first – with a view to then introducing overnight access once that has been established. This will also be subject to certain conditions, which the father must comply with in order for the access to take place as ordered. Preconditions 53.These arrangements will therefore be on the premise that the father’s new wife is in attendance at all times and that the father’s and his new wife’s passports are held by his solicitor’s during periods of access. 54.The Immigration Department shall also be informed of the different spellings used by the mother and S in various different official documents and all alternative spellings should be included in this court order. 55.Further I accept that the mother shall i) give the father at least 28 days prior notice of any application by her for a new passport/travel document for either herself and/or S and to provide copies of these to the father, ii) to notify the father as soon as she has been made aware of any change to her and S’s status in Hong Kong – with particular reference to the acquisition of local residency status in Hong Kong and iii) to inform the father immediately in the event that she and S are to be resettled outside of Hong Kong. 56.In addition the father must undertake not to apply for a passport or any other identity document for S unless with the consent of the mother or by order of the court. 57.Subject to those preconditions I will make an order for access as follows: Access in 2014
Each party’s proposals 58.The mother wishes to have sole custody and the father joint custody. The mother says that given that she and S are mandated refugees that it would be inappropriate for there to be an order for joint custody. She is concerned that the father would use this against her somehow in Egypt. In any event she says that she is fearful of the father and that she cannot communicate with him. 59.Each party has dealt with some of the technicalities surrounding their position. For example the mother says that she will consult the father on all major decisions (presumably this will be by way of an undertaking) and the father says that he would give a general form of authority to the mother to allow her to make decisions solely, in order for example for S to take part in certain school trips. Again this should be by way of an undertaking and should also cover the mother’s need to make medical and dental decisions solely should the need arise. Both of these concessions denote a willingness by the parents to co operate with each other at a very basic level. 60.The mother says that the father’s concerns about S unilateral removal to a third country are misplaced. She argues that should they be resettled that she and S would be granted residency rights in that country and there would be no possibility of returning to Hong Kong, where they are stateless, in response to an application by the father under the Hague Convention. This argument is of itself of some concern. Whilst that may be true, it is also important to ensure that if she and S are resettled – or indeed if circumstances change by virtue of her possible remarriage, that the father is informed accordingly; that he is consulted and that orders, including possible mirror orders, are put in place to ensure that his rights and indeed S’s right to have a relationship with him are upheld. In that event it seems to me that in order to prevent the possibility of any ambiguity in that respect that it is important that in these circumstances the father’s custodial rights are fully recognised. Consequently I will make an order for joint custody, subject to the father’s undertaking authorizing the mother to make certain decisions solely and his undertaking not to apply for a passport or any other form of identity document for or on behalf of S. I should add that in making this order I accept that the level of co operation between the parties is presently minimal. However it seems to me that an order for joint custody in these circumstances is truly in S’s best interests and must therefore be made. 61.I will therefore make an order that there shall be joint custody of S, with care and control to the mother and defined access to the father as set out in paragraph 57 i) – v) above. Costs 62.Given the nature of this dispute I will make an order nisi to be made absolute at the expiration of 14 days that there shall be no order as to costs. There shall be certificate for counsel.
Mr Robin Egerton instructed by Krishnan & Tsang for the Applicant/Respondent Mr Clough instructed by Vidler & Co for the Respondent/ Petitioner | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 11427/2010