A C v A S

For reference

Hague Convention - distinction between rights of custody and rights of access - right to determine the child's place of residence of non-custodial parent - right to be consulted not a right of veto - right of custody of foreign court - wrongful retention - habitual residence - peripatetic and unmarried parent - absence of settled intention.

HCMP 4266/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4266 OF 2001

______________________________

J U D G M E N T
(EDITED VERSION)

______________________________

Background

1. This application concerns a child, whom I shall call J.S. He was born on 21st July 1999 in France. By these proceedings, his father sought his return to France. He said that the child has been wrongly removed from France by his mother. He said France was the habitual residence of the child before the wrongful removal. After hearing submissions for three days, I dismissed the application on 8th October 2001. I said I would hand down my written judgment later. This is my judgment. To understand my decision, it is necessary to go into a bit of details with regard to the factual background and the history of the relationship between the parents.

2. The mother of JS was not married to his father. She herself was a Chinese born in Hong Kong. She emigrated to Australia at the age of 18. Apart from Australian passport, she also held and still holds a green card issued by the United States. She ran a business in Los Angeles. She had to travel a lot for her business. The father of the child is a French national. He was born in France. He also travelled a lot. The father first met the mother in November 1996 in London. They met again shortly afterwards in Milan. They had an affair for a few days. Then the mother went back to Los Angeles. Thereafter, the two had occasionally met each other at Los Angeles and Cannes and spent time together. The father pursued the mother more seriously after she broke up with her then boyfriend in July 1998.

3. Between August and December 1998, the mother and father had a stormy and very emotional relationship. It had not been an easy relationship from the start. In the words of the father, and I quote from Paragraph 14 of his Second Affidavit filed in these proceedings, "...we discovered that we could not cope very well with each other. We had our own frustrations. She found me intolerable and I found her unmanageable." He was referring to their relationship earlier than August 1998 but I think it also gave a picture of their relationship ever since. The mother spoke little French and the father did not speak English very well. It was exacerbated by the rather sudden demise of the father's own mother, to whom he was very emotionally attached, in October 1998. The mother still travelled extensively during this period.

4. In the midst of such relationship, the child was conceived in late October 1998. For reason which I do not deem necessary to go into in this judgment, the father was not enthusiastic when he was told about it in November 1998. This proved to be the presage to the end of the first phase of their relationship. The two of them eventually broke up shortly afterwards.

[Paras. 5 to 8 contained factual details which do not call for reporting.]

9. From all these, it can be seen that the relationship between the father and the mother suffered from a number of acrimonious incidents and was fraught with difficulties. It has never been a steady and stable relationship. It would appear that January 2000 marked the complete breakdown between the two of them. On 27th January 2000, the father filed proceedings in France regarding his rights towards the child. In February 2000, the mother left Paris with the child and went back to Los Angeles before any hearing. This, however, is not the removal relied on by the father.

10. I shall have to delve into the French proceedings at greater length at a later stage. The mother challenged the jurisdiction of the French court. On 9th May 2000, the French court rejected the mother's plea as to its lack of jurisdiction and made an order that,

(a) the father and the mother were to exercise joint parental rights over the child;

(b) the child was to reside at the usual residence of the mother;

(c) the father was given visitation rights but without any accommodation rights;

(d) the mother was to inform the father as to her usual residence;

(e) the father was to pay maintenance in the sum of 2,000FF per month as child support.

At the time when the order was made, the mother and the child were in Los Angeles.

11. The mother came back from Los Angeles to France with the child on 12th May 2000. There were contacts between the parties and the father was given access to the child although perhaps not to the full extent as ordered by the court. There were conflicts in the evidence as to the reason behind that. The French court also ordered that a psychological report be obtained. The mother filed an appeal against the French order. Up to the time of the hearing before me, the appeal has not yet been disposed of. The mother stayed in France to arrange for examination by the psychologist. That only took place in late August 2000 after the psychologist returned from holidays. Whilst counsel for the father at one stage submitted that they were back together as a family during May to August 2000 enjoying a summer holiday, the correspondence between the parties during this period showed otherwise. In fact, the father's Second Affidavit filed in these proceedings showed that during this period, there were constant arguments between the parents on the question of access. This was wholly inconsistent with a case of happy family reunion. The father was not constantly around the mother and the child during that period.

12. The mother took the child to Hong Kong on 11th September 2000. This is the first removal alleged to be wrongful by the father. She only informed the father of the same by a fax dated 13th September 2000. From the letter, it appears that the mother did not plan to stay in Hong Kong for long. She came to attend the funeral of her god mother, and was intending to go back to Los Angeles thereafter. In the correspondence between the parents whilst she was in France, she had been saying that she would go back to Los Angeles. However, she subsequently decided to settle in Hong Kong. She has relatives here who could assist her in terms of daily needs. She enrolled the child into playgroups and kindergarten. She stayed at first at her family home in Tsimshatsui. On 2nd December 2000, she leased a house in Shatin. In the submissions filed on 15th December 2000 on the behalf of the mother in the French proceedings, the mother clearly indicated that she had settled with the child in Hong Kong.

13. The father did not take any immediate action after the receipt of the fax of 13th September 2000. He explained in Paragraph 25 of his First Affidavit, "Throughout our relationship, the [mother] has flown off many times without informing me prior to the event even if she was taking [the child] along. She would always return as unpredictably as she left, and there was certainly nothing in her faxes to suggest this was any different." But the mother said in her fax of 13th September 2000 that she would go back to Los Angeles instead of Paris. The father also said he was expecting to see the mother and child in Milan in October 2000. He did not see them there. Apparently, he did not contact the brother of the mother until January 2001 to locate her whereabout in Hong Kong. He instead instructed his French lawyer to write to the mother's lawyer in France on 5th December 2000 to demand information as to the place of residence of the child and communicate his wish to see the child. The response from the mother's lawyer on 11th December 2000 was not particularly helpful. It alleged that the father knew the mother's address in Hong Kong and suggested the father to write to her in Hong Kong or send fax to her at Los Angeles about his intended visit. In a letter dated 18th December 2000, the father's lawyer protested that the father did not know the address or telephone number of the mother in Hong Kong. It also asked for the date of the mother's return to France, Europe or Los Angeles "so as to allow the father to organize his travels under acceptable and bearable conditions particularly financially."

14. The mother had to go to Los Angeles to attend her own father on 2nd January 2001 because he suffered a massive stroke. She went there with the child. Hence, when the father tried to locate them through the brother of the mother, he was told that she had gone to Los Angeles. By a fax dated 19th January 2001, the mother informed the father as to her address in Tsimshatsui (which she still kept as correspondent address despite her move to Shatin). She reminded him that he had been there when he came to Hong Kong with her to attend the funeral of her mother. She explained why she was in Los Angeles and her decision to live in Hong Kong. She also told him that the child had been going to preschool in Hong Kong. Her own father died in Los Angeles and after the funeral, the mother left Los Angeles with the child to go to Berlin. Arrangement was made for the father to see the child and the father did manage to see him on 21st February 2001 in Paris. The father then went to Los Angeles for his own business. After staying in France for...