BMC v BGC formerly known as WCY  HKCA 31715Sep2020
In an interesting decision handed down recently, the Court of Appeal dismissed a father’s appeal brought against a first instance judgment dismissing his application for the return of his child to the USA from Hong Kong. The application for return was brought under the Child Abduction and Custody Ordinance (Cap. 512) and the Hague Convention on the Civil Aspects of International Child Abduction 1980.
The Court of First Instance (CFI) handed down its judgment on the application of a father (F) for the return of his child (B) to the USA on 17 January 2020 (the CFI Judgment). The primary finding of the Judgment was that B’s habitual residence was always Hong Kong.
F, a US citizen and B’s mother (M), an HKSAR passport holder had B in Hong Kong in September 2017. F wanted to relocate to the USA with M and B shortly after B’s birth, but M wished to remain in Hong Kong where she had a strong support network. Nevertheless, M allowed F to make an application for a Green Card for her to obtain permanent residence in the USA.
Significantly, F signed a note which confirmed his agreement that, among other things, M could relocate with B to Hong Kong whenever she wanted. F claimed this was a note signed under duress, but it was M’s case that F had confirmed this to her verbally and she asked him to put it in writing as she feared he would go back on his word. The CFI found that regardless of F’s claim of duress, the note spoke to M’s state of mind at the time she went to the USA with B and it must have been clear from this to F that she had no intention for her and B to permanently relocate to the USA.
F applied for the return of B on 12 December 2019.
M and B were in the USA for a total of 59 days from 30 June 2019 to 27 August 2019. M returned to Hong Kong to finalise her Green Card which was issued on 27 September 2019. M did not inform F of this and refused to travel back to the USA after he found out.
The CFI Judgment acknowledged that the habitual residence of a child can change very quickly, but that was not the case in this situation. The CFI Judgment followed the cases of JEK v LCYP  4 HKLRD 798 and ME v CYM  4 HKLRD 739 in that the primary consideration in determining a child’s habitual residence is the quality of their social and family environment. It was found that there was not sufficient evidence that the child had integrated into social and family life in the USA for her habitual residence to have changed.
F served his Notice of Appeal on M on 13 February 2020 and filed it with the Court on 9 March 2020. F sought an expedited hearing of the appeal which was eventually granted after various procedural missteps were rectified by F’s legal team. The proper procedure is helpfully outlined by the Court of Appeal in paragraphs 3 to 6 of its judgment.
F’s appeal challenged the finding in the CFI Judgment that B’s place of habitual residence had not changed from Hong Kong to the USA. F did not dispute that B’s habitual residence was Hong Kong prior to 30 June 2019. The question for the Court of Appeal was whether a sufficient degree of stability and integration in the USA had occurred to cause a shift in habitual residence from Hong Kong to the USA. F argued that the CFI Judgment placed too much weight on M’s integration into social and family life in the USA and not his, claiming that M was not B’s primary caregiver but that he was.
Dealing with conflicting evidence in the absence of oral evidence
M and F’s evidence conflicted on whether M ever agreed to move to the USA with B. The CFI Judgment referred to contemporaneous messages exchanged between M and F in which M said on multiple occasions that she would visit F in the USA with B but they would not be moving there. In the absence of oral evidence, the Court of Appeal approached this is in following with Re F (A Minor) (Child Abduction)  1 FLR 548, starting with an assessment of whether the issue in question is germane to the decision. Where the issue is important, the Court can draw upon “independent extraneous evidence in support of one side”, which included in this instance the messages exchanged between M and F.
Court’s approach to lower courts findings
This decision demonstrated the Court of Appeal is reticent to disturb a lower court’s decision reached following the exercise of discretion or on a finding of primary fact unless the finding is plainly wrong (e.g. having taken into account irrelevant matters or failing to take into account relevant matters). The burden is, of course, on the appellant to prove this. The question of habitual residence is a matter of fact that requires the weighing of different factors against each other and is a matter of decree upon which judges can reasonably differ. The Court of Appeal found no reason to disturb the CFI’s finding in respect of habitual residence and F’s appeal was dismissed.
Despite these being well-established notions, the Court of Appeal made the usual no order as to costs in cases concerning children in dismissing F’s appeal.
Remote hearing of appeal
This case was heard during the Judiciary’s General Adjournment Period and the case was conducted via the Court’s video conferencing facilities. Interestingly, as F was unable to access the required video conferencing facilities, he was allowed to view a live broadcast of the hearing via Skype or similar set up with his solicitors on the undertaking that neither he nor his solicitors would make a recording of the hearing.
England and Wales approach to Habitual Residence
The Hong Kong Courts’ judgments in BMC at both levels echo the approach to habitual residence the Court of Appeal of England and Wales recently affirmed in Re M (Children) (Habitual Residence: 1980 Hague Child Abduction Convention)  EWCA Civ 1105. The Court concluded there that in determining a child’s place of habitual residence the Court must first determine whether the child has sufficiently integrated into their social and family environment in their new country of residence to cause them to lose their habitual residence in the other country.
This test is based on Lord Wilson’s see-saw analogy in Re B (A Child) (Habitual Residence: Inherent Jurisdiction)  UKSC 4, used to demonstrate that once a child is determined to have habitual residence in a new country, they will have almost certainly lost their status of habitual residence in the country they left behind. A child is neither likely to have two places of habitual residence (although it is possible) nor to be left in a state of limbo having lost one before gaining another. Although the Hong Kong courts have not specifically referenced Lord Wilson’s see-saw analogy, Re B has been cited in numerous cases concerning the habitual residence of children.
A child’s habitual residence can change rapidly following a move from one jurisdiction to another. Determining whether a child’s habitual residence has changed involves the evaluation of a number of factors speaking to the child’s integration into social and family life in the new jurisdiction. Particularly with younger children the Court can and will consider this in light of the child’s caregivers’ integration (or not) and whether this has substantially shifted from the previous place of residence to the next.
This decision underlines the importance of obtaining immediate and specialist family law advice in anticipation of or following the relocation of a child to (or retention in) another jurisdiction.
Joanne Brown and Elizabeth Seymour-Jones
If you require advice on child abduction and custody, please contact Partner Joanne Brown.
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.