Child Abduction and proceedings under the Hague Convention - The decision in FR and MF HCMP 532/2021, the defences which can be relied upon, and the Court's approach where it is alleged a child objects to returning to their home country

The Hague Convention is an international convention dealing with the wrongful removal by a parent of a child from one country to another without the other parent's consent. The Courts of countries who have signed up to the Hague Convention, including Hong Kong, have a duty to ensure the child's swift return and must act expeditiously; the entire Court process should ideally be completed within 6 weeks.

The removal of the child must be wrongful, which means the parent left behind must have rights of custody in relation to their child. This can prove difficult in some cases, such as where unmarried fathers do not have custody rights under the local law (such as in Hong Kong).

The child must also have been removed from a country in which he or she was habitually resident. This is a question of fact in every case. It is often the first line of defence used by the abducting parent to claim that the child was not habitually resident in the country they were removed from.

THE DEFENCES

The Hague Convention allows the Court to refuse to order the return of a child if one of the following can be established:

  1. The left-behind parent had in fact consented or acquiesced to the removal/retention.
  2. There is a grave risk that the child's return would expose them to physical or psychological harm, or otherwise place the child in an intolerable situation.
  3. The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views.

THE DECISION IN FR and MF HCMP 532/2021 [2021] HKCFI 1557

In the recent decision in FR and MF HCMP 532/2021 [2021] HKCFI 1557, the Honourable Madam B Chu considered in details these defences.

This was one of the first abduction cases dealt with in Hong Kong during COVID-19. This in itself raised a number of practical issues, such as how the children would in practice return to France if the father was unable to come to Hong Kong to collect them, and who would deal with COVID tests and quarantine etc.

The situation, in this case, was particularly complex since the family had relocated to France from Hong Kong less than six months prior to the wrongful retention in Hong Kong. The father and the children had moved to France in July 2020, on one-way tickets, with the mother joining them in October 2020. The children were in school in France, attending activities, and properly integrated into life in France.

In late December 2020, the mother returned to Hong Kong with the children in order to visit her father who was unwell. The father has objected to the trip initially, but agreed under pressure from the mother.

The mother was due to return to France with the children in February 2021 but informed the father on the day she was due to return that she would not be doing so and that she would be staying in Hong Kong with the children.

The father promptly issued proceedings under the Hague Convention for the children's return, initially through the Central Authority in France, and subsequently through legal action commenced in the High Court in Hong Kong.

Contrary to the mother's case, the Court found on the facts that the children were habitually resident in France at the time they were retained in Hong Kong and that the father had not acquiesced to their retention in Hong Kong. Despite being brought up by the mother, the children's habitual residence in the past was entirely irrelevant to the analysis. In this case, the children had actually spent most of their lives in Shanghai.

GRAVE RISK OF HARM AND PROTECTIVE MEASURES

The question of grave risk of harm was considered in detail by the Court. The Court was unable to make any findings of fact in relation to the mother's allegations about the father's behaviour, to include allegations in relation to drinking problems, and in particular, it was noted that the evidence which was given by the children to the social welfare officer and counsellor was inconsistent.  More importantly, however, the Court took the view that any concerns could be met by having protective measures in place.

An important practical point that arises from this decision is the requirement for the left-behind parent to consider, where an allegation of grave risk of harm is being run, or likely to be run, what undertakings and protective measures can be provided to the Court.

Whether the allegation is that the child is at risk of being harmed by the left-behind parent is an altogether different scenario to one where the child is said to be at risk of harm from external circumstances, such as whether they come from a war zone, or are likely to be prosecuted for example for their religious beliefs.

These issues should be dealt with pre-emptively by the left-behind parent, and addressed in the evidence put before the Court.

The following should be considered, where relevant:

  • The future living arrangements for the children and who else will be available to care for the children (such as grandparents).
  • Whether undertakings regarding violence and the use of drugs and/or alcohol need to be provided, as well as any medical or other treatment that should be sought.
  • How the family's expenses will be met, and whether the left-behind parent has the financial resources to support the children.
  • The extent to which any undertakings can be enforced in the home country, and what sort of public services are available in terms of child protection if it is being alleged that there is a history of violence or abuse.
  • In the event, the abducting parent does not wish to return to the home country, the proposals for access between that parent and the child going forward.

THE CHILD’S OBJECTIONS

Where it is said a child objects to a return to their home country, the Court must engage in a 2-step process.

The first step is for the Court to establish whether the child objects to being returned, and whether the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views.

If these elements are established, the second step is for the Court to decide whether to exercise its discretion to refuse to allow the return. Whether a child objects and whether they have sufficient maturity is a question of fact in each case. There is no fixed age limit.

A child has to object, and not merely express a preference. This will vary with the personality of the child. In most cases, children do not want to upset either parent by stating a strong preference either way.

It is important also to underline that the key question is whether the child objects to a return to their home country; it has nothing to do with the care and control arrangements and who they will live with, although often in practice that is what the child is actually thinking about. The objections must therefore clearly point to matters relating to their home country, and not just the particular circumstances.

In the case of FR and MF, the children were aged 10 and 7 at the time of the hearing. It was clear from the Social Welfare Report that the children's objections were directed towards their school life, and their friends and social life in France, but that the evidence before the Court did not corroborate what they had said to the social welfare officer, and also that the lockdown restrictions in France imposed by COVID-19 may have skewed their views.

There was no evidence of a real objection to a return to France; on the contrary, there was evidence that one communication between the elder child and her father had been written by the mother, or with her guidance. Although it was said that the elder child was suffering emotional problems in Hong Kong, there was no evidence of this when she was in France, and both children had been doing well at school in France.

Although the social welfare officer's report was brief, and the officer had only taken the children's views at face value, the Judge accepted the children's 'objection defence' was made out.

The Judge then had to decide whether or not to exercise her discretion to return the children to France, despite the objection.

The Judge considered the other evidence in the case in reaching her conclusion: the children had always been to international schools, they were fluent in French, they had a stable living environment in France living at the paternal grandmother's house, they had made French friends, and they were doing well academically. On balance, the Judge found that it would be in the children's best interests to return to France.

BRAINWASHING

It was the father's position in this case that the children had been happy in France, and that once they were in Hong Kong the mother had brainwashed/coached them into saying they wanted to stay.

As a result of the allegation of brainwashing, the Court considered that it was necessary for a social welfare officer to be appointed in order to ascertain the children's views.

One of the key issues in the case was the information that was to be provided to the social welfare officer, and what the children were to be told. In this case, the social welfare officer was not provided with any background information, and it was clear that this impacted her ability to properly scrutinise what the children were saying, and whether they understood the implications of their objection. She was unaware that it was being said that the children had been coached, and as a result, did not investigate this.

It is therefore important to consider, when brainwashing is likely to be an issue, what precise instructions need to be given to the social welfare officer so that they are equipped to ask the right questions and undertake a thorough investigation.

JUDGES INTERVENTION

The Judge in this case considered whether it would be beneficial to meet with the children. The purpose of the meeting would be for the Judge to listen to what the children had to say, and to explain why the Court may make a different determination. It would not be to embark on an evidence-gathering exercise.

The Court took into account the fact that in England and Wales all children over the age of 6 or 7 are interviewed by a specialist social welfare officer, and that there is a greater willingness amongst Judges to meet children. It was not considered 'rare' for a Judge to meet with a child.

However, whilst the Judge took the view that she could have seen the children, she declined to do so. There was no suggestion that the children had asked to meet with her, they had already been interviewed by the social welfare officer and by the mother's chosen counsellor, and it would add undue stress for them to be interviewed again.

CONCLUSION

These cases are notoriously difficult for the Court. Unilateral decisions by a parent to remove a child from the other parent is very rarely in the child's best interests and can inflict lasting and irreparable damage.

The proper route for a parent who wishes to relocate is to make an application to the Court of their home country and for the Court to decide what is in the child's best interests, not to take the law into their own hands. Being found to be a parent who has abducted their child will rarely sit well in any further applications made to the Court concerning that child.

Jurisdictions

Senior Associate, Withersworldwide