CHINA (HONG KONG, SAR)
Court of Appeal
Hon Kwan VP, Cheung JA and Yuen JA
11 May 2020
Appeal dismissed, return refused
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.
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.