Court orders return of 8-year-old child to Mother placing no weight on a secret video recording of child’s wishes by the Father

Family Law

In NI v TCHK [2023] HKFC 184, the Family Court ordered the return of an 8-year-old boy to his Mother in Shenzhen, following his Father’s refusal to return the child after their holiday and kept the child in Hong Kong with him. The Mother was granted interim custody, care and control of the child. The Father was also ordered to surrender the child’s travel documents forthwith.

The Court found that the Father was not forthcoming in his communications with the Mother on matters concerning the child. It was discovered that whilst the Father was promising to return the child to the Mother, he had, behind the Mother’s back, secretly engaged lawyers, made school applications in Hong Kong, and subsequently caused his lawyers to write a letter to the Mother essentially saying that he would not return the child to the Mother.

The main plank of the Father’s submission was the wishes of the child, which was said to be captured in a secret tape recording taken by the Father. After hearing the parties’ submissions, the Court decided to place no weight on the tape recording as there was no evidence on the circumstances under which the video was taken and considered it was dangerous for her to take the video on its face. The Court further cautioned itself that the child was only 8 years old and his maturity and understanding of the situation were in issue.

After considering the parties’ submissions, the Family Court held that the best interests of the Child lie in favour of the child’s return pending determination of the child’s long-term care arrangements. The Court emphasized that it was not making a decision to punish any of the parents but was considering the matter in the best interests of the child.

The Court’s judgment can be viewed here.

Vivien Leung appeared for the Mother as sole advocate in the ex-parte hearing and as co-counsel with Giles Surman at the inter partes hearing. They were instructed by Foo & Li.

 

Vivien Leung

“Vivien has a strong presence in court and does not shy away from a battle. She has never been intimidated by an opponent or witness and she is meticulous, having covered the key points in cross-examinations and re-examinations.”
Legal 500 Asia-Pacific 2024, Family and Private Client — Rising Stars

Vivien is a recommended barrister in the Doyle’s Guide for Leading Family & Divorce Law Barristers – Hong Kong, 2023.

Vivien advises on all aspects of matrimonial finance and children’s matters and has particular experience in handling divorce cases with a cross-border or international element.

Find out more from Vivien’s profile.

This article was first published on 26 January 2024.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.