YYW v. HWW

YYW v. HWW

Court found Father had rights of custody under Korean law and the Children were habitually resident in Korea at removal, making the removal wrongful, but on the balance of evidence the Father by prolonged silence, failure to pursue immediate remedies and conduct would have led the Mother to believe he acquiesced in...

Source-derived case information.

Citation
YYW v. HWW
Parties
Plaintiff (father): YYW; Defendant (mother): HWW; Observer / Central Authority Initially: Secretary of Justice (HKSoJ)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 May 2017
Case Number
HCMP409/2017
Procedural Posture
Child Abduction Return Application Under Hague Convention (cap 512) / Contested Return Application — Judgment After Chamber Hearings (order Nisi)
Outcome
Return of the two children refused; application under the Hague Convention dismissed; order nisi to be made final after 21 days
Legal Topics
Habitual Residence, Rights of Custody, Acquiescence, Article 13(1)(b) Grave Risk, Child Objection (article 13(2)), Protective Measures, Costs
Source Language
en
Family Law Private International Law Child Abduction Administrative Law Habitual Residence Rights of Custody Acquiescence Article 13(1)(b) Grave Risk +3 more

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Parties

YYW

Plaintiff (father)

HWW

Defendant (mother)

Secretary of Justice (HKSoJ)

Observer / Central Authority Initially

Procedural Posture

Child Abduction Return Application Under Hague Convention (cap 512) / Contested Return Application — Judgment After Chamber Hearings (order Nisi)

Legal Issues

  1. 1 Whether removal from Korea to Hong Kong was wrongful under Article 3
  2. 2 Whether Father held and exercised rights of custody
  3. 3 Whether the Children were habitually resident in Korea immediately before removal

Ratio Decidendi

Court found Father had rights of custody under Korean law and the Children were habitually resident in Korea at removal, making the removal wrongful, but on the balance of evidence the Father by prolonged silence, failure to pursue immediate remedies and conduct would have led the Mother to believe he acquiesced in the Children remaining in Hong Kong; additionally the SWO found the Children, particularly the son, objected to return and the grave risk asserted by the Mother was not proven to the requisite degree and could be addressed by protective measures; exercising the court's discretion the return was refused and the application dismissed (order nisi to be made final after 21 days).

Court Disposition

Return of the two children refused; application under the Hague Convention dismissed; order nisi to be made final after 21 days

Orders

  • Decline to order return of the two children to the Republic of Korea
  • Order nisi to be made final after 21 days