Author Archives: Caroline

Parental Child Abduction In Divorce

Hong Kong is home to many expatriates and in a divorce, the issue of where a child will reside and grow up after a divorce is a distinct area of discussion among parents.  Whilst the majority of parents do come to an agreeable conclusion as to a child’s future place of residence, there are those few highly litigious cases when removal of a child from the jurisdiction of Hong Kong can occur without the permission of one parent and without leave of the court.

When this occurs, it comes within the realm of parental child abduction and the courts take this very seriously as many countries are members of the Hague Convention; a multilateral treaty developed by the Hague Conference on Private International Law and which provides an expeditious method to return a child internationally abducted by a parent from one member country to another.  Hong Kong is a member of the Hague Convention and The Child Abduction and Custody Ordinance (Cap. 512)(CACO) was enacted on 5th September 1997 to give effect to the Convention in Hong Kong.  It is important to note that the People’s Republic of China itself is not a contracting state to the Convention, but yet Macau, another Special Administrative Region is.  Thus, at this time there is no mechanism in place between Hong Kong, Macau and Mainland China for the return of abducted children to China.

In Hong Kong, removal occurs when a child who was previously in the country of his/her habitual residence is taken away to another country.  Retention occurs where a child who has previously been for a limited period of time outside the country of its habitual residence, is not returned on the expiry of that limited period.

In the event that you are concerned that your ex-spouse may unilaterally remove a child from the jurisdiction of Hong Kong, there are steps you can take to prevent this from occurring:

First and foremost, speak with a family law solicitor to discuss the filing of an application to restrict the removal of the child from Hong Kong.  This application should be made within the main divorce suit and can be made on an ex parte basis, which is essentially an emergency hearing.  If you are successful in obtaining an order restricting the removal of a child, be sure to speak to your solicitor about ensuring this order is adhered to including providing a copy of the removal restriction order to Hong Kong’s Immigration Department who will then have notice of this removal restriction should your ex-spouse attempt to leave Hong Kong with your child.

If you believe that your ex is plotting to remove your child from Hong Kong, be prepared and take preventative measures such as notifying your child’s teachers, babysitters and other caretakers of a possible threat.  Record any and all threats made by your ex-spouse and keep updated photos of your child.  Gather all documents related to your child such as passports and birth records and make sure you have copies of all documents and that the originals are safely stored in a secured place, accessible only by you. It may also be worthwhile to keep the lines of communication open between you and your ex-spouse, as it may help reduce any potential flight risks that you may be concerned about.

If your ex-spouse has already left Hong Kong with your child without your permission and/or without the leave of the court, it is imperative that you take immediate steps including the following:

  1. Contact Police: Contact local authorities to report parental child abduction. This is especially important if you are concerned about the safety and well-being of your child and/or you’re concerned that your ex-spouse will be going into hiding with your child.
  2. Seek Legal Counsel: As this is a situation which requires immediate attention, get into contact with a solicitor who can assist you with the return of your child.  You will want a solicitor who is well-versed in Hague Convention related matters and one who has previously successfully obtained the return of a child from a foreign jurisdiction.  Once a child is taken out of Hong Kong, there are many hurdles a parent must go through and if you are not properly armed with an outstanding legal team, it will be that much more difficult.  If you are concerned about the whereabouts and well-being of your child, it is very important to keep your solicitor apprised of all communications with your ex-spouse and your child.
  3. Make An Application: Once you have reached out to your solicitor, he/she may suggest that you file an application for the return of your child, but may also suggest that you make a request directly to the Secretary for Justice by filling in the necessary paperwork from the Department of Justice.
  4. Do Your Own Research About The Hague Convention Treaty: Read up on The Hague Convention Treaty and become familiar with it so that you are knowledgeable about what situation you are dealing with.  Not all countries are part of the Hague convention so it is vitally important to initially determine whether the country holding your child is a party to the treaty.  Do your research and do not be afraid to ask your attorney tough questions about how the Hague Convention Treaty will affect your case and the likelihood of success of having your child return to Hong Kong.

It is important to note that a court will have discretion to refuse the return of a child to Hong Kong.  The courts will consider factors such as consent, acquiescence in a removal, grave risk for a child’s return both to physical or psychological harm and/or the court may even consider a child’s maturity and his/her views about a return.

If you are the parent who wishes to remove your child from the jurisdiction of Hong Kong, the route is of course is to go through the legal system which includes negotiating and resolving issues related to child custody and access in your divorce case through mediation or having it resolved by a court order.  It is understandable however that many parents find this to be a frustrating process as the courts in Hong Kong are dealing with backlog of cases resulting in delay before there is an adjudication of matters and even then, one parent may not be happy with the result. It goes without saying however, that at no point should a parent take matters into their own hands and resort to parental abduction of a child which can have detrimental effects especially on a child.

If you wish to remove your child from the jurisdiction of Hong Kong, speak to your solicitor about filing an application to remove your child permanently from the jurisdiction.  If you and your ex can agree, a consent summons can be filed with the court.  Remember, an ill-thought-out plan with little research and planning will not convince a judge that it is in a child’s best interest to be removed from the jurisdiction of Hong Kong.

Children’s Views In Divorce Proceedings

In litigated custody battles, clients frequently ask if their child can testify before the judge.  However tempting this is, there are many factors to consider before placing your child into the front lines of a bitter divorce battle.

In Hong Kong, family court judges are cautious and historically, children’s views are only accepted through a social welfare report and/or any expert evidence such as a child psychologist.  However, similar to what is being seen in the USA, Hong Kong courts are now recognizing the importance of a child’s view and it is being promoted.

Child Theft

In Hong Kong, as part of its obligations under Article 13 of the United Nations Convention on Rights of the Child, the court will acknowledge that where a child’s interests are affected, a child’s viewpoint can be taken into consideration if that child is capable of forming his/her own views whether it be in person or through a representative. In practice, a child’s viewpoint is taken in the form of the following:

  1. Judicial Interview: Under his/her own discretion, the judge may grant an interview and the mechanism for conducting an interview of a child. This interview is not for the purpose of gathering evidence (which is the responsibility of the social welfare report) but rather it is to enable a judge to listen to the views of a child.
  2. Appointment of Legal Representative for the child: This is similar to what has been seen in California cases where a minor’s counsel is appointed under California Family Code section 3151 which allows the appointment of an attorney to look after a child’s best interests.  Here in Hong Kong, the appointment of a legal representative for a child is pursuant to Rule 72 and 108 of the Matrimonial Causes Rules and the purpose is to reflect a child’s interests and not necessarily a child’s wishes.  A legal representative for a child is not an automatic right and an unlikely appointment if a child’s view is adequately reflected and evidenced in a report before the court.

Whether a judge will allow your child’s views to be heard or not is dependent on a number of factors including: whether a child is suffering from harm due to access disputes; cases which are exceptionally difficult and involve foreign elements such as immigration or removal; an older child is opposing a proposed course of action; where there may be parental alienation from one or both of the parents; cultural and/or religious differences affecting a child; complex medical/mental health issues that need to be determined; serious allegations of physical, and mental or sexual abuse or in circumstances where neither parent seem to be suitable guardians.

Divorce matters affecting Children

Before a consideration is made with respect to allowing your child to testify or express his/her views to a court, you may want to ponder upon the following:

  1. Is Your Child’s Testimony Necessary? Ask yourself tough questions including why you want your child to testify.  What is the real reason?  Can your child truly assist the judge to  understand the circumstances in your home and how the custody arrangement is affecting your child? Generally speaking, there should be a strong reason behind having your child testify against the other parent rather than simply you wanting more custody time and/or harboring resentment/revenge against your ex-spouse.
  2. What Are The Long-Term Effects On Your Child? Consider the long-term effects testifying will have on your child.  A divorce is already a traumatizing experience for most children.  It is even worse if the parents are engaged in a bitter and litigated custody battle.  Consider factors such as whether it will be difficult for your child to testify because it will make him/her feel guilty for picking sides.  You need to consider the psychological effects this will have on your child and how it will affect his/her relationship with your ex-spouse.

Child's feelings in divorce

Remember that it is in your child’s best interests to have a healthy and communicative relationship with your ex-spouse, who is, after all, your child’s other parent.  Allowing your child to testify will undoubtedly affect the relationship dynamic between you and your ex-spouse and your child.  Also, try and determine why your child is expressing an interest in testifying.

In making any decision relating to your child, be sure to focus on what is in your child’s best interests and the right decision will follow.

Spotlight Profile: Madeleine Booth, Barrister at Bernacchi Chambers

In this Spotlight Profile, we are talking to Madeleine Booth, Barrister at Bernacchi Chambers in Hong Kong.  Madeleine was recently named as one of the leading family and divorce law barristers in Hong Kong for 2021 by Doyles Guide.

Over the next year, we will touch base with Madeleine to discuss various hot topics in the area of matrimonial law and delve deeper into each subject and gain insight from her, as a barrister with expertise in the family law arena.

Madeleine, we spoke to you in September 2019 (pre-Covid) and you gave us a great rundown and overview of your work as a barrister in Hong Kong, pointing out the differences between a barrister and solicitor and the work that you do.  Can you tell us how you have been since pre-Covid days and whether you have seen any changes in the matrimonial sector since the Covid-19 pandemic? 

Since the last occasion, there’s certainly been a shift in the matrimonial sector as a consequence of the pandemic. To give just two key examples, there’s firstly been an unforeseeable, dramatic impact to various industries, which has had a knock-on effect on people’s income and perhaps even resulted in one or both spouses losing their job. Due to this, there’s been a marked increase in applications for variation of maintenance (monthly sums payable from one spouse to another, and/or for the benefit of the children of the family), as payments are no longer affordable or sustainable, either because of the loss of a job or a dramatic cut to an individual’s income.

Secondly, the situation caused by the pandemic has generally been a stressful, demanding time for families; both parents and children alike in many respects, and for a drawn out, extended period of time. Tensions and frustrations, exacerbated by limitations on travel and economic pressures, have led to fractures in marriages and co-parenting difficulties that have reportedly led to an increase in applications to the Family Court, whether it be for divorce, custody applications, relocation applications, or other relief. Unfortunately, the rise in cases coupled with the Family Court’s reduced operations for several months due to Covid-19 has resulted in an increase in delays for hearings. However, the judiciary is now working harder than ever to help clear the “backlog” caused.

What types of matrimonial disputes are you seeing more of with the changing social and economic climate in Hong Kong with the Covid-19 pandemic?  Do you anticipate any changes post-Covid?

As I alluded to earlier, there’s been an increase in variation of maintenance and interim maintenance applications, meaning requests by one spouse to (generally) reduce the amount of periodic payments made by them to the other spouse and/or paid for the benefit of the children of the family. This is usually due to a change in the applicant spouse’s earnings or sudden loss of work. Hand in hand with this is the rise in enforcement procedures as, when one party can no longer afford to pay, they begin defaulting on payments as they fall due. As a result, the other spouse may take out an application to enforce these arrears of payments, whether it be by an Order 45 Rule 6 application, judgment summons procedure, or seeking a prohibition order (which prevents a party from leaving Hong Kong until the sum owed is paid).

I would also say that there’s been a rise in relocation applications, where one spouse wishes to leave Hong Kong and relocate to another jurisdiction with the children of the family. Again, these cases are on the rise because of the global shift in socio-economic environments caused by the pandemic. A party may need to relocate because of the loss of work opportunities in Hong Kong and the better prospects of work in another country. If a party loses their job, Hong Kong may no longer be affordable and they may need to relocate back to their country of origin to seek familial support, or where costs of living are lower, or for education opportunities/better quality of life for their children.

It’s been predicted that Covid-19 is here to stay for the foreseeable future. It is uncertain at present what changes will occur once the pandemic is brought under control, but hopefully greater stability for families in Hong Kong.

We want to continue our discussions with you on several hot topics in the area of matrimonial law, which we will do over the course of this upcoming year.  To begin our series discussing hot topics in matrimonial law, let’s first tackle an area of great interest for those living in Hong Kong: marital agreements.

In Hong Kong, marital agreements are taken into consideration by the courts, but it’s not a guarantee that it will be followed.  Do you see that changing going forward, especially as other jurisdictions rely heavily on these types of agreements?

There have been no developments that would suggest that the interpretation of marital agreements in Hong Kong will change in the foreseeable future. Hong Kong often looks to other commonwealth jurisdictions, predominantly the United Kingdom, when considering evolutions in the law. The shift in Hong Kong’s approach to marital agreements followed the 2010 landmark decision of Radmacher v Granatino [2010] UKSC 42, in the UK (adopted in Hong Kong in the Court of Final Appeal decision SPH v SA (2014) 17 HKCFAR 364).

Currently, the approach to marital agreements in Hong Kong is that, whilst the Court is not obliged to give effect to nuptial agreements, they should give weight to them in circumstances where it is fair to do so. What will be considered “fair” depends on the facts of the particular case. In appropriate cases, the Court will hold the parties to their agreement and will not impose terms that it would otherwise have ordered were it not for the agreement. This is consonant with the current approach of the Courts in England.

Do Hong Kong courts take into consideration cross-jurisdiction agreements?  For example, what happens if an individual who is married overseas, moves to Hong Kong and subsequently gets divorced in Hong Kong and a marital agreement prepared and signed overseas is at the center of the dispute?

The same considerations would apply to a nuptial agreement whichever jurisdiction it is made in. The Hong Kong Family Court will consider whether it is fair to give the agreement weight in accordance with the principles set out in Radmacher, including but not limited to (1) whether the parties to the agreement were properly advised; (2) whether there was full financial disclosure prior to the signing of the agreement; (3) whether there was any duress exerted on one of the parties to sign the agreement; and (4) whether any unforeseen circumstances have arisen since the agreement that would render it unjust to hold the parties to it.

Have you ever had to argue before the Courts in Hong Kong regarding a marital agreement dispute?  In order to avoid future disputes with respect to marital agreements, what tips or advice can you give to those entering into these types of marital agreements? 

Yes, I have been involved in cases regarding marital agreement disputes. A nuptial agreement is generally more likely to be accorded weight if it can be shown to be both substantively and procedurally fair. Three foundational suggestions in respect of pre-nuptial agreements would be as follows:

  • Discuss the terms of the nuptial agreement well in advance of the marriage date (at least 28 days if not longer), which will assist in demonstrating that there was no duress or pressure on either party to sign the agreement in a hurry before the wedding date.
  • Both parties should receive independent legal advice (the parties cannot share one lawyer to advise them) on the agreement and should enter into it with full understanding and appreciation of its terms.
  • There should be sufficient disclosure to illustrate that the agreement was an informed decision.

It is very important to seek legal advice for a nuptial agreement from a qualified solicitor to ensure that its terms are substantively fair to both parties.

Thank you so much Madeleine for all your insight into this important topic.  We look forward to speaking to you again to discuss other key topics of interest!

About Madeleine: 

Madeleine’s practice encompasses both civil and criminal law, with a particular specialization in matrimonial work. Madeleine was recently named as one of the leading family and divorce law barristers in Hong Kong for 2021 by Doyles Guide.

In the Family Court, Madeleine has experience in contested financial and child related matters, and family related company and trust cases.

Having represented clients at Financial Dispute Resolution hearings, Children’s Dispute Resolution hearings, as well as at trial for preliminary issues (third party interests/property/companies), financial issues (MPS applications, ancillary relief trials) and child related matters (such as custody disputes, and applications under the Guardianship of Minors Ordinance), Madeleine’s experience is broad.

Madeleine is often called upon to make applications under s.17 of the MPPO, setting aside dispositions or applying for injunctions, on an urgent basis.

Madeleine also has experience in a number of other areas of legal practice, including civil litigation and criminal law. She has assisted senior counsel, and acted as sole legal counsel, in multiple hearings and trials at each level of court in Hong Kong, from its magistracies to the Court of Final Appeal. Madeleine appears in the High Court of Hong Kong regularly with respect to civil litigation matters, including trust related cases, injunctions, torts of harassment, intimidation, and unlawful means conspiracy, as well as summary judgment applications.

Madeleine’s experience extends beyond advocacy to include providing written opinions and legal advice, as well as assisting in mediations and arbitrations.

Misconduct In Divorce

In what will be considered one of the most stressful times in an individual’s life, it is no surprise that many people behave badly during a divorce. It is a stressful life event, that many reckon to be on par with the death of a family member.  With that being said, it is important that if you are going through a divorce, your conduct throughout the proceedings is important and it could have an impact on your divorce.  To behave poorly is a reflection not only on your character but also affects the actual outcome of your divorce.

In a divorce, your conduct in the course of proceedings can be taken into account by the judge, although generally speaking misconduct during the proceedings is more properly dealt with in an adverse application for costs against you.

What are some examples of “bad behaviour” and misconduct in a divorce? Wanton dissipation/reckless dissipation of assets is one form of misconduct.  In KMD v PIB [2011] HKFLR 351, the husband was excessively spending on his lifestyle as well as his hobby of flying helicopters and this was taken into account by the court, resulting in HK$1.2 million being “added back” from his 50% shares into the matrimonial pot for division.  In MKKWH v RKSH [2013] HKFLR 540, the husband maintained three (3) other families over a period of years and post-separation the wife sought to add back an equivalent sum of monies that her husband had spent on his other families.  In this case, the Court of Appeal refused the wife’s application to add back these funds on the basis that the funds had been received post-separation. In A v B [2017] 1 HKLRD 187, the court held that payments to a girlfriend of HK$1.2 million was “wanton” and “reckless” and “extravagant” in view of the marital assets and the standard of living, and the court therefore added back into the matrimonial pot, the non-marital spending.

Material non-disclosure is another form of misconduct in litigation such as monies being hidden.  In SANK v PGN [2011] HKFLR 390, the court considered whether a husband’s non-disclosure and refusal to mediate should result in a costs award to the wife.  The court concluded that “[t]here are many reasons which may affect the court in considering costs, such as culpability in the conduct of the litigation; for instance material non-disclosure of documents.”  Parties to a divorce have a duty of full and frank disclosure and by failing to disclose, the courts will take this misconduct into consideration.

Another form of misconduct is a refusal to attempt to settle. In LWF v LMF [2015] HKFC 146, the wife’s failure to respond and attempt to negotiate was a relevant factor for the husband being awarded costs.  The same misconduct label is also attached to litigants who refuse to provide evidence and/or participate in proceedings such as filing necessary paperwork and/or attending court hearings.  By refusing to participate, the court will have no choice but to see the case as one-sided and only make decisions based on the actual evidence in front of the court.

The courts in Hong Kong have a duty to have regard to the conduct of the parties to a marriage.  Negative marital conduct can be detailed in sworn affidavits filed with the court and will be considered by the court as a material factor in allowing the court to depart from equality (See LKW v DD). However, it is to be noted that if there is a departure from equality, the courts will look for “obvious and gross” misconduct for it to be taken into account.

How To Prepare For Family Court In Hong Kong

After filing for a Divorce in Hong Kong, you will be required to attend the Family Court once the court sets down a hearing, whether it be for a First Appointment (a hearing where the court will be given an update on your case and where a judge give directions to move your case forward) or a more substantive hearing with respect to an application filed by yourself or your ex.

With that in mind, many people ask what they should expect and how to prepare for a Family Court hearing.  Here are some tips ahead of your court hearing:

  • Where Is The Family Court Located? The Family Court is located in the Wanchai Law Courts at Wanchai Tower, 12 Harbour Road.  Prior to attending the court, make sure you know the exact courtroom that you are required to attend and ensure you provide for sufficient time so that you are not late for your hearing.  There is a sitting area available at the courthouse whilst you wait for your hearing to begin.  However, if you need to have discussions with your solicitor prior to the hearing, plan ahead and go early so you can reserve a conference room pending the commencement of your hearing.  The waiting time before your hearing begins could be long so be sure that you have sufficient childcare and/or have informed your employer that you will be away for at least a few hours for your hearing.

  • What Should You Wear? This is a frequently asked question and should not be ignored.  When you attend a hearing, you will be in front of a District Court judge and it is imperative that you appear presentable.  Whilst you are not required to wear a suit and/or tie, it is recommended that you are dressed in smart and respectful attire.

  • How Should You Prepare? If you are represented by a solicitor, it will be best for you to have a discussion with your solicitor prior to the hearing.  Your solicitor can provide you with a rundown as to what to expect and how the hearing will proceed.  Generally speaking, you will not be required to speak directly to the judge if you are represented by a solicitor.  However, there may be occasions when a judge will ask you a question directly in court so you should be ready to speak if necessary.  If you are attending the court for a more substantive hearing and/or trial and are required to provide testimony, be sure to spend a few hours with your solicitor in advance so that you can be prepared to give oral testimony which your solicitor can assist you with.  If there is something you wish the judge to know about your case, speak to your solicitor and ensure that he/she understands what points you want addressed at the hearing (because your solicitor and/or barrister will be the one to present your case to the judge and they will speak on your behalf).  If you are representing yourself, be sure to prepare by jotting down on paper, the key points you wish to get across to the court so that when you do present yourself before the judge, your points are clear and concise.  Focus on getting the facts across to the judge rather than using it as an opportunity to complain to the judge about your ex.

Finally, try not to be nervous.  This is an opportunity for you to be heard at the hearing and if you are represented, trusted that you are in good hands, with a solicitor who is advocating on your behalf.