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The parents married in 2008 and had three children. The children were born and raised in Hong Kong but are Canadian citizens like their mother. 

The parents separated in June 2019 and the mother left for Canada with the children without the father’s knowledge or consent.

In March 2020 the mother commenced divorce proceedings in Hong Kong. On 1 June 2020 the Hong Kong District Court made an order by consent granting interim access to the father each day via WhatsApp. On 16 June 2020 the father applied for the return of the children under the 1980 Hague Convention. 

The mother argued the 1980 Convention should not be invoked as she had already submitted to the jurisdiction of the Hong Kong courts by asking for a determination on the custody of the children and their relocation. The final hearing before the Hong Kong District Court was scheduled for December 2020 and so she argued that the court had essentially sanctioned the children’s retention in Canada. 

She also argued that the father acquiesced to the retention in Canada, that the children did not want to return to Hong Kong and that the long flight would put them at significant risk of contracting COVID-19. 

The court found that the father acquiesced in the children remaining in Canada, and refused to order the return of the children under the the Article 13(a) exception.

Acquiescence - Art. 13(1)(a)

The Court found that the father acquiesced to the retention of the children in Canada based on his actions and inactions, including not taking concrete steps to pursue the children’s return even after he got a message that the children had left Hong Kong, making very little effort to contact the children, the mother or their Canadian family, taking several holidays while the children were in Canada, and filing the application for their return three days short of one year from the date of their removal from Hong Kong.

Procedural Matters

Furthermore, the Court refused to order the return of the children as the questions of custody and relocation were already before the Hong Kong District Court, with a final hearing planned for December 2020. To order a return now would be highly disruptive in the event that the mother’s application was granted in Hong Kong, there was perhaps a risk of contracting COVID-19 in the long international flight and the Hong Kong court had implicitly accepted the children’s presence in Canada. 

Author: Soojin Cho and Victoria Stephens