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The parents met in 2017 and married in January 2018. They had a daughter, born in the summer of 2018, aged 4 at the time of the hearing. The father and child were citizens of Hong Kong. The mother was a British citizen, born in Hong Kong and of Pakistani origin. 

In November 2019, the father suspected the mother of having an affair and his contact with the child stopped. The father filed a divorce petition in Hong Kong in 2020 and sought joint custody. Those proceedings had not concluded and the parents remained married at the time of the hearing.

In September 2020 the Family Court in Hong Kong made an order for the father to have contact with the child once every two weeks. The mother did not take the child to the arranged sessions and no contact took place. A further order for contact was made in November 2020. Before that contact could take place the father was informed by the mother’s solicitor that she had travelled with the child and her new partner to the United Kingdom but with plans to return to Hong Kong.

On 31 December 2020, the mother gave birth in the United Kingdom to a daughter by her new partner. The mother wrote to the Family Court in Hong Kong in March 2021, stating that her reason for not returning to Hong Kong was the high risk of contracting Covid-19 and costs involved in travel during the pandemic.

In June 2021, the father filed an application under the 1980 Hague Abduction Convention for the return of the child to Hong Kong. 

The mother argued that Article 13(1)(b) applied and that returning the child to Hong Kong would expose her to physical or psychological harm or would otherwise place her in an intolerable situation.

Return ordered. The mother would be able to access mental health support in Hong Kong, there was no evidence of abusive conduct on the part of the father, and the harm caused to the child by separation from younger siblings and the maternal family would be short term. This did not amount to a grave risk of harm within the meaning of Article 13(1)(b).

Grave Risk - Art. 13(1)(b)

The mother suffered from depression. She opposed a return order on the basis that her depression may render her incapable of caring for the child in Hong Kong, thereby exposing the child to grave risk and/or an intolerable situation. The Judge considered that, whilst it was important not to underestimate the mental health problems which the mother had experienced, she would be able to access appropriate treatment for little or no charge in Hong Kong in the event that her depression worsened.

Regarding the behaviour of the father, there was no evidence of any consistent pattern of behaviour or single incident of abusive conduct.

The mother also argued that the child would suffer psychological damage if she was separated from her two younger half-siblings and her grandparents. The Judge acknowledge the distress which would be caused but considered that it was important to address what is likely to happen in a ‘real world’ scenario. There may be some brief separation of the mother and the child from the other family members whilst the mother complies with any return order and finds a new home in Hong Kong but the mother and her partner would endeavour to make any separation as brief as possible and it is likely that the family would be living together within the short term. Furthermore, the effects on the child or the mother of separation from the grandparents were also likely to be short term and did not amount to a risk of harm within the meaning of Article 13(1)(b).

The judgment referred to the Guide to Good Practice on Article 13(1)(b) of the 1980 Convention. 

Undertakings

The father proposed a package of protective measures. The mother did not believe that the father would abide by any undertakings and the Judge noted that the father was in arrears of child maintenance ordered by the court in Hong Kong.

The Judge fully acknowledged that it was problematic to place reliance on undertakings which the court would have no power directly to enforce and which, indeed, had not yet been given to a court in another jurisdiction. However, in the particular circumstances of the case, the Judge was satisfied that undertakings may be trusted for the purposes of considering the efficacy of the protective measures. First, the father’s own position as a police officer may be at risk should he breach any undertaking he gave to a court. Secondly, the mother put little emphasis on the unreliability of the father and instead focused on the financial package offered by the father being inadequate.