Children Custody in Relocation Cases

Children Custody in Relocation Cases

Children Custody in Relocation Cases 1050 700 Alfred Ip

It is not uncommon for people to relocate to Hong Kong for employment reasons as it is one of the biggest international business centres in the world and home to a large expat community.  Moreover, many locally born and bred individuals often opt to take job assignments abroad or to relocate for personal reasons.

What happens when following a relationship breakdown or a divorce one of the parents wishes to move back to his/her country of origin or move to a third country?

As previously highlighted in our article “Family Focus Week: Custody of Children”, it is necessary to make an application to Court and obtain an order to permanently remove a child from Hong Kong. We need to bear in mind that the judge will take into the highest level of consideration the welfare and best interest of the child. The lack of such procedure could result into wrongful removal of the child and considered as child abduction: it could in fact be in breach of custody rights granted, unless permitted by the Hong Kong Court.

 

Specific cases impacting children relocation decisions

The most important and impacting case remains “Payne v Payne (2001) EWCA Civ 166” where the Court of Appeal in the UK dismissed the father’s appeal of the mother wishing to move to New Zealand and bring her child along. The crucial considerations made by the Court in this case were the best interest and welfare of the child as the mother was the primary caretaker and the relocation refusal could have also detrimentally impacted the well-being of the child.

Other cases that have influenced future decisions on this issue are “MK v CK (2011) EWCA Civ 793” and “F (A Child) (International Relocation Cases) (2015) EWCA Civ 882” where it emerged that – even if Payne case highlights different factors which are paramount when considering relocation cases – there is no presumption that relocation plans of the applicant would always translate into the best interest of the child and that a “welfare checklist” must be observed by the Court.

In Hong Kong the more recent case of “ZJ v XWN (2018) 3 HKLRD 644” before the Court of Appeal has reiterated that comments based on Payne case should be considered. Since in Hong Kong statute there’s no “welfare checklist” set out, the Court can refer to it when applying the welfare principle under Section 3(1) of the Guardianship of Minors Ordinance (Cap. 13), where the best interests of the child ought to be of the outmost consideration when ruling on relocation cases. As stated by the Court, the guidance in relevant cases or the welfare checklist are “simply tools to assist a family judge in making the multi-factorial assessment to reach a result which is in the best interest of the child after taking account of the potential impacts on the parents”. Hence the judge can decide which tools can be relevant in formulating the final decision.

 

How to structure relocation applications?

A systematic research and a comprehensive proposal need to be presented with the application and ought to include all relevant elements – e.g. living arrangements, social environment, access to the non-relocating parent, immediate and future education plans, etc. – in order to highlight a roadmap showing that such relocation would be in line with the best interests of the child.

In case the parent who is not relocating wishes to appeal after the relocation application has been granted, timing is crucial. This is significant in order to avoid that a child who has already relocated to another country has to go through the trauma of relocating back to Hong Kong with understandable readjustment consequences that could go against his/her wellbeing and development.

 

Children and issues related to relocation

Moving brings feelings of sadness because of the losses involved: the loss of school, the loss of friends, the loss of trusted teachers, babysitters and the loss of certain routines. Children may also feel anxious and sometimes even angry about a move. This may have a direct impact on a child’s emotional development. When a move occurs at an early childhood stage, children tend to go back to a more dependent relationship with their parents, so a move basically disrupts the developmental stage where children go from trusting only their parents to learning to trust others. As a result, children may develop insecure attachments with others and later have issues with trust.

 

Recent case developments

In July 2019, in the case “B, A v B, L (2019) HKCA 822” the Court of Appeal reconfirmed that there is no presumption in favour of a primary carer and that the paramount consideration in Hong Kong is whether the relocation is in the best interests of the child.

The case involved a Columbian-born mother unlawfully removing her two children to USA which she considered as her home country since she had emigrated there in the late 90’s. Both parents are Hong Kong permanent residents and both children were raised in the territory as their home base.

The father of the two children had successfully applied for the return of both children to Hong Kong under the principles of The Hague Convention on Child Abduction of which Hong Kong is a signatory and the Child Abduction and Custody Ordinance (Cap. 512). The children have lived with their father in Hong Kong since mid 2014 and the mother had been commuting between the territory and the USA until early 2017 where she permanently settled and applied for the relocation of the children to live with her in Miami.

One of the core issues during the relocation trial was about who was the primary caretaker of the children and where the best interest of the children could be guaranteed. Reports from the Hong Kong Social Welfare Department and its counterpart in Miami seemed rather contradictory and finally the judge granted the mother with the relocation of the children. However, the father was granted leave to appeal in fact new elements came up and had to be considered: there had been a lack of information from the mother’s side since in the meanwhile there had been some drastic changes related to the mother moving from Miami to San Diego – contrary to the original application in which case the children would have benefitted from the maternal grandparents and a wider family network all living in Miami – and expecting a child from her new fiancé.

One other element had some impact on the judge decision: time to be spent with the children, in fact while the father could enjoy about three months’ holidays per year, the mother had only four-week annual leave divided in two tranches. The father would consequently be allowed to spend more time with the children during their school holidays.

 

Our take

Even if the Payne case has created a well-thought-out structure in which the appraisal of the relocation application has to be based on highlighting the child wellbeing and designed with precise provisions about the child development, there’s no presumption that the primary caretaker of a child would generally be allowed to relocate to another country.

Clearly there are many other cases which have made clear that the consideration in allowing relocation ultimately rotates on the welfare and best interest of the child. A relocation application does not create any presumption in favour or against the applicant whether he/she is the primary caretaker of the children.

Ultimately the Court final decision will be based on all relevant factors that consider if a child relocation will be positively impacting his/her best interests. Such element is best reiterated in the judge words in the latter case: “In Hong Kong the paramount consideration is whether the relocation is in the best interests of the child. Hence whether a relocation application is made by a primary carer or a non primary carer does not give rise to any presumption in favour of or against the applicant. There may be myriad reasons why such a parent applies for the relocation of the child. Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case. The value of Payne is that it ‘identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case”.

 

Our team at Hugill & Ip has extensive experience in dealing with Hong Kong family laws, so kindly get in touch with us to find out how we can help.

This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.

 

 

Alfred Ip

Alfred Ip

Alfred assists high net-worth individuals (HNWIs) in handling their wealth-related issues, such as contentious and non-contentious trust and probate, mental capacity, family office, amongst other wealth management matters. He is also a leading Dispute Resolution lawyer with over 20 years of experience in Hong Kong. Moreover, Alfred helps clients with issues regarding Family Law.

All articles by : Alfred Ip
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