The pandemic has created an increase in the number of families permanently leaving Hong Kong. But what happens when a separated or divorced parent wants to leave with the child, while the other parent wants to stay in Hong Kong, and wants the child to stay here with them?
The Issue of Consent
You will need the other parent’s consent in order to permanently remove your child from Hong Kong. Leaving Hong Kong with your child without this prior consent may be viewed as wrongfully removing your child (in other words abduction). The other parent may make an application to seek the child’s return. Parents discussing relocation should be mindful of the ongoing quarantine restrictions and flight schedules – it is no longer easy to go back and forth between countries as was usual practice before the pandemic. Therefore, there may be extended periods of time where parents are separated from their children.
Options to Explore if there is no Consent
If the other parent does not consent to the permanent removal of the child, you should discuss with him/her to try to get to the bottom of why this may be. Is something in particular worrying him/her? Speaking to a family mediator could help facilitate dialogue and assist you in coming to an agreement with the other parent. If you are still unable to reach an agreement, you will need to make an application to the Court before permanently removing your child from Hong Kong.
The Court’s Role
When the parents cannot reach an agreement on the permanent removal of their child out of Hong Kong, the Court will call for a Social Investigation Report (SIR) on whether such permanent removal of the child is recommended in the child’s best interests. Once the SIR is available, a Children Dispute Resolution (CDR) hearing may be scheduled during which the Judge will give his/her indications as to the likely outcome should the matter progress to a trial. The purpose of this early Court intervention is to help the parents reach an agreement. If no agreement is reached at the CDR hearing, the matter will proceed to trial. The parents will give evidence and the Judge will decide in favour of or against the relocation. If the Judge does not follow the recommendations in the SIR, reasons must be given.
Best Interests of the Child
Keep in mind that the child’s best interests will always be the main consideration. The Court will reach its decision by taking a holistic view of both parents’ proposals, the recommendations in the SIR and any other expert reports and consider the following:
- Would the relocation have a negative impact on your child?
- Is the proposal to relocate genuine and not dictated by a selfish wish to exclude the other parent?
- Is the other parent’s opposition led by real concern or an ulterior motive?
The Impact of Covid-19 on Relocation Applications
Covid-19 has affected relocation applications, but they will always be decided on a case-by-case basis. In December 2020 a Judge granted permission for a father to relocate to Denmark with his children based on the long-term best interests of the children rather than focusing the Covid-19 infection rates alone.
On the other hand, the Court of Appeal in May 2021 overturned a decision to allow a mother to relocate to Singapore with her young daughter upon the creation of the Hong Kong-Singapore Travel Bubble as, even with the Travel Bubble in place, quarantine requirements were still in place that would create uncertainty as to whether and how often the parents and the child could travel back and forth between Hong Kong and Singapore.
Cases are always decided on their individual facts. Seeking early independent legal advice is important and may assist in avoiding contested legal proceedings.
The article co-written by Caroline McNally and Chantelle Woo is part of The Shield of Justice campaign, which will run until December 2022 in support of Hong Kong Committee on Children’s Rights
