13 May 2016

Case Summary: LPQ v LYW HCMP 2831/2014

In the case of LPQ v LYW HCMP 2831/2014, the Court of First Instance ordered the return of two children (“the Children”) from Hong Kong to their place of habitual residence, Japan, under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). The Hague Convention, which was concluded on 25 October 1980, is a multinational treaty in force among more than 90 contracting states. It provides an expedited process to secure the prompt return of children who have been wrongfully removed or retained from their places of habitual residence. A removal or retention of a child is wrongful when it is in breach of a person, an institution, or any other body’s “rights of custody”, ie. rights relating to the care of the child, in particular the right to determine the child’s place of residence.

The Hague Convention came into force in Hong Kong in September 1997 and was incorporated into Hong Kong law through the enactment of the Child Abduction and Custody Ordinance (Cap. 512). From 2005 to 2015, statistics from the Hong Kong Central Authority show that Hong Kong received 44 requests for children to be returned to other jurisdictions and sent out 27 requests to other treaty jurisdictions for the return of children to Hong Kong.

The case of LPQ v LYW was the first of its kind between Hong Kong and Japan, since Japan did not begin enforcing the Hague Convention domestically until 1 April 2014.

Our partner Ms. Catherine Por represented the Plaintiff mother, LPQ (“P”) against the Defendant father, LYW (“D”).

The case concerned P, a PRC national, and D, a Hong Kong SAR passport holder, who were married in 2008, and settled in Japan shortly thereafter. The Children were born in Japan and had been raised there since birth. On 1 August 2014, D left for Hong Kong with the Children. In November 2014, P, with the help of the Secretary for Justice, commenced proceedings under the Hague Convention against D to seek the return of the Children to Japan.

D did not dispute that prior to their removal to Hong Kong, the Children were habitual residents of Japan and that P had joint rights of custody of the Children under Article 5. D relied on two defences to argue that the court should not return the Children to Japan, namely:
(i) Under Article 13 (a), P has consented to the removal of the children from Japan to Hong Kong; and
(ii) Under Article 13(b), the Children would be placed in an intolerable situation if they were to return to Japan. In particular, the Children would be subject to neglect if they were to be returned from Japan, and that, since Japanese courts do not recognize joint custody and access rights, the return of the Children to Japan would be against their fundamental rights to have contact with both parents.

The Court of First Instance disagreed with both of D’s defences and ordered the immediate return of the Children to Japan.

With respect to D’s first defence, DHCJ Lok held that D was far from establishing that P consented to the removal of the Children from Japan. In particular, the court placed weight on the fact that D did not inform or liaise with P regarding the arrangement of the Children’s departure, that P sent various messages to D and reported to the Police after the Children went missing, and that there were considerable hostilities between the parties regarding P’s access to the Children.

On D’s second defence, DHCJ Lok held that D was unable to surmount the high evidential threshold required under Article 13(b). Contrary to D’s allegations, the Court held that P should be able to take care of the Children. The court also held that there was no evidence supplied to the court to substantiate D’s serious allegations.