Raphael Wong discusses child relocation, which represents one of the most emotionally charged and legally complex areas of family law, involving the permanent removal of a child from one jurisdiction to another. This issue has become increasingly prominent in Hong Kong’s cosmopolitan environment, where expatriate families frequently face difficult decisions about relocating children during separation or divorce proceedings.
The stakes in relocation cases are exceptionally high. These disputes fundamentally impact a child’s future living arrangements, education, cultural identity, and most critically, their ongoing relationship with both parents. For the relocating parent, approval may mean new career opportunities, family support, or a fresh start. For the non-relocating parent, refusal preserves regular contact with their child, while approval may drastically limit their parental involvement despite geographical distance.
Hong Kong courts approach relocation applications with careful scrutiny, applying the paramount principle that any decision must serve the child’s best interests. The legal framework requires comprehensive assessment through Social Investigation Reports, detailed examination of proposed arrangements, and consideration of multiple factors including the genuineness of the relocation request, impact on the child’s relationship with both parents, and practical arrangements for maintaining meaningful contact across jurisdictions.
The process is deliberately thorough and time-consuming, reflecting the gravity of permanently altering a child’s living situation and family dynamics. Understanding the legal requirements, procedural complexities, and strategic considerations is essential for any parent contemplating or opposing a relocation application in Hong Kong’s family courts.
SHOW NOTES:
00:36 Consent of the other parent and jurisdiction
01:18 Court orders
03:27 Impact on Parental Custody
05:29 Navigating the Process
07:23 Final considerations
TRANSCRIPT
Navigating Children Relocation and the Impact on Custody
Relocation in family law context refers to permanently removing a child from one jurisdiction to another.
Relocation can be a complex and emotionally challenging process, especially when the parties are in the middle of a legal separation. In the context of Hong Kong, where expatriate families are common, disputes on children relocation can be pronounced and daunting.
Consent of the other parent and jurisdiction
Generally, you will need the other parent’s consent before the relocation. Otherwise, it may be considered as child abduction. The other parent may make an application to seek the child’s return.
The jurisdiction where the child will reside after relocation is a crucial factor. If the child moves to a country that is not a signatory to The Hague Convention on the Civil Aspects of International Child Abduction, it may be challenging to enforce custody orders or seek their return in case of a dispute.
Court orders
When the Courts are asked to rule on Relocation, like all other children matters, the Court will then make a decision based on the best interest of the children. At the same time, if there is a real risk that a child may be wrongly removed out of Hong Kong without proper consent, urgent application can also be made to the Court for injunctive relief.
Apart from the parties’ own evidence to be filed, the Court will also call for a Social Investigation Report (SIR) and/or International Social Investigation Report in that particular jurisdiction where the children are going (provided such service is available in that jurisdiction) on whether such permanent removal of the child is recommended in the child’s best interests. Once the SIR is available and the parties have filed their evidence in support or against the relocation, the Court may opt to adjourn the matter to a Children Dispute Resolution (CDR) hearing where the Judge will give indications as to the likely outcome should the matter progress to trial.
The purpose of the CDR is to help the parents to reach a settlement. If no agreement is reached at the CDR hearing, the matter will proceed to trial. The parents will have to give evidence in a witness box and the court will have to adjudicate on the matter. If the Judge does not follow the recommendations in the SIR, reasons must be given.
Relocation is a serious and complex application with multitude of considerations. Sufficient time is needed to plan ahead as judgment for relocation applications will usually be reserved and will not typically be handed down within a short period of time. Even when the court ruled in favour of relocation, the Court might asks that the relocation does not take place until after certain time has lapsed.
Impact on Parental Custody
Relocation no double will have a huge impact on children arrangement and also the time spent by the other parent who are not relocating. Despite advancement in technology, real time physical access is also better than digital remote access. Co-parenting will be become challenging especially when the parents are in vastly different time zones. Communication, decision-making, and coordination may become more difficult. Therefore, the further the relocation, the harder it is for the other parent to maintain regular contact and involvement in the child’s life.
The court must consider the impact on the child’s relationship with the non-relocating parent when making the decisions and detailed children arrangement order will usually be put in place alongside of the relocation order, so as to ensure that the parenthood of the non-relocating parents be maintained as much as possible. In fact, the Court in deciding whether relocation is in the children’s best interest, they have to consider, amongst other factors, whether the application is genuine but not motivated by wrongful desire to exclude the other parent from the child’s life. The applicant should demonstrate the willingness and ability to ensure ongoing communication and visitation arrangements to maintain a healthy parent-child relationship.
At the end of the day, a parent’s visiting right is meant to benefit the children, but not the parents themselves. Should the court finds that a party lacks the ability to facilitate such contact or that the relationship between the children and the non-relocation parent will be severed, the court should be robust in rejecting relocation.
Navigating the Process
It is essential for parents to communicate openly and honestly about their intentions to relocate, why they need or want to relocation, the potential impact on parental custody and the detailed children arrangement should relocation is to take place. The parties should also consider seeking professional help from an experienced family lawyer or mediator to help to resolve any potential disputes and to avoid lengthy court battles.
Throughout the process, the best interests of the child should remain paramount. The Court has the upmost discretion to decide what is in the children’s best interest and every case has to be decided on its own facts.
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 the UK Payne v 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.
Final considerations
In conclusion, navigating children relocation out of Hong Kong and its impact on parental custody requires careful consideration of legal requirements, potential consequences, and the best interests of the child. Detailed and advanced planning is required. Open communication, proper legal advice, and a focus on co-parenting can help ensure a smoother transition and minimize the impact on the parent-child relationship.
This video is for informational purposes only. Its contents do not constitute legal or professional advice.
