LCH v JMC (Forum and Return) [2019] 4 HKLRD 242

Eugene Yim appeared for the successful plaintiff in the Court of First Instance in LCH v JMC (Forum and Return) [2019] 4 HKLRD 242.

C, now three years old, had been born in Canada in April 2016 to M and F, who were not married to each other. M was born in Hong Kong, grew up in Canada and moved to Hong Kong in 2014. F was born in Australia but moved to Hong Kong in 2013 to work as a pilot. Four weeks after her birth, M and F brought C to Hong Kong, where they lived together until 2018 when M broke off her engagement to F and moved out with C. On 4 April 2019, M brought C to Hawaii with F’s consent, but on 13 April 2019, M unilaterally took C to Toronto to live there. On 19 April 2019, F flew to Toronto where he had access to C and stayed for a week. Whilst F was in Toronto, he issued an application in the Canadian Court under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Application). M was restrained from removing C from Toronto pending the hearing of F’s Hague Application and was ordered to deliver up, amongst other things, C’s travel documents. On 7 May 2019, upon advice that he had not been exercising “rights of custody” under art.3 of the Hague Convention in the Hague Application, F issued the present proceedings in Hong Kong making C a ward of the Court and seeking various orders including an order pursuant to s.3(1)(d) of the Guardianship of Minors Ordinance (Cap.13) (GMO) that he had all the rights and authority that the law would allow him as a father if C were legitimate (s.3(1)(d) Order), an order under GMO for joint custody and shared care and control of C (Custody/Care Order), and an order under the Court’s inherent jurisdiction for the return forthwith of C to Hong Kong (Return Order). F also issued an application under Ontario Children’s Law Reform Act seeking various orders (CLRA Application). On advice, F did not proceed with the Hague Application and the CLRA was adjourned by the Canadian Court pending the Hong Kong Court’s determination of F’s application for the s.3(1)(d) Order. On 24 June 2019, with no opposition from M, the Court granted the s.3(1)(d) Order to F. The Court then directed that M’s application to stay the Hong Kong proceedings on the ground that Hong Kong was forum non conveniens (Stay Application) and F’s application for Return Order be fixed for substantive argument.

Held, dismissing M’s Stay Application and granting F’s application for a Return Order, that:

Habitual residence

(1) C’s habitual residence was clearly and remained Hong Kong. This included the period prior to C’s removal from Hong Kong, and the subsequent period up to the date when the Hong Kong proceedings were issued. Nor was there sufficient evidence of C having now fully integrated or settled into her new living environment or that Toronto had now become her home or habitual residence (LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798 applied; Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80, Re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2014] AC 1017, Re R (Children) [2015] 2 WLR 1583, ME v CYM [2017] 4 HKLRD 739 considered). (See paras.31-35, 47, 56-58, 73-74.)

(2) M had taken C to Canada surreptitiously in that she knew full well that had F known he would have taken steps to restrain her from doing so including restraining C from going to Hawaii. A surreptitious removal could not change the habitual residence of a child (Lai v Ling [2017] 5 HKLRD 629 applied; Re B (A Child) [2016] AC 606 considered). (See paras.48-53.)

M’s Stay Application

(3) Whilst M’s Stay Application was issued under O.12 r.8 of the Rules of High Court (Cap.4A, Sub.Leg.), she failed to do so within time. Regardless of whether M sought to rely on the Court’s inherent jurisdiction, the procedure should be that as provided in O.12 r.8. However, given that M was only five days out of time and there was clearly no prejudice to F, the Court was prepared to extend time. M was not deemed to have submitted to the jurisdiction of the Hong Kong Court (Re Resource 1 (2000) 3 HKCFAR 187 applied.) (See paras.79, 81-82, 84, 89-91, 94-95.)
Forum non conveniens

(4) In deciding the forum non conveniens, the three stages of assessment set out in QMY v GSS fell to be considered (QMY v GSS (2017) 20 HKCFAR 303 applied; SPH v SA [2014] 3 HKLRD 497 considered). (See paras.96-99.)

Stage 1: Appropriate forum

(5) The commencement of F’s Hague Application in Canada should not be regarded as his “choice of forum” for any applications for custody or care of C. F did not submit to the jurisdiction of the Canadian Court over such issues. F’s Hague Application was by virtue of Canada being the Convention State where C had been taken to and retained unilaterally and hence the return proceedings had to be issued. Hong Kong was all along F’s first choice of forum . Further, the Hong Kong proceedings were not only for C’s return, but also for the s.3(1)(d) Order and the Custody/Care Order, in respect of which there was no duplicity of proceedings. F had sensibly applied for and was granted adjournment of the CLRA Application. With no applications by either party in Canada over the care and control of C, the Hong Kong proceedings were the first in time. This was also F’s position throughout. (See paras.114-115, 117-121.)

(6) In light of C’s habitual residence in Hong Kong, the lack of evidence that F was going to seek a transfer of C out of Hong Kong imminently or prior to the custody or care of C being resolved, and other matters relating to the parties’ finances in Hong Kong and their factual witnesses in a trial, M failed to establish that Hong Kong, as opposed to Toronto, was not the natural or appropriate forum for dealing with the custody or care or access of C and also C’s financial provision. M’s failure in the Stage 1 inquiry was fatal to her application. (See paras.126, 131-140.)

Stage 2: Legitimate personal and juridical disadvantage

(7) (Obiter ) If M’s submissions that F could not apply for a return of C under the CLRA were accepted, F would not be able to proceed with the CLRA Application and C would continue to stay in Toronto. With no applications issued in Canada over C’s custody or care and the time required for trial being uncertain, F would be deprived of a legitimate personal or juridical advantage if the Court stayed the Hong Kong proceedings and F had to proceed with the return proceedings in Canada. On the other hand, M would not on the basis of legal costs be deprived of any legitimate personal or juridical advantage if there were no stay. Legal costs would be high regardless of whether the litigation was to take place in Hong Kong or in Canada. (See paras.143-144, 151-155.)

Stage 3: Balancing exercise

(8) (Obiter ) The balance would tilt towards Hong Kong being the natural or appropriate forum . Declining M’s forum in Canada would not cause her any prejudice as she had every opportunity to present her case and her claims in Hong Kong. (See para.156.)

F’s application for Return Order

(9) Given that C had only been in Toronto for about three and half months and that her home was Hong Kong, bringing C back now and even were she to relocate in, for instance, a year’s time, would not cause her much disruption. Therefore, subject to certain interim practical arrangements, it was in C’s best interests to be returned to Hong Kong forthwith where all matters relating to her welfare including financial provision could be determined (Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 applied). (See paras.159, 164.)

(The above is taken from the headnote in HKLRD.)

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