Relocation amidst a pandemic: COVID-19 and a wish to permanently leave Hong Kong with children22Jan2021
23 January 2021 marks the one year anniversary of the confirmation that COVID-19 has spread to Hong Kong. In a year filled with uncertainties and challenges, following on from a year of protests in Hong Kong, our Family Practice has seen an increase in enquiries, from parents wishing to permanently relocate from Hong Kong with children.
The motivations to permanently relocate are myriad and include loss of employment or a desire to be closer to family members. If the parents cannot agree the terms of a relocation, they must take out a relocation application with the Family Court.
For more information including what considerations a Court will take into account in relocation applications, see our article here.
Even before a global pandemic, a relocation application is a difficult one. A Judge must carefully balance factors such as whether the relocation application is genuinely made, whether the relocation proposal is realistic and well-researched, whether the other parent’s opposition is genuine and how access between the child and the parent ‘left behind’ will be maintained, and have considered all the factors decide whether or not the relocation is in the child’s best interests. Where a child is of sufficient maturity (generally from 10 to 11 years old and up), their wishes will also be given strong weight.
With the precarious nature of COVID-19, the ever-changing views and opinions of where in the world is considered “most safe” for individuals, and the developing and evolving regulations and restrictions about international travel implemented by different countries, one prevalent concern from parties has been how (if at all) COVID-19 will affect relocation applications.
In 2020, there have been a number of relocation cases in which judgment has been given which granted a relocation despite COVID-19 and the uncertainties surrounding travel.
Specifically, a recent decision from the Family Court in Hong Kong has addressed concerns about how the pandemic and the resulting difficulties with the global economy should affect how a Judge considers relocation applications.
This case involved a Danish father, a pilot, who wished to return to Denmark with the two children of the family. The father made an application in April 2019, well before COVID-19 was a concern. The father has sole custody of the children and the mother has very limited defined access.
The father’s motivation for relocation was for career purposes. The father’s employer approved a transfer from Hong Kong to London which would enable him to live in Denmark while reporting for duty at Heathrow, London. This allowed him to return to Scandinavia without losing hard-earned seniority in his employment. The father considered that the children would benefit from the move, particularly in relation to educational opportunities as there have been some challenges while the children were in Hong Kong.
The children, at ages 13 and 11, have expressed their views that they wished to move to Denmark with the father.
The mother opposed on the basis that neither of the children were born in Denmark, nor have they lived in Denmark. The mother was also fearful that if the children relocated, she would not have an opportunity to reconnect with the children.
Trial was scheduled to take place in April 2020, but was subsequently adjourned twice due to COVID-19 and the Hong Kong Court’s operating at a reduced capacity.
In September 2020, the mother made an application to dismiss the father’s relocation application because of the rapidly developing situation caused by COVID-19 and the uncertainties following Brexit on 31 December 2020, the impending restructuring of the father’s employer (which was in the aviation industry) and the changes in the immigration requirements of Denmark. Alternatively, she sought leave for the parties to update the Court about their respective situations in 6 months.
For a number of reasons clearly set out within the judgment, the Judge Ivan Wong dismissed the mother’s application and granted the father’s relocation application. In doing so, the following points were made about the mother’s application and concerns about COVID-19:
- “…the world is now facing the COVID-19 pandemic. The pandemic is moving, and moving rapidly in some of the days, but it does not mean that the court should wait until the end of it or when the post-Brexit situation is clear. What the court should do is to consider the father’s application on the facts and materials before it now and come to a decision the best it can.”
- Referring to one of his own previous decisions in VE (nee KE) v VRJ (Relocation, Custody, Care and Control and Access), FCMC 7676/2011), the Judge noted: “The question is not one of uncertainty; the question is whether the relocation is well-planned and considered so that the major adverse uncertainties are foreseen, avoided or eradicated as much as possible.”
- On the effects of COVID-19 on Hong Kong and the world generally, the Judge said:
- “Denmark and Hong Kong, and for that matter, the world, have been facing the challenge posed by Covid-19 pandemic. In different countries and at different times there have been waves of surges of cases. At some of the time Hong Kong has met with success and the same can be said for other countries. Things should not be mired in stalemate simply because of the pandemic. I am sure what I have in mind should be the long term best interest of the boys and attention should not be focused on the infection rates alone.”
- “Hong Kong, and for that matter, the world, have been experiencing financial hardships due to the Covid-19 pandemic. There is no guarantee that things would change for the better in the near future. If the father’s application is refused, in the event that the father loses his job due to any further entrenchment, it is highly doubtful how the father would be able to sustain his living in Hong Kong.”
It is clear that the Family Court’s paramount concern when it comes to determining relocation applications remains the 4 questions set out in the landmark decision of Payne v Payne (2001) EWCA Civ 166. While COVID-19 and the very practical challenges associated with it, including whether or not the ‘left behind’ parent can travel to see the children, remains an issue, the Court demonstrated that it will not let the pandemic be a sufficient reason to delay or prevent relocations where applications are genuinely made and well-founded.
Joanne Brown and Joanne Lam
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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.