B, A also known as Ab v. B, L also known as Lb also known as Lz also known as Lzb also known as Lzc also known as Zcl

CACV 18/2018

[2019] HKCA 822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2018

(ON APPEAL FROM FCMC NO. 612 OF 2015)

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REASONS FOR JUDGMENT

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Hon Cheung JA :

I. Our decision

1.1On 28 September 2017, H H Judge Melloy granted permission to the respondent mother (‘the Mother’) to remove the two children of the family out of the jurisdiction of Hong Kong in order to relocate with them to a place known as H, near Miami, Florida, USA (‘Miami’). The children, both girls, were aged 7 and 5 years old at the time of the order.

1.2Pursuant to leave granted by the Judge the petitioner father (‘the Father’) appealed.  He also sought leave to adduce new evidence for the appeal (‘the new evidence application’).  We allowed the new evidence application and the appeal.  I now give reasons for our judgment.

II)  Background of the case

1)   The family

2.1The following background of the case is extracted from the judgment below.

2.2The Mother is Columbian by birth, but emigrated to the USA with her family in 1999.  The Father is a US national.  He was born and grew up in California, USA and he and his brother were largely raised by his father and his step mother.  The parties met in late 2004 and married on 26 September 2005 in New York which was where they were both living at that time. In 2008/09 they relocated to Hong Kong in search of better career prospects. The Father obtained a job here initially as a native‑speaking English teacher. Consequently, he was granted a work visa and the Mother came shortly thereafter as his dependent.

2.3At the time of the hearing below in July 2017, the Father worked as a secondary school teacher and he also taught part time at university and as a part time tutor.  He was studying for his doctorate degree part time.  He holds a permanent Hong Kong identity card.  The children also hold US passports.  The Father was 40 years of age at the time of the hearing. Despite some earlier dispute, it is confirmed that the Mother is a permanent resident of Hong Kong.  She also holds a Columbian passport and in addition she holds an American green card, which enables her to live and work in the USA. The Mother said that she regards the USA as her home and that she has only been back to Columbia once since she left in 1999.  The Mother was 36 years of age at the time of the hearing.  The parties’ marriage had effectively broken down by the time the second child was born and they did not have sexual relations at all from that time onwards.  Sexual relations during the marriage were also fairly minimal.

2.4In May 2014, the Mother unlawfully removed the children to Miami.  The elder child then was 4 years old and the younger child 20 months old.  The Father successfully applied under the Hague Convention for the return of the children and they came back to Hong Kong in August 2014.  The Mother then lodged her relocation application in May 2016.

2.5There was a dispute between the parties concerning who was historically the primary caretaking parent.  The Mother maintained that she was the primary carer of the children during their infancy and in the period prior to their unlawful removal.  The Judge was told, although again this is disputed, that she cared for the elder child full time after her birth. The Mother said that she continued in this role after the second child was born.  It seems to be accepted that a full time domestic helper was employed shortly before the second child’s birth.  The Mother did not work during this period save for some part time odd jobs such as face painting at children’s parties etc.  She was also studying on and off for her undergraduate degree in psychology at the Hong Kong campus of the Upper Iowa University.

2.6The Father for his part maintained that the Mother became more and more detached from home life and that he took on the role of the primary carer of the children with the assistance of the domestic helper.  There is no dispute that the Father was the main breadwinner during this period.

2.7The Mother was unable to immediately return to Hong Kong following the order for the children’s return and consequently the Father took up the role of being the children’s primary carer from that time on.  The children returned to the former matrimonial home with the Father and were cared for by him with the assistance of the same domestic helper.  Although the Mother returned to Hong Kong in December 2014, i.e. about four months later, money was very tight and she was unable to rent a property suitable for the children and her to live.  Consequently, although the Mother had been in and out of Hong Kong on a frequent basis and had spent a lot of time with the children when she was here she had been unable to take up her original role, on her case, of looking after the children on a more or less full time basis.

2.8It is accepted by the Father that the Mother has been in Hong Kong on the following dates :

(1)   December 2014 - December 2015 (a period of about a year);

(2)   9 January 2016 - 30 July 2016 (a period of about 7 months);

(3)   18 September 2016 - 27 October 2016 (a period of about 6 weeks.  The Mother was accompanied on this trip by the maternal grandmother);  

(4)   December 2016 - 4 January 2017; and

(5)   In addition, the Mother was in Hong Kong for the hearing below held on 25 to 27 July 2017.

2.9During the intervening periods the Mother based herself mainly in Miami.  She also completed her degree in Developmental Psychology and undertook an internship.  Just prior to the hearing below she secured a full time job as a Clinical Director with an organisation called Kids Therapy Services Inc.  The Father worked in Hong Kong as a full time secondary school teacher.

2)   The Mother’s case

2.10It is the Mother’s case that most of her family now live in the United States and both her mother and step father and twin sister live in Miami.  Her application for relocation of the children was on the basis that she wished to return to Miami with the children where she had the support of close family and friends.  She had a full time job in Miami and she could support the children financially.  She intended initially to live with her mother and step father.  She pointed out that the children as US citizens will be entitled to free education.  She had also arranged medical coverage for them.  She would not return to Hong Kong to live in the event that her application is denied.  She described the last few years as a living nightmare which the Judge accepted.

3)  The Father’s case

2.11The Father’s case was that the children should remain in Hong Kong under his primary care and that the existing state of affairs should be retained.  The children were settled, in good schools and they had a wide circle of friends and a lot of social support.

4)  The Reports

2.12The Judge also called for Social Investigation Reports (‘SI Reports’) from the Hong Kong Social Welfare Department and an International Social Welfare report (‘ISW report’).  The SI Reports recommended that the two children should stay in Hong Kong with the Father while the ISW report provided background information on the Mother’s situation in the USA. It also recommended the Mother be granted full custody and that relocation be granted.

III.   The Judge’s decision

3.The Judge referred to Payne v Payne [2001] Fam 473 which was adopted by this Court in SMM v TWM (Child Relocation) [2010] 4 HKLRD 37.  She held that :

‘Overall what is in the best interests of the children

45.   This is a finely balanced case and the children are lucky to have two such dedicated parents both of whom clearly love them dearly.  I accept that they are both good parents.  At the end of the day though, I have decided to allow the relocation, although it will be delayed until after the conclusion of this academic year.  I appreciate that the father will be deeply disappointed by this, but I hope that he will eventually come to accept the decision with good grace.

46.    Both of the parties will be full time working parents, each of whom will need to rely on external support to help care for the children.  I accept that once the children have had an opportunity to become fully bonded with their grandparents and extended maternal family, that it is preferable for them to be cared for by family when the parent with whom they are living is at work, as opposed to a domestic helper.  It is also of note that the father is not on a permanent contract in Hong Kong.  His contract of employment comes to an end in 2018.  In many respects it seems to me that it may be easier for the father to move countries than for the mother at this stage.  He is a US citizen.  The children are US citizens.  The father has not indicated whether he will consider moving countries if the relocation is granted.  I would urge him to consider this as a possibility.  Just as the children miss their mother when she is not available for them, I have no doubt that they shall will (sic) miss the father if he chooses to remain in Hong Kong.

47.    I accept that both parties are now able to provide the children with adequate accommodation, although the grandparent’s home is clearly a much bigger and better equipped property than the father’s small flat.  I was particularly concerned that the children no longer have their own bedroom and that they and the domestic helper sleep in the living room at night.  The father has stated that the mother lives in a very violent neighbourhood.  This is not borne out by the International Social Welfare Report and I have no reason to believe that the children will be at risk if they move to H.

48.    There is though a potential issue with respect to schooling.  The relocation will not take effect until next summer.  In the intervening period it is directed that both parties make whatever applications for schools that they deem appropriate.  The parties will need to try to agree the most appropriate school for the girls.  In the event that there is any disagreement about this, then they may need to come back to court for a further determination.  I very much hope that that will not be necessary.

49. The other point of note is that the father has approximately three months holiday per year, whereas the mother only has four weeks divided into two tranches.  It is therefore possible for the father to spend significant periods of time with the girls during the school vacations, although I accept that the holiday periods will not coincide exactly, whereas the same cannot be said of the mother if the roles are reversed.’

IV.   My view

1)   The law

4.1Recently in respect of relocation applications this Court in ZJ v XWN [2018] 3 HKLRD 644 adopted the approach of Black LJ of the English Court of Appeal in Re C (A Child) (Internal Relocation) [2016] Fam 253 at [26] :

‘ 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 of the child, such as that in Payne v Payne ... is valuable in so far as it helps judges to identify factors which are likely to be of importance but it is not to be applied rigidly. ...’

4.2This Court further held at [28] that :

‘ 28. Whilst we respectfully agree with Black LJ that whatever guidance fallen from earlier cases should not be applied rigidly 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.’

4.3The Judge granted leave because she considered that guidance may be needed from this Court on applications made by parents who are not the primary carers of the children.

4.4In order to understand the dispute on Payne and the Judge’s reason for granting leave, it is necessary to go back in time to the cases before Payne. Very often in these cases the mother was a foreign national married to an English man and lived with her husband in England.  She was usually the primary carer of the children and wished to return to her homeland together with the children to start a new life either on her own or in a new relationship.  Payne was a case where the applicant mother had the residence order of a child of the family.  Thorpe LJ at [26] stated :

‘ 26. In summary a review of the decisions of this court over the course of the last 30 years demonstrates that relocation cases have been consistently decided upon the application of the following two propositions: (a) the welfare of the child is the paramount consideration; and (b) refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children.’

4.5An observation of these earlier cases is that there was a tension between, on the one hand, a reluctance to interfere with the reasonable choice of the parent with custody as to how, and where, they should live and, on the other hand, the principle that the welfare of the child is the primary consideration in deciding whether to give that parent permission to relocate elsewhere.  The conflict was reconciled by the recognition that the child’s welfare was inextricably tied to the happiness of the custodial parent and the stability of the home that the parent could provide and the happiness and stability would be likely to be threatened if the parent was compelled to adopt a manner of life contrary to his or her wish.  Hence in K v K [2012] 2 FLR 880 Black LJ at [97] stated :

‘ [97] I have found it helpful first to consider Payne v Payne in its historical context, which begins with Poel v Poel. In these early cases I detect a struggle to reconcile a disinclination to interfere with the reasonable choice of the parent with custody as to how, and in particular where, they should live with the undoubted principle that the welfare of the child is the primary consideration in deciding whether to give that parent permission to move to live outside the jurisdiction. The answer to the conundrum was found in the conviction that the child’s welfare was inextricably bound up with the happiness of the custodial parent and the stability of the home that he or she could provide and that that happiness and stability would be likely to be threatened if the parent was compelled to adopt a manner of life that he or she reasonably did not want.’

4.6Although the last sentence of Thorpe LJ in Payne at [26] seems to suggest that the primary carer’s application will be granted unless the Court concludes that it is incompatible with the welfare of the children, he clearly did not intend it to operate as a presumption.  As he emphasised :

‘ 40 However, there is a danger that if the regard which the court pays to the reasonable proposals of the primary carer were elevated into a legal presumption, then there would be an obvious risk of the breach of the respondent’s rights not only under article 8 but also his rights under article 6 to a fair trial. To guard against the risk of too perfunctory an investigation resulting from too ready an assumption that the mother’s proposals are necessarily compatible with the child’s welfare I would suggest the following discipline as a prelude to conclusion: .....’

4.7The discipline or guidance given by Thorpe LJ on the Court’s approach on relocation cases which the Judge in this case adopted can be summarised as follows :

(1)   Is the Mother’s proposal genuine and realistic?

(2)   Is the Father’s opposition genuine?  What is the extent of the detriment to him if leave is granted and how far may this be offset by the child’s relationship with the maternal family and homeland?

(3)   Impact on the Mother of a refusal of her proposal.

(4)   The outcome of the second and third appraisals must be considered in the overriding review of the child’s welfare as the paramount consideration.

4.8Dame Elizabeth Butler-Sloss P in Payne also identified seven relevant factors to be weighed in the balance.

4.9In SMM v TWM, while I together with Hartmann and Kwan JJA adopted the Payne approach, I emphasized at [32] that there is no presumption in favour of the primary carer when the all relevant factors are being considered.

4.10Black LJ in K v K at [144] stated the Payne guidance is not a rigid principle so as to dictate a particular outcome.  She specifically stated that Thorpe LJ had not intended there should be a presumption in favour of the primary carer’s proposal to relocate. 

‘ [143]   Even where the case concerns a true primary carer, there is no presumption that the reasonable relocation plans of that carer will be facilitated unless there is some compelling reason to the contrary, nor any similar presumption however it may be expressed.  Thorpe LJ said so in terms in Payne v Payne and it is not appropriate, therefore, to isolate other sentences from his judgment, such as the final sentence of para [26] (‘Therefore her application to relocate will be granted unless the Court concludes that it is incompatible with the welfare of the children’) for re‑elevation to a status akin to that of a determinative presumption.’

4.11The controversy surrounding Payne is that some subsequent cases had treated Payne as prescribing a decisive emphasis on the impact on the primary carer of a refusal of leave.

4.12This led to the more recent decisions of the English Court of Appeal such as K v K where it is stressed that, in the determination of applications for permission to relocate, the welfare of the child was the paramount consideration.  The three judges in K v K, Thorpe, Moore‑Bick and Black LJJ were of the same view on this point.

4.13This view continues and is maintained in Re C (Internal Relocation) per Black LJ at [26] which this Court adopted in ZJ.

4.14In Hong Kong the paramount consideration is whether the relocation is in the best interests of the child.  Hence whether a relocation application is made by a primary carer or a non primary carer does not give rise to any presumption in favour of or against the applicant.  There may be myriad reasons why such a parent applies for the relocation of the child.  Ultimately it is one of the factors to be considered in the overall assessment whether the relocation is in the best interests of the child and the weight to be attached to this factor depends on the facts of the case.  The value of Payne is that it ‘identifies a number of factors which will or may be relevant in a relocation case, explains their importance to the welfare of the child, and suggests helpful disciplines to ensure that the proper matters are considered in reaching a decision but it does not dictate the outcome of a case’ per Black LJ at [144] in K v K.  In my view Payne is not to be jettisoned. The relevant factors provide a structured framework in which the appraisal is to be made holistically. 

4.15I have dealt with the situation of a single parent being the primary carer.  In respect of the situation where the child’s care is shared between the parents, I find the view of Black LJ in K v K to be helpful in that cases should not become bogged down with arguments as to the label to be attached to the way in which the particular parents had provided for the care of their children.

‘ 145. ....The ways in which parents provide for the care of their children are, and should be, infinitely varied. In the best of cases they are flexible and responsive to the needs of the children over time. When a relocation application falls to be determined, all of the facts need to be considered.’

4.16In this case the Judge followed the Payne approach and discussed the various relevant factors but her ultimate decision was based on the best interests of the children.  Her approach cannot be faulted.  It is only the matters that I will discuss below which caused this Court to find that the relocation order can no longer stand.

2)   Change of circumstances and lack of new information

4.17There has been a drastic change of circumstances of the Mother since the granting of the relocation order.  Whilst the position then was that the Mother would live with the children together with her maternal family in Miami, the Mother is now no longer living there.

4.18By a letter dated 11 April 2018, the Mother informed the Court below that she was engaged and that she and her fiancé would move to San Diego, California.  The Mother had known the fiancé and his family for over 20 years.  The fiancé is a sailor in the employ of the US Government.  This information was included in the Father’s new evidence application which we had allowed.

4.19The Mother did not return to Hong Kong to attend the hearing of the appeal but she appeared at the hearing by way of video link.  She confirmed that she has moved to San Diego with her fiancé.  They are now living in a flat.  She also informed the Court that she is now pregnant and is expecting to give birth in October 2019.  She maintains that she wants the two children to live with her in San Diego and she expresses the view that it is important for her to give guidance to the elder girl who is now approaching puberty. 

4.20It is plain that the Judge’s decision to grant relocation of the children was because she considered, amongst other things, that the children would be living with the Mother and her maternal family in comfortable accommodation in Miami in contrast with the children being looked after by a domestic helper in Hong Kong when the Father is at work.  Whilst the position in Miami had been investigated to the satisfaction of the International Social Services, there is very little information concerning the Mother’s present situation in San Diego.  Some of the relevant information is lacking.  For example, who will look after the children when there is a new baby in the Mother’s new relationship?  Will the Mother continue to work?  Where will the children go to school in San Diego?  What is the present accommodation like in San Diego?  The Mother did say that her maternal family (who live in Miami) will help her but details have not been provided.

4.21I have sympathy for the Mother who obviously is distressed by the outcome of our decision but the drastic change of circumstances vitiates the foundation of the Judge’s decision.  This together with the scanty information on the Mother’s current situation in San Diego and her plans for the children are the reasons why we allowed the appeal and set aside the relocation order.  We, however, allowed the Mother to amend her application for the children to be relocated to San Diego and we remitted the amended application to the Judge for her consideration.  We also directed updated Social Investigation reports be obtained both locally and in the USA.  We also made no order as to the costs of the appeal. 

4.22There are other grounds of appeal relied upon by the Father which I do not consider necessary to address in view of the basis of our decision.

Hon Yuen JA :

5.I agree with the Reasons for Judgment of Cheung JA.

Hon Barma JA :

6.I agree with the Reasons for Judgment of Cheung JA.

Mr Shaphan Marwah, instructed by Gall, for the petitioner

Respondent, unrepresented, appearing in person through video link