Question: I am going through a separation or divorce. Can I travel with my children overseas?22Jan2024
With the Chinese New Year ahead, parents may be looking to enjoy overseas travel with their children, especially during their long school holidays. It is important to plan ahead and seek agreement with your co-parent to prevent any travel disappointments, delays, or cancellation costs.
The Hong Kong Family Court has jurisdiction over issues of custody and access until the child turns 18 when parties are going through a divorce and proceedings have been commenced. This includes arrangements relating to holiday travel if they are not in consensus.
Upon dealing with matters of custody and access, the Court customarily issues a standard direction at an early stage that the children not be removed from Hong Kong without leave of the Court until the children reach 18 years of age, but if either parent gives a general undertaking to the Court to return the children, and the other parent’s written consent is obtained, that parent may remove the children from Hong Kong for the agreed period of time.
Sometimes, in cases where there is concern a child may be removed without permission, this order will be provided to the Hong Kong Immigration Department and a ‘stop order’ is issued to prevent travel without a court order.
Even if there are no Court proceedings or order prohibiting removal of the children, it is necessary to obtain the other parent’s written consent before taking the children on holiday. Not doing so may attract criticism from the Court and may even result in an application made by the non-travelling parent to return the children to Hong Kong, or even allegations of abduction.
As a general principle, parents should co-operate with one another and agree overseas trips for their children. If there is agreement to travel, there should be provision of contact information and arrangements for contact with the non-travelling parent, and an itinerary which usually includes travel information and where the children will be staying.
However, if parties cannot agree on arrangement for overseas travel, then the travelling parent will need to take out an application with the Court. This is known as a Temporary Removal application.
When deciding whether to grant leave for a Temporary Removal application, the Court will consider the best interests of the children through a basket of factors. This includes inter alia the travel period, travel destination, reason for travel, the travelling parent’s Hong Kong ties and the risk of non-return of the child/children to Hong Kong. The Court will weigh the benefits of travel to the children and the risk of non-return.
In this case, handled by the Tanner De Witt team, the Father wished to take the two children on holiday to visit family in Europe. The Mother resisted the application and cited concerns around the Father’s credibility, employment status and his links and ties to Hong Kong i.e. that he would not return with the children to Hong Kong. She also made complaints about loans allegedly made to the Father and citing a failure to fail monthly allowance. She required these sums to be paid before she would agree to the Father’s travel plans. She allegedly feared that the Father would not return to Hong Kong and required several undertakings to be filed by the Father. He was able to produce further evidence in reply to eliminate concerns around return to Hong Kong.
In his Judgement, His Honour Judge G. Own restates the general principle that the first and paramount consideration in all matters related to children is that their interests are to be secured and well served. His Honour examined the Father’s ties to Hong Kong and stated that a major factor to be considered in such cases is whether the country to which the children will travel is a Hague Convention contracting state. This will ensure the parties have an avenue to expeditiously deal with any failures or delay in returning the children post removal. The Court also considered previous commendable behaviour and compliance with court orders, his employment status and other ties to Hong Kong including tenancy and MPF documents. The Court refused to consider the financial concerns and deemed this objection ‘a non-starter’. When considering the Children’s best interests, His Honour found that the children should not be deprived of an opportunity to see family members which was their right, not the parties’. The Father was permitted leave to remove the children.
Plan early and try to reach agreement
In the absence of a court order regulating holiday access, it is prudent to begin discussions up to 6 months in advance of the intended travel. As a Court application for Temporary Removal can take considerable time, sometimes 4-6 months, best practice is to consider and discuss holiday plans with the other parent well in advance to see whether the matter can be resolved without going to Court. If agreement cannot be reached, parents may consider seeking legal advice and / or mediation to reach agreement on appropriate terms. Failing which an application to Court can be made.
Joanne Brown and Jamie Choy
For specific advice on your situation, please contact:
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.