Relocation applications: I want to relocate permanently from Hong Kong with my children but my former spouse will not consent

23Mar2020

There comes a time for many when it is time to bid a fond farewell to Hong Kong.

For divorced families, this can be problematic as orders on children’s arrangements will usually include a direction that a child may not be removed from Hong Kong without leave of the Family Court in Hong Kong.

The process to relocate with the child from Hong Kong can be simple where both divorcing parents agree – the parents can apply to the Court by consent for an order that the children permanently remain out of the jurisdiction of Hong Kong. Practical and financial arrangements can be reviewed and recorded by an order in Hong Kong and a mirror other in the new location.

What happens though when one parent wants to permanently relocate with the child, but the other parent does not agree?  Objection is often taken if the reason for the relocation is that the spouse has a new partner and wishes to go to live in her or his home country.  If an agreement is not possible, a parent wishing to relocate permanently with children should make an application to the Family Court. These are known as relocation applications. If a parent removes or retains a child from the jurisdiction of Hong Kong without consent of the other, it may amount to child abduction.  

For more information on child abduction, see our article on Hague Convention

Considerations

The landmark case on relocation applications is the 2001 English case of Payne v Payne (2001) EWCA Civ 166. The case has been applied by the Hong Kong Family Court.

In deciding relocation applications, the Court will assess a number of factors set out in Payne, including:

  1. Whether the 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. Whether relocation plans are realistic? In other words, is the plan founded on a practical proposal which is well researched and investigated?
     
  3. There will also be a careful assessment of the other parent’s opposition:
     
    1. Is it motivated by genuine concern for the future of the child’s welfare, or is it driven by some ulterior motive?
       
    2. What would be the extent of the detriment to him/her and his/her future relationship with the child were the application granted?
       
    3. To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?
       
    4. What would be the impact on the other parent?
       
  4. An overriding review of the child’s welfare as the paramount consideration.

These continue to be the main focus of the considerations of the Family Court.  The Court will also be aided by the Welfare Checklist’ (set out in section 1(3) of the English Children’s Act 1989).

Practical tips: what can a parent do if they wish to relocate with their child, but there is no consent from the other parent?

  1. Consider why and when you wish to move.

    Are you unhappy in Hong Kong?

    Are you a trailing spouse?  This term is sometimes applied to a spouse who came to Hong Kong because their spouse had a good job offer or economic opportunity here.

    The Court is generally more inclined to grant an order for permanent removal if the requesting parent is moving back to their home country and/or the parent can show that they have a good support system in the home country or new location.

    Further, consider whether it is the right time to move. Is the intention to move at the end of the academic year or the end of an employment contract or lease expiry? 
     
  2. Have a realistic, well-researched and organised plan. Be prepared to inform the Court:-
    1. where will you live with the child;
       
    2. what school the child will attend both immediately and in the future;
       
    3. what is the care arrangement for the child in the new country;
       
    4. what are the job prospects / emotional and family support in the new country; and
       
    5. the proposals for access between the child and the other parent. For example, how will you share holidays with the other parent? How often are the flights between Hong Kong and the new country?   Show the Court that you have considered the options and possibilities and that by relocating with the child, the other parent is not deprived of access.
        
  3. It is important that all of the above factors are considered through the lens of the best interest of the child. As can be seen in the in RM (aka RH) v SRM (see case example below), even where a realistic and well-researched plan is presented, the Court’s ultimate decisions will be based on the best interest of the child.
     
  4. Consider options early and have an open and honest discussion with the other parent, including whether mediation is an appropriate means for a resolution to alleviate any concerns the other parent may have.  If the other parent does not agree, the process of applying to the Family Court for a relocation order is lengthy and costly.  It may take up to 12 months before the application is before a Judge and a trial on the matter can span days or even months.  

Recent case example: RM (aka RH) v SRM [2020] HKCU 113

The Mother and the Father separated in 2013, and a petition for divorce was filed in 2014.  The divorce was finalised in June 2017.

This was the Mother’s second relocation application following the rejection of her first application in 2016 to relocate the two children of the family (one aged 12 and one aged 4) from Hong Kong to Japan. The 2016 application was rejected by the Court as the Court considered the Mother had a greater support system and living environment in Hong Kong to care for the children. The Court also noted the Mother did not have any employment opportunities lined up in Japan.

In the new application, the Mother had moved to Japan and sought relocation for both children, before subsequently withdrawing the application for the older child.

The Court considered the factors set out in Payne in rejecting the Mother’s present application and held:-

  1. The Mother’s application was genuine and not motivated by the desire to exclude the Father from the child’s life.
     
  2. The Mother had a realistic plan. The Mother had established a living space which is suitable for her to raise the child in Japan and had located a public primary school in her neighbourhood for the child. Her employer also offered a flexible working schedule which would allow her to pick-up and drop-off the child to school and that the Mother’s father is capable of assisting and willing to assist in caring for the child.
     
  3. The Father’s opposition was genuine.
     
  4. However, the Court rejected the application and held that relocation was not in the child’s best interest.

    The Court took issue with the following:-
     
    1. The Mother sought only to relocate the younger child.  It is a recognised principle that, save for exceptional circumstances, it is in the best interest of siblings to remain together.
       
    2. The Mother was not the primary carer of the child.  The children had established a stable routine in Hong Kong, and the Court considered that to disrupt that, particularly in light of separating the children, would not be in the best interest of the child. While the Courts have established that there is no presumption in favour against an applicant parent who is not the primary carer of the child, it is an also well-established principle that generally speaking if the status quo is found to be satisfactory, the Court will be reluctant to intervene. The Court considered that the Mother has been able to maintain a close relationship with the children since her relocation as she had roughly bi-weekly access with the children and the children could spend extended periods of time with her in Japan during holidays and therefore did not consider a refusal of the present application would affect the Mother detrimentally.

Joanne Lam

For specific advice on your situation, please contact:

Joanne Brown
Partner | E-mail

Mark Side
Partner | E-mail

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.