LCHY v. CWF & OTHERS

LCHY v. CWF & OTHERS

The Court of First Instance is bound by the Court of Appeal in D and G: Article 13(b) must be approached in two stages — first determine whether allegations establish a grave risk that cannot be ignored, and if so then exercise the residual discretion considering demonstrable protective measures; D and G is not per...

Source-derived case information.

Citation
LCHY v. CWF & OTHERS
Parties
Plaintiff: LCHY; 1st Defendant: CWF; 2nd Defendant: KKSL; 3rd Defendant: CMN
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 December 2001
Case Number
HCMP5231/2001
Procedural Posture
Hague Convention (child Abduction) Return Application Under Cap 512 / Interim Ruling on Article 13(b) Defence and Directions for Further Evidence
Outcome
Interim ruling: Court finds D and G binding and not per incuriam; cannot dismiss defendants' concerns and will require further reports and evidence before deciding Article 13(b) defence; parties to be heard on directions for future conduct.
Legal Topics
Article 13(b) Hague Convention, Grave Risk, Protective Measures, Stare Decisis, Burden of Proof
Source Language
en
International Law Family Law Child Abduction Judicial Precedent Article 13(b) Hague Convention Grave Risk Protective Measures Stare Decisis +1 more

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Summary, issues, holding and outcome

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Parties

LCHY

Plaintiff

CWF

1st Defendant

KKSL

2nd Defendant

CMN

3rd Defendant

Procedural Posture

Hague Convention (child Abduction) Return Application Under Cap 512 / Interim Ruling on Article 13(b) Defence and Directions for Further Evidence

Legal Issues

  1. 1 Whether return of children should be refused under Article 13(b) of the Hague Convention
  2. 2 Whether Court of Appeal decision in D and G CACV 3646/2001 is per incuriam and binding
  3. 3 Whether the burden of proof was reversed by the Court of Appeal

Ratio Decidendi

The Court of First Instance is bound by the Court of Appeal in D and G: Article 13(b) must be approached in two stages — first determine whether allegations establish a grave risk that cannot be ignored, and if so then exercise the residual discretion considering demonstrable protective measures; D and G is not per incuriam and does not effect a reversal of the burden of proof.

Court Disposition

Interim ruling: Court finds D and G binding and not per incuriam; cannot dismiss defendants' concerns and will require further reports and evidence before deciding Article 13(b) defence; parties to be heard on directions for future conduct.

Orders

  • D and G CACV 3646/2001 declared binding and not per incuriam
  • Apply two-stage test under Article 13(b): (1) determine whether grave risk is established; (2) if established, exercise discretion considering protective measures