The Court of First Instance of the Hong Kong Special Administrative Region recently delivered a judgment in TE v LSY [2024] HKCFI 3652 that sheds light on the complexities surrounding child abduction and custody under the Child Abduction and Custody Ordinance (Cap. 512) (“CACO”) and the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (“the Convention”). Delivered on 23 December 2024, this ruling examines the issue of consent as a ground of objection to the return of the child following the child’s abduction and/or retention.

Mr. Calvin Lo, our partner at Stevenson, Wong & Co, represented the Plaintiff father (“the Father”) in these proceedings.

Case Summary

The proceedings involved a child, GT (“the Child”), who was born in wedlock.  The Defendant mother (“the Mother”) took the Child from Italy to Hong Kong in the summer of 2024.  It was undisputed that Italy was the habitual residence of the Child and that both parties had custody of the Child in Italy.  The only issue was whether there was consent and/or acquiescence.

The Mother contended that the parties reached an agreement during a conversation in June 2024, that she would permanently relocate with the Child to Hong Kong. The Father argued that he only consented to the Mother taking the Child on a summer trip, thus the Mother was wrongfully retaining the Child in Hong Kong when she refused to bring the Child back to Italy.

Legal Principles

The jurisdiction of the Hong Kong Court in child abduction cases is primarily governed by the CACO and the Convention.  The key issue in this case was whether the Father had consented to the Child’s relocation or had acquiesced to the Mother’s actions following the removal.

Consent to the removal of the child must be established on the balance of probabilities by clear and cogent evidence: EW v LP [2013] HKCFI 1405; HCMP1605/2011 at para 37. The burden of proving consent rests on the person who asserts it. The inquiry is inevitably fact-specific, and the facts and circumstances vary from case to case.  The ultimate question, although influenced by numerous facts, remains straightforward: Had the other parent clearly and unequivocally consented to the removal: Re P-J (Children) [2009] EWCA Civ 588 at para 48.

Key Issues Addressed

1. Consent and Acquiescence: The crux of the case hinged on conflicting accounts of conversations on 2 June 2024.  The Mother alleged the Father had consented to the permanent relocation of the Child; in contrast, the Father contended his agreement was limited to a temporary visit for the summer.  The Court was tasked with evaluating the evidence surrounding this pivotal discussion.
2. Evidence of Conduct: The Mother relied on subsequent conduct of the parties, such as her notes of the parties’ conversation and the purchase of single journey tickets to Hong Kong to prove the Father’s consent.  Communications between the parties, including the tone of the messages and the parties’ emotional reactions, were also scrutinized to determine if consent was given.

Court’s Decision

The Court ultimately ruled in favour of the Father and found that the evidence was insufficient to establish consent, which must be clear and unequivocal.  The judgment detailed the following findings:

• Insufficient Evidence of Consent: The Court determined that the evidence relied on by the Mother was not clear or cogent enough to establish that the Father gave his consent.  Some evidence, such as the purchase of single journey tickets and the Father assisting the Mother in packing away of belongings, could be interpreted to suit the case of either party.   Some evidence, such as the Mother’s own note of the conversation on 2 June 2024 and the affirmations of her friends, was self-serving, which would be unsafe to put much weight on.  The Court therefore found that the Mother could not establish that the Father had given consent, either expressly or by conduct.
• Rejection of Acquiescence Argument: The Mother’s alternative case that the Father had subsequently acquiesced to the relocation also failed based on the same evidence.  The Court highlighted that some messages exchanged between the parties, where they showed that the Father was objecting to the Child staying and studying in Hong Kong.

Given the findings, the Court ordered that the Child be returned to Italy at the earliest opportunity, reinforcing the primary objective of the Convention, which is to secure the prompt return of the children, who had been wrongfully removed, to their place of habitual residence.

Conclusion

This case illustrates how the Convention is applied in the Court in Hong Kong and the importance of clear and unequivocal consent in disputes over child relocation and abduction.  As cross-border and international marriages and family arrangements become more common, the legal community must remain vigilant about the implications of parental consent in child abduction cases.  This judgment also serves as a reminder of the legal principles behind the Convention, and in particular, the need for comprehensive evidence to substantiate claims of consent or acquiescence in abduction cases.

Please contact our Partners Wendy Lam or Calvin Lo for any enquiries or further information.

This news update is for information purposes only. Its content does not constitute legal advice and should not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage arising from or in connection with any decision made, action or inaction taken in reliance on the information set out herein.

Weifang Guokong Development Group Co., Ltd. (Weifang GuoKong), a company incorporated in the People’s Republic of China with limited liability, is controlled by the Weifang SASAC and serves as the main infrastructure construction entity in Weifang City.  Weifang Guokong is mainly responsible for the construction of infrastructure and promoting the strategic economic and social development in Weifang City. The Group is mainly engaged in three principal business segments: Infrastructure construction, road maintenance and commodities trading.

Our team comprised our partners Hank Lo, Erica Cheng and Gordon Tsang, senior associate Anthony Wong and trainee solicitor Kayla Yu.

Please contact Hank Lo, Erica Cheng or Gordon Tsang for any enquiries or further information about this transaction.

此次网络研讨会的主题为“探索如何改善仲裁环境以满足商业需求”。徐律师与来自世界各地的嘉宾深入探讨了仲裁作为满足企业不断变化需求的有效争议解决机制，以及争议解决的可持续发展等热点议题。徐律师结合实际案例，为与会者提供了宝贵的经验和见解。

研讨会在热烈的氛围中圆满结束，参会者对讨论内容积极提问，并给予了高度评价。此次研讨会不仅提供了前瞻性和实用性的建议，还为未来仲裁如何更好地服务于商业需求的探索之路提供了重要启示。

如阁下有任何查询或想了解更多详情，请联络本所合伙人徐凯怡律师。

This year, the APEMEA centred about the theme “Cultural Dynamics in Global Business”, highlighting the importance of understanding diverse cultural perspectives in today’s interconnected market. During the 3-day event, Mr. Cheng and Ms. Lam engaged in a series of thoughtfully curated sessions. These sessions featured a diverse array of lawyers and distinguished speakers who provided valuable insights into professional development and industry trends, fostering meaningful connections across the MENA region.

From the left: Joel Ayson from Manila, our Partner Willy Cheng, Partner and former Vice Chair for the Interlaw Diversity, Inclusion, and Community Special Business Team for Asia Pacific Lai Lam, and Lisa Theng from Singapore

On the right: Andy Richter – Bangkok

Please contact our Partners Willy Cheng or Lai Lam for further enquiries about this event.

Diginex owns 100% of Diginex Solutions (HK) Limited. Diginex Solutions (HK) Limited is headquartered in Hong Kong and is an impact technology business that helps organizations to address the some of the most pressing Environmental, Social and Governance, climate and sustainability issues, utilizing blockchain, machine learning and data analysis technology to lead change and increase transparency in corporate social responsibility and climate action.

Our Partners, Hank Lo and Gordon Tsang, and Associate Ben Chan, acted as the Hong Kong legal counsel for the Joint Underwriters in the Nasdaq Listing and provided comprehensive Hong Kong legal services.

Please contact Hank Lo or Gordon Tsang for any enquiries or further information about this transaction.