IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 3646 OF 2001
(ON APPEAL FROM HCMP NO. 5520 OF 2001)
Coram: Hon Rogers VP, Le Pichon JA and Cheung JA in camera
Date of Hearing: 4 December 2001
Date of Judgment: 4 December 2001
Date of Handing Down Reasons for Judgment: 7 December 2001
REASONS FOR JUDGMENT
Hon Le Pichon JA:
1. This is an appeal by the defendant (the father) from the judgment of Hartmann J handed down on 17 November 2001 in an application by the plaintiff ("the mother") under the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") for the return of the child of her marriage to Switzerland. The judge ordered that the child be returned to Switzerland although the return was conditional upon the Swiss Central Authority ensuring that, immediately upon the child the arriving in Switzerland, an investigation takes place into the allegations of sexual abuse made by the father on behalf of the child. The order also dealt with the father's access to the child in December 2001 and February 2002. The mother was given leave to remove the child from Hong Kong for Switzerland on the night of Thursday, 15 November 2001, but that part of the order has been stayed pending the appeal to this court.
2. At the hearing, we ordered as follows:
"1. The Order of the Court below be set aside.
2. The matter be remitted to the Court of First Instance for further consideration and decision before Hartmann J. following the steps to be provided for below.
3. The matter be remitted to Deputy District Judge Remedios as a matter of urgency in order to determine whether the Order of 30 August 2000 was correctly drawn up to reflect the order intended to be made
a. as to the access arrangements and in particular whether the order was intended to be drawn up to incorporate all the proposals contained in the schedule of the proposed access arrangements referred to by the Judge at page 24 of her judgment of 30 August 2000 in particular the country where access is to take place save that the period of access at Easter be changed from 1 week to 10 days
b. as to whether it was intended to specify the school to be attended by the child having regard to what was stated in the judgment
and if so to make the necessary amendments.
4. The child be examined for the purposes of ascertaining whether the child has been sexually abused as alleged. The said examination to be by Dr C.K. Wong or in default of his availability to conduct such examination by a child psychologist/psychiatrist conversant with child sexual abuse cases to be agreed between the parties. In default of the parties agreeing the identity of such psychologist/psychiatrist the Hong Kong Central Authority shall submit the name of one such psychologist/psychiatrist to the Court of First Instance for the Court's approval and appointment as soon as practicable.
5. There be no order as to costs here and below save for any legal aid taxation."
Government counsel for the Hong Kong Central Authority who was present in court undertook to abide by paragraph 4 of the order. The court indicated that written reasons for the order would be handed down later and this we now do.
3. The father was born in England in 1958. The mother who is Swiss was born in Australia but returned to live in Switzerland when she was five. The parties met in Switzerland in 1982 and were married in 1984. They left Switzerland to take up teaching posts in China in 1987 and came in Hong Kong in January 1988. The child is the only child of the marriage and she was born on 26 May 1993.
4. The marriage did not work out and the parties separated in February 1999. In May 1999, the mother commenced divorce proceedings based on the father's conduct. The Family Court dealt with the issues of the child's custody, the mother's application for permanent removal to Switzerland, and the father's claim against the mother for ancillary relief in August 2000 in a hearing which lasted some nine days. On 30 August 2000, deputy District Judge D'Almada Remedios handed down a lengthy and fully-reasoned judgment ("the August judgment"). She granted sole custody, care and control of the child to the mother with access to the father as specified on page 25 of the August judgment.
5. In the afternoon of 30 August 2000, a court order was submitted by the mother's solicitors for approval without reference to the father's solicitors ("the August order"). The part pertaining to custody and removal of the child read:
"1. Custody of the child of the family ... be granted to the [mother], with access, as defined below, to the [father], namely:-
Autumn (October) 5 days;
Christmas (December) 10 days, either for the first half or the second half of [the child's] holidays. Each parent shall have [the child] on an alternative year basis for either Christmas Day or New Years Day holiday respectively. [The child] shall spend Christmas of 2000 with the [mother] and [the child] should spend New Year's Day 2001 with the [father];
Winter (February) 5 days;
Easter (April) 10 days;
Summer (July/August) 5 weeks;
Weekend access should the father be visiting Switzerland.
2. Leave be granted to the [mother] to remove the child from the jurisdiction permanently."
The recitals to the August order contained two undertakings by the mother. The first was an undertaking to pay one return airfare a year from Switzerland to Hong Kong or its equivalent for the purposes of the child's travel to see the father. The second was an undertaking to the court to return the child when called upon to do so by the court. It is to be noted that the provisions for access contained in the August order reflected what was set out on page 33 of the August judgment but which differed in some respects from what appeared on page 24 of that judgment.
6. After obtaining a sealed copy of the August order on the day the August judgment was handed down, the mother left for Switzerland with the child that same evening without informing the father and therefore without giving the father any opportunity to say goodbye to the child. As a consequence, he flew to Switzerland a few days later in order to do this. He was given access for the day and upon returning the child that evening, an argument broke out which led to a scene. Thereafter, access by the father became fraught with difficulties. According to the father, access during Easter of this year was curtailed and had to take place in Switzerland. Then came the question of the father's five-week summer access. The mother would not countenance access taking place outside Switzerland. The father thereupon obtained an order from Deputy Judge Levy on 7 July 2001 which implicitly confirmed that access could take place outside Switzerland. The mother chose not to appear at the hearing and continued to oppose access outside Switzerland. The father then attempted to enforce his right of access under the Convention, and a hearing to this end took place in Zurich in early August. Unfortunately, no ruling could be obtained from the Swiss court in time for that summer access to be enjoyed outside of Switzerland. The Swiss lawyers for the father explained that the problem was that "the decision" of 30 August 2000 was not sufficiently clear as to where access was to take place and in the eyes of the Swiss court, the July 2001 order was undermined by the absence of the mother. Understandably, the father found all this hugely frustrating.
7. To compound matters, on 14 August 2001, the father was informed by the mother that new arrangements were being made for the child's schooling. The evidence filed by the mother for the August 2000 hearing was to the effect that the child would be enrolled in the Inter-Community School in Zurich, a school attended by a cousin of the child who was the same age. The school offers GCSE and International Baccalaureate and tuition is in the English language. Indeed, the child did attend that school during the academic year 2000-2001. In August 2001, the father was informed that the child would be moved to a Swiss school where the medium of instruction is not the English language. The child does not speak either Swiss-German or French which are the two prevalent languages in Switzerland.
8. In early October of this year, the father flew to Switzerland to exercise his right of access. The following day he returned to Hong Kong with the child. Within a few days of his arrival, he made an application pursuant to Ord. 90 of the Rules of the High Court to have the child made a ward of court. Three days later, on 15 October, the mother commenced the present proceedings under the Convention. On 23...