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Hong Kong Family Law: A Concise Guide to Relocating Children in the COVID-19 Era

Hong Kong Family Law

Hong Kong is no stranger to migration of its population.  Recently, many families have decided to move away from Hong Kong and settle down somewhere new. Relocation of children has always been a potentially tricky area for divorced families since one of the parents may object. On top of that, the ongoing COVID-19 pandemic has complicated matters even further. Abigail Liu and Tracy Chu discuss the general legal principles that govern relocation of children and the additional hurdles that parents face due to the coronavirus pandemic.

Children relocation: What you need to know

 Factors considered by the Court

In the ideal situation where both parents agree to relocation of the child, the parents can apply to court by consent for an order that the child be permanently removed from jurisdiction. 

It will be more problematic if one parent does not agree to relocation of the child.  In that case, the parent who wishes to remove the child away from jurisdiction would have to make an application to the Family Court for a relocation order by a summons supported by an affirmation.  The unfortunate fact is that once the Court is involved in the decision-making of relocation, the process will become costly and time-consuming.

It must be stressed that moving a child permanently to another country is not a decision taken lightly by the Family Court and the welfare of the child is of paramount importance in a relocation application.  It also does not matter whether the application is made by the primary carer or not as it does not give rise to any presumption in favour of the applying party.

The leading case setting out the established principles governing relocation applications is the English case Payne v Payne [2001] EWCA Civ 166 (per Thorpe LJ), the principles stated therein has been repeatedly applied in Hong Kong including the landmark case SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37.  In approaching the matter, the Court will consider:

(1) Whether the relocation application is genuine in the sense that it is not motivated by some selfish desire to exclude the other parent from the child’s life?

(2) If it is genuine, whether the application is realistic in the sense that it is founded on practical proposals both well researched and investigated?

(3) The court will then conduct a careful appraisal of the opposing party’s opposition by considering:

(a) whether it is motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive;

(b) what would be the extent of detriment to him/her and his/her future relationship with the children were the relocation application granted;

(c) to what extent would that be offset by extension of the child’s relationships with the applicant parent’s family and homeland.

(4) what would be the impact on the applicant parent of a refusal of the realistic relocation proposal?

In other words, as reiterated in SMM v TWM (Child: Relocation), in preparing for the relocation application, it is helpful for the applicant parent to bear in mind that:

(1) Reasonable proposals to live abroad will carry greater weight.

(2) The proposals have to be scrutinised with care and the Court needs to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

(3) The effect upon the applicant parent and the new family of the child of a refusal of leave as well as the effect upon the child of the denial of contact with the other parent and in some cases his family are both very important.

(4) The opportunity for continuing contact between the child and the parent left behind may be very significant.

Practical tips: Items to include in the supporting affirmation

It is very important to have a well thought-out and researched plan before making an application.  It will impress the Court if the applicant parent can inform the Court of:

(1) The place of stay of the child – preferably exhibit evidence of the family residence or dormitory of the child.

(2) The school the child would study in – preferably exhibit evidence of information of the school or any offer by the school (if any).

(3) The day-to-day arrangements of the child – including care arrangement of the child, information about the neighborhood, how the child can seek medical care etc.

(4) How the child can travel to the other country – details on visa requirements and travel arrangements.

Also, the Court will be concerned about how the left behind parent can access the child, preparing a proposal for access can show that the applicant parent is not depriving the left behind parent’s access and can give the Court confidence that access of neither parent would be denied.

Impact of COVID-19 on relocation applications

In many parts of the world, the COVID-19 pandemic seems to be coming to its end. Despite many countries lifting their travel bans and quarantine restrictions, some of the many effects that were developed in the wake of the pandemic may stay in Hong Kong a little longer in the foreseeable future.

For relocation applications, it has been held in JTMW v NAV [2020] HKFC 244 that things should not be mired in stalemate simply because of the pandemic and that the court should bear in mind the long term interest for the children. This makes covid-19 pandemic only one of the many factors to be considered. As it has been over two years since the start of the pandemic, this factor is likely to become less and less relevant, particularly where the child has met the necessary vaccination requirements.

However, in light of the 7- day quarantine that still apply to travelers coming into Hong Kong, the courts have been understanding towards the opposing parent’s concern in difficulty to travel overseas to visit their child, or the child’s difficulty to return to Hong Kong for holidays. But an opposition merely on this ground will not be sufficient. In BL v SJY [2021] HKFC 148, the court acknowledged the father’s concern about the pandemic and his inability to travel to the United States. But notwithstanding that, having considered the child’s age, the court found that it would be more desirable for her to relocate in the summer so that she can commence high school in August.

Until travelling returns to normal, courts may need to make orders to ensure that the left behind parent can have access to their children to maintain the future relationship. Such orders may include additional remote access and/or delayed relocation whereby the order takes effect from uplifting of the travel ban.

Conclusion

Ultimately, the essence of a relocation application is to determine what is in the best interest of the child, and that has remained unchanged even during the covid-19 pandemic. As the left behind parent, it would be difficult to oppose a relocation application on the mere or sole basis that the covid-19 pandemic will make it difficult to travel. However, as the applicant parent, it would be beneficial to ensure that sufficient preparation such as meeting the vaccination requirements or diligent research on the covid-19 pandemic situation on the intended country is done to satisfy the court that their proposal is tenable and realistic.


Abigail Liu 

Abigail joined Chambers in 2019 and is developing a broad civil and criminal practice, with experience in various areas such as family and matrimonial matters, public law, land, tort, personal injuries, employee compensation, commercial litigation, trusts and probate.

In addition to handling various family matters, Abigail has spoken on video (with Withers partner Jocelyn Tsao) about the ways in which parties could protect themselves financially in the event of a relationship breakdown and lessen the financial impact of divorce. Watch the video

Find out more from Abigail’s profile.


Tracy Chu

Tracy joined Chambers in 2020 upon completion of her pupillage with Mr. Chan Chi Hung SC, Mr. Tim Kwok, Mr. Giles Surman, Ms. Catherine Wong and Mr. Robin D’Souza.

She is developing a predominately civil practice with interest in criminal law, and has experience in matrimonial, personal injuries, contract and commercial disputes.

In the area of family law, Tracy has spoken on video (with Withers partner Billy Ko) about scenarios where the Hong Kong courts may potentially recognise same-sex marriages in relation to issues of inheritance where a spouse passes away. Watch the video

Visit Tracy’s profile for more details.


 

This article was first published on 30 June 2022. 

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.