CASE

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Case Name

BMC v BGC [2020] HKCA 317

INCADAT reference

HC/E/1486

Court

Country

CHINA (HONG KONG, SAR)

Name

Court of Appeal


Level

Appellate Court

Judge(s)

Hon Kwan VP, Cheung JA and Yuen JA

States involved

Decision

Date

11 May 2020

Status

Final

Grounds

-

Order

Appeal dismissed, return refused

HC article(s) Considered

3

HC article(s) Relied Upon

3

Other provisions

-

Authorities | Cases referred to

-

Published in

-

SUMMARY

Summary available in EN

Facts

The parents were married in January 2017, the father was a national of the United States and the mother of Hong Kong. In June 2017 the father submitted an application for the mother to obtain a Green Card for residence in the United States. 

They had a child in September 2017, born in Hong Kong and with both US and Hong Kong nationality. In December 2017 the family travelled to the US for a 4-week Christmas vacation. 

In April 2019 the father was told that his Hong Kong work visa would expire in June 2019. On 30 June 2019 the family moved to the USA. The mother claims this was for a temporary period and that her and the child could move back to Hong Kong at any time. 

The family were in the USA for a total of 59 days before the mother returned to Hong Kong with the child to finalise her Green Card. She received her Green Card in September 2019 but did not inform the father and refused to return to the USA. 

The father made an application under the 1980 Hague Convention for the return of the child to the USA. The key issue was whether the child’s habitual residence was in the USA prior to her being unilaterally retained in Hong Kong. 

The court of first instance held that the child’s habitual residence remained in Hong Kong (INCADAT Case No. 1485). In light of this decision, the retention of the child in Hong Kong could not be considered wrongful.

The father appealed this decision. 

Ruling

The court considered the jurisprudence on habitual residence and upheld the finding of the first instance judge: that the child’s residence in the USA had not acquired the necessary degree of stability to become habitual.  On the established principles, there was no basis to interfere with the judge’s finding.