International custody issues - Determining a child’s “habitual residence”

There are many parents from different jurisdictions residing in Hong Kong by reason of their job requirements or as dependants, set up families and raise their children in Hong Kong. When such parents divorce or separate, they often need to deal with custody issue, especially when one parent is desirous of leaving Hong Kong permanently together with the children.

For parents who feel mentally or financially unable to remain in Hong Kong in such circumstances, they should not just bolt for the airplane door with the children and run “back home”, or else they will fall foul of the Hague Convention on the Civil Aspects of International Child Abduction (Convention), and Child Abduction and Custody Ordinance (Chapter 512, Laws of HKSAR).

On the other hand, parents seeking their child’s return to Hong Kong, they should act promptly before the child’s habitual residence has changed.

In the recent case of LCH v JMC (HCMP678/2019 [2019] HKCFI 1894), CJH, a 3 year old girl, was made a ward of the Hong Kong Court. Her parents were not married. CJH was removed by her mother from Hong Kong and taken to Toronto (the mother’s childhood home) without her father’s consent. Initially, the father permitted the mother to take CJH to Hawaii, but the mother went to Toronto instead of returning with CJH to Hong Kong. Almost immediately after becoming aware of the mother’s change of plan, the father, a pilot, flew to Toronto and instituted court proceedings there under the Convention and then instituted proceedings in Hong Kong, seeking CJH’s return to Hong Kong.

In Hong Kong, the Court had to deal with the father’s application for the Return Order (Return Application) and the mother’s application for a stay of the Hong Kong proceedings on the ground of Hong Kong being forum non conveniens i.e. not being the appropriate forum for resolution of the matter (Stay Application). Since CJH’s habitual residence would have an impact on the Court’s determination of her parents’ respective applications, the Court dealt with that issue first. In her judgment, Hon Bebe Chu J accepted that surreptitious removal cannot change the habitual residence of a child.

The Court referred to the legal principles applicable to determine habitual residence set out in LCYP v JEK (Children: Habitual Residence) [2015] 4 HKLRD 798, namely that habitual residence is a question of fact. The Court had to consider whether CJH had achieved the requisite degree of disengagement from her Hong Kong environment or had acquired the necessary degree of stability or requisite degree of integration into the environment of Toronto.

The Court found that before her removal, CJH had spent a lot of time with her father, including overnight access. The mother still owned properties, including CJH’s home, in Hong Kong. Compared with her bedroom in Toronto, the Court considered CJH’s bedroom in Hong Kong to be much more like a child’s room. CHJ had started to go to a child care centre and gymnastic classes in Toronto, but had not yet started other planned extra-curricular activities there. The Court took the view that the 3.5 months, during which the parties had been embroiled in litigation in the two jurisdictions and uncertainty as to whether the mother and CJH would have to return to Hong Kong, would not have a settling effect on the mother or CJH. In conclusion, the Court found insufficient evidence of CJH having fully integrated or settled into her new living environment or that Toronto had now become her habitual residence. Hence, Hong Kong remained CJH’s “home country” (a term used by Baroness Hale in In re J (a child) (custody rights: jurisdiction) [2005] UKHL 40).

In today’s world, a child’s habitual residence can change quite quickly. If a parent really considers that it is in the best interests of the child to remain in his/her “home country”, such parent needs to take immediate and sensible steps in response to any non-consensual removal of the child. The story of CJH could have been different if her father had not flown to Toronto within days and reacted to her removal immediately.

The Stay Application and Return Application in CJH’s case will be discussed in our next article on forum disputes in family proceedings.