Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

La v L

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date22 August 2017
Year2017
Judgement NumberHCMP1548/2017
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP1548/2017 LA v. L

HCMP 1548/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO1548 OF 2017

____________

IN THE MATTER of OSJ, male, a child born on 15 December 2009
and
IN THE MATTER of the Child Abduction and Custody Ordinance, Cap 512
and
IN THE MATTER of the Hague Convention on the Civil Aspects of International Child Abduction, 1980

_____________

BETWEEN
LA Plaintiff
and
L Defendant

_____________

Before: Hon Au-Yeung J in Chambers (Not Open to the Public)

Date of Hearing: 15 August 2017

Date of Judgment: 22 August 2017

_______________

J U D G M E N T

_______________

BACKGROUND

1. The plaintiff father seeks return of the child of the family to UK under the Child Abduction and Custody Ordinance, Cap 512 and the Convention on the Civil Aspects of International Child Abduction (“the Convention”). The defendant mother objects to return under Article 13 of the Convention.

2. The mother is a Hong Kong native. She married the father, an English national, in Hong Kong in 2007. The child was born in Hong Kong in 2009 and is now aged 7 and 9 months.

3. In 2014, the family moved to England after the father lost his job in Hong Kong. The child has been habitually resident there until his removal to Hong Kong in June 2017 as described below.

4. It is the mother’s case that she and the child have suffered from domestic violence and psychological harm due to the controlling and abusive conduct of the father. She and the father agreed to separate in mid-June 2017.

5. Allegedly on 14 June 2017, the father kicked the child, causing a bruise in the right forearm and the eye of the child.

6. The mother and the child moved to refuge between 16 and 23 June. The case worker at Bromley Children’s Services (“BCS”) interviewed the mother, the father and the child and other relevant people. Due to the allegation of physical chastisement, an “S47 enquiry” was initiated and deemed single agency by the police. A DASH Risk Assessment rated the mother’s case as high risk.

7. On 23 June 2017, the father obtained orders from the Family Court at Bromley prohibiting the mother from removing the child from the care and control of the father, removing the child from the jurisdiction of England and Wales and from applying for a passport in the child’s name.

8. The mother left England for Hong Kong with the child in the evening of 23 June 2017 despite her being orally informed of the Bromley Court order (a fact she never denied), with an emergency passport issued by the Chinese Embassy to the child. Further investigation on the mother and child by the BCS was halted.

9. This court became seized of the father’s application for return of the child under the Convention on 4 July 2017.

10. The mother objects to return. She claims that the child has for a long time wanted to return to Hong Kong and has formed a strong view that he does not wish to return to England or to the father’s custody. She is concerned that the father cannot care of the child, and has never been able to do so on his own. Recently, their relationship has become increasingly violent and she does not believe “safe harbour” undertakings will be able to protect the child (§4, mother’s affidavit). The mother relies on Article 13 of the Convention for the following reasons:

(a) That the child has suffered physical and emotional abuse at the hands of the father, and that return to England would cause grave psychological or physical harm (Article 13(1)(b)); and

(b) That the child objects to return to England and, given his age and maturity, and the circumstances of his objection, his views should be considered (Article 13(2)).

11. The father denies the allegations of abuse. He says that the child is too young for his views to be taken into account. He relies upon the safe harbour arrangements in England and the undertakings between the parties.

ISSUES

12. The issues are as follows:

(1) Has the mother proved on the balance of probabilities that the child has been subjected to physical or psychological abuse?

(2) If the child is returned to England, would it expose him to a grave risk of harm or place him in an intolerable situation?

(3) Does the child object to returning to England?

(4) Is the child of sufficient age and maturity that his views should be taken into account?

(5) Should the Court exercise its discretion in favour of the child’s views?

(6) If the child returns or remains, what consequential orders should the Court make?

LEGAL PRINCIPLES

13. Article 13 of the Convention reads:[1]

“(1) 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) …; 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.

(2) The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

(3) In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

14. The mother relies on the defences in limb (1)(b) and (2).

Grave risk or intolerable situation – Article 13(1)(b)

15. A very high threshold has been set for this defence. There must be clear and compelling evidence showing a severity much more than was inherent in the inevitable disruption or anxiety which followed an unwelcome return to the jurisdiction of the court of habitual residence of the child: Re P [2004] 1 HKLRD 815, §17,Deputy Judge Lam (as he then was).

16. The principles relating to grave risk have been set out in M v E (unreported) CACV 75/2015 (5 June 2015) at §8.1:

(a) The burden of proof lies on the party who opposes the return of the child. It is rarely appropriate to hear evidence on this issue.

(b) The risk to the child must be grave. This means the risk has reached such a serious level as to be considered grave. The word ‘grave’ is related to the risk rather than the harm itself, although ‘risk’ and ‘harm’ are often linked.

(c) The grave risk associated with return is either of the child’s physical or psychological harm, which is unqualified, or it is that the child would otherwise be put in an intolerable situation. The latter means return to a situation that the child should not reasonably be expected to tolerate or put up with, such as physical or psychological abuse or neglect of the child.

(d) This exception is concerned with the future when the child is returned to his home country. At the same time one would expect protective measures for the child to be put in place by the Court of the child’s own country.

17. Regardless of whether a child is returned or not, the risk of abuse is also relevant to the question of appropriate undertakings to protect him upon return: M v E at §8.9.

18. Unless the Court can reject the allegations of abuse contained in the affidavit evidence, because they are so inherently incredible or unreliable, it should consider whether there is independent extraneous evidence in support of the allegations. While admission of oral evidence in Convention cases should be allowed sparingly, in such cases evidence in the form of an expert report from an independent psychologist or psychiatrist, who specializes in abuse of children cases should be introduced to assist the Court in its determination: D v G [2002] 1 HKLRD 52 at §33, per Cheung JA (as he then was).

19. Although D v G was concerned with sexual abuse, these principles have been applied in respect of allegations of psychological and physical abuse. See YYW v HWW (unreported) HCMP 409/2017 (19 May 2017, B Chu J) at §§4, 26, 31, 132, 159 (allegations of physical violence to children and mother).

Objection to return

20. To rely on Article 13(2) of the Convention, it requires a higher threshold than a stated preference: RRG v LGR (Hague Convention) [2006] 3 HKFLR 490, §44.

21. The normal approach to the child’s objections is to break the matter down into 2 stages: the “gateway stage” and the discretion stage.

22. In the gateway stage, it has to be established that (a) the child objects to being returned and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views. If the gateway elements are not established, the court is bound to return the child in accordance with Article 12. If the gateway elements are established, the court may return him or her but is not obliged so to do. LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 (CA) at §9.4.

23. It is the substance of the child’s views that should be considered.

“A forthcoming child may use the expression ‘I object to return to New...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT