|
HCMP004204/1998
1998 NO. MP4204
Headnote
Hague Convention on civil aspects of child abduction - meaning of habitual residence and the circumstances in which it may be changed - exercise of court's discretionary jurisdiction to order return of child to another country where Hague Convention does not apply - child's welfare is the paramount principle.
1998 NO. MP4204
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS
____________
|
IN THE MATTER of J-M P. N., male, a child born on 6th April 1993
and
IN THE MATTER of the Child Abduction and Custody Ordinance (Ord. No.49 of 1997)
and
IN THE MATTER of the Hague Convention on the Civil Aspects of International Child Abduction, Article 12
and
IN THE MATTER of Section 8 of the Hong Kong Reunification Ordinance (Ord. No.110 of 1997)
|
____________
| BETWEEN |
| N |
Plaintiff |
| AND |
| O |
Defendant |
____________
Coram: The Hon. Mr. Justice Hartmann in Chambers
Dates of Hearing: 2, 8, 9 and 12 October 1998
Date of Handing Down of Judgment: 23 October 1998
_______________
J U D G M E N T
_______________
1. These proceedings concern a five-year-old boy named J-M P. N. who, since January of this year, has been living in Hong Kong with his mother, the Defendant. In August, the Plaintiff, who is the boy's father and who lives and works in Luxembourg, instituted proceedings in this Court seeking an order that his son be placed into his physical custody in Luxembourg. The father has founded his action an two bases; first, on the provisions of the Child Abduction and Custody Ordinance (Cap 512) which gives the Hague Convention on the Civil Aspects of International Child Abduction the force of law in this jurisdiction and, failing that, on the discretionary jurisdiction of this Court to order such removal where it is shown to be in the best interests of the child.
2. On 12th October, at the end of the hearing, I declined to make either order. Instead, I ordered that proceedings should take place in this jurisdiction to decide the issue of custody; a power vested in this Court by reason of the fact that the child is its ward. My reasons for declining the father's application are contained in this judgment.
A brief history.
3. The Defendant in this matter (whom I shall call the mother) was born and raised in the United States of America. She is now 27 years of age. It appears from the papers that she is a woman of considerable ability, having excelled at university in the United States both academically and in sports.
4. In the summer of 1991, while pursuing a course of studies at a university in Germany, the mother met the Plaintiff (whom I shall call the father) and a romance ensued. The mother went back to the United States to complete her studies but then returned to Europe to join the father. They were married in Luxembourg on 23rd October 1992. A few months prior to the wedding the mother obtained employment with an international corporate bank and remains employed by that same bank up to the present time.
5. What then of the father? He is twenty eight years of age and is a citizen of Luxembourg. It appears from the papers that he comes from a large Luxembourg family. He too is a person of considerable ability. When the parties met, he was studying electrical engineering and today, duly qualified, is employed in the field of information technology with an international company. He continues to reside in Luxembourg where he owns his own home.
6. J-M, the child of the marriage (whom I shall call the child), was born in Luxembourg on 6th April 1993 and is now, therefore, just over five and a half years of age.
7. At a relatively early stage of the marriage unhappy differences arose between the parties and in April 1995 the mother instituted divorce proceedings in Luxembourg. It is not disputed that from the outset the father indicated his desire to have custody of the child. One of the reasons was his fear that the mother intended to return to the United States and take the child with her. According to the mother, she found it increasingly difficult to remain in Luxembourg and therefore resolved to make a 'new beginning' in the United States. In August of that year she obtained from her employer approval 'in principle' for a transfer to the New York office.
8. It is apparent from a reading of the papers that the father has always alleged a desire on the mother's part to distance the child from him, both geographically and emotionally. To that end he alleges that the mother has resorted to various deceits upon the courts and himself. This the mother has denied. It is her case that she has always been prepared to offer the father generous access to the child but that the father has manipulated matters to damage her in the eyes of the courts, his prime motive not being the best interests of the child but rather a desire to seek a reconciliation with her or, failing that, to cause her hurt. She too, therefore, alleges the practice of various deceits by the father. Whatever the true situation, it is apparent that the Luxembourg courts did know something of the mother's desire to return to the United States and to settle down there. This is apparent from various rulings made by those courts.
9. The first ruling of the Luxembourg courts concerning custody was made on 2nd October 1995 and reads in part as follows -
"N and O maintain respectively their request for the custody of the mutual minor child J-M, born on April 6, 1993.
It is a normal steady judgment that a minor child during the progress of the divorce will be confined to his mother unless she is suffering any mental troubles (Court of Appeal 6.4.1987, No 9450)
O, having a high salary, has declared to bring the child to kindergarten during working hours. N from his side only accuses his wife for changing her residence to her home country, the U.S.A.
Missing serious difficulties of the side N and having found nothing against the mother, I give the child to the mother and allow the father visiting rights. That the mother did not oppose. This is in the best interest of the child."
10. From the affidavits of law which have been presented to me (regrettably not from independent sources) it appears that the ruling of 2nd October 1995 was not intended to be a final order and was what in Hong Kong would be called an order for interim custody of the child. In short, it was an order made to regulate the affairs of the parties in the best interests of the child until the courts were in a position to decide upon a final determination of the custody dispute.
11. Ten days after that ruling - on 12th October 1995 - the mother left Luxembourg for New York. The child accompanied her. The child at that time was two years and six months of age. In respect of the move, in her affidavit of 4th September 1998 the mother stated that, after a brief holiday with her family in Missouri, she obtained her own apartment in New York and arranged for the child to attend a local day care centre. A baby sitter was also employed. It is the mother's contention that she in no way attempted to hinder the father from having access to the child. In this regard, she said -
"As soon as my accommodation arrangements had been settled, I notified my lawyer, Mr. Rodesch, of my contact details. At no stage prior to January 1996 did I receive any request, either through my lawyer or from the Plaintiff personally, for visitation to J-M or, indeed, any enquiry about how he was getting on at school and in his new life. I was busy settling into a new job and was relieved to have left behind the very stressful events of the previous two years and had no particular desire to contact the Plaintiff personally, however, I would certainly have accepted telephone calls and letters had he made the effort. I would also have been pleased to co-operate in the arrangement of access visits. There was no gift, telephone call or letter for J-M from the Plaintiff, even at Christmas."
12. Contrary to this, it is the father's contention that the mother did not keep him advised of the child's whereabouts. He alleges that the mother's departure was without the consent of either himself or the courts in Luxembourg and that he was left in ignorance of his son's abode. As a result, he was forced to seek the assistance of New York lawyers who issued habeas corpus proceedings.
13. While, in the absence of oral evidence tested under cross-examination, it is not for me to make any findings of fact, I am constrained to say that I find it a little strange that the process servers in New York apparently had no difficulty in locating the mother in order to serve the habeas corpus papers. It must also be remembered that at all times in New York the mother remained employed by the same corporate bank which had employed her in Luxembourg. What too of the mother's counsel in Luxembourg; what attempts were made to utilise his services to locate the child? The papers are silent on these matters.
14. Whatever the truth of the factual situation, in mid-January 1996 the parties did come together with their lawyers and the father was able to enjoy a period of access with his son. It was agreed in writing that the writ be withdrawn and that the parties 'shall proceed with all matters in Luxembourg'.
15. In addition to the New York habeas corpus proceedings, after the departure of mother and child from Luxembourg, the father sought a review of the earlier order of the Luxembourg courts giving interim custody of the child to the mother. A ruling in respect of this review was given on 6th January 1996 and in part reads as follows -
"Concerning this subject, the Judge estimates that the mother of the...
|
