News

Court of Appeal sets aside relocation order in first appeal case dealing with impact of a move during Covid-19 pandemic

Recently, the Court of Appeal in H v W [2021] HKCA 733 has overturned a Relocation Order made in favour of the Mother on grounds of prematurity, uncertainty and departure from recommendations. The pandemic has created uncertainty which should be taken into account in considering the child’s welfare in a holistic manner.  Vivien Leung (appearing as co-counsel), instructed by Billy Ko of Withers, acted for the successful father appellant.

Factual Background 

The Father and Mother are in ongoing divorce proceedings in Hong Kong. The Mother proposes to take the Child (aged 5 years) to Singapore so that she can develop her relationship with Mr N and re-establish her career in Singapore.

Prior to this marriage, Mother worked for and had a romantic relationship with a Mr N, who now runs his business in Singapore. They reconnected in 2019 and started a new romantic relationship. Mr N offered Mother a job and a stake in his company in Singapore.

If Mother relocates to Singapore, she must wait for over a year to obtain a work visa. She intends to enter Singapore as a dependent on the Child’s student visa, pending eligibility for a work visa. Mr N has three children from his previous marriage. Neither he nor his children has met the Child in person.

The Mother did not expect to earn money for the first two years until her business builds up.

Key Reasons for Setting Aside Relocation Order

What is different about this case is that the Judge ordered relocation against recommendations from both the social work officer and single joint expert (child psychologist).

The Court of Appeal accepted that whilst it was entirely within the judge’s discretion whether or not to accept the recommendation of the welfare officers, the judge, if she differed from it, should indicate in her judgment her reasons for doing so, and furthermore, when minded to depart from the recommendation, ought to consider all available information and the recommendation should be carefully explored in cross-examination.

Failure to give sufficient reasons for departure from recommendation of social work officer

The social work officer in this case recommended against relocation as it would have uncertain disruption in (1) the Child’s stable routine; (2) parental care from both parents; (3) close bonding with the father and (4) close contacts with the extended family of both sides.

The Judge gave two reasons for not following the social work officer’s recommendation, namely, (1) the social work officer’s admission that the issue of finances “was not a concern and that she had not really considered this when reaching her conclusion” and (2) the social work officer was under the impression that the Mother intended to move in with Mr N immediately, when by the time of the trial, the Mother had shifted her position and was prepared to consider as an option that she and Mr N would live apart initially.

The Court of Appeal held that the Judge failed to give sufficient reasons for her departure from their recommendations.

In particular, the Court of Appeal found that the Judge had misunderstood what the social work officer was saying in evidence. The social work officer did not say that finance was not a concern, as the Judge had said in the judgment. The social work officer indicated that the Child’s interests were of paramount consideration and that the overall situation had to be considered. Although the Judge was clearly of the view that the financial aspects of the relocation were very important, this is only one of the factors to be taken into account in considering the Child’s best interests.

The Judge did not appear to have considered that the Mother’s relationship with Mr N may not work out. If their relationship does not work out, there will not be a guarantor for the Child’s student visa and further, the Mother will not have an employer to support an application for a work visa/pass. Due to the lack of information for almost a year now, there is no certainty that Mr N’s business will be profitable after 2 years and/or that the Mother’s finances will improve after 2 years.

Further, what is clear is that the Mother’s latest shifting of position to live apart from Mr N initially was only made at the last minute upon reading the reports of the social work officer and single joint expert. Ultimately, there was no safeguard in the Relocation Order or any undertaking from the Mother that this would indeed be the arrangement, nor was there any safeguard as to what alternative there would be if the arrangement did not work out, or if Mother changed her position again.

The Court of Appeal thus agreed with the social work officer that the relocation could have uncertain disruption.

Failure to give sufficient reasons for departure from recommendation of single joint expert (child psychologist)

The single joint expert recommended that relocation was premature and that the Mother should focus on building her relationship with Mr N and re-establishing her career in Singapore before removing the Child from Hong Kong. The single joint expert then went on to give suggested proposals on care arrangements in light of her concerns that the relocation was premature.

The Judge explained that the specific care proposals put forward by the single joint expert was not one that she could order. Apart from saying it was not possible for her to make orders along the two proposals without agreement from the parties, the Judge then decided not to attach very much weight to the report.

The Court of Appeal found, the Judge did not appear to have sufficiently, or at all, considered the single joint expert’s primary recommendation that priority should be for Mother and Mr N to focus on their relationship and her re-establishing her career before removing the Child from Hong Kong, and as such the Judge fell into error.  The Judge failed to consider the single joint expert’s concern that the proposed relocation was premature.

Failure to look into the matter holistically by failing to take into account the uncertainty and prematurity of the Mother’s relocation plan

The Court of Appeal found that the Judge, by failing to include safeguards and protective measures in the Relocation Order, had failed to address the Child’s welfare and best interests sufficiently in a holistic way.  At paragraph 89, it was said that “the Mother’s application for relocation was rushed and premature and made during a period with the pandemic having no end in sight and normal frequent travel was not possible, and her application should not have been allowed at that stage.”

The Court found that it was uncertain whether the parties and the Child can travel frequently between the two jurisdictions. Even if the travel ban was uplifted, it does not mean Father would be able to fly to Singapore the first weekend every month pursuant to the Relocation Order. It is also unknown as to whether the Child can travel frequently between Hong Kong and Singapore without being vaccinated under the “Travel Bubble” arrangement.

Further, the Court found that the Mother’s application was neither realistic nor founded on well-researched and practical proposals. She provided little information on accommodation plans. There were no safeguards or protective measures for the Child in the Relocation Order in the event that Mother’s relationship or business partnership with Mr N did not work out. It would not be in the Child’s best interests to be uplifted from her present circumstances without further investigation and safeguards in place.

The Court concluded at paragraph 99 “… it is wrong in principle for [the Judge] to proceed with an immature and uncertain relocation option involving the child simply because she needs to procure her immigration status through the child’s student visa as a springboard.” (emphasis added)

In other words, even independently of the recommendations of the social work officer and single joint expert, the intended relocation in this case was found to be too immature and uncertain.

What might be of comfort for the Mother is that the Court of Appeal also said that she was not debarred from making a new application for relocation in future – if she is able to provide realistic and well-researched proposals on her business investment, finances, proposed housing, and after the Child had met and established a comfortable relationship with Mr N and his children.


Significance

The key takeaways from this decision are:

• Relocation applications may be rejected for uncertainty and prematurity.

• The ongoing pandemic has added uncertainty to the equation and thus the need to consider relocation plans more carefully. Are the proposed access arrangements feasible and can they realistically be implemented whilst the pandemic is ongoing?

• The child’s welfare must be considered holistically in all relocation applications. Thus, whilst the issue of finances is important, it is but one factor in the child’s welfare. Other considerations such as disruption to the child’s routine and bonding with the other parent and other family members should not be sidelined.

• Departure from recommendations of social work officers and experts should be sufficiently reasoned and tested during cross-examination.

This article was first published on 28 May 2021.


Vivien Leung


Vivien
is a former solicitor who joined the Bar in 2020 with a decade of litigation experience. In recent years, she has developed a private client practice with emphasis on matrimonial and probate litigation. 
She is a HKMAAL accredited family mediator. Vivien also regularly advises on commercial disputes including those involving company, contract and trust law.

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 photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.