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Lchy v Cwf & Others

Judgment Cited authorities 21 Cited in Precedent Map Related
Vincent
Judgment Date22 March 2002
Year2002
Judgement NumberHCMP5231/2001
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP005231A/2001 LCHY v. CWF & OTHERS

HCMP005231A/2001

HCMP 5231/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5231 OF 2001

____________

IN THE MATTER of CKJW, male, a child born on 12 September 1995
AND

IN THE MATTER of CLJY, female, a child born on 12 September 1995
AND

IN THE MATTER of child Abduction and Custody Ordinance, Cap 512
AND

IN THE MATTER of the Hague Convention on the Civil Aspects of International Child Abduction

BETWEEN

LCHY Plaintiff
AND
CWF 1st Defendant
KKSL 2nd Defendant
CMN 3rd Defendant

____________

Coram: Deputy High Court Judge Lam in Chambers

Dates of Hearing: 6-7, 10-11 December 2001 and 13-14 March 2002

Date of Handing down Decision: 22 March 2002

____________________

J U D G M E N T

____________________

History of the case

1. The Plaintiff in these proceedings is the mother of a pair of twins, K and L. They were born on 12 September 1995 in New Zealand. They held New Zealand passports. By that time, the father (the 1st Defendant in these proceedings) and the mother were already divorced. The father lived in Taiwan. He has his own family there. Until they were brought to Hong Kong on 8 July 2001, the twins had all along lived with their mother in New Zealand.

2. The 2nd Defendant is the brother of the mother. The 3rd Defendant is the wife of the 2nd Defendant. They live in Hong Kong. I shall call them uncle and aunt. Until 14 June 2001, the uncle and aunt did not have any active involvement with the lives of the mother and the twins.

3. Apart from the twins, the mother and the father have two other elder children. One of them, G, is in New Zealand. The other one K is living with the father in Taiwan.

4. Upon police notification, the Department of Child, Youth and Family Services of New Zealand ["CYFS"] became involved in June 2001. Emergency Psychiatric Services was also engaged, again on referral by the police, in respect of the mother. She was admitted to hospital on 11 June 2001 under a Compulsory Treatment Order under the Mental Health Act. The twins were placed under the foster care of CYFS under Section 139 of the Children, Young Persons and Their Families Act 1989. That section provides for the placement of a child in the care of CYFS for a period not exceeding 28 days when the parent or guardian or other person having the care of the child is temporarily unable or unwilling to care for the child. If the parent is unable to resume the care at the end of that period, the period may, with the agreement of that parent, be extended for one further period of up to 28 days. It is clear that such statutory power is meant to be a temporary measure.

5. The uncle and aunt were contacted by S, a friend of the mother, informing them of the situation of the family. They went to New Zealand on 21 June 2001. After meeting between the mother and uncle and aunt and health care professionals and social workers, and with the support of a report by an independent barrister Ms Weatherall and a report by a psychiatrist, two consent orders were made by the Family Court in Dunedin on 29 June 2001. The first one was an order appointing the uncle to be the welfare guardian of the mother. Under that order, the uncle was given the following authority in respect of the care of the mother:

(a) To make and implement decisions concerning her personal care and welfare which promote her best interests, having regard to her needs with respect to:

(i) where she lives, with whom she lives and with whom she associates;

(ii) her health and decisions concerning medical treatment, subject to the restriction imposed by Section 18(1)(a)(b)(c)(d)(e)(f) of the Protection of Personal Property Rights Act 1988.

(b) To liaise with the hospital in Dunedin or any other hospital concerning the length of her stay.

This order was discharged by the court on 30 November 2001.

6. The second order was an interim order appointing the uncle to be the property manager in respect of the mother's property. That order lapsed in three months' time automatically unless the manager apply for a review and upon review, the court extends the order. There was no application for review and the order lapsed accordingly.

7. On 6 July 2001, the mother signed an Agreement as to Care ["the Care Agreement"], the material provisions read as follows:

"(2) At present, [the mother] is unwell and is receiving treatment at Dunedin Hospital.

(3) [The mother] agrees that [the uncle and aunt] should take her five years old twin children, K and L, back to their home in Hong Kong and care for them there.

(4) [The mother] agrees that [the uncle and aunt] will while they are caring for K and L be able to make decisions regarding schooling, extramural activities, social activities, contact with extended family and so on.

(5) [The mother] authorises [the uncle and aunt] to consent to the carrying out on K and L of any necessary medical, surgical or dental procedure.

(6) [The uncle and aunt] agree that they will maintain good contact with [the mother] during the period that K and L are in their care and will keep her informed of all significant information about her children."

8. On 8 July 2001, the uncle and aunt brought K and L to Hong Kong. On 14 July 2001, the father came to Hong Kong to see the children. The children were enrolled by the uncle and aunt into a school in Hong Kong and commenced their schooling here on 3 September 2001. The father came to visit the children in Hong Kong again between 8 and 12 September 2001. During that period, he also visited the children's school. On 18 September 2001, the father took away the children from the school without any prior notification to the uncle and aunt. He refused to hand them back to the uncle and aunt. Apparently, he wished to take them back to Taiwan. However, he was unable to do so without the passports of the children. Wardship proceedings were commenced by the uncle and aunt on 21 September 2001. In those proceedings, the uncle and aunt asked for, inter alia, the custody of the children. On 28 September 2001, I ordered the children to be returned to the uncle and aunt for interim care and control. Although I accept the father abducted the children out of his concern for them, I must still point out that such action is wrong. It caused disruptions to the lives of the children and could not be in the best interest of the children. There was suggestion that the father did so on legal advice. If that were true, the lawyer who gave such advice should be warned that the court will not look upon the matter lightly. The children were returned to the uncle and aunt on 29 September 2001.

9. The mother was released from hospital on 24 July 2001. Her relationship with the uncle and aunt turned sour. Originally, it was the intention of all involved that the mother would come to Hong Kong after her release from hospital. However, that did not materialize. There was some misunderstanding as to the whereabouts of her travel documents and notwithstanding that a ticket was booked for her travel to Hong Kong on 4 August 2001, she could not make the trip. I should say that on the evidence before me, I am not satisfied that the uncle and aunt deliberately concealed from the mother the whereabout of her travel documents to prevent her to come to Hong Kong. It appears that there were also some ill feelings arising from telephone conversations between the mother and her parents (who are living in Hong Kong). The upshot was that the mother decided that her family members in Hong Kong had excluded her from the family. In a letter dated 18 September 2001, the mother accused the uncle and aunt of taking everything, including her children away from her. The mother determined not to come to Hong Kong. This is unfortunate because in Hong Kong, she could have family support whereas in New Zealand, she is basically on her own. Be that as it may, it is her right to decide for herself whether she would be better in New Zealand or in Hong Kong.

10. After she learnt of the abduction of the children by the father, she commenced proceedings under the Hague Convention on the Civil Aspects of International Child Abduction ["the Convention"] on 25 September 2001. In its original form, the application was made against the father. On 28 September 2001, the uncle and aunt were joined as defendants to the proceedings. On 11 October 2001, the proceedings were amended to allege wrongful retention of the children in Hong Kong by the uncle and aunt. The allegation against the father was deleted. On 6 December 2001, the originating summons was further amended to allege wrongful retention by the uncle and aunt "since or before 16 August 2001 or alternatively since September 2001". I have directed on 28 September 2001 that the wardship proceedings is not to be heard until the determination of the Convention proceedings.

11. The substantive hearing of the Convention proceedings started on 6 December 2001. By that time, the father and the mother took a united front by asking for the children to be returned to New Zealand. That was opposed by the uncle and aunt. I heard the matter on 6, 7, 10 and 11 December 2001. On 7 December 2001, the Court of Appeal handed down its judgment in D and G, CACV 3646 of 2001. In the light of that judgment, further reports have to be called for and I refer to what I have said in my two Rulings on 10 and 11 December 2001 respectively as to the circumstances under which the case was adjourned.

12. The following reports are obtained as a result of my directions/ requests on 11 December 2001:

(a)...

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