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L M v H T S

Judgment Cited authorities 7 Cited in 1 Precedent Map Related
Vincent
Judgment Date19 April 2001
Year2001
Citation[2001] 2 HKLRD 377
Judgement NumberHCMP1329/2001
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP001329/2001 XCHRX L M v. H T S

HCMP001329/2001

HCMP 1329/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1329 OF 2001

____________

IN THE MATTER OF N, female, a child born on 6th November 1999

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
L M Plaintiff
AND
H T S Defendant

____________

Coram: Hon Hartmann J in Chambers

Dates of Hearing: 3, 4 and 6 April 2001

Date of Handing Down Judgment: 19 April 2001

___________

JUDGMENT

___________

1. These proceedings, brought under the Child Abduction and Custody Ordinance, Chapter 512, were heard by me over a period of three days. Oral testimony is unusual in these matters but, as there were a number of fundamental conflicts on the facts, I deemed it necessary to hear from both parties; that is, the father of the child who is a German and the mother who comes from Hong Kong. Both testified but only within those narrow parameters that I directed were relevant.

2. The proceedings had been instituted by the father on the basis that the mother's flight from Germany with the child of their marriage, a girl of tender years named N, constituted a wrongful abduction of the child. He sought the return of N to Germany so that matters of custody, access and the like could be resolved in the courts of that jurisdiction.

3. At the conclusion of the hearing, on the basis that Hague Convention matters must be dealt with expeditiously, I gave an oral ruling that I was satisfied that the father had proved his entitlement to an order and that, subject to various undertakings which would safeguard the interests of the child, N was ordered to be returned forthwith to Germany. At the time of giving the ruling I said that my reasons would be delivered later.

4. I am delighted to say that within an hour or so of my ruling, the father and mother were able to reconcile their differences and it was agreed that they would fly back together to Germany that same night with the child and would resume married life in their house in the town of Bad Homburg. I understand that the necessary practical arrangements were completed, despite the limited time available, and that the family was able to leave Hong Kong that same night as planned.

5. Although the matter ended ideally, it was agreed that I should still deliver a judgment. This was for a number of reasons. First, the matter had been fully argued and, notwithstanding the reconciliation, the child had been returned to Germany in terms of my order. Second, the hearing had concerned a matter of central importance in Hague Convention cases; namely, the meaning of the phrase 'habitual residence'.

The factual background

6. The father, who was born in Germany in 1962, first came to Hong Kong in 1986. He set himself up in business here distributing health products by means of the internet. In January 1999, he met the mother who began to work for him. A love affair ensued and in early May of that same year they were married. The ceremony took place here in Hong Kong.

7. On 6 November 1999, a child was born of their union. That child is N, the subject of these proceedings. She is today some seventeen months of age.

8. In or about July 2000, a decision was made to leave Hong Kong and to move to Germany in order to make a new life for the family in that country. As a result, the necessary visa was obtained for the mother, personal belongings were shipped and on 5 October 2000 the family arrived in the town of Bad Homburg which, I am told, is near Frankfurt.

9. When I talk of the family, I should mention that at all times the father has had custody of his son, P, a child born of an earlier relationship. P was born in late 1996 and at this time is some four and a half years of age. P lived with the father and mother here in Hong Kong and accompanied them to Germany.

10. Sadly, the marriage between the father and mother appears for much of its duration to have been a tempestuous one. By that I mean that it has been punctuated by arguments of a most heated nature. Allegations and counter-allegations of physical abuse have been made. Despite this, it is apparent that both parties have (commendably) attempted to make their marriage a success and, of course, are now attempting to do so again. Indeed, the search for a new and better life was one of the principal reasons for the move to Germany.

11. The desire, however, was not met - before the commencement of these proceedings at least - by the reality. For the first month or so the family had to live in a hotel. The arguments continued, as heated as they had been in Hong Kong. Nevertheless, the father and mother took the necessary steps to attempt to make a new life for themselves. In this regard I accept, of course, that the father was returning to his country of birth. He spoke the language and was at home with the culture. The mother, whose native tongue is Cantonese, did not share those advantages. The continued arguments must have greatly aggravated her natural feelings of uncertainty in a new and strange land.

12. After a matter of only nineteen or twenty days, in the heat of an argument, the mother threatened to take N and return to Hong Kong. Those threats (or 'wishes' as the mother expressed them) were articulated almost each time they argued. Clearly, the father took them seriously for he sought advice from a lawyer on the matter and later, in the immediate wake of an argument, took the mother to his lawyer's office so that she could receive the same advice.

13. But as I have said, when not arguing the parties continued with their arrangements to construct a new life. A five-year lease was taken out on a house. Arrangements were put in hand to renovate the kitchen. The father and mother browsed the shops for new furniture. P was enrolled in primary school while steps were taken to ensure that N would be able to enjoy some form of pre-school activities. The father ordered a new car.

14. Towards the end of the year, the mother took steps to renew her visa, receiving one that now permitted her to work. At the beginning of February of this year - some four months after her arrival in Germany - she also enrolled at a language school for what is described in the English translation of the invoice as a 'crash course' in German. The lessons commenced on 6 February and, according to the mother, she attended a number of classes. Her reason, she said, was because of her love of languages.

15. When the parties were not arguing, there appears to have been no talk (at least any talk of substance) concerning the mother's desires to return to Hong Kong with N. Both the father and the mother put this down to an inability to communicate or a desire not to provoke further arguments. But, as I have said, it is apparent also that there was - on the part of both parties - some attempt made in the more tranquil moments to keep their marriage going. During the course of her oral testimony the mother, searching for the right word, described the marriage as 'crazy'. The word was said in a tone of perplexed affection. In context, the word was not simply perjorative.

16. During the hearing, much was made of a string of e-mails sent by the father to the mother's sister in Hong Kong. In these e-mails he complained that the arguments were getting worse not better and that they were affecting his ability to work. The e-mails bear witness to the fact that on at least two occasions the father booked tickets for the mother and N to return to Hong Kong. One occasion was for a vacation only but it is not denied that the other booking was intended to bring about a formal separation as a result of which mother and daughter would return to Hong Kong to live. According to the father, he had taken advice from a business colleague who had suggested that a formal separation was the best and that the mother should be allowed to return to Hong Kong with the child. Suffice to say that neither booking resulted in the mother and daughter leaving Germany. On both occasions arguments resulted in cancellation of the bookings. The father blamed the mother, the mother blamed the father.

17. Instead of the mother returning to Hong Kong, the mother's sister made a trip to Germany in January of this year. As for the father's acceptance that there should be a separation, he testified that he very quickly rejected the advice given to him by his business colleague and resolved that, even if the mother was to return to Hong Kong, their daughter would remain in Germany. The mother accepts that this is the case. Indeed, she said that on a number of occasions the father made it plain that he would resist any attempt by her to remove the child.

18. This no doubt explains why, on 20 February of this year, the mother took N and made a clandestine journey to Frankfurt Airport. Tickets were waiting for her. They had been purchased by the sister. Mother and child then flew back to Hong Kong.

19. Later that same day, the father discovered a note left at the matrimonial home in which inter alia, the mother apologised for leaving, saying that she needed to get away and that it was best this way as they were always 'poisoning' each other. The mother concluded by saying that she would do her best to look after N and that the father was not to worry about her.

20. A few days thereafter - after some acrimonious e-mails with the mother and her Hong Kong family - the father reported the matter to the German central...

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1 cases
  • K v K
    • Hong Kong
    • High Court (Hong Kong)
    • 22 September 2006
    ...– a consideration of applicable principles 14. The term ‘habitual residence’ is not defined in the Hague Convention. In Re N (a Child) [2001] 2 HKLRD 377, one of the first judgments concerning the working of the Convention delivered by myself after the Convention came into force in Hong Kon......

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