Zj v. Xwn

CAMP 67/2018

[2018] HKCA 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 67 OF 2018

(ON AN INTENDED APPEAL FROM FCMC 16899/2014)

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Before:  Hon Lam VP and B Chu J in Court

Date of Hearing:  19 July 2018

Date of Judgment:  25 July 2018

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J U D G M E N T

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The Court:

Introduction

1.In this matter, the petitioner mother in FCMC 16899/2014 applied for leave to appeal against the order of Judge Grace Chan (“the Judge”) of 21 July 2017 allowing the respondent father to remove the parties’ now 6 year old son (“Child”) permanently out of jurisdiction of Hong Kong to Australia (“the Order”). 

2.The mother applied for leave to appeal from the Judge and for leave to adduce fresh evidence to show that the father had been obstructive over her access and/or to the extent that she was not allowed to see the Child.  Both applications were refused by the Judge on 4 May 2018.

3.The Order was made upon undertakings by the father to (i) return the Child to the jurisdiction of Hong Kong if called upon to do so by the court; (ii) to provide the mother’s particulars to the school of the Child when so requested by the school in any application form or school record; and (iii) to cooperate with the mother in obtaining a mirror order of the Order in Australia immediately upon the removal.

4.There was no application made by the mother for stay of the Order. Subsequent to the Order, the Child left Hong Kong on 1 September 2017 and has since been living and studying in Sydney, Australia.  Notwithstanding the father’s undertaking to cooperate with the mother in obtaining a mirror order, she has not taken any step to do so.

Background

5.The background facts of this case have been set out in the Judge’s judgment of 21 July 2017 (“Judgment”) and in her decision of 4 May 2018 refusing leave to appeal (“Decision”).  Briefly, both parties were born in Shantou in Mainland China and both came from wealthy families.  The father emigrated to Australia with his family when he was 16 and after completing his education there in 2006, he worked for his family business in Australia for a while before moving back to work in Beijing.  The parties met in Australia when the mother was attending university there and upon completion of education in 2006, the mother joined her family business in Mainland China. The parties married in December 2009 and thereafter lived and worked in Beijing.  The Child was born in June 2012 and is now 6 years old.

6.In 2013, the parties made a joint decision to move from Beijing to Hong Kong and by end of 2013, the father and the Child had settled here, but the mother spent more than half of her time attending her family business in Shenzhen.  The parties’ marriage broke down and a decree absolute of divorce was granted in August 2015.  The parties had consented to an order made on 3 June 2015 in relation to the Child and ancillary relief (“Consent Order”).  Pursuant to the Consent Order, the father has been granted sole custody, care and control of the Child while the mother has reasonable access.  The parties have also agreed, amongst other things, that the Child shall not be taken out of Hong Kong or his place of residence without the consent of both parties.

7.The parties had different interpretation as to whether the mother was entitled to have access in Shenzhen pursuant to the Consent Order and the mother had issued a summons in December 2015 in relation to access in Shenzhen (“Access Summons”).  The father later issued a summons in March 2016 for permanent removal (“Relocation Summons”).  There has also been an interim access order in place since March 2016.

8.The father applied to relocate with the Child to Australia so that he could continue to take care of the Child on a daily basis and to conduct his business there at the same time, having taken up a redevelopment project in Sydney which will take over 6 – 7 years to complete. 

9.The mother alleged that the motive of the father was not genuine, and that it was his choice, rather than a genuine need, to move to Australia permanently.  She had also alleged that the father was using the Child as a “bargaining chip” for the dispute that he had with the mother’s family over aproject in Xi’an.  The mother also claimed that the father had been obstructive over her access to the Child and would continue to do so, including the father refusing to let the Child go to Shenzhen to see her.

10.There were two international social investigation reports, respectively of the living condition and environment of the locality of the father’s home in Sydney and the mother’s home in Shenzhen, and one report prepared by the social investigation officer Mr Chan (“SWO”) in Hong Kong in relation to the Access Summons and the Relocation Summons.  The SWO was of the opinion that it was in the best interest of the Child for him to continue living in Hong Kong.

11.There were 3 grounds of appeal, namely that the Judge:

(1)  misapplied the correct legal principles;

(2)  failed to give due or sufficient weight or consideration to the SWO’s recommendation; and

(3)  failed to give due or sufficient weight to the mother’s fear that the father would continue to be obstructive to her access to the Child.

Ground (1)—application of the legal principles

12.The Judge had referred to the Court’s judgment in SMM v TWM[2010] 4 HKLRD 37 on relocation applications, which followed the approach in Payne v Payne [2001] 1 FLR 1052 [1]. 

13.Wall LJ pointed out in Re D (Leave to Remove: Appeal) [2010] 2 FLR 1605, that there had been considerable criticism of Payne. The decision of Payne was said to be controversial, at least in some quarters, for arguably perpetuating a covert presumption in favour of relocation, at least where the application was made by the child's primary carer [2].  Though Re D had been decided on 9 February 2010, it was not brought to the attention of the Court of Appeal in SMM v TWM when it was heard on 7 May 2010.  Instead, the parties were in agreement that the applicable principles were to be taken from Payne, see [19] of the judgment in SMM v TWM.  The judge below actually applied Payne, see [30].  The appeal focused on whether the judge erred in the assessment of some relevant factors as opposed to the approach in Payne.  There did not appear to be any competing submissions before the Court of Appeal on the Payne approach and Cheung JA was the only judge making comments on the same specifically. 

14.Mr Pang SC, appearing with Mr Yim for the mother, referred us to comments made by Judge Melloy in W, Y v L, KP FCMC 4636/2015 where it was suggested that the guidance provided by SMM v TWM needed further clarification from this Court [3]. 

15.In W, Y, Judge Melloy had considered the development in Englandsince Payne.  She referred to some judicial reservations of Payne and alluded to the observations made by Moore-Bick LJ in K v K [2012] Fam 134.  In that case, Moore-Bick LJ opined that the controversy was the result of a failure to distinguish clearly between legal principle and guidance, and that the only principle of law enunciated in Payne was that the welfare of the child was paramount; all the rest was guidance [4]. In the same case, Black LJ (as she then was) also stated that the only authentic principle that ran through the entire line of relocation authorities was that the welfare of the child is the court’s paramount consideration [5].

16.The third member of the English Court of Appeal in K v K, supra, was Thorpe LJ who gave the leading judgment in Payne.  It is noteworthy that Thorpe LJ had this to say at [39] of K v K:

“ 39. As Moore-Bick LJ pointed out in argument, the only principle to be extracted from Payne v Payne [2001] Fam 473 is the paramountcy principle. All the rest … is guidance as to factors to be weighed in search of the welfare paramountcy.”

17.In SMM v TWM, supra, in his exposition on the approach in Payne at [21] of the judgment, Cheung JA alluded to the judgment of Thorpe LJ and ended up by setting out a series of relevant factors at sub-paragraph (d), starting from a reiteration that the welfare of the child is always paramount [6]. These were described as guidelines [7] aiming at assisting first instance judges.  

18.It is clear from K v K thatthe only principle of law enunciated in Payne is that the welfare of the child (or presently in Hong Kong, best interests of the child) is paramount; the rest is guidance.  This is how the comments of Cheung JA in SMM v TWM (based on Payne) should be read.

19.In the more recent decision of the English Court of Appeal In re C (A Child) [2016] Fam 253, Vos LJ reiterated that the only test that the court applies is the paramountcy as to the welfare of the child.  His Lordship further said at [82] and [83]: 

“ 82. … The application of that test involves a holistic balancing exercise … The exercise is not a linear one. It involves balancing all the relevant factors, which may vary hugely from case to case, weighing one against the other, with the objective of determining which of the available options best meets the requirement to afford paramount consideration to the welfare of the child. It is no part of this exercise to regard a decision in favour or against any particular available option as exceptional.

83. … Whilst the Payne factors may still be of some utility in some cases, they are no part of the applicable test or the applicable principles.  In some circumstances, the judge may find them useful.  In others, the judge may not.  If the judge finds them a useful guide to some of the factors that he should consider, he will be doing so only as part of the multi-factorial balancing exercise that is required.”

20.In re C (A Child), supra, was a case which concerned an internal relocation.  As seen in the case, there are different statutory provisions in the Children Act 1989 governing (i) removal from UK where there is a child arrangements order in place and removal is restricted and (ii) removal where there is no child arrangements order and so no automatic restriction.  Black LJ (as she then was) said that although the welfare checklist is not imported into the decision making process for a section 13 application [8], the courts have nonetheless treated it as if it were, expecting that it will be used.  Black LJ has said that this is sensible and unsurprising because the welfare checklist “is a useful aide memoire and because any other approach would lead to an artificial situation in which the outcome of a case might depend upon the precise form of the application made initiating it …” [9].

21.On the utility of the guidance in Payne, Black LJ said at [26]:

“ … The only principle to be applied when determining an application to remove a child permanently from the UK is that the welfare of the child is paramount. Guidance from the Court of Appeal as to factors to be weighed in the search for what is in the best interests ofthe child, such as that in Payne v Payne… is valuable in so far as ithelps judges to identify factors which are likely to be of importance but it is not to be applied rigidly. …”

22.Bodey J, the third member of the English Court of Appeal in In re C (A Child), supra, also emphasized at [85] sub-paragraph (c) that helpful though the Payne guidance is, it should not be regarded as a prescriptive blueprint.

23.We respectfully agree with the above comments in In re C (A Child), supra, on the guidance from Payne.  We are further of the respectful view that the observations of Cheung JA in SMM v TWM based on Payne should be read in light of these comments.

24.The mother’s main complaint was that the Judge had followed Payne v Payne in a rigid or linear manner without any wider analysis of the best interest of the Child and/or without undertaking a holistic balancing exercise and without any reference to the “welfare checklist”, which had prevented the Judge from fully considering a myriad of other factors and circumstances highly relevant to the best interest of the Child.

25.In Hong Kong, the welfare checklist has not yet found its way into our statute.  As Poon J (as he then was) had said in H v N [2012] 5 HKLRD 498, although he endorsed the practice of making use of the welfare checklist, there were three caveats, in particular it is not compulsory for our courts to have regard to the “welfare checklist” and that it is an aide-mémoire. 

26.In the present case, the Judge had stressed that, the only authentic principle to be applied in any relocation case is that the interest of the child is paramount.  The Judge was clearly aware of the controversy surrounding Payne as she had cited those passages in Re TC and JC (Children: Relocation) [2013] 2 FLR 484 in which Mostyn J had provided his own summary of the governing principles for a relocation case and it is clear that the only authentic principle is the welfare of the child is paramount [10] which overbears all other considerations, and that the rest set out by him are guidances. 

27.The Judge had further pointed out that, when applying the welfare principle under section 3(1) of the Guardianship of Minors Ordinance the family court judges may refer to the “welfare checklist” mentioned in the English Children Act 1989 and the recommendation of the Hong Kong Law Reform Commission’s report on Child Custody and Access of 7 March 2005 [11].  The Judge also referred to H v N [2012] 5 HKLRD 498.

28.Whilst we respectfully agree with Black LJ that whatever guidancefallen from earlier cases should not be applied rigidly [12] and Vos LJ’s comment on the holistic approach, it is not mandatory for a judge in Hong Kong to set out the welfare checklist mechanically item by item to demonstrate that she has considered the same. 

29.In the present case, the parties did not have any dispute as to the living condition and environment of the locality of the mother’shome in Shenzhen or the father’s home in Sydney.  They both love the Child.   

30.As it has been said in the course of the hearing, be it the guidance in Payne or SMM v TWM or the welfare checklist, these are simply tools to assist a family judge in making the multi-factorial assessment to reach a result which is in the best interest of the child after taking account of the potential impacts on the parents.  This Court cannot be prescriptive as to how the balancing exercise is to be undertaken.  So long as a judge does not fall into the trap of regarding any of these tools as the ultimate test in place of a holistic assessment of all the relevant factors in the circumstances of the case, it is a matter for him or her to decide if any one of these tools should be used in a particular case.  As observed by Vos LJ, the circumstances of the cases vary and much depends on the facts of a case.

31.This Court will only intervene when the assessment by a judge is flawed in the sense as explained in G v G [1985] 2 All ER 225, viz the judge exercised the discretion in a manner which is wrong in principle or without regard to relevant matters or based on misunderstanding of evidence or the judge’s decision was so plainly wrong that he must have exercised its discretion wrongly.  This is in line with this Court’s approach in any appeal against a judgment involving multi-faceted assessment as seen in Re A [2018] HKCA 272 [13].

32.The Judge had considered what the Child had told the SWO at the time of the report, but due to his young age (he was 4 years old at the time), the Child had no idea that his mother wanted to take him to Shenzhen for access, nor did he know that his father had the relocation plan to go to Australia.  In light of this, it was clear that the Child’s wishes and feelings could not be ascertained due to his age.

33.The effect of the change in the Child’s circumstances as considered by the SWO was set out by the Judge.  As the SWO had said, the father was the primary carer of the Child and that the Child was very accustomed to living with the father.  The daily care of the Child was provided by the father who was the major and only financial provider to the Child.  The Judge was fully aware that if the Child was to remain living in Hong Kong, the Child would have to be in Hong Kong for a lot of time without the father his main carer, although Hong Kong is close to Shenzhen and the mother could continue to see the Child for a full weekend twice a month.

34.As further said by the Judge, the mother had no real concern as tothe practical care arrangement proposed by the father if relocation was allowed and she accepted that the education proposed by the father in Australia was good for the Child.  It was also said by the Judge that both parents had varying degree of connection with Australia, and for the mother, her own sister was then living in Australia.  The main objection of the mother to the relocation was her fear that the father would be obstructive regarding her access to the Child.

35.The Judge noted that the mother had not asked for more access time nor any variation of the Consent Order in relation to custody and care and control.  In relation to access, the father had agreed that a mirror order could be arranged and obtained in Australia which would further protect the mother’s access to the Child in Australia. 

36.At the hearing, Mr Pang submitted that the Judge failed to assess adequately the impact of refusal of relocation on the father in light of his familywealth. In essence, the submission was that the father could choose not to participate in the administration of the project in Australia.  If counsel were correct, any assessment in favour of relocation would be deemed inadequate as it can always be said that the party seeking relocation could choose to remain in this jurisdiction.  We cannot accept this approach.  We are of the view that the Judge had duly considered such potential impact in the balancing exercise undertaken in the judgment, see in particular [38] to [45], [58] to [62].  The Judge did not confine herself to the consideration if the relocation plan was genuine. 

37.Mr Pang also submitted that the Judge’s assessment of the potential impact of relocation on the mother was flawed because of her reference at [75] to it as inevitable consequence if it was in the best interest of the child.  We do not regard such reference as objectionable. In so doing, the Judge merely stated the obvious and cited similar remarks from Cheung JA in SMM v TWM.  As it is clear from [77] and [78] of the Judgment, she did not brush aside the concern of the mother in terms of access.    

38.Reading the judgment as a whole, we are of the view that notwithstanding that the Judge did not set out the welfare checklist item by item, she had indeed given full and adequate regard to all the relevant matters and had carried out a holistic balancing exercise in considering the best interest of the Child.  There was no misapplication of the legal principle on the part of the Judge.

Ground 2—Failure to give due consideration to the SWO’s recommendation

39.The mother’s complaint under this ground was the Judge had erred in:

(i)  departing from the recommendation of an experienced court welfare officer without reason;

(ii)  failing to give due or sufficient weight of consideration to the SWO’s recommendation;

(iii)  failing to follow the SWO’s recommendation because the SWO was of the view that there was no need for the father to stay in Australia to supervise the project and that he just chose to do so; and

(iv)  failing to consider that both parents came from affluent families and that the mother being a business woman was also capable of financially supporting the Child, and the father working for his project in Australia was therefore not the only way to provide financially for the Child.

40.The Judge had set out the SWO’s views in the Judgment [14].  The Judge further set out her reasons for departing from the recommendation of the SWO.  In particular, the Judge had expressed concern that the SWO had arrived at his recommendation based on assumptions without prior discussion and/or confirmation with the respective parties.

41.Under section 3(a)(i)(B) of the Guardianship of Minors Ordinance, the Judge shall give due consideration to any material information including any report of the Director of Social Welfare.  However, as held by Black LJ in In re C (A Child), supra, at [72], a judge was not bound to accept the assessment in such report.  Provided cogent reasons were given, it is ultimately the duty of a judge to determine what is in the child’s best interests according to his or her own assessment after giving due consideration to the report. 

42.In the present case, the Judge had given cogent reasons for departure and in our view, she had given sufficient reasons in this regard at [29] to [32] of the Judgment.  We find no merit in Ground (2).  

Ground (3)—The father being obstructive to access 

43.The mother sought leave to adduce new evidence as contained in her 5^th affirmation filed on 27 November 2017, the father’s 3^rd affirmation filed on 30 January 2018 and the mother’s 6^th affirmation filed on 22 February 2018. 

44.Mr Pang referred the Court to G v G [1985] 2 All ER 225, where it was recognised by Lord Fraser of Tullybelton of the House of Lords that “Additional evidence dealing with events that have occurred since the hearingin the court below is readily admitted, especially in custody cases where the relevant circumstances may change dramatically in a short period of time” [15].  However, Lord Fraser went on to say that it must be a matter for the discretion of the court in each case to decide whether the additional evidence which it is asked to look at is likely to be useful or not and to reject it if it considers it unlikely to be so.  In G v G, the mother’s further affidavit was said to do no more than describe the children’s access visits and to narrate that they had been happy and successful and evidence to that effect would not add significantly to that which had been before the judge and that the Court of Appeal was well entitled to refuse to look at it.

45.The mother’s new affirmations contained her complaints over access.  So far as those matters which took place prior to the handing down of the Judgment, the mother could have brought the matters to the attention of the Judge, and in fact, she did issue a summons over Easter access and the matter was later resolved.  The matters which took place during the 5 week period after the handing down of the Judgment and prior to the Child’sdeparture on 1 September 2017 concerned mainly (i) loss of the Child’s travel documents and the mother’s holiday with the Child to Shenzhen, Beijing and Maldives and (ii) two further access on 26 and 28 August 2017.

46.Suffice to say, for (i), the mother did have defined access between 26 July 2017 to 13 August 2017 as agreed between her and the father, and she did manage to obtain temporary travel documents for the Child in time for the Child to go with her to Maldives; and (ii) the mother did have access on 26 and 28 August 2017.  Further, notwithstanding the mother’s complaints, the father did inform her through his solicitors on 11 August 2017 that the Child would be departing Hong Kong with the father on 1 September 2017.  The mother was fully aware of the address of the father and the Child in Sydney as there has been an international welfare report in relation to the accommodation. 

47.In any event, in the Decision, although the Judge in the end dismissed the mother’s application for leave to adduce new evidence, she had considered matters in the mother’s new affirmations, namely whether the mother was informed as to the Child’s departure date, and whether the father had offered to provide assistance to the mother for her urgent application for the Child’s travel documents.  The Judge further observed that the mother had not taken any step to apply for a mirror order in Australia and did not make any concrete attempt for access to the Child in Australia.  The Judge stated in the Decision that she did not form the overall view that the new evidence showed that the father had been obstructive to the mother’s access to the Child and/or to the extent that she was not allowed to see the Child.  We agree with the Judge’s views. 

48.As the new evidence did not really help the mother or otherwise useful to the Court, we find no reason to interfere with the Judge’s decision not to grant leave for the mother to introduce such evidence. 

The mother’s latest summons

49.The mother issued a late summons to file and serve yet another new affirmation affirmed on 16 July 2018 to inform this Court of the latest development in relation to her exercising of the right of access to the Child from 19 March 2018 to date.

50.On 21 July 2017, the Judge had made a detailed access order in relation to the mother’s access both in Sydney during term time and outside Australia during long school holidays and other access arrangement.

51.The mother was clearly aware of her rights to apply for any order from the Australian court to reflect or mirror the terms of the access order made by the Judge.  According to her, she had sought legal advice in August 2017 but was advised that she was required to “swear to the Australian Court that she accepted and agreed with the order to be obtained”. There was no evidence of such alleged advice.  She then saw another firm of lawyers in July 2018 but was advised not to apply for a mirror order pending the outcome of her intended appeal.  Again, she had not produced a copy of such advice.

52.With respect, we cannot see the reason for the mother not taking any step to obtain some provisions for access from the Australian court.  It needs not be a mirror order.  We simply cannot believe that the Australian court would not give her any order to safeguard the exercise of her right of access.  In light of the unsatisfactory way in which the parties communicated with each other (and in our view the mother had to share some of the blames for her predicament), there is a need for access or contact by the mother to be regulated by a regime enforceable in Australia.  Also we cannot see how the application for such order in Australia would prejudice her in the proceedings in Hong Kong.

53.The mother again purported to show in her latest affirmation thatthe father was obstructive towards her access.  It was not clear what attempts she had made to exercise her rights to access after 1 September 2017 until March 2018.  The correspondence produced by her in her latest affirmation indicated 3 attempts (i) over Easter weekend 2018; (ii) in May 2018 and (iii) in July 2018.

54.For (i) Easter was part of the access during “long school holidays”. Under the order, the mother should inform the father of the place of access whether within or without Australia one month in advance.  As it happened, she only made the request about 11 days prior to the Easter holiday with no details of place of access.   Access over Easter eventually did not take place.  For (ii), the mother gave the father 7 days’ notice for access during the week commencing on 29 April 2018.  The father then replied by saying that he had already made travel plans with the Child for the 1^st week of May and proposed access to take place during the 2^nd week of May.  Instead of making any proposals herself in relation to the date, time and place of access, she asked the father to make the same.  There was then no further follow up.

55.As for (iii), this request was made on 11 June 2018 for the mother to visit the Child in the 1^st week of July 2018 in Australia and again she asked the father to make the proposals as to the date, time and place of access.  There were some exchange of letters, and in the end, it seemed that she only provided specific details of her proposed access which were received by the father on 4 July 2018 at a time when the father had apparently taken the Child to Hong Kong. 

56.We do not find the new evidence helpful to the mother’s case.  At the highest, it shows that communication between the parties on access did not work well.  As we said above, both parties must share the blame in that regard and the mother should have applied to the Australian court for a workable regime sanctioned by a court order.  The evidence did not make out a case of obstruction on the part of the father.  We refuse to allow her to use her latest affirmation and that summons is dismissed. 

Conclusion

57.We have set out earlier as to how SMM v TWM should be read in light of the developments since Payne.  We do not think there was any misapplication of the legal principles on the part of the Judge in the exercise of her discretion or the Court of Appeal has any ground to intervene.  Notwithstanding the best efforts of Mr Pang, we are not satisfied that any of her grounds of appeal has reasonable prospect of success and we are not satisfied that the Judge’s decision was plainly wrong. 

58.There is no other reason why the mother should be granted leave to appeal.  We dismiss the mother’s application for leave, and order her to pay the father’s costs of this application.  Solicitors for the father did not comply with Practice Direction 4.1 paragraph 14 to lodge statement of costs.  In the circumstances, we shall make an order pursuant to Order 62, rule 9A(1)(b) based on our assessment of the reasonable works done at reasonable level of fees and order the mother to pay the father $200,000 in lieu of taxed costs, subject to the right of either party to have the costs taxed pursuant to rule 9A(2). 

59.Before we leave this case, we must voice our concern as to the time taken for the matter to be brought up since the judgment below. The subject of the decision is the relocation of the child.  It took place on 1 September 2017.  It is highly undesirable that, if there were to be any appeal, the appeal process should take a long time to reach determination. It is axiomatic that with the lapse of time, a child would settle down in the new environment.  In such circumstances, further disruptions occasioned by any reversal of the decision of relocation (requiring another exercise of re-adjustment on the part of the child) may give rise to adverse impact on the child’s development.  Hence, an appeal against a decision of this nature should be resolved within a short period of time.

60.Unfortunately, though the mother took out an application for leave to appeal on 16 August 2017, the actual decision refusing leave by the Judge was only made on 4 May 2018.  It came about in this way.  Originally, the leave application was scheduled to be heard on 28 November 2017.  On 24 November 2017, the mother issued a summons seeking to perfect her grounds of appeal and to adduce fresh evidence.  She also filed a very substantial 5^th Affirmation on the same date.  At the hearing on 28 November 2017, the Judge adjourned the application as the father should be given an opportunity to respond to the new materials.

61.The father filed his 3^rd affirmation on 30 January 2018, which is also a very substantial document with exhibits.  The mother then filed her 6^th affirmation on 22 February 2018.

62.The substantive hearing of the leave application took place before the Judge on 5 March 2018 and she gave her written decision on 4 May 2018. The mother then renewed her application in this Court by a summons of 18 May 2018.  After submissions were lodged in accordance with the practice direction, the Court directed on 13 June 2018 that the application be heard on 19 July 2018.  As mentioned, shortly before the hearing, on 16 July 2018, the mother filed another summons seeking to put in further evidence and another substantial affirmation.

63.By now, it is almost one year since the order was made and more than 9 months since the relocation took place.  Though we understand that the parties have changed legal representations and the mother has acted in person at some stage, this cannot be accepted as an excuse for the protracted delay in processing the application for leave.  Whilst parties are free to change their lawyers, the Court should not allow such changes to affect the progress of a leave application. 

64.With the greatest respect, it seems to us that parties have lost sight of the function and the proper scope of the materials to be presented in a leave application.  Application for leave to appeal should be a filtering process and they should be conducted summarily and proportionately.

65.Recently, we have encountered several instances where applications for leave to appeal in the Family Court took a long time to process.  Whilst we understand that the Family Court has a heavy caseload, in general it is unsatisfactory and undesirable that leave applications should take more than four months in the court below.  In a matter where the lapse of time would affect a child’s adjustment to new environment, leave applications should be processed more expeditiously.

66.To address the problems identified above, by way of general suggestion, we would invite the Family Court to consider adopting the following case management practice in processing leave applications:

(a)  Short of exceptional circumstances, the judge processing the leave application should be the same judge who have made the subject decision in respect of which leave to appeal is sought;

(b)  As the judge would be familiar with the case and the arguments advanced, and given that an unsuccessful party can renew the application in the Court of Appeal, leave application can be processed on the papers without any oral hearings.  Hence unless the judge directs otherwise, no appointment should be given for such hearing when the summons is lodged;

(c)  Directions should be given for skeleton submissions to be lodged(with deadlines and page limits) and the judge shall read the same before deciding if oral hearing is necessary;

(d)  Non-compliance with the direction to lodge skeleton submissions by an applicant should be sanctioned by the striking-out and dismissal of the application on the ground of failure to prosecute the application with due diligence; 

(e)  Unless the judge considers that there are matters which calls for clarification or there are other good reasons requiring an oral hearing to be held, the application shall be processed on the papers;

(f)  The application shall not be an elaborate process and filing of evidence should only be permitted when there is good justification for the same.  If the process can be completed within a short period, usually there will not be any justification for putting in fresh evidence on the pretext of up-dating developments;

(g)  Costs of the application should be assessed summarily.  The parties should also lodge costs statement at the same time to facilitate summary assessment;

(h)  If the judge directs for an oral hearing, such hearing should not be long.  Parties should not be allowed to repeat what has been set out in the written submissions.  The purpose of the hearing should be confined to clarification of matters and to assist the court on specific issues that the court invites the party to address.  Usually, a 30-minute appointment should be sufficient;

(i)  This practice should equally be applicable to litigants in person.  There is no reason why such litigants should have more claims on the use of court’s time and other judicial resources.

67.These are offered by way of suggestion.  Each family judge can modify or add to these suggestions in light of the special circumstances of the case before the court.  After all, it is a matter of case management.  The important thing is that leave applications should be processed expeditiously and fairly in a proportionate manner.

Mr Robert Pang SC and Mr Eugene Yim, instructed by Li & Partners, for the petitioner

Mr Robin Egerton, instructed by Oldham, Li & Nie, for the respondent