Court/Judicial body:
Hong Kong Court of Appeal
Date:
13 August 2015
CRC Provisions:
Article 12: views of the child
Other international provisions:
Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), Article 13: A court has the power to refuse to order the return a child to his habitual residence if it finds that the child objects to being returned.
Domestic provisions:
Child Abduction and Custody Ordinance (Cap. 512): Implementing the Hague Convention in Hong Kong
Case summary
Background:
A father (F) issued an application under the Hague Convention requesting the return of his two children to the USA from Hong Kong, where their mother (M) had taken them immediately following marital breakdown. F, distinguishing between preferred person and preferred location, argued that the children had not expressed a preference to remain in Hong Kong but to live with their mother, such that the Court would not have the power to refuse return under Article 13 of the Convention.
Issue and resolution:
International child abduction; return of children to habitual residence. The Court dismissed F’s application, finding that the children had expressed a preference to remain in Hong Kong with M.
Court reasoning:
The Court dismissed F’s attempt to draw a distinction between the children’s preferred person and location. The children’s preference to stay in Hong Kong was inevitably tied up with their love for their mother. Refusing to listen to the children’s views on a technicality would not only be artificial, but would also be in breach of Article 12 CRC for failing to take into account the views of the child.
Excerpt citing CRC and other relevant human rights [9.14] Butler Sloss LJ said in Re M (A Minor) (Child Abduction) [1994] 1 FLR 390: “It is true that Article 12 requires the return of the child wrongfully removed or retained to the State of habitual residence and not to the person requesting the return. In many cases the abducting parent returns with the child and retains the child until the court has made a decision as to the child’s future. The problem arises when the mother decides not to return with the child. It would be artificial to dissociate the country from the carer in the latter case and to refuse to listen to the child on so technical a ground. I disagree with the contrary interpretation given by Johnson J in B v K (Child Abduction) [1993] Fam Law 17. Such an approach would be incompatible with the recognition by the Contracting States signing the Convention that there are cases where the welfare of the child requires the court to listen to him. It would also fail to take into account Article 12 of the United Nations Convention on the Rights of the Child 1989. From the child’s point of view the place and the person in those circumstances become the same … .I am satisfied that the wording of Article 13 does not inhibit a court from considering the objections of a child to returning to a parent.” [emphasis added]
CRIN comments:
CRIN believes that this decision is consistent with the CRC. The views of the child must be given due weight in accordance with their age and maturity in all decisions affecting children. Artificial distinctions should not be drawn for the purpose of excluding the views of children on matters which concern them.
Citation:
[2015] HKCU 1999; CACV 98 & 125/2015 (13 August 2015)
Link to full judgement:
https://www.incadat.com/en/case/1360
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.